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HomeMy WebLinkAboutBPW-10-18-17-01/Duke Energy/Eng/Phase I and III Transmission Relocation AgreementRESOLUTION NO. BPNN' 10-18-17-01 RESOLUTION OF THE CITY OF CARMEL BOARD OF PUBLIC WORKS AND SAFETY ACKNOWLEDGING RECEIPT OF CONTRACT WHEREAS, pursuant to Indiana Code 36-1-4-7, the City of Carmel, Indiana ("City"), is authorized to enter into contracts; and WHEREAS, pursuant to Indiana Code 36-4-5-3(9), only the Mayor is authorized to sign City contracts; and WHEREAS, pursuant to his authority under Indiana law, Mayor James C. Brainard has caused to be signed the City contract attached hereto as Exhibit A (the "Contract"); and WHEREAS, Mayor Brainard now wishes to present the contract to the City's Board of Public Works and Safety for it to be publicly acknowledged, filed in the Clerk -Treasurer's Office, and made available to the public for review. follows: NOW, THEREFORE, BE IT RESOLVED by the City of Carmel Board of Public Works and Safety as 1. The foregoing Recitals are incorporated herein by this reference. 2. The receipt of the Contract is hereby acknowledged. 3. The Contract shall be promptly filed in the office of the Clerk -Treasurer and thereafter made available to the public for review. SO RESOLVED this day of r' , 2017. CITY OF CARMEL, INDIANA By and through its Board of Public Works and Safety. BY: A, ©--� James Brainard, Presiding Officer C ristine Pauley, Cyrk-7 Date: 1 S:\EBass\N4yDocuments\BPW-Resolutions\2017\Acknowledge Duke Energy Phase I and III Transmission Relocation Agreement.docxIOW2017 11:03 AM Phases I and III Relocation Agreement — Final Execution Copy PHASES I AND III TRANSMISSION RELOCATION AGREEMENT THIS PHASES I AND III TRANSMISSION RELOCATION AGREEMENT (the "Agreement") is entered into and effective this day of , 2017, by and between DUKE ENERGY INDIANA, LLC, ("DEI") an Indiana limited liability company, with an address of 1000 East Main Street, Plainfield, Indiana 46168 and the CITY OF CARMEL, INDIANA ("Carmel" or the "City") with an address of One Civic Square, Carmel, Indiana 46032. WHEREAS, Carmel and DEI (individually, a "Party" and collectively, the "Parties") entered into a Memorandum of Understanding (MOU) (attached and incorporated herein as Exhibit 1) effective November 30, 2016, by which they agreed to terms under which DEI would relocate certain overhead electric transmission and distribution facilities, including poles, wires and other equipment necessary for the transmission and distribution of electricity (the "Facilities"), currently located in a transmission corridor comprised of written and prescriptive easements owned by DEI and extending, for purposes of the description of this project, from the north right of way line of 1 sc Street Northwest, then south to the south right of way line of East Carmel Drive (the "Easements"); and WHEREAS, DEI is willing to relocate the Facilities provided that the City will (a) pay for all costs related to the relocation of the Facilities; and (b) provide exclusive underground transmission easements and non-exclusive distribution easements that the City will obtain for or grant to DEI as a replacement for the Easements; and (c) provide certain protections and assurances for any portion of the newly granted easements which are or will become public road right of way, all as more particularly described in the MOU and in this Agreement; and Phases I and III Relocation Agreement — Final Execution Copy WHEREAS, relocation of the Facilities is to be done in proposed Phases I through IV (collectively, the "Project"); and WHEREAS a preliminary aerial depiction of the Project and its proposed Phases is attached as Exhibit A to the MOU; and WHEREAS, the Parties desire to document their agreement with respect to the terms and conditions for the initiation and completion of Transmission Phases I and III (as defined below) in accordance with the terms of this Agreement. NOW THEREFORE, IN CONSIDERATION of the mutual promises contained herein the Parties agree as follows: Section 1— Order of Precedence: This Agreement shall consist of the following documents, listed in their order of priority in the event of a conflict: a) any Amendment to this Agreement signed by both Parties; b) this Agreement; c) the MOU; and d) Exhibits to this Agreement and e) Exhibits to the MOU, as applicable. Any capitalized terms used in this Agreement and not defined herein shall have the meaning ascribed to such terms in the MOU. Section 2 — Transmission Phases I and III. Transmission Phase I is to commence on the south right of way line of East Carmel Drive at above -ground facilities to be located at the southwest corner of Parcel # 16-09-36-04-02- 003.000 (the Parcel) on an existing DEI above -ground easement; move north along the west side of the Parcel in a City -obtained above -ground easement to a riser pole near East Carmel drive; pass under East Carmel Drive in a City -granted Exclusive Public Road Underground Right -of - Way (EPRUROW); proceed eastward in an exclusive underground easement on private property to the City right of way that abuts the Proscenium development on that development's Phases I and III Relocation Agreement — Final Execution Copy west side. From there, the transmission facilities will run north in a City EPRUROW under what will be parking and grassy areas until it meets Veteran's Way, from where it will proceed north in a City EPRUROW to Transmission Phase III. Transmission Phase III will meet Transmission Phase I and commence north, in a combination of the south- and northbound travel lane of Veteran's Way (subject to final design which may require that Phase III veer to the center of Veteran's Way) and turns west just north of the Carmel Fire Station, ending at the south end of the existing 69kV underground facilities located near the northwest corner of the Carmel Fire Station property, all as depicted in the attached Exhibit 2 (Hereinafter, Phases I and III Relocation Areas). (For clarity, Exhibit 2 shall take precedence in describing Phases I and III over words in this Section to the extent there is a conflict). The Parties agree that the Phase I and III Relocation Areas, as depicted in Exhibit 2 are final unless amended in a writing agreed upon and executed by both Parties. Section 3 City's Obligations Prior to Commencement of Transmission Phases 1 and I11 Relocation Services: Carmel, at its sole expense, shall provide to DEI the following items prior to the commencement of any Transmission Phases I and III Relocation Services (defined in Section 6 below) by DEI. The City agrees that the following are conditions precedent to DEI's obligation to perform the Transmission Phases I and III Relocation Services and that if any of the following conditions are not met as to either Phase, DEI may terminate this Agreement under Section 5 and shall have no further obligations to the City and the City shall have no recourse against the DEI Releasees (as that term is defined in Section 12, below). This Agreement is not intended to affect any rights the City may have under law or equity against any third party, subject only to the indemnity provisions of Section 12. Phases I and III Relocation Agreement — Final Execution Copy A. Documentation from the appropriate Carmel governing body or entity that DEI has been granted the EPRUROWs necessary to create all Phase I and III Relocation Areas. The term "Exclusive" in the above- defined term (See Section 2) means that no other utilities may run in parallel within the DEI EPRUROWs and that any crossing utilities have been approved in advance by DEI to ensure they are sufficiently distant from the distribution and transmission line and clearly and readily identifiable, all as more fully described below and subject to only those conditions set forth in Paragraph D (1) through D (3). Such EPRUROWs must be and remain i) exclusive; ii) a minimum of 25 feet wide; and iii) able to meet DEI engineering depth requirements which are dependent on grading and other variables. DEI shall be first in time with respect to each easement grant in each EPRUROW. B. With respect to each EPRUROW: 1. DEI and the City shall work together to ensure that each EPRUROW and its exclusivity shall have been properly memorialized and recorded with the applicable property records in the Hamilton County, Indiana Recorder's office; 2. Documentation of the passage of a non -revocable ordinance or resolution(s) by the City's Board of Public Works (or similarly authorized entity) limiting the use of DEI's EPRUROWs by third parties including specifically that (A) the City shall not use or authorize any third party to make use of the EPRUROWs where the DEI's underground transmission facilities are located without the prior review and written approval of DEI (which may be withheld in DEI's reasonable discretion) and (B) the City 4 Phases I and III Relocation Agreement — Final Execution Copy shall be responsible for all costs if DEI must repair, modify or relocate its Facilities as a result of any non -approved use of DEI's EPRUROWs. 