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HomeMy WebLinkAboutMOU - Underground Work in City ROW Proj No. 120-052R - NIPSCO  ELIZABETH A. MARADIK JOSEPH R. MOLNAR GARY A. GILOT JORDAN V. GATHERS MURRAY L. MILLER 1316 COUNTY-CITY BUILDING 227 W. JEFFERSON BOULEVARD SOUTH BEND, INDIANA 46601-1830 PHONE 574/ 235-9251 FAX 574/ 235-9171 CITY OF SOUTH BEND JAMES MUELLER, MAYOR BOARD OF PUBLIC WORKS September 27, 2022 Ms. Milissa Kirkilewski Northern Indiana Public Service Company 3800 179th. St. Hammond, IN 46323 Mkirkilewski@nisource.com; Mkirkilewski@orbitalengr.com RE: Memorandum of Understanding Dear Ms. Kirkilewski: At its September 27, 2022 meeting, the Board of Public Works approved the above referenced memorandum with NIPSCO to complete underground work in the City ROW before Milestone Contractor’s North, Inc., completes surfacing at the intersection of Sample and Mayflower, Project No. 120-052R in the amount of $6,800. Enclosed please find the original of the memorandum for your signature. Please sign and return the original memorandum to lhensley@southbendin.gov. Please retain a copy for your records. If you have any further questions, please call this office at (574) 235-9251. Sincerely, /s/ Theresa Heffner Theresa Heffner, Clerk Enclosures TH/lh Explanation for MOU: This is due to the city already having their contractor (Milestone Contractors North, Inc.) working at this intersection and planning on mobilizing in April 2022 to finish the surfacing of the Mayflower/Sample intersection. If Nipsco were to have to come back after our contractor was done with the new paving and stripping, they then would come in and tear up our newly placed pavement to perform the work on their 20” casing removal. That means that they would now have to pay to mill and resurface the whole east half of the intersection. By the City allowing Nipsco to get their work done first we held off our contractor and asked them to come back immediately after NIPSCO’s underground work to complete the surfacing of the whole intersection as originally planned. This will also avoid issues with our contractor on pavement responsibility in case the surface unravels at some point prior to the 3-year maintenance bond required on our project contract. We could not see our contractor completing the surface and then having a Utility Company come in after the fact and tear up the newly placed surface and stripping. Trying to be proactive. The city wants to make sure that it looks like a finished product and not a patched-up site. We are putting too much money ($350K) into rehabbing this intersection. The city is requiring a reimbursement of $6,800.00 (62 tons of Surface at $110.00 per ton). The unit price is based on the unit price on the ongoing project with Milestone Contractors North, Inc. NIPSCO agrees with the city’s request. Regards, Toy 1 MEMORANDUM OF UNDERSTANDING FOR UTILITY INSTALLATION IN CITY RIGHTS-OF-WAY This Memorandum of Understanding (this “MOU”) is made effective May 17, 2022, by and between the City of South Bend, Indiana, by and through its Board of Public Works (hereinafter, referred to as the “City”), and Northern Indiana Power Company, (hereinafter, “Nipsco”). (each a “Party,” and collectively, the “Parties”). RECITALS A. Pursuant to I.C. 36-9-6-2, the City Board of Public Works has supervisory authority over the City streets, alleys, sewers, public grounds, and other City ROW. B. Moreover, pursuant to I.C. 36-9-6-13, the City Board of Public Works may authorize a utility company to use and erect necessary structures in any street, alley, or public place in the City, prescribing the terms and conditions of such use and fixing the price charged to the company. C. Nipsco desires to install, construct, reconstruct, operate, maintain, alter, repair, replace, renew, upgrade and relocate underground gas transmission, distribution, and communication lines (the “Work”) in certain City rights-of-way (“ROW”), more fully described and depicted on Exhibit A, which is incorporated herein by reference and attachment. D. The City Board of Public Works agrees to grant Nipsco permission to perform the Work described above in the designated City ROW. Subject to the terms and conditions set forth in this MOU. NOW, THEREFORE, in consideration of the mutual covenants set forth in this MOU, the Parties agree as follows: 1. License. The City grants to Nipsco a temporary license for the construction period of the gas transmission, distribution and communication lines and appurtenant equipment and fixtures in the identified City ROW. The temporary license shall terminate upon completion of the Work, which includes repair and restoration of City ROW located on our in the immediate vicinity of the intersection of Sample Street and Mayflower Road, South Bend, Indiana. 