Certified Engineering, Inc.Certified Engineering, Inc.
Traffic Scoping Report
Engineering
THIS AGREEMENT FOR PROFESSIONAL SERVICES ("Agreement"), is hereby
made and entered into by and between the City of Carmel, Indiana, acting by and through its
Board of Public Works and Safety (hereinafter, "City"); and Certified Engineering, Inc.
(hereinafter, "Pro fessional ").
RECITALS
WHEREAS, City owns and is responsible for its public works, which responsibility
includes, by way of illustration and not by way of limitation, the planning, design, construction,
operation and maintenance of the City's infrastructure system; and
WHEREAS, from time to time, City needs professional services to assist it in effectively
and efficiently fulfilling its foregoing responsibilities; and
WHEREAS, Professional is experienced in providing such professional services as are
covered by this Agreement; and
WHEREAS, City desires to engage Professional as an independent contractor for the
purpose of providing to City, on a non-exclusive basis, the professional services referenced
herein; and
WHEREAS, Professional is qualified and desires to provide City with such professional
services.
NOW, THEREFORE, in consideration of the foregoing recitals and the covenants and
conditions set forth herein, City and Professional mutually agree as follows:
SECTION 1.
INCORPORATION OF RECITALS.
The foregoing recitals are hereby incorporated into this Agreement and made a
part hereof.
SECTION 2.
SCOPE OF SERVICES.
2.1
City desires to engage Professional as an independent contractor for the professional
services ("Services") set forth in attached Exhibit A which is incorporated herein by this
reference. Professional desires to provide the Services to City.
2.2
Professional acknowledges that it has read and understands this Agreement, and that
Professional's acceptance and/or provision of any Services hereunder shall constitute
Professional's acceptance of this Agreement and of all its terms and conditions.
2.3
Professional understands and agrees that City may, from time to time, request
Professional, on a non-exclusive basis, to provide additional professional services to
assist City in the planning, design, construction, operation and/or maintenance of its
infrastructure system. The scope of such additional services to be provided by
Professional to City shall be as requested and defined by the Mayor or his duly authorized
representative. When City desires additional services from Professional, the Mayor or his
duly authorized representative shall notify Professional and set forth the scope of such
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additional services desired, as well as the time frame in which such services are to be
rendered. Professional shall then provide, at no cost to City, an estimated cost for such
additional services, as well as the date by which such additional services will be provided.
Only after City has approved Professional's time and cost estimate for the provision of
such additional services shall Professional be authorized to commence same, the
description of which additional services shall be set forth in documents which shall be
numbered and attached hereto in the order approved.
2.4
Professional understands and agrees that City reserves the right, at any time, to direct
changes, or cause Professional to make changes, in the Services and/or additional services
provided, or to otherwise change the scope of the work covered by this Agreement, and
Professional agrees to promptly make such changes. Any difference in price or time of
performance resulting from such changes shall be equitably adjusted by City and
Professional after receipt of documentation from Professional in such form and detail as
City may require.
2.5
Professional expressly warrants that all Services and/or additional services covered by
this Agreement will conform to the specifications, drawings, samples, instructions,
directions and/or descriptions fumished to City by Professional or by Professional to and
accepted by City, and that such Services and/or additional services will be performed in a
timely manner, in a good and workmanlike manner and free from defects.
2.6
Professional acknowledges and agrees that it knows of City's intended use and expressly
warrants that all Services and/or additional services covered by this Agreement which
have been selected, provided or performed by Professional, based upon City's stated use,
will be fit and sufficient for the particular purposes intended by City.
2.7 Time is of the essence of this Agreement.
SECTION 3.
CITY'S RESPONSIBILITIES
3.1
Upon City's request of Professional for a time and cost estimate for the Services and/or
additional services to be provided hereunder, City shall provide such criteria and
information with respect to same as are reasonably necessary for Professional to
understand the Services and/or additional services requested and to provide a time and
cost estimate thereon.
