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HomeMy WebLinkAboutDuke Energy/Guilford Rd/Utility Reimbursement AgreementREIMBURSEMENT City of Carmel - Project) (Revised 2-27-20) THIS UTILITY REIMBURSEMENT AGREEMENT (the "Agreement'), is made and entered into this 29 day of Aoril 2020 (the "Effective Date"), by and between Duke Enerav Indiana. LLC, an Indiana limited liability company ("DEI"), and the City of Carmel, Indiana ("Carmel'). Hereinafter, DEI and Carmel may be individually referred to as a 'Party" and collectively as the "Parties." WITNESSETH: WHEREAS, Carmel and DEI entered Into that certain Provisional Utility Relocation Cost Payment Agreement ("PURCPA"), effective as of April 15, 2020, a copy of which is attached hereto and incorporated herein as Exhibit B, pursuant to which the Parties reached a provisional agreement relating to the allocation of costs for relocating certain electric facilities for multi -use improvement projects and/or from above ground to underground facilities with respect to those Projects defined in the PURCPA; and. WHEREAS, DEI has constructed and now operates and maintains certain [overhead electric facilities upon and/or along !Guilford Rd.(Between Main Street and City Center Dr.lf in IHamiiton County. Carmell all of which are more particularly depicted or described on the attached Exhibit "A" (hereinafter referred to as "the Utility Facilities"); and WHEREAS, Carmel has requested that DEI relocate the Utility Facilities to [an underground relocation area] acquired by Carmel, as depicted or described on Exhibit "A" (the "Relocation Area'); and WHEREAS, the Parties have determined that the Relocation Area is suitable, and DEI is willing to relocate the Utility Facilities to the Relocation Area; provided that Carmel reimburses DEI for the [difference between actual costs incurred by DEI to relocate the Utility Facilities in an underground manner and the estimated cost of relocating the Utility Facility Facilities in an overhead manner ('Incremental Costs") as set forth in the PURCPA and referred to therein as "Disputed Costs"; and WHEREAS, Carmel is willing to reimburse DEI for such present and future costs in accordance with the terms of the PURCPA Incorporated herein; NOW, THEREFORE, for and in consideration of the mutual promises from, to and between DEI and Carmel, hereinafter contained, DEI and Carmel do hereby agree to and with each other, as follows: SECTION I. DEI will relocate the Utility Facilities to said Relocation Area in a manner, as depicted or described on Exhibit "A" (hereinafter referred to as "the Project'). The preliminary estimated Disputed Costs for the Project is as follows $560,641.38 (the "Estimated Disputed Cost') as shown on the attached Exhibit "B." SECTION It. Subject to the terms and conditions specified in Sections II of the PURCPA, Carmel shall reimburse DEI for the actual costs incurred by DEI to perform the Project in accordance with the following schedule: (i) after the execution of this Agreement DEI shall invoice Carmel for and Carmel shall pay DEI, in advance, fifty percent (50%) of the Estimated Disputed Costs within thirty (30) days after the Effective Date of this Agreement; (ii) the remaining 50% of the Estimated (or if complete, the Final) Disputed Costs shall be due and payable as set forth in the PURCPA, within one hundred and eighty (180) days after Carmel has received written notice from DEI in the form of an invoice that DEI has Commenced Work; and (iii) upon completion of the Project (a) If the [actual Incremental Costs] incurred by DEI to perform the Project exceed the Estimated Disputed Costs, Carmel shall pay the additional amount due in accordance with Section II. (1) of the PURCPA. All invoices shall include supporting documentation to substantiate the claim. Such supporting documentation shall include, but shall not be limited to, copies of material invoices, time sheets, vendor and/or contractor invoices and other such documents as may be deemed necessary by Carmel to support such invoice. 