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HomeMy WebLinkAboutAuthorization, Access & Indemnification Agreement - Cross Bore Safety Initiative – NIPSCO1316 COUNTY -CITY BUILDING 227 W. JEFFERSON BOULEVARD SOUTH BEND, INDIANA 46601-1830 PHONE 574/235-9251 FAx 574/235-9171 CITY OF SOUTH BEND TAMES MUELLER, MAYOR BOARD OF PUBLIC WORKS February 14, 2023 Ms. Ashley Smith Compliance Administrator, NIPSCO 1501 Hale Ave. Fort Wayne, IN 46802 RE: Authorization, Access and Indemnification Agreement Dear Ms. Smith: At its February 14, 2023 meeting, the Board of Public Works approved the above referenced agreement which involves NIPSCO televising the City sewer to verify and identify any damage from cross boring gas lines and repaired at NIPSCO's expense. Enclosed please find a copy of the agreement 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 ELIZABETH A. MARADIK JOSEPH R. MOLNAR GARY A. GILOT JORDAN V. GATHERS MURRAY L. MILLER AUTHORIZATION ACCESS AND INDEMNIFICATION AGREEMENT This AUTHORIZATION, ACCESS AND INDEMNIFICATION AGREEEMENT (the "Agreement") is made and entered into this 30th day of January 2023 (the "Effective Date"), by and between the City of South Bend, Indiana, a municipal corporation, by and through its Board of Public Works (hereinafter, the "City"), and Northern Indiana Public Service Company ("NIPSCO"). The City and NIPSCO are sometimes collectively referred to herein as the "Parties" and individually as a "Party". RECITALS: WHEREAS, the City owns and operates a network of sanitary, storm, and combined sewer pipes that carry storm water and sanitary sewage to the City's water pollution control plant; and WHEREAS, NIPSCO owns and operates a network of underground gas facilities that provide natural gas service to customers in and around northern Indiana, including the region where the City is located; and WHEREAS, prior to extending gas service to new locations and/or new customers, NIPSCO has developed a process that involves televising sewer pipes to verify the location of such pipes and identify any existing damage from cross bores; and WHEREAS, following the extension of service, NIPSCO re -checks the sewer pipes to ensure that no new damage was caused by cross bores; and WHEREAS, NIPSCO has requested permission to televise the City's sewer pipes in order to perform the foregoing functions, including verification of sewer pipe location and identification of damage caused by cross bores; and WHEREAS, by allowing NIPSCO to televise Its pipes, the City can identify pipes in need of repair, which can help the City maintain the integrity of its sewer system and prevent the dangerous infiltration of gas into its system; and WHEREAS, the City believes it is in its best interest to authorize NIPSCO to televise the City's sewer pipes for the reasons stated above. AGREEMENT,• NOW, THEREFORE, for and in consideration of mutual promises and undertakings set forth herein, the City and NIPSCO agree as follows: 1. The Project. The project contemplated by this Agreement ("Project") consists of NIPSCO televising City -owned sewer piping as part of its process of extending gas service to new locations and/or customers. NIPSCO shall execute its responsibilities as to the Project in a good, safe, and workman like manner, and in compliance with all applicable federal, state, and local laws, rules and permit conditions relating to the Project. 2. Access. As of the Effective Date of this Agreement, the City authorizes NIPSCO to access and televise piping that is part of the City's sanitary, storm, or combined sewer system (hereinafter collectively referred to as the "City's Sewer System") to enable NIPSCO to verify the location of City -owned sewer piping and identify any damage from cross boring before and after the extension of gas service. At the beginning of each quarter, NIPSCO shall provide a list of the city blocks corresponding to the location of the sewer system it intends to televise during such quarter. This list shall be provided prior to accessing the City's Sewer System. NIPSCO shall place informational signage by their job site during the process of televising and will notify residents and businesses as needed when conducting the work. NIPSCO shall seek right-of-way ("RIW") closure permits from the City when necessary to televise the Sewer System. Concurrently, at the beginning of each quarter NIPSCO shall provide the City with the video footage of the City's Sewer System completed during the previous quarter and report all damage from cross boring before and after the extension of gas service. NIPSCO shall provide the video footage and report on a quarterly basis throughout the term of this Agreement. 3. Term. The term of this Agreement shall commence on the Effective Date and shall last for a period of ten (10) years from the Effective Date unless terminated earlier in accordance with Section 4. The term of this Agreement may be extended by the mutual written agreement of the Parties. 