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HomeMy WebLinkAboutCity of Carmel/Clay RWD/Wastewater Service Agreement Approved By a r AGREEMENT AI r AS TO FORM BY'_ The City of Carmel "Carmel through its Board of Public Works and the Clay Township Regional Waste District (the "District through its Board of Trustees, enter this Wastewater Service Agreement which is premised on the following recitals: WHEREAS, Carmel and the District entered a Municipal Wastewater Service Agreement dated June 10, 1983, which was amended by the First Amendment dated January 18, 1984 and the Second Amendment dated November 18, 1987 and which was extended by the Extension dated _November 6, 1989. The original Agreement together with both amendments and the extension shall be referred to herein as the "Existing Agreement and WHEREAS, pursuant to the Existing Agreement the District has constructed, owns and operates a wastewater collection system (the "District's Collection System serving throughout the District's territorial boundaries and transports a portion of the wastewater collected to Carmel for treatment; and WHEREAS, Carmel has constructed, owns and operates a wastewater collection and treatment system (the "Carmel System serving areas in and around the corporate limits of Carmel; and WHEREAS, for purposes of the treatment service provided by Carmel to the District pursuant to the Existing Agreement, the District's Collection System is connected to the Carmel System at the Headworks Building of Carmel's Wastewater Treatment Plant (the "Connection Point and WHEREAS, pursuant to the Existing Agreement 3.0 Million Gallons Per Day (MGD) of Carmel's sewage treatment facility capacity is reserved for the District; and WHEREAS, pursuant to the Existing Agreement either party may request renegotiation if it believes that any term has become inequitable; and WHEREAS, Carmel requested such renegotiation and the parties have negotiated in good faith and agreed that the Existing Agreement should be superseded and replaced with this Agreement. NOW THEREFORE, the parties agree as follows: 1. This Agreement supersedes and replaces in its entirety the Existing Agreement. 2. Carmel shall continue to reserve 3.08 Million Gallons Per Day (MGD) of Carmel's sewage treatment facility capacity for the District. 3. Carmel agrees to accept, treat and process in a proper manner all wastewater, liquid wastes and sewage transported from the District to the Carmel System subject to the conditions hereinafter set forth in this Agreement. 4. Carmel agrees to maintain at its own expense at the Carmel treatment plant, the necessary metering and sampling equipment and all appurtenant devices for properly measuring and sampling the quantity and quality of wastewater delivered to the Carmel System by the District. This meter shall be the meter which is used for purposes of computing the charges owed by the District. As a back -up to this meter, the District agrees to maintain at its own expense at the District's Lift Station #1, the necessary metering and sampling equipment and all 2 appurtenant devices for properly measuring and sampling the quantity and quality of wastewater delivered to Carmel. 5. Calibration of all metering equipment shall be performed not less than once every twelve (12) months or by request of either party. A meter registering not more than five percent (5%) above or below the test result at full scale shall be deemed to be accurate. The previous readings of any meter disclosed by test to be inaccurate shall be corrected for the two (2) months previous to such test. If Carmel's meter should fail to register accurately for any period, the amount of wastewater treated during such period shall be deemed to be the amount of wastewater as measured by the District's back -up meter, provided the District's back -up meter registered accurately during the period in question; otherwise it shall be deemed the amount of wastewater treated in the corresponding period immediately prior to the failure. 6. The duly authorized representatives of both the District and Carmel shall have rights of access during business hours to inspect and observe the operation of the meters provided for in the preceding paragraphs hereof. The expense of operating and maintaining such meters shall be paid by the party maintaining the meter in question. Each party shall keep any records or charts from that party's meter, which records shall be subject to examination by the other party. 7. The District agrees to operate and maintain a sewage collection system, including sewers and regulating stations and other structures, as may be required to deliver the flow of wastewater, liquid wastes, and sewage from the District to Carmel. The District agrees to use all necessary precautions and diligence to exclude from wastewater, liquid wastes and sewage transported to Carmel, sand, gravel, street waste, grits, leaves, rags, paper, pickling liquor, cyanide, coal tar, oil, grease, acids, dry cleaning fluids, and any other foreign materials and 3 industrial wastes which are objectionable, dangerous, and inhibitive to bacterial growth or which for other reasons cannot readily be treated in the sewage treatment plant of Carmel or may be injurious thereto or are prohibited by the Sewer Use Ordinance of Carmel, which may be amended from time to time. Upon discovery that unacceptable substances or materials, as defined by the Sewer Use Ordinance of Carmel (Ordinance S -40), as amended from time to time, or waste or materials deemed unacceptable