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HomeMy WebLinkAboutCity Council Committees - Public Works Committee - 03/19/2018 Unless otherwise noted, the Public Committee meets at 4 p.m. on the first and third Monday of each month in Kent City Hall, Council Chambers East, 220 Fourth Ave S, Kent, WA 98032. For additional information, contact Cheryl Viseth via email at cviseth@KentWA.gov, or 253-856-5504. Any person requiring a disability accommodation should contact the City Clerk’s Office at 253-856-5725 in advance. For TDD relay service call Washington Telecommunications Relay Service at 1-800-833-6388. Public Works Committee Agenda Councilmembers: Brenda FincherToni TroutnerDennis Higgins, Chair Director: Timothy J. LaPorte, P.E. March 19, 2018 4:00 p.m. Item Description Action Speaker Time Page 1. Call to Order -- Chair 01 -- 2. Roll Call -- Chair 01 -- 3. Changes to the Agenda -- Chair 01 -- 4. March 5, 2018 Minutes - Approval YES None 03 03 5. S 228th St UPRR Grade Separation Project Reimbursement Agreement with AT&T - Recommend YES Mark Madfai 05 07 6. S 228th St UPRR Grade Separation Project Joint Utility Trench Agreements with Comcast, Zayo and Puget Sound Energy - Recommend YES Mark Madfai 05 17 7. S 228th St UPRR Grade Separation Project Facility Relocation Agreement with PSE – Recommend YES Mark Madfai 05 49 8. Contract with Gray and Osborne for the Cambridge Reservoir Project - Recommend YES Paul Kuehne 05 61 9. Upper Mill Creek Dam Consultant Services Contract Amendment with AECOM – Recommend YES Alex Murillo 10 79 10. Info Only/Preliminary Flood Map Open House March 21, 2018 NO Alex Murillo 15 81 11. Info Only/132nd Ave SE Phase 1 - Update NO Drew Holcomb 10 85 12. Info Only/S 228th Corridor UPRR Overpass Right- of-Way Update No Tim LaPorte 05 87 13. Info Only/Quiet Zone – Update NO Chad Bieren 10 89 1 This page intentionally left blank 2 PUBLIC WORKS COMMITTEE March 5, 2018 Minutes City of Kent, WA Summary Minutes Date: March 5, 2018 Time: 4:00 p.m. Place: Chambers East 1. Call to Order: The meeting was called to order at 4:02 p.m. by Committee member Higgins. 2. Roll Call: Dennis Higgins, Committee Chair and Committee members Brenda Fincher and Toni Troutner were present. Absent: None 3. Changes to the Agenda: No changes 4. Approval of Minutes, Dated February 26 2017 Committee member Troutner MOVED to approve the Minutes of February 26, 2017. The motion was SECONDED by Committee member Fincher. The motion PASSED 3-0. 5. Water Facility Agreement - Kent, Covington Water District and Cedar River Sewer and Water District – Recommend Sean Bauer, Water System Manager noted where the Clark Springs watershed is located and that the City entered into an agreement with Covington Water District and Cedar River Water and Sewer District (‘Districts’) in 1992 that allowed the Districts to own and operate a water transmission line through the Clark Spring Watershed located under Kent Kangley Road. The agreement would renew the original agreement with a fifteen (15) year term. Bauer stated that with the proposed agreement, the Districts would continue to operate and maintain their existing infrastructure. In addition, the Districts are agreeing to protect Kent’s Clark Springs Watershed and source aquifer recharge area from any impacts of their operations. Committee member Fincher MOVED to recommend Council authorize the Mayor to sign a Water Facility Agreement between the City of Kent, Covington Water District and Cedar River Sewer & Water District, subject to final terms and conditions acceptable to the City Attorney and Public Works Director. The motion was SECONDED by Committee member Troutner. The motion PASSED 3-0. 6. Contract with Jacobs Engineering Group for the Green River Natural Resources Area South Pump Station – Recommend Alex Murillo, Environmental Supervisor noted the project would collect stormwater from existing channels that drain the area near Hogan Park and pump it to the Green River. An existing outfall is located near the Public Works Operations facility and would be utilized as the discharge point. 3 This consultant services agreement with Jacobs Engineering Group, Inc. includes completion of design plans and specifications including geotechnical engineering and locating existing underground utilities. Committee member Troutner MOVED to recommend Council authorize the Mayor to sign a Consultant Services Agreement with Jacobs Engineering Group, Inc. in an amount not to exceed $360,800.00 for engineering services on the Green River Natural Resources Area South Stormwater Pump Station, subject to final terms and conditions acceptable to the City Attorney and Public Works Director. The motion was SECONDED by Committee member Fincher. The motion PASSED 3-0. 7. Traffic Signal Warehouse Lease Agreement - Authorize Kelly Peterson, Transportation Manager noted that the Transportation Division has leased warehouse space for the traffic signal technicians at the Plemmons Industrial Park on Central Avenue since 2006. The current lease expires at the end of May 2018. The traffic signal technicians use the warehouse space to store equipment and parts for the traffic signal system and test and repair controllers and other electronic devices. There is no room in existing city-owned facilities to house these operations. The new lease term would be from June 1, 2018 through May 31, 2021. Committee member Fincher MOVED to authorize the Mayor to sign all necessary documents to lease warehouse space for 36 months at the Plemmons Industrial Park for traffic signal system storage and workspace, subject to final terms and conditions acceptable to the City Attorney and Public Works Director. The motion was SECONDED by Committee member Troutner. The motion PASSED 3-0. 8. Information Only/Environmental Stewardship at Millennium Elementary, Spring Recycling Event and Curbside Cleanup Tony Donati, Assistant Conservation Specialist introduced Hannah and Eli, two 2nd graders from Millennium Elementary school and their teacher Maylene Sui. They shared their schools mission to increase Environmental Stewardship. Donati noted that Millennium Elementary School held a school-wide assembly on February 16, organized by 2nd grade teacher Maylene Siu and her students. Students learned about recycling, with everyone pledging to recycle at home and at school. Participants received one of our popular recycling bags to make the job easy. Students also learned the importance of putting litter in the can, instead of on the ground, with a fun song performed by the 2nd graders. Donati noted that staff will use the lessons learned at Millennium Elementary to inspire other schools in our area to take on recycling and other stewardship efforts. The messages students learn at school will likely make it home, to increase recycling there as well. Spring Recycling Event - Saturday, March 17, 9 am-3 pm at Hogan Park at Russell Road - We’ll be accepting appliances, tires, bulky yard debris, Styrofoam & reusable household goods. The event will be funded by the King County Waste Reduction and Recycling Grant and the Local Hazardous Waste Management Program Grant. Spring Curbside Cleanup – April 2 – 13, 2018 Residents can place up to ten, 32-gallon units of extra garbage and yard waste at the curb at no additional charge, but only on their normal yard waste collection day. 4 9. 2018 Additional Road Repair Work Bill Thomas, Street and Vegetation Manager gave an informative PowerPoint presentation on the current state of our roadways and the need for grind and inlay repairs at various locations throughout Kent. 10. Information Only/Sanitary Sewer Update Rob Lovell, Sewer Field Supervisor gave an informative PowerPoint presentation showing some of the successes and challenges the Sewer Department experiences while operating and maintaining Kent’s 216 miles of sanitary sewer pipes and 7 pump stations. 11. Information Only/S. 228th Street Right-of-Way Update Tim LaPorte, Public Works Director, noted that since last week’s update there are only 3 properties from which we still need to obtain right of way. LaPorte noted that until all properties have signed, we are unable to bid the project. 12. Information Only/Quiet Zone Update Chad Bieren, Deputy Public Works Director / City Engineer said that he is slated to talk with the Utilities and Transportation Commission (UTC) on Thursday regarding the need for LED lights and what our stance is. Adjournment: At 5:45 p.m., Committee Chair Higgins declared the meeting adjourned. Cheryl Viseth, Committee Secretary 5 This page intentionally left blank 6 PUBLIC WORKS DEPARTMENT Timothy J. LaPorte, Director Phone: 253-856-5500 Fax: 253-856-6500 220 Fourth Avenue South Kent, WA 98032 DATE: March 19, 2018 TO: Public Works Committee FROM: Mark Madfai P.E., Design Engineering Supervisor SUBJECT: South 228th Street UPRR Grade Separation Project Reimbursement Agreement with AT&T - Recommend SUMMARY: AT&T has temporarily relocated its facilities to accommodate the construction of the 228th Street overpass project. They have requested the City install new conduit for future placement of their facilities in the new overpass and bridge. This reimbursment agreement will allow the City to be reimbursed for the design and construction costs to install the new conduit with the City’s project. EXHIBITS: Reimbursement Agreement with AT&T BUDGET IMPACT: All costs associated with AT&T will be reimbursed to the City, by AT&T. STRATEGIC PLAN GOAL(S): ☐ Innovative Government - Empowering responsible citizen engagement, providing outstanding customer service, leveraging technologies, and fostering new opportunities and industries that benefit our community. ☒ Authentic Connectivity and Communication - Uniting people to people, to places, and to their government through superior infrastructure, enriched community interactions, and responsive, trusting relationships. ☐ Thriving Neighborhoods and Urban Centers - Creating vibrant urban centers, welcoming neighborhoods, and green spaces for healthy growth and cultural celebration. ☐ Sustainable Funding - Maximizing long-term financial success through responsible fiscal oversight, economic growth, and community partnerships. ☐ Inclusive Community - Embracing the power of our diversity by encouraging community participation and creating a strong sense of belonging. MOTION: Move to recommend Council authorize the Mayor to sign a Reimbursement Agreement with AT&T for the South 228th Street UPRR Grade Separation Project, subject to final terms and conditions acceptable to the City Attorney and Public Works Director. 7 This page intentionally left blank 8 REIMBURSEMENT AGREEMENT This Reimbursement Agreement ("Agreement") is between the City of Kent, a washington municipal corporation ('oCify"), and AT&T Corp., a New york corporation ("AT&T"). RECITALS A. "Project"). The City is making right-of-way improvements to S. 228th Street (the B. The Project requires AT&T to relocate its authorized undelground facilities that are currently in conflict with this project, pursuant to RCW 35.99.060. C. AT&T has requested that its facilities be relocated under the sidewalk and across the bridge the City plans to build as part of the Project and has agreed to reimburse the city for the design and construction costs associated with the New Facilities. AGREEMf,NT The City and AT&T therefore 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 grade separation between the UPRR tracks and S. 228th Street which will include new conduit installation under the sidewalk and across the bridge for AT&T ("New Facilities"). 2. CONTRACTOR REQUIREMENTS The independent contractor hired by the City to perform this work is refened to as "the Contractot' in this Agreement. The Contractor, pursuant to a contract with the City, will be responsible for constructing the New Facilities. The City represents that any such contract shall further require that the Contractor's work be performed in a good and workmanlike manner consistent with industry standards and 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, supplemented or replaced from time to time, including but not limited to those pertaining to protection and separation ofconductors buried in earth. JOINT TRENCH AGREEMENT-Page I of8 (between City of Kent ctnd A'I'&7' Ile: S. 228tt' Str.eet) (December 6,2017) 9 3.RESPONSIBILITY OF THE PARTIES 3.1 AT&T Coordination. (a) The Contractor will provide, install and proof conduit for AT&T on the bridge and sidewalk according to the contract plans. AT&T shall maintain continued coordination with the Contractor regarding the installation of the New Facilities. (b) For any work that AT&T performs independently fi'om the Contractor's work on the Relocated Facilities, AT&T shall coordinate closely with the City and the Contractor to ensure this work will not conflict with the Contractor's work on the Project. AT&T shall pay any claims for additional compensation made by the Contractor resulting from conflicts with AT&T's independent work in accordance with Section 4.3 of this Agreement. 3.2 Title to Facilities. All rights, title and interest in the facilities and associated equipment shall at all times remain with AT&T. 4. REIMBURSEMENT AND PAYMENT 4.1 Design and Construction Costs. AT&T shall reimburse the City for all final and actual costs incurred by the City to design and construct the New Facilities on the new bridge and sidewalk ("Actual Design and Construction Costs"). 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 all final and actual design and construction costs. 4.2 Additional Expenses. AT&T agrees to pay additional expenses incurred due to all AT&T's approved change requests for any reason. 4.3 Claims by Contractor. AT&T agrees to pay the entire cost of any claims made by the Contractor for damages that are proximately caused by AT&T. These claims may include any conflicts between the Contractor and AT&T or any of its contractors. 4.4 Invoice. AT&T shall pay the City within 45 days of submittal by the City of an itemized billing for the Actual Construction Costs and any additional change request expenses as set forth in this Section 4. 4.5 Defective or Unauthorized llork. (a) Per the terms of the agreement between the City and Contractor, AT&T 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 AT&T's approval. JOINT TRENCH AGREEMENT- Page 2 of 8 (belween City of Kent antl AT &7' I?e: S. 22{' Sueet) (December 6,2017) 10 (b) Before withholding payment to the City, AT&T 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. 4.6 Final Payment/llaiver 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 authorized and unsettled at the time request for final payment is made. 5. CHANGES. AT&T 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 AT&T of this price. AT&T shall then have 24 hours from the time it receives the price from the City, within which to respond. 6. INDEMNIFICATION; LIENS AND ENCUMBRANCES. Each party shall defend, indemnifu and hold the other party, its 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 AT&T to the City shall include all claims, injuries, damages, losses or suits from third parlies arising out of the fact that the specific portion of the trench at issue was being made available to AT&T by the contractor, except for injuries and damages caused by the negligence or willful misconduct of the City. Should a couft of competent jurisdiction determine that this Agreement is subject to RrCW 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, its officials, employees and agents, a parfy'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 ofanother. JOINT TRENCH AGREEMENT-Page 3 of 8 (between City of Kent and A7'&T I?e: S, 228tt' Street) (December 6,2017) 11 7. INSURANCE. 7.l 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 propefty 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 occuffence 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 l/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 undetground (XCU); and employers liability. Such insurance shall name the City, its officers, officials and employees and AT&T 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 and AT&T. Coverage shall apply as to claims between insureds on the policy, if applicable. Coverage may take the form of a primary layer and a secondaty or umbrella layer, but the combination of layers must equal S5,000,000 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 thifty (30) days'wriften 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. 7.3 Endorsements. All policies shall contain, or shall be endorsed so that: (a) The City, its officers, officials, boards, commissions, employees and agents and AT&T 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 and AT&T. Any insurance or self-insurance maintained by AT&T or 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 JOINT TRENCH AGREEMENT-Page 4 of 8 (between City of Kent an(t A7'&1' Ile: S. 228il' Str.eet) (December 6,2017) 12 (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. MISCELLANEOUS. 8.1 Compliance with Lows. The parties shall comply with all federal, state and local laws, rules and regulations throughout every aspect in the performance of this Agreement. 8.2 Nornvaiver 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 8.3 Governing Lau,. 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. 8.4 Attorney'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. 8.5 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. 8.6 Modification. No waiver, alteration, or modificatioq 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. JOINT TRENCH AGREEMENT- Page 5 of 8 (between City o.f Kent and A7'&7' Ile: S. 228tt' Slreet) (December 6,2017) 13 8.7 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. 8.8 Relationship. It is understood and agreed that no agency, employment, joint venture, co-employer or paftnership 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. 8.9 Force Majeure. A party will not be in breach of this Agreement if unable to perform its respective obligations as a result of the occunence of an event of o'force majeure," which shall include, but not be limited to, acts of God, acts of the govemment 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 ofevents of force majeure shall not extend to payment of money owed hereunder. 8.10 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 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 WHEREOF, the parties below have executed this Agreement.AT&T CITY OF KENT //;,1 tw.*p,.*- Print Name: { lvrn $ llie.hqrf .an Titl DA NOTICES TO BE SENT TO: AT&T AT&T 3450 Riverwood Parkway SE, Rm. 162 Atlanta, GA 30339 Print Name: Title: DATE:- NOTICES TO BE SENT TO: CITY OF KENT City of Kent 220 Fourth Avenue South Kent, WA 98032 Attn: Chad Bieren (253) 856-s534 (Desk) (253) 856-6500 (Fax) e: JOINT TRENCH AGREEMENT-Page 6 of8 (between City of Kent and AT&7' Ile : S. 228tt' Street) (December 6,2017) 14 With a oopy to: AT&T tlz/+l WillowsRdNE, Suite 130 Redmond, WA 98052 (42s)896-9830 APPROVED AS TO FORM: Kent Law Deparfrnent UA]* JOINT TRENCH AGREEMENT-Page 7 of8 (between City of Kent and AT&T Re: S. 22dh Steeg @ecember 6,2017) 15 Exhibit A AT &T 2'' CONDTIIT PIPEI22STH GRADE SEPERATION CONDUIT 2 iuch Diaureter l5oucluit $ CONDUIT s 90.000 l07o Engineerilg & Corrstnrctiou Mauageureut $9.000 12% Conthgency $r0.800 sl lLF--l S le.soo I fS rog"80o l JOINT TRENCH AGREEMENT-Page 8 of 8 (between City of Kent and AT&T Re: S. 22dt' Street) (December 6,2017) 16 PUBLIC WORKS DEPARTMENT Timothy J. LaPorte, Director Phone: 253-856-5500 Fax: 253-856-6500 220 Fourth Avenue South Kent, WA 98032 DATE: March 19, 2018 TO: Public Works Committee FROM: Mark Madfai P.E., Design Engineering Supervisor SUBJECT: South 228th Street UPRR Grade Separation Project Joint Utility Trench Agreements with Comcast, Zayo and Puget Sound Energy - Recommend 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 UP railroad tracks. Comcast, Zayo 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 UP railroad 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 Agreements BUDGET IMPACT: All costs will be reimbursed by the utilities to the City. STRATEGIC PLAN GOAL(S): ☐ Innovative Government - Empowering responsible citizen engagement, providing outstanding customer service, leveraging technologies, and fostering new opportunities and industries that benefit our community. ☒ Authentic Connectivity and Communication - Uniting people to people, to places, and to their government through superior infrastructure, enriched community interactions, and responsive, trusting relationships. ☐ Thriving Neighborhoods and Urban Centers - Creating vibrant urban centers, welcoming neighborhoods, and green spaces for healthy growth and cultural celebration. ☒ Sustainable Funding - Maximizing long-term financial success through responsible fiscal oversight, economic growth, and community partnerships. ☐ Inclusive Community - Embracing the power of our diversity by encouraging community participation and creating a strong sense of belonging. MOTION: Move to recommend Council 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. 17 This page intentionally left blank 18 JOINT TRENCH AGREEMENT Between the City of Kent and Comcast fOT thc S.228th St. GRADE SEPARATION AT THE UNION PACIFIC RAILROAD_ (Union Pacific Railroad to 72d Ave S) THIS AGREEMENT, is entered into between the City of Kent, a Washington municipal corporation ("City"), and Comcast of Washington, Inc., a Washington corporation ("Comcast"). RECITALS WHEREAS, the City is making right-of-way improvements to S. 228th Sfeet, and WHEREAS, it is the City's belief that pursuant to local ordinance and the franchise agreement between the City and Comcast dated May 4, 1993 and the Franchise Clarification Agreement dated May 5,2004 and under State law, these right-of-way improvements require Comcast to relocate their facilities that are currently in conflict with this project, and WHEREAS, relocation requires trenching within the right-of-way and the parties recognize the efficiencies of entering into an agreement whereby one trench will be dug for all of the parties to 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 which shall include Comcast, Zayo, and PSE gas facilities (the "Trench"). This joint utility trench will be placed along the north side of S. 228th Street, between the Union Pacific Railroad and 72"d Ave S. 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, will be responsible for constructing the trench and installing Comcast, Zayo, and PSE gas facilities; accommodating and coordinating the installation of PSE facilities; installing the bedding material, backfilling and compacting the Trench; and performing any restoration required by the City. The City represents that any such contract shall further require that the Contractor's work be performed in a good and workmanlike manner consistent with industry standards and 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 JOINT TRENCH AGREEMENT- Page I of 10 (between City of Kent and Comcast Re: S. 228tt' Street) (January 16,2018) 19 may be amended, supplemented or replaced from time to time, including but not limited to those pertaining to protection and separation ofconductors buried in earth. 3. RESPONSIBILITY OF THE PARTIES 3.1 Drawings. Comcast shall provide engineering drawings, specifications, construction standards, estimated material quantities, and cost estimates to the City for the underground relocation of Comcast'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. Comcast 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. Comcast shall schedule all deliveries in a timely manner as outlined in Section 3.4, so as not to delay the Contractor. 3.3 Trffic Control. The Contractor shall perform all traffic control associated with installation of facilities within the Trench. Comcast shall be responsible for providing traffic control during installation of facilities not located within the Trench. Comcast shall submit a general traffic control plan for these installations. 3.4 Comcost Coordination. (a) The Contractor will install Comcast's conduit in the Trench and in the street crossings. The Contractor will excavate for and place Comcast vaults in the Trench including bedding and backfill. Comcast shall maintain continued coordination with the Contractor regarding the installation of Comcast's facilities and shall coordinate closely with the Contractor to provide all necessary materials on-site in a timely manner; provided that Contractor shall provide Comcast with at least ten (10) days prior notification for material delivery by Comcast. (b) For any work that Comcast performs independently from the Contractor's work in the Trench, Comcast shall coordinate closely with the City and the Contractor to ensure this work will not conflict with the Contractor's work in the Trench. Comcast shall pay any claims for additional compensation made by the Contractor resulting from conflicts with Comcast's independent work in accordance with Section 4.5 of this Agreement. 3.5 Removal of Affected Facilities. Parties acknowledge and agree that Comcast 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 l0 (between City of Kent and Comcast Re: S. 228tt' Stree) (January 16,2018) 20 3.7 Title to Facilities. All rights, title and interest in the facilities and associated equipment shall at all times remain with Comcast. 4. COMPENSATION 4.1 Trench costs. Comcast 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. Comcast shall pay a proportionate share of costs to provide survey for vault locations and elevations and any other survey that may be required to locate and place Comcast facilities. These costs shall be based on a percentage of the construction costs. 4.3 Trffic Control. Comcast shall pay a proportionate share of traffic control costs related to the construction of the Trench where Comcast facilities are included. The proportionate share will be based on trench usage as shown in Exhibit B. Comcast shall pay for all traffic control during the installation of Comcast facilities, not associated with the Trench. 4,4 Additional Expenses. Comcast agrees to pay its proportionate share of additional .expenses incurred due to all Comcast's approved change requests requiring additional trench depth or width and for unforeseen conditions, including but not limited to dewatering for ground water. Comcast is not obligated to pay for any share of additional expenses incurred due solely to approved change requests from other private utilities and/or the City. 4.5 Claims by Contractor. Comcast agrees to pay the entire cost of any claims made by the Contractor that are proximately caused by Comcast. These claims may include delays caused by the installation of Comcast facilities, delays caused by Comcast providing materials, or any other conflicts between the Contractor and Comcast's contractor. 4.6 Vaults. Comcast agrees to pay for the excavation, site preparation, and installation for their vaults, including bedding and backfill, separately and in addition to any survey costs and Trench costs within this Section 4. These additional costs shall be preliminarily determined from the bid price accepted by the City. The cost to excavate for and install Comcast's vaults will be finalized after completion of construction to account for actual construction costs. 4.7 Invoice. Comcast shall pay the City within sixty (60) days of submittal by the City of an itemized billing for Comcast's proportionate share of all actual, identified expenses incurred by the City or the Contractor in constructing ttre Trench as set forth in this Section 4. 4.8 Defective or Unauthorized Work. JOINT TRENCH AGREEMENT- Page 3 of l0 (between City of Kent and Comcast Re: S. 228tt' Street) (January 16,2018) 21 (a) Comcast 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 fumished without Comcast's approval. (b) Before withholding payment to the City, Comcast 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, Comcast 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. Comcast shall submit any changes requested to be performed by the City's Contractor to the City. The City shall submit this to the Contractor; obtain a price from the Contractor to perform the work, and notify Comcast of this price. Comcast shall then have 24 hours from the time it receives the price from the City, within which to respond. If Comcast chooses not to accept the Contractor's price then this work shall only be performed by Comcast 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, contractors, subcontractors, representatives 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. 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 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 JOINT TRENCH AGREEMENT- Page 4 of 10 (betvveen City of Kent and Comcast Re: S. 228th Street) (January 16,2018) 22 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 City's 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) Workers' Compensation insurance with statutory limits as required in the state(s) of operation; and providing coverage for any employee in connection with this Agreement, even if not required by statute. Employer's Liability or "Stop Gap" insurance with limits of not less than $1,000,000 each accident. (d) The insurance shall not be canceled or materially changed so as to be out of compliance with these requirements without thirly (30) days' written notice first provided to the City, via certified mail, and ten (10) days'notice for nonpayrnent 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 unintemrpted insurance coverage, in at least the amounts required, for the duration of this contract. 7 .2 Deductibles / Certfficate 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 (benveen City of Kent and Comcast Re: S. 228tt' Street) (January 16,2018) 23 7.3 Endorsemenls. 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. F'RANCHISE AGREEMENT The City and Comcast 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 Comcast, and the City and Comcast expressly herein reserve such rights. Notwithstanding anything in this Agreement to the contrary, Comcast'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 Comcast's obligation to underground their 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 be considered as a basis for future undergrounding projects that may be franchise-required. 9. MISCELLANEOUS 9.I Compliance with Laws. The parties shall comply with all federal, state and local laws, rules and regulations throughout every aspect in the perforrnance of this Agreement. JOINT TRENCH AGREEMENT- Page 6 of 10 (benueen City of Kent and Comcast Re: S. 228th Street) (January 16,2018) 24 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 befween 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 Attorney'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 payrnent of its own legal costs and attomey's fees incurred in defending or bringing such claim or lawsuiq 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 Modificotion. 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 ofeach ofthe 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 hereto 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. Parties shall not be deemed to be in breach of this Agreement if unable to perform their respective obligations hereunder 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, flre, 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 (between City of Kent and Comcast Re: S. 228tt' Street) (January 16,2018) 25 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 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 WHEREOF, the parties below have executed this Agreement. COMCAST CITY OF KENT Print Name:Print Name: Title llP l3inn nr ? n1fln 2-lb-N DATE NOTICES TO BE SENT TO: Comcast Comcast of Washineton. Inc. 1525 75th St Sw Everett. WA 98203 Attn: Jerry Steele (253\ 288-7432 (Desk) Q06\391-1763 (Cell) With a copy to: Comcast 1701 JFK Boulevard Philadelphia, PA 19103 Attention: General Counsel JOINT TRENCH AGREEMENT Page 8 of 10 (between City of Kent and Comcast Re: S. 228tt' Street) NOTICES TO BE SENT TO: CITY OF KENT Citv of Kent 220hurthAvenue South Kent. WA 98032 Attn: Tim LaPorte (253) 856-5534 (Desk) (253) 856-6500 (Fax) APPROVED AS TO FORM: Kent Law Department (January 16,2018) 26 Exhibit A S. 228th Street East Joint Trench Agreement 76TH AVF S 4THAVE N -1---=- SOUNU I IULDI\G CO, LI U iOU/NLH) AIf] CARGO iOCCUPAN I) ?2645 76th AVL, S. fnx lD .i$3{l$n+1r!4t-: HNF PNOPEBTI'$ {OWNERI: ?509 S. r?B!t, ST. : TAX tn 38trlB0{23rr t . .,t IALAJ (LAVAUO PR{iPERTIES L,C IO'{d€RI ALEXANOEF EXH JBI-S iOCCJPANT} i I I t = F ! 'I 7'1,10 5. 2?8:h ST, TAX lD 383090+C50 i Fa IF6 C.lc! (./) 6IH AVE N 2?8rtl ST, I.(FNT LLtl {Ot!NERi PACI FIC \IETALS {OCCUPAIiT) 74r{i s. ?28tn sT, TAX l0 383090-Cn80 lP LAI I lVr: LLC {CtrvNl:R} Ir,{ I Ll{r\A r IONAL FTATLR (occuPAhrl 1?25 6rh AVE. f{, IAX la 383e9fi-006ir _- --- uNlcN PAclFlc RAILRoAD ---% INTERURBAN TRAIL G (]ITY OF' I(ENT EN6IAEETINc I,ETAITHEts| 5. 228+h 5T, GRADE SEPARATION AT THE UNION PACIFIC RAILROAD EAST JOINT UTILITY TRENCH iAE 'i, IHTERURBAN TRAIL IO 76TH AVE 5 E'Hl,r A JOINT TRENCH AGREEMENT- Page 9 of 10 (between City of Kent and Comcast Re: S. 228tt' StreeQ (January 16,2018) 27 1 EXHIBIT B PROPORTIONATE SHARES COMCAST COST FOR: (SHARING MAI[{ JOINT TRENCH COST, VAUI-TS, AND MINOR TRENCHES FOR VAULTS CONNECTTONS) ASSUMED 6OLF TRENCH FOR EACH VAULT CONNECTION. ASSUMED THERE ARE 4 VAULTS WITH SAME SIZE AND PRICE IN THE WEST JOINT TRENCH. ItemNo Quan.Item Description Unit Unit Price Item Amount COMCAST TOTAL COST I Joint Trench By Linear Foot EA $ 45,018 $ 4i.018 6014 240 Joint Utility Trench (2.0 Ft. Wide, 3 Ft. Min. Cover)LF $ 60 S 14.400 6015 91 Crushed Surfacing Top Course, 5/8 Inch Minus Fol Trenches to Connect 4 Vaults and vaults Installation.TON $ 35 S .t. I L\-l 6036 74 Sand for Conduits Beddine For Trenches to Connect 4 Vaults TON $ 35 s 2,587 6038 20 Foundation Material. Class I and II TON $ 35 S (r83 605 l 4 Corncast - Vault Excavation and Installation (264-T A)EA $ 3,000 s 12,000 6056*r.722 Installaiton and Proofins of 4 Inch Diarneter Comcast Conduit LF $ 6 $ l0lt) 6115 16 Non- Woven Geotextile Fabric For Vault lnstallation SY $ 13 S 208 6155 *1,020 Shoring or Extra Excavation Class B SF $ 0.75 $ 765 TOTAL SCHEDULE I $ 89,175 ENGINEERING & CONTINGENCY COST 20% Engineering & Construction Management $ r7.835 10% Contineencv s 8.91 8 l0% Sale Tax $ 8 918 TOTAL ENGTNEERING & CONTINGENCY COST $ 3s.670 TOTAL PROJECT CONSTRUCTION COST $ 124,845 JOINT TRENCH AGREEMENT* Page i0 of l0 (between City of Kent and Comcast Re: S. 228tt' Street) (January 16,2018) 28 JOINT TRENCH AGREEMENT Between the City of Kent and.Zayo fOT thc S.228th 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 Zay o Group, LLC, a Delaware corporation (" Zay o"). RECITALS A. The City is making righrof-way improvements to S. 228thSheet. 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 righrof-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 ffench, 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 Conffactor for the consffuction 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 the Union Pacific Railroad and 76u 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, JOINTTRENCHAGREEMENT-Page I of l0 (between City of Kent and Zayo Re: S. 22th Street) (January 25,2018) 29 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 Trffic 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 Conhactor will install Zayo's conduit in the Trench and in the sheet 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 Agrecment. 3.5 Removal of Affected Facilities. Parties acknowledge and agree thatZayo 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 l0 (between City of Kent and Zayo Re; 5. 22th Street) (January 25,2018) 30 3.7 Title to Facilities. All rights, title and interest in the facilities and associated equipment shall at all times remain withZayo. 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 l0 (between City of Kent and Zayo Re S. 228th Street) (January 25,2018\ 31 (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 Conhactor. 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/I(aiver 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. lf 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 l0 (between City of Kent and Zayo Re: S. 228th Street) (January 25,2018) 32 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.l 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 0l l/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 thirfy (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 unintemrpted 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 l0 ftetuveen City of Kent and Zayo Re; 5. 228th Street) (January 25,2018) 33 7.3 Endorsemenrs. 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; O) 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 VlI." 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. MISCELLAI{EOUS. 9.1 Compliance with Laws. The parties shall comply with all federal, state and local laws, rules and regulations throughout every aspect in the perforrnance 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 l0 (between City of Kent and Zayo Re; 5. 228th Street) (January 25,2018) 34 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 Attorney'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 ofeach ofthe 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 l0 ftetween City of Kent and Zayo Re; 5. 228'h Street) (January 25,2018) 35 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 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 WHEREOF, the parties below have executed this Agreement. ZAYO GROUP, LLC CITY OF KENT Print Name: Title: DATE DATE NOTICES TO BE SENT TO:NOTICES TO BE SENT TO: ZAYO GROUP, LLC CITY OF KENT Citv of Kent 220 Forrrth Avenrr South Seattle WA 98101 Kent,WA 9803 2 Attn: Scott Morrison Attn: Chad Bieren Q06\ 596:7988 (Desk)(253) 856-ss 34 ) (253\ 441-0653 (Cell)(2s3) 8s5-5s00 ) With a copy to: Zayo Group,LLC 1326 sth Avenue, Suite 305 Seattle, WA 98101 Attention: Joseph Morton APPROVED AS TO FORM: Kent Law Department P:\civil\Filcs\opcn FilcsU238-2281h St.cct UPRR cBdc Scparationuoint Trcnch AgrccmcnrsuointTrcnch^g.emcnLirayo-sps w6t JUT DRAIT-!'INAL.doc JOTNT TRENCH AGREEMENT- Pagc 8 of l0 (between City of Kent and Zayo Re: S. 228th Street) (January 25,2018) 36 Exhibit A S. 228th Street Joint Trench Agreement 1 i t 76TH AVE S 4THAVE N -<+-- J" souNo,,oLoriro ao. r,-tro""u*l AtR CARCO (OCCUPAN| i 226r*i 76th AVE, S, j r^x to 3o3o9o4o4o I 1..'-..,'*.... '"- '"' t ,. .ll JALAU KTAVANo pRopERTlEs LLc torlhrny ALEXANoER ExHlBtrs (occupAMfl :7440S.2281hST. | | Tnl( lD:t8:rO9G{Xt50 t 'q, rlli HRP PROPERTIES(OWNE 7509 S,228rh ST, T^X lO 3{t30904230 'l R)i I'i { t;1 it?.rs '.1 o IFoNN (t) 6TH AVE N I ts i j {I i I{'I I i i i 228rh ST. (ENT LLC (OyVr.tER) PACIF|C MET LS (OCGUPANTI 74r0 s.228rh sT. rAx lD 383090-0060 i" I i i ! It ; s { l i lP EAI FlvE Lt-C (O'.rNgR) INTERNATIONAL PAPER (occuPANr) 1225 6rh AVE. N.r/u lD 383C9600€5 - UNION PACIFIC RAILROAD .INTERURBAN TRAIL S. 228'Ih ST. GRADE SEPARATION AT THE UNION PACIFIC RAILROAD EAST JOINT UTILITY TRENCH r-f.. .4h CITY OF tr(ENT ITGITIERING DIFAR?TCN'!.E rriS i.r:i INIERURBAN TRAIL TO 76TI{ AVE S r'Ht.'r A JOINT TRENCH AGREEMENT- Exhibit A ftetween City of Kent and Zayo Re: S. 22th Street) (January 25,2018) 37 Exhibit B S. 228th Street Joint Trench Agreement ZAYO mST FOR: (SHARING MAIN JOINT TRENCH COST, VAULTS, At{D MINORTRENCHES FORVAULTS mNNECTIONS) I I Joint Tr.rrh By Linca Foot EA $ 22,t09 j 22-5@ 6038 7 Fornddion Material, Class I atd II TON $35 3 228 6100 630 Zaro - Ia*dlaitoa atrd Proofioc of il llch Diaoctr Coadtit LF $6 3 3.780 61 JJ J10 $\ri4g orExtra Ercavalioo Oass B SF 3 0.7J t 383 TOTAL SCEEDT'LE I $ 26-899 s 2.690 JOINT TRENCH AGREEMENT_ Exhibit B (between City of Kent and Zayo Re: S. 228h Streer) (January 25,2018) 38 JOINT TRENCH AGREEMENT Between the City of Kent and Puget Sound Energy Gas fOT thE S.228th St. GRADE SEPARATION AT THE UNION PACIFIC RAILROAD- (Union Pacific Railroad to76th Ave S) This Agreement is between the City of Kent, a Washinglon municipal corporation ("City"), and Puget Sound Energy, a Washington corporation ("PSE"). RECITALS A. The City is making right-of-way improvements to S. 228th Street. B. These right-of-way improvements require PSE 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 rightof-way and the parties recognize the efficiencies of entering into an agreement to dig one trench in which all parties will relocate their facilities. AGRI,EMENT 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 the Union Pacific Railroad andT6tt' 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 is referred to as "the Contractor" in this Agreement. The Contractor, pursuant to a contract with the City, will be responsible for constructing the Trench and installing Comcast, Yerizon, Zayo, PSE power and PSE gas facilities; accommodating and coordinating the installation of PSE facilities; installing the bedding material, backfilling and compacting the Trench; and performing any restoration required by the City. The City represents that any such contract shall further require that the Contractor's work be performed in a good and workmanlike manner consistent with industry standards and conducted in conformity JOINT TRENCH AGREEMENT-Page I of l0 (between City of Kent and PSE Gas Re: S. 228th Su'eet) (January 26,2018) 39 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. PSE shall provide engineering drawings, specifications, construction standards, estimated material quantities, and cost estimates to the City for the underground relocation of PSE'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. PSE shall install its pipe in the Trench and 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 shallperform alltraffic controlassociated with installation of facilities within the Trench. PSE shall be responsible for providing traffic control during installation of facilities not located within the Trench. PSE shall submit a general traffic control plan for these installations. 3.4 PSE Coordination. (a) PSE shall maintain continued coordination with the Contractor regarding the installation of PSE's facilities and shall coordinate closely with the Contractor to provide alI necessary materials on-site in a timely manner. (b) For any work that PSE performs independently from the Contractor's work in the Trench, PSE shall coordinate closely with the City and the Contractor to ensure this work will not conflict with the Contractor's work in the Trench. PSE shall pay any claims for additional compensation made by the Contractor resulting from conflicts with PSE's independent work in accordance with Section 4.5 of this Agreement. 3.5 Removal of Affected Facilities. Parties acknowledge and agree that PSE 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. 3.7 Title to Facilities, All rights, title and interest in the facilities and associated equipment shallat alltimes remain with PSE. JOINT TRENCH AGREEMEN'|-Page 2 of l0 (between Cily of Kent and PSE Gas Re: S. 228th Street) (January 26,2018) 40 4. COMPENSATION 4.1 Trench cosfs. PSE 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. PSE 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 PSE facilities. 4.3 Trffic Control. PSE shallpay a proportionate share of traffic controlcosts related to the construction of the Trench where PSE facilities are included. The proportionate share will be based on trench usage as shown in Exhibit B. PSE shall pay for all traffic control during the installation of PSE facilities, not associated with the Trench. 4.4 Additional Expenses. PSE agrees to pay any expenses incurred due to all PSE's approved change requests requiring additional trench depth or width and for unforeseen conditions, including but not limited to dewatering for ground water. PSE is not obligated to pay for additional expenses incured due solely to approved change requests from other private utilities and/or the City. 4.5 Claims by Contracror. PSE agrees to pay the entire cost of any claims made by the Contractor for damages that are proximately caused by PSE. These claims may include delays caused by the installation of PSE facilities, delays caused by PSE providing materials, or any other conflicts between the Contractor and PSE or any of its contractors. 4.6 Vaults. PSE 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 PSE's vaults will be finalized after completion of construction to account for actual construction costs. 4.7 Invoice. PSE shall pay the City within sixty (60) days of submittalby the City of an itemized billing for PSE'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 l0 (between City of Kent and PSE Gas Re: S. 228th Street) (January 26,2018) 41 (a) Per the terms of the agreement between the City and Contractor, PSE 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 PSE's approval. (b) Before withholding payment to the City, PSE 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 (sixty) 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 (fifteen) l5 days of receipt of the written notice, PSE 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. PSE 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 notifu PSE of this price. PSE shall then have 24 hours from the time it receives the price from the City, within which to respond. If PSE chooses not to accept the Contractor's price then this work shall only be performed by PSE according to a mutually agreed upon schedute with the Contractor so as not to cause delay to the Contractor. 6. INDEMNIFICATION; LIENS AND ENCUMBRANCES. 6.1 Each party shall defend, indemnifu 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. 6.2 The indemnification from PSE 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 PSE by the Contractor, except for injuries and damages caused by the negligence or willful misconduct of the City. JOINT TRENCH AGREEMENT-Page 4 of l0 (between City of Kent and PSE Gas Re: S. 228tt' Su'eet) (January 26,2018) 42 6.3 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 party's negligence. The provisions of this section shall survive the expiration or termination of this Agreement. 6.4 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 ofanother. 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 occuffence and five million dollars ($5,000,000.00) general aggregate. Coverage shall be at least as broad as that provided by ISO CG 00 0l 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 Cify. The policy shall contain a severability of interests provision. (c) The insurance shall not be canceled or materially changed so ds 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 JOINT TRENCI-I AGREEMENT-Page 5 of l0 (between City of Kent and PSE Gas Re: S. 228th Street) (January 26,2018) 43 provide a replacement policy. Contractor agrees to maintain continuous unintemupted 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. 7.3 Endorsemenls. 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 PSE 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 PSE, and the City and PSE expressly herein reserve such rights. Notwithstanding anything in this Agreement to the contrary, PSE'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 PSE's obligation to underground their 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. JOINT TRENCH AGREEMENT-Page 6 of l0 (between City of Kent and PSE Gas Re: S. 228"' Street) (January 26,2018) 44 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 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 ofthe King County Superior Court, King County, Washington. 9.4 Attorney'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 llritten 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 hereto shall (i) have the power or authority to act for another in any manner to create obligations JOINT TRENCH AGREEMENT-Page 7 of l0 (between City of Kent and PSE Gas Re: S. 228th Stree) (January 26,2018) 45 or debts which would be binding upon another, and; (ii) be responsible for any obligation or expense whatsoever of another. 9.9 Force Majeure. Parties shall not be deemed to be in breach of this Agreement if unable to perform their respective obligations hereunder 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. 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 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 shalI prevail. IN WITNESS WHEREOF, the parties below have executed this Agreement. PUGET SOUND ENERGY CITY OF KENT Print Name Title DATE NOTICES TO BE SENT TO: PUGET SOT]ND ENERGY 690s s 228 st. Kent. WA 98032 Attn: Leslie W 125i) 395-6809 k\ (206\ 793-4624 il) Attn: Glenn Helton Kent Law Department P:\Civil\Filc\Opcn Filesu238-228th Street UPRR Gradc SeparationUoinl Trench AgrementsuointTrenchAgeement-PsE GN West JUT DRAFT-FINAL.doC Print Name:- Title: DATE:- NOTICES TO BE SENT TO: CITY OF KENT Citv of Kent 220 Fourlh A Sorrfh Kent. WA 98032 Attn: Tim LaPorte (253) 8s6-ss00 (253) 856 -6500 (Fax) APPROVED AS TO FORM: With a copy to: Puget Sound Energy 6905 s 22grHst. Kent, WA 98032 JOINT TRENCH ACREEMENT-Page 8 of l0 (between City of Kent and PSE Gas lle: S. 228't' Street) (January 26,2018) 46 Exhibit A S.228th Street East Joint Trench Agreement f- *- t"..*c 76TH AVE S 4THAVE N <.--I 'I SOUNO HOLDING CO. ILC , :,- I ;lAIR CARGO (OCCUPANI) 22645 76rh AVE, S, TN( tO 303090{l0t0 HRP PROPERTIEg 7500 s,228th TN( lD 0830900230 I I I I I '-l ! \/JAI.AU KLAVAJiIO PROPERTIES LLC ALEXANOER EXHIEITS 7440 S. 228th U' l- @ N Q TAr( lD 383fiX}{050 6TH AVE N N-$: s\\\u$lUlr r-l d**"*- --i. i. 228rh ST. KE[{T LLC (OWNER) PACIFIC METAIS (OCCUPANT) 7.110 S,228h ST, TAX lD 383n90{ro00 IP €AT FIVE LLC (OWNER) IT{TERIIATIONAL PAPER (occuPANT) 1225 6rh AVE. it, Tru( tD 3&'00&0085 i f, I.t /\ lj !.. -.,r' t-'- .INTERURBAN ...J---- - - S. 228+h ST. GRADE SEPARATION AT THE UNION PACIFIC RAILROAD EAST JOINT UTILITY TRENCHGCITY OF KENT ETIOIIIEGRINO DEPAATil:NI rlr,rt_8E_INTERURBAN TRAIL TO 76TI{ AVE S l,tllrr A JOINT TRENCH AGREEMENT- Exhibit A (between City of Kent and PSE Gas Re: S. 228h Stteet) (January 26,2018) 47 Exhibit B S. 228th Street East Joint Trench Agreement COST ilOT IT{CTUDIT{G IHE GAs COT{DUTTs st65mt l65SI ,&tfli''rlnlflN wl50t 4250llrrinzrrd GrffipHE lot LIEEm R idip,llohlt Cilrrr![r lldtolo 7 Ll{DChm!ErdddOrbt08{t LtlaSrqrclr &illi! ir0Bll C@il hldIld, LF Esnrft &bir crorotc6ll k\roantffiffiEEffiFEMPffiTt65 ldD lAtffiIffihitdhslla{udCmncb T(I(]'tl{tD ;5i8i :Yn T(lt $35lostG_[{lm s 66001a1a9631'1trtr PG6422lDt t6 2,5il.lbatcffi!!BirldrlMI2lO rots l!nmf&lle flit{'lllifltm s 5(I)t 8ttMrlftfitic IaDntidBL:t I 'lv,2{EdrtSb IIR 3?5 s 3_?rtSbrrhrTBO I !utn a iumt{rt \fto,aCbtEG a s ddttiIRT50IrftCffilLft5Es2{8ItE:olilldicqiilrcbcA5010 6 s 20ErIHrCffil$EriE50u s tolD ; L6g)IasrsTrftOcotDrcirM I -{f,,a 2tlfinilBili?llflm DCStil&-:66- TCl,[s !15 s :t5'nJrrd llrficln TmColn 5t8 frfi l$erol5 .I it sa4dfcC<nfr&Bddos 1dno s icr $ anO6l to hrndhdDl'iFlill sutup cfuiEfietimChcB SF s 0156155 LSCFT'TT^D,VI 5 T.O s 20(m s Lf.trdiE Itrlilirinz etrdMttlirETII)t ?!llt?n k itlrEr,trn thffirffi s 2{SIthtr&allo :5 q,TNT)tt t*tNsr rD5sfA[)StrtplUd T .I:I,EIIR'IIJI'e rind FA s dom s t-gfl)*dldllhlnlililio lhtkdTE IR tm s ,umtrrtO.einrvs $ agto 5 6 a4f6dll\nAgIB 3 r!8$lbodChblffi s l-OX'rA 5lwEimRararicr tinhElrriElidt N.m Rl'0crn[ nroirrfllsl&{llErlul \s ao{D $9S'ffi' | $ 1{Bl?-:ffi+ls 4i_g&s ll4loTCG{TR(L $ za.ola$ 8910 19.BOIHhr& Cdtffidt llrom161 99J+ffi 2e.sB JOINT TRENCH AGREEMENT- Exhibit B (between City of Kent and PSE Gas Re: S. 228't' Street) (January 26,2018) 48 PUBLIC WORKS DEPARTMENT Timothy J. LaPorte, Director Phone: 253-856-5500 Fax: 253-856-6500 220 Fourth Avenue South Kent, WA 98032 DATE: March 19, 2018 TO: Public Works Committee FROM: Mark Madfai, Design Engineering Supervisor SUBJECT: South 228th St UPRR Grade Separation Project Facility Relocation Agreement with Puget Sound Energy - Recommend SUMMARY: As part of the relocations required for construction of the South 228th Street UPRR grade Separation Project, Puget Sound Energy (PSE) must relocate existing power facilities both underground and overhead. This agreement is for the underground relocation of overhead power distribution facilities that are located with in PSE’s property along the Interurban Trail. These lines must be removed to accommodate construction of the new bridge. The remaining relocations are covered under the franchise agree ment and are PSE’s responsibility to pay for. Last year the City paid for and PSE performed the work to raise three sets of existing high voltage power lines along PSE property to make way for the new bridge. This remaining work was not completed with the transmission line work last year because underground relocations still needed to be completed to the east. PSE did participate in the City’s joint utility trench to underground lines west of the UPRR tracks under a Schedule 74 reimbursement agreement at that time. EXHIBITS: Draft Facility Relocation Agreement BUDGET IMPACT: The cost of this project will be paid through State (Connect WA) funds. STRATEGIC PLAN GOAL(S): ☐ Innovative Government - Empowering responsible citizen engagement, providing outstanding customer service, leveraging technologies, and fostering new opportunities and industries that benefit our community. ☒ Authentic Connectivity and Communication - Uniting people to people, to places, and to their government through superior infrastructure, enriched community interactions, and responsive, trusting relationships. ☐ Thriving Neighborhoods and Urban Centers - Creating vibrant urban centers, welcoming neighborhoods, and green spaces for healthy growth and cultural celebration. ☐ Sustainable Funding - Maximizing long-term financial success through responsible fiscal oversight, economic growth, and community partnerships. ☐ Inclusive Community - Embracing the power of our diversity by encouraging community participation and creating a strong sense of belonging. MOTION: Move to recommend Council authorize the Mayor to sign the Facility Relocation Agreement with Puget Sound Energy in the amount of $713,867.11 for the South 228th Street UPRR Grade Separation Project, subject to final terms and conditions acceptable to the City Attorney and Public Works Director. 49 This page intentionally left blank 50 -1- FACILITY RELOCATION AGREEMENT This Agreement, dated as of ______________, 2018, is made and entered into by and between Puget Sound Energy, Inc., a Washington corporation (“PSE”), and City of Kent, (“Government Entity”). PSE and the Government Entity are sometimes referred to herein individually as a "Party" and collectively as the “Parties.” RECITALS A. PSE owns and operates certain utility systems and facilities necessary and convenient to the transmission and distribution of electricity ("Facilities") that are located on or in relation to certain operating rights ("Existing Operating Rights"). The Facilities and Existing Operating Rights are more particularly described on Exhibit A attached hereto and incorporated herein by this reference. B. The Government Entity plans to construct improvements to the 228th Street UPRR Rail Crossing (“Improvements”). C. In connection with the Improvements, the Government Entity has requested that PSE perform certain engineering design work and certain construction work relating to modification or relocation of its Facilities (the "Relocation Work"), all in accordance with and subject to the terms and conditions of this Agreement, and any applicable tariff on file with the Washington Utilities and Transportation Commission (the “WUTC”). D. The Government Entity has provided to PSE a written plan for the Improvements (the “Improvement Plan”) which includes, among other things, (a) plans and specifications sufficient in detail, as reasonably determined by PSE, for PSE to design and perform the Relocation Work, including reasonably detailed drawings showing the planned Improvements, (b) a list of the key milestone dates for the Improvements, and (c) information concerning possible conflicts between PSE's Facilities and other utilities or facilities. The Parties, therefore, agree as follows: AGREEMENT Section 1. Relocation Work 1.1 Relocation Work. The Relocation Work is described in Exhibit B attached to this Agreement. 1.2 Performance of Relocation Work. Subject to the terms and conditions of this Agreement and any applicable tariffs on file with the WUTC, PSE shall use reasonable efforts to perform the Relocation Work. PSE shall perform the Relocation Work in accordance with the schedule provided in Exhibit B (the “Relocation Schedule”) with 51 -2- reasonable diligence in the ordinary course of its business and in light of any operational issues as to the remainder of its utility systems that may be influenced by the Relocation Work. PSE shall have no liability to the Government Entity or any third party, nor shall the Government Entity be relieved or released from its obligations hereunder, in the event of any delay in the performance of the Relocation Work due to any (a) repair, maintenance, improvement, renewal or replacement work on PSE's utility systems, which work is necessary or prudent as determined by PSE in its sole discretion; or (b) actions taken by PSE which are necessary or consistent with prudent utility practices to protect the performance, integrity, reliability or stability of PSE's utility systems or any systems to which such systems are connected. 1.3 Adjustments to the Relocation Work. PSE shall notify the Government Entity in writing of any reasonably anticipated adjustments to the Relocation Work (including the Relocation Schedule and/or Relocation Cost Estimate) that result from (a) the revision or modification of any Improvements in a manner that requires PSE to revise its plans and specifications for the Relocation Work; (b) delays in PSE’s performance of the Relocation Work caused by the Government Entity (or its agents, servants, employees, contractors, subcontractors, or representatives); or (c) conditions or circumstances otherwise beyond the control of PSE. The Parties acknowledge that additional requirements not contemplated by the Parties may arise during the performance of the Relocation Work. In the event such additional requirements arise, the Parties shall provide written notice thereof and shall use good faith reasonable efforts to appropriately respond to such requirements in a prompt and efficient manner, including appropriate adjustments to the Relocation Schedule and/or the Relocation Cost Estimate. 1.4 Performance by Government Entity. In the event the Government Entity is unable to perform its obligations under Sections 2 and 3 below to PSE's reasonable satisfaction, and absent written waiver by PSE of such obligations, the Parties shall use reasonable efforts to adjust the Relocation Schedule to allow additional time for the Government Entity to perform such obligations; provided, that if the Parties cannot reasonably agree upon such schedule adjustment, PSE may, at its option, thereafter terminate this Agreement by giving written notice to the Government Entity, and the Government Entity shall promptly pay PSE the amounts payable to PSE in connection with such termination under Section 5.5. PSE's determination as to the satisfaction or waiver of any such condition under this Agreement shall not be deemed to be a determination of satisfaction or waiver of any other condition arising under this Agreement. 1.5 Notice to Proceed with Construction Work. At least 30 days prior to the date specified in the Relocation Schedule for commencement of construction for the Relocation Work, the Government Entity shall either (a) provide to PSE a written notice to proceed with such construction work, or (b) terminate this Agreement by written notice to PSE. In the event of such termination, the Government Entity shall promptly pay PSE the amounts payable to PSE in connection with termination under Section 5.5. 52 -3- Section 2. Operating Rights. Unless otherwise provided for in Exhibit B, the Government Entity shall be solely responsible for the acquisition of, and any costs related to acquisition of any and all operating rights for the Facilities that are necessary or appropriate, in addition to or as replacement for the Existing Operating Rights, for completion of the Relocation Work ("New Operating Rights"). Such New Operating Rights shall be in PSE's name, shall be of equivalent quality and kind as the Existing Operating Rights and shall be provided in a form acceptable to PSE, all as determined by PSE in its sole discretion. The New Operating Rights shall be provided with sufficient title information demonstrating to PSE's satisfaction that PSE shall obtain clear, good and sufficient title to such rights, if applicable. PSE shall not be obligated to commence the RelocationWork, or otherwise in any way change, limit, curtail, impair or otherwise affect the normal and reliable operation of the Facilities as located upon or relative to the Existing Operating Rights, unless and until PSE is in possession of the New Operating Rights. Section 3. Permits. The Government Entity shall be solely responsible for the acquisition of, and any costs related to acquisition of any and all permits, licenses, certificates, inspections, reviews, impact statements, determinations, authorizations, exemptions or any other form of review or approval given, made, done, issued or provided by any one or more governmental authorities with jurisdiction necessary or convenient for the Relocation Work (collectively, "Permits"). The Permits shall be on such terms and conditions as PSE shall, in its sole discretion, determine to be appropriate to its needs. PSE shall not be obligated to commence construction for the Relocation Work, or otherwise in any way change, limit, curtail, impair or otherwise affect the normal and reliable operation of the Facilities, unless and until PSE is in possession of all Permits necessary for the Relocation Work and all rights of appeal with respect to the Permits shall have been exhausted. The Government Entity shall be responsible for performance of and any costs associated with any mitigation required by the Permits. Section 4. Materials and Ownership Unless specifically agreed otherwise in writing by the Parties, PSE shall provide all necessary materials, equipment and labor required to perform the Relocation Work. All materials, information, property and other items provided for, used or incorporated into the Relocation Work (including but not limited to the Facilities) shall be and remain the property of PSE. Section 5. Relocation Costs 5.1 Estimate. PSE's good faith estimate of the costs to perform the Relocation Work (the "Relocation Cost Estimate") is $713,867.11 and includes all direct and indirect costs incurred by PSE in connection with the performance of the Relocation Work including, 53 -4- but not limited to, labor, personnel, supplies, materials, overheads, contractors, consultants, attorneys and other professionals, administration and general expenses and taxes. However, it does not include any provisions or adjustments for unforeseen site conditions. 5.2 Costs in Excess of Estimate. In the event PSE determines an unforeseeable condition is likely to cause costs to exceed the Relocation Cost Estimate, PSE shall so notify the Government Entity in writing within 48hrs and provide an estimate of additional costs based on the information available at the time. In such event, PSE or the Government Entity may, at its discretion, suspend performance of the Relocation Work and PSE shall not be obligated to continue with performance of any Relocation Work unless and until PSE receives the Government Entity’s written acceptance of PSE's associated Cost Estimate that includes the additional costs and written notice to continue with the Relocation Work. In the event PSE does not receive such acceptance and notice from the Government Entity within ten (10) working days from the date of PSE's notice, then PSE may, at its discretion, terminate this Agreement. In the event of such termination, the Government Entity shall promptly pay PSE the amounts payable to PSE in connection with termination under Section 5.5. 5.3 Relocation Costs. The Government Entity shall be responsible for an amount up to, but not exceeding, the Relocation Cost Estimate set forth in Section 5.1, in connection with the performance of the Relocation Work. However, if unforeseen site conditions arise that would result in additional costs, such as higher than expected ground water, the Government Entity shall be responsible for those costs in excess of the Relocation Cost Estimate pursuant to Section 5.2. The Government Entity shall also be responsible for costs in excess of the Relocation Cost Estimate associated with changes or scope additions directed or requested by the Government Entity. 5.4 Statement of Costs - Invoice. Within sixty (60) days of the completion of the Relocation Work, PSE shall provide the Government Entity with a statement and invoice of the actual Relocation Costs incurred by PSE. PSE shall provide, within a reasonable period after receipt of any written request from the Government Entity, such documentation and information as the Government Entity may reasonably request to verify any such invoice. 5.5 Costs Upon Termination of Agreement. In the event either Party terminates this Agreement, the Government Entity shall promptly pay PSE, the following: (a) all costs and expenses incurred by PSE in connection with the Relocation Work (including, without limitation, all Relocation Costs incurred through the date of termination and such additional costs as PSE may incur in connection with its suspension or curtailment of the Relocation Work and the orderly termination of the Relocation Work); and (b) all costs and expenses incurred by PSE in returning and restoring the Facilities to normal and reliable commercial operations. 54 -5- 5.6 Payment. The Government Entity shall, within thirty (30) days after the receipt of an invoice for costs payable under this Agreement, remit to PSE payment for the full amount of the invoice. Section 6. Indemnification 6.1 Indemnification. The Government Entity releases and shall defend, indemnify and hold harmless PSE from all claims, losses, harm, liabilities, damages, costs and expenses (including, but not limited to, reasonable attorneys' fees) caused by or arising out of any negligent act or omission or willful misconduct of the Government Entity in its performance under this Agreement. PSE releases and shall defend, indemnify and hold harmless the Government Entity from all claims, losses, harm, liabilities, damages, costs and expenses (including, but not limited to, reasonable attorneys' fees) caused by or arising out of any negligent act or omission or willful misconduct of PSE in its performance under this Agreement. During the performance of such activities employees or contractors of each Party shall at all times remain employees or contractors, respectively, that Party and shall not be, or be construed to be, employees or contractors, respectively, of the other Party. 6.2 Title 51 Waiver. Solely for purposes of enforcing the indemnification obligations of a Party under this Section 6, each Party expressly waives its immunity under Title 51 of the Revised Code of Washington, the Industrial Insurance Act, and agrees that the obligation to indemnify, defend and hold harmless provided for in this Section 6 extends to any such claim brought against the indemnified Party by or on behalf of any employee of the indemnifying Party. The foregoing waiver shall not in any way preclude the indemnifying Party from raising such immunity as a defense against any claim brought against the indemnifying Party by any of its employees. Section 7. Disclaimers and Limitation of Liability 7.1 Disclaimer. PSE makes no representations or warranties of any kind, express or implied, with respect to the Relocation Work or other items or services provided under this Agreement including, but not limited to, any implied warranty of merchantability or fitness for a particular purpose or implied warranty arising out of course of performance, course of dealing or usage of trade. 7.2 Limitation of Liability. In no event shall PSE be liable, whether in contract, warranty, tort or otherwise, to any other party or to any other person for any indirect, incidental, special or consequential damages arising out of the performance or nonperformance of the Relocation Work or this Agreement. Section 8. Miscellaneous 8.1 Tariffs Control. This Agreement is in all respects subject to all applicable tariffs of PSE now or hereafter in effect and on file with the WUTC. In the event of any 55 -6- conflict or inconsistency between any provision of this Agreement and any such tariff, the terms of the tariff shall govern and control. 8.2 Survival. Sections 2, and 4 through 8 shall survive any termination of this Agreement. Subject to the foregoing, and except as otherwise provided herein, upon and following termination of this Agreement neither Party shall have any further obligations arising under this Agreement and this Agreement shall be of no further force or effect. 8.3 Waiver. The failure of any Party to enforce or insist upon strict performance of any provision of this Agreement shall not be construed to be a waiver or relinquishment of any such provision or any other provision in that or any other instance; rather, the same shall be and remain in full force and effect. 8.4 Entire Agreement. This Agreement, including any exhibits hereto, sets forth the complete and integrated agreement of the Parties. This Agreement cannot be amended or changed except by written instrument signed by the Party to be bound thereby. 8.5 Force Majeure. In the event that either Party is prevented or delayed in the performance of any of its obligations under this Agreement by reason beyond its reasonable control (a "Force Majeure Event"), then that Party's performance shall be excused during the Force Majeure Event. Force Majeure Events shall include, without limitation, war; civil disturbance; storm, flood, earthquake or other Act of God; storm, earthquake or other condition which necessitates the mobilization of the personnel of a Party or its contractors to restore utility service to customers; laws, regulations, rules or orders of any governmental agency; sabotage; strikes or similar labor disputes involving personnel of a Party, its contractors or a third party; or any failure or delay in the performance by the other Party, or a third party who is not an employee, agent or contractor of the Party claiming a force Majeure Event, in connection with the Relocation Work or this Agreement. Upon removal or termination of the Force Majeure Event, the Party claiming a Force Majeure Event shall promptly perform the affected obligation in an orderly and expedited manner under this Agreement or procure a substitute for such obligation. The Parties shall use all commercially reasonable efforts to eliminate or minimize any delay cause by a Force Majeure Event. 8.6 Enforceability. The invalidity or unenforceability of any provision of this Agreement shall not affect the other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provisions were omitted. 8.7 Notice. Any notice, request, approval, consent, order, instruction, direction or other communication under this Agreement given by either Party to the other Party shall be in writing and shall be delivered in person to an authorized representative or mailed, properly addressed and stamped with the required postage, to the intended recipient at the address and to the attention of the person specified below the Parties' respective signatures on this Agreement. Either Party may from time to time change such address by giving the other Party notice of such change in accordance with this section. 56 -7- 8.8 Governing Law. This Agreement shall be interpreted, construed and enforced in all respects in accordance with the laws of the State of Washington. This Agreement shall be fully binding upon the Parties and their respective successors, assigns and legal representatives. In witness whereof, the Parties have executed this Agreement as of the date set forth above. PSE: Government Entity: Puget Sound Energy, Inc. By By Its Its Address: Address: Attn: Attn: 57 -8- EXHIBIT A FACILITIES AND EXISTING OPERATING RIGHTS 58 -9- EXHIBIT B RELOCATION WORK (TO INCLUDE A DESCRIPTION OF THE WORK TO BE PERFORMED BY PSE TOGETHER WITH A SCHEDULE FOR THE PERFORMANCE OF THE WORK AND A DESCRIPTION OF ANY NEW OPERATING RIGHTS REQUIRED FOR THE PERFORMANCE OF THE WORK) 59 This page intentionally left blank 60 PUBLIC WORKS DEPARTMENT Timothy J. LaPorte, Director Phone: 253-856-5500 Fax: 253-856-6500 220 Fourth Avenue South Kent, WA 98032 DATE: March 19, 2018 TO: Public Works Committee FROM: Paul Kuehne, SUBJECT: Contract with Gray and Osborne for Construction Engineering Services for the Cambridge Reservoir Project - Recommend SUMMARY: Gray and Osborne will provide services to include oversight of reservoir rehabilitation, welding inspection, material inspection and testing. The largest components of the Cambridge Reservoir Recoating and Fall Protection Project are the coating (specialized paint) inspection and welding inspection for fall protection facilities. As the city does not make these improvements very often, we do not have staff with the certifications necessary to inspect the work. Therefore, we propose using a consultant to complete these inspections. The contract is roughly 10% of the value of the contract, which is within the industry standard. EXHIBITS: Contract BUDGET IMPACT: Funds for this contract are accounted for in the project budget and are within the water fund capital budget. STRATEGIC PLAN GOAL(S): ☐ Innovative Government - Empowering responsible citizen engagement, providing outstanding customer service, leveraging technologies, and fostering new opportunities and industries that benefit our community. ☐ Authentic Connectivity and Communication - Uniting people to people, to places, and to their government through superior infrastructure, enriched community interactions, and responsive, trusting relationships. ☐ Thriving Neighborhoods and Urban Centers - Creating vibrant urban centers, welcoming neighborhoods, and green spaces for healthy growth and cultural celebration. ☐ Sustainable Funding - Maximizing long-term financial success through responsible fiscal oversight, economic growth, and community partnerships. ☐ Inclusive Community - Embracing the power of our diversity by encouraging community participation and creating a strong sense of belonging. MOTION: Move to recommend Council authorize the Mayor to sign a Consultant Services Agreement with Gray and Osborne in an amount not to exceed $135,628.00 for Engineering Services for the Cambridge Reservoir Recoating and Fall Protection Project, subject to final terms and conditions acceptable to the City Attorney and Public Works Director. 61 This page intentionally left blank 62 CONSULTANT SERVICES AGREEMENT - 1 (Over $20,000) CONSULTANT SERVICES AGREEMENT between the City of Kent and Gray & Osborne, Inc. THIS AGREEMENT is made between the City of Kent, a Washington municipal corporation (hereinafter the "City"), and Gray & Osborne, Inc. organized under the laws of the State of Washington, located and doing business at 701 Dexter Ave N., Suite 200, Seattle, WA 98109, Phone: (206) 284-0860, Contact: Russell Porter (hereinafter the "Consultant"). I. DESCRIPTION OF WORK. Consultant shall perform the following services for the City in accordance with the following described plans and/or specifications: The Consultant shall provide construction management services for the Cambridge Reservoir Recoating & Fall Protection Project. For a description, see the Consultant's Scope of Work which is attached as Exhibit A and incorporated by this reference. Consultant further represents that the services furnished under this Agreement will be performed in accordance with generally accepted professional practices within the Puget Sound region in effect at the time those services are performed. II. TIME OF COMPLETION. The parties agree that work will begin on the tasks described in Section I above immediately upon the effective date of this Agreement. Consultant shall complete the work described in Section I by December 31, 2019. III. COMPENSATION. A. The City shall pay the Consultant, based on time and materials, an amount not to exceed One Hundred Thirty-Five Thousand, Six Hundred and Twenty-Eight Dollars ($135,628.00), for the services described in this Agreement. This is the maximum amount to be paid under this Agreement for the work described in Section I above, and shall not be exceeded without the prior written authorization of the City in the form of a negotiated and executed amendment to this agreement. The Consultant agrees that the hourly or flat rate charged by it for its services contracted for herein shall remain locked at the negotiated rate(s) for a period of one (1) year from the effective date of this Agreement. The Consultant's billing rates shall be as delineated in Exhibit B. B. The Consultant shall submit monthly payment invoices to the City for work performed, and a final bill upon completion of all services described in this Agreement. The City shall provide payment within forty-five (45) days of receipt of an invoice. If the City objects to all or any portion of an invoice, it shall notify the Consultant and reserves the option to only pay that portion of the invoice not in dispute. In that event, the parties will immediately make every effort to settle the disputed portion. IV. INDEPENDENT CONTRACTOR. The parties intend that an Independent Contractor- Employer Relationship will be created by this Agreement. By their execution of this Agreement, and in accordance with Ch. 51.08 RCW, the parties make the following representations: 63 CONSULTANT SERVICES AGREEMENT - 2 (Over $20,000) A. The Consultant has the ability to control and direct the performance and details of its work, the City being interested only in the results obtained under this Agreement. B. The Consultant maintains and pays for its own place of business from which Consultant’s services under this Agreement will be performed. C. The Consultant has an established and independent business that is eligible for a business deduction for federal income tax purposes that existed before the City retained Consultant’s services, or the Consultant is engaged in an independently established trade, occupation, profession, or business of the same nature as that involved under this Agreement. D. The Consultant is responsible for filing as they become due all necessary tax documents with appropriate federal and state agencies, including the Internal Revenue Service and the state Department of Revenue. E. The Consultant has registered its business and established an account with the state Department of Revenue and other state agencies as may be required by Consultant’s business, and has obtained a Unified Business Identifier (UBI) number from the State of Washington. F. The Consultant maintains a set of books dedicated to the expenses and earnings of its business. V. TERMINATION. Either party may terminate this Agreement, with or without cause, upon providing the other party thirty (30) days written notice at its address set forth on the signature block of this Agreement. After termination, the City may take possession of all records and data within the Consultant’s possession pertaining to this project, which may be used by the City without restriction. If the City’s use of Consultant’s records or data is not related to this project, it shall be without liability or legal exposure to the Consultant. VI. DISCRIMINATION. In the hiring of employees for the performance of work under this Agreement or any subcontract, the Consultant, its subcontractors, or any person acting on behalf of the Consultant or subcontractor shall not, by reason of race, religion, color, sex, age, sexual orientation, national origin, or the presence of any sensory, mental, or physical disability, discriminate against any person who is qualified and available to perform the work to which the employment relates. Consultant shall execute the attached City of Kent Equal Employment Opportunity Policy Declaration, Comply with City Administrative Policy 1.2, and upon completion of the contract work, file the attached Compliance Statement. VII. INDEMNIFICATION. Consultant shall defend, indemnify and hold the City, its officers, officials, employees, agents and volunteers 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 Consultant's performance of this Agreement, except for that portion of the injuries and damages caused by the City's negligence. The City's inspection or acceptance of any of Consultant's work when completed shall not be grounds to avoid any of these covenants of indemnification. 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 Consultant and the City, its officers, officials, employees, agents and volunteers, the Consultant's duty to defend, indemnify, and hold the City harmless, and Consultant’s liability accruing from that obligation shall be only to the extent of the Consultant's negligence. 64 CONSULTANT SERVICES AGREEMENT - 3 (Over $20,000) IT IS FURTHER SPECIFICALLY AND EXPRESSLY UNDERSTOOD THAT THE INDEMNIFICATION PROVIDED HEREIN CONSTITUTES THE CONSULTANT'S WAIVER OF IMMUNITY UNDER INDUSTRIAL INSURANCE, TITLE 51 RCW, SOLELY FOR THE PURPOSES OF THIS INDEMNIFICATION. THE PARTIES FURTHER ACKNOWLEDGE THAT THEY HAVE MUTUALLY NEGOTIATED THIS WAIVER. In the event Consultant refuses tender of defense in any suit or any claim, if that tender was made pursuant to this indemnification clause, and if that refusal is subsequently determined by a court having jurisdiction (or other agreed tribunal) to have been a wrongful refusal on the Consultant’s part, then Consultant shall pay all the City’s costs for defense, including all reasonable expert witness fees and reasonable attorneys’ fees, plus the City’s legal costs and fees incurred because there was a wrongful refusal on the Consultant’s part. The provisions of this section shall survive the expiration or termination of this Agreement. VIII. INSURANCE. The Consultant shall procure and maintain for the duration of the Agreement, insurance of the types and in the amounts described in Exhibit C attached and incorporated by this reference. IX. EXCHANGE OF INFORMATION. The City will provide its best efforts to provide reasonable accuracy of any information supplied by it to Consultant for the purpose of completion of the work under this Agreement. X. OWNERSHIP AND USE OF RECORDS AND DOCUMENTS. Original documents, drawings, designs, reports, or any other records developed or created under this Agreement shall belong to and become the property of the City. All records submitted by the City to the Consultant will be safeguarded by the Consultant. Consultant shall make such data, documents, and files available to the City upon the City’s request. The Consultant acknowledges that the City is a public agency subject to the Public Records Act codified in Chapter 42.56 of the Revised Code of Washington. As such, the Consultant agrees to cooperate fully with the City in satisfying the City’s duties and obligations under the Public Records Act. The City’s use or reuse of any of the documents, data, and files created by Consultant for this project by anyone other than Consultant on any other project shall be without liability or legal exposure to Consultant. XI. CITY'S RIGHT OF INSPECTION. Even though Consultant is an independent contractor with the authority to control and direct the performance and details of the work authorized under this Agreement, the work must meet the approval of the City and shall be subject to the City's general right of inspection to secure satisfactory completion. XII. WORK PERFORMED AT CONSULTANT'S RISK. Consultant shall take all necessary precautions and shall be responsible for the safety of its employees, agents, and subcontractors in the performance of the contract work and shall utilize all protection necessary for that purpose. All work shall be done at Consultant's own risk, and Consultant shall be responsible for any loss of or damage to materials, tools, or other articles used or held for use in connection with the work. XIII. MISCELLANEOUS PROVISIONS. A. Recyclable Materials. Pursuant to Chapter 3.80 of the Kent City Code, the City requires its contractors and consultants to use recycled and recyclable products whenever practicable. A price preference may be available for any designated recycled product. B. Non-Waiver of Breach. The failure of the City to insist upon strict performance of any of the covenants and agreements contained in this Agreement, or to exercise any option conferred by this Agreement in one or more instances shall not be construed to be a waiver or relinquishment of those covenants, agreements or options, and the same shall be and remain in full force and effect. C. Resolution of Disputes and Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington. If the parties are unable to settle any dispute, difference or claim arising from the parties’ performance of this Agreement, the exclusive means 65 CONSULTANT SERVICES AGREEMENT - 4 (Over $20,000) of resolving that dispute, difference or claim, shall only be by filing suit exclusively under the venue, rules and jurisdiction of the King County Superior Court, King County, Washington, unless the parties agree in writing to an alternative dispute resolution process. In any claim or lawsuit for damages arising from the parties' performance of this Agreement, each party shall pay all its legal costs and attorney's fees incurred in defending or bringing such claim or lawsuit, including all appeals, in addition to any other recovery or award provided by law; provided, however, nothing in this paragraph shall be construed to limit the City's right to indemnification under Section VII of this Agreement. D. Written Notice. All communications regarding this Agreement shall be sent to the parties at the addresses listed on the signature page of the Agreement, unless notified to the contrary. Any written notice hereunder shall become effective three (3) business 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 in this Agreement or such other address as may be hereafter specified in writing. E. Assignment. Any assignment of this Agreement by either party without the written consent of the non-assigning party shall be void. If the non-assigning party gives its consent to any assignment, the terms of this Agreement shall continue in full force and effect and no further assignment shall be made without additional written consent. F. 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 the City and Consultant. G. Entire Agreement. The written provisions and terms of this Agreement, together with any Exhibits attached hereto, shall supersede all prior verbal statements of any officer or other representative of the City, and such statements shall not be effective or be construed as entering into or forming a part of or altering in any manner this Agreement. All of the above documents are hereby made a part of this Agreement. However, should any language in any of the Exhibits to this Agreement conflict with any language contained in this Agreement, the terms of this Agreement shall prevail. H. Compliance with Laws. The Consultant agrees to comply with all federal, state, and municipal laws, rules, and regulations that are now effective or in the future become applicable to Consultant's business, equipment, and personnel engaged in operations covered by this Agreement or accruing out of the performance of those operations. I. Public Records Act. The Consultant acknowledges that the City is a public agency subject to the Public Records Act codified in Chapter 42.56 of the Revised Code of Washington and documents, notes, emails, and other records prepared or gathered by the Consultant in its performance of this Agreement may be subject to public review and disclosure, even if those records are not produced to or possessed by the City of Kent. As such, the Consultant agrees to cooperate fully with the City in satisfying the City’s duties and obligations under the Public Records Act. J. City Business License Required. Prior to commencing the tasks described in Section I, Contractor agrees to provide proof of a current city of Kent business license pursuant to Chapter 5.01 of the Kent City Code. / / / / / / / / / / / / 66 CONSULTANT SERVICES AGREEMENT - 5 (Over $20,000) K. Counterparts and Signatures by Fax or Email. This Agreement may be executed in any number of counterparts, each of which shall constitute an original, and all of which will together constitute this one Agreement. Further, upon executing this Agreement, either party may deliver the signature page to the other by fax or email and that signature shall have the same force and effect as if the Agreement bearing the original signature was received in person. IN WITNESS, the parties below execute this Agreement, which shall become effective on the last date entered below. All acts consistent with the authority of this Agreement and prior to its effective date are ratified and affirmed, and the terms of the Agreement shall be deemed to have applied. CONSULTANT: By: (signature) Print Name: Its (title) DATE: CITY OF KENT: By: (signature) Print Name: Dana Ralph Its Mayor DATE: NOTICES TO BE SENT TO: CONSULTANT: Russell Porter, P.E. Gray & Osborne, Inc. 701 Dexter Ave N., Suite 200 Seattle, WA 98109 (206) 284-0860 (telephone) (206) 283-3206 (facsimile) NOTICES TO BE SENT TO: CITY OF KENT: Timothy J. LaPorte, P.E. City of Kent 220 Fourth Avenue South Kent, WA 98032 (253) 856-5500 (telephone) (253) 856-6500 (facsimile) APPROVED AS TO FORM: Kent Law Department 67 EEO COMPLIANCE DOCUMENTS - 1 DECLARATION CITY OF KENT EQUAL EMPLOYMENT OPPORTUNITY POLICY The City of Kent is committed to conform to Federal and State laws regarding equal opportunity. As such all contractors, subcontractors and suppliers who perform work with relation to this Agreement shall comply with the regulations of the City’s equal employment opportunity policies. The following questions specifically identify the requirements the City deems necessary for any contractor, subcontractor or supplier on this specific Agreement to adhere to. An affirmative response is required on all of the following questions for this Agreement to be valid and binding. If any contractor, subcontractor or supplier willfully misrepresents themselves with regard to the directives outlines, it will be considered a breach of contract and it will be at the City’s sole determination regarding suspension or termination for all or part of the Agreement; The questions are as follows: 1. I have read the attached City of Kent administrative policy number 1.2. 2. During the time of this Agreement I will not discriminate in employment on the basis of sex, race, color, national origin, age, or the presence of all sensory, mental or physical disability. 3. During the time of this Agreement the prime contractor will provide a written statement to all new employees and subcontractors indicating commitment as an equal opportunity employer. 4. During the time of the Agreement I, the prime contractor, will actively consider hiring and promotion of women and minorities. 5. Before acceptance of this Agreement, an adherence statement will be signed by me, the Prime Contractor, that the Prime Contractor complied with the requirements as set forth above. By signing below, I agree to fulfill the five requirements referenced above. By: ___________________________________________ For: __________________________________________ Title: _________________________________________ Date: _________________________________________ 68 EEO COMPLIANCE DOCUMENTS - 2 CITY OF KENT ADMINISTRATIVE POLICY NUMBER: 1.2 EFFECTIVE DATE: January 1, 1998 SUBJECT: MINORITY AND WOMEN SUPERSEDES: April 1, 1996 CONTRACTORS APPROVED BY Jim White, Mayor POLICY: Equal employment opportunity requirements for the City of Kent will conform to federal and state laws. All contractors, subcontractors, consultants and suppliers of the City must guarantee equal employment opportunity within their organization and, if holding Agreements with the City amounting to $10,000 or more within any given year, must take the following affirmative steps: 1. Provide a written statement to all new employees and subcontractors indicating commitment as an equal opportunity employer. 2. Actively consider for promotion and advancement available minorities and women. Any contractor, subcontractor, consultant or supplier who willfully disregards the City’s nondiscrimination and equal opportunity requirements shall be considered in breach of contract and subject to suspension or termination for all or part of the Agreement. Contract Compliance Officers will be appointed by the Directors of Planning, Parks, and Public Works Departments to assume the following duties for their respective departments. 1. Ensuring that contractors, subcontractors, consultants, and suppliers subject to these regulations are familiar with the regulations and the City’s equal employment opportunity policy. 2. Monitoring to assure adherence to federal, state and local laws, policies and guidelines. 69 EEO COMPLIANCE DOCUMENTS - 3 CITY OF KENT EQUAL EMPLOYMENT OPPORTUNITY COMPLIANCE STATEMENT This form shall be filled out AFTER COMPLETION of this project by the Contractor awarded the Agreement. I, the undersigned, a duly represented agent of Company, hereby acknowledge and declare that the before-mentioned company was the prime contractor for the Agreement known as that was entered into on the (date), between the firm I represent and the City of Kent. I declare that I complied fully with all of the requirements and obligations as outlined in the City of Kent Administrative Policy 1.2 and the Declaration City of Kent Equal Employment Opportunity Policy that was part of the before-mentioned Agreement. By: ___________________________________________ For: __________________________________________ Title: _________________________________________ Date: _________________________________________ 70 +>(IflÐtT+ SCOPE OF \ryORK CITY OF KENT CAMBRIDGE RE,SERVOIR RECOATING CONSTRUCTION SUPPORT This proposal is an engineering services proposal for providing construction management engineering services for the Cambridge Reservoir Recoating project. The proposal assumes the following: All coating inspection will be performed by a subconsulønt under Gray & Osbome as part of this contract. All welding inspection will be performed by a subconsultant under Gray & Osborne as part of this contract. Gray & Osborne will review all submittals for the project. Gray & Osbome will prepare all monthly pay estimates and maintain records. The contract is 125 working days. For the purposes of this proposal, the contractor is expected to be painting for 90 working days. SCOPE OF WORK Gray & Osborne will provide construction management engineering support to the City including the following items: Coordinate and attend the preconstruction conference. Set up and maintain an online Construction Management System (CMS) for use by City staff, the contractor, and Gray & Osborne for project documentation and communication. Review submittals and shop drawings. These include, but a¡e not limited to, coatings, welding shop drawings, containment plan, blast disposal plan, environmental contol plar¡ and other submittals as required by the specifications. Provide appropriate levels of on-site inspection depending upon work activities. For the pu{poses of this scope of work, it is assumed that a 1 2 3 4 5. t o a o (March l, 2018)Page I of2 EXHIBIT A 71 Gray & osborne project inspector witl be on site approximately r0 hours per week on average throughout the project. Provide in-offrce support including answering contractor RFI questions, reviewing coating inspection rqtorts, and other support activities. coordinate and attend construction meetings every 2 weeks for a total of 12 meetings. Provide full-time coating inspection when coating activities are happening on site, as well as shop coating spot inspection. Provide welding special inspection. Provide communication and project documentation through the Gray & Osbome CMS sofrware. Provide contract closeout documentation. Provide record drawings upon project completion. The not-to-exceed cost for this proposal is $135,628. Adetailed list of tasks and hours is attached. a a a o o a a (February 28,2018)Page 2 af2 72 DXHIBIT€ ENGINßERING SERYTCES SCOPE A¡fD ESTIMATED COST Cilyt of Kent - Cambridge Resemoir Reeoatìng Constuction Suppofl Total Fully Burdened Labor Cost: Direct Non-Salary Cost: Mileage & Expenses (mileage @ current IRS rate) Subconsultants: Coating Welding Subconsult¿nt Overhead ( I 0old TOTAL ESTIMATED COST: $ s $ $ $ $ 52,725 150 70,000 5,230 7,523 135,628 ' Actual labor cost will be based on eåch enployæ's achral rate. Estimated rates âre for dettrmining total estimated cost only" Ful¡y burdened billing rates include diræt salary cost, overhca4 md profit. (February?8,2018) Page I ofl Fully Burdened Labor Cost: Estimated Fully Burdened Billine Rate:* Fully Burdened Billíns R^ate Range:* Hour Estimate: Record Drawings Construction Documentation Construction Meetings In-Office Assistance On-Site Inspection Submittal Review heconstruction Conference Project Management T¡sl¡s $ll.3l5 sr55 $106 to $184 73 i 4 24 4 4 4 32 Project Manager Hours $ 10,920 $105 $96 to $12ó 104 4 40 24 I 24 4 Civil Engineer Hours $5.220 $145 5100 to $168 36 4 I 4 i6 4 Structural Engineer Hours $23,750 $9s 577 fa $142 25A 2s0 Field lnspector Ilours $ 1.520 $95 $42 to $120 t6 16 AutoCAD/GIS TechJEng. Irtern Eours EXHIBIT B 73 EXTIIÐI+5fry2 GRAY & OSBORNE. TNC. PROFESSIONAL ENGINEERING SERVICES CONTRACT FULLY BTIRI}ENED BILLING RATES* THROUGH JUNE 15,2018** Emplovee Classification Fullv Burdened Billing Rates AutoCAD/GIS Technician/Engineering lntem Electrical Engineer Structural Engineer Environmental TechnicianlSpecialist Engineer-In-Training Civil Engineer Project Engineer Project Manager Principal-in-Charge Resident Engineer Field Inspector Field Survey (2 Person)*** Field Survey (3 Person)*** Professional Land Surveyor Secretary/ìVord Processor* * * $ 42.00 $103.00 $100.00 $ 80.00 $ 80.00 $ 96.00 $106.00 $r06.00 $112.00 gt22.Ot $ 77.00 $r61.00 $238.00 $t 12.00 N/A $120.00 $184.00 $168.00 $11s.00 $123.00 $r26.00 $145.00 $r84.00 $184.00 $168.00 $142.00 $213.00 $290.00 s136.00 to to to to to to to to to to to to to to * Fully Burdened Billing Rates include overhead and profit. ** Updated annually, together with the overhead. All actual out-of-pocket expenses incuned directly on the project are added to the billing. The billing is based on direct out-of-pocket expenses; meals, lodging, laboratory testing and transportation. The transportation rate is $0.54 per mile or the current maximum IRS rate without receipt IRS Section 162(a), *** Administration expenses include secret¿rial and clerical work; GIS, CADD, and computer equipment; owned survey equipment and tools (stakes, hubs, lath, etc. - Note: mileage billed separatelyãt rate noted); miscellançous administration tasks; facsimiles; telephone; postage; and printing costs, which are less than $150. Page 1 ofl 74 EXHIBIT C INSURANCE REQUIREMENTS FOR CONSULTANT SERVICES AGREEMENTS Insurance The Consultant shall procure and maintain for the duration of the Agreement, insurance against claims for injuries to persons or damage to property which may arise from or in connection with the performance of the work hereunder by the Consultant, their agents, representatives, employees or subcontractors. A. Minimum Scope of Insurance Consultant shall obtain insurance of the types described below: 1. Automobile Liability insurance covering all owned, non- owned, hired and leased vehicles. Coverage shall be written on Insurance Services Office (ISO) form CA 00 01 or a substitute form providing equivalent liability coverage. If necessary, the policy shall be endorsed to provide contractual liability coverage. 2. Commercial General Liability insurance shall be written on ISO occurrence form CG 00 01 and shall cover liability arising from premises, operations, independent contractors, products-completed operations, personal injury and advertising injury, and liability assumed under an insured contract. The City shall be named as an insured under the Consultant’s Commercial General Liability insurance policy with respect to the work performed for the City using ISO additional insured endorsement CG 20 10 11 85 or a substitute endorsement providing equivalent coverage. 3. Workers’ Compensation coverage as required by the Industrial Insurance laws of the State of Washington. 4. Professional Liability insurance appropriate to the Consultant’s profession. 75 EXHIBIT C (Continued) B. Minimum Amounts of Insurance Consultant shall maintain the following insurance limits: 1. Automobile Liability insurance with a minimum combined single limit for bodily injury and property damage of $1,000,000 per accident. 2. Commercial General Liability insurance shall be written with limits no less than $2,000,000 each occurrence, $2,000,000 general aggregate and a $1,000,000 products-completed operations aggregate limit. 3. Professional Liability insurance shall be written with limits no less than $2,000,000 per claim and $2,000,000 policy aggregate limit. C. Other Insurance Provisions The insurance policies are to contain, or be endorsed to contain, the following provisions for Automobile Liability and Commercial General Liability insurance: 1. The Consultant’s insurance coverage shall be primary insurance as respect the City. Any Insurance, self-insurance, or insurance pool coverage maintained by the City shall be excess of the Consultant’s insurance and shall not contribute with it. 2. The Consultant’s insurance shall be endorsed to state that coverage shall not be cancelled by either party, except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City. 3. The City of Kent shall be named as an additional insured on all policies (except Professional Liability) as respects work performed by or on behalf of the Consultant and a copy of the endorsement naming the City as additional insured shall be attached to the Certificate of Insurance. The City reserves the right to receive a certified copy of all required insurance policies. The Consultant’s Commercial General Liability insurance shall also contain a clause stating that coverage shall apply separately to each insured against whom claim is made or suit is brought, except with respects to the limits of the insurer’s liability. D. Acceptability of Insurers Insurance is to be placed with insurers with a current A.M. Best rating of not less than A:VII. 76 EXHIBIT C (Continued) E. Verification of Coverage Consultant shall furnish the City with original certificates and a copy of the amendatory endorsements, including but not necessarily limited to the additional insured endorsement, evidencing the insurance requirements of the Contractor before commencement of the work. F. Subcontractors Consultant shall include all subcontractors as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the same insurance requirements as stated herein for the Consultant. 77 This page intentionally left blank 78 PUBLIC WORKS DEPARTMENT Timothy J. LaPorte, P.E., Director Phone: 253-856-5500 Fax: 253-856-6500 220 Fourth Avenue South Kent, WA 98032 DATE: March 19, 2018 TO: Public Works Committee FROM: Tim LaPorte, Public Works Director SUBJECT: Consultant Services Agreement with AECOM for the Upper Mill Creek Dam – Recommend SUMMARY: AECOM, an Engineering consulting firm, was selected to perform engineering services for this project and has completed the majority of the design work. Permitting the dam endeavor has proven difficult and time consuming, taking over two years to accomplish. As a result of the permitting process, numerous changes were required to meet requirements. Permits required include a Corps of Engineers permit, a Washington State Department of Fisheries permit, a State Department of Ecology permit for the dam raising and consultation with the Muckleshoot Indian Nation. After many exchanges over the past year, we believe we are ready to finalize the design, and hopefully obtain the permits in time for construction commencement this summer. EXHIBITS: Draft Contract Amendment will be provided at the meeting on Monday, March 20, 2018. BUDGET IMPACT: This project is included in the Drainage Master Plan and the Drainage Capital budget. STRATEGIC PLAN GOAL(S): ☐ Innovative Government - Empowering responsible citizen engagement, providing outstanding customer service, leveraging technologies, and fostering new opportunities and industries that benefit our community. ☐ Authentic Connectivity and Communication - Uniting people to people, to places, and to their government through superior infrastructure, enriched community interactions, and responsive, trusting relationships. ☐ Thriving Neighborhoods and Urban Centers - Creating vibrant urban centers, welcoming neighborhoods, and green spaces for healthy growth and cultural celebration. ☐ Sustainable Funding - Maximizing long-term financial success through responsible fiscal oversight, economic growth, and community partnerships. ☐ Inclusive Community - Embracing the power of our diversity by encouraging community participation and creating a strong sense of belonging. Motion: Move to recommend Council authorize the Mayor to sign a contract amendment with AECOM for Engineering Services in the amount of $_______, for the completion of the design of the Upper Mill Creek Dam project, subject to final terms and conditions acceptable to the City Attorney and Public Works Director. 79 This page intentionally left blank 80 PUBLIC WORKS DEPARTMENT Timothy J. LaPorte, P.E., Director Phone: 253-856-5500 Fax: 253-856-6500 220 Fourth Avenue South Kent, WA 98032 DATE: March 19, 2018 TO: Public Works Committee FROM: Chris Wadsworth, CFM, Civil Engineering Designer II SUBJECT: Information Only/Preliminary Flood Map Open House March 21, 2018 SUMMARY: The City of Kent is hosting a public open house to discuss changes to the Federal Emergency Management Agency’s (FEMA) Flood Insurance Rates Maps and how they might impact Kent properties. The open house will be held from 6-8 p.m. on Wednesday, March 21, in the City Council Chambers at Kent City Hall. The meeting includes several other jurisdictions, including Auburn, Bellevue, Tukwila and King County. FEMA representatives will also attend. FEMA’s maps delineate flood areas along several rivers and streams in King County, including the Green River, the Cedar River, Springbrook Creek, Mill Creek, the Black River, Kelsey Creek and the west tributary of Kelsey Creek. The maps are preliminary, and once adopted, will be used to help community officials and residents identify flood risks, determine flood insurance rates and inform hazard mitigation plans and land-use and development decisions. City of Kent staff, FEMA representatives, and staff from King County and other local cities, will be in attendance at the meeting to provide information to the public and to answer questions. EXHIBITS: None BUDGET IMPACT: N/A STRATEGIC PLAN GOAL(S): ☐ Innovative Government - Empowering responsible citizen engagement, providing outstanding customer service, leveraging technologies, and fostering new opportunities and industries that benefit our community. ☒ Authentic Connectivity and Communication - Uniting people to people, to places, and to their government through superior infrastructure, enriched community interactions, and responsive, trusting relationships. ☐ Thriving Neighborhoods and Urban Centers - Creating vibrant urban centers, welcoming neighborhoods, and green spaces for healthy growth and cultural celebration. ☐ Sustainable Funding - Maximizing long-term financial success through responsible fiscal oversight, economic growth, and community partnerships. ☐ Inclusive Community - Embracing the power of our diversity by encouraging community participation and creating a strong sense of belonging. Information Only/No Motion Required 81 This page intentionally left blank 82 Residents can view preliminary flood maps at open house in Kent on March 21, 2018 Community members are invited to an open house in Kent on March 21 to view proposed changes to federal flood maps, discuss the potential impacts of these changes, provide feedback and ask questions. The preliminary maps delineate flood areas along several rivers and streams in King County, including the Green River, the Cedar River, Springbrook Creek, Mill Creek, the Black River, Kelsey Creek and the west tributary of Kelsey Creek. Once adopted, these maps will be used to help community officials and residents identify flood risks, determine flood insurance rates and inform hazard mitigation plans and land-use and development decisions. The Federal Emergency Management Agency (FEMA) is updating the flood maps based on new data about flood hazards and with input from King County and other affected jurisdictions. This is the first update of these maps in many years. The open house will be held from 6-8 p.m. on Wednesday, March 21, in the City Council Chambers at Kent City Hall, located at 220 4th Ave. S. in Kent. The forum is being hosted by the City of Kent and the King County Flood Control District, with participation by several other jurisdictions, including Auburn, Bellevue, Tukwila and King County. FEMA representatives will also attend. The preliminary maps show revisions to the 1-percent-annual-chance floodplain, which has a 1 percent chance of flooding in any year. The maps, an excellent reference for residents before or after the meeting, can be viewed onlineat bit.ly/2F7SOzr. Floodplain managers from the jurisdictions represented will be on hand at the open house to answer questions, explain the mapping process and discuss what the proposed changes mean for residents and communities. They will also have computers set up to help attendees view specific properties. After the open house, copies of presentations from the meeting will be available online at kingcounty.gov/floodservices. Requests for site-specific flood maps as well as other questions can be sent to King County River and Floodplain Management Section, attention Sylvia Aro, 201 S. Jackson Street, Suite 600, Seattle, WA 98104-3855. Or email floodmapquestions@kingcounty.gov. In the message or letter, please include your full name, full property address, parcel number (if available), contact information (including mailing address, email address and phone number) and questions or requests. Flooding is the nation’s most common and most expensive natural disaster. According to national statistics, homes within high-risk flood areas have a 26 percent chance of being damaged by flooding over the life of a 30-year mortgage. More information on flooding and flood safety in King County is available at kingcounty.gov/floodservices. To learn more about federal flood insurance, visit floodsmart.gov. The King County Flood Control District is a special purpose government created to provide funding and policy oversight for flood protection projects and programs in King County. The Flood Control District’s Board is composed of the members of the King County Council. The Water and Land Resources Division of the King County Department of Natural Resources and Parks develops and implements the approved flood protection projects and programs. Information is available atkingcountyfloodcontrol.org. Last Updated March 6, 2018 83 This page intentionally left blank 84 PUBLIC WORKS DEPARTMENT Timothy J. LaPorte, P.E., Director Phone: 253-856-5500 Fax: 253-856-6500 220 Fourth Avenue South Kent, WA 98032 DATE: March 19, 2018 TO: Public Works Committee FROM: Eric Connor, Construction Manager SUBJECT: Information Only/132nd Avenue Phase 1 Update SUMMARY: Phase 1 of the 132nd Avenue Improvement Projects is complete. Staff would like to share the success of this project and also update the committee on project costs. EXHIBITS: N/A BUDGET IMPACT: N/A STRATEGIC PLAN GOAL(S): ☐ Innovative Government - Empowering responsible citizen engagement, providing outstanding customer service, leveraging technologies, and fostering new opportunities and industries that benefit our community. ☒ Authentic Connectivity and Communication - Uniting people to people, to places, and to their government through superior infrastructure, enriched community interactions, and responsive, trusting relationships. ☐ Thriving Neighborhoods and Urban Centers - Creating vibrant urban centers, welcoming neighborhoods, and green spaces for healthy growth and cultural celebration. ☐ Sustainable Funding - Maximizing long-term financial success through responsible fiscal oversight, economic growth, and community partnerships. ☐ Inclusive Community - Embracing the power of our diversity by encouraging community participation and creating a strong sense of belonging. Information Only/No Motion Required 85 This page intentionally left blank 86 PUBLIC WORKS DEPARTMENT Timothy J. LaPorte, P.E., Director Phone: 253-856-5500 Fax: 253-856-6500 220 Fourth Avenue South Kent, WA 98032 DATE: March 19, 2018 TO: Public Works Committee FROM: Tim LaPorte, P.E. Public Works Director SUBJECT: Information Only - 228th Street Corridor Union Pacific Railroad Overpass Update on the Right of Way Acquisition SUMMARY: Staff will provide a brief update to the Committee members on the acquisition progress required to move this project into construction. EXHIBITS: None BUDGET IMPACT: N/A STRATEGIC PLAN GOAL(S): ☐ Innovative Government - Empowering responsible citizen engagement, providing outstanding customer service, leveraging technologies, and fostering new opportunities and industries that benefit our community. ☒ Authentic Connectivity and Communication - Uniting people to people, to places, and to their government through superior infrastructure, enriched community interactions, and responsive, trusting relationships. ☐ Thriving Neighborhoods and Urban Centers - Creating vibrant urban centers, welcoming neighborhoods, and green spaces for healthy growth and cultural celebration. ☐ Sustainable Funding - Maximizing long-term financial success through responsible fiscal oversight, economic growth, and community partnerships. ☐ Inclusive Community - Embracing the power of our diversity by encouraging community participation and creating a strong sense of belonging. Information Only/No Motion Required 87 This page intentionally left blank 88 PUBLIC WORKS DEPARTMENT Timothy J. LaPorte, P.E., Director Phone: 253-856-5500 Fax: 253-856-6500 220 Fourth Avenue South Kent, WA 98032 DATE: March 19, 2018 TO: Public Works Committee FROM: Chad Bieren, P.E. Deputy Director / City Engineer SUBJECT: Information Only/Quiet Zone Update SUMMARY: Staff will give an update on the status of the Quiet Zone. EXHIBITS: None BUDGET IMPACT: N/A STRATEGIC PLAN GOAL(S): ☐ Innovative Government - Empowering responsible citizen engagement, providing outstanding customer service, leveraging technologies, and fostering new opportunities and industries that benefit our community. ☐ Authentic Connectivity and Communication - Uniting people to people, to places, and to their government through superior infrastructure, enriched community interactions, and responsive, trusting relationships. ☒ Thriving Neighborhoods and Urban Centers - Creating vibrant urban centers, welcoming neighborhoods, and green spaces for healthy growth and cultural celebration. ☒ Sustainable Funding - Maximizing long-term financial success through responsible fiscal oversight, economic growth, and community partnerships. ☐ Inclusive Community - Embracing the power of our diversity by encouraging community participation and creating a strong sense of belonging. No Motion Required/Information Only 89