HomeMy WebLinkAboutMou Related to Project Change/ENG/2024 Lease Rental BondsMEMORANDUM OF UNDERSTANDINGRELATING TO PROJECT CHANGES
This Memorandum of Understanding relating to Project Changes (the “MOU”) is entered
thintoasofthis12day of December, 2024, by and among the Common Council (the “Council”),
the Board of Public Works and the Mayor, respectively, of the City of Carmel, Indiana (the “City”);
Section 1. Contract Approvals and Bidding.
The Board of Public Works (hereinafter “BPW”) shall conduct all bid proceedings for the
expenditures of the proceeds of this bond issue in accordance with applicable law and subject to
the provisions of Sections Two (2), Three (3), Four (4) and Five (5) hereinafter.
The BPW shall also approve all agreements, contracts and change orders for the expenditure
of the proceeds of this bond issue in accordance with applicable law and subject to the provisions
of Sections Two (2), Three (3), Four (4)and Five (5)hereinafter. All agreements, contracts and
change orders shall clearly state that they are not binding upon the BPW or the City of Carmel
until passage of the seven (7) business day review period or approval by the Council as outlined
hereinafter.
Section 2. Council Approval for Bids and Change Orders, and Contracts
Estimated project costs are the individual project estimated costs listed herein on Exhibit A
hereinafter “EPC”). Soft costs such as right-of-way cost, legal and engineering fees and other soft
costs (hereinafter “soft costs') that are paid from these bond proceeds shall be included when
calculating EPC. Soft costs to be paid from other previously appropriated monies shall not be
included when calculating EPC.
After the BPW approves any bids, change orders or contracts that: (1) exceed the EPC, (2)
reduce the EPC on any of the Parks Projects (defined below), or (3) are related to Level 2 Priority
Projects, the Council shall have the right to approve or disapprove said bid, change order or
contract in accordance with Sections Three (3), Four (4) and Five (5) herein below. The parties
agree that, except for any LRS Non-Controlled Project (as defined in the Ordinance), each of the
other individual Projects will be an independently desirable end in itself without reference to
another project and the total cost to the City of any individual Project (including an allocable
portion ofany capitalized interest and the costs of issuing the Bonds, but excluding any costs
permitted to be excluded therefrom pursuant to Indiana Code 6-1.1-20-0.7), whether financed with
proceeds of the Bonds or other legally available revenues of the City, shall not exceed $6,350,000.
Section 3. Process for Approving Bids that Exceed the EPC
By the close of business within three (3) business days after the day the BPW approves any
Change Order that exceeds the EPC, the Clerk of the City ofCarmel shall deliver copies of said
Change Order to each member of the Council, along with any explanation requested to be
transmitted to the Council by the City Engineer, orhis designee, at the time of the BPW approval.
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Thereafter, the Council shall have deemed to have agreed to the proposed Change Order at
ththecloseofbusinessontheseventh (7) day after the date of the BPW approval (hereinafter
Effective Date”), unless: (a) by the close ofbusiness on the Effective Date, any member of the
Council who disputes inwriting such proposed Change Order requests in writing that the Clerk
place such issue on the agenda for the next meeting ofthe Council; and (b) at such meeting,
Council disapproves such Change Order by a vote of a majority of the elected members of the
Council.
Section 4. Parks Projects and Change Orders.
The management of all Parks Projects, from design to completion, including the scope,
timing, and acceptance of bids, shall be directed by the Carmel Clay Parks Department (“Parks
Department”), and the Director of the Parks Department shall serve as the owner’s representative
on all Parks Projects. Upon request from the Parks Department, BPW shall initiate the bid
proceedings for the Parks Projects. By the close of business, within three (3) business days after
the day the BPW approves any bids, change orders or contracts, or makes any determination that
reduces the EPC on any of the Parks Project (“Parks Change Orders”), the Clerk of the City of
Carmel shall deliver copies ofsaid Change Order to each member of the Council and the Carmel
Clay Board of Parks and Recreation (“Parks Board”), along with any explanation requested to be
transmitted to the Council and the Parks Board by the City Engineer, or his designee, at the time
of the BPW approval.
Thereafter, the Council and the Parks Board shall have deemed tohave agreed tothe
thproposedParksChangeOrderatthecloseofbusinessontheseventh (7) day after the date of the
BPW approval (the “Effective Date”), unless: (a) by the close ofbusiness on the Effective Date,
any member of the Council or Parks Board who disputes in writing such proposed Parks Change
Order requests in writing that the Clerk place such issue on the agenda for the next meeting ofthe
Council; and (b) at such meeting, the Council disapproves such Change Order by a vote of a
majority of the elected members of the Council.
Section 5. Process for Approval of Level 2 Priority Projects.
