HomeMy WebLinkAboutAT&T Corp/Eng/68,679.13/Reimbursement Agreement for Monon Boulevard Easement Agreement REIMBURSEMENT AGREEMENT J1/40
This AGREEMENT made this' day of 541-(-01b1 , 2018,by and
between AT&T Corp., on behalf of itself and its affiliated companies, which has a place
of business at 3450 Riverwood Parkway, S. E., Room 162, Atlanta, GA 30339 ("AT&T")
and the City of Carmel, which has an address of 1 Civic Square Carmel, Indiana 46032
("Developer").
WITNESSETH:
WHEREAS, AT&T is a grantee of an Easement that is recorded in the County
of Hamilton, State of Indiana(the"Easement"); and
WHEREAS, the Easement Area and any AT&T buried cable and associated
facilities that have been placed within the Easement Area will be adversely impacted by
Developer's proposed construction within the Easement strip; and
WHEREAS, Developer will reimburse AT&T for AT&T's cost of protecting,
relocating and/or lowering a section of the Sheridan to Indianapolis FT"A fiber optic
cable(the"Cable).
NOW THEREFORE, the parties agree as follows:
1. AT&T will provide engineering,plant protection, labor, materials, and
supervision necessary to protect, relocate and/or lower the Cables, as deemed necessary
in AT&T's sole judgment(the"Work"). The Work is more particularly described in
attached Exhibit A. The starting date will be set by the parties so that the Work can be
completed as expeditiously as practicable.
2. Developer shall pay AT&T the actual cost of the Work or issue purchase order,
which is estimated to be Sixty Eight Thousand Six Hundred Seventy Nine Dollars and
Thirteen Cents ($68,679.13), as shown on attached Exhibit B. Developer acknowledges
that the estimated cost does not include rock removal costs and that if rock removal is
required, the actual cost may greatly exceed the estimated cost. The Utility(AT&T)may,
once the Utility has accumulated $1,000 of expense, submit one request for payment per
calendar month for work covered by this Agreement. The Utility shall attach an
itemization of costs incurred with each request for payment. This itemization of costs
shall appear in the same form and manner as the preliminary estimate as shown on
Exhibit"B". The City of Carmel will reimburse the Utility for any item of worth of
expense involved if performed at the written direction of the City of Cannel. The Utility
will be reimbursed for its actual costs of the work described in Exhibit"A" upon
presentation of itemized bills to the City of Carmel from the Utility. Progress payments
made by the City of Carmel shall not exceed 97 percent of the estimated cost of the
completed work with the understanding that after invoicing for engineering and
construction are paid, AT&T would close the project and bill 100%remaining cost of the
031709 AT&T Confidential 1
project. Reimbursement for progress billings shall be paid within sixty(60) days of
receipt. If the actual cost is less than the estimated amount, AT&T shall reimburse
Developer the difference within sixty(60) days from the invoice date. Exhibits A and B
are only good for sixty(60) days from the date of receipt of this agreement.
3. Developer agrees to exercise all due caution while working near the Cable, in
order to prevent damage to the Cable. Developer agrees:
(a) to notify AT&T by telephone at 1-800 252-1133 at least forty-eight (48)
hours prior to performing any construction, demolition or repairs at the Cable location;
(b) not to use at the Cable location any tool, equipment, or machinery with the
intent of breaking ground within ten(10) feet of the Cable without notifying AT&T to
determine if on-site personnel is required;
(c) to perform construction, demolition, repair, modifications, additions and
any other activities in compliance with all applicable laws and regulations and in a
manner that does not interfere with the operations of AT&T; and
(d) not to work at the Cable location without AT&T's prior authorization and
AT&T's On-Site Work Force personnel being present during the work.
4. Each party(the"Indemnifying Party") shall indemnify, defend and hold harmless
the other party(the"Indemnified Party") from and against any and all claims, demands,
actions, losses, damages, assessments, charges,judgments, liabilities, costs and expenses
(including reasonable attorneys' fees and disbursements)that may from time to time be
asserted by third parties against the Indemnified Party because of any personal injury,
including death,to any person or loss of, physical damage to or loss of use of real or
tangible personal property,to the extent caused by the negligence or misconduct of the
Indemnifying Party, its agents, employees or contractors. For purposes of
indemnifications set forth in this Agreement, "Indemnified Party" means the City, its
employees; for AT&T, its affiliates, subsidiaries, parent, successors and assigns and its
and their employees, directors, officers, agents, contractors and subcontractors. The
Indemnified Party:
4.1 shall notify the Indemnifying Party in writing promptly upon learning of
any claim or suit for which indemnification may be sought,provided that failure to do so
shall have no effect except to the extent the Indemnifying Party is prejudiced thereby;
4.2 shall have the right to participate in such defense or settlement with its
own counsel and at its own expense, but the Indemnifying Party shall have control of this
defense or settlement; and
4.3 shall reasonably cooperate with the defense.