2 SECTION III. DEI shall not start the Project until the following has occurred: (a) written notice has been given to DEI by Carmel that (i) the Project has been authorized and funds are available to reimburse DEI, and (ii) all necessary public road right of way has been acquired for the Project, (b) Carmel has denoted the public road right of way line in the area of the Project, by staked survey at not more than 100-foot intervals with station markings, (c) Carmel has trimmed/removed all vegetation away from the public road right of way in the area of the Project, as reasonably determined by DEI, and (d) Carmel and DEI have executed this Agreement. SECTION IV. DEI shall not discriminate against any employee or applicant for employment, in the performance of this Agreement, with respect to hire, tenure, terms, conditions or privileges of employment or any matter directly or indirectly related to employment because of race, color, religion, national origin or ancestry. Breach of this covenant may be regarded as a material breach of this Agreement. SECTION V. DEI shall indemnify and hold harmless Carmel from and against any and all legal liabilities and other expenses, claims, costs, losses, suits or judgments for damages, or injuries to or death of persons or damage to or destruction of property arising out of the Project (hereafter "Claim"); provided, however, that where Carmel is negligent or engages in intentional misconduct with respect to the occurrence or occurrences giving rise to the Claim, DEI shall have no duty to indemnify and hold harmless Carmel. IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by through their duly authorized representatives, effective the date first above written. 3 DUKE ENERGY INDIANA, LLC Cyn.th&VA. RowlaA& Signature Sr. Engineering Technologist Title May 26, 2020 Date Approved and Adopted this 2 I day of SC'C "t 1 � G'rd , 2020 By: CITY OF CARMEL, INDIANA By-aa 4hreugk-+ts•Beaul-af-Rubtic-Wo&sand-Safety BY: c: C. J es Brainard, Presiding Offie r ate: y s .> _ v. �r 20 i/ Mary Ann Burke, Member Date: Lori S. Watson, Member Date: ATTEST: Sa€gx E{erk ll-I_,,t�stnrLe��,�PercxJ�zo-��veye� Date: 5kt� �yYl//tiL+ Zt•'ZU Z iaa45 auFi4apaG1 I 0-N A B B J 9ga i g a m e v , Watexlu lY Way a „goo it m%i I e Ng, 3 j yrpw n eeC �y B I '� y�10 146 s=� oo I -4 ol t POT P _6 III �I Y� 4 II a m ti 0 O a 3 u u 3 a Qqq 9 FF $$ I Hu mao vN O m C G Ho .v N. / W NN a O O�m U vmiV W a 0W0WN0 / mt0 N / .y✓B"oo m _ 0>00 O, i ONW MNEF r0 2mam Earom '�' i9 F ]aey6 auyjyapeN d L ILI 41 ca ay � m i R F N u yk A b d g0 -- $$w$$ o 6 i a I �N I•� a �. e e ;III^ I ffi� Co legs way (�06� B--------- ---_ -� 881 :�d t: `II ICI 2f 0 a R `pan W�1 Ie 9�li � -- --_— —may--- �,: 14,1 7. 5 Ir'.III a �am m ao 4" W I p / m VI l .. Rio I'iI I.I i1 ��'{!� Nac ud sneee a 6 iaaVS auFi4a]eW i ICI ryl, °t ry Iil I. F 0 'd Hill Or .+ Z u, I v�l 6ao $S (J I w l II gee ANLW � Ilia L�5 a�Es� III, I rs 3Fit I I �I �•e � ama�. aa� �I I� f 1 n N Z AO Rd v A. M d GGm q —� _ il: •I( O u W t I'IJ F n.conu�. snaec z 00� 3 � C: s - w� n „y"ow ¢ex°� aa5� III o'a �a III �zw�z , z�x"ax nda II W £ is lk "_ rvma eo1, I9, I M � LL ( a e %$ s rv�nV� U � yyyy$ y6E$ 936 gB4 Host: hitp//entdukerpt.duke� energy.com/ReportBerver CU Estimate Job Cost Summary Sorted by: Site, Employee Name Report Last Refreshed on: 04/28202014:45 Estimate Request: 2419087 Design 282NO02- A for Work Request Request Type: JOB 28288002@SUBMR_FOR _ESTIMATE Work Site: TD-IN Master WO: 28288W2 INDOT - GUILFORD RD - CARMEL - DES NO 1383180 Estimate Verslon: 15 Design 28288002- A for Work Request Est] an ate Type: COSTONLY 28288002@SUBMIT_ FOR ESTIMATE Estimated On: 04/282020 At: 02:23:59 PM By: MA DMIN Labor Hours Labor Hours - On Site: 3838.17 3838.17 Labor Hours - OR Site: 0 0 0 Total Labor Hours: 3838.17 0 3838.17 Costs Labor Cost 37065572 0 370655,72 Services Cost: 61320 61320 Tools Cost: 0 0 0 Total Labor, Services, B Tools Cost: 370655.72 61320 431975.72 New Material Cast 202108.03 0 202108.03 Less Salvage: 0 0 Total Material Cost: 202108.03 0 202108.03 Total Overheads: 221843.63 Less OH Relocation Cost: 295286 Total Net Cast: 580641.38 Plus Total Deferred Cost: 0 Total Estimated Cost: 560841.38 04/282020 15:07 Informational Use Only Page 1 of 1 Exhibit B EXECUTION VERSION 3.23-20 PROVISIONAL UTILITY RELOCATION COST PAYMENT AGREEMENT This Provisional Utility Relocation Cost Payment Agreement ("PURCPA") is entered by and between the City of Carmel, Indiana ("Carmel") and Duke Energy Indiana, LLC ("DEI"), (collectively the "Parties"), and is effective on and after the due date of its execution by the last Party to sign the PURCPA. WHEREAS, the Parties disagree about the relationship between and the application of certain provisions of Carmel City Code, Indiana Code § 8-1-2-101 et. seq., and DEI's General Electric Tariff, General Terms and Conditions, including Section 9, as those may relate to the responsibility for costs associated