10-24-77 Council Meeting Minutes

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REGULAR MEETING OCTOBER 24r 1977 REGULAR MEETING RECONVENED (CONTINUED) 12. Defaults. If the Lessee shall default in the payment of any rentals or other sums payable to the Lessor hereunder, or in the payment of any other sum herein required to be paid for the Lessor, or in the observance of any other covenant, agreement or condition hereof, and such default shall continue for ninety (90) days after written notice to correct the same, then in any or either of such events the estate and interest of the Lessee hereunder shall, at the option of the Lessor, terminate without further notice, and it shall be lawful for the Lessor forthwith to resume possession of the demised premises, and the Lessee covenants to surrender the same forthwith upon demand. The exercise by the Lessor of the above right to terminate the Lease shall not release the Lessee from the performance of any obligation hereof maturing prior to the Lessor's actual entry into possession. No waiver by.the Lessor of any right to terminate this Lease upon any default shall operate to waive such right upon the same or other default subsequently occurring. Lessee shall not terminate this Lease because of default on the part of Lessor unless such default shal_ continue for ninety (90) days after written notice from Lessee to correct the same. 13. INTERIM MANAGEMENT, OPERATION, MAINTENANCE AND TERMINATION. Recognizing the potential difficulties to Lessor of retaining its operating personnel during an extended period of time from the execution of this lease and the beginning date, and also to facilitate the uninterruptec transition of the utility services at the beginning date, the Lessee agrees, to the extent authorized by law, to take over the complete managment, operatiion and maintenance of the utilitN facilities on the 15th of the month following the date of execution of the lease and shall so continue for a period of twenty -four (24) months or the beginning date of said lease, whichever first occurs. Lessee shall retain as its sole compensation and income an amount equal to the charges for sewage treated as provided in the contract between the parties dated March 22, 1965, as amended, to which shall be added ($.05) Cents for each One Hundred (100) Cubic Feet of said sewage treated for its management- operation services and the additional field (including main- tenance), billing and miscellaneous services, and shall pay over the residue of the Lessor's Gross Revenues to Lessor. Although said compensation is intended to be all inclusive, Lessor shall still remain liable for all property taxes, Indiana and Federal Income Taxes together with such independent auditing and professional fees as Lessor shall incur on its own account. In the event that the direct costs for labor, materials, and outside contract services paid out and expended by the Lessee over the aforesaid period of time for necessary repairs and /or replacement exceeds the Gross Revenues received by the Lessee as hereinabove provided, then and in that event, said excess shall be paid over to Lessee by Lessor. In the event the beginning date has not occurred at the expiration of the aforesaid twenty - four (24) month period, Lessee shall have the unilateral option, upon ninety (0) days advance notice, to continue the aforesaid interim operation and services on a like basis until said be- ginning date or for twelve (12) additional months, whichever first occurs. In the further event that said beginning date has not occurred at the expiration of said twenty -four (24) month perioc and Lessee has not exercised its option to continue the interim operation, or Lessee having ex- ercised its option and said beginning date has not occurred by the expiration of the thirty -six (36) month period (24 plus 12), then and in either of such events Lessor shall have the unilaterz option, upon ninety (90) days advance notice, to terminate this entire lease without further ob- ligation. 14. Limitation on Lease Execution. Lessors authorization for its officers to execute this lease has been given upon the express condition that the approval of the same by the Common Council of the .City of South Bend must occur no later than October 31, 1977, and failure to ap- prove the same as aforesaid shall release Lessor from any and all obligations in relation there- to. 15. Notices. Any demand, notice or request shall be sufficient if deposited in the United States Mail, postage prepaid, registered or certified, and addressed to Lessor at 1814 American National Bank Building, South Bend, Indiana 46601, or the Lessee to the attention.of the Preside of the Common Council and the South Bend City Attorney at the County -City Building, South Bend, Indiana 46601, or at such other address as Lessor or Lessee may, from time to time specify by like notice. Any such notice shall be deemed to have been given on the date on which the same is deposited in the United States Mail. 16. Successors or Assigns. All covenants and provisions of this Lease shall be binding upon and shall inure to the benefit of the successors and assigns of the respective parties hereto. 17. Construction of Covenants. Lessor consists of two corporations as follows: Clay Utilities, Inc., being a public utility holding an indeterminate permit and having the power to lease such utility facilities to Lessee under the provisions of Burns Indiana Statutes An- notated, Code edition I.C. 1971, 19 -2 -5.5 as added by Acts 1975, P.L. 211, is a wholly owned subsidiary of Lessor Clay Development Corp. All provisions herein contained shall be construed in accordance with the provisions of said Act and to the extent of inconsistencies, if any, between the covenants and agreements in this Lease and the provisions of said Act, the pro- visions of said Act shall be deemed to be controlling and binding upon Lessor and Lessee. 18. Severability. If any provision of this lease, or its application to any circumstance, is held invalid, the invalidity does not affect other provisions that can be given effect with- out the invalid provision or application.