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Special Construction Contract for Relocation of Underground Facilities for Infrastructure Upgrade on Sunset Islands 3 and 4 Exhibit C 2n 1 S --Z9229 SPECIAL CONSTRUCTION CONTRACT For the Relocation of Underground Facilities for Infrastructure Upgrade on Sunset Islands 3 and 4 This Agreement ("Agreement") is entered into by and between the CITY OF MIAMI BEACH (hereinafter the "CITY") and ATLANTIC BROADBAND (MIAMI) LLC a Delaware limited liability company with a place of business at 1681 Kennedy Causeway, North Bay Village, FL 33141 ("ABB"). ABB and CITY are collectively referred to as the "Parties" or individually as a "Party." 1. Scope and Payment. This Agreement is for the Special Construction Work described in Exhibit A, attached hereto and incorporated herein by reference ("Special Construction Work"). Exhibit A includes conditions precedent to ABB commencing the Special Construction Work. As a condition for the Special Construction Work, CITY agrees to pay ABB its actual costs for the work, as estimated and set forth in Exhibit A-2. CITY shall pay to ABB the estimated cost of$$82,626.00 as set forth in Exhibit A-2, which ABB actual costs may be higher or lower ("Estimated Special Construction Work Charges"). Such Estimated Special Construction Work Charges shall be payable by the CITY to ABB immediately upon full execution of this Agreement but in no event later than the commencement of work by ABB under this Agreement. Payment in .full of the amount above is required before the Special Construction Work will begin. The Estimated Special Construction Work Charges are subject to adjustment, up or down, to reflect the difference between the Estimated Special Construction Work Charges and actual costs, which ABB shall specify in its final invoice to CITY. All payments under this Section 1 may be made in person or by mail to Atlantic Broadband (Miami) LLC, 1681 Kennedy Causeway, North Bay • Village, FL 33141, Attention: Special Construction Accounts Payable. 2. Cost Estimate. The Estimated Special Construction Work Charges amount is valid until February 28, 2016. If.this Agreement is not fully executed within that time, then ABB may require the CITY to request a new cost estimate, and the Estimated Special Construction Work Charge may change. 3. Changes in Scope of Work or Field Conditions. If the CITY initiates changes in the scope of work after the date of the Agreement or there exists a condition in the field or other relevant circumstances discovered after the date of this Agreement that is materially different from the conditions or circumstances that were assumed in preparing the Estimated Special Construction Work Charges, ABB may require the CITY to_request a new cost:estimate, the Estimated Special Construction Work Charges amount may change and the Parties will cooperate to sign an amendment to this Agreement incorporating any relevant changes to the Estimated Special Construction Work Charges or scope of Work. 4. Breach; Termination. If either Party breaches any material provision in this 1 Agreement, then the other Party may terminate this Agreement by written notice to the breaching Party; provided that, prior to any such notice of termination, the other Party provides•written notice of the breach to the breaching Party, and the breaching Party fails to cure the breach within thirty (30) calendar days from receipt if the notice of the breach. The time to cure shall be extended for a reasonable time to allow for cure if the breach cannot be cured within thirty (30) calendar days and if the breaching Party continues expeditiously to cure. 5. Early Termination. In the event of termination of this Agreement for any reason in advance of completion of the Special Construction Work, in addition to any other remedies that may be available to ABB, ABB shall have the right to retain any Estimated Special Construction Work Charges previously paid by CITY that compensate ABB for Special Construction Work performed, and ABB may complete any segment of the Special Construction Work then in progress. Following such termination, ABB shall return to the CITY any such portion of such prior payment that is in excess of the amounts that compensate ABB for Special Construction Work performed. If actual costs incurred by ABB for Special Construction Work exceed the prior payments, the CITY shall be responsible to pay any such excess amount within thirty(30) days following receipt of an invoice from ABB. 6. Force Majeure; Time to Complete. Any information provided by ABB, its agents or employees that the project will be complete by a certain date or within a certain time period is an estimate and not binding on ABB, its agents and employees. Estimated completion dates, Special Construction Work, and all other obligations of ABB under this Agreement are subject to circumstances outside the reasonable control of ABB, including, but not limited to: acts of God, flood, extreme weather, fire, explosion, natural calamity, terrorism, any moratorium, law, order, regulation, action or inaction of any governmental entity or civil or military authority, power or utility failures, fiber or cable cuts caused by third parties, unavailability of rights-of-way, national emergencies, insurrection, riots, wars, strikes, lock-outs, work stoppages or other labor difficulties, pole hits,'or material shortages. 