Special Construction Agreement with BellSouth Telecommunications, LLC d/b/a AT&T Southeastdole-02Pc2 (/
SPECIAL CONSTRUCTION AGREEMENT
For Conversion of Overhead Facilities to Underground
Project #: 6MP06221A
Authority: A008VZ8
AT&T Contact: Andres Hernandez
Telephone: 305-222-0932
Exhibit B
Customer Name: City of Miami Beach
Customer Number:
Work Site Address: Sunset Islands 3 & 4
This Agreement (" Agreement") is entered into by and between BellSouth
Telecommunications, LLC d/b/a AT&T Southeast ("AT&T") and City of Miami Beach
("Customer" or "City"). AT&T and Customer hereby agree to the following terms and
conditions:
1. Special Construction Work & Consideration. This Agreement is for the
Special Construction Work described on Exhibit 1, attached hereto and
incorporated herein by this reference ("Special Construction Work"). Exhibit 1
includes conditions precedent to AT&T commencing the Special Construction
Work ("Conditions Precedent"). As consideration for the Special Construction
Work, Customer agrees to pay AT&T for the work on an "actual cost" basis. The
Customer affirms that the Estimated Special Construction Work Charges below
is an estimate and that the actual costs incurred by AT&T may be higher. Said
estimated cost is subject to change due to factors including, but not limited to,
changing conditions in the field or changes in cost of labor or materials.
Customer agrees to make advance payment of 100% of the estimated cost
totalling $177,056.00 ("Estimated Special Construction Work Charges"),
$8,000.00 of which Customer has previously paid to AT&T, such that
$169,056.00 is due and payable. Customer will pay such amount to AT&T within
30 days following full execution of this Agreement. Payment of such amount in
full is required before the Special Construction Work will begin. Payment shall
be made by mail to AT&T's offices at AT&T CWO Coordinator, 1876 Data
Drive, 5th Floor North, Attention: Susan Rinehart, Hoover, AL 35244, or to such
other address as AT&T may designate in writing. Upon completion of the work,
AT&T will compute the actual cost of the work ("Special Construction Work
Charges"). Any difference between the amount of the advance payment and the
Special Construction Work Charges will either be paid by the Customer to
AT&T within 30 days of Customer's receipt of an invoice therefor (in the event
actual exceeds estimated) or refunded to the Customer by AT&T (in the event
actual is less than estimated).
2. Cost Estimate. The Estimated Special Construction Work Charges amount is
valid for 180 days from November 19th, 2015. If this Agreement is not fully
executed within the said period, then AT&T may require the Customer to request
a new cost estimate, and the Estimated Special Construction Work Charges
amount may change.
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3. Changes in Scope of Work or Field Conditions. If the Customer initiates
changes in the scope of the work after the date of this Agreement or there exists a
condition in the field or other relevant circumstance discovered after the date of
this Agreement that is different from the conditions or circumstances that were
assumed in preparing the Estimated Special Construction Work Charges, AT&T
may require the Customer 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
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 30 calendar days from receipt of
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 30 calendar days and if the
breaching party continues expeditiously to cure.
5. Early Termination. In 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 AT&T, AT&T shall have the right to retain any
Estimated Special Construction Work Charges previously paid by the City that
compensate AT&T for Special Construction Work performed up to the date of
termination, and AT&T may complete any segment of the Special Construction
Work then in progress. Following such termination, AT&T shall return to the
City any such portion of such prior payment that is in excess of such amounts
that compensate for Special Construction Work performed up to the date of
termination and/or which was in progress prior to the date of termination. If
actual costs incurred by AT&T for Special Construction Work performed up to
the date of termination exceed the prior payments, the City shall be responsible to
pay any such excess amount within 30 days following receipt of an invoice from
AT&T.
6. Force Majeure; Time to Complete. Any information provided by AT&T, its
agents servants or employees that the project will be complete by a certain date
or within certain time period is an estimate and not binding on AT&T, its agents,
servants or employees. Estimated completion dates and the Special Construction
Work are subject to circumstances, including without limitation, changing
conditions in the field, and force majeure conditions, including, without
limitation, weather, labor disputes, vendor/contractor disputes, and other
conditions or circumstances outside of AT&T' s control.
7. Damages; No Damages for Delay. In the event of termination of this
Agreement for any reason set forth herein in advance of completion of Special
Construction Work, the City shall have no claim or remedy against AT&T,
except a claim to collect any excess payment amount, as set forth in Section 5. In
the event of any claims arising from this Agreement, neither party shall liable for
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any consequential, incidental, or indirect damages. Under no circumstances will
AT&T be held liable to Customer, Customer's agents, servants, contractors or
employees or any alleged delay in the Special Construction Work.
