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Home My WebLink AboutSewage Works Reimbursement Agreementi,. Shirley Nolat 11P CLgRk COUNTY RECORDER Clank County Recorder I 200400299 Page 1 of 11 C2 0ate 01/05/2904 Time 13:14:53 SEWAGE WORI{S REIMBURSEMENT AGREEMENT This Agreement is entered into on the ad"day of December, 2003, by and among the City of Jeffersonville, an Indiaua municipal corporation, by and through the Jeffersonville Sewer Board ("Jeffersonville") and James W, Applegate,. a resident of Clark County, Indiana (the "Developer"). RECITALS: WHEREAS, Developer has developed a certain single family residential subdivision known as Steeplechase Subdivision, situated in Clark CounTy, Indiana, and more particularly described as follows (the "Subdivision"): Steeplechase Subdivision, as the same appears of record in Plat Book 9, page 42, in [he office of the Recorder of Clark County, hrdiana ("Section I"); Steeplechase Subdivision, Unit R, as the same appears of record in Plat Book 10, page 4, in the office of the Recorder of Clark CounTy, Indiana (Section II"); Steeplechase, Unit III, as the same appears of record in Plat Book 10, page 38, in the office of the Recorder of Clark CounTy, Indiana ("Section III"); Steeplechase Unit IV, as the same appears of record in Plat Book ] Q, page 73 in the office of the Recorder of Clark County, indtana ("Section IV"); and WHEREAS, Developer is the current owner of the following lots within said subdivision (the "Developer Lots"): Lots 401 -405, 41 I, 412, 426 mrd 427 in Section N; and WHEREAS, Developer has previously developed Sections I through III of the Subdivision and, in connection with said development, has caused sanitary sewer collection facilities to be constructed and installed in said Sections I through III; and WHEREAS, while in the process of developing Section N of the Subdivision Jeffersonville requested that Developer construct certain sewer collection facilities within the Subdivision so as to enable Sections I through IV of the Subdivision [o hook into Jeffersonville's existing wastewater collection and treatment system; and WHEREAS, [he sewer collection facilities constructed in Section IV by and at [he sole cast and expense of Developer enable all lots in Sections I through N to be capable of being served by leffersonville's existing wastewater collection and treatment system; and WHEREAS, Developer agrees that Jeffersonville's agreement to provide sewer service to the Subdivision is of great benefit to Developer and Developer's constmction of said improvements is of great benefit to Jeffersonville; and WHEREAS, Developer in return for his complete construction of a portion of the sewer collection facilities within the Subdivision, at Developer's sole expense, Developer is entitled to recover a fair pro rata share of said costs from the owners of lots within the Subdivision or other sewer users who subsequently connect to Jeffersonville's wastewater collection and treatment system through the sewer collection facilities constructed by Developer, and who did not contribute [o Developer's cost of constructing the sewer collection facilities ("Subsequent Users"); and, WHEREAS, Jeffersonville agrees, pursuant to the provisions of IC 36-9-22-2, to collect from the Subsequent Users, and to pay to Developer, a fair pro rata share of the cost of the construction of the sanitary sewer collection facilities constructed by Developer under this Agreement. Now, therefore, in consideration of the mutual promises contained herein, Jeffersonville and Developer agree as follows: I. Statutory Authority for Agreement This Agreement is made and entered in accordance with [he provisions of Indiana Code 36-9-22-2. 2. Approval of Plans and Specifications. The Developer, prior to commencing constructing the sewer collection facilities, caused the plans and specifications for sanitary sewer collection system improvements (the "Improvements") prepared by Blankenbeker & Sons Land Surveyors, Inc., P.C. (the "Plans and Specifications"), to be delivered to, and approved by, Jeffersonville. 3. Construction Inspection Jeffersonville has inspected the constntction of the Improvements and acknowledges that said construction was completed in a good workmanlike manner in accordance with the Plans and Specifications. 4. Developer to Maintain Improvements. Developer will, at its sole expense, maintain and repair the Improvements for a period of one (1) year from the date that the Improvements were completed. 5. Dedication of Improvements. Upon the satisfaction of Developer's subsequent one (1) year obligation to maintain and repair the Improvements in accordance with 7effersonville's rules and regulations, the hnprovements, as well as all sewage collection facilities previously installed in Sections I through III of the Subdivision, shall be deemed to be dedicated Jeffersonville. Jeffersonville will thereafter own, operate, maintain and replace the Improvements and all sewage collection facilities previously installed in the Subdivision, as thereafter necessary. 6. Cost of Constructing Improvements. The parties aclmowledge that Developer has incurred costs of $60,000 in completing the Improvements (the "Construction Costs. 