Water Commission
Regular MeetingGreen Bay, WI · August 11, 2025
Minutes
MINUTES OF THE WATER COMMISSION
MONDAY, AUGUST 11, 2025, 8:30 AM
In person at the Green Bay Water Utility.
631 S Adams St
Virtual attendance is also available via Zoom.
A. ZOOM MEETING INFORMATION.
1. Join Zoom Meeting Online:
https://zoom.us/j/98284055918?pwd=eHBxaWkvN1J2a3N0RERUWkRsNjVkUT09
Or call in by phone: +1 312 626 6799
Meeting ID: 982 8405 5918
Passcode: 385002
If you wish to speak at this public meeting or leave a comment, please fill out the online
Comment Form prior to the meeting. More detailed Zoom Instructions can be found online.
B. ROLL CALL.
1. Members: John Heugel, Jamie Wall, Jacque Boyle, Thomas Karman, Allen Farvour, Lynn
Gerlach, William Morgan, John Luczaj
On Monday, August 11, 2025, the Water Commission met in person and virtually via
Zoom. President Heugel called the meeting to order at 8:30 a.m. Recording Secretary Beilke
called the roll. Six voting commission members: President John Heugel (Virtually via Zoom),
Secretary-Treasurer Tom Karman (In Person), Jacque Boyle (Virtually via Zoom), Al Farvour
(Virtually via Zoom), Lynn Gerlach (In Person) and John Luczaj (Virutally via Zoom). Also
present: Alder Bill Morgan (Virtually via Zoom, non-voting), Council Representative to the
Water Commission, and Attorney William Vande Castle (Virtually via Zoom).
Staff present: Brian Powell, Doug Martin, Stephanie Rogers, Andrea Hay, and Russ
Hardwick.
C. APPROVAL OF THE AGENDA.
1. Approval of the agenda for the Monday, August 11, 2025, meeting of the Water Utility
Commission.
Moved by Lynn Gerlach, seconded by Allen Farvour to approve the agenda. Voice vote being
had, the motion passed unanimously.
D. APPROVAL OF MINUTES.
1. Approval of the minutes from the July 14, 2025 meeting.
Moved by Lynn Gerlach, seconded by Allen Farvour to approve the minutes. Voice vote
being had, the motion passed unanimously.
E. REGULAR BUSINESS.
1. Approval of the Water Service Agreement By and Between the City of Green Bay, the
Village of Hobart and the Village of Pulaski.
Moved by Thomas Karman, seconded by Jacque Boyle to approve the Water Service
Agreement and authorize the execution of the agreement. Voice vote being had, the motion
passed unanimously.
2. June 2025 Financial Report
Moved by Jacque Boyle, seconded by Thomas Karman to approve as presented. Voice vote
being had, the motion passed unanimously.
F. INFORMATIONAL.
1. General Manager Update
General Manager Brian Powell provided the commission with updates on the following
initiatives within our organization:
1. Whole Customer Update
2. WIAWWA Conference September 10th-12th
3. Workforce Report
a. Connie Wielgus - 35 Years, Billing & Records Coordinator
b. Safety Coordinator
G. ADJOURNMENT.
1. Adjournment of the Monday, August 11, 2025, meeting of the Water Utility Commission.
Moved by Jacque Boyle, seconded by Allen Farvour to adjourn. Voice vote being had, the
motion passed unanimously.
Agenda
AGENDA OF THE WATER COMMISSION
MONDAY, AUGUST 11, 2025, 8:30 AM
In person at the Green Bay Water Utility.
631 S Adams St
Virtual attendance is also available via Zoom.
A. Zoom Meeting Information.
1. Join Zoom Meeting Online:
https://zoom.us/j/98284055918?pwd=eHBxaWkvN1J2a3N0RERUWkRsNjVkUT09
Or call in by phone: +1 312 626 6799
Meeting ID: 982 8405 5918
Passcode: 385002
If you wish to speak at this public meeting or leave a comment, please fill out the online
Comment Form prior to the meeting. More detailed Zoom Instructions can be found online.
B. Roll Call.
1. Members: John Heugel, Jamie Wall, Jacque Boyle, Thomas Karman, Allen Farvour, Lynn
Gerlach, William Morgan, John Luczaj
C. Approval of the Agenda.
1. Approval of the agenda for the Monday, August 11, 2025, meeting of the Water Utility
Commission.
D. Approval of Minutes.
1. Approval of the minutes from the July 14, 2025 meeting.
E. Regular Business.
1. Approval of the Water Service Agreement By and Between the City of Green Bay, the
Village of Hobart and the Village of Pulaski.
2. June 2025 Financial Report
Agenda of the Water Commission
August 11, 2025
Page 1
F. Informational.
1. General Manager Update
G. Adjournment.
1. Adjournment of the Monday, August 11, 2025, meeting of the Water Utility Commission.
1) ACCESSIBILITY: Any person wishing to attend who requires special accommodation because of a disability,
should contact the City Safety Manager at 920-448-3125 at least 48 hours before the scheduled meeting time so
that arrangements can be made.
2) QUORUM: Please take notice that a majority or quorum of the Common Council may attend this Water
Commission meeting and will constitute a meeting of the Common Council for purposes of discussion and
information gathering relative to this agenda.
3) REPRESENTATION: The party requesting the communication, or their representative, should be present at this
meeting.
Agenda of the Water Commission
August 11, 2025
Page 2
Packet
AGENDA OF THE WATER COMMISSION
MONDAY, AUGUST 11, 2025, 8:30 AM
In person at the Green Bay Water Utility.
631 S Adams St
Virtual attendance is also available via Zoom.
A. Zoom Meeting Information.
1. Join Zoom Meeting Online:
https://zoom.us/j/98284055918?pwd=eHBxaWkvN1J2a3N0RERUWkRsNjVkUT09
Or call in by phone: +1 312 626 6799
Meeting ID: 982 8405 5918
Passcode: 385002
If you wish to speak at this public meeting or leave a comment, please fill out the online
Comment Form prior to the meeting. More detailed Zoom Instructions can be found online.
B. Roll Call.
1. Members: John Heugel, Jamie Wall, Jacque Boyle, Thomas Karman, Allen Farvour, Lynn
Gerlach, William Morgan, John Luczaj
C. Approval of the Agenda.
1. Approval of the agenda for the Monday, August 11, 2025, meeting of the Water Utility
Commission.
D. Approval of Minutes.
1. Approval of the minutes from the July 14, 2025 meeting.
E. Regular Business.
1. Approval of the Water Service Agreement By and Between the City of Green Bay, the
Village of Hobart and the Village of Pulaski.
2. June 2025 Financial Report
Agenda of the Water Commission
August 11, 2025
Page 1
F. Informational.
1. General Manager Update
G. Adjournment.
1. Adjournment of the Monday, August 11, 2025, meeting of the Water Utility Commission.
1) ACCESSIBILITY: Any person wishing to attend who requires special accommodation because of a disability,
should contact the City Safety Manager at 920-448-3125 at least 48 hours before the scheduled meeting time so
that arrangements can be made.
2) QUORUM: Please take notice that a majority or quorum of the Common Council may attend this Water
Commission meeting and will constitute a meeting of the Common Council for purposes of discussion and
information gathering relative to this agenda.
3) REPRESENTATION: The party requesting the communication, or their representative, should be present at this
meeting.
Agenda of the Water Commission
August 11, 2025
Page 2
MINUTES OF THE WATER COMMISSION
MONDAY, JULY 14, 2025, 8:30 AM
In person at the Green Bay Water Utility.
631 S Adams St
Virtual attendance is also available via Zoom.
A. ZOOM MEETING INFORMATION.
1. Join Zoom Meeting Online:
https://zoom.us/j/98284055918?pwd=eHBxaWkvN1J2a3N0RERUWkRsNjVkUT09
Or call in by phone: +1 312 626 6799
Meeting ID: 982 8405 5918
Passcode: 385002
If you wish to speak at this public meeting or leave a comment, please fill out the online
Comment Form prior to the meeting. More detailed Zoom Instructions can be found online.
B. ROLL CALL.
1. Members: John Heugel, Jamie Wall, Jacque Boyle, Thomas Karman, Allen Farvour, Lynn
Gerlach, William Morgan, John Luczaj
On Monday, July 14, 2025, the Water Commission met in person and virtually via
Zoom. President Heugel called the meeting to order at 8:30 a.m. Recording Secretary Beilke
called the roll. Five voting commission members: President John Heugel (In Person), Vice
President Jamie Wall (In Person), Al Farvour (Virtually via Zoom), Lynn Gerlach (In Person)
and John Luczaj (In Person).
Also present: Alder Bill Morgan (In Person, non-voting), Council Representative to the
Water Commission, Attorney William Vande Castle (Virtually via Zoom), and Bradley Viegut
from Baird & Co, Inc.
Staff present: Brian Powell, Doug Martin, Stephanie Rogers, Andrea Hay, Russ Hardwick,
Kristin Romanowicz, Sam Miesbauer, Jon Peters, and Hailey Heath.
C. APPROVAL OF THE AGENDA.
1. Approval of the agenda for the Monday, July 14, 2025, meeting of the Water Utility
Commission.
Moved by Jamie Wall, seconded by Lynn Gerlach to approve the agenda. Voice vote being
had, the motion passed unanimously.
D. APPROVAL OF MINUTES.
1. Approval of the minutes from the June 23, 2025 meeting.
Moved by Jamie Wall, seconded by Lynn Gerlach to approve the minutes. Voice vote being
had, the motion passed unanimously.
E. REGULAR BUSINESS.
1. Introduction to new employee, Sam Miesbauer, Filter Plant Technician.
The Water Commission members welcomed Sam Miesbauer to the Green Bay Water
Utility.
2. Approval of Resolution Relating to the Issuance of Water System Revenue Bonds.
Presentation by Bradley Viegut of Robert W. Baird & Co, Inc.
Moved by Lynn Gerlach, seconded by Allen Farvour to approve and recommend that the
Green Bay Common Council adopt the resolution authorizing and providing for the issuance
and establishing the parameters for the sale of not to exceed $20,000,000 Water System
Revenue Bonds, Series 2025, and all related details. Voice vote being had, the motion passed
unanimously.
F. INFORMATIONAL.
1. General Manager Update.
General Manager Brian Powell provided the commission with updates on the following
initiatives within our organization:
1. Village Pulaski Update
2. Additional Generation at Lake Station Project Update
3. South Intake Update
4. Police Vehicle Storage at Filter Plant
5. Workforce Report
a. Safety Coordinator
G. ADJOURNMENT.
1. Adjournment of the Monday, July 14, 2025, meeting of the Water Utility Commission.
Moved by John Luczaj, seconded by Jamie Wall to adjourn. Voice vote being had, the motion
passed unanimously.
____________________________________________________________________
WHOLESALE WATER SERVICE AGREEMENT
BY AND BETWEEN
THE CITY OF GREEN BAY,
THE VILLAGE OF HOBART
AND
THE VILLAGE OF PULASKI
__________________________________________________________________
ATTORNEY WORK PRODUCT
FOR DISCUSSION PURPOSES ONLY!
