City of Indianapolis/Interlocal Cooperation Agreement Related to Improvements to the 96th Street Corridor From Haverstick Road to Priority Drive WestINTERLOCAL COOPERATION AGREEMENT
BETWEEN
THE CITY OF INDIANAPOLIS
BY AND THROUGH ITS DEPARTMENT OF PUBLIC WORKS
AND
THE CITY OF CARMEL
This Interlocal Cooperation Agreement ("Agreement") is entered into by and between
the Consolidated City of Indianapolis and Marion County, Indiana, by and through its
Department of Public Works ("City"), and the City of Carmel, Indiana, by and through its Board
of Public Works and Safety ("Carmel"), related to improvements to the 96th Street corridor from
Haverstick Road to Priority Way Drive West.
RECITALS
WHEREAS, I.C. § 8-17-1-45 provides that each county is responsible for the
construction, reconstruction, maintenance, and operation of the roads, including the ditches
and signs for those roads, making up its southern and eastern boundaries; and
WHEREAS, 96th Street forms the boundary between Hamilton County and Marion
County, and is Hamilton County's southern boundary; therefore, Hamilton County is
responsible for the construction, reconstruction, maintenance and operation of 96th Street; and
WHEREAS, pursuant to E.C. § 36-1-3-9(a), Carmel has jurisdiction over of those
portions of 96th Street within its borders; and
WHEREAS, the 96th Street corridor is a major roadway which serves and affects the
citizens of and the economic well-being of both Indianapolis and Carmel; and
WHEREAS, recent development in the geographic area of 96th Street has lessened the
present level of service of 96th Street corridor; and
WHEREAS, the City and Carmel, individually and collectively, have determined that the
finance, design and construction of Improvements to the 96th Street corridor from Haverstick
Road to Priority Way Drive West (the "Project") will be of public utility and benefit; and
WHEREAS, in order to construct the Project, it is necessary for Carmel to acquire,
manage and regulate right-of-way and conduct construction activities within the borders of the
City; and
WHEREAS, pursuant to I.C. § 36-1-4-18, Carmel may exercise powers granted by I.C.
§ 36-1-4-5 (power to acquire real and personal property by eminent domain or other means)
and I.C. § 36-1-4-6 (power to use, improve, develop, insure, protect, maintain, lease and
dispose of interests in property) within four (4) miles outside its boundaries, and pursuant to
I.C. § 36-1-3-9(c) Carmel may exercise such powers within the boundaries of another
municipality, such as the City, pursuant to an interlocal cooperation agreement under I.C. 36-1-
7; and
WHEREAS, Carmel and the City desire to enter into this Agreement pursuant to I.C. §§
8-17-1-45(b), 36-1-3-9(c) and 36-1-7-2 to allow for Carmel to acquire right-of-way, to manage
such right-of-way, and to conduct construction activities within the boundaries of the City as
necessary for completion of the Project.
NOW THEREFORE, in consideration of the foregoing premises and the terms and
conditions contained herein, the City and Carmel agree as follows:
1. Representations. Each party represents to the other party that:
a. It will submit this Agreement for approval by the party's fiscal body as
required by I.C. § 36-1-7-4;
b. Subject to approval by. the party's fiscal body, it has all requisite power,
authority and legal right to enter into and carry out the obligations set forth in this
Agreement; and
C. Subject to approval by the party's fiscal body, it will execute this
Agreement by an authorized representative, upon which execution this
Agreement will constitute a valid, legally binding obligation of the party,
enforceable by its terms, and the party is estopped from making a claim based
upon the unenforceability of this Agreement.
2. Obligations of Carmel. Carmel shall be the lead agency on the Project and shall
have the following obligations hereunder:
a. Appoint a representative to act as liaison with the City.
b. Submit to the City the design and construction plans and specifications for
review and approval by the City, and cooperate with the City with regard to any
comments the City may have regarding the plans and specifications.