pursuant to rules and regulations duly formulated by the U.S. Environmental Protection Agency (EPA) or the Indiana Department of Environmental Management (IDEM), are being discharged by the District to Carmel, the District shall be notified and the District shall forthwith take appropriate steps to insure that such unacceptable materials are excluded from future discharges to Carmel. The District shall be liable for any additional costs at the wastewater treatment plant in connection with such unacceptable materials delivered from the District, including any fines or civil penalties as may be levied by the State of Indiana or EPA for noncompliance with Carmel's National Pollutant Discharge Elimination System (NPDES) permit. Upon discovery that any unacceptable substances or materials are being discharged as set forth above: (A) Either party shall immediately notify the other party of such unacceptable sewage or materials, including the location, time or times, the nature of such unacceptable sewage or waste, and such other information as may be available. (B) Upon verbal notification and confirmation thereof in writing, the District shall notify that user to immediately cease delivery of such materials and/or waste within twenty -four (24) hours and continue all necessary monitoring to assure compliance with this agreement. 4 (C) Carmel shall, in the event the District is unable to identify the location, time, and source of such unacceptable sewage, cooperate with the District in locating such source. The District will use its best efforts to correct or cut off the user delivering unacceptable waste water, liquid waste, and sewage to the parties' sewer system. (D) In the event that the user delivering such unacceptable sewage or materials through the District's connection point to Carmel sewer system cannot be ascertained within forty -eight (48) hours of first notice, then the District and Carmel shall authorize an independent emergency investigation to be instigated forthwith in regard to the matter. The District and Carmel shall fully cooperate with said emergency investigation to ascertain the user delivering such unacceptable sewage or material and severity of damage and necessary corrective actions. (E) The parties shall determine and agree as to the severity of the damage caused to Carmel's treatment facilities resulting from the discharge of such unacceptable sewage or materials. If the parties are unable to reach such agreement, then either party may within thirty (30) days after said negotiations fail, submit the matter to arbitration pursuant to Paragraph 19 herein. In addition to the expenses, civil penalties, damages, or fines for the damage to the Carmel sewage system, the expense of such investigation or arbitration shall be borne by the District. It is the intent of the parties hereto that any arbitrator selected pursuant thereto shall have experience and expertise in the particular area of disagreement. 5 (F) In the event that the parties are unable to ascertain the user delivering such unacceptable sewage or materials through the District interconnection points to Carmel, then and in that event, if an emergency exists as to the continuing damage to Carmel's treatment facilities resulting from the discharge of such unacceptable sewage or material, Carmel may seek such equitable or injunctive relief as is necessary or appropriate in a court of competent jurisdiction. (G) In the event of a finding by a Court that a party has acted arbitrarily, capriciously or in bad faith regarding the inability of the parties to resolve issues arising out of this paragraph 7, then the party who has acted in bad faith arbitrarily or capriciously shall pay the litigation expenses of the party who has not acted arbitrarily, capriciously or in bad faith. 8. The District agrees at all times to have adopted and in effect a sewer use ordinance which shall be compatible with the Carmel sewage use ordinance then in effect. 9. The District has or will enact an ordinance which prohibits the introduction of surface water and ground water inflow into its sewage system and will otherwise enforce such prohibition. 10. Carmel agrees to report to the District once each month, before the 15th day of each month, the volume and characteristics of the discharge of sewage into the Carmel system during the preceding calendar month. The characteristics measured or otherwise identified and reported shall include, but not be limited to volume and any waste constituents identified in Carmel's rate ordinance and/or sewer use ordinance. Sampling and analysis of the District's wastewater, liquid 6 wastes and sewage shall be conducted in a comprehensive way and in accordance with acceptable engineering practice so as to reflect an accurate profile of the sewage to form the basis for fair and equitable variable charges. 11. The District reserves the right to verify the reports submitted by Carmel and may conduct such verifications, in accordance with acceptable engineering standards and shall have rights of ingress and egress onto the premises of Carmel as necessary and required to examine and verify documents and records subject of such report. 