Dated:
____________________________
TABLE OF CONTENTS
PREAMBLE ……………………………………………………..…………………. 1
ARTICLE I
Definitions
Section 1.1 Definitions ………………………………………………………..….. 2
Section 1.2 Use of Phrases; Rules of Construction ………………………………. 7
ARTICLE II
Water Supply
Section 2.1 Agreement to Sell …………………………………………………. 7
Section 2.2 Agreement to Purchase ……………………………………………. 7
Section 2.3 Additional Potable Water …………………………………………. 7
Section 2.4 Emergency or Maintenance Shut-Off ……………………………. 8
Section 2.5 Curtailment ……………………………………………………….. 8
ARTICLE III
Delivery of Water
Section 3.1 Points of Delivery ………………………………………………… 8
Section 3.2 Green Bay Facilities Up To Green Bay/Hobart Point of
Delivery …………………………………………………………… 9
Section 3.3 Pulaski Facilities From Hobart/ Pulaski Point of Delivery………… 9
Section 3.4 Pressure …………………………………………………………… 9
ARTICLE IV
Measurement of Water
Section 4.1 Measurement by Meters …………………………………………. 9
Section 4.2 Ownership of Meters ……………………………………………. 9
Section 4.3 Location of Metering Points …………………………………….. 10
Section 4.4 Ownership of Metering Structures ……………………………… 10
Section 4.5 Records of Meter Reading ..……………………………………… 10
Section 4.6 Meter Inspection by Pulaski …….………….…………………… 10
Section 4.7 Calibration ..……………………………………………………… 10
Section 4.8 Check Meters ……………………………………………………. 11
Section 4.9 Meter Malfunctions …..………………………………………… 11
Section 4.10 Adjustment of Charges Due to Meter Malfunction ……………… 11
Section 4.11 Unit of Measurement ……………………………..……………… 12
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ARTICLE V
Construction or Acquisition of Facilities
Section 5.1 Interconnection Facilities Plans ....………………………………… 12
Section 5.2 Construction of Interconnection Facilities ……………………….. 12
Section 5.3 Connection of Pulaski Waterworks System to Green Bay
Waterworks System …………………………………………….… 12
Section 5.4 After Connection ……………………………………………….…. 13
ARTICLE VI
Capital Projects; Additional Potable Water;
Unexpected Investments; Future Capital Projects
Section 6.1 Additional Potable Water Volumes ……………………………… 13
Section 6.2 Unanticipated Growth ……………………………………………. 14
Section 6.3 Other Unanticipated Events ……………………………………… 14
Section 6.4 Post-Term Service ……………………………………………….. 15
Section 6.5 Future Capital Projects …………………………………………… 15
ARTICLE VII
Prices and Terms of Payment
Section 7.1 Measured Consumption …………………………………………. 16
Section 7.2 Cost of Water Generally …………………………………………. 16
Section 7.3 Wholesale Potable Water Rate ……………………………...…… 16
Section 7.4 Rate Application ………………………………………………… 16
Section 7.5 Hobart Water Conveyance Charge ……………………………… 16
Section 7.6 PSC Set Rate Beginning 2046 ……………………………...…... 16
ARTICLE VIII
Commencement of Service and Billing
Section 8.1 Commencement of Service ……………………………………… 17
Section 8.2 Bills and Due Date ………………………………………………. 17
Section 8.3 Disputed Invoices ……………………………………………..… 17
Section 8.4 Default; Interest on Overdue Payments ……………………….… 18
ARTICLE IX
Covenants of Green Bay
Section 9.1 Limitation on Service .………………………………………..… 18
Section 9.2 Prudent Utility Practice ..……………………………………..… 19
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ARTICLE X
Covenants of Ashwaubenon
Section 10.1 Limitations on Service …………………………………….…… 19
Section 10.2 Prudent Utility Practice ………………………………………… 19
ARTICLE XI
Covenants of Pulaski
Section 11.1 Exclusive Service …….………………………..……………… 19
Section 11.2 Limited Service ………...……………………………………… 20
Section 11.3 Service Area Expansions ……………………………………… 20
Section 11.4 Unexpected Agreement Termination …………………………. 20
Section 11.5 Limited Participation in PSC Proceedings ………………....…. 20
Section 11.6 Pulaski Budget Consideration ……...……………….…….…… 21
Section 11.7 Pulaski to Maintain Its Utility Obligation ………….………..… 21
Section 11.8 Certain Pulaski Actions ……………………………….………. 21
Section 11.9 Agreement to Abide by Rules and Regulations ……………… 22
Section 11.10 Prudent Utility Practice ………………………….…………… 22
ARTICLE XII
Defaults; Force Majeure
Section 12.1 Green Bay Defaults ……………………………….…………… 22
Section 12.2 Hobart Defaults ……………………………………………… 22
Section 12.3 Pulaski Defaults ……………………………….……………….. 23
Section 12.4 Force Majeure ………………………………………………..… 23
ARTCICLE XIII
Risk of Loss and Indemnification
Section 13.1 Risk of Loss by Pulaski ………………………….………..…… 24
Section 13.2 Risk of Loss by Green Bay ….……………………………….… 24
Section 13.3 Indemnification by Pulaski …………………………………….. 24
Section 13.4 Indemnification by Green Bay .………………………………… 25
Section 13.5 Indemnification by Hobart …………..………………………… 25
Section 13.6 Indemnification by Parties..……………………………….….… 25
Section 13.7 Not Employees ……………………………………………….… 25
Section 13.8 Notice and Participation …………………………………….…. 26
Section 13.9 Net Amount ……………………………………………….…… 27
Section 13.10 Assertion of Claims ……………………………………….…… 27
Section 13.11 No Release of Insurers ………………………………………… 27
Section 13.12 Survival of Obligations ………………………………………... 27
Section 13.13 Limitation of Liability ………………………...………………. 27
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ARTICLE XIV
Dispute Resolution
Section 14.1 Dispute Resolution …..………………………………………... 28
Section 14.2 Notice of Dispute and Initial Meeting ……………………..….. 28
Section 14.3 Mediation …………………………………………………..…. 28
Section 14.4 Mediation Costs …………………………………………..…... 28
ARTICLE XV
Notices
Section 15.1 Requirement for Notices ..…………………………………… 29
Section 15.2 Notices Deemed Delivered ..……………………………….… 29
Section 15.3 Change of Address ………….…………………………….…. 30
ARTICLE XVI
Representations and Warranties; Opinions; Cooperation
Section 16.1 Representations and Warranties of Pulaski ……….……….… 30
Section 16.2 Representations and Warranties of Green Bay ..………….…. 31
Section 16.3 Representations and Warranties of Hobart ………………….. 32
Section 16.4 Opinions as to Validity ………………..………………….…. 32
Section 16.5 Mutual Cooperation ..……………………………………..…. 33
Section 16.6 Cooperation in Construction …..………………………….…. 33
ARTICLE XVII
Governmental Authority Approvals
Section 17.1 PSC Approval and Declaration of Agreement as Reasonable and
Prudent………………………………………..……………..… 33
Section 17.2 Governmental Authority Approvals for Green Bay ………….. 34
Section 17.3 Governmental Authority Approvals for Hobart ………………. 34
Section 17.4 Governmental Authority Approvals for Pulaski ……………… 34
Section 17.5 Later Governmental Approvals ………………………….…… 35
ARTICLE XVIII
Effective Date; Term of Contract; Termination
Section 18.1 Effective Date ………………..………………………………… 35
Section 18.2 Term of Contract …………………………………..…………... 35
Section 18.3 Automatic Renewal of Term …………………………….……. 36
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ARTICLE XIX
Miscellaneous Provisions
Section 19.1 Governing Law and Venue …………………………………… 36
Section 19.2 Regulatory Bodies ……………………………………………. 36
Section 19.3 Compliance with Laws and Orders …………………………… 36
Section 19.4 Lack of Severability in Absence of Written Amendment ..…… 37
Section 19.5 Changes in Laws ……………………………………………… 37
Section 19.6 Entire Agreement ……………………………………………… 37
Section 19.7 Accounting and Audit ………………………………………… 37
Section 19.8 Interpretation ……………………………………………..…… 37
Section 19.9 Headings ……………………………………………………… 37
Section 19.10 Attachments …………………………………………………… 37
Section 19.11 No Third Party Beneficiaries ………………………………….. 37
Section 19.12 Successors ……………………………………………………... 38
Section 19.13 Further Action ………………………………………………… 38
Section 19.14 Amendments ……………………………………………….….. 38
Section 19.15 Time of the Essence …………………………………………… 38
Section 19.16 Execution in Counterparts ………………………………...…… 38
ATTACHMENT “A”
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WHOLESALE WATER SERVICE AGREEMENT
BY, BETWEEN AND AMONG
THE CITY OF GREEN BAY,
THE VILLAGE OF HOBART AND
THE VILLAGE OF PULASKI
THIS WHOLESALE WATER SERVICE AGREEMENT is made and entered
into this ______ day of ______________, 20___, by, between and among the CITY OF
GREEN BAY, WISCONSIN (“Green Bay”), a local governmental unit and political
subdivision and body public and corporate of the State of Wisconsin, the GREEN BAY
WATER UTILITY; the VILLAGE OF HOBART, WISCONSIN a local governmental unit
and political subdivision and body public and corporate of the State of Wisconsin
(“Hobart”); and, the VILLAGE OF PULASKI, WISCONSIN (“Pulaski”), a local
governmental unit and political subdivision and body public and corporate of the State of
Wisconsin.
WHEREAS, Green Bay is the owner of a municipal waterworks system that treats
Lake Michigan water for distribution to its retail customers within the Green Bay City
limits; and
WHEREAS, Hobart is the owner of a municipal waterworks system that is a
wholesale customer of the Green Bay Water Utility; and
WHEREAS, Pulaski is the owner of a municipal waterworks system that uses
water withdrawn from its municipal wells for distribution to its retail customers; and
WHEREAS, Pulaski desires to purchase water from Green Bay at wholesale to
satisfy the potable water needs of its customers and to meet safe drinking water standards
on a long-term basis; and
WHEREAS, Green Bay, through the Green Bay Water Utility, has the capability
to provide potable water to Pulaski through an interconnection with Hobart; and
WHEREAS, Green Bay is willing to sell potable water to Pulaski through the
Green Bay Water Utility at wholesale subject to the terms and conditions set forth herein
below; and
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WHEREAS, Hobart is willing to transport potable water from Green Bay through
its waterworks system for delivery to Pulaski subject to the terms and conditions set forth
herein;
NOW, THEREFORE, in consideration of the foregoing recitals and of the mutual
covenants and agreements contained herein, the parties agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 DEFINITIONS. The following words and phrases shall have the
following meanings when used in this Contract, unless the context clearly indicates a
different meaning is intended.
(a) “Agreement” shall mean this Wholesale Water Purchase Agreement,
including all attachments hereto, and any amendments that may be made from time
to time by a written instrument executed by both Parties.
(b) “Associated Party” shall mean any officer, elected or appointed official,
director, trustee, fiduciary, employee, agent, affiliate, representative, contractor or
subcontractor of Green Bay, Hobart or Pulaski.
(c) “Capital Project” shall mean any acquisition, construction and/or
installation of the projects listed in ATTACHMENT “A”, including all future
improvements or extensions, acquisition, construction, repair or replacement
thereof, related to the Green Bay Waterworks System and expected to be necessary
from time to time for the Green Bay Water Utility to deliver Potable Water to
Pulaski as contemplated by this Agreement from the date service commences
hereunder through December 31, 2045.
(d) “Capital Project Costs” shall mean, with respect to a Capital Project, all
costs of the Capital Project that will be incurred prior to January 1, 2046, including,
but not limited to, costs of the acquisition of necessary lands, easements, and
rights-of-way over lands and waters; costs incurred with respect to the acquisition,
installation, erection, construction, rehabilitation, repair, replacement, retirement or
decommissioning of facilities; financing costs, including principal and interest
payments on any bonds, notes or other evidences of indebtedness issued by Green
Bay or the Green Bay Water Utility from time to time; and the costs; and costs of
obtaining all necessary Governmental Authority approvals.
(e) “DNR” means the Department of Natural Resources of the State of
Wisconsin.
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(f) “Fiscal Year” shall mean the fiscal year of Green Bay Water Utility, which
runs from January 1 through December 31.
(g) “Force Majeure” shall mean acts of God; strikes, lockouts, or other
industrial disturbances; acts of a public enemy; orders of any kind issued by a
Governmental Authority; insurrections; riots; epidemics; landslides; lightning;
earthquakes; fires; hurricanes; storms; floods; washouts; droughts; arrests;
restraints of government and people; civil disturbances; failure of facilities or
equipment; environmental events impacting utility operations; and the orders or
applicable regulations of a Governmental Authority, any other event or
circumstance beyond the reasonable control of, and without the fault or negligence
of, the Party claiming Force Majeure. With respect to Green Bay and the Green
Bay Water Utility, Force Majeure shall include an unexpected loss or curtailment
of its Lake Michigan water supply due to unexpected withdrawal limitations or
other legal constraints. Force Majeure does not include lack of profitability or
other financial considerations that would affect a Party’s ability to pay for services
provided hereunder.
(h) “Future Capital Project” shall mean any acquisition, construction and/or
installation of facilities, including all future improvements or extensions,
acquisition, construction, repair or replacement thereof, related to the Green Bay
Waterworks System and necessary for the Green Bay Water Utility to deliver
Potable Water to the Village pursuant to this Agreement on or after December 31,
2045.
(i) “Future Capital Project Costs” shall mean, with respect to a Future
Capital Project, all costs of the Future Capital Project, that will be incurred after
December 31, 2045, including, but not limited to, costs of the acquisition of
necessary lands, easements, and rights-of-way over lands and waters; costs incurred
with respect to the acquisition, installation, erection, construction, rehabilitation,
repair, replacement, retirement or decommissioning of facilities; costs of
investigating, studying, planning, engineering, and designing of facilities; financing
costs, including principal and interest payments on any bonds, notes or other
evidences of indebtedness issued by Green Bay or the Green Bay Water Utility
from time to time; and costs of obtaining all necessary Governmental Authority
approvals.
(j) “Governmental Authority” shall mean any state or federal court,
administrative or regulatory agency or commission, or other governmental entity or
instrumentality, or any department thereof, having jurisdiction or authority over all
or any part of the subject matter of this Contract. “Governmental Authority” does
not include either of the Parties.
(k) “Green Bay” shall mean the City of Green Bay, Wisconsin.
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(l) “Green Bay Customer” shall mean all Green Bay Retail Customers and all
Green Bay Wholesale Customers, including the Town of Scott, the Village of
Ashwaubenon, the Village of Hobart and the Village of Wrightstown.
(m) “Green Bay Retail Customer” shall mean any person or entity to which
the Green Bay Water Utility sells Potable Water at retail, at any time during the
term of this Agreement.
(n) “Green Bay Water Utility” shall mean the City of Green Bay’s municipal
water utility, a departmental unit of the City of Green Bay managed by the Green
Bay Water Commission pursuant to Sec. 66.0805, Wis. Stats., which treats and
provides Potable Water for sale and distribution to its retail customers within the
corporate municipal boundaries of the City of Green Bay limits and such wholesale
customers as it is under contract to provide such service.
(o) “Green Bay Waterworks System” shall mean all of the Green Bay Water
Utility facilities, including land, easements, rights-of-way over lands and waters,
pumping, storage and other facilities, the Green Bay Water Utility wells, mains and
pipelines now or in the future acquired by lease, contract, purchase or otherwise or
constructed by the Green Bay Water Utility and used for the purposes of providing
and transmitting Potable Water to customers. “Green Bay Waterworks System”
also includes all contract rights and other tangible and intangible assets of Green
Bay or the Green Bay Water Utility used or useful in connection with or related to
such facilities. “Green Bay Waterworks System” shall not include any properties
or interest in properties of the Village or any properties or interest in properties of
any other municipality.
(p) “Green Bay Wholesale Customer” shall mean any entity to which the
Green Bay Water Utility sells Potable Water at wholesale at any time during the
term of this Agreement.
(q) “Green Bay’s Maximum Day Demand” shall mean Green Bay’s
estimated maximum day demand for Potable Water of all Green Bay Customers,
including the Town of Scott, the Village of Ashwaubenon, the Village of Hobart,
the Village of Wrightstown and the Village of Pulaski.
