AID 22165613
CID 22082816
PID 92766W32A
REIMBURSEMENT AGREEMENT
THIS REIMBURSEMENT AGREEMENT (“Agreement”) is made and entered into and effective as of the date of the last signature on this Agreement by and between Sprint Communications Company L.P., a Delaware limited partnership, and its successors and assigns (“SCCLP”), whose mailing address is 2450 N Street, NW, Washington, DC 20037, and the City of Burbank, CA (“City”) whose mailing address is 150 North Third Street, Burbank CA, 91502. Sprint Communications LLC is now a wholly-owned subsidiary of Cogent Communications Holdings, Inc.. pursuant to the Cogent Communications Holdings, Inc. (together with its subsidiaries) acquisition of Wireline Network Holdings, LLC (together with SCCLP and its other subsidiaries).
BACKGROUND:
A. City desires to construct a bike path on the route of the Southern California Regional Rail Authority, formerly the Union Pacific Railroad right of way, (“Project”). Sprint owns fiber optic cable within the aforementioned right of way as a result of a Memorandum of Easement recorded in the Los Angeles County Recorder’s Office on 06/04/1997 as document #97-830273; and,
B. As a result of the Project, it is necessary for SCCLP to relocate its fiber optic cable and other equipment in order to accommodate City’s Project in the right of way, as set forth in more detail and as depicted in this Agreement, and in accordance with, and as more particularly described, in the attached Exhibit A (“Engineering Drawing”) and Exhibit B (“Scope of Work”), incorporated herein; and,
C. SCCLP, under the terms hereinafter stated, is willing to relocate its fiber optic cable and equipment within the ROW, and to accommodate City’s work if City reimburses SCCLP for all of its actual costs, both direct and indirect, in making the modifications.
D. The City Council of the City has determined that it is in the best interests of the City to dispense with competitive bidding in the procurement of the services being purchased by the City under this Agreement.
AGREEMENT
In consideration of the promises and mutual covenants contained herein, and other good and valuable consideration the receipt and sufficiency of which is acknowledged, SCCLP and City hereby agree as follows:
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1. SCCLP will perform the necessary protection work in accordance with the attached Exhibits A and B (“Work”), subject to the terms and provisions of this Agreement, and will administer and oversee the Work, including administration of construction contractor work in accordance with the scope of work outlined in Exhibit B.
ATTACHMENT 2-1
2 2. City represents and warrants to SCCLP that Exhibits A and B accurately represent the Scope of Work requested of SCCLP.
3. City may, at its own expense, inspect any construction by SCCLP hereunder, to assure itself that SCCLP work is being performed in accordance with the Scope of Work.
4. For any work performed by SCCLP that involves entry onto Metropolitan Transportation Authority right of way that is managed by the Southern California Regional Rail Authority, SCCLP will comply and/or execute any necessary Right-of- Entry forms (Form 5, 6, 37) from the Southern California Regional Rail Authority prior to the performance of such work.
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5. City will bear and be responsible for and pay in accordance herewith all direct and indirect costs incurred by SCCLP and relating to the protection/relocation Work, including, but not limited to, labor, materials, construction, damages, administrative overhead, engineering review work, taxes, and legal fees.
6. The total cost of the Work is estimated to be $78,588.00, as set forth in Exhibit C. Final actual costs may be more or less than the estimate, which will not be construed as a limitation of costs for the Work. SCCLP will promptly provide notice to City if it becomes obvious to SCCLP that the final actual costs will exceed the estimate by more than fifteen percent (15%).
7. City must furnish a cashier’s check or wire transfer in the amount of ($78,588.00) to guarantee the payment of all sums which may at any time become due from City to SCCLP under this Agreement. If City chooses to send a cashier’s check, the check must be payable to Sprint Communications Company L.P. and sent to SCCLP before commencement of the relocation Work. Any and all costs in excess of the amount of the prepayment will be billed to City when the Work has been completed, and City will be liable for any amount, which exceeds the amount of the prepayment. If the prepayment exceeds the amount of the final costs, then SCCLP will refund any amounts over the costs.
