2020-33 - DG Distribution Midwest AgreementRESOLUTION NO. 2020-33
COUNCILMEMBER STEWART INTRODUCED THE FOLLOWING RESOLUTION:
WHEREAS, an Economic Opportunity Program Agreement entered into by and between the
City of Blair, Nebraska, and DG Distribution Midwest, LLC, has been prepared and presented to the
City Council to define the terms and conditions applicable for utilizing State of Nebraska Economic
Opportunity Funds is attached hereto, marked Exhibit "A" and by this reference made a part hereof,
and
WHEREAS, the terms and conditions thereof are acceptable to the municipality.
NOW, THEREFORE, BE IT RESOLVED that said Agreement referred to hereinabove is
hereby adopted and accepted by the City of Blair and the Mayor and City Clerk are hereby
authorized and directed to execute same on behalf of the municipality.
COUNCIL MEMBER STEWART MOVED THAT THE RESOLUTION BE ADOPTED AS
READ, WHICH SAID MOTION WAS SECONDED BY COUNCIL MEMBER RUMP. UPON
ROLL CALL, COUNCIL MEMBERS JENSEN, HALL, ANDERSEN, WOLLF, WILLIS, RUMP,
SHEPARD AND STEWART VOTING "AYE" AND COUNCIL MEMBERS NONE VOTING
"NAY", THE MAYOR DECLARED THE FOREGOING RESOLUTION PASSED AND
APPROVED THIS 22ND DAY OF SEPTEMBER 2020.
CITY OF BLAIR, NEBRASKA
BY
RI HARD HANS CN, MAYOR
ATTEST:
STATE OF NEBRASKA )
) :ss:
WASHINGTON COUNTY )
BRENDA WHEELER, hereby certifies that she is the duly appointed, qualified and acting City
Clerk of the City of Blair, Nebraska, and that the above and foregoing Resolution was passed and
adopted at a regular meeting of the Mayor and City Council of said City, held on the 22nd day of
September 2020.
f
BRENDA WHEELER, CITY CLERK
CITY OF BLAIR/PROJECT EMERALD
ECONOMIC OPPORTUNITY PROGRAM AGREEMENT
THIS AGREEMENT is entered into by and between the City of Blair, 218 S 16i1r ST, Blair, NB
68008, hereinafter the "LA", and Project Emerald, DG Distribution Midwest, LLC, 100 Mission Ridge,
Goodlettsville, TN, 37072 hereinafter the "Business", and who together will be collectively referred to as
"the Parties".
WHER , AS, the purpose of this Agreement is to define the terms and conditions applicable to the Parties
for utilizing State of Nebraska Economic Opportunity Program Funds (hereinafter "EOP" or "EOP
Funds), in a manner consistent with Neb. Rev. Stat. §39-2806. Nebraska law provides for the expenditure
of EOP Funds to finance transportation improvements to attract and support new businesses and business
expansions by successfully connecting such businesses to Nebraska's multimodal transportation network,
and to increase employment, create high-quality jobs, increase business investment, and revitalize rural
and other distressed areas of the state.
WHEREAS, the Business has committed to a project that meets the criteria of the State's Economic
Opportunity Program; and
WHEREAS, the LA has committed to entering into a Program Agreement with the Business to
implement the project consistent with the State's Economic Opportunity Program guidelines and Neb.
Rev. Stat. §39-2806; and
WHE, REAS, the Parties understand that the LA will also be entering into a separate Program Agreement
with the State of Nebraska, Department of Transportation (hereinafter the "State") to implement the
project consistent with the State's Economic Opportunity Program guidelines and Neb. Rev. Stat. §39-
2806;
NOW THE'RTORE, in consideration of the mutual promises and understandings specifically set forth
herein, the LA and the Business jointly agree to the following:
I. Project Description/Objective:
1.1 Project Location: 101s ST extension from Wilbur ST to US -75 in Blair, NE
Current Jurisdictional Authority: City of Blair
Key Project Features and Project Description/Objective:
The project will involve an extension of existing 10'l' ST to create a connection from existing
Wilbur ST to existing US -75. The 101h ST extension will be constructed to be approximately 31
ft wide and 9 in thick. The road will be on a new alignment with new ROW obtained by the City
of Blair in a manner consistent with the Uniform Act. The project is anticipated to include all
activities associated with constructing a roadway, including but not limited to engineering,
design, grading, paving, culvert work, guardrail, utilities, and ROW.
