RES 1999-2307 - Agmt with P-MRNRD for maintenance of Candlewood Lake and Dam ^ • '.�
,y
ro ��4 RECEI fED Iaw Department
Alf
i�, Omaha/Douglas Civic Center
��ar� �+�'! .a. 1819 Farnam Street,Suite 804
.[YAK rr Omaha,Nebraska 68183-0804
�A ro CITY CLERK (402)444-5115
i_x {�{
r.D FEB11°. �a „ �f Telefax(402)444-5125
OMAHA, NEBflM..rItA PaulD.Kratz
City of Omaha
Hal Daub,Mayor City Attorney
•
Honorable President
and Members of the City Council,
Transmitted herewith is an Resolution,sent to you at the request of the Administration, dealing with
approving an agreement among the City of Omaha, the Papio-Missouri River Natural Resources
District, Sanitary and Improvement District Number 236 of Douglas County Nebraska and the
Candlewood Homeowners Association dealing with the responsibilities for,and use and maintenance
of,the Candlewood Lake and Dam.
The proposed Agreement allows for a careful balance of everyone's interests and provides for
easements from abutting property owners,Lake maintenance by the Homeowners Association and
dam maintenance by the NRD. This agreement is the product of lengthy negotiations among the
parties handled principally for the City by the Law and Public Works Departments.
Your passage of the attached resolution is respectfully requested. •
Respectfully submitted, Referred to Ci Council for Consideration:
r---e20-rf . .,' /bent J. Hamer Da Mayor'• Office/Title Date
Deputy City Attorney •
Approved:
. E mit Date
Public Works Director
P:\LAW\9562.SKZ
,ULt- iOac. 3 v
, o-S Oa./ct//
•
INTERLOCAL AGREEMENT
THE CANDLEWOOD SUBDIVISION
THIS AGREEMENT ("this AGREEMENT") made by and among the PAPIO-
MISSOURI RIVER NATURAL RESOURCES DISTRICT ("the NRD"), the CITY OF
OMAHA, a municipal corporation and subdivision of the State of Nebraska,
("CITY"), SANITARY AND IMPROVEMENT DISTRICT NO. 236 OF DOUGLAS
COUNTY, NEBRASKA ("the SID"), and the CANDLEWOOD HOMEOWNERS
ASSOCIATION, a Nebraska Corporation ("CHA").
WHEREAS, the SID is a governmental subdivision located in Douglas County,
Nebraska, and contains within its boundaries approximately 400 residential homes,
townhomes and an apartment complex; and
WHEREAS, the CHA is a not for profit corporation that includes and is governed
by the residents of the Candlewood Subdivision, and which association is the fee title
holder to a portion of a flood control structure, commonly referred to as the
"Candlewood Dam" and is the fee title holder to an impounding lake, commonly referred
to as "Lake Candlewood" located within the SID boundaries and which property is
legally described as Lot 303, Candlewood, a subdivision in Douglas County, Nebraska;
and,
WHEREAS, the CITY intends to annex the SID pursuant to the laws of the State
of Nebraska; and,
WHEREAS, the NRD desires to cooperate with the CITY and CHA in the
operation and maintenance of the flood control structure ("the Dam") on a tract of land
("the Dam Complex") in the current SID, attached hereto as Exhibit "A" and
incorporated herein by reference; and,
1
•
NOW, THEREFORE, for and in consideration of the foregoing recitals and the
mutual covenants of the Parties hereinafter expressed, the Parties agree as follows:
1. DEFINITIONS. The terms used herein shall have the following meaning:
a) "CITY" shall mean the City of Omaha, a municipal corporation and
subdivision of the State of Nebraska.
b) "NRD" shall mean the Papio-Missouri River Natural Resources District, a
governmental subdivision of the State of Nebraska.
c) "SID" shall mean the Sanitary and Improvement District No. 236, of
Douglas County, Nebraska.
d) "CHA" shall mean the Candlewood Homeowners Association, a Nebraska
not for profit corporation in good standing.
e) "Dam" shall mean the flood control structure located down stream from the
Lake Candlewood Reservoir.
f) "Reservoir" shall mean the principal impoundment of water on Lot 303 and
up to the abutting land owners' real property, commonly referred to as
"Lake Candlewood."
g) "Dam Complex" shall mean that real property consisting of the Dam and
the footprint of the Dam, including the heel and toe of the Dam, the
principal spillway and the emergency spillway.
2
A
h) "Candlewood Park" shall mean the park located at Lots 254 and 255 in the
Candlewood Subdivision and owned by CHA.
2. PURPOSE. The purpose of this AGREEMENT is to provide for the cooperative
undertakings by and among the CITY, SID, NRD and CHA, without any separate entity
being created; and the duties and responsibilities of the Parties shall be defined by this
AGREEMENT.
PRE-ANNEXATION RESPONSIBILITIES
3. ANNEXATION OF SID 236. Upon execution of this AGREEMENT, and pursuant
to Nebraska state law and the code of the CITY, the CITY shall proceed with the
annexation of the SID and obtain all authorizations, ordinances and approvals as are
necessary to effectuate the same and secure full authority to operate and maintain the
public property contained within the SID boundaries.
4. PERMANENT EASEMENTS. The SID and CHA shall use their influence and
assistance in attempting to obtain from each and every real property owner abutting
Lake Candlewood a duly signed and executed Permanent Easement document as
approved by the Parties hereto granting the NRD, the CITY and CHA the right to store
floodwaters on the owners' real property in the event of heavy rainfall or other natural
occurrence which causes high water in Lake Candlewood and floods owners' property.
The approved form of Permanent Easement is attached hereto as Exhibit "A" and
incorporated by this reference (the "Permanent Easement"). Those Permanent
Easements that are signed and executed shall be held by the CHA and shall not be
delivered to the CITY for filing with the Douglas County Register of Deeds office until
such time that annexation of the SID is effectuated and Dam Easement and all relevant
agreements have been duly executed. There are 94 lots abutting Lake Candlewood for
which Permanent Easements are being sought. Presently, Permanent Easements have
been obtained for eiliyi ( /1') of the twenty-one (21) lots located within
3
the one hundred year flood plain around Lake Candlewood. An additional ye
Permanent Easements have also been obtained. These Permanent Easements which
have already been obtained may be referred to herein as the Signed Easements. All
parties agree that the Signed Easements are a sufficient number, provided they are
properly executed, to continue with the completion and consummation of the terms of
this Agreement. However, CHA agrees to continue using its best efforts to obtain
Permanent Easements from these lot owners who have not yet executed the form.