12. For the services rendered by Carmel to the District, the District shall pay the following rates: (A) Volumetric Rate. A volumetric rate as shall be established by the Carmel City Council, subject to the limitations provided in this paragraph. At the commencement of the Term of this Agreement, the volumetric rate shall be $984.18 per million gallons. Through the period ending March 1, 2012, there shall be no change to this rate. After the 2 -year moratorium, and for the balance of the Term of the Agreement, the rate may be changed subject to the District's right of appeal described in Paragraph 19(C) and subject to the following: the presumptive rate change for the District shall be the same percentage change as for Carmel residential customers (e.g., if after 2 years, Carmel raises its inside -City residential rate five percent (5%) then the rate to the District would increase five percent (5%); conversely, if the inside -City residential rate is lowered, the District's rate would decrease by the same percentage). At Carmel's discretion, it could propose a lesser increase if it believed a particular increase was related to a significant collection system project as opposed to treatment. 7 (B) Minimum Charge. The District shall pay a minimum charge, which shall be computed by applying the Volumetric Charge then in effect and based upon a minimum usage of 1.75 M.G.D., calculated on a daily basis. (C) Surcharge. The District shall be entitled to transport 1,124.2 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 M.G.D. in any 3 -hour period 4.63 M.G.D. in any day 3.85 M.G.D. in any week 3.55 M.G.D. in any month In the event the District shall transport wastewater, liquid wastes and sewage to the Carmel plant in excess of these flows and in the event the Carmel plant has capacity sufficient to accept such increased amount of sewage, then the District agrees to pay to Carmel a surcharge for flow in excess of the applicable limit per the following rates: Monthly $11,845 per MGD Weekly $2,733 per MGD Daily $389 per MGD Three hour $49 per MGD All daily, weekly, and monthly flows shall be on a common time period based on the regular meter reading schedule as performed by the Carmel wastewater treatment plant personnel. Alternatively, in the event the District requires additional capacity which is not available at the Carmel plant, the District shall at its own expense fund the expansion of the Carmel treatment facility as designed and constructed by Carmel, for modular 8 expansion of the treatment facilities. Both parties understand and agree that the payments called for by paragraphs 12(A) and 12(B) of this Agreement are intended to compensate and reimburse Carmel for services rendered in the treatment and disposal of wastewater, liquid wastes and sewage from the District. Except for a reservation of capacity of the sewage disposal plant for the benefit of the District as heretofore set forth herein, such payments shall in no way entitle the District to any possessory nor proprietary rights in the sewage treatment and disposal facility of Carmel. Carmel reserves the right to operate and maintain such facility and shall have sole discretion as to the methods of operation and the necessity for and nature and extent of improvements thereto. 13. In the event wastewater, liquid wastes and sewage is received by Carmel from the District in excess of domestic loadings, BOD and suspended solids now established, then the District shall pay to Carmel the rate per pound therefore as established in the Carmel rate ordinance. In the event of future changes in the cost of treatment of suspended solids and BOD based upon the studies in conformity with EPA requirements, then the District shall be subject to any such increased or decreased charges for such excessive pollutants. In the event that future charges are made for other pollutants received by Carmel and such charges are uniformly applied throughout the region served by Carmel, then the District shall be subject to such charges. 14. The District may sell its reserved capacity in the Carmel sewage treatment facility with ninety (90) days advance written notice and subject to the prior approval of Carmel, which approval shall not be unreasonably withheld. 15. In the event the District requires additional capacity in Carmel's sewage treatment plant it may negotiate purchase of additional plant capacity temporarily or permanently from 9 Carmel or any other entity with reserved capacity in Carmel's sewage treatment plant. In the event the District requires additional capacity and cannot acquire the same from another party, the District shall at its own expense fund the expansion of the Carmel treatment facility as designed and constructed by Carmel for modular expansion of treatment facilities. Carmel and the District shall reach agreement as to the charges for treatment and disposal of the District's wastewater, liquid wastes and sewage from the additional capacity. 16. The District's Lift Station No. 1 is connected directly to Carmel's wastewater treatment facility via force main, and therefore has the potential to greatly affect the operation of Carmel's treatment plant. In order to minimize negative impacts upon treatment plant operations, the pumps and controls of the District Lift Station No. 1 shall be selected to operate at varying delivery rates. Insofar as is practicable, the District Lift Station No. 1 shall be designed and operated to deliver as uniform a flow as practicable in order to minimize hydraulic surges. 17. The District agrees to comply with all applicable provisions of the Federal Water Pollution Control Act, as amended by PL 95 -217 and PL 97 -117 and regulations promulgated thereunder, including 40 CFR Parts 35 and 403, and Indiana statutes relating to pollution abatement. Further, the District will implement any requirements of the U.S. Environmental Protection Agency with respect to conditions and limitations of grants sought by Carmel that are applicable to the District and being within the jurisdiction of Carmel. 