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HomeMy WebLinkAboutDuke Energy Indiana, LLC - Phase II (North) Transmission Relocation_Agreement9 CzKpoPcfsmboefsbu:;21bn-Tfq3:-3132 PHASEII(NORTH)TRANSMISSION RELOCATION AGREEMENT THIS PHASE II (NORTH)TRANSMISSION RELOCATION AGREEMENT (the Agreementis entered into and effective this ____ day of _______________, 2021, 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 (Carmelor the City) with an address of One Civic Square, Carmel, Indiana 46032. WHEREAS, Carmeland DEI (indi entered into a Memorandum of Understanding (MOU)effective November 30, 2016, attached and incorporated herein by referenceas Exhibit 1, 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 stnorthrightofwaylineof1Street Northwest, then south to the south right of way line of East Carmel Drive (the Easements); and WHEREAS, DEIis willing to relocate the Facilities as contemplated under the MOU 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 DocuSign Envelope ID: 521DC10B-8B03-42A0-BE36-A82B7D63A91A 9 WHEREAS, relocation of the Facilities is to be done in proposed Phases I through IV ProjectProject); 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 have determined that it would be beneficial to split the Transmission Phase II Project into two parts as follows: (i) The Transmission Phase II Project stfacilitieslocatedSouthoftheCarmel1Avenue substation (hereinafter, stCarmel1 Avenue substation (hereinafter, WHEREAS, the Transmission Phase II (South) Project and the Transmission Phase IV Project were simultaneously undertaken, and have been substantially completed and energized on September 6, 2018; and WHEREAS, the Parties desire to document their agreement with respect to the terms and conditions for the initiation and completion of Transmission Phase II (North) Project in accordance with the terms of this Agreement and the MOU. 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. DocuSign Envelope ID: 521DC10B-8B03-42A0-BE36-A82B7D63A91A 9 Section 2 Transmission Phase II (North). Transmission Phase II (North) is described as follows: The Facilities will connect at Carmel 1st Avenue Substation; then the underground 69kV duct bank will travel north approximately 1,878 feet in a City-granted Exclusive Public Road Underground Right-of-Way EPRUROW) and will terminate at the 69kV riser structure north of 1st Street NW, all as depicted and further described in the attached Exhibit 2 (Hereinafter, Relocation Area). In the event of any conflict between this Section 2 and Exhibit 2in the description of the Phase II (North) Project, the description in Exhibit 2 shall take precedence and the Parties agree that the Phase II (North) Relocation Area, as depicted in Exhibit 2 shall be final unless amended in a writing agreed upon and executed by both Parties. Section 3City Obligations Prior to Commencement of Transmission Phase II (North) Relocation Services: Carmel, at its sole expense, shall provide to DEI the following items prior to the commencement of any Transmission Phase II (North) Relocation Services (defined in Section 6 below) by DEI. The City agrees that the following are co to perform the Transmission Phase II (North) Relocation Services and that if any of the following conditions are not met, 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. DocuSign Envelope ID: 521DC10B-8B03-42A0-BE36-A82B7D63A91A 9 A. Documentation from the appropriate Carmel governing body or entity that DEI has been granted the EPRUROW necessary to create the Phase II (North) Relocation Area. defined term (See Section 2) means that no other utilities may run in parallel within the DEI EPRUROW 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 EPRUROW 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 the EPRUROW. B. With respect to the EPRUROW: 1. DEI and the City shall work together to ensure that the EPRUROW and its exclusivity shall have been properly memorialized and recorded with the office; 2. Documentation of the passage of a non-revocable ordinance or resolution(s) or similarly authorized entity)limiting the City shall not use or authorize any third party to make use of the located without the prior review and written approval of DEI (which may DocuSign Envelope ID: 521DC10B-8B03-42A0-BE36-A82B7D63A91A 9 responsible for all costs if DEI must repair, modify or relocate its Facilities as a result of any non- 3. Documentation that written direction shall have been provided by the City ordinance/resolution and their conditions as set forth above in sub- paragraph B(2). 4. Evidence that the City has ensured that where a new project or development n 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 the 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 granted by the City for the Transmission Phase II (North) Relocation Area; C. 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 the Phase II (North) Relocation Areaand/or DocuSign Envelope ID: 521DC10B-8B03-42A0-BE36-A82B7D63A91A 9 2) relocate, modify or support DEI facilities in the Phases II (North) Relocation Area 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 EPRUROW in the Phases II (North) Relocation Area. DEI shall have no obligation to proceed with the Phase II (North) 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 EPRUROW 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. 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 or as agreed upon by the Parties. Any such crossings and their approval byDEI shall be documented. 