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HomeMy WebLinkAboutSTANDARD TEXTILE AUGUSTA CANAL September _28, 2006 AGREEMENT FOR DELIVERY OF WATER THROUGH THE AUGUSTA CANAL STATE OF GEORGIA, COUNTY OF RICHMOND 11- ~I THIS AGREEMENT made and entered into this ~ day of IVPv~Je~, 2006, by and between AUGUSTA, GEORGIA, a political subdivision of the State of Georgia, hereinafter referred to as "Grantor", and STANDARD TEXTILE AUGUSTA, INC. a corporation organized and existing under the laws of the State of Georgia; hereinafter referred to as "Grantee"; WITNESSETH: WHEREAS, the Grantor owns and operates the Augusta Canal and the dam at the head of said Canal; and WHEREAS, Grantee operates a mill located adjacent to the aforesaid Canal and desires to enter into an agreement with the Grantor whereby Grantor agrees to supply certain amounts of water to Grantee through said Canal; and WHEREAS, the Augusta-Richmond County Code provides certain terms, conditions, restrictions and limitations relating to the use of the water channeled through the aforesaid Canal; and WHEREAS, the parties desire that additional terms, conditions and restrictions relating to the use of this water be set forth. NOW, THEREFORE, for and in consideration of the mutual promises and covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: SECTION I. GRANT OF RIGHT; TERM. Grantor herein does hereby grant and lease to the Grantee, the right of using and deriving water power from water channeled through the Augusta Dam and Canal for a period ending December 31, 2011, in accordance with the following terms, conditions, restrictions and limitations. 1 SECTION II. BULKHEADS: Grantee shall draw water from the Canal to Grantee's operations through a bulkhead. All bulkheads hereafter constructed or all existing bulkheads hereafter repaired by the Grantee shall be constructed or repaired in accordance with plans approved in advance by the Augusta Utilities Department (the "Utilities Department") . Grantee shall have on site, at all times during which a bulkhead is being constructed or work is being performed on a bulkhead, a qualified inspector who has been approved by the Utilities Department. The Utilities Department shall have the right to inspect any such work performed under this Section at any time deemed necessary. SECTION III. INDEMNITY BOND: Prior to commencing any work on the Canal or any appurtenances thereto, Grantee shall execute in favor of Augusta, Georgia, an indemnity bond in an amount and on a form approved by the City Attorney. Said bond shall by its terms and conditions agree to indemnify and hold Augusta, Georgia safe and harmless against any loss or damage to any person or property occasioned by such work. Said bond shall also by its terms and conditions agree to reimburse the Grantor for any repairs necessitated to the Canal as a result of any such work done by Grantee. SECTION IV. TOWING PATH: Grantee shall not erect any building or other fixture of any type or description on the land immediately adjacent to the Canal, from the Harrisburg Bridge to Coleman's Branch, within ninety (90) feet of Canal water or the first level of said Canal, all of said land being part of a public road known as the "Towing Path"; provided, however, nothing herein shall prevent the maintenance or repair of all existing buildings or fixtures. This ninety foot strip shall be reserved for a highway and towing path and any water herein granted to the Grantee shall be conveyed from Grantee's bulkhead in such a way as not to interfere or obstruct passage along and over the aforesaid Towing Path. Any and all pipes or other means of conveying water from the Grantee's bulkhead under the aforesaid Towing Path shall be constructed in a good and workmanlike manner free of all leaks and kept in good repair by the Grantee. Additionally, Grantee agrees to keep all pipes or other methods of conveyance of said water from the Grantee's bulkhead to Grantee's turbines free of leaks and in good repair and in the event any leaks should occur in any of the structures through which water is conveyed to Grantee, Grantee shall immediately cease obtaining or conveying any water from the Canal until said leaks are repaired. 