HomeMy WebLinkAboutContract 34824�iTY ��C������
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REIMBURSEMENT AGREEMENT
his REIMBURSEMENT AGREEMENT ("Agreement"), dated this �I day of
f^; , 200�"Effective Date"), is entered into by and between the City of Fort Worth, a
home rule unicipal corporation of the State of Texas located within Tarrant, Denton, Parker, and Wise
Counties, Texas, with an office at 1000 Throckmorton Street, Fort Worth, Texas ("Reimbursing Party"),
by Marc A. Ott, its duly authorized Assistant City Manager, and AboveNet Communications, Inc., a
Delaware corporation, with an office at 360 Hamilton Avenue, White Plains, New Yarlc 10601
("AboveNet").
WITNESSETH:
WHEREAS, the Reimbursing Party has a construction project underway in or around FM 156
(hereinafter referred to as "FM 156 Project").
WHEREAS, the FM 156 Project may adversely affect certain communications facilities,
including AboveNet's existing telecommunications facilities that include, among other things, ducts,
innerducts, handholes, manholes, and fiber optic cable(s) (hereinafter collectively referred to as
"AboveNet's Impacted Telecommunications Facilities"); and
WHEREAS, Reimbursing Party has requested that AboveNet secure and protect, and/or
construct new, and/or relocate AboveNet's Impacted Telecommunications Facilities and certain other
communications facilities in order to avoid their conflicting with the FM 156 Project; and,
WHEREAS, AboveNet is willing to engage a contractor, pursuant to AboveNet's normal
bidding process, to secure and protect, and where necessary to construct new, and/or relocate,
AboveNet's Impacted Telecommunications Facilities and certain other communications facilities in order
to accommodate the FM 156 Project ("Project") provided Reimbursing Party agrees to be responsible for
the engineering, permitting, construction labar, construction materials, consh-uction management,
inspection, and splicing costs associated with the Project (the "Project Costs"); and
WAEREAS, Reimbursing Party agrees to be responsible for the Project Costs as provided
herein; and
WHEREAS, AboveNet will only proceed with the Project upon receipt of Reimbursing Party's
agreement to be responsible to AboveNet for the Project Costs as provided herein; and
WHEREAS, that the Reimbursing Party agrees to make payment of the Project Costs pursuant
to the terms and conditions contained in this Agreement.
NOW, THEREFORE, in consideration of the promises and mutual covenants contained in this
Agreement, AboveNet and Reimbursing Party hereby agree that AboveNet will undertake the Project in
accordance with and subject to the following terms and provisions:
AGREEMENT
Exhibit "A", which is attached hereto and incorporated herein by reference, represents the Scope
of Work required to perform the Project, together with AboveNet's good faith estimate of the
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costs and expenses associated with the Scope of Work. Reimbursing Party acknowledges that
the foregoing estimate is subject to change due to any number of factors including, but not
limited to, changing conditions in the feld, weather delays, and/or changes in the scope of worlc.
2. Reimbursing Party, its agent, or employees may, at its own expense, at reasonable times inspect
consh-uction performed by AboveNet or its contractors in connection with the Project. The
inspection shall not operate as a waiver of AboveNet's rights under this Agreement.
3. Reimbursing Party agrees to pay AboveNet the Project Costs estimated to total Three Hundred
Nineteen Thousand Sixty-Four pollars and Forty Cents ($319,064.40), as estimated in Exhibit
"A" (the `Bstimated Costs"), and which amount is subject to change due to any number of
factors including, but not limited to, changing conditions in the field, weather delays, and/or
changes in the scope of work. Reimbursing Party shall not be obligated to pay AboveNet more
than the Estimated Costs unless the actual Project Costs exceed the Estimated Costs and prior to
incurring costs in excess of the Estimated Costs, AboveNet has received appropriate
authorization from the Fort Worth City Council and sufiicient funds have been appropriated by
the Fort Worth City Council. In the event AboveNet anticipates the Project Costs exceeding the
Estimated Costs, AboveNet shall provide to Reimbursing Party notice thereof, together with an
explanation and estimate for the additional costs. Reimbursing Party agrees that AboveNet may
cease all work until such time as AboveNet receives appropriate authorization from the Fort
Worth City Council, and sufficient funds have been appropriated by the Fort Worth City Council,
such that AboveNet will be reimbursed for the total actual Project Costs.
4. Reimbursing Party agrees to make advance payment of the Estimated Costs ("Payment") to
AboveNet prior to commencement of the worlc by AboveNet
5. Except for the aforementioned Payment, AboveNet shall invoice Reimbursing Party for the
Project Costs on no more than a monthly basis, and Reimbursing Party will make payment for
any undisputed amount so invoiced no later than 30 days following receipt of each such invoice.
All payments made by Reimbursing Party to AboveNet pursuant to this Agreement shall be made
payable to AboveNet Communications, Inc., reference the "FM 156 Relocation", and be sent to:
AboveNet Communications, Inc., Accounts Receivable, 360 Hamilton Avenue, White Plains,
New York 10601.
