Duke Energy Indiana/Phase 1 Distribution Relocation Agreement – 69K UndergroundPHASE I DISTRIBUTION RELOCATION AGREEMENT- 69k Under round
THIS PHASE 1 DISTRIBUTION RELOCATION AGREEMENT (the "Agreement") is entered into and
effective this Yd day of August, 2018, by and between DUKE ENGERGY 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 29, 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 the project, from the north right of way line of 1" 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 or suitable road right of way that the City will obtain for or
grant 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
WHEREAS, relocation for 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 the relocation of the Phase I Distribution Facilities which
are more specifically depicted or described in Exhibit A-1 attached hereto (the "Phase I Distribution
Facilities") 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)
Exhibits to this Agreement; d) the MOU 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- Phase I Distribution Relocation Area
The Phase I Distribution Relocation Area, as set forth in Section 3(a) of the MOU, is hereby
revised as follows: Phase I Distribution Relocation is to commence on the south side of East Carmel Drive
in above -ground Facilities located in the Easements on Parcel # 16-09-36-04-02-006.00, and will proceed
underground in a road Right of Way under East Carmel Drive to the City's Right of Way under Veteran's
Way where distribution will proceed north in a road Right of Way west of the proposed sidewalk
adjacent to the south bound travel lane of Veteran's Way. Distribution surface facilities and
underground service feeds will be located within road Right of Way and include distances 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), all as depicted in the attached Exhibit A-1 and Exhibit A-2 (hereinafter, the
"Phase I Distribution Relocation Area")
Section 3- Conditions Precedent to Commencement of Phase I Distribution Relocation Area Services.
The City agrees that the following are conditions precedent (the "Conditions Precedent") to
DEI's obligation to perform the Phase I Distribution Relocation Services (as defined in Section 4 below):
A. This Agreement has been approved by the City, through its Board of Public Works or other
authorized representative; and
B. This Agreement and the MOU serve as authorization for DEI to proceed with performing the
Phase I Distribution Services in the Phase I Distribution Relocation Area; and
C. All necessary public road right of way ("ROW") has been acquired in the Phase I Distribution
Relocation Area;
D. The City has denoted the ROW line in the Phase I Distribution Relocation Area, by staked
survey at not more than 100 foot intervals with station markings;
E. The City has trimmed/removed all vegetation away from the ROW in the Phase I Distribution
Relocation Area, as reasonably determined by DEI and/or the MOU; and
F. The City and DEI have executed this Agreement.
Section 4- Phase I Distribution Relocation Services.
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 Phase I Distribution Facilities to the Phase I Distribution Relocation Area as depicted on
Exhibit A-1 and Exhibit A -Z, attached to and incorporated herein, and as contemplated under the MOU
(the "Phase I Distribution Relocation Services").
Section 5- Payment by the City for Phase I Distribution Relocation Services.
The City shall reimburse DEI for the actual costs incurred by DEI to perform the Phase I
Distribution Relocation Services. The City and DEI acknowledge the preliminary estimated cost thereof
is $181,995.86, as shown on the attached and incorporated Exhibit B (the "Estimated Cost"). DEI
agrees to advise the City, in writing, if costs are anticipated to exceed the Estimated Cost by more than
10%. Notwithstanding any provision to the contrary set forth herein, the City agrees to reimburse DEI
for the actual costs incurred by DEI to perform the Phase I Distribution Relocation Services within forty-
five (45) days after receiving DEI's itemized invoice. The itemized invoice 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 the City may reasonably deem to be necessary to support such invoice. If the actual costs
incurred by DEI to perform the Phase I Distribution Relocation Services exceed the Estimated Cost, the
City shall pay the amount due, up to the Estimated Costs within the timeline described above and shall
submit the additional costs in excess of the Estimated Costs (the "True Up Amount") for approval by the
Board of Public Works at next meeting after its receipt of DEI's invoice which include the True Up
Amount and shall reimburse DEI for the True Up Amount within thirty (30) days after approval by the
Board of Public Works. DEI shall have the right to submit such statements for progress payments as the
Phase I Distribution Relocation Services proceed.
