05-12-2009 City Council Regular Meeting PacketCity of Grand Island
Tuesday, May 12, 2009
Council Session Packet
City Council:Mayor:
Margaret Hornady
City Administrator:
Jeff Pederson
City Clerk:
RaNae Edwards
T
u
7:00:00 PM
Council Chambers - City Hall
100 East First Street
Larry Carney
Scott Dugan
John Gericke
Peg Gilbert
Chuck Haase
Robert Meyer
Mitchell Nickerson
Bob Niemann
Kirk Ramsey
Jose Zapata
Call to OrderCity of Grand Island City Council
A - SUBMITTAL OF REQUESTS FOR FUTURE ITEMS
Individuals who have appropriate items for City Council consideration should complete the Request for Future Agenda
Items form located at the Information Booth. If the issue can be handled administratively without Council action,
notification will be provided. If the item is scheduled for a meeting or study session, notification of the date will be given.
B - RESERVE TIME TO SPEAK ON AGENDA ITEMS
This is an opportunity for individuals wishing to provide input on any of tonight's agenda items to reserve time to speak.
Please come forward, state your name and address, and the Agenda topic on which you will be speaking.
MAYOR COMMUNICATION
This is an opportunity for the Mayor to comment on current events, activities, and issues of interest to the community.
Call to Order
Pledge of Allegiance
Roll Call
Invocation
This is an open meeting of the Grand Island City Council. The City of Grand Island abides by the Open Meetings Act
in conducting business. A copy of the Open Meetings Act is displayed in the back of this room as required by state
law.
The City Council may vote to go into Closed Session on any agenda item as allowed by state law.
City of Grand Island City Council
Item C1
Proclamation "Tourism Recognition Month" May, 2009
Whereas, travel and tourism is extremely important to the community of Grand Island in
terms of revenues generated, and because the travel and tourism industry contributes to the
employment, economic prosperity, international trade, and relations and peace,
understanding, and goodwill, Mayor Hornady, in conjunction with the Hall County
Convention and Visitors Bureau, has proclaimed the month of May, 2009 as "Tourism
Recognition Month". See attached PROCLAMATION.
Tuesday, May 12, 2009
Council Session
City of Grand Island
Staff Contact: Mayor Hornady
City of Grand Island City Council
Item C2
Presentation by Tam Allen, Chairman Nebraska State Fair Board
Concerning Request for Ground Lease and Use of City Land for
State Fair Vehicle Parking
The current site plan for the Nebraska State Fair in Grand Island includes a 30,000 sq. ft.
building that is proposed to be constructed on City land near Fire Station One. The plan also
utilizes City land adjacent to Island Oasis for Fair parking.
Nebraska State Fair Board Chairman Tam Allen will visit with the Council about the interest
that the Fair has in utilizing these areas for the respective State Fair uses. The placement of
the building would require a ground lease from the City.
Tuesday, May 12, 2009
Council Session
City of Grand Island
Staff Contact: Jeff Pederson
City of Grand Island City Council
Item E1
Public Hearing Concerning Acquisition of Utility Easement - 3134
West Highway 34 - Central Community College
Tuesday, May 12, 2009
Council Session
City of Grand Island
Staff Contact: Gary R. Mader
City of Grand Island City Council
Council Agenda Memo
From: Robert H. Smith, Asst. Utilities Director
Meeting: May 12, 2009
Subject: Acquisition of Utility Easement – 3134 West Highway 34 –
Central Community College
Item #’s: E- 1 & G-5
Presenter(s): Gary R. Mader, Utilities Director
Background
Nebraska State Law requires that acquisition of property must be approved by City Council.
The Utilities Department needs to acquire an easement relative to the property of Central
Community College located along the west side of Wortman Drive at 3134 West Highway
34, in the City of Grand Island, Hall County, in order to have access to install, upgrade,
maintain, and repair power appurtenances, including lines and transformers.
Discussion
This easement will be used to place conduit, primary electrical cable and a pad-mounted
transformer to provide electrical service to the new addition of Central Community College.
Alternatives
It appears that the Council has the following alternatives concerning the issue at hand. The
Council may:
1. Make a motion to approve
2. Refer the issue to a Committee
3. Postpone the issue to future date
4. Take no action on the issue
Recommendation
City Administration recommends that the Council approve the resolution for the acquisition
of the easement for one dollar ($1.00).
Sample Motion
Motion to approve acquisition of the Utility Easement.
Item E2
Public Hearing Concerning Acquisition of Utility Easement - 4705
Gold Core Drive - Zitski, LLC
Tuesday, May 12, 2009
Council Session
City of Grand Island
Staff Contact: Gary R. Mader
City of Grand Island City Council
Council Agenda Memo
From: Robert H. Smith, Asst. Utilities Director
Meeting: May 12, 2009
Subject: Acquisition of Utility Easement – 4705 Gold Core Drive
– Zitski, LLC
Item #’s: E-2 & G-6
Presenter(s): Gary R. Mader, Utilities Director
Background
Nebraska State Law requires that acquisition of property must be approved by City
Council. The Utilities Department needs to acquire an easement relative to the property
of Zitski, LLC located on the west side of 4705 Gold Core Drive, in the City of Grand
Island, Hall County, in order to have access to install, upgrade, maintain, and repair
power appurtenances, including lines and transformers.
Discussion
This easement will be used to provide a location for underground conduit, cable, and a
pad-mounted transformer to provide electrical service to the new Nova Tech
manufacturing facility. Tract two (2) will also provide the needed easement for the
primary electrical feed along Gold Core Road.
Alternatives
It appears that the Council has the following alternatives concerning the issue at hand.
The Council may:
1. Make a motion to approve
2. Refer the issue to a Committee
3. Postpone the issue to future date
4. Take no action on the issue
Recommendation
City Administration recommends that the Council approve the resolution for the
acquisition of the easement for one dollar ($1.00).
Sample Motion
Motion to approve acquisition of the Utility Easement.
Item E3
Public Hearing Concerning Acquisition of Utility Easement - 2216
East Highway 30 - Bosselman Carriers, Inc.
Tuesday, May 12, 2009
Council Session
City of Grand Island
Staff Contact: Gary R. Mader
City of Grand Island City Council
Council Agenda Memo
From: Robert H. Smith, Asst. Utilities Director
Meeting: May 12, 2009
Subject: Acquisition of Utility Easement – 2216 East Hwy. 30 –
Bosselman Carriers, Inc.
Item #’s: E- 3 & G-7
Presenter(s): Gary R. Mader, Utilities Director
Background
Nebraska State Law requires that acquisition of property must be approved by City
Council. The Utilities Department needs to acquire an easement relative to the property
of Bosselman Carriers, Inc., located at 2216 East Highway 30, in the City of Grand
Island, Hall County, in order to have access to install, upgrade, maintain, and repair
power appurtenances, including lines and transformers.
Discussion
This easement will be used to extend an overhead power line and add transformers to
improve the electrical service to the adjacent buildings.
Alternatives
It appears that the Council has the following alternatives concerning the issue at hand.
The Council may:
1. Make a motion to approve
2. Refer the issue to a Committee
3. Postpone the issue to future date
4. Take no action on the issue
Recommendation
City Administration recommends that the Council approve the resolution for the
acquisition of the easement for one dollar ($1.00).
Sample Motion
Move to approve acquisition of the Utility Easement.
Item E4
Public Hearing on Disestablishment of Business Improvement
District No. 8
Tuesday, May 12, 2009
Council Session
City of Grand Island
Staff Contact:
City of Grand Island City Council
Council Agenda Memo
From: Jeff Pederson, City Administrator
Meeting: May 12, 2009
Subject: Disestablishment of Business Improvement District No. 8
Item #’s: E-4 & F-3
Presenter(s): Jeff Pederson, City Administrator
Background
On April 14, 2009, the City Council passed Resolution No. 2009-90 which set May 12,
2009 as the date for a Public Hearing on the issue of disestablishment of Business
Improvement District No. 8. Some written evidence (documents) has been received, and
will be brought forward at the Hearing.
Discussion
The City Council is now at the stage in the process where evidence is received at a public
hearing regarding whether or not to disestablish Business Improvement District No. 8.
State law requires that the Council hear all protests and receive evidence for or against
disestablishment. Prior to closing the hearing, Council must rule upon all written protests.
This merely means that Council should determine if the protests are validly signed by
someone who owns property within the boundaries of the District. If the owners of more
than 50% of the assessable units communicate in writing that they do not want the district
to be disestablished, you will not even consider the ordinance to disestablish and the
district will continue.
Under every other scenario, the outcome is at the discretion of the governing body. You
may disestablish the district or not depending on what you feel is in the best interests of
those involved based on the evidence presented during the hearing. Although the hearing
was set by a resolution of intent to disestablish the district, neither state law nor city code
explicitly states that there is any presumption that you will act one way or another. If
there are not enough protests to automatically stop the process, you may decide to
introduce the ordinance to disestablish so that you may have a discussion about whether
or not to disestablish. A vote for the ordinance would end the district. A vote against the
ordinance would allow the district to continue. You also have the option of not
introducing the ordinance at all and taking no further action. In that case, the district
would continue.
Alternatives
If there are not enough protests to automatically stop the process, the Council has the
following alternatives concerning the issue at hand. The Council may:
1. Continue the public hearing if more time is needed to adduce evidence or
verify protests.
2. Take no action on the issue.
3. Waive the rule requiring three readings, introduce the ordinance, and vote for
or against passage.
4. Introduce the ordinance on first reading.
Recommendation
This issue involves the owners of property within a Business Improvement District and
not the day-to-day operations of the City. Since the action of the Council should be based
on evidence presented at a hearing, City Administration has no recommendation.
Sample Motion
Motion to be taken depends on the course of action the council chooses.
Item F1
#9214 - Consideration of Annexation of Property Located South of
Case New Holland and West of Highway 281 (Second Reading)
Tuesday, May 12, 2009
Council Session
City of Grand Island
Staff Contact: Chad Nabity
City of Grand Island City Council
Council Agenda Memo
From: Regional Planning Commission
Meeting: May 12, 2009
Subject: Annexation Ordinance (Second Reading)
Item #’s: F-1
Presenter(s): Chad Nabity AICP, Regional Planning Director
Background
Annexation of land, located in the SE ¼ of the NE ¼ of 25-11-10 (south of Case New Holland
and west of U.S. Highway 281) into the Grand Island City Limits see the attached map.
Case New Holland, owner of this property, petitioned Council to consider annexation of
this property. City Counc il has already approved a request to rezone the property from
TA Transitional Agriculture to M1 Light Manufacturing.
Discussion
On March 4, 2009 the Hall County Regional Planning Commission held a public hearing
before considering this matter.
No members of the public testified at the hearing held by the Regional Planning
Commission.
This property is adjacent to and contiguous with the Grand Island City Limits. It is
entirely surrounded by the City Limits.
Water is available to the property. Sewer is available to the property. This property is
within the Grand Island Utilities Electrical Service District. This property is within the
Grand Island School District. Annexing this property will not impact the two mile
extraterritorial jurisdiction of Grand Island.
On April 28, 2009 Council held a public hearing concerning this annexation. No
members of the public spoke at the hearing. Council passed the ordinance to annex on the
first reading.
Alternatives
It appears that the Council has the following alternatives concerning the issue at hand.
The Council may:
1. Approve the annexation as presented
2. Modify the annexation to meet the wishes of the Council
3. Postpone the issue
Recommendation
A motion was made by Haskins, and seconded by Aguilar to recommend approval of the
Annexation as it meets the City Comprehensive Plan.
A roll call vote was taken and the motion passed with 7 member’s present voting favor
(Aguilar, Amick, Ruge, Hayes, Haskins, Bredthauer, Snodgrass).
Sample Motion
Move to approve the annexation as requested.
Approved as to Form ¤ ___________
May 7, 2009 ¤ City Attorney
ORDINANCE NO. 9214
An ordinance to extend the boundaries and include within the corporate limits of,
and to annex into the City of Grand Island, Nebraska, a tract of land West of U.S. Highway 281
in the Southeast Quarter of the Northeast Quarter (SE1/4NE1/4) of Section Twenty-five (25) in
Township Eleven (11) North, Range Ten (10) West of the 6th P.M. in Hall County, Nebraska as
more particularly described hereinafter and as shown on Exhibit “A” attached hereto; to provide
service benefits thereto; to repeal any ordinance or resolutions or parts of thereof in conflict
herewith; to provide for publication in pamphlet form; and to provide the effective date of this
ordinance.
WHEREAS, after public hearing on March 4, 2009, the Regional Planning Commission
recommended the approval of annexing into the City of Grand Island, the following tract of land
in Hall County, Nebraska:
A tract of land located in part of the Southeast Quarter of the Northeast Quarter
(SE1/4NE1/4) of Section Twenty-five (25), Township Eleven (11), North, Range Ten (10) West
of the 6th p.m., in Hall County, Nebraska, except a certain tract more particularly described in
quit claim deed recorded to the State of Nebraska in book 141, page 258, and except a certain
tract more particularly described in appraiser's report recorded in book 9, page 67, and more
particularly described as follows:
* This Space Reserved For Register of Deeds *
ORDINANCE NO. 9214 (Cont.)
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Commencing at the east quarter corner of Section 25-T11N-R10W; thence on an assumed
bearing of S88°08'57"W upon and along the south line of the SE1/4NE1/4 a distance of 132.51
feet to the northeast corner of Lot 2, Pedcor Second Subdivision, an addition to the City of Grand
Island, Nebraska, said point also being the westerly right-of-way (ROW) line of US Highway
#281 and the point of beginning; thence S88°09'55"W upon and along the south line of said
SE1/4NE1/4, said line also being the north line of said Lot 2 a distance of 1189.55 feet to the
southwest corner of said SE1/4NE1/4, said point also being the northwest corner of said Lot 2;
thence N01°24'18"W upon and along the west line of said SE1/4, NE1/4 a distance of 1322.52
feet to the northwest corner of said SE1/4NE1/4; thence N88°18'32"E upon and along the north
line of said SE1/4NE1/4 a distance of 860.86 feet to said westerly row line of US Highway #281;
thence S21°57'28"E along and upon said west row line a distance of 398.06 feet to a point of
curvature; thence upon and along said westerly row line around a curve in a clockwise direction
having a delta angle 20°00'15", an arc length 968.79 feet, a radius 2774.79, a chord bearing
S12°42'30"E with a chord distance of 963.87 feet to the point of beginning. Said tract contains a
calculated area of 1,412,514.37 square feet or 32.427 acres more or less
WHEREAS, after public hearing on April 28, 2009, the City Council of the City
of Grand Island found and determined that such annexation be approved; and
WHEREAS, on April 28, 2009, the City Council of the City of Grand Island
approved such annexation on first reading.
BE IT ORDAINED BY THE MAYOR AND COUNCIL OF THE CITY OF
GRAND ISLAND, NEBRASKA:
SECTION 1. It is hereby found and determined that:
(A) The above-described tracts of land are urban or suburban in character, and
that the subject properties are contiguous or adjacent to the corporate limits of said City.
(B) The subject lands will receive the material benefits and advantages currently
provided to land within the City's corporate limits including, but not limited to police, fire,
emergency services, street maintenance, and utilities services upon annexation to the City of
Grand Island, Nebraska, and that City electric, water and sanitary sewer service is available, or
will be made available, as provided by law.
ORDINANCE NO. 9214 (Cont.)
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(C) The various zoning classifications of the land shown on the Official Zoning
Map of the City of Grand Island, Nebraska, are hereby confirmed and that the extraterritorial
zoning jurisdiction is extended as allowed by law.
(D) There is unity of interest in the use of the said tract of land, lots, tracts,
highways and streets (lands) with the use of land in the City, and the community convenience
and welfare and in the interests of the said City will be enhanced through incorporating the
subject land within the corporate limits of the City of Grand Island.
(E) The plan for extending City services adopted by the City Council by the
passage and approval of Resolution No. 2009-58 is hereby approved and ratified as amended.
SECTION 2. The boundaries of the City of Grand Island, Nebraska, be and are
hereby extended to include within the corporate limits of the said City the contiguous and
adjacent tract of land located within the boundaries described above.
SECTION 3. The subject tract of land is hereby annexed to the City of Grand
Island, Hall County, Nebraska, and said land and the persons thereon shall thereafter be subject
to all rules, regulations, ordinances, taxes and all other burdens and benefits of other persons and
territory included within the City of Grand Island, Nebraska.
SECTION 4. The owners of the land so brought within the corporate limits of the
City of Grand Island, Nebraska, are hereby compelled to continue with the streets, alleys,
easements, and public rights-of-way that are presently platted and laid out in and through said
real estate in conformity with and continuous with the streets, alleys, easements and public
rights-of-way of the City.
SECTION 5. That a certified copy of this Ordinance shall be recorded in the
office of the Register of Deeds of Hall County, Nebraska and indexed against the tracts of land.
ORDINANCE NO. 9214 (Cont.)
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SECTION 6. Upon taking effect of this Ordinance, the services of said City shall
be furnished to the lands and persons thereon as provided by law, in accordance with the Plan for
Extension of City Services adopted herein.
SECTION 7. That all ordinances and resolutions or parts thereof in conflict
herewith are hereby repealed.
SECTION 8. This ordinance shall be in full force and effect from and after its
passage, approval and publication, in pamphlet form, as provided by law.
Enacted: May 12, 2009.
____________________________________
Margaret Hornady, Mayor
Attest:
________________________________
RaNae Edwards, City Clerk
ORDINANCE NO. 9214 (Cont.)
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Item F2
#9215 - Consideration of Lease-Purchase Agreement, Ground
Lease and Escrow Agreement for Building and Related
Improvements to Serve as a Recreational Facility for State Fair
Activities (Second Reading)
Tuesday, May 12, 2009
Council Session
City of Grand Island
Staff Contact: Jeff Pederson
City of Grand Island City Council
Council Agenda Memo
From: Jeff Pederson, City Administrator
Meeting: May 12, 2009
Subject: Lease-Purchase Agreement, Ground Lease and Escrow
Agreement for Building and Related Improvements to
Serve as a Recreational Facility for State Fair Activities
Item #’s: F-2
Presenter(s): Jeff Pederson, City Administrator
Background
The City Council has heretofore taken action intended to facilitate the contribution of the
sum of $5 million towards the relocation of the Nebraska State Fair to Grand Island. That
action includes the passage on September 9, 2008 of Ordinance No. 9189 implementing
an occupation tax upon the sale of prepared food and non-alcoholic beverages. With the
collection of the occupation tax to occur over a period of time, it becomes necessary to
institute some form of borrowing in order to meet the requirements of LB 1116 that the
$5 million be available for State Fair construction at the Fonner Park site.
Discussion
Council’s first of reading of this ordinance was held April 28, 2009. Council’s first
reading of the ordinance produced discussion and recommendations on the draft of the
ground lease with Fonner Park. Subsequent negotiation meetings have achieved a
revision to the draft ground lease which I believe is favorable to both parties.
Notable adjustments within the attached draft Ground Lease Agreement for the second
ordinance reading are:
· Section 3 Use
· Section 5 Rent
· Section 8 Assignment and Subletting
Alternatives
It appears that the Council has the following alternatives concerning the issue at hand.
The Council may:
1. Move to approve
2. Refer the issue to a Committee
3. Postpone the issue to future date
4. Take no action on the issue
Recommendation
Approve the Agreements.
Sample Motion
Move to approve Ordinance No. 9215 authorizing the Lease-Purchase Agreement,
Ground Lease and Escrow Agreement and authorize execution.
Initial Presentation Draft
LEASE-PURCHASE AGREEMENT
Between
WELLS FARGO BROKERAGE SERVICES, LLC
As Lessor
and the
The City of Grand Island, Nebraska
As Lessee
Dated as of the first day of July, 2009
LESSOR’S ORIGINAL
THIS LEASE-PURCHASE AGREEMENT dated as of the first day of July, 2009
(the Lease), by and between WELLS FARGO BROKERAGE SERVICES, LLC, as lessor
(Lessor), whose address is 608 Second Avenue South – 10th Floor; MAC: N9303-105,
Minneapolis, MN 55479, Attention Public Finance, and the City of Grand Island, Nebraska, as
lessee (Lessee) whose address is P.O. Box 1968, 100 East First Street, Grand Island, Nebraska
68802-1968.
WITNESSETH:
WHEREAS, Lessee is authorized under the terms of Section 13-304, R.R.S. Neb.
2007 to acquire, hold, improve and operate a recreational facility and to acquire such property by
entering into lease-purchase agreement under Section 19-2421, R.R.S. Neb. 2007; and
WHEREAS, Lessee, Lessor and Hall County Livestock Improvement
Association (the “Association”) have entered into a Ground Lease dated as of July 1, 2009 (the
Ground Lease), whereby the Association has leased to Lessor and Lessee certain land described
therein and as set forth on Exhibit A hereto (the Land); and
WHEREAS, Lessor has agreed to acquire and construct on the Land certain
improvements constituting a building and related improvements on the Land (the
“Improvements”) to Lessee, pursuant to this Lease in accordance with Lessee’s requirements and
specifications; and
WHEREAS, Lessee has determined that it is necessary and desirable for it to
obtain lease-purchase financing under this Lease for the construction and acquisition of such
Improvements upon the Land;
NOW THEREFORE, in the joint and mutual exercise of their powers, and in
consideration of the mutual covenants herein contained, the parties hereto recite and agree as
follows:
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ARTICLE I
DEFINITIONS AND EXHIBITS
Section 1.1.Definitions. Unless the context otherwise requires, the terms
defined in this Section shall, for all purposes of this Lease, have the meanings herein specified.
Closing Date: The date upon which the amount specified in Section 2.3 is
deposited with the Escrow Agent.
Escrow Agent: Wells Fargo Bank, National Association, acting as escrow agent,
pursuant to the terms and conditions of the Escrow Agreement, or any successor appointed and
so acting under the terms of the Escrow Agreement.
Escrow Agreement: The Escrow Agreement dated as of the date hereof, by and
between the Escrow Agent, Lessee, and Lessor and any replacement thereof or supplement
thereto.
Fiscal Year: The twelve month fiscal period of Lessee which commences on
October 1 in every year and ends on the following September 30.
Ground Lease: The Ground Lease dated as of the date hereof, by and between the
Association, Lessor and Lessee, whereby the Association has leased the Land to Lessee and
Lessor.
Independent Counsel: An attorney duly admitted to the practice of law before the
highest court of the State who is not a full-time employee of Lessor or Lessee.
Improvements: The improvements described on Exhibit A hereto, and all repairs,
replacements, substitutions and modifications thereto.
Interest: The portion of any Rental Payment designated as and comprising
interest as shown in the attached Exhibit B.
Land: The land described on Exhibit A hereto.
Net Proceeds: Any insurance proceeds or condemnation award, paid with respect
to the Project, remaining after payment therefrom of all expenses incurred in the collection
thereof.
Payment Date: The date upon which any Rental Payment is due and payable as
provided in Exhibit B.
Permitted Encumbrances: As of any particular time: (i) liens for taxes and
assessments not then delinquent, or which Lessee may, pursuant to provisions of Section 7.3
hereof, permit to remain unpaid, (ii) this Lease and the Ground Lease and amendments to either
thereof, (iii) Lessor’s interest in the Project, and (iv) any construction, mechanic’s, laborer’s,
3
materialmen’s, supplier’s or vendor’s lien or right not filed or perfected in the manner prescribed
by law which Lessee may, pursuant to Article VIII hereof, permit to remain unpaid.
Principal: The portion of any Rental Payment designated as principal in the
attached Exhibit B.
Project: The interest of Lessor in the Land under the Ground Lease and the
Improvements.
Purchase Option Price: With respect to the Project, as of the Payment Dates
specified in the attached Exhibit B, the amount so designated and set forth opposite such date.
Rental Payment: The payment due from Lessee to Lessor on each Payment Date
during the Term of this Lease, as shown on Exhibit B.
State: The State of Nebraska.
State and Federal Law or Laws: The Constitution and any law of the State and
any rule or regulation of any agency or political subdivision of the State; and any law of the
United States, and any rule or regulation of any federal agency.
Term of this Lease or Lease Term: The period during which this Lease is in
effect as specified in Section 4.1.
Certain other terms used in this Lease are defined in parentheses elsewhere in this
Lease.
Section 1.2. Exhibits.
The following Exhibits are attached to and by reference made a part of this Lease:
Exhibit A: A description of the Land and Improvements subject to this Lease.
Exhibit B: A schedule indicating the date and amount of each Rental Payment
coming due during the Lease Term, the amount of each Rental Payment comprising Principal
and Interest, and the price at which Lessee may exercise its option to purchase Lessor’s interest
in the Project in accordance with Article X.
Exhibit C: A certificate of officers of Lessee as to certain matters relating to the
Lease, the Ground Lease and the Escrow Agreement.
Exhibit D: A form of opinion of counsel to Lessee.
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ARTICLE II
REPRESENTATIONS, COVENANTS AND WARRANTIES
Section 2.1. Representations, Covenants and Warranties of Lessee. Lessee
represents, covenants and warrants as follows:
(a) Lessee is a duly formed and validly existing political subdivision of
the State, governed by the Constitution and laws of the State.
(b) Lessee is authorized under the Constitution and laws of the State
(specifically Section 19-2421, R.R.S. Neb. 1997, referred to herein as the Act) to
enter into this Lease and the Escrow Agreement and the transactions
contemplated thereby, and to perform all of its obligations thereunder.
(c) The officers of Lessee executing this Lease, the Ground Lease and the
Escrow Agreement have been duly authorized to execute and deliver such
documents under the terms and provisions of an ordinance of Lessee’s governing
body, or by other appropriate official action.
(d) In authorizing and executing this Lease, Lessee has complied with all
public bidding and other State and Federal Laws applicable to this Lease and the
acquisition of the Improvements by Lessee.
(e) Lessee will not pledge, mortgage or assign this Lease, or its duties and
obligations hereunder to any other person, firm or corporation except as provided
under the terms of this Lease.
(f) Lessee will use the Project during the Lease Term only to perform
essential governmental functions or governmental and proprietary functions.
(g) Lessee will take no action that would cause the Interest portion of the
Rental Payments to become includable in gross income of the recipient for federal
income tax purposes under the Internal Revenue Code of 1986, as amended (the
“Code”) and Treasury Regulations promulgated thereunder (the “Regulations”),
and Lessee will take and will cause its officers, employees and agents to take all
affirmative actions legally within its power necessary to ensure that the Interest
portion of the Rental Payments does not become includable in gross income of the
recipient for federal income tax purposes under the Code and Regulations.
(h) Lessee has funds available and properly appropriated or subject to
appropriation to pay Rental Payments until the end of the current Fiscal Year and
under the terms of the Act the Lessee is (i) authorized to acquire title to the
Improvements, (ii) the term of this Lease is not restricted to a single year and (iii)
this Lease may provide for the purchase of the Improvements in installment
payments.
5
(i) Lessee will execute and deliver on the Closing Date a certificate
substantially in the form of Exhibit C hereto, and Lessee will cause its legal
counsel to provide a legal opinion to Lessor substantially in the form of Exhibit D
hereto, dated as of the Closing Date.
Section 2.2. Representations, Covenants and Warranties of Lessor. Lessor
represents, covenants and warrants as follows:
(a) Lessor is a limited liability company duly organized, existing and in
good standing; has power to enter into this Lease, the Ground Lease and the
Escrow Agreement; is possessed of full power to own and hold real and personal
property, and to lease the same; and has duly authorized the execution and
delivery of this Lease, the Ground Lease and the Escrow Agreement.
(b) Neither the execution and delivery of this Lease, the Ground Lease
and the Escrow Agreement, nor the fulfillment of or compliance with the terms
and conditions thereof, nor the consummation of the transactions contemplated
thereby, conflicts with or results in a breach of the terms, conditions or provisions
of any restriction or any agreement or instrument to which Lessor is now a party
or by which Lessor is bound, constitutes a default under any of the foregoing, or
results in the creation or imposition of any lien, charge or encumbrance
whatsoever upon any of the property or assets of Lessor, or upon the Project
except Permitted Encumbrances.
Section 2.3. Deposit of Funds. Upon execution and delivery of this Lease and the
Ground Lease, Lessor shall deposit the sum of $5,000,000 into escrow pursuant to the terms and
conditions of the Escrow Agreement which amount shall be disbursed by the Escrow Agent in
payment of the costs of the Improvements in accordance with this Lease and the Escrow
Agreement.
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ARTICLE III
LEASE OF PROJECT
Section 3.1. Lease. (a) Lessor hereby leases the Improvements (as and when
constructed and acquired under the terms of this Lease and as paid for from amounts deposidted
by Lessor under the Escrow Agreement) to Lessee, and Lessee hereby leases the Improvements
from Lessor, upon the terms and conditions set forth in this Lease. Lessee hereby confirms the
rights of Lessor to construct, acquire, own and operate the Improvements as set forth in the
Ground Lease. Such rights are hereby acknowledged to include full access and use by Lessor for
the location, construction, acquisition, installation, operation and maintenance of the
Improvements. The Improvements as financed pursuant hereto are hereby acknowledged to be the
separate property of the Lessor, subject to the rights provided for Lessee under the terms of this
Lease.
(b) Lessor hereby leases to Lessee, and Lessee hereby leases from Lessor, upon and
subject to the terms and conditions hereinafter set forth, the Improvements, as and to the extent
constructed and acquired under the terms of this Lease. Lessor shall lease the Improvements to
Lessee (as and to the extent constructed or acquired) for a term beginning on date hereof and ending
on ____________, 20__. Until payment in full of all Rental Payments due hereunder the
Improvements shall remain the property of the Lessor and shall not become a part of the real estate
described on Exhibit A hereto attached. Upon the final payment of all rental obligations under this
Lease the Improvements shall be conveyed to Lessee by the Lessor by quitclaim deed and bill of
sale to be executed and delivered by Lessor upon the written request of Lessee.
(c) Lessor and Lessee agree that, as and to the extent that this Lease may be
regarded as relating to goods, goods which may become fixtures, fixtures, furniture or equipment,
this Lease shall constitute a “finance lease” within the meaning of such term as used in Article 2A
of the Nebraska Uniform Commercial Code. In such connection Lessee acknowledges (a) that
neither Lessor nor the Escrow Agent has selected, manufactured or supplied any goods constituting
the Improvements, (b) that Lessor is acquiring the Improvements in connection with this Lease and
(c) that Lessee has received a copy of the contract with the contractor constructing the
Improvements prior to the execution of this Lease. Lessee further acknowledges that Lessee has
been informed in writing before the execution of this Lease that Lessee is entitled under said Article
2A to the promises and warranties provided by such contractor and any other person supplying the
Improvements or items incorporated therein and that Lessee may communicate with any such
person and obtain a complete and accurate statement of any such promises and warranties, including
any disclaimers and limitations of them or of remedies.
Section 3.2. Possession and Enjoyment. Lessor hereby covenants to provide
Lessee during the Term of this Lease with the quiet use and enjoyment of the Project, and Lessee
shall during the Term of this Lease peaceably and quietly have and hold and enjoy the Project,
without suit, trouble or hindrance from Lessor, except as expressly set forth in this Lease. Lessor
will, at the request of Lessee and at Lessee’s cost, join in any legal action in which Lessee asserts
its right to such possession and enjoyment to the extent Lessor lawfully may do so.
7
Section 3.3. Lessor Access to Project. Lessee agrees that Lessor shall have the
right at all reasonable times to examine and inspect the Project. Lessee further agrees that Lessor
shall have such rights of access to the Project as may be reasonably necessary to cause the proper
maintenance of the Project in the event of failure by Lessee to perform its obligations hereunder.
8
ARTICLE IV
TERM OF LEASE
Section 4.1. Lease Term. This Lease shall be in effect for a Term commencing
upon its date of execution and ending as provided in Section 4.5.
Section 4.2. Agreement Concerning Rental Payments. Lessee covenants that the
Rental Payments do not exceed any limitation imposed by law. Until all Rental Payments have
been made in full, Lessee covenants and agrees to make and continue to make for so long as
permitted by law an annual levy on the taxable property within its geographical area pursuant to
Section 16-702, R.R.S. Neb. 2007, which will be sufficient, along with any other funds available
for the purpose, specifically including amounts collected from sales taxes imposed under the
Local Option Revenue Act (Sections 77-27,142 to 77-27,148, R.R.S. Neb. 2003, as amended)
and any occupation taxes designated for such purpose, to enable Lessee to make all of the Rental
Payments and to perform all other obligations of Lessee under this Lease and to take all action
required to provide funds to make the Rental Payments and perform such obligations as herein
required.Lessee covenants and agrees that throughout the term of this Lease it will observe all
budget, tax and spending limitations now or hereafter imposed by law in such a manner that a
sufficient portion of its tax levy or other monies shall be lawfully available to make all the Rental
Payments and perform all other obligations of Lessee hereunder. Lessee agrees that commencing
with its budget for the next-ensuing fiscal year it will include amounts sufficient to make the Rental
Payments as the same fall due in its annual budget and appropriations. Lessee covenants and agrees
that it shall neither take any action nor omit to take such action which such action or omission
would have the affect of causing the interest portion of the Rental Payments due under the terms of
this Lease and identified as such herein to be no longer excludable from gross income under the
Internal Revenue Code of 1986, as amended, (the Code).
Section 4.3. Intent to Continue Lease Term; Appropriations. As authorized under
the terms of Section 19-2421, R.R.S. Neb. 2007, Lessee hereby obligates itself to continue this
Lease for its entire Term and to pay all Rental Payments specified in Exhibit B, as the
installment payments related to the purchase of the Improvements. The officer of Lessee
responsible for budget preparation will include in the budget request for each Fiscal Year the
Rental Payments to become due in such Fiscal Year, and will use all reasonable and lawful
means available to secure the appropriation of money for such Fiscal Year sufficient to pay the
Rental Payments coming due therein.
Section 4.4. Termination of Lease Term. The Term of this Lease will terminate
upon the occurrence of the first of the following events:
(a) the exercise by Lessee of its option to purchase Lessor’s interest in the
Project pursuant to Article X;
(c) a default by Lessee and Lessor’s election to terminate this Lease
pursuant to Article XII; or
9
(d) the payment by Lessee of all Rental Payments and other amounts
authorized or required to be paid by Lessee hereunder.
10
ARTICLE V
RENTAL PAYMENTS
Section 5.1. Rental Payments. Lessee agrees to pay Rental Payments during the
Term of this Lease, in the amounts and on the dates specified in Exhibit B. All Rental Payments
shall be paid to Lessor at its offices at the address specified in the first paragraph of this Lease, or
to such other person or entity to which Lessor has assigned such Rental Payments as specified in
Article XI, at such place as such assignee may from time to time designate by written notice to
Lessee. Lessee shall pay the Rental Payments exclusively from moneys legally available
therefor, in lawful money of the United States of America, to Lessor or, in the event of
assignment of the right to receive Rental Payments by Lessor, to its assignee. Interest shall
accrue from the time of the deposit into escrow of funds by the Lessor.
Section 5.2. Current Expense. The obligations of Lessee under this Lease,
including its obligation to pay the Rental Payments due with respect to the Project, in any Fiscal
Year for which this Lease is in effect and shall constitute a current expense of Lessee for such
Fiscal Year.
Section 5.3. Interest Component. A portion of each Rental Payment is paid as
and represents the payment of Interest. Exhibit B sets forth the Interest component of each
Rental Payment.
Section 5.4. Rental Payments to be Unconditional. In accordance with the terms
of the Act, the obligation of the Lessee to make Rental Payments shall be binding upon the
Lessee from year to year. The obligation of Lessee to make Rental Payments or any other
payments required hereunder shall be absolute and unconditional in all events. Notwithstanding
any dispute between Lessee and Lessor or any other person, Lessee shall make all Rental
Payments and other payments required hereunder when due and shall not withhold any Rental
Payment or other payment pending final resolution of such dispute nor shall Lessee assert any
right of set-off or counterclaim against its obligation to make such Rental Payments or other
payments required under this Lease. Lessee’s obligation to make Rental Payments or other
payments during the Lease Term shall not be abated through accident or unforeseen
circumstances (including, without limitation, the occurrence of any environmental liability).
However, nothing herein shall be construed to release Lessor from the performance of its
obligations hereunder; and if Lessor should fail to perform any such obligation, Lessee may
institute such legal action against Lessor as Lessee may deem necessary to compel the
performance of such obligation or to recover damages therefor.
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ARTICLE VI
INSURANCE AND NEGLIGENCE
Section 6.1. Liability Insurance. Upon receipt of possession of the Project,
Lessee shall take such measures as may be necessary to insure that any liability for injuries to or
death of any person or damage to or loss of property arising out of or in any way relating to the
condition or the operation of the Project or any part thereof, is covered by a blanket or other
general liability insurance policy maintained by Lessee. The Net Proceeds of all such insurance
shall be applied toward extinguishment or satisfaction of the liability with respect to which any
Net Proceeds may be paid.
Section 6.2. Property Insurance. Lessee shall have and assume the risk of loss
with respect to the Project. Lessee shall procure and maintain continuously in effect during the
Term of this Lease, all-risk insurance, subject only to the standard exclusions contained in the
policy, in such amount as will be at least sufficient so that a claim may be made for the full
replacement cost of any part of the Project damaged or destroyed and to pay the applicable
Purchase Option Price of the Project. Such insurance may be provided by a rider to an existing
policy or under a separate policy. Such insurance may be written with customary deductible
amounts and need not cover land and building foundations. The Net Proceeds of insurance
required by this Section shall be applied to the prompt repair, restoration or replacement of the
Project, or to the purchase of the Project, as provided in Section 6.6. Any Net Proceeds not
needed for those purposes shall be paid to Lessee.