3. To the extent City storm sewer or sanitary sewer (or by agreement with DEI, other utilities) remains in the DEI EPRUROW in the Phases II (North) DocuSign Envelope ID: 521DC10B-8B03-42A0-BE36-A82B7D63A91A 9 Relocation Area, the City shall provide executed encroachment agreements with DEI in a form acceptable to DEI. e EPRUROW 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 Phase II (North) Relocation Area 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 Phase II (North) 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 the Transmission Phase II (North) Relocation Area; H. All rights of entry/access agreements, in aform acceptable to DEI, necessary to effectuate the installation and maintenance of the Transmission Phase II (North) Facilities; I. All soil boring results, based on soil borings initially staked by DEI as necessary to effectuate Transmission Phase II (North) Project or re-staked by the City based on any locations; DocuSign Envelope ID: 521DC10B-8B03-42A0-BE36-A82B7D63A91A 9 J. All final road construction drawings/specifications/plans requested by DEI from the City necessary to undertake preliminary and final engineering of the Transmission Phase II North) Project; K. A pre-qualified list of contractors, as approved by DEI, to whom the City intends to open bidding for the construction of any underground duct banks in the Phase II (North) Relocation Area; L. Proof of construction of all necessary underground facilities in the Phase II(North) 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 Phase II (North) Relocation Area, with reasonable notice to the City, including duct banks and DEI shall not be liable for delays or costs resulting from such inspections. Such 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 Phase II (North) Relocation Area. 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 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 DocuSign Envelope ID: 521DC10B-8B03-42A0-BE36-A82B7D63A91A 9 to the incorrect construction of the underground ducts reserves the right to reject the existing duct bank in the Phase II (North) Projectif it does not meet its standards or is unable to pass testing prior to repairs. The City agrees that itwill 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 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 the Phases II (North) Project. In the event environmental boring/testing/sampling reveals any type of environmental condition that may affect reliable and safe service via underground Facilities in the Phase II (North) Project, the Phase II (North) Project may be cancelled pursuant to Section 5 and the Phase II (North) 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 the Phase II (North) Project. Section 4-- the Transmission Phase II North) Relocation Services: DEI shall provide to City the following prior to the commencement of the Transmission Phase II (North) Relocation Services: DocuSign Envelope ID: 521DC10B-8B03-42A0-BE36-A82B7D63A91A 9 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 EPRUROW for the Phase II (North) Relocation Area; D. The materials estimate for work on the Transmission Phase II (North) Project; E. Design and test specifications for any underground duct construction to be done by the 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 Phase II North) Relocation Area does 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. Section 5 -- Termination Prior to Commercial Operation of the Transmission Phase II North) 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 DocuSign Envelope ID: 521DC10B-8B03-42A0-BE36-A82B7D63A91A 9 II (North) 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 DEI 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 Phase II (North) 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 II (North) Transmission Facilities will remain in the existing above-ground Easements and the City will take no action to interfere with or otherwise eject or remove DEI from the above-ground Easements. Section 6 Transmission Phase II (North) 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 DocuSign Envelope ID: 521DC10B-8B03-42A0-BE36-A82B7D63A91A 9 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 Phase II (North) I (North) Re Transmission Phase II (North) 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 Phase II (North) Relocation Area. 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 Phase II (North) 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 the third-party ded 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-- 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. DocuSign Envelope ID: 521DC10B-8B03-42A0-BE36-A82B7D63A91A 9 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 include but are not limited to, unplanned work and any work that is subject to a MISO-imposed timeline. The City shall provide acopy 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. Section 9 No Warranties: outside of this Agreement, DEI disclaims any and all warranties with respect to the Transmission Phase II (North) Relocation Services performed hereunder and the Phase II (North) 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 DocuSign Envelope ID: 521DC10B-8B03-42A0-BE36-A82B7D63A91A 9 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 II (North) Relocation Area, ownership and title to such facilities shall remain with the City as applicable both during the Phase II North) Relocation process and for the entire period that the Transmission Facilities remain in the Phase II (North) Relocation Area 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 upkeep which, in some C. Maintenance of Phase II (North) Transmission Facilities in the Relocation Area: 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 DocuSign Envelope ID: 521DC10B-8B03-42A0-BE36-A82B7D63A91A 9 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 s that such costs are speculative. Section 11 -- Payment by the City for Relocation Services: The City shall pay all costs arising from or relating to this Agreement and/or the Transmission