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HomeMy WebLinkAboutPW17-414 - Original - Zayo Group, LLC - S 228th St Grade Separation Joint Trench Agreement (72nd Ave S. to UPRR) - 07/18/2017 A Re c0o-& r d s M is M el K EN T MY r.,s r,00vGraN .., ,,,, CONTRACT COVER SHEET This is to be completed by the Contract Manager prior to submission to the City Clerk's Office. All portions are to be completed. If you have questions, please contact the City Clerk's Office at 253-856-5725. Vendor Name: Za o Group Vendor Number: JD Edwards Number Contract Number: 1 `91 This is assigned by City Clerk's Office Project Name: S 228"h St Grade Separation at UPRR - Joint Trench A rnt Description: ❑ Interlocal Agreement ❑ Change Order ❑ Amendment ❑ Contract ❑ Other: Joint Trench Agreement Contract Effective Date:., 6/12/2017 Termination Date: 12/31/2099 Contract Renewal Notice (Days): Number of days required notice for termination or renewal or amendment Contract Manager: T LaPorte Department: Public Works Contract Amount: Approval Authority: Z Director E:1 Mayor El City Council Meeting Date Detail: (i.e. address, location, parcel number, tax id, etc.): DocuSign Envelope ID:978A135E-6F82-4825-858B-A5FE194F86C3 JOINT TRENCH AGREEMENT Between the City of Kent and Zayo for the S. 228�h St. GRADE SEPARATION AT THE UNION PACIFIC RAILROAD— (72ND AVE S. to the Union Pacific Railroad) This Agreement is between the City of Kent, a Washington municipal corporation ("City"), and Zayo Group,LLC, a Delaware corporation("Zayo"). RECITALS A. The City is making right-of-way improvements to S. 228'h Street. B. These right-of-way improvements require Zayo to relocate its authorized underground facilities that are currently in conflict with this project,pursuant to RCW 35.99.060. C. Relocation of these facilities requires trenching within the right-of-way and the parties recognize the efficiencies of entering into an agreement to dig one trench in which all parties will relocate their facilities. AGREEMENT To facilitate construction of a joint trench, the parties agree as follows: 1. SCOPE OF WORK The City of Kent will advertise for construction bids and enter into a contract with a Contractor for the construction of a joint utility trench ("Trench") which may include Comcast, Verizon, Zayo, PSE power and PSE gas facilities. This Trench will be located along the north side of S. 228th Street, between 72nd Ave. S. and the Union Pacific Railroad as referenced in the plan sheet attached as Exhibit A and incorporated by this reference. It is anticipated that there will be one (1) crossing of the Trench across S. 228th Street to serve customers on the south side of the street. All utilities that cross S. 228`h Street shall use this Trench. 2. CONTRACTOR REQUIREMENTS The independent contractor hired by the City to perform this work shall be referred to as "the Contractor" in this Agreement. The Contractor, pursuant to a contract with the City, shall excavate the trench and install Comcast, Zayo, Verizon, PSE power and PSE gas facilities, accommodate and coordinate the installation of Zayo facilities, install the bedding material, backfill and'compact the trench, and perform any restoration required by the City, all to be performed in a good and workmanlike manner consistent with industry standards. The City represents that any such contract shall further require of contractor that the work be conducted in JOINT TRENCH AGREEMENT—Page 1 (June 12,2017) (between City of Kent and Zayo Re:S. 22e Street) DocuSign Envelope ID:978A135E-6F82-4825-8586-A5FE194F86C3 . conformity with(i)the applicable procedures and requirements of the parties as described herein; (ii) all applicable laws, ordinances and regulations of any governmental authority, and; (iii) all applicable terms and provisions of the National Electric Safety Code, as may be amended, supplemented or replaced from time to time, including but not limited to those pertaining to protection and separation of conductors buried in earth. 3. RESPONSIBILITY OF THE PARTIES 3.1 Drawings. Zayo shall provide engineering drawings, specifications, construction standards, estimated material quantities, and cost estimates to the City for the underground relocation of Zayo's facilities. The drawings shall show in detail the location and elevation of the conduits, trench, and vaults. 3.2 Provision of Conduit and Vaults. Zayo shall provide conduit for installation by the Contractor in the Trench and shall furnish and deliver all vaults to the site for installation by the Contractor. Zayo shall schedule all deliveries in a timely manner as outlined in Section 3.4, so as not to delay the Contractor. 3.3 Traffic Control. The Contractor shall perform all traffic control associated with installation of facilities within the Trench. Zayo shall be responsible for providing traffic control during installation of facilities not located within the Trench. Zayo shall submit a general traffic control plan for these installations. 