ORD 39537 - Interlocal Damsite 15-A NW of 168th and Fort Streets - Flannagan Lake P ,
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® �,[� AldF December 4 2012 Omaha,Nebraska 68183-0601
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OR'rED FEBRA4 Fax(402)444-5248
City of Omaha Robert G.Stubbe,P.E.
Jim Suttle,Mayor Public Works Director
Honorable President
and Members of the City Council,
Transmitted herewith is an Ordinance approving an Interlocal Agreement between the City of Omaha and
the Papio-Missouri River Natural Resource District (PMRNRD) regarding the design, construction,
ownership, operation and maintenance of the proposed Damsite 15-A and related structures, located
approximately northwest of 168th and Fort Streets.
This Agreement, as approved by the PMRNRD Board of Directors on November 8, 2012, sets out
responsibilities of both the City and the PMRNRD in regard to this project in which the PMRNRD will
act as the lead agency for design, permitting and construction of the project structures. The Parks,
Recreation and Public Property(PRPP)Department will be responsible for the cost of design of proposed
Recreational Improvements for the future Community Park 26, to be paid through currently budgeted
funds following approval of final design, as delineated in the attached Agreement. Construction of the
designed recreational improvements for the Community Park will be by the PRPP Department as deemed
appropriate upon future development at the Damsite 15-A location. The PRPP Department will
furthermore take over ownership, operation and maintenance of the Damsite property and improvements
constructed by the PMRNRD as designated in the Agreement.
The PMRNRD will furthermore design and construct a portion of a sanitary smer extension which will
run through a section of the dam itself. An engineering analysis deemed the proper and necessary
alignment for future development required the planned alignment through the dam. This analysis
furthermore demonstrated that the safest and most cost-effective method of providing this extension is to
construct it as a part of the project currently proposed. The PMRNRD will design and construct the
extension and the Public Works Department will be responsible for the percentage of the project cost
related to the estimated cost of the sewer extension. This cost will be payable in three annual
installments, the first of which will be after acceptance of final completion of the project. This cost is
currently programmed to be paid from the Interceptor Sewer Fund, with payments projected in years
2015, 2016, and 2017, subject to permit issuance and construction completion timelines.
The Public Works and PRPP Departments request your consideration and approval of the attached
Ordinance and Interlocal Agreement.
Respectfully submitted,
1 I —;--L,_
.� ! 7—and 11 ,l
Robert G. Stubbe, P.E. Date Brook Bench, Acting Direct, or Date
Public Works Director Parks, Recreation& Public Property
Approv : Re' red,.tZ City Council for ,onsideration:
+' - ._ //:-62-11/... _. /. 2 7 /2._.
Pam Spaccarotella .90.114 Date Mayor's (4ffic ' Date
Finance Director
2056htp
ORDINANCE NO. 09,5137
AN ORDINANCE approving an Interlocal Agreement between the City of Omaha and Papio-
Missouri River Natural Resource District (PMRNRD) involving the payment of money
from appropriations of more than one year in accordance with Section 5.17 of the Home
Rule Charter of 1956, as amended; to provide for the terms and conditions under which
Omaha and the PMRNRD will participate in a project for establishment, ownership and
maintenance of the proposed Damsite 15-A and related structures, located approximately
northwest of 168th and Fort Streets; to authorize the Finance Department to pay the
specific cost shares of Parks, Recreation and Public Property and the Public Works
Departments to the PMRNRD from the respective Departmental funds according to the
disbursement terms contained within the Agreement; and to provide an effective date
hereof.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF OMAHA:
Section 1. That the City Council of the City of Omaha hereby approves the Interlocal
Agreement between the City of Omaha and Papio-Missouri River Natural Resource District
(PMRNRD), which by this reference is made a part hereof, that outlines the terms and conditions
under which Omaha and the PMRNRD, will participate in a project for the design, construction,
ownership, operation and maintenance of the proposed Damsite 15-A and its related structures
and facilities, located northwest of 168th and Fort Streets.
