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HomeMy WebLinkAboutWastewater Extension/Carmel/Clay Twp ,.-"'.-; " \ \ \ EXTENSION OF MUNICIPAL WASTEWATER SERVICE AGREEMENT BETWEEN THE CITY OF CARMEL AND THE CLAY TOWNSHIP REGIONAL WASTE DISTRICT FOR EXPANSION OF CARMEL'S SOUTH WASTEWATER TREATMENT PLANT THIS EXTENSION AGREEMENT, made and entered into this . & day Of~989, by and between the City of Carmel, a municipal corporation in Hamilton County, Indiana, by and through its Board of Public Works (hereinafter referred to as "CARMEL") and the Clay Township Regional Waste District, a sewer district in I Hamilton County and Boone County, Indiana, by and through its Board of Trustees (hereinafter referred to as "DISTRICT"). WITNESSETH THAT: WHEREAS, the parties are operating under the terms of a Municipal Wastewater Service Agreement dated June 10, 1983, as amended, (hereinafter referred to as the "Service Agreement"); and WHEREAS, the District has connected its sewer system to Carmel's sewage treatment and disposal facilities and is now transporting its sewage to Carmel's South wastewater Treatment Plant (hereinafter referred to as the "Treatment Plant") for treatment; and WHEREAS, the "Service Agreement" provided the basic framework for capital cost sharing by the parties relative to the Treatment Plant including the past local cost incurred by Carmel in the construction of the Treatment plant and its local costs in expanding the Treatment plant under the final regional facilities Extension Agreement Page 2 plan as approved by the U.S. Environmental Protection Agency as referenced in said Service Agreement; and WHEREAS, the District has heretofore notified Carmel of its need for an additional One (1) Million Gallons Per Day (1.0 M.G.D.) of capacity at the Treatment plant and has indicated to Carmel that it is willing to financially participate with Carmel in constructing an additional modular expansion of the Treatment plant as contemplated by paragraph 12(C) of the Service Agreement; and WHEREAS, Carmel is willing to satisfy and accommodate its own needs and the needs of the District by designing and constructing said modular expansion (hereinafter referred to as the "Project"), subject to the terms and conditions of this Extension Agreement. NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, the parties agree that: ARTICLE I The proiect 1.1 In order to meet the growing and expanding treatment capacity needs of the District and Carmel, Carmel shall design" construct and install additional improvements to the Treatment plant which will increase the rated capacity of said Treatment plant by a factor of three (3) M.G.D. all of which will be accomplished in accordance with plans and specifications which , , Extension Agreement Page 3 have been prepared by Carmel's consulting engineer, Commonwealth Engineers, Inc. 1.2 The design, construction and installation of the expanded Treatment plant facilities are hereafter referred to as the "Project", and the facilities to be constructed and installed are hereafter referred to as the "Improvements". 1.3 Carmel shall, to the extent reasonably practicable, schedule the construction of the Improvements so that the Project will be completed on or before January 1, 1991, or as soon thereafter as the same can be completed. ARTICLE II Project Costs 2.1 The costs of the Project and Improvements ("Project Costs") shall consist of: (a) the amounts paid or incurred by Carmel to Commonwealth Engineering, Inc. for services rendered and advancements made in connection with the design of the Improvements to be constructed and installed, the preparation of the plans and specifications for said Improvements and the supervision and inspection of the installation and construction of said Improvements. (b) the actual costs incurred by Carmel in constructing and installing the Improvements, including amounts paid to contractors and subcontractors selected by Carmel to construct and install the Improvements. (c) the actual costs incurred by the District for legal and administrative services in connection with the negotiations leading to and the preparation of this Extension Agreement, provided, however, that no more than Five Thousand Dollars ($5,000.00) of such amount shall be included in the Project Costs. , . Extension Agreement Page 4 (d) the actual costs incurred by Carmel for engineering, legal and administrative services rendered in connection with the negotiations leading to this Extension Agreement and securing all regulatory permits and approvals.to construct the improvements, all land acquisition and easement costs incurred by Carmel for the apppropriation of additional land to construct the Improvements, and the actual costs incurred by Carmel for engineering and administrative expenses in connection with the procurement of a legally binding construction contract including, by way of illustration and not by way of limitation, the advertisement for construction bids. 2.2 The Project Costs shall consist of only those amounts, as listed in paragraph 2.1~ reasonably and netessarily incurred in order to complete the Project in accordance with Carmel's design and plans and specifications. 