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HomeMy WebLinkAboutG-2025-007-Approving-Management-Agreement-for-Pedestrian-Bridge (Park Board) RESOLUTION NO. G – 2025 – 007 RESOLUTION OF THE CARMEL/CLAY BOARD OF PARKS AND RECREATION APPROVING MANAGEMENT AND USE AGREEMENT FOR BUR OAK PEDESTRIAN BRIDGE The Carmel/Clay Board of Parks and Recreation (the “Board”) met at a duly called and authorized meeting of the Board held on the date set forth below, such meeting being called pursuant to a notice stating the time, place and purpose of the meeting received by all of the Board Members, and the following Resolutions were made, seconded and adopted by a majority of those present at the meeting, which constituted a legal quorum of the Board. WHEREAS, Clay Township of Hamilton County, Indiana (the “Township”) has constructed the Bur Oak Pedestrian Bridge across the White River at Hazel Dell Park at 106th Street (the “Bridge”); and WHEREAS, the Bridge is now substantially completed and is ready for use by the general public; and WHEREAS, the Board desires to approve a Management and Use Agreement with the Township for the continuing maintenance and use of the Bridge by the Carmel Clay Parks Department (the “Department”) in accordance with the form of agreement attached hereto as Exhibit A. NOW, THEREFORE, BE IT RESOLVED BY THE CARMEL/CLAY BOARD OF PARKS AND RECREATION AS FOLLOWS: Section 1. The foregoing Recitals are incorporated herein by this reference. Section 2. The Board hereby approves the Management and Use Agreement attached hereto as Exhibit A and ratifies and approves all actions previously taken by the Department in furtherance thereof. Section 3. The Director and/or Assistant Director of the Department are hereby authorized, empowered and directed to execute the Management and Use Agreement and to take all action necessary to approve the same with such changes as the Director determines are necessary as evidenced by his signature thereon. Section 4. This Resolution shall take effect immediately upon its adoption. [Signature page follows] APPROVED AND ADOPTED by the Carmel/Clay Board of Parks and Recreation on this 18th day of November, 2025, by a vote of 6 ayes and 0 nays. CARMEL/CLAY BOARD OF PARKS AND RECREATION Judith F. Hagan, President X Aye Nay Absent Jenn Kristunas, Vice-President X Aye Nay Absent Mark Westermeier, Treasurer X Aye Nay Absent Katie Mueller, Secretary X Aye Nay Absent Jonathan Blake X Aye Nay Absent James D. Garretson X Aye Nay Absent Josh Orahood X Aye Nay Absent Jon Shapiro X Aye Nay Absent Riddhi Shukla X Aye Nay Absent CERTIFICATION I certify under the penalties of perjury that the foregoing members of the Carmel/Clay Board of Parks and Recreation voted as indicated above at a public meeting on November 18, 2025. Judith F. Hagan, President Judith F Hagan EXHIBIT “A” Form of Management and Use Agreement ______________________________________________________________________________ MANAGEMENT AND USE AGREEMENT (Bur Oak Pedestrian Bridge) Between CLAY TOWNSHIP OF HAMILTON COUNTY, INDIANA An Indiana Political Subdivision and CARMEL/CLAY BOARD OF PARKS & RECREATION An Indiana Political Subdivision Effective as of the 15th day of October, 2025 For Bur Oak Pedestrian Bridge Hazel Dell Park Carmel, IN 1 MANAGEMENT AND USE AGREEMENT THIS MANAGEMENT AND USE AGREEMENT (hereinafter the “Agreement”) effective as of the 15th day of October, 2025 (the “Effective Date”), is by and between Clay Township of Hamilton County, Indiana (the “Township”), and Carmel/Clay Board of Parks & Recreation, an Indiana political subdivision (the “Board”), each referred to as “Party” and collectively the “Parties.” Recitals A. Pursuant to a Donation Agreement dated February 20, 2024 (“Donation Agreement”) by and between the Parties, the Township financed, acquired and constructed the Bur Oak Bridge at Hazel Dell Park as further described in Exhibit A (the “Project”) for the benefit and use of the citizens of the Township. B. The Project was constructed across the White River and is connected to both the City of Fishers and the Township as further depicted in Exhibit B (the “Project Site”). C. The Project was substantially completed as of October 15, 2025 as set forth in the certificates attached hereto as Exhibit C. D. Section 5 of the Donation Agreement expressed the parties’ intent to enter into a Management Agreement for the maintenance and upkeep of the Project by the Board upon its completion. E. The Township desires to grant exclusive management and use of the Project to the Board for the purpose of serving the public and the citizens of the Township and adjacent units with recreational opportunities as further described herein. F. The representations, covenants and recitations set forth in the foregoing recitals are material to this Agreement and are hereby incorporated into and made a part of this Agreement. Agreement NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are acknowledged hereby, the Township and the Board agree as follows: 1. Defined Terms. Bonds shall mean the Clay Township, Hamilton County, Indiana General Obligation Bonds, Series 2020B (Pedestrian Bridge Project) with final maturity on July 15, 2040. Board shall mean the Carmel/Clay Board of Parks and Recreation. 