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HomeMy WebLinkAbout2010-12-06-Resolutions 10-305_Technical Services Agr - Black Hills Energy-Iowa Gas UtilityTHE CITY OF WAUKEE,IOWA RESOLUTION 10-305 RESOLUTION APPROVING TECHNICAL SERVICES AGREEMENT BETWEEN BLACK HILLS ENERGY/IOWA GAS UTILITY COMPANY,LLC,AND THE CITY OF WAUKEE IN THE NAME AND BY THE AUTHORITY OF THE CITY OF WAUKEE,IOWA WHEREAS,the City of Waukee,Dallas County,State of Iowa,is a duly organized Municipal Organization;AND, WHEREAS,the City of Waukee operates a gas utility used for obtaining and distributing natural gas for consumption by the citizens of the City;AND, WHEREAS,the City of Waukee has a need to monitor its infrastructure and desires to use Black Hills Energy for such monitoring;AND, WHEREAS,Black HillslIowa Gas Utility Company d/b/a Black Hills Energy has submitted a Technical Services Agreement to the City of Waukee to aid in fulfilling this need;AND, WHEREAS,the Agreement attached as Exhibit A is submitted for consideration by the City Council and the City Council finds the same should be approved; BE IT THEREFORE RESOLVED by the City Council of the City of Waukee on this 6th day of December,2010,that the Agreement attached as Exhibit A,submitted by Black Hills Energy is hereby approved. Passed by the City Council of the City of Waukee,Iowa,and appr ed this the 6th day of December,2010. Attest: ROLL CALL VOTE Shane Blanchard Dan Dutcher Casey L.Harvey Darlene Stanton Mike Watts AYE X X X X X NAY ABSENT ABSTAIN EXHIBIT A TECHNICAL SERVICES AGREEMENT Dated November 1,2010 between Black Hills Energy/Iowa Gas Utility Company LLC & City of Waukee TECHNICAL SERVICES AGREEMENT THIS AGREEMENT,made and entered into this 1st day of November,2010,by and between Black Hills/Iowa Gas Utility Company dba Black Hills Energy ("BHE")and City of Waukee ("Customer"). WITNESSETH THAT: WHEREAS,Customer has the need for certain technical services set forth on Exhibit A attached hereto (collectively,the "Services"),and BHE has the requisite personnel and experience to perform the Services;and WHEREAS,Customer desires to engage BHE to perform the Services and BHE desires to provide to Customer the Services,pursuant to the terms,conditions and provisions of this Agreement; NOW THEREFORE,in consideration of the mutual covenants expressed herein and other good and valuable consideration,the receipt and sufficiency of which are hereby acknowledge,the parties agree as follows: ARTICLE I Performance of the Services BHE will provide to Customer the Services in accordance with the parameters the patties agree to from time to time.Notwithstanding the foregoing,BHE will not be required to provide any Service to the extent the provision thereof (i)becomes impracticable,in any material respect, as a result of one or more causes outside of BHE's reasonable control (including,without limitation,any labor dispute or force majeure event),(ii)would require BHE to violate any law, order or other binding commitment or obligation of BHE to any governmental entity,or (iii) would,in BHE's sole judgment acting in good faith,violate prudent safety procedures. BHE shall not be responsible for the acts or omissions of the Customer,contractor, subcontractor or supplier,or of any of Customer's agents or employees or any other person's (except BI-IE's own employees or contractors)furnishing or performing any work or services,the conditions of any of Customer's properties and/or facilities or for any decisions or interpretations of Customer regarding Customer's properties and/or facilities. ARTICLE II Term &Termination A.Term.Subject to the termination provisions of paragraph (B)below,this Agreement is effective as of the date hereof and will continue in full force and effect for a period of one (1)year (the "Original TelID").After the expiration of the Original TelID,this Agreement will be automatically renewed for successive terms of one (l)year each (each,a "Renewal 1 Term"). B.Termination.Either party may terminate this Agreement upon ninety (90)days prior notice.In addition,BHE may terminate this Agreement upon twenty four (24)hours prior notice in the event a dispute arises between the parties concerning the potential risk to the public safety that could reasonably be expected to result from any action or inaction in providing ally Service or,in the sole discretion ofBHE,Customer's property andlor facilities are unsafe.Ifany such termination relates to less than all of the Services,then BHE will continue to be obligated to provide the remaining Services in accordance with the terms and conditions contained in this Agreement. C.Effect of Termination.Upon the termination of this Agreement or BHE's obligation to provide any of the Services,the parties'obligations with respect to the terminated Services will cease;provided,however,that notwithstanding such termination (i)Customer will remain liable to BHE for all amounts payable in respect of the terminated Services provided prior to the date of termination,and (ii)the provisions of Articles II,IV,VI,VII,VIII,and IX of this Agreement will survive such termination. ARTICLE III Fees,Billing,and Payment In consideration of the performance of the Services,Customer will pay BHE the amounts described on,and in the