16-012.00 AT & T Corp: Reimbursement Agreement (6-Lott.
REIMBURSEMENT AGREEMENT
This AGREEMENT made this 6411 day ofd ,2016,by and
between AT&T Corp.,on behalf of itself and its affiliate companies,which has a place
of business at 3450 Riverwood Parkway, SE,Atlanta, GA 30339("AT&T")and the City
of Spokane Valley,having a mailing address of 11707 E. Sprague Ave., Suite 106,
Spokane Valley, WA 99206 (the"CITY").
WITNESSETH:
WHEREAS,AT&T is a Grantee of a ten(10)foot wide utility easement from the
Washington State Parks and Recreation Commission,dated July 31, 1989 and recorded in
Vol. 1052,Page 1265 of the Official Records of Spokane County, State of Washington,
to construct,operate, maintain and replace a fiber optic cable system, including conduits,
along the State's Centennial Trail,in Spokane County, WA(the"Easement"); and
WHEREAS,the Easement and the AT&T buried conduits and cable that have
been placed within the Easement will be adversely impacted by the CITY's proposed
retaining wall improvements on the Easement; and
WHEREAS,the CITY will reimburse AT&T for AT&T's cost of protecting and
relocating the AT&T's conduits and cable,a section of the AT&T Billings,MT to
Spokane, WA Fiber Optic Cable System,between AT&T station numbers 1309+33 and
1309+93 (the"Cable");
NOW THEREFORE,the parties agree as follows:
1. AT&T will provide engineering,plant protection, labor,materials,and
supervision necessary to protect and relocate existing Cable,as deemed necessary in
AT&T's sole judgment(the"Work"). The Work is more particularly described in
attached Exhibit A. The starting date will be set by the parties so that the Work can be
completed as expeditiously as practicable.
2. The CITY shall pay AT&T the actual cost of the Work,which is estimated to be
Seven Thousand,Six Hundred and Nine Dollars($7,609.00)as shown in the attached
Exhibit B,the cost estimate summary.Upon completion of the Work,AT&T will send an
invoice to CITY for the actual cost of the Work and the CITY agrees to pay AT&T
within thirty(30)days from the invoice date.
3. CITY agrees to exercise all due caution while working near the Cable,in order to
prevent damage to the Cable. CITY agrees:
(a) to notify AT&T by telephone at 1-800 252-1133 at least forty-eight(48)
hours prior to performing any construction,demolition or repairs at the Cable location;
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(b) to perform construction,demolition,repair,modifications,additions and
any other activities in compliance with all applicable Iaws and regulations and in a
manner that does not interfere with the operations of AT&T; and
(c) not to work at the Cable location without AT&T's prior authorization and
AT&T's On-Site Work Force personnel being present during the work.
4. To the extent it's allowed under Washington State Law,the CITY(the
"Indemnifying Party")shall indemnify,defend and hold harmless AT&T(the
"Indemnified Party")from and against any and all claims,demands,actions, losses,
damages,assessments,charges,judgments, liabilities,costs and expenses(including
reasonable attorneys' fees and disbursements)that may from time to time be asserted by
third parties against the Indemnified Party because of any personal injury, including
death,to any person or loss of,physical damage to or loss of use of real or tangible
personal property,to the extent caused by the negligence or misconduct of the
Indemnifying Party,its agents,employees or contractors. For purposes of
indemnifications set forth in this Agreement, "Indemnified Party"means AT&T,its
affiliates, subsidiaries,parent,successors and assigns and its and their employees,
directors,officers, agents,contractors and subcontractors. The Indemnified Party:
4.1 shall notify the Indemnifying Party in writing promptly upon learning of
any claim or suit for which indemnification may be sought,provided that failure to do so
shall have no effect except to the extent the Indemnifying Party is prejudiced thereby;
4.2 shall have the right to participate in such defense or settlement with its
own counsel and at its own expense, but the Indemnifying Party shall have control of this
defense or settlement; and
4.3 shall reasonably cooperate with the defense.
