HomeMy WebLinkAbout2013-12-16-Resolutions 13-331_Technical Services Agr - Black Hills EnergyTHE CITY OF WAUKEE,IOWA
RESOLUTION 13-331
APPROVING TECHNICAL SERVICES AGREEMENT BETWEEN
BLACK HILLS ENERGY 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,on December 6,2010,the Waukee City Council approved a Technical Services
Agreement between Black Hills Energy and the City of Waukee related to monitoring the
municipal gas infrastructure (Resolution #10-305);AND,
WHEREAS,City staff recommends renewing agreement with Black Hills Energy;AND,
WHEREAS,the City Attomey has reviewed the proposed agreement,attached hereto as Exhibit
A,and finds it satisfactory.
NOW THEREFORE BE IT RESOLVED by the City Council of the City of Waukee that the
Technical Services Agreement between Black Hills Energy and the City of Waukee is hereby
approved.
Passed by the City Council of the City of Waukee,Iowa,and approved the 16th day of
December,2013.
Rebecca D.Scliuett,City Clerk
ROLL CALL VOTE
Shane Blanchard
Casey L.Harvey
Shelly Hughes
C.Isaiah McGee
Mike Watts
AYE
X
X
X
X
NAY ABSENT ABSTAIN
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"Black HHIs Energy
TECHNICAL SERVICES AGREEMENT
Dated December 3,2013
between
Black Hills Iowa Gas Company,LLC
&
City of Waukee
TECHNICAL SERVICES AGREEMENT
TillS AGREEMENT,made and entered into this 3rd day of December,2013,by and
between Black Hills Iowa Gas Company,LLC 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 tenus,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 parties
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 BfIE'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 BHB to any governmental entity,or (iii)
would,in BRE'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 BRE'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 (l)year (the "Original Term").After the expiration of the Original Term,this Agreement
will be automatically renewed for successive terms of one (f)year each (each,a "Renewal
Term").
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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 any
Service or,in the sole discretion bfBHE,Customer's property and/or facilities are unsafe.If any
such termination relates to less than all of the Services,then BEE 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 EHE 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 snrvive 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.BEE 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 tbe event
Cnstomer 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
15-day period immediately following the applicable Payment Due Date,then BHE may after
notifying Customer exercise any other remedy available to ERE (including,without limitation,
refusing to provide additional Services until such amount,including interest,is paid in full).
ARTICLEN
Relationship of the Parties
The relationship of BRE to Customer under this Agreement is that of an independent
contractor,and EBE will not be deemed to be an employee,partner,or agent of Customer in
connection with the provision of the Services by BRE.BBE 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 alld Access
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 BEE in
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connection with providing the Services.EHE will exercise such rights of access so as to avoid
or minimize surface and subsurface damages where and when reasonably practicable.
ARTICLE VI
ProprietaryInformation
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 EHE 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;Conseqnential Damages
A.Indemnification by BHE.BHE will indemnify and hold harmless Customer and
its directors,officers,employees and agents from and against ally 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 mal 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 virtne 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 ally 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,EHE is not responsible or liable for the condition of
Customer's properties and/or facilities and Customer shall indemnify,defend and hold EHE
harmless from any and all actions regarding the condition of Customer's properties and/or
facilities.
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C.Conseguential 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,W ARRANTlES,OR
GUARANTEES,(EXPRESS,IMPLIED,STATUTORY,OR OTHER)OTHER THAN THOSE
SPECIFICALLY SET FORTH HEREIN,IF ANY,INCLUDING BUT NOT LlMlTED TO,
ANY IMPLIED WARRANTY OF MERCHANTABILITY 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 wiII arise by or in connection with this Agreement or the parties conduct
in relation hereto or to each other.
ARTICLE IX
Miscellaneous
A Assigmnent.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 tile other party (such consent not to be uureasonably
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 Company,LLC
1205 SW 3ih Street
Grimes.Lv 50111
Attn:John Feltner
City of Waukee
230 Highway 6
Waukee,Iowa 50263
Attn:John Gibson
C.Governing Law.This Agreement will be construed and enforced in accordance
with the laws of the State ofIowa,and each party hereby expressly consents to the jurisdiction of
the courts ofthe 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.
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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 patties.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 of the parties.
F.Property and Procedural Rights.Any and all computer programs,licenses,
documentation,procedures and instructions used in providing the Services are and will remain
the sale property of BHE.Customer will have no rights whatsoever to such property,
G.No Third party Beneficiaries.This Agreement gives no rights or benefits to
anyone other than Customer and BRE 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,ally 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.
1.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 facsinrile transmission,with originals to follow by
overnight courier or certified mail.
*****
[Remainder of Page Intentionally Left Blank;
Signature Page Follows Immediately Hereafter]
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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 0-e---i]~~
By:~~~~~~~~~~::=Name:]
Title:'J1.~
By:
Name:"""'~~'""--"-~=~"'-_
Title:
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Technical Services Agreement
Exhibit A
Scope of Services
On the following pipeline:
A nominal eight-inch diameter pipeline approximately
Fourteen and one half (14.5)miles in length extending
from a Town Border Station at Northern Natural's natural
gas transmission pipeline located on the east side of
Xavier A venue in the SW ~of the Southeast ~of Section
36,Township 8IN,Range 26W of the 5th PM,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 J;,;section 34,
Township 79N,Range 26W of the 5th PM.,Dallas County,
Iowa
1.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
and visual survey method.
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 sale
discretion,that an emergency condition mandating such
action exists.Waukee will be notified before the pipeline
is shut down.
5.Provider will check and maintain the gas odorizer
including labor and odorant up to 4,500 MMBtu/day.Parts
requiring replacement will be billed at cost plus 12%.
Provider will conduct one (1)instrument odoration test
monthly using a BHE employee.
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$34.695Iyear payable by Customer on an
annual basis.or monthly installments of
$2,891.25.
6.Provider will monitor cathodic protection on the Pipeline
to ensure compliance with requirements to prevent external
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 CPR D.O.T.
192 on an annual basis.Any regulator parts requiring
replacement will be billed at cost plus 12%.
9.Provider will update necessary records in accordance with
Waukee's standards and specifications and 49 CPR 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 instaIl and maintain necessary pipeline
markers and warning signs in accordance with government
standards.This includes up to ten (10)new signs and/or
markers per year.
II.Provider will assist with completion of annual D.O.T.
report filings.
12.Customer will maintain their pipeline in the Iowa One Call
database and perform their own line locating,
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 subject 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 CPR 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
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services include a review and modification of the program
as required by the DOT,annual assessment of the program
and assisting Customer in the filing of Federal and State
reporting required under these sections.
16.Public Awareness Program:Pursuant to DOT CFR 49 §§.
192.616,BHE shall establish a continuing educational
program on behalf of Customer to enable customers,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 customer 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.
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Technical Services Agreement
ExhibitB
To the Operations &Maintenance Services Agreement
.Dated November 8,2013
Between
Black Hills Iowa Gas Company,LLC
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 uot 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 upou Provider's direct and iudirect costs
plus 12.0 %of such costs.
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