HomeMy WebLinkAboutD-1244-96 Hamilton/West AgreemtOrdinance No. D-1244-96
AN ORDINANCE OF THE COMMON COUNCIL OF THE
CITY OF CARMEL, INDIANA APPROVING A
WASTEWATER SERVICE AGREEMENT BETWEEN THE CITY
OF CARMEL AND HAMILTON WESTERN UTILITIES, INC.
WHEREAS, since 1984, the City of Carmel has provided wastewater transport
and treatment to Hamilton Western Utilities, Inc. ("Hamilton Western") pursuant to a
written agreemem; and
WHEREAS, the parties disputed the flow amount and rate to which Hamilton
Western was entitled; and
WHEREAS, the parties have resolved the dispute by negotiating the agreement
attached hereto and incorporated herein by reference as Exhibit A (the "Agreement"); and
WHEREAS, the City of Cannel Board of Public Works and Safety executed the
Agreement at it regular meeting on August 21, 1996.
NOW, THEREFORE, BE IT ORDAIN D by the Common Council of the
City of Carmel, Indiana as follows:
The Agreement between the City of Carmel and Hamilton Western
Utilities, Inc. approved and executed by the Carmel Board of Public Works
and Safety on August 21, 1996 as contained in Exhibit A is hereby
approved.
PASSED AND ADOPTED by the Common Council of the City of Carmel,
Xndi n gq 996, by vot of
fL~ nays.
COMMON COUNCIL~~d.d~Offic~er,OF THE ~INDIANA
~~. ~ Clerk-Treasur0
A.
Presemed to the Mayor of the City of Cannel this
~ t~ ir~ o' clock. ~,
/a~ Brainard, Mayor
D---~a~.. ~ Clerk-T~urer
day of ~~.4~~ 1996 at
Exhibit A Page 1 of 20 _
WASTEWATEK SEKVICE AGREEMENT
BETWEEN
THE CITY OF CARMEL
AND
HAMILTON WESTERN UTILITIES, INC.
THIS WASTEWATEK SERVICE AGRFF. MENT (the "AGREEMENT") is made and
entered into this day of , 1996 (the "Approval Date"), by and between the CITY
OF CARMEL, a municipal corporation in Hamilton County, Indiana; by and through it's Board of
Public Works and Safety (hereinafter referred to as "Cannel") and approved by it's Common Council,
and HAMILTON WESTERN UTILITIES, INC., ("Hamilton Western") an Indiana corporation
engaged in operating a private sewer and water utility under authority fi-om the Indiana Utility
~egulatory Commission CIUKC").
WlTNESSETH:
WHEREAS, Carmel and Hamilton Western entered into a wastewater service agreement
dated March 23, 1984, as amended by a subsequent agreement dated August 5, 1991, (the "Prior
Agreement") and;
WHEREAS, Carmel and Hamilton Western interpret differently what each consider significant
provisions of the Prior Agreement, and;
WI-1F. REAS, this Agreement is intended to resolve the different interpretations resulting fi'om
the Prior Agreement.
NOW, THEREFOR, for'and in consideration of the foregoing recitals, the mutual promises
and covenants contained herein, Carmel and Hamilton Western hereby agree to the following terms
and conditions:
ARTICLE I
1.1 Incorporation of Recitals. The foregoing recitals are hereby incorporated herein and
considered a pan hereof..
1.2 Agreement Supersedes Prior A~reement.
supersedes the Prior Agreement.
This Agreement wholly replaces and
ARTICLE 1I
2.1 Capacity Reservation. Hamilton Western shall have reserve capacity as set forth
below in (a) Carmel's South Wastewater Treatment Plant located at 96th Street and River Road in
Hamilton County, Indiana, (the "Plant".) (b) the McNamara Interceptor located at Neville Lane in
Hamilton County, Indiana, (the "MI") and (c) the North-South Interceptor originating at 146th Street
east of State Highway 431 in Hamilton County, Indiana, (the "NSI"). The system owned and
operated by Carmel to convey and treat wastewater of which the Plant, MI, and NSI are components,
is hereinafter the "Carmel Wastewater System". Hamilton Western shall have two (2) points of
discharge into the Carmel Wastewater System through the Neville Lane Meter and the Village Farms
Meter. The meter at Neville Lane measures the wastewater flow into the MI (the "Neville Lane
Meter"); and the meter at V'dlage Farms measures the wastewater flow into the NSI (the "Village
Farms Meter"). The reserved capacity as measured by each meter is defined as follows:
A. Reserved Plant CapacitY. The plant capacity reserved to Hamilton Western
is 1,290,000 Gallons Per Day (1.29 mgd) which is the sum of the capacity reserved to Hamilton
Western in the MI and the NSI ( the "Reserved Plant Capacity").