5. AT&T MAKES NO WARRANTIES,EXPRESS OR IMPLIED,INCLUDING
ANY IMPLIED WARRANITES AS TO MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
6. NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE
CONTRARY,EXCEPT AS PROVIDED IN SECTION 4, IN NO EVENT SHALL
EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL,
INCIDENTIAL,INDIRECT,PUNITIVE,RELIANCE OR CONSEQUENTIAL
DAMAGES, WHETHER FORESEEABLE OR NOT,INCLUDING,BUT NOT
LIMITED TO, LOSS OF PROFITS OR REVENUE, COST OF CAPITAL, COST OF
REPLACEMENT SERVICES,OR CLAIMS OF CUSTOMERS OR OF OTHER
THIRD PARTIES, OCCASIONED BY ANY CAUSE WHATSOEVER, INCLUDING,
WITHOUT LIMITATION,BREACH OF CONTRACT,BREACH OF WARRANTY,
NEGLIGENCE OR STRICT LIABILITY.
7. CITY shall keep the Cable and other property of AT&T free from all mechanic's,
artisan's, materialman's,architect's,or similar services' liens which arise in any way
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from or as a result of its activities and cause any such liens which may arise to be
discharged or released.
8. Except for payment of the cost of the Work,neither party shall have any liability
for its delays or its failure in performance due to: fire,explosion,pest damage,power
failures,strikes or labor disputes,acts of God,the Elements,war,civil disturbances,acts
of civil or military authorities or the public enemy, inability to secure raw materials,
transportation facilities,fuel or energy shortages,or other causes beyond its control,
whether or not similar to the foregoing.
9. A party shall be in default if it fails to perform or observe any material term or
condition of this Agreement and the failure continues un-remedied for thirty(30)days
after receipt of written notice(fourteen(14)days in the case of CITY's failure to pay
AT&T the estimated and/or actual cost of the Work);provided, however,that when such
default(excluding CITY's non-payment)cannot reasonably be cured within such thirty
(30)day period,this period will be extended if that party promptly commences to cure
the same and prosecutes such curing with due diligence. Upon the default by a party,the
other party may terminate this Agreement and pursue any legal remedies it may have
under applicable law or principles of equity.
10. This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors or assigns. CITY shall not assign,transfer,or
dispose of this Agreement or any of its rights or obligations hereunder without prior
written consent of AT&T;provided,however,that CITY may assign or transfer this
Agreement to a controlling or controlled affiliate or to a successor in the event of
reorganization,including a merger or sale of substantially all of its assets,without the
consent of AT&T. An assignment,transfer or disposition of this Agreement by CITY
shall not relieve CITY of any of its obligations under this Agreement. AT&T shall have
the right to assign this Agreement and to assign its rights and delegate its obligations and
liabilities under this Agreement,either in whole or in party,to any party. An assignment,
transfer or disposition of this Agreement by AT&T shall not relieve AT&T of any of its
obligations under this Agreement. Neither this Agreement,nor any term or provision
hereof,nor any inclusion by reference shall be construed as being for the benefit of any
person or entity not a signatory hereto.
11. Any demand,notice or other communication to be given to a party in connection
with this Agreement shall be given in writing and shall be given by personal delivery,by
registered or certified mail,return receipt requested,or by commercial overnight delivery
service addressed to the recipient as set forth below or to such other address or individual,
as may be designated by notice given by the party to the other:
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AT&T:
AT&T CORP.
3450 Riverwood Parkway SE
Atlanta, GA 30339
Room 162
Attention: Right of Way Dept.
With a copy to:
AT&T Corp.
One AT&T Way
Room 3A118A
Bedminster,NJ 07921
Attention: Legal Department—Network Services
CITY:
City of Spokane Valley
11707 E. Sprague Ave., Suite 106
Spokane Valley, WA 99206
Attn: City Clerk
Ph: (509)720-5102
Any demand,notice or other communication given by personal delivery shall be
conclusively deemed to have been given on the day of actual delivery thereof and if given
by registered or certified mail,return receipt requested or by commercial overnight
delivery service on the date of receipt thereof.
12. The failure of either party hereto to enforce any of the provisions of this
Agreement,or the waiver thereof in any instance, shall not be construed as a general
waiver or relinquishment on its part of any such provision,and said provision shall
nevertheless be and remain in full force and effect.
13. This Agreement shall be governed by and construed in accordance with the
domestic laws of the State of Washington without reference to its choice of law
principles.