By the close of business within three (3) business days after the day the BPW approves any
bids, change orders orcontractson Level 2 Priority Projects (“Level 2Agreements”), the Clerk of
the City of Carmel shall deliver copies ofsaid Level 2 Agreements toeach member of the Council,
along with any explanation requested to be transmitted to the Council by the City Engineer, or his
designee, atthe time of the BPW approval.
Thereafter, the Council shall have deemed to have agreed to the proposed Level 2
thAgreementsatthecloseofbusinessontheseventh (7) day after the date ofthe BPW approval
the “Effective Date”), unless: (a) by the close of business on the Effective Date, any member of
the Council who disputes in writing such proposed Level 2 Agreement requests in writing that the
Clerk place such issue on the agenda for the next meeting of the Council; and (b) at such meeting,
Council disapproves such Level 2 Agreement by a vote of a majority of the elected members of
the Council.
Section 6. Definitions. For purposes of this Agreement, each of the· following terms
shall have the meaning assigned to it by this Section 6:
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a)“Parks Projects” means those Level 1 Priority Projects numbered 5, 6, and 7 on
Exhibit A to the Ordinance.
b)“ Expenditure” means any payment or other disposition of any Proceeds, excluding:
i)any payment of principal of orpremium, if any, or interest on the Bonds, including use of
Proceeds to pay capitalized interest, (ii) any payment of any costs of issuance of the Bonds, (iii)
any investment of any Proceeds in any interest-bearing instruments, or (iv) any payment(s) or other
disposition(s), in the aggregate if the contracted matter for which payment(s) or disposition(s)
is/are being made is completed inone or more steps or is part of a set or series of related contracted
matters with a single person or vendor, on each project listed on Exhibit A ofany Proceeds in an
amount less than $250,000.
c)“Ordinance” means Ordinance D-2729-24, As Amended.
d)“Proceeds” means any amounts received on behalf of the Authority and the City
from the original issuance and sale of the Bonds, and any interest earnings thereon.
Section 7. Amendments. This Agreement may beamended or terminated only bythe written
agreement of all the parties hereto.
Section 8. Governing Law. This Agreement and the rights and obligations hereunder shall
begoverned by and construed and enforced in accordance with the internal laws of the State of
Indiana, without reference to any choice of law principles.
Section9.Severability. If any portion of this Agreement is held or deemed to be, or is,
invalid, illegal, inoperable or unenforceable, the validity, legality, operability and enforceability
of the remaining portions of this Agreement shall not be affected, and this Agreement shall be
construed as of it did not contain such invalid, illegal, inoperable or unenforceable portion.
Section 10. Interpretation. The use herein of the singular shall be construed to include the
plural, and vice versa. Unless otherwise indicated, the words 'hereof herein,” “hereby and
hereunder,” and words of similar import, refer to this Agreement as a whole and not to any
particular section, subsection, clause or other portion of this Agreement.
Section 11. Captions. The captions appearing inthis Agreement are included herein for
convenience of reference only, and shall not be deemed to define, limit or extend the scope or
intent of any rights or obligations under this Agreement.
Signature Pages Follow\]
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ALL OF WHICH IS AGREED TO BY the Common Council, the Board of Public Works
and the Mayor, respectively, of the City of Carmel, Indiana, as of the date and year first written
above.
COMMON COUNCIL OF THE CITY
OF CARMEL, INDIANA
A, President
CARMEL BOARD OF PUBLIC
WORKS
Laura Campbell, President
CITY OF CARMEL, INDIANA
Sue Finkam, Mayor
TTEST: A
Jacob Quinn, City Clerk
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Approved and Adopted this day of , 20 .
CITYOFCARMEL,INDIANA
Byand through itsBoard of Public Works andSafety
BY:
Laura Campbell, Presiding Officer
Date:
James Barlow, Member
Date:
Alan Potasnik, Member
Date:
ATTEST:
Jacob Quinn, Clerk
Date:
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1/23/2025
1/23/2025
1/23/2025
2522January
EXHIBIT A
ESTIMATED PROJECT COSTS
attached\]
DMS 45575616.1
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EXHIBIT A
CITY OF CARMEL, INDIANA
2024 Bond Project List Summary
October 23, 2024
TOTAL COMBINED IMPROVEMENTS141,400,000$
1) Assumes estimated construction costs onthe day of closing. Does not assume any state, federal or other funding is received.
Note: Per Council Ordinance D-2729-24, no proceeds of the Bonds shall be spent on public art, and further provided that any proceeds ofthe Bonds remaining after the completion of the Projects and
in the priority described above may only be used for additional projects specifically approved by amajority of the members of the Common Council or to pay debt service on the Bonds.
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