2 Board Designee shall mean the individual designated by the Board as the decision maker on matters related to the management and use of the Project. The Board has designated Michael Klitzing, in his capacity as Director of the Carmel Clay Department of Parks and Recreation, and his successors in such position, to serve as the initial Board Designee. Any change or amendment to the Board Designee shall be communicated by the Board to the Township in writing. Bridge Contractors shall mean those entities or individuals under contract with the Board for any portion of the operation, maintenance, repair and other services related to the Project and shall include their respective agents, employees and subcontractors. Claims shall mean claims, liabilities, damages, injuries, losses, liens, costs, and/or expenses (including, without limitation, reasonable attorneys' fees and costs); provided that in no event shall Claims include consequential or punitive damages. Donation Agreement shall mean the certain Donation Agreement dated February 20, 2024 entered into by and between the Parties for the financing of the Project. Effective Date shall mean the date the Project is finally complete and ready for occupancy and use by the Board. Event of Default shall have the meaning set forth in Section 12 of this Agreement. Force Majeure shall mean any cause that is not within the reasonable control of the Board or the Township, respectively, including, without limitation: (a) unusually inclement weather, including prolonged inclement cold, rain, ice, sleet, snow or hail; (b) the unusual unavailability of materials, equipment, services, or labor; (c) utility or energy shortages or acts or omissions of public utility providers; and (d) acts of God, war, civil disobedience or riots. Law or Laws shall mean all applicable laws, statutes, ordinances and any governmental or judicial rules, regulations, guidelines, judgments, orders, and/or decrees which are applicable to the Project. Major Repairs shall have the meaning set forth in Subsection 4(b) of this Agreement. Naming Rights shall have the meaning set forth in Section 8 of this Agreement. Operating Expenses shall mean any or all of the following: (i) all costs and expenses properly incurred in connection with the operation, management and maintenance of the Property, including, without limitation, all departmental expenses, administrative and general expenses, advertising and business promotion expenses, heat, light, power, electricity, gas, telephone, internet, cable and other utilities; (ii) the cost of inventories and supplies consumed in the operation of the Project; (iii) the reasonable cost and expense of audit, accounting, legal, technical, and other professional consultants and operational experts who are retained by the Board, directly relating to the Project and/or the operation thereof; (iv) insurance costs required or authorized in Section 7; (v) any and all taxes and fees imposed or assessed against the 3 Township and based on or related to the ownership or operations of the Project; (vi) personnel costs for employees or contractors directly allocable to the operations of the Project; and (vii) costs of general maintenance and repairs of the Property, except for those matters constituting Major Repairs. Project shall mean the Bur Oak Pedestrian Bridge more fully described in Exhibit A attached hereto. Project Financing shall mean the Bonds financing the design and construction of the Project, and related donations received from other Indiana political subdivisions. Project Site shall mean the site depicted on Exhibit B. Property shall mean collectively the Project and the Project Site and all related rights, hereditaments, easements and ancillary property rights related thereto. Required Permits shall mean all permits, licenses, approvals, and consents required by the Laws for the occupancy and use of the Project. Sponsorship Rights shall have the meaning set forth in Section 8 of this Agreement. Term shall have the meaning set forth in Section 1 of this Agreement. Township shall mean Clay Township of Hamilton County, Indiana, an Indiana political subdivision, acting by and through the duly elected and qualified Township Trustee. Trustee shall mean the duly elected and qualified trustee of the Township. WITNESSETH: In consideration of the mutual covenants contained in this Agreement, the Parties hereby agree as follows: 1. Property, Term and Warranty. (a) (i) The Township does hereby grant to the Board the possession and use of the Project, to have and to hold the same, with all rights, privileges, easements