3.2
Once City has accepted Professional's time and cost estimate for the Services and/or
additional services, City shall:
3.2.1 Fumish to Professional, upon request, such studies, reports and other available
data in City's possession as City considers reasonably pertinent to the Services and/or
additional services to be provided, and which Professional shall be entitled to rely upon in
performing the Services and/or additional services, unless, in its review of same,
Professional determines that such information is not consistent and fails to promptly so
notify City; and
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3.2.2 Arrange and make all provisions for Professional to enter upon public and private
property as reasonably required for Professional to perform the Services and/or additional
services; and
3.2.3 Make reasonably available to Professional for consultation, as needed, such
individuals as are necessary for Professional to provide the Services and/or additional
services to City.
3.3
City shall designate the Mayor or his duly authorized representative to act on City's
behalf on all matters regarding the Services and/or additional services.
SECTION 4.
PROFESSIONAL'S RESPONSIBILITIES
4.1
Professional shall provide to City, within five (5) business days after City requests same,
a time and cost estimate for the Services and/or additional services requested by City to
be performed by Professional.
4.2
Once City has accepted Professional's time and cost estimate for the Services and/or
additional services, such Services and/or additional services shall be performed pursuant
to the terms of this Agreement, within such time and cost estimate, and pursuant to any
other terms and conditions set forth or referenced herein or attached hereto.
4.3
Professional shall coordinate its performance, in the form of physical meetings and/or
status reports, with the Mayor or his duly authorized representative, pursuant to a
mutually agreeable schedule and/or as circumstances dictate.
4.4
Professional shall provide the Services and/or additional services by following and
applying at all times the highest professional and technical guidelines and standards.
SECTION 5.
COMPENSATION
5.1
As full and complete compensation for the Services and/or additional services performed
by Professional hereunder, and subject to the terms and conditions contained in this
Agreement, including, but not limited to, the termination provisions set forth in paragraph
7.1 hereinbelow, City shall pay Professional the total sum of not more than $5,000.00.
5.2
Professional shall submit an invoice to City no more than once every thirty (30) days for
Services and/or additional services provided City during the time period encompassed by
such invoice. Invoices shall be submitted on a form containing the same information as
that contained on the Professional Services Invoice attached hereto as Exhibit B, which is
incorporated herein by this reference. City shall pay Professional for all undisputed
Services and/or additional services rendered and stated on such invoice within thirty (30)
days after the date of City's receipt of same. If the undisputed portion of an invoice
amount is not paid within thirty (30) days of its receipt by City, Professional shall so
notify City. If such undisputed portion of the invoice amount is not thereafter paid within
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five (5) business days after City's receipt of such notice, then a late charge in a sum equal
to one percent (1%) of such unpaid and undisputed invoice amount shall accrue and be
immediately due and payable by City to Professional as a separate debt for each month
same remains unpaid.
5.3
In the event an invoice amount is disputed, City shall so notify Professional. If such
dispute is not resolved to City's satisfaction within ten (10) business days after notice of
such dispute is sent by City to Professional, City shall pay such amount, under protest,
into the City Court of Carmel, which Court shall hold same until notified of a resolution
signed by both parties hereto or the entry of a final judgment thereon.
5.4
City, in its sole discretion, may agree to pre-pay all or any portion of the compensation to
be paid Professional as a result of its provision of the Services and/or additional services
hereunder, which pre~payment shall be expressly contingent upon and subject to an
accounting and reconciliation by and between the parties at such time as such Services
and/or additional services are fully performed, this Agreement is terminated and/or upon
City's request. Professional agrees to immediately disgorge to City any prepayment
amount it has received from City for Services and/or additional services that are disputed
by City and/or which constitutes an overpayment for same.
5.5
If additional professional services are required and Professional wishes to hire an outside
source for the performance of same, Professional shall so notify City, in advance of the
engagement of such outside source, with an explanation of the need and qualifications of
same. If City consents to such outside source, which consent shall not be unreasonably
withheld, City shall reimburse Professional for the actual cost of same, which
reimbursement sum shall be subtracted from the amount of compensation due
Professional from City hereunder. Professional understands and agrees that any and all
outside sources so hired shall be employees or contractors of Professional only.
Professional warrants and indemnifies City for and from any and all costs, fees, expenses
and/or damages incurred by City as a direct or indirect result of the use by Professional of
an outside source. This indemnification obligation shall survive the termination of this
Agreement.