with relocating certain DEI facilities to accommodate the Carmel Projects defined below; and WHEREAS, assuming a safe, reasonable alternate location, DEI recognizes its obligation to pay for and relocate DEI facilities presently in Carmel public road Right of Way ("ROW") on a like -for -like basis, if Carmel requests the relocation for a Carmel road improvement project ("Road Improvement Projects"); and WHEREAS, DEI contends that under applicable state law and regulations and in moving facilities for Carmel Road Improvement Projects, it is only obligated to pay to relocate above- ground facilities to above -ground facilities and that Carmel is responsible for any cost differential to relocate DEI facilities from above -ground facilities to underground facilities; and WHEREAS, Carmel contends that DEI must abide by applicable laws including state laws and statutes and Carmel ordinances and regulations and pay the cost differential in moving above -ground facilities to underground facilities for Road Improvement Projects where such state laws and statutes and Carmel ordinances and regulations provide for underground relocation; and Exhibit C WHEREAS, the Parties dispute whether DEI is obligated to pay anything to relocate DEI facilities in Carmel -owned ROWS at Carmel's request, for multi -use projects and non -road improvement projects (collectively" Multi -Use Projects"); and WHEREAS, the Parties wish to move forward on the Carmel Projects on the terms set forth herein and to defer resolution of their issues to a later time; NOW THEREFORE, IN CONSIDERATION OF THE FOREGOING and for other valuable consideration, the receipt and sufficiency of which is acknowledged by each of them, the Parties agree as follows: SECTION 1: CARMEL PROJECTS DEFINED This PURCPA applies to the listed projects in this Section ("Carmel Projects"), which list may be amended from time to time by letter agreement signed by both Parties. The Parties agree that while each project is separate and distinct, the projects can generally be classified as follows: A. Road Improvement Projects that involve a cost differential to move DEI facilities from above -ground to underground: Guilford Road Improvement Project Relocate overhead electric facilities in current ROW to underground electric facilities from Guilford Road from 1261' Street, North to Main Street (131" Street); 2. Rangeline Road Improvement Project — Relocate overhead electric facilities in current ROW to underground electric facilities from 136" Street, North to US 31 Overpass (includes DEI's request that Carmel enter an evergreen provision); 7 Exhibit C 3. AAAWay at 116" Street Road Reconstruction: Relocate overhead DEI electric facilities in current ROW to underground electric facilities for a new Roundabout; 4. Rangeline Road and 116" Street Road Reconstruction: Relocate overhead DEI electric facilities in current ROW to underground electric facilities for a new Roundabout. B. Multi -Use Projects: I. Carmel Drive Multi -Use Project: Relocate underground DEI electric facilities in current ROW deeper below grade from Adam Street, West to Old Meridian Street; 2. 1261" Street Multi -Use Project: DEI utility pole above -ground relocation and down guy -wire adjustments; 3. Main Street and Keystone Multi -Use Connection Project: DEI utility pole above -ground relocation and down guy -wire adjustments. 4. 1361" Street Multi -Use Path between Rangeline Road and Keystone: DEI underground electric facilities in current ROW to be buried deeper from 048-464 to 069-949 and relocate three poles which will require 2 new poles and other supporting facilities. 5. Gray Road Multi -Use Project between 1361" and 1461" Streets: DEI Utility pole above -ground relocation and down guy -wire adjustments. SECTION 2: TERMS OF PURCPA A. Carmel shall execute a separate Utility Reimbursement Agreement ("URA"), in a form attached as Exhibit A, and a Work Plan for each Carmel Project prior to DEI 3 Exhibit C commencing work for that project. Each proposed URA shall include a DEI cost estimate for the Project's Disputed Costs. "Disputed Costs" means for Road Improvement Projects the cost differential that results from relocating electric facilities in current Carmel road ROW from above -ground to underground. "Disputed Costs" means for Multi -Use Projects the entire costs of the project relocation. B. Approval of the URA by the Carmel Board of Public Works and Safety shall serve as written notice -as set forth in Section 4 herein to