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2007-35COUNCIL MEMBER CHRISTIANSEN INTRODUCED THE FOLLOWING RESOLUTION: WHEREAS, a Water Service Agreement between the City of Blair, Nebraska and Omaha Public Power District (OPPD), has been prepared and presented to the City Council providing for the terms and provisions of the sale of water from the City of Blair to Omaha Public Power District, a copy of which Agreement 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 Water Service 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 CHRISTIANSEN MOVED THAT THE RESOLUTION BE ADOPTED AS READ, AND SAID MOTION WAS SECONDED BY COUNCIL MEMBER BIFFAR. UPON ROLL CALL, COUNCIL MEMBERS STEWART, SCHEVE, SHOTWELL, CHRISTIANSEN, ABBOTT AND BIFFAR VOTING "AYE" AND COUNCIL MEMBERS NONE VOTING "NAY ", THE MAYOR DECLARED THE FOREGOING RESOLUTION PASSED AND APPROVED THIS 22ND DAY OF MAY, 2007. CITY OF BLAIR, NEBRASKA ATTEST: AlibtA&- BINDA R. WHEELER, CITY CLERK (SEAL) STATE OF NEBRASKA ) ) :ss: WASHINGTON COUNTY ) RESOLUTION NO. 2007 - 35 JA . REALPH, MAYOR BRENDA R.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 a a City Council of said City, held on the 22nd day of May, 2007. /A/ v( BRENDA R. WHEELER, CITY CLERK WATER SERVICE AGREEMENT This WATER SERVICE AGREEMENT (this "Agreement "), made and executed this day of May, 2007, by and among the CITY OF BLAIR, NEBRASKA, a city of the first class existing under and by virtue of the laws of the State of Nebraska (the "City "), whose address for purposes of this Agreement is 218 South 16 Street, Blair, Nebraska 68008 (Attn: City Administrator), and OMAHA PUBLIC POWER DISTRICT, a public corporation and a political subdivision organized and existing under the laws of the State of Nebraska (the "Customer "), whose address for purposes of this Agreement is 444 South 16 Street Mall, 5E/EP 2 FM DIV, Omaha, NE 68102 (Attn: Marcus W. Nichols); WITNESSETH: WHEREAS, City owns and operates a system of waterworks and water supply (as now existing or hereafter extended or improved, the "Water System ") which serves City and its inhabitants as well as customers in the area surrounding the City, including Customer's Plant (as herein defined); and WHEREAS, Customer is a public power district engaged, among other things, in the business of generating electricity at its Fort Calhoun Nuclear Generating Facility (as now existing or hereafter improved, the "Plant ") located on certain real property in the vicinity of the City of Blair, Nebraska, as more particularly described on Exhibit "A" attached hereto (the "Real Estate "); and WHEREAS, in connection with Customer's operations at the Plant, Customer currently utilizes water provided by the City from the Water System pursuant to an Agreement dated May 8, 1990 (as amended by Addendum dated October 22, 1991, the "Existing Agreement "); and WHEREAS, Customer desires to make certain improvements to certain water distribution facilities on and around the Real Estate, including connection of such facilities to Customer's well (the "Customer Well ") located on property owned by Customer adjacent to the Real Estate, as shown on Exhibit "B" (the "Improvements "); and WHEREAS, City has agreed to allow Customer to construct such Improvements and interconnect such Improvements with the Customer Well on the terms set forth in this Agreement; and WHEREAS, the City and the Customer desire to amend and restate their respective obligations under the Existing Agreement and provide for certain other understandings relating to the Customer's use of water from the Water System and the construction of the Improvements, all as more particularly described herein; NOW THEREFORE, in consideration of the mutual covenants hereinafter made, City and Customer hereby amend and restate the Existing Agreement in its entirety and further agree as follows: follows: 1. Representations and Warranties of City. The City represents and warrants to Customer as follows: a. City is a municipal corporation organized and in existence under the laws of the State of Nebraska, and is and has been duly authorized to enter into this Agreement and to carry out its obligations hereunder; and b. the execution of this Agreement and the consummation of the transactions contemplated hereby and the fulfillment and compliance with the terms and conditions hereof will not violate any provision of law governing the operations of the City and will not conflict with or result in the breach of any terms or provisions of any restriction, agreement or instrument to which the City is a party or by which it is bound, or constitute a default under any of the foregoing. 