5. PREPARATION OF DOCUMENTS. In preparation for the annexation by the
CITY of the SID, the Parties hereto have cooperated in preparing and authorizing the
following documents:
a) Permanent Easement from CHA and CITY to the NRD for the
maintenance and operation of the Dam and Dam Complex as set forth in
paragraph 10 hereof (the "Dam Easement").
b) Permanent Easements as described in Paragraph 4 above.
6. TITLE INVESTIGATION. The CITY shall initiate on behalf of the Parties a title
search of the records of the Douglas County Register of Deeds for purposes of
determining the ownership status of the Dam, Dam Complex, Candlewood Park, Lake
Candlewood, and all private land owners abutting Lake Candlewood. The information
obtained by the CITY shall be provided to the Parties for purposes of preparing those
documents identified in paragraph 5(a), above.
POST-ANNEXATION RESPONSIBILITIES
7. EXECUTION OF DOCUMENTS AND FILING. Upon confirmation by the CITY of
completion of the.annexation of the SID,
a) CHA and CITY will execute the Dam Easement;
4
b) CHA shall produce for the NRD and the CITY those Permanent
Easements which have been executed; and
c) CITY shall file the Permanent Easements and the Dam Easements with
the Douglas County Register of Deeds at the CITY's own expense.
8. CITY DUTIES. Upon annexation, the CITY shall:
a) ensure that the Dam and the Dam Complex meet all existing federal, state
and local regulations and design standards for high hazard dams.
b) bring the emergency spillway and other related items into compliance with
the 1972 approval to construct the Dam or more recent approvals by the
NRD and the State of Nebraska. CHA shall be given at least sixty (60)
days written notice prior to the implementation of the compliance plan,
identified above.
c) satisfy all recommendations and deficiencies that are reported in the State
of Nebraska Inspection Reports, and cooperate with SID and CHA in
obtaining approval of the State of Nebraska for the continued maintenance
of trees across the top of the Dam.
d) develop, prepare and disseminate an Operations and Maintenance
Manual, breach routing and emergency preparedness plan for the Dam,
which are acceptable to the NRD and the State of Nebraska. No provision
of the Operations and Maintenance Manual which is inconsistent with the
covenants of this AGREEMENT shall be effective without the written
consent of the NRD, the CITY and the CHA. The Operations and
Maintenance Manual shall include, without limitation, guidelines for the
5
NRD's discretionary regulation of the Dam's outlet works to lower the level
of water in the Reservoir, after sixty (60) days written notice of such
intention is given to CHA, except in cases of emergency, for (i)
maintenance or repair of the Dam, (ii) removal of accumulated silt or other
accumulated materials, or (iii) other necessary purposes.
e) maintain Charles Street and make all necessary repairs, improvements,
modifications and alterations as may be required from time to time and in
accordance with the regular policies and procedures exercised by the
CITY for the operation and maintenance of its streets.
f) maintain and repair as needed the storm sewer inlets and outlets at the
Dam Complex.
g) maintain the islands at the Rose Lane, 123rd Street and Cuming Street
entrances up to the City's "Park Maintenance Standard" which shall
anticipate 26 mowings per growing season, one broad leaf application and
one fertilization application. The City and CHA acknowledge that there
exists an irrigation system for watering each of said entry islands and that
any and all expense or maintenance associated with such irrigation
systems, including the cost of all utilities, shall be the responsibility of
CHA. Notwithstanding any other provision contained in the paragraph the
CHA shall have the right, but not the obligation, to perform additional
maintenance, tree removal or landscaping at its sole cost or expense.
h) pay for the power charges for the lighting on the islands at the Rose Lane,
123rd Street and Cuming Street entrances. The CITY and the CHA
acknowledge that the light poles on such islands are not standard OPPD
poles and that in the event replacement is necessary, replacement by the
CITY shall be with standard OPPD poles. However, the CHA shall have
6
the option, but not the responsibility, to replace such poles at the CHA's
sole expense with non standard OPPD poles, provided, that the CHA pays
the cost, if any, over and above the standard pole charges, and further
conditioned upon approval of such poles by the Public Works Department
of the CITY.
i) Provide an indemnification from the City to NRD with respect to any claims
made by property owners abutting Lake Candlewood for flood waters
which back up on their property. This indemnification shall be limited to
those property owners who fail or refuse to execute the Permanent
Easement.
j) Operate, maintain and repair the Dam and Dam Complex unless and until
the NRD assumes such obligation.
9. ASSUMPTION OF DAM OBLIGATIONS. The NRD agrees to operate, maintain
and repair the Dam Complex only upon the following conditions having been satisfied:
a) The Signed Easements having been filed with the Douglas County
Register of Deeds office;
b) The CITY having completed the construction, improvements and
modifications identified in paragraph 8, subparagraphs a, b, c and d,
above; and
c) The Dam Easement having been executed and filed with the Douglas
County Register of Deeds office; and
d) The indemnification described in paragraph 8(i) having been fully
authorized and delivered by the City to the NRD.
7
•
10. OPERATION AND MAINTENANCE OF THE DAM COMPLEX. The NRD and
the City, as applicable, shall operate and maintain the Dam Complex in accordance with
the Operations and Maintenance Manual prepared by the CITY, this AGREEMENT and
all federal, state and municipal regulations as are from time to time mandated. Nothing
contained herein shall be construed as imposing upon (i) the NRD or the City a duty to
operate, maintain, repair or replace any recreational facilities or the Candlewood Park,
or (ii) the NRD a duty to maintain, repair or replace the sanitary sewer, electricity, cable,
gas, water, telephone, and other utilities and storm sewer and related facilities, or
improvements or (iii) the NRD or City to dredge or remove accumulated silt and other
accumulated materials from the Dam Complex or the Reservoir. The NRD shall not
make structural modifications to the Dam that would either raise or lower the principal
spillway, the emergency spillway, or the top of Dam without prior written approval of
CHA and the CITY, which approval shall not be unreasonably withheld.