(r) “Hobart” shall mean the Village of Hobart, Wisconsin
(s) “Hobart Waterworks System” shall mean all Hobart’s facilities, including
land, easements, rights-of-way over lands and waters, pumping, storage, and other
facilities, its wells, mains and pipelines now or in the future acquired or controlled
by lease, contract, purchase or otherwise or constructed by it and used for the
purposes of providing and transmitting Potable Water within its municipal
boundaries. The “Hobart Waterworks System” shall also include all contract rights
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and other tangible and intangible assets used or useful in connection with or related
to such facilities.
(t) “Indemnifiable Cost” shall mean any cost, expense, damage, fine, penalty,
liability or other loss, including reasonable legal, accounting, consulting,
engineering, investigatory, expert witness and other fees and expenses.
(u) “Interconnection Facilities” shall mean all facilities, including mains,
pipelines and related infrastructural appurtenances, including those of the Hobart
Waterworks System, other municipal utilities, land, easements and right-of-ways
between that Point of Delivery where the potable water to be delivered to Pulaski
leaves the City of Green Bay and the Green Bay Waterworks System and that Point
of Delivery where the potable water from the Green Bay Water Utility reaches the
Pulaski Waterworks System.
(v) “Metering Points” shall mean the point or points where Potable Water
being delivered by the Green Bay Water Utility to Pulaski is measured. A
“Metering Point” is one such point.
(w) “Parties” shall mean Green Bay and the Green Bay Water Utility, as one
municipal corporate entity, Hobart and Pulaski.
(x) “Party” means, as the case may be, Green Bay or the Green Bay Water
Utility, as one municipal corporate entity, Hobart or Pulaski.
(y) “Point of Delivery” means the points where the Potable Water to be
delivered by the Green Bay Water Utility to Pulaski leaves the Green Bay
Waterworks System and enters the Interconnection Facilities between the Green
Bay Waterworks System and the Hobart Waterworks System for transportation and
delivery to the Pulaski Waterworks System, and where title and ownership of such
Potable Water is transferred from the Green Bay Water Utility to Pulaski. A “Point
of Delivery” is one such point. The Points of Delivery that are currently planned
are identified in ATTACHMENT “A”, but may change over time as agreed to by
the Parties in writing.
(z) “Potable Water” means treated, water of a quality meeting or exceeding
state and federal water quality standards, including applicable Safe Drinking Water
Act requirements. The Green Bay Water Utility shall have absolute discretion to
determine the extent to which Potable Water exceeds applicable water quality
standards.
(aa) “Prudent Utility Practice” shall mean any of the practices, methods and
acts which, in the exercise of reasonable judgment in the light of the facts
(including, but not limited to, any practices, methods and acts engaged in or
approved by a significant portion of the water utility industry prior thereto) known
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at the time the decision was made, could have been expected to accomplish the
desired result at reasonable cost consistent with reliability, safety and expediency.
In applying the standard of Prudent Utility Practice to any matter under this
Agreement, equitable consideration shall be given to the circumstances,
requirements and obligations of each of the Parties, and there shall be taken into
account the fact that Green Bay, Hobart, and Pulaski are political subdivisions of
the State of Wisconsin with prescribed statutory powers, duties, responsibilities and
limitations. Prudent Utility Practice is not intended to be limited to the optimum
practice, method or act to the exclusion of all others, but rather is a spectrum of
possible practices, methods or acts which could have been expected to accomplish
the desired result at reasonable cost consistent with reliability, safety and
expediency. Prudent Utility Practice includes due regard for manufacturers’
warranties and the requirements of Governmental Authorities having jurisdiction.
(bb) “PSC” shall mean the Public Service Commission of Wisconsin and any
Governmental Authority successor thereto.
(cc) “Pulaski” shall mean the Village of Pulaski, Wisconsin.
(dd) “Pulaski Customer” shall, for purposes of this Agreement, mean all retail
and wholesale water customers within the municipal boundaries of Pulaski as they
exist on January 1, 2026 and those customers outside the Pulaski municipal
boundaries who are under contract with Pulaski as of January 1, 2026.
(ee) “Pulaski’s Maximum Daily Water Demand” shall mean estimated
maximum day demand for Potable Water necessary to serve the Pulaski Customers
through December 31, 2045.
(ff) “Pulaski Waterworks System” shall mean all Pulaski’s facilities,
including land, easements, rights-of-way over lands and waters, pumping, storage,
and other facilities, the Pulaski wells, mains and pipelines now or in the future
acquired or controlled by lease, contract, purchase or otherwise or constructed by
Pulaski and used for the purposes of providing and transmitting Potable Water to
Pulaski Customers. The “Pulaski Waterworks System” shall also include all
contract rights and other tangible and intangible assets of Pulaski used or useful in
connection with or related to such facilities. The “Pulaski Waterworks System”
shall not include any properties or interest in properties of Green Bay, Hobart, or
any properties or interest in properties of any other municipality.
(gg) “Water Conveyance Charge” shall mean the fee charged to Pulaski by
Hobart for the transmission of Potable Water from the Green Bay Waterworks
System to the Pulaski Waterworks System through the Hobart Waterworks System.
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Section 1.2 USE OF PHRASES; RULES OF CONSTRUCTION. The following
provisions shall be applied wherever appropriate herein:
(a) “Herein”, “hereby”, “hereunder”, “hereof” and other equivalent words
refer to this Agreement as an entirety and not solely to the particular portion of this
Agreement in which such word is used.
(b) The definitions set forth in Section 1.1 hereof shall be deemed applicable
whether the words defined are used in the singular or plural.
ARTICLE II
WATER SUPPLY
Section 2.1 AGREEMENT TO SELL. During the term of this Agreement subject to
the terms and conditions set forth herein the Green Bay Water Utility shall make available
for delivery and sale to Pulaski, through the Hobart Waterworks System a volume of
Potable Water equal to Pulaski’s Maximum Day Water Demand. The Green Bay Water
Utility’s obligation to deliver Potable Water to Pulaski hereunder shall be limited to a
volume of Potable Water not to exceed Pulaski’s Maximum Day Water Demand except as
otherwise contemplated by this Agreement.
Section 2.2 AGREEMENT TO PURCHASE. Except as set forth in this Article and
Section 11.3, Pulaski shall purchase and accept delivery from the Green Bay Water Utility
through the Hobart Waterworks System a volume of Potable Water equal to its actual
demand for Potable Water to serve all Pulaski Customers; provided, however, that (i) the
volume of Potable Water purchased by Pulaski hereunder shall not exceed Pulaski’s
Maximum Day Water Demand as set forth in ATTACHMENT “A”, except as otherwise
contemplated in the Agreement, and provided further that (ii) Pulaski shall at all times
purchase and accept delivery from the Green Bay Water Utility of a volume of Potable
Water equal to an average daily use per calendar year of Three Hundred Thousand
(300,000) Gallons per day as set forth in ATTACHMENT “A”.
Section 2.3 ADDITIONAL POTABLE WATER. Notwithstanding the provisions of
Section 2.1 and Section 2.2, if Pulaski’s demand for Potable Water to serve Pulaski
Customers exceeds Pulaski’s Maximum Day Water Demand, the Green Bay Water Utility
may provide additional Potable Water to Pulaski to the extent that Green Bay has Potable
Water reasonably available and subject to all other terms and conditions of this Agreement,
including without limitation the requirements of Sections 6.1, 6.2, 6.3 and 11.4.
Section 2.4 EMERGENCY OR MAINTENANCE SHUT-OFF. The Green Bay Water
Utility and the Hobart Waterworks System undertake to use reasonable care and diligence,
in accordance with Prudent Utility Practice, to provide Pulaski with a constant supply of
Potable Water not to exceed Pulaski’s Maximum Day Water Demand during the term of
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this Agreement. However, the Green Bay Water Utility and/or Hobart reserve the right to
temporarily shut off the Potable Water supply in one or more of its mains for emergency or
maintenance purposes. Except in the event of Force Majeure, neither Green Bay nor
Hobart shall shut down all Potable Water delivery to Pulaski hereunder. The Green Bay
Water Utility and Hobart shall give Pulaski at least seven (7) days advance notice of any
turn-off under this Section, except that in emergencies it shall give notice which is
reasonable under the particular circumstances. During such emergency or maintenance
periods, Pulaski may obtain water from another source to the extent that the Green Bay
Water Utility is unable to deliver Potable Water as contemplated by this Agreement;
provided, that Pulaski has installed all necessary backflow protection equipment at every
Point of Delivery, that Pulaski operates and maintains such equipment in accordance with
Prudent Utility Practice, and that Pulaski resumes its purchase of Potable Water hereunder
as soon as such emergency or maintenance period ends.
Section 2.5 CURTAILMENT. If it becomes necessary for the Green Bay Water
Utility to limit its delivery of Potable Water to Green Bay Customers or for Hobart to
curtail water transmission hereunder, for any reason other than Force Majeure, the Parties
will cooperate and use reasonable efforts to ensure that the level of curtailment with
respect to Pulaski is proportionate to the level of curtailment with respect to other Green
Bay Customers or Hobart Customers. As contemplated by Section 11.10, and among other
necessary curtailments, Pulaski shall enforce any street, lawn or garden sprinkling
restrictions as imposed from time to time by the Green Bay Water Utility with respect to
Green Bay Customers. During such periods of curtailment Pulaski may obtain Potable
Water from another source to the extent that the Green Bay Water Utility is unable to
deliver Potable Water as contemplated by this Agreement; provided, that Pulaski has
installed all necessary backflow protection equipment at every Point of Delivery, that
Pulaski operates and maintains such equipment in accordance with Prudent Utility
Practice, and that Pulaski resumes its purchase of Potable Water hereunder as soon as such
curtailment period ends.
ARTICLE III
DELIVERY OF WATER
Section 3.1 POINTS OF DELIVERY. The Green Bay Water Utility shall deliver
Potable Water to Pulaski at the Points of Delivery identified in ATTACHMENT “A”.
Title to all Potable Water supplied by the Green Bay Water Utility to Pulaski shall pass
from the Green Bay Water Utility to Pulaski at the Green Bay/Hobart Points of Delivery,
at which point Hobart shall become responsible for any degradation in the quality of that
Potable Water prior to it reaching the Hobart/Pulaski Point of Delivery. Pulaski shall
become solely responsible for any degradation in the quality of the Potable Water and/or
any change in such Potable Water affecting its compliance with any applicable water
quality standards promulgated or established by any Governmental Authority, including
without limitation any applicable Safe Drinking Water Act requirements at the
Hobart/Pulaski Point of Delivery. Prior to the Green Bay/Hobart Point of Delivery, the
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Green Bay Water Utility shall be solely responsible for any degradation in the quality of
such Potable Water and/or any change in such Potable Water affecting its compliance with
any applicable water quality standards promulgated or established by any Governmental
Authority, including without limitation any applicable Safe Drinking Water Act
requirements
Section 3.2 GREEN BAY FACILITIES UP TO THE GREEN BAY/HOBART
INTERCONNECT POINT OF DELIVERY. The Green Bay Water Utility shall provide, own,
operate, maintain, repair and replace all necessary facilities to deliver Potable Water to the
Point of Delivery at Hobart. The Green Bay Water Utility expressly represents and
warrants that the water provided at the Green Bay/Hobart Point of Delivery shall be
Potable Water that is treated and of a quality meeting or exceeding state and federal water
quality standards, including applicable Safe Drinking Water Act requirements.
Section 3.3 PULASKI FACILITIES FROM THE HOBART / PULASKI POINT OF
DELIVERY. Pulaski shall provide, own, operate, maintain, repair and replace all facilities
from the Hobart/ Pulaski Point of Delivery to the Pulaski municipal boundaries and within
Pulaski needed to take Potable Water from the Point of Delivery to Pulaski Customers.
Section 3.4 PRESSURE. Pulaski shall receive its supply of Potable Water at the
Points of Delivery at pressures that will vary from time to time consistent with Prudent
Utility Practice.
ARTICLE IV
MEASUREMENT OF WATER
Section 4.1 MEASUREMENT BY METERS. The volume of Potable Water sold by
the Green Bay Water Utility to Pulaski shall be measured by meters located at approved
Metering Points. The meters used shall be jointly selected by the Parties and shall meet the
standards of the American Water Works Association.
Section 4.2 OWNERSHIP OF METERS. The meters shall be furnished and
installed, owned, operated, maintained, repaired and replaced by the Green Bay Water
Utility.
Section 4.3 LOCATION OF METERING POINTS. The Parties shall jointly select the
locations of the Metering Points.
Section 4.4 OWNERSHIP OF METERING STRUCTURES. The Green Bay Water
Utility shall determine whether a structure is necessary to house the meter located at the
Metering Points in accordance with the standards of the American Water Works
Association and/or are required by Prudent Utility Practice. If metering structures are
necessary, Pulaski shall design, construct and install such facilities at its expense and in
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accordance with Prudent Utility Practice. Initial construction plans and specifications shall
be submitted to the Green Bay Water Utility for review and approval, which shall not be
unreasonably withheld. Thereafter, Pulaski shall own and maintain the structures deemed
necessary to house the meters and related equipment consistent with Prudent Utility
Practices. The Green Bay Water Utility shall have access to the Metering Structures upon
three (3) hours prior notice to Pulaski.
Section 4.5 RECORDS OF METER READINGS. For the purposes of this Agreement,
the official record of meter readings at the Metering Points shall be kept in an Electronic
Billing System maintained by the representatives of the Green Bay Water Utility and kept
in the offices of the Green Bay Water Utility. These records shall be available for
inspection by Pulaski during normal business hours. Pulaski shall give the Green Bay
Water Utility at least 24 hours notice of its intention to inspect the records.
Section 4.6 METER INSPECTION BY PULASKI. The meters shall be available for
inspection and examination by designated agents of Pulaski at all reasonable times.
