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HomeMy WebLinkAboutUnite Private Networks, LLC - 4/30/2018AGREEMENT FOR MITIGATION OF UTILITY FACILITY CONFLICTS This Agreement for Mitigation of Utility Facility Conflicts (the "Agreement') is entered into as of hnU� 3(), Zc 18 by and between the City of Waterloo, Iowa (the "City'), and the company identified on the signature page hereof (the "Utility"). RECITALS WHEREAS, the City is engaged in a capital improvement Project for the reconstruction of University Avenue in Waterloo, Iowa (the "Project'); and WHEREAS, the City anticipates that the Project will occur in two or more phases, with the first phase generally covering the length of University Avenue from Midway Drive to Ansborough Avenue and later phases generally covering the length of University Avenue from Ansborough Avenue to U.S. Highway 63; and WHEREAS, Utility owns utility facilities that are located within the public right of way that will be impacted by the Project and that must be mitigated; and WHEREAS, Utility agrees to take the necessary and appropriate steps to identify and mitigate each such conflict; and WHEREAS, the City and Utility desire to set forth in this Agreement the procedures to be followed for mitigation of such conflicts during the Project. AGREEMENT NOW, THEREFORE, it is mutually covenanted and agreed by and between the City and Utility as follows: 1. Public Purpose. This Agreement is deemed to be in the public interest because by reaching an agreement on conflict mitigation, both construction on the Project and mitigation itself will proceed in an orderly and efficient fashion, without significant delay, which will benefit businesses and citizens impacted by construction and mitigation, and also benefit Utility by providing certainty in the process, time being of the essence in completing construction of the Project. 2. Proiect Schedules. Reconstruction work on the Project will commence during the spring of each construction season as soon as weather permits and, for each year of construction, is expected to generally follow a construction schedule as set forth in the Project phase construction documents. Construction work in each season may be divided into specific segments. Utility agrees to develop mitigation plans for each phase in accordance with final Project design plans that the City will provide. 3. Identification of Conflicts. Based on design plans that the City will provide to Utility in advance of each construction season, Utility shall be solely responsible for identifying the precise nature and precise location of every point of conflict between its utility facilities and reconstruction work to be completed on the Project, as well as the steps necessary for mitigation of those conflicts, at its sole cost. 4. Mitigation of Conflicts Procedure. a) Plans. Each year at least sixty (60) days before the scheduled date that Project construction commences, Utility will provide plans and specifications for mitigation of conflicts to City for approval, and upon approval by the City Engineer, which shall not be unreasonably withheld, such plans shall constitute an addendum (the "Phase Mitigation Plans") to this Agreement. b) Time for Resolution. Utility's Phase Mitigation Plans will set forth the time period necessary to complete mitigation of each conflict (the "Completion Time"). The schedule for completion of each conflict mitigation is the earlier of the following: i) Commencing on the date that the City's Project Engineer (identified in paragraph 17 below) provides notice to Utility that conflict mitigation is required at a particular location, taking into consideration the final Project plans and specifications, the construction schedule, and Utility's Phase Mitigation Plans, conflict mitigation must be completed within the Completion Time; or ii) Commencing on the date that Utility provides notice to the Project Engineer that Utility has determined that conflict mitigation may proceed prior to notice from the Project Engineer as set forth in subparagraph 4(b)(i) above, if conflict mitigation may be completed without interference with work on the Project phase then under construction; conflict mitigation must be completed within the Completion Time, or within a longer period as determined by the Project Engineer at the Project Engineer's sole discretion. The notice required by this subsection shall be sufficient so as to allow the parties to determine the precise nature of the conflict and precise location of the conflict referred to in the notice. c) Space Requirements. At least 24 hours prior to the commencement of mitigation work, Utility shall provide notice to the Project Engineer of 2 the space necessary to complete the mitigation work, measured in square feet of distance on the ground surface as well as an estimated depth in feet below grade. d) Utility Presence. Utility, and/or an authorized representative or contractor for Utility with full authority to immediately proceed with mitigation construction, shall be physically present at all times as follows: i) On site at the Project every day that scheduled construction work is being done on the Project that will affect mitigation of Utility conflicts. ii) At weekly construction coordination meetings. iii) On site at the Project as otherwise reasonably required by the City. 5. Mitigation of Conflicts Measures. Utility agrees, at its sole cost, to take all reasonable and necessary steps to mitigate each conflict caused by construction on each phase of the Project, including, but not limited to, the following: a) identifying all conflicts; b) designing and planning for all conflict mitigation; c) surveying, marking, staking and otherwise designating the area required to be occupied in order to mitigate all conflicts; d) completing all construction work necessary for full and complete mitigation of all conflicts as described on each Phase Mitigation Plans addendum, including removal of all Utility facilities that are or have been abandoned or are otherwise no longer in use as a result of the Project and as related to the work shown in said addendum; e) locating, protecting and avoiding other utilities that may be impacted by Utility's mitigation work; f) repairing and restoring the area used to mitigate each conflict so as to allow construction work on the Project to immediately continue, including, if necessary, patching of disturbed roadway, as approved by the City, at the City's discretion; 3 g) mitigating, following the procedure and under the terms set forth above, all additional Utility facility conflicts not described on an applicable Phase Mitigation Plans addendum, that are identified during the course of construction of the Project. 