HomeMy WebLinkAboutSewer Line/Mohawk Crossing/Lumber Mart/City/BPWAGREEMENT CONCERNING SEWER LINE
THIS AGREEMENT CONtERNING SEWER L~NE ("Agreement")
has been entered into by Mohawk Crossing, Ltd., an Indiana
limited partnership ("Mohawk"), Lumber Mart, Inc., an
Indiana corporation ("LMI"), and the City of Carmel, Indiana,
acting by and through its Board of Public Works ("City'").
Recital's
A. Mohawk is. the owner of certain rea]. estate in
Carmel, indiana, more particuiarly described in Exhibi't A
to this Agreement ("Mohawk Real Estate").
B. LMI is the contract purchaser of certain real
estate in Hamilton County, Indiana, more particuIarly described
in Exhibit B to this Agreement ("LMI Real Estate").
C. Mohawk's development plans contemplate the
construction of a sanit~ry sewer line and appurtenances,
including a lift station, extending from a lJoint-near
the southern boundary of the'Mohawk Real Estate to a
point ~ear the northern boundary of the Mohawk Real Estate
(~'North'Point"), as shown on Exhibit C to this Agreement
('"Plans"). Mohawk, LMI, and the C~ty intend that this sewer
Iine ("Mohawk SeWer Line") wiI1 serve both the Mohawk Real
Estate and the LMI Real Estate ("Involved Real Estate").
The Mohawk Sewer Line is designed for greater c.apacity
than would be the case if it served only the Mohawk Real
Estate.
D. · Mohawk has already constructed a pQrtion
of the Mohawk Sewer Line, from a point near the southern
boundary of the Mohawk Real Estate to a point within~
Section 1. In constructing that completed portion, Mohawk
incurred an oversizing cost (i.e., the excess of the cost
of constructing the Mohawk Sewer Line to serve the Involved
Real Estate rather than only the Mohawk Real Es'tare), the
exact amount of which has not yet been determined.
E. LMI desires to connect to the Mohawk Sewer Line
a 'Jkwer line to be located on and to serve the LMI Real
Estate. LMI may desire to !hake that connection before
Mohawk's development plans contemplate completion of the
Mohawk Sewer Line to 'its northernmost po{nt ("North Point")
F. Mohawk and LMI intend by the Agreement to
'provide, under the circumstances and on the terms and con-
ditions specified in this Agreement, for LMI's completion
of construction of the Mohawk Se~er Line to the North Point
and connect~ion of the Mohawk Sewer Line at the North Point
to the play, ned sewer line on the LMI Real[ Estate.
G. The City requires that Mohawk pay a sewer
availability charge for each acre of the Mohawk Real Estate,
calculated ~ccording to ~pplicable provisions of Carmel
Sewer Ordinance S-20, as amended, and that LMI pay such a
.charge fgr,.each acre.of.L~I._Real Estate, calculated in the
same manner ("Availability Charges").. Mohawk has already
paid the portion of the Availability Charges attributable
to Section 1, which was,S5,276.
all
H. Mohawk, LMI, and the City desire to make
the Availability Charges for the Involved Real Estate
available to repay Mohawk and LMI, as provided in this
Agreement, for the oversizing costs of the Mohawk Sewer
Line.
Therefore, in consideration of the promises set
out in this Agreement and other valuable consideration;
Mohawk, LMI, and the City hereby agree as follows:
'' .... 1. ~ Mohawk h'e~-eb~"gr'JJt's LMI the r. ighq to enter .
upon t~ 'Mohawk Real Estate" and construct the Mohawk Sewer
Line on the fgllowing terms and conditions:
1.1. At such time as [,MI deems appropriate,
LMI shall obtain a written bid, from a contractor
acceptable to Mohawk ("Contractor" fo~' the comp].ekion
of the Mohawk Sewer Line.
]..2. Mohawk shall have the r~.ght to review
and approve that bid. In exerc:i, si~g thit ~ight,
Mohawk shall act promptly and in good faith.