Pulaski will have access to the Metering Points after providing 24-hour notice to the Green
Bay Water Utility. The Green Bay Water Utility may bill Pulaski for any additional costs
incurred by Green Bay outside of normal operations as a result of providing it with such
access pursuant to this Section.
Section 4.7 CALIBRATION. At least once in each Fiscal Year, the Green Bay
Water Utility shall calibrate it’s meters measuring the delivery of Potable Water to Pulaski.
The Green Bay Water Utility shall give Pulaski notice, not less than two (2) business days
prior to the time of the calibration (which shall be conducted during normal business
hours), so that Pulaski may have a representative present during the calibration. If a
Pulaski representative is not present, the calibration and any necessary adjustment may
proceed in the absence of such representative. If a check meter has been installed as
contemplated by Section 4.8, such meter shall be calibrated by Pulaski at least once each
Fiscal Year. Pulaski shall give the Green Bay Water Utility notice, not less than two (2)
business days prior to the time of the calibration (which shall be conducted during normal
business hours), so that the Green Bay Water Utility may have a representative present
during the calibration. If a Green Bay representative is not present, the calibration and any
necessary adjustment may proceed in the absence of such representative.
Section 4.8 CHECK METER. Pulaski may, at its option and its own expense,
install, operate and maintain a check meter to check the meter maintained by the Green
Bay Water Utility, but the measurement of Potable Water for the purpose of this
Agreement shall be solely by the meter maintained by the Green Bay Water Utility under
this Agreement, except in the case hereinafter specifically provided to the contrary. Any
such check meter shall be of the same make as the meter selected by the Parties pursuant to
Section 4.1, and shall be subject at all reasonable times to inspection and examination by
any designated employee or agent of the Green Bay Water Utility. The reading, calibration
and adjustment of such check meter shall be performed only by Pulaski, but the Green Bay
Water Utility shall be given notice of any calibration and adjustment of the meter;
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provided, however, that during any period when a check meter is being used under the
provisions set forth below for measuring the amount of Potable Water delivered, the
reading, calibration and adjustment of the check meter shall be performed by the Green
Bay Water Utility with proper notification being given to Pulaski. The Green Bay Water
Utility shall grant to Pulaski, at no cost, an easement at each respective Metering Point,
including any structure at such Metering Point, sufficient to enable Pulaski to install, use,
operate and maintain a check meter during the term of this Agreement. Pulaski shall have
access to such Metering Point and check meter for examination and inspection after
providing 24-hours notice to the Green Bay Water Utility. The Green Bay Water Utility
may bill Pulaski for any additional costs incurred by the Green Bay Water Utility as a
result of providing Pulaski with access pursuant to this Section.
Section 4.9 METER MALFUNCTIONS. If either Party at any time observes a
variation of more than two (2.0%) percent between a meter and a check meter or any
evidence of meter malfunction, such Party shall promptly notify the other Party, and the
Parties shall then cooperate to procure an immediate calibration test and such adjustment,
replacement, or other work necessary to return such meter to accuracy. The Party who
discovers such variation or malfunction shall give the other Party notice not less than
seventy-two (72) hours prior to the time of any test of any meter (which tests shall be
conducted, if practical, during normal business hours) so that the other party may
conveniently have a representative present. If such representative is not present after the
required notification at the time set in such notice, calibration and adjustment may proceed
in the absence of the representative.
Section 4.10 ADJUSTMENT OF CHARGES DUE TO METER MALFUNCTION. If, upon
any inspection or test, any metering equipment is found to be out of service or the
percentage inaccuracy of any metering equipment is found to be in excess of two percent
(2%), registration thereof as well as charges for Potable Water based thereon shall be
corrected, by agreement of the Parties based on the best data available, for a period
extending back to the time when such inaccuracy began, if such time is ascertainable and,
if such time is not ascertainable, then for a period extending back one-half (1/2) of the time
elapsed since the last date of calibration, but in no event shall such period extend further
back than a period of six (6) months. For such purposes, the best data available shall be
deemed to be the registration of any meter or check meter if one has been installed and is
accurately registering. Otherwise, the amount of Potable Water delivered during such
period may be estimated (1) by correcting the error if the percentage of the error is
ascertainable by calibration tests or mathematical calculation; or (2) if the error is not
ascertainable by calibration tests or mathematical calculation, by estimating the quantity of
delivery by reference to deliveries during the preceding periods under similar conditions
when the meter or meters were registering accurately. Billing adjustments related to meter
malfunctions shall be handled in the same manner prescribed in Section 8.3(c).
Section 4.11 UNIT OF MEASUREMENT. The unit of measurement for Potable
Water delivered hereunder shall be gallons of water, U.S. Standard Liquid Measure, and all
measuring devices shall, unless the Green Bay Water Utility, Hobart and Pulaski otherwise
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agree, be so calibrated. In the event that it should become necessary or desirable to use
other units of measurement, the basis of conversion shall be that 7.48 gallons is equivalent
to one (1) cubic foot.
ARTICLE V
CONSTRUCTION OR ACQUISITION OF FACILITIES
Section 5.1 INTERCONNECTION FACILITIES PLANS. As soon as practicable,
Pulaski shall submit to the Green Bay Water Utility and Hobart for review and comment a
draft of the plans and specifications for the design, construction and operation of the
Interconnection Facilities. The Green Bay Water Utility and Hobart shall have a maximum
of thirty (30) days to provide comments on the plans and specifications for the
Interconnection Facilities. Pulaski shall incorporate such comments into its final plans and
specifications to the extent they are reasonable and necessary for Pulaski to construct,
maintain and operate the Interconnection Facilities and the Pulaski Waterworks System in
accordance with Prudent Utility Practice.
Section 5.2 CONSTRUCTION INTERCONNECTION FACILITIES. Pulaski shall
arrange for the financing and construction of the Interconnection Facilities in accordance
with the approved plans and specifications therefore, and in accordance with the approvals
contemplated by Section 16.2.
Section 5.3 CONNECTION OF PULASKI WATERWORKS SYSTEM TO THE GREEN
BAY WATERWORKS SYSTEM. Upon completion of construction of the Interconnection
Facilities, Green Bay and Hobart shall connect Pulaski’s Waterworks System to the Hobart
Waterworks System and the Green Bay Waterworks System when it may do so consistent
with Prudent Utility Practice, and in no event shall such connection occur less than ten (10)
days prior to the commencement of service hereunder. Pulaski shall reimburse Green Bay
and Hobart for the actual costs incurred by the Green Bay Water Utility and Hobart in
connecting Pulaski’s Waterworks System to the Interconnection Facilities.
Section 5.4 AFTER CONNECTION. The Interconnection Facilities shall at all
times be part of the sole and exclusive property of Pulaski subject to any maintenance and
operational agreements into which the Parties may subsequently enter.
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ARTICLE VI
CAPITAL PROJECTS; ADDITIONAL POTABLE WATER; UNEXPECTED
INVESTMENTS; FUTURE CAPITAL PROJECTS
Section 6.1 ADDITIONAL POTABLE WATER VOLUMES. If at any time during the
term of this Agreement Pulaski’s demand for Portable Water is forecast to exceed
Pulaski’s Maximum Day Water Demand set forth in ATTACHMENT “A” on a temporary
or long-term basis, Pulaski shall request that the Green Bay Water Utility deliver Potable
Water in excess of Pulaski’s Maximum Day Water Demand, and the Green Bay Water
Utility may not unreasonable deny such a request; provided, that such request would be
reasonably denied by the Green Bay Water Utility if, among other things, such request
could reasonably be expected to:
(a) Result in additional capital investment costs, or disproportionate increases
in operation and maintenance costs or other costs to be incurred by the Green Bay
Water Utility; or
(b) Limit the Green Bay Water Utility’s ability to satisfy, at any time and under
any circumstance, the Green Bay Water Utility’s Maximum Day Demand, as
projected at the time of such request by Pulaski, without any material increase in
capital investment and without any material change in variable operating costs to
be incurred by the Green Bay Water Utility; or
(c) Affect the Green Bay Water Utility’s ability to operate the Green Bay
Waterworks System in accordance with Prudent Utility Practice.
(d) Subject to the conditions set forth at Section 6.1(a) through (c), and to all
other terms and conditions of this Agreement, the cost of Potable Water in excess
of Pulaski’s Maximum Day Water Demand delivered by the Green Bay Water
Utility pursuant to this Section 6.1 shall be as established under Article VII.
(e) Limit Hobart’s ability to satisfy, at any time and under any circumstance, its
maximum day potable water demand, as projected at the time of such request by
Pulaski, without any material increase in capital investment and without any
material change in variable operating costs; or
(f) If upon such a request from Pulaski the conditions of this Section 6.1 are
not satisfied, then the Green Bay Water Utility’s decision to provide volumes of
Potable Water in excess of Pulaski’s Maximum Day Water Demand as set forth in
ATTACHMENT “A” shall be at the Green Bay Water Utility’s sole discretion, and
shall be subject to all other provisions of this Agreement, including without
limitation Section 6.1 and Section 10.3.
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Section 6.2 UNANTICIPATED GROWTH. If, during the term of this Agreement,
Pulaski shall experience unanticipated growth in its demand for Potable Water:
(a) Pulaski shall pay for unexpected growth in its demand for Potable Water in
excess of Pulaski’s Maximum Day Water Demand as set forth in ATTACHMENT
“A” hereto; provided, that if Pulaski’s demand for Potable Water is anticipated to
exceed Pulaski’s Maximum Day Water Demand Pulaski shall request additional
capacity from the Green Bay Water Utility as contemplated by Section 6.1 as soon
as practicable.
(b) If, as contemplated by Section 6.1, the Green Bay Water Utility reasonably
denies a request by Pulaski pursuant to Section 6.1, then Green Bay shall determine
the capital investments in the Green Bay Waterworks System for the facilities that
are required prior to January 1, 2046 in order for the Green Bay Water Utility to
serve Pulaski’s unanticipated level of growth in the volume of Potable Water
required by Pulaski to serve all Pulaski Customers. As part of its determination,
the Green Bay Water Utility shall evaluate whether Pulaski additional demand for
Potable Water can be satisfied in a more cost-effective manner by use of Pulaski’s
wells.
(c) If the Green Bay Water Utility determines that capital investment in the
Green Bay Waterworks System is necessary in order for the Green Bay Water
Utility to satisfy Pulaski’s additional demand for Potable Water then upon written
notice to Pulaski, the Green Bay Water Utility shall seek all necessary
Governmental Authority approvals with respect to the construction of such
facilities; provided, that Pulaski shall be allowed to review and comment on any
PSC application before it is submitted by the Green Bay Water Utility. Within
thirty (30) days after receiving notice from the Green Bay Water Utility confirming
the need for the construction of such facilities and describing the estimated cost of
such facilities, the Green Bay Water Utility and Pulaski shall meet to discuss and
negotiate payment arrangements for Pulaski to pay for the costs associated with the
construction of such facilities.
(d) If the Green Bay Water Utility provides written notice to Pulaski that it
cannot or will not provide Potable Water to Pulaski in excess of Pulaski’s
Maximum Day Water Demand in order to meet all or any portion of Pulaski’s
unanticipated growth in demand for Potable Water, Pulaski may then acquire
Potable Water from a source other than the Green Bay Water Utility in order to
satisfy such portion of its demand for Potable Water in excess of Pulaski’s
Maximum Day Water Demand.
Section 6.3 OTHER UNANTICIPATED EVENTS. Capital investments in the Green
Bay Waterworks System required prior to January 1, 2046 for facilities related to
unanticipated events affecting both the Green Bay Water Utility and Pulaski such as more
stringent water quality standards, shall be paid in cash by Pulaski in the manner
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contemplated in Section 6.2(c), provided, however, that Pulaski shall be responsible only
for the percentage of such costs that are attributable to the Green Bay Water Utility’s
provision of service to Pulaski hereunder. Such percentage shall, during each Fiscal Year
of the term of this Agreement, be equivalent to the number of gallons of Potable Water
actually delivered by the Green Bay Water Utility to Pulaski hereunder during the most
recently completed Fiscal Year, divided by the number of gallons of Potable Water
actually delivered by the Green Bay Water Utility to all Green Bay Customers during the
most recently completed Fiscal Year.
Section 6.4 POST-TERM SERVICE. Any service provided to Pulaski after
December 31, 2045 shall be conditioned upon the continued effectiveness of this
Agreement, and upon the Green Bay Water Utility’s ability to provide such service
consistent with Section 6.5 hereof without jeopardizing its ability to adequately serve and
satisfy the then-projected Green Bay Water Utility’s Maximum Day Water Demand at
reasonable, PSC-approved rates and to operate the Green Bay Waterworks System in
accordance with Prudent Utility Practice.
Section 6.5 FUTURE CAPITAL PROJECTS. As the need for Future Capital Projects
arises from time to time in order for Green Bay to continue its delivery of Potable Water to
Pulaski and for Hobart to continue to convey that water to Pulaski as made and provided
hereunder after December 31, 2045, the Parties agree that the continued effectiveness of
this Agreement, and the Green Bay Water Utility’s continued obligation to provide water
service to Pulaski and Hobart’s continued obligation to convey water from Green Bay to
Pulaski through the Hobart Water Works System will remain contingent upon the
following:
(a) PSC approval of Pulaski’s obligation to pay, up-front, for its pro-rata share
of all Future Capital Project Costs, and/or the Green Bay Water Utility’s ability to
rely upon expected revenue collected from Pulaski after December 31, 2045,
pursuant to PSC-approved wholesale rates, as a guaranteed source for the ultimate
repayment of all Future Capital Project Costs; and
(b) PSC approval of Pulaski’s obligation to pay, up front, for its pro-rata share
of all Future Capital Project Costs associated with any expansion of Hobart’s
Waterworks System to accommodate any increase in Pulaski’s Maximum Day
Water Demand as set forth on ATTACHMENT “A” hereto.