The City of Blair determined that construction of the roadway is necessary to meet the
Business's plans for the site. The site is easy to develop with minor topography challenges which
means development can occur on the site with minimal costs to the company. This project meets
the objectives of the EOP because it provides a transportation connection that is anticipated to be
instrumental to creating high quality jobs and spurring private capital investment within, the state
by both the present company and future tenants along the roadway
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The parties are aware of the anticipated future construction of the Blair South Bypass (the
Bypass) in the area near this EOP project, however the parties believe this EOP project has
independent utility and value as a transportation connection regardless of whether or when the
Bypass is constructed in the future. Construction of this EOP project will be undertaken
independent from the anticipated Bypass project, however the City of Blair will take all steps
necessary to avoid any actions or activities upon this EOP project that could negatively affect the
planning, construction or completion of the anticipated Bypass project.
1.2 Estimated Positive Economic Impact resulting from the Project:
Anticipated number of new 'obs
300
Anticipated number of retained 'obs
N/A
Anticipated private capital investment
$85,000,000
Village/City/MPO/area impacted by improvement
City of Blair, Two Tier Surrounding
Counties Omaha Metro area
II. Division and Reimbursement of Costs:
Type of Work
Anticipated
EOP
Funds %
LA Funds
%
Business
Funds %
Total
Preliminary Engineering and
Property Acquisition
$30,000.00
$120,000
$
$150,000.00
Construction
$465,000.00
$670,000
$
$1,140,000.00
Project Closeout
$5,000-00
$5,000
$
$10,000.00
TOTAL:
$500,000.00
$
$
$1,300.000.00
2.1 The Parties understand that construction and engineering expenses which will be approved for
reimbursement (hereinafter "Eligible Expenses") may only include the necessary, reasonable, and
customary costs, fees and other expenses that are incurred to complete a transportation project,
and will be determined solely at the discretion of the State subject to the Program Agreement
entered into between the LA and the State. Expenses which are generally eligible include, but are
not limited to, the usual and customary design, engineering, construction, inspection, and right of
way expenditures. Expenses which are generally ineligible include, but are not limited to, utility
placement and/or established utility relocation, refinancing or payment of existing debt, and
betterments or improvements which are above and beyond the original scope and objective of the
transportation project.
2.2 The Parties understand that the State's maximum reimbursement amount to the LA for Eligible
Expenses incurred upon the project is 75% of transportation project costs or $500,000.00. Any
remaining balance necessary to complete the project as defined in this Program Agreement shall
be attributed as follows:
All remaining balances shall be the responsibility of the City of Blair. The City of Blair will
create a paving district to finance the City share of extending 101a Street from Wilbur Street south
to Highway 75, with the street extension and paving project, minus the EOP State Grant, being
the financial responsibility of the City and assessed to the benefit of the public.
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The LA is responsible for ensuring that funds are available to meet their financial obligations to
complete this EOP project as contemplated by the Parties and as set forth in this Program
Agreement, including the availability of funds necessary to complete the project if the State's
maximum reimbursement amount is exceeded or for any project costs determined by the State to
be ineligible for reimbursement.
2.3 The Parties understand that State EOP Funds will be made available for reimbursement of
Eligible Expenses upon receipt by the LA, generally in accordance with the following Phasing
schedule:
a. Phase I: Preliminary Engineering and Property Acguisiton: 20% of the State's EOP
Funding will be disbursed upon:
i. documentation that the LA governing body has formally approved and set aside all
matching funds identified herein to be utilized for the completion of this project;
ii. documentation that the Business has officially and formally committed to the project
in this LA/Business Program Agreement;
iii. verification of compliance with all right-of-way requirements and completion of
final design plans consistent with provisions 3.1, 3.2.a and 3.2.b below; and
iv. receipt by the State of a billing invoice/request for reimbursement setting forth all
Eligible Expenses thus far.
b. Phase II: Construction: An additional 70% of State's EOP Funding will be disbursed to the
LA according to the following schedule:
L Initial 30% upon:
A. documentation of a properly awarded construction contract for the project
consistent with provisions 3.1 and 3.2.c below, such that construction is ready to
commence; and
B. receipt of a billing invoice/request for reimbursement setting forth all Eligible
Expenses thus far.
ii. Additional 40% upon:
A. completion of approximately one-half of project construction in a manner
consistent with provisions 3.1 and 3.2.d.
B. receipt of a billing invoice/request for reimbursement setting forth all Eligible
Expenses thus far.
c. Phase III: Proiect Closeout: The final disbursement of EOP Funds, up to the final 10% of
the original EOP funding amount, will be paid to the LA upon receipt of:
i. a final billing invoice/request for reimbursement which sets forth a complete and
final accounting of all Eligible Expenses incurred to complete the project, as mote
specifically set forth in provision 2A.b below; and
ii. a full and complete copy of the as -built plans.