11. CHA MAINTENANCE OBLIGATIONS. CHA shall be responsible for the
following:
a) periodically, as determined by the CHA, dredging the Reservoir for
purposes of improving the lake quality and reducing silt in the same
(Neither the CITY nor the NRD shall be responsible for dredging the
Reservoir);
b) maintaining the Candlewood Park;
c) performing shoreline maintenance, seeding, mowing and weed control on
and upon the face of the Dam as CHA shall reasonably determine
necessary to supplement such work that may be done by NRD; and
8
•
d) maintaining, in its discretion, minimum Reservoir level during periods of
dry weather (Neither the CITY nor the NRD shall be responsible for
maintaining a minimum Reservoir level).
12. STATUS OF THE LAKE. It shall be the intent of the CITY and NRD to maintain
the Dam and Dam Complex in accordance with the Operation and Maintenance Manual
as identified in Paragraph 8(d), hereof. The principal spillway shall be generally
maintained at its historical elevation of 1087.0 feet above mean sea level, and the
emergency spillway at the elevation specified by the engineering requirements of the
State of Nebraska for a 100 year storm event, and nothing shall be done by the CITY,
the NRD or their successors and assigns to permanently alter such principal spillway
elevation or emergency spillway elevation without written approval by CHA, which
approval shall not be unreasonably withheld.
13. HOLD HARMLESS. The CITY shall defend, indemnify, and hold the NRD
harmless from and against (a) all costs and expenses, including attorneys fees, arising
out of or resulting from claims, demands or causes of action for personal injury or
property damage arising out of or resulting from negligence of the CITY or their
contractors, agents, officers, or employees for any work performed on the Dam or Dam
Complex, and (b) all costs and expenses, including attorneys fees, arising out of or
resulting from claims, demands or causes of action for personal injury or property
damage arising out of the NRD's maintenance and operation of the Dam Complex,
excluding negligent acts of the NRD's officers or employees.
14. ASSIGNMENT. No Party hereto may assign its rights or duties in this
AGREEMENT in whole or in part except with the prior written consent of each of the
other Parties.
15. NOTICES. Any notice required under the terms of this AGREEMENT shall be
deemed to be given within forty-eight (48) hours after notice has been deposited in the
9
United States mail postage prepaid, addressed to the other party at the addresses set
below opposite their signatures to this Agreement.
16. NON-WAIVER. No delay or failure by either party to exercise any right under this
AGREEMENT and no partial or single exercise of that right shall constitute a waiver of
that or any other right unless otherwise expressly provided herein. A valid waiver by
either party shall not be deemed to extend the amount of time available to perform any
other act required under this AGREEMENT.
17. GOVERNING LAW. This AGREEMENT shall be construed in accordance with
and governed by the laws of the State of Nebraska.
18. FURTHER AGREEMENTS. Each party will, whenever and as often as the other
may reasonably request, execute, acknowledge and deliver or cause to be executed,
acknowledged and delivered any and all such further conveyances, assignments or
other instruments and documents as may be necessary, expedient or proper in order to
complete any and all conveyances, transfers, and assignments herein provided and to
do any and all other acts and to execute, acknowledge and deliver such other
documents that may reasonably be requested in order to carry out the intent and
purposes of this AGREEMENT.
19. TIME IS OF THE ESSENCE. Time is expressly declared to be of the essence of
this AGREEMENT.
20. COUNTERPARTS. This AGREEMENT may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
21. EFFECTIVE DATE. This AGREEMENT shall become effective upon execution
by all parties.
10
•
IN WITNESS WHEREOF,
THIS AGREEMENT IS EXECUTED BY THE NRD on this 871 day of
, 1999, pursuant to resolution duly adopted by its Board of Directors.
/1,
PAPIO-MISSOURI RIVER NATURAL
RESOURCES DISTRICT, 8901 South
154th Street, Omaha, NE 68138-3621
By: ... eCa..4E-----"---
Steve Oltmans, General Manager
State of Nebraska )
ss.
County of Douglas )
On this o23 day of 1999, before me, a Notary Public, personally
came jetSe,, Q �r•ivS General Manager of PAPIO-MISSOURI RIVER
NATURAL RESOURCES DISTRICT, to me personally known to be die identical person
whose name is affixed to the above and foregoing instrument, and acknowledged the
same to be his voluntary act and deed and the voluntary act and deed of said district.
WITNESS my hand and Notarial Seal the date last aforesaid.
GENERAL NOTARY-State of Nebraska j' - I� f) l /
Q�, RICHARD D.SKLENAR,JR.
. ,:":.. My Comm.Exp.Dec.18,2000 No ary Public
THIS AGREEMENT IS EXECUTED BY THE CITY OF OMAHA on this 026—
day of /4, , 1999, pursuant to resolution duly adopted by its City
Council.
CITY ' - •MAH , ,
BY: l; .
Ma .r Hal Daub
11
I
Attest:
Cilla (ifibilei 1
Deputy City Clerk Sandra L. Moses 1
d
THIS AGREEMENT IS EXECUTED BY THE SID on this �3 Y day of
at_
, 1999, pursuant to resolution duly adopted by its Board of
Tru es.
SANITARY AND IMPROVEMENT DISTRICT
NO. 236 OF DOUGLAS COUNTY,
NEBRASKA
By:
Chairperson
Attest:
1
1: d /,:P&L
Oler
State of Nebraska )
) ss.
County of Douglas )
On this 23 r y of 1999, before me, a Notary Public,
personally came�fu� ate- Chairperson of the Board of Trustees
of SANITARY AND IMPROVEMENT DISTRICT NO 236 OF DOUGLAS COUNTY,
NEBRASKA, to me personally known to be die identical person whose name is affixed
to the above and foregoing instrument, and acknowledged the same to be his voluntary
act and deed and the voluntary act and deed of said district.
12
WITNESS my hand and Notarial Seal the d st aforesaid.
GENERAL NOTARY-State of Nebraska
y ROBERT P.PETERSON notary Public
.T:,:::.. My Comm.EIV.Aug.ef>.2003
THIS AGREEMENT IS EXECUTED BY THE CHA on this day of
dicio tI4- , 1999, pursuant to resolution duly adopted by its Board of
Trustees.