C. Perform all activities reasonably necessary to construct the Project,
including but not limited to design, engineering, environmental due diligence,
testing and remediation, utility relocation, public bidding and contracting,
construction, and construction inspection, including within the borders of the City,
at its sole cost and expense.
d. Acquire all right-of-way required to construct the Project, including within
the boundaries of the City, by whatever means it deems necessary and
appropriate, including through the exercise of eminent domain, at its sole cost
and expense. Any such property interests acquired by Carmel shall be held in
the name of Carmel.
e. Include in any contract pertaining to the Project an appropriate clause
indemnifying the City as set forth in Section 9 hereof, and cause the
"Consolidated City of Indianapolis and Marion County" to be named as an
additional insured on all insurance policies related to construction of the Project,
including those policies of insurance carried by design professionals,
construction contractors and construction inspectors, at its sole cost and
expense.
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f. Comply with all applicable rules, regulations, ordinances, statutes and law
concerning the Project, at its sole cost and expense.
g. Obtain all necessary permits required to construct the Project, at its sole
cost and expense.
h. Maintain the Project improvements, at its sole cost and expense.
L Regulate, by ordinance, rule, regulation or otherwise, all uses of the right-
of-way acquired for the Project, including within the boundaries of the City.
j. Agree not to discriminate, and agree to require each of its contractors on
the Project to agree in writing not to discriminate, against any employee or
applicant for employment to be employed in the performance of the Project with
respect to her or his hire, tenure, terms, conditions, or privilege of employment,
or any matter directly or indirectly related to employment, because of her or his
race, sex, sexual orientation, gender identify, color, national origin, ancestry, age,
disability, or United States military service veteran status.
k. Within fifteen (16) days of full approval and execution of this Agreement,
record this Agreement with the Office of the Hamilton County Recorder and the
Office of the Marion County Recorder as required by I.C. § 36-1-7-6.
L Within sixty (60) days of the Effective Date of this Agreement (as defined
in Section 6 below), file a copy of this Agreement with the Indiana State Board of
Accounts as required by I.C. § 36-1-7-6.
3. Obligations of the City. The City shall have the following obligations hereunder:
a. Appoint a representative to act as liaison with Carmel.
b. Cooperate with Carmel in the review of the design and construction plans
and specifications for the Project. The City shall respond with its comments
and/or approval of the plans and specifications within thirty (30) days of submittal
by Carmel. The City's approval shall not be unreasonably withheld. Failure by
the City to respond within this timeframe shall be deemed an approval of the
plans and specifications by the City.
C. Consent to Carmel's acquisition of right -of --way required to construct the
Project within the boundaries of the City, including consent for Carmel to exercise
eminent domain to acquire such right-of-way. The City hereby acknowledges
and agrees that Carmel may acquire such right-of-way in Carmel's name within
the boundaries of the City.
d. Cooperate with Carmel in obtaining any required permits.
e. Consent to Carmel's regulation of the uses of the right-of-way acquired for
the Project within the boundaries of the City. The City hereby acknowledges and
agrees that Carmel may enact ordinances, rules or regulations regarding the use
of right-of-way acquired for the Project within the boundaries of the City.
Notwithstanding any provision in this Agreement to the contrary, the City shall not be
financially responsible for any cost associated with the Project.
4. .Joint Undertaking. The parties hereby acknowledge and agree that the purpose
and intent of this Agreement is not to undertake the joint exercise of power within the meaning
of I.C. § 36-1-7-2(a) and, therefore, this Agreement need not address other matters related to
the financing, staffing, budget, administration through a joint board or separate legal entity, or
the manner of acquiring, holding and disposing of real and personal property of a joint
undertaking. There will be no jointly held property under this Agreement; however, in the event
there is other jointly held property, it shall be distributed to Carmel.
5. Dispute Resolution. Any disputes that may arise under this Agreement shall be
resolved by the parties' respective executive officers, or their designees. Failing resolution by
the executive officers, the parties shall submit the dispute to mediation. Failing resolution of
the dispute by mediation, either party may institute a suit in a court of law as provided for in
Section 12 hereof.