7. Total Capacity of Improvements, It is acknowledged that Developer intends [o connect all of the lots currently owned by Developer to [he Improvements. It is agreed [hat the Irnprove~nents will have the capacity of serving all of the 139 lots in Sections 1 through IV of the Subdivision. As such, Developer shall contribute 6.47 percent of the Construction Cost without reimbursement under this Agreement. The remaining 93.53 percent of the Construction Cost (the "Reimbursable Cost") shall be subject to the reimbursement provisions of this Agreement. 8. Limitation on Use of Imnrovements Except as expressly provided in this Agreement, for a period of fifteen (15) years afer this Agreement is first executed, Ieffersonville will not permit any connection to, or extension of, the Improvements, Jeffersonville shall not permit any Subsequent User to tap into, use, or deposit sewage into the Improvements, or any lateral sewers connect to tltein, unless and until such Subsequent User makes full payment [o Developer of its fair pro rata share of the Reimbursable Cost in accordance with the provisions of Section 9 below (the "Subsequent User Pee"). 9. Jeffersonville to Collect Subsea ent User Fees At the time any Subsequent User applies for a pem~i[ to conhect into the City's wastewater collection and treatment system, ffie City shall require the Subsequent User to pay the appropriate Subsequent User Fee, in addition to any other assessments, application fees, tap-in fees or other cost or fees properly assessed under the City's ordinances, rules, and regulations. For purposes of determining each such Subsequent User Fee under this Agreement, the rules of the City shall be as follows: A. The Reimbursable Cost shall be multiplied by a fraction to determine the Subsequent User Fee. The numerator of the fraction shall be the number of new connections the Subsequent User proposes to connect. The denominator of the fraction shall be 130, such number being the remaining lots situated within Sections 1 through IV of the Subdivision that can be connected to the hnprovements after taking into account the total number of connections fm~ the Developer Lots. Based upon the foregoing determination, the Subsequent User Fee shall be $431.67 per EDU. -- B. The Subsequent User Fee shall include interest at the rate allowed on judgments under Indiana law from the date of this Agreement until the date that payment is made by the Subsequent User to the City. 10. Payment by Jeffersonville to Dev loner Jeffersonville shall assess, receive and retain all Subsequent User Fees paid by each Subsequent User for the benefit of Developer. On a regular monthly basis during the term of this Agreement Jeffersonville shall provide a complete accounting and make full payment to Developer of all Subsequent User Fees properly payable m~ paid to Jeffersonville by any Subsequent User during the prior monthly period. Payment shall be made in [he form of a check made payable to the order of Developer. The accounting shall be in the form of a report prepared by Jeffersonville (or other similar evidence) of all applications for sewer service received by Jeffersonville for the preceding year that would connect to or through the Improvements so as to enable Developer to verify the accuracy of the payment from Ieffersonville. 11. Audit. At any time Developer may cause an audit to be made of 7effersonville's records with respect to the proper assessment, payment, and collection of Subsequent User Fees during the term of this Agreement, or any partial period thereof. Such audit shall be made by a certified public accountant reasonably acceptable to Developer and Jeffersonville. In the event such audit shows that the Subsequent User Fees collected by Jeffersonville and paid to Developer for such yeaz is understated by ten percent (10%) or more, of the actual amount to which Developer is entitled, then the entire fees and expenses chazged by the certified public accountant making the audit shall be paid by Jeffersonville; otherwise, such fees and expenses shall be paid by Developer. Any party who properly owes money to the other, either through prior underpayment or overpayment, must make the payment in full in the amount shown in the audit within thirty (30) days afer the audit is completed. 12. Waiver of Rieht of Remonstrance. In consideration of, and as a condition to, Jeffersonville entering into this Agreement, Developer, and all of his assigns and successors-in-interest to any portion of the Subdivision currently owned by Developer, does hereby forever waive all rights to remmnstrate or otherwise object, pursuant to Indiana Code 36-4-3, et seq., or otherwise, to Jeffersonville's present or future annexation of all or any part of the Subdivision. Further, any Subsequent User connecting to 7effersonville's wastewater collection and Veatmen[ system to or through [he Improvements shall be deemed to have waived his rights to remonstrate against the annexation of the area served by the Improvements unless: A. the Subsequent User is required to connect to the sewer facilities because a person other than the Subsequent User bas polluted or contaminated the area;and, B. the costs of extension of or connection to the sewage works are paid by a person other than the Subsequent User or 7effersonville. 