CANDLEWOOD HOMEOWNERS
ASSOCIATION,
By: Qt/itiLaiAdiTitalbt-
P sident
State of Nebraska )
ss.
County of Douglas )
On this o2 � _.,y of 1999, before me, a Notary Public,
personally came;. ids. y � President of the CANDLEWOOD
HOMEOWNERS SSOCIATION, to e persf�nally known to be die identical person
whose name is affixed to the above and foregoing instrument, and acknowledged the
same to be his voluntary act and deed and the voluntary act and deed of said district.
WITNESS my hand and Notarial Seal the dalelast afore aid.
Notar `�'ublic
59766
GENERAL NOTARY•State of Nebraska
Jen JILL D. FULTON
My Comm.Exp.July 4,2001
13
DRAFT 7.2.99
Robert J.Hamer,Esquire
City of Omaha
1819 Farnam Street,#804
Omaha,NE 68183-0001
PERMANENT EASEMENT
In consideration of the sum of One Dollars ($1.00) and other valuable consideration
received, , (hereinafter referred to
as "OWNERS," whether one or more) do hereby grant to the PAPIO-MISSOURI RIVER
NATURAL RESOURCES DISTRICT ("hereinafter referred to as "the NRD"), and its
successors, the CITY OF OMAHA, NEBRASKA (hereinafter referred to as "the CITY"), and
the CANDLEWOOD HOMEOWNERS ASSOCIATION (hereinafter referred to as "the CHA"),
and its successors, (the NRD, the CITY and CHA hereinafter being referred to as "the
GRANTEES"), certain easements as follows, to wit:
1. As used in this instrument:
a) The phrase "the OWNERS' PROPERTY" shall refer to Lot in
Candlewood, a subdivision as surveyed, platted, and recorded in Douglas
County,Nebraska, owned by the OWNERS; and,
b) The phrase "LAKE CANDLEWOOD" shall mean the principal
impoundment of water on Lot 303 up to the OWNERS' PROPERTY in
said Candlewood subdivision, upstream of the DAM and commonly
referred to as "Lake Candlewood;" and,
c) The phrase "the DAM" shall refer to the flood control structure located in
said Candlewood subdivision.
2. The OWNERS hereby grant to the GRANTEES a permanent easement consisting
of the right to operate, maintain, repair, replace and patrol the DAM and store flood waters on
the OWNERS' PROPERTY in the event of heavy rainfall or other natural occurrence which
causes high water in LAKE CANDLEWOOD and floods OWNERS' PROPERTY. The
•
DRAFT 7.2.99
OWNERS hereby agree, acknowledge and consent to release the GRANTEES from and against
any and all liability, cause of action, claims, and expenses for loss of or damage to the
OWNERS' PROPERTY and other property of the OWNERS' caused by such flood water and
consequences thereof, including, without limitation, loss of or damage to buildings and other
structures and the contents thereof, to fixtures, landscaping, lighting, fish and wildlife habitat,
retaining walls,drainage improvements, paving, gazebos, ramps, docks, decks, lifts, and to boats,
other recreational equipment and all such other personal property located on OWNERS'
PROPERTY.
3. It shall be the intent of the CITY and NRD to generally maintain the principal
spillway at its historical elevation of 1087.0 feet above mean sea level, and the emergency
spillway at the elevation specified by the engineering requirements of the State of Nebraska for a
100 year storm event. and nothing shall be done by the CITY. the NRD or their successors and
assigns to permanently alter such principal spillway elevation or emergency spillway elevation
without written approval by CHA. which approval shall not be unreasonably withheld. The
agreements contained in this paragraph shall be deemed to be a part of the consideration for the
granting of this Permanent Easement. Filing this Permanent Easement with the Register of
Deeds by the CITY or NRD shall be deemed to be acceptance of the terms of this paragraph in
the same manner as if those parties were signatory to this document.
4. Any and all subsequent purchasers of OWNERS' PROPERTY acknowledge,
consent and accept (a) the GRANTEES' right to exercise the provisions set forth in paragraph 2,
above, and (b) OWNERS' release and covenants as set forth in paragraph 2, above, by virtue of
acceptance of an interest in the OWNERS' PROPERTY.
5. The OWNERS warrant that they are the owners of the OWNERS' PROPERTY
and that they have good right to grant the aforesaid easement rights over the same; and, that the
OWNERS will warrant and defend the title of the GRANTEES to the aforesaid easement rights
against all lawful claims and demands of all persons whomsoever.
6. The consideration recited herein shall constitute payment in full for all damages,
whether known, unknown or contingent, sustained by the OWNERS by reason of the exercise by
GRANTEES of all rights and privileges herein described or granted.
7. The easements granted herein shall run with the land, and shall inure to the
benefit of, and be binding upon, the parties and their respective heirs, successors, personal
representatives and assigns, and their agents and contractors.
8. No waiver of any breach of any of the covenants contained in this instrument shall
be construed as or constitute a waiver of any other breach, or a waiver, acquiescence or consent
to any further or succeeding breach of the same or any other covenant.
9. If any term or provision of this instrument shall, to any extent, be held invalid or
unenforceable, the remaining terms and provisions thereof shall not be affected thereby, but each
remaining term or provision shall be valid and enforceable to the fullest extent permitted by law.
DRAFT 7.2.99
Executed on this day of , 1999.
OWNERS:
STATE OF NEBRASKA )
) ss.
COUNTY OF DOUGLAS )
The foregoing instrument was sworn and acknowledged before me this day of
1
, 1999, by
Notary Public
MOTION BY COUNCILMEMBER t.•r- L
I hereby move that Council Document No. A 3 05 Current Series, be amended by
deleting the existing Agreement and substitute in lieu thereof the attached Agreement.
APPROVED AS TO FORM:
_ � ��
00p1P4115..."-ITY ATTORNEY DATE
1
P:\CC\9591.SKZ
INTERLOCAL AGREEMENT
THE CANDLEWOOD SUBDIVISION
THIS AGREEMENT ("this AGREEMENT") made by and among the PAPIO-
MISSOURI RIVER NATURAL RESOURCES DISTRICT ("the NRD"), the CITY OF
OMAHA, a municipal corporation and subdivision of the State of Nebraska,
("CITY"), SANITARY AND IMPROVEMENT DISTRICT NO. 236 OF DOUGLAS
COUNTY, NEBRASKA ("the SID"), and the CANDLEWOOD HOMEOWNERS
ASSOCIATION, a Nebraska Corporation ("CHA").