Section 2. The Finance Department is authorized to make payments to the PMRNRD
for this project involving appropriations of more than one year, which is authorized in accord
with Section 5.17 of the Home Rule Charter of 1956, as amended.
ORDINANCE NO. c39
PAGE 2
Section 3. That the City of Omaha shall make payments to the PMRNRD for the
Parks, Recreation and Public Property and the Public Works Departments' specific cost shares in
the project from the respective Departmental funds according to the disbursement terms outlined
in the Agreement.
Section 4. That this Ordinance, being administrative in character shall take effect and
be in full force upon the date of its passage.
INTRODUCED B COUNCILMEMBER
APPROVED BY:
PASSED DEC 1 8 2012 MA Y OF MAHA DATE
ATTEST:
/9
CI Y CLERK OF THE CITY OF OMAHA DATE
APPROVED AS TO FORM:
s'J
/
TY ATTORNEY DATE
2055htp
INTERLOCAL COOPERATION ACT AGREEMENT
BETWEEN
THE PAPIO-MISSOURI RIVER NATURAL RESOURCES DISTRICT,
AND
THE CITY OF OMAHA, NEBRASKA
FOR
PAPIO WATERSHED DAM SITE 15A
THIS INTERLOCAL COOPERATION ACT AGREEMENT ("THIS
AGREEMENT") is made pursuant to the Nebraska Interlocal Cooperation Act,
Neb. Rev. Stat. Secs. 13-8oi to 13-827, et seq., by and between the following
parties ("the PARTIES"), to wit: the PAPIO-MISSOURI RIVER NATURAL
RESOURCES DISTRICT ("the NRD") and the CITY OF OMAHA,
NEBRASKA ("the CITY").
RECITALS:
WHEREAS, the NRD commissioned the Papillion Creek Multi-Reservoir
Analysis, which was completed in September 2004 and which identified the need
for flood control within the rapidly developing Papillion Creek watershed; and,
WHEREAS, the Implementation Plan of the Papillion Creek Watershed
Partnership's Watershed Plan has identified flood control projects to be
completed within the three year period 2011-2013; and,
WHEREAS, such identified projects include a multi-purpose flood
control and recreational dam ("the DAM") and reservoir ("the RESERVOIR")
project, including an associated water quality basin ("the WATER QUALITY
BASIN"), that the PARTIES desire to have constructed by the NRD on a site near
168th Street and Fort Street in Douglas County (collectively, "the DS-15A
PROJECT"); and,
nrdizno9agi5A 1
WHEREAS, the PARTIES desire to provide herein for the cooperative
design, construction, operation, maintenance, repair, replacement, regulation
and ownership of the DS-15A PROJECT and to specify the rights, duties and
obligations of the PARTIES in connection therewith.
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. PROJECT PARTICIPANTS. The DS-15A PROJECT shall be
undertaken by the PARTIES, as provided herein, without any separate entity being
created, and the duties and responsibilities of the PARTIES with respect to the DS-
15A PROJECT shall be as defined by THIS AGREEMENT.
2. PROJECT LAND. The DS-15A PROJECT shall be constructed on
parcels of land in Sections 20, 28, 29 and 33, all in Township 16 North, Range 11
East of the 6th P.M. in Douglas County, Nebraska ("the PROJECT LAND"),
conceptually depicted in the document attached hereto as Exhibit "A" and
incorporated herein by reference.