3. Documentation that written direction shall have been provided by the City to the City's permitting entities that officially notifies them of the ordinance/resolution and their conditions as set forth above in sub- paragraph B(2). 4. Evidence that the City has ensured that where anew projector development is within 100 feet of DEI's EPRUROWs, the City shall include a description of the 25' exclusive easements' location and recording information in each dedication or grant of public road right of way the City accepts from a developer. 5. Documentation that, with respect to each EPRUROW, the City agrees that if at any time a DEI Transmission Facility in said EPRUROW needs to be relocated, modified or supported for a City project or any governmental project, the City shall reimburse DEI for its actual costs incurred with such relocation, modification or support (with DE Indiana providing the City with reasonable documentation of any such costs). Paragraphs 3(B) (1)-(4) are intended to provide third parties, including other utilities and developers, whether present or future, notice of DEI's exclusive underground rights as granted by the City for the Transmission Phases I and III Relocation Areas; C. A written, duly authorized waiver by Hamilton County and it's applicable drainage boards waiving their statutory rights, present and future, to require DEI to (1) obtain a permit to use any legal drain that is or may be placed in Phase I or Phase III and/or (2) 5 Phases I and III Relocation Agreement — Final Execution Copy relocate, modify or support DEI facilities in the Phases I and III Relocation Areas at the expense of DEI because of any present or future drain project or alternatively, proof that any county drains have been transferred to the City and that the City has provided a waiver that meets the terms of this Paragraph C; D. Documents identifying all utilities and their location in the 25 -foot EPRUROWs in the Phases I and III Relocation Area. DEI shall have no obligation to proceed with Phases I and III Relocation Services until such utilities have been identified and either relocated or determined by DEI, in its sole judgment, to present no threat to the safety or reliability of the Facilities, including without limitation, thermal influence; provided however, subject to the following conditions: 1. Already existing City storm sewer or sanitary sewer may remain within in the EPRUROWs so long as the storm sewer or sanitary sewer or any portion thereof does not present a threat to the safety or reliability of the Facilities as agreed to by DEI in its reasonable discretion, and so long as it is only either storm sewer or sanitary sewer but not both (except in limited instances where the two cross); 2. The City shall have the right to cross DEI's EPRUROWs with the City's water lines so long as the City crosses in a perpendicular fashion, at an angle greater than 30 degrees off the road center line, with appropriate clearances as required by code, accepted standards, DEI (or its affiliate's) operational requirements, or as agreed upon by the parties. Any such crossings and their approval by DEI shall be documented. 6 Phases I and III Relocation Agreement — Final Execution Copy 3. To the extent City storm sewer or sanitary sewer (or by agreement with DEI, other utilities) remains in the DEI EPRUROWs in the Phases I and III Relocation Areas, the City shall provide executed encroachment agreements with DEI in a form acceptable to DEI. If any utility is currently located in DEI's EPRUROW or if crossing those EPRUROWs presents a threat to the reliability or safety of the Facilities, that utility shall be relocated by a party other than DEI at no cost to DEI or, if such utility cannot be relocated, the Parties may agree to modify the Phases I and III Relocation Areas or, barring an ability to agree on a modification, this Agreement shall be terminated without recourse to the City but subject to the provisions of Section 11; E. The documents described in Paragraph D above, shall have been provided during preliminary engineering and DEI shall not be obligated to undertake final engineering until such documents are received and approvals by DEI, if any, given; F. Written verification that all necessary licenses and permits to effectuate Transmission Phases I and III Relocation Services have been obtained by the City for and to the benefit of DEI, or if none are required, a statement that this is the case; G. All easements and proof of title in a form acceptable to DEI, from property owners other than the City, who must provide easements in Transmission Phases I and III Relocation Areas; H. All rights of entry/access agreements, in a form acceptable to DEI, necessary to effectuate the installation and maintenance of Transmission Phases I and III Facilities; Phases I and III Relocation Agreement — Final Execution Copy I. All soil boring results, based on soil borings initially staked by DEI as necessary to effectuate Transmission Phases I and III or re -staked by the City based on any subsequent changes. City's contractor shall provide the coordinates of any actual boring locations; J. All final road construction drawings/specifications/plans requested by DEI ftom the City necessary to undertake preliminary and final engineering of Transmission Phases I and III; K. A pre -qualified list of contractors, as approved by DE Indiana, to whom the City intends to open bidding for the construction of any underground duct banks in the Phases I and III Relocation Areas; L. Proof of construction of all necessary underground facilities in the Phases I and III Relocation Areas, including duct banks, by the City, to DEI's specifications as evidenced by test results approved by DEI in its sole reasonable judgment and subject to the following conditions: 1. DEI shall have free access to inspect all City -built facilities in the Relocation Areas, with reasonable notice to the City, including duct banks and DEI shall not be liable for delays or costs resulting from such inspections. Such inspections will be undertaken by an inspector of DEI's choosing, whose costs shall be part of the project costs to be paid by the City. No such inspections shall relieve the City of any of its obligations to provide the items in Section 3, duct banks or the Relocation Areas. 