Section 6- Future Relocations.
In the event the Phase I Distribution Facilities need to be further adjusted, removed, supported,
altered, and/or relocated at any time or times in the future as a result of: (a) another City highway
improvement project; and/or (b) any other project of the City or other governmental entity, the City
hereby agrees to also reimburse DEI for any such costs actually incurred by DEI in the future to the
extent resulting from the City or governmental project. DEI shall not object to the City seeking
reimbursement for such future relocation costs from such third party governmental entity or entities
whose project necessitated the Phase I Distribution Facilities to be further adjusted, removed,
supported, altered, and/or relocated.
Section 7- Non -Discrimination.
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 8- Indemnification.
DEI shall indemnify and hold harmless the City 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 Phase I Distribution Relocation Services
(hereafter "Claim"); provided, however, that where the City 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 the City.
[Remainder of page left blank]
In WITNESS WHEREOF, the Parties hereto have cause this Agreement to be executed by and through
their duly authorized representatives, effective the date first above written.
DUKE ENERGY INDIAN LC
By" 040
?.indV
ture)
Na Rowland
Title: Senior Engineering Technologist
1°1
Approved and Adopted this-1=—day of 0 2018.
CITY OF CARMEL, INDIANA
By and through its Board of Public Works and Safety
BY: N
+ �
James Brainard, Presiding Officer
Date:
Maty Anrrke, MQe er
Date:
Lori S. Watson, M er
Date: _ 8
ATTEST: Q
Christine S. Pauiey, Clerk -Treasurer
Date: RIS
EXHIBIT 1
Exhibit 1 begins on the next page.
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
I . 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 Ibr
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 1 -IV (Project), with
proposed Phases 1 and 11 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 comer 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 111
November 22, 2016 Memorandum of Understanding — execution copy
a point south ofthc Carmel City Ccnter. Most of proposed Phase I is not located
in the Easements except at the north end as it begins to meet and follow Veteran's
Way.
Phase I Distribution: Proposed Phase I of the Project commences on the south
side o1'East Carmel Drive in above -ground facilities located in the Easements and
will proceed underground in a City -granted easement under East Carmel 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 Ill 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
corner 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
609575 2
Exhibit 1
Phase I and III
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 NESC codes and are at least 10 feet in width (5 feet on both sides of the
centerline of final engineering designs).
The City agrees that if Phase [If is not commenced at the same time as Phase 1,
Phase 1 will end in above -ground facilities that may later be converted and
removed, all at additional cost to the City. Until Phase fit 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.
c. Phase IV Transmission: Phase IV will connect to the north portion of the existing
underground 69kV and will end at a point near 6'h 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 6'I' 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 I1 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 If 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
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 of the location of 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 on the north side of I"
St. N.W., at a riser pole on private property in a City- obtained exclusive
easement.
Phase 11 Distribution: Distribution will turn east on 6"' 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 tine 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 DEl release its Easements and relocate its Facilities.
5. The City understands and agrees that DEI must take into account that I) 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
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6o9S75
Exhibit 1
Phase I and III
November 22, 2016 Memorandum of Understanding — execution copy
609575
those interests in favor of underground easements a) granted by the City under, in or on
City -owned property 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.
G. 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), (f), (j), (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
Exhibit 1
Phase I and III
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 of 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 -DEI 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
November 22, 2016 Memorandum of Understanding — execution copy
609S75
d. By resolution and associatcd permitting, City shall not use or authorize any third
party underground use of public road right of ways where the DEI'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 DEL
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.
f. The 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 DE1 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
November 22, 2016 Memorandum of Understanding — execution copy
V) where a new project or development is within 100 feet of DE I's
exclusivc 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.
Further, the City will obtain from Hamilton County a waiver i1rom
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.
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
November 22, 2016 Memorandum of Understanding — execution copy
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
(5 feet 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 11.