Phase II (North) Relocation Services, subject to usual DEI payment times, terms and conditions. Such payments shall be due and payable whether the Transmission Phase II (North) 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 II (North) Relocation Services and concludes that the work cannot move forward under these but are not limited to costs related to obtaining necessary easements or other property interests in the Transmission Phase II (North) Relocation Area, and engineering costs, environmental costs, purchase of materials, supervision, testing, the construction and relocation of DEI (or its ofthe existing above-ground facilities, as such r 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 amonthly 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 DocuSign Envelope ID: 521DC10B-8B03-42A0-BE36-A82B7D63A91A 9 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, reasonable 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 toany 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 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 the Phase II (North) Project. 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 Phase II (North) 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 the Phase II (North) Project, except to the extent set forth above. DocuSign Envelope ID: 521DC10B-8B03-42A0-BE36-A82B7D63A91A 9 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, reasonable (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 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 the Phase II (North) Project, subject only to the provisions of Section 12. Section 14 -- Successors, Transferees and Assigns: EPRUROW and easements that are part of the Transmission Phase II (North) Relocation Area DocuSign Envelope ID: 521DC10B-8B03-42A0-BE36-A82B7D63A91A 9 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 valid and binding obligations, enforceable against it in accordance with its terms; D. Neither the execution and delivery by each Party of, nor its performance under the this Agreement conflicts with, results in abreach of any provision of, constitutes adefault 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: DocuSign Envelope ID: 521DC10B-8B03-42A0-BE36-A82B7D63A91A 9 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 -- Governing 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. 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. DocuSign Envelope ID: 521DC10B-8B03-42A0-BE36-A82B7D63A91A 9 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. 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 -- 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 Section 23 Notices: The Parties designate the following to receive any required notices under this Agreement: For DEI: Susan Evans Transmission Project Manager DocuSign Envelope ID: 521DC10B-8B03-42A0-BE36-A82B7D63A91A 9 1000 E. Main Street, Plainfield IN 46168 Susan.evans@duke-energy.com 317-838-4181 Ryan Hart Midwest Regional Land Services 1000 E. Main Street, Plainfield IN 46168 Ryan.hart@duke-energy.com 317-838-2403 Mark LaBarr Community Relations & Economic Development IN 100 S. Mill Creek Road, Noblesville IN 46062 Mark.labarr@duke-energy.com 317-776-5324 Ariane Johnson Associate General Counsel 1000 E. Main Street, Plainfield IN 46168 Ariane.johnson@duke-energy.com 317-838-1035 For Carmel: City of Carmel Department of Redevelopment Director Henry Mestetsky 30 W. Main Street Carmel, IN 46032 hmestetsky@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 jkashman@carmel.in.gov DocuSign Envelope ID: 521DC10B-8B03-42A0-BE36-A82B7D63A91A 9 Office of Corporation Counsel One Civic Square Carmel, IN 46032 Mayor James Brainard One Civic Square Carmel, IN 46032 jbrainard@carmel.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. Section 24 Tax Gross Up Payments and Representations 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 reimbursements (or any part thereof) were deemed to be contributions in aid of construction taxable to DEI: A. Carmel represents and warrants that the Phase II (North) Project and all reimbursements for costs to DEI under this Agreement are made pursuant to a Pub. Law 115-97, Section 13312(b)(2) (12/22/2017), 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); DocuSign Envelope ID: 521DC10B-8B03-42A0-BE36-A82B7D63A91A 9 B. contrary to those representations or that would cause those representations to be challenged except to the extent required by applicable law or regulation; and C. -up charges from Carmel, which would be due if the reimbursements (or any part thereof) were deemed to be contributions in aid of construction taxable to DEI, Carmel hereby 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 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 25 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. DocuSign Envelope ID: 521DC10B-8B03-42A0-BE36-A82B7D63A91A 9 DocuSign Envelope ID: 521DC10B-8B03-42A0-BE36-A82B7D63A91A Not Present ------------ 10/6/2021 10/6/2021 10/6/2021 9 9IL.L DocuSign Envelope ID: 521DC10B-8B03-42A0-BE36-A82B7D63A91A 9 DocuSign Envelope ID: 521DC10B-8B03-42A0-BE36-A82B7D63A91A 9 DocuSign Envelope ID: 521DC10B-8B03-42A0-BE36-A82B7D63A91A 9 DocuSign Envelope ID: 521DC10B-8B03-42A0-BE36-A82B7D63A91A 9 DocuSign Envelope ID: 521DC10B-8B03-42A0-BE36-A82B7D63A91A 9 DocuSign Envelope ID: 521DC10B-8B03-42A0-BE36-A82B7D63A91A 9 DocuSign Envelope ID: 521DC10B-8B03-42A0-BE36-A82B7D63A91A 9 DocuSign Envelope ID: 521DC10B-8B03-42A0-BE36-A82B7D63A91A 9 DocuSign Envelope ID: 521DC10B-8B03-42A0-BE36-A82B7D63A91A 9 DocuSign Envelope ID: 521DC10B-8B03-42A0-BE36-A82B7D63A91A 9 DocuSign Envelope ID: 521DC10B-8B03-42A0-BE36-A82B7D63A91A 9 DocuSign Envelope ID: 521DC10B-8B03-42A0-BE36-A82B7D63A91A 9 DocuSign Envelope ID: 521DC10B-8B03-42A0-BE36-A82B7D63A91A