2. The City will undertake the construction of any necessary underground duct banks and structures to effectuate the Relocation of the Facilities using a DEI - approved contractor, who shall construct the underground facilities to meet DEI's Phases I and III Relocation Agreement — Final Execution Copy standards and specifications. DEI will provide an inspector, to be charged as part of Project costs, at the time of installation of such items to review and approve work as satisfactorily completed. DEI will not assume any liability arising from or related to the incorrect construction of the underground ducts by the City's contractor and reserves the right to reject the existing duct bank in any proposed Phase if it does not meet its standards or is unable to pass testing prior to repairs. The City agrees that it will pay for any and all costs associated with the repair of the existing duct bank in the event DEI determines that the existing duct bank can be used. DEI will remain responsible for the design/construction and installation of electrical equipment, but all costs associated therewith are to the City's account. This Agreement is not intended to affect any rights the City may have under law or equity against any third party, subject only to the indemnity provisions of Section 12. M. All necessary environmental test results, showing no negative conditions, as necessary to effectuate Phases I and III. In the event environmental boring/testing/sampling reveals any type of environmental condition that may affect reliable and safe service via underground Facilities in Phase I or III of this Project, Phases I and III may be cancelled pursuant to Section 5 and Phases I and III Transmission Facilities will remain above- ground in the existing Easements; and N. Payment of any Invoice or Procurement Agreement issued to the City for pre -order, long lead materials necessary to undertake Phases I and III. 9 Phases I and III Relocation Agreement — Final Execution Copy Section 4-- DEI's Obligations Prior to the Commencement of Transmission Phases I and III Relocation Services: DEI shall provide to City the following prior to the commencement of Transmission Phase I and III Relocation Services: A. The location for any soil borings necessary for preliminary engineering, subject to the Section 3(I); B. Upon receipt from the City of the final road design, the location of any final design borings and/or environmental borings, subject to Section 3(I); C. Upon receipt from the City of the final road design, easement documents prepared by or on behalf of DEI, for which the City will obtain signatures, to secure the easements and EPRUROWs for the Phase I and III Relocation Area; D. The materials estimate for work on Transmission Phases I and III; E. Design and test specifications for any underground duct construction to be done by the City's contractor; F. Written approval or reasons for rejection, if any, of a) soil borings; b) environmental borings; or c) duct banks or test results. 1. If DEI determines that duct banks or other City -built facilities in the Phases I or III Relocation Areas do not meet DEI specifications for Transmission Facilities, DEI will notify the City in writing and in good faith, will work with the City to resolve such discrepancies to its reasonable satisfaction. 2. If discrepancies are not resolved within 30 days of notice or cannot be resolved, DEI may either fix the discrepancies to its satisfaction at the sole cost to the City and, if that is not possible, may terminate this Agreement pursuant to Section 5. 10 Phases I and III Relocation Agreement — Final Execution Copy Section 5 -- Termination Prior to Commercial Operation of Transmission Phase I and Phase III Relocated Facilities: 1. By City. Upon 15 days written notice to DEI, the City shall have the right to terminate this Agreement at any time prior to the operation of the relocated Transmission Phase I and III Facilities, provided that City shall pay for all costs incurred by DEI arising out of or relating to the Relocation Services, which Services are more fully described in Section 6, and the MOU and that are or may reasonably be incurred in terminating this Agreement. 2. By Upon 15 days written notice to City and based on the City's failure to meet the conditions precedent under Section 3 or the terms of the MOU, DEI may terminate this Agreement; provided however, the City shall have been given written notice by DEI of any default and 15 business days to cure said default prior to the written notice of termination under this section and provided that once DEI has relocated the Transmission Facilities underground, absent cause, it will not terminate this Agreement. In the event of a termination under this section, the City, on behalf of any of its Boards or entities, shall pay for all costs incurred by DEI arising out of or relating to the Transmission Phases I and III Relocation Services, pursuant to Section 11 and that are or may reasonably be incurred in terminating this Agreement. The City, nor any of its Boards or other entities, shall have recourse against DEI under this Agreement or the MOU arising from a termination under this Section 5. 3. In the event this Agreement and the MOU are terminated, all Phase I and III transmission Facilities will remain in the existing above -ground Easements and the 11 Phases I and III Relocation Agreement — Final Execution Copy City will take no action to interfere with or otherwise eject or remove DEI from the above -ground Easements. Section 6 — Transmission Phases I and Phase III Relocation Services: Assuming the City has met its obligations under this Agreement and specifically, all the conditions precedent under Section 3 and assuming neither Party has terminated this Agreement under Section 5, DEI, with its regular construction or maintenance crew and personnel, at its standard schedule of wages and working hours, or by a DEI approved contractor, and at the sole expense of the City, shall relocate the transmission Facilities currently in the Easements to the Phases I and III Relocation Areas (the "Transmission Phase I and III Relocation Services"). The Transmission Phase I and III Relocation Services performed by DEI shall be limited to installing, testing, and commissioning all transmission Facilities in City -built and provided duct banks (or where applicable, in above -ground easements) in the Phases I and III Relocation Areas. Section 7 — Relinquishment of Easements: DEI will retain its current Easements and maintain energized above -ground Facilities until all of the following have been confirmed by DEI in its reasonable discretion: a) the new easements have been granted and are recorded so as to confer the necessary rights on DEI and to provide adequate notice to third parties; b) the underground facilities are tested, energized and operational; and c) all existing customers are assured continuous services. Only if and after these requirements are met, will DEI remove overhead facilities and upon completion of the removal, release any portion of its Easements and then only with respect to the Transmission Phases I and III Services that have been completed. In the event the above -ground Facilities have third -party attachers, the City shall be responsible for contacting such third -party attachers to remove any of 12 Phases I and III Relocation Agreement — Final Execution Copy the third -party facilities at the third party's cost. DEI has provided the City with all available information about potential third party attachers and shall have no further obligation to contact them, remove the facilities, or any liability for costs associated with their removal. If at the time DEI is ready to remove its above -ground Facilities and third -party attacher facilities remain on DEI's above -ground Facilities, DEI will leave any necessary remaining portions of such Facilities (for example, some portion of a pole), which then shall become the sole responsibility of the City. Section 8 -- Road Closures: The City agrees that at its sole expense it will give DEI immediate and unrestricted access to any new underground Facilities via street closures (or other necessary actions), and will undertake immediate traffic control in the event of an emergency condition to effectuate repairs and maintenance to the Facilities. The City acknowledges that street closures may occur for extended periods to allow for repair, maintenance or replacement and agrees to provide the necessary time without pressure to reopen such streets. For non -emergency conditions for repairs and maintenance, notice shall be given by DEI, with reasonable efforts to avoid repairs and maintenance during previously scheduled festivals, events or parades. Upon such notice, the City shall give the same access as for emergency repairs or maintenance. The parties agree that "emergency conditions" include but are not limited to, unplanned work and any work that is subject to a MISO-imposed timeline. The City shall provide a copy of this or any later relevant agreement to the appropriate City departments or entities with which DEI must work in these situations. For example, if the police department will effectuate a street closure, the department must be given notice of this provision and the City must provide a point of contact to DEI. That point of contact shall have all necessary authority to grant DEI immediate access. 