3. PRINCIPAL PROJECT COMPONENTS. The DS-15A PROJECT
shall consist of the design, construction, and engineering observation and
administration of construction, at the NRD'S sole cost and expense, of the
following principal project components, to-wit:
a) the DS-15A PROJECT DAM, RESERVOIR and WATER
QUALITY BASIN on the PROJECT LAND; and,
b) wetland, channel, and riparian mitigation improvements ("the
MITIGATION IMPROVEMENTS") on the PROJECT LAND required
by the U. S. Army Corps of Engineers ("the CORPS") as a condition
precedent to the issuance of a Section 404 permit for the DS-15A
PROJECT; and,
nrdi2iio9agl5A 2
c) elevated roadway and bridge improvements on the PROJECT
LAND, along the current alignment of Ida Street (the "IDA STREET
IMPROVEMENTS"), replacing the existing Ida Street road
improvements that would be submerged in the RESERVOIR as the result
of the filling thereof; and,
d) basic recreational improvements that the NRD desires to have
constructed at its own cost and expense for its own public purposes on the
PROJECT LAND (the "NRD'S RECREATIONAL IMPROVEMENTS"),
which include a bicycle-pedestrian trail around the RESERVOIR, in-park
access roads to recreational improvements, a boat ramp, two picnic areas,
two shelters, two rest rooms, two parking lots and fishery enhancements .
4. CURRENT ANCILLIARY PROJECTS. During NRD design of the
DS-15A PROJECT, the NRD, at CITY cost and expense, shall design sanitary
sewer facilities, for construction on the PROJECT LAND (the "CITY'S
SANITARY SEWER FACILITIES") to the reasonable satisfaction of the CITY.
5. FUTURE ANCILLIARY PROJECTS. During the NRD's design of
the DS-15A PROJECT, the NRD, at CITY cost and expense, shall design
additional recreational improvements as the CITY intends to construct in the
future at CITY cost and expense for the CITY'S own public purposes on the
PROJECT LAND (the "CITY'S RECREATIONAL IMPROVEMENTS").
6. OTHER ANCILLIARY PROJECTS. During the NRD's design of the
DS-15A PROJECT, the NRD shall make allowances in such design as the CITY
deems appropriate to facilitate future design and construction of extensions of
i8othStr eet between Ida and State Streets and HWS Cleveland Boulevard
between Fort and Ida Streets. The NRD shall grant to DOUGLAS COUNTY, its
successors and assigns, such easements and rights of way over PROJECT LAND
as may be needed for road improvements.
nrdi211o9agi5A 3
7. GENERAL BENEFIT. The PARTIES do hereby find and agree
that the DS-15A PROJECT, as herein described, will be of general benefit to the
NRD with only an incidental special benefit.
8. THE ENGINEERS. The NRD shall retain engineering consultants
("the ENGINEERS"), approved by the CITY, to design the DS-15A PROJECT and
to prepare plans and specifications and contract documents for, and administer
construction of, the DS-15A PROJECT.
9. PRELIMINARY PLANS. The ENGINEERS shall prepare
preliminary plans and specifications for the DS-15A PROJECT (collectively, "the
PRELIMINARY PLANS"), in accordance with the provisions of THIS
AGREEMENT, subject to the following:
a) The PRELIMINARY PLANS shall be drawn in accordance with
design criteria provided by the General Manager of the NRD.
b) The PRELIMINARY PLANS shall be in general compliance with
applicable Nebraska state and federal statutes, rules and regulations.
c) The PRELIMINARY PLANS shall be in accordance with CITY
design standards, rules and regulations.
d) The PRELIMINARY PLANS shall include plans, provisions or
allowances for the principal components of the DS-15A PROJECT and for
the CITY'S SANITARY SEWER FACILITIES.
10. APPROVAL OF PRELIMINARY PLANS. After the
ENGINEERS' completion of the PRELIMINARY PLANS, and approval of the
same by the NRD, the PRELIMINARY PLANS shall be submitted to the CITY for
its written approval, such approval to not be unreasonably withheld or delayed.