B. Reserved MI Ca;>acitv. Hamilton Western may discharge into the MI a
maximum total daily volume of.55 million gallons (550,000 gallons) as measured by the Neville Lane
Meter ("Daily Reserved MI Capacity"). Hamilton Western shall be allowed to connect 32 future
single family dwellings Or make connections that are equal to 32 equivalent dwelling units ("E.D.U.s",
an E.D.U. constituting approximately 310 gallons of wastewater per day) through the Neville Lane
Meter. Carmel shall forthwith, notify the Indiana Department of Environmental Management
("IDEM") that Hamilton Western has the capacity to connect said 32 single family residences into
the Plant via MI and shall take no further action relative to IDEM except to provide notice of
connections as they occur from time to time or as otherwise required by law. Hamilton Western shaH,
throughout the Term of this Agreement, use reasonable efforts to maintain its system and limit
avoidable infiltration into the MI, including, but not limited to, maintaining a rule prohibiting the
discharge of water fi.om residential sump pumps into the MI. Cannel may assess a penalty of $100
per day to Hamilton Western for each day that Hamilton Westem's wastewater flow exceeds the Daily
Reserved MI capacity. Said penalty shall be increased when the Kate (hereina_~er defined) is
increased, at the same percentage as the Kate is increased.
..... C:--- Reserved-NSI-Capacity:-Hamilton-Western-may discharge into the NSI a
maximum total daily volume of .74 million gallons (740,000 gallons) as measured by the Village
Farms Meter ("Daily Reserved NSI Capacity"). Hamilton Western shall be allowed to connect an
additional maximum 807 single family dwelling units or make connections that are equal to 807
E.D.U.s through the Village Farms Meter. The 807 additional E.D.U.s that may be connected by
Hamilton Western is a net figure. By way of illustration, Hamilton Western may disconnect, or
reroute, 400 E.D.U.s fi.om the V'dlage Farms Meter and have the right to then connect 1207 E.D.U.s
to the Village Farms Meter. Carmel shall, forthwith, notify IDEM that Hamilton Western has
capacity in Carmel's Wastewater System to connect said 807 single family residences into the Plant
via NSI and shall take no action relative to IDEM except to provide notice of connections as they
occur from time to time. Hamilton Western shall, throughout the Term of this Agreement, use
reasonable efforts to maintain its system and limit avoidable infiltration into the NSI, including, but
not limited to, maintaining a rule prohibiting the discharge of water from residential sump-pumps into
the NSI.
Additionally, Hamilton Western shall not discharge wastewater though the Village Farms
Meter so as to exceed a peak rate of flow of.74 million gallons per day (.74 mgd) as measured on
an instantaneous basis at any one time. In the event that Hamilton Western does exceed an
instantaneous peak rate flow beyond .74 mgd, Cannel may assess Hamilton Western a daily
surcharge. A daily surcharge will be charged to Hamilton Western for any instantaneous rate of flow
above the NSI Peak FI0w Kate of .74 mgd through the Village Farms Meter. The daily surcharge
will be determined at the rate of $2480.00 per mgd above the NSI Peak Flow Rate of .74 mgd as
measured on an instantaneous basis and prorated for any flow rate less than or greater than .5 mgd
(1.24) above .74 mgd. A table indicating the daily surcharges for various flow rates is set forth in
Exhibit A.
D. Daily Measuring Time. The daily volume of flow through the Neville Lane
Meter and the Village Farms Meter shall be measured from 9:00 A.M. of one day to 9:00 A.M. of
the following day. At such time that a telemetry system is installed, Carmel shall measure the flow
via such system.
2.2 Total Monthly Volume Reserved. The total monthly volume reserved to Hamilton
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Westem is 39.2375 million gallons ofwastewater as measured by the sum of both the Neville Lane
Meter and Village Farms Meter. Cannel may assess a surcharge of $95.12 for each million gallons
or portion thereof in excess of the reserved monthly volume. Such surcharge is calculated as follows:
$1,836,320.00
$6~000,000.00
$7,836,320.00
divided by 20
$391,816.00
divided by 12 mgd
$32,65.1.33
divided by 365
$ 89.46
$+ 5.66
$ 95.12
1982 Plant Costs
1991 Plant Costs
Total Plant costs
Year Life Expectancy
Plant Desi_ma Flow
days per year
Plant Surcharge
Interceptor Surcharge
Surcharge per million gallons
The $95.12 surcharge for each one million gallons shall be in effect until Hamilton Western exceeds
one hundred f:ffieen percent (115%) of 39.2375 million gallons. If Hamilton Western shall exceed
45.123125 million gallons of flow in a calendar month, then Cannel may assess a surcharge of
$1,000.00 for each million gallons or portion thereof above 45.123125 million gallons. IfYIamilton
Western shall exceed its total monthly volume for four (4) consecutive months, Hamilton Western
shall either buy (if available), or, if not available, build at its sole cost and expense, additional
capacity in the Carmel Wastewater System, such expansion to be designed and controlled by Carmel,
or divert wastewater to another treatment facility. Within six (6) months af'~er exceeding its total
monthly capacity for four (4) consecutive months Hamilton Western shall have made such
arrangements for diversion ofwastewater. In addition, after six (6) consecutive months 0f exceeding
its total monthly capacity of 39.2375 million gallons, Hamilton Western'shall pay the $1,000.00
penalty for each million gallons or portion thereof over 39.2375 million gallons.
ARTICLE III
3.1 Quarterly Meetings and Future Projections. Unless the parties otherwise agree, the
· parties shall have quarterly meetings held at Carmel in January, April, July, and October of each year
of the Term of this Agreement, which shall be attended by Carmel's Utility Director or his/her
designee and Hamilton Westem's President or his/her designee at which the parties shall review the
performance of the parties under this Agreement and any areas of dispute or potential dispute. Each
party shall have the right to be accompanied by their consultants upon reasonable notice. At alternate
meetings, the parties shall exchange data relating to Hamilton Westem's capacity including, but not
limited to, data of Hamilton Westem's most recent use of capacity, remaining capacity available to
Hamilton Western under this Agreement, commitments made by Hamilton Western to developers for
connections, the number of connections and/or net connections made by Hamilton Western since the
approval date, the projected capacity, use and/or connections to he made or committed for over the
next six (6) months, if requested, and a verification of the calculation of the Rate (hereafter defined).