031709 AT&T Confidential '-
5. AT&T makes no warranties, express or implied, including any implied warranties
as to merchantability or fitness for a particular purpose.
6. Notwithstanding any provision of this agreement to the contrary, except as
provided in Section 4, in no event shall either party be liable to the other party for any
special, incidental, indirect, punitive, reliance or consequential damages, whether
foreseeable or not, including, but not limited to, loss of profits or revenue, cost of capital,
cost of replacement services, or claims of customers or of other third parties, occasioned
by any cause whatsoever, including, without limitation, breach of contract,breach of
warranty, negligence or strict liability.
7. Insurance
a. With respect to Developer's performance under this Agreement, and in addition to
Developer's obligation to indemnify, Developer if they are performing any work
hereunder or their contractors, at Developer's sole cost and expense shall:
i. maintain the insurance coverages and limits required by this Section and
any additional insurance and/or bonds required by law:
1. at all times during the term of this Agreement and until
completion of all Work associated with this Agreement,
whichever is later; and
2. with respect to any coverage maintained in a"claims-
made" policy, for two (2) years following the term of this
Agreement or completion of all Work associated with this
Agreement,whichever is later. If a"claims-made" policy
is maintained, the retroactive date must precede the
commencement of Work under this Agreement;
ii. require each subcontractor who may perform Work under this Agreement
or enter upon the Work site to maintain coverages, requirements, and
limits at least as broad as those listed in this Section from the time when
the subcontractor begins Work,throughout the term of the subcontractor's
Work and, with respect to any coverage maintained on a"claims-made"
policy, for two (2) years thereafter;
iii. procure the required insurance from an insurance company eligible to do
business in the state or states where Work will be performed and having
and maintaining a Financial Strength Rating of"A-"or better and a
Financial Size Category of"VII" or better, as rated in the A.M. Best Key
Rating Guide for Property and Casualty Insurance Companies, except that,
in the case of Workers' Compensation insurance, Developer may procure
insurance from the state fund of the state where Work is to be performed;
and
iv. deliver to AT&T certificates of insurance stating the types of insurance
and policy limits. Developer shall provide or will endeavor to have the
issuing insurance company provide at least 30 days advance written notice
of cancellation, non-renewal, or reduction in coverage, terms, or limits to
AT&T. Developer shall deliver such certificates:
031709 AT&T Confidential 3
I. prior to execution of this Agreement and prior to
commencement of any Work;
2. prior to expiration of any insurance policy required in this
Section; and
3. for any coverage maintained on a"claims-made" policy,
for two (2) years following the term of this Agreement or
completion of all Work associated with this Agreement,
whichever is later.
b. The Parties agree:
i. the failure of AT&T to demand such certificate of insurance or failure of
AT&T to identify a deficiency will not be construed as a waiver of
Developer's obligation to maintain the insurance required under this
Agreement;
ii. that the insurance required under this Agreement does not represent that
coverage and limits will necessarily be adequate to protect Developer, nor
be deemed as a limitation on Developer's liability to AT&T in this
Agreement;
iii. Developer may meet the required insurance coverages and limits with any
combination of primary and Umbrella/Excess liability insurance; and
iv. Developer is responsible for any deductible or self-insured retention.
c. The insurance coverage required by this Section includes:
i. Workers' Compensation insurance with benefits afforded under the laws
of any state in which the Work is to be performed and Employers Liability
insurance with limits of at least:
S500,000 for Bodily Injury—each accident
S500,000 for Bodily Injury by disease—policy limits
$500,000 for Bodily Injury by disease—each employee
To the fullest extent allowable by Law, the policy must include a waiver
of subrogation in favor of AT&T, its Affiliates, and their directors,
officers and employees.
