Wastewater 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