Cannel shall have no right to advise IDEM that Hamilton Western lacks capacity in Carmel's
Wastewater System'until Carmel has notified Hamilton Western that Carmel asserts that Hamilton
Western lacks such capacity and Hamilton Western has a period of ninety (90) days to cure any
condition or situation which Carmel asserts is causing Hamilton Western to exceed its Daily
Reserved MI Capacity, Daily Reserved NS][ Capacity or NSI Peak Flow Rate. Notwithstanding the
foregoing, Carmel shall be allowed to take any and all actions required by law.
3.2 Other Users. Hamilton Western acknowledges that as of the Approval Date, Carmel
is metering the wastewater flow received into the Carmel Wastewater System fi.om the Towns of
Westfleld ("Westfield") and Clay Waste Regional Sewer District ("Clay") (the "User's Wastewater")
by Cannel and Carmel shall continue to meter such flow during the Term of this Agreement.
3.3 Ownership. The Sewer Service Charges (as defined below) are intended to
compensate and reimbUrse Carmel for service rendered in the transport, treatment, and disposal of
Hamilton Western's wastewater. The Sewer Service Charges shall not entitle Hamilton Western to
any possessory or proprietary fights to the Carmel Wastewater System, as of the Approval Date or
in the future. Carmel reserves the right to maintain and operate the Cannel Wastewater System and,
subject to directives by governing agencies such as IDEM, shall have sole discretion as to the
methods of operation and the necessity for, nature of, and extent of improvements thereto.
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ARTICLE IV
SEWER SERVICE CHARGES
- - 4. i Charges to Hamilton Western by Cannel for the transport, treatment and disposal of
wastewater, liquid waste, inflow and infiltration, and sewage fi'om Hamilton Western shall be based
upon the actual flow measured by the Neville Lane Meter and by the Village Farms Meter (the
"Sewer Service Charges").
A. Rates. The Sewer Service Charges for Hamilton Western's flow through the
Neville Lane Meter and Village Farms Meter shall each be at the rate of $763.41 per million gallons
of measured wastewater (the "Rate"), which charges shall be payable monthly as set forth in Section
4.2 below. Carmel represents that the Rate has been determined pursuant to the calculations
contained in Exhibit B, and that the figures set out in said calculations represent the operation,
maintenance, and replacement costs currently being expended or charged in connection with the
operation of the Carmel Wastewater System.
B. Review. The Rate shall be reviewed at the election of either party hereto upon
written notice and request to the other, not more than every fd~een (15) months fi-om installation or
adjustment after recalculation, as applicable. If Hamilton Western requests a review more fi'equently
than every fffieen (15) months, Han~ilton Western shall bear the cost of such review.
C. Documentation. At the firne of any adjustment or review, Carmel shallprovide
to Hamilton Western a qualified statement detailing the calculations of the Rate, based upon the
previous calendar year's operation and maintenance expense record. The Rate as recalculated shall
thereafter be paid by Hamilton Western to Carmel until further recalculated, as herein provided.
Further, the effective date ofeveE? increase in the Rate shall be preceded by a ninety (90) day notice
to Hamilton Western of such increase.
· E. Dispute. Carmel shall give Hamilton Western ninety (90) days advance notice
of any proposed increase in Sewer Service Charges and Hamilton Western shall have the opportunity
to review and either accept or dispute the proposed increase. Any dispute under this Section shall
be resolved under Article IX of this Agreement.
4.2 Billing Provisions
A. Monthly Invoicing. Carmel shall, once each month, invoice Hamilton Western
for its Sewer Service Charges and surcharges, if any and if Carmel elects to charge such surcharges,
and such amounts shall be due and payable on or before the 30th day following receipt of such
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invoice. In the event Hamilton Western shall fail to timely pay to Carmel the amount of such invoice
within the thiay (30) day period, Hamilton Western shall be liable for and pay to Cannel interest at
a rate ofTen Percent (10%) per annum of the delinquent amount. Notwithstanding the foregoing,
in the event that Hamilton Western disputes an invoice, Hamilton Western shall pay to Carmel the
undisputed portion of the invoice and fifty percent (50%) of the disputed portion of the invoice
reserving all fights available at law or under this Agreement to recover all payments of disputed
portions of invoices. With transmittal of a disputed payment, Hamilton Western shall provide an
explanation of the dispute and Carmel shall promptly respond thereto. If the parties are unable to
resolve the dispute within twenty (20) days of Carmel's receipt of Hamilton Western's notice and
aforementioned explanation, either party may submit the matter 'for arbitration with the American
Arbitration Association ("AAA"). The prevailing party of any disputed portion of any invoice, shall
be entitled to recover interest at the rate of one and one-half percent (1 1/2% ) per month fi.om the
date of payment/due date.
