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
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