8. Severability. Any provision of this Agreement held by 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.
9. Successors and Assigns. This Agreement is binding upon and shall inure to
the benefit of the parties and their respective successors and assigns.
10. 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 when taken together shall constitute one and the same
instrument.
11. 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.
12. Headings. The headings, captions, and arrangements used in this Agreement
are for convenience only and shall not affect the interpretation of this Agreement.
13. Modification. This Agreement constitutes the entire agreement between the
parties and can only be changed in a writing or writings executed by both of the
parties. Each of the parties forever waives all right to assert that this Agreement
was the result of a mistake in law or fact.
14. Interpretation. The parties agree that this Agreement shall not be interpreted
in favor or against either party. The parties further agree that they entered into
this Agreement after conferring with legal counsel, or after having a reasonable
opportunity to confer with legal counsel.
,.L Applicable Law. This Agreement shall be governed and interpreted in
accordance with the laws of the State of Florida without regard to Florida conflict
of law principles.
16. Attorneys' fees. If either party seeks to enforce it rights under this
Agreement through legal action, the prevailing party shall recover from the other
party all costs and expenses incurred, including, but not limited to, reasonable
attorneys' fees.
17. Authority. The signatories to this Agreement represent and warrant that they
are duly authorized to execute this Agreement.
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18. Indemnification and Hold Harmless. Subject to applicable law and without
waiver by the Customer of any relevant sovereign immunity rights under Florida
law, including without limitation without waiver of any applicable rights or
limitations under Section 768.28, Fla. Stat., Customer, Customer's agents,
servants, contractors and employees hereby agree to indemnify and hold harmless
AT&T and its employees, agents and contractors from and against any and all
claims, costs, and expenses, judgments or actions for damage to property or
injury or death to persons and/or arising from or relating to the work that is the
subject of this Agreement, if and to the extent any such claims are caused by the
acts or omissions of the Customer, Customer's agents, servants or employees.
19. Final Agreement _THIS AGREEMENT REPRESENTS THE ENTIRE AND
FINAL EXPRESSION OF THE PARTIES WITH RESPECT TO THE
SUBJECT MATTER HEREOF. THIS AGREEMENT MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES; THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. NO
MODIFICATION, RESCISSION, WAIVER, RELEASE OR AMENDMENT
OF ANY PROVISION OF THIS AGREEMENT SHALL BE MADE, EXCEPT
BY A WRITTEN AGREEMENT SIGNED BY BOTH PARTIES.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their duly authorized representative on the dates set forth below.
City of Miami Beach, Flo ,su�,,BellSouth Telecommunications, LLC
d/b/a AT&T Southeast
Printed Na
By:
Printed Name
By:
Authorized Signature
Date:
By signing below, the Association agrees to Exhibit 1, Part C of this Agreement and
acknowledges the information in Exhibit 1, Part E of this Agreement.
Sunset 3&4 KOp i yl
su(5r `-Tf2LJ4)vO i MJ PPCUQa��2` \'
By:
Title:
Date:
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
City Attorney Date
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EXHIBIT 1
The Special Construction Work that is the subject of the Agreement to which this Exhibit
1 is attached is as follows:
The work area is the area within the City of Miami Beach, as shown on Attachment A
("Work Area"). The Special Construction Work is the following work within the Work
Area: Installation by AT&T of underground cable and related aboveground equipment
(collectively, the converted system) to replace AT&T aerial facilities, including cables,
terminals, service wires, poles, anchors and guys, in the Work Area; cutover of existing
communications service on such aerial facilities to converted system; and removal of the
aerial facilities and any AT&T -owned poles 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, owned by parties other than
AT&T,
In addition to any conditions precedent to AT&T commencing the Special Construction
Work identified in the Agreement to which this Exhibit 1 is attached, the following shall
be Conditions Precedent to AT&T commencing the work and shall be obligations of the
City and/or Sunset 3&4 HOA where specified:
A. Conduit. At no cost to AT&T, the City will furnish and shall (1) install the 4" and
2" Schedule 40 conduit, handholes and pullboxes as shown on plans drawings 1
thru 4 dated 8-26-2015 ("Conduit Plans") (2) Install the Service Conduit
identified in C below, and (3) Transfer ownership to AT&T of the conduit,
handholes and pullboxes referenced in (1) above (collectively, "AT&T Conduit
System"), as described below. Upon completion of construction of the AT&T
Conduit System, the City shall notify AT&T. AT&T shall within 14 days from
date of said notice inspect the AT&T Conduit System and shall notify the City in
writing of any observed deficiencies. Upon correction by the City or its
contractor(s) of all noticed deficiencies, the City shall notify the AT&T, and the
AT&T shall be afforded an 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 transfer ownership of the AT&T
Conduit System free of any liens or encumbrances, and AT&T shall thereafter
own and have sole use of the AT&T Conduit System. In the event that any
deficiencies are later discovered in the AT&T Conduit System (namely,
deficiencies that occurred in connection with the construction and installation),
the City shall be the responsible party at the City' s cost to correct or arrange for
correction by appropriate contractor(s) of the deficiencies during the warranty
period promptly following notice from AT&T. Such warranty period will extend
for one (1) year from the date of transfer of ownership of the AT&T Conduit
System. Transfer of ownership to AT&T shall be memorialized by the City's
delivery to AT&T of a Bill of Sale in the form attached as Attachment B.
