HomeMy WebLinkAboutHamilton Western/Wilfong & The Town of CarmeWASTE DIS OSAL REA ENT CONSTRUCTION AND OPERATION AGREEMENT
4932
between HAMILTON ,vr~ESTERN UTILITIES, INC.
THIS AGREEMENT,
-/hereinafter referred to as "HAMILTON"). RALPH L. WILFONG, (Hereinafter
referred to as "DEVELOPER", and the TOWN BOARD OF THE TOWN OF
CALOMEL. HAMILTON'COUNTY INDIANA. Ihereinafter referred to as
"TOWN BOARD' ), acting for and on behalf of said Town of Carmel,
WITNESSETH: This Instrument Recorde /g/ 1 "
In consideration of the payment, transfer and mutual promises aha '
undertakings hereinafter described, Hamilton shall cause to be constructed
on land owned or controlled by the Town of Carmel and shall lease to the Town
for a term of twenty five (25/ years, 'and the Town shall maintain, operate and
control such sewage treatment facility upon and subject to the follo~ving
terms, and conditions to each of which the parties agree:
1. Construction and Lease. Hamiltonshall construct and install a sewage
treatment facility according to the plans and specifications to be p~epared by the
Town at a total cost of not to exceed $25~, 000. 00. Upon'completion, Hamilton
ghall Brsis, satisfy itself that the facility has been constructed in a good-and
workmanlike manner and in accordance with the plans and specifications and
then shall certify completion to the Town Board. The Town Board shall there-
after approve the installation of ~uch sewage treatment facility accb~rding'tp tt{-~,
said plans and specifications upon final in. spection and acceptance thereof by th~
Town's authorized representative. The Town shall have the funther r~ght to
make reasonable inspections of the construction from time to time'. Hamilton
may at its'expense extend or 'add to the size of the sewage treatment facilities
to be constructed as provided for hereafter if such extensions or additions
are approved by the n~cessary agencies of theState of Indiana and United States
Government. In all events, i~ shall'be t~amilton's responsibility, with the
aid and' assistance of the Town B'oard when required, to secure approvals for
the method of construction. Hamilton~shall bear any expenses necessitated by /
such approvals when and if r. equired.
Hamilton shall, in the. cotirse-of construction of this facility, take all
actions necessary and reasonable to see that said construction does not
interfere with the ongoi]Tg operation of the existing sewage treatment facility.
Upon completion of construction of the facility, Hamilton agrees to lease
and hereby leases such facility to the Town for a period of twenty five (25)
years, ,with a payment of rent of One dollar ($1.00) per year to begin upon
commencement of operations of the facility by the Town.
At the expiration of the twenty five (25) year term of this lease, such date
being twentytlve (25) years after the commencement of operations of the
facility by the Town, the Town shall have the exclusive right and option to
purchase said facility from Hamilton for the sum of One dollar ($1.,00.)
It is further understood and agreed that in the event of any change of state
or federal standards affecting the operation of the facility as otherwise con-
templated by this agreement, that Hamilton .in such event shall have no claim
against the Town as a result thereof.
23. IKeimbursement of Hamilton. In the event thai any party or parties,
for whatever reason, may use any portion of the gallonage capacity provided and
reserved for FIamilton by this Agreement, whether such use i's in consequence
of a sale of such capacity by Hamilton or otheFwise,the party or parties .so using
the capacity shall be required to pay for such ~se an amount which represents
a pro-rata share of the cost of construction of the facility, said pro-rata share
shall not be less than Four hundred dollars ($400.00) per "equivalent dwelling
unit" as said term is used hereafter and defined in existing Carnuel Ordinance
unless said amount is altered by express written agreement between the
Town Board and Hamilton. ''
The TownBoard hereby agrees to act as Agent for the collection of this
partial reimbursement, and shall pay out this amount to Hamilton, without
appropriation, pursuant to law.
Under no circumstances shall Hamilton be reimbursed in an amount greater
than that expended on said project, inchding interest. The Town, may, if permitted
by state law, charge an amount greater than Four hundred dollars ($z}00.00) per
equivalent dwelling unit, the amount in excess of Four hundred dollars ($400.00) per
..~luivalent dwelling inu~iing totally to the benefit he Town. It such action is
taken, it is understood that Hamilton has no responsibility therefore, and the Town
shall have Hamilton harmless.
3. Disposal capability. After the date of this Agreement, the Town Board
at all times shall have taken or if not taken, shall promptly take, all such measures
as are necessar'y to receive and dispose of all sewage from the project planned by
Hamilton outlined in Exhibit B attached hereto and made a part hereof. It is
anticipated that the increased gallonage capacity resulting fr~om construction of
the new sewage treatment facilities by Hamilton shall be at least in the amount of
250,000 gallons per day rate. It is understood with regard to this agreement that the
obligatim of the Town under this paragraph is limited to such actions necessary to
accept and treat the anticipated gallonage pursuant to this agreement.