and appurtenances belonging thereunto, for a term beginning on the Effective Date, and ending on July 15, 2040 (the “Term”) and upon the final payment or redemption of the Bonds. By mutual agreement of the Parties, the description of the Property may be amended to add additional real estate or improvements to the Property or to remove any portion of the Property, subject to compliance with any requirements related to the Project Financing. On July 15, 2040, this Agreement shall automatically renew for one (1) year terms (a “Renewal Term”) unless terminated by either Party by written notice to the other Party no later than December 31 of the year prior to the year of termination. (ii) Notwithstanding the foregoing, the Term will terminate at the final payment 4 or defeasance of all Bonds issued by the Township (i) to finance the cost of the Project, (ii) to refund such Bonds, (iii) to refund such refunding Bonds, or (iv) to otherwise improve the Property. Renewal Terms shall automatically commence upon such alternate termination date. (iii) The Township hereby represents that as of the Effective Date it is possessed of good and indefeasible title in fee simple to the Project, and the Township warrants and will defend the same against all claims whatsoever not suffered or caused by the acts or omissions of the Board or its assigns. (b) Additional construction work may be performed and additional equipment may be purchased and installed by the Board at the Project Site, but only with the prior approval of the Trustee, and only if such changes, additional construction work or additional equipment do not alter the character of the Property or reduce the value thereof. Any such additional construction work or additional equipment shall become part of the Property and shall be covered by this Agreement. 2. Rental Payments, Utilities and Operating Expenses. The Board agrees to pay to the Township rental for the Project at a rate per year during the Term not to exceed One Dollar ($1.00). The Board agrees to pay all Operating Expenses incurred at the Property during the Term, as well as all expenses for programming and special events at the Property. 3. Use and Operation of Project. (a) Use. The Project is to be used by the Board to benefit the public, including the citizens of the Township and the City of Carmel, Indiana and adjacent political subdivisions. The Board shall facilitate, direct, and manage year-round programming, if any, related to the Project and shall adopt and enforce rules necessary for the efficient and safe use and operation of the Property. (b) Rents and Revenues. Subject to the requirements of Section 8, Section 11 and Exhibit E, the Board shall have the right to charge reasonable rents or usage fees for the Project. Proposed rental and usage rates shall be filed with the Township upon request from the Trustee; however, the Board shall retain the right, in its sole discretion, to offer concessions, credits, and/or discounts to rental and usage rates. (c) Employees and Personnel. The Board shall be solely responsible for hiring, supervising and discharging all labor, employees or contractors required for the operation, maintenance and management of the Property and the Township shall have no responsibility therefore and shall be indemnified by the Board from any Claims related thereto. (d) Records and Reporting. The Board shall at all times maintain accurate books and records reflecting the operating revenues and expenses for the Project consistent with the requirements of the Indiana State Board of Accounts. The operating records for the Property shall at all times be open to the Township and the State Board of Accounts for audit and review purposes, to the extent required by law. Nothing contained herein shall require the Board to 5 maintain separate accounts for operating revenues and expenses for the Property separate from other properties operated by the Board. (e) Assignment of Rights and Warranties. The Township hereby assigns to the Board all of its right, title and interest in and to all warranties regarding the construction or repair of the Property, or any equipment or furnishing therein, and otherwise assigns to the Board any benefits it may have in and to said warranties and agrees to take reasonably action to sign such documents or documentation as may be necessary upon written request of the Board to effectuate the terms of this provision. The foregoing assignment is an assignment of rights only, and the Township shall continue to hold its right, title and interest in and to all such warranties in addition to the assignment to the Board. 