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Reserved Sewer Capacity 1995City of Carmel March 30, 1995 Mr. Jeff Henson President HAMILTON WESTERN UTILITIES 1350 Greyhound Court P.O. Box 1009 Carmel, IN 46032 Re: Reserved Sewer Capacity Dear Mr. Henson: ,APR_ 5. 1995 IAV _ The following is intended to summarize the meeting that you had.with personnel representing the:City-of.Carmel on February 3, -1995, and is also intended to.provide-Hamilton Western Utilities ,with a genetal direction you can.pursue-that-.appears`agreeable to ,the City.; of :Carmel i`• _.The City.of=Carmel and Hamilton Western -Utilities disagree on the:amount of reserved capacity in the McNamara and North/South interceptor. However, from our meeting we understand that Hamilton Western Utilities is agreeable to equalizing all flow into the North/South interceptor as measured by the Village Farms meter to an instantaneous not to exceed peak rate of flow of .74 mgd. We also understand that Hamilton Western Utilities does not have flow equalizing capabilities for the discharge through the Neville Lane meter. In consideration of the incapability of equalizing flow through this meter, Hamilton Western Utilities asked that the City of Carmel allow some flexibility in the instantaneous not to exceed peak rate of flow discharges above .55 mgd through the Neville Lane meter. It is the City of Carmel's position that the agreements between the City of Carmel and Hamilton Western Utilities allows Hamilton Western Utilities to discharge an instantaneous not to exceed peak rate;of flow of .74 mgd through the Village Farms meter and an instantaneous not to exceed peak rate of flow of ._55 mgd-, through- the= Neville Lane,,meterIt-is alsocthe City of Carmel'sJpositioh-that if Hamilton Western Utilities equalizes- the.flow-to an instantaneous .not to,exceed peak rate of flow of .74-mgd through the Village Farms meter that the City of Carmel ONE CIVIC SQUARE CARMEL, INDIANA 46032 317/571-2400 is agreeable to flexibility in the discharge rates through the Neville Lane meter with the understanding that no additional significant amount of wastewater will be diverted or generated in the area serviced by the Neville Lane meter. Hamilton Western Utilities is allowed to discharge a maximum total daily volume of .55 million gallons through the Neville Lane meter with instantaneous not to exceed peak rages of flow of .6 mgd. Penalties of $100 per day will be incurred if Hamilton Western Utilities exceeds the daily volume of .55 million gallons and if Hamilton Western Utilities exceeds the instantaneous not to exceed peak rate of flow of .6 mgd. This concession does not increase the plant capacity reserved to Hamilton Western Utilities of 1.29 mgd as measured by both the Village Farms and Neville Lane meters and this agreement does not increase the total volume allowed by Hamilton Western Utilities within the City of Carmel's interceptor. It is only intended to compensate for Hamilton Western's inability to equalize flow through the Neville Lane meter. At some time in the future when Hamilton Western Utilities feels the need to install flow equalizing capabilities upstream of the Neville lane meter then the concessions to allow peak flows in excess of .55 mgd will cease. We are enclosing a proposed legal agreement form which summarizes the modifications to the agreement. The enclosed agreement also clarifies the amount of surcharges allowed by the agreement extension dated 1991. This is a sample draft only and will need some additional language added to it to clarify what it is modifying and the reason it is being modified, but I thought it was good to get into your hands a substance of what terms we would like to see in it. We have been informed that IDEM is requesting a letter from the City of Carmel indicating the City's ability to convey additional wastewater flow from Hamilton Western Utilities, Inc. At this time we feel the discharge through the Neville Lane meter is in excess of the agreed discharge rates, however, we presently have additional capacity in the interceptor that could be used by your proposed development. As you may know, we have provided you with a copy of the letter that we have forwarded to IDEM in our good faith attempt to indicate that we have no problem with those two proposed subdivisions as long as the parties can move toward a resolution satisfactory to both concerning the disagreement over reserved sewer capacity. It would be our intentions to attempt to complete this addendum, have it signed by both parties, and be in place and then we would work