manners set forth on,on Exhibit A attached hereto.BHE will submit invoices to Customer on a monthly basis or upon completion of Services,as applicable,and payment is due 30 days after receipt by Customer (each,a "Payment Due Date").In the event Customer fails to timely pay an invoice in full on the applicable Payment Due Date,interest on the unpaid amount will accrue at the rate of 2%per month from the applicable Payment Due Date until the actual date of payment.Payments received from Customer will be credited first to any accrued interest,and then to outstanding invoices,satisfying each invoice in full in the chronological order issued by BHE.In addition,if Customer fails to pay an invoice within the IS-day period immediately following the applicable Payment Due Date,then BHE may after notifying Customer exercise any other remedy available to BHE (including,without limitation, refusing to provide additional Services until such amount,including interest,is paid in full). ARTICLE IV Relationship of the Parties The relationship of BHE to Customer under this Agreement is that of an independent contractor,and BHE will not be deemed to be an employee,partner,or agent of Customer in connection with the provision of the Services by BHE.BHE will be solely responsible for the payment of any employment-related costs,taxes or benefits in respect of the provision of the Services. ARTICLE V Cooperation,Information and Access 2 The parties will cooperate in good faith in all matters related to the provision and receipt of the Services.Without limiting the foregoing,Customer will provide BHE,in a timely manner, all information and access to facilities required or reasonably requested by BHE in connection with providing the Services.BHE will exercise such rights of access so as to avoid or minimize surface and subsurface damages where and when reasonably practicable. ARTICLE VI Proprietary Information Any drawings,documentation,specifications,prints,designs,ideas or other information provided by either party to the other party or otherwise obtained by either party pertaining to the Services performed hereunder are strictly confidential and proprietary to BHE and Customer. Neither party will,without the prior written consent of the other party (which may not be unreasonably withheld),disclose any such information to a third party or use any such information for its own benefit except in connection with the provision of Services pursuant to this Agreement. ARTICLE VII Indemnification;Consequential Damages A.Indemnification by BHE.BHE will indemnify and hold harmless Customer and its directors,officers,employees and agents from and against any and all claims,liabilities, losses,costs,damages,injuries or expenses (including court costs and reasonable attorney's fees) by reason of any accident,personal injury,death,or damage to real or personal property brought by any person,association,or corporation,but only to the extent such accident,personal injury, death,or damage to real or personal property is directly caused by the negligence or willful misconduct of BHE in providing the Services under this Agreement.Further,BHE is not responsible or liable for the condition of Customer's properties and/or facilities and Customer shall indemnify,defend and hold BHE harmless from any and all actions regarding the condition of Customer's properties and/or facilities. Any provision to the contrary notwithstanding,BHE shall be responsible for providing Worker's Compensation Insurance for its employees providing services under this agreement and shall hold harmless and indemnify Customer from any liability in any way related to employees of BHE and their work hereunder.However,BHE shall not indemnify or hold harmless Customer for claims by any such employee against Customer arising by virtue of Customer's gross negligence. B.Indemnification by Customer.Customer will indemnify and hold harmless BHE and its directors,officers,employees and agents from and against any and all claims,liabilities, losses,costs,damages,injuries or expenses (including court costs and reasonable attorney's fees) by reason of any accident,personal injury,death,or damage to property brought by any person, association,or corporation,to the extent such accident,personal injury,death,or damage to property is not directly caused by the negligence or willful misconduct of BHE in providing the Services under this Agreement.Further,BHE is not responsible or liable for the condition of 3 Customer's properties and/or facilities and Customer shall indemnify,defend and hold BHE harmless from any and all actions regarding the condition of Customer's properties and/or facilities. C.Consequential Damages.In no event will either party be liable to the other party for any special,incidental,indirect,punitive or consequential damages (including,without limitation,lost profits,business interruption,or loss of product,data or use)arising from BHE's performance of,or related to,the Services or this Agreement. ARTICLE VIII Disclaimer of Warranties BHE MAKES NO REPRESENTATIONS,COVENANTS,WARRANTIES,OR GUARANTEES,(EXPRESS,IMPLIED,STATUTORY,OR OTHER)OTHER THAN THOSE SPECIFICALLY SET FORTH HEREIN,IF ANY,INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANT ABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE,WITH RESPECT TO THE SERVICES OR OTHER DELIVERABLES TO BE PROVIDED HEREUNDER.Without limiting the foregoing,no implied warranty arising by usage of trade,course of dealing or course of performance is given by BHE to Customer or will arise by or in connection with this Agreement or the parties conduct in relation hereto or to each other. ARTICLE IX Miscellaneous A.Assignment.This Agreement is binding upon and inures to the benefit of the parties and their respective successors and permitted assigns,but neither this Agreement nor any of the rights,interests or obligations hereunder may be assigned by either party,in whole or in part,without the prior written consent of the other party (such consent not to be unreasonably withheld).Notwithstanding the forgoing,BHE may without Customer's consent (i)engage one or more subcontractors to perform Services,and (ii)assign this Agreement to any person that acquires,by merger,purchase or otherwise,all or substantially all of BHE's natural gas operations in the State ofIowa. B.Notice.All notices pertaining to this Agreement will made be in writing and sent by registered mail or facsimile to the following addresses,as may be changed from time to time by notifying the other party in accordance with this paragraph: If to Black Hills Energy:If to Customer: Black Hills/Iowa Gas Utility 3400 SE Miehc Ste 3 . Grimes,IA 50111 Attn:John Feltner City of Waukee 230 Highway 6 Waukee,Iowa 50263 Attn:John Gibson 4 C.Governing Law.This Agreement will be construed and enforced in accordance with the laws of the State of Iowa,and each party hereby expressly consents to the jurisdiction of the courts of the State ofIowa. D.Waiver of Compliance.No waiver by any party of any default or breach by the other in performance of this Agreement will operate or be construed as a waiver of any other or future breach or default,whether of a like or a different character. E.Entire Agreement;Amendment.This Agreement will be a valid and binding agreement of the parties only if and when it is fully executed and delivered by the parties.This Agreement,together with Exhibit A attached hereto (which is incorporated herein by this reference),(i)embodies the entire agreement and understanding of the parties as to the subject matter of this Agreement,and (ii)supersedes all prior agreements and understandings between the parties with respect to the Services.No amendment of,or modification to,this Agreement will be effective unless in writing and signed by each ofthe parties. F.Propetty and Procedural Rights.Any and all computer programs,licenses, documentation,procedures and instructions used in providing the Services are and will remain the sole property of BHE.Customer will have no rights whatsoever to such property, G.No Third PaJ'tv Beneficiaries.This Agreement gives no rights or benefits to anyone other than Customer and BHE and has no third party beneficiaries. H.Severability and Reformation.If any term or provision of this Agreement is held by any court to be illegal or unenforceable,the remaining terms,provisions,rights,and obligations shall not be affected and shall remain in full force and effect.Further,to the extent permitted by applicable Law,any such term or provision will be restricted in applicability or reformed to the minimum extent required so that such term or provision may be enforceable. I..Delivery.This Agreement may be executed in multiple counterparts (each of which will be deemed an original,but all of which together will constitute one and the same instrument),and may be delivered by facsimile transmission,with originals to follow by overnight courier or certified mail. ***** [Remainder of Page Intentionally Left Blank; Signature Page Follows Immediately Hereafter] 5 IN WITNESS WHEREOF,the parties have caused this Agreement to be executed by their duly authorized officers as of the day and year first above written. Black Hills,Iowa Gas Utility ~~;ne:JiibY·f!?~~ Title:L/..,e?.hCQ:m q~k;ts 6 Technical Services Agreement Exhibit A Scope of Services On the following pipeline: A nominal eight-inch diameter pipeline approximately Fourteen and one half (l4.S)miles in length extending from a new tap off of Northern Natural's natural gas transmission pipeline located on the east side of Xavier Avenue in the SW v..of the Southeast v..of Section 36, Township 81N,Range 26W of the SthPM,Dallas County, Iowa and heading in a southerly direction approximately fourteen and one half miles to a point that is an inlet valve to the DRS in the Northeast y..section 34,Township 79N, Range 26W of the Sth PM.,Dallas County,Iowa I.Provider will check and verify Northern Natural's operating pressure directly related to customer on a monthly basis. 2.Provider will conduct leak surveys on the Customer's Pipeline as required to meet Federal and Iowa Pipeline Safety Regulations.Leak surveys will be performed using an approved and properly calibrated flame ionization unit. 3.All leaks will be classified in accordance with the Black Hills Energy Natural Gas Operations Manual.Leak classifications contained in the manual are consistent with industry standards and the American Gas Association's Guide Materials.Black Hills Energy will notify Customer of discovery of any leaks and will provide a recommended plan of action.However,provider is under no obligation to make any repairs or insure compliance with any laws or regulations. 