4. Maintenance, Alterations and Repairs. (a) Maintenance. The Board shall have the full responsibility to operate, maintain and repair the Property during the Term, keeping it in good repair, working order and condition at its sole expense. The Board shall use and maintain the Property at all times in accordance with the Laws and shall: (i) Provide adequate routine maintenance and cleaning programs; (ii) Provide all maintenance, repairs, and replacements to the Property, excluding Major Repairs; (iii) Implement a regularly scheduled program of preventive maintenance and repair; (iv) Provide all maintenance, repairs, and replacements of sidewalks, trails, drives and parking areas servicing the Property, including snow removal; (v) Provide all maintenance, watering, repairs, and replacements of landscaping surrounding the Property; (vi) Maintain all Property utilities in Board’s name and timely pay all utility billings to each utility provider; and (vii) Undertake all additional maintenance and repairs necessary to keep the Property in good operating condition, with the exception of those Major Repairs provided for in Section 4(b). (b) Capital Repairs and Replacements. In the event a capital expenditure is required for major repairs or replacements related to the Project (“Major Repairs”), the Board shall not be responsible for such Major Repairs. As the owner of the Project, the Township shall be responsible to fund any such Major Repairs which shall be commenced and completed as agreed by the parties, with the Township funding such Major Repairs and the Board being responsible to execute and supervise contractors for such Major Repairs. In the event of any such Major Repairs, the Parties agree to work together in good faith to finance and complete such Major Repairs for the protection of the public and the Project. (c) Alterations. The Board shall have the right, without the consent of the Township, to make non-structural alterations, modifications and additions to the Property and to undertake all improvements it deems necessary or desirable to the Property which do not reduce the value 6 thereof. If the Board desires to make any structural alterations, modifications or additions, the Board must first receive approval of the Trustee, which approval shall not be unreasonably withheld, conditioned or delayed. (d) Signage. The Board may install any signage deemed necessary or appropriate on the Property, subject to the Laws and the provisions of Section 8 of this Agreement. 5. Damages to Property. In the event the Project is partially or totally destroyed, whether by fire or any other casualty, so as to render the same unfit, in whole or part, for use by the public, (a) it shall then be the obligation of the Township to restore and rebuild the Project as promptly as may be done, subject to events of Force Majeure; provided, however, that the Township shall not be obligated to expend on such restoration or rebuilding more than the amount of the proceeds received by the Township from the insurance provided for in Section 7 hereof, and provided further, the Township shall not be required to rebuild or restore the Project if the Township, in its reasonable judgment, determines not to undertake such work because the Township anticipates that the cost of such work exceeds the amount of insurance proceeds and other amounts available for such purpose. 6. Access to Property. At all times during the Term, the Board shall permit the Township or its agents to inspect the Property during normal hours for public access; provided, however, such inspections shall not unreasonably interfere with the Board’s or the public’s use and enjoyment of the Property. 7. Insurance. The Board shall, at its own expense, and throughout the Term, insure the Project against physical loss or damage, however caused, with such exceptions as are ordinarily required by insurers of buildings or facilities of a similar type, with good and responsible insurance companies acceptable to the Township. Such insurance shall be in an amount equal to one hundred percent (100%) of the full replacement cost of the Project as certified by a registered architect, registered engineer or professional appraisal engineers selected by the Township on the effective date of this Agreement. Throughout the Term, the Board shall maintain, at its own expense, combined bodily injury insurance, including accidental death, and property damage with reference to the Property in an amount sufficient to adequately cover such losses with one or more good and responsible insurance companies. The public liability insurance required herein may be by blanket insurance policy or policies. The bodily injury and property damage insurance for the Board shall list the Township and its officers, agents and employees as additional insureds with thirty (30) days prior notice of termination or reduction in coverage. Insurance coverage shall meet or exceed the requirements set forth in Exhibit D. The proceeds of the public liability insurance required herein (after payment of expenses incurred in the collection of such proceeds) shall be applied toward extinguishment or satisfaction of the liability with respect to which such insurance proceeds are