HomeMy WebLinkAboutUTILITY RELOCATION AGREEMENT WINDSOR SPRING ROAD IMPROVEMENTS PHASE IV WILLIS FOREMAN ROAD TO TOBACCO ROAD BELLSOUTH TELECOMMUNICATONS LLC d/b/a AT& T GEORGIA t .
UTILITY RELOCATION AGREEMENT
Augusta, Georgia
"Windsor Spring Road Improvements Phase IV"
"Willis Foreman Road to Tobacco Road"
"GDOT Project STP00- 7007 -00 (006) PI 250610 and BRSLB- 7007 -00 (007) PI 250615"
BellSouth Telecommunications, LLC d/b /a / AT &T Georgia
This A . EMENT, made and entered into as of the / e/ day of G � ���
, 20 7 by and between Augusta, State of Georgia (hereinafter referred to as the "Augusta, Georgia"),
and BellSouth Telecommunications, LLC d/b /a AT &T Georgia (hereinafter referred to as the "Company "). This
Agreement may refer to either Augusta, Georgia or Company, or both, as a "Party" or "Parties."
WITNESSETH:
WHEREAS, Augusta, Georgia proposes under the above written Project to construct the "Windsor Spring
Road Phase IV Improvements from Willis Foreman Road to Tobacco Road" (hereinafter referred to as the
"Project "); and
WHEREAS, due to the construction of this Project, it will become necessary for the Company to remove,
relocate, or make certain adjustments to the Company's existing facilities (facilities includes electrical and
communications facilities and is referred to herein collectively as the "Facilities" or the "Facility "), in accordance
with the estimate of ONE HUNDRED TWELVE THOUSAND SIX HUNDRED NINETY TWO dollars and
THIRTY EIGHT cents ($112,692.38) (the "Estimate The Estimate is limited: (a) to the costs of removing,
relocating or adjusting those Facilities, which are physically in place and in conflict with the proposed construction
and /or maintenance, (b) where replacement is necessary, to the costs of replacement in kind and such cost excludes
the proportion of the costs representing improvement or betterment in a Facility, except to the extent that such
improvement or betterment is made necessary by the construction and/or maintenance, and (c) to the costs incurred
in acquiring additional easements or private rights of way, including, without limitation, easements for lines, access,
tree trimming, guy wires, anchors and other devices, appliances and other equipment, and any and all other such
easements and property rights as may be reasonably necessary for the Company's installation, operation and
maintenance of its Facilities. The proportion of the costs representing improvement or betterment in a Facility while
excluded from the Estimate, except to the extent that such improvement or betterment is made necessary by the
construction and/or maintenance, shall be shown on the Estimate; and
WHEREAS, the Company has presented evidence to Augusta, Georgia that it contends supports its claim
that it acquired property interests and utilized such property interests for the placement of its Facilities prior in time
to acquisition of the road right of way(s), all as involved in said Project; and
WHEREAS, Augusta, Georgia agrees to bear ONE HUNDRED percent (100 %) of the actual costs of said
relocation expenses, which is estimated to be ONE HUNDRED TWELVE THOUSAND SIX HUNDRED NINETY
TWO dollars and THIRTY EIGHT cents ($112,692.38), subject to Augusta, Georgia's reasonable approval (not to
be unreasonably withheld) of the evidence presented by the Company supporting its claim for prior rights, which
may include any documents or information demonstrating the location of the Facilities in relationship to those
property interests, the relationship of those property interests to current and previous road right -of -way, and any
other information or documents reasonably required by Augusta, Georgia to verify the Company's claim, and
subject to further Augusta, Georgia's reasonable approval (not to be unreasonably withheld) should actual expenses
exceed the Estimate; and
WHEREAS, Augusta, Georgia will use its best efforts to make a determination regarding the Company's
claim for prior rights prior to the Company being required to commence the removal, relocation, or adjustment of its
Facilities, and shall provide its determination in writing along with the written support for any such determination.
If Augusta, Georgia determines that the Company's presented information is insufficient to make a determination,
Augusta, Georgia will provide the Company the basis for such insufficiency, and request that the Company provide
additional information. If a determination, however, cannot be made prior to the time the Company's Facilities need
to be removed, relocated, or adjusted in order for the Project not to be delayed (provided that Augusta, Georgia
certifies in writing to the Company that such Project is time - sensitive due to construction scheduling with the
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possibility'of damages for delay, safety concerns, or critical funding deadlines), the Company will remove, relocate,
or adjust its Facilities without a determination having been made and neither Party's rights, claims, or defenses with
regard to the issue of property interests, compensable interest or prior rights will be waived or affected in any
manner. In such instance, Augusta, Georgia will make such determination regarding the Company's claim for prior
rights no later than six (6) months from the date of Augusta, Georgia's receipt of information sufficient for Augusta,
Georgia to make a determination (which determination shall be in writing accompanied by written support) or
otherwise the Company's claim for prior rights will be deemed approved by Augusta, Georgia.
