HomeMy WebLinkAbout1985-11-02-R i
• •
RESOLUTION #
A RESOLUTION AUTHORIZING AND DIRECTING THE MAYOR AND CITY
CLERK OF THE CITY OF BATESVILLE, ARKANSAS TO EXECUTE A LEASE
AGREEMENT WITH THE COUNTY OF INDEPENDENCE, ARKANSAS, FOR THE
LEASE OF LOCK AND DAM #1 ; AND FOR OTHER PURPOSES.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BATESVILLE,
ARKANSAS AS FOLLOWS:
SECTION l : That the Mayor and City Clerk of the City of
Batesville, Arkansas are hereby authorized and directed to execute '
a lease by and between the County of Independence, Arkansas, for
the lease of Lock and Dam #1 , a copy of said lease is attached
hereto marked EXHIBIT "A" and made a part hereof as though fully
said out herein word for word.
ADOPTED this �,2Nil day of I Y - , 1985 .
APPROVED:
Q�� - - - //-z
mShirrell, Mayor
9.1
ATTEST:
• �nn ff
Larry Williams City Clerk
+ 1 %06JECT DEVELOPMENT AGREEMEO
r
BETWEEN
THE COUNTY OF INDEPENDENCE, ARKANSAS
AND
THE CITY OF BATESVILLE, ARKANSAS
FOR THE
WHITE RIVER LOCK AND DAM NO. 1
HYDROELECTRIC PROJECT
This Agreement between the County of Independence Arkansas
("County") and the City of Batesville , Arkansas (City) for
development of the White River Lock and Dam No. 1 Hydroelectric
Project is made this ol> day of November, 1985 .
RECITALS
WHEREAS, the City has filed a license application before the
Federal Energy Regulatory Commission (FERC) to develop a
hydroelectric project at the White River Lock and Dam No. 1 known
as FERC Project No. 4204 (Project 1) ; and
WHEREAS, the City is interested in pursuing development of the
Project in a manner that completely relieves the City of financial risk; and
WHEREAS, the County has pending before the FERC license applications
for hydroelectric projects at White River Lock and Dam Nos . 2 and 3,
FERC Project Nos. 4660 and 4659 , respectively, (hereinafter Projects
2 and 3, respectively) ; and
WHEREAS, the development of Project 1 will benefit power production
at Project 2 due to hydraulic impacts from modification to flow
releases available from construction of a hydroelectric project at
Lock and Dam No. 1; and
WHEREAS, the County is interested in developing all three of the
proposed White River Hydroelectric Projects to make optimum use of
the water resources available for hydroelectric development for
local benefit; and
WHEREAS, the City is willing to cooperate with the County to enable
development of a hydroelectric project at Lock and Dam No. 1 for the
.,
benefit of the County and the City.
That subject to the terms and conditions herein set out the City hereby
. _I . - - -- - -i-- - ........1 -.P I --A 1+-ori 4re Tnaor%on_
1 .0 Project Development - The City agrees to allow the County
to use Lock and Dam No. 1 for the construction and operation
of Project No. 1 on terms and conditions set forth in this
Agreement. All facilities developed by the County at the
Project will be owned by the County. The facilities owned
by the County will be the Project facilities to be con-
structed or added at Lock and Dam No. 1 as generally des-
dribed in the FERC license application, as modified in the
September 1985 White River Lock and Dam No. 1 Hydroelectric
Project Feasibility Study including the following:
1 .1 A powerhouse and all equipment therein.
1 . 2 Intake channel and tailrace channel constructed by
the County.
1 . 3 Any storage or maintenance buildings required for the
Project which are constructed by the County.
1 . 4 All switchyard facilities within the fenced area
surrounding the switchyard, including the fence, but
not .the land required for the switchyard.
1 .5 All transmission facilities from the powerhouse
to the point of interconnection with the Arkansas
Power and Light transmission system.
1 . 6 All recreation facilities required to be installed
or constructed by the County as a requirement of
any license, permit or other approval required by
the Federal or State government as a condition of
the authorization for constructing operation and
maintenance of the Project.
1 .7 All spare parts and tools.
1. 8 All telemetering equipment and off-site remote controls.
1 .9 Maintenance and service vehicles necessary for the
Project.
1 . 10 All capital improvements and betterments required
over the term of the initial FERC license and any
renewal thereof, except for any improvements to the
dam or locks.
Nothing in this Agreement shall be construed to infer that
the County has any ownership of any facilities or land
required for the Project that is owned by the City as of
the date of execution of this Agreement.
County shall bear all costs and expenses connected with the
Project and the City shall incur no costs whatsoever unless
`. specifically agreed to be assumed by the City in this Agreement.
The County will assume the City's costs for:
2. 1 Payments to Resource Management International , Inc.
(RMI) as set forth in the July 1985 agreement between
RMI and the City for feasibility studies and the Consul-
tant's Report in support of the sale of bonds for Project
1 in accordance with Section 6 .1 of this Agreement.