7. Damages; No Damages for Delay. In the event of termination of this Agreement for any reason in advance of completion of the Special Construction Work, the CITY shall have no claim or remedy against ABB, except a claim to collect any excess payment amount as set forth in Section 5 or, as applicable, Section 1. Under no circumstances shall ABB be held liable to CITY for any alleged delay in the Special Construction Work. 8. Limitation of Liability.-Notwithstanding any provision of this Agreement to the contrary, in no event shall either Party be liable to the other Party for any special, incidental, indirect, punitive, reliance or consequential damages, whether foreseeable or not, arising out of or in connection with this Agreement, including, but not limited to, damage or loss of property or equipment, loss of profits or revenue, cost of capital, cost of replacement services, or claims of customers or any other cause whatsoever, including, without limitation, breach of contract, breach of warranty, negligence or strict liability. Either party's total liability to the other in connection with this Agreement for any and all causes of action and claims, including without limitation, breach of contract, breach of warranty, negligence, strict liability, misrepresentation and other torts, shall be limited to the lesser of: (a) proven direct damages or (b) the Estimated Special Construction Work Charges. In no event shall ABB be liable for any damages arising out of the acts or omissions of third parties or any third-party equipment or services not provided by ABB. 9. Insurance. ABB shall secure and maintain throughout the duration of this Agreement, insurance of such type and in such amounts necessary to protect its interest and the interest of the CITY against hazards or risks of loss as is standard in the industry. ABB shall require its subcontractors to maintain any and all insurance required by law. Except to the extent required by law, or as otherwise specifically provided by this Agreement, this Agreement does not establish minimum insurance requirements for subcontractors. 10.Severability. Any provision of this Agreement held by a court of competent jurisdiction to be invalid or unenforceable shall not impair or invalidate the remainder of this Agreement and the effect thereof shall be confined to the provision so held to be invalid or unenforceable. 11.Successors and Assigns. This Agreement is binding upon and shall inure to the benefit of the parties and their respective successors and assigns. 12.Counterparts. This Agreement may be executed in one or more counterparts, each of which when so executed shall be deemed to be an original, but all of which taken together shall constitute one and the same instrument. 13.Effect of Waiver. No consent or waiver, express or implied shall be deemed a consent to or waiver of any other breach of the same or any other covenant, condition or duty. • 14.Nondiscrimination. During the term of this Agreement, ABB shall not discriminate against any of its employees or applicants for employment because of their race, color, religion, sex, or national origin, and to abide by all Federal and Florida State laws regarding nondiscrimination. 15.Attorney's Fees and Waiver of Jury Trial. In the event of any litigation arising out of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys' fees and costs. In the event of any litigation arising out of this Agreement, each party hereby knowingly, irrevocably, voluntarily and intentionally waives its right to trial by jury. 3 f • 16.Intentionally Omitted. 17.Notices/Authorized Representatives. Any notices required by this Agreement shall be in writing and shall be deemed to have been properly given if transmitted by hand- delivery, by registered or certified mail with postage prepaid return receipt requested, or by a private postal service, addressed to the parties (or their successors) at the following addresses: If to CITY: If to ABB: Atlantic Broadband 1681 Kennedy Causeway North Bay Village, FL 33141 Attn: SVP and General Manager With a Copy to: Atlantic Broadband 2 Batterymarch Park, Suite 205 Quincy, MA 02169 Attn: General Counsel 18.Governing Law. This Agreement shall be construed in accordance with and governed by the laws of the State of Florida. Venue for any litigation arising out of this agreement shall be proper exclusively in Miami-Dade County, Florida. 