2.3 The estimated Project Costs are shown on Exhibit "A" to this Extension Agreement. ARTICLE III Source of Funds to Complete Proiect 3.1 It is estimated that the actual Project Costs will be approximately $5.5 Million. Carmel agrees to be responsible for and provide two-thirds (2/3) of the funds needed to complete the Project and the District agrees to be responsible for and provide one-third (1/3) of the funds needed to complete the Project. 3.2 In order to obtain funds to pay for its portion of the Project costs, it will be necessary for the District to issue and sell Revenue Bonds in accordance with I.C. 13-3-2-17. In connection therewith, Carmel agrees to cooperate and furnish the Extension Agreement page 5 District with all information and documentation deemed necessary to facilitate the District's ability to issue and sell such Bonds, including by way of illustration and not by way of limitation, affidavits, certificates and statements relative to (i) construction bidding, (ii) award of certificates, (iii) permits and (iv) contract payment schedules. 3.3 As of the date of this Extension Agreement, Carmel represents and warrants that it has the financial capability of providing for its share of the funds needed to complete the Project. ARTICLE IV Pre-Construction Procedure 4.1 Carmel has completed the detailed plans and specifica- tions for the Improvements and submitted the same to all regulatory agencies for review and approval. The District shall be furnished, at no charge to the District, with one complete copy of all such documents for its own internal review and records. 4.2 If Carmel is requested to amend or modify its design and/or plans and specifications by the Indiana Department of Environmental Management (I.D.E.M.) or other state or federal agency having regulatory authority over the Project and if such amendment or modification is deemed a condition precedent to securing construction permits or other regulatory approvals necessary for construction of the Improvements, then Carmel shall Extension Agreement Page 6 have the right to make such amendments or modifications with or without the District's consent, so long as such action would not appear to materially increase the Project Costs. In the event that such amendment or modification would likely result in a material increase in the Project Costs, then Carmel and the District shall jointly agree to such amendment or modification prior to complying with the request of I.D.E.M. (or other state or federal agency having regulatory authority over the Project). For purposes o.f this Article, a material increase in Project Costs shall be considered an increase in the estimated project costs of $400,000.00 or more. 4.3 Carmel agrees to advertise for and receive construction bids for the Project in accordance with Indiana law. Prior to awarding any tentative contract pursuant to such bids, Carmel shall allow the District, or the District's representative, a reasonable period of time to review such bids for the purpose of enabling the District to determine the financial feasibility of moving forward with the Project. It is understood and agreed that the District shall indicate by written notice to Carmel, within seven (7) days of receipt of bid tabulations or cost summaries for its review, of the District's ability to move forward with the Project. In the event that the District determines that it is financially feasible to fund its share of the Project Costs as described in Article II hereof, Carmel shall be authorized to award construction contracts subject to the Extension Agreement page 7 District's ability to secure adequate financing within one hundred twenty (120) days of the bid date and subject to such other contingencies deemed proper and appropriate by Carmel to protect its interests with respect to the obligations assumed and liabilities to be exercised by reason of such contract. Notwithstanding anything to the contrary contained herein, Carmel may proceed to enter into construction contracts for the expansion of its wastewater treatment plant without the District's participation under this Agreement or consent should the District be unable to secure adequate financing as contemplated herein. 4.4 Nothing herein shall be construed to obligate Carmel to enter into a construction contract on account of the construction bids referenced herein, it being expressly understood and agreed that Carmel will reserve the right to reject any and all bids received as a result of its advertisement. Carmel does agree, however, to readvertise for such construction bids if all initial bids are rejected and the District requests Carmel to readvertise. 