DEI of Carmel's intent to proceed with that Carmel Project and shall trigger the obligations set forth below. C. Within thirty (30) days of the effective date of the URA for a Carmel Project, Carmel shall make an initial payment to DEI of 50% of the estimated Disputed Costs for such Carmel Project ("Initial Payment"). D. Within thirty (30) days of receipt of the Initial Payment, DEI shall provide Carmel written notice, by email or otherwise, that it has Commenced Work. DEI shall be deemed to have commenced work when DEI begins the design work or other preliminary work necessary to relocate DEI facilities. E. Within One Hundred and Eighty (I80) days after DEI provides written notice to Carmel that it has Commenced Work, Carmel shall make payment of the remaining 50% of the estimated Disputed Costs for the Carmel Project ("Remaining Payment"), noting on the invoice whether Carmel has initiated a lawsuit/or proceeding on that project, as set forth below. If Carmel has initiated suit or other proceeding against DEI in a court of law or at the IURC, whichever is applicable, to obtain a determination as to which Party shall pay the Disputed 0 Exhibit C Costs, the Remaining Payment must be paid into a court -approved account or a previously agreed upon account. If Carmel does not file a suit or other proceeding against DEI within ninety (90) days after the Initial Payment is made by Carmel ("Time Limit"), Carmel waives its right to do so with respect to all the Disputed Costs for that Carmel Project only, and shall pay all actual costs to DEI as Remaining Costs for that Carmel Project. Nothing herein waives or alters either Party's right to file a suit or proceeding relating to any other Carmel Project for which the Time Limit has not expired. Carmel's failure to file suit as to one Carmel Project, as set forth above, shall not be a waiver of its right to challenge any Disputed Costs relating to any retraining Carmel Projects for which the Time Limit has not expired nor shall it be deemed an admission against interest by Carmel and Carmel shall retain all rights and defenses it may have under law or equity to initiate or defend against any proceeding related to any Carmel Project for which the Time Limit has not expired and referenced herein. Likewise, DEI retains all rights and defenses it may have to initiate or defend against any proceeding related to any Carmel Project for which the Time Limit has not expired. F. Either Party may, but is not required to, file a separate lawsuit or proceeding challenging Disputed Costs for each Project or may elect to file one suit or proceeding to include all Carmel Projects involving Disputed Costs which are not otherwise waived as set out above in Section E. G. If a court or other tribunal or finder of fact determines that Carmel need not pay the Disputed Costs, and such ruling or finding is not subject to any further appeal 5 Exhibit C or action by either Party ("Final Determination for Carmel"), Carmel shall have the right to immediately withdraw any Disputed Costs from the court -approved account or agreed account, including any interest that accrues based on the type of account in which the funds were deposited. DEI shall not be responsible for any interest or penalties on such funds. DEI shall also reimburse any Initial Payment with thirty (30) days of a Final Determination for Carmel, without interest or penalty accrued. H. If a court or other tribunal or finder of fact determines that DEI need not pay the Disputed Costs, and such ruling or finding is not subject to any further appeal or action by either Party ("Final Determination for DEC'), DEI shall have the right to immediately withdraw any Disputed Costs from the court -approved account or agreed account including any interest that accrues based on the type of account in which the funds were deposited. Carmel shall not be responsible for any interest or penalties on such funds. DEI shall be entitled to retain any Initial Payment and shall be entitled to the True -Up Payment as described in Section 2, Paragraph(J). I. The Parties agree that —the Final Determination for either Carmel or DEI, as defined above in Paragraphs G or H, will be applied to future relocation projects and URAs involving a request by Carmel to relocate from Carmel road ROWS and to replace above ground facilities with underground facilities or to any Multi - Use Projects, (whether or not identified in this Agreement) except to the extent such Final Determination is