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ARTICLE VII
PRICES AND TERMS OF PAYMENT
Section 7.1 MEASURED CONSUMPTION. The Green Bay Water Utility will bill
Pulaski based on meter readings as provided for in Article IV. Meter readings for each
Metering Point shall be billed separately. Billing hereunder shall be monthly.
Section 7.2 COST OF WATER GENERALLY. Through December 31, 2045, the cost
for Potable Water purchased from the Green Bay Water Utility by Pulaski hereunder shall
equal the total metered consumption as determined by Section 7.1 multiplied by the
applicable volume rate in force as determined by Section 7.3.
Section 7.3 WHOLESALE POTABLE WATER RATE. Wholesale Water Service shall
be furnished to Pulaski by the Green Bay Water Utility at the initial volume rate per
thousand gallons as set forth on ATTACHMENT “A”, subject to any intervening PSC rate
increases. Any future adjustment or modification of the Conveyance Charge shall be
subject to prior approval by the PSC. In future rate proceedings before the PSC, the
wholesale rate hereunder shall be increased or decreased by the same percentage increase
or decrease of the lowest rate approved by the PSC for any Green Bay Retail Customer, as
set forth on the Green Bay Water Utility’s General Service - Metered Schedule (MG-1), or
any subsequent replacement tariff on file with the PSC. The rate established hereunder
does not include Water Conveyance Charge to be imposed by Hobart for the transmission
of Potable Water from Green Bay through that portion of the Interconnection Facilities
owned, operated and maintained by Hobart in the manner provided in Section 7.5 hereof.
Section 7.4 RATE APPLICATION. On or before June 1, 2045, the Green Bay
Water Utility shall file a rate application with the PSC requesting that the PSC establish
wholesale rates, and approve all non-rate terms, conditions and service standards, for its
continued wholesale sales of Potable Water to Pulaski hereunder effective January 1, 2046.
Section 7.5 HOBART WATER CONVEYANCE CHARGE. The initial fee to be
charged to Pulaski by Hobart for the transmission of potable water from the Green Bay
Water Utility to Pulaski through the Hobart Waterworks System as a Water Conveyance
Charge shall be at the initial volume rate per thousand gallons as set forth on
ATTACHMENT “A”. Any future adjustment or modification of the Water Conveyance
Charge shall be subject to prior approval by the PSC.
Section 7.6 PSC SET RATES AND TERMS BEGINNING IN 2046. For the period
beginning January 1, 2046, the applicable wholesale water rate in effect for all sales of
Potable Water by the Green Bay Water Utility to Pulaski and all applicable non-rate terms,
conditions and standards governing such service, shall be established by the PSC pursuant
to PSC regulation utilizing the application of standard rate-making and regulatory
principles and procedures.
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ARTICLE VIII
COMMENCEMENT OF SERVICE AND BILLING
Section 8.1 COMMENCEMENT OF SERVICE. Subject to all other terms and
conditions set forth herein, the Green Bay Water Utility shall deliver Potable Water to
Pulaski as soon as practicable upon satisfaction of all of the following contingencies:
(a) The Parties obtain all necessary Governmental Approvals set forth in
Sections 17.1 through 17.5.
(b) This Agreement remains in full force and effect and the Parties have
remained in compliance with all terms and conditions of the Agreement.
(c) The Green Bay Water Utility has constructed all Capital Projects that are
required prior to the commencement of service hereunder.
(d) Pulaski has constructed or made all improvements to Pulaski’s Waterworks
System necessary prior to acceptance of Potable Water delivered by the Green Bay
Water Utility as contemplated hereunder.
(e) Pulaski has constructed the Interconnection Facilities as contemplated by
Section 5.3 hereof.
(f) The Green Bay Waterworks System has been connected to Pulaski’s
Waterworks System as contemplated by Section 5.3, such that the Green Bay
Water Utility is able to deliver Potable Water to Pulaski through Hobart, and
Pulaski is able to accept delivery of Potable Water from the Green Bay Water
Utility.
(g) Once the Parties have obtained all necessary Government Approvals set
forth in Sections 17.1 through 17.5, the Parties shall use their best efforts to ensure
that the Green Bay Water Utility’s delivery of Potable Water to Pulaski hereunder
through Hobart commences upon completion of the interconnection facilities.
Section 8.2 BILLS AND DUE DATE. The Green Bay Water Utility shall bill
Pulaski for water service on a monthly basis. Hobart shall separately bill Pulaski for the
Water Conveyance Charge on a quarterly basis. Bills shall be sent on or before the 10th
day of the first month of the next immediate month following the month in which service
is provided. Pulaski shall pay all bills in full within 21 days of receipt.
Section 8.3 DISPUTED INVOICES. In the event Pulaski shall dispute any monthly
invoice from either the Green Bay Water Utility or Hobart, or both, the following process
and procedures shall apply:
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(a) If Pulaski desires to dispute all or any part of an invoice for either the Green
Bay Water Utility or Hobart, or both, it shall nevertheless pay the full amount of
any such payment when due and include with such payment written notification to
the billing Party that charges are disputed, the grounds for dispute and the amount
in dispute. Except as contemplated by Section 4.11, no adjustment or relief on
account of any disputed charges shall be available to Pulaski unless the written
notification described herein is provided at the time the bill is paid; provided,
however, that if the grounds for such dispute were not timely discovered by Pulaski
despite its exercise of Prudent Utility Practices, then within fifteen (15) days of
discovering the grounds for a dispute Pulaski may provide billing Party with
written notification of the dispute along with an explanation of the circumstances
resulting in delay of discovery.
(b) Upon receipt of such dispute notification, representatives of the Parties shall
meet within ten (10) business days to resolve such dispute. The Parties shall, if
necessary, continue efforts to resolve the dispute using the procedure set forth in
Article XIII.
(c) In the event that it is determined that Pulaski has been over-billed or under-
billed, an appropriate credit or debit shall be reflected in the next bill or bills issued
by the billing Party, and such credit or debit shall accrue interest at the rate set out
in Section 8.4 commencing as of the date on which the disputed bill was originally
due.
Section 8.4 DEFAULT; INTEREST ON OVERDUE PAYMENTS. If Pulaski fails to
make any payment required under this Contract on or before its due date, it shall be in
default, and interest on the amount of such payment shall accrue during the period of non-
payment at the lower of the following rate from the date such payment becomes due until
paid in full with interest as herein specified:
(a) The rate authorized by the PSC or
(b) One (1%) percent per month compounded monthly at the then authorized
rate.
ARTICLE IX
COVENANTS OF GREEN BAY
Section 9.1 LIMITATION ON SERVICE. Green Bay and the Green Bay Water
Utility disclaim any duty, obligation or responsibility to provide Potable Water to Pulaski
except as expressly provided in this Agreement.
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Section 9.2 PRUDENT UTILITY PRACTICE. The Green Bay Water Utility shall, at
all times during the term of this Agreement, own, operate, maintain, repair and replace all
portions of the Green Bay Waterworks System in a manner consistent with Prudent Utility
Practice.
ARTICLE X
COVENANTS OF HOBART
Section 10.1 LIMITATION ON SERVICE. Hobart disclaims any duty, obligation or
responsibility to transmit Potable Water from Green Bay to Pulaski except as expressly
provided in this Agreement.
Section 10.2 PRUDENT UTILITY PRACTICE. Hobart shall, at all times during the
term of this Agreement, own, operate, maintain, repair and replace all portions of the
Hobart Waterworks System related to the transmission of Potable Water from Green Bay
to Pulaski hereunder in a manner consistent with Prudent Utility Practice.
ARTICLE XI
COVENANTS OF PULASKI
Section 11.1 EXCLUSIVE SERVICE Except as expressly contemplated by Article
II, Section 10.3 or as otherwise expressly contemplated herein, during the term of this
Agreement the Green Bay Water Utility shall be the exclusive source of Potable Water
used by Pulaski in order to serve Pulaski Customers, as defined in Section 1.1(ee) hereof.
During the term of this Agreement, Pulaski may only maintain and operate Pulaski’s wells,
and may only use water from Pulaski’s wells, under and upon the following:
(a) Use in the minimum amount necessary to keep the wells in an active, non-
abandoned status;
(b) Use for standby purposes including but not limited to fire protection,
emergency services, responses to Force Majeure events, emergency or maintenance
shut off as contemplated by Section 2.2, and curtailment as contemplated by
Section 2.3;
(c) Use to satisfy an unanticipated level of growth in the volume of Potable
Water required by Pulaski, but only if authorized in writing by the Green Bay
Water Utility as contemplated under Section 6.2;
(d) Such other use for which the Green Bay Water Utility provides prior
express written consent at its discretion.
Section 11.2 LIMITED SERVICE. Pulaski acknowledges that Green Bay and the
Green Bay Water Utility have absolutely no duty, obligation or responsibility to provide
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water to Pulaski except as expressly set forth in this Agreement. Pulaski further
acknowledges that Hobart has absolutely no duty to transmit Potable Water from Green
Bay to Pulaski through the Hobart Waterworks System except as expressly set forth in this
Agreement.
Section 11.3 SERVICE AREA EXPANSIONS. Pulaski acknowledges that while its
demand for Potable Water may increase through annexations, boundary modifications,
extra-territorial water sales agreements or other extensions of water service beyond the
limits of its corporate municipal boundaries in effect as of the date of this Agreement and/or
beyond the limits of any extra-territorial water sales agreements in effect as of the date of
this Agreement, any such service area expansion shall not entitle Pulaski to purchase and
accept delivery of a volume of Potable Water from the Green Bay Water Utility in excess of
Pulaski’s Maximum Day Water Demand without the prior express written consent of the
Green Bay Water Utility, which consent shall be subject to, among other things, the process
contemplated under Section 6.2. If Pulaski’s service area expansion is the result of an
extra-territorial water sales agreement, Pulaski shall not enter into such an expansion
without the prior written consent of the Green Bay Water Utility and Hobart nor without
following the process contemplated by Section 6.2.
Section 11.4 UNEXPECTED AGREEMENT TERMINATION. Pulaski acknowledges
that after the Green Bay Water Utility obtains the PSC approvals described in Sections 17.1,
17.2 and 17.5, all Capital Project Costs incurred by the Green Bay Water Utility, including
additional costs the Green Bay Water Utility may incur as contemplated by Sections 6.2
through 6.4, shall be incurred by the Green Bay Water Utility in reasonable reliance upon
Pulaski’s continued satisfaction of all of its duties and obligations hereunder. If, after such
PSC approvals are obtained from time to time, this Agreement is terminated for any reason,
other than a default by Green Bay or the Green Bay Water Utility, at a point in time by
which Pulaski has not yet accepted delivery of and paid for a sufficient amount of Potable
Water such that the Green Bay Water Utility has fully recovered, in the form of revenue
collected hereunder, the total amount of the Capital Project Costs and all operating and
other costs legally incurred by the Green Bay Water Utility to date in connection with the
performance of its obligations hereunder, then, within ninety (90) days of such Agreement
termination, and without limiting any other rights which Green Bay or the Green Bay Water
Utility may have hereunder or at law or equity, Pulaski shall pay to the Green Bay Water
Utility an amount of cash equal to the difference between such Costs and such Revenue.
Section 11.5 LIMITED PARTICIPATION IN PSC PROCEEDINGS.
(a) During the term of this Agreement, Pulaski may commence or participate in
PSC proceedings involving the Green Bay Water Utility or Hobart in order to
allege in good faith that either or both the Green Bay Water Utility and/or Hobart
has failed to honor its obligations under this Agreement or to otherwise attempt in
good faith to protect its perceived interests. However, Pulaski shall not, in any PSC
proceeding:
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(1) Take or advance any position that is inconsistent with this
Agreement; nor
(2) Take or advance any position that is inconsistent with, or that would
other-wise undermine, contravene or circumvent PSC approvals or
rulings obtained by the Parties in connection with this Agreement.
(b) Pulaski may participate before the PSC with respect to any dispute over
costs attributed by the Green Bay Water Utility to Pulaski as contemplated by
Section 6.3(c) and Section 6.4, but only to the extent that there is a dispute over the
amount of costs that Pulaski must reimburse the Green Bay Water Utility as
contemplated by those Sections.
(c) Pulaski may participate in the PSC proceeding contemplated by Section
16.1 and shall use its best efforts to cooperate in obtaining the PSC approvals and
ruling contemplated therein.
Section 11.6 PULASKI BUDGET CONSIDERATION. During the term of this
Agreement, Pulaski covenants that it will include provisions for payment of all of its
financial obligations to Green Bay and Hobart under this Agreement in each fiscal year
budget presented for final approval by its Village Board. In the event that such provisions
are not approved by the Pulaski Village Board as part of its approval and adoption of any
final budget for any fiscal year, Pulaski shall provide written notice of such circumstance
to the Green Bay Water Utility and Hobart within seven (7) days of such event.
Section 11.7 PULASKI TO MAINTAIN ITS UTILITY OBLIGATION. During the term of
this Agreement, Pulaski shall not, without the prior written consent of the Green Bay
Water Utility, which shall be granted at the Green Bay Water Utility’s sole discretion,
abandon, sell, or otherwise dispose of or discontinue all or any portion of its obligations
and duties as a default retail or wholesale water utility service provider to all Pulaski
Customers within the municipal boundaries of Pulaski, as such boundaries existed on the
Effective Date of this Agreement, unless such action by Pulaski is due to either Force
Majeure or decisions by Pulaski Customers to reduce or terminate their purchase of
Potable Water from Pulaski.