2. 2 All costs in connection with Project 1 , including but
not limited to: bond counsel and other legal service
fees; planning; financing; engineering; construction;
operation and maintenance of Project 1 , incurred after
the date of execution of this Agreement, unless specif-
cally employed by the County.
3 .0 Project License & Permits - The City agrees to assign to the
County its licenses , permits and other approvals for develop-
ment of Project 1 to the extent such assignment is needed
and legally permissible and allowable for purposes of
financing, construction and operation of Project 1 by the
County, provided the County and City will not undertake actions
through assignment or transfer of the license if such transfer
or assignment jeopardizes the FERC license for Project 1 . The
City will cooperate with the County in timely efforts to continue
processing of the FERC license for the Project and in filing of
any additional applications - for government approvals needed for
development of Project 1 , to the extent that the City must con-
tinue to be applicant for such government approvals. Any costs
incurred for such licensing and permitting efforts shall be
borne by the County in accordance with Section 6 . 2 .
4 .0 Review of Project Plans - The City will have the right to review
and comment on the plans for Project layout and configuration,
transmission line routing and power marketing, such comment to
be provided on a timely basis . The County will provide payment
for documented incurred costs of such review and comment up to
the budget limits as set forth in Section 6 . 3 .
5.0 Project Agreements - The City and County agree to enter into such
other agreements needed for land rights, easements or other rights
a
necessary for development of Project 1 on terms mutually agree-
able to the Parties, consistent with the terms of this Agreement.
The terms of any financing or other agreements between the County
anA anis 4-1.; —A -- —--- --' 1 1 - - -
6 .0 Compensation - In consideration of (a) the City' s ownership
of White River Lock and Dam No. 1 , (b) the rights of the
County to use the City' s FERC license or be the transferee
of said license, and (c) the City' s efforts to pursue the
development of Project 1 , the County will compensate the
City as follows:
6. 1 Cost Reimbursement - The County will, within sixty
(60) days after the closing of the sale of bonds for
the final planning, design, equipment procurement
and construction of Project 1 , make reimbursement directly
to the White River Heritage Center Board (Board) for
expenses incurred by the Board for past costs of evaluation,
licensing and other expenses for Project 1 , however, said
payment to the Board shall not exceed $50 ,000 . The County
will also assume all costs pursuant to Sections 2 . 1 and 2 .2
of this Agreement.
6 . 2 Bond Issuance and Permitting Costs - The County will assume
all costs for the efforts necessary for the issuance of
44W tax-exempt bonds for the Project and for any additional
permitting and licensing costs for the Project, such
payment to be in addition to the payment for costs set
forth in Section 6 . 1 .
6 .3 Review Costs Reimbursement - The County agrees to reimburse
I
the City' s costs for review and comment on the County 's
plans for development of the Project as described in
Section 4 , not to exceed an amount of $50,000. Payment
for such City costs will be on a reimbursement basis for
documented incurred costs. The timing for such reimburse-
ment will be based on a mutually approved schedule between
the County and the City.
6. 4 Project Operation Payment - Upon commencement of commercial
operation of Project 1 , and until final repayment and retire-
ment of all bonds issued for financing of the Projects such
term expected to expire approximately thirty years after
commencement of commercial operation, the County will make
a payment to the City equal to ten (10) percent of the Net
Revenue received from the sale of power from all three of
the Projects. Following repayment and retirement of all
bonds for the Project§, the County will make a payment to
the City equal to twelve (12) percent of the Net Revenue
received by the County from all three Projects. Net Revenue
will be defined as the amount of compensation received by
reimbursed by the power purchaser, with benefits payments
�„► beyond Project costs to be paid separately to the County.
Such benefit payments beyond Project costs are to be con-
sidered Net Revenue which will be eligible for sharing
between the County and the City. Annual costs are to include:
6 . 4 . 1 Annual net debt service costs; deducting all net
interest earnings on reserve and contingency funds.
6 . 4 .2 Cost of operating personnel salaries, wages and
incurred salary, wage and employee benefits related
costs for all full and part-time employees assigned
to the Project.
6 . 4 .3 Cost of Project supplies and materials not reim-
bursed from the proceeds of financing.
6 . 4 . 4 Annual operating and maintenance costs for vehicles
dedicated to the Project.
6 . 4 .5 The cost of any station power required for the
Project which is not provided by the Projects '
generators.
6 .4 .6 The cost of all permit, license, or other annual
fees required by federal , state and local govern-
ments for the operation of the Projects.
6 .4 .7 Transmission wheeling or other transmission costs,
including annual easement fees, operation and
maintenance, and easement clearing and maintenance.
6 . 4 .8 The cost of reporting to government agencies in
accordance with applicable permits and licenses
for the Projects.
6 . 4 .9 All taxes and assessments levied against the Projects.
6 .4 . 10 The annual costs of providing any environmental
mitigation measures required to be performed by
the County in accordance with permits, licenses and
other government approvals which authorize construction,
operation and maintenance of the Projects.
6 . 4 . 11 All maintenance, repair and replacements of Project
equipment and structures provided that any capital
improvement or betterment of the Projects will be
accounted for, for purposes of compiling Annual
Cost, in accordance ,with the provisions of Section
6 . 5 of this Agreement.
