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1991 Extension of Wastewater ServicesEXTENSION OF MUNICIPAL WASTEWATER sslVICTB�R EHT F Ete BETWEEN THE CITY OF CARMEL AN)j1AMIL FOR EXPANSION OF CARMEL'S SOU REATMENT PLANT THIS EXTENSION AGREEMENT, made and entered into this octttl 1927_, by and between the CITY OF day of CARMEL, a municipal corporation in Hamilton County, Indiana, by and through its Board of Public Works (hereinafter referred to as 'Carmel"), and HAMILTON WESTERN UTILITIES, INC., an Indiana corporation engaged in operating a private sewer and water utility under authority from the Utility Regulatory Commission of Indiana (hereinafter referred to as "Hamilton Western"); WHEREAS, the parties are operating under the terms of a Municipal Wastewater Service Agreement dated March 23, 1984, as amended (hereinafter referred to as the "Service Agreement"); and WHEREAS, Hamilton Western 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 expansion of the Treatment Plant; and WHEREAS, Hamilton Western has heretofore notified Carmel of its need for an additional four hundred thousand gallons per day (0.40 M.G.D.) of capacity at the Treatment Plant and has indica- ted 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 X of the Service • Agreement; and _ WHEREAS, Carmel is willing to satisfy and accommodate its own needs and the needs of Hamilton Western 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 Project 1.1 In order to meet the growing and' expanding treatment capacity needs of Hamilton Western 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 have been prepared by Carmel's consulting engineer, Common- wealth 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 October 1, 1991, or as soon there- after as the same can be completed. -2- 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 Common- wealth 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 construc- ting 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 Carmel for engineer- ing legal and administrative services rendered in connection with the Project and securing all regulatory permits and approvals to construct the Improvements, all land acquisition and easement costs incurred by Carmel for the appropriation of additional land to construct the Improvements, and the actual costs incurred by Carmel for engineer- ing 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 necessarily 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 Project 3.1 It is estimated that the actual Project Costs will be -3- approximately $6.0 million. Carmel agrees to be responsible for and provide 86.67 percent of the funds needed to complete the Project, and Hamilton Western agrees to be responsible for and provide 13.33 percent of the funds needed to complete the appli- cable and useful portions of the Project. 3.2 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 regula- tory agencies for review and approval. 4.2 If Carmel is requested to amend or modify its design and/or plans and specifications by any state or federal agency having regulatory authority over the Project and if such amend- ment or modification is deemed a condition precedent to securing construction permits or -other regulatory approvals necessary -for construction of the Improvements, then Carmel shall have the right to make such amendments or modifications. ARTICLE V Project 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 -4- material furnished shall first be checked and certified as proper by the engineer and approved by appropriate claim voucher by the Board of Public Works. 5.2 No change orders or modifications to the construction contract for the construction and installation of the Improve- ments 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 modifi- cations with or without the consent of Hamilton Western so long as such action would not appear to materially increase the Pro- ject Costs. In the event that such change order or modification does result in a material increase in Project Costs, then Carmel and Hamilton Western 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 contingen- cies, to an amount greater than one hundred three percent (103%) of the final estimate as determined by Carmel's engineer following the award of a construction contract for the Project 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 Hamilton Western which would: a. significantly alter the Project performance stan- dards; b. significantly alter the type of wastewater treat- ment provided by the Project; -5- c. significantly delay the Project schedule; or d. substantially alter the design, plans and specifi- cations, or the size, capacity, or quality of any 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 Hamilton Western a final estimate of the Project Costs (with construction 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 fcr receipts and disbursements by Carmel in administering and supervising the Project. To the extent monies held in the Project Account are invested, all monies deposited to the credit of said Project Account shall be deposited, held, secured or invested in accord- ance with the laws of the State of Indiana relating to the depos- iting, 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 -6- 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. Hamilton Western agrees to pay Carmel for its 13.33% share of such initial funding and Carmel agrees to deposit such payment into the Project Account. The remaining 86.67% of the initial funding of the Project Account shall be deposited by Carmel in said Project Account, it 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 Improve- ments. Therefore, Hamilton Western agrees to pay Carmel each quarter its proportionate share of the Project Costs to maintain such level of funding for the Project. Carmel agrees to accept and deposit Hamilton Western'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. -7- 6.5 Carmel shall keep and -maintain accurate records con- cerning the Project Costs including progress payments made to contractors and shall provide Hamilton Western 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 