Section 6.3. Worker’s Compensation Insurance. If required by State law, Lessee
shall carry worker’s compensation insurance covering all employees on, in, near or about the
Project, and upon request, shall furnish to Lessor certificates evidencing such coverage
throughout the Term of this Lease.
Section 6.4. Requirements For All Insurance. All insurance policies (or riders)
required by this Article shall be taken out and maintained with responsible insurance companies
organized under the laws of one of the states of the United States and qualified to do business in
the State; and shall contain a provision that the insurer shall not cancel or revise coverage
thereunder without giving written notice to the insured parties at least ten (10) days before the
cancellation or revision becomes effective. All insurance policies or riders required by Sections
6.1 and 6.2 shall name Lessee and Lessor as insured parties, and any insurance policy or rider
required by Section 6.3 shall name Lessee as insured party. Lessee shall deposit with Lessor
policies (and riders) evidencing any such insurance procured by it, or a certificate or certificates
of the respective insurers stating that such insurance is in full force and effect. Before the
expiration of any such policy (or rider), Lessee shall furnish to Lessor evidence that the policy
has been renewed or replaced by another policy conforming to the provisions of this Article,
unless such insurance is no longer obtainable in which event Lessee shall notify Lessor of this
fact.
Section 6.5. Lessee’s Negligence. Lessee assumes all risks and liabilities,
whether or not covered by insurance, for loss or damage to the Project and for injury to or death
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of any person or damage to any property, whether such injury or death be with respect to agents
or employees of Lessee or of third parties, and whether such property damage be to Lessee’s
property or the property of others, which is proximately caused by the negligent conduct of
Lessee, its officers, employees and agents. Lessee hereby assumes responsibility for and agrees
to reimburse Lessor for all liabilities, obligations, losses, damages, penalties, claims, actions,
costs and expenses (including reasonable attorney’s fees, to the extent permitted by law) of
whatsoever kind and nature, imposed on, incurred by or asserted against Lessor that in any way
relate to or arise out of a claim, suit or proceeding based in whole or in part upon the negligent
conduct of Lessee, its officers, employees and agents, to the maximum extent permitted by law.
Section 6.6. Damage to or Destruction of Project. If all or any part of the Project
is lost, stolen, destroyed or damaged beyond repair, Lessee shall as soon as practicable after such
event replace the same at Lessee’s sole cost and expense with property of equal or greater value
to the Project immediately prior to the time of the loss occurrence, such replacement to be
subject to Lessor’s reasonable approval, whereupon such replacement shall be substituted in this
Lease by appropriate endorsement. The Net Proceeds of all insurance payable with respect to the
Project shall be available to Lessee and shall be used to discharge Lessee’s obligation under this
Section. Until all obligations of the Lessee to make Rental Payments under this Lease have been
satisfied in full, the Lessee shall make restoration and repair of the Project in such manner as will
prevent any termination of the Ground Lease.
13
ARTICLE VII
OTHER OBLIGATIONS OF LESSEE
Section 7.1. Use; Permits. Lessee shall exercise due care in the use, operation
and maintenance of the Project, and shall not use, operate or maintain the Project improperly,
carelessly, in violation of any State and Federal Law or for a purpose or in a manner contrary to
that contemplated by this Lease. Lessee shall obtain all permits and licenses necessary for the
installation, operation, possession and use of the Project. Lessee shall comply with all State and
Federal Laws applicable to the installation, use, possession and operation of the Project, and if
compliance with any such State and Federal Law requires changes or additions to be made to the
Project, such changes or additions shall be made by Lessee at its expense.
Section 7.2. Maintenance of Project by Lessee. Lessee shall, at its own expense,
maintain, preserve and keep the Project in good repair, working order and condition, and shall
from time to time make all repairs and replacements necessary to keep the Project in such
condition. Lessor shall have no responsibility for any of these repairs or replacements.
Section 7.3. Taxes, Other Governmental Charges and Utility Charges. Except as
expressly limited by this Section, Lessee shall pay all taxes and other charges of any kind which
are at any time lawfully assessed or levied against or with respect to the Project, the Rental
Payments or any part thereof, or which become due during the Term of this Lease, whether
assessed against Lessee or Lessor. Lessee shall also pay when due all gas, water, steam,
electricity, heat, power, telephone, and other charges incurred in the operation, maintenance, use,
occupancy and upkeep of the Project, and all special assessments and charges lawfully made by
any governmental body for public improvements that may be secured by a lien on the Project;
provided that with respect to special assessments or other governmental charges that may
lawfully be paid in installments over a period of years, Lessee shall be obligated to pay only such
installments as are required to be paid during the Term of this Lease as and when the same
become due. Lessee shall not be required to pay any federal, state or local income, inheritance,
estate, succession, transfer, gift, franchise, gross receipts, profit, excess profit, capital stock,
corporate, or other similar tax payable by Lessor, its successors or assigns, unless such tax is
made in lieu of or as a substitute for any tax, assessment or charge which is the obligation of
Lessee under this Section.
Lessee may, at its own expense and in its own name, in good faith contest any
such taxes, assessments, utility and other charges and, in the event of any such contest, may
permit the taxes, assessments, utility or other charges so contested to remain unpaid during the
period of such contest and any appeal therefrom unless Lessor shall notify Lessee that, in the
opinion of Independent Counsel, by nonpayment of any such items the interest of Lessor in the
Project will be materially endangered or the Project or any part thereof will be subject to loss or
forfeiture, in which event Lessee shall promptly pay such taxes, assessments, utility or other
charges or provide Lessor with full security against any loss which may result from nonpayment,
in form satisfactory to Lessor.
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Section 7.4. Advances. If Lessee shall fail to perform any of its obligations under
this Article, Lessor may, but shall not be obligated to, take such action as may be necessary to
cure such failure, including the advancement of money, and Lessee shall be obligated to repay all
such advances on demand, with interest at the rate of 12% per annum or the maximum rate
permitted by law, whichever is less, from the date of the advance to the date of repayment.
15
ARTICLE VIII
TITLE
Section 8.1. Title. During the Term of this Lease, legal title to the Improvements
and any and all repairs, replacements, substitutions and modifications thereto shall be in Lessor.
Legal title to the Land shall remain in the Association, subject to the Lessor’s and the Lessee’s
interests under the Ground Lease. Upon the payment by Lessee of all Rental Payments as
indicated in Exhibit B, or the exercise by Lessee of its option to purchase the Project pursuant to
Article X, full and unencumbered legal title to the Project shall pass to Lessee, and Lessor shall
have no further interest therein; and Lessor shall execute and deliver to Lessee such documents
as Lessee may request to evidence the passage of legal title to the Project to Lessee and the
termination of Lessor’s interest therein. Nothing herein shall require Lessor to remove any lien,
charge or encumbrance upon legal title to the Project not arising through Lessor.
Section 8.2. Liens. During the Term of this Lease, Lessee shall not, directly or
indirectly, create, incur, assume or suffer to exist any mortgage, pledge, lien, charge,
encumbrance or claim on or with respect to the Project, other than the respective rights of Lessor
and Lessee as herein provided and Permitted Encumbrances. Except as expressly provided in
Section 7.3 and this Article, Lessee shall promptly, at its own expense, take such action as may
be necessary duly to discharge or remove any such mortgage, pledge, lien, charge, encumbrance
or claim if the same shall arise at any time. Lessee shall reimburse Lessor for any expense
incurred by Lessor in order to discharge or remove any such mortgage, pledge, lien, charge,
encumbrance or claim.
Section 8.3. Installation of Lessee’s Equipment. Lessee may at any time and
from time to time, in its sole discretion and at its own expense, install items of equipment in or
upon the Project, which items shall be identified by tags or other symbols affixed thereto as
property of Lessee. All such items so identified shall remain the sole property of Lessee, in
which Lessor shall have no interest, and may be modified or removed by Lessee at any time
provided that Lessee shall repair and restore any and all damage to the Project resulting from the
installation, modification or removal of any such items. Nothing in this Lease shall prevent
Lessee from purchasing items to be installed pursuant to this Section under a conditional sale or
lease with option to purchase contract, or subject to a vendor’s lien or security agreement, as
security for the unpaid portion of the purchase price thereof, provided that no such lien or
security interest shall attach to any part of the Project.
Section 8.4. Modification of Project. Lessee shall, at its own expense, have the
right to make repairs to the Project, and to make repairs, replacements, substitutions and
modifications to all or any of the parts thereof. All such work and any part or component used or
installed to make a repair or as a replacement, substitution or modification, shall thereafter
comprise part of the Project and be subject to the provisions of this Lease. Such work shall not
in any way damage the Project or cause it to be used for purposes other than those authorized
under the provisions of State and Federal Law or those contemplated by this Lease; and the
Project, upon completion of any such work, shall be of a value which is not less than the value of
the Project immediately prior to the commencement of such work. Any property for which a
16
replacement or substitution is made pursuant to this Section may be disposed of by Lessee in
such manner and on such terms as are determined by Lessee. Lessee will not permit any
construction, mechanic’s or other lien to be established or remain against the Project for labor or
materials furnished in connection with any repair, addition, modification or improvement made
by Lessee pursuant to this Section; provided that if any such lien is established and Lessee shall
first notify Lessor of Lessee’s intention to do so, Lessee may in good faith contest any lien filed
or established against the Project, and in such event may permit the items so contested to remain
undischarged and unsatisfied during the period of such contest and any appeal therefrom unless
Lessor shall notify Lessee that, in the opinion of Independent Counsel, by nonpayment of any
such item the interest of Lessor in the Project will be materially endangered or the Project or any
part thereof will be subject to loss or forfeiture, in which event Lessee shall promptly pay and
cause to be satisfied and discharged all such unpaid items or provide Lessor with full security
against any such loss or forfeiture, in form satisfactory to Lessor. Lessor will cooperate fully
with Lessee in any such contest, upon the request and at the expense of Lessee.
Section 8.5. Management Contract. Lessee shall have the right to contract for
management services with respect to the Project in its discretion so long as the effect and
operation under such contract does not affect the tax-exempt status of the interest component of
the Rental Payments.
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ARTICLE IX
WARRANTIES
Section 9.1. Selection, Design and Construction of Improvements. The
Improvements have been or will be selected, designed and constructed by or on behalf of Lessee,
and Lessor shall have no responsibility in connection with the selection, design or construction
of the Improvements or their suitability for the use intended by Lessee. In connection with any
contracting for the construction or acquisition of the Improvements, Lessor hereby appoints
Lessee as its agent to make any such contract, with the express understanding that all items of
property so obtained shall be and become the property of the Lessor in accordance with the terms
of this Lease.
Section 9.2. Maintenance of Project. Lessor shall have no obligation to test,
inspect, service or maintain the Project under any circumstances, but such actions shall be the
obligation of Lessee.
Section 9.3. Contractor’s Warranties. Lessor hereby assigns to Lessee for and
during the Term of this Lease, all of its interest in all contractor’s warranties and guarantees, if
any, express or implied, issued on or applicable to the Improvements or any portion thereof, and
Lessor hereby authorizes Lessee to obtain the customary services furnished in connection with
such warranties and guarantees at Lessee’s expense.
Section 9.4. Patent Infringement. Lessor hereby assigns to Lessee for and during
the Term of this Lease all of its interest in patent indemnity protection provided by any
contractor with respect to the Improvements. Such assignment of patent indemnity protection by
Lessor to Lessee shall constitute the entire liability of Lessor for any patent infringement by
Improvements furnished pursuant to this Lease.
Section 9.5. Disclaimer of Warranties. THE IMPROVEMENTS ARE AND
ARE TO BE DELIVERED AS IS, AND LESSOR MAKES NO WARRANTY OR
REPRESENTATION, EITHER EXPRESS OR IMPLIED, AS TO THE VALUE, DESIGN,
CONDITION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR
FITNESS FOR THE USE CONTEMPLATED BY LESSEE OF THE IMPROVEMENTS, OR
ANY OTHER REPRESENTATION OR WARRANTY WITH RESPECT TO THE
IMPROVEMENTS.
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ARTICLE X
OPTION TO PURCHASE
Section 10.1. When Available. Lessee shall have the option to purchase Lessor’s
interest in the Project on the Payment Dates for the Purchase Option Prices as set forth in Exhibit
B, but only if Lessee is not in default under this Lease, and only in the manner provided in this
Article.
Section 10.2. Exercise of Option. Lessee shall give notice to Lessor of its
intention to exercise its option not less than sixty (60) days prior to the Payment Date on which
the option is to be exercised and shall deposit with Lessor on the date of exercise an amount
equal to all Rental Payments and any other amounts then due or past due (including the Rental
Payment due on such Payment Date) and the Purchase Option Price. The closing shall be on the
applicable Payment Date at such office as shall be designated by Lessor.
Section 10.3. Release of Lessor’s Interest. Upon exercise of the Purchase Option
by Lessee, Lessor shall convey or release to Lessee, all of its right, title and/or interest in and to
the Project by delivering to Lessee such documents as Lessee deems necessary for this purpose.
19
ARTICLE XI
ASSIGNMENT, SUBLEASING, MORTGAGING AND SELLING
Section 11.1. Assignment by Lessor. Lessor shall not assign its obligations under
this Lease, and no purported assignment thereof shall be effective. All of Lessor’s rights, title
and/or interest in and to this Lease, the Rental Payments and other amounts due hereunder and
the Project may be assigned and reassigned in whole or in part to one or more assignees or
subassignees by Lessor, but only upon the written consent of Lessee. Lessee shall pay all Rental
Payments due hereunder to or at the direction of Lessor or the assignee named in the most recent
assignment, if any. During the Lease Term Lessee shall keep a complete and accurate record of
all such assignments, if any. Transfer of the Lessor’s rights under this Lease shall be made only
upon presentation of the Lessor’s original of this Lease to the Lessee’s Treasurer for notation of
assignment and transfer on such original.
Section 11.2. Assignment and Subleasing by Lessee. Neither this Lease nor
Lessee’s interest in the Project may be assigned by Lessee without the written consent of Lessor.
However, the Project may be subleased by Lessee, in whole or in part, without the consent of
Lessor, subject, however, to each of the following conditions:
(i) This Lease and the obligation of Lessee to make Rental Payments
hereunder, shall remain obligations of Lessee.
(ii) The sublessee shall assume the obligations of Lessee hereunder to the
extent of the interest subleased.
(iii) Lessee shall, within thirty (30) days after the delivery thereof, furnish
or cause to be furnished to Lessor a true and complete copy of such sublease.
(iv) No sublease by Lessee shall cause the Project to be used for a
purpose other than a governmental function authorized under the provisions of the
Constitution and laws of the State.
(v) No sublease shall cause the Interest component of the Rental
Payments due with respect to the Project to become includable in gross income of
the recipient for federal income tax purposes.
Section 11.3. Restriction on Mortgage or Sale of Project by Lessee. Except as
provided in Section 11.2, Lessee will not mortgage, sell, assign, transfer or convey the Project or
any portion thereof during the Term of this Lease, without the written consent of Lessor. Lessee
may make such contracts for the use of the Project with the Nebraska State Fair Board as Lessee
shall deem appropriate so long as such contract shall not cause the Interest component of the
Rental Payments due with respect to the Project to become includable in gross income of the
recipient for federal income tax purposes.
20
ARTICLE XII
EVENTS OF DEFAULT AND REMEDIES
Section 12.1. Events of Default Defined. The following shall be “events of
default” under this Lease and the terms “events of default” and “default” shall mean, whenever
they are used in this Lease, any one or more of the following events:
(i) Failure by Lessee to pay any Rental Payment or other payment
required to be paid under this Lease at the time specified herein and the
continuation of said failure for a period of ten (10) business days after telephonic
or telegraphic notice given by Lessor that the payment referred to in such notice
has not been received, such telephonic or telegraphic notice to be subsequently
confirmed in writing, or after written notice.
(ii) Failure by Lessee to observe and perform any covenant, condition or
agreement on its part to be observed or performed, other than as referred to in
Clause (i) of this Section, for a period of thirty (30) days after written notice
specifying such failure and requesting that it be remedied has been given to
Lessee by Lessor, unless Lessor shall agree in writing to an extension of such
time prior to its expiration; provided, however, if the failure stated in the notice
cannot be corrected within the applicable period, Lessor will not unreasonably
withhold its consent to an extension of such time if corrective action is instituted
by Lessee within the applicable period and diligently pursued until the default is
corrected.
(iii) The filing by Lessee of a voluntary petition in bankruptcy, or failure
by Lessee promptly to lift any execution, garnishment or attachment of such
consequence as would impair the ability of Lessee to carry on its governmental or
proprietary function or adjudication of Lessee as a bankrupt, or assignment by
Lessee for the benefit of creditors, or the entry by Lessee into an agreement of
composition with creditors, or the approval by a court of competent jurisdiction of
a petition applicable to Lessee in any proceedings instituted under the provisions
of the Federal Bankruptcy Statute, as amended, or under any similar acts which
may hereafter be enacted.
The provisions of this Section 12.1 and Section 12.2 are subject to the following limitation: if by
reason of force majeure Lessee is unable in whole or in part to carry out its obligations under this
Lease, other than its obligation to pay Rental Payments with respect thereto which shall be paid
when due notwithstanding the provisions of this paragraph, Lessee shall not be deemed in default
during the continuance of such inability. The term “force majeure” as used herein shall mean,
without limitation, the following: acts of God; strikes, lockouts or other labor disturbances; acts
of public enemies; orders or restraints of any kind of the government of the United States of
America or the State or their respective departments, agencies or officials, or any civil or military
authority; insurrections; riots; landslides; earthquakes; fires; storms; droughts; floods;
explosions; breakage or accident to machinery, transmission pipes or canals; or any other cause
21
or event not reasonably within the control of Lessee and not resulting from its negligence.
Lessee agrees, however, to remedy with all reasonable dispatch the cause or causes preventing
Lessee from carrying out its obligations under this Lease; provided that the settlement of strikes,
lockouts and other labor disturbances shall be entirely within the discretion of Lessee and Lessee
shall not be required to make settlement of strikes, lockouts and other labor disturbances by
acceding to the demands of the opposing party or parties when such course is in the judgment of
Lessee unfavorable to Lessee.
Section 12.2. Remedies on Default. Whenever any event of default referred to in
Section 12.1 hereof shall have happened and be continuing with respect to the Project, Lessor
shall have the right, at its option and without any further demand or notice, to take one or any
combination of the following remedial steps:
(i) Lessor, with or without terminating this Lease, may declare all Rental
Payments due or to become due during the Fiscal Year in effect when the default
occurs to be immediately due and payable by Lessee, whereupon such Rental
Payments shall be immediately due and payable.
(ii) Lessor, with or without terminating this Lease, may repossess the
Project by giving Lessee written notice to surrender the Project to Lessor for the
remaining term of the Ground Lease, whereupon Lessee shall do so in the manner
provided in Section 12.3. If the Project or any portion of it has been destroyed or
damaged beyond repair, Lessee shall pay the applicable Purchase Option Price of
the Project, as set forth in Exhibit B (less credit for Net Proceeds), to Lessor.
Notwithstanding the fact that Lessor has taken possession of the Project, Lessee
shall continue to be responsible for the Rental Payments due during the Fiscal
Year then in effect. If this Lease has not been terminated, Lessor shall return
possession of the Project to Lessee at Lessee’s expense when the event of default
is cured.
(iii) If Lessor terminates this Lease and takes possession of the Project,
Lessor shall thereafter use its best efforts to sell or lease its interest in the Project
or any portion thereof in a commercially reasonable manner in accordance with
applicable State laws. Lessor shall apply the proceeds of such sale or lease to pay
the following items in the following order: (a) all costs incurred in securing
possession of the Project; (b) all expenses incurred in completing the sale or lease;
(c) the applicable Purchase Option Price of the Project; and (d) the balance of any
Rental Payments owed by Lessee during the Fiscal Year then in effect. Any sale
proceeds remaining after the requirements of Clauses (a), (b), (c) and (d) have
been shall be the property of Lessee.
(iv) If the proceeds of sale or lease of the Project are not sufficient to pay
the balance of any Rental Payments owed by Lessee during the Fiscal Year then
in effect, Lessor may take any other remedy available at law or in equity to
require Lessee to perform any of its obligations hereunder and to enforce the
Ground Lease and Lessee’s compliance with the terms of the Ground Lease.
22
Section 12.3. Surrender of Project. Upon the expiration or termination of this
Lease prior to the payment of all Rental Payments in accordance with Exhibit B, Lessee shall
surrender the Project to Lessor in the condition, repair, appearance and working order required in
Section 7.2. If Lessee refuses to surrender the Project in the manner designated, Lessor may
repossess the Project and charge to Lessee the costs of such repossession or pursue any remedy
described in Section 12.2.
Section 12.4. No Remedy Exclusive. No remedy conferred upon or reserved to
Lessor by this Article is intended to be exclusive and every such remedy shall be cumulative and
shall be in addition to every other remedy given under this Lease. No delay or omission to
exercise any right or power accruing upon any default shall impair any such right or power or
shall be construed to be a waiver thereof but any such right and power may be exercised from
time to time and as often as may be deemed expedient by Lessor or its assignee.
23
ARTICLE XIII
ADMINISTRATIVE PROVISIONS
Section 13.1. Notices. All notices, certificates, legal opinions or other
communications hereunder shall be sufficiently given and shall be deemed given when delivered
or deposited in the United States mail in registered form with postage fully prepaid to the
addresses specified on the first page hereof; provided that Lessor and Lessee, by notice given
hereunder, may designate different addresses to which subsequent notices, certificates, legal
opinions or other communications will be sent.
Section 13.2. Financial Information. During the Term of this Lease, Lessee
annually will provide Lessor with current financial statements, budgets, proof of appropriation
for the ensuing Fiscal Year and such other financial information relating to the ability of Lessee
to continue this Lease as may be requested by Lessor or its assignee.
Section 13.3. Binding Effect. This Lease shall inure to the benefit of and shall be
binding upon Lessor and Lessee and their respective successors and assigns.
Section 13.4. Severability. In the event any provision of this Lease shall be held
invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate
or render unenforceable any other provision hereof.
Section 13.5. Amendments, Changes and Modifications. This Lease may be
amended or any of its terms modified only by written document duly authorized, executed and
delivered by Lessor and Lessee.
Section 13.6. Captions. The captions or headings in this Lease are for
convenience only and in no way define, limit or describe the scope or intent of any provision,
Article, Section or Clause of this Lease.
Section 13.7. Further Assurances and Corrective Instruments. Lessor and Lessee
agree that they will, from time to time, execute, acknowledge and deliver, or cause to be
executed, acknowledged and delivered, such supplements hereto and such further instruments as
may reasonably be required for correcting any inadequate or incorrect description of the Project
hereby leased or intended so to be, or for otherwise carrying out the expressed intention of this
Lease.
Section 13.8. Execution in Counterparts. This Lease may be simultaneously
executed in several counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
Section 13.9. Applicable Law. This Lease shall be governed by and construed in
accordance with the laws of the State.
24
IN WITNESS WHEREOF, Lessor has caused this Lease to be executed in its
corporate name by its duly authorized officer; and Lessee has caused this Lease to be executed in
its name by its duly authorized officers, as of the date first above written.
WELLS FARGO BROKERAGE SERVICES, LLC,
as Lessor
By
Its
CITY OF GRAND ISLAND, NEBRASKA
as Lessee
By
Its Mayor
ATTEST:
By
Its City Clerk
SIGNATURE PAGE TO LEASE-PURCHASE AGREEMENT
DATED AS OF _____________, 20__
25
STATE OF __________)
) ss.
COUNTY OF __________)
The foregoing instrument was acknowledged before me this _____ day of
____________, 2009 by __________________________, agent on behalf of Wells Fargo
Brokerage Services, LLC, a limited liability company.
Notary Public
My Commission Expires:
(SEAL)
STATE OF NEBRSKA )
) ss.
COUNTY OF HALL )
The foregoing instrument was acknowledged before me this ____ day of
______________, 2009, by ______________, Mayor of the City of Grand Island, Nebraska, on
behalf of said city.
Notary Public
My Commission Expires:
(SEAL)
A-1
EXHIBIT A
LAND
IMPROVEMENTS
B-1
EXHIBIT B
SCHEDULE OF RENTAL PAYMENTS
Payment
Date
Rental
Payment Interest Principal
Purchase
Option Price
C-1
EXHIBIT C
OFFICERS’ CERTIFICATE
We, the undersigned, hereby certify that we are the duly qualified and acting
Mayor and City Clerk of the City of Grand Island (the “Lessee”), and with respect to the Lease-
Purchase Agreement dated as of July 1, 2009 (the “Lease”), by and between the Lessee and
Wells Fargo Brokerage Services, LLC (the “Lessor”), that:
1. In our capacities as such officers we have executed the Lease, a Ground Lease
dated as of July 1, 2009 (the “Ground Lease”), by and between the Lessee and Hall County
Livestock Improvement Association and an Escrow Agreement dated as of July 1, 2009 (the
“Escrow Agreement”), by and among the Lessor, the Lessee and Wells Fargo Bank, National
Association, acting as Escrow Agent.
2. The Rental Payments provided for in Exhibit B to the Lease shall commence
and be due and payable on _____________, 2009, and thereafter during the Term of the Lease
(as that term is defined in the Lease) as shown in Exhibit B to the Lease. Lessee has
appropriated and/or taken all other lawful actions necessary to provide moneys sufficient to pay
all Rental Payments required to be paid under the Lease in Lessee’s current fiscal year, and such
moneys will be applied in payment of such Rental Payments.
3. There is no litigation, action, suit or proceeding pending or before any court,
administrative agency, arbitrator or governmental body, that challenges the organization or
existence of the Lessee; the authority of its officers; the proper authorization, approval and
execution of the Ground Lease, the Lease, the Escrow Agreement and other documents
contemplated thereby; the appropriation of money to pay the Rental Payments due under the
Lease; or the ability of the Lessee otherwise to perform its obligations under the Ground Lease,
the Lease, the Escrow Agreement and the other documents and the transactions contemplated
thereby.
C-2
4. Lessee has obtained from a reputable insurance company qualified to do
business in the State of Nebraska insurance with respect to all risks required to be covered
thereby pursuant to Article VI of the Lease.
Dated: _____________, 2009.
CITY OF GRAND ISLAND, NEBRASKA
By
Its Mayor
Attest:
By
Its City Clerk
D-1
EXHIBIT D
OPINION
(may be provided by separate counsel for the City as to different matters set forth)
Mayor and Council
City of Grand Island
100 East First Street
Grand Island, NE 68802-1968
Wells Fargo Brokerage Services, LLC
Public Finance Department
608 Second Avenue South – 10th Floor
MAC: N9303-105
Minneapolis, MN 55479
Re:Lease-Purchase Agreement dated as of July 1, 2009, by and between Wells Fargo
Brokerage Services, LLC (“Lessor”) and the City of Grand Island, Nebraska,
(“Lessee”)
Ladies and Gentlemen:
I have acted as counsel to Lessee with respect to the Lease-Purchase Agreement
described above (the “Lease”) and various related matters, and in this capacity have reviewed a
duplicate original or certified copy of the Lease, the Ground Lease dated as of July 1, 2009 (the
“Ground Lease”) by and between Lessor and Lessee and the Escrow Agreement dated as of
July 1, 2009 (the “Escrow Agreement”) among the Lessor, the Lessee and Wells Fargo Bank,
National Association, acting as escrow agent, and the Exhibits attached to each of said
documents. Based upon the examination of these and such other documents as I deem relevant,
it is my opinion that:
1. Lessee is a political subdivision of the state of the State of Nebraska (the “State”),
duly organized, existing and operating under the Constitution and laws of the State.
2. Lessee is authorized and has power under applicable law to enter into the Lease, the
Ground Lease and the Escrow Agreement and to carry out its obligations thereunder and the
transactions contemplated thereby.
D-2
3. The Lease, the Ground Lease and the Escrow Agreement have been duly authorized,
approved, executed and delivered by and on behalf of Lessee, and are valid and binding contracts
of Lessee enforceable in accordance with their terms, except to the extent limited by State and
Federal laws affecting remedies and by bankruptcy, reorganization or other laws of general
application relating to or affecting the enforcement of creditors’ rights.
4. The authorization, approval and execution of the Lease and all other proceedings of
Lessee relating to the transactions contemplated thereby have been performed in accordance with
all applicable open meeting, public bidding and all other laws, rules and regulations of the State.
5. The execution of the Lease and the appropriation of moneys to pay the Rental
Payments coming due thereunder do not result in the violation of any constitutional, statutory or
other limitation relating to the manner, form or amount of indebtedness which may be incurred
by Lessee.
6. There is no litigation, action, suit or proceeding pending or before any court,
administrative agency, arbitrator or governmental body, that challenges the organization or
existence of Lessee; the authority of Lessee or its officers or its employees to enter into the
Lease, the Ground Lease and the Escrow Agreement; the proper authorization, approval and/or
execution of the Lease, the Ground Lease and the Escrow Agreement, Exhibits thereto and other
documents contemplated thereby; the appropriation of moneys to make Rental Payments under
the Lease for the current fiscal year of Lessee; or the ability of Lessee otherwise to perform its
obligations under the Lease, the Ground Lease and the Escrow Agreement and the transactions
contemplated thereby.
(Subject to qualifications determined appropriate by each opining counsel and acceptable
to Lessor)
Dated _______________, 20__.
Very truly yours,
DOCS/879164.2
Initial Presentation Draft
ESCROW AGREEMENT
Among
WELLS FARGO BROKERAGE SERVICES, LLC,
as Lessor,
THE CITY OF GRAND ISLAND, NEBRASKA,
as Lessee,
and
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Escrow Agent
Dated as of July 1, 2009
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this “Escrow Agreement”) is made and entered into as of July 1,
2009, by and among Wells Fargo Brokerage Services, LLC, a limited liability company organized under
the laws of the State of Delaware (the “Lessor”), Wells Fargo Bank, National Association,a national
banking association organized under the laws of the United States and having trust powers (the “Escrow
Agent”) and the City of Grand Island, Nebraska, a city of the first class of the State of Nebraska (the
“Lessee”).
In the joint and mutual exercise of their powers, and in consideration of the mutual covenants
herein contained, the parties hereto recite and agree as follows:
ARTICLE 1
RECITALS
Section 1.01. The Lessor and the Lessee are concurrently with the delivery of this Escrow
Agreement entering into a Lease-Purchase Agreement (the “Lease”) dated as of July 1, 2009 pursuant to
Ordinance No. _______ passed and approved by the Mayor and Council of the Lessee on May __, 2009
(the “Ordinance”) in order to provide financing for the construction and acquisition of a recreational facility
to be owned and operated by the Lessee (the “Project”). The parties hereto desire to provide for the holding
and application of a deposit required to be made for payment of costs of the Project by the Lessor in
accordance with the terms of the Lease for the payment of costs of the Project.
Section 1.02. The terms capitalized in this Escrow Agreement but not defined herein shall have
the meanings given to them in the Lease.
Section 1.03. Under the Lease, the Lessor has agreed to deposit with Escrow Agent the sum of
$5,000,000, to be credited to the Escrow Fund established in Article 2 hereof and to be applied to pay costs
of the Project. The Lessor hereby authorizes and instructs the Escrow Agent to receive such sum on its
behalf in accordance with the terms of the Lease.
Section 1.04. Under the terms of the Lease Agreement, the Lessor and Lessee have agreed to
contract for the construction and acquisition of the Project. Costs of the Project shall be paid from the
amount deposited with Escrow Agent as described in Sections 1.03, under the terms of this Escrow
Agreement.
Section 1.05. The Lessor and the Lessee hereby employ the Escrow Agent to receive, hold, invest
and disburse the moneys paid to the Escrow Agent as described in Section 1.03, all as hereinafter provided;
however, the Escrow Agent shall not be obligated to assume or perform any obligation of the Lessor or the
Lessee under the Lease except as set forth in this Escrow Agreement.
Section 1.06. Each of the parties has authority to enter into this Escrow Agreement, and has taken
all actions necessary to authorize the execution of this Escrow Agreement by the officers whose signatures
are affixed hereto.
2
ARTICLE 2
ESCROW FUND
Section 2.01. Escrow Agent shall establish a special escrow fund designated as the “City of Grand
Island Construction and Acquisition Fund” (the “Escrow Fund”), shall keep such Escrow Fund separate
and apart from all other funds and moneys held by it and shall administer such Escrow Fund as provided in
this Escrow Agreement.
Section 2.02. All moneys paid to Escrow Agent by Lessor pursuant to Section 1.03 of this Escrow
Agreement shall be credited to the Escrow Fund. Escrow Agent shall use the moneys in the Escrow Fund
to pay the costs of the Project upon receipt with respect thereto of a Payment Request in the form attached
hereto as Exhibit A, executed by Lessee, fully completed and with all supporting documents described
therein attached thereto. Upon receipt of a Payment Request, an amount equal to the cost for the Project as
shown therein shall be paid directly to the person or entity entitled to payment as specified therein. Lessee
shall submit Payment Requests, other than for permitted reimbursement, only for portions of the cost of the
Project as billed by the contractor or supplier and currently owing.
Section 2.03. Lessee shall furnish to Escrow Agent and Lessor as soon as available a copy of each
contract or purchase order for construction or acquisition of the Project. Amounts for payment of costs of
the Project shall be disbursed no later than August 31, 2010. Amounts, if any, remaining undisbursed as of
such date shall be applied on behalf of the Lessee to make prepayment of the Rental Payments due under
the Lease on the next permitted date for prepayment under the terms of the Lease.
Section 2.04. Upon receipt of written notice from the Lessor that a default or event of default has
occurred under the Lease or that Lessee has determined not to complete the construction and acquisition of
the Project, Escrow Agent shall liquidate all investments held in the Escrow Fund and transfer the proceeds
thereof and all other moneys held in the Escrow Fund to Lessor to be applied to the prepayment, in whole
or in part of the Rental Payments due under the Lease.
Section 2.05. Escrow Agent shall only be responsible for the safekeeping and investment of the
moneys held in the Escrow Fund, and the disbursement thereof in accordance with this Article, and shall
not be responsible for the authenticity or accuracy of such certifications or documents, the application of
amounts paid pursuant to such certifications by the persons or entities to which they are paid, or the
sufficiency of the moneys credited to the Escrow Fund to make the payments herein required.
ARTICLE 3
MONEYS IN ESCROW FUND; INVESTMENT
Section 3.01. The moneys and investments held by Escrow Agent under this Escrow Agreement
are irrevocably held in trust for the benefit of the Lessor and the Lessee and such moneys, together with any
income or interest earned thereon, shall be expended only as provided in this Escrow Agreement, and shall
not be subject to levy or attachment or lien by or for the benefit of any creditor of the Lessor or the Lessee.
The Lessor and the Lessee intend that the Escrow Fund constitute an escrow account in which the Lessee
has no legal or equitable right, title or interest until satisfaction in full of all conditions contained herein and
in the Lease for the disbursement of funds by Escrow Agent. However, if the parties’ intention that Lessee
shall have no legal or equitable right, title or interest until all conditions for disbursement are satisfied in
3
full is not respected in any legal proceeding, the parties hereto intend that Lessor shall have a security
interest in the Escrow Fund, and such security interest is hereby granted to Lessor by the Lessee (to the
fullest extent that it may lawfully do so), to secure payment of all sums due to Lessor under the terms of the
Lease. Escrow Agent shall hold the Escrow Fund and the securities and monies therein for the purpose of
perfecting Lessor’s security interest therein and shall dispose of the Escrow Fund only in accordance with
the terms and conditions of this Escrow Agreement. Escrow Agent hereby accepts appointment as agent
and agrees to establish and maintain the Escrow Fund and the monies and securities therein as a financial
intermediary or securities intermediary, as the case may be, for Lessor, as entitlement holder. Escrow
Agent confirms that (i) the Escrow Fund is a “securities account” as such term is defined in §8-501 of the
Nebraska UCC; (ii) Escrow Agent shall, subject to the terms of this Escrow Agreement, treat Lessor as
entitled to exercise the rights that comprise any financial asset credited to the Escrow Fund; (iii) all
property delivered to Escrow Agent for deposit into the Escrow Fund will be promptly credited to the
Escrow Fund; and (iv) all securities and other property underlying any financial assets credited to the
Escrow Fund shall be registered in the name of Escrow Agent, indorsed to Escrow Agent or in blank or
credited to another securities account maintained in the name of Escrow Agent, and in no case will any
financial asset credited to the Escrow Fund be registered in the name of Lessee, payable to the order of
Lessee or specially indorsed to Lessee. Escrow Agent agrees that each item of property (whether
investment property, financial asset, security, instrument or cash) credited to the Escrow Fund shall be
treated as a “financial asset” within the meaning of §8-102(a)(9) of the Nebraska UCC. If at any time
Escrow Agent shall receive an “entitlement order” (within the meaning of §8-102(a)(8) of the Nebraska
UCC) issued by Lessor and relating to the Escrow Fund, Escrow Agent shall comply with such entitlement
order without further consent by Lessee or any other person.
Section 3.02. Moneys held by Escrow Agent hereunder shall be invested and reinvested by
Escrow Agent upon order of Lessee only in Qualified Investments, as defined in Section 3.05. Such
investments shall be registered in the name of Escrow Agent and held by Escrow Agent for the benefit of
the Lessor and for disbursement to pay costs of issuance and costs of the Project. With the approval of
Lessee, Escrow Agent may purchase or sell to itself or any affiliate, as principal or agent, investments
authorized by this Article. Such investments and reinvestments shall be made giving full consideration for
the time at which funds are required to be available.