13 Phases I and III Relocation Agreement — Final Execution Copy Section 9 — No Warranties: Because relocation of DEI's Transmission Facilities is subject to regulatory requirements outside of this Agreement, DEI disclaims any and all warranties with respect to the Transmission Phases I and III Relocation Services performed hereunder and the Phase I and Phase III relocated Transmission Facilities and ALL WARRANTIES WHETHER STATUTORY, ORAL, WRITTEN, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR ANY GUARANTEES ON COMPONENT LIFETIME ARE HEREBY DISCLAIMED BY DEI AND ITS AFFILIATES. This Agreement is not intended to affect any rights the City may have under law or equity against any third party, subject only to the indemnity provisions of Section 12. Section 10 — Title and Risk of Loss: A. Title to Relocation Facilities in the Relocation Areas: To the extent the City provides duct banks or other relocation facilities in the Phase I and III Relocation Areas, ownership and title to such facilities shall remain with the City as applicable both during the Phase I and III Relocation process and for the entire period that the Transmission Facilities remain in the Phase I and III Relocation Areas subject to the easements and rights of use to be granted to DEI in accordance with the terms of this Agreement and as contemplated in the MOU. B. Risk of Loss/ Maintenance of City -provided Relocation Facilities: The City shall be solely responsible for the cost of maintenance, repair, replacement and upkeep of any City -owned duct banks or relocation facilities provided by the City in accordance with the terms of this Agreement or as contemplated in the MOU. The City and DEI shall coordinate with each other to undertake such maintenance, repair, replacement and 14 Phases I and III Relocation Agreement— Final Execution Copy upkeep which, in some instances, the Parties may agree shall be undertaken by or under DEI's supervision at the City's cost. C. Maintenance of Phase 1 and III Transmission Facilities in the Relocation Areas: On an ongoing basis, the City shall pay the cost differential arising from or relating to repair, maintenance, replacement and/or relocation of the underground transmission Facilities, which shall be calculated by taking the actual costs incurred less the repair cost of the same span in feet of overhead facilities, calculated in the year in which the maintenance, repair or replacement occurs. For example, if the actual cost of repairing 50 feet of new underground facilities that are built as part of this Project in Year X is $100,000 and the cost of repair of 50 feet of overhead facilities in Year X is $50,000, the City shall pay the $50,000 differential. Avoided costs, including operation and maintenance costs will not be deducted from the City's costs as the City hereby expressly agrees that such costs are speculative. Section 11 -- Payment by the Citv for Relocation Services: The City shall pay all costs arising from or relating to this Agreement and/or the Transmission Phase I and III Relocation Services, subject to usual DEI payment times, terms and conditions. Such payments shall be due and payable whether the Transmission Phase I and III Relocation Services are completed or termination under Section 5 occurs. For clarity, and by way of example, if DEI incurs engineering or other costs in considering the feasibility of the Transmission Phase I or III Relocation Services and concludes that the work cannot move forward under these terms, such "stranded" costs shall be paid by the City. Costs shall include, but are not limited to costs related to obtaining necessary easements or other property interests in the Transmission Phase I and III Relocation Areas, and engineering costs, environmental costs, 15 Phases I and III Relocation Agreement — Final Execution Copy purchase of materials, supervision, testing, the construction and relocation of DEI (or its affiliate's) Facilities (including DEI and contracted labor), and removal and disposal of any of the existing above -ground facilities, as such removal would be done in the ordinary course of DEI's business. The City acknowledges and agrees that DEI will not subsidize any cost of this Project at the expense of other DEI customers or Duke Energy Corporation shareholders. On not less than a monthly basis, DEI shall have the right to invoice the City for actual costs incurred (or to be incurred when ordering goods and services). The invoice shall be submitted in writing and provide a summary of actual costs. The City shall pay the invoice within thirty (30) days after approval by the Board of Public Works. If any dispute arises with respect to an invoice, the undisputed portion shall be paid and the remainder shall be subject to the procedures set forth in Section 17. Section 12 -- Indemnification of DEI by City: To the maximum extent permitted by law, the City shall indemnify and hold harmless DEI and its parents, subsidiaries, successors, assigns, and affiliates and their respective employees, directors, officers, members, carriers, agents, contractors, and representatives (collectively DEI Releasees) from and against all liability, losses, costs, claims, damages, expenses, including, attorneys' fees and costs, judgments and awards (whether or not covered by insurance) arising from or relating to, in whole or in part, or claimed to arise from or related to any injury or damages including without limitation, claims arising from breach of contract personal injury or property damage to any party or entity, caused or alleged to have been caused by (x) DEI Releasees, in performance of any action under this Agreement except to the extent caused by the sole negligence or, willful and wanton misconduct of DEI Releasees; (y) the City, its respective employees, agents, representative, contractors, or assigns (collectively City 16 Phases I and III Relocation Agreement— Final Execution Copy Releasors); (z) or any third party or entity acting as a representative or agent for or contractor or subcontractor of the City in connection with Phases I and III. City shall provide proof of insurance coverage sufficient to meet the obligations under this Agreement. DEI Releasees shall be named as additional insureds on such coverage and the City shall provide DEI with proof of such coverage prior to commencement of the Relocation Services. The City Releasors waive all rights they may have to recovery, including for contribution, as against Duke Releasees. This Agreement is not intended to create indemnification obligations by the City for claims between and among contractors and their subcontractors, arising from Phases I and III, except to the extent set forth above. Section 13 -- Environmental Indemnification of DEI by the City: Subject to the same terms and conditions set forth in Section 12 and incorporated herein by reference, City Releasors shall indemnify, defend and hold harmless DEI Releasees from and against all liability, losses, costs, claims, damages, expenses, including, judgments and awards, attorneys' fees and costs, (whether or not covered by insurance) arising from or relating to, in whole or in part, or claimed to arise from or related any Environmental claims. Environmental Claims shall include losses, damages, claims, suits, costs, expenses, liabilities, fines and sanctions of any kind relating to the a) use, transportation, generation, handling, storage, treatment, recycling, reclamation, disposal, emission, discharge, spill, leak, injection, escape, dumping, release or threatened release in any workplace or to the land, air, surface or ground waters or other environmental medium, on or off-site of any Hazardous Materials; b) any environmental cleanup; c) the cost of complying with applicable EHS Standards; or d) any claim of non-compliance with an EHS Standards. Hazardous Materials means any and all dangerous, hazardous, toxic, radioactive substances, hazardous wastes, special and controlled wastes; oils 17 