The Town Board agrees aport completion of the facility to accept up to a total
of 250,000 gallons (except any capacity sold under provisions of paragraph 5
hereof), per day rate, in addition to the present gallonage capacity which Hamilton
is presentyly using or is entitled to use as indicated more ~pecificallyhereafter, from
' those equivalent dwelling units to be constructed in the area described in Exhibit B,
from Hamilton's present metering manhole and/or such other metering manholes that
may be constructed on this project into the Town's sewage collection sys:~em. In
the event of the construction of additional metering manholes, the Town shall have
the right to approve the design and location thereof.
4,-Salvage. The parties further agree that in the event the sewage disposal
treatment facility identified hereunder is closed and/or abandoned by voluntary or
involuntary act of the Town Board or by action of the State Board of Health or
by an official act of any other governmental party or agency having jurisdiction
in the premises before the expiration of the term of this lease, Hamilton shall have
the right to remove all salvagable equipment or property in the ground or above the
ground which is considered part o'f the facility which is the subject of this contract.
Such salvagable equipment as referred to herein may be taken only after reasonable
notice of Hamilton's intent to do so is served upon a representative of the Town
Board. It is mutually agreed and understood upon between the respective parties
hereto that this contract as it relates to the sewage facilities is interim in nature
and that the construction referred to herein is for the interim expansion of
a certain sewage treatment plant in the Town of Carmel commonly ~eferred to
as the "Northern Plantr' and that the operation, of the said Northern Plant, located
at 90'1 North Range Line Road, ~armel,'Indiana, will cease and be terminated
when other accommodations for s~ewage treatment have been finally arranged
and formalized, thus eliminati.ng the need for .said Northern Plant. In the
event of such closure,, the Town of Carmel shall provide Hamilton with like sewage
capacity. Hk~ilton shall have one (i) year to remove and salvage such equipment
as desired following the notice p~rovided for above.
5. Sale of .Capacity. Hamilton agrees that upon written request of the Town
Board to sell capacity, such sale to be pursuant to terms set forth by the Town
Board, provided Hamilto3~ is reimbursed immediately for said capacity by the
purchaser of suc]5 capacity as set out in paragraph 2 supra. Hah~ilto~ shall also
have the right to sell such-of the..capacity as may Be available to other persons or
parties upon written, appro~zal by t~-e Town Board. Additionally, in the event of
the sale or any other dispos.ition or transfer of cap~city to another perry or parties,
no tap or connection shall be made into the sewers or facilities which are the
subject of this Agr~ment without the approval of the Town Board and the proper
payment of 'any costs or other assessed charges which may be' levied for such
tap or connection by the Townn Board.
It is further agreed that the Town shall have the right, as Agent, for
Hamilton, to sell capacity to other persons or parties in accordance with 'the
terms of this agreement. Capacity'eligible for sa'le to third'parties shall be
restricted to the following amount'~:100,000 gallQn,capacity as determined in
equivalent~:dwelling~units~{s,h~il,l,:be~immed~tely~:avatl~rbl~*for~sale to third part~es.
in excess: of the 100, 000 gallons
After 36 months from the date of this contract, any excess/capacity as determined'
by projecting the need of the Developer~ and Hamilton over the subsequent 3
year period based upon development during the initial 3 year period Shall be
available for sale to third pa~ties.
It is further understood that Hamilton and Developer may waive this
limitation in writing in their absolute discretion.
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The Town Board £urther agrees that in such event Hamilton shall have the
right and option artless denied such right by the State Board of Health or any other
governmental agencies, natioaal or s~ate, having jurisdiction, to ~ur~her
expand the sewage treatment facility described herein to a proportionate level
which shall compensate ~or the amount of capacity s~ld. Such additional
~buil~, shallbe subject to and according to ~he same ~erms and conditions
as has the initial phase o~ constr~c~ion provided ~or herein i~ such original
~er~s and conditions are approved by'all necessary governmental agencies, s~ate
and national.
~. ~uality. It is ~ur~her understood and agreed by and be~een ~he
parties hereto that such actions as may be necessary to guarantee Hamilton's
continuous and unhindered use of such ~acility when completed, have beth taken
and thai under no circumstances shall Hamilton, once said facilities have been
completed, be denied the use of this additional rated capacity of 250,000 gallons
per day as set out here~above, ~less some portion of the capacity provided
for herein has previously been sold in accordance with the terms of this
contra ct, or as otherwise provided in this contract.
7. Type of Construction. That nothing in th[~ Agreement shallbe construed
so as to give Developer the right to'construct on those premises described in Exhibit
B anything other than w~t is described in said E~hib~t B and all such construction
shall com)ly with the zoning requirements of the Town 6f Carmel, Indiana,
and such~other zoning agencies having jurisdiction.over the premises described in said
Exhibit B. That no construction other than that set out and disclosed by said Exhibit
B is contemplated by this Agreement and that said project as referred to herein
shall not be used to service any other construction than what is defined and located
in Exhibit B. This provision shall not, however, prevent the owner from changing
the various land uses provided for in Exhibit B as long as the same are in compliance
withthe applicable zoning ordinances.