Section 3.03. Escrow Agent shall, without further direction from Lessee, sell such investments as
and when required to make any payment from the Escrow Fund. Any income received on such investments
shall be credited to the Escrow Fund.
Section 3.04. Escrow Agent shall furnish to the Lessor and the Lessee reports accounting for all
investments and interest and income therefrom. Such accounting shall be furnished no less frequently than
every three months and upon request of the Lessor or the Lessee. Neither the Lessor nor the Escrow shall
be responsible or liable for any loss suffered in connection with any investment of moneys made by Escrow
Agent in accordance with this Article (other than the Escrow Agent in its capacity as obligor under any
Qualified Investment). In the event funds in the Escrow Fund are insufficient to pay the costs of the
Project, the Lessee shall provide for such costs from its other funds outside of and apart from the
provisions for payment set forth in this Escrow Agreement.
Section 3.05. As used in this Escrow Agreement, the term “Qualified Investments” means (a)
securities which are general obligations of or are guaranteed as to the payment of principal and interest by
the United States of America; (b) obligations, debentures, notes or other evidence of indebtedness issued or
guaranteed by any of the following: Federal Home Loan Bank System, Government National Mortgage
Association, Farmers Home Administration, Federal Home Loan Mortgage Corporation or Federal
4
Housing Administration; (c) commercial paper issued by corporations organized under the laws of a state
of the United States which is rated in the highest rating category by Standard & Poor’s Ratings Services, a
division of the McGraw Hill Companies, Inc., or Moody’s Investors Service, Inc.; or (d) certificates of
deposit issued by or other forms of deposit in any national or state bank to the extent that such deposits are
fully insured by the Federal Deposit Insurance Corporation or any successor agency which is backed by the
full faith and credit of the United States. By execution of this Escrow Agreement, the Lessee also consents
to the investment and reinvestment by Escrow Agent of any moneys held as part of the Escrow Fund in
shares of a money market fund (including a money market fund for which Escrow Agent and its affiliates
provide advisory, custodial, administrative or similar services and receives fees), provided: (x) the money
market fund is registered under the Investment Company Act of 1940; (y) the money market fund has been
rated by a nationally recognized statistical rating organization in one of that organization’s three highest
mutual fund rating categories; and (z) the money market fund’s investments are limited to those Qualified
Investments listed in (a), (b) or (c) above. In the absence of duly authorized and complete directions
regarding investment of moneys held in the Escrow Fund, the Escrow Agent shall automatically invest and
reinvest the same in units of money market mutual funds, provided that such money market mutual funds
constitute a Qualified Investment.
ARTICLE 4
ESCROW AGENT’S AUTHORITY; INDEMNIFICATION
Section 4.01. The Escrow Agent may act in reliance upon any writing or instrument or signature
which it, in good faith, believes to be genuine, may assume the validity and accuracy of any statement or
assertion contained in such a writing or instrument, and may assume that any person purporting to give any
writing, notice, advice or instructions in connection with the provisions hereof has been duly authorized to
do so. The Escrow Agent shall not be liable in any manner for the sufficiency or correctness as to form,
manner and execution, or validity of any instrument deposited with it, nor as to the identity, authority or
right of any person executing the same; and its duties hereunder shall be limited to those specifically
provided herein.
Section 4.02. Unless the Escrow Agent is guilty of negligence or misconduct with regard to its
duties hereunder, the Lessee, to the fullest extent that it may lawfully do so, hereby agrees to indemnify
Escrow Agent and hold it harmless from any and all claims, liabilities, losses, actions, suits or proceedings
at law or in equity, or any other expense, fees or charges of any character or nature, which it may incur or
with which it may be threatened by reason of its acting as the Escrow Agent under this Escrow Agreement;
and in connection therewith, to indemnify the Escrow Agent against any and all expenses, including
reasonable attorneys’ fees (to the extent permitted by law) and the cost of defending any action, suit or
proceeding or resisting any claim. The Escrow Agent shall be vested with a lien on all property deposited
hereunder for indemnification, for reasonable attorneys’ fees (to the extent permitted by law), court costs,
for any suit, interpleader or otherwise, or any other expenses, fees or charges of any character or nature,
which may be incurred by the Escrow Agent by reason of disputes arising among the Lessor and the Lessee
as to the correct interpretation of the Lease or this Escrow Agreement and instructions given to the Escrow
Agent hereunder, or otherwise, with the right of the Escrow Agent, regardless of the instructions aforesaid,
to hold the said property until and unless said additional expenses, fees and charges shall be fully paid.
Section 4.03. If the Lessor and the Lessee shall be in disagreement about the interpretation of the
Lease or this Escrow Agreement, or about the rights and obligations, or the propriety of any action
contemplated by Escrow Agent hereunder, the Escrow Agent may, but shall not be required to, file an
appropriate civil action to resolve the disagreement. The Escrow Agent shall be indemnified by the Lessee
5
for all costs, including reasonable attorneys’ fees (to the extent permitted by law), in connection with such
civil action, and shall be fully protected in suspending all or part of its activities under this Escrow
Agreement until a final judgment in such action is received.
Section 4.04. The Escrow Agent may consult with counsel of its own choice and shall have full
and complete authorization and protection in acting in accordance with the opinion of such counsel. The
Escrow Agent shall not otherwise be liable for any mistakes of facts or errors of judgment, or for any acts
or omissions of any kind unless caused by its negligence or misconduct.
ARTICLE 5
ESCROW AGENT’S COMPENSATION
The Escrow Agent’s compensation for the services to be rendered hereunder is set forth in
Exhibit B hereto. Escrow Agent acknowledges that the Lessor and the Lessee have relied on its
undertakings as set forth in this Escrow Agreement. The Lessee hereby agrees to pay and/or reimburse the
Escrow Agent upon request for all expenses, disbursements and advances, investment fees or other charges,
including reasonable attorneys’ fees, incurred or made by it in connection with carrying out its duties
hereunder and such fees and charges may be deducted from investment earnings on the Escrow Fund.
ARTICLE 6
CHANGE OF ESCROW AGENT
Section 6.01. A national banking association located in the United States or a state bank or trust
company organized under the laws of a state of the United States, qualified as a depository of public funds,
may be substituted to act as the Escrow Agent under this Escrow Agreement upon agreement of the Lessor
and Lessee. Such substitution shall not be deemed to affect the rights or obligations of the parties. Upon
any such substitution, the Escrow Agent agrees to assign to such substitute Escrow Agent its rights under
this Escrow Agreement.
Section 6.02. The Escrow Agent or any successor may at any time resign by giving mailed notice
to the Lessor and the Lessee of its intention to resign and of the proposed date of resignation, which shall be
a date not less than thirty (30) days after such notice is deposited in the United States mail with postage
fully prepaid, unless an earlier resignation date and the appointment of a successor Escrow Agent shall
have been or are approved by Lessor and Lessee.
Section 6.03. The Escrow Agent may appoint an agent to exercise any of the powers, rights or
remedies granted to the Escrow Agent under this Escrow Agreement, and to hold title to property or to take
any other action which may be desirable or necessary.
ARTICLE 7
ADMINISTRATIVE PROVISIONS
Section 7.01. The Escrow Agent shall keep complete and accurate records of all moneys received
and disbursed under this Escrow Agreement, which shall be available for inspection by the Lessor and
Lessee, or the agent of either thereof, at any time during regular business hours.
6
Section 7.02. All notices, certificates, requests, demands and other communications provided for
hereunder shall be in writing and shall be (a) personally delivered, (b) sent by first class United States mail,
(c) sent by overnight courier of national reputation, or (d) transmitted by telecopy, in each case addressed
to the party to whom notice is being given at its address as set forth below and, if telecopied, transmitted to
that party at its telecopier number set forth below or, as to each party, at such other address or telecopier
number as may hereafter be designated by such party in a written notice to the other party complying as to
delivery with the terms of this Section. All such notices, requests, demands and other communications shall
be deemed to have been given on (a) the date received if personally delivered, (b) when deposited in the
mail if delivered by mail, (c) the date sent if sent by overnight courier, or (d) the date of transmission if
delivered by telecopy.
Section 7.03. This Escrow Agreement shall be construed and governed in accordance with the
laws of the State of Nebraska.
Section 7.04. Any provisions of this Escrow Agreement found to be prohibited by law shall be
ineffective only to the extent of such prohibition, and shall not invalidate the remainder of this Escrow
Agreement or the Loan Agreement.
Section 7.05. This Escrow Agreement shall be binding upon and inure to the benefit of the parties
and their respective successors and assigns.
Section 7.06. This Escrow Agreement may be simultaneously executed in several counterparts,
each of which shall be an original and all of which shall constitute but one and the same Escrow
Agreement.
Section 7.07. This Escrow Agreement shall terminate upon disbursement by the Escrow Agent of
all moneys held by it hereunder.
Section 7.08. This Escrow Agreement together with the Lease and that related Ground Lease
dated as of July 1, 2009 to which both Lessor and Lessee are parties, constitutes the entire agreement of the
parties relating to the subject matter hereof.
Section 7.09. To the extent permitted by law, the terms of this Escrow Agreement shall not be
waived, altered, modified, supplemented or amended in any manner whatsoever except by written
instrument signed by the parties hereto, and then such waiver, consent, modification or change shall be
effective only in the specific instance and for the specific purpose given.
The Lessor and the Lessee may agree to amend the date specified in Section 2.03 for payment of
costs of the Project to a date no more than three years after the date of delivery of the Lease. Such
amendment shall be effected by written agreement signed by Lessor and the Lessee.
[REMAINDER OF PAGE INTENTIONALLY BLANK; EXECUTION PAGE FOLLOWS.]
8
IN WITNESS WHEREOF, the parties have executed this Escrow Agreement as of the day and
year first written above.
WELLS FARGO BROKERAGE SERVICES, LLC,
Lessor
WELLS FARGO BANK, NATIONAL
ASSOCIATION, Escrow Agent
By: ____________________________By: ___________________________
Title: ___________________________Title: __________________________
Address:MAC: 9303-105
608 Second Avenue South
9th Floor
Minneapolis, Minnesota 55479
Address: Corporate Trust Department
1248 “O” Street
4th Floor
Lincoln, Nebraska 68501
Telephone (612) 667-7421 Telephone (402) 434-4431
Telecopier (612) 667-9906 Telecopier (402) 434-4612
THE CITY OF GRAND ISLAND, NEBRASKA
By:_______________________________
Title: Mayor
PO Box 1968
100 East First Street
Grand Island, NE 68802-1968
Telephone (308) 385-5444, Ext. 169
Telecopier (308) 385-5486
A-1
Exhibit A to Escrow Agreement
(FORM OF PAYMENT REQUEST)
Payment Request No. _______
The City of Grand Island, Nebraska, as lessee (the “Lessee”) under that Lease-Purchase
Agreement dated as of July 1, 2009 (the “Lease”) between Lessee and Wells Fargo Brokerage Services,
LLC, (the “Lessor”), hereby requests Wells Fargo Bank, National Association, as escrow agent (the
“Escrow Agent”) under the Escrow Agreement dated as of July 1, 2009 (the “Escrow Agreement”) among
the Escrow Agent, the Lessor and the Lessee, to make payment from the Escrow Fund (as defined in the
Escrow Agreement) to the following party or parties, at the addresses set forth below:
Payee Address
Amount To
Be Paid
Cost of Issuance
or Project
Description
In connection therewith, the undersigned officer of the Lessee hereby certifies as follows:
1.All of the provisions of the Lease and the Escrow Agreement are incorporated herein by
reference and capitalized terms used herein and not defined shall have the meanings assigned to them in the
Loan Agreement and the Escrow Agreement.
2.The payments to be made to the payees set forth above are for costs of construction and/or
acquisition of the Project (as defined in the Escrow Agreement) described above, or reimbursement to
Lessee therefor, and the payments have not been the basis for a prior request which has been paid. Any
amounts to be reimbursed to the Lessee are for advances made by the Lessee from its own funds not earlier
than May 1, 2009.
3.All of Lessee’s representations, covenants and warranties contained in the Lease and the
Certificate with Respect to Tax Matters (the “Tax Certificate”) were true and accurate in all material
respects as of the date made, and remain true and accurate in all material respects as of the date of this
Payment Request, and the Lessee has fully and satisfactorily performed all of its covenants, representations
and obligations to date required under the Lease, the Escrow Agreement and the Tax Certificate. No
Default Event has occurred under the Lease.
4.The Lessee understands that the Lessor is relying on the certifications herein with regard to
and in connection with approving the disbursement requested hereby.
A-2
5.Please indicate if this Payment Request relates to the final disbursement from the
Escrow Fund: __Yes __No.
If this Payment Request relates to the final disbursement from the Escrow Fund, the Lessee and the
Lessor hereby instruct Escrow Agent to disburse to Lessor the remaining moneys held in the Escrow Fund
to be applied to make a partial prepayment on the Rental Payments as set forth in the Lease.
6.Please indicate if this Payment Request reimburses Lessee for any payment or
payments previously made by Lessee: __Yes __No.
If this Payment Request requests such a reimbursement, the payment or payments for any
obligations originally paid by Lessee, for federal income tax purposes, was after May 1,2009.
7.Lessee attaches hereto the following items:
(a)invoices and/or bills of sale and/or contractor’s payment certifications relating
to the Project and, if such invoices have been paid by Lessee, evidence of payment thereof;
(b)an insurance certificate showing coverages as required by the Lease if such
insurance certificate has not been previously provided by Lessee to the Lessor.
LESSEE:
THE CITY OF GRAND ISLAND,
NEBRASKA
By:
Title:
Date:
Attachments:1.Invoices/Certificates for Payment
2.Insurance Certificate (if not previously provided)
B-1
Exhibit B to Escrow Agreement
SCHEDULE OF ESCROW AGENT’S FEES
C-1
STOPPED HERE
Exhibit C to Escrow Agreement
FORM OF AMENDMENT
THIS AMENDMENT TO ESCROW AGREEMENT is dated as of _________ __, 20__ (this
“Amendment”) by and between Wells Fargo Brokerage Services, LLC (the “Lessor”), the City of Grand
Island, Nebraska, (the “Lessee”) and Wells Fargo Bank, National Association, (the “Escrow Agent”).
RECITALS
A.The Lessor, the Lessee and the Escrow Agent have entered into an Escrow Agreement
dated as of July 1, 2009 (the “Escrow Agreement”).
B.Pursuant to Section 7.09 of the Escrow Agreement, the Lessor and the Lessee may,
without the consent of the Escrow Agent, amend the date specified in Section 2.03 of the Escrow
Agreement to a date no more than three years after the date of delivery of the Lease.
C.The Lessor and the Lessee desire to amend the date specified in Section 2.03 of the Escrow
Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements
herein contained, it is hereby agreed as follows:
1.The Lessor and the Lessee amend Section 2.03 of the Escrow Agreement by replacing the
date “August 31, 2010” as it appears in the second sentence thereof with the date “_______ __, 20__.”
2.This Amendment shall become effective only upon execution hereof by duly authorized
officers or representatives of the Lessor and the Lessee.
3.All other terms and conditions of the Escrow Agreement not specifically amended by this
Amendment shall remain in full force and effect and are hereby ratified and confirmed by the Lessor and
the Lessee.
4.This Amendment 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.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment in their respective
corporate names by their duly authorized officers, all as of the date first written above.
WELLS FARGO BROKERAGE SERVICES,
LLC,Lessor
THE CITY OF GRAND ISLAND, NEBRASKA
CENTER, INC., Lessee
By: ____________________________By: ______________________________
Title: ___________________________Title: _____________________________
DOCS/910956.1
ORDINANCE NO. 9215
AN ORDINANCE PROVIDING FOR THE PURCHASE AND LEASING OF A
BUILDING AND RELATED IMPROVEMENTS TO SERVE AS A RECREATIONAL
FACILITY FOR THE CITY OF GRAND ISLAND; AUTHORIZING EXECUTION AND
DELIVERY OF A LEASE-PURCHASE AGREEMENT WITH WELLS FARGO
BROKERAGE SERVICES, LLC RELATING TO THE CONSTRUCTION AND
ACQUISITION OF SAID FACILITY; AUTHORIZING EXECUTION AND DELIVERY
OF A RELATED GROUND LEASE AND ESCROW AGREEMENT; APPROVING THE
FORMS OF DOCUMENTS WITH RESPECT TO SAID LEASE-PURCHASE
AGREEMENT, GROUND LEASE AND ESCROW AGREEMENT; PROVIDING FOR
THE APPROVAL OF AN APPRAISAL AND PROVIDING FOR THE PUBLISHING OF
THIS ORDINANCE
BE IT ORDAINED BY THE MAYOR AND COUNCIL OF THE CITY OF
GRAND ISLAND, NEBRASKA (the “City”) as follows:
Section 1. The Mayor and Council hereby find and determine: that the City is in
need of a recreational facility (the “Project”) to provide for indoor sporting programs and
other indoor recreational activities and to serve as a facility for accommodating activities of
the Nebraska State Fair Board (the “Board”) upon transfer of State Fair activities to Hall
County; that Wells Fargo Brokerage Services, LLC, (“Wells Fargo”) has indicated its
willingness to act as lessor for the purposes of acquiring, constructing and leasing such
Project to the City for such purposes and has offered to enter into a Lease-Purchase
Agreement (the “Lease”) with the City whereby the City may acquire the Project to be built
in accordance with specifications approved by the Mayor and Council and provided by the
Board, all pursuant to the provisions of Section 19-2421, R.R.S. Neb. 2007; that Hall
County Livestock Improvement Association (“Fonner Park”) has agreed to provide a site for
the Project under the terms of a Ground Lease (the “Ground Lease”) between Fonner Park
as ground lessor and the City and Wells Fargo as lessees; that for purposes of governing the
disbursement of funds provided by Wells Fargo in accordance with the Lease, the City,
Wells Fargo and Wells Fargo Bank, National Association, (the “Escrow Agent”) shall enter
into an Escrow Agreement (the “Escrow Agreement”); that the documents necessary for
such purposes have been prepared and said documents should be approved and their
execution authorized.
Section 2. The City of Grand Island shall enter into the Lease (to be dated as
determined by the executing officers as of the time of its execution and delivery) with Wells
Fargo and whereby Wells Fargo, with the City acting as its agent and contracting for
construction and acquisition under a contract or contracts determined upon and awarded by
the Board, will construct and acquire the Project in accordance with specifications approved
or to be approved by the Mayor and Council of the City (with the schedule of rental
payments (“Rental Payments”) relating to the leasing and acquisition of the Project to be set
forth in an exhibit to the Lease and that the Lease in the form presented at this meeting is
hereby approved.
Approved as to Form¤ ___________ May 8, 2009 City Attorney
ORDINANCE NO. 9215 (Cont.)
Section 3. The City of Grand Island shall enter into the Ground Lease (to be dated
as determined by the executing officers as of the time of its execution and delivery) with
Wells Fargo and Fonner and whereby Wells Fargo and the City shall lease from Fonner the
site for the Project and that the Ground Lease in the form presented at this meeting is hereby
approved.
Section 4. The City of Grand Island shall enter into the Escrow Agreement (to be
dated as determined by the execut ing officers as of the time of its execution and delivery)
with Wells Fargo and the Escrow Agent and whereby amounts deposited by Wells Fargo for
payment of construction and acquisition costs of the Project will be held and applied to
payment of costs of the Project and that the Escrow Agreement in the form presented at this
meeting is hereby approved.
Section 5. The City of Grand Island by separate resolution shall approve and enter
into contracts for the construction and acquisition of the Project in accordance with terms
and directions specified by the Board and in so acting shall be the agent of Wells Fargo such
that title to the Project from and after the time of its acquisition shall be and constitute the
separate property of Wells Fargo with the City having beneficial ownership under the terms
of the Lease and the Ground Lease.
Section 6. The Mayor and City Clerk of the City be and they are hereby authorized
and directed to execute and deliver on behalf of the City the Lease, the Ground Lease and
the Escrow Agreement, including any necessary counterparts, in substantially the form and
content as presented to the meeting at which final passage of this Ordinance has occurred,
but with such changes or modifications therein as to them seem necessary, desirable or
appropriate on behalf of the City; and said Mayor, the City Clerk, the City Finance Director
and the City Administrator are further authorized and directed to execute and deliver any
other documents or certificates and to do all other things necessary or appropriate in
connection with the Lease, the Ground Lease and the Escrow Agreement.
Section 6. In connection with the execution and delivery of the Lease, the Ground
Lease and the Escrow Agreement, the following determinations and approvals are hereby
made by the Mayor and Council:
(a) The City hereby declares, as provided in the Lease, that it will
take title to the Project when all of the Rental Payments specified in the
Lease have been paid in full or otherwise satisfied.
(b) The designation in the Escrow Agreement of the City
Administrator and/or the City Finance Director to act on behalf of the City in
approving disbursements of funds deposited by Wells Fargo under the terms
of the Lease and the Escrow Agreement is hereby approved.
(c) Prior to the execution and delivery of the Lease, the Ground
Lease and the Escrow Agreement, there shall be placed on file with the City
ORDINANCE NO. 9215 (Cont.)
Clerk an appraisal report for the Project prepared by a certified appraiser in
accordance with Section 13-403, R.R.S. Neb. 2007.
(d) The Mayor and Council hereby acknowledge that the proposed
transfer of the State Fair from Lancaster County to Hall County has been
authorized by LB 1116 as enacted by the Second Session (2008) of the One
Hundredth Legislature of the State of Nebraska (“LB 1116”) and that there is
currently pending in the District Court of Lancaster County, Nebraska, the
case of _______________________ (______) (the “Pending Litigation”);
that the City is a party to the Pending Litigation but no temporary restraining
order, preliminary injunction, permanent injunction or other order restricting
action by the City has been entered or is expected to be entered prior to the
time (the “Anticipated Commitment Time”) when execution and delivery of
the Lease, the Ground Lease and the Escrow Agreement are expected to be
required in order for construction to be timely completed; that the City’s
authority to enter into the Lease, the Ground Lease and the Escrow
Agreement for the Project as a recreational facility for the benefit of the
citizens of Grand Island, independent of the provisions of LB 1116, is not
questioned or challenged in the Pending Litigation; that the Pending
Litigation will not likely be finally resolved before the Anticipated
Commitment Time; and that the Mayor and Council hereby declare the
City’s intention to proceed with entering into the Lease, the Ground Lease
and the Escrow Agreement without respect of the validity of LB 1116 and in
order to serve the general governmental purpose of obtaining a recreational
facility for the benefit of the City and its citizens.
(e) The principal amount for financing to be arranged under the
terms of the Lease, the Ground Lease and the Escrow Agreement shall not
exceed $5,000,000; the term of the Lease and the financing provided thereby
shall not extend beyond ten years from the date of execution and delivery of
the Lease and the interest rate relating to the interest component of the
Rental Payments shall not exceed six percent per annum.
Section 6. The Mayor and Council hereby state that it is the intention of the City
that interest on the interest component of the Rental Payments under the Lease shall be
excludable from gross income under the federal income tax by virtue of Section 103 of the
Internal Revenue Code of 1986, as amended, (the “Code”) and the Mayor and Council
hereby authorize the Mayor, the City Clerk and the City Treasurer (Finance Director) (or
any one of more of them) to take all actions necessary or appropriate to carry out said
intention and for obtaining such interest exclusion. The City hereby covenants with Wells
Fargo and any permitted assigns of Wells Fargo that it will make no use of the proceeds of
said issue, including monies held in any sinking fund for the Rental Payments to be set forth
in the Lease-Purchase Agreement which would cause the City’s obligation under the Lease
to constitute an “arbitrage bond” within the meaning of Section 103 and 148 and other
related sections of the Code and further covenants to comply with said Sections 103 and 148
and related sections and all applicable regulations thereunder throughout the term of the
ORDINANCE NO. 9215 (Cont.)
Lease, including all requirements with respect to reporting and payment of rebates, if
applicable. The Lease is hereby designated by the City as one of its “qualified tax-exempt
obligations” under Section 265(b)(3)(B)(i)(III) of the Code and the City in connection with
entering into the Lease hereby covenants and warrants that it does not anticipate issuance
directly by it or on its behalf of tax-exempt bonds or other tax-exempt interest bearing
obligations in an amount exceeding $30,000,000 in calendar 2009 (taking into
consideration the exception for current refunding issues).
Section 7. This Ordinance shall be in force and take effect from and after its
publication as provided by law.
Passed and approved this 12th day of May, 2009.
____________________________________
Margaret Hornady, Mayor
Attest:
________________________________
RaNae Edwards, City Clerk
Item F3
#9216 - Consideration of Disestablishment of Business
Improvement District No. 8
This items relates to the aforementioned Public Hearing Item E-4.
Tuesday, May 12, 2009
Council Session
City of Grand Island
Staff Contact: Jeff Pederson
City of Grand Island City Council
Approved as to Form ¤ ___________
May 7, 2009 ¤ City Attorney
ORDINANCE NO. 9216
An ordinance disestablishing Business Improvement District No. 8; repealing
Chapter 13 Sections 13-91 through 13-96; and providing for publication and the effective date of
this ordinance.
WHEREAS, the City Council adopted Resolution 2009-90 on April 14, 2009,
indicating an intent to disestablish Business Improvement District No. 8; and
WHEREAS, pursuant to said resolution, a notice of hearing was published and
mailed as required by law, and public hearing duly held at 7:00 p.m. on May 12, 2009, in the
Council Chambers at City Hall, 100 East First Street, Grand Island, Nebraska, concerning the
disestablishment of such district; and
WHEREAS, the owners of more than 50% of the assessable units within the
District did not file written protests against disestablishment; and
WHEREAS, the City Council now finds and determines that Business
Improvement District No. 8 should be disestablished based upon the evidence adduced at the
public hearing showing that disestablishment is in the collective best interests of the property
owners in the District.
NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND COUNCIL
OF THE CITY OF GRAND ISLAND, NEBRASKA:
SECTION 1. Article XII and Chapter 13 Sections 91 through 96 of the Grand
Isla nd City Code are hereby repealed
SECTION 2. Business Improvement District No. 8 is disestablished and the
proceeds of any special assessments and assets acquired with such proceeds shall be subject to
disposition as the City Council may hereafter determine.
ORDINANCE NO. 9216 (Cont.)
- 2 -
SECTION 3. If any section, subsection, sentence, phrase, or clause, of this
ordinance is, for any reason, held to be unconstitutional or invalid, such holding shall not affect
the validity of the remaining portions of this ordinance.
SECTION 4. This ordinance shall be in force and take effect from and after its
passage, approval and publication, within fifteen days in one issue of the Grand Island
Independent as provided by law.
Enacted: May 12, 2009.
____________________________________
Margaret Hornady, Mayor
Attest:
________________________________
RaNae Edwards, City Clerk
Item F4
#9217 - Consideration of Firefighters and Police Pension Assets
Tuesday, May 12, 2009
Council Session
City of Grand Island
Staff Contact: Jeff Pederson
City of Grand Island City Council
Council Agenda Memo
From: Jeff Pederson, City Administrator
Meeting: May 12, 2009
Subject: Firefighters and Police Pension Assets
Item #’s: F-4
Presenter(s): Jeff Pederson, City Administrator
Background
For some time it has been known by the City and the Retirement Committee that there
exists surplus money in the una llocated account for Public Service Pension assets. This
determination is supported by an actuarial analysis that was conducted and was dated
January 1, 2008 for Pre-1984 employees. Today, there exists approximately $5.5m in the
Fire unallocated account. There also exists a surplus of approximately $180,000 in the
unallocated account for Police.
I met with representatives of the Retirement Committee last fall to discuss concerns that
the Committee had with the fact that the City was including in the 2008/2009 Budget a
transfer from the unallocated account to the General Fund. We jointly agreed to formulate
a set of questions relative to Federal Pension law to be answered by an Attorney who
specialized in that field. A set of questions was posed to Attorney Michael Mueller of the
Firm Cline, Williams, Wright, Johnson & Ordfather, L.L.P., and his response was
received on March 23 of this year.
Discussion
The opinions rendered by Mr. Mueller on the several questions include a determination
that the City can in fact use surplus assets in the unallocated employer account to meet
City retirement match obligations for current and retired employees. Mueller
recommended that, to do so, the City must amend its retirement plans to allow surplus
assets to be used to fund current retirement matching contributions.
The City Attorney has prepared the attached Ordinance that amends the Plans for both
Police and Firefighters to allow assets to be used for that purpose, provided that actuarial
analysis show that surplus assets exist in the unallocated accounts. With passage of the
Ordinance, it would be the intention of the Finance Office to begin to expense required
City retirement contributions immediately, and for the remainder of the Fiscal Year. This
practice would be continued in subsequent budget years contingent upon a determination
from the actuarial analysis that surplus funds exist.
Alternatives
It appears that the Council has the following alternatives concerning the issue at hand.
The Council may:
1. Move to approve
2. Refer the issue to a Committee
3. Postpone the issue to future date
4. Take no action on the issue
Recommendation
City Administration recommends Council suspend the rules requiring three separate
readings and approve Ordinance No. 9217.
Sample Motion
Move to approve Ordinance No. 9217.
Approved as to Form ¤ ___________
May 8, 2009 ¤ City Attorney
ORDINANCE NO. 9217
An ordinance to amend the Basic Municipal Employees Plan and Trust
Agreement for the City of Grand Island, Nebraska, Firefighters' Retirement System Plan and
Trust and the Basic Municipal Plan and Trust Agreement for the -City of Grand Island,
Nebraska, Police Officers' Retirement System Plan and Trust to revise and amend said plans to
provide for the City to continue to be responsible for the general administration of the plans and
to specifically allow that if the actuarial analysis of the plans shows that the assets in the
unallocated account are sufficient to provide for subjected plan liabilities, that the assets can be
used to reduce expenses incurred by the City and shall then be used to assist in meeting the
City’s contribution which is required to fund pension benefits.
BE IT ORDAINED BY THE MAYOR AND COUNCIL OF THE CITY OF
GRAND ISLAND, NEBRASKA:
SECTION 1. Pursuant to NEB. REV. STAT. §16-1034, the City has such powers
and duties vested in it for the administration of the police and firefighter retirement systems.
SECTION 2. Retirement plans are in place for the police and firefighter
retirement systems and said plans in the basic plan documents allows for the general
administration of the plan to continue to be with the City. The plan document s shall be amended
to specifically provide the City the authority to maintain and utilize the unallocated employer
accounts pursuant to NEB. REV. STAT. §16-1033 so that if the actuarial analysis of the plans
show that the assets in the unallocated accounts are sufficient to provide for projected plan
liabilities, the assets can be used to assist in meeting expenses incurred by the City and also may
be used to assist in meeting the City’s contribution which is required to fund pension benefits.
ORDINANCE NO. 9217 (Cont.)
- 2 -
SECTION 3. If any section, subsection, or any other portion of this ordinance is
held to be invalid or unconstitutional by any court of competent jurisdiction, such portion shall
be deemed separate, distinct, and independent, and such holdings shall not affect the validity of
the remaining portions thereof.
SECTION 4. This ordinance shall be in force and take effect from and after its
passage and publication, within fifteen days in one issue of the Grand Island Independent as
provided by law.
Enacted: May 12, 2009.
____________________________________
Margaret Hornady, Mayor
Attest:
________________________________
RaNae Edwards, City Clerk
Item F5
#9218 - Consideration of Issuance Refunding Various Purpose
Bonds - Series 2009
Tuesday, May 12, 2009
Council Session
City of Grand Island
Staff Contact: David Springer
City of Grand Island City Council
Council Agenda Memo
From: Dave Springer, Finance Director
Meeting: May 12, 2009
Subject: Consideration of Refinancing Various Purpose Bonds
Item #’s: F-5 & I-1
Presenter(s): Dave Springer, Finance Director
Background
On January 15, 2002, $4,370,000 in Various Purpose bonds was issued by the City to
partially finance various street and alley improvements, particularly, Improvement
District No. 1221.
Discussion
$2,925,000 is still outstanding through December 15, 2017 at an average interest rate of
4.7791% and was callable by the City after January 15, 2007. Series 2009 Refunding
Bonds can be issued to mature on the same December 15, 2017 date, with an average
interest rate of2.9666%. The debt service savings from the refinancing totals
approximately $235,891 over the remaining life of the bonds. Those savings are net of
issuance expenses associated with the refunding bonds; so, reflect true cash flow savings
to the City.
Alternatives
It appears that the Council has the following alternatives concerning the issue at hand.
The Council may:
1. Approve the issuance of 2009 Refunding Bonds and retiring $2,925,000 in
2002 Various Purpose Bonds.
2. Disapprove or /Deny the refinancing
3. Modify the Resolution to meet the wishes of the Council
4. Table the issue
Recommendation
City Administration recommends that the Council approve the issuance of Series 2009
Refunding Bonds, as detailed above, and to pay and redeem the Series 2002 Various
Purpose Bonds.
Sample Motion
Move to approve the issua nce of 2009 Refunding Bonds with the referenced ordinance.
Move to approve the resolution to pay and redeem the Series 2002 Various Purpose
Bonds.
ORDINANCE NO. 9218
AN ORDINANCE AUTHORIZING THE ISSUANCE OF REFUNDING BONDS OF THE CITY OF
GRAND ISLAND, NEBRASKA, IN THE PRINCIPAL AMOUNT OF TWO MILLION _____________
_______________________THOUSAND DOLLARS ($___________) FOR THE PURPOSE OF
PAYING AND REDEEMING THE CITY’S VARIOUS PURPOSE BONDS, SERIES 2002, DATE OF
ORIGINAL ISSUE – JANUARY 15, 2002, PRESENTLY OUTSTANDING IN THE PRINCIPAL
AMOUNT OF $2,925,000; DIRECTING THE APPLICATION OF THE PROCEEDS OF SAID
BONDS; PRESCRIBING THE FORM OF SAID BONDS; PROVIDING FOR THE LEVY AND
COLLECTION OF TAXES TO PAY THE SAME; PROVIDING FOR THE SALE OF THE BONDS;
AUTHORIZING THE DELIVERY OF THE BONDS TO THE PURCHASER; AND ORDERING THE
ORDINANCE PUBLISHED IN PAMPHLET FORM.
BE IT ORDAINED BY THE MAYOR AND COUNCIL OF THE CITY OF GRAND ISLAND,
NEBRASKA:
Section 1. The Mayor and City Council hereby find and determine that there have been heretofore
issued and are now outstanding and unpaid valid and interest bearing bonds of the City of Grand Island,
Nebraska, as follows:
Various Purpose Bonds, Series 2002, date of original issue - January 15, 2002, in the
principal amount of Two Million Nine Hundred Twenty-five Thousand Dollars ($2,925,000),
numbered as shown on the books of the Paying Agent and Registrar becoming due and
bearing interest as follows:
Principal Amount Maturity Date Interest Rate CUSIP No.
$270,000 December 15, 2009 4.20% 385622 MP 7
285,000 December 15, 2010 4.30 385622 MQ 5
295,000 December 15, 2011 4.40 385622 MR 3
310,000 December 15, 2012 4.50 385622 MS 1
320,000 December 15, 2013 4.65 385622 MT 9
330,000 December 15, 2014 4.75 385622 MU 6
355,000 December 15, 2015 4.85 385622 MV 4
370,000 December 15, 2016 4.95 385622 MW 2
390,000 December 15, 2017 5.00 385622 MX 0
Said bonds are hereinafter referred to as the “Refunded Bonds.”
Said bonds are subject to redemption at any time on or after January 15, 2007, at the principal
amount thereof plus accrued interest, and said interest is payable semiannually.
Said Refunded Bonds were issued for the purpose of paying the costs of improving streets
and alleys, intersections and areas formed by the crossing of streets, avenues or alleys and
streets adjacent to real estate owned by the City in Street Improvement District No. 1221.
Approved as to Form ¤ ___________
May 8, 2009 ¤ City Attorney
Approved as to Form ¤ ___________
May 8, 2009 ¤ City Attorney
ORDINANCE NO. 9218 (Cont.)
-2-
Since the issuance of the Refunded Bonds, the rates of interest available in the markets have
declined so that the City of Grand Island can effect a savings in interest costs by providing for payment in
full of the Refunded Bonds as called for redemption on June 16, 2009 (the "Redemption Date") through
the issuance of its refunding bonds. The Refunded Bonds have been called for redemption on the
Redemption Date. For the purpose of making said redemption, it is for the best interest of the City to
issue refunding bonds of the City in the principal amount of $___________, pursuant to Section 10-142,
Reissue Revised Statutes of Nebraska, 2007, and all laws amendatory thereof or supplementary thereto,
and all conditions, acts and things required by law to exist or to be done precedent to the issuance of such
refunding bonds do exist and have been done as required by law.
Section 2. For the purpose described in Section 1 hereof, there shall be and there are hereby
ordered issued general obligation Refunding Bonds, Series 2009, of the City of Grand Island, Nebraska,
in the principal amount of ____________________________________Thousand Dollars ($__________)
(the "Series 2009 Bonds") with said bonds bearing interest at the rates per annum (said interest to be
computed on the basis of a 360-day year consisting of twelve 30-day months) and maturing on December
15 of each year in the principal amounts as follows:
Principal
Amount Date of Maturity Rate of Interest
$ 275,000 December 15, 2009
315,000 December 15, 2010
320,000 December 15, 2011
325,000 December 15, 2012
330,000 December 15, 2013
330,000 December 15, 2014
350,000 December 15, 2015
355,000 December 15, 2016
370,000 December 15, 2017
The Series 2009 Bonds shall be issued in fully registered form in the denomination of $5,000 or any
integral multiple thereof. The date of original issue for the Series 2009 Bonds shall be the date of
delivery thereof. Interest on the Series 2009 Bonds, at the respective rates for each maturity, shall be
payable semiannually on June 15 and December 15 of each year, commencing December 15, 2009 (each
ORDINANCE NO. 9218 (Cont.)