WHEREAS, the SID is a governmental subdivision located in Douglas County,
Nebraska, and contains within its boundaries approximately 400 residential homes,
townhomes and an apartment complex; and
WHEREAS, the CHA is a not for profit corporation that includes and is governed
by the residents of the Candlewood Subdivision, and which association is the fee title
holder to a portion of a flood control structure, commonly referred to as the
"Candlewood Dam" and is the fee title holder to an impounding lake, commonly referred
to as "Lake Candlewood" located within the SID boundaries and which property is
legally described as Lot 303, Candlewood, a subdivision in Douglas County, Nebraska;
and,
WHEREAS, the CITY intends to annex the SID pursuant to the laws of the State
of Nebraska; and,
WHEREAS, the NRD desires to cooperate with the CITY and CHA in the
operation and maintenance of the flood control structure ("the Dam") on a tract of land
("the Dam Complex") in the current SID, attached hereto as Exhibit "A" and
incorporated herein by reference; and,
1
• ,
•
NOW, THEREFORE, for and in consideration of the foregoing recitals and the
mutual covenants of the Parties hereinafter expressed, the Parties agree as follows:
1. DEFINITIONS. The terms used herein shall have the following meaning:
a) "CITY" shall mean the City of Omaha, a municipal corporation and
subdivision of the State of Nebraska.
b) "NRD" shall mean the Papio-Missouri River Natural Resources District, a '
governmental subdivision of the State of Nebraska.
c) "SID" shall mean the Sanitary and Improvement District No. 236, of
Douglas County, Nebraska.
d) "CHA" shall mean the Candlewood Homeowners Association, a Nebraska
not for profit corporation in good standing.
e) "Dam" shall mean the flood control structure located down stream from the
Lake Candlewood Reservoir.
f) "Reservoir" shall mean the principal impoundment of water on Lot 303 and
up to the abutting land owners' real property, commonly referred to as
"Lake Candlewood."
g) "Dam Complex" shall mean that real property consisting of the Dam and
the footprint of the Dam, including the heel and toe of the Dam, the
principal spillway and the emergency spillway.
2
•
•
h) "Candlewood Park" shall mean the park located at Lots 254 and 255 in the
Candlewood Subdivision and owned by CHA.
2. PURPOSE. The purpose of this AGREEMENT is to provide for the cooperative
undertakings by and among the CITY, SID, NRD and CHA, without any separate entity
being created; and the duties and responsibilities of the Parties shall be defined by this
AGREEMENT.
PRE-ANNEXATION RESPONSIBILITIES
3. ANNEXATION OF SID 236. Upon_ execution of this AGREEMENT, and pursuant
to Nebraska state law and the code of the CITY, the CITY shall proceed with the
annexation of the SID and obtain all authorizations, ordinances and approvals as are
necessary to effectuate the same and secure full authority to operate and maintain the
public property contained within the SID boundaries.
4. PERMANENT EASEMENTS. The SID and CHA shall use their influence and-
assistance in attempting to obtain from each and every real property owner abutting
Lake Candlewood a duly signed and executed Permanent Easement document as
approved by the Parties hereto granting the NRD, the CITY and CHA the right to store
floodwaters on the owners' real property in the event of heavy rainfall or other natural
occurrence which causes high water in Lake Candlewood and floods owners' property.
The approved form of Permanent Easement is attached hereto as Exhibit "A" and
incorporated by this reference (the "Permanent Easement"). Those Permanent
Easements that are signed and executed shall be held by the CHA and shall not be
delivered to the CITY for filing with the Douglas County Register of Deeds office until
such time that annexation of the SID is effectuated and Dam Easement and all relevant
agreements have been duly executed. There are 94 lots abutting Lake Candlewood for
which Permanent Easements are being sought. Presently, Permanent Easements have
been obtained for ei` PA ( If ) of the twenty-one (21) lots located within
3
the one hundred year flood plain around Lake Candlewood. An additional 91
Permanent Easements have also been obtained. These Permanent Easements which
have already been obtained may be referred to herein as the Signed Easements. All
parties agree that the Signed Easements are a sufficient number, provided they are
properly executed, to continue with the completion and consummation of the terms of
this Agreement. However, CHA agrees to continue using its best efforts to obtain
Permanent Easements from these lot owners who have not yet executed the form.
5. PREPARATION OF DOCUMENTS. In preparation for the annexation by the
CITY of the SID, the Parties hereto have cooperated in preparing and authorizing the
following documents:
a) Permanent Easement from CHA and CITY to the NRD for the
maintenance and operation of the Dam and Dam Complex as set forth in
paragraph 10 hereof (the "Dam Easement").
b) Permanent Easements as described in Paragraph 4 above.
6. TITLE INVESTIGATION. The CITY shall initiate on behalf of the Parties a title
search of the records of the Douglas County Register of Deeds for purposes of
determining the ownership status of the Dam, Dam Complex, Candlewood Park, Lake
Candlewood, and all private land owners abutting Lake Candlewood. The information
obtained by the CITY shall be provided to the Parties for purposes of preparing those
documents identified in paragraph 5(a), above.
POST-ANNEXATION RESPONSIBILITIES
7. EXECUTION OF DOCUMENTS AND FILING. Upon confirmation by the CITY of
completion of the annexation of the SID,
a) CHA and CITY will execute the Dam Easement;
4
b) CHA shall produce for the NRD and the CITY those Permanent
Easements which have been executed; and
c) CITY shall file the Permanent Easements and the Dam Easements with
the Douglas County Register of Deeds at the CITY's own expense.