with you toward an additional form letter that you could have available concerning IDEM's request in the future. Please inform us if you are agreeable to the enclosed agreement or feel free to call it there are modifications you feel are necessary. GDB/kd cc: Ted Johnson, Mayor Brian Houghton Jim Dougherty Keith Gambrel Sincerely, CITY OF CARMEL Gordon D. Byers Attorney at Law Sample For Review Only Amendment to the Wastewater Service Agreement Between the City of Carmel and Hamilton Western Utilities, Inc. The City of Carmel and Hamilton Western Utilities, Inc. have entered into a Wastewater Service Agreement Dated March 23, 1984 with an Extension to the Agreement dated August 5, 1991. A disagreement has occurred concerning the capacity reserved to Hamilton Western Utilities, Inc.. This Amendment to the Agreement is intended to clarify the interceptor and plant capacity reserved to Hamilton Western Utilities, Inc.. Plant Capacity Hamilton Western Utilities, Inc. has reserved in the City of Carmel's South Wastewater Treatment Plant a capacity of 1.29 mgd (million gallons per day). The plant capacity of 1.29 mgd is measured by a combination of the Neville Lane Meter and the Village Farms Meter. The flow rate through the Neville Lane Mater shall not exceed a peak rate of flow of 0.55 (0.60') mgd or a daily volume of 0.55 million gallons and the flow rate through the Village Farms Meter shall not exceed a peak rate of flow of 0.74 mgd. The not to exceed peak rate of flow is an instantaneous rate of flow measured in units of mgd (million gallons per day). Interceptor Capacity Hamilton Western Utilities, Inc. has reserved capacity in the City of Carmel's McNamara Interceptor and North-South Interceptor. Hamilton Western Utilities, Inc. is allowed to discharge a not to exceed peak rate of flow of 0.55 (0.60') mgd or a daily volume of 0.55 million gallons through the McNamara interceptor as measured by the Neville Lane meter and a not to exceed peak rate of flow of 0.74 mgd through the North-South interceptor as measured by the Village Farms meter. The not to exceed peak rate of flow is an instantaneous rate of flow measured in units of mgd and at no time shall the flow rate into the McNamara interceptor or the North-South interceptor exceed the discharge limits stated above. Penalties A penalty of $100 per day (minus one day per month) will be incurred if the instantaneous flow rate exceeds 0.74 mgd as measured by the Village Farms meter. A penalty of $100 per day (minus one day per month) will be incurred if the instantaneous flow rate exceeds 0.55 (0.60') mgd or the daily volume exceeds 0.55 million gallons as measured by the Neville Lane meter. Surcharges In the event Hamilton Western Utilities, Inc. discharges more than 39.2375 million gallons per month in the City of Carmel's system there shall be a surcharge determined as follows: $1,836,320.00 $6.000 000.00 $7,836,320.00 20 $ 391,816.00 12 mgd $ 32,651.33 365 $ 89.46 $+ 5.66 $ 95.12 1982 Plant Costs 1991 Plant Costs Total plant costs Year Life Expectancy Plant Design Flow days per year Plant Surcharge Interceptor Surcharge Surcharge per million gallons The proposed agreement is drafted in substantive terms The procedure would be to put some legal language "whereas" clauses indicating that "due to some ambiguities in the prior agreements and disagreements the parties have resolved the dispute as follows" and set it up for proposed amendment. I am open to any review your legal counsel may have concerning that language as long as substantive terms of this sample are enclosed in that addendum. only. Kis HWIJ l HAMILTON WESTERN UTILITIES, INC; April 5, 1995 Mayor Ted Johnson City of Carmel One Civic Square Carmel, IN 46032 Dear Mayor Johnson: Certified # P016128852 As you are aware, there is currently a dispute between the City of Carmel and Hamilton Western Utilities, Inc. regarding the sewage treatment capacity due Hamilton Westem pursuant to the Wastewater Service Agreement dated March 23, 1984 and the Extension of Municipal Wastewater Service Agreement dated August 5, 1991. As of last Thursday, March 30th, I spoke with Gordon Byers on the telephone regarding a letter that was being requested by the Indiana Department of Environmental Management (IDEM) relative to two developments that had applied for a construction permit to connect to our sanitary sewer system. Gordon assured me that a letter had been sent by Jim Dougherty to Robin Feller at IDEM and Gordon faxed a copy of that letter to my office on Friday, the 31st. I have since been able to determine that Jim Dougherty has