HomeMy WebLinkAboutPW04-307 - Original - Comcast of Washington IV, Inc. - Joint Trench Agreement - 11/04/2004 JOINT TRENCH AGREEMENT
THIS AGREEN4ENT, is entered into between the City of Kent, a Washington municipal
corporation ("City"), and Comcast of Washington IV, Inc. a Washington corporation
("Comcast").
RECITALS
WHEREAS, the City is making right-of-way improvements to 4m Avenue North and 1"
Avenue North.
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, that these right-of-way improvements require Comcast to
underground its facilities that are currently located above ground.
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 send out a request for proposal(RFP)that shall include the entering
into of a contract for the construction of a trench which shall ultimately include the City,
Comcast, and PSE facilities. This trench will be placed along the east side of 4s' 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 one span south of the SW corner of Harrison
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 a 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, 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
JOINT TRENCH AGREEMEN r-Page 1 of 8 (October 12,2004)
(between City oJKent and Comcast)
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. RESPONSIBILFI'Y OF THE PARTIES
A. Drawings. Comcast shall provide engineering drawings to the City and obtain a
permit from the City for the underground relocation of Comcast's facilities. These drawings
shall show in detail the location and elevation of the conduits, trench, and vaults, and shall
include a general traffic control plan for activities not associated with installation of facilities
within the contractor controlled open trench area.
B. Instalkttion Comcast shall be responsible for supplying and/or installing within the
open trench their own facilities, including all conductors, vaults and conduits as outlined in
subsection 3.D. 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 their 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. The City's contractor shall provide all traffic control associated
with installation of facilities within the contractor controlled open trench area. Comcast shall be
responsible for providing traffic control during installation of facilities not associated with the
controlled open trench area.
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 schedule by Comcast's
contractor to install facilities in the trench. Once the contractor has given one
week notice to Comcast of when the trenching work will begin, Comcast shall
abide by the following schedule:
a. Comcast shall have available manpower and equipment on site and shall
have a three(3)hour window per day with which to install conduits in the
trench provided and plumb them into the vaults. The City's contractor
will install Comcast's conduit in the street crossings.
b. The City's contractor will excavate approximately 200 feet of trench a day
except at street crossings.
JOINT TRENCH AGREEMENT-Page 2 of 8 (October 12,2004)
(between City of Kent and Comcast)
c. The City's contractor shall provide Comcast daily notification as to the
exact timing of when Comcast's three (3) hour installation window will
start.
d. The City's contractor will excavate for and place Comcast vaults in the
trench.
e. Comcast shall coordinate closely with the City's contractor to provide all
necessary materials.
3. Location of where Comcast's contractor will begin the work.
4. Coordination with other utility companies anies included in the joint trench for the
placement of conduit. This may include the stacking of conduits with another
utility, and locating conduits below or around other vaults.
E. Surveys. The City will provide the survey for the location of the trench and vaults.
F. 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 trench bedding and backfill, commensurate with their proportionate share of trench
usage as shown in Exhibit A attached hereto and incorporated by this reference. 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. Street Crossings. Comcast agrees to pay for the installation costs for the City's
contractor to install Comcast's conduits in the street crossings. These costs are in addition to the
trench costs outlined in subsection 4. A herein.
C. Survey. Conicast agrees to 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 Comeast facilities.
D. Additional Expenses Comcast agrees to pay their proportionate share of additional
expenses incurred due to 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 will not pay for any share of additional expenses incurred due to approved change
requests from PSE, Qwest and/or the City.
JOINT TRENCH AGREEMENT—Page 3 of 8 (October 12,2004)
(between City of Kent and Comcast)
E. Claims by Contractor. Comma agrees to pay the entire cost of any claims made by
the contractor that are proximately caused by Comma. These claims may include delays caused
by installing Comma facilities, delays caused by Comma providing materials, or any other
conflicts between the contractor and Comma's contractor.
F. Vaults Comma agrees to pay for the excavation, site preparation, and installation
for their vaults 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 Comcast's vaults will be finalized after completion of
construction to account for actual construction costs.
G. Invoice. Comma agrees to pay the City within sixty(60)days of being invoiced by
the City for amounts that the contractor has invoiced the City and which Comma has agreed to
pay under this Agreement.
H. 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 Comma's written approval. If for
any reason it is necessary to satisfactorily complete any portion of the work, Comma may
complete the work using its own means and the contractor shall be liable to Comma for any
additional costs incurred by Comma. "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. Comma finther 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.
I. Final PaymentlWaiver 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.
Comma 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 Comma of this price. Comma shall have 24 hours from receiving
the price from the City within which to respond. ff Comcast chooses not to accept the
contractor's price then this work shall only be performed by Comma according to a mutually
agreed upon schedule with the contractor so as not to cause delay to the contractor.