11. PREPARATION OF FINAL PLANS. After receipt by the NRD
of the CITY'S written approval of the PRELIMINARY PLANS, the NRD shall
direct the ENGINEERS to prepare final plans and specifications for the DS-15A
nrdizio9agi5A 4
PROJECT (collectively, "the FINAL PLANS"), in accordance with the provisions
of THIS AGREEMENT, subject to the following:
a) The FINAL PLANS shall be drawn in accordance with design
criteria provided by the General Manager of the NRD.
b) The FINAL PLANS shall be in general compliance with
applicable Nebraska state and federal statutes, rules and regulations.
c) The FINAL PLANS shall be in accordance with CITY design
standards, rules and regulations.
d) The FINAL PLANS shall include plans, provisions or allowances
for the principal components of the DS-15A PROJECT and for inclusion
therein of the CITY'S SANITARY SEWER FACILITIES.
e) The FINAL PLANS shall include legal descriptions of the
PROJECT LAND to be acquired by the NRD at the NRD'S sole cost and
expense, as needed for the principal components of the DS-15A PROJECT,
and for the CITY'S SANITARY SEWER FACILITIES.
f) The FINAL PLANS shall include a comparison, the result of
which (the "SANITARY SEWAGE FACILITIES FRACTION") may be
expressed as a fraction or percentage, showing:
i) as the numerator, the ENGINEERS' estimate of the total
combined cost of design, construction and engineering observation
and administration of construction of the CITY'S SANITARY SEWER
FACILITIES; and,
ii) as the denominator, the ENGINEERS' estimate of the
total contract cost of construction of the DS-15A PROJECT and the
CITY'S SANITARY SEWER FACILITIES.
12. APPROVAL OF FINAL PLANS FOR PROJECT. After the
ENGINEERS' completion of the FINAL PLANS and approval of the same by the
nrdr2uo9agl5A 5
NRD, the FINAL PLANS shall be submitted to the CITY for its written approval.
The CITY shall have a period of 30 days to review and approve or disapprove the
same in writing or suggest amendments thereto. Such approval shall not be
withheld or delayed unreasonably.
13. CONSTRUCTION CONTRACT. After receipt by the NRD of the
CITY'S written approval of the FINAL PLANS, the NRD shall deliver to the CITY
for its approval (such approval to not be withheld or delayed unreasonably) the
NRD'S proposed contract documents ("the CONTRACT DOCUMENTS") for
competitive bidding for construction of the DS-15A PROJECT and the CITY'S
SANITARY SEWER FACILITIES. The CITY shall have a period of 10 days to
review the CONTRACT DOCUMENTS and to approve or disapprove the same in
writing or suggest amendments thereto. Such approvals shall not be withheld or
delayed unreasonably.
14. CONSTRUCTION OF THE DS-15A PROJECT. After the CITY'S
approval of the CONTRACT DOCUMENTS, and in accordance with the NRD'S
purchasing regulations, the NRD will seek competitive bids for construction of the
DS-15A PROJECT and the CITY'S SANITARY SEWER FACILITIES. The NRD
shall award the contract for such construction to the bidder that the NRD
determines provides the lowest responsible bid.
15. CONTRACTOR'S WARRANTIES. The NRD shall enforce all
bonds and warranties given by the CONTRACTOR(S) and their subcontractors in
the CONSTRUCTION CONTRACT(S), including without limitation bonds and
warranties given in connection with or pertaining to the CITY'S SANITARY SEWER
FACILITIES.
16. ALLOCATION OF COSTS. Except as otherwise provided in
THIS AGREEMENT,
nrdrziiogagiyl 6
a) the NRD shall pay, without CITY reimbursement, all the costs of
acquisition of PROJECT LAND and of design and construction of the DS-15A
PROJECT;
b) the NRD shall pay, and the CITY shall reimburse the NRD for,
the costs of design of the CITY'S RECREATIONAL IMPROVEMENTS,
previously estimated by the ENGINEERS in the amount of$25,154.00; and,
c) the NRD shall pay, and the CITY shall reimburse the NRD for
the costs of design, construction, engineering observation and administration
of construction of the CITY'S SANITARY SEWER FACILITIES, such
reimbursement to be computed by multiplying the total combined actual
contract cost to the NRD of construction of the DS-15A PROJECT and the
CITY'S SANITARY SEWER FACILITIES by the SANITARY SEWER
FACILITIES FRACTION.