2 SECTION V. TAIL RACES: All tail races conveying water for Grantee's turbines shall be maintained by Grantee. (Grantee shall keep all tail races maintained and cleaned such that no more water than is allocated to and necessary for Grantee shall be used. The Utilities Department shall have the right to inspect all tail races as it deems necessary in order to ensure compliance with this Section. SECTION VI. RIGHT OF ENTRY FOR INSPECTION: The Grantee grants unto Grantor the right to enter at any and all times upon Grantee's premises for the purpose of inspecting the bulkhead cylinders, forbays, flumes, turbines, water gates, tail races and each and every other structure connected with the use of water from the Canal and conveyance of said water to the Grantee's premises and from the Canal. SECTION VII. DETERMINATION OF THE AMOUNT OF POWER USED: The amount of power used by the Grantee shall be determined by utilizing the rated horsepower of the turbines used by Grantee. SECTION VIII. CONSTRUCTION OF GRANT AND MAINTENANCE OF DAM AND CANAL: The grant of power made by the Grantor herein is subject to all prior grants made by the Grantor and to the natural and providential changes in the River and to all other reservations as provided for herein. The Grantor does not intend to nor does the Grantor grant anything beyond the capabilities of the Dam or the head of the Canal and the Canal, both of which the Grantor herein agrees to maintain. SECTION IX. RESERVATION OF WATER FOR USE BY THE GRANTOR: The Grantor hereby reserves for the use of the Grantor enough water from the first and second levels of the Canal to drive the pumps of the Grantor's waterworks and to supply the reservoir of the Waterworks with water at all times. These rights shall have precedence over all the grants of water made by the Grantor on the first and second levels of such Canal. The Grantor also reserves the right to supply all of the needs of Grantor for water for any purpose from any level of the Canal and this right shall have precedence over all the grants made by Grantor over any level of the Canal. SECTION X. RIGHT OF GRANTOR TO CAUSE SHUTDOWN: Grantor reserves the right to cause a shutdown of 3 Grantee's access to water from the Canal for a period chosen by Grantor and which period shall not exceed two (2) weeks in duration. Grantor shall provide Grantee with written notice of any two-week shutdown period no later than 30 days prior to the beginning of said period. SECTION XI. ADJUSTMENT OF RATES FOR GRANTEE DOWNTIME: Grantor recognizes that certain periods of downtime may occur during the term of this Agreement due to outages or maintenance requirements. Grantor agrees that Grantee's rates as set out herein shall be adjusted on a per horsepower basis for any such downtime. SECTION XII. INSPECTION OF FACILITIES AND AMOUNT OF WATER USED: The Grantor is hereby granted the right to inspect all of the facilities of the Grantee used in connection with the taking of water by Grantee from the Canal and to prevent, by any lawful means, the Grantee from using any facility that is capable of drawing or discharging more water than Grantee is entitled to draw under this grant. No increase in the amount of water used is to be permitted to Grantee pursuant to the terms of this agreement and any such contemplated increase must be negotiated with the Grantor and reflected in an entirely new agreement. SECTION XIII. EXPLOSIVES; NUISANCES: No part of the premises bordering the Canal or the ninety-foot strip designated as a Towing Path shall be used for the storage or manufacture of explosive fluids, mixtures or substances of any kind, or for any purpose that shall be a nuisance. SECTION XIV. MEANING OF SURFACE OF CANAL; LOWERING THE ESTABLISHED SURFACE WATER LINE. The surface of the Canal mentioned in this section is understood to be the established surface water line as hereinafter described. If at any time the water shall not be kept up to the established line and it shall be found by the Grantor impossible to maintain that line while granting to all franchisees of the Grantor the right to use the volumes of water as contained in their grants, then it is agreed that Grantor may establish a different surface water line at a lower elevation and the Grantee shall only be entitled to draw such quantity of water so as to enable Grantor to give each grantee their same proportion of the total that each had at the higher elevation. SECTION XV. ESTABLISHED SURFACE WATER LINE: 4 The established surface water line in the Canal is to be an inclined plane having the spill of the Dam across the River for its summit and from thence falling at the rate of one hundredth of a foot per one hundred feet to the lower end of the Canal. SECTION XVI. CLEARANCE OF OBSTRUCTIONS AND REPAIRS OF THE CANAL ETC: Notwithstanding any provisions herein to the contrary, the Grantor hereby reserves the right at any time to draw as much water as necessary from