B. EPA Requirements. The parties shall, upon reasonable notice, comply with
the requirements and regulations of the United States Environmental Protection Agency ("EPA"), as
respects conditions and .l~mits of grants and applications with respect to the operation of the Cannel
Wastewater System.
C. User Rules. Hamilton Western agrees to enact user rules consistent with
applicable portions of Section 9-150 of Carmel's Sewer Use Ordinance as amended fi.om time to time
and abide by the same. The term "applicable portions" as used in the immediately foregoing sentence
means those provisions which affect Unacceptable Materials (defined in Section 6. I herein), and/or
the inflow and infiltration into Carmel's Wastewater System and unacceptable materials as defined
in Carmel City Code Section 9-150. As of the Approval Date, Carmel has delivered to Hamilton
Western a copy Of such Section and will notify Hamilton Western of any changes thereto.
ARTICLE V
5.1 Metering and Sampling. Carmel has installed the necessary metering devices and plans
to install the necessary sampling equipment ( collectively, the "Equipment") for properly measuring
and sampling the quality and quantity ofwastewater delivered into Carmel's Wastewater System.
Carmel shall own the Equipment which includes the Neville Lane Meter and Village Farms Meter
which are at points of discharge into Carmel's Wastewater System. Any other points of discharge
into either MI or NSI by Hamilton Western shall, after notice and written approval by Carmel, be
at the expense of Hamilton Western, including installation of the same or similar meters unless
otherofise agreed by both parties in writing.
5.2 Access. Carmel shall provide reasonable access to Hamilton Western to the Neville
Lane Meter and Village Farms Meter for inspection and reading pursuant to the terms of this
Agreement.
5.3 Testing. Carmel shall test and calibrate the metering devices not less than once every
twelve (12) months or upon reasonable written request of Hamilton Western. Unless paid for by
Hamilton Western, requests for testing and calibrating more often than every consecutive six (6)
month period shall not be considered reasonable for purposes ofth~s Section 5.3. Cannel shall have
the responsibility for the operation, maintenance, and all other matters relating to the Equipment.
Hamilton Western shall be notified as soon as practicable, of any work to be performed by Cannel
on any discharge meters except in emergencies. Either party may install, maintain, or operate, at its
expense, such check metering equipment as it desires, provided that such metering equipment shall
be so installed as to not interfere with the operation of the Equipment. In the event either party
installs check metering devices, the other party shall have access thereto and an opportunity to be
present at the reading, calibration, mpa/r, etc., of such check meters. If any meter fails to register for
any period, the amount ofwastewater treated during such period shall be deemed to be the amount
of wastewater treated in the corresponding period immediately prior to the failure.
5.4 Accuracy. ~ Carmel finds, any meter to be not more than Five Percent (5%) fast or
slow, such meter shall be considered correct in computing the volume ofwastewater delivered to the
Cannel Wastewater System, but the meter shall be properly adjusted to record accurately. If, upon
any such test, Carmel finds any meter to be inaccurate by any amount exceeding Five Percefit (5%),
Cannel shall correct any previous reading of such meter to eliminate all errors for the prior two (2)
month period and reconcile Hamilton Western's momhiy billing for up to two (2) months.
5.5 Records Retention. Carmel agrees to retain for a period of three (3) years all metering
and testing data and other records in measuring the wastewater discharged into the Cannel
Wastewater System, and the records thereof shall be kept in such manner that both parties shall have
access during CarmePs business hours, upon reasonable notice, and shall be subject to examination
and copying at Hamilton Western's expense, not to exceed Carmel's actual reproduction costs.
· Further, should Hamilton Western install check meters as provided herein, similar records shall be
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made available to the City of Carmel pursuant to the terms of this provision.
- 'ARTICLE VI
6.1 Unacceptable Materials. Hamilton Western agrees to use all necessary precautions
and diligence to exclude from the wastewater discharged into the Carmel Wastewater System any
foreign materials, wastewater which is objectionable, dangerous, or inhibits the bacterial growth or
which, for other reasons, cannot be readily treated in Carmel's Wastewater System or "Prohibited
Discharges" as defined by IDEM, or may be injmious thereto or for the above reasons are prohibited
by Carmel's Sewer Use Ordinance, as amended (collectively, the "Unacceptable Materials"). Upon
discovery that Unacceptable Materials are being discharged by Hamilton Western into the Carmel
Wastewater System, Hamilton Western shall be notified and shall forthwith take appropriate steps
to insure that such Unacceptable Materials are excluded from future discharge into the Carmel
Wastewater System. Hamilton Western shall be liable for any additional costs in connection with
such Unacceptable Materials, including any fines or civil penalties that may be levied by Carmel under
the Carmel City Code so long as such fine or penalty is not duplicative of any fine or penalty paid to
the State of Indiana, or the EPA for noncompliance with Carmel's National Pollutant Discharge
Elimination System Permit (the "NPDES Permit"). However, such obligations shall be subject to
Hamilton Westem's right to notice and an 0ppormnity to contest in good faith and/or appeal any such
fines or penalties. Should the applicable governing law require payment of such fines pending the
outcome of the contest or appeal, Hamilton We. stem shall comply therewith at its sole expense. Upon
discovery that any Unacceptable Materials are being discharged as set forth above:
A. 'Either party shall immediately notify the other of such Unacceptable Materials,
including the location, time or times, the nature of such Unacceptable Materials, and such other
.information as may be available.