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B. Permits. At no cost to AT&T, the City shall grant to AT&T any necessary
permits for the installation by AT&T in City right-of-way of the following: any
portions of the AT&T Conduit System within such right-of-way as well as AT&T
pedestal terminals and cabinets to be installed at necessary locations within such
right-of-way as mutually agreed to by the City and AT&T, it being understood
that such agreement from the City to such equipment locations is a condition
precedent to the Special Construction Work. Any equipment locations on the
Conduit Plans are deemed mutually agreed upon by the parties. If the City does
not grant separate permits, this Agreement shall. constitute City authorization for
installation and maintenance of the converted system in the City right-of-way.
Receipt of any necessary permits from the City or any other relevant permitting
agencies is a condition precedent to the Special Construction Work.
C. Service Drops. At no cost to AT&T, the HOA shall have caused the property
owners of each and all properties within the Work Area (each, a "Residence") to do
the following (or the City shall do the following): Install one - 1" PVC Schedule 40
conduit from each AT&T network interface device ("NID") on each Residence to
the relevant splice box for the relevant Residence. The HOA shall cause each
property owner of a Residence to grant to AT&T the exclusive right to use the above
conduit on the Residence property for installation of an AT&T service drop. Any
property owners that have an aerial service drop will need to place and pay for re-
arrangement orders with the AT&T business office in order to arrange for transfer of
the aerial drop to underground. The City shall notify property owners of this
information after AT&T notifies the HOA that it is the appropriate time to do so, and
the HOA shall cause the property owners to do so Pending receipt and completion
of any such re -arrangement orders, AT&T will be unable to complete any portion of
the Special Construction Work affected thereby.
D. Further Conduit Specifications. In instances where a joint trench will be dug
for the installation of AT&T's facilities and the power company's facilities, the
power company's FPL's facilities shall be placed at the bottom of the joint trench.
Any conduit referenced in A. above placed for AT&T's use (whether in a single or
joint trench) shall be at a minimum depth of 24" below final grade. For all conduit
referenced in this Exhibit 1 placed for AT&T's use, there shall be at least a 24"
vertical separation with well tamped soil backfill between AT&T's facilities and
primary or secondary power facilities. All conduits must be equipped with a pull
string, and capped at ends.
E. Other Removal of other companies' aerial attachments on jointly used poles is
necessary prior to AT&T's removal of its aerial facilities. The City will notify
residents of this project (including of the need to place a re -arrangement order
with AT&T if and where applicable, as described in C above) and shall notify
AT&T 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. AT&T may refer such questions or complaints to
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the City's representative. In the event other conditions arise that are reasonably
necessary as conditions to the Special Construction Work, AT&T will inform the
City, and the City will address the conditions.
F. Timing, Conditions Precedent. Following 1 year after execution of this
Agreement, in the event Conditions Precedent have not been satisfied, AT&T
may terminate this Agreement by notice to the City anytime thereafter, until the
Conditions Precedent have been satisfied (and Section 5 of the Agreement to
which this Exhibit 1 is attached shall apply in the event of such early termination).
When the City believes the Conditions Precedent have been satisfied, the City
will notify AT&T in writing, and AT&T shall determine thereafter whether the
Conditions Precedent have, in fact, been satisfied. If AT&T does not believe that
they have been satisfied, AT&T will notify the City,
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Attachment A
Work Area
See attached
Attachment B
Bill of Sale
FOR GOOD AND VALUABLE CONSIDERATION the City of Miami Beach,
Florida does hereby bargain, sell, transfer and convey unto BellSouth
Telecommunications, LLC d/b/a AT&T Southeast all right, title and interest in and to the
AT&T Conduit, as described in that certain Agreement between said parties dated
2015.
TO HAVE AND TO HOLD unto the said Grantee forever.
IN WITNESS WHEREOF, the undersigned, has executed this Bill of Sale this
day of
CITY OF MIAMI BEACH, FLORIDA
BY:
NAME/TITLE:
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