2. Representations and Warranties of Customer. Customer represents and warrants to the City as a. Customer is a public power district duly organized and in existence under the laws of the State of Nebraska, and is and has been duly authorized to enter into this Agreement and to carry out its obligations hereunder; and b. the execution of this Agreement and the consummation of the transactions contemplated hereby and the fulfillment and compliance with the terms and conditions hereof will not violate any provision of Customer's charter or bylaws and will not conflict with or result in the breach of any terms or provisions of any restriction, agreement or instrument to which it is a party or by which it is bound, or constitute a default under any of the foregoing. 3. Aereement to Provide Water Service. During the term of this Agreement, the City will make available to the Customer at the Plant's metering facility water service from the Water System in accordance with the following parameters: 0.403 Million Gallons Per Day (MGD) (1,617,112 Cubic Ft./Month) based on an average flow rate over a 30 -day period (the "Scheduled Usage "). As and to the extent available, the City may, in its discretion, make additional service available to Customer subject to the payment by Customer of applicable charges as described below; provided, that nothing provided herein shall be construed to require City to provide to Customer any water service in excess of Scheduled Usage. The City will endeavor to notify the Customer with as much reasonable notice as is practical of any events or times during which, by reason of maintenance, repair or other operation of the Water System, that the Scheduled Usage would be temporarily interrupted or decreased. City shall not be held responsible or liable for any damages or injuries which may result from the inability of City to provide water by reason of acts of God, natural catastrophes, or any other events or conditions beyond the reasonable control of the City. The City shall be solely responsible for the maintenance, repair and operation of the Water System, except to the extent any maintenance or repair of the Water System is necessary due to the negligent or intentional acts or omissions of the Customer or the breach of the Customer's obligations hereunder. The City shall operate and maintain the Water System in good working order and otherwise in compliance with all Laws. 4. Payments. For and in consideration of the City's agreements herein, Customer hereby agrees to make the following monthly payments: a. Demand Charge. $5,174.76 per month, representing a monthly demand charge of 32 cents per 100 Cubic Ft. ( "CF ") of Scheduled Usage b. Water Charees. For water actually used by Customer during any monthly billing cycle, charges shall be based on the City's rural commercial rate structure as shown on the City's rate chart as amended from time to time and currently adopted as follows: 1. Base meter fee (6" meter) $515.00 2. $1.472 per 100 CF for the first 65,000 CF of water used; plus 3. $1.15 per 100 CF of water used in excess of 65,000 CF, 4. City shall credit Customer an amount equal to the demand charge (currently 32 cents per hundred CF) for all water used up to 1,617,112 CF. The City shall provide to the Customer a regular monthly billing statement (each, a "Billing Statement ") setting forth the actual quantity of water used by the Customer at the Real Estate during the preceding billing cycle (the "Actual Usage "), together with a statement of the amount (the "Monthly Billing Amount ") which is due and payable based on the foregoing charges, with such payments to be made within 20 days of the date of such Billing Statement. All payments described in this Section 4 shall be subject to adjustment in accordance with generally - applicable rate increases implemented by the City, provided that any such rate increase shall be fair, reasonable, nondiscriminatory, and consistent with increases in rates charged by the City to rural commercial customers. 