contacted Robin Feller at IDEM to retract the letter and make no commitment of capacity to serve these two developments. This is contrary to an additional letter that was faxed to me by Gordon Byers dated March 30th, a copy of which is attached, which states that a letter of approval was in fact mailed to IDEM from Jim Dougherty. Surely you can appreciate both my confusion and my deep concern relative to these actions. It appears that the City of Carmel has taken a position that Hamilton Western can be held hostage in this situation and that the City has the right to violate the terms of the agreements and refuse to acknowledge Hamilton Western's rights to capacity due under.the terms of the various agreements. The comments and actions taken by Jim Dougherty both in his letter and his telephone conversation only serve to give IDEM the impression that a substantial problem exists in the sanitary sewer treatment operations of the City of Carmel, and this will serve to harm both entities in the future. During my conversations last week with Gordon Byers, I stated that Hamilton Western was making attempts to control it's flow into the North-South interceptor in accordance with the interpretation of the City of Carmel relative to the contracts. While we disagree that the intent or the language of the contract dictates that we control the flow on an instantaneous basis as has been contended by the City of Carmel, we have made changes to our system to equalize our flow to the extent possible. Again, this is done as an act of good faith, not as 1350 Greyhound Court • P.O. Box 1009 • Carmel, Indiana 46032 • (311) 848-6882 • FAX (317) 575-9014 Page Two an admission of any violation of the contracts by Hamilton Western. We made a change in the pumps in the lift station first on around March 8th and have made another change as of Friday, March 31st. We are now not only in compliance with the contract as originally executed, but also according to the interpretation of the contract that the City of Carmel has taken: At this point in time there is absolutely no reason pursuant to either the actual contractor either parties interpretation of the contract, for the City of Carmel to withhold any letter(s) now or in the future that Hamilton Western may request for IDEM to support the issuance of construction permits to connect into Hamilton Western's sanitary sewer system. Information to verify that we have made these changes can easily be obtained by your staff at the meter station. Since we have made a good faith attempt to work with the City of Carmel to resolve these disagreements, I would expect the same good faith effort to made by the City on behalf of Hamilton Western. A telephone call should be made to Robin Feller at IDEM today for these two developments (a copy of the letter sent to IDEM from Jim Dougherty is attached) and another letter should be sent to IDEM within the next five days informing them of the capacity that Hamilton Western has remaining in your system. Please contact me at my office at 848-6882 to verify that these items have been taken care of'. Again; we are willing to continually work on solutions to this problem but must be assured that we will also receive cooperation from the City of Carmel. Sincerely, AMILTON WESTERN UTILITIES, INC. Jeff Henson, President JH/pc Encls. cc: Gordon Byers, Attorney Tom Mattix, Attorney 1350 Greyhound Court 4 Carmel, Indiana 46032-1065 4 (317) 848.6882 4 FAX (317) 575-9074 mom 571.244i FAX (317) 571.2462 CARMEL UTILITIES ONE CIVIC SQUARE P.O. BOX 1399 CARMEL, INDIANA 46032 Facilities Construction Section Indiana Department of Environmental Management 100 N. Senate P. O.Box6015 Indianapolis, IN 46206-6015 ATTN: Ms. Robin Feller RE: Additional Sewer Capacity for Hamilton Western Utilities Dear Ms. Feller. WATER UTILITY WASTEWATER UTILITY March 28, 1995 This letter is in response to Hamilton Western Utilities, Inc. recent request for a construction permit for sewer service to Pine Ridge and Quail Run Subdivisions in Washington Township, Hamilton County, Indiana_ Ibis -City of Cannel and Hamilton Western Utilities Inc: are presently in a disagreement . • over the amount of reserved sewer capacity remaining to Hamilton Western Utilities, Inc. in the City of Cannel's collection and interceptor system. We have received assurances from Hamilton Western Utilities that the disagreement can be resolved. The discharge proposed from the two developments by Hamilton Western Utilities, Inc. will be discharged through the Neville Lane meter and into the City of Cannel's North-South Interceptor where it will be conveyed to the City's Wastewater Treatment Plant. Hamilton Western Utilities. Inc. has sufficient reserved capacity in the City of Cannel's Wastewater Treatment Plant for this additional flow, The City of Carmel has sufficient capacity in the North- South Interceptor to convey the additional flow from these proposed developments. The addition of the proposed wastewater flow will not cause dry or wet weather bypassing of wastewater in the City of Cannel's interceptor or treatment system. The City of Carmel is agreeable to receiving the additional wastewater flow proposed from these two developments. 