8. CITY DUTIES. Upon annexation, the CITY shall:
a) ensure that the Dam and the Dam Complex meet all existing federal, state
and local regulations and design standards for high hazard dams.
b) bring the emergency spillway and other related items into compliance with
the 1972 approval to construct the Dam or more recent approvals by the
NRD and the State of Nebraska. CHA shall be given at least sixty (60)
days written notice prior to the implementation of the compliance plan,
identified above.
c) satisfy all recommendations and deficiencies that are reported in the State
of Nebraska Inspection Reports, and cooperate with SID and CHA in
obtaining approval of the State of Nebraska for the continued maintenance
of trees across the top of the Dam.
d) develop, prepare and disseminate an Operations and Maintenance
Manual, breach routing and emergency preparedness plan for the Dam,
which are acceptable to the NRD and the State of Nebraska. No provision
of the Operations and Maintenance Manual which is inconsistent with the
covenants of this AGREEMENT shall be effective without the written
consent of the NRD, the CITY and the CHA. The Operations and
Maintenance Manual shall include, without limitation, guidelines for the
5
NRD's discretionary regulation of the Dam's outlet works to lower the level
of water in the Reservoir, after sixty (60) days written notice of such
intention is given to CHA, except in cases of emergency, for (i)
maintenance or repair of the Dam, (ii) removal of accumulated silt or other
accumulated materials, or (iii) other necessary purposes.
e) maintain Charles Street and make all necessary repairs, improvements,
modifications and alterations as may be required from time to time and in
accordance with the regular policies and procedures exercised by the
CITY for the operation and maintenance of its streets.
f) maintain and repair as needed the storm sewer inlets and outlets at the
Dam Complex.
g) maintain the islands at the Rose Lane, 123rd Street and Cuming Street
entrances up to the City's "Park Maintenance Standard" which shall
anticipate 26 mowings per growing season, one broad leaf application and
one fertilization application. The City and CHA acknowledge that there
exists an irrigation system for watering each of said entry islands and that
any and all expense or maintenance asseciated with such irrigation
systems, including the cost of all utilities, shall be the responsibility of
CHA. Notwithstanding any other provision contained in the paragraph the
CHA shall have the right, but not the obligation, to perform additional
maintenance, tree removal or landscaping at its sole cost or expense.
h) pay for the power charges for the lighting on the islands at the Rose Lane,
123`d Street and Cuming Street entrances. The CITY and the CHA
acknowledge that the light poles on such islands are not standard OPPD
poles and that in the event replacement is necessary, replacement by the
CITY shall be with standard OPPD poles. However, the CHA shall have
6
•
the option, but not the responsibility, to replace such poles at the CHA's
sole expense with non standard OPPD poles, provided, that the CHA pays
the cost, if any, over and above the standard pole charges, and further
conditioned upon approval of such poles by the Public Works Department
of the CITY.
i) Provide an indemnification from the City to NRD with respect to any claims
made by property owners abutting Lake Candlewood for flood waters
which back up on their property. This indemnification shall be limited to
those property owners who fail or refuse to execute the Permanent
Easement.
j) Operate, maintain and repair the Dam and Darn Complex unless and until
the NRD assumes such obligation.
9. ASSUMPTION OF DAM OBLIGATIONS. The NRD agrees to operate, maintain
and repair the Dam Complex only upon the following conditions having been satisfied:
a) The Signed Easements having been filed with the Douglas County
Register of Deeds office; -
b) The CITY having completed the construction, improvements and
modifications identified in paragraph 8, subparagraphs a, b, c and d,
above; and
c) The Dam Easement having been executed and filed with the Douglas
County Register of Deeds office; and
d) The indemnification described in paragraph• 8(i) having been fully
authorized and delivered by the City to the NRD.
7
10. OPERATION AND MAINTENANCE OF THE DAM COMPLEX. The NRD and
the City, as applicable, shall operate and maintain the Dam Complex in accordance with
the Operations and Maintenance Manual prepared by the CITY, this AGREEMENT and
all federal, state and municipal regulations as are from time to time mandated. Nothing
contained herein shall be construed as imposing upon (i) the NRD or the City a duty to
operate, maintain, repair or replace any recreational facilities or the Candlewood Park,
or (ii) the NRD a duty to maintain, repair or replace the sanitary sewer, electricity, cable,
gas, water, telephone, and other utilities and storm sewer and related facilities, or
improvements or (iii) the NRD or City to dredge or remove accumulated silt and other
accumulated materials from the Dam Complex or the Reservoir. The NRD shall not
make structural modifications to the Dam that would either raise or lower the principal
spillway, the emergency spillway, or the top of Dam without prior written approval of
CHA and the CITY, which approval shall not be unreasonably withheld.
11. CHA MAINTENANCE OBLIGATIONS. CHA shall be responsible for the
following:
a) periodically, as determined by the CHA, dredging the Reservoir for
purposes of improving the lake quality and- reducing silt in the same
(Neither the CITY nor the NRD shall be responsible for dredging the
Reservoir);
b) maintaining the Candlewood Park;
c) performing shoreline maintenance, seeding, mowing and weed control on
and upon the face of the Dam as CHA shall reasonably determine
necessary to supplement such work that may be done by NRD; and
8 .
d) maintaining, in its discretion, minimum Reservoir level during periods of
dry weather (Neither the CITY nor the NRD shall be responsible for
maintaining a minimum Reservoir level).
12. STATUS OF THE LAKE. It shall be the intent of the CITY and NRD to maintain
the Dam and Dam Complex in accordance with the Operation and Maintenance Manual
as identified in Paragraph 8(d), hereof. The principal spillway shall be generally
maintained at its historical elevation of 1087.0 feet above mean sea level, and the
emergency spillway at the elevation specified by the engineering requirements of the
State of Nebraska for a 100 year storm event, and nothing shall be done by the CITY,
the NRD or their successors and assigns to permanently alter such principal spillway
elevation or emergency spillway elevation without written approval by CHA, which
approval shall not be unreasonably withheld.
13. HOLD HARMLESS. The CITY shall defend, indemnify, and hold the NRD
harmless from and against (a) all costs and expenses, including attorneys fees, arising
out of or resulting from claims, demands or causes of action for personal injury or
property damage arising out of or resulting from negligence of the CITY or their
contractors, agents, officers, or employees for any work performed on the Dam or Dam
Complex, and (b) all costs and expenses, including attorneys fees, arising out of or
resulting from claims, demands or causes of action for personal injury or property
damage arising out of the NRD's maintenance and operation of the Dam Complex,
excluding negligent acts of the NRD's officers or employees.
14. ASSIGNMENT. No Party hereto may assign its rights or duties in this
AGREEMENT in whole or in part except with the prior written consent of each of the
other Parties.