B. Upon verbal notification and confirmation thereof in writing and Hamilton
Western's ability to identify the user responsible for the delivery of such Unacceptable Materials,
Hamilton Westem shall immediately notify that user to cease delivery of such materials and continue
all necessary monitoring to assure compliance with this Agreement.
C. Carmel shall, in the event that Hamilton Western is unable to identify the
location, time, and source of the discharge of such Unacceptable Materials, cooperate with Hamilton
Western in locating such source. Hamilton Western will use its best efforts to correct or cut offthe
user delivering Unacceptable Materials into Carmel's Wastewater System.
D. In the event that the user delivering such Unacceptable Materials cannot be
ascertained within forty-eight (48) hours of farst notice, then the parties shall authorize an independent
emergency investigation at Hamilton Western's sole'cost and expense to be instigated forthwith in
regard to the matter. The parties shall fully cooperate with said emergency investigation to ascertain
the user delivering the Unacceptable Materials and the necessary corrective actions. In all such cases,
corrective actions shall be consistent with applicable law.
E. In the event that the parties are unable tO ascertain the user defivering such
Unacceptable Materials after exhausting the foregoing steps set forth in Section 6.1 A-D, then and
in that event, if an emergency exists as to the continuing damage to Carmel's Wastewater System
resulting from the discharge of SUch Unacceptable Materials, Carmel may seek such equitable or
injunctive relief as is necessary or appropriate in a court of competent jurisdiction.
6.2 Reporting to Hamilton Western. Carmel shall report to Hamilton Western (a) once
each month the volume of the discharge ofwastewater into the Carmel Wastewater System and (b)
at least quarterly the measurement of the characteristics ofwastewater which shall include, but not
be limited to, the concentration of any waste constituents identified in Carmel's Sewer Use Ordinance,
' .as amended fi.om time to time. Sampling and analysis of Hamilton Western's wastewater and flow
characteristics shall be conducted in accordance with acceptable standards. Hamilton Western, at its
expense, shall have the right upon two weeks prior notice, to verify the reports submitted by Carmel
and shall have the fight of ingress and egress if accompanied by Carmel's Utility Director or his/her
designee, to the premises of Carmel to obtain information relating to Carmel reports to Hamilton
Western.
6.3 Federal Clean Water Act. Carmel and Hamilton Western shall comply with the
'applicable provisions of the Federal Clean Water Act, as amended, and regulations promulgated
thereunder and with the Indiana statutes relating to pollution abatement. Carmel shall hc~id'Hamilton
Western harmless fi.om any failures to comply by Westfield, Clay, and other utility users of Carmel's
Wastewater System.
ARTICLE VII
Hamilton Western Rules. Hamilton Western has enacted, in its roles and regulations filed with
10
user delivering Unacceptable Materials into Carmel's Wastewater System.
D. In the event that the user delivering such Unacceptable Materials cannot be
ascertained within forty-eight (48) hours of first notice, then the parties shall authorize an independent
emergency investigation at Hamilton Western's sole cost and expense to be instigated forthwith in
regard to the matter. The parties shall fully cooperate with said emergency investigation to ascertain
the user delivering the Unacceptable Materials md the necessary corrective actions. In all such cases,
corrective actions shall be consistent with applicable law.
E. In the event that the parties are unable to ascertain the user delivering such
Unacceptable Materials afl-er exhausting the foregoing steps set .forth in Section 6.1 A-D, then and
in that event, if'an emergency exists as to the continuing damage to Carmel's Wastewater System
resulting fi-om the discharge of such Unacceptable Materials, Carmel may seek such equitable or
injunctive relief as is necessary or appropriate in a court of competent jurisdiction.
6.2 Reporting to Hamilton Western. Carmel shall report to Hamilton Western (a) once
each month the volume of the discharge ofwastewater into the Carmel Wastewater System and (b)
at least quarterly the measurement of the characteristics of wastewater which shall include, but not
be limited to, the concentration of any waste constituents identified in Carmel's Sewer Use Ordinance,
as amended fi-om time to time. Sampling and analysis of Hamilton Western's wastewater and flow
characteristics shall be conducted in accordance with acceptable standards. Hamilton Western, at its
expense, shall have the right upon two weeks prior notice, to verify the reports submitted by Carmel
and shall have the fight of ingress and egress ii'accompanied by Carmel's Utility Director or his/her
designee, to the premises of Carmel to obtain information relating to Carmel reports to Hamilton
Western.
6.3 Federal Clean Water Act. Carmel and Hamilton Western shall comply with the
'applicable provisions of the Federal Clean Water Act, as amended, and regulations promulgated
thereunder and with the Indiana statutes relating to pollution abatement. Carmel shall h01d -Hamilton
Western harmless fi.om any failures to comply by Westfield, Clay, and other utility users of Carmel's
Wastewater System.
ARTICLE VII
Hamilton Western Rules. Hamilton Western has enacted, in its rules and regulations filed with
10
the appropriate regulatory authority(ies), roles prohibiting the discharge of ground and surface water
and Unacceptable Mater/als as defined in Section 6.1 into Hamilton Western's wastewater collection
system which is discharged into Carmel's Wastewater System and agrees to use all reasonable efforts
to enforce such prohibition.
ARTICLE VIII
8.1 Default by Carmel. Any of the following shall be deemed an Event of Default by
Carmel: .