30 'd VLZ£ ELL LIE 'ON Xdd SEAN N00809 03:91 I8d 96-I£-8UW Ms. Robin Feller Page 2 March 28, 1995 We appreciate IDEM requesting this letter from the City of Carmel and ask that IDEM inform us of any additional proposed wastewater discharges into our system. Please feel free to call me if you have any further questions or concerns. JGDlpag cc: Gordon Byers Brian Houghton 60 'd 1712E ELL LIE 'ON XUd Very truly yours, 141f James G, Dougherty Utility Manager SN3A8 NOONO9 1?:St IN3 56-IE-NUW City of Carmel March 30, 1995 Mr. Jeff Henson President HAMILTON WESTERN UTILITIES 1350 Greyhound Court P.O. Box 1009 Carmel, IN 46032 Re: Reserved Sewer Capacity Dear Mr. Henson: The following is intended to summarize the meeting that you had with personnel representing the City of Carmel on February 3, 1995, and is also intended to provide Hamilton Western Utilities with a general direction you can pursue that appears agreeable to the City of Carmel' The City of Carmel and Hamilton Western Utilities disagree on the amount of reserved capacity in the McNamara and North/South interceptor. However, from our meeting we understand that Hamilton Western Utilities is agreeable to equalizing all flow into the North/South interceptor as measured by the Village Farms meter to an instantaneous not to exceed peak rate of flow of .74 mgd. We also understand that Hamilton Western Utilities does not have flow equalizing capabilities for the discharge through the Neville Lane meter. In consideration of the incapability of equalizing flow through this meter, Hamilton Western Utilities asked that the City of Carmel allow some flexibility in the instantaneous not to exceed peak rate of flow discharges above .55 mgd through the Neville Lane meter. It is the City of Carmel's position that the agreements between the City of Carmel and Hamilton Western Utilities allows Hamilton Western Utilities to discharge an instantaneous not to exceed peak rate of flow of .74 mgd through the Village Farms meter and an instantaneous not to exceed peak rate of flow of .55 mgd through the Neville Lane meter. It is also the City of Carmel's position that if Hamilton Western Utilities equalizes the flow to an instantaneous not to exceed peak rate of flow of .74 mgd through the Village Farms meter that the City of Carmel ONE CIVIC SQUARE CARMEL, INDIANA 46032 317/571-2400 is agreeable to flexibility in the discharge rates through the Neville Lane meter with the understanding that no additional significant amount of wastewater will be diverted or generated in the area serviced by the Neville Lane meter. Hamilton Western Utilities is allowed to discharge a maximum total daily volume of .55 million gallons through the Neville Lane meter with instantaneous not to exceed peak rages of flow of .6 mgd. Penalties of $100 per day will be incurred if Hamilton Western Utilities exceeds the daily volume of .55 million gallons and if Hamilton Western Utilities exceeds the instantaneous not to exceed peak rate of flow of .6 mgd. This concession does not increase the plant capacity reserved to Hamilton Western Utilities of 1.29 mgd as measured by both the Village Farms and Neville Lane meters and this agreement does not increase the total volume allowed by Hamilton Western Utilities within the City of Carmel's interceptor. It is only intended to compensate for Hamilton Western's inability to equalize flow through the Neville Lane meter. At some time in the future when Hamilton Western Utilities feels the need to install flow equalizing capabilities upstream of the Neville lane meter then the concessions to allow peak flows in excess of .55 mgd will cease. We are enclosing an agreement proposed legal agreement form which summarizes the modifications to the agreement. The enclosed agreement also clarifies the amount of surcharges allowed by the agreement extension dated 1991. This is a sample draft only and will need some additional language added to it to clarify what it is modifying and the