NOW, THEREFORE, in consideration of the promises and the mutual covenants of the Parties hereinafter
set forth, the receipt and sufficiency of which are hereby acknowledged by the Parties, it is agreed:
Section 1. The Company, with its regular construction or maintenance crews and personnel, at its standard schedule
of wages and working hours (as may be applicable from time to time during this Agreement), and working in
accordance with the terms of its agreements with such employees, will make such changes in its Facilities as
previously agreed upon with Augusta, Georgia. The Company may elect to contract any portion of the work
contemplated.
Section 2. Prior to the Company commencing any of its removal, relocation or adjustment work, including
obtaining any easements, Augusta, Georgia will provide written assurances (including information on the property
rights acquired) to Company that it has acquired the necessary new road right -of -way.
Section 3. Upon the completion by the Company of the work contemplated herein, Augusta, Georgia will pay the
Company a sum equal to the lesser of ONE HUNDRED percent (100 %) of: (a) the Company's actual cost of the
total Project relocation expenses or (b) the Estimate, subject to the reasonable acceptance by Augusta, Georgia (not
to be unreasonably withheld) of the evidence presented by the Company supporting its claim for prior rights.
Pursuant to the Franchise Agreement (as defined below), in particular its Sections 4 and 8, the Company will
exercise its rights to have Augusta, Georgia pay the Company its relocation costs associated with this Project.
Section 4. Augusta, Georgia will neither be bound to pay any costs related to the Facilities' removal, reI5cation, or
adjustment which are in excess of the reimbursable portion of the Estimate, nor for any items of relocation work not
provided for in said Estimate, except as shall be specifically approved in writing by Augusta, Georgia. In the event
there is a change in the Project, including, without limitation, a change in scope, design, plans, service, property
interests to be acquired or engineering, due to events or circumstances beyond Company's reasonable control,
Company will notify Augusta, Georgia of such change and the Parties will negotiate in good faith a mutually
agreeable agreement or amendment to this Agreement to address such change.
Section 5. The recitals set forth in the Whereas clauses of this Agreement are a material part of this Agreement and
binding upon the Parties hereto.
Section 6. The Company shall make a reasonable effort to provide signing and other traffic control measures during
construction as contemplated under this Agreement in accordance with PART VI of the U. S. Department of
Transportation Manual on Uniform Traffic Control Devices, current edition, all at the expense of Augusta, Georgia.
Section 7. The covenants herein contained, including the covenants contained in the "Whereas" clauses hereto,
shall, except as otherwise provided, accrue to the benefit of and be binding upon the successors and assigns of the
Parties hereto.
Section 8. It is mutually agreed between the Parties hereto that this Agreement shall be deemed to have been
executed in Georgia.
Section 9.
9.1 The Parties agree they will in good faith share information with each other related to the issue of prior rights.
Should the Company disagree with Augusta, Georgia's determination with regard to the Company's claim for
prior rights and if the Parties are unable to settle the issue through informal negotiations, then, at the request of
either Party, the Parties agree to escalate the matter pursuant to Section 9.2 below.
9.2 Except as otherwise set forth in this Agreement, any controversy or claim arising out of or relating to this
Agreement, or the breach thereof, will be settled: (a) first, by good faith efforts to reach mutual agreement of the
Parties; and (b) second, if mutual agreement is not reached within thirty (30) calendar days of a written request
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by a Party to resolve the controversy or claim, each of the Parties will appoint a designated representative who
has authority to settle the dispute (or who has authority to recommend to the governing body a settlement of the
dispute) and who is at a higher level of management than the persons with direct responsibility for
administration of this Agreement. The designated representatives will meet as often as they reasonably deem
necessary in order to discuss the dispute and negotiate in good faith in an effort to resolve such dispute. The
specific format for such discussions will be left to the discretion of the designated representatives provided,
however, that all reasonable requests for relevant information made by one Party to the other Party will be
honored if such information is reasonably available. If the Parties are unable to resolve issues related to the
dispute within thirty (30) days after the Parties' appointment of designated representatives or Augusta,
Georgia's City Council fails to approve any tentative agreement reached, the Parties agree to participate in non-
binding mediation pursuant to Section 9.3 below. It being understood, however, that nothing herein will
diminish or relieve either Party of its rights or obligations under this Section 9.