Section 11.8 CERTAIN PULASKI ACTIONS. During the term of this Agreement
Pulaski shall not, without the prior written consent of the Green Bay Water Utility and/or
Hobart, which consent shall not be unreasonably withheld, provided that such consent shall
be reasonably withheld if Green Bay reasonably determines that such proposed Pulaski
actions would either render Pulaski unable to satisfy all of its duties and obligations
hereunder or affect the Green Bay Water Utility’s ability to operate the Green Bay
Waterworks System in accordance with Prudent Utility Practice:
(a) Merge or consolidate with one or more other public utilities.
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(b) Transfer ownership or operational control over all or any portion of the
Pulaski Waterworks System.
(c) Provide, sell or distribute potable water acquired hereunder to another
municipal water utility without the prior written consent of Green Bay.
Section 11.9 AGREEMENT TO ABIDE BY RULES AND REGULATIONS. Pulaski shall
abide by the “Rules and Regulations” of the Green Bay Water Utility on file with the PSC
and as amended from time to time, to the extent such “Rules and Regulations” are
applicable to Green Bay’s provision of water service to Pulaski hereunder. If any
provision of this Agreement contradicts any provision of such “Rules and Regulations”,
the provisions of this Agreement shall control.
Section 11.10 PRUDENT UTILITY PRACTICES. Pulaski shall, at all times during the
term of this Agreement, own, operate, maintain, repair and replace all portions of the
Pulaski Waterworks System in a manner consistent with Prudent Utility Practice.
ARTICLE XII
DEFAULTS; FORCE MAJEURE
Section 12.1 GREEN BAY DEFAULTS. Failure by Green Bay to deliver Potable
Water to Pulaski as required by this Agreement shall be an immediate default under this
Agreement except to the extent that such failure is excused due to Force Majeure. Failure
of Green Bay or the Green Bay Water Utility to perform any other obligation under this
Agreement and the continuation of that failure to perform for thirty (30) days after written
notice from Pulaski to Green Bay of such failure shall be a default of Green Bay or the
Green Bay Water Utility under this Agreement, except to the extent that such failure is
excused due to Force Majeure. If Green Bay or the Green Bay Water Utility defaults
under this Agreement, Pulaski may (a) immediately bring an action against Green Bay or
the Green Bay Water Utility, which may be an action for money damages or for any other
legal or equitable remedy available; or (b) follow the dispute resolution procedure set forth
in Article XIV. Election of any remedy shall not be a waiver of any other remedy.
Section 12.2 HOBART DEFAULTS. Failure by Hobart to transmit and transport
Potable Water from Green Bay to Pulaski as required by this Agreement shall be an
immediate default under this Agreement except to the extent that such failure is excused
due to Force Majeure. Failure by Hobart to perform any other obligation under this
Agreement and the continuation of that failure to perform for thirty (30) days after written
notice from Pulaski to Hobart of such failure shall be a default of Hobart under this
Agreement, except to the extent that such failure is excused due to Force Majeure. If
Hobart defaults under this Agreement, Pulaski may (a) immediately bring an action against
Hobart, which may be an action for money damages or for any other legal or equitable
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remedy available; or (b) follow the dispute resolution procedure set forth in Article XIV.
Election of any remedy shall not be a waiver of any other remedy.
Section 12.3 PULASKI DEFAULTS. Failure by Pulaski to timely pay for Potable
Water delivered under the terms of this Agreement as required by this Agreement shall be
an immediate default under this Agreement. Failure by Pulaski to perform any other
obligation under this Agreement and the continuation of that failure to perform for thirty
(30) days after written notice from either or both the Green Bay Water Utility and/or
Hobart to Pulaski of such failure shall also be a default of Pulaski under this Agreement,
except to the extent that such failure is excused due to Force Majeure. If Pulaski defaults
under this Agreement, either or both Green Bay and/or Hobart shall have the option of (a)
immediately bringing an action against Pulaski, which may be an action for money
damages or for any other legal or equitable remedy available; or (b) following the dispute
resolution procedure set forth in Article XIV. Election of any remedy shall not be a waiver
of any other remedy.
Section 12.4 FORCE MAJEURE. In case by reason of Force Majeure any Party
hereto shall be rendered unable wholly or in part to carry out its obligation under this
Agreement, then if such Party shall give notice and full particulars of such Force Majeure
in writing to the other Party within a reasonable time after occurrence of the event or cause
relied on, the obligation of the Party giving such notice to perform under this Agreement
shall, so far as it is affected by such Force Majeure, be suspended during the continuance
of the inability then claimed, but for no longer period, and any such Party shall endeavor to
remove or overcome such inability with all reasonable dispatch. Notwithstanding anything
in this Agreement to the contrary, no payment obligation arising under this Agreement
prior to the date of an event of Force Majeure shall be excused by such event of Force
Majeure. The burden of proof shall be on any Party claiming excuse from performance by
reason of Force Majeure. During periods of Force Majeure, Pulaski may obtain water
from a third party source to the extent that the Green Bay Water Utility is unable to deliver
the volume of Potable Water contemplated by this Agreement; provided, that Pulaski has
installed all necessary backflow protection equipment at every Point of Delivery, and that
Pulaski operates and maintains such equipment in accordance with Prudent Utility
Practice, and that Pulaski resumes its exclusive purchase of Potable Water hereunder as
soon as such Force Majeure period ends.
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ARTICLE XIII
RISK OF LOSS AND INDEMNIFICATION
Section 13.1 RISK OF LOSS BY PULASKI. As between and among Green Bay, the
Green Bay Water Utility and Hobart and Pulaski, Pulaski shall be responsible for and shall
bear the full risk of loss with respect to any loss of or damage to any property located on
Pulaski’s side of the Hobart/Pulaski Point of Delivery, including any real property within
the corporate municipal boundaries of either Green Bay or Hobart to which Pulaski is
granted use and access to by easement pursuant to Section 16.5, any personal injury or
death, or loss of or damage to any other property arising out of the construction, ownership
or leasing, operation or maintenance of any property of Pulaski on Pulaski’s side of Hobart
/ Pulaski Point of Delivery, including any real property within the corporate municipal
boundaries of either or both Green Bay or Hobart to which Pulaski is granted use and
access to by easement pursuant to Section 16.5; and with respect to any personal injury or
death, or loss of or damage to any other property arising out of the construction required by
hereunder by Pulaski; provided, however, that Pulaski shall not be responsible for any such
loss, damage, or injury to the extent that such loss, damage, or injury arises out of the
negligence or willful misconduct of Green Bay or the Green Bay Water Utility or Hobart.
Section 13.2 RISK OF LOSS BY GREEN BAY. As between Pulaski and Green Bay,
Green Bay shall, except as provided in the preceding paragraph, be responsible for and
shall bear the full risk of loss (i) with respect to any loss of or damage to any property
located on Green Bay’s side of the Green Bay/Hobart Point of Delivery, including any real
property within Pulaski’s corporate municipal boundary to which the Green Bay Water
Utility is granted use and access by easement pursuant to Section 16.5, any personal injury
or death, or loss of or damage to any other property arising out of the construction,
ownership, operation or maintenance of any property of Green Bay or the Green Bay
Water Utility on Green Bay’s side of the Green Bay/Hobart Point of Delivery, including
any real property within or outside of Pulaski’s corporate municipal boundary to which the
Green Bay Water Utility is granted use and access by easement pursuant to Section 16.5,
and any personal injury or death, or loss of or damage to any other property arising out of
the satisfaction by Green Bay of any obligation of the Green Bay Water Utility hereunder;
provided, however, that Green Bay nor the Green Bay Water Utility shall not be
responsible for any such loss, damage, or injury to the extent that such loss, damage, or
injury arises out of the negligence or willful misconduct of Pulaski.
Section 13.3 INDEMNIFICATION BY PULASKI. Pulaski shall defend, indemnify and
hold harmless Green Bay, the Green Bay Water Utility, Hobart and their Associated
Parties against and from any Indemnifiable Cost arising out of any injury, bodily or
otherwise, to, or death of, persons, or for damage to, or destruction of, property belonging
to Green Bay, the Green Bay Water Utility, Hobart and Pulaski or others (each a “Claim”),
resulting from or attributable to the negligence or willful misconduct of Pulaski, resulting
from or attributable to the breach of any of Pulaski’s representations or warranties
contained herein, or resulting from, arising out of, or in any way connected with the
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performance of, or failure to perform, any Pulaski obligation under this Agreement,
excepting in each case any Indemnifiable Cost to the extent it is caused by Force Majeure
or the negligence or willful misconduct of Green Bay, the Green Bay Water Utility, Hobart
or their Associated Parties. Pulaski shall also defend, indemnify and hold harmless Green
Bay, the Green Bay Water Utility, Hobart and their Associated Parties against and from
any Indemnifiable Cost arising out of claims of any third party, or any direct or indirect
customer of Pulaski arising out of or relating to any alleged obligation, duty or
responsibility of Green Bay or the Green Bay Water Utility to provide water service to
Pulaski or any third party except as expressly contemplated by this Agreement.
Section 13.4 INDEMNIFICATION BY GREEN BAY. Green Bay shall defend,
indemnify and hold harmless Pulaski and Hobart and its agents from and against any
Indemnifiable Cost arising out of any Claim resulting from or attributable to the
negligence or willful misconduct of Green Bay, the Green Bay Water Utility or their
Associated Parties resulting from or attributable to the breach of any of Green Bay’s
representations or warranties contained herein, or resulting from, arising out of, or in any
way connected with the performance of, or failure to perform any obligation of Green Bay
or the Green Bay Water Utility under this Agreement, excepting in each case any
Indemnifiable Cost to the extent it is caused by Force Majeure or the negligence or willful
misconduct of Pulaski or its agents.
Section 13.5 INDEMNIFICATION BY HOBART. Hobart shall defend, indemnify and
hold harmless Pulaski, Green Bay, the Green Bay Water Utility and its agents from and
against any Indemnifiable Cost arising out of any Claim resulting from or attributable to
the negligence or willful misconduct of Hobart or their Associated Parties resulting from or
attributable to the breach of any representations or warranties of Hobart contained herein,
or resulting from, arising out of, or in any way connected with the performance of, or
failure to perform any obligation of Hobart under this Agreement, excepting in each case
any Indemnifiable Cost to the extent it is caused by Force Majeure or the negligence or
willful misconduct of Pulaski, Green Bay, the Green Bay Water Utility or their agents.
Section 13.6 INDEMNIFICATION BY THE PARTIES. If, due to the joint, concurring,
comparative or contributory negligence or willful misconduct of the Parties or their agents,
either Party incurs any Indemnifiable Cost arising out of any Claim, such Indemnifiable
Cost shall be allocated between the Parties in proportion to their respective degrees of
negligence or willful misconduct contributing to such Claim.
Section 13.7 NOT EMPLOYEES No Party hereto nor such Party’s agents or
employees shall be deemed an employee of the any other Party hereto. No Party shall
bring any claim against any other Party or such Party’s Associated Parties with respect to
any liability for compensation under any applicable state or federal Worker’s
Compensation Act, including Worker’s Compensation and/or employer’s liability claims
of employees. Each Party shall be liable for all claims of the Party’s own employees
and/or other Agent arising under any provision of any Workers’ Compensation Law.
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Section 13.8 NOTICE AND PARTICIPATION. With respect to any claim of
indemnification hereunder:
(a) If any Party entitled to indemnification hereunder (the “Indemnified Party”)
intends to seek indemnification under this Article from any other Party (the
“Indemnifying Party”) with respect to any Claim, the Indemnified Party shall give
the Indemnifying Party notice of such Claim upon the receipt of actual knowledge
or information by the Indemnified Party of any possible Claim or of the
commencement of such Claim, which notice shall in no event be later than thirty
(30) days prior to the last day for responding to such Claim. The Indemnifying
Party shall have no liability under this Article for any Claim for which such notice
is not provided, to the extent that the failure to give such notice materially impairs
the ability of the Indemnifying Party to respond to or to defend the Claim.
(b) The Indemnifying Party shall have the right to assume the defense of any
Claim, at its sole cost and expense, with counsel designated by the Indemnifying
Party and reasonably satisfactory to the Indemnified Party; provided, however, that
if the defendants in any such proceeding include both the Indemnified Party and the
Indemnifying Party, and the Indemnified Party shall have reasonably concluded
that there may be legal defenses available to it which are different from or
additional to those available to the Indemnifying Party, the Indemnified Party shall
have the right to select separate counsel to assert such legal defenses and to
otherwise participate in the defense of such Claim on behalf of such Indemnified
Party, and the Indemnifying Party shall be responsible for the reasonable fees and
expenses of such separate counsel.
(c) Should any Indemnified Party be entitled to indemnification under this
Article as a result of a Claim by a third party, and should the Indemnifying Party
fail to assume the defense of such Claim within a reasonable period of time, the
Indemnified Party may, at the expense of the Indemnifying Party, contest (or, with
or without the prior consent of the Indemnifying Party, settle) such Claim.
(d) Except to the extent expressly provided otherwise herein, no Indemnified
Party shall settle any Claim with respect to which it has sought or is entitled to seek
indemnification pursuant to this Article unless (i) it has obtained the prior written
consent of the Indemnifying Party, or (ii) the Indemnifying Party has failed to
provide, within a reasonable period of time, security, in a form reasonably
satisfactory to the Indemnified Party, securing the payment of any Indemnifiable
Cost, up to the amount of the proposed settlement.
(e) Except to the extent expressly provided otherwise herein, no Indemnifying
Party shall settle any Claim with respect to which it may be liable to provide
indemnification pursuant to this Article without the prior written consent of the
Indemnified Party, provided, however, that if the Indemnifying Party has reached a
bona fide settlement agreement with the plaintiff(s) in any such proceeding, which
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settlement includes a full release of the Indemnified Party for any and all liability
with respect to such Claim, and the Indemnified Party does not consent to such
settlement agreement, then the dollar amount specified in the settlement agreement,
plus the Indemnified Party’s reasonable legal fees and other costs related to the
defense of the Claim incurred prior to the date of such settlement agreement, shall
act as an absolute maximum limit on the indemnification obligation of the
Indemnifying Party with respect to the Claim, or portion thereof, that is the subject
of such settlement agreement.
