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HomeMy WebLinkAbout11/08/1915 Board of Public Works Special Meeting Minutes,,..8 November 8th.91 Board met in special session at 10:00 A. M. Mr. A. H. Rice absent This being the day set for the hearing of the franchise of the St. Joseph Heating Company as published ib the South Bend Daily Tribune and the News Times and postd in ten public places in the City. ✓ The Board1considered said franchise, and no remonstrators appeared and no object ors objecting to said 1franchise. The same is hereby approved in words and figures and referred to the Common Council for their ratification at their regular session this Sth. day of November 1915 as follows, towit:- A CONTRACT BETWEEN THE CITY OF SOUTH BEND,INDIANA,BY AND THROUGH ITS BOARD OF PUBLIC-W0RKS9AND THE ST. JOSEPH HEATING COMPaNY,A CORPOP.ATION ORGANIZED UNDER AND; BY VIRTUE OF THE LAWS OF HE STATE OF INDIANA,ITS SUCCESSORS 0R ASSIGNS,GRANTING THE RIG=HT TO SAID HEATING COMPANY TO ENTER IN AND UPON CERTAIN STREETS,AVENUES,ALLEYS, BRIDGES AND PUBLIC P�,ACES WIITHIN SAID CITY, AND THEREIN TO CON8TRUCT,LAY OPERATE AND MAINTAIN A SYSTEM OF COJDUITS, PIPES,MAIN ,CONDUCTORS AND SERVICE PIPES,TOGETHER WITH ALL NECESSARY BRANCTIES AND CUT OFFS,MA-NffiOLES,APPLIANCES,APPURTEN�ANCES AND OTHER UTILITIES FOR THE PURPOSE OF 14URNISfdNG AND CONVEYING STEAM FOB HEATING AND OTHER PURPOSES, TO PUBLIC ANDPRIVATE CONSUMERS WITHIN SAID CITY,GRANTING ALSO THE RIGHT TO ENTER UPON SAID STREETS,ALLEYS,BRIDGES,A VENUES AND PUBLIC PLACES TO MAKE REPAIRS. THIS CONTRACT AND AGRk'EMENT, made this Sth. clay of November,19159 and between the City ,of South Bend; Indiana, by and through its Board of Public Works, as party of the first part, end the St. Joseph Heating Company, as party of the . second part, WITNESSETH Sec. L._ Consent ,.permission and authority is hereby given and granted by the City of South Bend, and is vested in the St. Joseph Heating Company, a. corporation organized under the laws of the State of Indiana, its successors or assigns,, for and during the term of thirty years from and after the date hereof, to enter into, along, upon.and under the following streets, alleys, bridges and public places in said City, and there to construct, lay, maintain and operate a pipe or pipes as the same may be required, together with the necessary branches, cut-offs, E�An-holes, appliances and all necessary appurtenances for furnishing and conveying steam for heating and toher purposes as the company may elect to and for the use of its several patrons and cus- tomers situated and located along the streets and alleys hereinafter described, and to transport and convey steam by and througt said system for such purposes, and to furnish and provide said customers with steam for the purposes aforesaid, said line of streets, alleys, bridges and public places to be occupied being particularly designated as follo*s,to-wit:-- Beginning at a point on Bridge Street west of the power plant of the Indiana & Michigan Electric Company in order to enable connection tb be made with said Company's plant, running thence south alo-ig Bridge Street to and across East .Colfax Avenue, running thence' west can -Colfax Avenue .to .and ,across Main Street, running thence south on Main Street to and across Washington Avenue, running west on Center Street to Lafayette Street, .also beginning at the intersection of Colfax Avenue ,and Michigan Street and running thence south on Michigan Street .to Washington Avenue. See. ?.- It is expressly agreed by and between the parties thereto that the territory served by said second party shall be that property which abuts the portion of the streets, alleys and other public places hereinbefore described. The charge and conditions for service so rendered to the patrons and cus- tom";_Q�X .said second party abutting said streets, alleys and public places hereinbefore described, or such extensions thereto as shall hereafter be granted by the party of the first part, shall be upon a schedule of rates, tolls, charges, rules and regulations to be filed and promulgated by the second party with the Public Service Commission of Indiana 8 0:3 Monday November 8th•1,1915• Continued. Sec. 3- As a part of the consideration for the execution of this contract, it is hereby expressly agreed by and between the parties hereto that the said second party shall not be required to extend or give service to any person. or persons, firm or corporation who may apply for said serwiee.whdse property is,not adjacent to'or does not abut upon the above streets, alleys or public places along the portions above described, but said second party may extend such service under its rules and regulations, said, extendsions being subject to the approval of the City of South Bend. If, after the approval by the City of South Bend, said second party shall elect to grant service unto parties whose property is not adjacent to said portions of said streets, alleys and public places, said second party. is hereby given ,the power and authority so to do under the rates, tolls, charges, rules, schedules and regulations published and promulgated by said second party and placed on file with the Public Service Commission of Indiana, provided , however, that said second party shall at least five days before the commencement of work in any street, alley or public place, file with the Board of Public Works of the first party a detailed plan showing the location and the proposed work in any street, alley or public place for such service to be so rendered, and such service, condition of service, power and authority and grants in connection threwith, shall be con- trolled by, construed under and continue for the full term of.this contract