1.3. Promptly after Mohawk approves the
bid, Mohawk and LMI shall, agree 'on a division
of the cost of construction ("Cost") between
(a) the Basic Cost, reflecting a'n estimate
of what tl{e construction
if the Mohawk Sewer Line
Real Estate rather than
cost wo[lld have been
served only the Mohawk
the Involved Real Estate,
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and ()~) the O~e~sizing Cost, reflecting the
difference between the Cost and the Basic Cost.
In making this division, Mohawk and LMI shall
consider all material factors, including but.
not ].imited to any increased pipe size and
depth, increased excavation~ and increased
amonnt of fill res~lting from constructing
the Mohawk Sewer Line at a capacity adequate
for the Involved Rea]. Estate rather tha~n only
the Mohawk Real Estate. Both Mohawk and LMI
shall negotiate in good faith and without
delay. Interest expense
in determining the Cost,
the Oversizing Cost.
1.4. LMI shall contract with the
Contractor for the completion of the
Mohawk Sewer Line; shall cause the Contractor
to complete construction of the Mohawk Sewee
Li.ne, including "Y" fittings and laterals
to individual lot lines, appropriate markers,
and other appurtenances deemed necessary by
Mohawk; and shall pay the Contractor the Cost
when due under the contract between LMI and
the Contractor. Engineering, staking, and
inspection services shall], be done by Paul I.
Cripe, Inc., or such other person or entity
designated by Mohawk, and the cost thereof
shall not be included
the Basic Cost, or
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shall
be
inclnded as part of the Basic Cost.
LMI shall promptly pay all bills relating to
the Cost submitted in connection with work
authorized hereunder, including, without
limitation, bills relatSng to engineering,
staking, and inspection services° All
engineering costs incurred by Mohawk in
Connection with the negotiation of this
Agreement and the performance of Mohawk's
obligations hereunde~ shall be paid by
LMI and shall be deemed' Oversizing~Costs
1.5. LMI shall cause the Cont'ractor' to..
construct the Mohawk Sewe~ L~ne in conformity
with the Plans, as determined by Mohawk and
~its engineer, and so as to be acceptable to
the City. ~.~
1.6. If the actual cost of construction
exceeds the amount agreed on pursuant to sub-
paragraph 1.2 and ]..3, LMI shall pay the excess
as required by subparagraph 1.4. Mohawk and
LMI shall agree on a division of the excess
between Basic Cost and Ove~sizing Cost,
as described in subparagraph 1.3.
]..7. All work relating to construction
of the Mohaw~ Sewer Line shall be completed
within 180 days afte~ commencement of such
construction.
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1.8. All work in connection with
constrt~ctJon of the Mohawk Sewer Line shall
be done pursuant to a valid no-lien contract
or LMI shall provide such security as Mohawk
may reasonably require to protect Mohawk
against any mechanic's or materialman's lien
attaching to the Mohawk Real Estate. LMI
shall indemnify and hold Mohawk free and
harmless from 'and agaihst any cost or
expense incurred-by Mohawk in connection
with, related~ i6, or a~i~in~::f~0m~:tl~e:i-'-con~.{.?.~
· struction of the Mohawk S~wer'Line..except'~
for the Basic Cost.
2. Mohawk shall execute such inst~u~}~ents and
perform such acts as are necessary or appropriate to
enable LMI ~o compl~te¥~he.c0nstruction of the Mohawk Sewer
Line as con'templated by paragraph 1, .including the execution
of necessary easements and obtaining authorizations from
other persons with interests in the Mohawk Real Estate.
Mohawk sha].l fully cooperate with LMI and the Contractor
in the cons.truction of the Mohawk Sewer Line.