9.3 If the Parties are unable to resolve a dispute through informal negotiations or pursuant to Section 9.2, the Parties
agree to participate in non - binding mediation by an impartial, third party mediator mutually agreed upon by the
Parties, at a mutually convenient location, with each Party being responsible for its own attorneys' fees and
expenses and for providing its own information and documentation applicable to the dispute to such mediator.
The Parties agree that a potential mediator's experience in prior rights and real estate law will be relevant
factors in selecting a mediator. All other agreed upon costs of the mediation will be apportioned equally to each
Party. Any dispute not so resolved by negotiation, escalation or mediation may then be submitted to a court of
competent jurisdiction, and either Party may invoke any remedies at law or in equity. (Nothing contained
herein, however, will preclude the Parties from first seeking temporary injunctive or other equitable relief).
Section 10.
10.1 If the Company chooses to submit progress payments, Augusta, Georgia will pay them within thirty (30)
days from receipt of the invoice, subject to Verification (as defined below) thereof by Augusta, Georgia.
Upon completion of the work, the Company shall submit a final bill to Augusta, Georgia and Augusta,
Georgia shall make a final payment within thirty (30) days from receipt of the final bill, subject to
Verification of the final bill by Augusta, Georgia.
10.2 For purposes of this Section 10.1, "Verification" means that Augusta, Georgia has reasonably determined
that there is a material discrepancy between the Company's invoiced charges and Augusta, Georgia's
calculation of charges owed, which invoiced charges are subject to a bona fide dispute; provided, however,
Augusta, Georgia agrees to provide the Company with written notice, including supporting documentation,
illustrating the basis for such bona fide dispute, within sixty (60) days of receipt of the invoice in dispute.
Should Augusta, Georgia fail to provide such documentation within the specified time period, Augusta,
Georgia must pay the disputed amount. Augusta, Georgia must pay any undisputed portion of the invoice
total within thirty (30) days after its receipt of the invoice. Augusta, Georgia must pay any disputed portion
of the invoice total within thirty (30) days of the date the dispute is resolved, to the extent the dispute is
resolved in favor of the Company.
10.3 At any time within thirty -six (36) months after the date of the final payment, Augusta, Georgia, at its sole
expense, may audit the cost records, support documentation, and accounts of the Company pertaining to
this Project to solely assess the accuracy of the invoices submitted by the Company and notify the
Company of any amount of any unallowable expenditure made in the final payment of this Agreement, or,
if no unallowable expenditure is found, notify the Company of that fact in writing. Any such audit will be
conducted by representatives of Augusta, Georgia or, if applicable, the Georgia Department of
Transportation or the Federal Highway Administration, after reasonable advance written notice to the
Company and during regular business hours at the offices of the Company in a manner that does not
unreasonably interfere with the Company's business activities and subject to the Company's reasonable
security requirements. As a prerequisite to conducting such audit, Augusta, Georgia or, if applicable, the
Georgia Department of Transportation or the Federal Highway Administration, will sign the Company's
Nondisclosure Agreement. The Company may redact from its records provided to Augusta, Georgia
information that is confidential and irrelevant to the purposes of the audit. The Company will reasonably
cooperate in any such audit, providing access to the Company records that are reasonably necessary to
enable Augusta, Georgia to test the accuracy of the invoices to which the audit pertains, provided that
Augusta, Georgia or, if applicable, the Georgia Department of Transportation or the Federal Highway
Administration, may only review, but not copy, such records. If the Company agrees with the audit
results finding an unallowable expenditure and does not pay any such bill within ninety (90) days of receipt
of the bill from Augusta, Georgia (based on the mutually agreed upon audit results), Augusta, Georgia may
set off the amount of such bill against the amounts owed the Company on any then - current contract
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between the Company and Augusta, Georgia. If, following the audit, the Parties are unable to resolve any
dispute concerning the results of the audit through informal negotiation, the provisions of Sections 9.2 and
9.3 will govern the resolution of the dispute. Augusta, Georgia may not perform an audit pursuant to this
Agreement more frequently than once per calendar year and may not conduct audits twice within any six
(6) months.