15. NOTICES. Any notice required under the terms of this AGREEMENT shall be
deemed to be given within forty-eight (48) hours after notice has been deposited in the
9
•
United States mail postage prepaid, addressed to the other party at the addresses set
below opposite their signatures to this Agreement.
16. NON-WAIVER. No delay or failure by either party to exercise any right under this
AGREEMENT and no partial or single exercise of that right shall constitute a waiver of
that or any other right unless otherwise expressly provided herein. A valid waiver by
either party shall not be deemed to extend the amount of time available to perform any
other act required under this AGREEMENT.
17. GOVERNING LAW. This AGREEMENT shall be construed in accordance with
and governed by the laws of the State of Nebraska.
18. FURTHER AGREEMENTS. Each party will, whenever and as often as the other
may reasonably request, execute, acknowledge and deliver or cause to be executed,
acknowledged and delivered any and all such further conveyances, assignments or
other instruments and documents as may be necessary, expedient or proper in order to
complete any and all conveyances, transfers, and assignments herein provided and to
do any and all other acts and to execute, acknowledge and deliver such other
documents that may reasonably be requested in order to carry out the intent and
purposes of this AGREEMENT.
19. TIME IS OF THE ESSENCE. Time is expressly declared to be of the essence of
this AGREEMENT.
20. COUNTERPARTS. This AGREEMENT may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
21. EFFECTIVE DATE. This AGREEMENT shall become effective upon execution
by all parties.
10
IN WITNESS WHEREOF,
THIS AGREEMENT IS EXECUTED BY THE NRD on this 871-4 day of
, 1999, pursuant to resolution duly adopted by its Board of Directors.
4
PAPIO-MISSOURI RIVER NATURAL
RESOURCES DISTRICT, 8901 South
154th Street, Omaha, NE 68138-3621
By: --� 0
Steve Oltmans, General Manager
State of Nebraska )
) ss.
County of Douglas ) •
On this en..,/day of if 1999, before me, a Notary Public, personally
came j L .c p/ General Manager of PAPIO-MISSOURI RIVER
NATURAL RESOURCES DISTRICT, to me personally known to be die identical person
whose name is affixed to the above and foregoing instrument, and acknowledged the
same to be his voluntary act and deed and the voluntary act and deed of said district.. -
WITNESS my hand and Notarial Seal the date last aforesaid.
GENERAL NOTARY-State of Nebraska /eedeotzjf/‘
fill,1
RICHARD D.SKLENAR,. —. .. My Comm.Exp.Dec.18,2000 NotaryPublic
THIS AGREEMENT IS EXECUTED BY THE CITY OF OMAHA on this
day of , 1999, pursuant to resolution duly adopted by its City
Council.
CITY OF OMAHA,
BY:
Mayor Hal Daub
11
Attest:
City Clerk Buster Brown
d
THIS AGREEMENT IS EXECUTED BY THE SID on this .23 ' day of
, 1999, pursuant to resolution duly adopted by its Board of
TrustE s.
SANITARY AND IMPROVEMENT DISTRICT ,
NO. 236 OF DOUGLAS COUNTY,
NEBRAS
By:
C airperson
A t:
/ '11)-a/
C erk `
State of Nebraska )
) ss.
County of Douglas )
On this '2-- i 1999, before me, a Notary Public,
personally came Chairperson of the Board of Trustees
of SANITARY AN IMPROVEMENT DISTRICT NO 236 OF DOUGLAS COUNTY,
NEBRASKA, to me personally known to be die identical person whose name is affixed
to the above and foregoing instrument, and acknowledged the same to be his voluntary
act and deed and the voluntary act and deed of said district.
12
WITNESS my hand and Notarial Seal the da aforesaid.
GEN, ,,,,(•State of Nebraska
F, ; RT F. PETERSON
- My Comm.Exp.Aug.18,2003 otary Public
THIS AGREEMENT IS EXECUTED BY THE CHA on this c0 day of
/,j/ 1999, pursuant to resolution duly adopted by its Board of
Truste .
CANDLEWOOD HOMEOWNERS ,
ASSOCIATION,
By: aQJzb � r��
Pres O-4ident
State of Nebraska )
) ss. 1
County of Douglas )
On this d of 1999, before me, a Notary Public,
personally came ' , ',tea-In-President of the CANDLEWOOD
HOMEOWNERS A OCIATION, to me erson ly known to be die identical person
whose name is affixed to the above and foregoing instrument, and acknowledged the
same to be his voluntary act and deed and the voluntary act and deed of said district.
WITNESS my hand and Notarial Seal the to last afJolresaid.
No y Public
59766
GENERAL NOTARY•State of Nebraska
jes JILL D. FULTON
My Comm. Exp.July 4, 2001
13
•
DRAFT 7.2.99
•
Robert J. Hamer.Esquire
City of Omaha
1819 Farnam Street,#804
Omaha,NE 68183-0001
PERMANENT EASEMENT
In consideration of the sum of One Dollars ($1.00) and other valuable consideration
received, , (hereinafter referred to
as "OWNERS," whether one or more) do hereby grant to the PAPIO-MISSOURI RIVER
NATURAL RESOURCES DISTRICT ("hereinafter referred to as "the NRD"), and its
successors, the CITY OF OMAHA, NEBRASKA (hereinafter referred to as "the CITY"), and
the CANDLEWOOD HOMEOWNERS ASSOCIATION (hereinafter referred to as "the CHA"),
and its successors, (the NRD, the CITY and CHA hereinafter being referred to as "the
GRANTEES"), certain easements as follows,to wit:
1. As used in this instrument:
a) The phrase "the OWNERS' PROPERTY" shall refer to Lot in
Candlewood, a subdivision as surveyed, platted, and recorded in Douglas
County,Nebraska, owned by the OWNERS; and,.
b) The phrase "LAKE CANDLEWOOD" shall mean the principal
impoundment of water on Lot 303 up to the OWNERS' PROPERTY in
said Candlewood subdivision, upstream of the DAM and commonly
referred to as"Lake Candlewood;" and,
c) The phrase "the DAM" shall refer to the flood control structure located in
said Candlewood subdivision.