SECTION 6.
TERM
Subject to the termination provisions set forth in Section 7.1 hereinbelow, this Agreement
shall be in effect from the Effective Date through December 31, 1998, and shall
thereafter, on the first day of January in each subsequent year, automatically renew for a
period of one (1) year, unless earlier terminated in accordance with the terms and
conditions hereof.
SECTION 7.
MISCELLANEOUS
7.1 Termination.
7.1.1 The obligation to provide Services and/or additional services under this
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Agreement may be terminated by City or Professional without cause upon thirty
(30) days notice to the other party.
7.1.2
The obligation to provide Services and/or additional services under this
Agreement may be terminated by City for cause, or upon City's failure to
appropriate monies sufficient to pay for same, immediately upon Professional's
receipt of City's "Notice To Cease All Services."
7.1.3
In the event of Agreement termination, and as full and complete compensation
hereunder, Professional shall be paid for all Services and/or additional services
rendered and expenses incurred as of the date of termination that are not in
dispute. Disputed compensation amounts shall be resolved as set forth in
paragraph 5.3 hereinabove.
7.2 Bindin~ Effect.
City and Professional, and their respective officers, officials, agents, partners,
successors, executors, administrators, assigns and legal representatives are bound to the
other and to its officers, agents, partners, successors, executors, administrators, assigns
and legal representatives, in all respects as to all covenants, agreements and obligations
of this Agreement.
7.3 No Third Party Beneficiaries.
Nothing contained herein shall be construed to give any fights or benefits hereunder to
anyone other than City and/or Professional.
7.4 Relationship.
The relationship of the parties hereto shall be as provided for in this Agreement, and
neither Professional nor any of its agents, employees, contractors, subcontractors and
outside sources are or shall become employees of City. Furthermore, Professional shall
have the sole responsibility to pay to or for its agents, employees, contractors,
subcontractors and outside sources all statutory, contractual and other benefits and/or
obligations as they become due, and City shall not be responsible for same. Rather, the
compensation to be paid hereunder by City to Professional shall be the full and maximum
amount of compensation and monies required of City to be paid to Professional
hereunder. Professional hereby warrants and indemnifies City for and from any and all
costs, fees, expenses and/or damages incurred by City as a direct or indirect result of any
statutory, contractual or other claim for wages, benefits or otherwise by any agent,
employee, outside source, contractor or subcontractor of Professional regarding or related
to the subject matter of this Agreement. This indemnification obligation shall survive the
termination of this Agreement.
7.5 Insurance.
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Professional shall procure and maintain, with an insurer licensed to do business in the
State of Indiana and reasonably acceptable to City, Professional Responsibility Insurance
and such other insurance as is necessary for the protection of City and Professional from
any and all claims for damages or otherwise under workers' compensation, occupational
disease and/or unemployment compensation acts, because of errors and omissions,
because of bodily injury, including, but not limited to, personal injury, sickness, disease
or death of any and all of Professional's employees, agents, contractors, subcontractors
or outside sources, and/or because of injury to or destruction of property, including, but
not limited to, any loss of use resulting therefrom. The coverage amounts shall be no less
than those amounts set forth on attached Exhibit C. Professional shall cause its insurers
to name City as an additional insured on all such insurance policies (except on its
Professional Responsibility Insurance policy), shall, upon request, provide City with
copies of all such policies, and shall provide that such policies will not be canceled
without thirty (30) days prior notice to City.
7.6 Price Terms.
Professional warrants and agrees that all of the prices, terms and warranties granted by
Professional herein are at least as favorable to City as those offered by Professional to
other customers purchasing the same or similar Services and/or additional services under
the same material terms and conditions.