overturned by an IURC ruling, erAndiana Supreme Court case law, or United States Supreme Court case, and/or superseded by l9 Exhibit C legislation that definitively determines the payment obligations addressed in this Agreement. J. At the conclusion of each Carmel Project (which shall occur after all contractors/subcontractors have submitted their final invoices to DEL) and DEL has invoiced Carmel for any final actual Project costs that exceed the total of the Initial Payment and Remaining Payment ("True -Up Payment"), Carmel shall pay such True -Up Payment after receipt of a final invoice from DEL in accordance with the following schedule: 1) Carmel shall submit the additional costs (the "Carmel True Up Amount") for approval by the Board of Public Works at its next meeting after its receipt of DEI's invoice which include the Carmel True Up Amount and 2) shall reimburse DEI for the Carmel True Up Amount within thirty (30) days after approval by the Board of Public Works; or if the actual costs incurred by DEL to perform the Project are less than Estimated Disputed Cost, DEI shall refund to Carmel the amount of the overpayment (the "DEI True Up Amount") within sixty (60) days after the completion of the Project (as defined above) , unless the under- or over -payment is for a Project that is the subject of a proceeding in which case the payment will be made into the court -approved or agreed account as described in Paragraph 2-E. Neither party is required to pay interest or penalties on any True -Up Payment. K. The Parties agree and acknowledge that each project identified as a Carmel Project in this Agreement is separate and distinct with a unique start date and any time frame or deadline in this Agreement shall be calculated based on the date of execution of each separate URA, except as otherwise stated in this Agreement. 7 Exhibit C L. The Parties agree that the purpose of this Agreement is to allow the Carmel Projects to proceed even if a Party elects to challenge such Project(s) in a proceeding and that each Party will undertake best efforts to comply with this Agreement during the pendency of any such challenge. SECTION 3. TAX GROSS UP PAYMENTS AND REPRESENTATION BY CARMEL REGARDING MASTER DEVELOPMENT PLAN AND INDEMNIFICATION OF DEI On the following basis, DEI agrees to forego collection of tax gross -up charges from Carmel, which would be due if the payments hereunder (or any part thereof) were deemed to be contributions in aid of construction taxable to DEI: A. Cannel represents and warrants that the Carmel Projects and all payments to DEI under this Agreement are made pursuant to a "master development plan," as such tern is used in Pub. Law 115-97, Section 13312(b)(2) (12/2212017), which master development plan was approved by a governmental entity prior to December 22, 2017, and that payments to DEI made under this Agreement qualify for the exception specified in Pub. Law 115-97, Section 13312(b)(2) (12/22/2017), which exempts the reimbursements from being deemed to be contributions in aid of construction, taxable to DEI under 26 U.S.C. Section 118(b)(2); B. DEI agrees to accept Carmel's representations hereunder and shall take no actions contrary to those representations or that would cause those representations to be challenged except to the extent required by applicable law or regulation; and Q As an inducement to DEI's agreement to forego collection of tax gross -up charges from Carmel, which would be due if the payments (or any part thereof) were deemed to be contributions in aid of construction taxable to DEI, Carmel hereby P Exhibit C covenants and agrees to indemnify and to hold harmless DEI from and against any claim, liability, damages or loss, including any tax, penalties, or interest resulting from or arising out of or relating to DEI's reliance on the representations and warranties made by the Carmel under this Section or any finding that any representation or warranty under this Section is false or inaccurate in whole or in part. SECTION 4: NOTICE Any notice, invoice, order, agreement, or other correspondence required to be sent pursuant to this Agreement, shall be in writing and sent by pre -paid U.S. certified mail, return receipt requested, to the Parties as set forth below: Y ICCZttFW151J 6 City of Carmel Department of Engineering One Civic Square Carmel, Indiana 46032 ATTN: Jeremy Kashman City of Carmel Mayor's Office One Civic Square Carmel, Indiana 46032 ATTN: The Honorable James Brainard TO DEI: Duke