19.Entire Agreement/Modification/Amendment. This writing contains the entire agreement of the Parties and supersedes any prior oral or written representations. No representations were made or relied upon by either party, other than those that are expressly set forth herein. No agent, employee, or other representative of either Party is empowered to modify or amend the terms of this Agreement, unless executed with the same formality as this document. ABB represents that is an entity validly existing and in good standing under the laws of Florida. The execution, delivery and performance of this Agreement by each Party has been duly authorized, and this Agreement is binding on the Parties and enforceable against each Party in accordance with its terms. No consent of any other person or entity to such execution, delivery and performance is required. THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK. 4 IN WITNESS WHEREOF,the Parties hereto have executed this Agreement on the day of the last signature below. CITY: ABB: CITY OF MIA' B ATLANTIC BROAD Ai DA' IAMI),LLC By By Pri •"'•: / Print Name: David Keefe ,�/ a of Title: SVP and eneral Manager b..=: Date: r//6 PL Notary Public State of Florida • ' f; Dawn M Mitchell r�w� rte. APPROVED AS TO a My Commission FF 015064 ATTEST: o Expires 07/05/2017 FORM & LANGUAGE• L �Z &FOR EXECUTION (10 . 1 lr Rafael E.Graaado,C 111 1 B ^ 1,,f City Attorney Dote ��'•• '�-.. 14, .INCORPORATED: CH 26 1 EXHIBIT A: SCOPE OF SPECIAL CONSTRUCTION WORK The Special Construction Work that is the subject of the Agreement to which this Exhibit A is attached is as follows: The work area is the area within Sunset Islands 3 & 4 of the City of Miami Beach as shown on prints provided to city ("Work Area"). The Special Construction Work is the work within the Work Area as described in Exhibit A-1 relating to the installation by ABB of underground cable and related above ground equipment (collectively the converted system) to replace ABB aerial facilities, including cables, amplifiers, batteries, terminals, and service drops in the Work Area; cutover of existing communications and broadband services on such aerial facilities to the converted system; and removal of the aerial facilities following cutover, resulting in conversion of the aerial facilities to underground. The work does not include conversion to underground or removal of any facilities, such as poles, anchors and guys or aerial communications facilities owned by third parties. City shall perfoini any required trenching, provided that all trenching will be 24" deep in the roadway with 36" by 2" deep asphalt restoration per Standard 821.1. Exact location of trench will be determined by existing utilities and others chosen underground route. Boring will vary in method and depth depending on existing utilities. Boring starting and ending locations will be restored in same manner as trenching. Ingress and egress from trench line will be determined by existing power service and electrical code. Above ground apertures varying in size will be employed to house ABB's facilities. All green restoration will be in kind. In addition to the conditions precedent to ABB commencing the Special Construction Work identified in the Agreement to which this Exhibit A is attached, the following shall be conditions precedent to ABB commencing the work and shall be obligations of the City where specified: A. Conduit. At no cost to ABB, the City shall: (1) install the conduit and related support structures designated as "ABB" (collectively the "ABB Conduit System"). Upon completion of the construction of the ABB Conduit System, the City shall notify ABB. ABB shall promptly thereafter be afforded the opportunity to inspect the ABB Conduit System and shall notify the City in writing of approval or of any observed deficiencies (in which case the above process shall again apply). Upon correction by the City or its contractors of all noticed deficiencies, the City shall notify ABB and ABB shall be afforded the opportunity to re-inspect and notify the City of approval or any further observed deficiencies (in which case the above process shall again apply). After approval, the -City shall:aransfer .ownership of the -ABB --Conduit System free of any liens or encumbrances, and ABB shall thereafter own and have sole use of the ABB Conduit System. In the event that any deficiencies are later discovered, in the ABB Conduit System (namely, deficiencies that occurred in connection with the construction and installation), the City shall be the responsible party to correct or arrange for correction by appropriate contractor(s) of the deficiencies during the warranty period promptly following notice from ABB. Such warranty period shall extend for 1 year from the date of transfer of ownership of the ABB Conduit System to ABB. Transfer of ownership to ABB shall be memorialized by the City's delivery to ABB of a Bill of Sale in the form attached ad Exhibit A-2. B. Aboveground Terminals and Cabinets; Permits. At no cost to ABB, the City shall grant to ABB any necessary permits for the installation by ABB in City right-of-way, of its aboveground equipment in the locations shown of the Conduit Plans (or such alternate locations as may be necessary in the event of later changes to installation locations due to field conditions or other circumstances). If the City does