paid. Such policies shall be for the benefit of persons having an insurable interest in the Property, and shall be made payable jointly to the Township and the Board or to such other person or persons as the parties hereto may jointly designate. Such policies shall be countersigned by an agent of the insurer who is a resident of the State of Indiana, and such policies (or certificates of insurance for each policy) and the 7 certificate of the architect or engineer referred to above shall be maintained by the Board. If, at any time, the Board fails to maintain insurance in accordance with this Section, such insurance may be obtained by the Township and the amount paid therefor shall be immediately reimbursed by the Board to the Township; provided, however, that the Township shall be under no obligation to obtain insurance and any action or non-action of the Township in this regard shall not relieve the Board of any consequence of its default in failing to obtain such insurance. 8. Naming and Sponsorship Rights. No naming or sponsorship right shall be granted in respect to all or any portion of the Project except in compliance with this Section 8. During the Term, the Parties must mutually agree prior to granting to any third party any naming rights to all or any portion of the Project (“Naming Rights”). The Naming Rights defined herein shall specifically exclude minor components included in or adjacent to the Project, including personal property (e.g., benches, entrances, etc.) and the Board shall have the right to treat such excluded rights as Sponsorship Rights, as defined below, for which no Township approval shall be required. Sponsorship rights pertaining to any minor components included in or adjacent to the Project or any temporary activities, temporary exhibitions or events held at the Property (“Sponsorship Rights”) do not require the Township’s approval. For purposes of this section, the term “temporary” in relation to temporary activities, exhibitions, and events shall mean a duration lasting fourteen (14) calendar days or less. For any rights in this Section 8 requiring Township agreement, the Township agrees not to unreasonably withhold, delay, and/or condition such agreement or consent hereunder. Proceeds from any grant of Sponsorship Rights shall be the sole property of the Board to be used as the Board shall determine. The Township’s approval of any Naming Rights agreement shall be evidenced by a Resolution of the Clay Township Board. The Township will use commercially reasonable efforts to complete its review, approval or denial of any Naming Rights within sixty (60) days from receipt of the Board’s request. The Board shall not sell Naming Rights if the sale of such Naming Rights jeopardizes the tax-exempt status of the Bonds, as further described in Section 11 and Exhibit E. 9. Eminent Domain. If title to or the temporary use of the Project, or any part thereof, shall be taken under the exercise of the power of eminent domain by any governmental body or by any person, firm or corporation acting under governmental authority, any net proceeds received from any award made in such eminent domain proceedings (after payment of expenses incurred in the collection thereof) shall be paid to and held by the Township. Such proceeds shall be applied in one or more of the following ways: (i) the restoration of the Project to substantially the same condition as it existed prior to the exercise of said power of eminent domain, or (ii) the acquisition, by construction or otherwise, of other improvements suitable for the Board’s operation of the Project. Within ninety (90) days from the date of entry of a final order in any eminent domain proceedings granting condemnation, the Board shall submit a request to the Township in writing as to which of the ways specified in this section the Board elects to have the net proceeds of the condemnation award applied. The decision regarding the application of the proceeds of the condemnation award shall be at the Township’s sole discretion. 8 The Parties shall cooperate fully in the handling and conduct of any prospective or pending condemnation proceedings with respect to the Project or any part thereof and will to the extent it may lawfully do so, the Township may, in its sole discretion, litigate in any such proceedings in its own name. In no event will the Township voluntarily settle or consent to the settlement of any prospective or pending condemnation proceedings with respect to the Project or any part thereof without the written consent of the Board, which consent shall not be unreasonably withheld, delayed or denied. 