In states where Workers' Compensation insurance is a monopolistic
state-run system, Developer shall add Stop Gap Employers Liability
with limits not less than$500,000 each accident or disease.
ii. Commercial General Liability insurance written on Insurance Services
Office (ISO) Form CG 00 01 12 04 or a substitute form providing
equivalent coverage, covering liability arising from premises, operations,
personal injury, products/completed operations, and liability assumed
under an insured contract(including the tort liability of another assumed
in a business contract) with limits of at least:
$2,000,000 General Aggregate limit
S1,000,000 each occurrence limit for all bodily injury or property damage
incurred in any one(1) occurrence
S1,000,000 each occurrence limit for Personal Injury and Advertising
Injury
S2,000,000 Products/Completed Operations Aggregate limit
031709 AT&T Confidential 4
$1,000,000 each occurrence limit for Products/Completed Operations
The Commercial General Liability insurance policy must:
1. include AT&T, its Affiliates, and their directors, officers,
and employees as Additional Insureds. Developer shall
provide a copy of the Additional Insured endorsement to
AT&T. The Additional Insured endorsement may either be
specific to AT&T or may be"blanket"or"automatic"
addressing any person or entity as required by contract. A
copy of the Additional Insured endorsement must be
provided within 60 days of execution of this Agreement
and within 60 days of each Commercial General Liability
policy renewal;
2. include a waiver of subrogation in favor of AT&T, its
Affiliates, and their directors, officers and employees; and
3. be primary and non-contributory with respect to any
insurance or self-insurance that is maintained by AT&T.
ii. Business Automobile Liability insurance with limits of at least $1,000,000
each accident for bodily injury and property damage, extending to all
owned,hired, and non-owned vehicles.
8. Developer shall keep the Cable and other property of AT&T free from all
mechanic's, artisan's, materialman's, architect's, or similar services' liens which arise in
any way from or as a result of its activities and cause any such liens which may arise to
be discharged or released.
9. Except for payment of the cost of the Work, neither party shall have any liability
for its delays or its failure in performance due to: fire, explosion, pest damage,power
failures, strikes or labor disputes, acts of God, the Elements, war, civil disturbances, acts
of civil or military authorities or the public enemy, inability to secure raw materials,
transportation facilities, fuel or energy shortages, or other causes beyond its control,
whether or not similar to the foregoing.
10. A party shall be in default if it fails to perform or observe any material term or
condition of this Agreement and the failure continues unremedied for thirty(30) days
after receipt of written notice(fourteen(14)days in the case of Developer's failure to pay
AT&T the estimated and/or actual cost of the Work); provided,however, that when such
default(excluding Developer's non-payment) cannot reasonably be cured within such
thirty(30) day period, this period will be extended if that party promptly commences to
cure the same and prosecutes such curing with due diligence. Upon the default by a
party, the other party may terminate this Agreement and pursue any legal remedies it may
have under applicable law or principles of equity.
11. This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors or assigns. Developer shall not assign, transfer, or
dispose of this Agreement or any of its rights or obligations hereunder without prior
written consent of AT&T; provided, however,that Developer may assign or transfer this
031709 AT&T Confidential 5
Agreement to a controlling or controlled affiliate or to a successor in the event of
reorganization, including a merger or sale of substantially all of its assets, without the
consent of AT&T. An assignment, transfer or disposition of this Agreement by
Developer shall not relieve Developer of any of its obligations under this Agreement.
AT&T shall have the right to assign this Agreement and to assign its rights and delegate
its obligations and liabilities under this Agreement, either in whole or in party, to any
party. An assignment, transfer or disposition of this Agreement by AT&T shall not
relieve AT&T of any of its obligations under this Agreement. Neither this Agreement,
nor any term or provision hereof, nor any inclusion by reference shall be construed as
being for the benefit of any person or entity not a signatory hereto.
12. Any demand, notice or other communication to be given to a party in connection
with this Agreement shall be given in writing and shall be given by personal delivery, by
registered or certified mail, return receipt requested, or by commercial overnight delivery
service addressed to the recipient as set forth below or to such other address or individual,
as may be designated by notice given by the party to the other:
AT&T:
AT&T CORP.
3450 Riverwood Parkway
Atlanta, GA 30339
Room 162
Attention: Right of Way Dept.
With a copy to:
AT&T
One AT&T Way
Room 3A105
Bedminster, NJ 07921
Attention: Legal Department—Network Services
Developer:
City of Carmel
Attn: City Engineer
1 Civic Square
Carmel, IN. 46032
Any demand, notice or other communication given by personal delivery shall be
conclusively deemed to have been given on the day of actual delivery thereof and if given
by registered or certified mail,return receipt requested or by commercial overnight
delivery service on the date of receipt thereof.