not grant separate permits, this Agreement shall constitute City authorization for such installation. The City also agrees to the future installation of necessary ABB above-ground equipment required to serve customers from the ABB facilities located in the ABB Conduit System, in the event ABB applies for a right of way permit in the future. Receipt of any necessary permits form the City or other permitting agencies is a condition precedent to the Special Construction Work. C. Service Drops. At no cost to ABB or the City, the property owners of each and all properties within the Work Area (each a "Residence") shall do the following: install one 1" PVC Schedule 40 conduit from each ABB network interface device on each Residence to the right-of-way (as shown on the Conduit Plans) for the relevant Residence. ABB will make the connection from its device in the right-of-way to said conduit stubbed up at Residence side of right-of-way. Each property owner of a Residence shall grant to ABB the exclusive right to use the above conduit on the Residence property for installation of the ABB service drop. D. Further Conduit Specifications. In instances where a joint trench shall be dug for the installation if ABB' s facilities and the power company's facilities, the power company's facilities shall be placed at the bottom of the joint trench. Any conduit referenced in A. above placed for ABB's use (whether in a single or a joint trench) shall be at a minimum of 12" depth below final grade, and any conduit referenced in B. above placed for ABB's use (whether in a single or joint trench) shall be at a minimum of 6" below final grade. For all Conduit referenced in this Exhibit A placed for ABB's use, there shall be at least 12" vertical separation with well tamped soil backfill between ABB' s facilities and primary or secondary power facilities. All conduits must be equipped with a pull string. E. Other. Removal of power companies' attachments on jointly used poles is necessary and removal of other companies' attachments by standard aerial wreck out protocol may be necessary prior to ABB's removal of its aerial facilities. The City will notify residents of this project and shall notify ABB and residents of the name and contact information for a representative to receive questions or complaints from City residents about the City's project that is the subject of this Agreement. ABB may refer such questions or complaints to. City's representatives. In the ._event that other conditions .arise that are.reasonably necessary as conditions to the Special Construction Work, ABB will inform City and City will address the conditions. GCN7 iNUf0 ON ASE 2 ---' --- 4. • '' 3 I—UCE ',\JC AV f, I, a fit " r •C I F k o J 2 N n is 5,L-1 .--r ^vsa H , q E g l^` 0 .91. 1 tv cc fi• t N Ck CO 0 as M. G o N N 1� v l5 9 wow ji z z At/ 4t 4 T 1 QQQ N N N g K \ i g Z N o � )44.4-1 .ZI 7A14-1 446 * O N. g U 7, h G 0 ? u, nZ'; —. N J 0 +0+ O 0 ) )1,1167Z! '" Q JAI.Z-1 Q U - n ,.._ ) , . w PfGATTA AV u' , 0 1 ,ce J&d„L-I e 1 0 0 >4,,z-1 I- N Z. CON I UU0 ON PAST 1 r, L-a , . \ . il n A,• .4, t ..,-• ,..,, \ \ V . .5: 1.) 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EXHIBIT A-2: PLANT RELOCATION AUTHORIZATION&INVOICE Date: 9/20/2015 Project Name: Sunset Islands 3 & 4 Relocation Estimated Special Construction Work Charges: $82,626.00 Project Contact: Mina Samadi To: City of Miami Beach Contact Number: 305-673-7071 1700 Convention Center Dr. Project Address: Sunset Islands 3 &4 Miami Beach, FL 33139 Atlantic Broadband(ABB) has received a request from you (or your company)to perform the following work: Relocate the existing CATV overhead facilities on Sunset Islands 3 & 4 to underground facilities provided by others approximately 6400 feet. ABB will relocate our existing overhead facilities underground as reflected in Exhibit A-1. Construction will not begin until this signed Agreement and the Estimated Special Construction Work Charges are received by ABB. Please sign this authorization form in the space provided and return it with your advance payment, to the address listed below. In order to insure that your payment is processed correctly and the work is scheduled in a timely manner, it is important that you list the project name listed above on your payment and return this form with your advanced payment to: Atlantic Broadband Attn: Construction Manager 1681 Kennedy Causeway North Bay Village,FL 33141 This quote is only valid until February 28, 2016. Signature If you have any questions,please contact the following Atlantic Broadband personal. Peter Freytag Mario Araya Plant Manager Director of Technical Operations Atlantic Broadband Atlantic Broadband 305-861-8069 X 5208 305-861-8069 X 5201 CO' T7N!00 ON PASO 2 C"-- 1 } I. , 4 L-LICEJ�'RZ iii`✓F, i fi- N fi es r 2 o 8 1 y C"L 2. a- k O • o aki„L•I I ,❑ c N (\() N 1 : 1 :10 C I \). 3❑ I�h( W O 71,1,,E-1 L.) NoL -} F V-, S � ro 5 L..._ N g a co a-.4 t t G y Q (J Q `� W V L aV�"- N • N iT N 1f I r _ `0 \ n IC■ --..,_, Z R o 2. 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