10. Assignment, Subletting and Consolidation. All covenants of this Agreement, whether by the Township or the Board, shall be binding upon the successors and assigns of the respective parties hereto. The Board shall not assign this Agreement or sublet the Project without the written consent of the Township. In the event of the dissolution or consolidation of the Township into another political subdivision, the consolidated or surviving political subdivision shall assume and perform this Agreement and, in every way, shall be bound thereby as fully as the Township is bound hereby. The surviving or consolidated political subdivision shall execute all documents necessary for the acceptance, assignment and assumption of this Agreement. 11. Tax Covenants. Notwithstanding any other provision of this Agreement to the contrary, the Board shall not take any action or fail to take any action with respect to its use of the Project that would result in loss of the exclusion from gross income of interest paid on the Bonds or any portion of the Project Financing under the Internal Revenue Code and the rules and regulations thereunder (the “Code”), which Bonds, when initially issued and sold, were the subject of an opinion of bond counsel to the effect that interest thereon was excludable from gross income under the Code. For purposes of this Agreement, the Parties agree that the Board, with respect to its operation and management of the Project as provided in this Agreement, shall comply with the tax law requirements applicable to the Project and the Bonds, as fully set forth in Exhibit E hereto. The Board shall indemnify and hold the Township, as well as its officers, employees and agents, harmless from and against all Claims arising from or connected with the Board’s failure to comply with this Section or Exhibit E. Any agreement entered into by the Board with respect to the Project that would result in a loss of the exclusion from gross income of interest paid on the Bonds under the Code shall be void ab initio, of no force or effect, and shall not convey any rights or impose any obligation in respect to it, at law or in equity. In addition, during the Term, the Board shall at all times retain its status as an Indiana political subdivision or a component unit of an Indiana political subdivision. The loss of Board’s tax exempt status during the Term shall constitute a default under this Agreement if reinstatement does not occur within ninety (90) days of notice of the same. 12. Defaults. If the Board shall materially default in the observance of any covenant, agreement or condition hereof (an “Event of Default”), and such material default shall continue for thirty (30) days after written notice to correct the same; then, in any or either of such events, the Township may proceed to protect and enforce its rights by suit or suits in equity or at law in any court of competent jurisdiction, whether for specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy; or the Township, at its option, upon an additional thirty (30) days’ written notice, may terminate the estate and interest of the Board hereunder, and it shall be lawful for the Township to immediately resume possession of the Project and the Board covenants to surrender the same upon demand. The exercise by the Township of the above right to terminate this Agreement shall not release the Board from the performance of any obligation hereof maturing prior to the Township's actual entry into possession. No waiver by the Township of any right to terminate this Agreement upon any Event of Default shall operate to waive such right upon the same or other default subsequently occurring. 13. Indemnification. The Board shall indemnify and hold the Township, as well as its officers, employees and agents, harmless from and against all Claims arising from or connected with the Board’s control or use of the Property (including the use of the Property by the Board’s employees, contractors, invitees, guests, tenants, users and the general public), including, without limitation, any damage or injury to person or property, unless such damage or claim arises out of the negligence of or intentional torts of the Township, its agents or contractors; provided that the Board shall have no obligation to indemnify the Township for (i) the Township’s own acts, omissions, negligence, breaches, and/or intentional acts; (ii) any Claims related to or arising from the design and construction of the Project; or (iii) any Claims related to or arising from acts, omissions, negligence, breaches, and/or intentional acts by third-parties over which the Township has control. This indemnification shall also not include any matter for which the Township is effectively protected against by insurance. If the Township shall, without fault, become a party to litigation commenced by or against the Board, then the Board shall indemnify and hold the Township harmless therefrom. The indemnification provided by this Section shall include the Township’s reasonable legal costs and fees in connection with any such claim, action or proceeding. The Township and the Board do hereby release the other from all liability for any accident, damage or injury caused to person or