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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 -2- 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