-3-
of said dates an "Interest Payment Date") and the Series 2009 Bonds shall bear such interest from the date
of original issue or the most recent Interest Payment Date, whichever is later. The interest due on each
Interest Payment Date shall be payable to the registered owners of record as of the close of business on
the la st business day of the month immediately preceding the month in which the Interest Payment Date
occurs (the "Record Date"), subject to the provisions of Section 4 hereof. The Series 2009 Bonds shall be
numbered from 1 upwards in the order of their issuance. No Series 2009 Bond shall be issued originally
or upon transfer or partial redemption having more than one principal maturity. The initial bond
numbering and principal amounts for each of the Series 2009 Bonds issued shall be designated by the
City's Treasurer as directed by the initial purchaser thereof. Payments of interest due on the Series 2009
Bonds prior to maturity or date of redemption shall be made by the Paying Agent and Registrar, as
designated pursuant to Section 3 hereof, by mailing a check or draft in the amount due for such interest on
each Interest Payment Date to the registered owner of each Series 2009 Bond, as of the Record Date for
such Interest Payment Date, to such owner's registered address as shown on the books of registration as
required to be maintained in Section 3 hereof. Payments of principal and accrued interest thereon due at
maturity or at any date fixed for redemption prior to maturity shall be made by said Paying Agent and
Registrar to the registered owners upon presentation and surrender of the Series 2009 Bonds to said
Paying Agent and Registrar. The City and said Paying Agent and Registrar may treat the registered
owner of any Series 2009 Bond as the absolute owner of such Series 2009 Bond for the purpose of
making payments thereon and for all other purposes and neither the City nor the Paying Agent and
Registrar shall be affected by any notice or knowledge to the contrary, whether such Series 2009 Bond or
any installment of interest due thereon shall be overdue or not. All payments on account of interest or
principal made to the registered owner of any Series 2009 Bond in accordance with the terms of this
Ordinance shall be valid and effectual and shall be a discharge of the City and said Paying Agent and
Registrar, in respect of the liability upon the Series 2009 Bonds or claims for interest to the extent of the
sum or sums so paid.
ORDINANCE NO. 9218 (Cont.)
-4-
Section 3. Cornerstone Bank, York, Nebraska, is hereby designated as Paying Agent and
Registrar for the Series 2009 Bonds. Said Paying Agent and Registrar shall serve in such capacities under
the terms of an agreement entitled "Paying Agent and Registrar's Agreement" between the City and said
Paying Agent and Registrar, the form of which is hereby approved. The Mayor and City Clerk are hereby
authorized to execute said agreement in substantially the form presented but with such changes as they
shall deem appropriate or necessary. The Paying Agent and Registrar shall keep and maintain for the City
books for the registration and transfer of the Series 2009 Bonds at its principal corporate trust office. The
names and registered addresses of the registered owner or owners of the Series 2009 Bonds shall at all
times be recorded in such books. Any Series 2009 Bond may be transferred pursuant to its provisions at
the principal corporate trust office of said Paying Agent and Registrar by surrender of such Series 2009
Bond for cancellation, accompanied by a written instrument of transfer, in form satisfactory to said
Paying Agent and Registrar, duly executed by the registered owner in person or by such owner's duly
authorized agent, and thereupon the Paying Agent and Registrar on behalf of the City will deliver at its
office (or send by registered mail to the transferee owner or owners thereof at such transferee owner's or
owners' risk and expense), registered in the name of such transferee owner or owners, a new Series 2009
Bond or Series 2009 Bonds of the same interest rate, aggregate principal amount and maturity. To the
extent of the denominations authorized for the Series 2009 Bonds by this Ordinance, one such bond may
be transferred for several such bonds of the same interest rate and maturity, and for a like aggregate
principal amount, and several such bonds may be transferred for one or several such bonds, respectively,
of the same interest rate and maturity and for a like aggregate principal amount. In every case of transfer
of a Series 2009 Bond, the surrendered Series 2009 Bond or Bonds shall be canceled and destroyed. All
Series 2009 Bonds issued upon transfer of the Series 2009 Bonds so surrendered shall be valid obligations
of the City evidencing the same obligations as the Series 2009 Bonds surrendered and shall be entitled to
all the benefits and protection of this Ordinance to the same extent as the Series 2009 Bonds upon transfer
of which they were delivered. The City and said Paying Agent and Registrar shall not be required to
ORDINANCE NO. 9218 (Cont.)
-5-
transfer any Series 2009 Bond during any period from any Record Date until its immediately following
Interest Payment Date or to transfer any Series 2009 Bond called for redemption for a period of 30 days
next preceding the date fixed for redemption.
Section 4. In the event that payments of interest due on the Series 2009 Bonds on an Interest
Payment Date are not timely made, such interest shall cease to be payable to the registered owners as of
the Record Date for such Interest Payment Date and shall be payable to the registered owners of the
Series 2009 Bonds as of a special date of record for payment of such defaulted interest as shall be
designated by the Paying Agent and Registrar whenever monies for the purpose of paying such defaulted
interest become available.
Section 5. If the date for payment of the principal of or interest on the Series 2009 Bonds shall
be a Saturday, Sunday, legal holiday or a day on which banking institutions in the city where the principal
corporate trust office of the Paying Agent and Registrar is located are authorized by law or executive
order to close, then the date for such payment shall be the next succeeding day which is not a Saturday,
Sunday, legal holiday or a day on which such banking institutions are authorized to close, and payment on
such day shall have the same force and effect as if made on the nominal date of payment.
Section 6. Series 2009 Bonds maturing December 15, 2014, and thereafter shall be subject to
redemption, in whole or in part, prior to maturity at any time on or after the fifth anniversary of the date
of original issue thereof at par plus accrued interest on the principal amount redeemed to the date fixed for
redemption. The City may select the Series 2009 Bonds to be redeemed in its sole discretion but the
Series 2009 Bonds shall be redeemed only in amounts of $5,000 or integral multiples thereof. Series 2009
Bonds redeemed in part only shall be surrendered to said Paying Agent and Registrar in exchange for new
Series 2009 Bonds evidencing the unredeemed principal thereof. Notice of redemption of any Series
2009 Bond called for redemption shall be given at the direction of the City by said Paying Agent and
Registrar by mail not less than 30 days prior to the date fixed for redemption, first class, postage prepaid,
sent to the registered owner of such Series 2009 Bond at said owner's registered address. Such notice
ORDINANCE NO. 9218 (Cont.)
-6-
shall designate the Series 2009 Bond or Series 2009 Bonds to be redeemed by maturity or otherwise, the
date of original issue and the date fixed for redemption and shall state that such Series 2009 Bond or
Series 2009 Bonds are to be presented for prepayment at the principal corporate trust office of said Paying
Agent and Registrar. In case of any Series 2009 Bond partially redeemed, such notice shall specify the
portion of the principal amount of such Series 2009 Bond to be redeemed. No defect in the mailing of
notice for any Series 2009 Bond shall affect the sufficiency of the proceedings of the City designating the
Series 2009 Bonds called for redemption or the effectiveness of such call for Series 2009 Bonds for which
notice by mail has been properly given and the City shall have the right to further direct notice of
redemption for any such Series 2009 Bond for which defective notice has been given.
Section 7. The Series 2009 Bonds shall be in substantially the following form:
ORDINANCE NO. 9218 (Cont.)
-7-
UNITED STATES OF AMERICA
STATE OF NEBRASKA
COUNTY OF HALL
REFUNDING BOND OF
THE CITY OF GRAND ISLAND, NEBRASKA
SERIES 2009
No.______________ $__________
Interest Rate Maturity Date Date of Original Issue CUSIP No.
December 15, ____ , 2009
Registered Owner:
Principal Amount: Dollars ($__________)
KNOW ALL PERSONS BY THESE PRESENTS: That the City of Grand Island, in the County
of Hall, in the State of Nebraska, hereby acknowledges itself to owe and for value received promises to
pay to the registered owner specified above, or registered assigns, the principal amount specified above in
lawful money of the United States of America on the date of maturity specified above with interest
thereon to maturity (or earlier redemption) from the date of original issue or most recent Interest Payment
Date, whichever is later, at the rate per annum specified above, payable semiannually on June 15 and
December 15 of each year, commencing December 15, 2009 (each of said dates an "Interest Payment
Date"). Said interest shall be computed on the basis of a 360-day year consisting of twelve 30-day
months. The principal hereof and unpaid accrued interest thereon due at maturity or upon redemption
prior to maturity are payable upon presentation and surrender of this bond at the principal corporate trust
office of Cornerstone Bank, the Paying Agent and Registrar, in York, Nebraska. Interest on this bond due
prior to maturity or earlier redemption will be paid on each Interest Payment Date by a check or draft
mailed by the Paying Agent and Registrar to the registered owner of this bond, as shown on the books of
record maintained by the Paying Agent and Registrar, at the close of business on the last business day of
the month immediately preceding the month in which the Interest Payment Date occurs, to such owner's
registered address as shown on such books and records. Any interest not so timely paid shall cease to be
payable to the person entitled thereto as of the record date such interest was payable , and shall be payable
to the person who is the registered owner of this bond (or of one or more predecessor bonds hereto) on
such special record date for payment of such defaulted interest as shall be fixed by the Paying Agent and
Registrar whenever monie s for such purpose become available. For the prompt payment of this bond,
principal and interest, as the same become due, the full faith, credit and resources of said City are hereby
irrevocably pledged.
This bond is one of an issue of fully registered bonds of the total principal amount of _________
___________________Thousand Dollars ($___________), of even date and like tenor except as to date
of maturity, rate of interest and denomination which were issued by the City for the purpose of paying
and redeeming the City's Various Purpose Bonds, Series 2002, Date of Original Issue - January 15, 2002,
in the outstanding principal amount of $2,925,000, all in strict compliance with Section 10-142, R.R.S.
Neb. 2007, as amended. The issuance of said bonds has been authorized by proceedings duly had and an
ordinance legally passed, approved and published by the Mayor and Council of said City.
ORDINANCE NO. 9218 (Cont.)
-8-
Bonds of this issue maturing December 15, 2014 and thereafter are subject to redemption at the
option of the City, in whole or in part, at any time on or after the fifth anniversary of the date of original
issue thereof, at par plus interest accrued on the principal amount redeemed to the date fixed for
redemption. Notice of redemption shall be given by mail to the registered owner of any bond to be
redeemed at said registered owner's address in the manner specified in the ordinance authorizing said
issue of bonds. Individual bonds may be redeemed in part but only in $5,000 amounts or integral
multiples thereof.
This bond is transferable by the registered owner or such owner's attorney duly authorized in
writing at the principal corporate trust office of the Paying Agent and Registrar upon surrender and
cancellation of this bond, and thereupon a new bond or bonds of the same aggregate principal amount,
interest rate and maturity will be issued to the transferee as provided in the ordinance authorizing said
issue of bonds, subject to the limitations therein prescribed. The City, the Paying Agent and Registrar and
any other person may treat the person in whose name this bond is registered as the absolute owner hereof
for the purpose of receiving payment due hereunder and for all purposes and shall not be affected by any
notice to the contrary, whether this bond be overdue or not.
If the date for payment of the principal of or interest on this bond shall be a Saturday, Sunday,
legal holiday or a day on which banking institutions in the city where the principal corporate trust office
of the Paying Agent and Registrar is located are authorized by law or executive order to close, then the
date for such payment shall be the next succeeding day which is not a Saturday, Sunday, legal holiday or
a day on which such banking institutions are authorized to close, and payment on such day shall have the
same force and effect as if made on the nominal date of payment.
IT IS HEREBY CERTIFIED AND WARRANTED that all conditions, acts and things required
by law to exist or to be done precedent to and in the issuance of this bond and in the issuance of the bonds
refunded hereby did exist, did happen and were done and performed in regular and due form and time as
required by law and that the indebtedness of said City, including this bond and the bonds refunded
hereby, does not exceed any limitation imposed by law. The City agrees that it will cause to be levied and
collected annually a tax by valuation on all the taxable property in the City, in addition to all other taxes,
sufficient in rate and amount to fully pay the principal and interest of this bond and the other bonds of this
issue as the same become due.
AS PROVIDED IN THE ORDINANCE REFERRED TO HEREIN, UNTIL THE
TERMINATION OF THE SYSTEM OF BOOK-ENTRY-ONLY TRANSFERS THROUGH THE
DEPOSITORY TRUST COMPANY, NEW YORK, NEW YORK (TOGETHER WITH ANY
SUCCESSOR SECURITIES DEPOSITORY APPOINTED PURSUANT TO THE ORDINANCE,
"DTC"), AND NOTWITHSTANDING ANY OTHER PROVISIONS OF THE ORDINANCE TO THE
CONTRARY, A PORTION OF THE PRINCIPAL AMOUNT OF THIS BOND MAY BE PAID OR
REDEEMED WITHOUT SURRENDER HEREOF TO THE PAYING AGENT AND REGISTRAR.
DTC OR A NOMINEE, TRANSFEREE OR ASSIGNEE OF DTC OF THIS BOND MAY NOT RELY
UPON THE PRINCIPAL AMOUNT INDICATED HEREON AS THE PRINCIPAL AMOUNT
HEREOF OUTSTANDING AND UNPAID. THE PRINCIPAL AMOUNT HEREOF OUTSTANDING
AND UNPAID SHALL FOR ALL PURPOSES BE THE AMOUNT DETERMINED IN THE MANNER
PROVIDED IN THE ORDINANCE.
UNLESS THIS BOND IS PRESENTED BY AN AUTHORIZED OFFICER OF DTC (A) TO
THE PAYING AGENT AND REGISTRAR FOR REGISTRATION OF TRANSFER OR EXCHANGE
OR (B) TO THE PAYING AGENT AND REGISTRAR FOR PAYMENT OF PRINCIPAL, AND ANY
ORDINANCE NO. 9218 (Cont.)
-9-
BOND ISSUED IN REPLACEMENT HEREOF OR SUBSTITUTION HEREOF IS REGISTERED IN
THE NAME OF DTC AND ANY PAYMENT IS MADE TO DTC OR ITS NOMINEE, ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSONS IS WRONGFUL BECAUSE ONLY THE REGISTERED OWNER HEREOF, DTC OR ITS
NOMINEE, HAS AN INTEREST HEREIN.
This bond shall not be valid and binding on the City until authenticated by the Paying Agent and
Registrar.
IN WITNESS WHEREOF, the Mayor and Council of the City of Grand Island, Nebraska, have
caused this bond to be executed on behalf of the City with the facsimile signatures of the Mayor and the
City Clerk and by causing the official seal of the City to be imprinted hereon or affixed hereto, all as of
the date of original issue specified above.
CITY OF GRAND ISLAND, NEBRASKA
_______________________________________
Mayor
ATTEST:
_________________________________________
City Clerk
(SEAL)
ORDINANCE NO. 9218 (Cont.)
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ORDINANCE NO. 9218 (Cont.)
- 11 -
CERTIFICATE OF AUTHENTICATION
This bond is one of the bonds authorized by the Ordinance of the Mayor and City Council of the
City of Grand Island, in the State of Nebraska, described in the foregoing bond.
Cornerstone Bank
York, Nebraska
Paying Agent and Registrar
By: ______________________________________
Authorized Signature
(Form of Assignment)
For value received hereby sells, assigns and transfers unto_________________________________
__________________________________________ (Social Security or Taxpayer I.D. No. ___________
______________________) the within bond and hereby irrevocably constitutes and appoints
________________________________________________________, attorney, to transfer the same on
the books of registration in the principal corporate trust office of the within mentioned Paying Agent and
Registrar with full power of substitution in the premises.
Dated: ___________________________________
Registered Owner(s)
_________________________________________
_________________________________________
_________________________________________
Signature Guaranteed
By ___________________________________
______________________________________
Authorized Officer(s)
Note: The signature(s) on this assignment MUST CORRESPOND with the name(s) as written on
the face of the within bond in every particular, without alteration, enlargement or any change whatsoever,
and must be guaranteed by a commercial bank or a trust company or by a firm having membership on the
New York, Midwest or other stock exchange.
Section 8. Each of the Series 2009 Bonds shall be executed on behalf of the City with the
facsimile signatures of the Mayor and the City Clerk and shall have imprinted thereon the City's seal. The
ORDINANCE NO. 9218 (Cont.)
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Series 2009 Bonds shall be issued initially as "book-entry-only" bonds under the services of The
Depository Trust Company (the "Depository"), with one typewritten bond per maturity being issued to the
Depository. In such connection said officers are authorized to execute and deliver a Letter of
Representations (the "Letter of Representations") in the form required by the Depository (which may be
in the form of a blanket letter, including any such letter previously executed and delivered), for and on
behalf of the City, which shall thereafter govern matters with respect to registration, transfer, payment and
redemption of the Series 2009 Bonds. With respect to the issuance of the Series 2009 Bonds as
"book-entry-only" bonds, the following provisions shall apply:
(a) The City and the Paying Agent and Registrar shall have no responsibility or
obligation to any broker-dealer, bank or other financial institution for which the Depository holds
Series 2009 Bonds as securities depository (each, a "Bond Participant") or to any person who is
an actual purchaser of a Series 2009 Bond from a Bond Participant while the Series 2009 Bonds
are in book-entry form (each, a "Beneficial Owner") with respect to the following:
(i) the accuracy of the records of the Depository, any nominees of the
Depository or any Bond Participant with respect to any ownership interest in the
Series 2009 Bonds,
(ii) the delivery to any Bond Participant, any Beneficial Owner or any
other person, other than the Depository, of any notice with respect to the Series
2009 Bonds, including any notice of redemption, or
(iii) the payment to any Bond Participant, any Beneficial Owner or any
other person, other than the Depository, of any amount with respect to the Series
2009 Bonds. The Paying Agent and Registrar shall make payments with respect
to the Series 2009 Bonds only to or upon the order of the Depository or its
nominee, and all such payments shall be valid and effective fully to satisfy and
discharge the obligations with respect to such Series 2009 Bonds to the extent of
the sum or sums so paid. No person other than the Depository shall receive an
authenticated Bond, except as provided in (e) below.
(b) Upon receipt by the Paying Agent and Registrar of written notice from the Depository to the
effect that the Depository is unable or unwilling to discharge its responsibilities, the Paying Agent and
Registrar shall issue, transfer and exchange Series 2009 Bonds requested by the Depository in appropriate
amounts. Whenever the Depository requests the Paying Agent and Registrar to do so, the Paying Agent
and Registrar will cooperate with the Depository in taking appropriate action after reasonable notice (i) to
arrange, with the prior written consent of the City, for a substitute depository willing and able upon
reasonable and customary terms to maintain custody of the Series 2009 Bonds or (ii) to make available
Series 2009 Bonds registered in whatever name or names as the Beneficial Owners transferring or
exchanging such Series 2009 Bonds shall designate.
ORDINANCE NO. 9218 (Cont.)
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(c) If the City determines that it is desirable that certificates representing the Series 2009 Bonds
be delivered to the ultimate beneficial owners of the Series 2009 Bonds and so notifies the Paying Agent
and Registrar in writing, the Paying Agent and Registrar shall so notify the Depository, whereupon the
Depository will notify the Bond Participants of the availability through the Depository of bond
certificates representing the Series 2009 Bonds. In such event, the Paying Agent and Registrar shall
issue, transfer and exchange bond certificates representing the Series 2009 Bonds as requested by the
Depository in appropriate amounts and in authorized denominations.
(d) Notwithstanding any other provision of this Ordinance to the contrary, so long as any Serie s
2009 Bond is registered in the name of the Depository or any nominee thereof, all payments with respect
to such Series 2009 Bond and all notices with respect to such Series 2009 Bond shall be made and given,
respectively, to the Depository as provided in the Letter of Representations.
(e) Registered ownership of the Series 2009 Bonds may be transferred on the books of
registration maintained by the Paying Agent and Registrar, and the Series 2009 Bonds may be delivered
in physical form to the following:
(i) any successor securities depository or its nominee; or
(ii) any person, upon (A) the resignation of the Depository from its functions as
depository or (B) termination of the use of the Depository pursuant to this Section and the
terms of the Paying Agent and Registrar's Agreement.
(f) In the event of any partial redemption of a Series 2009 Bond unless and until such partially
redeemed bond has been replaced in accordance with the provisions of this Ordinance, the books and
records of the Paying Agent and Registrar shall govern and establish the principal amount of such bond as
is then outstanding and all of the Series 2009 Bonds issued to the Depository or its nominee shall contain
a legend to such effect.
If for any reason the Depository is terminated or resigns and is not replaced, the City shall
immediately provide a supply of printed bond certificates for issuance upon the transfers from the
Depository and subsequent transfers or in the event of partial redemption. In the event that such supply of
certificates shall be insufficient to meet the requirements of the Paying Agent and Registrar for issuance
of replacement certificates upon transfer or partial redemption, the City agrees to order printed an
additional supply of such certificates and to direct their execution by manual or facsimile signatures of its
then duly qualified and acting Mayor and City Clerk and by imprinting thereon or affixing thereto the
City's seal. In case any officer whose signature or facsimile thereof shall appear on any Series 2009 Bond
shall cease to be such officer before the delivery of such bond (including such certificates delivered to the
Paying Agent and Registrar for issuance upon transfer or partial redemption), such signature or such
ORDINANCE NO. 9218 (Cont.)
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facsimile signature shall nevertheless be valid and sufficient for all purposes the same as if such officer or
officers had remained in office until the delivery of such bond. The Series 2009 Bonds shall not be valid
and binding on the City until authenticated by the Paying Agent and Registrar. The Series 2009 Bonds
shall be delivered to the Paying Agent and Registrar for registration and authentication. Upon execution,
registration and authentication of the Series 2009 Bonds, they shall be delivered to the City Treasurer,
who is authorized to deliver them to Ameritas Investment Corp., as initial purchaser thereof, upon receipt
of ________% of the principal amount of the Series 2009 Bonds plus accrued interest thereon, if any, to
date of payment for the Series 2009 Bonds. Such purchaser and its agents, representatives and counsel
(including the City’s bond counsel) are hereby authorized to take such actions on behalf of the City as are
necessary to effectuate the closing of the issuance and sale of the Series 2009 Bonds, including without
limitation, authorizing the release of the Series 2009 Bonds by the Depository at closing. The officers of
the City (or any one of them) are hereby authorized to execute and deliver the Bond Purchase Agreement
for and on behalf of the City. Said initial purchaser shall have the right to direct the registration of the
Series 2009 Bonds and the denominations thereof within each maturity, subject to the restrictions of this
Ordinance. The City Clerk shall make and certify a transcript of the proceedings of the Mayor and
Council with respect to the Series 2009 Bonds which shall be delivered to said purchaser.
Section 9. Accrued interest, if any, received from the sale of the Series 2009 Bonds shall be
applied to pay interest falling due on December 15, 2009. Expenses of issuance of the Series 2009 Bonds
may be paid from the proceeds of the Series 2009 Bonds. The remaining proceeds of the Series 2009
Bonds, together with other available City funds as required for such purpose, shall be applied to the
payment of the principal of and interest on the Refunded Bonds as called for redemption on the
Redemption Date. The Mayor and Council hereby covenant and agree to take all steps necessary and
appropriate to provide for the payment, calling and redemption of the Refunded Bonds on the Redemption
Date and hereby authorize the officers of the City or any one or more of them to take all actions deemed
ORDINANCE NO. 9218 (Cont.)
- 15 -
necessary in connection with the issuance of the Series 2009 Bonds and the payment and redemption of
the Refunded Bonds.
Section 10. The holders of the Series 2009 Bonds shall be subrogated to all rights of the holders
of the Refunded Bonds including the right to have special assessments set aside as a sinking fund for the
payment of principal thereof and interest thereon, from and after their payment and redemption on the
Redemption Date. The City agrees that it shall cause to be levied and collected annually a special levy of
taxes on all the taxable property in this City, in addition to all other taxes, sufficient in rate and amount to
fully pay the principal of and interest on the Series 2009 Bonds when and as such principal and interest
become due.
Section 11. The City hereby covenants to the purchasers and holders of the Series 2009 Bonds
hereby authorized that it will make no use of the proceeds of said bond issue, including monies held in
any sinking fund for the Series 2009 Bonds, which would cause the Series 2009 Bonds to be arbitrage
bonds within the meaning of Sections 103(b) and 148 of the Internal Revenue Code of 1986, as amended
(the “Code”), and further covenants to comply with said Sections 103(b) and 148 and all applicable
regulations thereunder throughout the term of said bond issue. The City hereby covenants and agrees to
take all actions necessary under the Code to maintain the tax exempt status (as to taxpayers generally) of
interest payable on the Series 2009 Bonds. The City hereby designates the Series 2009 Bonds as its
“qualified tax-exempt obligations” pursuant to Section 265(b)(3)(B)(i)(III) of the Code and covenants and
warrants that it does not reasonably expect to issue or have issued on its behalf tax-exempt bonds or other
tax-exempt interest bearing obligations aggregating in principal amount more than $30,000,000 during
calendar year 2009 (taking into consideration the exception for current refunding issues), provided that
the amount of the Series 2009 Bonds hereby designated shall be reduced as and to the extent that all or a
portion of the Series 2009 Bonds may be determined to be “deemed designated” in accordance with the
provisions of Section 265(b)(3)(D) of the Code. The officers of the City (or any one of them) are hereby
authorized to make allocations of the Series 2009 Bonds (as to principal maturities) and of the proceeds of
ORDINANCE NO. 9218 (Cont.)
- 16 -
the Series 2009 Bonds and debt service funds of the City as may be deemed appropriate under the federal
tax laws and regulations, specifically including any allocations relating to the determination of a portion
of the Series 2009 Bonds as “deemed desig nated”. Any such allocations made and determinations set
forth in a certificate by an officer of the City shall be and constitute authorized determinations made on
behalf of the City with the same force and effect as if set forth in this Ordinance.
Section 12. The City's obligations under this Ordinance with respect to any or all of the Series
2009 Bonds herein authorized shall be fully discharged and satisfied as to any or all of such Series 2009
Bonds and any such Series 2009 Bond shall no longer be deemed to be outstanding hereunder if such
Series 2009 Bond has been purchased by the City and canceled or when the payment of the principal of
and interest thereon to the respective date of maturity or redemption (a) shall have been made or caused to
be made in accordance with the terms thereof or (b) shall have been provided for by depositing with the
Paying Agent and Registrar, or with a national or state bank having trust powers, or trust company, in
trust, solely for such payment (i) sufficient money to make such payment and/or (ii) direct general
obligations (including obligations issued or held in book entry form on the books of the Department of
Treasury of the United States of America) of or obligations the principal and interest of which are
unconditionally guaranteed by the United States of America (herein referred to as "U.S. Government
Obligations") in such amount and bearing interest payable and maturing or redeemable at stated fixed
prices at the option of the holder as to principal, at such time or times, as will ensure the availability of
sufficient money to make such payment; provided, however, that with respect to any Series 2009 Bond to
be paid prior to maturity, the City shall have duly called such bond for redemption and given notice of
such redemption as provided by law or made irrevocable provision for the giving of such notice. Any
money so deposited with a bank or trust company or the Paying Agent and Registrar may be invested or
reinvested in U.S. Government Obligations at the direction of the City, and all interest and income from
U.S. Government Obligations in the hands of such bank or trust company or Paying Agent and Registrar
in excess of the amount required to pay principal of and interest on the Series 2009 Bonds for which such
ORDINANCE NO. 9218 (Cont.)
- 17 -
monies or U.S. Government Obligations were deposited shall be paid over to the City as and when
collected.
Section 13. In accordance with the requirements of Rule 15c2-12 (as now existing or
subsequently amended, the “Rule”) promulgated by the Securities and Exchange Commission, the City
hereby agrees that it will provide the following continuing disclosure information:
(a) to each nationally recognized municipal securities information repository (a “NRMSIR”)
and to the initial purchaser of the Series 2009 Bonds, the City shall provide annual financial and
operating information generally consistent with the information set forth under the heading
“SUMMARY FINANCIAL STATEMENT AND OPERATING STATISTICS” in the Official
Statement for said bonds and the City's audited financial statements; such information is expected
to be available not later than seven months after the end of each fiscal year for the City. Audited
financial information shall be provided for governmental and fiduciary fund types based on the
modified accrual basis of accounting and as to proprietary fund types on an accrual basis in
accordance with generally accepted accounting principles, subject to modification by the City in
the future as it may determine appropriate;
(b) in a timely manner to each NRMSIR or to the Municipal Securities Rulemaking Board
(“MSRB”) (as and to the extent required by the Rule), notice of the occurrence of any of the
following events with respect to the Series 2009 Bonds, if in the judgment of the City, such event
is material:
(1) principal and interest payment delinquencies,
(2) non-payment related defaults,
(3) unscheduled draws on debt service reserves reflecting financial difficulties
(there are no debt service reserves established for the Series 2009 Bonds
under the terms of this Ordinance),
(4) unscheduled draws on credit enhancements reflecting financial difficulties
(there is no credit enhancement on the Series 2009 Bonds),
(5) substitution of credit or liquidity providers, or their failure to perform (not
applicable to the Series 2009 Bonds),
(6) adverse tax opinions or events affecting the tax-exempt status of the Series
2009 Bonds,
(7) modifications to rights of the Series 2009 Bondholders,
(8) Series 2009 Bond calls,
(9) defeasances,
ORDINANCE NO. 9218 (Cont.)
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(10) release, substitution, or sale of property securing repayment of the Series
2009 Bonds, and
(11) rating changes (the Series 2009 Bonds are not rated and no rating for the
Series 2009 Bonds is expected to be requested).
The City has not undertaken to provide notice of the occurrence of any other material
event, except the events listed above.
(c) in a timely manner to each NRMSIR or to the MSRB (as and to the extent required by the
Rule) notice of any failure on the part of the City to provide required annual financial information
not later than seven months from the close of the City’s fiscal year.
Any filing with respect to this Ordinance may be made solely by transmitting such filing to the
Texas Municipal Advisory Council (the “MAC”) as provided at http://www.disclosureusa.org
unless the United States Securities and Exchange Commission has withdrawn the interpretive
advice in its letter to the MAC dated September 7, 2004.
The City reserves the right to modify from time to time the specific types of information provided or the
format of the presentation of such information, to the extent necessary or appropriate in the judgment of
the City, consistent with the Rule. The City hereby agrees that such covenants are for the benefit of the
registered owners of the Series 2009 Bonds (including Beneficial Owners) and that such covenants may
be enforced by any registered owner or Beneficial Owner, provided that any such right to enforcement
shall be limited to specific enforcement of such undertaking and any failure shall not constitute an event
of default under this Ordinance. The continuing disclosure obligations of the City under this Ordinance,
as described above, shall cease when none of the Series 2009 Bonds remain outstanding.
Section 14. The Preliminary Official Statement for the Series 2009 Bonds is hereby approved
and the Mayor and City Clerk are hereby authorized to approve on behalf of the City a final Official
Statement with any changes deemed appropriate by them.
Section 15. This Ordinance shall be in force and take effect from and after its passage and
publication in pamphlet form as provided by law.
ORDINANCE NO. 9218 (Cont.)
- 19 -
PASSED AND APPROVED this 12th day of May, 2009.
____________________________________
Margaret Hornady, Mayor
Attest:
________________________________
RaNae Edwards, City Clerk
Item G1
Approving Minutes of April 28, 2009 City Council Regular Meeting
Tuesday, May 12, 2009
Council Session
City of Grand Island
Staff Contact: RaNae Edwards
City of Grand Island City Council
CITY OF GRAND ISLAND, NEBRASKA
MINUTES OF CITY COUNCIL REGULAR MEETING
April 28, 2009
Pursuant to due call and notice thereof, a Regular Meeting of the City Council of the City of
Grand Island, Nebraska was conducted in the Council Chambers of City Hall, 100 East First
Street, on April 28, 2009. Notice of the meeting was given in The Grand Island Independent on
April 22, 2009.
Mayor Hornady called the meeting to order at 7:00 p.m. The following City Council members
were present: Councilmember’s Meyer, Niemann, Haase, Carney, Dugan, Ramsey, Nickerson,
Zapata, and Gericke. Councilmember Gilbert was absent. The following City Officials were
present: City Administrator Jeff Pederson, City Clerk RaNae Edwards, Finance Director David
Springer, City Attorney Dale Shotkoski, and Public Works Director Steve Riehle.
INVOCATION was given by Mayor Hornady followed by the PLEDGE OF ALLEGIANCE.
MAYOR COMMUNICATION: Mayor Hornady introduced Community Youth Council
members Austin Witmer and Tyler Koepp. Also mentioned was the National Join Hands Day
event scheduled for Friday, May 1, 2009 at the Grand Generation Center.
PUBLIC HEARINGS:
Public Hearing on Acquisition of Utility Easement Located on Wildwood Drive and 1/2 Mile
West of U.S. Highway 281 (Larry and Karen Knuth). Gary Mader, Utilities Director reported that
a utility easement was needed on Wildwood Drive and 1/2 mile west of U.S. Highway 281 in order
to have access to install, upgrade, maintain, and repair power appurtenances, including lines and
transformers. The easement would be used to place underground cable and conduit next to a
driveway into the property. Staff recommended approval. No public testimony was heard.
Public Hearing on for a Neighborhood Stabilization Community Development Block Grant. Joni
Kuzma, Community Development Administrator reported that the office of Housing and Urban
Development had allocated $19.6 million of stimulus money. Grand Island was applying for
$993,712 for demolishing six blighted structures. Staff recommended approval. No public
testimony was heard.
Public Hearing Concerning Annexation of Property located south of Case New Holland and West of
Highway 281. Chad Nabity, Regional Planning Director reported that Case New Holland had
petitioned the Council to annex the property located south of Case New Holland and west of
Highway 281. Water and sewer where available to this property. Staff recommended approval. No
public testimony was heard.
Public Hearing Concerning Acquisition of Utility Easements for North Route Transmission Line
Work. Gary Mader, Utilities Director reported that a presentation was made to Council on April
21, 2009 summarizing the findings of the route study. Requested was authorization for the
Utilities Department and Advantage Engineering to take the necessary steps to complete the
North Route Transmission Line project. Staff recommended approval. No public testimony was
heard.
Page 2, City Council Regular Meeting, April 28, 2009
ORDINANCES:
#9214 – Consideration of Annexation of Property Located South of Case New Holland
and West of Highway 281 (First Reading)
This item related to the aforementioned Public Hearing.
Motion by Meyer, second by Niemann to approve Ordinance #9214 on first reading. Upon roll
call vote, all voted aye. Motion adopted.
#9215 – Consideration of Lease-Purchase Agreement, Ground Lease and Escrow
Agreement for Building and Related Improvements to Serve as a Recreational Facility for
State Fair Activities (First Reading)
Jeff Pederson, City Administrator reported that with the relocation of the Nebraska State Fair and
Council approval of a $5 million contribution it was necessary to own an asset of commensurate
value. The Lease-Purchase Agreement would be to acquire, construct and lease a 70,000 sq. ft.
building. The Escrow Agreement with Wells Fargo would be created for construction costs. The
Ground Lease between Fonner Park and the City would grant the City use of a site for placement
of the building.
Discussion was held concerning the restrictions of the building, building design, and costs
associated with it. Mentioned was the frustration of the process, cost to tax payers, annual cost of
the lottery match, rent for the ground lease, and increasing costs of the project to the City.
Dale Shotkoski, City Attorney stated the reasons for having the Lease-Purchase Agreement,
Escrow Agreement and Ground Lease all included in this Ordinance was that they were all
needed in order to move forward with the project. This being the first of three readings there was
time to change the agreements before the final reading on May 26, 2009.
Jay Vavricek, 2729 Brentwood Blvd. spoke in support of the State Fair move but had concerns
about accountability, control, and clarity of the agreements.
Motion by Ramsey, second by Zapata to approve Ordinance #9215 on first reading. Upon roll
call vote, all voted aye.
CONSENT AGENDA: Motion by Zapata, second by Meyer to approve the Consent Agenda.
Upon roll call vote, all voted aye. Motion adopted.
Approving Minutes of April 14, 2009 City Council Regular Meeting.
Approving Minutes of April 21, 2009 City Council Study Session.
#2009-94 – Approving Payment for Services to Platte Valley Communications of Grand Island,
Nebraska for Equipment Transfer to New Police Vehicles in an Amount of $10,770.02.
Page 3, City Council Regular Meeting, April 28, 2009
#2009-95 – Approving Neighborhood Stabilization Community Development Block Grant
Application.
#2009-96 – Approving Utility Easement Located on Wildwood Drive and 1/2 Mile West of U.S.
highway 281 (Larry and Karen Knuth).
#2009-97 – Approving Bid Award for Cooling Tower Rebuild – Fall of 2009 – Platte Generating
Station with International cooling Tower, Inc. of Edmonton, Canada in an Amount of
$1,140,000.00.
#2009-98 – Approval to Proceed with Transmission Line Easement Acquisitions – North Route
Transmission Line Work.
#2009-99 – Approving Agreement with NDOR for Improvements to the US Highway 281
Viaduct over Burlington Northern Sante Fe Railroad and Nebraska Highway 2 at no cost to the
City.
