HomeMy WebLinkAbout1992-04-13 92-208 ORDERDate yVu4-13-9211 Item No. 9-708
Cg+LHt, Tuthoriafsg the City Manager m elsntte a Gamst
Item/Subject: Pryeanent with Bmgsr Hydro Eleetrlt @vQvty Regaixding the
. Ba limn
Responsible Department: City coumil
Atte will fired a
Yw D proPary Fant g agcemress bnLgor Cthe Ctty of Bampr
and Bangor Hydro elstric Ca4mN ret..t"m tte anan. This a¢ement
hese bcen City Hydao ltlaItcsa C'aRaanY aM varus City
staff nmbalf incl1aselt tls City Solicitor. It ase revles] a the W tense
'entail � at its leaf tmettial K that five, the sand f Fvi asfs-G m Mua
staff tastinue m work out is final tleancl with Bangor F$dro electric ctrl
W autsay�ntly rerun m the Gins", batl m tie full Cormtl with 1s t1tu1
pmdtct. S>isequmst m bis veatitg, essig r t Sttme x�fed that the
Council to placed w the Caacil %fettle in older m pw£de the full
Council with an oppominity m revfav mtl d[ecoes the iampreal. Gnalcilor
Stale eggs ifted thx tle a9reaiaat crura rhms be xe£eaed back m the einbase
Cmmittee i£ may, aadttimel work sea tet fine or tlea Caamcil vnald Maya the
if eve naty m Proccea real £ l accep ajbJe. the giant ageeobast at the veering
if eve , of^g was in oxdei aM eccepreDle.
The adJue4ianta vatich have bean mmle in the draft are gm;erally fairly ndror
mei have not changes the substatice of tie agceanent frml tbsit which was
pmsentsl earlier.
a=P^,rl( mn„n
Manager's Comments: --A- A p / ! -^
U C��
<;a M„Inge,
Associated information:O.
Budget Approval:N
Fillers oirc
Legal Approval: C' Unlil Mostr CAPA 5 dry
a66ilnir e h i4ean d1Y soGdm.
Intro road For
Passage
El First Reading Page _of_
LD Referral
92-208
Assigned to Cowudlur Stone Aprll 13, 1992
CITY OF BANGOR
QRLFJ �ziig.0 City K'^ -;' m a.
rhiearene with Barigst HyG alatnin CrnQany RagardiM Ue Bangx Ram
By Y Chy Co of W aka/Baro°.:
ORDERED,
THAT the City Crn U M1 by accepts t atm Want most
bet the City of Baagot az Bmi2 c Hydro eiat Cin¢any x ti W the
sanipr tea;
AiID He TT PBRIfH.'f 0[iC£R®r THP1' tM City Mamgii fa h9rby
autlnrivai to exenite this aWearent.
In City Council april 13,1992
Passed Councilor Cohen Abstained
City C1City Cl rte -
92 -209
ORDER
Title,
Authorizing the City Manager to Executk
................. .............
.......:
a Great Agreement with Anchor Hydro
Electric any, ardi the Bao ox ?am
Amigned
\eboo l
..... .,lRY.........�
Couneilman
92-208
DAM REMOVAL GRANT AGREEMENT
AGREEMENT entered into by and between the CITY OF BANGOR.
(-City-), a municipal corporation located in Bangor, Maine, add
BANGOR HYDRO -ELECTRIC COMPANY ("SHE"), a Maine corporation With its
principal office located in Bangor, Maine.