2 5. Construction of Improvements: Interconnection: Inspection and Permitting. Customer shall construct at its own expense the Improvements on the following terms and conditions: a. The Improvements shall be constructed at the sole expense of Customer, and Customer shall pay all amounts due for labor and materials provided as and when the same are due. Construction of the Improvements shall be completed no later than June 1, 2007. b. The Improvements shall be constructed as shown on Exhibit "B" and otherwise in accordance with plans and specifications prepared and approved by a qualified and licensed professional engineer and all applicable laws, permits, orders and regulations (collectively, "Laws "). c. Customer shall, at Customer's expense, obtain all necessary permits and approvals for the construction and interconnection of the Improvements. Without limitation of the foregoing, prior to Customer's interconnection of the Customer Well into Customer's potable water system which connects to the City's Water System, Customer shall furnish to the City a letter from the Nebraska Health and Human Services Department granting permission for such interconnection. All costs and expenses associated with obtaining such letter shall be borne by Customer; however, City will take reasonable steps to assist Customer in obtaining such letter. d. Customer will be allowed to interconnect the Customer Well to the non - potable water service serving the Plant, as shown on Exhibit "B ", using the valving system shown on Exhibit "B ". The six valves (Numbered BP1 through BP6, hereinafter referred to as the "Restricted Valves ") shall be gate valves installed by Customer, and shall have a locking system that only the City shall have keys for. City designated staff shall be the only persons permitted to open the Restricted Valves. e. In the event that the Customer should desire to utilize water from the City's Water System through the Restricted Valves for industrial needs, Customer shall contact the City at (402) 426 -9661 (Water Treatment Plant). City's designated staff will respond within two hours of such notice during working hours and within four hours of such notice during non - working hours. f. Customer shall operate and maintain the Improvements in good working order and otherwise in compliance with all Laws. Customer shall conduct (or cause to be conducted) annual tests by state - certified testers on all backflow detectors on both the potable and non - potable water systems as shown on Exhibit "B" to verify proper working condition and compliance with all Laws. Customer shall provide written reports annually to the City showing such compliance. All such operation, maintenance, inspection and reporting shall be conducted at the sole expense of Customer. 6. Payment of Demand Charges. The Demand Charge described in Section 4(a) shall be payable without setoff, deduction or abatement, in such amounts and at such times as are set forth above. Customer agrees that the Demand Charge shall be due and payable as stated herein regardless of the quantity of water actually used by the Customer at the Real Estate (even if less than the Scheduled Usage, or even if Customer should cease operations at the Plant). The Demand Charge shall continue to be due and payable as stated herein notwithstanding the existence or continuation of any City Default (as defined below), so long as: (a) the 21 -day grace period provided for in Section 9 has not expired, or (b) City has commenced to cure such City Default within such 21 -day grace period and is diligently pursuing completion of the same and the cure is completed within 180 days of the City Default; or (c) such City Default is due to any natural disaster, act of God, strike or labor dispute, civil disturbance, terrorism, the imposition of material restrictions or requirements by or under new federal or state environmental legislation, or other cause beyond the reasonable control of the City and the cure is completed within 180 days of the City Default. 