7.7 Force Majeure.
Any delay or failure of either party to perform its obligations hereunder shall be excused
if, and to the extent, it is caused by an event or occurrence beyond the reasonable control
of the party and without its fault or negligence, such as, by way of example and not by
way of limitation, acts of God, actions by any governmental authority (whether valid or
invalid), court injunction, fires, floods, windstorms, explosions, riots, natural disasters,
wars, or sabotage; provided that notice of such delay (including the anticipated duration
of the delay) shall be given by the affected party to the other party within five (5)
business days after discovery of the cause of such delay. During any such period of delay
or failure to perform by Professional, City, in its sole option, may purchase some or all of
the same or similar Services and/or additional services from other sources and reduce the
Services requested of Professional hereunder by such degree, without liability to
Professional, or have Professional provide some or all of the Services and/or additional
services from other sources at times requested by City and at the prices set forth in this
Agreement.
7.8 Liens.
Professional shall not cause or permit the filing of any lien on any of City's property. In
the event such a lien is filed of record and Professional fails to remove it within ten (10)
days after the date of filing thereof, by payment or bonding, City shall have the right to
pay such lien or obtain such bond, all at Professional's sole cost and expense.
Professional shall indemnify and hold harmless City from and against any and all
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liabilities, losses, claims, costs, attorney fees, expenses and/or damages incurred by City
in connection with any such lien or the removal thereof. This indemnification obligation
shall survive the termination of this Agreement.
7.9 Default.
In the event Professional: (a) repudiates, breaches or defaults under any of the terms or
conditions of this Agreement, including Professional' s warranties; (b) fails to perform the
Services and/or additional services as specified; (c) fails to make progress so as to
endanger timely and proper completion of the Services and/or additional services and
does not correct such failure or breach within five (5) business days (or such shorter
period of time as is commercially reasonable under the circumstances) after receipt of
notice from City specifying such failure or breach; or (d) becomes insolvent, files, or has
filed against it, a petition in bankruptcy, for receivership or other insolvency proceeding,
makes a general assignment for the benefit of creditors or, if Professional is a partnership
or corporation, dissolves, each such event constituting an event of default hereunder, City
shall have the fight to, among other things: (1) terminate all or any part of this
Agreement, without liability to Professional; (2) perform or obtain, upon such terms and
in such manner as it deems appropriate in its sole discretion, the Services and/or
additional services which were to be provided by Professional and Professional shall be
liable to City for any excess costs to City in performing or obtaining same; and/or (3)
exercise any other fight or remedy available to City at law or in equity.
7.10 Setoff.
In addition to any fight of setoff provided by law, all amounts due Professional shall be
considered net of indebtedness of Professional to City; and City may deduct any amounts
due or to become due from Professional to City from any sums due or to become due
from City to Professional hereunder.
7.11 Government Compliance.
Professional agrees to comply with all present and future federal, state and local laws,
executive orders, rules, regulations, codes and ordinances which may be applicable to
Professional's performance of its obligations under this Agreement, and all relevant
provisions thereof are incorporated herein by this reference. Professional agrees to
indemnify and hold harmless City from any and all losses, damages, costs, attorney fees
and/or liabilities resulting from any violation of such law, order, rule, regulation, code or
ordinance. This indemnification obligation shall survive the termination of this
Agreement.
7.12 Indemnification.
Professional shall indemnify and hold harmless City and its officers, officials, employees,
agents, assigns and legal representatives from any and all losses, liabilities, claims,
judgments and liens, including, but not limited to, all damages, costs, expenses and
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attomey fees arising out of any intentional or negligent act or omission of Professional
and/or any of its employees, agents, outside sources, contractors or subcontractors in the
performance of this Agreement, or otherwise. The failure to do so shall constitute a
material breach of this Agreement. This indemnification obligation shall survive the
termination of this Agreement.
7.13 Discrimination Prohibition.
Professional represents and warrants that it and each'of its employees, agents, contractors,
subcontractors and outside sources shall comply with all existing and future laws of the
United States, the State of Indiana and City prohibiting discrimination against any
employee, applicant for employment and/or other person in the subcontracting of work
and/or in the performance of any Services and/or additional services contemplated by this
Agreement with respect to hire, tenure, terms, conditions or privileges of employment or
any matter directly or indirectly related to employment, subcontracting or work
performance hereunder because of race, religion, color, sex, handicap, national origin,
ancestry, age, disabled veteran status or Vietnam era veteran status. City reserves the
right to collect a penalty as provided in IC 5-16-6-1 for any person so discriminated
against. This indemnification obligation shall survive the termination of this Agreement.