13. The failure of either party hereto to enforce any of the provisions of this
Agreement, or the waiver thereof in any instance, shall not be construed as a general
031709 AT&T Confidential 6
waiver or relinquishment on its part of any such provision, and said provision shall
nevertheless be and remain in full force and effect.
14. This Agreement shall be governed by and construed in accordance with the
domestic laws of the State of Indiana without reference to its choice of law principles.
15. Each party represents and warrants that:
(a) It has full right and authority to enter into, execute, deliver and perform its
obligations under this Agreement;
(b) It has taken all requisite corporate action to approve the execution,
delivery and performance of this Agreement;
(c) This Agreement constitutes a legal, valid and binding obligation
enforceable against such party in accordance with its terms, subject to
bankruptcy, insolvency, creditors' rights and general equitable principles;
and
(d) Its execution of and performance under this Agreement shall not violate
any applicable existing regulations, rules, statutes, or court orders of any
local, state or federal government agency, court or body.
16. This Agreement constitutes the entire and final agreement and understanding
between the parties with respect to the subject matter hereof and supersedes all prior oral
and written communications, understandings and agreements relating to the subject
matter hereof, which are of no further force or effect. The Exhibits referred to herein are
an integral part hereof and are hereby made a part of this Agreement. This Agreement
may only be modified or supplemented by an instrument in writing executed by a duly
authorized representative of each party.
17. Each action or claim against any party arising under or relating to this Agreement
shall be made only against such party as a corporate, and any liability relating thereto
shall be enforceable only against the corporate assets of such party. No party shall seek
to pierce the corporate veil or otherwise seek to impose any liability relating to, or arising
from, this Agreement against any shareholder, employee, officer or director of the other
party. Each of such persons is an intended beneficiary of the mutual promises set forth in
this Section 17 and shall be entitled to enforce the obligations of this Section 17.
18. The relationship between the parties shall not be that of partners, agents or joint
ventures for one another, and nothing contained in this Agreement shall be deemed to
constitute a partnership or agency agreement between them for any purposes, including,
but not limited to federal income tax purposes. The parties, in performing any of their
obligations hereunder, shall be independent contractors or independent parties and shall
discharge their contractual obligations at their own risk.
031709 AT&T Confidential 7
19. This Agreement and each of the parties' respective rights and obligations under
this Agreement shall be binding upon and shall inure to benefit of the parties and each of
their respective permitted successors and assigns.
20. No provision of this Agreement shall be interpreted to require any unlawful action
by either party. If any section or clause of this Agreement is held to be invalid or
unenforceable, then the meaning of that section or clause shall be construed so as to
render it enforceable to the extent feasible. If no feasible interpretation would save the
section or clause, it shall be severed from this Agreement with respect to the matter in
question, and the remainder of the Agreement shall remain in full force and effect.
However, in the event such a section or clause is an essential element of the Agreement,
the parties shall promptly negotiate a replacement that will achieve the intent of such
unenforceable section or clause to the extent permitted by law.
21. This Agreement may be executed in one or more counterparts, all of which taken
together shall constitute one and the same instrument.
IN WITNESS WHEREOF,the parties have caused this Agreement to be executed by
their authorized representatives as of the date first above set forth.
City of Carmel AT&T CORP.
By: B AG`"` £
Name: Name: Ja,idrt �itK41
Title: Title:_Senior Technical Project Mgr
Tax ID:
031709 AT&T Confidential 8
',
SCOPE OF WORK
SHERIDAN - INDIANAPOLIS FT "A" CABLE
IN — CARMEL - MIDTOWN DEVELOPEMENT
CARMEL, IN
THE LOCATION:
The project is located in the City of Carmel, Hamilton County, and Clay
Township in the state of Indiana. This project will take place in Sections 25,
in T18N, R3E. The work begins just north of 2nd St SW where the existing
cable needs lowered to maintain proper clearance from the bottom of a new
30" storm sewer pipe. Then, a few hundred feet south, an existing AT&T/T
handhole needs removed and replaced with a 4'x4'x6' split concrete
manhole.
THE WORK:
The work involves the lowering of the existing 4" HDPE conduit pipe to an
approximate depth of 9 feet for approximately 100 linear feet and the
removal of an existing 36"x24"xl 8" handhole replaced with a 4'x4'x6' split
concrete manhole.