3. Mohawk shall repay LMI the total amount 'of
the Basic Cost paid by LMI pursuant to paragraph 1, in-
cluding subparagraph ]..6. Mohawk shall repay that amount
in the fol.-lowing manner:
3.~'. If the Mohawk Sewer Line has been
accepted for maintenance by the City and
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"as built" drawings detailing the location
of manholes, laterals, etc., have been
~provided to Mohawk, then within 30 days
after Mohawk begins any road grading or
road construction in Section 2 or sells
any part of its interest in Section 2,
Mohawk Shall pay LMI ~4% of the Basic Cost.
3.2. If the Mohawk Sewer Line has
been accepted for maintenance by the City and
"as 'built" drawings detailing the location
of manholes, laterals, etc., have.'b~en ~rb~id~d'~
to Mohawk, then within 30 days after, Mohawk~
begins any road grading or road construction
in ~ection 3 or sells any part of its interest
in Section 3, Mohawk shall pay LMI 56% of
the Basic Cost. .~:~]~
3.3, If the c~nditions~precedent to
Mohawk's obligation to pay all or a portion
of the Basic Cost pursuant to Sections 3.1
or 3.2 have not been satisfied at the time
payment would otherwise be due thereunder, then
Mohawk shall pay the Basic Cost within 30 days
after such conditions precedent have been
satisfied.
4. Mohawk hereby grants LMI the right to use the.
Mohawk Sewer Line to serve the LMI Real Estate and to coJnect
the Mohawk Sewer Line at the North Point to the sewer
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LMI plans to construct on the LMI Real Estate. LMI sh~ll
pJy all costs of the ' "
connect.~.on. Promptly after making
the connection, LMI sl~all remove all excess dirt and debris
that accumulated as a resu].t of making the connection and
shall restore the Mohawk Real Estate to the condition it
was in :i. nunediately before the connection.
5. The City shall, in the following manner,
compensate Mohawk and LMI for oversizing costs of the
Mohawk Sewer Line, to the extent that Availability Charges
attributaD].e to the Involved Real Estate and other avail-
able fees are adequate and in ~hc~ord~n~'e:with~ hpplicabl'e~,
provisions of Carmel Sewer Ordinan6e: S-20,"a's 'am'endecl
5.1. First, to compensate Mohawk for
the oversizing costs of the portion of the
Mohawk Sewer Line :i.n Section l, the City shall
either p~y ~Iohawk the amount of-tho~e'oveus~.z..ng
costs 'from Availability Charges' paid by Mohawk
or al.].ow tliat amount as a credit against ft~ture
Avail. ability Charges payable by Mohawk.
5.2. Second, the City shall either pay
LMI the Oversizing Cost paid by LMI in respect
of the Mohawk Sewer Line pursuant to this
Agreement or allow that amount as a credit
against fut,,~re Availability Charges payable
by [.,MI.
5.3. In determining the amount available
for. payment under this paragraph, the City shall
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consider all Availability Charges paid in respect
of the' Involved Real Estate, whether paid'by
Mohawk or LMI, as available for reimbursement
pursuant to this paragraph 5, up to the .amount
eligible for oversizing cost refunds.
6. Each party acknowledges that it is important
to the other party and the development plans for the o'ther
party's real estate that each pary act promptly and in
strict compliance with the provisions of this Agreement in
performing fhe acts contemplated under~ t~is Agreement ....
terminate
,7i~J~ ~ At-.~ the ~ opt~6n ~of MohaWk{~ this ~'A~reement~- sha].:l,
i~'.' LMIi doest: hot~comme~hce coh.stfuction' o~''~ the.
extension of
1979.
8.
of and be binding'~om the su¥ces~sors
the Mohawk Sewer Line on or before Sqptember 1,
This Agreement shall inure to the benefit
and as'signs 'of- the-,parties:
- to the Agreement.
Mohawk, LMI, and the City have executed this
MOHAWK CROSSING, LTD.
General Manager
ATTEST:
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LUMBER MART, INC.
ATTE ~
THE CiTY OF CARMEL, INDIANA,
acting through its Board of
Pub].ic Works
~ ~ ¥ ' ~ - Ma~or~
City Attorney
City Cngi,neer
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