8. Within a reasonable time after SCCLP pays all of the invoices associated with the Project and the as-built drawings are complete, SCCLP will furnish an accounting of final actual costs and provide City an invoice of the same. City must pay the full amount of such invoice within thirty (30) days after receipt and approval.
Payments shall be sent to:
UMB Bank
Sprint
P.O. Box 871197
Kansas City, MO 64187
PID 92766 W32A
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3 9. All operations and work performed by City above or adjacent to the fiber optic cable location must be performed in a workmanlike and safe manner and in conformance with all applicable industry standards and government regulations (including but not limited to California Labor Code provisions applicable to “public works construction” projects, California Civil Code Section 9550 regarding payment bond requirements, and Burbank Municipal Code provisions applicable to “public works construction”) and in accordance with any restrictions and conditions that may be imposed by SCCLP from time to time. No work may be performed within the existing right of way by City until the fiber optic cable and other equipment modifications have been completed.
10. Exclusive of Saturday, Sunday and legal holidays, notice must be given to SCCLP by City, at least 48 hours in advance of commencement of any work on or adjacent to the fiber optic cable. The notice shall be given to SCCLP at telephone number 1-800-521-0579.
11. City will indemnify, defend, and hold SCCLP, its officers directors, agents and employees harmless from all loss, claims, liability and costs incurred by SCCLP, including, without limitation, losses resulting from claims for damages to property or injuries to or death of persons, judgments, court costs and attorneys’ fees, which arise out of or are claimed to have arisen out of the acts or omissions of City, its contractors, subcontractors, representatives, agents, or employees with respect to the Project, including, but not limited to, the construction, maintenance, presence on the right of way, or other operations or activities of City.
12. The Parties expressly understand that SCCLP is not abandoning any rights, title or interest it may have in the right of way, all such rights, title and interest being expressly reserved.
13. The Parties expressly understand that there is a shortage in the availability of fiber optic cable due to a reduction in supply. SCCLP shall not be held responsible for Project delays due to delays in the availability of fiber optic cable or other components.
14. Except as otherwise specifically provided in this Agreement, neither Party shall be in default under this Agreement if and to the extent that any failure or delay in a Party’s performance of one or more of its obligations hereunder, excepting City’s obligation to make payments required under this Agreement, is caused by any of the following conditions, and such Party’s performance of such obligation or obligations shall be excused and extended for and during the period of any such delays: unforeseen act of God; fire; flood; fiber, cable, conduit or other material shortages or unavailability or other delay in delivery not resulting from the responsible Party’s failure to timely place orders therefore; lack of or delay in transportation not resulting from the responsible Party’s act or omission to act; government codes, ordinances, laws, rules, regulations or restrictions; war or civil disorder; any other cause beyond the reasonable control of such Party (each a “Force Majeure Event”). The Party claiming relief of a Force Majeure ATTACHMENT 2-3
4 Event must promptly notify the other Party in writing of the existence of the event relied on and the cessation or termination of the event.
15. This Agreement supersedes every antecedent or concurrent oral and/or written declaration and/or understanding pertaining to the fiber optic cable modification work by and between SCCLP and City.
16. The terms of this Agreement shall be binding and inure to the benefits of the Parties to this Agreement and their successors and assigns.
17. All costs for flagging, if necessary, will be at City’s expense.
18. Notwithstanding anything to the contrary contained in this Agreement, SCCLP will not be required to perform any cable modification work contemplated by this Agreement during the period of November 15th of any year through January 2nd of the following year.