17. PAYMENT OF COSTS. Reimbursement by the CITY for the actual
costs of design of the CITY'S RECREATIONAL IMPROVEMENTS shall be due and
payable to the NRD within sixty (6o) days after the CITY'S approval of the final
plans. Reimbursement by the CITY for the costs of design, construction,
engineering observation and administration of construction of the CITY'S
SANITARY SEWER FACILITIES, shall be due and payable to the NRD in three (3)
equal annual installments, to-wit: the first installment shall be due and payable
sixty (60) days after issuance of the engineering certificate of substantial
completion of the DS-15A PROJECT and the CITY'S SANITARY SEWER
FACILITIES; and, the second and third installments shall be due and payable on
the respective subsequent anniversaries of the due date of the first installment.
18. CONSTRUCTION OBSERVATION. The NRD will provide for
engineering observation and administration of construction of the DS-15A
PROJECT and the CITY shall be given the opportunity to fully observe such
construction at all reasonable hours and upon its request contemporaneously
nrd2iiogagryl 7
receive from the NRD copies of all written communications between or issued by
the NRD and/or the ENGINEERS and/or the CONTRACTOR(S) pertaining to
such construction, including but not limited to statements by the ENGINEERS as
to percentage of completion and substantial completion.
19. PERMITS. The NRD, at its sole cost and expense, shall obtain all
of the parcels of land and all easements comprising the PROJECT LAND and all
other permits and rights-of-way, including without limitation, licenses,
easements, water rights, and permits or consents from the CORPS or other
federal, state or local agencies, as may be required or convenient for construction,
and/or for permanent operation and maintenance of the DS-15A PROJECT,
except for those needed solely for the CITY'S SANITARY SEWER FACILITIES.
20. OPERATION AND MAINTENANCE. After completion of
construction of the DS-15A PROJECT,
a) the NRD, at its sole cost and expense, shall permanently
operate, maintain, repair, replace and regulate the DAM, which shall be
deemed to consist of all that portion of the PROJECT LAND and all flood
control improvements located within the footprint of the DAM or within
the footprint of the WATER QUALITY BASIN'S structure, as the same are
depicted in the FINAL PLANS; and,
b) the NRD, at its sole cost and expense, shall operate, maintain,
repair, replace and regulate the MITIGATION IMPROVEMENTS during
the CORPS-required monitoring period and until they are finally accepted
by the CORPS. Thereafter, the CITY, at its sole cost and expense, shall
permanently operate, maintain, repair, replace and regulate the
MITIGATION IMPROVEMENTS; and,
c) the CITY, at its sole cost and expense, shall permanently
operate, maintain, repair, replace and regulate the remaining principal
nrdi2uo9agl5A 8
project components of the DS-15A PROJECT, including without
limitation:
i) the RESERVOIR, which shall be operated as a no-wake
lake;
ii) the NRD'S RECREATIONAL IMPROVEMENTS;
iii) the CITY'S RECREATIONAL IMPROVEMENTS;
iv) the WATER QUALITY BASIN, without any right or duty
to dredge the same for the purposes of maintaining open water; and,
d) the CITY, at its sole cost and expense, shall permanently
operate, maintain, repair, replace and regulate the CITY'S SANITARY
SEWER FACILITIES,
all as located on the remainder of the lands to be conveyed by the NRD to
the CITY in accordance with THIS AGREEMENT.