WHEREAS, the City of Bangor owns a dam spanning the
Penobscot River between Bangor and Brewer, known as the Bangor
Waterworks Dam (the "Dam"), originally constructed in the late
1870e; and
WHEREAS, the Dam was partially breached during the late
1970s and continues to deteriorate; and
WHEREAS, the Maine legislature has prevented a proposed
redevelopment of the Dam by designating the section of the
Penobscot River where the Dam is located as "Class A^, with
significant resource values; and
WHEREAS, by letter dated Sone 5, 1990, Friends of Penobscot
River, Inc. filed a formal complaint with the United States Corps
of Engineers ("Corps") seeking to require the City of Bangor to
move timbers which may break away £r® the nam and alleged that
the Dam has become a navigational hazard; and
WHEREAS , the Corps, by letter of September 19, 1990, has
stated that the City is in violation of Section 12 0£ the Rivers
and Harbors Act of 1899 (13 USC 5 90]) and has requested that the
City submit a plan and schedule for the removal of debris which can
reasonably be expected to enter navigable waters; and
WHEREAS, the Corps has not required the City to remove the
entire Dam at this time; and
WHEREAS, the cost of complying with the requirements of the
Corps would cause a significant strain on the resources of the
City; and _
WHEREAS, the City has received letters from the Atlantic
Sea Run Salmon Covmission and Department of Marine Resources which
have identified benefits associated with removal of the entire Dam
as follows,
a) a significant improvement in fish passage
b) improvement in juvenile Atlantic salmon habitat.
c) increase in angling opportunity
d) significant increase in spawning habitat for -
rainbow emelt
a) additional spawning habitat for riverine
spawners (i.e., shad and sturgeon); and
92-208
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WHEREAS, BRE is proposing to construct a new dam spanning .
the Penobscot River between Orono and Bradley, Raine at Basin Hills
("Basin Mills ^).that will have an impact on fish passage, habitat
and angling opportunity; and
WHEREAS, ME has received requests £ram agencies and
intervenors associated with the licensing of Basin Mills to
investigate the possibility of removing a dam as partial mitigation
for the impacts of Basin Mills,.
WHEREAS, BBE'sinvestigation of the 'removal 'of the Dan
supports the existence of the benefits identified by the Atlantic
Sea Run Salmon Commission and the Maine Department of Marine
Resources listed above, andadditionally supports an estimate that
the removal of the Dam could increase Atlantic salmon habitat by
2,880 units; and
WHEREAS, SHE has had several informal discussions with
representatives of the City since the summer of 1991 to explore the -
feasibility of BHS funding the removal of the Dam as partial
mitigation for Basin Mills,
NOW, THEREFORE, in consideration of a proposed Grant of
funds by BEE to the City of Bangor as set out below, SHE and the
CITY hereby agree as follows,
1. 'During calendar year 1992, the City shall undertake
such work as is necessary to remove loose timbers from the Dam
which currently or may in the near future create a navigational
hazard in the Penobscot River. The City may also undertake
ancillary work necessary to accomplish this goal and to satisfy the
Corps that the immediate navigational hazard has been removed, said
ancillary work to include storage of the debris so removed. In
support of this Work, ME shall pay to the City Seventy-five
Thousand ($75,000.00) Dollars, said payment to be made at the time
this Agreement is executed. This payment shall be applied to the
cast of the Work to be performed during calendar year 1992.
2. In expectation of receiving from the Maine Department
of Environmental Protection (the "DEP") a permit with reasonable
conditions under the Maine Waterway Development and Conservation
Act and a Water Quality Certificate pursuant to Sec. 401 of the
Federal Clean Water Act allowing construction of Basin Mills, ME
will pay as they come due all invoices associated with the removal
of the Bangor Dam up to the a= of One Hundred Fifty Thousand
($150,000.00) Dollars (the "Additional Payments') as partial
mitigation for Basin Mills.
3. During calendar year 1993, the City shall undertake
additional tlam removal work to include removalof additional
timbers and ballast from the River.
4. The City shall be responsible to obtains all necessary
rights, permits and licenses and shall cause the projects to be
92-2DE
-3-
completed on or before December 31, 1993. The City shall make
available to BEE all coat estimates of projects to be performed and
shall consult with SHE over the selection of contractors.