13. Duration of Agreement. This Agreement (other than waiver of right of remonstrance by Developer and Subsequent Users, which remains in effect indefinitely) remains in effect (i) until Developer fully recovers the Reimbursable Cost plus interest as provided in Section 9(A) above, or (ii) for a period of fifteen (15) years from the effective date of this Agreement, whichever is sooner, or unless terminated earlier by mutual agreement of the parties, which agreement must be in writing and signed by both parties in order to have legal effect. 14. Excusable Delav. None of the parties to this Agreement shall be liable to the others for any loss, cost, or damage, arising out of, or resulting from, any failure to perform in accordance with the terms of this Agreement where such failure is beyond the reasonable control of that party. As employed in this agreement, "beyond the reasonable control of is deemed to mean, but is not limited to, acts of God, strikes, lockouts, or other disturbances, wars, governmental action, explosions, fire floods, earthquakes or any other cause not within the reasonable control of any party hereto. I5. Governing Law. This Agreement shall be governed by, construed, and enforced in accordance with, the laws of the State of Indiana. This Agreement and all of the terms and provisions hereof shall swvive the completion of construction of the Improvements. 16. Recitals a_ nd geadines. The provisions of the Recitals of this Agreement are substantive and shall be included in any interpretation of the Agreement. The titles or headings to the sections of this Agreement are not a part of the Agreement, are solely for the convenience of the parties, and shall no[ be used to explain, modify, simplify, or ad in the interpretation of the provisions of this Agreement. 17. Authority to Contract The parties hereto represent that: (i) the parties are authorized to enter into this Agreement, (ii) the execution of this Agreement is not prohibited by the organizational documents or Indiana statutes governing any party to this Agreement, (iii) this Agreement is a valid and binding contract between the parties hereto, enforceable according to its terms, and (iv) [he execution of this Agreement does not conflict with or violate the terms of any other agreement to which any party hereto is subject. 18. Relationship of the Parties. Nothing herein contained shall be deemed or construed as creating the relationship of principal and agent, partnership, orjoint venture between the parties hereto. 19. Litigation Costs In the event that any lawsuit is filed in relation to this Agreement, the unsuccessful paiTy in the action shall pay to the successful party, in addition to all~the sums that any party may be called on to pay, a reasonable sum for the successful party's costs and attorney's fees. 20. Notice. Any notice or other communication required or permitted to be given under this agreement shall be in writing and delivered personally or by certifted mail, return receipt requested, postage prepaid, addressed to the parties a[ the following addresses: If to Teffersonville: City of Jeffersonville 4°' Floor, CiTy-County Building 501 E. Court Avenue Jeffersonville, Indiana 47130 Attn.: City Attorney If to Developer: lames W. Applegate 3103 Cottage Rake P. O. Box 1527 Jeffersonville, Indiana 47131-1527 A party's address for service of notices inay be changed from time to time by giving written notice of the party's new address to the other parties. 21. Bindine Effect; Assienment. This Agreement shall be valid and binding upon the parties hereto and their respective successors and assigns. Developer may assign its rights under this Agreement, in whole or in part, and shall provide notice to Teffersonville of eny such assignment as required herein. 22. Non-waiver. The failure of any party to this Agreement to insist on the performance of any of the terms and conditions of this Agreement, or the waiver of any breach of this Agreement, shall not be construed as thereafter waiving any such terms and conditions, but the same shall continue and remaiir in full force and effect as if no such forbeazance of waiver had occurred. 23. Severability. The invalidiTy of any portion of this Agreement shall not be deemed to affect the validiTy of any other provision hereof. In the event that any provision of this Agreement is held to be invalid or unenforceable, the parties hereto agree that the remaining provisions shall be deemed to be in full force and effect as if they had been executed by all parties hereto subsequent to [he expungement of the invalid provision. 24. Entire Aereement. This Agreement constitutes the entire agreement between the parties hereto regarding its subject matter, and any prior understanding or representation of any kind preceding the date of this Agreement shall not be binding on either party except to the extent incorporated in this Agreement. 25. Modification. Any modification of this Agreement or additional obligation assumed by either party in connection with this Agreement shall be binding only if evidenced in writing signed by an authorized representative of each party. above. IN WITNESS WHEREOF, the parties have executed this Agreement as oP [he dale set forth DEVELOPER// !/(/, o'~ Ja es W. 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