Phases I and III Relocation Agreement— Final Execution Copy petroleum and petroleum products, hazardous materials, dangerous good, hazardous chemicals and other materials which may be hazardous to human health or the environment and which are or may be controlled under EHS Standards. This Agreement is not intended to create indemnification obligations by the City for claims between and among contractors and their subcontractors, arising from Phases I and III, subject only to the provisions of Section 12. Section 14 -- Successors, Transferees and Assigns: This Agreement shall be binding on the Parties' successors, transferee or assigns. Any EPRUROWs and easements that are part of the Transmission Phase I Relocation Areas shall remain effective and shall not be revoked by the City for any reason or in any manner until DEI cedes or abandons them. Section 15 -- Representations, Warranties and Covenants: Each Party represents and warrants to the other Party that: A. The execution, delivery and performance of this Agreement and any documents or things required thereunder are validly authorized by such Party and no other governmental body or entity, board, corporate, limited partnership or limited liability company action of such Party is necessary to authorize the execution, delivery and performance of the same; B. This Agreement and any documents or things required thereunder have been or are authorized as duly and validly executed and delivered by such Party; C. This Agreement and as applicable, certain documents required hereunder constitute such Party's legal, valid and binding obligations, enforceable against it in accordance with its terms; 18 Phases I and III Relocation Agreement — Final Execution Copy D. Neither the execution and delivery by each Party of, nor its performance under the this Agreement conflicts with, results in a breach of any provision of, constitutes a default (with or without notice or lapse of time or both) under, or requires a consent or waiver under any ordinance, regulation, statute, law or agreement, instrument or other contract, arrangement, understanding, or commitment, whether written or oral, to which such Party is a party or by which it or its assets are bound; E. With respect to the MOU and this Agreement and the documents or things required thereunder, each Party: 1. Has read the document and has been advised by counsel of their choosing as to its legal effect; 2. Has not assigned, transferred or granted or purported to assign or transfer or grant any of the rights thereunder; 3. Agrees that any negotiations or agreements prior to the execution of the MOU and the execution of this Agreement are merged into those documents; 4. No representation, promise or inducement whatsoever not contained herein has been made by any one party to another and the MOU and this Agreement is executed without reliance upon any statement or representation by any other Party, including their counsel. Section 16 -- Governine Law/Jury Trial: This Agreement has been executed in the State of Indiana and shall be governed in all respects by the laws of Indiana. The Parties agree that any action to enforce the terms of this Agreement will be brought in a state court in Indiana in Hamilton County. Both Parties relinquish and waive their right to a jury trial. 19 Phases I and III Relocation Agreement — Final Execution Copy Section 17— Dispute Resolution: The Parties shall notify each other of any dispute or claim hereunder within 15 days of the first day of the event giving rise to a claim or dispute. The parties shall attempt to resolve any claims arising out of or resulting from this Agreement promptly by negotiation between individuals who have authority to settle disputes and who are a higher level of management then person who have direct responsibility to administer this Agreement. If a dispute is not resolved within 45 days of notice under this Section, and this Agreement is not otherwise legally terminated, either party may initiate litigation. Section 18 -- Severability: The provisions of this Agreement shall be deemed severable, and the invalidity or unenforceability of any one or more of said provisions shall not affect the validity and enforceability of the other provisions contained herein. Section 19 -- Waiver: No waiver of any provision of this Agreement shall be valid unless it is in writing and signed by the Party against whom the waiver is sought to be enforced. No valid waiver of any provision of this Agreement shall be deemed a waiver of any other provision contained herein. Section 20-- Modification: No change, addition or modification of this Agreement shall be binding unless it is in writing and signed by the Parties. Phases I and III Relocation Agreement — Final Execution Copy Section 21 -- Execution of this Agreement: This Agreement may be executed in one or more duplicate original counterparts and by facsimile, with the same force and effect as if all the signatures were set forth upon a single original instrument. Section 22 -- Attorneys' Fees and Costs: If any legal action or other proceeding is brought to enforce or interpret this Agreement or the MOU or any of the documents executed pursuant hereunder, each Party shall bear its own attorneys' fees and other direct costs incurred in such action or proceeding Section 23 — Notices: The Parties designate the following to receive any required notices under this Agreement: For DEI: Susan Evans — Transmission Project Manager 1000 E. Main Street, Plainfield IN 46168 Susan.evansnduke-energ .com 317-838-4181 Ryan Hart Midwest Regional Land Services 1000 E. Main Street, Plainfield IN 46168 Ryan. hartnduke-energy .com 317-838-2403 Mark LaBarr Community Relations & Economic Development — IN 100 S. Mill Creek Road, Noblesville IN 46062 Mark. labarrgduke-energ com 317-776-5324 Ariane Johnson Associate General Counsel 1000 E. Main Street, Plainfield IN 46168 Ariane johnson&duke-energ com 317-838-1035 21 Phases I and III Relocation Agreement — Final Execution Copy For Carmel: City of Carmel Department of Redevelopment Director Corrie Meyer, AICP, RLA, LEED AP 30 W. Main Street Carmel, IN 46032 cmeyer@carmel.in.gov 317-571-2492 City of Carmel Utilities Department Director John Duffy 30 W. Main Street Carmel, IN 46032 jduffy@carmel.in.gov 317-571-2442 Carmel Engineering Department Jeremy Kashman- City Engineer One Civic Square Carmel, IN 46032 i kashman(2carmel. in. gov Office of Corporation Council Douglas C. Haney One Civic Sqaure Carmel, IN 46032 dhaney@carmel . in.gov Mayor James Brainard One Civic Square Carmel, IN 46032 j brainardgcarmel. in. gov Such persons may be changed from time to time. All notices shall be in writing, delivered personally or by U.S. Mail or email. The date of receipt of other designated date shall be the date of notice. 22 Phases I and III Relocation Agreement — Final Execution Copy Section 24 — Non -Precedent Setting: The City agrees that this Project is non -precedent setting. No agreement in respect to this Project may be used as basis to claim waiver, acquiescence or agreement by DEI to any other future project. IN WITNESS WHEREOF, the undersigned have made and entered into this Agreement as of the day and year stated below. Duke Energy Indiana, LLC The k:J Carmel, Indiana By: 'J By:Name: Melody Birmingham -Byrd Nam 12 f f'V p- R9 Title: -President, Duke Energy Indiana Title: N/4'W0 Date: Date: Approved and Adopted this day of ,20 CITY OF CARMEL, INDIANA By and through its Board of Public Works and Safety 23 Phases I and III Relocation Agreement — Final Execution Copy James Brainard, Presiding Officer Date: Mary Ann Burke, Member Date: Lori S. Watson, Member Date: ATTEST: Christine S. Pauley, Clerk -Treasurer Date: 24 November 22, 2016 Memorandum of Understanding — execution copy Duke Energy Indiana, LLC and the City of Carmel, Indiana Underground Electric Facilities Project Memorandum of Understanding 1. Duke Energy Indiana (DEI) and the City of Carmel (City) have been in discussions concerning the City's request to DEI to relocate certain overhead electric transmission and distribution facilities, which include poles, wires and other equipment necessary for transmission and distribution of electricity (the Facilities). The Facilities are currently located in a transmission corridor comprised of written and prescriptive easements owned by DEI and extending, for purposes of the description of this project, from I' Street Northwest south to the south side of East Carmel Drive (the Easements). 