19. This Agreement may be executed in several counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same Agreement. The Parties agree that an electronic copy of a signed signature page of a counterpart agreement shall evidence and constitute valid execution of this Agreement and shall be binding on a Party to the same extent as the original signature counterpart copy. Each Party acknowledges and agrees it will not contest the validity or enforceability of this Agreement, including under any applicable statute of frauds, because it was accepted and/or signed in electronic form. Electronic records of a Party when produced in hard copy form shall constitute business records and shall have the same validity as any other generally recognized business records.
20. Any notice required to be delivered pursuant to this Agreement shall be in writing and shall be deemed received when: (a) personally delivered (including delivery via commercial messenger service); (b) one business day after being deposited with a nationally recognized overnight courier service, charges prepaid, and properly addressed for next-day delivery; or (c) transmitted via e-mail to the applicable email address(es) set forth below. For purposes of this subsection, the addresses of each Party shall be that set forth above. Either Party may change its address for notice from time to time by delivery of at least ten (10) days prior notice of such change to the other Party in the manner prescribed in this Agreement.
21. This Agreement shall be construed under and in accordance with the laws of the State where the Property is located, and all obligations of the Parties created under this Agreement are performable in the County where the Property is located.
22. Neither Party may assign this Agreement without the other Party’s prior written consent, which consent may not be unreasonably withheld, conditioned, or delayed. Any purported assignment of this Agreement by a Party without the other Party’s prior written consent shall be void.
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5 23. In the event any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement and this Agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been contained in this Agreement. Furthermore, in lieu of any such invalid, illegal, or unenforceable provision, a provision as similar to such invalid, illegal, or unenforceable provision as may be possible shall be automatically added to this Agreement and shall be valid, legal, and enforceable.
24. This Agreement constitutes the sole and only agreement of the Parties with respect to the subject matter of this Agreement and supersedes any prior understandings or written or oral agreements between the Parties respecting the subject matter of this Agreement and cannot be changed except by their written consent.
25. Whenever any determination is to be made or action to be taken on a date specified in this Agreement, if such date shall fall upon a Saturday, Sunday, or holiday observed by federal savings banks in the state where the Property is located, the date for such determination or action shall be extended to the first business day immediately following.
26. Each Party represents and warrants to the other that this Agreement has been validly entered into by it and that it has full legal power, right, and authority to perform its obligations under this Agreement.
27. Each Party represents and warrants to the other Party that the consent or approval of no third party, including, without limitation, a lender, is required with respect to the execution of this Agreement, or if any such third-party consent or approval is required, such Party has obtained any and all such consents or approvals.
28. Each Party represents and warrants to the other Party that the person executing this Agreement on behalf of such Party has the authority to execute this Agreement and bind such Party to the terms and provisions of this Agreement.
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ATTACHMENT 2-5
6 The parties have caused this Agreement to be executed by their proper duly authorized officials as of the dates indicated below.
SPRINT COMMUNICATIONS COMPANY L.P.
BY:
David Schaeffer, President & CEO
DATE:
THE CITY OF BURBANK, CALIFORNIA
BY:______________________________
NAME:____________________________
TITLE:____________________________
DATE:_____________________________
ATTACHMENT 2-6
ATTACHMENT 2-7
ATTACHMENT 2-8
ATTACHMENT 2-9
EXHIBIT B
PROJECT DESCRIPTION, LOCATION AND SCOPE OF WORK
TITLE: CITY OF BURBANK SAN FERNANDO BIKE PATH PROJECT
Sprint Work Order No.: N/A
1.0 DESCRIPTION AND LOCATION
PHASE 1. The work consists of temporarily removing the necking and ring and cover at (2) Sprint existing manhole locations along the South side of the SCRRA R/W. Steel plates will then be placed at each manhole location to protect in place the Sprint manholes during the construction of the City of Burbank’s bike path from Bob Hope Metrolink Station to Empire Ave.
PHASE 2. The work consists of raising the (2) Sprint manholes back to final grade along the newly placed bike path. A circular concrete pad will be poured around the raised manholes at the same grade to secure the ring and cover in place.