8. Number of Equivalent Dwelling Units. That Developer or his assigns will
construct no more than seven hundred fifty (750) equivalent dwelling
units, to be served by the capacity provided for herein. The term "equivalent
dwelling units" being used her. ein as a measure o£- use as defined by the
existing Carmel Ordinance S-21, .but in no event shall the number of such'
equivalent dwelling units to be constructed by Developer be greater than the
necessary capacity which is available to service such number of equivalent
dwelling units, and in any 'event the capacity of that project described by the
· plans and specifications to be prepared by t~e To~vnBoard at Developer's
expense shall in fact govern and be the determining factor of the number of
equivalent dwelling units which Developer or his assigns will cause to be
constructed in Exhibit B to be served by said capacity, and Developer shall
in no event construct a greater number of equivalent dwelling units than can be
serviced ac'cording to the capacity of the project described herein, such
determination of capacit, y to be gover.ned by the existing state and federal
law and the regulations of such state and federal law and the regulations of such
state and federal agencies having jurisdiction over such.
9. Penalties (a) In the event the total flow rate of sewage from all metering
manhole's to the new facility exceeds 13, 500 gallons per liour on any day,
then Hamilton shall pay to the Town Board of Carmel, Hamilton County, Indiana,
the sum of Two hundred fifty dollars ($250'. 00) for each day that said flow rate
exceeds 13,500 gallons for any hour during that day and in addition hereto in
the event the total flow rate of sewage from ~11 metering manholes exceeds
250,000 gallons per day, then Hamilton will pay to Town Board of Carmel,
Hamilton County, Indiana, the sum of Sevent h'!lndred fifty dollars ($750.00) '
per day for each day that said flow rate exceeds 250,000 gallons, all to be
paid within ten (10) days ~fter Town Board notifies Hamilton in writing of such.
In determining the foregoing penal{y, the existing flow rate as of the date of
execution of. this contract, as determined from the records of the Carmel
Sewage Department, shall be excluded from the total flow provided for herein.
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That Hamilton and its assigns as to'all pr p ty eferrea to in Exhibit
- B shall comply with the existing Town of Carmel Use Ordinance (s) for sewers
relating to foreign substances in such sewers and in the event Hamilton and
its assigns do not comply with such ordinance (s), the penalty in said
Ordinance S-3 is hereby adoptedherein and Hamilton hereby agrees to pay
that fine or penalty as set out in said Ordinance S-3. That such'provision
will also apply to al~ regulations sef forth in the Federal Water Pollution
Control Act, the amendments of 1972, and all revisions thereof.
(c) The allowable infiltration will be in addition toth~ alpo'ye figures included
in this penalty section and elsewhere in this contract and will be based on
100 gallons per day per inch in ~ameter per mile of pipe, excluding house
service connections. Such allowable infiltrations quantity will be computed
by the Town Board, and certified from the as-built drawings of the various con-
tractors, which Shall be supplied within 30 days of completign. No allowance shall
be made for infiltrationif as-built drawings are not supplied by Hamilton, within
60 days of completion.
(d) Notwithstanding any of the above penalties~ and in addition thereto,
if substantial damage is done to any existing sewer line or interceptor con-
structed pursuant to this agreement by reason of the infiltration or flow of foreign
substances, Hamilton agrees to repair or replace such sewer llne or lines at
its expense. "Substantial damage" as used in this paragraph is defined to mean
damage which causes a disruption of flow as determined bythe Town Engineer.
(e) Under no circumstances shall the penalties provided for in this paragraph
be construed to apply to the present gallonage capacity which Hamilton is using or
is entitled to use asprovided more specifically hereafter.
'10. Term of Payment. Hamilton will pay all project costs dhe,~,when such
respective amounts are due and payable and may make such payments directly
to the contractor or supplier. That all items due and payable hereunder shall,
in addition to project costs, include both construction and non-construction fees
necessary for the construction of such project as referred to herein.
11. Rights of Inspection. That a representative of theTown Board will
=7=
~ave complete rights' of access in order to read the meter or meters and to
'make reasonable inspection at all times to which this Agreement appertains. In
this reg~r~l, the meters referred to shall be considered the property of the
Town and the Town shall be responsible for their care and maintenance.
The Town shall have all such meters calibrated from time to time as they see
fit at its expense. Hamilton may request additional calibrations at any time, how-
ever, such calibrations shall be at Hamilton's expense.
1P. Indemnification Clause and Save Harmless Agreement. That as to
any items due and paykble hereunder or by reason her. eof~in cormection with the
construction of this facility, Hamilton will save harmless the Town Board for
any judgments entered for damages or expenses of whatsoever kind or nature
inuring to the Tov~n Board as the result of any breach by Hamilton of the terms
hereof' or resulting from liability to any third parties generated by this agreement
not otherwise excluded herein, and Hamilton will pay such judgments, damages or
expenses.