reason it is being modified, but I thought it was good to get into your hands a substance of what terms we would like to see in it. We have been informed that IDEM is requesting a letter from the City of Carmel indicating the City's ability to convey additional wastewater flow from Hamilton Western Utilities, Inc. At this time we feel the discharge through the Neville Lane meter is in excess of the agreed discharge rates, however, we presently have additional capacity in the interceptor that could be used by your proposed development. As you may know, we have provided you with a copy of the letter that we have forwarded to IDEM in our good faith attempt to indicate that we have no problem with those two proposed subdivisions as long as the parties can move toward a resolution satisfactory to both concerning the disagreement over reserved sewer capacity. It would be our intentions to attempt to complete this addendum, have it signed by both parties, and be in place and then we would work with you toward an additional form letter that you could have available concerning IDEM's request in the future. Please inform us if you are agreeable to the enclosed agreement or feel free to call it there are modifications you feel are necessary. Sincerely, ITY OF CARMEL Gorton D. ers Attorney a Law GDB/kd cc: Ted Johnson, Mayor Brian Houghton Jim Dougherty Keith Gambrel Semple For Review Only Amendment to the Wastewater Service Agreement Between the City of Carmel and Hamilton Western Utilities, Inc. The City of Carmel and Hamilton Western Utilities, Inc. have entered into a Wastewater Service Agreement Dated March 23, 1984 with an Extension to the Agreement dated August 5, 1991. A disagreement has occurred concerning the capacity reserved to Hamilton Western Utilities, Inc.. This Amendment to the Agreement is intended to clarify the interceptor and plant capacity reserved to Hamilton Western Utilities, Inc.. Plant Capacity Hamilton Western Utilities, Inc. has reserved in the City of Carmel's South Wastewater Treatment Plant a capacity of 1.29 mgd (million gallons per day). The plant capacity of 1.29 mgd is measured by a combination of the Neville Lane Meter and the Village Farms Meter. The flow rate through the Neville Lane Mater shall not exceed a peak rate of flow of 0.55 (0.60') mgd or a daily volume of 0.55 million gallons and the flow rate through the Village Farms Meter shall not exceed a peak rate of flow of 0.74 mgd. The not to exceed peak rate of flow is an instantaneous rate of flow measured in units of mgd (million gallons per day). Interceptor Capacity Hamilton Western Utilities, Inc. has reserved capacity in the City of Carmel's McNamara Interceptor and North-South Interceptor. Hamilton Western Utilities, Inc. is allowed to discharge a not to exceed peak rate of flow of 0.55 (0.60') mgd or a daily volume of 0.55 million gallons through the McNamara interceptor as measured by the Neville Lane meter and a not to exceed peak rate of flow of 0.74 mgd through the North-South interceptor as measured by the Village Farms meter. The not to exceed peak rate of flow is an instantaneous rate of flow measured in units of mgd and at no time shall the flow rate into the McNamara interceptor or the North-South interceptor exceed the discharge limits stated above. Penalties A penalty of $100 per day (minus one day per month) will be incurred if the instantaneous flow rate exceeds 0.74 mgd as measured by the Village Farms meter. •A penalty of $100 per day (minus one day per month) will be incurred if the instantaneous flow rate exceeds 0.55 (0.60') mgd or the daily volume exceeds 0.55 million gallons as measured by the Neville Lane meter. Surcharges In the event Hamilton Western Utilities, Inc. discharges more than 39.2375 million gallons per month in the City of Carmel's system there shall be a surcharge determined as follows: $1,836,320.00 $6.000.000.00 $7,836,320.00 20 $ 391,816.00 12 mgd $ 32,651.33 365 $ 89.46 $+ 5.66 $ 95.12 1982 Plant Costs 1991 Plant Costs Total plant costs Year Life Expectancy Plant Design Flow days per year Plant Surcharge Interceptor Surcharge Surcharge per million gallons The proposed agreement is drafted in substantive terms only. The procedure would be to put some legal language "whereas" clauses indicating that "due to some ambiguities in the prior agreements and disagreements the parties have resolved the dispute as follows" and set it up for proposed amendment. I am open to any review your legal counsel may have concerning that language as long as substantive terms of this sample are enclosed in that addendum.