[ 6 . 4 . 14 The cost to the County of managing and administering
�r the Projects which are reimbursed by the power
purchaser as a condition of the power sales agree-
ment.
6. 4 . 15 All other documented Project costs which are
reimbursed to the County by the power purchaser
as Annual Costs of the Projects and other documented
Project annual costs consistent with prudent utility
practice.
6.5 Capital Improvement and Betterment Costs - The County
may elect to apportion the cost of any major repair,
replacement, capital improvement or betterment (all
such costs are hereafter referred to as Capital Improve-
ments) to the Projects over several years for purposes
of establishing annual Project costs. In the event the
County does not fund any Capital Improvement from
available Project revenue in a single year, the County
may select a term for annual allocation of recovery
of the cost of such Capital Improvement equal to the
shorter of (1) the useful life of such improvement
in accordance with normal utility practice or (b) the Of
time remaining on the license for the Projects from
the date of completion of such Capital Improvement.
Such computed annual costs for Capital Improvements
will include the computed cost of interest at the last
interest rate in effect for any outstanding bonds for
the Project unless the County must secure new financing
for such Capital Improvement, in which event the appli-
cable interest rate will be equal to the rate incurred
for such financing.
7. 0 Assignment - Neither Party shall assign its rights to this
agreement to another party without the written authorization
of the other Party to this Agreement.
8 .0 Indemnification - County agrees to defend, indemnify, and
hold harmless the City, the City Council , officers, agents,
and employees from any and all loss, damage, liability,
claims, demands , costs , charges, and expenses, including
reasonable attorney fees Ind causes of action of whatever
character which the City may incur, sustain, or be subjected
to on account of County having entered into any contract or
on the account of loss or damage to nrouerty or loss of use
Such indemnification shall exclude damages arising from the
negligence, errors, or omissions of the City, its officers,
agents, or employees, or of others. Further, such indemni-
fication will extend to any and all losses, claims, causes
of action, costs, charges or expenses related to Project
1 of whatsoever kind or nature unless the City has specifi-
cally and unequivocally assumed that liability under a
particular term of this agreement. Further, the City shall
appear as a named insured on all policies of insurance as
its interest may appear.
9.0 Protection of Park - The County will take all reasonable
actions available to it to protect the park adjacent to
the Project 1 site from (1) physical disturbance and (2)
access limitations to maintain public use of such park
and related facilities during construction and operation
of Project 1 .
10 .0 Term of Agreement - This Agreement will become effective
�• upon its execution by both Parties and shall extend for the
full term of the license (s) granted by the Federal Energy
Regulatory Commission and all renewals or extensions of
such license (s) for Project 1 .
11 .0 There shall be no alterations or changes to the Dam, other
than those in keeping with the FERC License or amendments
thereto which would affect any current or future use which
may be made of the impoundment and/or Dam by the City
unless such change or alteration has been specifically
agreed to in writing by the City. The Dam and real property
shall be maintained by the County and the Dam and Real Property
shall be kept in good repair, and upon return to the City
shall be in good repair and condition. All facilities are
to be maintained and kept in good repair and if abandoned
by the County upon termination of this Agreement shall be
in good, non-hazardous condition.
12 . 0 The County shall timely provide the City with a complete
financial statement no less often than once annually.
13 .0 Payments to the City of Batesville as defined in Section 6.4
will be made in one of the following methods:
a
13 . 1 Within 10 days of each month-end with adjustments
made within 60 days of the end of the fiscal year
for annualized costs or audit adjustments. The County
13 . 2 If thd(.Oower-Purchase Agreement nOdates payments to
Independence County of net revenues on a regular basis,
then the County shall render payment to the City within
5 days of receipt with such report as is available to
the County, with adjustments made within 60 days of the
end of the fiscal year for annualized costs or audit
adjustments.
14 . 0 Should the real property or any improvements owned by the City
and covered by this agreement ever be subject to taxation during
the term of this agreement the County shall pay any tax owed
thereunder and same shall constitute a Project cost.
15. 0 Liens: The County shall not cause nor shall it permit any lien
other than a lien in favor of the bond holders as may be required
under the proposed bond issue, of whatsoever kind or nature,
to be placed upon the premises or property owned by the City.
16 . 0 Mitigation Rights. Should the County at any time receive
mitigation payments in connection with the projects, the miti-
gation payments will be considered as revenue to the projects
01
and will be distributed in accordance with the provisions provid-
ing for net revenues payments to the City.
17. 0 Notices: All notices to the Parties hereto shall , unless other-
wise requested in writing, be sent to the County addressed as
follows:
To the County: County Judge
Independence County
192 East Main Street
Batesville, AR 72501
To the City: Mayor
City of Batesville
170 South Fourth Street
Batesville, AR 72501
In witness whereof, the parties hereto have executed this agreement
in duplicate the day and year first above written.
INDEPENDENCE COUNTY: CITY OF BATESVILLE:
A
BY: B Y (�/t, ---L L
D vid Wyatt, Co my Judge m Shirrell, Mayor