|
REGULAR MEETING SEPTEMBER 12, 1977
<br />REGULAR MEETING RECONVENED (CONTINUED
<br />FIFTH AMENDMENT TO AGREEMENT
<br />THIS FIFTH AMENDMENT TO AGREEMENT made and entered into this 26 day of October 1977, by and
<br />between CLAY UTILITIES, INC., AND CLAY DEVELOPMENT CORP., hereinafter sometimes referred to
<br />jointly as the "Party of the First Part ", and the CITY OF SOUTH BEND, hereinafter referred
<br />to as the "Party of the Second Part ",
<br />W I T N E S S E T H:
<br />WHEREAS, the parties hereto have heretofore, to with, on the 22nd day of March, 1965,
<br />entered in to an agreement relating to the furnishing of sewage disposal service and water
<br />utility service by Part of the Second Part to the Party of the First Part to certain portions
<br />of Clay Township, St. Joseph County, Indiana, which said agreement is now incorporated herein
<br />and made a part hereof by reference; and
<br />WHEREAS, the parties hereto have heretofore, to wit, on the 14th day of June, 1965,
<br />entered into an amendment to the aforesaid agreement, which said amendment is now incorporated
<br />herein and made a part hereof by reference; and
<br />WHEREAS, the parties hereto have heretofore to wit, on the 23rd day of May 1966, entered
<br />into a second amendment to the aforesaid agreement, which said second amendment is now incorpora
<br />ted herein and made a part hereof by reference; and
<br />WHEREAS, the parties hereto have heretofore, to wit, on the 27th day of February, 1967,
<br />entered into a third amendment to the aforesaid agreement, which said third amendment is now
<br />incorporated herein and made a part hereof by reference; and
<br />WHEREAS, the parties hereto have heretofore, to wit, on the 19th day of April, 1971, entere
<br />into a fourth amendment to the aforesaid agreement, which said fourth amendment is now incorpora
<br />ted herein and made a part hereof by reference; and
<br />WHEREAS, since the effective date of said agreement and the amendments hereto, the Indiana
<br />Legislature has enacted into law certain enabling statutes (Burns Indiana Statutes Annotated,
<br />Code Edition I.C. 1971, 19- 3 -11 -5 as added by Acts 1975, P.L. 214 - waterworks; and I.C. 1971,
<br />19 -2 -5.5 as added by Acts 1975, P.L. 211 - sewage works) designed to permit the lease - purchase
<br />of water and sewage utilities such as those operated in St. Joseph County by Party of the First
<br />Part; and
<br />WHEREAS, preliminary negotiations between the parties hereto in relation to possible lease -
<br />purchase of said utilities in accordance with the terms of aforesaid statutes, would indicate
<br />that the successful culmination of such negotiations would be in the best interest of the partie
<br />and the public; and
<br />WHEREAS, existing agreement as four times amended contemplates the furnishing of all the
<br />water requirements of Party of the First Part (Clay Utilities) by Party of the Second Part
<br />(City of South Bend) and it is still deemed desirable that said required water should be fur-
<br />nished exclusively by the City and accordingly the wells and land acquired by Clay from Aqua,
<br />Inc., together with the interconnect, booster and appurtenances subsequently added by Clay
<br />should be acquired by the City of South Bend; and
<br />WHEREAS, the parties are now desirous of amending the service area pertaining to said agree-
<br />ment, as amended, by deleting therefrom a portion of Clay Township in St. Joseph County, Indiana,
<br />described as Tract A on Exhibit 1 attached hereto and made part hereof, and conditionally deletin
<br />from Clay Utilities, Inc. franchised and certificated areas, heretofore granted to Clay Utilities
<br />Inc by the Public Service Commission of Indiana, all of the remaining service area of Clay Utilit
<br />Inc. in Clay, German, Centre and Penn Townships, St. Joseph County, Indiana, other than described
<br />as Tract B on Exhibit 1 attached hereto and made a part hereof;
<br />NOW THEREFORE, in consideration of the mutual covenants and agreements contained herein, the
<br />parties now agree as follows:
<br />1. That it is in the best interest of the parties hereto and the public affected thereby
<br />that the parties continue the proceedings authorized by and in compliance with Burns Indiana
<br />Statutes Annotated, Code Edition I.C. 1971, 19- 3 -11 -5 as added by Acts 1975, P.L. 214 waterworks;
<br />and I.C. 1971, 19 -2 -5.5 as added by Acts 1975, P.L. 211 - sewage works, to the end that a lease -
<br />purchase agreement might be executed and become effective as relates to Clay Utilities' St. Josep
<br />County operations.
<br />2. That if the lease - purchase agreement referred to in paragraph 1 is executed, the City of
<br />South Bend shall proceed forthwith to acquire from Clay Development Corp. as assignee of Clay
<br />Utilities, Inc. the wells and land heretofore purchased by Clay from Aqua, Inc., together with
<br />such additions, improvements, betterments, appurtenances, interconnect and booster station at the
<br />price (based on 1.5% depreciation) of $92,985 beging the price as appraised by Murphy Consultants
<br />Inc. and Clay Development now covenants and agrees to sell and convey the same for such consid-
<br />eration.
<br />3. That the aforesaid lease - purchase shall describe only the area and territory as identif
<br />as Tract B on Exhibit 1 attached hereto and made a part hereof, it being the intent and purpose
<br />of this provision that upon the final effective date of the aforesaid lease - purchase agreement,
<br />the entire remaining service area included in the base agreement of March 22, 1975, as amended
<br />and included in the indeterminate permits, franchises and certificates of territorial authority
<br />of Clay Utilities (in Clay, German, Centre and Penn Townships other than those previously
<br />lease and /or sold to the City of Mishawaka, Indiana) issued by the Public Service Commission of
<br />Indiana shall be surrendered, vacated and /or transferred to the City of South Bend for future
<br />services, except for the aforesaid area denoted as Tract B on Exhibit 1.
<br />4. Irrespective of whether or not the proposed lease - purchase agreement as aforesaid is
<br />fully implemented, the parties now agree to amend numerical-paragraph 1 appearing under "Part 1-
<br />WATER SERVICE," and "PART 2 - SEWER SERVICE," and numerical paragraph 4 under the latter, by
<br />deleting from numerical paragraph 1, Tract A as described on Exhibit 1 attached hereto and made
<br />
|