2. Term and Termination. Nipsco’s temporary license for construction shall commence on April 18,2022 and terminate no later than May 16, 2022. 3. Consideration. In consideration of the City allowing Nipsco to install underground gas transmission, distribution, and communication lines in City ROW and to restore such property to its previous condition or better, Nipsco agrees to make payment to the City in the amount of Six Thousand Eight Hundred Dollars ($6,800.00), to be paid no later than 30 days from the effective date of this MOU. 4. No Lease or Easement; Assignment. The City represents that it is the sole owner in fee simple of the designated City ROW and has lawful right to permit Nipsco access to and 2 perform the Work in the City ROW. The Parties acknowledge and intend that this MOU will not constitute a lease of or an easement on or over City ROW, and Nipsco will have no right or authority to convey any leasehold or other interest in City ROW to any other person or entity. Except as expressly provided in this MOU, any attempt by Nipsco to grant or lease any interest in the City ROW to another person or entity will be void ab initio and of no force or effect. The Parties agree that neither this MOU nor any of rights granted to Nipsco under this MOU may be assigned, in whole or in part, to any other party without the City’s prior written consent. 5. Restoration. Nipsco agrees that at its sole expense, it shall restore the City ROW to the same or better condition than existed immediately prior Nipsco’s use. Nipsco will notify the City contact(s) promptly upon completion of restoration, so as to provide the City with sufficient time to inspect and provide written notice of its acceptance of the restoration of the City ROW. 6. Maintenance. At all times during the period of the license, Nipsco will keep the City ROW in good order and condition and free of debris. 7. Security. Nipsco understands and agrees that the City shall not be liable for any loss, damage, destruction, or any bodily harm or injury that may result from Nipsco’s use of the City ROW. 8. Storage. Nipsco agrees that it will not cause or permit, knowingly or unknowingly, any hazardous material to be brought or remain upon, kept, used, discharged, leaked, or emitted at the City ROW. 9. Regulations; Other Permits. Nipsco understands and agrees that it will, at its own expense, observe and comply with all applicable statutes, laws, ordinances, requirements, orders, rules, and regulations of all governmental authorities in relation to Work performed on City ROW. Nipsco understands and agrees that it will secure in its own name and at its own expense all required permits, bonds, insurance and authorizations needed for the Work performed in the City ROW. 10. City’s Use. The City reserves the right to use the City ROW during the term of this MOU for any purpose that does not substantially interfere with or obstruct Nipsco’s rights under this MOU. 11. Indemnification. Nipsco agrees and undertakes to defend, indemnify, and hold harmless the City, its respective officials, employees, agents, successors, and assigns, from and against any liability, loss, costs, damages, or expenses, including attorneys’ fees, which the City may suffer or incur as a result of any claims or actions which may be brought by any person or entity related to the Work performed by Nipsco under this MOU. If any action is brought against the City, or its respective officials, employees, agents, successors, and assigns, in connection with Nipsco’s Work in City ROW, Nipsco agrees to defend such action or proceedings at its own expense and to pay any judgment rendered therein. 