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HomeMy WebLinkAboutClay Reg. Waste Maint/CFD 46 MAINTENANCE AGREEMENT / -" ,~ ~ ,APPROVED~,~/~AS TO FORM / ' ---- THIS AGREEMENT, entered into as of this ~ ~lay of ~ , 2003, by and between the Clay Township Regional Waste District, a political subdivision and municipal corporation existing under the laws of the State of Indiana (the "District"), and the City of Carmel, Indiana, by and through its Board of Public Works and Safety ("Joint Owner/Developer"), WITNESSES THAT: WHEREAS, the Joint Owner/Developer, in conjunction with Clay Township, Hamilton County, Indiana, has caused to be constructed under private contract certain sewer facilities to serve Fire Station ¢¢-46, which facilities have been connected to the District's sewage system (the "Sewer Facilities"); and WHEREAS, the Joint Owner/Developer owns the Sewer Facilities with Clay Township, Hamilton County, Indiana (the "City") as joint tenants and not as tenants in common; and WHEREAS, by separate documents being delivered concurrently herewith, the Joint Owner/Developer is conveying its interest in the Sewer Facilities to the District and is providing or has provided the District with such other documentation as is required under District Ordinance 12-10-2001, as well as such documentation as is reasonably required pursuant to those certain "Policies Or Procedures For Assignment And Dedication To The Clay Township Regional Waste District Of Sewers And Related Facilities Constructed Under Private Contract" as have been adopted by the District's board of trustees and provided to the Joint Owner/Developer prior to the effective date of this Agreement; and WHEREAS, prior to accepting the Sewer Facilities as a part of its system, the District has required that the Joint Owner/Developer enter into this Maintenance Agreement and the Joint Owner/Developer is willing to do so. NOW, THEREFORE, in consideration of the covenants, agreements and undertakings hereinafter provided, and each act to be performed hereunder, the District and the Joint Owner/Developer agree that: 1. Indemnification Regarding Costs ©f Constructinq The Sewer Facilities. The Joint Owner/Developer, its successors and assigns, shall defend, indemnify and hold harmless the District from any claims, demands, liens and suits by any person for the payment for labor, materials or equipment furnished or used in constructing and installing the Sewer Facilities prior to the effective date of this Agreement. 2. District's Responsibility For Maintenance Of The Sewer Facilities. Following the Joint OwnedDeveloper's and the City's conveyance of title to the Sewer Facilities to the District, the District shall have full and exclusive responsibility for the operation, control and maintenance of the Sewer Facilities, except as limited by Paragraph 3 below. 3. Joint OwnedDeveloper's Responsibility For Maintenance Of The Sewer Facilities. For a period of two (2) years following the effective date of this Agreement, the Joint Owner/Developer, its successors and assigns, shall remain responsible for, and pay the cost of, the maintenance and repair of the Sewer Facilities to the extent such maintenance and repair (a) is required because the Sewer Facilities no longer are in compliance with the performance standards reasonably required by the District's ordinances or cannot pass the performance tests conducted on the Sewer Facilities prior to their dedication to and acceptance by the District, (b) is not routine maintenance for which the District is responsible, and (c) was not caused, in whole or in part, by any act or omission of any employee, agent, contractor or assign of the District. If repairs or maintenance are required to the Sewer Facilities and the District contends the Joint Owner/Developer is responsible for such repairs or maintenance, the District shall so notify the Joint Owner/Developer, in writing, and give the Joint Owner/Developer a reasonable period of time, consistent with the need for the repairs or maintenance required, to take whatever corrective action is required, including, but not limited to, warranty repairs authorized by manufacturers or materialmen. If the defect or problem requiring repair or maintenance has created an emergency requiring immediate corrective action, the District shall so notify the Joint Owner/Developer, in writing, and if the Joint Owner/Developer is not able to respond