#2009-100 – Approving Amendment No. 2 to the Agreement for Waste Water Comprehensive
Plan Update with CH2M Hill, Inc. of Englewood, Colorado in an Amount not to exceed
$35,038.00 and a Revised Contract Amount of $381,238.00.
#2009-101 – Approving Amendment to Emergency Management/Communications Center
Interlocal Cooperation Agreement with Hall County.
RESOLUTIONS:
#2009-102 – Consideration of Setting Public Hearing Date for Acquisition of Lease-Purchase
and Ground Lease Site and Building for Recreational Facility for State Fair Activities. City
Administrator Jeff Pederson reported that a Public Hearing was required fo r both the Ground
Lease with Fonner Park and for the Lease-Purchase Agreement with Wells Fargo for the
recreational facility for State Fair activities.
Motion by Meyer, second by Haase to approve Resolution #2009-102. Upon roll call vote, all
voted aye. Motion adopted.
PAYMENT OF CLAIMS:
Motion by Dugan, second by Ramsey to approve the Claims for the period of April 15, 2009
through April 28, 2009, for a total amount of $2,555,411.59. Unanimously approved.
ADJOURNMENT: The meeting was adjourned at 8:15 p.m.
RaNae Edwards
City Clerk
Item G2
Approving Minutes of May 5, 2009 City Council Study Session
Tuesday, May 12, 2009
Council Session
City of Grand Island
Staff Contact: RaNae Edwards
City of Grand Island City Council
CITY OF GRAND ISLAND, NEBRASKA
MINUTES OF CITY COUNCIL STUDY SESSION
May 5, 2009
Pursuant to due call and notice thereof, a Study Session of the City Council of the City of Grand
Island, Nebraska was conducted in the Community Meeting Room of City Hall, 100 East First Street,
on May 5, 2009. Notice of the meeting was given in the Grand Island Independent on April 29,
2009.
Mayor Margaret Hornady called the meeting to order at 7:00 p.m. The following Councilmember’s
were present: Gericke, Nickerson, Ramsey, Zapata , Carney, Haase, Niemann, and Meyer.
Councilmember’s Gilbert and Dugan were absent. The following City Officials were present: City
Administrator Jeff Pederson, City Clerk RaNae Edwards, City Attorney Dale Shotkoski, Public
Works Director Steve Riehle, and Finance Director David Springer.
INVOCATION was given by Mayor Margaret Hornady followed by the PLEDGE OF
ALLEGIANCE.
MAYOR COMMUNICATION: Mayor Hornady mentioned meetings last week with Fonner Park the
State Fair Board and architects to discuss the State Fair.
Presentation on Waste Water Capital Improvement Plan and Cost-of-Service Based Rate Study.
Steve Riehle, Public Works Director reported that Black & Veatch had been hired for engineering
consulting services related to a digester complex. Capital improvement projects budgeted through
2013 was collection system, lift stations, and waste water treatment plant. Mr. Riehle introduced Bill
Stoner with Black & Veatch to update the council concerning the digester project, options, costs, and
rate study.
The following major projects in the Capital Improvement Plan were presented for 2009 – 2010:
· Digester Complex
· Additional Final Clarifier
· Aeration Basin Improvements
Mr. Riehle gave a PowerPoint presentation concerning background of the Digestion Project. The
following advantages for anaerobic digestion were presented:
· Reliable and consistent process – widely used with successful track record
· Lowest O&M costs
· Major reduction in solids
· Pathogen reduction (Class B) allow immediate land application
· Improved de-watering ability of solids
· Enclosed to control odors
· Potential beneficial use of digester gas
JBS Concerns presented were:
· Ammonia – Insufficient aeration capacity to treat ammonia in the summer
· Sulfides – Odors and solids production associated with treatment process
Page 2, City Council Study Session, May 5, 2009
Derek Cambridge with Black & Veatch presented the following Digestion Project update:
· Six options and costs developed
· Focused on capacity of the existing liquid treatment process based on Capacity Analysis
· Reviewed with City staff in November Workshop
· Digester project on-hold following November Workshop until rate study approved
Black and Veatch recommended Option 2A at a cost of $19.6 million which provided redundancy
with capacity for 100% expansion of the liquid process. This option would allow a digester building
area of 12,000 sq ft. Option 2A was the most cost effective.
Anna White with Black & Veatch presented the following information on the Rate Study:
· Maintain Revenue Adequacy
· Use Fair and Equitable Cost Allocations
· Use Practical Rate and Billing Formats
· Minimize Customer Impacts
· Maximize Customer Understanding and Acceptance
The focus of the Cost of Service was to match the costs of providing service to individual customer
classes and to design rates to equitably recover costs. It was recommended that the City reevaluate
rates at least every 3 years. Projected revenue for 2010 was $8,730,500 with requirements of
$9,341,600.
The following Rate Design Methodology - Process was used:
· Review Suitability of Existing Rate Structure
· Examine Alternative Structures
· Design Cost of Service Rates
· Examine impact of Rates on Individual Customers and Classes
The following was presented for Typical Residential Bills:
Residential Existing Rates 2010 2011 2012 2013
Small $15.09 $15.49 $16.64 $17.64 $18.89
Medium 17.83 18.39 20.00 21.40 23.15
Large 28.79 29.99 33.44 36.44 40.19
The following recommendations were made:
· Approve moving forward with Option 2A for the Digesters
· Approve moving forward with finalizing the Rate Study recommending the proposed rates
presented
Discussion was held concerning the timeframe of the project with the digester to be completed by
2013. Finance Director David Springer stated cash reserves were currently $10.8 million. Thirty year
bonds were mentioned for this project.
JBS volume charges were discussed relating to the more you use the less you pay. Ms. White
explained the structure of rates for JBS and surcharge rates. The difference between flat rates and
cost of service rates were explained. John Henderson, Wastewater Treatment Plant Superintendent
answered questions concerning the sulfide trend of JBS.
Page 3, City Council Study Session, May 5, 2009
Lewis Kent, 624 E. Meves Avenue and Paul Wieck, 319 Cardnial spoke concerning the cost of this
project.
ADJOURNMENT: The meeting was adjourned at 8:45 p.m.
RaNae Edwards
City Clerk
Item G3
#2009-103 - Approving Final Plat and Subdivision Agreement for
DSK Subdivision
This item relates to the aforementioned Public Hearing Item E-1.
Tuesday, May 12, 2009
Council Session
City of Grand Island
Staff Contact: Chad Nabity
City of Grand Island City Council
Council Agenda Memo
From: Regional Planning Commission
Meeting: May 12, 2009
Subject: DSK Subdivision – Final Plat
Item #’s: G-3
Presenter(s): Chad Nabity AICP, Regional Planning Director
Background
This final plat proposes to create 6 lots located east of Swan Lane and north of Bismark
Road, in the 2-mile extraterritorial jurisdiction of the City of Grand Island. This property
is zoned LLR Large Lot Residential Zone. Sewer and water are available to the site. This
is approximately 10 acres.
Discussion
The final plat for DSK Subdivision was considered by the Regional Planning
Commission at the May 6, 2009 meeting. A motion was made by Ruge and seconded by
Hayes to approve the plat as presented on the Agenda. A roll call vote was taken and the
motion carried with 7 members present voting in favor (Aguilar, Reynolds, Heineman,
O’Neill, Ruge, Hayes, Bredthauer).
Alternatives
It appears that the Council has the following alternatives concerning the issue at hand.
The Council may:
1. Move to approve
2. Refer the issue to a Committee
3. Postpone the issue to future date
4. Take no action on the issue
Recommendation
City Administration recommends that the Council approve the final plat as presented.
Sample Motion
Move to approve as recommended.
DSK Subdivision Final Plat Summary
Developer/Owner
Danny Kunze
1423 Piper Street
Grand Island NE 68803
To create 6 lots north of Bismark Road and east of Swan Lane, in the 2-mile
extraterritorial of the City of Grand Island, in Hall County, Nebraska.
Size: 10 acres
Zoning: LLR – Large Lot Residential Zone
Road Access: Public City Roads
Water Public: Public water is available
Sewer Public: Public sewer is available
Approved as to Form ¤ ___________
May 7, 2009 ¤ City Attorney
R E S O L U T I O N 2009-103
WHEREAS, Danny Kunze and Susan M. Kunze, husband and wife, being the owners
of the land described hereon have caused to be laid out into 6 lots, a tract of land comprising a part of
the Southwest Quarter of the Southwest Quarter (SW1/4SE1/4) of Section Thirteen (13), Township
Eleven (11) North, Range Nine (9) West of the 6th P.M., in the 2-mile extraterritorial of the City of
Grand Island, in Hall County, Nebraska, under the name of DSK SUBDIVISION, and has caused a
plat thereof to be acknowledged by it; and
WHEREAS, a copy of the plat of such subdivision has been presented to the Boards of
Education of the various school districts in Grand Island, Hall County, Nebraska, as required by
Section 19-923, R.R.S. 1943; and
WHEREAS, a form of subdivision agreement has been agreed to between the owner of
the property and the City of Grand Island.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF
THE CITY OF GRAND ISLAND, NEBRASKA, that the form of subdivision agreement hereinbefore
described is hereby approved, and the Mayor is hereby authorized to execute such agreement on behalf
of the City of Grand Island.
BE IT FURTHER RESOLVED that the final plat of DSK SUBDIVISION, as made out,
acknowledged, and certified, is hereby approved by the City Council of the City of Grand Island,
Nebraska, and the Mayor is hereby authorized to execute the approval and acceptance of such plat by the
City of Grand Island, Nebraska.
- - -
Adopted by the City Council of the City of Grand Island, Nebraska, May 12, 2009.
_______________________________________
Margaret Hornady, Mayor
Attest:
_______________________________________
RaNae Edwards, City Clerk
Item G4
#2009-104 - Approving Final Plat and Subdivision Agreement for
Miracle Valley Second Subdivision
Tuesday, May 12, 2009
Council Session
City of Grand Island
Staff Contact: Chad Nabity
City of Grand Island City Council
Council Agenda Memo
From: Regional Planning Commission
Meeting: May 12, 2009
Subject: Miracle Valley Second Subdivision – Final Plat
Item #’s: G-4
Presenter(s): Chad Nabity AICP, Regional Planning Director
Background
This final plat proposes to create 2 lots located east of Engleman Road., and north of
Michigan Ave. This property is zoned LLR Large Lot Residential Zone. Sewer and water
are available to the site. This is approximately 4.375 acres.
Discus sion
The final plat for Miracle Valley Second Subdivision was considered by the Regional
Planning Commission at the May 6, 2009 meeting. A motion was made by Ruge and
seconded by Hayes to approve the plat as presented on the Consent Agenda. A roll call
vote was taken and the motion carried with 7 members present voting in favor (Aguilar,
O’Neill, Heineman, Ruge, Hayes, Reynolds, Bredthauer).
Alternatives
It appears that the Council has the following alternatives concerning the issue at hand.
The Council may:
1. Move to approve
2. Refer the issue to a Committee
3. Postpone the issue to future date
4. Take no action on the issue
Recommendation
City Administration recommends that the Council approve the final plat as presented.
Sample Motion
Move to approve as recommended.
Miracle Valley Subdivision Final Plat Summary
Developer/Owner
Joseph M. Brown
2807 N Engleman Rd.
Grand Island NE 68803
To create 2 lots north of Michigan Ave., and east of Engleman Rd., in Grand Island, in
Hall County, Nebraska.
Size: 4.375 acres
Zoning: LLR – Large Lot Residential Zone
Road Access: Public City Roads
Water Public: Public water is available
Sewer Public: Public sewer is available
Approved as to Form ¤ ___________
May 7, 2009 ¤ City Attorney
R E S O L U T I O N 2009-104
WHEREAS, Joseph M. Brown and Lori J. Brown, husband and wife, being the owners
of the land described heron have caused to be laid out into 2 lots, a tract of land comprising all of Lot
One (1), Miracle Valley Subdivision in the City of Grand Island, in Hall County, Nebraska, under the
name of MIRACLE VALLEY SECOND SUBDIVISION, and has caused a plat thereof to be
acknowledged by it; and
WHEREAS, a copy of the plat of such subdivision has been presented to the Boards of
Education of the various school districts in Grand Island, Hall County, Nebraska, as required by
Section 19-923, R.R.S. 1943; and
WHEREAS, a form of subdivision agreement has been agreed to between the owner of
the property and the City of Grand Island.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF
THE CITY OF GRAND ISLAND, NEBRASKA, that the form of subdivision agreement hereinbefore
described is hereby approved, and the Mayor is hereby authorized to execute such agreement on behalf
of the City of Grand Island.
BE IT FURTHER RESOLVED that the final plat of MIRACLE VALLEY SECOND
SUBDIVISION, as made out, acknowledged, and certified, is hereby approved by the City Council of the
City of Grand Island, Nebraska, and the Mayor is hereby authorized to execute the approval and
acceptance of such plat by the City of Grand Island, Nebraska.
- - -
Adopted by the City Council of the City of Grand Island, Nebraska, May 12, 2009.
_______________________________________
Margaret Hornady, Mayor
Attest:
_______________________________________
RaNae Edwards, City Clerk
Item G5
#2009-105 - Approving Acquisition of Utility Easement - 3134 West
Highway 34 - Central Community College
This item relates to the aforementioned Public Hearing Item E-1.
Tuesday, May 12, 2009
Council Session
City of Grand Island
Staff Contact: Gary R. Mader
City of Grand Island City Council
Approved as to Form ¤ ___________
May 7, 2009 ¤ City Attorney
R E S O L U T I O N 2009-105
WHEREAS, a public utility easement is required by the City of Grand Island, from Central
Community College Area, to survey, construct, inspect, maintain, repair, replace, relocate, extend, remove, and
operate thereon, public utilities and appurtenances, including lines and transformers; and;
WHEREAS, a public hearing was held on May 12, 2009, for the purpose of discussing the
proposed acquisition of an easement located in Hall County, Nebraska; and more particularly described as follows:
Commencing at the southeast corner of the Southeast Quarter of the Southwest Quarter
(SE1/4, SW1/4) Section Twenty Nine (29), Township Eleven (11) North, Range Nine (9)
West; thence westerly along the southerly line of said Southeast Quarter of the Southwest
Quarter (SE1/4, SW1/4) Section Twenty Nine (29), Township Eleven (11) North, Range
Nine (9)West, a distance of two hundred forty six and twenty three hundredths (246.23)
feet; thence northerly along the westerly right-of-way line of Wortman Drive and its
extension, a distance of five hundred eighty one and fourteen hundredths (581.14) feet to the
ACTUAL Point of Beginning; thence continuing along the westerly line of said Wortman
Drive, a distance of one hundred fifty five (155.0) feet to a point being on the centerline of
an existing easement described in Document 0200306375, recorded in the Hall County
Register of Deeds office; thence westerly and perpendicular to the westerly line of said
Wortman Drive, a distance of twenty (20.0) feet; thence southerly, parallel with the westerly
line of said Wortman Drive, a distance of one hundred fifty five (155.0) feet; thence easterly,
perpendicular to the westerly line of said Wortman Drive, a distance of twenty (20.0) feet to
a point on the westerly line of said Wortman Drive being the said Point of Beginning.
The above-described easement and right-of-way containing 0.071 acres, more or less, as
shown on the plat dated 4/17/2009, marked Exhibit "A", attached hereto and incorporated
herein by reference,
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE CITY OF
GRAND ISLAND, NEBRASKA, that the City of Grand Island be, and hereby is, authorized to acquire a public
utility easement from Central Community College Area, on the above-described tract of land.
- - -
Adopted by the City Council of the City of Grand Island, Nebraska, May 12, 2009.
_______________________________________
Margaret Hornady, Mayor
Attest:
_______________________________________
RaNae Edwards, City Clerk
Item G6
#2009-106 - Approving Acquisition of Utility Easement - 4705 Gold
Core Drive - Zitski, LLC
This item relates to the aforementioned Public Hearing Item E-2.
Tuesday, May 12, 2009
Council Session
City of Grand Island
Staff Contact: Gary R. Mader
City of Grand Island City Council
Approved as to Form ¤ ___________
May 7, 2009 ¤ City Attorney
R E S O L U T I O N 2009-106
WHEREAS, a public utility easement is required by the City of Grand Island, from Zitski,
LLC, to survey, construct, inspect, maintain, repair, replace, relocate, extend, remove, and operate thereon,
public utilities and appurtenances, including lines and transformers; and;
WHEREAS, a public hearing was held on May 12, 2009, for the purpose of discussing the
proposed acquisition of an easement located in Hall County, Nebraska; and more particularly described as
follows:
TRACT NO. 1
Commencing at the northwest corner of Lot One (1), Platte Valley Industrial Park Sixth
Subdivision, in the City of Grand Island, Hall County, Nebraska; thence southerly along
the westerly line of said Lot One (1), a distance of one hundred thirty one and eighty
one hundredths (131.81) feet to the ACTUAL Point of Beginning; thence continuing
southerly along the westerly line of said Lot One (1), a distance of twenty (20) feet;
thence easterly, perpendicular to the westerly line of said Lot One (1), a distance of one
hundred thirty five (135.0) feet; thence northerly, parallel with the westerly line of said
Lot One (1), a distance of twenty (20.0) feet; thence westerly, perpendicular with the
westerly line of said Lot One (1), a distance of one hundred thirty five (135.0) feet to a
point on the westerly line of said Lot One (1), being the said Point of Beginning.
TRACT NO. 2
Beginning at the southwest corner of Lot One (1), Platte Valley Industrial Park Sixth
Subdivision, in the City of Grand Island, Hall County, Nebraska; thence northerly along
the westerly line of said Lot One (1), a distance of two hundred twenty six and sixty
four hundredths (226.64) feet; thence easterly along the southerly line of the Northeast
Quarter of the Southwest Quarter (NE1/4, SW1/4) Section Five (5), Township Ten
(10) North, Range Nine (9) West, to a point being five (5.0) feet distant from the
westerly line of said Lot One (1); thence southerly, parallel with the westerly line of said
Lot One (1), a distance of two hundred twenty six and fifty nine hundredths (226.59)
feet to a point on the southerly line of said Lot One (1); thence westerly along the
southerly line of said Lot One (1) to the southwest corner of said Lot One (1), being the
said Point of Beginning.
The above-described easements and right-of-way containing a combined total of 0.088
acres, more or less, as shown on the plat dated 4/20/2009, marked Exhibit "A",
attached hereto and incorporated herein by reference,
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF
- 2 -
THE CITY OF GRAND ISLAND, NEBRASKA, that the City of Grand Island be, and hereby is,
authorized to acquire a public utility easement from Zitski, LLC, on the above-described tract of land.
- - -
Adopted by the City Council of the City of Grand Island, Nebraska, May 12, 2009.
_______________________________________
Margaret Hornady, Mayor
Attest:
_______________________________________
RaNae Edwards, City Clerk
Item G7
#2009-107 - Approving Acquisition of Utility Easement - 2216 East
Highway 30 - Bosselman Carriers, Inc.
This item relates to the aforementioned Public Hearing Item E-3.
Tuesday, May 12, 2009
Council Session
City of Grand Island
Staff Contact: Gary R. Mader
City of Grand Island City Council
Approved as to Form ¤ ___________
May 7, 2009 ¤ City Attorney
R E S O L U T I O N 2009-107
WHEREAS, a public utility easement is required by the City of Grand Island, from
Bosselman Carriers, Inc., to survey, construct, inspect, maintain, repair, replace, relocate, extend, remove,
and operate thereon, public utilities and appurtenances, including lines and transformers; and;
WHEREAS, a public hearing was held on May 12, 2009, for the purpose of discussing the
proposed acquisition of an easement located in Hall County, Nebraska; and more particularly described as
follows:
Commencing at the southwest corner of Lot Six (6) Bosselman Brothers Subdivision in
the City of Grand Island, Hall County; thence northeasterly along the southerly line of
said Lot Six (6) on an assumed bearing of N63°19’55”E, a distance of thirty (30.0) feet
to the ACTUAL Point of Beginning; thence continuing along the southerly line of said
Lot Six (6), a distance of twenty (20.0) feet; thence N26°40’05”W, a distance of one
hundred four and eight hundredths (104.08) feet to a point on the westerly line of said
Lot Six (6); thence S00°59’47”E along the westerly line of said Lot Six (6), a distance
of forty six and seventeen hundredths (46.17) feet; thence S26°40’05”E, a distance of
sixty two and forty seven hundredths (62.47) feet to the said Point of Beginning.
The above-described easement and right-of-way containing a combined total of
0.038 acres, more or less, as shown on the plat dated 4/30/2009, marked Exhibit
"A", attached hereto and incorporated herein by reference,
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF
THE CITY OF GRAND ISLAND, NEBRASKA, that the City of Grand Island be, and hereby is,
authorized to acquire a public utility easement from Bosselman Carriers, Inc., on the above-described tract
of land.
- - -
Adopted by the City Council of the City of Grand Island, Nebraska, May 12, 2009.
_______________________________________
Margaret Hornady, Mayor
Attest:
_______________________________________
RaNae Edwards, City Clerk
Item G8
#2009-108 - Approving Access Permission to the Platte River
Program for River Channel Monitoring
Tuesday, May 12, 2009
Council Session
City of Grand Island
Staff Contact: Gary R. Mader;Wes Nespor
City of Grand Island City Council
Council Agenda Memo
From: Gary R. Mader, Utilities Director
Wesley Nespor, Asst. City Attorney/Purchasing
Meeting: May 12, 2009
Subject: Platte River Recovery Program
Item #’s: G-8
Presenter(s): Gary R. Mader, Utilities Director
Background
The Platte River Recovery Program (Program) is a cooperative effort of the three states in
the Platte River basin and the federal government to restore the Platte River to a more
natural condition for the benefit of the endangered species that utilize the riverine habitat
in central Nebraska. As a part of that program, the river channel morphology in central
Nebraska will be evaluated periodically to judge the success of modifications to the river
system. The Program has requested permission for its contractor to access the river
channels adjacent to the Grand Island Wellfield. The requested access locations are
shown on the attached map and are referred to as “Anchor Points”. A copy of the request
and the proposed access agreement are attached.
Discussion
Historically, the City has cooperated with governmental agencies in analyses of
environmental issues. The Program wishes to access the Wellfield once each year
through 2019 to make precise measurements of the river channels adjacent to the
Wellfield as described more fully in the attached Work Plan. The relatively limited access
requirements of this request are a minimal burden to the Utilities Department, and the
Department will retain control of the access by requiring that those accessing the City
property be required to check-out a gate key for entrance and return it immediately upon
completion of their annual measurements. The Program Executive Director has requested
that the City execute the Anchor Point Access Permission form, copy attached.
Alte rnatives
It appears that the Council has the following alternatives concerning the issue at hand.
The Council may:
1. Move to approve
2. Refer the issue to a Committee
3. Postpone the issue to future date
4. Take no action on the issue
Recommendation
City Administration recommends that the Council approve the Anchor Point Access
Permission form.
Sample Motion
Move to approve the Anchor Point Access Permission form, and authorize the Mayor to
execute the form on behalf of the City.
Approved as to Form ¤ ___________
May 7, 2009 ¤ City Attorney
R E S O L U T I O N 2009-108
WHEREAS, the Platte River Recovery Program (Program) is a cooperative effort of the
three states in the Platte River basin and the federal government to restore the Platte River to a more natural
condition for the benefit of the endangered species that utilize the riverine habitat in central Nebraska ; and
WHEREAS, the Program has requested permission for its contractor to access the river
channels adjacent to the Grand Island Wellfield through 2019 to make precise measurement of the river
channels adjacent to the Wellfield; and
WHEREAS, the limited access requirements of this request are a minimal burden to the
Utilities Department, and the Department will retain control of the access by requiring that those accessing
the City property be required to check-out a gate key for entrance and return it immediately upon
completion of their annual measurements; and
WHEREAS, the Program Executive Director has requested that the City execute the
Anchor Point Access Permission form.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF
THE CITY OF GRAND ISLAND, NEBRASKA, that the Mayor is hereby authorized to, on behalf of the
City, execute the Anchor Point Access Permission form for the Platte River Recovery Program.
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Adopted by the City Council of the City of Grand Island, Nebraska, May 12, 2009.
_______________________________________
Margaret Hornady, Mayor
Attest:
_______________________________________
RaNae Edwards, City Clerk
Item G9
#2009-109 - Approving Wind Generation Agreement between
Douglas Brunk and Grand Island Utilities
Tuesday, May 12, 2009
Council Session
City of Grand Island
Staff Contact: Gary R. Mader;Dale Shotkoski
City of Grand Island City Council
Council Agenda Memo
From: Gary R. Mader, Utilities Director
Dale Shotkoski, City Attorney
Meeting: May 12, 2009
Subject: Customer Owned Generation Agreement
Item #’s: G-9
Presenter(s): Gary R. Mader, Utilities Director
Background
The National Energy Act of November, 1978 and the Public Utility Regulatory Policies
Act (PURPA) had the effect of placing certain regulatory requirements on electric
utilities. The goals of PURPA are to encourage:
1. The conservation of energy supplied by electric utilities
2. The optimization of the efficient use of facilities and resources by electric
utilities
3. Equitable rates to electric consumers
PURPA addresses the subject of customer-owned generation. In order to carry out the
provisions of the Act, the Federal Energy Regulatory Commission (FERC) issued certain
rules and regulations (18 C.F.R. Part 292) regarding electric utility obligations and
qualifying status for customer-owned generation.
The purpose of PURPA and the FERC rules is to encourage the use of cogeneration and
small production facilities where such devices might utilize alternate and/or renewable
fuels and thus might make a significant contribution to the nation’s effort to conserve
conventional fossil fueled energy resources.
Customer owned generation devices (designated Qualifying Facilities by FERC) are
divided into two subsets, cogenerators and small power producers. Cogeneration facilities
simultaneously produce two forms of useful energy such as electric power and steam.
Cogeneration facilities can use significantly less fuel to produce electricity and steam in a
combined process (or other forms of energy) than would be needed to produce the two
separately. Qualifying Facilities power generators are those that rely on non-conventional
fuels such as biomass, solid or gaseous waste, or renewable resources, including wind
and solar, to produce electric power. Use of alternative sources can reduce the need to
consume conventional fossil fuels to produce electricity.
Under the FERC regulations, the Utilities Department is generally obligated to
interconnect and operate in parallel with Qualifying Facilities, and to purchase excess
electricity from those generators who qualify under FERC’s standards.
The regulations allow the host utility to establish interconnection standards to ensure
electrical system safety and reliability. The Act and regulations also make it clear that a
utility’s other customers are not to be detrimentally affected as a result of the
interconnection.
The purchase rate for excess power provided from Qualifying Facilities is based (as
stated by FERC) upon the costs that can be avoided by the host utility by such purchases.
Avoided costs can be classified into two basic components, energy related and capacity
related.
Energy related avoided costs are those associated with the cost of not burning
conventional fuel to produce electricity or reducing energy purchases. With wind
generation the costs that can be avoided are those associated with energy, i.e., not burning
coal, natural gas or oil; or not purchasing power from other utilities.
Capacity avoided costs are those associated with the capital cost of adding new
generation. If, at some point in the future, Grand Island were able to avoid acquisition of
generation resources by relying on Qualifying Facilities to meet peak electric demands,
there would be additional value over and above the avoided energy costs.
Discussion
GIUD now has a customer who wishes to connect to the electrical distribution system
with a wind generator. A contract was developed to allow the interconnection, protect
GIUD facilities and to create a mechanism to pay the customer should the Qualifying
Facility produce excess energy to sell back.
The proposed agreement was modeled after a similar agreement form used by the Lincoln
Electric System, with review of currently known and pending regulation at the state and
federal level.
Alternatives
It appears that the Council has the following alternatives concerning the issue at hand.
The Council may:
1. Move to approve
2. Refer the issue to a Committee
3. Postpone the issue to future date
4. Take no action on the issue
Recommendation
City Administration recommends that the Council approve the Customer Owned
Generation Agreement with Douglas Brunk to connect a wind powered electric generator
to Grand Island’s electrical system.
Sample Motion
Move to approve the Customer Owned Generation Agreement with Douglas Brunk to
connect a wind generator to Grand Island’s electrical system.
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COGENERATION AND SMALL POWER PRODUCTION
(25 kW and less)
PARALLEL OPERATION, POWER SALES AND INTERCONNECTION AGREEMENT
between
THE CITY OF GRAND ISLAND UTILITIES DEPARTMENT
and
Douglas Brunk
The Power Sales and Interconnection Agreement, hereinafter called the “Agreement,” is
made and entered into as of the 12th day of May, 2009 by and between Douglas Brunk,
hereinafter referred to as the “Owner” of the alternate energy generation equipment of
“Qualifying Facility” and the City of Grand Island Utilities Department, a municipal corporation of
the State of Nebraska, hereinafter referred to a “GIUD”.
WITNESSED: The Owner desires to install alternate energy generation equipment or a
Qualifying Facility and has requested that it be interconnected to GIUD such that is operates in
parallel with GIUD and GIUD may receive energy from such Qualifying Facility. GIUD agrees to
allow such interconnection subject to the following terms and conditions, which are accepted
and agreed to by the Owner:
ARTICLE I
TERM OF AGREEMENT
This Agreement shall be binding upon execution and shall remain in effect for a term of
twelve (12) months from the forenamed execution date. The Agreement may be terminated by
either Party by giving 30 days written notice. Upon completion of the term, the Agreement will
remain effective on a month to month basis unless terminated by either Party.
ARTICLE II
SALE OF ENERGY
The Owner of the Qualifying Facility elects to sell and deliver energy to GIUD under one
of the following two options:
(Check the appropriate option)
OPTION A Deliver the entire electrical output of the Qualifying
Facility.
OPTION B Deliver the instantaneous surplus or excess electrical
output beyond any load requirements associated with the
Qualifying Facility.
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ARTICLE III
RATES FOR PURCHASES FROM QUALIFYING FACILITY
GIUD shall pay the Qualifying Facility for energy delivered to the utility according to the
current period GIUD price schedule for such purchases. This price schedule shall be reviewed
and subject to change by GIUD at its discretion.
ARTICLE V
TERMS AND CONDITIONS
This Agreement includes the following appendix which is attached and incorporated by
reference herein:
Appendix A - General Terms and Conditions of Interconnection and Power Purchases
and Sales
In addition, the terms and conditions of the GIUD Service Regulations, as modified from
time to time, shall also apply except as expressly modified in this Agreement.
In Witness Whereof, the Parties have executed this Agreement by their duly authorized
representatives as of the date hereinabove set forth:
Qualifying Facility City of Grand Island, Utilities Dept.
Title Mayor
Attest Attest
City Clerk
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APPENDIX A
GENERAL TERMS AND CONDITIONS OF INTERCONNECTION
AND POWER PURCHASES AND SALES
A-1 Electrical Service Conditions
A-1.1 General
a) Owner:
b) Location:
A-1.2 Primer Mover and Generator
a) Manufacturer:
b) Manufacturer’s Reference
Number, Type or Style:
c) Serial Number:
d) Nameplate Data:
e) Fuel Source:
A-1.3 Character of Service
a) Voltage:
b) Phase:
c) Frequency:
d) Service Amp:
e) Other Characteristics:
A-1.4 Points of Delivery and Receipt
The point of delivery and/or receipt between GIUD and the Qualifying Facility will
be the GIUD metering equipment or that point where the GIUD service wires are joined
to the Qualifying Facility’s service terminals unless otherwise mutually agreed to by the
Parties.
A-2 Rights and Obligations
A-2.1 Ownership and Responsibility
The Owner of the Qualifying Facility shall design, construct, install, own, operate
and maintain the Facility and all equipment on the Owner’s side of the point of
delivery/receipt that is required to generate and deliver energy to GUID except for any
special facilities as may be designated. The Facility’s protection, control, safety and all
associated equipment must meet standards of good engineering and electrical safety
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practices as determined solely by GIUD and be capable of parallel operation with GIUD
service wires. The protection, control, safety and other associated equipment shall at all
reasonable times be accessible to authorized GIUD personnel.
A-2.2 Design
The Owner of the Qualifying Facility shall supply GIUD with three copies of
technical specifications and drawings upon request related to the production and
interconnection facilities and related equipment. GIUD’s review of the Facility’s
specifications shall not be construed as confirming nor endorsing the design nor as any
warranty of safety, durability or reliability of such Facility or equipment. GIUD shall not,
by reason of such review or failure to review, be responsible for strength, details of
design, adequacy or capacity of the Qualifying Facility or other equipment, nor shall
GIUD’s acceptance be deemed to be an endorsement of any facility or equipment.
A-2.3 Interconnection Facilities
The Owner of Qualifying Facility shall construct, own and maintain
interconnection facilities as required by GIUD to deliver energy from the Qualifying
Facility to the point of delivery/receipt. The interconnection facilities shall be of such size
to accommodate the delivery of such energy.
A-2.4 Protective Equipment
The Owner of the Qualifying Facility shall be responsible for providing and
maintaining all equipment deemed necessary for the protection of its own facilities,
property and operations. Such equipment shall be provided for on the Owner’s side of
the point of delivery/receipt. By virtue of the interconnection with the Qualifying Facility,
GIUD assumes no liability for the protection of any property or person associated with
the Qualifying Facility’s operations.
A-2.5 Changes in Conditions
The Owner of the Qualifying Facility agrees to make and bear all costs, except as
otherwise provided, of changes in equipment necessitated by changes in service
requirements as may be reasonably required by GIUD.
A-2.6 Governmental Regulations, Codes and Ordinance
The Owner of the Qualifying Facility has the responsibility to comply with all
applicable federal, state and local regulations, building codes and ordinances including
electrical codes. The Owner shall not begin initial operation of the Qualifying Facility
until it has passed applicable code inspection requirements and has received written
approval from GIUD. The GIUD review of design specifications and drawing or on-site
inspections shall not be construed as approvals as to compliance with any such
regulations, codes and/or ordinances.
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A-2.7 Land Rights
The Owner of the Qualifying Facility grants to GIUD all necessary right-of-ways
and easements on the property of the Owner to install, operate, maintain, replace and
remove GIUD metering and interconnection equipment. If any part of GIUD ‘s facilities
are to be located on property owned by other than a Party to this Agreement, the Owner
of the Qualifying Facility shall procure all necessary right-of-ways and easements for the
construction, operation, maintenance and replacement of GIUD’s facilities upon such
property in a form satisfactory to GIUD. The standard GIUD easement agreement will
be utilized.
Authorized GIUD personnel have the right to enter at any reasonable time to
inspect equipment located on the property or within an enclosure and make safety
inspections. This right does not relieve the Owner of the Qualifying Facility of the
obligation to maintain such facilities.
A-3 Operations and Safety
A3.1 Procedures
The Owner of the Qualifying Facility shall cooperate with GIUD in developing
mutually acceptable operating procedures for the delivery of the electrical output from
the Qualifying Facility and associated interconnection. The Owner will be responsible for
operating the Qualifying Facility and associated equipment in a manner that will not
cause undesirable and harmful effects, unusual fluctuations or disturbances to occur on
the electrical system of GIUD or GIUD’s customers. Any future changes to the
interconnection relay settings must receive the approval of GIUD System Protection
personnel before implementation.
A-3.2 Disconnect Equipment
The Owner shall provide equipment for manually disconnecting and isolating the
Qualifying Facility from the GIUD electrical system. An outside-mounted visible
disconnect shall be installed on the Owner’s side of the point of delivery/receipt near the
meter or mutually agreed upon location. Such equipment must be capable of preventing
the Qualifying Facility from energizing the GIUD service wires and must include a device
which, at GIUD’s discretion, GIUD employees can operate and lock in place.
The Owner shall also provide equipment to automatically disconnect and isolate
the Qualifying Facility from GIUD during a service interruption. The automatic
disconnect shall receive its voltage and frequency referenced from the GIUD service
wires. The automatic disconnect shall not close without proper voltage and frequency
from the GIUD service wires. Such equipment must be capable of preventing the
Qualifying Facility from energizing GIUD service wires during a service interruption.
Please refer to the latest IEEE standard 1547 section on “Islanding.”
A3.3 Fault Protection
Adequate protection facilities shall be provided by the Owner to protect the GIUD
service wires from fault currents originating from the Qualifying Facility. The Owner
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shall also be responsible to provide adequate protection for the Qualifying Facility from
fault currents originating from GIUD.
A-3.4 Over/Under Voltage
It shall be the responsibility of the Owner to provide adequate protection or
safeguards to prevent damage to GIUD caused by over/under voltages originating in the
Qualifying Facility and to protect the Qualifying Facility from inadvertent over/under
voltage conditions originating from the GIUD electrical system. Please refer to the latest
IEEE standard 1547 for voltage ranges and clearing times when setting the
interconnection relay.
A-3.5 Synchronization
The Owner shall provide adequate facilities for the proper synchronization of the
Qualifying Facility with GIUD service wires such that such synchronization is
accomplished without causing undesirable currents, surges or voltage dips on the GIUD
electrical system. GIUD employs automatic reclosing on its distribution system circuit
breakers. A fault and the subsequent breaker trip and reclose can cause an out-of-
phase condition to exist between GIUD and the customer generation facility. Following a
period of interruption, the proper resynchronization of the Qualifying Facility shall be the
responsibility of the Owner.
A-3.6 Grounding
The Owner shall ground the Qualifying Facility and associated equipment in such
a manner that coordination is maintained with the relay protection system in use by
GIUD and the Qualifying Facility is protected from being subject to deleterious voltage
and excessive current conditions.