5. It is understood and agreed that BHE's ccsmitment for
the Additional Payments is Contingent upon its ultimately receiving
from the Maine Department of Environmental Protection (the "DEP") a
permit under the Maine waterway Development and Conservation Act
and a water Quality Certificate pursuant to Sec. 401 of the Federal
Clean water Act allowing construction of Basin Mills. Should the
DEP deny either the aforesaid-permft-or,the'aforesaidcertificate,
the City shall refund, within ninety (90) days after such decision
becomes final, all Additional Payments paid up to that time by BEE,
and ME shall have no further obligation to make Additional
Payments. For these purposes, a decision of the DEP shall be
deemed final after any appeal period has run without a party to the
proceeding having appealed or, if the decision is appealed, a final
order of an appellate court affirming the decision of the DEP to
deny said permit or certificate. Nothing in this Agreement is
intended to require BEE to appeal any order of the DEP. -
6. The City shall indemnify and hold ME harmless from all
coats of the projects above Two Hundred Twenty -Five Thousand
($225,000) Dollars and from all claims, up to Three Hundred
Thousand ($300,000) Dollars per claim, arising out of the execution
of the projects by any contractor or agent employed or selected by
the City, including any and all claims arising out of removal or
ultimate disposal of any debris found at or near the Dan site by
the City or its contractors or agents.
7. If the City fails to complete the projects on or before
December 31, 1993, it shall, at SHE'S option, deliver to ME all
necessary rights and licenses to enable BES to complete the
Projects. Thereafter, at its sole option, and at its sola risk and
expense, ME may elect to complete the projects. If BEE shall
elect to complete the projects, BBE shall provide the City with
evidence of adequate insurance against all risks associated with
completion of the projects, and shall, in writing, indemnify and
hold the. City harmless from allclaims and costa associated with
suchcompletion, prior to commencing actual removal of the then
remaining portions of the Dam. It is further agreed that if BEE
shall elect to complete the projects, it shall take all reasonable
steps necessary to complete them by December 31, 1994, unless
further extended by the parties in writing.
S. Nothing in this Agreement shall be deemed to create a
contractual obligation an the Part of the City to undertake or to
complete removal of the Dam, or to expend other City funds for that
Purpose. It is understood and agreed that the schedule for the
projects set out in. Paragraphs l through of this Agreement
represents an anticipated schedule for a contemplated removal of
the Dam by the City, and that the City is not bound to perform in
92-208
-4-
accordance with the stated schedule. It is further expressly
agreed that SHE'S rights to enforce the terms of this Agreement
shall be limited to the following,
a) ME may require the City to apply all funds
advanced by SHE to the City's preparation for
and actual removal of the Dam in accordance
with Paragraphs 1-3 of this Agreement,
and may recover any funds not so applied;
b) SHE may undertakeandcomplete-removal"of-the
-
Dam after December 31, 1993, at its sole risk
and expense, if the City has not removed the
Dam by that date, as provided in Paragraph 7
of this Agreement;
C) SHE may recover "Additional Payments- if
BHE's Basin Mills project does not receive
necessary permits and certificates, as provided
In Paragraph 5 of this Agreement.
SHE hereby expressly waives all other remedies at law or in
equity, including any claims for direct, consequential or other
damages or costs arising out of the City's performance or
nonperformance of the terms of this Agreement
9. It is expressly understood and agreed that SHE has
proposed this Agreement as part of its efforts to provide partial
mitigation for the Basin Mills project. It is understood and
agreed that the City, by accepting funds or otherwise performing'.
the terms of this Agreement, takes no position regarding
desirability or licensing of the Basin Mills project at this time.
The City hereby expressly reserves any and all rights it has or may
have with regard to the Basin Mills project, including any and all
rights arising out of the City's status as a lower riparian owner,
a municipal government, and as a potential party to any State or
Federal licensing proceeding. It is further understood and agreed
that nothing in this. Agreement shall be deemed to waive,
abandon or
transfer any rights the City of .Bangor may have, now or in the
future, or to use or draw water from the Penobscot River for public
drinking, industrial, or other purposes. The City expressly
rserves all such rights, whether now or hereafter existing by
virtue of present grants or licenses, common law, or any future
State or Federal regulatory or legislative grant.
92-208
-5-
Dated at Bangor, Maine, this _ daY'Of , 1992..
CITY OF BANGOR
BY
Witness
Its
BANGOR HYDRO -ELECTRIC
COMPANY
BY
Witness
Its