21. INDEMNIFICATIONS. The CITY shall defend, indemnify, and
hold the NRD harmless from and against all costs and expenses, including
attorneys fees and court costs, resulting from claims, demands or causes of action
for personal injury or property damage arising out of or resulting from the CITY'S
operation, maintenance, repair, replacement, or regulation of the principal
project components of the DS-15A PROJECT (excepting the DAM), and the
CITY'S SANITARY SEWER FACILITIES, and excepting such personal injuries or
property damages as may be caused by the negligence of the NRD. The NRD
shall defend, indemnify, and hold the CITY harmless from and against all costs
and expenses, including attorneys fees and court costs, resulting from claims,
demands or causes of action for personal injury or property damage arising out of
or resulting from the NRD's design or construction of the principal project
components of the DS-15A PROJECT, and from the NRD'S construction,
operation, maintenance, repair, replacement, or regulation of the DAM, and the
nrdi2uo9agl5A 9
MITIGATION IMPROVEMENTS (prior to their acceptance by the CORPS), and
excepting such personal injuries or property damages as may be caused by the
negligence of the CITY.
22. POST-CONSTRUCTION GRANTS AND CONVEYANCES.
Upon final completion of construction of the DS-15A PROJECT, the NRD shall
convey the PROJECT LAND to the CITY, except portions thereof conveyed to
Douglas County for road purposes, provided however,
a) in such conveyance the NRD shall reserve for itself and for its
successors and assigns the following permanent rights, to-wit:
i) the right to construct, operate, maintain, repair, replace,
and regulate the DAM in the PROJECT LAND (including the
WATER QUALITY BASIN'S structure),
ii) the right to have unrestricted use and access over and
across the PROJECT LAND by any route or means and for any
purpose referred to in THIS AGREEMENT; and,
iii) the right to flow waters and sediment upon, and
inundate, all those portions of the PROJECT LAND which have a
ground surface elevation lower than the elevation of the top of the
DAM ("the MAXIMUM POOL"); and,
iv) The right to enforce the following permanent restrictions,
to-wit:
(a) "REGULATORY POOL STRUCTURE
RESTRICTION. The CITY shall not construct, maintain or
permit structures, fixtures or other improvements, other than
recreational trail improvements, lighting, landscaping, boat
docking facilities and signage, in any areas of the PROJECT
LAND, within the watershed of the DAM, having a ground
nrdi2uo9agl5A 10
surface elevation lower than 1,180.5 feet above mean sea level,
NAVD 1988, which elevation parties agree is approximately one
foot (1') above the mean sea level elevation of the 500-year flood
pool of the RESERVOIR.
(b) REGULATORY POOL EXCAVATION AND FILL
RESTRICTION. The CITY shall not fill, nor permit filling of,
any areas of the PROJECT LAND, within the watershed of the
DAM, having a ground surface elevation lower than 1,180.5 feet
above mean sea level, NAVD 1988, without balancing such
placement with a permanent borrowing and removal of an
equivalent amount of earth fill from such areas, and without
the prior written approval of the NRD of the plans for such
activities, such approval to not be withheld or delayed
unreasonably.
(c) MAXIMUM POOL EXCAVATION AND FILL
RESTRICTION. The CITY shall not fill, nor permit filling of,
any areas of the PROJECT LAND, within the watershed of the
DAM, having a ground surface elevation higher than 1,180.5 feet
above mean sea level and lower than 1,187.0 feet above mean
sea level, NAVD 1988 (MAXIMUM POOL), without balancing
such placement with a permanent borrowing and removal of
an equivalent amount of earth fill from such areas, and
without the prior written approval of the NRD of the plans for
such activities, such approval to not be withheld or delayed
unreasonably."
b) Such conveyance(s) shall also include and be subject to the
following permanent restrictions on the lands occupied by the
MITIGATION IMPROVEMENTS required by the CORPS, that shall run
nrdi2iio9agi5A 11
with the PROJECT LAND and be binding upon the parties and their heirs,
successors and assigns, to-wit:
i) there shall be no construction or placement of
structures or mobile homes, fences, signs, billboards or other
advertising material, or other structures, whether temporary or
permanent, on the PROJECT LAND;
ii) there shall be no filling, draining, excavating, dredging,
mining, drilling or removal of topsoil, loam, peat, sand, gravel, rock,
minerals or other materials;
iii) there shall be no building of roads or paths for vehicular
or pedestrian travel or any change in the topography of the
PROJECT LAND;
iv) there shall be no removal, destruction, or cutting of
trees or plants, spraying with biocides, insecticides, or pesticides,
grazing of animals, farming, tilling of soil, or other agricultural
activity;
v) there shall be no operation of all-terrain vehicles or any
other type of motorized vehicle on the PROJECT LAND, other than
in roads and parking areas; and,
vi) these restrictions may be changed, modified or revoked
only upon written approval of the District Engineer of the Omaha
District of the CORPS and to be effective, such approval must be
witnessed, authenticated, and recorded pursuant to the law of the
State of Nebraska.