2.4 a. All billing invoices/requests for reimbursement must be submitted to the LA in a manner
consistent with the State's billing processing system so that timely payment may be made, and
must include all necessary state and federal tax documentation required by the State to process
payment. Billing invoices/requests for reimbursement shall only be submitted to the LA after
amounts due exceed $1,000.00, and shall be submitted to the LA no more frequently than
monthly. Billing invoices/requests for reimbursement by the Business must contain adequate
documentation to substantiate the expenses incurred, and to determine compliance with the EOP
program application and the LA's Program Agreement with the State. Noncompliant invoices or
requests for reimbursement will not be paid; notice and explanation of a noncompliant invoice or
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request for reimbursement will be returned to the Business within thirty (30) days of receipt by
the LA.
b. The final billing invoice/request for reimbursement must be received no later than one year
from the date of completion of the project; if a final invoice is not received within one year of
completion of the improvement, the most recent billing invoice/request for reimbursement
received by the Business will be considered the final invoice submitted upon the improvement,
and any and all obligation by the LA to pay additional funds will terminate.
2.5 All obligations set forth in this Program Agreement, including all obligations of the LA to
reimburse costs as set forth herein, shall terminate immediately without penalty or fin-ther
payment required if, in any fiscal year, the Nebraska Legislature fails to appropriate or otherwise
make available funds for the work contemplated herein. In such an event, the LA will provide the
Business with written notice setting forth the effective date of termination.
M. Additional Obligations, Declarations, and Certifications:
3.1 The Parties agree to comply with all federal, state and local laws, ordinances, rules and
regulations relating to the activities carried out by the Parties under this Program Agreement,
including but not limited to the requirements of the Uniform Relocation Assistance and Real
Property Acquisition Policies Act of 1970 (the Uniform Act); Neb. Rev. Stat. §4-108 to 4-114 to
utilize a federal immigration verification system to determine the work eligibility status of new
employees physically performing services within the State of Nebraska; Neb. Rev. Stat. §§48-
1101 through 48-1126, known as the Nebraska Fair Employment Practices Act; Neb. Rev. Stat.
§81-3445, governing the use of professional architects or engineers for projects which exceed
$100,000; and Neb.Rey.Stat.§81-3437 requiring designation of a coordinating professional. The
Business further agrees to cooperate and provide any and all efforts requested or required by the
LA so that the LA may meet the terms of its Program Agreement with the State.
The LA and the Business agree to commit all reasonable efforts and resources necessary to carry
out the provisions of this Program Agreement and to ensure the LA's ability to carry out the
provisions of its Program Agreement with the State, understanding that failure to comply with the
terms set forth herein may result in the State's termination of the EOP project, and the State's
demand for reimbursement from the Parties of all EOP funds disbursed thus far. A copy of the
Program Agreement between the State and the LA will be provided to the Business.
3.2 It is understood that the LA will be required by its Program Agreement with the State to accept
responsibility for the management, planning, design, right-of-way activities, bid letting,
construction, construction engineering and future operation and maintenance of this project and to
ensure that no aspect of this project interferes with the planning, construction or completion of
the anticipated Blair South Bypass project anticipated nearby, subject to terms which will be
specifically set forth in the Program Agreement between the State and the LA. To implement the
project as contemplated by the Parties, the following assignment of duties and responsibilities
between the LA and the Business will apply during the term of this Program Agreement:
LA and Business agree that the LA is responsible for all phases and tasks of the project.
In addition, the Parties understand and agree that:
a. Prior to advertising for bids for the project, the LA will be required to certify to the
State that all necessary right-of-way, temporary and permanent easements, and temporary use
permits have been properly obtained by the LA and that the project is legally prepared to proceed.
The State may, in some circumstances, require that a dedication of property be made to the
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ownership of the LA to ensure that finds utilized upon the project result in a meaningful
contribution to a purpose generally beneficial to the citizens of the State of Nebraska.
b. The LA will be required to provide plans which have been prepared and signed by a
licensed professional engineer for the State's review, and the State must review all plans and
specifications prepared by the LA prior to letting. In the event the project connects to, physically
touches or impacts a portion of the state highway system, the LA will be required to provide plans
for review which meet the higher NDOT standard highway design and construction requirements
applicable to State highway projects.
c. The LA will be required to advertise the project, accept bids, and award the contract
for construction of the project in a manner consistent with applicable state and local law. The
State shall be entitled to terminate this Program Agreement in the event no contract has been
awarded by December 31, 2021 and recovery of EOP funds disbursed thus far to the LA may
commence as more specifically set forth in provision 3.5 below.
d. The LA will be required to oversee construction to ensure the project is constructed as
described or shown upon the approved plans, specifications, and estimates, or as amended by any
approved change orders.
3.3 The Business and the LA agree to maintain records and documentation of the project for at least
five years after termination/expiration of this Program Agreement, including but not limited to:
books kept in accordance with generally accepted accounting principles, detailed records of
expenditures, recipients and uses of all funds paid and disbursed in conjunction with this Program
Agreement, as well as final design plans, as -built plans, and structural material certifications.
Each shall make such documentation available to the other to copy or review upon request, within
a reasonable time period, and in particular in a manner sufficient to respond or comply with
internal or external audit requirements of the LA, the Business, and/or the State.
3.4 The Business must submit an annual economic impact progress report to the the LA by
December 1st of each subsequent year after completion of the project, for a period of five
consecutive years after completion of the project.
3.5. The Parties understand that in the event the LA or the Business fails to meet the terms of this
Program Agreement, or in the event the Business does not fulfill its commitment to locate
operations on the site or demonstrate positive economic impact as contemplated or described
within provisions 1.1 and 1.2 of this Program Agreement (also known as "default"), the State may
immediately provide the LA with notice of termination of funding and seek reimbursement and
repayment of all EOP funds disbursed thus far upon the project from the LA. In the event of such
occurrence, the Business shall immediately reimburse and repay the LA for all EOP funds
disbursed thus far to the Business by the LA; all EOP funds reimbursed and repaid by the
Business to the LA shall then be repaid by the LA to the State.
Furthermore, in the event of termination of this Program Agreement, the Parties agree to the
following terms regarding reimbursement and repayment of non-EOP funds expended upon the
project by the Business and the LA up to the date of termination:
"Each party shall bear the cost and expense of its own non-EOP funded expenditures upon
the project up to the date of termination";
3.6 This Program Agreement commences upon signature by the last of all required signatories and
terminates 30 days after the LA's receipt of the final annual progress report unless terminated
sooner pursuant to the terms set forth herein, or by the written mutual agreement of the Parties.
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3.7 This Program Agreement, along with any and all attachments and items incorporated by
references herein, contains the entire agreement between the Parties. This Agreement shall be
binding upon and inure to the benefit of the Patties hereto, their successors and assigns. The LA
and the Business shall adopt all necessary ordinances and/or resolutions as may be necessary to
give frill force and effect to the terms of this Program Agreement.
3.8 The Business agrees to hold the LA and the State harmless from any and all claims, demands, or
actions based upon or arising out of the negligent or willfiil acts or omissions of the Business and
its officials, officers, employees, agents, associates, contractors, or subcontractors in the
performance of this Program Agreement, or impacting the performance of the Program
Agreement between the LA and the State. The LA agrees to hold the Business harmless from any
and all claims, demands, or actions based upon or arising out of the negligent or willful acts or
omissions of the LA and its officials, officers, employees, agents, associates, contractors, or
subcontractors in the performance of this Program Agreement, or impacting the performance of
the LA's Program Agreement with the State.
3.9 Nothing in this Program Agreement should be construed in any manner as creating or establishing
a joint relationship or partnership between the parties, nor shall either party have the right, power
or authority to create any obligations or duties, express or implied, on behalf of the other party.
IV. Attachments
4.1 EOP Grant Application
4.2 Map showing general alignment of proposed new street
V. Additional Terms and Conditions
5.1 The LA and Business firrther agree that;
a) The City shall extend Water and Sewer to Highway 75 utilizing the new 1011' Street right of
way with none of the cost being assessed to the Business and providing for the connection to the
new mains at no cost to the Business.
b) The Business agrees that to fullest extent possible, that the Business will ask, direct, and
request that all trucks, customers, and employees accessing the business utilize the new street
from the new intersection of 10d, Street and Highway 75 when coming into and exiting the
business property.
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VI. IYnal Affirmation and Signatures
IN WITNESS WHEREOF, the Parties acknowledge they have read and understand this Program
Agreement, and that they execute this Program Agreement pursuant to lawful authority granted to them,
effective upon the date set forth by the last signatory below:
EXECUTED by the LA this Z2 day of Se�r 202D.
pp
Printe Official, inF4udingTitle
Signature
EXECUTED by the Business this C day of AIMAW, 202X!
A)C,t4AVA L cJ,, e,-Jbi �ty�v1L 'w,os7ay C'.A1�,�J
Printed Name of Official , Including Title
Signature
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