13. Rate for Treatment. That for the treatment of said sewage, Hamilton will
pay to the Town Board of the proper agency of said TownB~ard the sum of 58 cents
per 1, 000 gallons, with a minimum payment of Two hundred dollars ($Z00.00) per
month per metering manhold, all such charges to be paid monthly. Such wholer
sale rate Shall not be increased except in the event retail rates for Town users
are increased and the~ only in proportion to the percentage incr. ease in the retail rates,
14. Contract of October ZS, 1969. It is understood and agreed that this contract
shall not be construed or defined as amendatory of the contract dated October Z8,
1969, wherein Journal Box Servicing Corporation and the Town of Carmel are parties,
but shall be construed and defined as a novation thereof to the extent that all
obligations of the parties or their assigns have been specified herein in any
manner, contrary to the provisions of th.e 1969 hontract. As to those obligaticns
between the parties wherein successors or assigns of the contract dated October
28, 1969, which have been detrimentally relied upon in good faith by Hamilton
as successor as to the interest of Journal Box Servicing Corporation, said contract
shall continue to be in full force and effect.
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BOOK
In this regard Hamilton and Developer specificalIy waive their rights to
· reimbursement from the Town 'of CarmeI for project costs due to Journal Box
Servicing Corporation and specified contributors under the contract of October
28,1969, the same having been Specifically retained byJournal Box Servicing
Corporation and its assigns. Further, Hamilton and Developer shall jointly
with Journal- Box Servicing Corporation upon the request of the Town Board sub-
mit a verified ·statement indicating the-irterest which each' has resulting from the
s'ale by Journal Box Servicing Corporation to Develope~ and Hamilton certain
rea] property described in Exhibit B; further, that Such verified statement shall
be entered in the Town minutes ahd the entry and approval in the Town minutes
shall be the effective date of this contract..
With regard to those provisions of the October 28, 1969, contract,
purchased for good and valuable consideration by Hamilton and Developer, upon
which Ha.milton and Developer have detrimentally relied, Hamilton and Developer
now specify their t~uderstanding of certain,benefits flowing to them fromthe
Town:
(a) Hamilton and Developer expect the Town to provide sewage treatment
capacity under said agreement, including that currently being treated from Mt.
Carmel Subdivision for t, 088. 5 equivalent dwelling units which is the equivalent
of 365,000 gallons per day. Hamilton and Developer agree ~hat 1, 088, 5 equivalent
dwelling units as used in the October 28, 1969 contract shall be defined as not
exceeding 365,000 gallons per day.
(b) The Town shall~continue service to the Mt. Carme~area currently being
served without i~terrt~ption as required by said contract.
(c) The Town shall make no assessments or connection charges for the area
covered by,the October 28, 196'9 contract against Hamilton and/or Developer,
waiver of same being part of 'the consideration of said contract.
By stating the foregoing understandings~ Hamilton and Developer agree to be
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bound thereby in interpreting those provisions of the October 28, .1969
623.
contract; however, in no way should.this understanding bp considered a general
or specific waiver of the obligations 'thereof, except to the extent p~ovided
her einabove.
It is further understood and agreed that no more than 1,088.5 equivalent
dwelling units shall he served b~r the existing interceptor sewage transmission
line commonly known as the "Mt. Carmel Interceptor". Hamilton shal!, at its
expense, construct such additional sewage transmission capacity as may be
necessary to serve the a~ea designated in Exhibit B, if an4 when the Mt.
Carmel Interceptor has reached capacity as de£1ned herein.
15. Annexation. Hamilton hereby waives its right to remonstrate against
annexation of the area designated in Exhibit B.
16. The undersigned persons executing this contract on behalf of the Town
Board of Carmel, 'Hamilton Western ~Utilities, Inc. , and Ralph L. Wilfong
as Developer represent and certify that they are duly elected officers, of the
Town Board of Carmel, Indiana, and Hamilton Western Utilities, Inc. ,
respectively to execute and deliver this contract; that Hamilton Western Utilities
Inc. , Ralph L. Wilfong, as Developer, and Town Board of Carmel respectively
l~ave full capacity to execute this contract and that all nedessary action for the
making of,this contract has been taken.and done by the respectiveparties hereto.
This contract shall be binding upon and inure to the benefit of the assigns,
successors, trustees or receivers in bankruptcy of~he parties hereto.
IN WITNESS WHEREOF, the parties have hereunto set the/rhands and
seals, this ~l. day of ~;~//~//~/'
,1974.
l~alph V.Wilfong, PT~ioper~
TOWN BOARD OF TOWN OF CARMEL, INDIANA
BY
· . Fred T. S~i'ft ~ /
Frederick P. Hinshaw
William D. McFadden
COVENANT
BooK~PAGE~-
Comes now 1lalph ~VHfong, and being first duly sworn,upon his
oath says that he hereby covenants with and agrees %vith the Town of Carmel
that as to charges for connections to th% lk4t; Carmel Interceptor which li~
outside a certa{n area comprising 631 acres, said area being outlined and
referred to in a certain con~ract, by and bet~veen Hamilton Western UiHit[es
and the To~vn of Carnnel, said charges being {n the amount of Eighty two
dollars and for~y cents ($82.40) per connection as required by'a certain
contract by and between Journal Box Servicing Corporation and the Town
of Carmel, that he shall pay such charges where required~pursuant to said,~ract;
That said agreement to pay said charges speclfically excludes th'e 631
acres referred to hereinabove for the reason that said area was specifically
excluded from the requiremen~ for reimbursement and a certain assignment
of contribution contrac~ by and between Journal Box Servicing Corpora~lon
and Hamilton Western Utilities, said contrac~ having previously been pro-
vided to ~he Town Board as an attachment to a verified sta%ement.