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
609575
Exhibit t
Phase I and III
November 22, 2016 Memorandum of understanding — execution copy
609575
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 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 DEl Carmel substations
and shall not include plantings. The existing street cuts on the east side of the
substation on I" 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
Exhibit 1
Phase I and III
November 22, 2016 Memorandum of Understanding — execution copy
City agrees that it will pay for any and all costs associated with the repair ofthe
existing duct bank in the event DEI determines that the 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.
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
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609575
Exhibit 1
Phase I and III
November 22, 2016 Memorandum of Understanding — execution copy
Project, that Phase will not be undertaken by DCI and that portion of the Incilitics
will remain above -ground in the existing Easements.
n. The Parties agree that the ternis 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 (lie terms and conditions herein.
Duke Energy Indiana, LLC Date: IVIY, , z8, 2016
j
City of Carmel, Indiana Date: &M-ba�2�20
By: l
v�GC_ ��ti�
Title _ ,�//� p
M75 12
Exhibit 1
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SIM 2 OF 2
EXHIBIT B
ESTIMATED COST
The Estimated Costs are itemized on the next page including the Tax Gross Up Payment added to the
costs.
Pursuant to the Tax Cut & Jobs Act ("TCJA") that was signed into law effective as of December 22, 2017,
section 118 of the U.S. Internal Revenue Code was modified to exclude from non-taxable treatment any
contribution in aid of construction or any other contribution as a potential customer, as well as any
contribution by any governmental entity or civic group. As a result of the TCJA the work performed by
DEI under this Agreement, may be subject to a tax gross up (the "Tax Gross Up Payment"). The Parties
agree that this Agreement is part of the City's master development plan and is also subject to a
memorandum of understanding signed by the Parties on November 29, 2016. The Parties further
acknowledge that the TCJA contains a limited transition rule which provides that a contribution made
pursuant to a "master development plan" that was approved prior to the effective date of the TGA by a
governmental entity is governed by prior law, and therefore may not be taxable. In the interim and
subject to further clarification by the IRS, the City will pay the amount due and owing under the Tax
Gross Up Payment pursuant to Section 5 of this Agreement. However, if the Phase I Distribution
Relocation Services are later determined by the IRS to be to be non-taxable to DEI , the Tax Gross Up
Payment will be returned to the City. The City's agreement to pay the Tax Gross Up Payment herein
does not constitute an admission by or waive the City's ability to argue, in any forum whatsoever, that
the Tax Gross Up Payment does not apply to this Project or any other project entered into between the
Parties.
Host: http://entdukerpt.duke- CU Estimate Report Last Refreshed on:
energy. com/ReportServer
Job Cost Summary 07/24/201820:51
Sorted by: Site, Employee Name
Estimate Request: 2017850 Design 10788916 - A for Work Request Request Type: JOB
107889161
Work Site: TD -IN
Master WO: 10788916 MXCONV-City of Carmel - Phase 1 -
OH to UG Relocation - Reimbursable
Estimate Version: 8 Design 10788916 - A for Work Request
�^+^+ Estimate Type: INPR
Estimated On: 06/14/2018 At�� 04:24:54 PM By: MAXADMIN
Labor Hours
Labor Hours - On Site:
828.92
828.92
Labor Hours - Off Site:
0
0
0
Total Labor Hours:
828.92
0
828.92
Costs Labor Cost:
65217.41
0
65217.41
Surveying Cost:
10000
10000
Services Cost:
0
0
Tools Cost:
0
0
0
Total Labor, Services, 3 Tools Cost:
65217.41
10000
75217.41
New Material Cost:
49893.44
0
49893.44
Less Salvage:
0
0
Total Material Cost:
49893.44
0
49893.44
Total Overheads:
34534.64'
Total Gross Cost:
159645.49
Less Applied Contributions:
0
Total Net Cost:
159645.49
Plus Total Deferred Cost:
0
Tax Gross Up Percentage:
22350.37
Total Estimated Cost:
181995.86
07/24/2018 20:52 Informational Use Only Page 1 of 1