Section 13.9 NET AMOUNT. In the event that an Indemnifying Party is obligated
to indemnify and hold any Indemnified Party harmless under this Article, the amount
owing to the Indemnified Party shall be the amount of such Indemnified Party’s actual
Indemnifiable Cost, net of any insurance or other recovery actually received by the
Indemnified Party.
Section 13.10 ASSERTION OF CLAIMS. No Claim of any kind shall be asserted
against any Party hereto or such Party’s agents, whether arising out of contract, tort
(including negligence), strict liability, or any other cause of or form of action, unless it is
filed in a court of competent jurisdiction, or a demand for arbitration is made, within the
applicable statute of limitations period for such Claim.
Section 13.11 NO RELEASE OF INSURERS. The provisions of this Article shall not
be deemed or construed to release any insurer from its obligation to pay any insurance
proceeds in accordance with the terms and conditions of valid and collectible insurance
policies.
Section 13.12 SURVIVAL OF OBLIGATION. The duty to indemnify under this Article
shall continue in full force and effect notwithstanding the expiration or termination of this
Agreement, with respect to any loss, liability, damage or other expense based on facts or
conditions which occurred prior to such termination.
Section 13.13 LIMITATION OF LIABILITY. For breach or default of any provision of
this Agreement for which an express remedy or measure of damages is provided, such
express remedy or measure of damages shall be the sole and exclusive remedy. Neither
Party shall be liable to the other Party for consequential, incidental, punitive, exemplary or
indirect damages, or lost profits. The limitations herein imposed on remedies and the
measure of damages is without regard to the cause or causes related thereto, including the
negligence of any Party, whether such negligence be sole, joint or concurrent, or active or
passive. EXCEPT AS SET FORTH IN THE CONTRACT, THERE ARE NO
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE, WITH RESPECT TO THE SUBJECT MATTER OF THE CONTRACT.
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ARTICLE XIV
DISPUTE RESOLUTION
Section 14.1 DISPUTE RESOLUTION. A dispute or controversy between or among
any Party hereto regarding any matter relating to this Agreement shall be resolved in
accordance with this Article except as otherwise provided in this Agreement.
Section 14.2 NOTICE OF DISPUTE AND INITIAL MEETING. If a dispute or
controversy arises regarding any matter relating to this Agreement, any Party may send a
written notice to any other Party identifying the nature and underlying facts of the dispute.
Within thirty (30) days of the date written notice is delivered, a meeting between the
Parties shall be held to attempt in good faith to negotiate a resolution of the dispute or
controversy.
Section 14.3 MEDIATION. If the Parties have not succeeded in resolving the
dispute or controversy at the initial meeting, or if the Parties have not held an initial
meeting within thirty (30) days after the date of delivery of the written notice, the Parties
may choose to proceed to mediation in accordance with this Paragraph. The Parties shall
jointly appoint a mutually acceptable neutral person not affiliated with either Party (the
“Mediator”) to conduct the mediation. The fees of the Mediator shall be shared equally by
the Parties. If the Parties are unable to agree upon the selection of a Mediator within
twenty (20) days after the initial meeting, or if no initial meeting was held, within fifty (50)
days after the delivery of the written notice required by Section 14.2, the Parties shall
either request that the Brown County Circuit Court shall select the Mediator or, in the
alternative, proceed with other forms of dispute resolution. In consultation with the
Parties, the Mediator will select or devise the mediation procedure to be held in Brown
County, Wisconsin, by which the Parties will attempt to resolve the dispute or controversy.
In consultation with the Parties, the Mediator will also select a date and time for the
mediation and a date by which the mediation will be completed. The Parties shall
participate in good faith in the mediation to its conclusion as designated by the Mediator.
If the Parties are not successful in resolving the dispute or controversy through the
mediation, then the Parties may agree in writing to resolve the dispute by binding
arbitration or, if no written agreement to resort to binding arbitration is reached by the
Parties, the dispute may be resolved by litigation or other appropriate means.
Section 14.4 MEDIATION COSTS. Except as expressly provided herein, each Party
shall bear its own costs associated with dispute resolution, including attorneys’ fees and
litigation expenses, unless such fees and expenses are awarded to the prevailing Party by a
court or other Governmental Authority.
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ARTICLE XV
NOTICES
Section 15.1 REQUIREMENT FOR NOTICES. All notices or communications
provided for herein shall be in writing and shall be delivered to the Parties either in person
or by United States mail via registered mail, return receipt requested, postage prepaid,
addressed to the principal office thereof. Any action hereunder to be taken by any Party
hereto may be evidenced by copy of official proceedings (including pertinent minutes,
motions, resolutions, or ordinances) duly certified by the Parties’ Clerk.
Section 15.2 NOTICES DEEMED DELIVERED. Unless expressly provided otherwise
herein, all notices and other communications in connection with this Agreement shall be in
writing, and shall be deemed delivered to the addressee thereof when delivered in person at
the address set forth below, or three business days after deposit thereof in any main or
branch United States post office, overnight express delivery, or mailed by United States
registered mail or certified mail, postage prepaid, properly addressed to the Parties,
respectively, as follows:
For notices and communications to Green Bay:
City of Green Bay
Office of Mayor
100 N. Jefferson Street
Green Bay, WI 54301
And
Green Bay Water Utility
Attn: General Manager
631 So. Adams Street
Green Bay, WI 54301
For notice and communications to Hobart:
Village of Hobart
Village President
2990 South Pine Tree Road
Hobart, WI 54155
And
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Village of Hobart
Village Administrator
2990 South Pine Tree Road
Hobart, WI 54155
For notices and communications to Pulaski:
Village of Pulaski
Village President
585 E Glenbrook Dr
Pulaski, Wisconsin 54162
And
Village of Pulaski
Village Clerk
585 E Glenbrook Dr
Pulaski, Wisconsin 54162
Section 15.3 CHANGE OF ADDRESS. By notice complying with the foregoing
requirements of this Section, each Party shall have the right to change the address or
addressee, or both, for all future notices and communications to such party, but no notice
of a change of address shall be effective until actually received.
ARTICLE XVI
REPRESENTATIONS AND WARRANTIES, OPINIONS, COOPERATION
Section 16.1 REPRESENTATIONS AND WARRANTIES OF PULASKI. Pulaski
represents and warrants:
(a) That Pulaski is a political subdivision and body public and corporate of the
State of Wisconsin and is fully authorized and empowered under the laws of the
State of Wisconsin to enter into this Agreement and to perform its obligations
hereunder,
(b) That no consent, order, waiver or any other action by any person, board or
body, public or private, is required as of the date of execution of this Agreement for
Pulaski to enter into this Agreement and to perform its obligations hereunder,
(c) That there is no action, suit or proceeding at law or in equity or by or before
any Governmental Authority pending or threatened against or affecting Pulaski or
the Pulaski Waterworks System which seeks to prohibit, restrain or enjoin Pulaski
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from entering into or complying with its obligations contained in this Agreement,
including payment obligations to the Green Bay Water Utility, and/or Hobart, or in
any way affects or questions the validity or enforceability of this Agreement, or
which would in any way materially adversely affect Pulaski’s ability to carry out
the transactions contemplated by and under this Agreement,
(d) That this Agreement has been duly and validly authorized, executed and
delivered by Pulaski and constitutes a legal, valid and binding obligation of Pulaski
enforceable against it in accordance with its terms, and
(e) That the execution and delivery of this Agreement and compliance by
Pulaski with its terms will not conflict with, or constitute on the part of Pulaski a
breach of or a default under, any existing statute, law, governmental rule,
regulation, decree, resolution, ordinance, charter or order, or any agreement,
indenture, mortgage, lease or instrument to which Pulaski is subject or by which it
is or its properties are or may be bound.
Section 16.2 REPRESENTATIONS AND WARRANTIES OF GREEN BAY. Green Bay
represents and warrants:
(a) That Green Bay is a political subdivision and municipal corporation of the
State of Wisconsin and is fully authorized and empowered under the laws of the
State of Wisconsin to enter into this Agreement and to perform its obligations
hereunder,
(b) That no consent, order, waiver or any other action by any person, board or
body, public or private, is required as of the date of execution of this Agreement by
Green Bay for Green Bay to enter into this Agreement and to perform its
obligations hereunder,
(c) That there is no action, suit or proceeding at law or in equity or by or before
any Governmental Authority pending or threatened against or affecting Green Bay,
the Green Bay Water Utility or the Green Bay Waterworks System which seeks to
prohibit, restrain or enjoin Green Bay or the Green Bay Water Utility from entering
into or complying with its obligations contained in this Agreement or in any way
affects or questions the validity or enforceability of this Agreement, or in any way
might materially adversely affect Green Bay’s ability to carry out the transactions
contemplated by this Agreement,
(d) That this Agreement has been duly and validly authorized, executed and
delivered by Green Bay and constitutes a legal, valid and binding obligation of
Green Bay and the Green Bay Water Utility enforceable against them in accordance
with its terms, and
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(e) That the execution and delivery of this Agreement and compliance by Green
Bay and the Green Bay Water Utility with its terms will not conflict with or
constitute on the part of Green Bay or the Green Bay Water Utility a breach of or a
default under any existing statute, law, governmental rule, regulation, decree,
resolution, ordinance, charter or order, or any agreement, indenture, mortgage,
lease or instrument to which Green Bay or the Green Bay Water Utility are subject
or by which it is or its properties are or may be bound.
(f) That the Green Bay Water Utility will only use the funds derived from the
sale of water hereunder for water related operations within the Green Bay
Waterworks System.
Section 16.3 REPRESENTATIONS AND WARRANTIES OF HOBART. Hobart
represents and warrants:
(a) That Hobart is a political subdivision and municipal corporation of the State
of Wisconsin and is fully authorized and empowered under the laws of the State of
Wisconsin to enter into this Agreement and to perform its obligations hereunder,
(b) That no consent, order, waiver or any other action by any person, board or
body, public or private, is required as of the date of execution of this Agreement by
Hobart to enter into this Agreement and to perform its obligations hereunder,
(c) That there is no action, suit or proceeding at law or in equity or by or before
any Governmental Authority pending or threatened against or affecting Hobart or
the Hobart Waterworks System which seeks to prohibit, restrain or enjoin Hobart
from entering into or complying with its obligations contained in this Agreement or
in any way affects or questions the validity or enforceability of this Agreement, or
in any way might materially adversely affect Hobart’s ability to carry out the
transactions contemplated by this Agreement,
(d) That this Agreement has been duly and validly authorized, executed and
delivered by Hobart and constitutes a legal, valid and binding obligation of Hobart
enforceable against them in accordance with its terms, and
(e) That the execution and delivery of this Agreement and compliance by
Hobart with its terms will not conflict with or constitute on the part of Hobart a
breach of or a default under any existing statute, law, governmental rule, regulation,
decree, resolution, ordinance, charter or order, or any agreement, indenture,
mortgage, lease or instrument to which Hobart is subject or by which it is or its
properties are or may be bound.
Section 16.4 OPINIONS AS TO VALIDITY. Concurrent with the execution and
delivery of this Agreement, each Party shall furnish the other Party with an opinion by an
attorney or firm of attorneys stating that based upon such attorney’s knowledge and due
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investigation, such Party’s representations and warranties in Section 16.1, Section 16.2 or
Section 16.3, as applicable, are true, correct and accurate as of the Effective Date hereof.
Section 16.5 MUTUAL COOPERATION. The Parties agree that they are bound by
the covenants of good faith and fair dealing and further agree to cooperate with each other
and to diligently ensure the performance of their respective obligations under this
Agreement. Unless expressly provided otherwise in this Agreement, where the Agreement
requires the consent, approval, or similar action by a party, such consent, approval, or other
similar action shall not be unreasonably withheld, conditioned, or delayed, and wherever
the Agreement gives a party a right or obligation to determine, require, specify, or take
similar action with respect to a matter, such determination, requirement, specification, or
similar action shall be reasonable and timely.
Section 16.6 COOPERATION IN CONSTRUCTION. The Parties shall cooperate with
each other in the construction of the facilities required to be constructed by the Parties
hereto for the Green Bay Water Utility to provide wholesale water service to Pulaski in the
manner contemplated hereunder. Pulaski shall, if necessary, grant without charge to the
Green Bay Water Utility and Hobart any reasonably required construction easements and
any easements necessary for portions of the Green Bay Waterworks System or the Hobart
Waterworks System to be located on property of Pulaski or property over which Pulaski
has access rights including that related to the Interconnection Facilities, provided that the
Green Bay Water Utility and Hobart agrees to restore the easement property in a
reasonable manner after construction and further provided that the Green Bay Water Utility
and Hobart shall, as may apply, maintain the easement property necessary for portions of
the Green Bay Waterworks System or the Hobart Waterworks System to be located within
the Pulaski corporate municipal boundary or for such property as Pulaski shall have
easement or other access rights in connection with the operation of the Interconnection
Facilities. Similarly, the Green Bay Water Utility and/or Hobart shall, if necessary, grant
without charge to Pulaski any reasonably required construction easements and any
easements necessary for portions of the Pulaski Waterworks System to be located on either
Green Bay or Hobart property, provided Pulaski agrees to restore the easement property in
a reasonable manner after construction further provided that the Green Bay Water Utility
or Hobart shall maintain the easement property necessary for portions of the Pulaski
Waterworks System to be located within the corporate municipal boundary of either Green
Bay or Hobart.