G. Effective Date. This Agreement shall be effective upon the latest date of: (a)
adoption of appropriate resolutions or ordinances approving this Agreement by the fiscal body
of each party; (b) execution by the parties; or (c) recordation of this Agreement with the
Recorder of Hamilton County and the Recorder of Marion County.
7. Term.
a. This Agreement shall be in effect until the later of: (i) completion of the
Project; or (ii) four (4) years from the Effective Date; unless this Agreement has been
otherwise terminated or the term hereof extended. If the Project is not finally completed
within the above -stated four (4) year period, the parties will cooperate to extend the
term hereof.
b. Section 7.a. or any other term or condition set forth in this Agreement to
the contrary notwithstanding, the following Sections shall survive termination or
expiration of this Agreement, unless otherwise specifically terminated by written
agreement of the parties:
i, Section -2.h. (Maintenance of the Project);
ii. Section 21 (Carmel's regulation of right-of-way);
iii. Section 3.e. (City's consent to regulation of right-of-way);
iv. Section 5 (Dispute resolution);
V. Section 9.a. (Indemnification of the City); and
vi. Section 12 (Applicable law; suit).
8. Notice.
a. With regard to routine communications concerning the Project and
communications regarding review and approval of Project plans and specifications for
review and approval under Sections 2.b. and 3.b., the parties' respective authorized
representatives may communicate directly by whatever means they deem most
effective and efficient.
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b. Any other type of formal notice required to be provided under this
Agreement shall be sent by internationally recognized overnight courier, certified mail,
facsimile or other delivery method which provides confirmation of receipt and shall be
directed to the persons and addresses specified below (or such other persons and/or
addresses as any party may indicate by giving notice to the other party):
To Carmel:
Department of Engineering
Attention: Director
City of Carmel
One Civic Square
Carmel, IN 46032
With a copy to:
Douglas C. Haney
Corporation Counsel
City of Carmel
One Civic Square
Carmel, IN 46032
9. Indemnification.
To City:
Department of Public Works
Attention: Director
City of Indianapolis
200 East Washington Street, Suite 2460
Indianapolis, IN 46204
With a copy to:
Office of Corporation Counsel
Attention: Corporation Counsel
City of Indianapolis
200 East Washington Street, Suite 1601
Indianapolis, IN 46204
a. To the extent allowed by law, Carmel hereby agrees to indemnify, defend,
exculpate, and hold harmless the City and its officers, employees and agents, from and
against any and all claims, suits and liabilities of any kind or character, including
reasonable attorneys' fees ("Tort Claims"), which result or arise from any negligent acts
or omissions of Carmel or those for whom Carmel is responsible, including its officers,
employees, agents and contractors, arising from or connected with the performance of
any of Carmel's duties or responsibilities under this Agreement, including construction
and maintenance of the Project. Notwithstanding the preceding sentence, the obligation
of Carmel to indemnify, defend, exculpate, and hold harmless the City shall only arise if
Carmel would also be liable under I.C. 34-13-3, as may be amended from time to time.
Furthermore, the liability of Carmel to indemnify the City shall be limited by the
provisions of I.C. 34-13-3, as may be amended from time. Carmel shall include in any
contracts pertaining to the Project appropriate clauses to extend any indemnification
and hold harmless obligation of its contractors in favor of the Consolidated City of
Indianapolis and Marion County.
b. To the extent allowed by law, the City agrees to indemnify, defend,
exculpate, and hold harmless Carmel and its respective officers, employees and agents,
from and against Tort Claims, including reasonable attorneys' fees, which result or arise
from any negligent acts or omissions of the City or those for whom the City is
responsible, including its officers, employees, agents and contractors, arising from or
connected with the performance of any of the duties or responsibilities of the City under
this Agreement. Notwithstanding the preceding sentence, the obligation of the City to
indemnify, defend, exculpate, and hold harmless Carmel shall only arise if the City
would also be liable under I.C. 34-13-3, as may be amended from time to time.
Furthermore, the liability of the City to indemnify Carmel shall be limited by the
provisions of I.C. 34-13-3, as may be amended from time to time.
