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Home My WebLink AboutApproving the Fifth Amendment to a contract between the South Bend City Water Works and Sewage Disposal Plant and Clay Utilities, INC.RESOLUTION No. 580 -77 Passed by the Common Council of the City of South Bend, Indiana, September 12 �� o,, <, Attest: 4""-' -�' City Clerk �n ,,, At test: ��7 fK�5' ly L-' President of Common Council. Presented by me to the Mayor of the City of South Bend, Indiana September 13 Iq 77 City Clerk Approved and signed by me .CI / - TI9�• Mayor RESOLUTION NO. t;5-,W- >_? A RESOLUTION APPROVING A FIFTH AMENDMENT TO A CONTRACT BETWEEN THE SOUTH BEND:'CITY WATER WORKS AND SEWAGE DISPOSAL PLANT AND CLAY UTILITIES, INC. FOR FURNISHING OF WATER AND SEWAGE TREAT- MENT TO THE CLAY TOWNSHIP AREA IN ST. JOSEPH COUNTY, INDIANA. WHEREAS, the Board of Water Works Commissioners and the Board of Sewage Commissioners deem it to be in the best interests of their respective facilities and to the City of South Bend to amend an Agreement to furnish water and sewage services in Clay Township to Clay Utilities, Inc., which Agreement was entered into on the 22nd day of March , 1965, and approved by Resolution No. 96 -65 of the Common Council of the City of South Bend on the 10th day of May, 1965. NOW, THEREFORE, BE IT RESOLVED BY THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA, that the contract entered into between the South Bend City Water Works and the sewage disposal plant of the City of South Bend and Clay Utilities, Inc., dated the 22nd day of March, 1965, for the furnishing of water and sewage treatment to Clay Township, St.Joseph County, Indiana, as five times amended, is hereby approved and confirmed; said fifth amendment being attached hereto as an exhibit and made a part of this Resolution. PRESENTED 9- /R " NOT APPROVED ADOPTED Member f the Common Council 1_J I signed only to provide an opportunity fcr rublic discus ion and Council action on the issue. "'ED IN CLERK'S OFFICE -. C ;r -� Irene Gammon CITY CLERK, SOUTH BEf1D, IND. FIFTH AMENDMENT TO AGREEMENT THIS FIFTH AMENDMENT TO AGREEMENT made and entered into this day of 1977, by and between CLAY UTILITIES, INC., and CLAY DEVELOPMENT CORP., hereinafter sometimes referred to jointly as the "Party of the First Part ", and the CITY OF SOUTH BEND, hereinafter referred to as the "Party of the Second Part ", W I T N E S S E T H: WHEREAS, the parties hereto have heretofore, to with, on the 22nd day of March, 1965, entered into an agreement relating to the furnishing of sewage disposal service and water utility service by Part of the Second Part to the Party of the First Part to certain portions of Clay Township, St. Joseph County, Indiana, which said agreement is now incorporated herein and made a part hereof by reference; and WHEREAS, the parties hereto have heretofore, to wit, on the 14th day of June, 1965, entered into an amendment to the aforesaid agreement, which said amendment is now incorporated herein and made a part hereof by reference; and WHEREAS, the parties hereto have heretofore, to wit, on the 23rd day of May 1966, entered into a second amendment to the afore- said agreement, which said second amendment is now incornorated herein and made a part hereof by reference; and WHEREAS, the parties hereto have heretofore, to wit, on the 27th day of February, 1967, entered into a third amendment to the aforesaid agreement, which said third amendment is now incorporated herein and made a part hereof by reference; and -1- I WHEREAS, the parties hereto have heretofore, to wit, on the 19th day of April, 1971, entered into a fourth amendment to the aforesaid agreement, which said fourth amendment is now incorporated herein and made a part hereof by reference; and WHEREAS, since the effective date of said agreement and the amendments thereto, the Indiana Legislature has enacted into law certain enabling statutes (Burns Indiana Statutes Annotated, Code Edition I.C. 1971, 19- 3 -11 -5 as added by Acts 1975, P.L. 214 - water- works; and I.C. 1971, 19 -2 -5.5 as added by Acts 1975, P.L. 211 - sewage works) designed to permit the lease - purchase of water and sewage utilities such as those operated in St. Joseph County by Party of the First Part; and WHEREAS, preliminary negotiations between the parties hereto in relation to possible lease - purchase of.said utilities in accordance with the terms of the aforesaid statutes, would indicate that the successful culmination of such negotiations would be in the best interest of the parties and the public; and WHEREAS, existing agreement as four times amended contemplates the furnishing of all of the water requirements of Party of the First Part (Clay Utilities) by Party of the Second Part (City of South Bend) and it-is still deemed desirable that said required water should be furnished exclusively by the City and accordingly the wells and land acquired by Clay from Aqua, Inc. together with the interconnect, booster and appurtenances subsequently added by Clay should be acquired by the City of South Bend; and -2- WHEREAS, the parties are now desirous of amending the service area pertaining to said agreement, as amended, by deleting therefrom a portion of Clay Township in St. Joseph County, Indiana, described as Tract A on Exhibit 1 attached hereto and made part hereof, and conditionally deleting from Clay Utilities, Inc. franchised and certificated areas, heretofore granted to Clay Utilities, Inc. by the Public Service Commission of Indiana, all of the remaining service area of Clay Utilities, Inc. in Clay, German, Centre and Denn Town- ships, St. Joseph County, Indiana, other than that describedas Tract B on Exhibit 1 attached hereto and made a part hereof.