property; provided, however, that this release shall be effective only to the extent the injured or damaged party is insured against such injury or damage and only if this release shall not adversely affect the right of the injured or damages party to recover under such insurance policy. The Township shall indemnify and hold the Board and its officers, employees and agents harmless from and against all Claims arising from or connected with the Township’s construction of the Project, including, without limitation, any damage or injury to persons or property, unless such damage or claim arises out of the negligence of or intentional torts of the Board, its guests or invitees; provided that the Township shall not have any obligation to indemnify the Board for (i) the Board’s own acts, omissions, negligence, breaches, and/or intentional acts; or (ii) any Claims related to or arising from acts, omissions, negligence, breaches, and/or intentional acts by third- parties over which the Township has no control. This indemnification shall also not include any matter for which the Board is effectively protected against by insurance. If the Board shall, without fault, become a party to litigation commenced by or against the Township, then the Township shall indemnify and hold the Board harmless therefrom. The indemnification provided by this Section shall include Board’s reasonable legal costs and fees in connection with any such claim, action or proceeding. 14. Notices. Any notice required or permitted to be given by any Party to this Agreement shall be in writing, and shall be given (and deemed to have been given) when: (a) delivered in person to the other party; (b) delivered by electronic mail, with confirming copies sent by U.S. Certified Mail or overnight delivery service; (c) three (3) days after being sent by U.S. Certified Mail, Return Receipt Requested; or (d) the following business day after being sent by national overnight delivery service, with confirmation of receipt, addressed as follows: If to the Township: Office of the Trustee 10701 N. College Avenue Indianapolis, IN 46280 With a copy to: Kroger Gardis & Regas, LLP 111 Monument Circle, Suite 900 Indianapolis, IN 46204-5125 If to the Board: President Carmel/Clay Board of Parks & Recreation 1411 E. 116th Street Carmel, IN 46032 With a copy to: Director Carmel Clay Department of Parks and Recreation 1411 E. 116th Street Carmel, IN 46032 The Township and the Board may by notice given hereunder, designate any further or different addresses to which subsequent notices, certificates, requests or other communications shall be sent. 15. Severability. In the case of any section or provision of this Agreement, or any covenant, stipulation, obligation, agreement, act or action, or part thereof, made, assumed, entered into or taken under this Agreement, or any application thereof, is for any reason held to be illegal or invalid, or is at any time inoperable, that illegality or invalidity or inoperability shall not affect the remainder hereof or any other section or provision of this Agreement or any other covenant, stipulation, obligation, agreement, act or action, or part thereof, made, assumed, entered into or taken under this Agreement, which shall be construed and enforced as if that illegal or invalid or inoperable portion were not contained herein. ALL OF WHICH IS AGREED to by the Carmel/Clay Board of Parks & Recreation on the date set forth below. “BOARD” CARMEL/CLAY BOARD OF PARKS & RECREATION By: _______________________________ Michael Klitzing, Director Approved: November 18, 2025 ALL OF WHICH IS AGREED to by the Township on the date set forth below. CLAY TOWNSHIP HAMILTON COUNTY, INDIANA By: _________________________________ Mary Eckard, Chairman _________________________________ Douglas Callahan, Secretary _________________________________ Paul K. Bolin, Member CLAY TOWNSHIP HAMILTON COUNTY, INDIANA By: __________________________________ Paul Hensel, Township Trustee Approved: October 15, 2025 This instrument prepared by and should be returned to: Brian C. Bosma, Kroger Gardis & Regas, LLP, 111 Monument Circle Suiter 900, Indianapolis, IN 46204 I affirm, under the penalties for perjury, that I have taken reasonable care to redact each Social Security number in this document, unless required by law. Brian C. Bosma INDEX TO EXHIBITS Exhibit A Description of the Project Exhibit B Depiction and/or Description of Project Site Exhibit C Evidence of Final Completion and Occupancy Exhibit D Insurance Requirements Exhibit E Federal Tax Law Requirements Applicable to Project and Bonds Exhibit A The Project All or any portion of the acquisition, design, constructing and equipping of a pedestrian bridge spanning the White River near 106th Street in Hamilton County at Hazel Landing Park and the improvement and expansion of trails connected thereto for the use of the Carmel/Clay Board of Parks & Recreation and any related structures and