FURTHE~ AFFIANT SAYETH
t~al~~lf~g ~ ~
STATE OF INDIANA ) d~
) SS: This ~nstrument Rec0rde /~ 19 ~/
COUNTY OF HAMILTON ) ' JUNE M. HEDGES, RECORd, HA~N COUNTY, JN~
Personally appeared before me, a not~ry public, 1n and for s~ld coun~7
and sta~e, Ralph Wilfong, to ~e known and known to me ~o be the person who
executed ~he foregoing covenant and acknowledges ~he s~e ~s his volun~ar~
'RP. ~w,~0 N. GREYHOUND COURT. CARMEL. NDIAN,~ 46032~ - TELEPH(
e rillage Fn
carm~i-TowuBoard, of Trustees
City.Building "
Oarmel, Indiana 46032
Gentlemen:
846-6561'
No request will be made by Hamilto~ Western Utilities for.
the~1,O88.5units under the contract dated 10-28-69 with
Journal Box Servicing Corp. and Town of Carmel until
after July 1, 1976 .....
Also, no additional hook-ons will be requested~ntil such
time ~s the 750 units,that the'new treatment plant will
.a-ccomodate are uti$ized. :- -
__ -_ ... Very truly yours,
· ' ~ ' ' F~T~I WESTERN UT~ILI~IES~ INC;-
~.r-'~
. ..:.:1./
, ....
,'/# '
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act and deed.
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WITNESS MY HAND AND NQ':rp,RIALSEA:L.. this...?5-#day of '~_'
',,., ..
1974.
MYCOMMlSSION;~xpiRE'S;.
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NOtary PUblic."PI1.T~i~;h.,.' " :;VE~;',
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The undersigned, JOUR2{AL-BOX SERVICING CORPO~%TION,
(hereinafter referred to as "Journal-Box"), repres6nts 'that'
it sold certain assets to the undersigned, HDS,1ILTON ~'~ESTERN
UTILITIES, INC., (formerly Wilfong Builders, Inc.), (herein-
after referred to as "Hamilton Utilities"), pursuant no the
terms of a certain Contract for Purchase of Utilities, a ' -
copy 0f which is attached and marked Exhibit "A", and that
in connection with the c6nsummatlon of said sale pursuant
to said contract Journal-Box executed an Agreement Re Assign-
merit of Rights in Contribution Contract, a
. attached and mar}{ed Exhibit "B", assigning
copy of which is
and transfe~rzng
the assets sold pursuant no said contract.
That' as stated in said contract and assignment
Journal-Box assigned and transferred, and Hamilton Utilities
acquired, all right, title and interest of Journal-Box in
and to the Contribution Contract Between the Town of Carmel
and Owner of Real Estate For Sanitary Sewer Interceptor ~n
Clay Township dated October 28, 1969, except flor the right of
reimbursement which was specifically reserved to Journal-Box,
and that Bamilton Utilities acquired all right to use the
sanitary sewer interceptor without paying any further hookon,
connection or assessment fees by reason of connection from
BOOK--'
Ce~%l~ca~e'-'' -~' or' Tarri~orza!' ~u~ ~ ~'o":~ ~o.,z' --~,, and Journa:L-bo:.:
the approximate ~ot acres zn ~n~ ,~m~i~on Utilities'
ficate of ~'erri~oria! Authority issued by the Pubizc Scrv.Lce
Commission of indiana.
That any ~' ~ .... :~r'~' ~ J~erenofore or here-
after ~enerated by hap or noc.~on connect:ions no the Lnter-
~1.~ u.~. or users o[ any
Contribution Contract by ~'~ ..... --~s
sewer~ connected to such interceptor, am the rate oe~ forth
in Paragraph 6 of said .... "~'-' Co~trac~ are or
be due to Journal-Box and Hamilnon gtilities agrees %o mhe
. payment ~n~=reo- %o Journal Bo:c, it being understood %nam
connections 'to the ~ -- ~ ~- ~-' znnerceptor sewer which
generate reir~ursement money ~o Journal-Box under s:,=e Contri-
bution Contrac't are %hose from areas other than the afore-
' ' ~.c~ included within Hamilton
me[~tzoned ap-oro?:zmate 631-acre .....
' Cert].f}..~a=e of '
Utilities ' '~ = ~2erritorzal Authority issued by
'hhe Public Service Commzsszon of indzana.
........ -~m ~ay of February; 1974.
E~xmCg~m~ this /
JOU~d~AL-BOX o~zAmCz~ CORPORATION
'. ~ ........ TY, ffID. y A~ho~?,~z~'c Officer
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STATE OF INDIANA )
,' )SS:
COUNTY OF /7/f~,~,'zz~'/ )
Before me, a Notary Public in and for said County
and State, appeared Hamilton %~estern Utilities, Inc., by
Ralph L. Wilfong, its authorized officer, and acknowledged
~. : .,execution of the foregoing Verified Statement.