18. 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 10 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. 19. Resolution of Disagreements. (A) The parties recognize that this Agreement puts into operation a user charge system and pollutant volume and loading restrictions, the application and results of which can be determined only by experience. The parties hereby agree that if either party believes the effect of this Agreement in any way is inequitable or unfair to its citizens, such party may by thirty (30) days written notice, request re- negotiation of any part of this Agreement and the other party will in good faith participate in such negotiations. If the parties are unable to solve their problems by negotiations, each party shall within thirty (30) days after said negotiations fail, name an independent engineer, accountant, or other person not connected with either party, who has knowledge in the disputed areas. The two named arbitrators shall name a third person to serve and the three arbitrators shall determine the unresolved issues between the parties. The judgment or findings of a majority of the arbitrators shall be binding upon the parties and a final determination of all unresolved issues. During this period of re- negotiation and /or arbitration, the District shall continue to meet its financial obligations to Carmel in accordance with the provisions of this Agreement, and Carmel shall continue to accept and treat the District's sewage. 11 The expense of such arbitration shall be borne jointly and equally by the disputing parties. It is the intent of the parties hereto that any arbitrator selected pursuant hereto shall have experience and expertise in the particular area of disagreement. (B) Notwithstanding Paragraph 19(A), all disputes regarding charges computed under paragraph 11 shall be resolved ultimately by (i) a Court of competent jurisdiction or, (ii) if the parties mutually agree, by arbitration pursuant to Paragraph 19(A) hereof. (C) If District's rates are to be increased, Carmel will provide ninety (90) days advance written notice of any proposed increase. A verified statement detailing the treatment expense and calculation of the rate shall be provided to the District. In addition, the District shall have the opportunity to examine the books and records of Carmel pertaining to the costs. If District disputes the presumptive across- the -board increase on the basis that it believes the increase is caused by a significant collection system project as opposed to increases in the cost of treatment, the District has the right to appeal the rate increase (i) by filing a petition pursuant to I.C. 36 -9 -23 -26.1 initiating a proceeding before a court of competent jurisdiction, or (ii) if the parties mutually agree, by arbitration. Carmel shall have the right to proceed with such increase even if disputed but shall refund disputed payment within fifteen (15) days of any decision favorable to the District together with interest at a rate equal to the maximum Rural Development rate in effect at the resolution of such dispute. 20. The Term of this Agreement shall commence as of the date last executed and shall expire January 1, 2021. At that time, the term will automatically extend to January 1, 2031, 12 unless prior to December 31, 2018, either party has provided written notice to the other of an intent not to extend the term. 21. 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 a return receipt. Notice required or given as provided in this Agreement shall be provided to the following: To Carmel: Utilities Director 760 Third Avenue Southwest Carmel, Indiana 46032 With a copy to: City Attorney One Civic Squre, Third Floor Carmel, Indiana 46032 To the District: 22. 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 acts of the party. 23. This Agreement shall be governed by the laws of the State of Indiana. 24. No amendment or modification of this Agreement shall be effective unless contained in a written document executed by Carmel and the District. 13 25. 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. 26. This Agreement may be executed in several counterparts, each of which shall be an original. 14 IN WITNESS WHEREOF, the District has caused this Agreement to be signed in its name by its Board of Trustees and attested by the Secretary thereof; and Carmel has caused this 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 QG-i- 11 a6 ID By: By: it Al //A ayor James Bfa 41h. Gaiv,LooNkt/)L______ .e Lori atso ry A Burke Its Board of Public Works ‘7 c4/ 2 2/v4-7-.-%___ /24. a /97 49 Its Board of Trustees INDS01 NKK 1183671v7 15 CITY OF CARMEL, INDIANA BY ITS BOARD OF PUBLIC WORKS AND SAFETY James Brainard, Presiding Officer Date: Mary Aim Burke, Member Date: Lori Watson, Member Date: ATTEST: Diana L. Cordray, IAMC Clerk- Treasurer STATE OF INDIANA SS: COUNTY OF Before me, a Notary Public in and for said County and State, personally appeared James Brainard, Mary Ann Burke, and Lori Watson, by me known to be the Members of the City of Carmel Board of Public Works and Safety, and Diana L. Cordray, Clerk- Treasure of the City of Carmel, who acknowledged the execution of the foregoing "Agreement" on behalf of the City of Carmel, Indiana. Witness my hand and Notarial Seal this day of 2010. NOTARY PUBLIC My Commission Expires: Printed Name My County of Residence: Date: