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HomeMy WebLinkAboutCAG2003-0516 - Original - Comcast - 4th & 1st Ave N Joint Trench Agreement - 02/03/2003 ry i _ �2` ��. Records Ma. agernO�n- ' KENT N Document W......... �a CONTRACT COVER SHEET This is to be completed by the Contract Manager prior to submission to City Clerks Office. All portions are to be completed, if you have questions, please contact Mary Simmons, City Clerks Office. Vendor Name: Contract Number. This is assigned by Mary Simmons Vendor Number: Project Name: , s a'Q Contract Effective Date: ' kuds P- Contract Termination Date: Contract Renewal Notice (Days): Number of days required notice for termination or renewal or amendment Contract Manager: " r lark CQ� Department: Qa�� L Abstract: ADCL7832 07/02 JOINT TRENCH AGREEMENT THIS AGREEMENT is entered into between the City of Kent, a Washington municipal corporation ("City"), and Comcast of Washington IV, Inc., a Washington corporation, formerly TCI Cablevision of Washington, Inc. ("COMCAST") RECITALS WHEREAS, the City is making right-of-way improvements to 4`' Avenue North and ls` Avenue North, and WHEREAS, it is the City's belief that, pursuant to local ordinance and the franchise agreement, these nght-of-way improvements require COMCAST to underground its facilities that are currently located above ground and owned by the parties to this Agreement, 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 into AGREEMENT To facilitate construction of a joint trench, the parties agree as follows 1. SCOPE OF WORY, The City of Kent will send out for bid and enter into a contract for the construction of a trench to include the City, Qwest, COMCAST, and PSE facilities This trench will be placed along the east side of 41h Avenue North from the north end of the Bank of America real property located at 311 — 4`h Avenue North (King County tax parcel number 714280-0021-02) to James Street and will include bonngs under James Street to the northeast corner of the 4th Avenue North/James Street intersection The trench will also be constructed along the west side of I't Avenue North from West James Street to West Temperance Street. 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 contract with the City, shall excavate the trench, install City facilities, accommodate and coordinate the installation of other utilities, install the bedding material, backfill and compact the trench, provide the necessary borings under James Street 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 (1) the applicable procedures and requirements of the parties as described herein, (u) all applicable laws, ordinances and regulations of any governmental authority, and, (ni) all applicable terms and provisions of the National Electric Safety Code, as may be amended, JOINT TRENCH AGREEMENT—Page I of 9 (January 27, 2003) (between City of Kent and Comcast Corporation) 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. A Drawings COMCAST shall provide engineering drawings to the City and obtain a permit from the City's Public Works Department approving the plans for the underground relocation of its facilities These drawings shall show in detail the location and elevation of the conduits, trench, and vaults, and shall include a traffic control plan The terms of the permit shall be consistent with the terms of the Agreement B Installation COMCAST shall be responsible for supplying and installing within the open trench its own facilities, including all conductors, vaults and conduits All right, title, and interest in the facilities and associated equipment shall at all times remain with COMCAST Parties hereto acknowledge and agree that COMCAST shall in no event be required to remove its respective, affected aerial facilities prior to completion of the underground facilities in accordance with this Agreement, and so long as said installation is completed in conformity with this Agreement C Traffic Control COMCAST shall be responsible for providing any required traffic control during the installation of its own facilities, which may be required specifically for the installation of its facilities D COMCAST Coordination COMCAST shall maintain continued coordination with the contractor regarding the installation of COMCAST's facilities This coordination shall include but not be limited to the following- 1 Timing of when and where materials will be delivered on-site 2 Time and duration of work including project trenching schedule by COMCAST's contractor to install facilities in the trench Once the contractor has given forty-eight (48) hours notice to COMCAST that the trench will be available, COMCAST shall abide by the following schedule• a COMCAST shall be given three (3) working days, starting from the time the trench is actually available to COMCAST contractors, to install its facilities in the trench, including the placement of vaults, on 4th Avenue North b. COMCAST shall be given two (2) working days, starting from the time the trench is actually available to COMCAST contractors, to install its facilities in the trench, including vaults, on ls` Avenue North between James Street and Temperance Street 3 Location of where COMCAST's contractor will begin the work JOINT TRENCH AGREEMENT—Page 2 of 9 (January 27, 2003) (between City of Kent and Comcast Corporation) 4 Coordination with other utility companies included in the joint trench for the placement of conduit and vaults This may include the stacking of conduits with another utility, locating conduits below or around other vaults, and placement of vaults around other conduits E Surveys The City will provide the survey for the location of the trench COMCAST shall provide the survey for its own vaults using a licensed Professional Land Surveyor (PLS) F. As-built COMCAST shall provide the City with a certified as—built drawing of the location of the vaults by a licensed PLS. G Election Not to Proceed If COMCAST elects not to proceed with joining in the trench provided by the contractor, COMCAST shall remain liable for completing all work within the approved permit at the time frame specified on the permit 4. COMPENSATION A Trench costs COMCAST agrees to pay the City a portion of the trench costs, including any restoration, commensurate with its proportionate share of trench usage as shown in Exhibit A attached hereto and incorporated by this reference Restoration shall be as near as practicable to the original condition of the site, and where applicable including permanent pavement patches, replacement, in-kind, of existing curb, gutter and sidewalks, hydroseedmg of grass areas, and placing of straw mulch on bare ground Preliminary trench costs will be agreed upon prior to construction based on an estimate from the bid accepted by the City Trench costs will be finalized after completion of construction to account for actual construction costs B Additional Expenses COMCAST agrees to pay its share of any additional expenses incurred in providing the trench due to any overexcavation required or any other unforeseen conditions, including any additional trench width or depth attributable to errors in COMCAST's design or conflicts not accounted for in COMCAST's design C 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 installing COMCAST facilities, delays caused by COMCAST providing materials, or any other conflicts between the contractor and COMCAST's contractor D Vaults COMCAST agrees to pay for the excavation for its vaults separately and in addition to any trench costs discussed above These additional costs shall be preliminarily determined from the bid price accepted by the City COMCAST will also be responsible for any additional costs incurred in excavating for its vaults such as overexcavation or any other unforeseen conditions The cost to excavate for COMCAST's vaults will be finalized after completion of construction to account for actual construction costs JOINT TRENCH AGREEMENT—Page 3 of 9 (January 27, 2003) (between City of Kent and Comcast Corporation) E Invoice COMCAST agrees to pay the City within sixty (60) days of being invoiced by the City for amounts that the City has been invoiced by the contractor and which COMCAST has agreed to pay under this Agreement F. Defective or Unauthorized Work. Per the terms of the agreement between the City and contractor, COMCAST reserves the right to withhold payment from 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 COMCAST's written approval If for any reason it is necessary to satisfactorily complete any portion of the work, COMCAST may complete the work using its own means and the contractor shall be liable to COMCAST for any additional costs incurred by COMCAST "Additional costs" shall mean all reasonable costs, including legal costs and attorney fees, incurred by the parties beyond the price included in the bid accepted by the City COMCAST further reserves the right to offset the cost to complete the work, including any additional costs, from any and all amounts due or to become due the contractor G. 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 Prices supplied by the contractor for COMCAST change orders shall be in conformance with the 25% limit in subsection 1-04 4 of the WSDOT Standard Specifications COMCAST shall have 24 hours from receiving 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, its officers, officials, employees and agents harmless from any and all claims, injuries, damages, losses or suits including all legal costs and attorney fees, ansmg 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 COMCAST to the City shall include all claims, injuries, damages, losses or suits from third parties ansmg out of the fact that the specific portion of the trench at issue was being made available to COMCAST for more than one (1) day after the conclusion of the 48 hour notice was given in Section 3 D 2 by the contractor, except for injuries and damages caused by the negligence or willful misconduct of the City. JOINT TRENCH AGREEMENT—Page 4 of 9 (January 27, 2003) (between City of Kent and Comcast Corporation) 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 ansmg 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 party's liability hereunder shall be only to the extent of the party's negligence. The