4.5 The District agrees to use its best efforts to issue and sell its revenue bonds, the proceeds of which will be used, in part or in whole, to fund its obligations hereunder. It is agreed that Carmel shall, at all times, be kept informed and advised as to the status of the District's' proposed revenue bond issue and sale and shall be notified in writing as of the date Extension Agreement Page 8 said sale has been completed and funds are therefore available for purposes of paying for the District's share of the Project Costs. In the event the District is unable to sell said revenue bonds, or otherwise secure adequate financing to pay for its share of the project costs, then this Agreement may be terminated by either party by giving written notice thereof to the other party; provided, however, the District shall be required to pursue financing upon written request by Carmel, including readvertisement for the sale of bonds with such alterations and modifications deemed appropriate and financially feasible to secure such financing. If the District terminates said Agreement because of its inability to sell revenue bonds, the District shall pay to Carmel one-third (1/3) of the amounts actually expended or incurred by Carmel through the date of the termination notice in connection with the activities described in paragraphs 2.1(a) and 2.1(e). ARTICLE V Proiect Construction 5.1 The Improvements shall be constructed and installed under the supervision and subject to the approval of Commonwealth Engineering, Inc. or such other competent engineer as shall be designated by Carmel. All estimates for work done or material furnished shall first be checked and certified as proper by the engineer and approved by appropriate claim voucher by the Board Extension Agreement Page 9 of Public Works. 5.2 No change orders or modifications to the construction contract for the construction and installation of the Improvements shall be effective unless the same is approved in writing by Carmel. It is expressly understood and agreed that Carmel shall have the right to enter into such change orders or modifications with or without the consent of the District so long as such action would not appear to materially increase the Project Costs. In the event that such change order or modification does result in a material increase in Project Costs, then Carmel and the District shall jointly agree to such change order or modification. For purposes of this Article, a material increase in Project Costs shall be considered an increase which, when added to previous adjustments, would cause the engineer to revise the estimated project costs, including construction contingencies, to an amount greater than 103% of the final estimate as determined by Carmel's engineer following the award of a construction contract for the Project or $25,000.00 with respect to any individual change order. In addition to the requirements stated above, Carmel agrees that it will not agree to any project change order without the concurrence of the District, which would: (a) significantly alter the Project performance standards; Extension Agreement page 10 (b) significantly alter the type of wastewater treatment provided by the Project; (Cl significantly delay the Project schedule; or (d) substantially alter the design, plans and specifications, or the size, capacity, or quality of ~ny major part of the project. ARTICLE VI Accounts and Accounting 6.1 After Carmel receives construction bids and the parties determine to proceed with the Project by awarding contracts to the lowest and most responsible bidder, Carmel's Consulting engineer shall prepare and delIver to the District a final estimate of the Project Costs (with constructions contingencies) together with a schedule reflecting the amount of Project Costs which will reasonably be expected to be disbursed during each month during the period of construction and installation work for the Improvements. 6.2 Prior to start of construction Carmel shall create, maintain and administer a special "Plant Expansion Project Account" (hereinafter referred to as "Project Account") which shall be separate and apart from other accounts of Carmel. The parties agree that such Project Account will be used for receipts and disbursements by Carmel in administering and supervising the Project. To the extent moneys held in the Project Account are invested, all moneys deposited to the credit of said Project Account shall be deposited, held, secured or invested in Extension Agreement Page 11 accordance with the laws of the state of Indiana relating to the depositing, holding, securing or investing of public funds. Any income from such investment shall be deposited in the Project Account. It is expressly understood and agreed that the funds in said Project Account shall be expended only for the purpose of paying for Project Costs as defined in Article II hereof. 