23. RISK OF LOSS. After completion of construction of the DS-15A
PROJECT and conveyance of PROJECT LAND to the CITY, the risk of loss of or
damage to components or facilities of the DS-15A PROJECT shall be borne by the
nrdi2uo9agi5A 12
party that has an obligation hereunder to operate and maintain such components
or facilities, whether such loss or damage results from flood or other casualty
whatsoever.
24. APPROVALS. Wherever THIS AGREEMENT speaks of approval
and/or consent:
a) such approval and/or consent by the CITY shall be provided
by act of the CITY'S Mayor, Public Works Director or Parks, Recreation,
and Public Property Director; and,
b) such approval and/or consent by the NRD shall be provided by
act of the General Manager of the NRD.
25. NONDISCRIMINATION. The PARTIES shall not, in the
performance of THIS AGREEMENT, discriminate or permit discrimination in
violation of federal or state laws or local ordinances because of race, color, sex,
age, disability under the Americans with Disabilities Act, political or religious
opinions, affiliations or national origin.
26. CAPTIONS. Captions used in THIS AGREEMENT are for
convenience and are not used in the construction of THIS AGREEMENT.
27. APPLICABLE LAW. The PARTIES to THIS AGREEMENT shall
conform to all existing and applicable state laws, federal laws, and all existing and
applicable rules and regulations. Nebraska law will govern the terms and the
performance under THIS AGREEMENT.
28. MERGER. THIS AGREEMENT shall not be merged into any other
oral or written agreement, lease or deed of any type.
29. MODIFICATION. THIS AGREEMENT contains the entire
agreement of the PARTIES. No representations were made or relied upon by
either of the PARTIES other than those that may be expressly set forth herein.
No agent, employee or other representative of any PARTY is empowered to alter
nrdr2uo9agi5A 13
any of the terms hereof unless done in writing and signed by an authorized officer
of such PARTY.
30. STRICT COMPLIANCE. All provisions of THIS AGREEMENT
and each and every document that shall be attached shall be strictly complied
with as written, and no substitution or change shall be made except upon written
direction from an authorized representative.
31. INVALID PROVISIONS. In the event that any covenant,
condition, or provision herein contained is held to be invalid by any court of
competent jurisdiction, the invalidity of any such covenant, condition, or
provision herein contained shall not affect the validity of the remainder of the
covenants, conditions or provisions of THIS AGREEMENT, which shall in all
respects remain a legally binding agreement with the invalid portion being
deleted; provided, however, that the validity of any such covenant, condition, or
provision does not materially prejudice either of the PARTIES in its respective
rights and obligations contained in the valid covenants, conditions, or provisions
of THIS AGREEMENT.
32. NON-WAIVER. No delay or failure by either of the PARTIES 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 of the PARTIES shall not be
deemed to extend the amount of time available to perform any other act required
under THIS AGREEMENT.
33. FURTHER AGREEMENTS. Each of the PARTIES will, whenever
and as often as the other may 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 the requesting
party may believe to be necessary, expedient or proper in order to complete any
and all conveyances, transfers, and assignments herein provided and to do any
nrdizilogagi5A 14
and all other acts and to execute, acknowledge and deliver any other documents
so requested in order to carry out the intent and purposes of THIS AGREEMENT.
34. TIME IS OF THE ESSENCE. Time is expressly declared to be of
the essence of THIS AGREEMENT.