Energy Indiana, LLC Ariane Johnson Associate General Counsel 1000 E. Main Street Plainfield, IN 46168 Duke Energy Indiana, LLC Matt Koenig City of Carmel AND Office of Corporation Counsel One Civic Square Carmel, Indiana 46032 ATTN: Douglas C. Haney rJ Exhibit C Manager, Distribution Design 1000 E. Main Street Plainfield IN 46168 SECTION 5: GOVERNING LAW This Agreement shall be governed by and construed in accordance with the laws of the State of Indiana, except for Indiana's laws regarding conflicts of law, and shall not be altered or otherwise amended except pursuant to an instrument in writing signed by both Parties. The Parties agree and acknowledge that, in the event a lawsuit is filed hereunder, each Party waives any right to ajury trial they may have, and further agree to file any such lawsuit in an appropriate court in Hamilton County, Indiana only and/or with the IURC, whichever is deemed applicable. SECTION 6: WAIVER Any delay or inaction on behalf of either Party in exercising or pursuing its rights and/or remedies hereunder, shall not operate to waive any such rights and/or remedies in the future, nor shall it affect the rights of such Party, in any way whatsoever, to require specific performance of the other Party under the terms of this Agreement, except as otherwise set forth in this Agreement. SECTION 7: NON -ASSIGNMENT Both Parties agree and acknowledge that it shall not assign or delegate its responsibilities and obligations set forth herein, nor shall pledge the terms and conditions of this Agreement, to another person or entity without prior written consent of the other Party. SECTION 8: SUCCESSOR AND ASSIGNS to Exhibit C This Agreement shall be binding upon and inure to the benefit of the Parties and their respective past and present heirs, executors, administrators, beneficiaries, representatives, subsidiaries, divisions, officers, officials, directors, shareholders, agents, employees, alter egos, successors and assigns. SECTION 9: AGREEMENT AS EVIDENCE This Agreement may be used as evidence in any subsequent proceeding in which either of the Parties alleges a breach of this Agreement, as well as any proceeding contemplated hereinunder. SECTION 10: ENTIRE AGREEMENT This Agreement constitutes and contains the entire agreement between the Parties concerning the transactions contemplated herein and supersedes all prior negotiations, proposed agreements and understandings, or representations, if any, written or oral, between the Parties. To the extent that any provision contained in this Agreement conflicts with any provision contained in any URA, the provision contained in this Agreement shall prevail. SECTION 11: REPRESENTATIONS AND WARRANTIES BY BOTH PARTIES Each Party represents and warrants that it is authorized to enter into this Agreement and that any person or entity that executes this Agreement on behalf of such Party has the authority to bind such Party, or the Party which they represent. The Parties further warrant that they have read this Agreement and fully understand it, have had an opportunity to obtain the advice and assistance of counsel of their choosing throughout the negotiation of the same, and enter the same freely, voluntarily, and without any duress, undue influence or coercion. SECTION 12: SEVERABILITY 11 Exhibit C In the event any provision of this Agreement is deemed to be invalid or unenforceable by any court or administrative agency of competent jurisdiction, the Agreement shall be deemed to be excised, restricted, or otherwise modified to the extent necessary to render the same valid and enforceable. SECTION 13: SECTION HEADINGS The section headings herein have been used as a convenience of reference only, and shall in no way modify or restrict any of the terms or provisions hereof. SECTION 14: COUNTERPARTS This Agreement may be executed in one or more counterparts, each of which shall constitute an original. IN WITNESS WHEREOF, the Parties have signed and executed this Agreement on the dates below their respective signature(s), or the signature(s) of their representative(s). The effective date of this Agreement shall be the date of the last signature affixed hereto. CITY OF CARMEL, INDIANA ("CARMEL") BY: The Honorable James C. Brainard 12 Exhibit C James C. Brainard, Mayor, by Ashley M. INSERT NAME HERE INSERT TITLE HERE 4-15-2020 Date DUKE ENERGY INDIANA, LLC ("DEI") BY: Donald A McDuffy Director, Asset Design Indiana Customer Delivery Date 13 Ulbricht, Carmel City Attorney Exhibit C