V'''~ ~,..,." ,' ,. Witness my hand and Notarial Seal this /~_ .day
~', of.February, 1974.
Notary Public,
STATE OF INDIANA )
)SS:
COUNTY OF )
JUNE M. HEDGES, RECORq;~'R, HAMILTON COUNTY, IN-DJ
Before me, a Notary Public in and for s'aid County
and State, appeared Journal-Box Servici. ng Corporation by
Edgar C. McNamara, its authorized officer, and acknowledged'
execution of the foregoing Verified Statement.
Witness my hand and Notarial Seal this /~ day
O f 1974 // .
Notary Public
~4y Co~n]ission Bxpires:
act and deed,
VFITNESS MY HAND AND NOTARIAL SEAL,
BOOK ~'~ PAO[~ ~)1__,_~
1974.
JUNE M. HEDGES. RECOR[~R HAMILTON COUNTY, IND.
Notary Public. ~P,~7~/¢/~ ~ /F~'~'~'
AT //'2.,,-/~, O'CLOCK
JUN 14 1B74
PAGE
CONTPd~CT FOR PURC"_-ii\SE OF UTILITIES
THIS CO,NTiUIC%', mace and ente~ee~n' ~-~o th~s 6th .day-
of April 1973, by a~d between WiLFONG BUILDERS, iNC., an,.
Indiana corpora%mon, {ne~= ...... ~__ renerree ho as
and JOURNAL'BOX SERVICING CORPORATION, an.Indiana corporation,
(hereinafter referred to as "Journal Box"),
,JUNE B. HEDGES, ~coRDE~HABILTON!?N~/iN~
WHEREAS', Journal Box is ~ne owner o~ a v,~ter 'an~ : ·
sewer utility operating in the area of the Village of Mount ·
Carmel in Hamilton County, Indiana, and holds indeterminate
permits to render water and sewage services in said area is6ued
by the Public Service Com~eission of Indiana in Docket Numbers
27283 and 27284; and, . -
WHEREAS, Journal Box is desirous of disp0sin~ of
said utility properties and the rights, permits and franchises,
in connection~ therewith; and, ' ' ....
WHEREAS, Wilfong is desirous of purchasing the
NOW, Tm~.~.ORE, in consideration of the mutual, prom--
ises of' the parties and other good and valuable cons!ae~aczon=,
the receipt of which is hereby acknowledged, the parties hereby
agree as follows: ·
. 1~. Jo:ernal Box agrees %o sell all of its water and
sewage u~ility, inc!ud~ng water lines, sewer lines,, meters,
wells, and all pumping and servicing equipment.and all inventory,
parts ~no supplies in connection.with its water and se%,/er Uti!At--
les, all easements, rights-of-way, and all other assets used in ' '
conaection with the operation and maintenance of said 'u%i!ities,
except cash, accounts r=c~.z/~.ml~, office furniture a._a equip-
ment for.the sum of One Hundred Thousand Dollars ($100,000.00).
2. Subject to the terms and conditions of this agree-
men%, Wilfong agrees to purchase said property and assehs for
the ~ ~ e. ~ -
punches price and upon -Pbe following payment basis:
(A) Purchase price of -tangible assets, including
water lines, sewer lines, wells, meters, all
pumping and servicing equipment aha all 'inven-
tory, parts and supplies, as set ore {n ~'"
"A" attached and mede a part of this agree?.enh
for the sum of $99t950.00. ,
(B) Ali other assets, including permit, fren-
chimes, easements and rights--of-waysz~=
the sum of $50.00.
(C) Nilfong ague.es to pay said purchase price
in cash at closing.
3. Parties agree hham subjec'a to approval by the Public
Service Com~.ission of indiana the.m~aer shall be closed within
120 days ~rom the date of this agreement, [he same being concur-
rent with the closing of that certain Contracn for Purchase of
Real Estate between Ralp:'~ L. Wi!long and Journal Bo}: of even date
herewith, which closing shall be held at 906 Chamber of CoRu?.erce
Building, Indianapolis, Indiana.
4. Journal Box agrees at closing to:
(A) Deliver to Wilfong all documents necessarv
to mrans~e_ Journal Boxes rz¢{ht, title and interest
in and no the asse-cs purchased, ' '
(B) Transfer all right, ~itle and interest to
Wilfong of its Certificate of Territorial Autleoritv
and indeterminate permlt for the treah~-.ent, purifi-
cation and disposal in sanitary manner of liquid and ~ ~. ·
solid waste, sewage, nign~ soil and industrial waste
as provided in Docket No. 27283 of the Public Service
Com_mission of Indiana for an area containing approxi-
mately 631 acres in Hamilton County, Indiana. Journal
Box agrees at its own expense 'to petition for and secure
such transfer on or prior to closing, and Wilfong agrees
to cooperate fully therein_.