35. EFFECTIVE DATE AND TERM. THIS AGREEMENT shall
become effective upon its execution by the PARTIES,and shall be perpetual in its
duration.
36. FUNDING. THIS AGREEMENT shall be conditional and dependent
upon the NRD'S determination that it has adequate funding for the DS-15A
PROJECT.
37. NOTICES. Any notice required under the terms of THIS
AGREEMENT shall be deemed to have been given within forty-eight (48) hours
after written notice has been deposited in the United States mail; and:
a) Notices to the CITY provided for in THIS AGREEMENT shall
be sufficient if sent by certified or registered mail, postage prepaid,
addressed to:
Director of Parks, Recreation and Public Property
City of Omaha, Nebraska
1819 Farnam Street, Suite poi
Omaha, Nebraska 68183;
and to:
Director of Public Works
City of Omaha, Nebraska
1819 Farnam Street, Suite 601
Omaha, Nebraska 68183;
b) Notices to the NRD provided for in THIS AGREEMENT shall
be sufficient if sent by certified or registered mail, postage prepaid
addressed to:
General Manager
Papio-Missouri River NRD
nrdi2uo9agr5A 15
8901 South 154th Street
Omaha, Nebraska 68138-3621
or to such other respective address(s) as the PARTIES may designate to
each other from time to time in writing.
38. INTERLOCAL COOPERATION ACT PROVISIONS. This
Agreement shall not create any separate legal or administrative entity. It shall be
administered jointly by the parties, through one representative to be designated
by and on behalf of each party. Each party shall separately finance and budget its
own duties and functions under this Agreement. There shall be no jointly held
property as a result of this Agreement. Upon termination, each party shall retain
ownership of the property it owns at the time of termination. This Agreement
does not authorize the levying, collecting or accounting of any tax.
IN WITNESS WHEREOF
THIS AGREEMENT is executed by the PAPIO-MISSOURI RIVER
NATURAL RESOURCES DISTRICT on this l(P.- day of AOVivnbt,v*
2012, pursuant to resolution duly adopted by its Board of Directors.
PAPIO-MISSOURI RIVER NATURAL
RE U ES DISTRICT
By
neral Manager
THIS AGREEMENT is executed by the CITY OF OMAHA, NEBRASKA on
this /9' day of .1)e0ey /' , 2012, pursuant to ordinance duly
adopted by its City Council.
CITY OF OMAHA, NEBRASKA By C°
'nor
nrdi2io9agi5P. 16
ATTES APPROVED AS TO FORM:
r9r-- ifit9./z__ (a(-17-- //—e7-(?
City Clerk DEPUTY CITY AT uiu_Y
STATE OF NEBRASKA )
) SS.
COUNTY OF P ou 44 X )
On this 1041 day of IUouP ctA tii✓ , 2012, before me, a
Notary Public, personally came JOHN WINKLER, General Manager of the
PAPIO-MISSOURI RIVER NATURAL RESOURCES DISTRICT, to me personally
known to be the identical person whose name is affixed to the above and
foregoing instrument, and he/she 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.
CIE GENERAL NOTARY-State of Nebraska
GERALD G.BOWEN JR
irSli My Comm.Exp,June 21,2014 Notary Public
STATE OF NEBRASKA )
) SS.
COUNTY OF )
On this f'(/'day of /ems , 2012, before me, a
Notary Public, personally came JAMES SUTTLE, Mayor of the CITY OF OMAHA,
NEBRASKA to me personally known to be the identical person whose name is
affixed to the above and foregoing instrument, and he acknowledged the same to be
his voluntary act and deed and the voluntary act and deed of said City.
WITNESS my hand and Notarial Seal the date last aforesaid.
GENERA.NOTARY-State of Nebraska . 'Z_cQ
CYNTHIA FORD THINNES Nota Public
my Comm.Exp.August 16,2015 �'
nrdizuo9agi5A 17