2. The relocation of the Facilities is to be done in proposed Phases I-IV (Project), with proposed Phases 1 and If having the highest priority. An aerial depiction of the Project and its proposed Phases is attached as Exhibit A to this MOU. The Easements are also depicted on the attached Exhibit A. Exhibit A is not intended to serve as a surveyor's document. 3. As discussed in a meeting held on November 16, 2016 with the City, DEI understands the following: a. Phase I Transmission: Proposed Phase I commences on the south side of East Carmel Drive, at above -ground facilities to be located at the southwest corner of Curley's brickyard on an existing DEI above -ground easement; moves north along the west side of the brickyard in a City -obtained above -ground easement to a riser pole near East Carmel drive; passes under East Carmel Drive in a City - granted exclusive easement; and proceeds underground in a City -obtained exclusive easement west on private property to the City Right of Way (ROW) that abuts the Proscenium development on its west side. From there, the transmission facilities will run north in a City -granted exclusive underground easement in the City ROW under what will be parking and grassy areas, until it meets Veteran's Way. From there, Phase I will proceed north in a City -granted exclusive underground easement located in the northbound travel lane of Veteran's Way to 609575 1 Exhibit 1 Phase I and III Relocation Agreement November 22, 2016 Memorandum of Understanding — execution copy a point south of the Carmel City Center. Most ol'proposed Phase I is not located in the (casements except al the north end as it begins to meet and follow Veteran's Way. Phase 1 Distribution: Proposed Phase I of the Project commences on the south side of East Carmel Drive in above -ground facilities located in the Easements and Will proceed underground in a City -granted easement under East Cannel Drive to the City's ROW under Veteran's Way where distribution will proceed north in a City -granted underground easement in the south bound travel lane of Veteran's Way to a point south of City Center. Distribution surface facilities and underground service feeds will require additional easements that are sufficient to meet all NESC codes and are at least 10 feet in width (5 feet on both sides of the centerline of final engineering designs). b. Phase III Transmission: Proposed Phase III connects to proposed Phase I and the Parties anticipate that Phases I and III will be undertaken either simultaneously or in overlapping fashion. Phase III runs north in a City -granted exclusive underground easements generally in the southbound travel lane of Veterans Way (subject to final design which may require that transmission veer to the center of Veteran's Way) and turns west at the Carmel Fire Station, ending at the south end of the existing 69k V underground electric facilities located near the northwest comer of the Carmel Fire Station property. The City owns the property in proposed Phase III that is in the Easement and has indicated that it intends to extend a roadway called Veteran's Way from a point north of Phase I to the existing Veteran's Way near the City Center. Phase III Distribution: Proposed Phase III connects to proposed Phase I and the Parties anticipate that Phases I and III will be undertaken either simultaneously or in overlapping fashion. Phase III for distribution feeder facilities will run north in a City -granted underground easement in the north bound travel lane of Veteran's Way, and turn west at the Carmel Fire Station ending at the south end of the 6o9s7s 2 Exhibit 1 Phase I and III Relocation Agreement November 22, 2016 Memorandum of Understanding — execution copy 609575 existing underground distribution facilities. Distribution surface facilities and underground service feeds will require additional easements that are sufficient to meet all NC -SC codes and are at least 101eet in width (5 feet on both sides of the centerline of final engineering designs). The City agrees that if Phase Ill is not commenced at the same time as Phase 1, Phase I will end in above -ground facilities that may later be converted and removed, all at additional cost to the City. Until Phase Ill is commenced, the above -ground facilities in Phase I will remain in place as will the Facilities in the Easements in the area called Phase 111. Phase IV Transmission: Phase IV will connect to the north portion of the existing underground 69kV and will end at a point near 6`I' Street S.W. yet to be determined. Phase IV distribution: Phase IV will connect to the north portion of the existing underground facilities and will end at a point near 61I' Street S.W. yet to be determined. Distribution above -grade and service feeds will require additional easements that are sufficient to meet all NESC codes and are at least 10 feet in width (5 feet on both sides of the centerline of final engineering designs). The timing and final route of proposed Phase IV after meeting existing underground Facilities has not been determined. It is therefore possible that Phase IV will not be undertaken by the City and/or that the design will change. In that case, proposed Phase II will start at above -ground facilities which may later be converted and/or removed, all at additional cost to the City until Phase IV is commenced. Any such above -ground Facilities will remain in Phase II as will the Facilities in the Easements in the area called Phase IV. d. Phase II Transmission. Assuming Phase IV and Phase II are not simultaneously undertaken, then Phase II begins at a riser pole at I" Avenue SW near 6`h St. S.W. and proceeds west on 6`h St. S.W. to Monon Blvd. in a City -granted exclusive Exhibit 1 Phase I and III Relocation Agreement November 22, 2016 Memorandum of Understanding — execution copy underground casement in the City ROW. Transmission will then run north on Monon Blvd. in a City -granted exclusive underground easement in the northbound travel lane of Monon Blvd. and turn cast at the north end of the DEI substation at 340 1" Street S.W. The City understands that DEI must use the north end of its substation because ofthe location ol'certain 69kV facilities. Transmission then turns and proceeds north in a City -granted exclusive underground easement in the northbound travel lane of I" Ave. S.W. and crosses under East Main Street and ends at above -ground facilities oil the north side of I" St. N.W., at a riser pole on private property in a City- obtained exclusive easement. Phase II Distribution: Distribution will turn east on 6t' St. S.W. in a City -granted underground easement and continue north in a City -granted underground easement in the southbound travel lane under I" Ave. S.W. to the same end point as transmission described in the paragraph above. These paragraphs are not intended to be a legal description but instead, are intended to outline DEI's understanding of the Project as proposed by the City. 4. The City has agreed to pay for all costs related to the relocation of all existing above- ground Facilities and to provide exclusive underground transmission easements and distribution easements that the City will obtain and grant to DEI in return for which the City requests that DEI release its Easements and relocate its Facilities. 5. The City understands and agrees that DEI must take into account that 1) the transmission Facilities currently located in DEI's Easements are MISO critical, meaning MISO determines when such transmission Facilities may be offline and for how long; 2) DEI cannot impose costs associated with benefits to one group of customers on other customers; and 3) DEI must continue to provide safe and reliable service under regulatory mandates. DEI must also take into account that it currently has property interests in its Easements and that with this Project, the City is asking DEI to release 4 609575 Exhibit 1 Phase I and III Relocation Agreement November 22, 2016 Memorandum of Understanding — execution copy those interests in favor of underground easements a) granted by the City under, in or on City -owned properly including public road right of ways and b) acquired by the City under, in or on privately owned property. These new easements are generally referred to as Relocation Areas. 