- NOW THEREFORE, in consideration of the mutual covenants and agreements contained herein, the parties now agree as follows: 1. That it is in the best interest of the parties hereto and the public affected thereby that the parties continue the proceedings authorized by and in compliance with Burns Indiana Statutes Annotated, Code Edition I.C. 1971, 19- 3 -11 -5 as added by Acts 1975, P.L. 214 - waterworks; and I.C. 1971, 19 -2 -5.5 as added by Acts 1975, P.L. 211 - sewage works, to the end that a lease - purchase agreement might be executed and become effective as relates to Clay Utilities' St. Joseph County operations. 2. That if the lease - purchase agreement referred to in para- graph 1 is executed, the City of South Bend shall proceed forthwith to acquire from Clay Development Corp. as assignee of Clay Utilities, Inc. the wells and land heretofore purchased by Clay from Aqua, Inc., together with such additions, improvements, betterments, appurtenances, inter- connect and booster station at the price (based on 1.5% depreciation) of $92,985 being the price as appraised by Murphy Consultants, Inc. and Clay Development now covenants and agrees to sell and convey the same for such consideration. -3- 3. That the aforesaid lease - purchase shall describe only the area and territory as identified as Tract B on Exhibit 1 attached hereto and made a part hereof_, it being the intent and purpose of this provision that upon the final effective date of the aforesaid lease - purchase agreement, the entire remaining service area included in the base agreement of March 22nd, 1965, as amended and included in the indeterminate permits, franchises and certificates of territorial authority of Clay Utilities (in Clay, German, Centre and Penn Town- ships other than those previously leased and /or sold to the City of Mishawaka, Indiana) issued by the Public Service Commission of Indiana shall be surrendered, vacated and /or transferred to the City of South Bend for future services, except for the aforesaid area denoted as Tract B on Exhibit 1. 4. Irrespective of whether or not the proposed lease- purchase agreement as aforesaid is fully implemented, the parties now agree to amend numerical paragraph 1 appearing under "PART 1 - WATER SERVICE," and "PART 2 - SEWER SERVICE," and numerical paragraph 4 under the latter, by deleting from numerical paragraph 1, Tract A as described on Exhibit 1 attached hereto and made a part hereof. It is understood and agreed that this amendment is in all re- spects subject to the approval of the Common Council of the City of South Bend by duly adopted resolution. IN WITNESS WHEREOF, the parties hereto have executed this Fifth Amendment to agreement the day and year first above written. CLAY UTILITIES, INC. ATTEST: Homer W. Fitterling, President -4- Maxine O. Fitterling, Secretary ATTEST: Maxine O. Fitterlinq, Secretary ATTEST: Irene Gammon, City Clerk Approved as to form and legality CLAY DEVELOPMENT CORP. Homer W. Fitterling, President CITY OF SOUTH BEND, INDIANA BY: Peter J. Nemeth, Its Mayor Thomas J. Brunner, Jr., City Attorney WATER AND SEWAGE BOARDS BY mas J. Brunner, Jr. Peter H. Mullen ATTEST: Patrick M. McMahon Jeanne Wilcox, Clerk Approved by Common Council of the City of South Bend on the day of , 1977. ATTEST: Irene Gammon, City Cler Roger O. Parent President, Common Council MT EXHIBIT I TP,P-CT A: A tract or parcel of land in Section 23 and the South 112 of Section 14, both sections being in Township 38 North, Range 2 East, described as follows: Beginning at the Northwest corner of the Southeast Quarter of said Section 14; thence, running east a distance of 1716 feet, thence, running south 964.60 feet to land previously deeded to Sarah Mark; thence, running West 1726 feet to a point 10 feet IJest of the North -South center line of said Section 14; thence, due South along a line 10 feet West of and parallel to the North -South centerline of said Section 14, to a point in the South line of said Section 14: thence, to a point in the North line of Section 23, which point is 10 feet West of the North -South centerline of said Section 23; thence, due South along a line 10 feet West of and parallel to the North -South centerline of said Section 23, to a point of intersection with the South right -of -way line of Darden Road; thence, due West along the South right -of -way line of Darden Road a distance of 10 feet to a point 20 feet West of the North. -South center line of said Section 23; thence, due North along a line 20 feet'West of and parallel to-the North -South centerline of said Section 23 to a point of intersection with the North line of said Section 23; thence, to a point 20 feet I -Jest of the North -South centerline of'Section 14.,.which point is also in the South line of said Section 14; thence, due North along a line 20 feet West of and parallel to the North -South centerline of Section 14 to a point of intersection with the East -West centerline of said Section 14; thence, due East 20 feet to the point of beginning containing approximately 37.60 acres, excepting therefrom a tract of land off of and from the entire Northern part thereof for the purpose of widening Auten Road. T'YNTRTT 1 TRACT B: Land in St. Joseph Coutny described as follows: "That portion of Clay Township lying North of the Indiana East -West Toll Road, West of Hickory Road extended and East of the center line of the New York Central right -of -way, plus that portion of the Town of Roseland lying South of said Toll Road." r