6.3 It is agreed that the Project Account shall initially be funded by an amount equal to the Project Costs actually expended or incurred through the date said Project Account is established, plus an amount equal to the first three (3) months of expected expenditures during the period of construction and installation of the Improvements referenced in the Engineers' Schedule referenced in Section 6.1 hereof. The District agrees to pay Carmel for its one-third share of such initial funding and Carmel agrees to deposit such payment into the Project Account. The remaining two-thirds of the initial funding of the Project Account shall be deposited by Carmel in said Project Account, it is being understood and agreed that Carmel shall be credited with its share of Project Costs previously paid. 6.4 It is the intention of the parties to maintain a balance of funds in the Project Account equal to the amounts reasonably expected to be paid during each succeeding three (3) month period of construction and installation of the Improvements. Therefore, the District agrees to pay Carmel each quarter its proportionate share of the Project Costs to maintain such level of funding for Extension Agreement Page 12 the Project. Carmel agrees to accept and deposit the District's payment together with its own proportionate share of the Project Costs, into the Project Account. For the purposes of making such payments and deposits the Parties shall rely upon the Engineer's Schedule referenced in Section 6.1 hereof. 6.5 Carmel shall keep and maintain accurate records concerning the Project Costs including progress payments made to contractors and shall provide the District with all financial reports normally and customarily maintained for public works projects of this nature. After each three (3) month period of construction and installation of the Improvements, Carmel shall make appropriate adjustments and modifications to the estimated Project Costs and the schedule of remaining expenditures. In addition, Carmel shall provide the District with an invoice and claim for additional Project Costs due if more than the estimated expenditures of Project Costs were actually made during such preceeding three (3) month period. In such case, the District shall, within thirty (30) days, pay to Carmel its proportionate share of Project Costs and Carmel shall deposit such payment in the Project Account together with its own proportionate share. 6.6 In the event any funds remain in the project Account following the payment by Carmel of all the Project Costs, said funds shall be paid over to the parties hereto in accordance with the allocation of project funding as set forth in Section 3.1. Extension Agreement Page 13 ARTICLE VII Treatment Plant. Capacity 7.1 It is agreed that at the commencement of this Agreement, 2.08 M.G.D. of capacity of Carmel's sewage treatment facility is reserved to the District. Upon completion of the construction and installation of the Improvements the District's share bf the Treatment Plant capacity shall be increased to 3.08 M.G.D. To utilize this increased capacity the District shall be entitled to transport 1124.2 million gallons of wastewater, liquid wastes and sewage to Carmel each year at a peak rate of flow not to exceed the following rates: 6.16 4.63 3.85 3.55 M.G.D. in any 3-hour period M.G.D. in any day M.G.D. in any week M.G.D. in any month 7.2 In the event the Treatment plant (as expanded under this Agreement) is rerated to a capacity other than that contemplated by this Agreement, the District's allocated capacity in the faci- lity shall be proportionately reduced or increased without capi- tal cost changes as of the date of rerating by Carmel. ARTICLE VIII Representations of the District 8.1 the District represents and covenants that: (a) The District is a duly organized and validly Extension Agreement page 14 existing Regional Waste District with full power and authority under I.C. 13-3-2-1, et seq. to con- sumate the transactions contemplated herein; (b) The consumation of the transactions contemplated herein and the performance of this Agreement will not, to the best of the District's knowledge and belief, result in any breach of, or constitute any default under the District's charter or other constituent instruments, any law, regulation or order of a governmental body or court having juris- diction, any bank loan, credit agreement or other instrument to which the District is a party or by which it may be bound or affected; (C) Unless mandated by a statute enacted subsequent to the execution of this Agreement or a decision of a court of competent jurisdiction, the District will not take any action which will adversely affect the rights