as herein provided. Sec. 4 -Said second party is hereby vested with full power, right and authority to make all excavations and do such other things as may be necessary in and upon such streets, avenues, alleys, bridges and other public places so as to construct and lay on or therein all such pipes, manholes, appliances and appurtenances as shall be reasonably necessary for the transmission and distribution of steam for heating and other purposes, con- tracted and agred to be done by it. That all such work shall be done with resonable dispatch and with the least possible inconcenienee to the public, and all such vo rk shall be done in such ma-ner as not to interfere in the least possibale manner with any water or gas pipes, public or private severs or underground wires or any underground conduits then laid o constructed by said city or any authorized person or persons, firm or corporation, and in the event of any interference, the cost occasioned thereby shall be borne by said second partyg Said second party shall also, at its own expense and without unreasonable delay, restore and repair, or cause to be restored and repaired, in accordance with the terms and provisions of Ordinance No. 1550, passed by the Common Council of the City of South Bend on May 9919MO, and any other ordinance pertaining thereto,.all streets, aveues alleys, sidewalks, bridges and other public places where excavations have been made by it for any of the purposes herein, contemplated. Sec. 5- That' said second parJ7 hereby undertakes and binds itsseld, its successors and assigns, to fully indemnify and save the City of South Bend harmless against or by resaon of any claim for damages on account of anything done under the terms of this contract, or by reason of its negligence in the construction, maintenance or operation of its said system and the appliances and appurtenances thereof in any of the said streets, avenues, alleys or other public places under the temps of , this contract, and said second party shall$%henever notified so to do by said City, promptly and at its own expense, appear and defend any action at law or suit in equity brought by any person or persons, firm or corporation against the City in any court upon such claim.or demand. Any final judgement or decree that may be rendered in any such action or suit against the City shall be paid or performed, as the case may be, by the second party, and the City by it kept harmless and saved from liability thereon, p-ovided, however, that said City shall, before the return day of any summons served upon said City for any damage or claim for injury, which said summons has been issued.incident to a suit or action upon which any such claim for injury or damage, notify said second party in writing of the service of such process upon said City and of the pendency of said cause, to the end that said second party may appear by its representatives or otherwise, and defend any such action or suit, and if said second party shall fall to appear and defend any such action or suit, said first party shall have the right to employ counsel and take such reasonable and necessary steps to make an effective and proper defense of said cause of action, and any such sum of money so reasonably expended by said City in the defense of such action occasioned by the failure of the second party to appear and defend the same, may be receovered of and from said second party. In the event any final judgement or judgements be rendered against said City in such suit or action, the amount of such final judgement or judgements and the costs thereof shall be paid by the second party, and in event that said second party shall fail to pay the same and the City shall be compilled to bring suit against said second 'A party for the reimbursement of any damage or cost so incurred by said City, the final judgement rendered against said City, together with the costs thereon, shall be deemed a d taken t be th measure o e dame ee in such suit o suits nd shall b n c8sive evidence o� the amoun to be reovereci against said Second part', and said City ]shall fail. to notify said second party 9X the pendency of said cause of action as provided herein, said second party stall not be liable to said first party for the payment of any damage or costs rendered or entered in such cause 'of action. Sec. 6. Said second party is further hereby authorized and empowered to tap and connect with any sewer in any street, avenue, alley, or a?-y private or public places to be occupied by any pipes, mains, conductors, service pipes, appurtenances or construction work of said second party for the purpose of draining its system of con- duits,, pipes, mains conductors, appurtenances and construction work laid and constructed by said second party under the provisions of this contra at, provided, howvever$ that general plans showing the method of making such taps or c.onneetdon shall be first filed with the Board of Public Works, which plan shall be subject to the approval of the Board of Public Works,:andlafter approval said. Board of Public Works shall cause to be issued a permit for the work *..to:be done as specified in said general plans so' filed without unnecessary delay. See. 7. In the construction of its said work and the laying of its said pipes, the second party is hereby required and compelled to lay and construct its street mains, service pipes and other appurtenances with due conformity to the 'estabilished grade lines of the streets, alleys, avenues and other public places in vhich the same are authorized to be laid or constructed herein, and all of such conduits' and pipes shall be laid at such a depth as to give a covering over the top of the conduits of not less than two (2) feet, except in crossing gutters, or meeting unforeseen obstructions, said second party shall have a lee -way of one (1) foot covering over said conduits. Sec. 9 That said first party may require ' said seond party to file with the Board of Public Works, at least two days prior to making any excavations in any of the streets, alleys, avenues or public places in said City for the construction and installation of its said system, a general plan showing the extend ofthe work proposed to be done in construction and in installing the same, which plan shall be approved by the Board of Public Works be ib re work i s , started, and upon the completion of the Installation and construction of its said system, said second party shall furnish the Board of Public Works a detailed drawing, of the entire underground work, drawn to scale showing thereon the fUll and complete plan thereof, including street mains, service pipes, expansion joints, valves, manholes and other appurtenances, and if at any time hereafter any change is made in theconstruction and plan of said system, the said second party shall also furnish detailed drawings of such changes, all of w i.ch drawings shall be filed with the Board of Public Works of said City,. See. 9. The Board of Public Works of said City may designate the part of said Streets. alleys, avenues and public places wherein said pipes and mains and appu-P tenances thereto may be placed and laid, and such place shall be so designated as to meet the most economic and reasonable installation, construction and location of said pipes and mains when the same does not interfere with any pipes, mains, conduits, wires or other fixtures or apparatus then in said street or w1lich may be then under way of construction. Also, if any time hereafter the said Beard of Public Works of said City steal deem It necessary to change the grade of any street , alley or public place in which said second party has laid and onstructed pipes, mains and appurtenances, or if the said Board of Public Works of said City shall deem it necessary to reeonstm et, repair, or change the location of any sewer, wvaterpipe or other mains or conduits now belonging to the City, in apy of the said streets, whereby it shall be neces sa - in the Judgement of said Board to lower said pipes, mains and appurtenances of the second party or to change the location thereof, then said Board shall give said second party the location and place where said pipes, mains and appurtenances thereto shall be laid and placed thereby designating the most economical and cheapest manner, from the construction of the second party, in which to re -lay said pipes, mains and appurtenances, and thereupon said second party shall, at its own cost, promptly replace and re -lay said pipes, mains and appurtances thereto, in the places as designated by said Board, and in the manner and under the same terms as are set forth in this contract, and if 6aid second party shall refuse or fail to promptly relocate said pipes, mains and appur- tenances thereto as above set out, thene said City by its said Board of Public Works, mfy cause the same to be relaid and relocated, and the second party hereby agrees to pay said City the necessary cost and expenses made thereby, and said costs and expense may be receovered in any court of law. Sec .10.— As a part of the consideration for this contract, the said second party hereby agrees to pay said City on the 30 th. day of September of each year during the full term and period of this contract, ,two and one half per cent (2-1f2%) of the total gross receipts for all such steam as sold and furnished to its several patrons and cus— tomers 4exclusive of that sold or delivered to the Indiana & Michigan Electric Company for its own use); served under the terns and p*4-bvisions of this contract during the year ending June 30h.9preced i ng, and said second party shall furnish and deliver to said City at said time, a statement certified by its president, general manager or treasurer showing the total receipt from the sale of steam sold by it to,its said patrons, and this condition shall be construed to mean and be so interpreted that said second party shall not be required to make payment to said City.upon or for any steam constracted to be sold, but the cost of which was lost to said second party and not paid, but said party shall rake a resonable e :°fort to collect all bills rendered and due for such service. If said second party shall refuse toy make said p€y ments when they become due, or if it shall refuse 'to make said certi— fied statement to said City of the amount paid therefor, or upon the refusal of said second party to keep, perform, fulfill or observe any other term, condition or thin' to be done by said second party as in this contract provided, then the first party may terminate this contract and declare the same null and void by serving a notice.in writing upon said second party to make perform mee within thirty days, and if said default continue for said period of thirty days after the expiration of said written notice, then this contract shall be null and void and of no effect. Sec. ll.