ARTICLE XVII
GOVERNMENTAL AUTHORITY APPROVALS
Section 17.1 PSC APPROVAL AND DECLARATION OF AGREEMENT AS REASONABLE
AND PRUDENT. The performance of Green Bay, the Green Bay Water Utility and Hobart is
contingent upon receiving PSC approval of this Agreement in the form of a declaratory
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ruling and/or other appropriate PSC order, that this Agreement is reasonable, prudent and
in the public interest. Such PSC approval shall include, among other approvals:
(a) Approval of the rate to be charged by the Green Bay Water Utility to
Pulaski as contemplated under Article VII for the term of this Agreement,
(b) A declaration that the Green Bay Water Utility shall have no obligation to
provide any service to Pulaski or to any other retail or wholesale customer of the
Pulaski except as contemplated by this Agreement,
(c) Approval of the Conveyance Charge to be charged by Hobart for the
transmission and transportation of Potable Water from Green Bay to Pulaski
through the Hobart Waterworks System.
(d) Approval of all of the Parties’ rights, duties and obligations hereunder.
(e) The acceptability of any such PSC approvals obtained shall be determined
by Green Bay and Hobart in their respective sole discretions.
Section 17.2 GOVERNMENTAL AUTHORITY APPROVALS FOR GREEN BAY. The
Green Bay Water Utility shall apply to the PSC for certificates of authority for all Capital
Projects listed on ATTACHMENT “A” as being required prior to the commencement of
wholesale water service hereunder. The Green Bay Water Utility shall also apply for all
other Governmental Authority approvals necessary prior to the commencement of service
hereunder. The Green Bay Water Utility shall use its best efforts to file such applications
as soon as practicable. Hobart and Pulaski shall be allowed to review and comment on
such applications before they are submitted and will support the applications as reasonably
necessary.
Section 17.3 GOVERNMENTAL AUTHORITY APPROVALS FOR HOBART. Hobart
shall apply to the PSC for certificates of authority or other approvals necessary to permit
use of the Hobart Waterworks System for the transmission and transport of Potable Water
from Green Bay to Pulaski as contemplated by this Agreement and for the approval of a
Conveyance Charge as provided in Section 7.5 hereof. Hobart shall use its best efforts to
file such applications as soon as practicable. The Green Bay Water Utility and Pulaski
shall be allowed to review and comment on such applications before they are submitted
and will support the applications as reasonably necessary.
Section 17.4 GOVERNMENTAL AUTHORITY APPROVALS FOR PULASKI. Pulaski
shall apply to the PSC for certificates of authority for the construction of any facilities or
improvements to the Pulaski Waterworks System required prior to the commencement of
wholesale water service hereunder. Pulaski shall also apply for and obtain all other
Governmental Authority approvals necessary prior to the commencement of service
hereunder. Pulaski shall use its best efforts to file such applications as soon as practicable.
The Green Bay Water Utility and Hobart shall be allowed to review and comment on such
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applications before they are submitted and will support the applications as reasonably
necessary.
Section 17.5 LATER GOVERNMENTAL AUTHORITY APPROVALS. After the Green
Bay Water Utility has commenced providing wholesale water service hereunder, the
Parties hereto shall, from time to time when necessary, seek all other Governmental
Authority approvals necessary for the continued satisfaction of their respective obligations
arising hereunder. Each Party shall be allowed to review and comment on the other Party’s
applications before they are submitted and will support the other Party’s applications as
reasonably necessary.
ARTICLE XVIII
EFFECTIVE DATE; TERM OF CONTRACT; TERMINATION
Section 18.1 EFFECTIVE DATE. This Agreement shall become effective on the
day and year first written above (the “Effective Date”). The obligation of Green Bay and
the Green Bay Water Utility to deliver Potable Water under this Agreement and of Hobart
to transport and transmit Potable Water hereunder, however, shall not begin until the date
established under Section 8.1.
Section 18.2 TERM OF CONTRACT. The term of this Agreement shall run from the
Effective Date to 11:59:59 p.m. on December 31, 2045, at which time this Agreement shall
automatically renew in accordance with Section 18.3; provided, however, that this
Agreement shall terminate on or upon the earliest of any of the following dates or events:
(a) Upon three (3) months written notice provided by either Green Bay or
Hobart to Pulaski in the event that Pulaski at any time fails to fully satisfy its
obligations under Sections 6.1, 6.2, 6.3, 6.4, 6.5, 8.2, 11.1, 11.3, 11.5, 11.7 and/or
11.8; provided, however, that such termination shall not modify any obligations of
the Parties arising prior to such termination, including, without limitation, those
obligations set forth in Sections 6.1 through 6.4, 8.2 and 11.4, and further provided
that if Pulaski cures all such defaults with thirty (30) days of receiving such written
notice from Green Bay or Hobart, then such written notice shall be considered
withdrawn and the Agreement shall remain in full force and effect.
(b) Upon three (3) years written notice provided by Green Bay or Hobart to
Pulaski in the event that the PSC takes any action inconsistent with the PSC
approvals and rulings obtained by the Parties as contemplated under Article XVII;
provided, however, that such termination shall not modify any obligations of the
Parties arising prior to such termination, including, without limitation, those
obligations arising under Sections 6.1 through 6.4, 8.2 and 11.4.
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Section 18.3 AUTOMATIC RENEWAL OF TERM. Unless terminated earlier as
otherwise contemplated herein, beginning January 1, 2046 this Agreement shall
automatically renew on an annual basis and the provision of service to Pulaski hereunder
by Green Bay and Hobart shall remain subject to all applicable terms and conditions
herein, including, without limitation, Section 7.5, unless, on or before March 31 of any
Fiscal Year, Pulaski informs Green Bay and Hobart in writing that it wishes to terminate
the Agreement effective as of 11:59 p.m. on December 31 of such Fiscal Year. In the
event of such termination notice, the Parties agree to make all necessary filings with the
PSC in order to effectuate such Agreement termination on a mutually satisfactory basis.
ARTICLE XIX
MISCELLANEOUS PROVISIONS
Section 19.1 GOVERNING LAW AND VENUE. This Agreement and the rights of the
Parties hereunder shall be interpreted and enforced in accordance with the laws of the State
of Wisconsin. All actions involving breach of this Agreement shall be venued in Brown
County, Wisconsin.
Section 19.2 REGULATORY BODIES. The Parties through this Agreement seek to
exercise and maintain all rights granted to them under and through the Constitution and
laws of the State of Wisconsin. This Agreement shall be subject to all valid rules,
regulations, and laws applicable hereto passed or promulgated by the United States of
America, the State of Wisconsin, or any Governmental Authority having lawful
jurisdiction; provided, however, that this clause shall not be construed as waiving the right
of either Party to challenge the validity of such rule, regulation, or law on any basis,
including the impairment of this Agreement.
Section 19.3 COMPLIANCE WITH LAWS AND ORDERS. In the event that any state or
federal law or regulation, or any order issued by a Governmental Authority, prohibits one
or both of the Parties from honoring any provision of this Agreement, or any part thereof,
the Parties shall promptly meet to discuss how they might satisfy the intent of this
Agreement by alternative means. If, under such circumstances and after good faith
negotiations, the Parties are unable to reach a mutually acceptable written agreement to
satisfy the intent of the Agreement, then this Agreement shall be null and void and of no
further legal effect.
Section 19.4 LACK OF SEVERABILITY IN ABSENCE OF WRITTEN AMENDMENT. In
the event that any provision of this Agreement, or any part thereof, is held by a court of
competent jurisdiction or determined by the PSC or any other Governmental Authority to
be invalid, ineffective or unenforceable, and in the reasonable opinion of either Party such
event invalidates the purpose or intent of this Agreement, then the balance of this
Agreement shall survive only to the extent that the Parties agree, in writing, to a mutually-
satisfactory amendment by which they are able to satisfy the intent of this Agreement by
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alternative means. If, under such circumstances and after good faith negotiations, the
Parties are unable to reach such a mutually acceptable written amendment to satisfy the
intent of the Agreement, then this Agreement shall be null and void and of no further legal
effect.
Section 19.5 CHANGES IN LAWS. Unless otherwise explicitly provided in this
Agreement, any reference to laws, ordinances, rules, or regulations shall include such laws,
ordinances, rules, or regulations as they may be amended or modified from time-to-time
hereafter.
Section 19.6 ENTIRE AGREEMENT. This Agreement, including the Attachments
hereto, contains the entire agreement between the Parties with respect to the transactions
contemplated by this Agreement and matters related thereto, and does hereby supersede
and render null and void and of no further force or effect any and all prior agreements,
drafts of agreements and understandings between the Parties.
Section 19.7 ACCOUNTING AND AUDIT. The Parties shall have the right
throughout the term of this Agreement, upon reasonable prior notice, to audit the other
Party’s books and records to the limited extent necessary to verify the basis for any claim
by either of the Parties for payments hereunder or to determine the other Party’s
compliance with the terms of this Agreement. The audited Party shall make such records
available at its office during normal business hours and the auditing Party shall reimburse
the other Party for reasonable costs incurred by the audited Party by the audit, as supported
by appropriate documentation.
Section 19.8 INTERPRETATION. This Agreement shall be interpreted as though
jointly drafted by the Parties.
Section 19.9 HEADINGS. The headings, titles or captions contained in this
Agreement have been inserted only as a matter of convenience and for reference, and such
captions in no way define, limit, extend or describe the scope of this Agreement or the
intent of any provision hereof.
Section 19.10 ATTACHMENTS The Attachment attached hereto is, by this reference,
incorporated herein. In case of any conflict between an Attachment to the Agreement and
the text of this Agreement, the text of this Agreement shall control.
Section 19.11 NO THIRD-PARTY BENEFICIARIES. Except as otherwise explicitly
provided by this Agreement, this Agreement does not create any third-party benefits to any
person or entity other than the Parties and is solely for the consideration herein expressed.
Section 19.12 SUCCESSORS. This Agreement shall benefit and be binding upon the
Parties’ successors and permitted assigns.
Section 19.13 FURTHER ACTION. Each of the Parties agrees from time to time to
execute and deliver such further instruments, and to take such further action not
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inconsistent with the provision of this Agreement, as may reasonably be necessary in order
to fully perform and carry out the terms and intent of the Agreement.
Section 19.14 AMENDMENTS. This Agreement may not be modified or amended
except by a written instrument executed by the Parties hereto.
Section 19.15 TIME IS OF THE ESSENCE. Time is of the essence in the performance
of all terms and provisions of this Agreement.
Section 19.16 EXECUTION IN COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be considered an original instrument, but all of which
shall be considered one and the same Agreement.
IN WITNESS WHEREOF, the parties hereto have by their duly authorized
officers and representatives set their hands and affixed their seals on the date set forth
below.
Dated: ___________________ CITY OF GREEN BAY
By:_________________________________
Eric Genrich, Mayor
Attest:
By:__________________________________
Celestine Jeffreys, Clerk
Dated: ____________________ GREEN BAY WATER COMMISSION
By:________________________________
John C. Heugel President
Attest:
By:__________________________________
Tom Karman, Secretary-Treasurer
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Dated: ____________________ VILLAGE OF HOBART
By:__________________________________
Richard Heidel, Village President
Attest:
By:__________________________________
Lisa Vanden Heuvel, Clerk
Dated: _____________________ VILLAGE OF PULASKI
By:__________________________________
Keith Chambers, Village President
Attest:
By:__________________________________
Jessica Giese, Deputy Clerk
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CITY OF GREEN BAY,
VILLAGES OF HOBART AND PULASKI
WHOLESALE WATER SERVICE AGREEMENT
ATTACHMENT "A"
CAPITAL PROJECTS
YEAR 2025: Projected cost of design and construction of a booster station; pressure
control station; 8.25 miles of 20-inch transmission main; and associated chlorination
equipment, meters, pumps, and valves: $15,373,913.00 (estimated). This cost is projected
to cover all infrastructure; including but not limited to the two stations, treatment
applications, construction of a 20-inch transmission main between the Hobart / Pulaski
Point of Delivery and the Pulaski Point of Delivery, and all related fittings, valves, and
engineering.
AID IN CONSTRUCTION
Green Bay Water Utility shall contribute the sum of $1,330,000.00 to the Village of
Pulaski as a non-repayable grant, when, after the award of construction, Pulaski has issued
the notice to proceed. These funds will be used by Pulaski for capital expenses associated
with this Project.
POINTS OF DELIVERY
1. GREEN BAY / HOBART: 12-inch water main on Hillcrest Drive at the
center of Duck Creek.
2. HOBART / PULASKI: Intersection of North Overland Road and Centerline
Drive in Hobart.
3. PULASKI: Intersection of County "B" and Corporate Way in Pulaski.
MINIMUM DAY WATER DEMAND (PULASKI): Equal to an average daily use per
calendar year of Three Hundred Thousand (300,000) Gallons Per Day.
MAXIMUM DAY WATER DEMAND (PULASKI): One Million Seventy Five
Thousand (1,075,000) Gallons.
INITIAL VOLUME RATE: Wholesale Water Service shall be furnished to Pulaski by
the Green Bay Water Utility at the initial volume rate of $2.98 per thousand gallons,
subject to any intervening PSC rate increases.
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HOBART WATER CONVEYANCE CHARGE The initial fee to be charged to
Pulaski by Hobart for the transmission of potable water from the Green Bay Water Utility
to Pulaski through the Hobart Waterworks System as a Water Conveyance Charge shall be
at the initial volume rate of $0.50 per thousand gallons.
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Green Bay Water Commission
GENERAL MANAGER UPDATE
DATE: August 11th, 2025
TO: Green Bay Water Commission
FROM: General Manager Brian Powell, P.E.
RE: General Manager Update
General Manager Brian Powell will provide the commission with updates on the following
initiatives within our organization:
1. Wholesale Customer Update
2. WIAWWA Conference September 10th-12th
3. Workforce Report
a. Connie Wielgus – 35 Years, Billing & Records Coordinator
b. Safety Coordinator