THE WORK WILL CONSIST OF THE FOLLOWING:
1. Locate the existing AT&T/T conduit package and handhole (locates
conducted by AT&T/T Technician only).
2. CAFEFULLY excavate soil above and beside the existing package so
it can be lowered to obtain 18 inches of clearance between the bottom
of the 30" storm drain pipe and the top of the 4" HDPE conduit.
3. Shoring may be required to achieve the approximate 9-foot depths in
ordered to maintain trench walls from collapsing while lowering
AT&T/T facilities. Back fill trench with excavated spoils in 18" lifts
with compaction technics or as directed by the project engineer.
Exhibit
4. CAREFULLY excavate and expose the existing 36"x24"x18"
Quazite handhole. Cut slots in handhole walls to carefully remove
cable, innerduct and slack coil from inside handhole. Remove and
dispose of handhole.
5. Continue excavating location until the correct depth is reached for
setting the bottom portion of the manhole. Maneuver bottom portion
of manhole into place with slots previously cut out of two opposite
walls to accommodate the existing 4" HDPE conduit.
6. Maneuver existing cable package into bottom portion of manhole.
Make sure conduit and cable are clear from all pinch points before
setting top half of manhole.
7. Lift and set top section of manhole onto lower section making sure
manhole is level once completed. Place top manhole ring and lid with
AT&T logo. Elevations for the new manhole lid will be provided
by Crossroads Engineering, Mr. William Hall.
8. Back fill around manhole with excavated spoils in 18" lifts with
compaction technics. Place AT&T/T warning ribbon approximately
two feet above conduit package in areas of excavated exposure.
9. Restore the work area to "as good as or better than" it's original
condition.
Exhibit
--
COST ESTIMATE
SHERIDAN - INDIANAPOLIS FT 'A' CABLE
IN - CARMEL - MIDTOWN DEVELOPMENT
PHASE - 2 MONON BLVD.
CARMEL, IN
CONSTRUCTION COSTS:
ITEM (SPEC.NO) UNIT EST.QTY PRICE AMOUNT
1 Mobiliztion (105.02) LS 1 $ 5,649.00 $ 5,649.00
2 Test Pits (303.01) EA 2 $ 175.00 $ 350.00
3 F & I 4'x4'x4' Split Manhole (603.07) EA 1 $ 12,000.00 $ 12,000.00
Vertical Shift Pipe/duct and or Cable 7' to
4 10' Depth (801.05) LF 100 $ 370.00 $ 37,000.00
30"x 48"x 18" Buried Quazite Box
5 Removal (904.09) EA 1 $ 5,000.00 $ 5,000.00
Total $ 59,999.00
MATERIAL COSTS:
ITEM UNIT EST.QTY PRICE AMOUNT
1 WARNING Marker Tape LF _100 S 0.35 $ 35.00
Total $ 35.00
Exhibit
Page 1 of 2
_ ; 3 "-s 1
PERSONNEL COSTS:
IITEM UNIT EST.QTY PRICE AMOUNT I
1 Consultant Project Manager DAY 1 S 536.00 $ 536.00
2 Consultant Project Engineer DAY 10 S 590.00 $ 5,900.00
3 Consultant CAD Technician HR 4 S 52.00 $ 208.00
4 C-Misc (perdium & milage, clerk) LS $ 2,001.13
Total $ 8,645.13
CONSTRUCTION COSTS: $ 59,999.00
MATERIAL COSTS: $ 35.00
PERSONNEL COSTS: $ 8,645.13
GRAND TOTAL $ 68,679.13
C-MISC BREAKDOWN:
1 Perdium DAY 6 $ 130.00 $ 780.00
2 Perdium (Travel Day) DAY I $ 25.00 $ 25.00
3 Milage MILE 525 $ 0.55 $ 286.13
4 Clerk HR 28 $ 32.50 $ 910.00
$ 2,001.13
Exhibit Li)
Page 2 of 2
Approved and Adopted this J day of A l91` 1Jt 1 , 201 .
CITY OF CARMEL, INDIANA
By and through its Board of Public Works and Safety
BY:
J s Brainard, Presidin Officer
te: 9— /�5 -
97//
41a
Mary urke, M�be�//
Date:
Lori S. Watson, be
Date: q /51/8
AT
stine S. Paule Clerk-
Date: c