10. Modification. The parties may alter, change or amend the terms and conditions
of this Agreement only by mutual written agreement approved by the fiscal body of each party.
11. Entire Agreement. This Agreement constitutes the entire and complete
agreement between the parties with respect to its subject matter, supersedes any prior
discussions, negotiations, and understandings between them, and cannot be altered, changed
or amended except as provided for in Section 10 hereof. The parties acknowledge that neither
Carmel or the City, nor any of their respective officers, employees, or agents have made any
representations relied upon by any other party other than the agreements contained herein.
12. Applicable Law. This Agreement shall be construed in accordance with the laws
of the State of Indiana. This Agreement shall include, and incorporate by reference, any
provision, covenant or condition required or provided by law or by regulation of any state or
federal regulatory or funding agency. Suit, if any, shall be brought in the State of Indiana,
County of Boone.
13. Interpretation. The parties hereby acknowledge and agree that is Agreement is
the result of negotiations between the parties and their respective legal counsel, and no party
shall be deemed to be the drafter of this Agreement. The language of all parts of this
Agreement shall in all cases be construed as a whole, according to its fair meaning and not
strictly for or against either party.
14. Severability. If any provision of this Agreement is held to be invalid, illegal, or
unenforceable by a court of competent jurisdiction, the provision shall be stricken, and all other
provisions of this Agreement which can operate independently of such stricken provisions shall
continue in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
dates specified below.
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Approved and Adopted this day of ��L , 2011.
CITY OF CARMEL, INDIANA
By and through its Board of Public Works and Safety
BY:
J es Brainard, resi Offic r
ate.
Mary Ann urke Vembitr
Date: 3//V/ 7
Lori S. WatsMe ber
n,
Date: -23 0 5
ATTEST:
Cl -Treasurer
Date: 3 /�5�2
STATE OF INDIANA )
) SS:
COUNTY OF HAMILTON )
Before me, the undersigned Notary Public in and for said County and State, personally appeared
James Brainard, Mary Ann Burke and Lori S. Watson, each a member of the Board of Public Works and
safety of the City of Carmel, who acknowledged the execution of the foregoing Interlocal Cooperation
Agreement for and on behalf of the City of Carmel.
Witnesses my hand and Notarial Seal this tday of 1V\ , 2017.
CO L� ya� W�
Commission Expiration Date Notary Public Signature
DIANNE WALTHALL
County of ResidencNotary Public - State of Indiana
Hamilton County
My Commission Expires Mar 16, 2024
Public Signature
CONSOLIDATED CITY OF INDIANAPOLIS
AND MARION COUNTY, by and through Its
DEPARTMENT OF PUBLIC WORKS
By:
LoriMiser, birector
Approved by the City -County Council of the Consolidated City of Indianapolis and Marion
County by Special Ordinance 69 , 2016 adopted ' Cr 111 ec - 5 , 2016.
ATTEST:
Clerk f he City -County Council
APPROVED AS TO LEGAL FORM:
Robert M. Frye, Asst. Corp C unset
STATE OF INDIANA )
SS:
COUNTY OF MARION )
APPR VED FOR EXECUTION:
Fa3V Qaddoura, City Controller
Before me, the undersigned Notary Public in and for said County and State, personally
appeared Lori Miser, the Director of the Department of Public Works of the Consolidated City
of Indianapolis and Marion County, who acknowledged the execution of the foregoing
Interlocal Cooperation Agreement for and on behalf of the Department of Public Works.
Witnesses my hand and Notarial Seal this 15 day of Dec f,-r9�--- , 2016.
/r - a -,-969-3
Commission Expiration Date
County of Residence
Notary Public Signature
Notary Public Signature
This document was prepared by Robert M. Frye, Assistant Corporation Counsel, City of
Indianapolis, Indiana and Jon Oberlander, Senior Assistant City Attorney, City of Carmel,
Indiana.
We 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. /s/Robert M. Frye and Jon
Oberlander
ANN E.BEILER
e Marion County
4�tyy'y
ew ;s My Commission Expires
Q
Y�
"'�i:r November2,2023