3.4 Zayo Coordination. (a) The Contractor will install Zayo's conduit in the Trench and in the street crossings. The Contractor will excavate for and place Zayo vaults in the Trench including bedding and backfill. Zayo shall maintain continued coordination with the Contractor regarding the installation of Zayo's facilities and shall coordinate closely with the Contractor to provide all necessary materials on-site in a timely manner. (b) For any work that Zayo performs independently from the Contractor's work in the Trench, shall coordinate closely with the City and the Contractor to ensure this work will not conflict with the Contractor's work in the Trench. Zayo shall pay any claims for additional compensation made by the Contractor resulting from conflicts with Zayo's independent work in accordance with Section 4.5 of this Agreement. 3.5 Removal of Affected Facilities. Parties acknowledge and agree that Zayo shall in no event be required to remove its respective, affected facilities, prior to completion of its underground facilities, in accordance with this Agreement, as long as the installation is completed in conformity with this Agreement. JOINT TRENCH AGREEMENT—Page 2 (June 12,2017) (between City of Kent and Zayo Re:S. 228`J'Street) DocuSign Envelope ID:978A135E-6F82-4825-858B-A5FE194F86C3 3.6 Surveys. The City shall provide the survey for the location of the Trench and vaults. 3.7 Title to Facilities. All rights, title and interest in the facilities and associated equipment shall at all times remain with Zayo. 4. COMPENSATION 4.1 Trench costs. Zayo shall pay the City a portion of the Trench costs, commensurate with its proportionate share of Trench usage, including street crossings as shown in Exhibit B attached hereto and incorporated by this reference. Preliminary costs will be agreed upon prior to construction based on an estimate from the bid accepted by the City. Costs will be finalized after completion of construction to account for actual construction costs. 4.2 Survey. Zayo shall pay the reasonable costs for the City surveyor's time to provide vault locations and elevations and any other survey that may be required to locate and place Zayo facilities. 4.3 Traffic Control. Zayo shall pay a proportionate share of traffic control costs related to the construction of the Trench where Zayo facilities are included. The proportionate share will be based on trench usage as shown in Exhibit B. Zayo shall pay for all traffic control during the installation of Zayo facilities, not associated with the Trench. 4.4 Additional Expenses. Zayo agrees to pay the additional expenses incurred due to all Zayo's approved change requests requiring additional trench depth or width and for unforeseen conditions, including but not limited to dewatering for ground water. Zayo is not obligated to pay for additional expenses incurred due solely to approved change requests from other private utilities and/or the City. 4.5 Claims by Contractor. Zayo agrees to pay the entire cost of any claims made by the contractor for damages that are proximately caused by Zayo. These claims may include delays caused by the installation of Zayo facilities, delays caused by Zayo providing materials, or any other conflicts between the Contractor and Zayo or any of its contractors. 4.6 Vaults. Zayo agrees to pay for the excavation, site preparation, and installation of its vaults, including bedding and backfill, separately and in addition to any survey costs and Trench costs discussed above. These additional costs shall be preliminarily determined from the bid price accepted by the City. The cost to excavate for and install Zayo's vaults will be finalized after completion of construction to account for actual construction costs. 4.7 Invoice. Zayo shall pay the City within sixty(60) days of submittal by the City of an itemized billing for Zayo's proportionate share of all actual, identified expenses incurred by the City or the Contractor in constructing the Trench as set forth in this Section 4. JOINT TRENCH AGREEMENT—Page 3 (June 12,2017) (between City of Kent and Zayo Re:S. 228"Street) DocuSign Envelope ID:978A135E-6F82-4825-858B-A5FE194F86C3 4.8 Defective or Unauthorized Work. (a) Per the terms of the agreement between the City and Contractor, Zayo reserves the right to withhold payment to the City for any defective or unauthorized work performed by the Contractor. Defective or unauthorized work includes, without limitation: work and materials that do not conform to the requirements of this Agreement, and extra work and materials furnished without Zayo's approval. (b) Before withholding payment to the City, Zayo shall provide written notice to the City of any work it believes to be