14. Each party represents and warrants that:
(a) It has full right and CITY to enter into,execute,deliver and perform its
obligations under this Agreement;
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(b) It has taken all requisite corporate action to approve the execution,
delivery and performance of this Agreement;
(c) This Agreement constitutes a legal,valid and binding obligation
enforceable against such party in accordance with its terms, subject to
bankruptcy, insolvency, creditors' rights and general equitable principles;
and
(d) Its execution of and performance under this Agreement shall not violate
any existing regulations,rules,statutes, or court orders of any local,state
or federal government agency,court or body.
15. This Agreement constitutes the entire and final agreement and understanding
between the parties with respect to the subject matter hereof and supersedes all prior oral
and written communications,understandings and agreements relating to the subject
matter hereof,which are of no further force or effect. This Agreement may only be
modified or supplemented by an instrument in writing executed by a duly authorized
representative of each party.
16. Each action or claim against any party arising under or relating to this Agreement
shall be made only against such party as a corporate,and any liability relating thereto
shall be enforceable only against the corporate assets of such party. No party shall seek
to pierce the corporate veil or otherwise seek to impose any liability relating to,or arising
from,this Agreement against any shareholder,employee, officer or director of the other
party. Each of such persons is an intended beneficiary of the mutual promises set forth in
this Section 16 and shall be entitled to enforce the obligations of this Section 16.
17. The relationship between the parties shall not be that of partners,agents or joint
ventures for one another,and nothing contained in this Agreement shall be deemed to
constitute a partnership or agency agreement between them for any purposes,including,
but not limited to federal income tax purposes. The parties,in performing any of their
obligations hereunder,shall be independent contractors or independent parties and shall
discharge their contractual obligations at their own risk.
18. This Agreement and each of the parties' respective rights and obligations under
this Agreement shall be binding upon and shall inure to benefit of the parties and each of
their respective permitted successors and assigns.
19. No provision of this Agreement shall be interpreted to require any unlawful action
by either party. If any section or clause of this Agreement is held to be invalid or
unenforceable,then the meaning of that section or clause shall be construed so as to
render it enforceable to the extent feasible. If no feasible interpretation would save the
section or clause, it shall be severed from this Agreement with respect to the matter in
question,and the remainder of the Agreement shall remain in full force and effect.
However, in the event such a section or clause is an essential element of the Agreement,
the parties shall promptly negotiate a replacement that will achieve the intent of such
unenforceable section or clause to the extent permitted by law.
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20. This Agreement may be executed in one or more counterparts,all of which taken
together shall constitute one and the same instrument.
IN WITNESS WHEREOF,the parties have caused this Agreement to be executed by
their authorized representatives as of the date first above set forth.
CITY OF SPOKANE VALLEY AT&T CORP.
bAk_ a
Signature Signature
Mark Calhoun Vicki D. Hood
Printed Name Printed Name
Acting City Manager Sr.Technical Project Manager
Title Title
Ck/i3/11P q/f/i2.0 (./2
Date Date
TAX ID: 71-0914170
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EXHIBIT A
THE WORK
BILLINGS TO SPOKANE LEGACY CABLE ROUTE
Due to a retaining wall scheduled to be built by the City of Spokane Valley,
that will encroach onto the AT&T easement on Washington State Parks and
Recreation's Centennial Trail property(Parcel #451149032) in Spokane
County, AT&T is forced to relocate and protect the two (2) 1.5 inch conduits
and fiber optic cable between AT&T stations 1309+33 and 1309+93.
AT&T's Contractor will expose and shift the conduits and cable a minimum
of twelve (12) inches to the south, place thirty(30) feet of Schedule 40
(made in the USA) split steel (provided by AT&T), migrate cable from the
nearby handhole at station 1306+05 (if necessary), backfill, and compact and
restore the area disturbed to pre-construction condition.
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EXHIBIT B
COST SUMMARY
Expose two (2) 1.5 inch conduits and one (1) fiber optic cable, shift
all a minimum of 12 inches south (away from center of trail), place 8
inch schedule 40 split steel for a distance of 30 feet, backfill, compact
trench and restore to pre-construction condition. AT&T's Contractor
to provide shoring and traffic control if needed. Siena Engineering to
provide inspector and as-builts of final location.
Estimated construction cost $3,000.00
Estimated WA Sales Tax 261.00
Estimated engineering/inspection cost $4,000.00
Estimated WA Sales Tax 348.00
ESTIMATED TOTAL COST $7,609.00
Reimbursement Agreement