immediately, the District shall take whatever action is reasonably necessary to abate the emergency condition only and as soon thereafter as possible notify the Joint Owner/Developer in writing of the nature of the corrective action taken and the reasonable cost thereof. In the event the Joint Owner/Developer disputes the District's determination that the Joint Owner/Developer is responsible for any particular repair or maintenance activity or disputes the reasonableness of any costs assessed against the Joint Owner/Developer by or on behalf of the District, the Joint Owner/Developer shall be entitled to a hearing before the District's Board of Trustees to challenge the District's determination, and may thereafter take with such other legal action to protect its rights as the Joint Owner/Developer deems, in its sole discretion, to be in its best interests. 4. Assignment Of Warranties. The Joint Owner/Developer hereby assigns to the District, as of the effective date of this Agreement, all of its rights, duties and obligations under any and all warranties, express or implied, issued in the favor of the Joint OwnedDeveloper by its contractors or suppliers with respect to the Sewer Facilities. Concurrently herewith, the Joint Owner/Developer has provided to the District copies of all known written warranties in its possession or control from contractors or suppliers with respect to the Sewer Facilities. 5. Termination. This Agreement shall terminate and be of not further force on the second anniversary of the date first above written. IN WITNESS WHEREOF, the District and the Joint Owner/Developer have caused this Maintenance Agreement to be executed and effective, once fully executed, as of the date first above written. CLAY TOWNSHIP REGIONAL WASTE ,DISTRICT Authorized Signature ~) Printed blame and Title Date: CARMEL BOARD OF PUBLIC WORKS AND SAFETY OaCi~-Brainard, Presiding Officer Mary An~Burke, Mope)er_ Date: Lori S. Wa~d'~,'Me~mber Date:~ Diana L. ¢~ordray, IJ~VlC, Clerk-Treasurer Date: BILL OF SALE APPROVED AS TO FORM BY~'~ THIS INDENTURE WITNESSES, that the City of Carmel, Indiana, by and through its Board of Public Works and Safety ("Grantor"), for and in consideration of the sum of One Dollar ($1.00) and other valuable consideration, the receipt of which is hereby acknowledged, hereby DEDICATES, CONVEYS, and WARRANTS to the Clay Township Regional Waste District, an Indiana municipal corporation ("Grantee"), all of its interest in only those certain appurtenances located within the utility easements and road right-of-ways as are shown in the "as built" drawings of Fire Station ~46 dated April 25, 2003 (the "As Built Drawings"), which As Built Drawings are attached to the Bill Of Sale executed on behalf of Clay Township, Hamilton County, Indiana, for Fire Station #46 and as recorded in the Office of the Hamilton County Recorder on May 14, 2003, as Instrument Number 200300046915, which As Built Drawings are incorporated herein by reference. Grantor represents and warrants that it is a lawful joint owner of the property interests transferred hereunder as a joint tenant and not as a tenant in common with Clay Township, Hamilton County, Indiana, and that there are no known unpaid laborers, subcontractors and/or materialmen who have furnished labor or materials in connection with the installation of those certain appurtenances referenced hereinabove. IN WITNESS WHEREOF, Grantor has caused this Bill Of Sale to be executed this~Ch day of~/~ , 2003. a00300104q~7 HAN3'LTF~IV COUNTY~ ~NDIANA J[~N~ ER .;T HAYDEN ;i ')-OP~-20')3 At O5:3,2 M [ SC 11. O0 CARMEL BOARD OF PUBLIC WORKS AND SAFETY Jar~s' Brainard, Presiding Officer Date: Ma~ An/Bj4rke, M_~rnber__ Date: Lori ATTES : D~ L. Cord~ay,/IAMC, ¢¢rk-Treasurer Date: STATE OF INDIANA ) ) SS: COUNTY OF ~C~7//h73 ) SUBSCRIBED AND SWORN to before me, a Notary Public in and for the State Indiana, personally appeared James Brainard, Mary Ann Burke and Lori S. ~/atson .... ~i~na~n ~'"L-r~. members of the City of Carmel Board of Public Works and Safety, and Cordray, City of Carmel Clerk-Treasurer, who, having been first duly sworn, acknowledged the execution of the foregoing Bill Of Sale. WITNESS my hand and Notarial Seal this,~day of~7z, 20d._.~. Notary Public Printed Name: Resident of County, IN My Commission Expires: This instrument was prepared by Douglas C. Haney, Carmel City Attorney, One Civic Square, Carmel, Indiana 46032.