JOINT TRENCH AGREEMENT—Page 4 of 8 (October 12,2004)
(between City of Kent and Comcasst)
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 parry'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 arising out of the fact that the specific portion of the trench at
issue was being made available to Comcast for more than the three(3) hour time frame provided
for in Section 3.13.2. 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 parry's liability hereunder shall be only to the extent of the
parry'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 arise from or in
connection with the performance of the work by the contractor, its agents, representative,
employees, subconsultants or subcontractors.
I. 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(XCin; and employer's liability.
JOINT TRENCH AGREEMENT—Page 5 of 8 (October 12,2004)
(between City ofKent mid Com mt)
3. Excess Liability instwince 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.
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 franchise
agreement, and parties understand and agree that the terms and conditions of this Agreement
shall not be considered as a basis for firture 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. Atiorney'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
JOINT TRENCH AGREEMENT-Page 6 of 8 (October 12,2004)
(between City of Kent and Comcast)
bringing such claim or lawsuit; however, nothing in this subsection shall limit a parry'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. Mo4ficatton. 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.
G. 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
H. Relatiowhip. 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 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.
I 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.
JOINT TRENCH AGREEMENT—Pap 7 of 8 (October 12,2004)
(between City of Kent and Comcast)
IN WITNESS WHEREOF,the parties below have executed this Agreement.
COMCAST OF WASHINGTON IV,INC. CITY OF KENT
wo.-Y
Print Name: Ken Rhoades Print N e: Zr%Y^ I,t �11.�
Title: Area Vice President Title:
DATE �� DATE
Notices to be sent to: Notices to be sent to:
COMCAST CITY OF KENT
Comcast City of Kent
4020 Auburn Way N 220 Fourth Avenue South
Auburn„WA, 98002 KgM WA 98032---_---_-_-.-_--,_---_--,_---_----•--_
Atten: Jim Nies Atten:
(ZQj 288-7531( s) (,253)
(206) 571-8893 (Cell) (253)._..._--.__ __..-_...__._..._-..___----•----._..._-.-_.-
(253)288-7500�? (253)
With a copy to: APPROVED AS TO FORM:
Comcast Cable Communications,LLC
1500 Market Street
Philadelphia, PA 19102 Kent Law Department
Attention: General Counsel
e iagnrv.as�o�r�.ws3areaioso�.aa
JOINT'TRENCH AGREEMENT—page 8 of 8 (October 12,2004)
(between City of Kent and Comcaq)
Exhibit A
4"Ave Joint Trench Agreement
North of Bank of America Property to Smith Street
223 LF,3'wide trench
Comcast 24"conduits
PSE 24"&2-6"conduits
City of Kent 5-2"&24"conduits
Payment of Trenching
Comcast 33%or 1 foot
City of Kent 66%or 2 feet
Smith Street Crossing
72 LF, 2'Wide trench
Comcast 24'conduits
City of Kent 5-27,1-3"&24"conduits
Payment of Trenching
Comcast 50%or 1 foot
City of Kent 50%or 1 foot
Smith Street to South end of 4th
600 LF,3'Wide Trench
Comcast 24"conduits
PSE 24"&2.6"conduits except at Harrison 64"
City of Kurt varies from 3-2"to 6-2"&24'
Payment of Trenching
Comcast 33%or 1 foot
City of Kent 66%or 2 feet
Crossing of 4'h
105 LF,3'Wide Trench
Comcast 24'conduits
PSE 24"and 2-6"conduits
Payment of Trenching
Comcast 33%or 1 foot
City of Kent 665/o or 2 feet
Harrison Street
220 LF,3'Wide Trench
Comcast 24"conduits
PSE 2-4"conduits
Payment.of Trenching
Comcast 33%or 1 foot
City of Kent 66%or 2 feet
JOINT TRENCH AGREEMENT Page 9 of 8 (October 12,2004)
(between City of Kent and Comcast)
l-
comcast
ICU
System ROL17'i_NG
System GU: P27 Band Area: Kent
of Document: Lease Permit Easement Other
Legal Entity Name: comcast of Waswmaton IV.Inc.
System Contact: Jim Nes(253 288-7531
Other Party's Name: Cam' y of Keat
Business Address
&Phone Number: 220 Fourth Aveaue South
Kent.WA 98032
Project Name: 4'b Avenue ImMmagnts
Project Location: Fourth Avum m Asmroximately betvveea Smith and Harrison Streets
is this document New (X) or is it a Renewal ( ) Doc W
Date of Document:
Brief overview of transaction and/or special conditions relating to transaction Joint
trench aw=M,between Comm and Cry of Kent for Lid/Forced Relocation where the
City of Kent is talrina the lead on joint trench.
Initials Date Approval Comments
.27 /MPR/rED ire ,x
Mar -iq NG REtl/R.477pN COSTY
DirectorOILZ-- I/ \
Aran VP It t 1