6. Change in Construction Plans. a) If any additional design costs are incurred by the City, its consultants and contractors, due to changes to the final Project design plans for any phase which are necessitated solely by Utility's mitigation plan or changes to Utility's mitigation plan, such actual, documented design costs shall be borne by Utility in addition to any penalty imposed for untimely mitigation as provided in paragraph 8 for delays caused by such changes to final Project design plans. Prior to such changes to the final Project design plans being undertaken, Utility also shall be provided a reasonable opportunity, up to a maximum of 48 hours from the date that notice of intended final Project design plan changes is provided by the City Project Engineer to Utility, to modify its mitigation plan so that changes to the final Project design plans are no longer necessary, as determined by the City in its reasonable discretion. b) If changes to the final Project design plans are made that are not necessitated by Utility's mitigation plan or changes to Utility's mitigation plan, such changes shall be communicated to Utility during the twice weekly construction coordination meetings described in subparagraph 4(d)(ii) above, and Utility shall be given up to a maximum of 48 hours from the date of such communication within which to complete modification of its mitigation plan accordingly, if necessary; provided, however, that if such changes are necessitated by or for the benefit of a third party, City shall require such third party to reimburse Utility its costs of mitigation as required by this subparagraph. 7. Change in Construction Schedule. In the event that construction on the Project is delayed for reasons other than revisions to the final Project design plans as described in paragraph 6(a) or failure of Utility to otherwise meet the schedule for mitigation work, then the schedule for Utility's mitigation work will be adjusted to correspond to the number of days of such delay. 8. Penalty for Failure to Timely Complete Mitigation Work. If Utility fails to timely complete conflict mitigation work in accordance with the Completion Time schedule set forth in an applicable Phase Mitigation Plans addendum, as may be D modified according to section 7 above, and such failure was directly caused by Utility or its authorized representatives, agents, consultants or contractors, and such delay causes additional costs for the City or the City's consultants, agents, or contractors, then for every day mitigation work is not completed past the completion date or adjusted date per section 7 above, Utility agrees to pay its pro rata share of actual delay costs attributable to Utility (in the case where Utility is a partial cause of said delay), or the entirety of such actual costs where Utility is the only such cause of delay. The payment shall be made by Utility to the City within 30 days of receipt of a fully and accurately documented, written demand establishing costs for same. 9. Location of Construction Equipment. Utility agrees to station its materials, supplies, vehicles and equipment in such a way that will not interfere with construction of the Project, except when actually performing mitigation work, and only if reasonably necessary to complete the mitigation work being performed at a particular location. 10. Governing Body. This Agreement shall not be effective until and unless approved by the city council of the City of Waterloo, Iowa. 11. Successors and Assigns. This Agreement is binding upon the assigns, representatives and successors of the parties. 12. Integration. This Agreement supersedes any previous understandings between the parties with respect to the matters addressed herein, and no amendment or modification of the Agreement shall be valid and binding unless made in writing and signed by authorized representatives of both parties. 13. Governing Law. The construction and performance of this Agreement shall be governed by the laws of the State of Iowa. 14. Forum; JURY TRIAL WAIVER. All matters relating to the construction and performance of this Agreement, including but not limited to counterclaims of any type or nature, shall be litigated only in the Iowa District Court for Black Hawk County. Each party hereby waives its right to a jury trial. 15. Counterparts. This Agreement may be executed in one or more facsimile counterparts, each of which will be deemed an original but all of which together will constitute one and the same instrument. 16. Non -assignable. The rights, duties and obligations under this Agreement may not be transferred or assigned without the prior written consent of the non - transferring or non -assigning party. The consent of the non -transferring or non - assigning party shall not be unreasonably withheld. 17. Notice. Any notices given pursuant to this Agreement shall be in writing and shall either be personally delivered, emailed, or sent by ordinary mail to: Project Engineer City of Waterloo 715 Mulberry Street Waterloo, IA 50703 Phone (319) 291-4312 Utility Unite Private Networks, LLC 7200 NW 861" Street, Suite M Kansas City, MO 64153 Phone: (816) 903-9400 IN WITNESS WHEREOF, the parties have entered into this Agreement for Mitigation of Utility Facility Conflicts by their duly authorized officers as of the date first set forth above. CITY OF WATERLOO, IOWA By: Quentin M. Hart, Mayor 2 Utility: Unite Private Networks, LLC By:�, �- 9e. ..'1