7. Events of Default by Customer. Each of the following shall constitute a default by the Customer under this Agreement (each, a "Customer Default "): due; (a) should Customer fail to make any payment due under this Agreement as and when the same is 3 (b) should Customer fail to comply with any provision of this Agreement which failure materially and adversely impacts the health, safety or environmental compliance of the Water System; or (c) should Customer fail to comply with any other provision of this Agreement, or should any representation of Customer contained in this Agreement be or become false or misleading in any material respect, and which is not cured within 21 days after written notice from the City (or, in the event that such Customer Default described in this subsection (c) is of a nature that it cannot reasonably be cured within such 21 -day period, and so long as the Customer commences to cure such Customer Default within such 21 -day period and thereafter diligently pursues the same to completion, within 180 days of such Customer Default). 8. Remedies of Citv Upon Customer Default. In the event of a Customer Default City may take all actions permitted by law and this Agreement to collect any sums due under this Agreement, and may take all actions permitted by law to enforce any non - monetary provision of this Agreement; provided, however, that in no event may the City terminate water service to the Plant based on a Customer Default described in Sections 7(a) or 7(c) above without providing Customer at least 180 days prior written notice of such termination. 9. City Default. In the event of any default by the City in the performance of its obligations under this Agreement (each, a "City Default ") which is not cured within 21 days after written notice from Customer (or, in the event that such City Default is of a nature that it cannot reasonably be cured within such 21 -day period, and so long as the City commences to cure such City Default within such 21 -day period and thereafter diligently pursues the same to completion, within such time as is reasonably necessary to cure such City Default), Customer's exclusive remedies shall be either (i) to pursue specific performance or mandamus of the City's obligations hereunder as and to the extent permitted by law, or (ii) to terminate this Agreement and pursue a claim against the City for the hard and soft costs of replacing the water service formerly provided by the City up to a maximum of $200,000.00. Except as provided herein, Customer hereby expressly waives any and all other claims for damages against City in the event of any City Default. 10. Term and Termination. This Agreement shall be effective as of the date first above written and shall continue in effect until the 30th day of September, 2027, at which time the City's obligation to provide water service under the terms of this Agreement shall cease, unless it is extended by agreement of both parties. 11. Effect on Existing Agreement. The Customer and the City have previously entered into the Existing Agreement pertaining to water service for the Plant. This Agreement supersedes and replaces said Existing Agreement in its entirety, and neither the Customer nor the City shall have any obligations under said Existing Agreement from and after the effective date of this Agreement. 12. Miscellaneous. a Notices. Any notice under this Agreement shall be in writing and shall be effective when actually delivered, or when deposited with a nationally recognized overnight courier, or, if mailed, shall be deemed effective when deposited in the United States mail first class, certified or registered mail, postage prepaid, directed to the party or parties at its or their respective addresses set forth above. Any party may change its address for notices under this Agreement by giving formal written notice to the other parties specifying that the purpose of the notice is to change the party's address. b. Governing Law. This Agreement has been delivered to City and accepted by City in the State of Nebraska, and shall be governed by and construed in accordance with the laws of the State of Nebraska. c. Assignment. This Agreement may not be assigned by either party without the express written consent of the other party; provided, however, that the City may assign this Agreement without consent to a properly - permitted successor operator of the Water System. d. Paragraph Headings. Caption headings in this Agreement are for convenience purposes only and are not to be used to interpret or define the provisions of this Agreement. 