SPRINT MH 416 GPS= 34.203113,-118.345386
SPRINT MH 418 GPS= 34.19641,-118.33557
Work within the SCRRA ROW will require the presence of a SCRRA Railroad flagger. All working inside the SCRRA ROW will be required to take the SCRRA Safety Training Class prior to construction.
Contractor must hold a valid Class ______ License No. _____________, and its sub-contractors possess valid Class _____ or other applicable licenses at the time that the construction agreement is executed and throughout the term of such agreement. Contractor and all subcontractors must maintain current licensing throughout the life of the project.
No contractor or subcontractor may be listed in this construction agreement or awarded a contract for public work on a public works project unless registered with the Department of Industrial Relations pursuant to California Labor Code section 1725.5.
This project is subject to compliance monitoring and enforcement by the Department of Industrial Relations.
2.0 SPECIFICATIONS
2.1 The work shall be performed in strict accordance with the Sprint Specifications for Construction, TS-0213 Construction, Installation and Splicing of Fiber Cable, Rev. 6- 2019. Please note that this document contains references to specifications and manufacturers that may be out of date. Please refer all questions and inquiries regarding interpretations of this document to the Sprint Outside Plant Engineer.
2.2 Work within SCRRA R.O.W. shall conform to SCRRA standards. The contractor is hereby notified that all personnel entering the SCRRA R.O.W. must have current SCRRA safety certification.
2.3 THIS JOB IS SUBJECT TO THE REQUIREMENTS OF BUY AMERICA as set forth in 23 USC 313 and 23 CFR 635. At the time of delivery of any iron or steel products which become a permanent part of this project, the Contractor shall provide documentation sufficient to meet the requirements of 23 CFR 635 certifying the iron or steel products were produced domestically. Prior to invoicing for material provided under this agreement, the contractor shall provide a full set of certification documents that are required by an auditor or any other relevant governmental entity to prove compliance with this requirement. Additionally, the contractor shall assure that the same degree of documentation is provided by all subcontractors and suppliers working under the contractor. Documents shall be provided to the Sprint representative via paper copy at ATTACHMENT 2-10
the time of material delivery and electronic (PDF) copy prior to invoicing for the same.
Temporary construction materials and materials that do not contain iron or steel are exempt from this requirement.
2.4 THIS JOB IS A PREVAILING WAGE JOB per California Department of Industrial Relations Public Works Case No. 2001-059, dated October 25, 2002. Work performed on this job is a public work under the definition of Labor Code Section 1720(a) and is therefore subject to prevailing wage requirements. Upon completion of this Scope of Work, and prior to invoicing for the same, the contractor shall provide a full set of certified payrolls and all other documentation that may be required by Caltrans or any other relevant governmental entity to satisfy its Prevailing Wage Audit. Additionally, the contractor shall assure that the same degree of documentation is provided by all subcontractors and providers of labor and services working under the contractor.
Documents shall be provided to the Sprint representative via paper copy and electronic (PDF) copy.
A. There shall be paid each craft or type of worker employed by the Contractor or Subcontractor engaged in Work under the construction agreement not less than the applicable wage rate, including legal holiday and overtime rates, found and determined by the Director of the Department of Industrial Relations for the State of California, in accordance with the Standards set forth in Section 1773 of the California Labor Code. Copies are available on the Internet at http://www.dir.ca.gov/DLSR/PWD.
The Contractor shall comply with the provisions of Section 1775 of the Labor Code which, so far as material hereto, reads as follows: 'Except as otherwise provided by law, the contractor and any subcontractor under the contractor shall, as a penalty to the state or political subdivision on whose behalf the contract is made or awarded, forfeit not more than two hundred dollars ($200) for each calendar day, or portion thereof, for each worker paid less than the prevailing wage rates as determined by the director for the work or craft in which the worker is employed for any public work done under the contract by the contractor or subcontractor.”
The Contractor and each Subcontractor performing work, in conjunction with the construction agreement shall comply with the provisions of Section 1776 of the Labor Code of the State of California.