A-3.7 Harmonics
Adequate design precaution must be taken by the Owner to prevent excessive
and deleterious harmonic voltages and/or currents caused by the Qualifying Facility from
occurring on the electrical system of GIUD or to GIUD’s customers. The Qualifying
Facility must be designed to operate with normal harmonic voltage and currents that
originate from the GIUD electrical system. Please refer to the latest IEEE standard
1547.
A-3.8 Power Factor
The operation of the Qualifying Facility shall not produce nor consume excessive
reactive power. Should the power factor fall outside acceptable limits either lagging or
leading, as determined by GIUD, the Owner shall undertake the necessary modifications
to meet the required power factor level.
A-3.9 Voltage Regulation
The Owner shall provide the necessary voltage regulation equipment to
prevent the Qualifying Facility from causing excessive voltage variations on the GIUD
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electrical system. The voltage variation caused by the Qualifying Facility must be within
the ranges capable of being handled by the voltage regulation facilities used by GIUD.
A-3.10 Voltage Flicker
Voltage surges or flickers caused by the operation, synchronization or isolation of
the Qualifying Facility shall be within the standards of frequency of occurrence and
magnitude established by GIUD to prevent undue voltage flicker on the GIUD electrical
system. The Owner shall provide suitable equipment to reasonably limit voltage
fluctuations caused by the Qualifying Facility.
A-3.11 Voltage Balance
The voltage produced by the Qualifying Facility must be balanced if it is a three-
phase installation. The Owner shall be responsible for protecting the Qualifying Facility
from an inadvertent phase unbalance in GIUD service voltage.
A-3.12 Over/Under Frequency
The Owner shall provide the necessary facilities for safeguards and protection of
equipment caused by the ocurrence of an over or under frequency event. Please refer
to the latest IEEE standard 1547 for frequency ranges and clearing times when setting
the interconnection relay.
A-3.13 Emergency Dispatchability
An emergency condition exists when the reliability of the electric system is in
jeopardy and customer service is threatened. During emergency conditions, the Owners
of Qualifying Facilities may be asked to place control of their facilities under the direction
of GIUD until the electric system has returned to normal operation. GIUD will determine
when generation should be adjusted, brought on-line or shut down. If the Owner
chooses to cooperate during these emergency conditions, they should be able to alter
their generation schedules as directed by GIUD system dispatchers.
A-4 Continuity of Service
GIUD shall not be obligated to accept and GIUD may require the Qualifying
Facility to curtail, interrupt or reduce deliveries of energy in order to construct, install,
maintain, repair, replace, remove, investigate or inspect any of its equipment or any part
of its electrical system or if it determines that curtailment, interruption or reduction is
necessary because of emergencies, forced outages, operating conditions on its
electrical system or as otherwise required by prudent electrical utility practices. Such
discontinuance of service or purchases shall be without notice or liability.
The Owner of the Qualifying Facility shall promptly notify GIUD of any extended
Qualifying Facility outage along with the estimated duration of such outage or reduction.
Any violation of the terms and conditions of the Agreement or GIUD Service Regulations
shall result in the immediate termination of the Agreement without notice or liability.
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A-5 Metering
A-5.1 Ownership and Maintenance
GIUD, at its expense, shall install, own, maintain and test all billing meters and
associated equipment that is necessary in GIUD’s sole judgment to determine amounts
and/or times of delivery of energy by the Qualifying Facility to GIUD and from GIUD to
the Qualifying Facility and any associated load. The Qualifying Facility shall furnish the
meter socket(s) and other related equipment plus sufficient space required by GIUD in
order to accommodate such equipment.
The Owner of the Qualifying Facility agrees to allow GIUD, at GIUD’s expense, to
install additional metering to obtain other load and operating data provided such
metering does not adversely affect the operations of the Qualifying Facility.
A-5.2 Sealed Meters and Testing
All meters used to determine the billings shall be sealed and the seals shall be
broken by GIUD employees only upon those occasions when the meters are to be
inspected, tested or adjusted.
If requested to do so by the Qualifying Facility, GIUD shall inspect or test the
meter(s) with the expense of such an inspection or test being paid by the Qualifying
Facility unless upon being tested or inspected the meter is found to register inaccurately
by more than two percent of full scale. If a meter is found to be inaccurate beyond two
percent or is otherwise defective, it shall be repaired or replaced, at GIUD’s expense, in
order to provide accurate metering.
A-5.3 Adjustments
If any test of metering equipment discloses any inaccuracy of more than two
percent, the accounts between the Parties shall be adjusted in accordance with this
section. Such correction and adjustment shall be made from the date the meter became
inaccurate, if known. If such data cannot be determined, then the adjustment shall be
made for the previous month or from the date of the latest test (if within the previous
month) and for the elapsed period in the month during which the test was made. Should
any metering equipment at any time fail to register or should the registration thereof be
so erratic as to be meaningless, the amounts of energy transacted shall be determined
by the Parties from the best available data.
A-5.4 VAR Metering
At GIUD’s option, VAR metering may be installed by GIUD at the Qualifying
Facility’s expense to measure reactive power.
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A-6 Billing and Payment
Once a billing month, GIUD shall read the billing meter(s) installed to measure
energy and capacity (real and reactive, if applicable) delivered to GIUD from the
Qualifying Facility. GIUD shall then prepare a statement computing the amounts owed
by GIUD for such energy. The billing and payment shall be in accordance with state law
and adopted GIUD regulations regarding such items.
A-7 Uncontrollable Forces
A Party shall not be considered to be in default in respect to any obligation
hereunder if prevented from fulfilling such obligation by reason of uncontrollable forces.
The term uncontrollable forces shall be deemed for the purposes hereof to mean storm,
flood, lightening, earthquake, fire, explosion, civil disturbance, labor disturbance,
sabotage, war, national emergency, restrant by court or public authority or other causes
beyond the control of the Party affected which such Party could not reasonably have
been expected to avoid by exercise of due diligence and foresight. Either Party unable
to fulfill any obligation by reason of uncontrollable forces will exercise due diligence to
remove such disability with reasonable dispatch.
A-8 Indemnity and Liability
Each Party shall indemnify the other Party, its officers, agents, and employees
against all loss, damage, expense and liability to third persons for injury to or death of
person or injury to property, proximately caused by the indemnifying Party’s
construction, ownership, operation, or maintenance of, or by failure of, any of such
Party’s works on facilities used in connection with this Agreement. The indemnifying
Party shall, on the other Party’s request, defend any suit asserting a claim covered by
this indemnity. The indemnifying Party shall pay all costs that may be incurred by the
other Party in enforcing this indemnity.
Nothing in this Agreement shall be construed to create any duty to any standard
of care with reference to or any liability to any person not a Party to this Agreement.
A-9. Waiver
Any waiver at any time by either Party of its rights with respect to default under
this Agreement shall not be deemed a waiver with respect to any subsequent default by
the other Party under this Agreement.
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A-10. Successors, Legal Representative or Assigns
This Agreement shall be binding upon and inure to the benefit of the successors,
legal representatives, or assigns of the respective Parties. Neither Party shall assign
this Agreement without the express written consent of the other Party, nor shall a Party
be relieved of its obligations hereunder or impose additional obligations or burdens on
the other Party by any assignment given.
A-11. Governmental Jurisdiction and Authorization
This Agreement is subject to the jurisdiction of those governmental agencies
having control over the Parties of the Agreement. This Agreement shall not become
effective until all required governmental authorization and permits are first obtained and
copies are submitted to GIUD.
This Agreement shall at all times be subject to such changes by such
governmental agencies, and the Parties shall be subject to such conditions and
obligations, as such governmental agencies may from time to time direct in the exercise
of their jurisdiction. Both parties agree to exert their best efforts to comply with all
applicable rules and regulations of all governmental agencies having control over either
Party or this Agreement. The Parties shall take all reasonable action necessary to
secure all required governmental approvals of this Agreement in its entirety and without
change.
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Sheet No. 1 of 2
COGENERATION AND SMALL POWER PRODUCTION PURCHASED ENERGY RATE
AVAILABLE: To cogeneration and small power production facilities with production capacity of
25 KW and less that qualify under the guidelines for implementing PURPA Sections 201 and
210. This rate shall be used in conjunction with the applicable retail rate.
CHARACTER OF SERVICE: Unless otherwise provided by contract, the character of
purchased power will be single or three phase alternating electric current at 60 hertz. Voltage
shall be determined by the voltage of GIUD’s distribution system in the vicinity unless otherwise
agreed.
PURCHASE OF OUTPUT FROM QUALIFYING FACILITIES: Owners of Qualifying Facilities
will be allowed to use the electrical output of their Qualifying Facilities to instantaneously supply
all or a portion of their own load and deliver the instantaneous surplus to GIUD. At the end of
the billing period, the energy delivered to GIUD or supplied to the customer will be determined.
The net positive energy supplied to the customer will be at the applicable retail rate.
The net positive energy delivery to GIUD will be purchased by GIUD each billing period at this
Cogeneration and Small Power Production Energy Rate. Other applicable fees and charges,
including the customer charge and demand charge of the retail rate will be billed to the
Customer.
PURCHASE PRICE: Energy from qualifying small power production and cogeneration facilities
will be paid for on the following basis:
A. For Qualifying Facilities of 25 kW and less payment on a monthly basis of an amount
of $0.015 per kilowatt hour plus the calculated power cost adder normally applied to
purchase kilowatt hours for all net positive energy delivered to the City of Grand
Island Utilities Department.
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Sheet No. 2 of 2
COGENERATION AND SMALL POWER PRODUCTION PURCHASED ENERGY RATE
TERMS AND CONDITIONS:
1. A signed written agreement between the Qualifying Facility and GIUD will be required.
2. Unless modified by contract, the GIUD Service Regulations shall apply to this schedule.
3. For facilities with more than 25 kilowatts of capacity, the purchase rate and other terms
and conditions will be determined on a case by case basis.
4. Customer Qualified Facility installation must comply with all applicable City, County, and
State Laws and Regulations.
Effective
Approved Issued by
Approved as to Form ¤ ___________
May 7, 2009 ¤ City Attorney
R E S O L U T I O N 2009-109
WHEREAS, the City of Grand Island Utilities Department (GIUD) and Douglas Brunk (the
Parties) desire to enter into a Cogeneration and Small Power Production (25 kW and less) for Parallel
Operation, Power Sales and Interconnection Agreement, in order to encourage the conservation of energy
supplied by GUID, optimize the efficient use of facilities and resources, and to provide equitable rates to
electric consumers; and
WHEREAS, Grand Island Utilities Department encourages the use of cogeneration and
small production facilities where such devices might utilize alternate and/or renewable fuels and thus might
make a significant contribution to the nation’s effort to conserve conventional fossil fueled energy resources;
and
WHEREAS, GIUD now has a customer who wishes to connect to the electrical distribution
system with a wind generator; and
WHEREAS, the Parties desire to enter into an Agreement to allow interconnection, and to
protect GIUD facilities and to create a mechanism to pay the customer should the Qualifying Facility
produce excess energy to sell back.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF
THE CITY OF GRAND ISLAND, NEBRASKA, that the Mayor is hereby authorized to, on behalf of the
City, execute the Cogeneration and Small Power Production (25 kW and less) Parallel Operation, Power
Sales and Interconnection Agreement between the City of Grand Island Utilities Department and Douglas
Brunk in accordance with the terms and conditions generally described above.
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Adopted by the City Council of the City of Grand Island, Nebraska, May 12, 2009.
_______________________________________
Margaret Hornady, Mayor
Attest:
_______________________________________
RaNae Edwards, City Clerk
Item G10
#2009-110 - Approving License Agreement with Unite Private
Networks for Power Pole Attachments
Tuesday, May 12, 2009
Council Session
City of Grand Island
Staff Contact: Gary R. Mader;Wes Nespor
City of Grand Island City Council
Council Agenda Memo
From: Gary R. Mader, Utilities Director
Dale Shotkoski, City Attorney
Meeting: May 12, 2009
Subject: License Agreement with Unite Private Networks for
Power Pole Attachments
Item #’s: G-10
Presenter(s): Gary R. Mader, Utilit ies Director
Background
Unite Private Networks (UPN) is a new telecommunications company that wishes to
attach fiber optic cables to City owned utility poles.
The Company has a contract with the Grand Island School District to provide
telecommunications interconnection service to School District facilities across the City;
including Grand Island Senior High, Walnut Middle School, the Administration Building,
Barr Middle School, and Central Community College.
Discussion
A License Agreement is the form used in the past to allow cables owned by others to be
placed on City utility poles. Charter and Qwest are currently attached to utility poles in
the City.
The National Electric Safety Code (Code) prescribes the methods and clearances required
for installation of multiple wire strand utility company facilities and equipment on power
poles. The proposed agreement includes requirements to meet the Code specifications for
clearances between utility facilities, which will require some work by the Utilities
Department and the other utilities currently using the poles.
Of the 206 poles to which UPN wishes to attach, 40 will require work to be done by the
Utilities Department and Charter Communications. The proposed contract requires UPN
to pay for any “make ready” work that is required to provide the needed space on the pole
to allow them to attach in accordance with the Code. The proposed contract is essentially
the same as the current Contracts with Charter Communications and Qwest. UPN will
also pay the same $4.00 per pole annual fee that is received from Qwest and Charter.
Alternatives
It appears that the Council has the following alternatives concerning the issue at hand.
The Council may:
1. Move to approve
2. Refer the issue to a Committee
3. Postpone the issue to future date
4. Take no action on the issue
Recommendation
City Administration recommends that the Council approve the License Agreement and
direct the Mayor to sign on behalf of the City.
Sample Motion
Move to approve the License Agreement between the City of Grand Island and Unite
Private Networks, and authorize the Mayor to sign the agreement.
License Agreement
Between
The City Of Grand Island
&
Unite Private
Networks, LLC
2
LICENSE AGREEMENT
THIS AGREEMENT, made as of May 12, 2009, between the City of Grand
Island, hereinafter called Licensor, and Unite Private Networks, LLC, hereinafter called
Licensee.
WITNESSETH
WHEREAS, Licensee provides communication and education services in the
territory in which Licensor provides electric power.
WHEREAS, Licensor owns all poles to be used jointly by the parties.
WHEREAS, the parties wish to provide for Licensee’s use of Licensor’s utility
poles.
NOW, THEREFORE, the parties hereby agree as follows:
3
ARTICLE I
DEFINITIONS
As used in this Agreement:
(A) Licensor’s “poles” means poles owned by Licensor and poles owned by
third parties, to which Licensor is authorized to permit Licensee to attach its facilities.
(B) “Attachments” means messengers, guy strands, aerial wires, cables,
amplifiers, associated power supply equipment and other transmission apparatus
necessary for the proper operation of Licensee’s cable television system.
ARTICLE II
SCOPE OF AGREEMENT
(A) Subject to the provisions of the Agreement, including the proper execution
of APPENDIX 1 and 2, Licensor hereby issues to Licensee, for any lawful
communication/educational purpose, revocable nonexclusive authorization for the
attachment of Licensee’s cables, equipment and facilities to Licensor’s poles within the
territory in which both parties now or hereafter operate.
(B) No use, however extended, of Licensor’s poles or payment of any fees or
charges required under this Agreement shall create or vest in Licensee any ownership
or property rights in said poles, but Licensee’s rights therein shall be and remain a mere
license. Nothing herein contained shall be construed to compel Licensor to construct,
retain, extend, place or maintain any facilities not needed for its own service
requirements, nor to reconstruct, replace or substitute any facilities damaged, destroyed
or discontinued.
4
(C) Licensee acknowledges that Licensor has heretofore entered into, and
may in the future enter into, agreements and arrangements with third parties allowing
the attachment of their facilities to the poles covered by this Agreement. Licensor
agrees that no such agreement or arrangement will, in any way, diminish the scope of
the license granted hereby or Licensee’s rights hereunder.
(D) Licensee’s attachment to poles belonging to a third party shall be subject
to any restrictions in the Agreement between that third party and licensor authorizing the
attachment.
ARTICLE III
FEES AND CHARGES
(A) Licensee shall pay to Licensor the fees and charges specified in and in
accordance with the terms and conditions of APPENDIX 1.
(B) Nonpayment of any amount due under this Agreement shall constitute a
default of this Agreement.
(C) At the expiration of One(1) year from the date of this Agreement and at the
end of every one (1) year period thereafter, Licensor may adjust the fees and charges
specified in APPENDIX 1 after notice made in writing to Licensee not later than sixty
(60) days before the end of the one (1) year period or the end of any subsequent one
(1) year period thereafter. Any such adjustment shall reflect only changes in Licensor’s
costs, determined in a manner consistent with the determination of the fees and
charges specified in APPENDIX 1.
5
ARTICLE IV
SPECIFICATIONS
(A) Licensee’s fiber, cable, equipment and facilities shall be placed and
maintained in accordance with the requirements and specifications of APPENDIX
2. Licensor shall have the right, upon reasonable notice to Licensee, to make
reasonable changes and amendments to APPENDIX 2. Unless different
standards are specified herein, the provisions of the National Electrical Code and
the National Electrical Safety Code, and any amendments thereto or
replacements thereof, shall be applicable.
ARTICLE V
LEGAL AUTHORITY
(A) The parties shall at all times observe and comply with, and the provisions
of this Agreement are subject to all laws, ordinances and regulations which in any
manner affect the rights and obligations of the parties under this Agreement, so long as
such laws, ordinances or regulations remain in effect.
ARTICLE VI
ISSUANCE OF LICENSES
(A) Upon execution of this Agreement, the parties will prepare a list indicating
to which of the Licensor’s poles Licensee’s facilities are then attached; Licensee shall
be deemed to have a license hereunder for attachment to all such poles. Before
attaching to additional poles of Licensor, Licensee must make application for and
receive license therefore in the form of Exhibit A, hereto.
6
(B) Licensor shall have the right at any time to issue reasonable rules and
regulations concerning submission of applications and attachments to poles of Licensor,
which rules and regulations shall be binding upon submission of a copy thereof to
Licensee.
ARTICLE VII
POLE REPLACEMENTS, RESTRICTIONS AND REARRANGEMENTS
(A) In the event Licensor determines that the space on any pole to which
Licensee wishes to make attachment is required for its exclusive use or that the pole
may not reasonably be rearranged or replaced, Licensor may refuse attachment to that
pole.
(B) In the event Licensor determines that any pole to which Licensee wishes
to make attachments is inadequate or otherwise needs rearrangement of the existing
facilities thereon to support or accommodate the additional facilities of Licensee in
accordance with the specifications set forth in APPENDIX 2, Licensor will indicate on
the application (Exhibit A) the changes necessary to provide adequate pole space and
the estimated cost thereof to Licensee and return the application to Licensee. If
Licensee wishes that such changes be made and returns the application marked to so
indicate, Licensor will make such changes, including the replacement of inadequate
poles, and Licensee shall pay Licensor in accordance with the terms of APPENDIX 1.
Licensee shall also reimburse the owner or owners of other facilities attached to said
poles for any expense incurred by it or them in transferring or rearranging said facilities
to accommodate Licensee’s attachments.
(C) Should Licensor need for its own service requirements the space occupied
7
by Licensee’s attachments on any of Licensor’s poles, Licensee will be notified that it
shall either surrender its license for that pole and, at its own expense, vacate the space
by removing its attachments, or it shall authorize Licensor to replace the pole at the
expense of Licensee, in the same manner as stated in the preceding Paragraph (B)
covering the replacement or rearrangement of poles when required to accommodate
Licensee’s attachments; or, if Licensor advises Licensee that Licensee’s desired
attachments can be accommodated on present poles of Licensor by rearranging
Licensor’s facilities thereon, Licensee shall authorize Licensor to make such
arrangements at the expense of Licensee. Licensee shall also reimburse the owner or
owners of other facilities attached to said poles for any expense incurred by it or them in
transferring or rearranging said facilities to accommodate Licensee’s attachments. Any
strengthening of poles will be provided at the expense of Licensee in accordance with
the specifications in APPENDIX 2.
(D) When Licensor receives multiple applications for attachment to any pole
that must be replaced or rearranged to provide sufficient space, Licensor will, to the
extent that it is practical to do so, prorate the common expenses of engineering,
rearrangement and replacement, if any, among all the applicants. Licensee shall be
bound by Licensor’s determination as to any such proration of costs to Licensee.
(E) Whenever it is necessary for Licensor to make pole replacements or
rearrangements in order to accommodate Licensee’s cable, equipment and facilities,
Licensor will endeavor to have such work performed as soon as is practicable upon
consideration of Licensor’s service requirements, but only after issuance of the license
to, and acceptance of responsibility for costs by, Licensee.
8
(F) Licensee shall provide all anchors and guying necessary for its facilities. If
the presence of Licensee’s facilities on Licensor’s poles make it necessary for Licensor
to modify its existing guying or add new guying to its poles, then the cost of such
modifications or additions shall be reimbursed by Licensee.
(G) When Licensor’s facilities occupy space on a pole owned by a third party,
Licensee shall reimburse Licensor for any expense incurred in transferring or
rearranging its facilities thereon, if such transfer or rearrangement is the result of
Licensee’s use or proposed use of said pole.
ARTICLE VIII
CONSTRUCTION AND MAINTENANCE OF FACILITIES
(A) Licensee shall, at its own expense, make and maintain its pole
attachments in a safe condition and in thorough repair, and in a manner reasonably
acceptable to Licensor, and so as not to conflict with the use of Licensor’s poles by
Licensor or by other authorized users thereof, or interfere with other facilities thereon or
which may from time to time be placed thereon. If reasonably necessary to satisfy any
of the above conditions, Licensee shall, upon 30 days’ notice from Licensor and at its
own expense, relocate or replace its facilities on Licensor’s poles, or transfer them to
substituted poles, or perform any other work in connection with its facilities that may
reasonably be required by Licensor; provided, however, that in cases of emergency,
Licensor may arrange to relocate or replace the attachments placed on its poles by
Licensee, transfer them to substituted poles or perform any other work in connection
with Licensee’s facilities that may be required in the maintenance, replacement, removal
or relocation of Licensor’s poles or of the facilities thereon, or which may be placed
9
thereon, or for the service needs of Licensor, and Licensee shall reimburse Licensor for
the expense thereby incurred; provided further, however, that Licensee shall have no
obligation to relocate, replace, or transfer its facilities solely to accommodate the service
needs of any person other than Licensor, unless such person shall make arrangements,
satisfactory to Licensee, to reimburse Licensee for such work.
(B) All tree trimming required on account of Licensee’s attachments shall be
done by Licensee at its sole risk and expense and in a manner satisfactory to Licensor.
The parties may agree that Licensor shall conduct tree trimming and be reimbursed by
Licensee.
ARTICLE IX
TERMINATION OF LICENSES
(A) Upon notice from Licensor to Licensee that the use of any pole is not
authorized by Federal, State, County or Municipal authorities or private property
owners, the license covering the use of such pole shall immediately terminate and shall
be surrendered and Licensee shall remove its fiber, cables, equipment and facilities at
once from the affected pole or poles at Licensee’s expense.
(B) Licensee may at any time remove its facilities from any pole of Licensor,
but shall immediately give Licensor written notice of such removal and surrender of
License in the form of Exhibit B attached hereto and made a part hereof. If Licensee
surrenders its license for a pole but fails to remove its facilities from that pole, Licensor
shall have the right, upon reasonable notice, to remove Licensee’s facilities at
Licensee’s expense and without any liability on the part of Licensor for damage or injury
to Licensee’s facilities. In the event that Licensee’s fiber, cables, equipment and
10
facilities shall be removed from any pole as provided by this Article, no attachment shall
again be made to such pole unless Licensee shall have first complied with all of the
provisions of this Agreement as though no such attachment had previously been made.
(C) Licensor shall have the right, upon written notice, to terminate the license
for a particular pole:
(1) If, in Licensor’s sole judgment, its service needs require full
utilization of that pole; or
(2) If changes in the physical facilities, space or location requirements
or service requirements of Licensor render such poles inadequate
to support the facilities of Licensee; provided, however, that in such
event Licensee may request the substitution of suitable poles upon
the same terms and conditions as would be applicable under
ARTICLE VII.
ARTICLE X
INSPECTIONS OF LICENSEE’S INSTALLATIONS
(A) Licensor reserves the right to make periodic inspections of any part of the
fiber, cable, equipment and facilities of Licensee on its poles, and Licensee shall
reimburse Licensor for the expense of such inspections. Inspections will be made no
more than once a year and only upon notice to Licensee unless, in Licensor’s judgment,
such inspections are required for reasons involving safety or are required because of
Licensee’s violation of the terms of this Agreement. The charge for the inspection shall
be in accordance with the terms and conditions of APPENDIX 1. The making of such
11
inspections or the failure to do so shall not operate to relieve Licensee of any
responsibility, obligation or liability assumed under this Agreement.
(B) If any fiber, cable, equipment and facilities of Licensee shall be found on a
pole for which no license is outstanding, Licensor, without prejudice to its other rights or
remedies under this Agreement or otherwise, may (1) impose a charge, and (2) require
Licensee to remove such fiber, cable, equipment and facilities forthwith or Licensor may
remove them without liability and the expense of removal shall be borne by Licensee;
provided, however, that if Licensee shall forthwith make application for a license in the
form of Exhibit A hereto, Licensor will not require such removal unless necessary for
Licensor’s service requirements and, except in the case of an emergency, will not
remove Licensee’s facilities without first giving 30 days notice to Licensee. For the
purpose of determining the charge, absent satisfactory evidence to the contrary, the
unlicensed use shall be treated as having existed for a period of two (2) years prior to its
discovery or for the period beginning with the date of this Agreement, whichever period
shall be the shorter; and the fee, at the appropriate rate as shown in APPENDIX 1, for
each year and for any portion of a year contained in such period, shall be due and
payable forthwith. Any such fee imposed by Licensor shall be in addition to its rights to
any other sums due and payable and to any claims or damages under this Agreement
or otherwise. No act or failure to act by Licensor with regard to said fee or said license
shall not operate retroactively or constitute a waiver by Licensor of any of its rights or
privileges under this Agreement or otherwise.
12
ARTICLE XI
LIABILITY AND DAMAGES
(A) Licensor shall exercise precaution to avoid damaging the
communication/education fiber of the Licensee and shall make an immediate report to
the Licensee of the occurrence of any such damage caused by its employees, agents or
contractors. Licensor agrees to reimburse the Licensee for all reasonable costs
incurred by the Licensee for the physical repair of such facilities damaged by the
negligence of Licensor; provided, however, Licensor shall not be liable to Licensee for
any interruption of Licensee’s service or for interference with the operation of Licensee’s
communication/education fiber, or for any special, indirect, or consequential damages.
(B) Licensee shall exercise precaution to avoid damaging the the facilities of
Licensor and of others attached to poles or anchors, and shall make an immediate
report to the owner of facilities so damaged; and Licensee assumes all responsibility for
any and all direct loss and from such damage caused by Licensee’s employees, agents
or contractors.
(C) Licensee shall indemnify, protect and save harmless the Licensor from
any and all damages and costs, including reasonable attorney fees, incurred by the
Licensor as a result of acts by the Licensee, its employees, agents or contractors,
including but not limited to the cost of relocating poles, anchors or guys resulting from a
loss of right-of-way or property owner consents and/or the cost of defending those rights
and/or consents.
(D) The Licensee shall indemnify, protect and save harmless the Licensor
from any and all claims, demands, causes of actions and costs, including attorney fees,
for damages to property and injury or death to persons, including but not limited to
13
payments under any Workmen’s Compensation Law or under any plan for employee’s
disability and death benefits, which may arise out of or be caused by the erection,
maintenance, presence, or use or removal of Licensee’s facilities or by their proximity to
the facilities of other parties attached to a pole or anchor, or by any act or omission of
the Licensee’s employees, agents or contractors on or in the vicinity of the Licensor’s
poles, anchors or guys.
(E) The Licensee shall indemnify, protect and save harmless the Licensor
from any and all claims, demands, causes of action and costs, including attorney fees,
which arise directly or indirectly from the construction and operation of Licensee’s
facilities, including but not limited to taxes, special charges by others and from and
against all claims, demands and costs, including attorney fees, for infringement of
patents with respect to the manufacture, use and operation of Licensee’s facilities in
combination with poles, anchors, guys or otherwise.
(F) Licensee shall promptly advise the Licensor of all claims relating to
damage of property of injury to or death of persons, arising or alleged to have arisen in
any manner, directly or indirectly, from the erection, maintenance, repair, replacement,
presence, use or removal of the Licensee’s facilities. Copies of all accident reports and
statements made by the Licensee or others shall be furnished promptly to the Licensor.
ARTICLE XII
INSURANCE
(A) Licensee shall obtain and maintain insurance, including endorsements
insuring the indemnification provisions of this Agreement, issued by an insurance carrier
satisfactory to Licensor to protect the Licensor and joint user from and against all
14
claims, demands, causes of actions, judgments, costs, including attorney fees,
expenses and liabilities of every kind and nature which may arise or result, directly or
indirectly from or by reason of such loss, injury or damage as covered in this Agreement
including ARTICLE XI preceding.
(B) The amount of such insurance:
Insurance Coverage Limits
1. Worker’s Compensation Statutory
Employer’s Liability:
a. Bodily Injury by Accident $ 500,000 each accident
b. Bodily Injury by Disease $1,000,000 policy limit
c. Bodily Injury by Disease $ 500,000 each employee
2. Comprehensive Automobile
a. Bodily Injury and Property $1,000,000
Damage Combined Single Limit
3. Comprehensive General Liability
a. Bodily Injury and Property $1,000,000 each person
Damage Combined $2,000,000 aggregate
(C) Licensee shall submit to Licensor certificates by each company insuring
Licensee upon each new issuance or renewal to the effect that is has insured Licensee
for all liabilities of Licensee covered by this Agreement and that it will not cancel or
change any such policy of insurance issued to Licensee except after 60 days written
notice to Licensor.
(D) All insurance required in accordance with (B) and (C) preceding must be
effective before Licensor will authorize attachment to a pole and/or anchor, utilization of
an anchor/guy strand or occupancy of a conduit system and shall remain in force until
such Licensee’s facilities have been removed from all such poles, anchors, or conduit
systems. In the event that the Licensee shall fail to maintain the required insurance
15
coverage, Licensor may pay any premium thereon falling due, and the Licensee shall
forthwith reimburse the Licensor for any such premium paid.
ARTICLE XIII
LICENSE NOT EXCLUSIVE
Nothing herein contained shall be construed as a grant of any exclusive license,
right or privilege to Licensee. Licensor shall have the right to grant, renew and extend
rights and privileges to others not parties to this Agreement, by contract or otherwise, to
use any poles covered by this Agreement.
ARTICLE XIV
ASSIGNMENT OF RIGHTS
(A) Licensee shall not assign or transfer the privileges contained in this
Agreement without the prior consent in writing of Licensor. Licensor shall not
unreasonably withhold such consent.
(B) Subject to the provisions of Paragraph (A) hereof, this Agreement shall
extend to and bind the successors and assigns of the parties hereto.
ARTICLE XV
TERMINATION OF AGREEMENT
(A) If licensee shall fail to comply with any of the terms or conditions of this
Agreement or default in any of its obligations under this Agreement and shall fail within
thirty (30) days after written notice from Licensor to correct such default or
noncompliance, Licensor may, at its option, forthwith terminate this Agreement and all
16
licenses granted hereunder, or the licenses covering the poles as to which such default
or noncompliance shall have occurred.
(B) Licensor shall have the right to terminate this entire Agreement or
individual licenses granted hereunder, without notice
(1) If the Licensee’s facilities are maintained or used in violation of any
law or in aid of any unlawful act or understanding; or
(2) If any permit or other authorization which may be required by any
governmental authority for the operation or maintenance of
Licensee’s fiber, cables, wire, equipment and facilities on Licensor’s
poles is revoked, denied, or not granted before the date when
possession of such permit or authorization becomes a condition of
continued operations; or
(3) If Licensee defaults under ARTICLE IV.
(C) Licensee may terminate this Agreement at any time by removing its
facilities from all of Licensor’s poles, as provided in ARTICLE IX (B).
ARTICLE XVI
TERM OF AGREEMENT
This Agreement shall, unless terminated in accordance with its provisions,
continue in effect for an initial term of five years. Licensor may terminate this
Agreement at the end of the initial term by notifying Licensee in writing at least one (1)
year prior to the end of that term. If not so terminated, this Agreement shall continue in
force upon the same terms and conditions for a further term of five (5) years, and for
successive one (1) year terms thereafter, until terminated by Licensor at the end of any
17
such term upon not less than one (1) year’s written notice to Licensee. Upon
termination of the Agreement in accordance with any of its terms, all outstanding
licenses shall terminate and Licensee shall immediately remove its fiber, cables,
equipment and facilities form all poles of Licensor. Upon Licensee’s failure to do so,
Licensor shall have the right to remove Licensee’s fiber, cable, equipment and facilities
at the cost and expense of Licensee and without any liability therefore.
ARTICLE XVII
NOTICES
Notices under this Agreement may be given by posting the same in first class
mail to the Licensee as follows:
Unite Private Networks, LLC
P.O. Box 25526
Kansas City, MO 64119
and to the Licensor as follows:
Mayor
City of Grand Island
P.O. Box 1968
Grand Island, NE 68802-1968
18
ARTICLE XVIII
RECORDS
The Licensee shall file a complete set of as-built records for its
communication/education system, including all extensions and modification in the Grand
Island Electric Utilities Department for the area where the Licensor provides electric
power.
ARTICLE X IX
SERVICE AREA
The Licensee shall provide service to all properties within the service area shown
on Exhibit No. C, attached hereto and made a part hereof by reference.
ARTICLE XX
WAIVER OF LIABILITY
Because the Licensor may annex all or part of the Licensee’s service area and
may install utility services some time in the future, the Licensee waives all liability,
claims or causes of action which it may have against the Licensor for damages caused
to its communication/education system in connection with the installation of utility
services within designated utility easements, streets, alleys or rights-of-way except
where such damages are the result of gross negligence or intentional acts on the part of
the Licensor, its employees, agents or officers.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in
duplicate as of the day and year first written above.
19
WITNESS (ATTEST) UNITE PRIVATE NETWORKS, LLC
BY
Title
WITNESS (ATTEST) CITY OF GRAND ISLAND, NEBRASKA,
A Municipal Corporation
BY
Title: Mayor
Exhibit A
APPLICATION AND POLE ATTACHMENT LICENSE
*Pole Attachment
Application No.
Date
(Licensee)
(Street Address)
(City and State)
CITY OF GRAND ISLAND UTILITIES DEPARTMENT:
In accordance with the terms and conditions of the License Agreement between
us, dated , application is hereby made for a nonexclusive
license to attach communications facilities to poles, anchors,
and/or utilize anchor/guy strands.
Pole Location:
Equipment to be attached:
Description of requested attachment:
Pole Location:
Equipment to be attached:
Description of requested attachment:
Pole Location:
Equipment to be attached:
Description of requested attachment:
USE REVERSE SIDE FOR ADDITIONAL LOCATIONS
(Licensee)
By:
Title:
Phone Number:
* Individual applications to be numbered in sequential ascending order by License.
21
Pole Attachment License Number is hereby granted to attach the
communications facilities described in this application to poles,
anchors, utilize anchor/guy strands.
CITY OF GRAND ISLAND UTILITIES DEPARTMENT
(Licensor)
By:
Title:
Phone Number:
22
Pole Location:
Equipment to be attached:
Description of requested attachment:
Pole Location:
Equipment to be attached:
Description of requested attachment:
Pole Location:
Equipment to be attached:
Description of requested attachment:
Pole Location:
Equipment to be attached:
Description of requested attachment:
Pole Location:
Equipment to be attached:
Description of requested attachment:
Pole Location:
Equipment to be attached:
Description of requested attachment:
Pole Location:
Equipment to be attached:
Description of requested attachment:
Pole Location:
Equipment to be attached:
Description of requested attachment:
Pole Location:
Equipment to be attached:
Description of requested attachment:
Exhibit B
NOTIFICATION OF POLE ATTACHMENT ABANDONMENT
* Abandonment Notice No.
Date
(Licensee)
(Street Address)
(City and State)
CITY OF GRAND ISLAND UTILITIES DEPARTMENT:
In accordance with the terms and conditions of the License Agreement between
us, dated , notification is hereby made of abandonment of pole
attachments of communications equipment as listed below:
Pole Location:
Pole Location:
Pole Location:
Pole Location:
(Use reverse side for additional locations)
(Licensee)
By:
Title:
Phone Number:
CITY OF GRAND ISLAND UTILITIES DEPARTMENT
(Licensor)
By:
Title:
Phone Number:
24
*Individual abandonment notifications to be numbered in sequential ascending order by
Licensee.
Pole Location:
Pole Location:
Pole Location:
Pole Location:
Pole Location:
Pole Location:
Pole Location:
Pole Location:
Pole Location:
Pole Location:
Pole Location:
Pole Location:
Pole Location:
Pole Location:
Pole Location:
Pole Location:
Pole Location:
25
APPENDIX 1
SCHEDULE OF FEES AND CHARGES
THIS APPENDIX 1 is, from the effective date hereof, an integral part of the
License Agreement between the City of Grand Island, herein called Licensor, and Unite
Private Networks, LLC, therein called Licensee, dated ,
(hereinafter called the Agreement), and contains the fees and charges governing the
use of Licensor’s poles to accommodate the fiber, cable, wire equipment and facilities of
Licensee in the territory in which both parties hereto now or hereafter operate. The
effective date of this APPENDIX 1 is .