or interests of Carmel under this Agreement; and (d) The District shall take all appropriate and reasonable steps to insure that it will be able to discharge its obligations under this Agreement. Extension Agreement Page 15 ARTICLE IX Representations of Carmel 9.1 Carmel represents and covenants that: (a) Carmel is a municipality with full power and authority under Indiana law to consumate the transactions contemplated herein; (b) The consummation of the transactions contemplated herein and the performance of this Agreement will not, to the best of Carmel's knowledge and belief, result in any breach of, or constitute any default under Carmel's charter or other constituent instruments, any law, regulation or order of a governmental body or court having jurisdiction, any bank loan, credit agreement or other instrument to which Carmel is a party or by which it may be bound or affected; (c) Unless mandated by a statute enacted subsequent to the execution of this Agreement or a decision of a court of competent jurisdiction, Carmel will not ( take any action which will adversely affect the rights or interests of the District; and (d) Carmel shall take all appropriate and reasonable steps to insure that it will be able to discharge its obligations under this Agreement. Extension Agreement page 16 ARTICLE X Miscellaneous Provisions 10.1 The parties do hereby reconfirm, ratify and adopt their June 10, 1983 Service Agreement, as amended, referenced in the first recital to this Extension Agreement. To the extent and degree that the June 10, 1983 Service Agreement, as amended, is not in conflict with the specific terms and provisions of this Extension Agreement, then the said June 10, 1983 Agreement, as amended, shall remain in full force and effect. All such prior agreements or parts of agreements in conflict with any of the provisions of this Agreement, however, are hereby expressly superceded and repealed. 10.2 Any notice given in accordance with this Agreement shall be deemed to have been duly given or delivered on the date the same is personally delivered to the recipient or received by the recipient as evidenced by the return receipt. 10.3 Neither this Agreement, nor any of the acts of the parties hereunder, shall be deemed to create a joint venture, partnership or other arrangement by which one party might be deemed to be the agent of or vicariously liable for the acts of the other party, and each party agrees to indemnify and hold the other harmless from any loss, damage or liability of such other party arising vicariously because of the acti of the party. 10.4 This Agreement shall be governed by the laws of the State of Indiana. . . Extension Agreement Page 17 10.5 No amendment or modification of this Agreement shall be effective unless contained in a written document executed by Carmel and the District. 10.S Failure of a party hereto to insist upon strict performance of the provisions of this Agreement shall not be construed as a waiver of any subsequent default or breach of the same or similar nature. 10.7 The parties agree that in the event any provision of this Agreement is declared unacceptable or unenforceable by any regulatory agency exercising its appropriate authority, the remainder of the Agreement shall remain in full force and effect and the failing provision(s) shall be amended by good faith negotiations between the parties to cure any such default. Moreover, in the event any provision of this Agreement is declared unlawful or unenforceable by a Court of competent jurisdiction, the remaining provisions of this Agreement shall remain in full force and effect. 10.8 This Agreement shall become effective on the date executed by the parties and shall continue for a period of 20 years thereafter or until all bonds issued by the parties to finance the construction of their sewers and sewage disposal system are paid in full, whichever period is longer. 10.9 This Extension Agreement may be executed in several counterparts, each of which shall be an original. Extension Agreement page 18 10.10 This Extension Agreement shall be transmitted to the Indiana Department of Environmental Management for approval pursuant to Indiana law. IN WITNESS WHEREOF, the District has caused this Extension Agreement to be signed in its name by its Board of Trustees and attested by the Secretary thereof; and Carmel has caused this Extension Agreement to be signed in its name by its Board of Public Works and attested by the Clerk/Treasurer of the City of Carmel. CITY OF CARMEL /CLAY TOWNSHIP REGIONAL WASTE DISTRICT By: ~7~~ ~~ ~?ft!P By: 7Y!f'tdll ~~ . uJ~~2~( cb /~ //1. r:u Its Board of Public Works ~~~ . -"'; / ,:;;~~2'~ Its Board of Trustees Extension Agreement ATTEST: Dated: It, J/&/ftf { . ATTEST: SUSAN W. JONES CLERK-TREASURER ATTEST: page 19 ?'----. - Secretary Dated: 6J~ ~ If .f:9'. , COUNCIL OF THE CITY L, INDIANA