(C) Transfer all right, title and interest to
Wilfong of its indeterminate permit to own and o~r~'~_~c~
public utility mo rurnzsh water, as provided in Do~.~=~. 27284
of the Public Service Commission of Indiana, for an area
containing approximately 631 acres in Hamilton County, Indiana.
Journal Box agrees at its own expense to peti'kion for and
secure such transfer on or prior to closing, and Wilfonc
agrees to cooperate fu!iv therein°
5. Journal Box represents and , F
(A) That it is a corporation in good standing
in the State of Indiana; that ih bas the right to
sell and dispose of said assets and ~o transfer said
permit and franchise.
(B) That all the property and assets sold and
transferred hereunder are free and clear of al! liens
and encumbrances.
(C) That khe Contribution Contract between the
Town of Carmel and Owner of Real Estate for Sanitary
Sewer Interceptor in C!av Townshie dated October 28,
1969, a cop}, of which~-~ .... ...... n-~ ms attached hereto,
marked Exhibit "B" and made a part hereof, is a valid
and existing contract between the Town of Carmel and
Journal Box; =ne= the wholesale rates set oat
Paragraph 8 are still in e'£fect and tn~e the same
has net been esr. ended or __t~r~d.
~.n~.~ the ~' -~' ~' filed wi~h the Public
Service Conm~ission of In~iana c0ncern~ng the opera-
~ ' .=i' ~'~= accurately
tion o~ the water and sewer u~-l-=~--o
ref!ece zn= operation of sa~d -~'
~ ~'-~' and liabilities thereof
6.. The partie6"agree'that ~.,lu,~ Ni!fong's purchase
· . ' .... a~qu~_r=
of the wa-~er ~
an= sewer uh~l!h!es %'}~iIong sNal! ' ~ ~{ ~ all
the _lgn=,r" ~ ~1=1~' ' ~ ~ and interest ef Journal Box in aha to %he
n~r_ ...... the To.,,,~_ of Cars,~e! ~ Owners
Contribution Contract ' ~' '~
of Real ~= .... ~= for Sanitary Se~,,er Interceptor in Clay To..¥~n~
..... n=.==~o and made a part nere-
cescrzbed ir~ Exhibit "E~' aetacned
of, (except the right of reimLursemen~, which right is hereby
specifically reserved to Journal Box), which rights shall in-
c!ude the r~gnE to use uh~ sanz~ary sewer, interceptor described
in said Contrlbummon Contract mot all deve~lopment' in approxf-
mate!y 631 acres described 4n the utilities' Grant of Author-
ity from the Public Service Commission of Indiana without pay-
ing any further hookon, connection or assessment fees for the :
disposal of sanitary wa~e into said interceptor
Journal Box does hereby agree to release any right mt mzgn.=
Con=ra~=
have to contributions under said Contribution .... for
any hookon or connection to the interceptor sewer from land.
lying within the aforesaid 631 acres.
7. Journal Box agrees %o cooperate' with Wilfo~g
the orderly transfer of the water and sewer utilities and agrees.
that a]]_- records used in ser,zzcAi~g- ' ' all utility customers, includ-
ing meter cards, .customer records, accounting data and contracts
may be retained by Ni!fong and used in the operation of said .'
utilities, provided the same shall be available to Journal Box
- 'rlgh~ to purchase
as its records; and Wi!fong shall have .the '
the posting machine presently being used by Journal Box for
One Hundred Dollars ($i00.00) . -'
c~=~ges
8. Parties agree .... =nau all water and sewer
shall be prorated to the date of closing and that Wi!fong
~ wi.!l receipt for all ~- = e~. ~'
p=ym=n-.~ m~ae after the date of sale
and shall promptly remit all proceeds due Journal Box. it
is further agreed that ~,~,,=__~,~ .... shall have the right to use
the name HcNamara Construction Company presently being used
by Journal Box for the billiny and servicing o~ its utility
customers.
E=,E~ui~D." m--,,~= this 6th day of April, .L97~.' ~ '~
JOURNAL BOX SERVICING CORPORATION
.,.--
B'
y '-~. -.,.. -.~ / ; --
, /
~OOK~
AGREE'.'4ENT RE ASSIGNMENT OF
RIGHTS IN CONTRIBUTION CONTRACT
THIS AG[tE~LIE~,T, made this day of August, 1973, by
- ~ r, IndiAna
and between JOURNAL-BOX SERVICING CORPOP~\IION, an
corporation, hereinafLer called "Assignor", and HAMILTON., %,N~STERN
UTILITIES, INC., an Indiana corporation, hereinafter called
"Assignee",
WITNESSETH:
WHEREAS, the parties hereto (the Assignee at that point
having been named Wilfong Builders, Inc.) on'the 6th day of - .
April, 197.3, entered into a certain Contract for Purchase of.