6. The basis upon which DEI will undertake each Phase of this Project are set forth below. The City acknowledges that the conditions in Paragraphs 7 (b), (e), (0, 0), (k), (1) and (m) are conditions precedent to each Phase of this Project and must be met by the City before the particular Phase will be undertaken. Although DEI intends to move forward with each Phase even if all Phases are not undertaken at the same time, each Phase must meet the conditions precedent and a failure to meet these conditions will cause the Phase to be relocated on terms acceptable to DEI or, barring an ability to relocate, to be cancelled. This MOU is also the basis in principal, for additional agreements and documents necessary to effectuate each Phase of the Project, which include, as necessary Phase 1, 11, 111 and IV Transmission and Distribution Relocation Agreements, which are based on the principles set forth below but will enumerate the items necessary to commence construction of each phase. 7. The Parties agree as follows: a. The City shall pay all costs, subject to usual DEI payment times and terms. For example, DEI distribution requires the City to sign a relocation agreement before work is done, agreeing to pay actual costs after work is completed. Transmission requires that the City pay for materials as they are ordered and for monthly work arising from the relocation of any and all of the above -ground electric transmission/distribution Facilities currently located in the DEI Easements and public road right of way that form the basis of the Project, whether or not a proposed Phase is completed or abandoned. For clarity if, for example, DEI incurs engineering costs in considering the feasibility of any proposed Phase or aspect of the Project and concludes that the work cannot move forward under these terms, such "stranded" costs shall be paid by the City. Costs shall include, but are not limited to, costs related to obtaining necessary easements or other property 5 609575 Exhibit 1 Phase I and III Relocation Agreement November 22, 2016 Memorandum of Understanding — execution copy interests in the Relocation Areas, legal and engineering costs, environmental costs, purchase of materials, the construction and relocation ol'Duke Facilities (including DEI and contracted labor), and removal and disposal of any above- ground facilities. The City acknowledges that DEI will not subsidize any cost of this Project at the expense of other DEI customers or Duke Energy shareholders. b. The City and DEI shall work together in good faith to identify any non-DE1 third parties who currently are located in Facilities in the Easements and to notify them of each Phase of this Project. DEI will provide the information that it has regarding third parties located in Facilities in the Easements on or before 5 business days of the execution of this MOU. The City shall notify and negotiate agreements with any non -DEI third party users currently in the Easements to relocate their non -electric facilities and such relocation shall not include DEI's exclusive 25' transmission easements to be granted by the City as part of the Project. The relocation of the third -party non -electric facilities shall not be the responsibility of DEI and the City shall hold DEI harmless from any claims or causes of action arising from the relocation of such third party users that arise from the Phases of this Project and relocation out of the Easements. c. On an ongoing basis, the City shall pay the cost differential arising from or relating to repair, maintenance, replacement and/or relocation of the underground transmission Facilities, which shall be calculated by taking the actual costs incurred less the repair cost of the same span in feet of overhead facilities as calculated in the year in which the maintenance, repair or replacement occurs. For example, if the actual cost of repairing 50 feet of new underground facilities that are built as part of this Project is $100,000 and the cost of repair of 50 feet of overhead facilities is $50,000, the City shall pay the $50,000 differential. Avoided costs, including Operation & Maintenance costs will not be considered, as they are speculative. 609575 6 Exhibit 1 Phase I and III Relocation Agreement November 22, 2016 Memorandum of Understanding — execution copy 609575 By resolution and associated permitting, City shall not use or authorize any third party underground use of public road right ofways where the DEl's exclusive underground transmission facilities are located and shall not use or authorize the use of underground or above -ground public road right of ways where DEI distribution facilities are located (except in the case of travel) without the prior review and written approval of DEI. The City shall be responsible for all costs if DEI must repair, modify or relocate its Facilities as a result of any underground use ol'public road right of ways not approved by DEI. e. The City shall have the right to cross DEI's underground transmission facilities with the City's water lines so long as the City crosses in a perpendicular fashion, at an angle greater than 30 degrees off the road center line, with appropriate clearances as required by code, accepted standards, Duke operational requirements, or as agreed upon by the parties. Tile City must provide DEI with two sets of easements for each of the Relocation Areas: The first set of easements is for transmission Facilities and for purposes of the Project must a) remain exclusive; b) be a minimum of 25 feet wide; and c) meet DEI engineering depth requirements which are dependent on grading and other variables. Exclusive means that no other utilities run in parallel within the 25 -foot easement and that any crossing utilities have been approved in advance by DEI to ensure they are sufficiently distant from the transmission line and clearly and readily identifiable. 1. Exclusively must be memorialized by i) recording the underground exclusive easements; ii) the passage of a resolution(s) by the City's Board of Public Works limiting the use of DEI's 25' exclusive easements; iii) permitting; iv) a Letter Agreement between DEI and City by which the City will enter an "evergreen" and other hold harmless provisions mutually acceptable to both parties; and Exhibit 1 Phase I and III Relocation Agreement November 22, 2016 Memorandum of Understanding — execution copy v) where a new project or development is within 100 feet of DEI's exclusive easement, an agreement to include a description of the 25' exclusive easements' location and recording information in every dedication or grant of public road right of way the City accepts from a developer, all of which are intended to provide third parties, including other utilities and developers, whether present or future, notice of DEI's exclusive rights granted by the City for this Project. 2. Further, the City will obtain from Hamilton County a waiver from the applicable drainage board of that board's statutory right to require DEI (i) to obtain a permit to use any legal drain that is or may be placed in any Phase and/or (ii) to relocate, modify or support DEI facilities in the future at the expense of DEI for any drain project. 3. All utilities currently installed within the 25 -foot easement must be identified by the City to DEI and DEI shall have no obligation to proceed with any proposed Phase until such utilities have been identified and either relocated or determined by DEI to present no threat to the safety or reliability of the Facilities, including without limitation, thermal influence. Already existing City sewer may remain so long as it meets the requirements set out above. 