Section 11. The construction funding for this project is provided jointly by the Federal Highway Administration
(FHWA) and the Georgia Department of Transportation (GDOT). In accordance with the BUY AMERICA
requirements of the Federal Regulations (23 U.S.C. 313 and 23 CFR 635.410) all manufacturing processes for steel
and iron products or predominantly of steel or iron (at least 90% steel or iron content) furnished for permanent
incorporation into the work on this project shall occur in the United States. The only exception to this requirement
is the production of pig iron and the processing, pelletizing and reduction of iron ore, which may occur in another
country. Other than these exceptions, all melting, rolling, extruding, machining, bending, grinding, drilling, coating,
etc... must occur in the United States.
i) Products of steel include, but are not limited to, such products as structural steel piles, reinforcing steel,
structural plate, steel culverts, guardrail, steel supports for signs, signals and luminaries, and cable
wire /strand. Products of iron include, but are not limited to, such products as cast iron frames and
grates and ductile iron pipe. Coatings include, but are not limited to, the applications of epoxy,
galvanizing and paint. The coating material is not limited to this clause, only the application process.
ii) A Certificate of Compliance shall be furnished for steel and iron products as part of the backup
information with the billing. The form for this certification entitled "Buy America Certificate of
Compliance" is included as part of this agreement. Records to be maintained by the
RAILROAD/UTILITY and the GDOT Office of Utilities for this certification shall include a signed
mill test report and a signed certification by each supplier, distributor, fabricator, and manufacturer that
has handled the steel or iron product affirming that every process, including the application of a
coating, performed on the steel or iron product has been carried out in the United States of America,
except as allowed by this Section. The lack of these certifications will be justification for rejection of
the steel and /or iron products or nonpayment of the work.
iii) The requirements of said law and regulations do not prevent the use of miscellaneous steel or iron
components, subcomponents and hardware necessary to encase, assemble and construct the above
products, manufactured products that are not predominantly steel or iron or a minimal use of foreign
steel and iron materials if the cost of such materials used does not exceed one -tenth of one percent
(0.1 %) of the total contract price or $2,500.00, whichever is greater.
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GEORGIA
DEPARTMENT OF TRANSPORTATION
BUY AMERICA
CERRTIFICATE OF COMPLIANCE
Date , 20
WE,
(UTILITY/RAILROAD OWNER)
Address: _
Hereby certify that we are in compliance with the "Buy America" requirements of this project, P. I. 250610 and P. I.
250615, improvements to Windsor Spring Road from Willis Foreman Road to Tobacco Road.
As required, we will maintain all records and documents pertinent to the Buy America requirement, at the address
given above, for not less than 3 years from the date of project completion and acceptance. These files will be
available for inspection and verification by GDOT and/or FHWA.
We further certify that the total value of foreign steel as described in the Buy America requirements for this project
does not exceed one -tenth of one percent (0.1 %) of the total contract price or $2,500.00, whichever is greater.
Signed by Title
(Officer of Organization)
Subscribed and sworn to before me this day or
My Commission Expires:
Notary Public /Justice of the Peace
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Sectionl2. Duplicate originals of this Agreement will be executed, each of which will be deemed an original but
both of which together will constitute one and the same instrument. This Agreement may be modified only by an
amendment executed in writing by a duly authorized representative for each Party. This Agreement contains the
entire agreement of the Parties and there are no oral or written representations, understandings or agreements
between the Parties respecting the subject matter hereof which are not fully expressed herein. This Agreement
neither will supersede nor is in conflict with that certain Ordinance Granting Franchise (the "Franchise
Agreement "). This Agreement will be governed by and construed in accordance with the laws of the State of
Georgia.
[SIGNATURES ON THE FOLLOWING PAGE]
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IN \ITNESS Will:RIH this nista:nem liars been and is eNecuied on beliall 01 Al 'GI .:TA,IFORGIA
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Pnwo Number: 323.04.29)423766
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CERTIFICATE
I, Mark Keffer, Secretary of BellSouth Telecommunications LLC, d /b /a AT &T Georgia,
(the "Company "), hereby certify:
1. That I am a duly elected, qualified and acting Secretary of the Company. That I
am one of the fully authorized and proper officers of the Company to make
certificates in its behalf.
2. That the Company has established internal approval levels and requirements
which govern Company's employees' authorization to sign on behalf of the
Company, and that, according to such approval levels and requirements, Lee
Sledge, Director — Construction and Engineering, has authority to negotiate,
execute and deliver on behalf of the Company, agreements and contracts, such as
the follow
Utility Agreement between Augusta, State of Georgia and
BellSouth Telecommunications, LLC, d /b /a AT &T Georgia, on
Project STP00- 7007 - 00(006) / PI Number 250610 and BRSLB-
7007-00 (007) / PI Number 250615, in Augusta, GA.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed he corporate seal
the Company this Gf t day of m 0.V , 201 .
I C
Mark Keffer
Secretary
[Corporate Seal]