the Canal when Grantor in its sole discretion deems it necessary to clear out any obstructions in the Canal, to repair or improve any part of the Canal, or at any other time or for any other purpose when Grantor deems it necessary or in its best interest or in the best interest of the Canal to draw said water out, and Grantor shall not be liable for any damages to the Grantee for drawing water out of the Canal as provided for above. Grantor shall provide Grantee no less than 10 days' notice should it intend to exercise the right reserved in this Section, except in the case of emergency. SECTION XVII. KEEPING CANAL SUPPLIED WITH WATER: Except as otherwise herein provided the Grantor shall keep the Canal supplied with water in a quantity sufficient to supply all grantees with all the water granted to the grantees by Grantor, so far as the water in the River above the Dam will fill the Canal to the established surface water line above mentioned, subject to any limitations, requirements, or limitations proposed by the Federal Energy Regulatory Commission. SECTION XVIII. AMOUNT OF WATER GRANTED TO GRANTEE: The amount of water conveyed to Grantee at any time shall not exceed a maximum volume rate of fifty-two thousand eight hundred sixty cubic feet per minute, except as may be changed pursuant to other provisions herein. SECTION XIX. RESTRICTION ON USE: Any power generated by Grantee pursuant to the terms and conditions of this agreement shall be generated for use only in connection with Grantee's business operations located at King Mill, 1701 Goodrich Street, Augusta, Georgia. Grantee shall not sell, assign or otherwise transfer any power generated pursuant to the terms and conditions of this agreement to any other entity whatsoever without the consent of Grantor; provided, however, nothing herein shall prohibit Grantee from selling excess power to the Georgia Power Company or other electric utility company. SECTION XX. PAYMENTS AND RATES: 5 For and in consideration of the power granted under this agreement, the Grantee shall pay Grantor a flat fee per day or part day for use of the water channeled to Grantee through the Augusta Canal. Said rate shall be calculated at a rate of 89 per rated horsepower (3300) for each day for use of the water channeled to Grantee through the Augusta Canal. The fee to be paid to Grantor pursuant to this agreement shall be paid quarterly on the first day of January, April, July and October for the preceding quarter. Payments as required hereunder shall be made to the Utilities Department. SECTION XXI. VENUE: All claims, disputes and other matters in question between the parties hereto arising out of or relating to this Agreement, or the breach thereof, shall be decided in the Superior Court of Richmond County, Georgia. Grantee, by executing this Agreement, specifically consents to venue in Richmond County, Georgia and waives any right to contest venue in the Superior Court of Richmond County. SECTION XXII. TERMINATION: This agreement may be terminated by either party hereto upon twenty-four (24) months written notice given to the other party. [SIGNATURES ON NEXT PAGE] 6 WHEREFORE, the parties have set their hands and seals as of the date first above written. Attest, /)chfY IJ ~ ~. Clerk AUGUSTAj2GEORGIA By, { ~4.#- As its Ma r ~ Sworn to and subscribed before me this L1fL. day of .5"Ah,...he/ , 2006. ~/k- L ~ NOTARY PUBLIC, MY COMMISSION EXPIRES: N/4 .~,a,,,'I1'..r"IP'r.. .....:{,~f\IAL S~"" /~o '1;\ I >0.; \ WALTER ERIC SPIEGEL ! ! Attorney at law \ ! Notary Public. state of Ohio \.\$1 I My Commission Has No Expiration "'~ Of '/ Section 147.03 R.C. ........".,.,...."'" 7 ng BURNSIDE WALL LLP IlADATTORNEYS AT LAW Thomas R. Burnside, Jr., P.c. James B. Wall, P.c. James W. Ellison Thomas R. Burnside, III Mark B. Williamson P.O. Box 2125 ~ugusta,(J~.30903 Telephone:(706) 722-0768 Facsimile: (706) 722-5984 www.burnsidewall.com OFFICE: 454 (Jreene Street Robert C. Daniel, Jr. (1943-1993) November 22,2006 Mr. Walter E. Spiegel Vice-President and General Counsel Standard Textiles Co., Inc. One Knollcrest Drive P. O. Box 371805 Cincinnati, Ohio 45222 RE: Agreement between Augusta and Standard Textile Augusta, Inc. Dear Walter: . I am enclosing an original fully executed copy of the Agreement for Delivery of Water Through the Augusta Canal which was approved by the Commission on November 9,2006. With best personal regards, I am Yours very tDlly, JBW/sjp Enclosure cc: Mr. Drew Goins (with enclosure) Mr. Dayton Sherrouse (with enclosure) Mr. Steve Shepard (with enclosure Ms. Lena Bonner (w/o enclosure)