4. The City understands that the information it is required to provide under this paragraph must be provided during preliminary engineering of each phase and that information so provided may result in a need to either relocate a proposed Phase or cancel it if the condition of this MOU cannot be met. 5. To the extent City sewer (or by agreement with DEI, other utilities) remain in the underground transmission easements that the City grants to DEI the City shall enter into encroachment agreements with DEI that, amount other things, indemnifies DEI against any claims or losses arising from damage to the sewer (or any 609575 8 Exhibit 1 Phase I and III Relocation Agreement November 22, 2016 Memorandum of Understanding — execution copy 609575 approved encroaching utilities or services) caused by DEI in constructing, operating, and maintaining its Facilities. ii. The second set of easements is for distribution Facilities for each Phase which, for purposes of this Project, must be a minimum of 10 feet in width (S feel on both sides of the centerline of final engineering designs). For example, although distribution may be able to use a 10 -foot easement under a traveled road for its feeder line, it will also need a minimum of 10 - foot easements for each service line, and easements that are substantially wider for above -grade facilities such as switchgear. In all cases, the size and location of distribution facilities will be determined by DEI and no distribution facilities will be in or on buildings. In all cases, DEI must have sufficient easements to meet all NESC requirements. The City also agrees that distribution has no obligation to consider the use of existing duct bank currently located in Phase Il. iii. The City's inability to meet these requirements mean the proposed Phase cannot proceed as outlined. g. City agrees that this Project is non -precedent setting. No agreement in respect to this Project may be used as basis to claim waiver, acquiescence or agreement by DEI to any other future project. h. The City agrees that at its sole expense it will give DEI immediate and unrestricted access to any new underground Facilities via street closures (or other necessary actions), and will undertake immediate traffic control in the event of an emergency condition to effectuate repairs/maintenance to the Facilities. The City acknowledges that street closures may occur for extended periods to allow for repair/maintenance/replacement and agrees to provide the necessary time without pressure to reopen such streets. For non -emergency conditions for repairs and maintenance, notice shall be given by DEI, with reasonable efforts to avoid 9 Exhibit 1 Phase I and III Relocation Agreement November 22, 2016 Memorandum of Understanding — execution copy repairs and maintenance during previously scheduled Icstivals, events or parades. Upon such notice, the City shall give the same access as for emergency repairs or maintenance. The parties agree that "emergency conditions include unplanned work and any work that is subject to a MISO-imposed timeline. The City shall provide a copy of this or any later relevant agreement to the appropriate City departments or entities with whom DEI must work in these situations. For example, if the police department will effectuate a street closure, the department must be given notice of this agreement and the City must provide a point of contact to DEL That point of contact shall have all necessary authority to grant DEI immediate access. i. This Project does not include any changes to the existing DEI Carmel substations and shall not include plantings. The existing street cuts on the east side of the substation on 1" Avenue S.W. shall be maintained and DEI shall be given one additional curb cut onto Monon Blvd. The City is also willing to modify the curb design to a rolled curb to allow access to the DEI 1" Street substation. To the extent any Phase of the Project requires changes to the substation that would not otherwise be necessary but for the installation of any Phase of the Project, not including load growth, the City shall pay for those changes. DEI reserves all its rights to use its substation properties and such rights are not affected by this MOU. j. The City will undertake the construction of any necessary underground duct banks and structures to effectuate the Relocation of the Facilities using a DEI - approved contractor, who shall construct the underground facilities to meet DEI's standards and specifications. DEI will provide an inspector, to be charged as part of Project costs, at the time of installation of such items to review and approve work as satisfactorily completed. DEI will not assume any liability arising from or related to the incorrect construction of the underground Facilities by the City's contractor and reserves the right to reject the existing duct bank in proposed Phase II if it does not meet its standards or is unable to pass testing prior to repairs. The 10 609575 Exhibit 1 Phase I and III Relocation Agreement November 22, 2016 Memorandum of Understanding — execution copy City agrees that it will pay for any and all costs associated with the repair of the existing duct bank in the event DEI determines that the duct bank can be used. DE -'I will remain responsible for the design/construction and installation of electrical equipment, but all costs associated therewith are to the City's account. k. All easements necessary to each Phase of the Project shall be in place, first in time with respect to any encumbrance, and granted to DEI prior to the commencement of any construction work. Such grant is a necessary condition precedent to further DEI obligations for any proposed. Phase. DEI will retain its current Easements and maintain energized above -ground Facilities until both a) the new easements are granted and recorded so as to confer the necessary rights on DEI and provide notice to third parties; b) the underground facilities are tested, energized and operational; and c) all existing customers are assured continuous services. Only if and after these requirements are met, will DEI remove overhead facilities and upon completion of the removal, release any portion of its Easements and then only with respect to the Phase completed, assuming both transmission and distribution are complete. I. The City is and remains responsible for obtaining any approvals or permissions necessary to the Project and such approvals or permissions are again, precedent conditions to DEI's undertakings. m. The City, by its contractors, shall undertake all boring/testing/sampling necessary to meet any applicable DEI requirements, laws, or regulations, including all environmental laws, regulations or requirements, necessary to engineering, constructions and subsequent operations of any Phase of the Project. The City or any other property owner or developer are and remain responsible for any environmental liability associated with disturbing or removing any materials in any Phase of the Project and for any remediation costs. In the event environmental boring/testing/sampling reveal any type of environmental condition that may affect reliable and safe service via underground Facilities in any Phase of this 609575 11 Exhibit 1 Phase I and III Relocation Agreement November 22, 2016 Memorandum of Understanding — execution copy Project, that Phase will not be undertaken by DEI and that portion of the facilities will remain above -ground in the existing Easements. n. The Parties agree that the terms as set forth in this MOU are reasonable and that the failure to meet certain terms of this MOU, as set out above, may result in the cancellation of a Phase of or the Project. The Parties further agree to execute any agreements or documents necessary to effectuate these terms. I lowever, this MOU, once executed will allow the Parties to commence with the initial steps of the phases of this Project, in reliance on the terms and conditions herein. Duke Energy Indiana, LLC Date: 1 V 4t`U t,t'LM � Z 6, 2016 City of Cannel, Indiana By:_ Title• 609575 12 Exhibit 1 Phase I and III Relocation Agreement i Existinq Overhead Phase 4 - original Future Monon Blvd J•µ� Y �r r q 1. � fR StM�•f`1f� •. .R R f � / � / If r ROf YRt �• 1 G �JF2 -F ..5. ry ., M -P, sF E0 1ia .^ r� —•— R�R * _mow !F t Exhibit 2- Phase I and III Relocation Agreement