defective or unauthorized. Upon receipt of written notice, the City shall be afforded 60 days to correct any work it agrees is defective or unauthorized. If the City does not agree that the work is defective or unauthorized within 15 days of receipt of the written notice, Zayo may correct or complete the work at its sole cost. 4.9 Final Payment/Waiver of Claims. The making of final payment by the parties shall constitute a waiver of claims by the Contractor, except those previously and properly made and identified by the Contractor as unsettled at the time request for final payment is made. 5. CHANGES. Zayo shall submit any changes requested to be performed by the Contractor to the City. The City shall submit this to the Contractor; obtain a price from the Contractor to perform the work, and notify Zayo of this price. Zayo shall then have 24 hours from the time it receives the price from the City, within which to respond. If Zayo chooses not to accept the Contractor's price, then this work shall only be performed by Zayo according to a mutually agreed upon schedule with the Contractor so as not to cause delay to the Contractor. 6. INDEMNIFICATION; LIENS AND ENCUMBRANCES. Each party shall defend, indemnify and hold the other party, their officers, officials, employees and agents harmless from any and all claims, injuries, damages, losses or suits including all legal costs and attorney fees, arising out of or in connection with the performance of the party's work required under this Agreement, except for injuries and damages caused by the negligence or willful misconduct of the other party. The indemnification from Zayo to the City shall include all claims, injuries, damages, losses or suits from third parties arising out of the fact that the specific portion of the trench at issue was being made available to Zayo by the contractor, except for injuries and damages caused by the negligence or willful misconduct of the City. Should a court of competent jurisdiction determine that this Agreement is subject to RCW 4.24.115, then, in the event of liability for damages arising out of bodily injury to persons JOINT TRENCH AGREEMENT—Page 4 (June 12,2017) (between City of Kent and Zayo Re:S. 228,h Street) DocuSign Envelope ID:978A135E-6F82-4825-858B-A5FE194F86C3 or damages to property caused by or resulting from the concurrent negligence of the parties, their officials, employees and agents, a party's liability hereunder shall be only to the extent of the party's negligence. The provisions of this section shall survive the expiration or termination of this Agreement. No party, directly or indirectly, shall create or impose any lien on the property of another, or on the rights or title relating thereto, or any interest therein, or in this Agreement. Each party shall promptly, at its own expense, take such action as may be necessary to duly discharge any lien created by it on the property of another. 7. INSURANCE. 7.1 The Contractor shall maintain in full force and effect at its own cost insurance of the types and in the amounts described below against claims for injuries to persons or damage to property which may arise from or in connection with the performance of the work by the contractor, its agents, representative, employees,sub consultants or subcontractors: (a) Commercial General Liability insurance with limits of no less than five million dollars ($5,000,000.00) per occurrence and five million dollars ($5,000,000.00) general aggregate. Coverage shall be at least as broad as that provided by ISO CG 00 01 1/96 or its equivalent and include severability of interests. Coverage shall include, but not be limited to: blanket contractual, Products/Completed operations/broad form property damage; explosion, collapse and underground (XCU); and employers liability. Such insurance shall name the City, its officers, officials and employees as additional insureds per ISO CG 2026 or its equivalent. There shall be a waiver of subrogation and rights of recovery against the City, its officers, officials and employees. Coverage shall apply as to claims between insureds on the policy, if applicable. Coverage may take the form of a primary layer and a secondary or umbrella layer, but the combination of layers must equal$5,000,000 at a minimum. (b) Commercial Automobile Liability insurance with minimum combined single limits of one million dollars ($1,000,000.00) each occurrence with respect to each of Contractor's owned, hired and non-owned vehicles assigned to or used in the operation of this contract in the City. The policy shall contain a severability of interests provision. (c) The insurance shall not be canceled or materially changed so as to be out of compliance with these requirements without thirty (30) days' written notice first provided to the City, via certified mail, and ten (10) days' notice