4. Termination of Agreement. This Agreement shall terminate upon completion of the ten (10) year period described in Section 3 (unless the Parties agree in writing to extend the term of this Agreement) or at the election of the City, for any reason or no reason, upon thirty (30) days' written notice to NIPSCO. If the City elects [o terminate this Agreement, NIPSCO shall promptly cease all televising activities and shall remove any and all equipment used for such purpose from the City's sewer pipes within thirty (30) days after the date of notice. 5. Assignment; Successors. NIPSCO shall not assign or subcontract the whole or any part of this Agreement without the prior written consent of the City, which shall not be unreasonably withheld; provided, however, that NIPSCO may assign this Agreement, without consent, to an affiliate of NIPSCO, or in connection with the sale of NIPSCO's business. NIPSCO shall provide the City with a minimum of 2 sixty (60) days prior written notice of its intent to assign this Agreement to an affiliate or in connection with the sale of NIPSCO's business. 6. Com fiance with Laws. This Agreement shall be construed and interpreted according to the laws of the State of Indiana. NIPSCO agrees to comply with all applicable federal, state and local laws, rules, regulations and ordinances, and all provisions required thereby are hereby incorporated herein by reference. NIPSCO shall comply with federal, state and local law in its hiring and employment practices and policies for any activity covered by this Agreement. 7. E-Cluipment. All equipment used as part of the Project shall be provided by NIPSCO. 8. Procedure if Dama a is Identified. If, during the course of the Project, NIPSCO identifies damage to City -owned sewer piping caused by NIPSCO, NIPSCO shall immediately notify the City and the Parties shall cooperate regarding the repair of such damage. The City shall have the first option to repair any damage caused by NIP.SC❑ to its sewer piping the repairs may be made by City staff or the contractor of the City's choosing. The City shall submit an invoice for the cost of the repairs to NIPSCO. NIPSCO shall remit payment within ten (10) days of receipt of the City's invoice. If NIPSCO believes that any charges incurred by the City in making such repairs are excessive, NIPSC❑ shall provide written notice to the City by the payment due date setting forth the disputed amounts and the basis for such disputed amounts. The Parties shall meet in a timely manner and work in good faith to address any disputes regarding invoicing for repairs. For purposes of clarity, NIPSCO shall not be responsible for the cost of any damage that was not caused by NIPSCO or its predecessors or assigns, whether the repairs are initiated by the City or a third -party. 9. Proiect Prioriiy. In the event of a conflict between the Project and any other projects initiated by the City, the City's project(s) shall have priority and NIPSCO agrees to remove its equipment from City -owned sewer piping, change its schedule for the Project, and/or take such other action as may be requested by the City to enable the City to complete its other projects. 10. Relationship/Independent Contractor. Both Parties, in the performance of this Agreement, shall act in an individual capacity and not as agents, employees, partners, joint venturers or associates of one another. The employee(s) or agent(s) of one Party shall not be deemed or construed to be the employee(s) or agent(s) of the other Party for any purpose whatsoever. Neither Party will assume liability for any injury (including death) to any person(s), or damage to any property, arising out of the acts or omissions of the agents, employees or contractors of the other Party. NIPSCO shall be solely responsible for providing all necessary unemployment and workers' compensation for NIPSCO-s employees- 3 11.Indemnification. NIPSCO shall indemnify, defend, and hold harmless the City and its agents, representatives, and employees from and against any and all claims, losses, and damages for personal injury, property damage, or economic harm asserted by any third -party as a result of N1PSCO's activities under this Agreement related to; (i) televising the City's sanitary, storm, and/or combined sewer piping, including, but not limited to, any sewage backups caused by such activities; (ii) the extension of gas service and any cross boring done in connection therewith; or (iii) any other actions contemplated by this Agreement, including, but not limited to, the completion of repairs to City -owned sewer piping undertaken by NIPSCO or its agents. 