A_ Carmel's failure to provide by the end of the cure period provided below the
Daily Reserved MI Capacity or the Daily Reserved NSI Capacity. Carmel shall have no more than
five (5) business days after receipt of written notice fi.om Hamilton Western to reinstate Hamilton
Western's Daily Reserved MI Capacity or Dally Reserved NSI Capacity.
B. Unless otherwise specifically provided herein, Carmel's failure to perform or
observe any other covenant, term or condition of this Agreement to be performed within ten (10)
days after Carmel's receipt of notice fi-om Hamikon Western and if not curable within the ten (1~0) day
period, fails to commence the cure within such ten (10) day period and diligently pursue the cure to
completion.
8.2 Default by Hamilton Western. Any of the following shall be deemed an Event of
Default by Hamilton Western:
Unless othenvise specifically provided herein, Hamilton Western's failure to perform
or observe any other covenant, term or condition of this Agreement to be performed within ten (10)
days after Hamilton Westem's receipt of notice.fi.om Carmd and if not curable within the ten (10) day
per/od, fails to commence the cure within such ten (10) day period and diligently pursue the cure to
Completion.
8.3 Remedies. A default under Section 8.1 or 8.2 is sometimes referred to herein as an
"Event of Default". Upon the occurrence of any Event of Default, the nonbreaching party may, at
its option, in addition to any other remedy or right it has hereunder or by law:
A. Proceed to arbitration pursuant to the arbitration provisions of this Agreement
and seek to obtain injunctive relief and/or recover all reasonable damages, costs and expenses arising
out of the Event of Default. In the event of an 8.1 (A) Event of Default, Hamilton Western's
11
reasonable damages may include, but not be limited to, all reasonable costs which it may incur in
obtaining substitute or alternative capacity, if adequate capacity is not being provided by Cannel.
B. Proceed to cure any Event of Default and institute an arbitration action
pursuant to the afoitration provisions of this Agreement for all costs and expenses to effect such cure.
ARTICLE IX
9.1 Dispute Resolution. In'the event the parties hereto disagree over the terms of any
covenant, condkion or term hereof, they shall in good faith attempt to resolve thek differences.
9.2 Arbitration. Any controversy or claim arising out. of or related to the Agreement, or
the breach thereof, shall be settled by arbitration in accordance with the applicable rules AAA, as
determined by the AAA and judgment upon the award rendered by the arbitration or arbitrators may
be entered in any court having jurisdiction thereof. Arbitration may be commenced when 45 days
have passed after a notice has been served upon the other party and the time, if any, allowed for
response has expired without a cure of the specified breach or a mutually satisfactory resolution.
Disputes between the parties shall be decided by arbitration in accordance with the applicable
rules of the AAA currently in effect, unless the parties mutually agree otherwise. Notice of demand
for arbitration shall be filed in writing with the other party and with the AAA. During arbitration
proceedings, the parties shall perform according to the requkements of this Agreement.
A demand for arbitration shall be made within the time limits specified above, and in all cases
within a reasonable time after the claim has arisen, and in no event shall it be made after the date when
institution of legal or equitable proceedings based on such claim would be barred by the applicable
statute of limitations.
A party who files a notice of demand for arbitration must assert in the demand all claims then
known to that party on which arbitration is permitted to be demanded. When a party fails to include
a claim through oversight, inadvertence or excusable neglect, or when a claim has matured or been
acquired subsequently, the arbitrator or arbitrators may permit amendment.
Any arbitrator may decide only the issues presented to him and may not vary or disregard any
terms of this Agreement.
The award rendered by the arbitrator or arbitrators shall be final, and judgment may be entered
upon it in accordance with applicable law in any court having jurisdiction thereof. A party
12
commencing an action to obtain a judgment after an arbitration award shall be entitled to recover its
costs and expenses, including its reasonable attorneys fees, incurred after obtaining the arbitration
award. The prevailing party shall be entitled to recover the AAA filing fee incurred to institute
arbitration as provided herein.
9.3 Continued Obligations. During any period of attempted resolution, arbitration, or
litigation, Hamilton Western shall continue to meet its financial obligations to Carmel in accordance
with the provisions of this Agreement' and Cannel shall continue to accept and treat Hamilton
Western's wastewater so long as such acceptance does not injure the health, safety, and wdfare of
the public.
ARTICLE X
10.1 Plant Expansion. In the event Carmel expands its plant capacity above 12 mgd,
Carmel shall notify Hamilton Western and Hamilton Western shall decide within ninety (90) days of
receipt of the notice whether it wishes to participate in such additional capacity based upon need and
an equitable allocation of such capacity among the existing users, provided, Hamilton Western shall
pay for any capacity in addition to the Reserved Plant Capacity, the Daily Reserved NSI Capacity,
and the Daily Reserved MI Capacity, as well as its proportionate part of all expansion costs, including
engineering, design, attorney fees, court costs, and financing costs. Hamilton Western's failure to
respond within the ninety (90) day period shall be deemed a rejection of participation.
10.2 Plant Design Capacity_ Maintenance. In the event that IDEM or any new NPDES
Permit limitations require additional capital improvements at the Plant in order to maintain the then
maximum mgd design capacity of the Plant or any of its indMdual processes, Hamilton Western
agrees to pay an equitable share of the costs of any additional capital improvements necessary to treat
ihe type of wastewater introduced into the Carmel Wastewater System, with Hamilton Western
receiving an equitable credit for that portion of its rate payments attributable to replacement costs as
per line items 9a and 10 of Exhibit B. Cannel shall, if it is reasonable, attempt to identify the source
of the need for the capital improvement. Hamilton Western shall not pay for capital improvements,
the need for which Cannel can attribute to another source. By way of example and not by way of
limitation, Hamilton Western shall not be responsible for costs incurred to treat industrial wastes of
a type not introduced by Hamilton Western.
13
ARTICLE XI
Term. The "Term" of this Agreement shall be for a period of twenty (20) years from the date
of the last contribution to replacement cost, capital contribution, or depreciation with regard to
the Carmel Wastewater System by Hamilton Western, or its successors or assigns, whether such
contribution is through payment of Sewer Service Charges or otherwise.
ARTICLE XII
MISCELLANEOUS
12.1 Successors and Assi~s. Carmel and Hamilton Western and their respective partners,
successors, executors, administrators, assigns, and legal representatives of each are bound by all
covenants, agreements and obligations of this Agreement. Hamilton Western may not assign its rights
or obligations hereunder without providing copies to Carmel simultaneously with filing at the IURC
of all information that it is required to provide to the IURC.
12.2 Benefitted Parties. Nothing contained hereto shall be construed to give any rights or
benefits hereunder to anyone other than Carmel or Hamilton Western.
12.3 Relationship. The relationship of the parties hereto shall be as provided for in this
Agreement, and in no event shall either party be construed to be an employee or employer of the
other, a partner, or joint venturer.
12.4' Severabili _ty. In the event any provision of this Agreement shall be held 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 provision shall
continue in full force and effect.
· ' 12.5 Notices. Any notice, invoice, or other correspondence required to be sent under this
Agreement shall be in writing and either hand delivered or sent by registered or certified U. S. mail
addressed to the parties at the following addresses:
If to Carmel: Carmel Utilities
One Civic Square
Carmel, IN 46032
Attention:. Utility Director
with a copy to:
Department of Law
One Civic Square
Carmel, IN 46032
Attention: City Attorney
If to Hamilton Western:
Hamilton Western Utilities, Inc.
1350 N. Greyhound Ct.
P.O. Box 1009
Carmel, IN 46032
Attention: JeffHenson, Vice-President
with a copy to:
S. Gregory Zubek
Beckerich and Zubek
320 N. Meridian St.
Indianapolis, IN 46204
Either party shall have hhe fight to change any address upon providing notice of such change
to the other party.
12.6 Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Indiana and all municipal ordinances and codes of the City of Carmel,
Indiana, as the same shall he in full force and effect upon the Approval Date and of which Hamilton
· Western is.properly notified.
12.7 Approval Date. The Approval Date is the date on which the last of the parties hereto
approves and executes this Agreement.
12.8 Amendment. This Agreement may he mended, modified, renewed, or supplemented
only by a written instrument signed by each of the parties hereto, and any such amendment may
pertain to one or more than one of the provisions of this Agreement without affecting the other
provisions hereof.
12.9 No Waiver. Any delay or inaction in pursuing remedies set forth in this Agreement,
or available by law, shall not operate as a waiver of any parties' fights or remedies.
12.10 Entire Agreement. This Agreement hereto represents the entire understanding
between Hamilton Western and Carmel with respect to the subject matter and supersedes all prior
negotiations, representations, and/or contracts, either oral or written.
12.11 Discrimination. Hamilton Western represents and warrants that it shall comply with
all existing laws of the United States and of the State of Indiana prohibiting the discrimination against
15
any employee or applicant for employment with respect to hire, tenure, terms, conditions or privileges
of employment or any matter directly or indirectly related to employment or subcontracting because
of race, religion, color, sex, handicap, national origin, ancestry, age, disable veteran status or Vietnam
era veteran status. Cannel reserves the right to collect a penalty as provided in IC 5-16-6-I for any
person discriminated against.
12.12 Authorized Si~atories. The persons executing this Agreement for and on behalf'of
Cannel and Hamilton Western each represent that they have the requisite authority to bind the entities
on whose behalf they are signing.
12.13 Attom6ys' Fees. In the event that either party shall bring an action or legal proceeding
to enforce an award in arbitration; or, if arbitration is waived by both parties for an alleged breach of
any provision of this. Agreement or any representation, warranty, covenant or agreement herein set
forth, or to enforce, protect, determine or establish any term, covenant or provision of this Agreement
or the rights hereunder of either party,, the prevailing party shall be entitled to recover fi-om the non-
prevailing party, as a part of such action or proceedings, or in a separate action brought for that
purpose, reasonable attorneys' fees and costs, espert witness fees and court costs as may be fixed by
the court.
12.14 Counterparts. This Agreement may be executed in any number of counter parts, each
of which shall be deemed to be an original and all of which shall constitute one and the same
agreement.
12.15. Headines. All headings and sections of this Agreement are inserted for convenience
only and do not form part of this Agreement or limit, expand, or otherwise alter the meaning of any
provisions hereof.
12.16 Approvals. Inasmuch as this Agreement may be subject to approval of the Indiana
Utility Regulatory Commission, the State Board of Health, IDEM, or the U. S. Environmental
Protection Agency, the parties hereto agree to use their best and good faith efforts to obtain all
approvals necessary for the implementation of this Agreement and meet such reasonable demands as
the approving agencies may requke.