for nonpayment of premium. If the insurance is canceled or materially altered so as to be out of compliance with the requirements of this subsection within the term of this contract, Contractor shall provide a replacement policy. Contractor agrees to maintain continuous uninterrupted insurance coverage, in at least the amounts required, for the duration of this contract. JOINT TRENCH AGREEMENT—Page 5 (June 12,2017) (between City of Kent and Zayo Re:S. 228r1i Street) DocuSign Envelope ID:978A135E-6F82-4825-858B-A5FE194F86C3 7.2 Deductibles/Certificate of Insurance. Any deductible of the policies shall not in any way limit Contractor's liability to the City. 7.3 Endorsements. All policies shall contain, or shall be endorsed so that: (a) The City, its officers, officials, boards, commissions, employees and agents are to be covered as, and have the rights of, additional insureds with respect to liability arising out of activities performed by, or on behalf of, Contractor under this contract; (b) Contractor's insurance coverage shall be primary insurance with respect to the City, its officers, officials, boards, commissions, employees and agents. Any insurance or self- insurance maintained by the City, its officers, officials, boards, commissions, employees and agents shall be in excess of the Contractor's insurance and shall not contribute to it; and (c) Contractor's insurance shall apply separately to each insured against whom a claim is made or lawsuit is brought, except with respect to the limits of the insurer's liability. 7.4 Acceptability of Insurers. The insurance obtained by Contractor shall be placed with insurers with a Best's rating of no less than "A VII." 7.5 Verification of Coverage. The Contractor shall furnish the City with certificates of insurance and endorsements or a copy of the page of the policy reflecting blanket additional insured status. The certificates and endorsements for each insurance policy are to be signed by a Person authorized by that insurer to bind coverage on its behalf. The certificates and endorsements for each insurance policy are to be on standard forms or such forms as are consistent with standard industry practices. 8. FRANCHISE AGREEMENT. The City and Zayo agree that as to future projects, by entering into this Agreement neither party has waived any rights it may have under the existing franchise agreement between The City and Zayo, and expressly herein reserve such rights. Notwithstanding anything in this Agreement to the contrary, Zayo's participation in the joint trench activity contemplated in this Agreement, and its very participation in this Agreement, shall in no event be construed as acceptance, affirmation or ratification of the City's construction of Zayo's obligation to underground its facilities and enter into a writing pursuant to the franchise agreement, and parties understand and agree that the terms and conditions of this Agreement shall not control any future undergrounding projects that may be required by the franchise. 9. MISCELLANEOUS. 9.1 Compliance with Laws. The parties shall comply with all federal, state and local laws, rules and regulations throughout every aspect in the performance of this Agreement. JOINT TRENCH AGREEMENT—Page 6 (June 12,2017) (between City of Kent and Zayo Re:S. 228"'Street) DocuSign Envelope ID:978A135E-6F824825-858B-A5FE194F86C3 9.2 Nonwaiver of Breach. The failure of a party to insist upon strict performance of any of the terms and rights contained herein, or to exercise any option herein conferred in one or more instances, shall not be constructed to be a waiver or relinquishment of those terms and rights and they shall remain in full force and effect 9.3 Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of Washington. If any dispute arises between the parties or between any party and the contractor under any of the provisions of this Agreement, resolution of that dispute shall be available only through the jurisdiction, venue and rules of the King County Superior Court,King County, Washington. 9.4 4ttorney's Fees. To the extent not inconsistent with RCW 39.04.240, in any claim or lawsuit for damages arising from the parties' performance of this Agreement, each party shall be responsible for payment of its own legal costs and attorney's fees incurred in defending or bringing such claim or lawsuit; however, nothing in this subsection shall limit a party's right to indemnification under Section 8 of this Agreement. 9.5 Written Notice. All communications regarding this Agreement shall be sent to the parties at the addresses listed on the signature page of this Agreement, unless otherwise notified. Any written notice shall become effective upon delivery, but in any event three(3)calendar days after the date of mailing by registered or certified mail, and shall be deemed sufficiently given if sent to the addressee at the address stated on this Agreement. 