— At least five days before commencing._the construction of said system, said second party, its successors or ass_ gns, shall file with the City Clerk of South Bend,, Indiana, a good and sufficient bond, subject to the approval and acceptance of the Board of Public Works of said City as to the sureties thereon, in the penal sum of five thousand dollars (5000.00) conditioned that said second party shall keep and hold said City of South Bend free from all injury, harm and damages which may arise to it through any injury or damage resulting to any persons or persons, firm of corporation occasioned by the negligence of said second party, Mrs officers, agents or employees in the use or occu— ption of the streets, alleys 'and public -places of said City during the construction wi rk in installing said system in,along and upon streets, alleys and public places in said CitW, and during the operation of said system, which bond shall be in full force and effect for the period of five years, which. shall be renewed for an additional period if req�_ fired by the Board of Public Works. Sec. 12. It is further expressly agreed between the parties hereto as a part of the consideration of this ontract, that at any time during the= termof this contract or during the operation of the party of the second part o r its assigns under this contract the City of South Bend may take over for its own use and pureahse all of the property of the party of the second part, together with all contracts, except contracts for steam wiVL the Indiana & Michigan Electric Company; also all grants, perits, concessions, etc., of the second party whihh purchase shall be made pursuant to and under the pourer and euthority of an Act of the General Assembly of the State of Indiana, enacted in the year 1913, known as the Shively —Spencer Utility Commission Act. See. 13. That in an much as the party of the second part has agreed and binds itsself herein to serve only a small portion of the City of South Bend, whilah portion is in 'or near the center of the business section of said City, and as the party of the -first part cannot get any person- firm or corporation to agree- at this time to enter into a contract to serve a larger distric t, the party of the first part desires to provide herein a means whereby it can in the future enter into a contract with some other persons, .firth or corporation which w1ll agree and bind itself to serve a larger district;THEREFOIRE, Asa part of the consideration for t..Lis grant, the party of the second part, its succesors or assigns hereby agrees that any other person, firm or corporation authorized to do a steam heating; business under the laws of Indiana, may and shall be permitted to take over and purchase all the property of the party of the second part together w th 9.11 contract (except contracts ivith the Indiana & Mi chi gan Electric -Company -for furnishing steam and heat to the party of the second part), grants, permits, concessions and Franchise of the party of the second part under the lb Bowing conditions le That said party of the second_ part shall not be bound to. sell its said property to any suchnperson, -firm or corporation for a period of ten years from the date of this contract. But that after said time said privilege fff purchase shall be in full -force and binding on the party of the second part, its successors and assigns under the conditions herein recited. 4!a 2. Said person, firm or corporation so desiring to purchase and..take over the said property of the party of the second part, shall have first arocured a franchise, in all things duly and legally executed and approve, authorizing such person, firm or corporation to do a heating business in said City of South Bend, and binding it or them to serve any or all persons entitled by law to such .service within the following des- cribed territory in said City or any larger district including the same,viz:: That part of said City bounded on the east by the alley east of Michigan. Street and running parallel thereto; on the wrest by the alley west of LafeVette Street and running parallel thereto; on the north by Colfax Avenue; on the south by Mayne Street; Ninety days immediately preceding the passage of said franchise, written _notice shall be given second party that such franchise will be granted by first party, unless satisfactory evidence be shown the Common Council that the second party will cover above described territory wthin a reasonably definite time. 3. That the grantee of such frnnchise shall, at the time the same is executed file with the Board of Public Works a bond in the sum of Five Thousand ($5,000.00) with a su rety to the approval of said Board, conditioned for the faithful performance of all the terms and conditions of its said franchise. - 4.Said: person, firm or corporation ,s hall then serve upon the party of the second Bart, its successors or assigns, a written notice stating that it desires to.and will pu rchase .said property of the second party under the terns and conditions of this contract, and they shall first endeavor to agree .upon t e value of the property to be purchased, and the purchase price, terms and conditions of sale; and if theyshould fail to agree upon the same for a period of thirty days from t.-Le time of the service of said ntice, then said purchaser and said second party shall, each choose and sheet a competent person familiar with public utility property, which to persons shall select a third person, who shall not be a resident of Indiana, and who shell be a competent, reputable and disinterested engineer, who must be a full nenber of either the American Society of Civil Engineers, American Society o? Mechanical Engineers, or the American Institute of Electr cial Engineert s, and familiar with the heating busines and having knowledge of the value of such property, and who at the time df his selection shall not be in the employ of eiher of the parties nor interested in any way in any of the businesz enterprises of either of said parties or of the City, said three persons shall at once proceed t make an inventory, valuation and appraisement of all property of t e party of the second art used and useful inthe conduct of its business. Said persons so selected shall have free and complete access to all the papers, records, books, contracts, offi