provisions of this section shall survive the expiration or termination of this Agreement No party, directly or indirectly, shall create or impose any lien on the property of another, or on the rights or title relating thereto, or any interest therein, or in this Agreement Each party shall promptly, at its own expense, take such action as may be necessary to duly discharge any lien created by it on the property of another 7. INSURANCE. The contract between the City and the contractor shall require that the contractor procure and maintain for the duration of the project insurance of the types and in the amounts described below against claims for injuries to persons or damage to property which may anse from or in connection with the performance of the work by the contractor, its agents, representative, employees, subconsultants or subcontractors 1 Automobile Liability insurance with limits no less than $1,000,000 combined single limit per accident for bodily injury and property damage, and 2. Commercial General Liability insurance written on an occurrence basis with limits no less than $1,000,000 combined single limit per occurrence and general aggregate for personal injury, bodily injury and property damage Coverage shall include but not be limited to blanket contractual, products/completed operations/broad form property damage, explosion, collapse and underground (XCU), and employer's liability 3 Excess Liability insurance with limits not less than $1,000,000 per occurrence and aggregate Any payment of deductible or self insured retention shall be the sole responsibility of the contractor The parties, their officials, employees, agents and volunteers shall be named as additional insureds on the insurance policy, as respects work performed by or on behalf of the parties and a copy of the endorsement naming the parties as additional insured shall be attached to the Certificate of Insurance, copies of which shall be provided to the parties prior to commencement of construction by the contractor. The contractor's insurance shall 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 JOINT TRENCH AGREEMENT—Page 5 of 9 (January 27, 2003) (between City of Kent and Coincast Corporation) 8. FRANCHISE 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 and enter into a writing pursuant to the franclse 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. A 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 B 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 C 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 D 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 E 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 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 each of affected party JOINT TRENCH AGREEMENT—Page 6 of 9 (January 27, 2003) (between City of Kent and Comcast Corporation) G. Severabtltty 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 H 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 I 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 nots 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 J 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 C OF WASHINGTON IV, INC., C OF KEN Print ame c c Germano P Name Jim White Title, egional Senior Vice President 101e. Mayor DATE ( 177103 DATE v2 Notices to be sent to: Notices to be sent to: COMCAST CITY OF KENT Atm. Franchise Dent Mark Madfai, Engineer 22025 30t'Drive SE City of Kent Bothell, WA 98201-4444 220 Fourth Ave S 425-398-6000 (telephone) Kent, WA 98032 425-398-6154 (facsimile) (253) 856-5500 (253) 856-6500 (facsimile) JOINT TRENCH AGREEMENT—Page 7 of 9 (January 27, 2003) (between City ofKent and Comcast Corporation) With a copy to APPROVED AS TO FORM: COMCAST Attn Legal Dept 1500 Market St. Kent City Attomey Philadelphia, PA 19102 JOINT TRENCH AGREEMENT—Page 8 of 9 (January 27, 2003) (between City of Kent and Comcast Corporation) Exhibit A 1" Ave / 4`h Ave Undergroundmg Agreement 5/10/02 4`h Ave. N North of the Bank of America Property to the South end of the 2nd Ave Extension. 480 LF, 4' Wide Trench AT&T—4-4" conduits PSQwest—4-4" conduits E 44"conduits 9 City of Kent 2-4", 2-2" conduits YR•Rp N ARP Payment of Trenching- AT&T 25% or 1 foot Qwest 25% or 1 foot "'•"' "' 0 City of Kent 50% or 2 feet G JDINT UTY TRENCH DETAIL-4TH_AVE,_ Southeast corner of the 2"d Ave Extension to the southeast corner of James St. 500 LF, 4'Wide Trench AT&T 3-4" conduits PSE 44"conduits ma 1 j City of Kent 2-2", 14" conduits YKNAa Pa Payment of Trenching: / AT&T 25%or 1foot t. .ml �`,rmRry mr(al lti•p1Y O City of Kent 75% or 3 feet �r 0_JDINT UnUTV TRENCH DETAIL-4TH AVE. 1•`A,,e: m.Ka�,• ff. Southwest corner of James St to the northwest corner of Temperance St 900 LF, 4' Wide Trench t Qwest 24" conduits AT&T 14"conduit i ,„• PSE 2-4"conduits? City of Kent 2-2"conduits YR[RRRp. aMR3 Payment of Trenching -i'an a i rt(il� �1a•AT&T Qwest 25% or 1 foot ,-r a„�imn ,tea•*•* AT&T 12 5% or 0 5 feet City of Kent 62.5% or 2 5 feet (D JDI LrtV�INCH DETAIL-iST AVE. Northwest comer of Temperance St to 100' south on the east side of the road 150LF Qwest 14"conduit Qwest will pay 100% of this cost