7.14 Severability.
If any-provision or portion of this Agreement is held to be invalid, illegal or
unenforceable by a court of competent jurisdiction, that provision or portion thereof shall
be stricken, and all other provisions of this Agreement which can operate independently
of such stricken provision shall continue in full force and effect.
7.15 Notice.
Any notice, invoice, order or other correspondence required or allowed to be sent pursuant to
this Agreement shall be written and either hand-delivered or sent by prepaid U.S. certified mail,
retum receipt requested, addressed to the parties as follows:
CITY:
PROFESSIONAL:
City of Cannel
One Civic Square
Cannel, IN 46032
ATTN: Kate Boyle
(with a copy to the City Attorney,
Department of Law, same address)
Certified Engineering, Inc.
3933 Millersville Rd.
hdianapolis, IN 46205-2850
ATTN: William Richter
Notwithstanding the above, City may orally notify Professional to cease all Services and/or additional
services and/or provide other notice pursuant to paragraph 7.1 hereinabove, provided that such notice
shall also then be sent as required by this paragraph within three (3) business days from the date of such
oral notice.
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7.16 Effective Date.
The effective date ("Effective Date") of this Agreement shall be the date on which the last of the
parties hereto executes same.
7.17 Governing Law; Lawsuits.
This Agreement shall be govemed by and construed in accordance with the laws of the State of
Indiana, except for its conflict of laws provisions, as well as by all ordinances and codes of the
City of Carrnel, Indiana. The parties further agree that, in the event a lawsuit is filed hereunder,
they waive any rights to a jury trial they may have, agree to file any such lawsuit in an
appropriate court in Hamilton County, Indiana only, and agree that such court is the appropriate
venue for and has jurisdiction over same.
7.18 Waiver.
Any delay or inaction on the part of either party in exercising or pursuing its rights and/or
remedies hereunder or under law shall not operate to waive any such rights and/or remedies nor
in any way affect the rights of such party to require such performance at any time thereafter.
7.19 Non-Assignment.
Professional shall not assign or pledge this Agreement, whether as collateral for a loan or
otherwise, and shall not delegate its obligations under this Agreement, without City's
prior consent.
7.20 Entire Agreement.
This Agreement contains the entire agreement of and between the parties hereto with
respect to the subject matter hereof, and no prior agreement, understanding or
representation pertaining to such subject matter, written or oral, shall be effective for any
purpose. No provision of this Agreement may be amended, added to or subtracted from
except by an agreement in writing signed by both parties hereto and/or their respective
successors in interest.
7.21 Representation and Warranties.
Each party hereto represents and warrants that it is authorized to enter into this Agreement
and that any person or entity executing this Agreement on behalf of such party has the
authority to bind such party or the party which they represent, as the case may be.
7.22 Headings.
All headings and sections of this Agreement are inserted for convenience only and do not
form a part of this Agreement nor limit, expand or otherwise alter the meaning of any
provision hereof.
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7.23 Advice of Counsel
The parties warrant that they have read this Agreement and understand it, are fully aware
of their respective rights, have had the oppommity for the advice and assistance of an
attorney throughout the negotiation of this Agreement, and enter into this Agreement
freely, voluntarily, and without any duress, undue influence, coercion or promise of
benefit, except as expressly set forth herein.
IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement as
follows:
CITY OF CARMEL, INDIANA
by and through its Board of Public
Works and Safety
CERTIFIED ENGINEERING, INC.
BY:
Si~a~c~ ~
Printed Name:
Title: I9 re
Date: "~ -
Certified Engineering, Inc.
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Engineering
EXHIBIT A
Professional will provide to city a preliminary scoping report that will detail several altemates
and their associated costs regarding the intersection problem at 126th Street and Auman
Drive/Lexington Blvd.
Sep-09-98 01: 37P CERTIFIED ENGINEERING INC 317-546-2599
Certified Engineering, Inc.
Engineers · Surveyors
P.01
Jagdish A. Dave. RE.
William D. Richter, RE., L.S.
Robert M. Hesler
John M. Witson
Established 1986
May 20, 1998
Jeff S. Bislich, RE., L.S.