4.Provider will provide necessary 24-hour emergency service,and is specifically authorized by Customer to shut down the pipeline if the Provider determines,in its sole discretion,that an emergency condition mandating such action exists.Waukee will be notified before the pipeline is shut down. S.Provider will check and maintain the gas odorizer (including odorant up to 4,SOOMMBtu/day).Provider will conduct one (I)instrument odoration test monthly using a BHE employee. 6.Provider will monitor cathodic protection on the Pipeline to ensure compliance with requirements to prevent external 7 $34,695Iyear payable by Customer on an annual basis,or monthly installments of $2,891.25. and atmospheric corrosion,However,provider is under no obligation to make any repairs or insure compliance with any laws or regulations. 7.A cathodic protection survey will be performed according to Black Hills Energy's standards and specifications and 49 CFR D.O.T.192.Corrective actions will be recommended within 30 days on any materially significant deficiencies. However,provider is under no obligation to make any repairs or insure compliance with any laws or regulations. 8.Provider will inspect and calculate capacities for the first cut regulator station and relief valve and inspect,operate, change one (1)31 day chart,and maintain emergency valves associated with the Pipeline to comply with Waukee's standards and specifications and 49 CFR D.O.T. 192 on an annual basis. 9.Provider will update necessary records in accordance with Waukee's standards and specifications and 49 CFR D.O.T. 192.Provider will retain these records for two years beyond the expiration of the contract.Records will include leak surveys,cathodic protection documents,maps, odorant usage and other maintenance activities performed. 10.Provider will install and maintain necessary pipeline markers and warning signs in accordance with government standards.(this includes up to ten (l0)new signs and/or markers per year. 11.Provider will assist with completion of annual D.O.T. report filings. 12.Customer will input their pipeline in the Iowa One Call database,customer and do their own locates. 13.At Customer's request,Provider will be present with Customer during Iowa Utility Board inspections of the pipeline. 14.Customer's facility records will be available for inspection upon request during the term of the contract,and subj ect to legal and regulatory requirements,shall be kept in strict confidence at all times.All Customer records will be returned to Customer upon termination of contract. 15.Integrity Management Program:Pursuant to DOT CFR 49 §§192.901 to 192.951,BHE shall perform the minimum requirements for an integrity management program on any gas transmission pipeline (note that for pipelines constructed of plastic,only the requirements in §§192.917, 192.921,192.935 and 192.937 apply).These services include,but are not limited to,a review and modification of the program as required by the DOT,annual assessment of the program and assisting Customer in the filing of 8 Federal and State reporting required under these sections. Customer acknowledges that BHE will use the "direct assessment (dig ups)method,"involving a four-step process that includes a combination of above-ground indirect examinations and direct examinations of the pipeline to assess the integrity of the pipeline and identify threats in each covered segment.The in-line inspection (ILl)or pressure-testing methods shall not be used. 16.Pnblic Awareness Program:Pursuant to DOT CFR 49 §§ 192.801 to 192.809,BHE shall establish a continuing educational program on behalf of Customer to enable cnstomers,the public,appropriate government organizations,and persons engaged in excavation related activities to recognize a gas pipeline emergency for the purpose of reporting it to the operator or the appropriate public officials.These services include,but are not limited to,review and modification of the program as required by the DOT,creating a brochure addressing those requirements with Customer's contact information, identifying impacted property owners,excavators and contractors,mailing said brochure to the identified parties and coordinating and conducting public officials and emergency officials training. 17.Provider will send cnstomer an annual report verifying that all tasks have been completed in a timely manner,i.e.leak survey,cp reads,odorometer tests,and atmospheric corrosion checks. 9 Technical Services Agreement Exhibit B To the Operations &Maintenance Services Agreement Dated November 1,2010 Between Black Hills Energy And City of Waukee TERMS OF ADDITIONAL SERVICES The scope of Services in Exhibit A relate to the Pipeline.Any point beyond the Customer's inlet valve after the first cut regulator station inside the DRS is not covered. All other services requested by Customer may be performed,at Provider's option,under the following conditions. Provider,at its discretion and upon approval of Customer,will provide work on Customer's facilities.Such work will be based upon Provider's direct and indirect costs plus 12.0 %of such costs. 10