POLE ATTACHMENTS
1. ATTACHMENT FEE: $4.00 per pole per annum.
a. Computation:
For the purpose of computing the total attachment fees due hereunder,
the total fee shall be based upon the number of poles to which
attachments are actually made, on the first day of June and the first day of
December of each year. The first advance payment of the annual charge
for Licenses granted under this Agreement shall be prorated from the date
that the attachment is made to the pole to the first regular payment date.
b. Payment Date:
Attachment fees shall be due and payable semiannually, in advance, on
the first day of January for the first half of the calendar year next
preceding, and on the first day of July for the last half of the calendar year.
26
Failure to pay such fees within 20 days after presentment of the bill
therefore or on the specified payment date, whichever is later, shall
constitute a default of this Agreement.
c. Termination of License:
Upon termination or surrender of a license granted hereunder, the
applicable attachment fee shall be prorated for the period during which the
attachment was made to Licensor’s pole during the final semiannual
period and shall be credited to Licensee; provided, however, that there
shall be no proration of an attachment fee if the license is terminated as a
result of any act or omission of Licensee in violation of this Agreement.
2. OTHER CHARGES
a. Computation:
(1) All charges incurred by Licensor as a result of inspections, engineering,
rearrangements, removals of Licensee’s facilities from Licensor’s poles and any other
work performed for Licensee shall be based upon the full cost and expense to Licensor
for performing such work plus the appropriate current overhead rate on the costs
incurred in performing such work for Licensee. The cost to Licensor shall be
determined in accordance with the regular and customary methods used by Licensor in
determining such costs.
(2) The charge for replacement of poles shall include the entire
non-betterment cost to Licensor, including the increased cost of larger poles, sacrificed
life value of the poles removed, cost of removal less any salvage recovery and the cost
of transferring Licensor’s facilities from the old to the new poles.
27
b. Payment Date:
All bills for suc h other charges shall be payable upon presentment to Licensee,
and shall be deemed delinquent if not paid within 30 days after presentment to
Licensee.
28
DATED:
WITNESS (ATTEST) UNITE PRIVATE NETWORKS, LLC
BY
Title:
WITNESS (ATTEST) CITY OF GRAND ISLAND, NE
A Municipal Corporation
BY
Title: Mayor
29
APPENDIX 2
ATTACHMENTS TO POLES
THIS APPENDIX 2 is, from the effective date hereof, an integral part of the
License Agreement (hereinafter called the Agreement) between the City of Grand
Island, therein called Licensor, and Unite Private Networks, LLC, therein called
Licensee, dated and contains certain minimum requirements
and specifications governing the attachment of fiber, cables, equipment and facilities of
Licensee (sometimes called Attachments in this Appendix) to poles of Licensor in the
territory in which both parties hereto now or hereafter operate. The effective date of this
Appendix 2 is .
GENERAL
1. The Licensee is responsible for the proper design, construction and
maintenance of its Attachments. Attachments generally will be limited to strand support
cable, wire, service drops, terminals and necessary appurtenances deemed by Licensor
to be suitable for pole mounting.
2. Any rearrangement of Licensor’s facilities or replacement of poles required
to accommodate Licensee’s Attachments shall be done by Licensor or a contractor
authorized by Licensor.
3. The fees and charges specified in APPENDIX 1 shall be applicable, (to all
licenses granted to Licensee hereunder) without regard to the methods of attachment
used.
30
4. Licensee’s Attachments shall be plainly identified by appropriate marking,
satisfactory to Licensor.
5. Licensee’s workmen shall assure themselves that any pole to be climbed
has sufficient strength or is adequately braced or guyed to support the weight of the
workmen.
6. All requirements of the National Electrical Safety Code referred to herein
shall mean the 2007 Edition of such code, or any later amendment or replacement
thereof, and shall include any additional requirements of any applicable Federal, State,
County or Municipal Code. References to simply the Safety Code, or to N.E.S.C., have
the same meaning.
7. While many of the standards and technical requirements for Licensee’s
cable, equipment and facilities are set forth herein, Licensor reserves the right to specify
the type of construction required in situations not otherwise covered in this Appendix. In
such cases, Licensor will in its discretion furnish to Licensee written material which will
specify and explain the required construction.
8. Licensee’s Attachments shall not use or carry voltages or currents in
excess of the limits prescribed for cable television conductors by the National Electrical
Safety Code Section 230 F1 & F2. However, all parts of the Licensee’s Attachments
carrying voltages in excess of 60 volts AC (rms) to ground or 135 volts DC to ground,
except for momentary signaling or control voltages, shall be enclosed in an effectively
grounded sheath or shield. All energized parts of Licensee’s Attachments shall be
suitably covered to prevent accidental contact to the general public, Licensor’s workmen
or workmen of another licensee having facilities on the same pole.
31
9. Licensor shall determine whether Licensee’s Attachments cause or may
cause electrical interference with Licensor’s or any other Licensee’s
communication/education facilities. Licensee shall, on demand of the Licensor, correct
immediately at Licensee’s expense any such interference including, if necessary,
removal of the Attachments causing the interference.
10. No Attachment shall use the earth as the sole conductor for any part of the
circuit.
11. Licensee shall not circumvent Licensor’s or any other licensee’s corrosion
mitigation measures (e.g., short circuit insulating joints).
GROUNDING AND BONDING
12. All power supplies shall be grounded. The neutral side of the
power drop shall be continuous and not fused. The neutral line shall also be bonded to
any power supply cabinet. Any cabinet shall be connected to an earth ground at the
pole. In areas where the Licensor has a ground wire (which is connected to the
Licensor’s neutral) running down the pole, the cabinet can be connected to it. Where a
Licensor vertical ground wire is not available, the Licensee must place a ground rod. All
cabinets, housings and metal socket bases on a common pole shall be bonded to each
other, to the Licensor’s strand and to the Licensee’s strand.
13. Where two or more aerial suspension strands are located on the
same pole, the suspension strands shall be bonded together. Licensee shall attach the
bonding wire to its strand and leave a sufficient length of wire to complete the bond.
Where the strands of two or more licensees are to be bonded together, the licensee
32
placing the last strand, if authorized to do so by the other licensees, shall make both
connections. Where such authorization is not granted by the licensee owning the
existing strand, Licensee shall attach the bonding wire to its strand and leave enough
wire to permit making a connection and shall be responsible for completing the bonding.
Licensee may bond its cable sheath to Licensor’s common neutral, vertical ground
wires, and ground rods at whatever frequency Licensee desires. All vertical ground
wires shall be covered by a molding. Ground rods installed by Licensee shall be in
accordance with National Electrical Safety Code.
14. Suspension strands at trolley feeders and trolley contact wires located on
the same street shall be bonded at the first, last and every intermediate fifth poles until
the remaining section between bonds is not more than eight or less than four spans. At
other locations, the strands shall be bonded at the first, last and every intermediate
tenth poles until the remaining section between bonds is not more than thirteen or less
than four spans. Strands shall be bonded at or near the first pole on each side of
underground dips or trolley wire crossovers.
15. Strands attached to the same bolt do not have to be bonded.
16. Where a Licensee’s strand leaves a pole which carries other strands
supporting cable television cables, and Licensee’s strand continues to a pole carrying
power facilities of Licensor, Licensee’s fiber cable shall be:
(A) Bonded to other cable television strands on the pole that it leaves;
(B) Bonded to an effective ground preferably within two spans but not
greater than ten (10) spans after leaving said pole, and;
33
(C) Bonded with a No. 6 solid, soft-drawn copper wire. The wire must
be attached to the strand with an approved clamp, such as a
lashing wire clamp, designed for attachment to each specific size of
strand involved (for example, Chance Lashing Wire Clamp, Catalog
Number 9000, or equivalent).
17. Strands supporting drop wire shall be bonded to the cable suspension
strand.
18. Any connecting or bonding to Licensor’s facilities shall be done by
Licensor and the connecting or bonding wire shall be sufficient length to allow Licensor
to complete the connection or bond.
CLEARANCES
19. Licensee’s Attachments are subject to cable television facilities clearances
and shall meet all of the pertinent clearance requirements of the National Electric Safety
Code. Safety Code rules covering the most commonly encountered conditions are
listed below:
NESC 2007 Edition
General Rule
(A) Vertical clearance on poles 235
jointly occupied by communication fiber,
cable television facilities, and power facilities
(B) Mid-span clearance between communication 235
fiber, cable television facilities, and
power facilities
34
(C) Crossing clearances of facilities 233
carried on different supports
(D) Clearances from street light 238
brackets and associated wiring
(E) Clearances of conductors from 233
another line
(F) Clearances of vertical and lateral 239
conductors from other wires and
surfaces on the same support
(G) Clearances in any direction from 235
line conductors and supports, and
to vertical or lateral conductors,
span or guy wires, attached to the
same support
(H) Vertical clearance of wires above 232
ground or rails
(I) Structures for overhead lines 280
1. Supporting structure items
one (1) thru five (5)
2. Unusual conductor supports
35
LOCATION AND SPACING
20. Licensor shall specify the location of Licensee’s Attachments on each
pole, including the location of Licensee’s riser cables. Where Licensor has installed its
own communication circuits (supervisory control circuits) for operation of its electric
system, clearance of Licensee’s facilities from these communication circuits shall be the
same as from Licensor’s common neutral conductor.
21. The minimum vertical separation between Licensee’s strand, and the
strand of another licensee when located on same side of pole shall be twelve (12)
inches. Licensee’s strand shall be located at a point on the pole that provides the
minimum clearance allowed by the National Electric Safety Code from the ground.
Licensee may, however, agree with another licensee to reduce the separation between
their respective strands. Separation between the bolt holes must be in any event at
least four (4) inches.
22. Licensee shall be required to place all of its Attachments, so not to
interfere with climbing space, as defined in the National Electrical Safety Code.
23. Through bolts may not be placed less than ten inches from the top of the
pole. When through bolts present a hazard to climbing; i.e., extend more than two
inches beyond the nut, they shall be trimmed to a safe length.
24. Pole steps will not be allowed on any Licensor pole, except to specific
cases judged to be in the interest of safety by the Licensor.
36
LOADING
25. The Licensee shall furnish to Licensor as a part of Exhibit A to this
Agreement the details as to the ultimate strength, tension at 60F, and maximum tension
in its suspension strand or conductor under the applicable storm loading specifications
in Code.
26. Licensee shall furnish to Licensor as a part of Exhibit A to this Agreement
details as to the weight and size of its fiber/cables, suspension strands and/or
conductors, with and without the ice loading, as specified by the National Electrical
Safety Code (Rule 251) or appropriate local code for the loading area concerned.
NESC Rule 250 covers the degree of loading (light, medium, heavy) appropriate in
different sections of the country. Where a local code designates a heavier degree of
loading than the NESC, the local requirements shall govern.
27. Licensee may lash its fiber/cable to the strand of another licensee, where
this is acceptable to all other licensees involved and to Licensor. Maximum tension of
Licensee’s strand shall not exceed 60% of the breaking strength under applicable storm
loading, as defined by the National Electrical Safety Code (Rule 251). Where local
codes designate a heavier degree of loading than the NESC, the local requirements
shall govern.
GUYING
28. Guying will be required on poles where the total unbalanced load,
including the tension due to Licensee’s Attachments under the appropriate storm
loading prescribed by the National Electrical Safety Code (Rule 251), exceed 200
37
pounds unless the pole was designed as an unguyed corner pole and the pole has
adequate strength and stability, in the opinion of Licensor, to withstand the additional
load.
29. Guys, when required, shall be of such material and dimensions as to
provide adequate strength to withstand the transverse loads specified in the National
Electrical Safety Code (Rule 252B), and the longitudinal load assumed in the Code
(Rule 252C). Guys on poles which also support power facilities shall be in compliance
with the National Electrical Safety Code (Rule 261C and 282).
30. Guy guards shall be installed in compliance with NESC (Rule 282E).
31. Licensee may attach its guy to Licensor’s anchor rods only where Licensor
specifically authorizes it in writing. Should it be necessary to replace the anchor at a
later date to provide added strength for Licensor’s requirements, the anchor shall be
replaced at Licensee’s expense if the existing anchor rod would support Licensor’s
Attachments without regard to Licensee’s guy.
32. More than one licensee may use a common guy to sustain their combined
load.
33. Guys shall be insulated as specified in the Safety Code (Rules 215 and
283) and at any location where Licensee’s guy parallels Licensor’s guy with insulator.
Licensee’s guys shall not short circuit Licensor’s guy insulators.
34. Cross guying of Licensee’s guys with Licensor’s guys is not allowed.
35. Material used for guys shall be compatible from a corrosion standpoint
with the hardware to which it is attached.
38
DATED:
WITNESS (ATTEST) UNITE PRIVATE NETWORKS, LLC
BY
Title:
WITNESS (ATTEST) CITY OF GRAND ISLAND, NEBRASKA
A Municipal Corporation
BY
Title: Mayor
Approved as to Form ¤ ___________
May 8, 2009 ¤ City Attorney
R E S O L U T I O N 2009-110
WHEREAS, Unite Private Networks (UPN) is a telecommunications company that wishes
to attach fiber optic cables to City owned utility poles; and
WHEREAS, a License Agreement is needed to allow the cable to be placed on City utility
poles; and
WHEREAS, the National Electric Safety Code prescribes methods and clearances required
for installation of multiple wire strand utility company facilities and equipment on power poles; and
WHEREAS, the proposed License Agreement requires UPN to pay for any “make ready”
work that is required to provide the needed space on the pole to allow them to attach in accordance with
the Code; and
WHEREAS, Unite Private Network will pay the same $4.00 per pole annual fee that is
received from other companies that utilize this service.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF
THE CITY OF GRAND ISLAND, NEBRASKA, that the Mayor is hereby authorized to, on behalf of the
City, execute the License Agreement between the City of Grand Island and Unite Private Networks.
- - -
Adopted by the City Council of the City of Grand Island, Nebraska, May 12, 2009.
_______________________________________
Margaret Hornady, Mayor
Attest:
_______________________________________
RaNae Edwards, City Clerk
Item G11
#2009-111 - Approving Renewal of Leases at Cornhusker Army
Ammunition Plant for Storage Buildings
Tuesday, May 12, 2009
Council Session
City of Grand Island
Staff Contact: Steve Paustian
City of Grand Island City Council
Council Agenda Memo
From: Steve Paustian, Parks and Recreation Director
Meeting: May 12, 2009
Subject: Approving Renewal of Leases at Cornhusker Army
Ammunition Plant for Storage Buildings
Item #’s: G-11
Presenter(s): Steve Paustian, Parks and Recreation Director
Background
On May 22, 2001, City Council approved the leasing of several buildings at the former
Cornhusker Army Ammunition Plant pursuant to the provisions of Resolution 2001-132.
The leases that were approved provide for an automatic one year renewal requested by
the lessees. The resolution that is presented for Council consideration would authorize the
city to renew the lease on Building's No. A-11 and A-12 located on city property at the
former Cornhusker Army Ammunition Plant.
Discussion
The city purchased property at the former Cornhusker Army Ammunition Plant that had
several buildings located on it. The city has been leasing these buildings to the State of
Nebraska, Department of Administrative Services, State Building Division; Dominion
Construction Company; and Jerry Harders to obtain revenue and utilize these assets.
There have not been any problems with damage to the property or with non payment of
rent and City Parks & Recreation officials are recommending that the Council extend the
lease for an additional year. The State of Nebraska has a two year lease which runs
through April 30, 2011. The two leases requiring action are for Dominion Construction
and Jerry Harders.
Alternatives
It appears that the Council has the following alternatives concerning the issue at hand.
The Council may:
1. Move to approve
2. Refer the issue to a Committee
3. Postpone the issue to future date
4. Take no action on the issue
Recommendation
City Administration recommends that the Council approve the resolution authorizing the
extension of the leases for an additional year.
Sample Motion
Move to approve the resolution authorizing the city to extend the leases for an additional
year to Dominion Construction Company in the amount of $2,750.00 and Jerry Harders
in the amount of $825.00.
BUILDING LEASE
THIS LEASE is made and entered into on this ____ day of May, 2009, by and between
the CITY OF GRAND ISLAND, NEBRASKA, A Municipal Corporation, herein referred to as
“City” and DOMINION CONSTRUCTION COMPANY, A Corporation, herein referred to as
“Lessee”.
1. STATEMENT PURPOSE. This Building Lease is made for the purpose of
leasing to the Lessee the property identified as Building No. A-11, on the former Cornhusker
Army Ammunition Plant (CHAAP), containing 8,000 square feet, more or less, together with 3
concrete parking pads to the front, side and rear of the building, herein after referred to as
“premises”, for inert storage purposes only.
2. TERM OF LEASE. The term of this Building Lease is for a period of one year
beginning on May 1, 2009, and ending on April 30, 2020, subject to the revocation and renewal
provisions set forth hereafter.
3. CONSIDERATION. The Lessor shall pay the City rental in advance of the initial
term, and any renewal terms, in the amount of Two Thousand Seven Hundred Fifty and No/100
Dollars ($2,750.00), payable to the order of The City of Grand Island, Finance Department, P.O.
Box 1968, Grand Island, Nebraska, 68802. In the event the Lessee fails or refuses for any reason
to pay the foregoing rentals in advance, this Building Lease shall be considered void.
4. CONDITION OF PREMISES. Lessee acknowledges that it has inspected the
premises described in paragraph 1 above, knows its condition, and understands the same is
leased without any representations or warranties whatsoever and without obligation on the part
of the City to make any alterations, repairs or additions thereto. The Lessee shall surrender the
premises to the City at the end of the term, or any renewal term, in the same condition as the
premises were at the commencement of the initial lease term, normal wear and deterioration
excepted. Any portion of the premises damaged by the Lessee must be either replaced or restored
to the condition existing at the commencement of the initial lease term or the Lessee shall pay to
the City an amount equal to the cost of repair or replacement of the damaged property,
whichever is less.
5. UTILITIES AND INSURANCE. During the initial term, or any renewal term, of this
Building Lease, the Lessee shall pay all utility costs for services on the premises and shall
maintain liability insurance in the amount of not less than a combined single limit of
$100,000.00 coverage for the leased premises. The Lessee shall provide the City with a copy of a
Certificate of Insurance evidencing the required coverage, which certificate shall state that the
City will be given 30 days written notice of any cancellation or change in such insurance.
6. RIGHT TO ENTER PREMISES. The City reserves the right to enter the premises at
any time for any purpose necessary or convenient in connection with government and Lessor
purposes, including but not limited to making inspections, removing debris, making repairs or
2
performing maintenance. The Lessee shall have no claim for damages on account of such entry
against the City or its officials, officers, employees, agents or representatives.
7. INDEMNIFICATION OF CITY. The City shall not be responsible for damages to
property or injuries to persons which may arise from or be incident to the exercise of the
privileges herein granted or for damages to the property of the Lessee, its officers, employees,
agents, or others who may be on the premises at their invitation. The Lessee shall hold the City
harmless from any and all claims, causes of action, or damages of any nature due to the
negligence of the Lessee, its officers, employees, agents, contractors, invitees or licensees.
8. PROHIBITED USES. The Lessee shall not construct or place any structure,
improvement, advertising sign, or make any modification to the premises or allow or permit such
construction, placement, or modification without prior written approval of the City. The Lessee
shall not conduct or allow to be conducted any illegal or prohibited activity on the premises and
specifically shall not conduct or allow to be conducted any activities which violate any of the
environmental laws, regulations, rules, or other regulatory measures of the United States
Environmental Protection Agency (USEPA) or Nebraska Department of Environmental Quality
(NDEQ). The Lessee shall be responsible for and hold the City harmless from all claims, costs,
penalties, or any other consequences associated with violations of environmental laws.
Routine servicing of vehicles and equipment on the premises is prohibited, including
fueling, adding or changing lubricants. Only emergency servicing which is necessary to start a
vehicle or equipment shall be permitted. Necessary measures shall be taken to clean up any
petroleum products or fluids which leak from vehicles or equipment.
9. TAXES. Any and all taxes imposed by the State of Nebraska or its political
subdivisions upon the premises shall, except real estate taxes, shall be paid promptly by the
Lessee. In the event the premises owned by the City are made taxable by state or local
governments, the lease shall be renegotiated to adjust the consideration in an amount sufficient to
reimburse the City for said tax liability.
10. LESSEE’S MAINTENANCE RESPONSIBILITIES. The Lessee shall maintain
Building No. A-11 to prevent deterioration of the structure. All openings shall be closed in order
to keep out birds and other animals. The Lessee shall maintain and prevent the loss of gravel
from the parking areas off the concrete parking pads and maintain proper drainage to prevent
erosion. Lessee shall maintain all grassed areas located on the premises and shall control noxious
weeds by mowing, spraying, hand grubbing or by a combination of these methods.
11. RENEWAL FOR ADDITIONAL TERMS. This Building Lease may be renewed
by the Lessee for up to 5 additional one year terms subject to approval of the City. The renewal
terms shall run from May 1 through April 30 of each successive year. Lessee shall request each
additional renewal term by sending written notice to the City of its interest in extending this
Building Lease for an additional one year term not more than 60 days and not less than 30 days
prior to the end of the current term, which date shall be determined by the postmark appearing on
the envelope bearing the renewal request or the date of hand delivery of the renewal request to
3
the City Clerk. The only term of this Building Lease which may be modified in connection with
extending the lease for a renewal term is the annual rental.
12. SURRENDER OF PREMISES. The Lessee shall vacate and remove all its
personal property, fixtures and improvements prior to the end of the initial term or any renewal
term. The Lessee shall pay the City on demand any sum which may be expended by the City
after expiration, revocation or termination of this Building Lease in restoring the premises to a
condition in accordance with paragraph 4 above.
13. CHOICE OF LAWS. This Building Lease shall be construed in accordance with
the laws of the United States of America, the State of Nebraska and the ordinances of the City of
Grand Island.
14. ENTIRE AGREEMENT. This Building Lease constitutes the entire agreement
between the City and the Lessee, notwithstanding any other verbal or written agreements or
understandings to the contrary. This Building Lease may be amended only in writing, duly
approved and executed by the City and Lessee.
15. REVOCATION RIGHTS OF PARTIES. This Building Lease may be revoked by
either the City or Lessee for any material violation of the lease, which termination shall be
effective 30 calendar days from the date a Notice of Termination is mailed or delivered in hand
to the other party at the address noted in paragraph 16.
16. NOTICES. All notices envisioned under the terms and conditions of this
Building Lease shall be sent to other party by first class United States Mail, postage prepaid and
addressed as follows or delivered in hand to:
City of Grand Island Dominion Construction Company
Attn: Mayor Attn: R. Michael Olmstead, President
P.O. Box 1968 P.O. Box 48
Grand Island, NE 68802-1968 Scottsbluff, NE 69363
17. BINDING EFFECT. All covenants, terms and conditions herein contained shall
extend to and be obligatory on the successors, assigns and legal representatives of the City and
Lessee.
18. SUCCESSORS AND ASSIGNS. This Building Lease shall not be assigned,
transferred or otherwise conveyed or alienated by the City or the Lessee and any such act,
whether accomplished or attempted shall be deemed a material violation of and cause immediate
termination of this lease.
DATED: ________________________, 2009.
4
ATTEST: CITY OF GRAND ISLAND, NEBRASKA,
A Municipal Corporation,
_____________________________ By:_________________________________________
RaNae Edwards, City Clerk Margaret Hornady, Mayor
DOMINION CONSTRUCTION COMPANY,
A Corporation,
________________________________________
R. Michael Olmstead, President
STATE OF NEBRASKA )
) SS:
COUNTY OF HALL )
Before me, a notary public, qualified in said County personally came Margaret Hornady, Mayor of the City
of Grand Island, Nebraska, a municipal corporation, known to me to be such officer and the identical person who
signed the foregoing Building Lease and acknowledged that the foregoing signature was her voluntary act and deed
pursuant to Resolution 2009-____, and that the City's corporate seal was thereto affixed by proper authority.
Witness my hand and notarial seal this ____ day of _________________, 2009.
_________________________________________________
Notary Public
STATE OF NEBRASKA )
) SS:
COUNTY OF HALL )
Before me, a notary public in and for said County and State, personally appeared R. Michael Olmstead,
President of Dominion Construction Company, to me known to be the identical person who executed the foregoing
instrument and acknowledged the execution thereof to be his voluntary act and deed.
Witness my hand and notarial seal this ____ day of _________________, 2009.
_________________________________________________
Notary Public
BUILDING LEASE
THIS LEASE is made and entered into on this ____ day of ________________, 2009, by
and between the CITY OF GRAND ISLAND, NEBRASKA, A Municipal Corporation, herein
referred to as “City” and JERRY HARDERS, herein referred to as “Lessee”.
1. STATEMENT PURPOSE. This Building Lease is made for the purpose of
leasing to the Lessee the property identified as Fire/Guard Building No. A-12, on the former
Cornhusker Army Ammunition Plant (CHAAP), together with 3 concrete parking pads to the
front, side and rear of the building, herein after referred to as “premises”, for inert storage
purposes only.
2. TERM OF LEASE. The term of this Building Lease is for a period of one year
beginning on May 1, 2009, and ending on April 30, 2010, subject to the revocation and renewal
provisions set forth hereafter.
3. CONSIDERATION. The Lessor shall pay the City rental in advance of the initial
term, and any renewal terms, in the amount of Eight Hundred Twenty-Five Dollars ($825.00),
payable to the order of The City of Grand Island, Finance Department, P.O. Box 1968, Grand
Island, Nebraska, 68802. In the event the Lessee fails or refuses for any reason to pay the
foregoing rentals in advance, this Building Lease shall be considered void.
4. CONDITION OF PREMISES. Lessee acknowledges that it has inspected the
premises described in paragraph 1 above, knows its condition, and understands the same is
leased without any representations or warranties whatsoever and without obligation on the part
of the City to make any alterations, repairs or additions thereto. The Lessee shall surrender the
premises to the City at the end of the term, or any renewal term, in the same condition as the
premises were at the commencement of the initial lease term, normal wear and deterioration
excepted. Any portion of the premises damaged by the Lessee must be either replaced or restored
to the condition existing at the commencement of the initial lease term or the Lessee shall pay to
the City an amount equal to the cost of repair or replacement of the damaged property,
whichever is less.
5. UTILITIES AND INSURANCE. During the initial term, or any renewal term, of
this Building Lease, the Lessee shall pay all utility costs for services on the premises and shall
maintain liability insurance in the amount of not less than a combined single limit of
$100,000.00 coverage for the leased premises. The Lessee shall provide the City with a copy of a
Certificate of Insurance evidencing the required coverage, which certificate shall state that the
City will be given 30 days written notice of any cancellation or change in such insurance.
6. RIGHT TO ENTER PREMISES. The City reserves the right to enter the
premises at any time for any purpose necessary or convenient in connection with government
and Lessor purposes, including but not limited to making inspections, removing debris, making
2
repairs or performing maintenance. The Lessee shall have no claim for damages on account of
such entry against the City or its officials, officers, employees, agents or representatives.
7. INDEMNIFICATION OF CITY. The City shall not be responsible for damages
to property or injuries to persons which may arise from or be incident to the exercise of the
privileges herein granted or for damages to the property of the Lessee, its officers, employees,
agents, or others who may be on the premises at their invitation. The Lessee shall hold the City
harmless from any and all claims, causes of action, or damages of any nature due to the
negligence of the Lessee, its officers, employees, agents, contractors, invitees or licensees.
8. PROHIBITED USES. The Lessee shall not construct or place any structure,
improvement, advertising sign, or make any modification to the premises or allow or permit such
construction, placement, or modification without prior written approval of the City. The Lessee
shall not conduct or allow to be conducted any illegal or prohibited activity on the premises and
specifically shall not conduct or allow to be conducted any activities which violate any of the
environmental laws, regulations, rules, or other regulatory measures of the United States
Environmental Protection Agency (USEPA) or Nebraska Department of Environmental Quality
(NDEQ). The Lessee shall be responsible for and hold the City harmless from all claims, costs,
penalties, or any other consequences associated with violations of environmental laws.
Routine servicing of vehicles and equipment on the premises is prohibited, including
fueling, adding or changing lubricants. Only emergency servicing which is necessary to start a
vehicle or equipment shall be permitted. Necessary measures shall be taken to clean up any
petroleum products or fluids which leak from vehicles or equipment.
9. TAXES. Any and all taxes imposed by the State of Nebraska or its political
subdivisions upon the premises shall, except real estate taxes, shall be paid promptly by the
Lessee. In the event the premises owned by the City are made taxable by state or local
governments, the lease shall be renegotiated to adjust the consideration in an amount sufficient to
reimburse the City for said tax liability.
10. LESSEE’S MAINTENANCE RESPONSIBILITIES. The Lessee shall maintain
Building No. A-12 to prevent deterioration of the structure. All openings shall be closed in order
to keep out birds and other animals. The Lessee shall maintain and prevent the loss of gravel
from the parking areas off the concrete parking pads and maintain proper drainage to prevent
erosion. Lessee shall maintain all grassed areas located on the premises and shall control noxious
weeds by mowing, spraying, hand grubbing or by a combination of these methods.
11. RENEWAL FOR ADDITIONAL TERMS. This Building Lease may be renewed
by the Lessee for up to 5 additional one year terms subject to approval of the City. The renewal
terms shall run from May 1 through April 30 of each successive year. Lessee shall request each
additional renewal term by sending written notice to the City of its interest in extending this
Building Lease for an additional one year term not more than 60 days and not less than 30 days
prior to the end of the current term, which date shall be determined by the postmark appearing on
the envelope bearing the renewal request or the date of hand delivery of the renewal request to
3
the City Clerk. The only term of this Building Lease which may be modified in connection with
extending the lease for a renewal term is the annual rental.
12. SURRENDER OF PREMISES. The Lessee shall vacate and remove all its
personal property, fixtures and improvements prior to the end of the initial term or any renewal
term. The Lessee shall pay the City on demand any sum which may be expended by the City
after expiration, revocation or termination of this Building Lease in restoring the premises to a
condition in accordance with paragraph 4 above.
13. CHOICE OF LAWS. This Building Lease shall be construed in accordance with
the laws of the United States of America, the State of Nebraska and the ordinances of the City of
Grand Island.
14. ENTIRE AGREEMENT. This Building Lease constitutes the entire agreement
between the City and the Lessee, notwithstanding any other verbal or written agreements or
understandings to the contrary. This Building Lease may be amended only in writing, duly
approved and executed by the City and Lessee.
15. REVOCATION RIGHTS OF PARTIES. This Building Lease may be revoked by
either the City or Lessee for any material violation of the lease, which termination shall be
effective 30 calendar days from the date a Notice of Termination is mailed or delivered in hand
to the other party at the address noted in paragraph 16.
16. NOTICES. All notices envisioned under the terms and conditions of this
Building Lease shall be sent to other party by first class United States Mail, postage prepaid and
addressed as follows or delivered in hand to:
City of Grand Island Jerry Harders
Attn: Mayor 10582 West 13th Street
P.O. Box 1968 Wood River, NE 68883
Grand Island, NE 68802-1968
17. BINDING EFFECT. All covenants, terms and conditions herein contained shall
extend to and be obligatory on the successors, assigns and legal representatives of the City and
Lessee.
18. SUCCESSORS AND ASSIGNS. This Building Lease shall not be assigned,
transferred or otherwise conveyed or alienated by the City or the Lessee and any such act,
whether accomplished or attempted shall be deemed a material violation of and cause immediate
termination of this lease.
DATED: ________________________, 2009.
4
ATTEST: CITY OF GRAND ISLAND, NEBRASKA,
A Municipal Corporation,
_____________________________ By:_________________________________________
RaNae Edwards, City Clerk Margaret Hornady, Mayor
________________________________________
JERRY L. HARDERS
STATE OF NEBRASKA )
) SS:
COUNTY OF HALL )
Before me, a notary public, qualified in said County personally came Margaret Hornady, Mayor of the City
of Grand Island, Nebraska, a municipal corporation, known to me to be such officer and the identical person who
signed the foregoing Building Lease and acknowledged that the foregoing signature was her voluntary act and deed
pursuant to Resolution 2009-______, and that the City's corporate seal was thereto affixed by proper authority.
Witness my hand and notarial seal this ____ day of _________________, 2009.
_________________________________________________
Notary Public
STATE OF NEBRASKA )
) SS:
COUNTY OF HALL )
Before me, a notary public in and for said County and State, personally appeared Jerry Harders, to me
known to be the identical person who executed the foregoing instrument and acknowledged the execution thereof to
be his voluntary act and deed.
Witness my hand and notarial seal this ____ day of _________________, 2009.
_________________________________________________
Notary Public
Approved as to Form ¤ ___________
May 7, 2009 ¤ City Attorney
R E S O L U T I O N 2009-111
WHEREAS, the City of Grand Island is the owner of an approximately 420 acre tract of
land at the former Cornhusker Army Ammunition Plant, which has several buildings which were leased by
the US Army Corp of Engineers during their ownership of the property; and
WHEREAS, on May 22, 2001, by Resolution 2001-132, the City approved Building
Leases with the tenants of the buildings pending development of the property; and,
WHEREAS, the leases terminated on April 30, 2009; and
WHEREAS, two of the Lessee's of the storage buildings have requested that their lease be
renewed.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF
THE CITY OF GRAND ISLAND, NEBRASKA, that the Building Leases at the former Cornhusker
Army Ammunition Plant are hereby authorized to be renewed for an additional year to the following Lessees
in accordance with the Building Leases:
Lessee Description Rental
Dominion Construction Company Storage building $2,750/yr.
Jerry Harders Fire/guard building $825/yr.
- - -
Adopted by the City Council of the City of Grand Island, Nebraska, May 12, 2009.
_______________________________________
Margaret Hornady, Mayor
Attest:
_______________________________________
RaNae Edwards, City Clerk
Item G12
#2009-112 - Approving 2 Hour Parking Zone on the East Side of
Elm Street From 4th Street South to the Alley
Tuesday, May 12, 2009
Council Session
City of Grand Island
Staff Contact: Steven P. Riehle, Public Works Director
City of Grand Island City Council
Council Agenda Memo
From: Steven P. Riehle, Public Works Director
Meeting: May 12, 2009
Subject: Approving 2 Hour Parking Zone on the East Side of Elm
Street From 4th Street South to the Alley
Item #’s: G-12
Presenter(s): Steven P. Riehle, Public Works Director
Background
Council action is required to change a No Parking Zone to a 2 Hour Parking Zone.
Discussion
A "No Parking" designation was approved for the east side of Elm Street from 4th Street
south to the alley as a result of discussions with property owners and council action
through resolution number 96-122 on April 22, 1996.
The property owner of the building in the southeast corner of 4th Street & Elm Street (521
& 523 West 4th Street) has established a restaurant at this location and is requesting
parking be allowed on the east side of Elm Street adjacent to their property.
To keep the issue as simple as possible, the resolution from 1996 is being updated to
show all parking restrictions along Elm Street from North Front Street to 4th Street.
Alternatives
It appears that the Council has the following alternatives concerning the issue at hand.
The Council may:
1. Move to approve
2. Refer the issue to a Committee
3. Postpone the issue to future date
4. Take no action on the issue
Recommendation
City Administration recommends that the Council approve the change of the No Parking
Zone along the east side of Elm Street from 4th Street south to the alley to a 2 Hour
Parking Zone.
Sample Motion
Move to approve the change of the No Parking Zone along the east side of Elm Street
from 4th Street south to the alley to a 2 Hour Parking Zone.
Approved as to Form ¤ ___________
May 8, 2009 ¤ City Attorney
R E S O L U T I O N 2009-112
WHEREAS, the City Council, by authority of Section 22-77 of the Grand Island City
Code, may prohibit or fix a time limit for parking vehicles in or on public streets, public property or a
portion thereof;
WHEREAS, Resolution 96-122 contained parking restrictions along Elm Street between
North Front Street and 4th Street that included no parking on the east side of Elm Street from 4th Street
south to the alley; and
WHEREAS, the property owner at 521 and 523 W 4th Street has established a restaurant
at this location and is requesting parking be allowed on the east side of Elm Street adjacent to their
property.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF
THE CITY OF GRAND ISLAND, NEBRASKA, that:
1. The portion of resolution 96-122 that was approved on April 22, 1996 which prohibited
parking along the east side of Elm Street form the alley north of North Front Street to
Fourth Street which is inconsistent with this resolution be, and hereby is, repealed and
rescinded.
2. 24-hour diagonal parking along the west side of Elm Street from North Front Street to
Fourth Street remains in effect.
3. 2-hour diagonal parking along the east side of Elm Street from North Front Street to the
alley north of North Front Street remains in effect.
4. 2-hour parallel parking along the east side of Elm Street from 4th Street south to the alley is
hereby established and approved.
5. The Streets Division is directed to post signs and paint curbs to designate the above
parking restrictions.
- - -
Adopted by the City Council of the City of Grand Island, Nebraska, May 12, 2009.
_______________________________________
Margaret Hornady, Mayor
Attest:
- 2 -
_______________________________________
RaNae Edwards, City Clerk
Item G13
#2009-113 - Approving Agreement for Professional Engineering
Services for a Project to Replace the Primary Clarifier
Mechanisms at the Waste Water Treatment Plant
Tuesday, May 12, 2009
Council Session
City of Grand Island
Staff Contact: Steven P. Riehle, Public Works Directory
City of Grand Island City Council
Council Agenda Memo
From: Steven P. Riehle, Public Works Director
Meeting: May 12, 2009
Subject: Approving Agreement for Professional Engineering
Services for a Project to Replace the Primary Clarifier
Mechanisms at the Waste Water Treatment Plant
Item #’s: G-13
Presenter(s): Steven P. Riehle, Public Works Director
Background
The Waste Water Division of the Public Works Department advertised on March 4, 2009
with a Request For Proposals (RFP 101-2009) for furnishing engineering consulting
services for design and services during construction of a project to replace the primary
clarifier mechanisms at the Waste Water Treatment Plant. The mechanisms date back to
the construction of the plant in 1964 and are in need of replacement.
