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HomeMy WebLinkAboutPW05-216 - Original - Comcast of Washington IV, Inc. - Joint Trench Agreement for Military Road Improvements - 06/30/2005 JOINT TRENCH AGREEMENT Between the City of Kent and Comcast for Military Road Improvements THIS AGREEMENT, 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 Military Road 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 advertise for construction bids and enter into a contract for the construction of a trench which shall include the City, Comcast, Qwest, and PSE facilities This trench will be placed along the west side of Military Road between Gai's Bakery located at 23009 Military Road South and one span north of the Military Road South/South 239`' Street intersection This trench will include an open cut trench crossing of SR 516 There will be approximately seven (7) trench crossings of Military Road to serve customers on the east side of the street All utilities will use these trenches 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, PSE, and Qwest facilities, accommodate and coordinate the installation of Comcast 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 JOINT TRENCH AGREEMENT—Page 1 of 8 (May 3,2005) (between City of Kent and Comcast Re Military Roao 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, (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, 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 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 Installation. 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 in a timely manner 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 perform 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 necessary manpower and equipment on site and shall have a three (3) hour window per day with which to complete installation of conduits when the trench is provided and plumb them into the vaults The City's contractor will install Comcast's conduit in the street crossings JOINT TRENCH AGREEMENT—Page 2 of 8 (May 3,2005) (between City of Kent and ComeastRe MihtarvRoad) b 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 c The City's contractor will excavate for and place Comcast vaults in the trench d. Comcast shall coordinate closely with the City's contractor to provide all necessary materials in a timely manner 3 Location of where Comcast's contractor will begin the work 4. Coordination with other utility companies 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 Electron 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 G Franchise. Comcast shall, if so required by the Washington State Department of Transportation("WSDOT"), submit for and obtain, at its cost, a utility franchise permit from the WSDOT for its facilities that cross SR 516 The City has developed a traffic control plan for the crossing and the City agrees that Comcast may use this plan in its permit application 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 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 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 Comcast 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 Comcast facilities JOINT TRENCH AGREEMENT-Page 3 of 8 (May 3, 2005) (between City of Kent and Comeast Re Alihtary Road) D Traffic Control Comcast agrees to pay the City a proportionate share of traffic control set-up costs related to the contractor controlled open trench areas where Comcast facilities are present The proportionate share shall be based on trench usage as shown in Exhibit A Comcast shall be responsible for all traffic control costs during installations of Comcast facilities not associated with the controlled open trench area E 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 F 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 G. Vaults. Comcast 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 H Invoice. Comcast 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 Comcast has agreed to pay under this Agreement I. 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 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 J. 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 JOINT TRENCH AGREEMENT—Page 4 of 8 (May 3, 2005) (between City of Kent and Comcast Re Mdrtary Road) 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 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, 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 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 D 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 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 arise from or in connection with the performance of the work by the contractor, its agents, representative, employees, subconsultants or subcontractors JOINT TRENCH AGREEMENT—Page 5 of 8 (May 3,2005) (between City of Kent and Cancast Re Mihtary Road) 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 x 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 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 JOINT TRENCH AGREEMENT—Page 6 of 8 (May 3,2005) (between City of Kent and Comcast Re Miktary Road) 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 the affected parties 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 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 riots or disturbances, fire, floods, explosions, earthquakes, wind, storms, hurricanes, lightmng 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 8 (May 3, 2005) (between City of Kent and Comcast Re Mihtary Road) K. 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 OF WASHINGTON IV, INC. CITY OF KENT �v '7V /�/ Q;oc I " Print Name Kin Rhoades Print Ir a Title Area Vice President Title /JJL/14 ve/L DATE DATE (o ' d— D 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 Kent WA 98032 Attn Jim Nies Attn Chad Bieren 253 288-7531(Desk) (253) 856-5534 (Desk) (206) 571-8893 (Cell) (253) 856-6500 (Fax) (253) 288-7500 (Fax) With a copy to APPROVED AS TO FORM: Comcast Cable Communications, LLC /� �/ 1500 Market Street �j�a T, Philadelphia, PA 19102 Kent Law Department Attention, General Counsel P 1Gvir%RL OpmFiles\01 7/-2005kJomtTmchAgrzemm-CmT g.NfflthryRRoeAAoc JOINT TRENCH AGREEMENT—Page 8 of 8 (May 3,2005) (between City of Kent and Comcast Re MiktaryRoad) Exhibit A Military Road Trench Agreement z r EXHIBIT A-JOINT TRENCH AGREEMENT—MILITARY ROAD (between City ofKent and Comcast) 3 N N N N N N N N N N N r r r r r r r V . . . . W N N r 0 0 00 . 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N o o o o ra N o o o o pCC D ON0014OC) W m"r O O W W omVOOOOOO O NOOO O to " O0000C U 0 a 0 � � 0 Q] r M 0 0 0 0 0 0 0 0 0 � 0 0 0 � o 0 0 II o 0 0 0 �- II o 0 0 0 0 0 0 0 0 0 0 -i z z PA a O CD W O O I j V O o C 'D aa%% �,w, W0 0 0 0 0 0 0 0 0 0 0 0 0 0 O AI O O O Y O A r Y N N N N N 0 N W N W - �-+ r r r r N r �-+ N NJ 4 c f+ r r O F, 0 0 0 � 0 0 _ O � cn A N W O f-` O � O N A r t+ -0= VI O N r+ O N I--` A - O N O O O O p V Q O W W N W �` O F-` O 0 O to N t-` N N O O OJ �-+ O (n F+ N O 0 � a a o 0 0 'J m 0 0 m to w O O r O o 0 0 to f+ �-+ tO O C. m H O O r t0 T M 0 0 0 0 � o r M Q 0 � � � 0 a o 0 0 0 0 0 0 0 0 0 0 0 0 II o 0 0 m II o 0 0 0 0 0 0 0 m m z z —{ A 0 In r (!1 A N N 0 000 00 O O N Y W Co N N co A m A N W W m V N F+ O V N N O W N N O] _ O O O O W to N N m O A N CO A O m A V t0 N m A cl N "I 3 f+ � r A w A N w s O N W A W r O O O r O OO V t0 t0 V O r0 ? t0 C 00 t0 V a r r- EXHIBIT "A"