12.17 Bond Debt. In no event shall the parties to this Agreement knowingly or intentionally
interfere with the other party's ability to fund their bonded indebtedness.
12. I8 Exhibits. All exhibits referenced herein and attached hereto are hereby incorporated
herein and made a part hereof.
16
IN WrllqESS WHEREOF, this Agreement has been executed by the parties hereto on the Approved
Date as indicated below.
HAMILTON WESTERN UTILITIES, INC.
Authorized Officer
Date
17
Approved by the City of Carmel by and through the Board of Public Works and Safety.
By:
Wi~,
By: ~o/r~ Watson
'AT'ITEST: ~,
Diana Cordray, Clerk-Treas~
C:%ATR/~TOP~.LE SkFOI~BPW S IG. SMT
18
EXHmIT A
DAILY SURCHARGE AT VILLAGE FARMS METER
MEASURED
FLgW (MGD)
0.74
0.76
0.76
0.7'7
0.78
0.80
0.81
0.82!
0.84
0.85
0.86
0.87
0.88
0.89
0.90
0.91
0.92 I
0.93
0.94
0.95
0.96
0.971
0.98!
0.99
1.00
-SURCHARGED SURCHARGE
FLOW
O.Oll
0.021
O,O~l
o.o41
o.o51
0.08
O.07 I
0.08 I
0.101
o. I1
0.12
0.13
0.14
o.151
0.18
· 0.~91
o.211
0.221
0.231
0.241
0.251
$0.00
$50.00
$50.00'
$50.00
$50.00
$100.00
$1~0.00
$I 65.00
$190.~0
$~15.~
$2~
~15.~
~15.~
~15.~
~65.~
$615.~
MEASURED
FLOW (MGD) FLOW (MGD)
SURCHARGED SURCHARGE
(S/DAY)
0.271
0.281
0.291
0.30 I
0.31 I
0.32 I
0.33
0.34
0.~5i
0.36 I
0.371
0.38 I
0.39 t
0.401
0.411
0.421
0.4,3 I
0.451
0.461
0.471
o.481
0.491
0.50 I
o.511
0.52 I
0.531
1.01
1.02
1.0~
1.04
1.05
1.06
1.07
1.08
1.09
1.10
1.11
1.12
1.131
1.141
1.15
1.16
1.17
1.18
1.19
1 ,~:~O I
1.211
1.221
1.231
1.241
1.271
$665.00
$6,o0.00'
$715.00 I
$740.00;
b'7~5.00
$790.00
$815.00
$855.00 !
$890.00
$,915.00 I
~55.ooI
,~L~O.O0 I
$1 ,Ol 5.oo t
Sl ,o4o.oot
$1,055.00 [
s1,09~.00
s1315.00!
$1,140.00
$1,165.00
$1,190.00 I
$1.215.00
$1.240.00
$1.285.~o !
$1.2.90.00
$1.31 5.00]
19
EXI4T IT B
CI'FY OF CARMEL / HAMILTON WESTERN
MUNICIPAL WASTEWATER SERVICE; AGREEMENT
CALCULATION OF WHOl ~SAL~ RA'[r'E FOR OPERATION AND MAINTENANC~
COSTS AND FQR REPLACEMENT COST ON EQUIPMENT
IAnnual operettan & rnairrtanance costs: ..
1 ' Treatment plant e~ense $1,02D.2Q5 1aa.00% t $1 ,a20~
la North plant __ 12.52g 0.00% ~
2 Sludge handling disposal e:~pense 28,457 100.00%; ~ 28,4;
CeUaction s-:/stem exz~ense: I ..
3 Interceptor sewers (I) 'I 51,614 100.00% I 51
4 Co]lecflan (1) 208,45~ 0.00%
5 IJft..s~l~an--10b'th street 36,008 100.00% . 38,G
5-a l Jrt station-tit1,/of Carn~et 64,064 0.00%
7 Industrial monitoring e~pense- I 0t
..... 8 Subtotal 1,526,5701 .. 1
g General and administration expense 2_sa .(.2_}~.~_ 872,132l 74.4~% 849,..__.~1
9s Rec/uc~on in cornmen ~=asm (21_. (86,9(301 74.'~% ~ ·
Tutti operation & maintenance costa 2.311,802 I' 1,720,7,
AnnuaJ replacement costs an ec3ui]3rnent far Items.'
In of plant benefiting wholesale cusmmem (3) ,379.792 91.2;3% 346,4
Total annual operation & malnt.
11 and replacement costs ..o.n. equiament _. $2,691,5~4 .... 2,g67,~2
12 Carmel surcharge revenuelar excess BQD & $5
13 Total nat of surcttarc,]e revenue .~
Total annual flow receive.d at Carmel
14 treatment.plants (in mi/lien ~ailorm) 2,707.
Rate per m~tlon ~allons of flow to
[ 5 wholesale easterners
(1) Tot~ Casts based on Carmel Ut[ilfles es~Jmate t~at 20% of sewer collection relates to
North/South Int~ceptc3r and remaining a0% t~ City ef Cazmel =ewer fines
(2) Allocation Percentage -- Line ~8 (Shared Costs) / Line #8 (To~a] Casts)
(3) Amount determined by the consuiffng engineer
20