c9 add property of the second party, which they may demand for the purpose of making such valuation; and said persons shall deter mine the fair present value of saidproperUr, and in arriving at and determining the same they shall allow to the party of the second part, its successors or assigns all those elements of value recognized and claimed by a going convern including therein *going value* or cost of halving brought thebusiness to its then state of perfection, and said*going value" shall not be determined to beless than the deficiency of net earnings below a fair return on the actual investment or expenditure made necessary and proper for the deveiopment of the business and property to bri ng it to its then state of devc-lopement, after allowing for reasonable deptreciation together w1th interest on the yearly deficiencies, if any exist, and said going value sh& shall not be included in the physical value bug shall be added thereto in determining the present value. Said party of the second part shall keep its books and accounts, in such a manner that going value as above defined amy be readily ealuulated. Upon the completion of said inventory and valuation said persons shall promptly furnish a copy thereof, to said purchaser and the second party, and shall state the amount of purchase pit price to be paid to said second party, which determinations shall be final and con- clusive upon s id parties, and said purchaser shall be bound to pay said amount in cash to the second party vdthin sixty days from the time of furnishing said reports by the apprA,isers, and upon the psyment of said purchase price, said purchaser shall Immediately take possession of all the property covered by said inventory, and said purchaser shall also proceed to furnish service to all persons desiring the same in such manner that the service formerly rendered by the second party shall not. be interrupted or interf'er ed with. if there is a failure to purchase or to pay then the first party shall pay second party all the costs and expenses occasioned it by said transaction. 5. If any boilers or other equipment have been added to the property of the Indiana &- Michigan Electric Company by said last named company for furnishing steam and heat to the second peaty and to enable it to perform t is contract and its contract with customers, the said Tndiana Wchigan Electric Company may, elect to include any such additions in said sale by serving a notice upon said purchaser tonthat effect. x And sa .d appraisers shall value said property at its present value in the same ma-°;.rr r as the property of the partyof the second part is valued, and to the purchase price of the same of they shall add the estimated cost of .,removing said additions from the plant of the. Indiana Michigan Electric Company, provided said Electric Company rersoves same, and they shall .report such valuations and purchase price, and the same shall be paid in the same manrE r as in the case of the party of the second part But said appraisers shall not include, in such additions any bpildings, real estate, or any other property being used also by said Company in generating and furnishing electricity. 6. The purchaser and the second party shall pay the compensation of the appraiser respectively selected by each, and each shall pay one-half of the reasonable compensation of the third appraiser selected by said two, if said sale is perfected and completed. Sec. 14. It is further provided and agreed to by and between the parties hereto that the pr&vilege of purchasing the property of the party of the second part by some person, Firm or corporation, other than the City, shall be in all things null and void, if the party of the second part, its successors or assigns, shall within ten years from the date thereof, or before any franchise for doing a heating business is granted by the City to any other person, firm or corporation, have so extended its plant and system so hat it is adequately serving ill #bsspnsxt.desiring.;sucfi:�-se soe-`within the district bounded and described in Section 1? above. Sec. 15. That the said second party hereto shall not be recta. fired to rei der service to any customer. or patron hereunder when the outside tImperature shall be or exceed sixty degree Fahrenheit. See. 16. That said seeand party shall not be required tonrender service of any kind or character to: any, person or persons, form or corporation within the terribe'ry in which it is operating, which said service may be used in any way for the developeme*.t of power for any purpose. Sec. 17. That If the second party hereto does now begin the construction and installation of its said plant and system within one year rom the date of the taking effect of,tis contract-, then this contract s_:.all be null and void and s:W-ll b,f_ deemed to have been forfeited by said a second party, See. 18. This contract shall be in full force and effect from and after its epproval and confirmation by an Ordinance passed by the Common Council of the City of South Bend, and the approval of the Mayor of said City. IN WITNESS WHEREOF, the said City of South Bend has caused Its name to be signed hereto by the members of the hoard of'Public Works of said City, and the,,names of each of the members of said boa -d of Public Works as such Board, and the said St \Joseph, Heating Company has caused its name to be signed and affixed hereto by its President and Secretary duly authorizedrp and has affixed the seal of said corporation hereto this E8th. day'of November,1915. ( SEAL ). Attest; „_iAS. B-, CAQVIIET, Secretary. CITY OP SOUTH BEND, INDIANA BOARD OF PUBLIC -By E. M. MORRIS V.VRK- S. A. H. RICE JOHN B. WEB ER ST. JOSEPH HEATING COMPANY. by F E D A. BRYAN. President.