2. The OWNERS hereby grant to the GRANTEES a permanent easement consisting
of the right to operate, maintain, repair, replace and patrol the DAM and store flood waters on
the OWNERS' PROPERTY in the event of heavy rainfall or other natural occurrence which
causes high water in LAKE CANDLEWOOD and floods OWNERS' PROPERTY. The
DRAFT 7.2.99
OWNERS hereby agree, acknowledge and consent to release the GRANTEES from and against
any and all liability, cause of action, claims, and expenses for loss of or damage to the
OWNERS' PROPERTY and other property of the OWNERS' caused by such flood water and
consequences thereof, including, without limitation, loss of or damage to buildings and other
structures and the contents thereof, to fixtures, landscaping, lighting, fish and wildlife habitat,
retaining walls,drainage improvements, paving, gazebos, ramps, docks, decks, lifts, and to boats,
other recreational equipment and all such other personal property located on OWNERS'
PROPERTY.
3. It shall be the intent of the CITY and NRD to generally maintain the principal
spillway at its historical elevation of 1087.0 feet above mean sea level, and the emergency
spillway at the elevation specified by the engineering requirements of the State of Nebraska for a
100 year storm event, and nothing shall be done by the CITY. the NRD or their successors and
assigns to permanently alter such principal spillway elevation or emergency spillway elevation
without written approval by CHA, which approval shall not be unreasonably withheld. The
agreements contained in this paragraph shall be deemed to be a part of the consideration for the
granting of this Permanent Easement. Filing this Permanent Easement with the Register of
Deeds by the CITY or NRD shall be deemed to be acceptance of the terms of this paragraph in
the same manner as if those parties were signatory to this document.
4. Any and all subsequent purchasers of OWNERS' PROPERTY acknowledge,
consent and accept (a) the GRANTEES' right to exercise the provisions set forth in paragraph 2,
above, and (b) OWNERS' release and covenants as set forth in paragraph 2, above, by virtue of
acceptance of an interest in the OWNERS' PROPERTY.
5. The OWNERS warrant that they are the owners of the OWNERS' PROPERTY
and that they have good right to grant the aforesaid easement rights over the same; and, that the
OWNERS will warrant and defend the title of the GRANTEES to the aforesaid easement rights
against all lawful claims and demands of all persons whomsoever.
6. The consideration recited herein shall constitute payment in full for all damages,
whether known, unknown or contingent, sustained by the OWNERS by reason of the exercise by
GRANTEES of all rights and privileges herein described or granted.
7. The easements granted herein shall run with the land, and shall inure to the
benefit of, and be binding upon, the parties and their respective heirs, successors, personal
representatives and assigns, and their agents and contractors.
8. No waiver of any breach of any of the covenants contained in this instrument shall
be construed as or constitute a waiver of any other breach, or a waiver, acquiescence or consent
to any further or succeeding breach of the same or any other covenant.
9. If any term or provision of this instrument shall, to any extent, be held invalid or
unenforceable, the remaining terms and provisions thereof shall not be affected thereby, but each
remaining term or provision shall be valid and enforceable to the fullest extent permitted by law.
DRAFT 7.2.99
Executed on this day of , 1999.
OWNERS:
STATE OF NEBRASKA )
) ss.
COUNTY OF DOUGLAS )
The foregoing instrument was sworn and acknowledged before me this day of
, 1999, by
Notary Public
r
40,0C # a 30l,
l l
c-2sk' '' CITY OF OMAHA
LEGISLATIVE CHAMBER
Omaha,Nebr 19
RESOLVED BY THE CITY COUNCIL OF THE CITY OF OMAHA:
•
WHEREAS,The City of Omaha is in the process of annexing the territory of Sanitary
and Improvement District Number 236 of Douglas County,Nebraska including land owned by the
Candlewood Homeowners Association and the homes of its members; and,
WHEREAS, such land being annexed includes the Candlewood Lake and Darn
Complex, including public and private land, which is within the area of the Papio-Missouri River
Natural Resources District, and over which all such parties have negotiated an agreement to provide
for responsibilities for, and use and maintenance of, the Candlewood Lake and Darn.
NOW,THEREFORE,BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF OMAHA:
THAT, the City Council of the City of Omaha does hereby approve the attached
agreement among the City of Omaha,the Papio-Missouri River Natural Resources District, Sanitary
and Improvement District Number 236 of Douglas County Nebraska and the Candlewood
Homeowners'Association dealing with the responsibilities for, and use and maintenance of, the
CandlewoodLake and Dam.
APPROVED AS 0 FORM:
if
ITY ATTORNEY DATE
P:\LAW\9094.SAP
By Q27cmnk
1L
Councilmember
Adopted AUG...24 1999 /, .. 8. =2 yeas: Azad, - /4 i/a(t<j) eci
4 a Sam, WhAa it
ty Cler;: /
Approved , . .•- 430
•
�' Mayor
. - -. 1,,... ,... 5
g.-4-, . 7z) PE 6:1' F.%x„,-,,,cti
!'• (.1) , 6,
-;•‘,
• ,I, V >_, noE0Tici) ° ,,D •
•:,
to. — . ,,,, ,T4'
: r a,2 : : r! ,:,„.0 ! a' „%ci-
' o,‘ k. --,
,
. gzt : .0
G-) .-, ,.
0 ,,
tzt\.— 6° ;
'`,•Z k ,.. izis 5- ,
NPc.i .' '''
‘q " s M .C4 :0'.. cl,'F17. il :8-; ,;..i,. 0: ::,-C"). ;.,, ::.,,c-)
" ,-, . ,.., , .-•
> ,::° ‘,0,-9(4 : c.A., : :C D ,.:° p0" on
5' 5., u) ''' 0 r---:
k..M
cD i
'.-.:.:1*. ..':1\4: ..:: CCD: i ---...c)\ ww '' ,..>. 0 5, 1/4) 0 5
• .... , =• C.A..) . pa ,CD (-)
•
: .,„, Ps • — q.7.. -• n 0, (11,..o — :z.,-
.• ,, (IQ i2 0 P 5* n, `<
. . .
i
.
. ,. .
• : -...,.. CP., 0 21 '6,'• 0 0 .,
• 0 ^- 0 --G Eil )-t 0
:. , 0 01:;, po 2 $1.) •
..,-,) 0 sa. rn fa, 4. ,•=,. Po
•• .2 . . . ''''I
. .. ,
, t
f
'‘....<
-7:-
' 1 \\\ i
,.
--•_________