12. Insurance. Nipsco, at Nipsco’s sole expense, shall maintain during the term of this MOU commercial general liability insurance covering Nipsco in an amount not less than Five Million Dollars ($5,000,000.00) per occurrence, inclusive of the limit of an umbrella or excess 3 policy. Nipsco agrees to include the City as additional insureds on any such policy and produce to the City evidence of the same, including without limitation a properly endorsed policy and a certificate of insurance within thirty (30) days of the execution of this MOU and annually thereafter. To the extent that the City is harmed as a result of Nipsco’s Work in City ROW, Nipsco hereby grants the City first priority on any proceeds received from Nipsco’s insurance. Notwithstanding anything in this MOU to the contrary, the City does not waive any governmental immunity or liability limitations available to it under Indiana law. 13. Integration; Amendment. This MOU supersedes all prior negotiations, understandings, and agreements, whether written or oral, concerning the subject matter of this MOU and constitutes the Parties’ entire agreement. This MOU may not be altered except by a written instrument signed by authorized representatives of both Parties. 14. Waiver. Neither the failure nor any delay on the part of a Party to exercise any right, remedy, power or privilege under this MOU shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege preclude any other or further exercise of the same or of any right, remedy, power or privilege, nor shall any waiver of any right, remedy, power or privilege with respect to any occurrence be construed as a waiver of such right, remedy, power or privilege with respect to any other occurrence. No waiver shall be effective unless it is in writing and is signed by the Party asserted to have granted such waiver. 15. Severability. If any term or provision of this MOU is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining terms and provisions of this MOU shall continue in full force and effect unless amended or modified by mutual consent of the parties. 16. Counterparts; Signatures. This MOU may be separately executed in counterparts by the Parties, and the same, when taken together, will be regarded as one original MOU. Electronically transmitted signatures will be regarded as original signatures. 17. Authority. Each undersigned person signing on behalf of his or her respective Party certifies that he or she is duly authorized to bind his or her respective Party to the terms of this MOU. 18. Governing Law. This MOU will be governed by and construed in accordance with the laws of the State of Indiana. SIGNATURE PAGE FOLLOWS 4 IN WITNESS WHEREOF, the Parties have executed this Memorandum of Understanding for Utility Installation in City Rights-of-Way to be effective as of the date set forth above. NORTHERN INDIANA PUBLIC SERVICE COMPANY 3800 179th Street Hammond, Indiana 46323 ___________________________________ Milissa Kirkilewski ____________________________________ Print ____________________________________ Senior Project Manager CITY OF SOUTH BEND, INDIANA BOARD OF PUBLIC WORKS County-City Building 227 W. Jefferson Blvd., Ste., 1308 South Bend, Indiana 46601 September 27, 2022 5 EXHIBIT A NIPSCO’s Plans and Drawings Area outlined in white - 62 Ton x $110.00 = $6,800.00 BOARD OF PUBLIC WORKS AGENDA ITEM REVIEW REQUEST FORM Date 09/21/2022 Name Toy Villa Department Public Works BPW Date 09/27/2022 Phone Extension 5920 Review and Approval Required Prior to Submittal to Board Diversity Compliance and Inclusion Officer Officer Name BPW Attorney Attorney Name Dept. Attorney Attorney Name Purchasing Check the Appropriate Item Type – Required for All Submissions Professional Services Agreement Contract Proposal Open Market Contract Amendment/Addendum Special Purchase, QPA Bid Opening Bid Award Req. to Advertise Title Sheet Quote Opening Quote Award Reject Bids/Quotes Proposal Opening C/O & PCA No. PCA Chg. Order, No. Traffic Control Resolution Other: MOU Ease. /Encroach Required Information Company or Vendor Name NIPSCO New Vendor Yes If Yes, Approved by Purchasing No MBE/WBE Contractor MBE WBE Completed E-Verify Form Attached Yes No Project Name MOU for Mayflower Road and Sample Street Project Number Funding Source Account No. Amount $6,800.00 Terms of Contract Purpose/Description See attached MOU For Change Orders Only Amount of Increase Decrease $ ($ ) Previous Amount $ Current Percent of Change: Increase Decrease % ( %) New Amount $ Total Percent of Change: Increase Decrease % ( %) Time Extension Amount: New Completion Date: