HomeMy WebLinkAboutPW18-146 - Original - Zayo Group, LLC - S 228th St Separation Project Joint Trench Agreement (UPRR to 76th Ave S.) - 04/09/2018 KEOT oft
Kecords Management Document
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, p�lease contact the City Clerk's Office at 253-856-57,25.
0 Blue/Motion Sheet Attached
El Pink Sheet Attached
Vendor Name: Zayo, Group LLC
Vendor Number
Contract Number (City Clerk):
Category: Contract Agreement
...........
Sub-Category (if applicable): Choosh a-, jten-Ifr,],
Project Name: South 228 th St Grade Separation Project — Joint Utility Trench
Contract Execution Date: Date signed by Mayor Termination Date:
Contract Manager: Susainne Provendo Smith Department:-- PW: Engineering
------ -------
Contract Amount: $34,969
Approval Authority: F-1 Director M Mayor El City Council
Other Details: Joint Utflitiv Trench Agreement with Zavo is shared with Comcast
and Puget Sound Energy. Trench will be located along the north side of S 228" St,
between th—e ( R l"Fro—a—d a_n_d__76 Ave S.
................................................................ ...................._....-------
4^4 111��K K r I, Agenda Item: Consent Calendar - 8E
ENT
TO: City Council
DATE: April 3, 2018
SUBJECT: South 228th Street Grade Separation Project Joint Utility Trench
Agreements with Comcast, Zayo, and Puget Sound Energy - Authorize
MOTION: Authorize the Mayor to sign Joint Utility Trench Agreements with
Comcast, Zayo and Puget Sound Energy for the South 228th Street UPRR
Grade Separation Project, subject to final terms and conditions acceptable
to the City Attorney and Public Works Director.
SUMMARY: Century Link, Comcast, Zayo, and Puget Sound Energy (PSE) Gas and
Power will need to relocate their facilities to accommodate construction of the South
228th Street Union Pacific Railroad (UPRR) Grade Separation project. Currently, these
facilities lie underground and are in conflict with future improvements along South
228th Street on the east side of the UPRR tracks. Comcast, Za!yo and PSE Gas will
participate in a joint utility trench that the City's contractor will construct as part of
the overall project.
Constructing these improvements as part of a City public works contract ensures the
timely relocation of utilities and minimizes utility conflicts during construction of other
improvements. This arrangement reduces the risk of change orders due to utilities,
which can be significant. Each utility will pay its proportionate share of costs to
complete the relocation of its facilities.
Last year many of these utility companies relocated their facilities on the west side of
the UPRR tracks from above ground poles to underground. They participated in a joint
utility trench that the City's contractor constructed on the west side of the tracks.
EXHIBITS: Joint Utility Trench Agreement with AT&T
RECOMMENDED BY: Public Works Committee
YEA: Troutner, Fincher, Higgins NAY:
BUDGET IMPACT: All costs will be reimbursed by the utilities to the City.
STRATEGIC PLAN GOAL(S):
X Authenti'c Connectivity and Communication - Uniting people to people, to places, and to their government through superior
infrastructure, enriched community interactions, and responsive, trusting relationships.
Z Sustainable Funding - Maximizing long-term financial success through responsible fiscal oversight, economic growth, and
community partnerships.
JOINT TRENCH AGREEMENT
Between the City of Kent and Zayo
for the S.228«St. GRADE SEPARATION AT THE UNION PACIFIC RAILROAD—
(Union Pacific Railroad to 76th Ave S)
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. 2281h 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. 228`h Street, between the Union Pacific Railroad and 76th Ave S as referenced in the
plan sheet attached as Exhibit A and incorporated by this reference.
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
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,
JOINT TRENCH AGREEMENT—Page 1 of 10 (January 25,2018)
(between City of Kent and Zayo Re:S 229"Street)
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.
3.6 Surveys. The City shall provide the survey for the location of the Trench and
vaults.
JOINT TRENCH AGREEMENT—Page 2 of 10 (January 25,2018)
(between City of Kent and Zayo Re:S. 2284 Street)
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.
4.8 Defective or Unauthorized Work.
JOINT TRENCH AGREEMENT—Page 3 of 10 (January 25,2018)
(between City of Kent and Zayo Re:S. 228'h Street)
(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
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
JOINT TRENCH AGREEMENT—Page 4 of 10 (January 25,2018)
(between City of Kent and Zayo Re:S. 2284 Street)
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.
7.2 Deductibles/Certificate of Insurance. Any deductible of the policies shall not in
any way limit Contractor's liability to the City.
JOINT TRENCH AGREEMENT—Page 5 of 10 (January 25,2018)
(between City of Kent and Zayo Re:S. 228`h Street)
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.
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
JOINT TRENCH AGREEMENT—Page 6 of 10 (January 25,2018)
(between City of Kent and Zayo Re:S. 228`A Street)
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 Attorneys 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 Majeure. 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
or other causes beyond the parties' reasonable control. The scope of events of force majeure
shall not extend to payment of money owed hereunder.
JOINT TRENCH AGREEMENT—Page 7 of 10 (January 25,2018)
(between City of Kent and Zayo Re:S. 228'h Street)
9.10 Entire Agreement, 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 fbiTning 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 WHEREOF, the parties below have executed this Agreement.
ZAYO GROUP, LLC CITY OF KENT
Pint Name: d
A C-C-L44"Ir, I,- At Print Name:itle 4",vflnr�-rj.AN e-�' Title: rY)Ck)�.DATE: DATE:- )J[i
N
OTICES TO,BE SENT TO: NOTICES TO BE SENT TO:
ZAYO GROUP, LLC CITY OF KENT
Zayo Group City of Kent
1326 5'h Avenue, Suite 305 220 Fourth Avenue South
Seattle, WA 98 101 Kent, WA 98032
Attn: Scott Morrison Attn: Chad Bieren
(206) 596-7988 (Desk) (253) 856-5534 (DesU
(253) 441-0653 (Cell) 2.53) 856-6500 Fax
With a copy to: APPROVED AS TO FORM:
Zayo Group, LLC
1326 5'h Avenue, Suite 305
Seattle, WA 98101 Kent Law Department
Attention: Joseph Morton
I cstOpcn F1csU238-2281h Street U P RR G,adc ScparationVorni I rcncli Agree mentsdoini I rcneh A grecinw-Zayo-S I'S West JUI DRAFF-VINA L do c
JOINT TRENC 14 AGREEMENT-Page 8 of 10 (January 25,2018)
(between City off Kent and Zayo Re:S. 228'h Street)
Exhibit A
S. 228`h Street Joint Trench Agreement
I
76TH AVE S 4TH AVE N
SOUND HOLDING CO.LLC(OWNER) }`
AIR CARGO(OCCUPANT) J HRP PROPERTIES(OWNER);22645
A
TAX 0 3613090-0040 7509 S.226th ST.
TAX ID 383090-0230
JALAU KLAVANO PROPERTIES LLC(OVIft1ER)
ALEXANDER EXHIBITS(OCCUPANT)
7440 S.228th ST, j
TAX ID 383090-0050 }� 6TH AVE N
? CV
N [
_. ,,..,.. ,............
i
b
i ' {
226th ST.KENT LLC(OWNER) IP EAT FIVE LLC(OWNER}
PACIFIC METALS(OCCUPANT) i
7416 S.22M ST, + INTERNATIONAL PAPER
TAX ID 363090-0060 (OCCUPANT)
1225 6th AVE.N.
TAX ID 303090.0065
i
t
UNION PACIFIC RAILROAD--
INTERURBAN TRAIL
S. 228th ST. GRADE SEPARATION
AT THE UNION PACIFIC RAILROAD
KENT EAST JOINT UTILITY TRENCH
..........
CITY OF KENT "r.- e'"At'Ir
ENGINEERING DEPANTM ENT ;� ,r_ INTERURBAN TRAIL TO 76TH AVE 5
JOINT TRENCH AGREEMENT—Exhibit A (January 25,2018)
(between City of Kent and Zayo Re:S. 228'h Street)
Exhibit B
S, 22 81h Street Joint Trench Agreement
,7AVO UOS-FFOW (SHAIIING MAIN JOIN F TIZENCH ('O,.Sl',, VAUL'I'S. AND MINURTRENCIIES
/, r, r r r / /, r ,,
FORVAULIS C"ONNEC"'FlONS)
ZAYO TOTAL COST
I I Joint TrenchByLinear FM EA S 22,509 $ 2 2,5 09
6038 7 Foundation Material,Class I andll TOOT s 35 S 228
6100 630 IZayo-Installaiton and Proofing of 4 Incli Diameter Condift LF $ 6 S 3,780
6155 310 iShoring orExtra Excavation Class B SF S 0.75 S 383
TOTAL SCHEDULE I S 26,899
ENGINEERING&CONTINGENCY COST
120?AoEnsineerinz&Cons tiEtim Management S 5,380
s 2,690
ITOTALENGINEERING&CONTINGENCY COST S 8,070
!TOTAL PROJECT CONSTRUCTION COST s 34;569
JOINT TRENCH AGREEMENT-Exhibit B (January 25,2018)
(between City qf"Kent and 7qvo Re:S. 228 h Street)
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