remaini!f w:pendituzes. In addition, Carmel shall provide Hamilton Western with an invoice and claim for additional Project Costs due if more than the estimated expenditures of Project Costs were actually made during such preceding three (3) month period. In such case, Hamilton Western shall, within thirty (30) days, pay to Carmel its propor- tionate share of Project Costs and Carmel shall deposit such payment in the Project Account together with its own propor- tionate 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. ARTICLE VII Treatment Plant Capacity 7.1 It is agreed that at the commencement of this Agree- ment, up to 257.325 million gallons per year, plus an allowance for infiltration and inflow of 165,000 gallons per day in the McNamara Interceptor, is reserved to Hamilton Western (referred to as 'Infiltration and Inflow Allowance"). -8- Upon completion of the construction and installation of the Improvements, Hamilton Western's share of the Treatment Plant capacity shall be increased to 1.105 M.G.D., plus Infiltration and Inflow Allowance. To utilize this increased capacity Hamilton Western shall be entitled to transport 403.325 million gallons, plus Infiltration and Inflow Allowance, of wastewater, liquid wastes and sewage, to Carmel each year at a peak rate of flow not to exceed 1.29 M.G.D. with rates not greater than 0.55 M.G.D. discharged through the McNamara Interceptor and 0.74 M.G.D. through the North-South Interceptor. ARTICLE VIII Representations of Hamilton Western 8.1 Hamilton Western represents and covenants that: a. Hamilton Western is a duly organized and validly existing Indiana corporation with full power and authority under I.C., et seq. to consummate the transactions contemplated herein; b. The consummation of the transactions contemplated herein and the performance of this Agreement will not, to the best of Hamilton Western's knowledge and belief, result in any breach of, or constitute any default under Hamilton Western'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 Hamilton Western 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, Hamilton Western will not take any action which will adversely affect the rights or interests of Carmel under this Agreement; and d. Hamilton Western shall take all appropriate and reasonable steps to insure that it will be able to discharge its obligations under this Agreement. -9- 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 consummate 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 instru- ment 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 ar a decision of a court of competent jurisdiction, Carmel will not take any action which will adversely affect the rights or interests of Hamilton Western; and d. Carmel shall take all appropriate and reasonable steps to insure that it will be able to discharge its obligations under this Agreement. ARTICLE X Miscellaneous Provisions 10.1 The parties do hereby reconfirm, ratify and adopt their March 23, 1984, Service Agreement, as amended, referenced in the first recital to this Extension Agreement, subject amendment of the limits and constraints set out in of the Service Agreement to reflect the additional purchased under this Extension Agreement. To degree that the Service Agreement, as amended, is with the specific terms and provisions of this Extension ment, then the said Service Agreement, as amended, shall in full force and effect. however to the paragraph I(E) capacity being the extent and not in conflict -10- Agree- remain 10.2 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. 10.4 This Agreement shall be governed by the laws of the State of Indiana. 10.5 No amendment or modification of this Agreement shall be effective unless contained in a written document executed by Carmel and Hamilton Western. 10.6 Failure of a party hereto to insist upon strict per- formance 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 partiesto cure any such default. Moreover, in the event any provision of this Agreement is declared unlawful or unenforceable by a court of competent juris- diction, the remaining provisions of this Agreement shall remain in full force and effect. 10.8 This Agreement shall become effective on the date -11- executed by the parties and shall continue for a period of twenty (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. 10.10 This Extension Agreement shall be transmitted to the Indiana Department of Environmental Management for approval pursuant to Indiana law. IN WITNESS WHEREOF, Hamilton Western has caused this Exten- sion Agreement to be signed in its name by' 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. ITS BOARD OF PUBLIC WORKS CITY OF CARMEL By Dorothy J. Maddock By Billy Walker -12- ATTEST: Dated ATTEST: usan Jones, Clerk ATTEST: Dated: COMMON COUNCIL OF THE CITY OF CARMEL, INDIANA President HAMILTON WESTERN UTILITIES, INC. By , ,//b9 Ralph/ . Wilfong, Vice -President -13- EXHIBIT W CARMELINDIANA WASTEWATER TREATMENT PLANT EXPANSION PROJECT FINAL PLANT CAPACITY Of SHARE OF CAPACITY SHARE EXPANSION EXPANSION CARMEL 6.295 52.988% 1.3 0.43 CLAY DISTRICT 3.08 25.926% 1 0.33 WESTFIELD 1.4 11.785% 0.3 0.10 HAMILTON WESTERN 1.105 9.301% 0.4 0.13 11.88 100.000% 3 ITEM COST 1 106TH ST.LIFT STATION 5120,000 2 INFLUENT STRUCTURE 366,305 3 SCREENING BLDG 3129,934 4 PRIMARY SETTLING 3302,666 5 PRIMARY PUMPING 3108.728 6 AERATION GALLERY 326.853 7 AERATION TANKS $882,578 8 FINAL DIST.BOX 376,158 9 FINAL CLARIFIERS 3432,658 10 CHLORINE CONTACT $153,540 11 DECHLORINATION 340,000 12 RETURN SLUDGE DIST 39,276 13 SLUDGE THICKENER 3209,422 14 PLANT WATER 36,961 15 ANAEROBIC DIGESTER 3609.028 16 BLOWER BUILDING 5169,297 17 SLUDGE STORAGE 3220.000 18 A.A. SPEC.3BLOG MOD. 386.229 19 MAINTENANCE BLDG 3641,000 20 ELECTRICAL 5439,000 21 YARD PIPING 3379,982 22 SITE WORK 3100,385 TOTAL 35.210,000 $850,178 12.48% SHARE HAM. WEST. 50 58,841 517,325 $40,355 $14,497 33580 3117,677 310,154 $57,688 320,472 55,333 31,237 327,923 3928 381,204 522.573 $29.333 311,497 356,978 - $58.533 550,664 313,385 NONCONSTRUCTION TOTAL COST 5790,000 36,000,000 398587 3748,765 COMMONWEALTH