6. The parties agree that no work shall be performed by or on behalf of Reimbursing Party in the
area of the Project that will adversely impact the schedule of the Project or endanger the facilities
being relocated by or on behalf of AboveNet. Notwithstanding the foregoing, the parties agree to
reasonably coordinate their construction activities, provided that, in the event of a conflict,
AboveNet's activities shall take priority.
7. AboveNet agrees to commence worlc on the Project promptly following receipt of the Payment
and all permits required in connection with the Project. AboveNet's estimated completion dates
for the Project will be subject to change based on, among other things, conditions in the field,
changes in the scope of work, relocation of existing utilities not in AboveNet's control, Acts of
God, weather delays, and other conditions or circumstances reasonably beyond the control of
AboveNet. Upon completion of the Project, any of AboveNet's Impacted Telecommunications
Facilities that remain in place will be deemed abandoned by AboveNet.
8. Any modiiication to this Agreement must be made in writing and signed by both parties.
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This Agreement supersedes every antecedent or concurrent aral or written declaration or
understanding by and between Reimbursing Party and AboveNet pertaining to the Project.
This Agreement may be executed by the parties in separate counterparts, each of which shall be
deemed to be an original copy, but all of which, together, shall constitute only one agreement.
THE RIGHTS AND OBLIGATIONS OF THE PARTIES iJNDER THIS AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS
WITHOUT GIVING EFFECT TO ITS CONFLICT-OF-LAWS PRINCIl'LES.
12. If any action, whether real or asserted, at law or in equity, arises on the basis of any provision of
this Agreement, venue far such action shall lie in state courts located in Tarrant County, Texas or
the United States District Court for the Northern District of Texas — Fort Worth Division.
13. The provisions of this Agreement are severable, and if any word, phrase, clause, sentence,
paragraph, section or other part of this Agreement, or the application thereof to any person or
circumstance, shall ever be held by any court of competent jurisdiction to be invalid or
unconstitutional far any reason, the remainder of this Agreement, and the application of such
word, phrase, clause, sentence, paragraph, section, or other part of this Agreement to other
persons or circumstances, shall not be affected thereby and this Agreement shall be construed as
if such invalid or unconstitutional portion had never been contained therein.
Agreeing to be bound by its terms, Reimbursing Party and AboveNet have caused this
Agreement to be executed by their respective duly authorized representatives on the dates written below
their names.
CI OF FORT WO H
;
Marc A. O � �_
Assistant City Manager
Date: ������ �
RECOMMENDED BY:
By• ' �
Ro ert Goode, Director
Transportation and Public Works
APPROVF,�'3 AcS TO
Assistant City Attorney
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ABOVENET COMMiJNICATIONS, INC.
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Name: glas M.1end
Title: Seaior Yice President
Date
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City of Fort Worth, Texas
Mayor and Council Communication
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COUNCIL ACTION: Approved on 1/9/2007
- � � �- - - -- _ - - :_�_�.�-���,�
DATE: Tuesday, January 09, 2007
LOG NAME: 30ALLIANCE RELO REFERENCE NO.: **C-21922
SUBJECT:
Authorize the Execution of Utility Relocation Reimbursement Agreements with AboveNet
Communications, Inc., TCG Dallas, Southwestern Gas Pipeline, Inc., McLeodUSA
Telecommunications Services, Inc., Qwest Communications Corporation, Southwestern Bell
Telephone, L.P., Sunoco Pipeline, L.P. and TXU Electric Delivery Company as Required for the
Relocation of FM 156 as Part of the Runway Extension Project at Fort Worth Alliance Airport (DOE
4867)
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RECOMMENDATION:
It is recommended that the City Council authorize the execution of utility relocation reimbursement
agreements with AboveNet Communications, Inc., TCG Dallas, Southwestern Gas Pipeline, Inc.,
McLeodUSA Telecommunications Services, Inc., Qwest Communications Corporation, Southwestern Bell
Telephone, L.P., Sunoco Pipeline L.P., and TXU Electric Delivery Company totaling $1,172,312.04 as
required for the relocation of FM 156 as part of the runway extension project at Fort Worth Alliance Airport..
DISCUSSION:
These utility relocation reimbursement agreements are required in connection with the realignment of
approximately 4.53 miles of FM 156 from downtown Haslet north to the existing FM 156 south of the SH
114 Interchange made necessary by the runway extension at Fort Worth Alliance Airport. In order to
construct the new location of FM 156, it is necessary to relocate all private utility service conflicts located
on the proposed FM156 and the existing FM 156. In order to eliminate these conflicts, the utility facilities
must be relocated and the owners of the facilities reimbursed as follows:
Abovenet Communications, Inc.
TCG Dallas
Southwestern Gas Pipeline, Inc.
McLeodUSA Telecommunications Services
Qwest Communications Corporation
Southwestern Bell Telephone, L.P.
Sunoco Pipeline, L.P.
TXU Electric Delivery Company
Total
The project is located in COUNCIL DISTRICT 2.
$319, 064.40
$43,695.00
$98,881.00
$151,378.00
$33,106.00
$43,975.66
$138,902.00
$343,309.98
$1,172,312.04
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