4 (SEAL) ATTEST: e. Severabilitv. If a court of competent jurisdiction finds any provision of this Agreement to be invalid or unenforceable as to any person or circumstance, such finding shall not render that provision invalid or unenforceable as to any other persons or circumstances. If feasible, any such offending provision shall be deemed to be modified to be within the limits of enforceability or validity; however, if the offending provision cannot be so modified, it shall be stricken and all other provisions of this Agreement in all other respects shall remain valid and enforceable. f. Binding Effect; Successors and Assigns. Subject to the limitations on assignment stated in this Agreement, this Agreement shall be binding upon and inure to the benefit of the parties, their heirs, legatees, devisees, personal representatives, successors and assigns. g. Time of the Essence. Time is of the essence of this Agreement. h. Counterparts. This Agreement may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. i. Entire Agreement: Amendments. This Agreement constitutes the entire understanding and agreement of the parties as to the matters set forth in this Agreement. No alteration of or amendment to this Agreement shall be effective unless made in writing and signed by the party or parties sought to be charged or bound by the alteration or amendment. j. City Authorization. The execution of this Agreement by the City was authorized by resolution of the City Council of the City duly adopted on May 22, 2007. IN WITNESS WHEREOF, Customer and City have executed this Agreement, effective as of the date first above written. Z 7cte,_IL k\icui Name: *Ve r Title: Q&.. ., vzjL. (SEAL) ATTEST: 6t-Le.tAk Name: /) n gE ,574-174-2/ Title: 5 CITY OF BLAIR, NEBRASKA By: a✓"� —•- Nam Jcus-i -..es Kee, l Pfri Title: ax CjQ_ OMAHA PUBLI POWER DIST : T By: Name r+efr2 c of itit -(cS LS Titl: S tark G1.4f EXHIBIT A FCS Legal Description PARCEL 7: Beginning at the South Quarter corner of Section Seventeen (17), Township 18 North, Range 12 East of the 6th P.M., Washington County, Nebraska; thence North 0 °11' West along the North South Quarter line of said Section 17 a distance of 2087.33 feet to its intersection with the right bank of the designed channel of the Missouri River; thence meandering said right bank as follows: COURSE DISTANCE South 41°30' East 234.74 feet South 43 °32' East 500.00 feet .. South 44 °50' East 500.00 feet South 47 °26' East 500.00 feet South 49 °00' East 500.00 feet South 50 °50' East 500.00 feet South 52 °30' East 361.83 feet to intersect the South line of said Section 17; thence along said section line North 89 °48' West a distance of 2266.13 feet to the point of beginning, also known as Tax Lot Eleven (11); AND, PARCEL 8: Beginning at the intersection of the West line of Section Twenty -one (21), Township 18 North, Range 12 East of the 6th P. M., Washington County, Nebraska and the meander line of the right bank of ditch 1996.58 feet North of the West Quarter corner of Section 21; thence along the West line of Section 21, North 0 °53' East a distance of 323.41 feet to intersect the right bank of the designed channel of the Missouri River; thence along said right bank South 54 °16' West a distance of 159.77 feet; thence South 56 °20' East a distance of 55.33 feet to intersect the extended meander line of the right bank of a ditch; thence along said meander line South 42 °12' West a distance of 269.05 feet to the point of beginning, also known as Tax Lot Sixteen (16); AND, PARCEL 9: Tax Lot Forty -seven (47) (part of Tax Lot Twenty -four (24) 1965, being Tax Lot Twenty -four (24) in the Northeast Quarter of the Southwest Quarter of Section Twenty (20) Township 18 North Range 12 East of the 6th P.M., Washington County, Nebraska, Tess Tax Lot Forty -six (46), Tax Lot Forty -six (46) being described as follows: Tax Lot Forty -six (46) (part of Tax Lot Twenty -four (24) 1965 From the South Quarter corner of Section 20, Township 18 North Range 12 East of the 6th P.M. , Washington County, Nebraska, and assuming the North -South Quarter line to bear due North and South; thence North 1704.03 feet; thence West a distance of 95.21 feet to the point of beginning, said point being 40.0 feet from, as measured at right angles to the center -line of U. S. Highway No. 73; thence North 10 °41' East a distance of 500.00 feet; thence North 68 °49' West a distance of 353.17 feet; thence South 10 °41' West a distance of 500.00 feet to a point 40.0 feet from, as measured at right angles to the centerline of said highway No. 73; thence along a line 40.0 feet from and parallel to the centerline of said highway No. 73 to the point of beginning, (chord distance of the last described course being 353.17 feet and bearing South 68 °49' East), lying in the Northeast Quarter Southwest Quarter of Section Twenty (20), Township 18 North, Range 12 East of the 6th PM, Washington County, Nebraska and containing 4.0 acres more or less; -AND, PARCEL 10: Beginning at a point 53.3 feet South of the center of Section Twenty (20), Township 18 North, Range 12 East of the 6th P.M., Washington County, Nebraska, said point being on the Southerly right of way of the C. St. P. M. & O. Railroad; thence North 84 °43' East along said right of way a distance of 321.74 feet; thence South 10 °07' West 491.0 feet; thence South 44 °46' West 119.0 feet; thence South 6 °15' East 57.0 feet; thence South 25 °19' West 48.0 feet; thence South 0 °59' West 74.0 feet; thence South 52 °51' West 181.9 feet to a point on the North South Quarter line of Section Twenty (20); thence North 0 °43' East along the section line 822.17 feet to the place of beginning, also known as Tax Lot Twenty -nine (29); AND, PARCEL 11: Beginning at the North Quarter corner of Section Twenty (20), Township 18 North, Range 12 East of the 6th P. M., Washington County, Nebraska; thence along the North line of Section 20 South 89 °48' East a distance of 2266.13 feet to its intersection with the right bank of the designed channel of the Missouri River; thence along said designed channel South 52 °30' East a distance of 138.17 feet; thence South 54 °16' East a distance of 340.23 feet to its intersection with the East line of Section 20; thence along said East line South 0 °53' West a distance of 323.41 feet to the meander of the right bank of a ditch; thence along said meander as follows: COURSE DISTANCE South 42 °12' West 388.58 feet South 47 °35' West 365.69 feet South 33 °53' West 219.77 feet South 44 °15' West 396.12 feet South 35 °29' West 275.49 feet South 74 °26' West 266.93 feet to its intersection with the Quarter Quarter line West of the East line of Section 20; thence along said Quarter Quarter line South 0 °48' West a distance of 524.69 feet to its intersection with the Northerly right of way of the C. St. P. M. & O. Railroad; thence along said right of way South 84 °43' West a distance of 1331.45 feet to the West line of Section 20; thence along the West line of Section 20 North 0 °43' East a distance of 2560.52 feet to the point of beginning, including Government Lot One (1), Tax Lot Seventeen (17), Part of Tax Lot Six (6) and that part of Tax Lots Three (3) and Eighteen (18) Tying East of the North South Quarter line, all in the Northeast Quarter of Said Section Twenty (20), also known as Tax Lot Thirty -five (35); AND, PARCEL 12: That part of Tax Lots Three (3) and Eighteen (18) Tying West of the North South Quarter line and North of the Northerly right of way of the C. St. P. M. & O. Railroad being within the East One -half of the Southeast Quarter of the Northwest Quarter of Section Twenty (20), Township 18 North, Range 12 East of the 6th P. M., Washington County, Nebraska also known as Tax Lot Thirty -six (36); Containing 500.55 Acres, More or Less, Less 9.5 Acres of Railroad ROW EXHIBIT B • ; - Spool Pieces with Drain WLL DM? WI 014-652 • 1) 405 ; 13V-554 USE 1 atom vATEn Pular 10301 Iva WELL I - Spool Pieces with Drain 1 WELL 1 WELL BACKFLOW PREVENTER --w DWB75 men •"+" D•684 DWAeR2 DWBeO CW6TO DWS12 X DW.e71 WELL1 EET CONNECTIONS AND OUTSIDE WATER TAPS 6UR I5�16 &TI6H 'MOURN FIIREPADIEETIFY SY$TE 1 Off -542 �Q 61 6 9 615 BLAIR TER .t •..-• _I VAULT ADx•CX -20 OR-E17 114;16 PC• `B+ - BLAIR WATER MAIN 541 i4 ° , s. 4 DH34L DV-626 DY•D32 0Y -573 OEM BACNROH PAMIR veal' EQTAEA PATER SUPPLY PO PAT PLANT PDTAELE MATE SLPPLY I -533 NIMES OW-FIR PI- 15A/04 Dx •627 DV-63L DY -632 DY•635 • 3 • „ DE -542 Dv44 _04 OW-15A •-,- Dv321 Option 3 - Spool Pieces with Drain 6' D11.031 DN•55 1)...1.,--1)4...--...-.... voT n PLANT u� �� `7' ON -422 E• O DE-634 -41- It' N 3. DE-465 i 14�Yt� 14 04•201 R 24 1 9 °N! DW55,� I. 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