B. The prevailing wage rates specified by the State of California are minimum rates only, and the City will not consider any claims for additional compensation made by the Contractor or Subcontractor because of payment by the Contractor or Subcontractor of any wage rate in excess of the applicable rate contained in this Contract.
Should Premium Time Work and/or Time and Material Work not in the Work be required during the progression of this Project, it may be awarded in accordance with those rates or as agreed otherwise between City and Contractor.
C. Eight (8) hours labor constitutes a legal days' work for each worker employed in the execution of this Project. The time of service of any worker employed in the execution of this Project is limited and restricted to eight (8) hours during any one (1) calendar day, and forty (40) hours during any one (1) calendar week, except as hereinafter provided. The Contractor shall, as a penalty to the City of Burbank, forfeit Twenty-Five Dollars ($25) for each worker employed in the execution of this Project by the Contractor or by any Subcontractor for each calendar day during which such worker is required or permitted to work more than eight (8) hours in any one (1) calendar day and forty (40) hours in any one (1) calendar week in violation of the provisions hereof.
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Notwithstanding the provisions of Sections 1810 to 1814 of the Labor Code of the State of California, and notwithstanding the foregoing stipulations inserted herein pursuant to the requirements of said Sections, work performed by employees of the Contractor or any Subcontractor in excess of eight (8) hours per day, and forty (40) hours during any one (1) week, in the execution of this Project, shall be permitted upon compensation for all hours worked in excess of eight (8) hours per day, and forty (40) hours during any one (1) week, at not less than one and one-half (1-1/2) times the basic rate of pay.
D. The Contractor shall pay to workers needed to execute the Agreement the per diem wages as defined in Labor Code Section 1773.9.
E. Only apprentices who are in training under apprenticeship standards and written apprentice agreements complying with Division 3, Chapter 4, Section 3070, et seq., of the Labor Code, are eligible to be employed in the performance of this Project.
The term 'apprentice' means a person at least sixteen (16) years of age who has entered into a written agreement with an employer or their agent, an association of employers, or an organization of employees, or a joint committee representing both in conformity with the provisions of Division 3, Chapter 4, Section 3070, et seq., of the Labor Code.
Every apprentice employed in performance of this Project shall be paid the standard wage paid to apprentices under the regulations of the craft or trade at which they are employed and shall be employed only at the work of the craft or trade to which they are indentured.
The Contractor or any Subcontractor performing any of the work under this Project who employs journeymen or apprentices in any apprentice-able craft or trade and is not contributing to a fund or funds to administer and conduct the apprenticeship program in any such craft or trade in the area of the site of the public work to be constructed or performed under this Project, to which fund or funds other Contractors in that area are contributing, shall contribute to the fund or funds in each craft or trade in which the Contractor or Subcontractor employees journeymen or apprentices on the public work in the same amount or upon the same basis and in the same manner as other Contractors do, but where the trust fund administrators are unable to accept such funds, Contractors not signatory to the trust agreement shall pay a like amount to the California Apprenticeship Council.
The Contractor shall be responsible for complying with Section 1777.5 of the Labor Code for all apprentice-able occupations.
The Contractor shall conform to all requirements of Sections 1777.5 and 1777.6 of the Labor Code.
3.0 MATERIALS
3.1 The contractor shall provide all materials in accordance with the Specification stated in the TS-0213 Construction, Installing and Splicing USSCIS NO. SCIMOSP REV. 99-1.
3.2 The contractor shall provide all materials as may be needed to complete this project except cable, cable splicing hardware, route marker signs and any items proprietary to Sprint.
4.0 PERMITS
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4.1 Contractor will pay for and secure all permits, both SCRRA and The City of Burbank.
4.2 Sprint shall pay the contractor the actual cost of the permit plus any markup.
ATTACHMENT 2-12
4.3 Contractor shall provide copies of all permits to Sprint prior to proceeding with the work and shall provide copies of all final acceptance documents after the work is completed and before final invoicing.