9.6 Modification. No waiver, alteration, or modification of any of the provisions of this Agreement shall be binding unless in writing and signed by a duly authorized representative of each of the affected parties. 9.7 Severability. If any one or more sections, sub-sections, or sentences of this Agreement are held to be unconstitutional or invalid, that decision shall not affect the validity of the remaining portion of this Agreement and the remainder shall remain in full force and effect. 9.8 Relationship. It is understood and agreed that no agency, employment, joint venture, co-employer or partnership is created by this Agreement. No party shall (i) have the power or authority to act for another in any manner to create obligations or debts which would be binding upon another, and; (ii) be responsible for any obligation or expense whatsoever of another. 9.9 Force Majettre. A party will not be in breach of this Agreement if unable to perform its respective obligations as a result of the occurrence of an event of"force majeure," which shall include, but not be limited to, acts of God, acts of the government of the United States or of any state or political subdivision thereof, strikes, civil riots or disturbances, fire, floods, explosions, earthquakes, wind, storms, hurricanes, lightning or other similar catastrophes JOINT TRENCH AGREEMENT—Page 7 (June 12,2017) (between City of Kent and Zayo Re:S. 228"Street) DocuSign Envelope 0:978A135E-6F82-4825-8588-A5FE194F86C3 or other causes beyond the parties' reasonable control. The scope of events of force majeure shall not extend to payment of money owed hereunder. 9.10 Entire Agreeinew. The written provisions and terms of this Agreement, together with any attached Exhibits, supersede all prior verbal statements by any representative of the City, and those statements shall not be construed as forming a part of or altering in any manner this agreement. This Agreement and any attached Exhibits contain the entire Agreement between the parties. Should any language in any Exhibit to this Agreement conflict with any language contained in this Agreement, the terms of this Agreement shall prevail. IN WITNESS ' HEREOF, the parties below have executed this Agreement. ZAYO GROUP, LLC CITY OF KENT' 1 CuSigtled by: AA& sta N, e *0"Mm"I'ttr 'j � ' eL, Print Name: Dan Sto 114 o' er 624-S-1 Print Name: J'k Lq Title: SVP F1 er so utions,1- June 28, 2017 DATE:- 7 /,-27 DATE:-.. 7Zj All-7 NOTICES TO BE SENT TO; NOTICES TO BE SENT TO: ZAYO GROUP, LLC CITY OF KENT Zavo Group City of Kent 1326 5"' Avenue, Suite 305 220 Fourth Avenue South Seattle, WA 98101 Kent, WA 98032 Attn: Scott Morrison Attn: Chad Bieren (206) 5%-7988 (Desk) (253) 856-5534 (Deskj (253) 441-0653 (Cell) (253) 856-6500 (Fax) With a copy to: APPROVED AS TO FORM: Zayo Group, LLC 1326 5"'Avenue, Suite 305 Seattle, WA 98 101 Kent Law Department Attention: Joseph Morton I'Xiyfl'Fik!UOpoi Ho',1238-2281h Street tJPR2(4.,&Sqawli Vdoin;Tmich JUT DRAFF-FINALd- JOINT TRENCH AGREEMENT—Page 8 (June 12,2017) (between Cit.v of Kent and Zqyo Re.-S. 228"'Street) DocuSign Envelope 11D:978A1i35E-6F92-4825-858B-A5,FE194F86C3 Exhibit A S. 228"' Street Joint Trench Agreement 72ND AVE. LEGEND. JOINT UTILITY TRENCH LOCATION 71: CX) JOINT TRENCH AGREEMENT S 228TH CT GRADE SEPARATION AT THE UNION PACIFIC RAILROAD EXHIBIT A f INTERURBAN TRAIL UNION PACfM RAILROAD JOINT TRENCH A(iREEMENT- Exhibit A (June 12,20117) (betiveen Cit.1,(#'Kimt and Zqyo Re:S 2281h Stl.eet) DoeuSign Envelope ID:978A135 -6F82-4825-858B-A5FE194F86C.3 Exhibit E S. 228"' Street Joint Trench Agreement KAYO C FOIE AG MArN JOINT TRENCH COST, vAVLTS AND MINOR TRENCHIES,IFORUL%,COS T . S , It�nk No C?ut�i �t��Er�scialatt�ri Uiiat �rltt I'r"ioe �tSi 7A.''k"C">«TOTAL COST 1 f Joint Trench By Linear Feat EA 5 41,786 S 4L7S6 601_1 56 Joint l.'tility'Trench f 2Ft.wide,-1 To LF S 25 S 1.400 6015 32 Crushed Su f,achi,Top Course, :'S lnclt Nfiaus Fur Trenches TOIN S 25 S 800 to C"oniiect 4 Vault's 6030 9 Saitd for Conduits Bedding,Fa°Trenches to Connect 4 Vartlts TON s 25 S 225 604 7 Permeable Ballast for Viults lniialatian TON, S 25 S 163 6080 2 Zavo-Vault Excrrvatiaii alid Lsstnll1,)ti0n(24 xX36") EA s 1,%() S 3,000 6090 743 Zavo-litstvallaitori anal Proof ng of 4 Inch Diameter C°wlditit LF S 6 S 4,458 6100 5 Non-NVoven Geowxtile Fabric For Vault Installation SY S 4 S 21 6110 205 Shorin'2 or Extra Excavation Class B SF I S 0.75 5 154 TOTAL,SCHEDULE I S 52.006 ENGINEERING& CC)1"TINGENC V COST 20qu Ftlgineering,&Coitstruation Manaaenieat S 10,401 1W.Contin2etle�' $ 5,,201 1011,o Sale Tax S 5.201 TCI'TAL ENGINERRI?rG&C;ClN TINGE`tiCY CC)ST S 20 882 T0 T.,kI.PRZ;II C'T CONS'TR 17C°74"I0N COST S 72,8t41t JOINT TRENCH AGREEMENT—Exhibit B (Jiuie 12,2017) (between City ol'Kent and.r cx y©Re:S. 2'28"Street)