Vance G. Epple. RE.
Brad S. Faris, RE., L.S.
CITY OF CARMEL
Department of Engineering
One Civic Square
Cannel, Indiana 46032
Re:
INTERSECTION IMPROVEMENTS
126m & Auman Dr. W./Lexington Blvd.
Attn: Kate Boyle, P.E.
City Engineer
It was indeed a pleasure to meet with you and Mayor Brainard last Friday [May 15, 1998] and
discuss engineering projects that the City of Cannel is pursuing.
According to our discussion, the mayor asked for possible solutions to an intersection problem
at 126th & Auman Dr. W./Lexington B!vd. The best approach would be to perform a Preliminary
Scoping Report that would detail several alternates and their associated costs. This would give you the
required information needed to evaluate the impacts and whether the project should move forward.
We could provide a lump sum fee. However, would like to perform the work on an hourly
basis with a "not-to-exceed" maximum of $5,000.00. If this is satisfactory, we will be glad to enter into
an agreement and begin work as soon as we receive your Notice to Proceed.
Per Mayor Brainard's suggestion, I have contacted Councilman, Billy Walker for his thoughts
and informed him that there will probably be some investigation into the matter forthcoming. He
seemed highly pleased. We are very enthused about the opportunity to provide engineering services to
the City of Cannel and look forward to working with you.
Very truly yours,
co:
Mayor Brainard
File/proj/misclcarmel. i 26
INDIANA
CONSTRUCTORS
INC.
CER~i'IFIED ENG~tE~N,~
William D. RichterT'P.E., L.S.
~"',~ . .,, -,,~,~o - , .-,:.,~' .,: "', -: / .
.
3933 . ' [~'r ~' ~- ':, r, z., ~ · ,
Tel (317) 546-1599 · Fax (317) 546-25~ ·
Certified Engineering, Inc.
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Name of Company:
Address & Zip:
Telephone No.:
Fax No.:
EXHIBIT B
Professional Services Invoice
Date:
Project Name:
Invoice No:
Person
Service
Performing
Service
Date
Services Provided Hourly
(Describe in detail in one-tenth Rate
hour units)
Hours
Worked
Total
GRAND TOTAL
Signature
Printed Name
Certified Engineering, Inc.
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EXHIBIT C
INSURANCE COVERAGES
Worker's Compensation & Disability
Statutory Limits
Employer's Liability:
Bodily Injury by Accident:
Bodily Injury by Disease
Bodily Injury by Disease
$100,000 each accident
$ 500,000 policy limit
$100,000 each employee
Property damage, contractual liability,
products-completed operations:
General Aggregate Limit (other than
Products/Completed Operations):
Products/Completed Operations:
$1,000,000
$1,000,000
Personal & Advertising Injury
Limit:
Each Occurrence Limit:
Fire Damage (any one fire):
Medical Expense Limit
(any one person):
$1,000,000
$1,000,000
$ 50,000
$ 5,000
Comprehensive Auto Liability
Owned, hired and non-owned
Bodily Single Limit:
injury and property damage
each accident
$1,000,000
Umbrella Excess Liability
Each occurrence and aggregate
Maximum Deductible
$1,000,000
$ 1 O, 000
Professional Responsibility Insurance:
Per Occurrence:
Aggregate:
$1,000,000
$1,000,000
Carme_
City
October 9, 1998
William Richter
Certified Engineering, Inc.
3933 Millersville Road
Indianapolis, Indiana 46205-2850
Mr. Richter:
On October 7, 1998, the Board of Public Works and Safety approved a contract to do business
with your company. Enclosed is a copy of the signed agreement.
Please review the enclosed sample invoice. You do not need to use this specific form, but we do
require you to submit the requested information in a similar layout. This format replaces any
other form previously used by the City and is effective upon approval of your contract.
Please call Clerk-Treasurer Diana Cordray at 571-2414 if you have any questions.
We look forward to working with you.
Sincerely,
Rebecca L. Martin
Deputy Clerk
cc: file, dept
ONE CIVIC SQUARE CARMEL, INDIANA 46032 317/571-2400