.!i Utilities, which Contract and the sale and purchase contemplated
thereby have been cons~Lmmated and closed this date; and.. .·
WHEREAS, Paragraph 6 of the aforesaid Contract for Purchase
. of Util'ities provided for Assignee's acquisiLion of certain
ii rights in and to a .certain Contribution Contract between the
"Town of Carmel and Owners of real esha'he for sanitary sewer
interceptor in Clay Township dated October 28, 1969, hereinafter.
referred to as the'"Contribuhion Contract", and it is the desire
i: of the parties 'to implement the aforesaid Paragraph 6 of the said
?Contract for Purchase of Utilities by execution of this Agreement;:
NOW, THEREFORE, for and in consideration of the consummation
of the aforesaid Contract for Purchase of Utilities dated April
1973, which consideration is specifically acknowledged as being
sufficient for this Agreement, it is hereby'agreed by and between
tine parties hereto as
follows:
Assignor hereby assigns,
transfers and sets over unto
Assignee all of Assignor's right, title and interest in and to'
'the Contribution Contract, except the right of reimbursement
referred to therein as deriving = ·
~rom tap Or hook-on connections
to the interceptor sewer described therein, which right of
reimbursement is hereby specifically ret'ained by Assignor.
2. The rights hereby assigned
limitation the right of Assignee and
shall include without
its successors 'and assigns
to. use the sanitary sewer interceptor, described in the Contri-
bution Contract for all development in approximately 631 acres
of land in the area of the Village of Mount Carmel in Hamilto~
County, Indiana, the identity of which area is well-kn0wn to the
parties hereto without payment by Assignee of any further
hook-on, connection or assessment fees for {he.disposal oJ
sanitary waste into said sanitary sewer intercep{or.
-3. Assignor does hereby release any right it otherwise.
may have to contributions from Assignee under said Contribution.
Contract for any hook-ons or connections 'to the aforesaid
sanitary sewer interceptor from land lying within .the.aforesaid
tract of approximately 631 acres.
4.' Assignee hereby agrees ~o remit promptly t~ Assignor
any reimbursement or contribution payments received by it from
third pgrties attributable 'to land lying ouLside said approxi-
mately 631 acres pursuant to the Contribution Contract.
It J.s agreed that this Agreement shall be binding upon
and shall insure to the benfit of the Assignor .and the . Assignee
and their respecLive successors and assigns.
' --2--
iN WITNESS
to be e×ecuted
respective auLhorized officers'tl, e day
6es
WHEREOF, the par~ies have caused ~his instrument
in their respective corporate names by their
first above written.
ATTEST:
JOURNAL-BOX SER%ICING CORPORATION
E~ar C. Mc~amara~ President
Eleanor L. Bla~kwell, Secretary
HA.MILTON WESTERN UTILITIES,
JUNE M. HEDGES RECORDER~HAMILTON COUflT¥. IND.
INC.
'~lph..~. Wilfon~, Pre~Zden~
ATTEST:
~ ? ,- ./. ~/~ ,-
~illis K. Kunz, Assistant Secret~ry
-3-
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This Ins\rumenl Recorded 1911._
JUNE M, HEDGES, RECCRD "HAMILTON COUNTY,IND.
ir-L
! .1....- U~i WEIHE ENGINEERS INC.
r-o;.t;""''l:l"P''''''' V.'I~'.C"'G
- JC^~I"'H ...~.... ......~ ..... ., ..
i GA!'::.:-t.f_ . '...;:).^~ -<..... _lCl~l..all.llC.IJ,..I_ ...........
U" . .... ..
...f".....AI'Ol.II.'N!)"'...._ ~Cl..........
L"NO USf. ~r or VilLAGE. .......'.....It" ......... -.:00 .. .. ,-_......... ......;.......
rAI!::"MS DEYE\..O:"'MENT ..- ~.. .. .,.,... ,n,...ooQ._'"
KUNZ AND KUNZ
LAWYERS
~
WILLIS K. KUNZ
HAL.BERT W. KUNZ
DONALD L. SECKERICH
WILLIAM A. WADCICK
THOMAS L. MATTIX
320 N. MERIDIAN STREET
INDIANAPOLIS. INDIANA 46204
AREA 'CODE 317
632:-6367
Hay 22, 1978
Hayor Albert B. Pickett
City of Carmel
40 East Main Street
Carmel, Indiana 46032
Re: Our Pile: Hl46
Dear Mayor Pickett:
This will confirm our meeting at your office on l-1ednesday,
Hay 17th relative to the matters r?!ised in the letter from
Fred. Hohl to Village Farms, Inc., dated Uay 10, 1978. We have
exaruned Sections 54-604, 606, 608, and 610 of Burns Statutes
relating to the authority of a municipality to purchase property
of utility.within its jurisdiction and a six.-mile radius of the
rnunicipa.li ty. '):hese Sections do not support the City Engineer I s
position that Car~el has any exclusive right for water and sewer
within a si;,;-mile radius but merely establishes the right of the
municipality to acquire frOB a utility, property within this area.
We believe that Hamilton-Nestern may furnish water service to
Section 9 of the Village of Mount Carmel without interference.
This also makes sence since the water service is at the property
whereas the extension of the City service could be a substantial
expense to the city. t"7e are sending a copy of this to Fred Bohl
and Owen Kern and trust that this answers the qnestion raised
by Mr. Hohlts letter.
Hillis K.
\'lKKI jas
eCI Fred Hohl
Owen Kern
, "
COpy