amenities, including any related infrastructure, parking and utilities associated therewith and projects related thereto, as constructed by Clay Township of Hamilton County, Indiana. Exhibit B The Project Site [See depiction attached] Exhibit C Evidence of Final Completion and Occupancy [See substantial completion certificates attached] Exhibit D Insurance Requirements Workers Compensation & Disability Statutory Limits Employer’s Liability: $500,000 policy limit Comprehensive General Liability Bodily Injury: $1,000,000 each occurrence; $1,000,000 aggregate; Property Damage: $2,000,000 each occurrence; $2,000,000 aggregate; Comprehensive Auto Liability Bodily Injury: $1,000,000 each occurrence; $1,000,000 aggregate; Property Damage: $1,000,000 each occurrence; $1,000,000 aggregate; Comprehensive Umbrella/Excess Liability Each occurrence and aggregate $5,000,000 Maximum Deductible $25,000 • CGL policy shall include coverage for property damage for the X (explosion), C (collapse) and U (underground) hazards. Such insurance shall cover liability arising from premises, operations, independent contractors, products-completed operations, personal and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract). • The limits above shall apply on a per project basis for this Project. • Additional Insured Certificate shall comply with Section 7. New Certificates shall be submitted annually throughout the Term. Exhibit E Federal Tax Law Requirements applicable to Project and Bonds For purposes of this Exhibit E, capitalized terms, if not defined herein, will have the meanings ascribed to such terms in the Agreement to which this Exhibit E is attached. I. Bond Financing. The Parties acknowledge that the Project was financed through the issuance of the Bonds as defined in the Agreement to which this Exhibit E is attached. Consequently, extensive private use of the Project may subject the Bonds to violate the Internal Revenue Code and regulations thereunder regulating the private business use of tax-exempt financed projects. II. Naming Rights. As described in Section 8 of the Agreement to which this Exhibit E is attached, the parties anticipate that Board may sell Naming Rights with respect to the Project. Except to the extent the amounts paid for Naming Rights are used to finance “operation and maintenance” of the Project (as described in IV, below) and/or Operating Expenses (as defined in Section 1 of the Agreement), such amounts constitute “private payments” that must be aggregated during the life of the Bonds to determine whether the Bonds violate the Private Payment or Security Test. Such payments may cause the Bonds to violate the Private Payment or Security Test if the total amount of the payments (together with any other private payments described in III below) exceed ten percent (10%) of the aggregate debt service to be paid on the Bonds during the life of the Bonds. III. Other Private Payments. Payments received from persons or organizations using the Project will not constitute private payments for purposes of the Private Payment or Security Test unless such payments are made pursuant to an agreement between Board and some private entity using the Project, where such use is on a basis other than use by the general public. If Board makes available to different organizations use of the Project at the same or different times, and those organizations make payments for the use of the Project, those payments do not constitute private payments for purposes of the Private Payment or Security Test. If the use made by such organizations, however, is pursuant to an arrangement that is not available to other potential users (e.g., a long-term contract to have exclusive use of the facility for two weeks out of every month), then the payments made by such organization for the use of the Project would constitute private payments and would have to be aggregated, along with proceeds of Naming Rights (except as otherwise provided in VI) for purposes of the Private Payment and Security Test. IV. Operation and Maintenance. To the extent any payments collected by the Board under II above, are allocated to the payment of operating and maintenance expenses of the Project and/or Operating Expenses (as defined in Section 1 of the Agreement), such payments will not constitute private payments and need not be aggregated for purposes of determining whether the Bonds violate the Private Payment and Security Test. V. To the extent the Board is unsure of the treatment or classification of use of the Project or payments made for Naming Rights or use of the Project, the Board should contact the Township and the Township’s bond counsel with respect to the Bonds to ensure that the Bonds do not violate the Private Payment or Security Test. VI. No Private Loans. None of the proceeds of the Bonds will be used, directly or indirectly, to make or finance loans to persons other than a state or local governmental unit.