5.0 BILLING AND COMMERCIAL TERMS
5.1 Contractor shall submit invoices. Invoice payment terms shall be net 60 days from the date the invoice is submitted in the Sprint electronic billing system. Prior to submitting the electronic invoice, the Contractor shall submit a “paper” invoice to the OSP Engineer for review and approval. These can be actual paper, but it is preferred that they are PDF documents.
5.2 Prior to billing for any work that is subject to a preliminary lien notice, the contractor shall secure and provide an unconditional release for each preliminary notice. Contractor shall notify all suppliers that may provide preliminary lien notices that the appropriate address for Sprint is 2592 Dupont Drive, Irvine, CA, 92612.
5.3 Contractor is hereby notified that Sprint shall require a payment bond in the sum of not less than 100 percent of the maximum amount of the construction contract price and listing "City of Burbank” as a dual obgligee. Please note that the AIA form is not an acceptable bond form for Sprint.
5.4 Billing for the work shall occur in two bills. The first bill will be issued the month after the covers are removed. The second bill will be issued the month after the covers are re- installed as a final bill.
6.0 LOCATES
6.1 Contractor shall be responsible for all locates of other utilities and/or substructures. No excavation work shall be permitted until all locates are performed. All existing substructure shall be positively identified prior to and during excavation activity.
7.0 THE WORK (PHASE 1)
7.1 Contractor shall document the physical location of each manhole during Phase 1.
7.2 Contractor Shall remove the existing 8’x8’ Concrete apron.
7.3 Contractor shall remove the rings and covers and grade rings at each manhole location as needed.
7.4 Contractor shall install steel plates and EMS Markers on top of the steel plates at each manhole location.
7.5 Contractor shall transport the Sprint manhole components that were removed to their facilities and store for future re-installation.
7.6 Contractor shall inspect the cast iron rings and covers to confirm that they have functional provisions to be bolted shut. If bolts are missing to acquire the appropriate stainless penta head bolts.
(PHASE 2)
7.7 Contractor shall return at a future date, to re-install the grade rings, rings and covers. This includes parging the inside the grade rings, grouting under the cover and repairing the asphalt to the City of Burbank’s satisfaction. The return date, though within a 13-month period will be coordinated between Sprint and the contractor to occur within no more than 3 weeks after the contractor is asked to return.
7.8 Contractor shall place a concrete apron to grade around the newly raised manhole ring and cover. This apron is used for safety gear during any maintenance at the manhole locations.
7.9 Contractor shall weld each manhole lid once the lids are in place at both locations.
The contractor shall clean up any construction debris and shall leave the construction sites neat and clean each day.
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Extreme caution shall be used when performing any work on or near the conduits and cables.
Under NO circumstances shall any work be performed that may cause the cable(s) to be damaged or cut. All work involving live fiber optic cables and conduits shall be performed under the direct supervision of the owner of the cable.
8.0 Notices
8.1 The contractor shall contact the following, one full week prior to commencing construction:
Underground Service Alert of California (800) 227-2600
Cogent – Jeff York - 213-943-9831
Cascade – Brian Smith (949) 226-1980
Metrolink dig alert - 909-592-1346
END SCOPE OF WORK
MATERIAL LIST
This is a guide and may not include all materials to complete the project. (See the Engineer for Sprint Materials List for acceptable materials.)
__________________________________________________________________________________
MATERIAL SUPPLIED BY THE CONTRACTOR
Grade rings as needed.
Class II Base as needed (backfill for on top of the Steel Plates at each location).
Asphalt/Concrete as needed (Repave around casting).
Storage for MH Components (ring and cover, grade rings, ext..).
MATERIAL SUPPLIED BY SPRINT
Sprint warning ribbon
Sprint locating device (toilet seats to be placed at each manhole location)
End Material List
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