Discussion
The RFP was sent to 16 potential firms and advertised in the Grand Island Independent.
Three (3) proposals were received and opened on March 26, 2009. Proposals were
received from Black & Veatch Corporation of Kansas City, Missouri, CH2MHill of
Denver, Colorado & HDR, Inc. of Omaha, Nebraska.
The proposals were reviewed by the Waste Water Division of the Public Works
Department and Purchasing Division of the Legal Department. The selection committee
conducted phone interviews with the firms that submitted proposals on April 8, 2009 and
on April 9, 2009. The engineering firm Black & Veatch Corporation of Kansas City,
Missouri submitted the proposal and conducted the phone interview that received the
highest rating from the selection committee. The rating criteria listed in the RFP and used
for the rating were as follows:
· Experience and qualifications of the team 25%
1. Knowledge of wastewater treatment facilities
2. Knowledge of condition assessment methodologies
3. Firm’s experience, efficiency, judgment & integrity
4. Knowledge of Primary Settling Basins
· Work plan and understanding of the project 15%
· Level of effort relative to services provided 15%
· Past performance/references 15%
· Ability to complete the work on time and budget 15%
· Consulting Fee 15%
An agreement was negotiated with Black & Veatch Corporation with work to be
performed at actual costs with a maximum amount of $125,000.00. The work to be
performed includes the following primary activities:
Task 1 – Design Phase
(Maximum Compensation: $77,000.00)
Objective – Evaluate performance enhancement options and develop a Design Report
summarizing design criteria including code requirements, process schematics, equipment
sizing, materials of construction & site layout. Prepare final drawings and specifications
to receive lump sum bids from general contractors.
· Kick Off Meeting
· Project Instructions
· Prepare Preliminary Opinion of Probable Construction Cost
· Prepare Design Report
· Submit Design Report to NDEQ
· Civil Design
· Site Survey
· Architectural Design
· Structural Design
· Process Mechanical Design
· Instrumentation and Controls Design
· Electrical Design
· 90% Contract Plans and Specifications
· Quality Assurance/Quality Control Review
· 90% Design Development Review Workshop
· Submit Contract Documents to NDEQ
· Contract Plans and Specifications
· Prepare Final Opinion of Probable Construction Cost
Task 2 – Bidding and Construction Phase Services
(Maximum Compensation: $48,000.00)
Objective – Provide bidding phase support services to the City during advertisement of
the project, and provide construction phase services through the duration of construction
of the improvements.
· Distribute Documents
· Pre-Bid Conference
· Answer Bidders Questions
· Prepare and Issue Addenda
· Evaluate Bids and Recommend Award
· Shop Drawings Review
· General Construction Phase Services
· Project Completion
· Record Drawings
· Standard Operating Procedure Manual
Alternatives
It appears that the Council has the following alternatives concerning the issue at hand.
The Council may:
1. Move to approve
2. Refer the issue to a Committee
3. Postpone the issue to future date
4. Take no action on the issue
Recommendation
City Administration recommends that the Council approve the award of the agreement to
Black & Veatch Corporation of Kansas City, Missouri.
Sample Motion
Move to approve the award of the agreement to Black & Veatch Corporation of Kansas
City, Missouri.
Purchasing Division of Legal Department
INTEROFFICE MEMORANDUM
Wes Nespor, Purchasing Agent
Working Together for a
Better Tomorrow, Today
REQUEST FOR PROPOSAL
FOR
101-2009 PRIMARY CLARIFIER MECHANISMS
RFP DUE DATE: March 26, 2009 at 4:00 p.m.
DEPARTMENT: Public Works
PUBLICATION DATE: March 4, 2009
NO. POTENTIAL BIDDERS: 12
SUMMARY OF PROPOSALS RECEIVED
CH2M Hill, Inc. Black & Veatch/Olsson Associates
Omaha, NE Kansas City, MO
HDR Engineering, Inc.
Lincoln, NE
cc: Steve Riehle, Public Works Director Catrina DeLosh, PW Admin. Assist.
Jeff Pederson, City Administrator David Springer, Finance Director
Dale Shotkoski, City Attorney Wes Nespor, Purchasing Agent
John Henderson, WWTP Supt.
P1330
Approved as to Form ¤ ___________
May 7, 2009 ¤ City Attorney
R E S O L U T I O N 2009-113
WHEREAS, the city desires to hire a professional consulting engineer to provide services
for design and services during construction related to replacing the primary clarifier mechanisms at the
Waste Water Treatment Plant (WWTP); and
WHEREAS, on March 4, 2009 the City of Grand Island issued a Request For Proposals
(RFP) for those professional consulting engineering services according to the RFP on file with the
Wastewater Division of the Public Works Department; and
WHEREAS, on March 26, 2009 proposals were received; and
WHEREAS, on April 8, 2009 and on April 9, 2009 a selection committee interviewed the
engineering firms Black & Veatch Corporation of Kansas City, Missouri, CH2MHill of Denver, Colorado
& HDR, Inc. of Omaha, Nebraska for selection criteria requirements; and
WHEREAS, based on the City’s rating of all proposals received, in accordance with
the rating system in the RFP, the engineering firm Black & Veatch Corporation has been deemed most
qualified for the services called for; and
WHEREAS, the negotiated agreement, with work performed at actual costs with a
maximum fee of $125,000.00 is considered fair and reasonable; and
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF
THE CITY OF GRAND ISLAND, NEBRASKA, that the agreement with consulting engineering firm,
Black & Veatch Corporation of Kansas City, Missouri for the professional services associated with
replacing the primary clarifier mechanisms at the WWTP is hereby approved.
BE IT FURTHER RESOLVED, that the Mayor is hereby authorized and directed to
execute such agreement on behalf of the City of Grand Island.
- - -
Adopted by the City Council of the City of Grand Island, Nebraska, May 12, 2009.
_______________________________________
Margaret Hornady, Mayor
Attest:
_______________________________________
- 2 -
RaNae Edwards, City Clerk
Item G14
#2009-114 - Approving Pioneer Consortium Interlocal Agreement
for Library Services
Tuesday, May 12, 2009
Council Session
City of Grand Island
Staff Contact: Steve Fosselman
City of Grand Island City Council
Council Agenda Memo
From: Steve Fosselman, Library Director
Meeting: May 12, 2009
Subject: Approving Pioneer Consortium Interlocal Agreement for
Library Services
Item #’s: G-14
Presenter(s): Steve Fosselman, Library Director
Background
Through previous City Council approval, the Grand Island Public Library has been
contracting with SirsiDynix (formerly Dynix) since 1993 (along with several libraries
statewide) on a variety of automation system needs, including installation of hardware
and software to operate the automated circulation of items. Several significant upgrades
to this system have also been approved by Council since 1993 in order to stay up-to-date
with advanced technologies and user needs.
Discussion
Another major upgrade to the SirsiDynix system is necessary in the near future and while
the library is very pleased with SirsiDynix as a proprietary service, a statewide
consortium is being developed to investigate the feasibility of migrating our systems to a
new Open Source (freely distributed, non-proprietary open source code) library-system
technology that could result in significant cost savings, added functionality and ease of
operation through a centralized server location with Internet access at each participating
library. To aid in the consortium’s efforts, the public libraries in the following
communities applied for and received $100,000 in federal grant funds from the Nebraska
Library Commission: Bellevue, Grand Island, Gretna, Holdrege, Lincoln, Omaha, and St.
Paul.
With the adoption of this Interlocal Agreement in each of these communities, work can
commence on a study to determine the best means, features, and start-up and on-going
costs of such a centralized system as well as to expend grant funds for hardware and
system support services to live-test such a system. During the Interlocal term ending
April 30, 2010, our library’s grant match share to participate in the Pioneer Consortium is
$1,666.50. This allows our library to determine the benefits of continued participation in
the consortium and to fully migrate from SirsiDynix to the consortium system if it best
enables us to provide library services efficiently and effectively.
Future years’ cost estimates will be determined during the grant period and this
information will be analyzed in determining future consortium involvement. As a frame
of reference, upgrading to the latest version of SirsiDynix will range from $38,000
(library-hosted) to $62,000 (Sirsi-Dynix hosted). Separately, this year’s maintenance fee
for Sir siDynix is $23,000.
An added benefit to participating in this consortium is the ability to collaborate with
others on a model of service that if successful will bring in even more participants and
bring down costs even more than if shared among seven libraries.
Alternatives
It appears that the Council has the following alternatives concerning the issue at hand.
The Council may:
1. Move to approve
2. Refer the issue to a Committee
3. Postpone the issue to future date
4. Take no action on the issue
Recommendation
City Administration recommends that the Council approve the Pioneer Consortium
Interlocal Agreement.
Sample Motion
Move to approve the Pioneer Consortium Interlocal Agreement.
PIONEER CONSORTIUM
INTERLOCAL AGREEMENT
This agreement (“Agreement”) is made and entered into by and between the City of Bellevue,
Nebraska, City of Grand Island, Nebraska, City of Gretna, Nebraska, City of Holdrege, Nebraska,
City of Lincoln, Nebraska, City of Omaha, Nebraska and the City of St. Paul, Nebraska and their
respective library boards, pursuant to authority provided in the Nebraska Interlocal Cooperation Act
(Neb. Rev. Stat. Sec. 13-801, et seq.), without creating a separate joint entity, each party hereto
maintaining its own employees and budgets in carrying out the terms of this Agreement, and whenever
possible, this Agreement shall be construed in conformity therewith.
1.0 PIONEER CONSORTIUM ESTABLISHMENT AND GOALS:
1.1 Pioneer Consortium is a consortium of publicly funded libraries (“Member Libraries,” singularly
“member library”) in the State of Nebraska. Its mission is to enrich the collections, share the resources,
enhance the services and strengthen support for its Member Libraries. The mission is achieved through
supporting an open source unified catalog of library resources, an efficient materials request and delivery
system, and other activities that enable its Member Libraries to provide library services efficiently and
effectively.
1.2 Startup funds for the Pioneer Consortium project have been provided by a $100,000.00 grant
award from the Nebraska Library Commission. In addition, Member Libraries agree to contribute
grant matching funds totaling $13,333.00 for data processing expenses.
1.3 Each member library's goal shall be to maintain and enhance a strong working relationship with
Member Libraries. All Member Libraries shall subscribe to the goals and primary functions of the
Pioneer Consortium as noted below.
1.4 The Pioneer Consortium is based on open source integrated library software and computer
equipment located at each member library and a central site, and linked via the Internet, which in turn
constitutes the automated union catalog system.
1.5 The functions of the Pioneer Consortium are listed below, not necessarily in priority order of
importance:
a. To provide access to the union catalog of the Member Libraries;
b. To allow patrons to request needed materials from the collections of Member
Libraries;
c. To enhance cooperative electronic and physical document delivery of materials
held by Member Libraries;
d. To provide access to electronic databases other than the union catalog to
Member Libraries and their patrons; and
e. To support cooperative collection development activities by Member Libraries.
1.6 The term of this Agreement shall continue through April 30, 2010, and be subject to renewal every
year so long as at least two (2) parties desire to renew this Agreement.
2.0 THE PIONEER COUNCIL AND GOVERNANCE STRUCTURE:
2.1 The Pioneer Consortium is to be governed by a governing board comprised of the library directors
from each member library. That board, called the Pioneer Council, shall have the responsibility to
cooperate to determine the most efficient and effective methods, materials, contractual relationships and
member fees for the benefit of all Member Libraries and cities.
2.2 The Pioneer Council will elect a President. The term of service and obligations of office shall be
published in the Pioneer Bylaws.
2.3 Each member library shall have one vote on the Pioneer Council.
2.4 The Pioneer Council shall develop and maintain bylaws governing the Pioneer Consortium’s
activities and services.
2.5 The Pioneer Council shall approve the Pioneer Consortium’s budgets, expenditure plans, and
member fees and charges for ongoing expenses beyond the grant project period.
2.6 The Pioneer Council shall set policies for the Pioneer Consortium and its business and contractual
relationship with Member Libraries and with any third party vendors.
2.7 The Pioneer Council shall determine expenditures for and repository of Pioneer Consortium central
system hardware and software during the grant period. Equipment acquired with grant funds must
continue to be used for project purposes for at least five years, or the life of the equipment. Future
expenditures for hardware, software and maintenance of the databases shall be determined by the
Pioneer Council.
2.8 Any member library leaving the Pioneer Consortium shall forfeit any interest it may have in the
property owned by the Pioneer Consortium to the remaining Member Libraries. Except as otherwise
provided in this Agreement, in the event all Member Libraries shall agree to disband the Pioneer
Consortium, any property owned by the Pioneer Consortium shall be distributed on a pro-rata basis to
be figured as a proportion of the number of materials held in each member library compared to the
overall total number of materials held by the consortium.
2.9 The Pioneer Council shall determine the reliable central site connectivity for Pioneer
Consortium-related telecommunication traffic to and from the central system to each member library,
sufficient for access to the union catalog and other databases per Section 1.5.
-3-
2.10 The Pioneer Council shall determine a repository for purposes of operating and maintaining a
union catalog of the collections of the Member Libraries that are accessible. The individual Member
Libraries shall pay for the support and coordination of locally generated data or activities. Neither the
member library nor the Pioneer Council shall obligate a member library to pay additional expenses
without the member library's prior approval.
2.11 The Pioneer Council shall determine the best means of insuring central site hardware, software
and system against loss by fire and other means. Any settlement paid to cover the loss of items jointly
owned by the Pioneer Consortium shall be used to replace Consortium property only.
2.12 The Pioneer Council shall create a Technical Advisory Council, consisting of staff designated by
each member library, which shall advise the Pioneer Council on technical management issues.
2.13 The Pioneer Council may establish other advisory groups or committees as needed.
3.0 OMAHA PUBLIC LIBRARY AND LINCOLN CITY LIBRARIES DUTIES:
3.1 The Omaha Public Library shall serve as the contracting and business agent for the Pioneer
Consortium and shall provide administrative support for the Pioneer Consortium as follows.
3.2 Budget and accounting activities for the Pioneer Consortium shall be maintained by the Omaha
Public Library.
3.3 The staff of the Omaha Public Library shall provide the Pioneer Council with all necessary
management information including but not limited to financial reports.
3.4 The Lincoln City Libraries shall draft an annual report subject to the approval of the Pioneer
Council.
3.5 The Lincoln City Libraries shall be the official repository for the Pioneer Consortium documentation,
correspondence, and other business records.
4.0 MEMBER LIBRARIES DUTIES:
4.1 Each member library shall pay grant matching funds in accordance with Section 1.2 as follows:
Omaha Public Library $4,000.00
Lincoln City Libraries $4,000.00
Grand Island Public Library $1,666.50
Bellevue Public Library $1,666.50
Holdrege Area Public Library $1,000.00
Gretna Public Library $ 500.00
-4-
Saint Paul Public Library $ 500.00
4.2 Each member library shall be responsible for purchasing and maintaining its own local system
hardware and software.
4.3 Each member library shall provide, at its expense, all costs to link and ensure reliable access from
the member library's local system to the Pioneer Consortium central system.
4.4 An annual membership fee will be due each fiscal year after the initial grant contributions according
to Sections 1.2 and 4.1. The payment amount for the coming fiscal year shall be determined by the
Pioneer Council by March 31st of each year.
4.5 Member Libraries whose initial participation in the Pioneer Consortium was not funded by the
original grant shall pay the Pioneer Consortium a pro-rata amount. The payment amount shall be
determined by the Pioneer Council.
4.6 The ongoing expenses associated with the delivery of services by the Pioneer Consortium shall be
assessed to each member library quarterly based on a pro-rata amount for software maintenance,
supplies and equipment reserve costs. The pro-rata costs for annual software maintenance charges will
be figured as a proportion of the number of materials held in each member library compared to the
overall total number of materials held by the consortium. The payment amount for the coming fiscal year
shall be determined by the Pioneer Council by March 31st of each year or more frequently as necessary
in re-assessing costs upon approval of additional members as specified in Section 7.1.
4.7 Each member library shall provide to the Pioneer Consortium automation third party vendor a copy
of its bibliographic, authority and holdings databases for loading into the central system. Each member
library shall be responsible for all expenses associated with the profiling and migration of its database.
4.8 Each member library shall provide to Pioneer Consortium additional records added to the above
mentioned databases using mutually acceptable catalog rules and procedures.
4.9 Each member library shall participate in central system interlibrary loan circulation according to
each member library's respective current circulation policy. Provision of the widest possible Interlibrary
Loan circulation of materials under these policies shall be a goal of the Pioneer Consortium.
4.10 Each member library shall participate in the Pioneer Consortium electronic and physical document
delivery services that support the circulation noted in section 4.9 and other cooperative services and
activities as approved by the Pioneer Council.
4.11 Each member library shall actively participate in the Pioneer Consortium by maintaining active
participation in the Pioneer Council and in additional groups established by the Pioneer Council including
but not limited to standing committees, ad-hoc committees, task forces, and advisory bodies.
-5-
4.12 Travel costs and other costs to participate in the Pioneer Consortium are the responsibility of each
member library.
4.13 The Pioneer Council may terminate a member library's Pioneer Consortium membership only if
the member library materially breaches its duties and such duties remain breached for 180 days after
notification by Pioneer Consortium or if to continue participation would violate laws of the State of
Nebraska.
4.14 Each member library can, at its discretion, withdraw from the Pioneer Consortium. Such
withdrawal will be effective upon 60 days written notice to the Member Libraries of the Pioneer
Council.
4.15 Each member library shall be responsible for verifying copyright and/or fair use status and/or
obtaining copyright permission prior to its placing or introducing any information, text, graphics or data
into the Pioneer Consortium database(s). Member Libraries agree they shall be solely responsible and
shall indemnify the other parties to this Agreement and hold them harmless from for any claim, loss,
liability or expense due to loading of copyrighted materials in the Pioneer Consortium database(s) by the
employees or agents of the member library where such loading or subsequent use, viewing, printing,
downloading or recopying is alleged to be infringing.
5.0 DATA RIGHTS AND OBLIGATIONS:
5.1 Data obtained by the central site from each member library shall hereby be contributed to Pioneer
Consortium for use in achievement of Pioneer Consortium's goals, subject to any third-party license
restrictions attached to such data.
5.2 If a member library ceases participation in Pioneer Consortium, the data submitted to the central
system at that point must be removed from central system within 120 days at that withdrawing member
library's expense.
6.0 MISCELLANEOUS:
6.1 Except as otherwise limited by Nebraska law, to the fullest extent permitted by law, each member
library shall mutually indemnify, defend and hold harmless the Member Libraries, their officers, agents,
and employees from and against claims, damages, losses and expenses, including but not limited to
attorney’s fees, arising out of or resulting from performance of this Agreement, that results in any claim
for damage whatsoever, including without limitation, any bodily injury, sickness, disease, death, or any
injury to or destruction of tangible or intangible property, including any loss of use resulting therefrom
that is caused in whole or in part by the intentional or negligent act or omission of the member library, or
anyone for whose acts any of them may be liable. The Member Libraries do not waive their
-6-
governmental immunity by entering into this Agreement and fully retain all immunities and defenses
provided by law. This section survives any termination of this Agreement.
6.2 This Agreement constitutes the entire agreement between the parties. There are no understandings,
agreements, or representations, oral or written, not specified herein regarding this Agreement. No
amendment, consent or waiver of terms of this Agreement shall bind either party, unless in writing and
signed by all parties. Any such amendment, consent or waiver shall be effective only in the specific
instance and for the specific purpose given. The parties, by the signature below of their authorized
representatives, acknowledge having read and understood the Agreement and to be bound by its terms
and conditions.
6.3 Each party to this Agreement shall execute duplicate copies of this Agreement and provide one
executed copy to the Pioneer Consortium. The parties agree that the separately executed copies of this
Agreement which shall constitute the Pioneer Consortium Interlocal Agreement shall be given full force
and effect.
7.0 ADDITIONAL MEMBERS:
7.1 Additional political subdivisions or governmental entities may apply to become members of the
Pioneer Consortium by providing the Pioneer Council a letter of application, which shall be considered
by the Pioneer Council at its next regular or special meeting following the receipt of the application.
Upon receiving the approval of two-thirds (2/3) of the Pioneer Council and the subsequent execution of
this Agreement by the applicant member, including any addendum, amendment or modification thereto,
the applicant shall become a member of the Pioneer Consortium.
-7-
PIONEER CONSORTIUM
INTERLOCAL AGREEMENT
DATE: ______________________ THE CITY OF BELLEVUE, NEBRASKA,
A Municipal Corporation,
ATTEST: ______________________________________
Mayor
____________________________
City Clerk
-8-
Approved as to form: __________________________
Bellevue City Attorney
PIONEER CONSORTIUM
INTERLOCAL AGREEMENT
DATE: ______________________ THE CITY OF GRAND ISLAND, NEBRASKA,
A Municipal Corporation,
________________________________ ____________________________________
Chairman, Library Board Mayor
ATTEST:
____________________________
City Clerk
-9-
Approved as to form: ____________________________
Grand Island City Attorney
-10-
PIONEER CONSORTIUM
INTERLOCAL AGREEMENT
DATE: ______________________ THE CITY OF GRETNA, NEBRASKA,
A Municipal Corporation,
ATTEST: ______________________________________
Mayor
____________________________
City Clerk
-11-
Approved as to form: ____________________________
Gretna City Attorney
PIONEER CONSORTIUM
INTERLOCAL AGREEMENT
DATE: ______________________ Holdrege Area Public Library, NEBRASKA
________________________________ ____________________________________
President, Library Board Library Director
ATTEST:
____________________________
Notary
-12-
Approved as to form: ____________________________
William A. Tringe, Esq.
Board of Library Trustees
-13-
PIONEER CONSORTIUM
INTERLOCAL AGREEMENT
DATE: ______________________ THE CITY OF LINCOLN, NEBRASKA,
d/b/a LINCOLN CITY LIBRARIES
_______________________________ ____________________________________
President, Library Board Library Director
Approved as to form: ____________________________
-14-
Lincoln City Attorney
-15-
PIONEER CONSORTIUM
INTERLOCAL AGREEMENT
DATE: ______________________ THE CITY OF OMAHA, NEBRASKA,
A Municipal Corporation,
ATTEST: ______________________________________
Mayor
____________________________
City Clerk
-16-
Approved as to form: ____________________________
Omaha City Attorney
PIONEER CONSORTIUM
INTERLOCAL AGREEMENT
DATE: ______________________ THE CITY OF ST. PAUL, NEBRASKA,
A Municipal Corporation,
________________________________ ____________________________________
Chairman, Library Board Mayor
________________________________ ATTEST:
Superintendent, School District
____________________________
City Clerk
-17-
Approved as to form: ____________________________
St. Paul City Attorney
Approved as to form¤ ___________May
7, 2009 ¤ City Attorney
R E S O L U T I O N 2009-114
WHEREAS, the City of Grand Island, Nebraska desires to enter into an Interlocal Agreement
with the City of Bellevue, Nebraska, City of Gretna, Nebraska, City of Holdrege, Nebraska, City of
Lincoln, Nebraska, City of Omaha, Nebraska and the City of St. Paul, Nebraska and their respective
library boards (the Parties) for purposes of establishing a consortium of publicly funded libraries in
the State of Nebraska to support an open source unified catalog of library resources, an efficient
materials request and delivery system, and other activities that enable its members to provide library
services efficiently and effectively; and
WHEREAS, the Parties have received grant funding in the amount of $100,000 from the
Nebraska Library Commission for start-up funds for a joint Pioneer Consortium project; and
WHEREAS, Grand Island Public Library’s grant match share to participate in the Pioneer
Consortium grant project specifically for data processing expenses is $1,666.50; and
WHEREAS, the term of this Agreement shall extend through April 30, 2010 and be subject
to renewal every year so long as at least two (2) parties desire to renew this Interlocal Agreement;
and
WHEREAS, the Parties agree to individual and consortium responsibilities as provided for in
this Interlocal Agreement; and
WHEREAS, the parties shall cooperate to determine the most efficient and effective
methods, materials, contractual relationships and member fees for the benefit of all member libraries
and cities.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF
THE CITY OF GRAND ISLAND, NEBRASKA, that the Mayor is hereby authorized to, on behalf
of the City, execute the Interlocal Agreement between the City of Grand Island and the City of
Bellevue, Nebraska, City of Gretna, Nebraska, City of Holdrege, Nebraska, City of Lincoln,
Nebraska, City of Omaha, Nebraska and the City of St. Paul, Nebraska and their respective library
boards, in accordance with the terms and conditions generally described above.
- - -
Adopted by the City Council of the City of Grand Island, Nebraska, May 12, 2009.
_______________________________________
Margaret Hornady, Mayor
Attest:
_______________________________________
RaNae Edwards, City Clerk
Item I1
#2009-115 - Approving Refunding Various Purpose Bonds, Series
2002
This item relates to the aforementioned Ordinance Item F-5.
Tuesday, May 12, 2009
Council Session
City of Grand Island
Staff Contact: David Springer
City of Grand Island City Council
Approved as to Form ¤ ___________
May 7, 2009 ¤ City Attorney
R E S O L U T I O N 2009-115
BE IT RESOLVED by the Mayor and City Council of the City of Grand Island, Nebraska:
Section 1. The following bonds of the City of Grand Island, Nebraska, in accordance with their
option provisions are hereby called for payment on June 16, 2009, after which date interest on the bonds
will cease:
Various Purpose Bonds, Series 2002, date of original issue - January 15, 2002, in the principal
amount of Two Million Nine Hundred Twenty-five Thousand Dollars ($2,925,000), numbered as
shown on the books of the Paying Agent and Registrar becoming due and bearing interest as
follows:
Principal Amount Maturity Date Interest Rate CUSIP No.
$270,000 December 15, 2009 4.20% 385622 MP 7
285,000 December 15, 2010 4.30 385622 MQ 5
295,000 December 15, 2011 4.40 385622 MR 3
310,000 December 15, 2012 4.50 385622 MS 1
320,000 December 15, 2013 4.65 385622 MT 9
330,000 December 15, 2014 4.75 385622 MU 6
355,000 December 15, 2015 4.85 385622 MV 4
370,000 December 15, 2016 4.95 385622 MW 2
390,000 December 15, 2017 5.00 385622 MX 0
Said bonds are hereinafter referred to as the “Refunded Bonds.”
Said bonds are subject to redemption at any time on or after January 15, 2007, at the principal
amount thereof plus accrued interest, and said interest is payable semiannually.
Said Refunded Bonds were issued for the purpose of paying the costs of improving streets and
alleys, intersections and areas formed by the crossing of streets, avenues or alleys and streets
adjacent to real estate owned by the City in Street Improvement District No. 1221.
Section 2. The Refunded Bonds are to be paid off at the principal corporate trust office of
Cornerstone Bank, in York, Nebraska (the “Paying Agent”), as paying agent and registrar.
Section 3. A true copy of this resolution shall be filed immediately with the Paying Agent and said
Paying Agent is hereby irrevocably instructed to mail notice to each registered owner of said bonds not less
than thirty days prior to the date fixed for redemption, all in accordance with the ordinance authorizing said
called bonds.
---
- 2 -
Adopted by the City Council of the City of Grand Island, Nebraska, May 12, 2009.
_______________________________________
Margaret Hornady, Mayor
Attest:
_______________________________________
RaNae Edwards, City Clerk
Item I2
#2009-116 - Approving Waste Water Cost of Services Based Rate
Study
Tuesday, May 12, 2009
Council Session
City of Grand Island
Staff Contact: Steven P. Riehle, Public Works Director
City of Grand Island City Council
Council Agenda Memo
From: Steven P. Riehle, Public Works Director
Meeting: May 12, 2009
Subject: Approving Waste Water Cost of Services Based Rate
Study
Item #’s: I-2
Presenter(s): Steven P. Riehle, Public Works Director
Background
On August 26, 2008, by Resolution Number 2008-228, the City Council approved an
agreement with the consulting engineering firm, Black & Veatch Corporation of Kansas
City, Missouri using Olsson Associates of Grand Island as a sub-consultant. The
agreement was for professional services associated with an anaerobic digestion system
including preliminary engineering, services during construction, public awareness and a
cost of services study related to the digesters only.
On December 16, 2008 by Resolution Number 2008-359, the City Council approved
Amendment Number 1 to the agreement that expanded the cost of services study beyond
the digesters to include the entire plant and collection system at a cost of $19,700. The
amendment also extended the timeline for the project at a cost of $16,000 with a council
presentation moved from November 2008 to March of 2009.
Discussion
Bill Stoner, Derek Cambridge and Anna White from Black & Veatch discussed digester
sizing options and presented the waste water cost of services based rate study report at
the May 5th City Council Study Session.
The cost of services based rate study detailed recommended rates for fiscal years 2010,
2011, 2012 and 2013. The first year of rate adjustments will be considered by the council
along with other city rates as part of the normal budget process in the summer of 2009.
Approving the rate study will finalize Black & Veatch's work effort on the rate study and
allow the consultant and city staff to move forward with design on the digester complex.
Alternatives
It appears that the Council has the following alternatives concerning the issue at hand.
The Council may:
1. Move to approve
2. Refer the issue to a Committee
3. Postpone the issue to future date
4. Take no action on the issue
Recommendation
City Administration recommends that the Council approve the waste water cost of
services based rate study as presented at the May 5, 2009 city council study session.
Sample Motion
Move to approve the waste water cost of services based rate study.
R E S O L U T I O N 2009-116
WHEREAS, on August 26, 2008, by Resolution 2008-228, the City of Grand Island
approved the proposal of Black & Veatch Corporation of Kansas City, Missouri using Olsson Associates
of Grand Island, Nebraska as a sub-consultant for the professional services associated with an anaerobic
digestion system including preliminary engineering, services during construction, public awareness and a cost
of services study related to the digesters only; and
WHEREAS, on December 16, 2008 by Resolution Number 2008-359, the City Council
approved Amendment Number 1 to the agreement that expanded the cost of services study beyond the
digesters to include the entire plant and collection system, and
WHEREAS, Black & Veatch Corporation has completed the rate study; and
WHERAS, it is recommended that the rate study presented by Black & Veatch
Corporation at the May 5, 2009 city council study session be approved and adopted.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF
THE CITY OF GRAND ISLAND, NEBRASKA, that the rate study presented by Black & Veatch
Corporation of Kansas City, Missouri at the May 5, 2009 city council study session is hereby approved
and adopted.
- - -
Adopted by the City Council of the City of Grand Island, Nebraska, May 12, 2009.
_______________________________________
Margaret Hornady, Mayor
Attest:
_______________________________________
RaNae Edwards, City Clerk
Approved as to Form ______
May 11, 2009 City Attorney
Item I3
#2009-117 - Approving Addendum Number 1 to the Agreement for
Professional Services for the Design of an Anaerobic Digestion
System at the Waste Water Treatment Plant
Tuesday, May 12, 2009
Council Session
City of Grand Island
Staff Contact: Steven P. Riehle, Public Works Director
City of Grand Island City Council
Council Agenda Memo
From: Steven P. Riehle, Public Works Director
Meeting: May 12, 2009
Subject: Approving Addendum Number 1 to the Agreement for
Professional Services for the Design of an Anaerobic
Digestion System at the Waste Water Treatment Plant
Item #’s: I-3
Presenter(s): Steven P. Riehle, Public Works Director
Background
On August 26, 2008, by Resolution Number 2008-228, the City Council approved an
agreement with the consulting engineering firm, Black & Veatch Corporation of Kansas
City, Missouri using Olsson Associates of Grand Island as a sub-consultant. The
agreement was for professional services associated with an anaerobic digestion system
including preliminary engineering, services during construction, public awareness and a
cost of services study related to the digesters only.
On December 16, 2008 by Resolution Number 2008-359, the City Council approved
Amendment Number 1 to the agreement that expanded the cost of services study beyond
the digesters to include the entire plant and collection system at a cost of $19,700. The
amendment also extended the timeline for the project at a cost of $16,000 with a council
presentation moved from November 2008 to March of 2009.
Discussion
Bill Stoner, Derek Cambridge and Anna White from Black & Veatch discussed digester
sizing options and presented the waste water cost of services based rate study report at
the May 5th City Council Study Session
Construction of an anaerobic digester complex at the city's waste water treament plant
remains the best long term option for sludge handling. Digestion will elinate the cost of
hauling and disposing of sewage sludge at area landfills. Option number 2 has the lowest
initial cost of $12.9 million, but does not provide capacity for future growth and is a
single train without redundancy. Option 2A provides capacity for future growth and is a
double train with redundancy that provides twice the capacity of option 2 at an increased
cost of just over 1 1/2 times the cost.
Approving digester sizing option 2A will allow the consultant and city staff to move
forward with design on the digester complex.
The negotiated agreement and schedule for the digester project contained an aggressive
timeline to keep the project moving forward. Shifting the council presentation on digester
sizing from March 2009 to May 2009 necessiates an extension of the time allowance
under the agreement from 490 to 550 days from the notice to proceed date of September
23, 2008.
Alternatives
It appears that the Council has the following alternatives concerning the issue at hand.
The Council may:
1. Move to approve
2. Refer the issue to a Committee
3. Postpone the issue to future date
4. Take no action on the issue
Recommendation
City Administration recommends that the Council approve addendum number 1 to the
agreement with Black & Veatch Corporation and authorize them to proceed with final
design work on digester option 2A as presented at the May 5, 2009 city council study
session.
Sample Motion
Move to approve addendum number 1 and authorize Black & Veatch to proceed with
final design work on digester option 2A.
ADDENDUM NUMBER 1 TO AGREEMENT FOR PROFESSIONAL SERVICES FOR THE
DESIGN OF AN ANAEROBIC DIGESTION SYSTEM
General Provisions
A. This Document Controlling. To the extent that there are conflicting provisions between this
document and the agreement between The City of Grand Island and Black & Veatch Corporation,
this document controls.
B. Modifications and Deletions. The following provisions are deleted or modified from original
agreement for Professional Services for the Design of an Anaerobic Digestion System; Dated
September 23, 2008, and Amendment Number 1 for Professional Services for the Design of an
Anaerobic Digestion System; Dated December 16, 2008 as follows:
(i) Attachment A; Scope of Services – Anaerobic Digestion Improvements; Page A1-1;
Project Information; third paragraph; as stated:
The ENGINEER shall complete the services described herein within three hundred sixty
(360) four hundred and ninety (490) five hundred fifty (550) days based on notice to proceed
by September 23, 2008. This schedule assumes City Council approval described in Task 1,
subtask 3 of this scope of services will be granted by November 4, 2008 March 9, 2009 May
12, 2009, that documents will be provided to CITY seven (7) working days before major
scheduled milestone revie w workshops, and that all CITY review comments will be received
within a reasonable time frame after the workshops.
IN WITNESS WHEREOF, owner and engineer have executed this Addendum Number 1.
City of Grand Island, Nebraska Black & Veatch Corporation
OWNER ENGINEER
By: __________________________ By: _________________________
Name: _Margaret Hornady___ Name: William S Stoner __
Title: _Mayor_______________ ____ Title: Vice President __ ____
Date: __________________________ Date: _________________________
Attest:
_________________________
RaNae Edwards, City Clerk
Approved as to Form __________
May 12, 2009 City Attorney
R E S O L U T I O N 2009-117
WHEREAS, on August 26, 2008, by Resolution Number 2008-228, the City Council of the City
of Grand Island approved an agreement with the consulting engineering firm, Black & Veatch Corporation of
Kansas City, Missouri for the professional services associated to the preliminary engineering for the design of an
anaerobic digestion system, public awareness, services during construction and cost of services study related to
the digesters only; and
WHEREAS, on December 16, 2008 by Resolution Number 2008-359, the City Council approved
Amendment Number 1 to the agreement that expanded the cost of services study beyond the digesters to include
the entire plant and collection system; and
WHEREAS, on December 16, 2008 by Resolution Number 2008-359, thru Amendment Number
1 also extended the timeline for the project, with a council presentation moved from November 2008 to March of
2009.
WHEREAS, on May 5, 2009 a Study Session was held regarding Digestion Complex sizing and
the Cost of Services based Rate Study where Black & Veatch recommended digester sizing option 2A;
WHEREAS, city staff has negotiated Addendum Number 1 with the consulting engineering firm,
Black & Veatch modifying the scope of the original contract with an extension of the agreement time allowance
from 490 to 550 days; and
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE CITY OF
GRAND ISLAND, NEBRASKA, that the notice to proceed with Option 2A for the Digestion System with the
calendar days to be adjusted from 490 to 550 days for the consulting engineering firm, Black & Veatch of Kansas
City, Missouri, is hereby approved; and
BE IT FURTHER RESOLVED, that the Mayor is hereby authorized and directed to execute such
addendum to the agreement on behalf of the City of Grand Island.
- - -
Adopted by the City Council of the City of Grand Island, Nebraska, May 12, 2009.
_______________________________________
Margaret Hornady, Mayor
Attest:
_______________________________________
RaNae Edwards, City Clerk
Approved as to Form _________
May 11, 2009 City Attorney
Item J1
Approving Payment of Claims for the Period of April 29 2009
through May 12, 2009
The Claims for the period of April 29, 2009 through May 12, 2009 for a total amount of
$2,806,007.61. A MOTION is in order.
Tuesday, May 12, 2009
Council Session
City of Grand Island
Staff Contact: David Springer
City of Grand Island City Council