12.Insurance. NIPSCO agrees to procure and maintain in force during the term of this Agreement, at its sole cost and expense cost, the following coverages. . a. Workers' Compensation Insurance as required by applicable state statute. b. Commercial General Liability Insurance with minimum combined single limits for bodily injury and property damage of not less than ONE MILLION DOLLARS ($1,000,000.00) and TWO MILLION DOLLARS ($2,000,000.00) aggregate. c. Automobile Liability Insurance with minimum combined single limits for bodily injury and property damage of not less than ONE MILLION DOLLARS ($1,000,000.00) for any one occurrence. d. Professional Liability coverage with minimum limits of ONE MILLION DOLLARS ($1,000,000.00) for each claim and in the general aggregate. NIPSCO agrees to include the City as an additional named insured on the policies and produce to the City evidence of the same, including without limitation Certificates of insurance within thirty (30) days of the execution of this Agreement and annually thereafter throughout the term of this Agreement. To the extent that the City is harmed as a result of NIPSCO's activities under this Agreement, NIPSCO hereby grants the City first priority on any proceeds received from NIPSCO`s insurance. Notwithstanding anything in this Agreement to the contrary, the City does not waive any governmental immunity or liability limitations available to it under Indiana law. 13.Miscellaneous Provisions. a. Time of the Essence. The Parties agree that time is of the essence for this Agreement. b. Non -Disclosure of Information. Information or video footage received by NIPSCO during the performance of the Project shall not be disclosed to any third party except with the written consent of the City. 4 c. Severability. If any provision of this Agreement is determined to be illegal or unenforceable, such provision shall be stricken and the remaining provisions of this Agreement shall remain unaffected as if the illegal or unenforceable provision never existed. d. Force Majeure. Neither Party will hold the other responsible for damages or delay caused by acts of God, acts of war, strikes, or other events beyond the other's control. e. Choice of Law; Jurisdiction. This Agreement shall be governed by the laws of the State of Indiana and venue shall lie in any of the federal or state courts located in St. Joseph County, Indiana. f. Waiver of Rights. Failure or delay by either Party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. g. Headings. Headings in this Agreement are for reference only and shall not be considered binding terms of this Agreement. h. Countersignature and Electronic Signature. This Agreement may be signed in counterparts, each of which will be deemed an original and all of which, taken together, shall constitute one and the same instrument, binding on each signatory thereto. This Agreement may be executed by signatures, electronically or otherwise, which shall be binding upon each signing party to the same extent as an original executed version hereof. i. Notice. Any notice or communication between NIPSCO and the City that may be required, or that may be given, under the terms of this Agreement shall be in writing, and shall be deemed to have been sufficiently given when directly presented or sent prepaid, first-class United States Mail, addressed as follows: CITY: City of South Bend Attn: Wr iN w PW wrPdTY eIREGTnR , puRLlc. WON" 227 W. J10FFISIRSrN DWD SDuTA !POND,, IN 46601 NIPSCO ASMI.SY SMITH cOM )L1,A14CE AaMINISTRATM j N►Psco 1501 MALE AVS FORT W AY Nf5 0 04 46102. (Signatures appear on the following page) 5 IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date. DATE: CITY OF SOUTH BEND, INDIANA BOARD OF PUBLIC WORKS Elizabeth A. Maradik, President Joseph R. Molnar, Vice President Pia 0 '0-,� Gary A. Gilot, Member Jordan V. Gathers, Member pzy 4 7: , Murray L. Miller, Member ATTEST: Theresa M. Heffner, Clerk Date: February 14, 2023 C6 DATE: NORTHERN INDIANA PUBLIC SERVICE COMPANY �'� f By:�.( Printed: o r Title: e k1A -',vn-S. i BOARD OF PUBLIC WORKS AGENDA ITEM REVIEW REQUEST FORM Date 01 /30/2023 Name Jitin Kam Department: PW BPW Date 02/14/2023 Phone Extension 5835 Review and Approval Required Prior to Submittal to Board Diversity Compliance ❑ Officer Name and Inclusion Officer BPW Attorney X Attorney Name Michael Schmidt Dept. Attorney ❑ Attorney Name Purchasing ❑ Check the Appropriate Item Type -- Re aired far All Submissions ❑ Professional Services Agreement ® Contract ❑ Proposal ❑ Open Market Contract ❑ Amendment/Addendum ❑ Special Purchase, QPA ❑ Bid Opening ❑ Bid Award ❑ Req. to Advertise ❑ Title Sheei ❑ Quote Opening ❑ Quote Award ❑ Reject Bids/Quotes ❑ Proposal Opening ❑ C/O & PCA No. ❑ PCA ❑ Chg. Order, No. ❑ Traffic Control ❑ Resolution ❑ Other: Ease./Encroach Required Information Company or Vendor Name New Vendor MBE/WBE Contractor Project Name Project Number Funding Source Account No. Amount Terms of Contract NIPSCO ❑ Yes ❑ If Yes, Approved by Purchasing X No ❑ MBE Completed E-Verify Form Attached ❑❑ No ❑ WBE NIPSCO/South Bend Cross Bore Safety Initiative Agreement Purpose/Description The project involves NIPSCO televisingthe he City sewer to verify and identi any damage from cross boring ryas lines. Any damages to sewer piping identified by NIPSCO will be repaired at their expense. For Change Orders Only Amount of ❑ Increase $ ❑ Decrease ($ ) Previous Amount Increase % Current Percent of Change: Decrease New Amount $ Increase Total Percent of Change: Decrease Time Extension Amount: New Completion Date: