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HomeMy WebLinkAboutPW05-319 - Original - Qwest Corporation - Military Road Joint Trench Agreement - 06/30/2005 JOINT TRENCH AGREEMENT Between the City of Kent and Qwest for Military Road Improvemeents THIS AGREEMENT is entered into between the City of Kent, a Washington municipal corporation ("City"), and QWEST CORPORATION, a Colorado corporation ("Qwest") as of 2005 (the"Effective Date"). RECITALS WHEREAS, the City is undertaking a roadway improvement project along Military Rd. and making right-of-way improvements to Military Rd. (the"Project"); and WHEREAS, the City has notified Qwest that the Project will require relocation of Qwest facilities from aerial to underground; and WHEREAS, under RCW 35.99.060(3)(b),Qwest may seek reimbursement from the City for the additional incremental cost of aerial to underground relocation compared to aerial to aerial relocation if Qwest is a service provider with an ownership share in the aerial supporting structures; and WHEREAS, the City and Qwest do not agree on the appropriate interpretation of RCW 35.99.060(3)(b); and WHEREAS,both the City and Qwest desire to move forward with the Project to avoid potential delays to the Project and the potential costs and expenses associated with Project delays; 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 j "the contractor" in this Agreement. The contractor, pursuant to a contract with the City, shall excavate the trench, install City, PSE, and Qwest conduits and vaults, 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 JOINT TRENCH AGREEMENT—Page I of 9 (May 9,2005) (between City of Kent and Qwest Re.Military Road) 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, 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. Qwest shall provide engineering drawings to the City and obtain a permit from the City for the underground relocation of Qwest'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. Qwest shall be responsible for supplying conduits and vaults within ten (10) days notice provided by the City or its contractor. The City's contractor shall install conduits and vaults in the joint trench. Qwest shall also be responsible for supplying and installing all conductors. All right, title and interest in the facilities and associated equipment shall at all times remain with Qwest. Parties hereto acknowledge and agree that Qwest shall in no event be required to perform a cut-over or transfer or 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 and Qwest has approved the new facilities. C. Traffic Control. The City's contractor shall perform all traffic control associated with installation of Qwest facilities within the contractor controlled open trench area. Qwest shall pay the proportionate share of traffic control required for joint trench construction as noted in Exhibit A. Qwest shall be responsible for providing traffic control during installation of its facilities not associated with the controlled open trench area. D. Qwest Coordination. Qwest shall maintain reasonable coordination with the contractor regarding the installation of Qwest's facilities, as requested by the contractor from time to time. This coordination shall include but not be limited to the following: 1. Timing of when and where materials will be delivered on-site. 2. Inspection of job by a Qwest inspector. 3. Coordination with other utility companies included in the joint trench for the placement of conduit within the trench and during conversion of overhead facilities to underground. Qwest shall have the right at all times to observe and inspect the performance of the work performed in connection with this Agreement. E. Surveys. The City will provide the survey for the location of the trench and vaults. JOINT TRENCH AGREEMENT—Page 2 of 9 (May 9,2005) (between City of Kent and Qwest Re:Military Road) F. Election Not to Proceed If Qwest elects not to proceed with joining in the trench provided by the contractor, Qwest shall remain liable for completing all work described in the approved permit within the time frame specified on the permit. G. Franchise. Qwest shall, if so required by the Washington State Department of Transportation ("WSDOr), 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 Qwest may use this plan in its permit application. H. Completion. The City shall notify Qwest within ten (10) calendar days after completion of the work. Upon receipt of the notification, Qwest shall have ten (10) calendar days to inspect the work and accept or reject the work by delivery of written notice to the City. The City will, at its own expense, correct the problem within ten (10) calendar days after receipt of Qwest's notice. The foregoing procedure will be repeated until Qwest finally approves the work. If Qwest fails to reject the work within the ten (10) day period set forth above, the work shall be deemed accepted by Qwest. Qwest shall prepare as-builts for its own facilities and work. 4. COMPENSATION A. Compensation. The parties agree that cost obligations with regard to the Project shall be consistent with the outcome of the parties' pending federal court litigation (Qwest v. City of Kent,No CV4-2216P, filed in the United States District Court for the Western District of Washington (the "litigation")) over the meaning and effects of RCW 35.99.060(3). Until such time as the litigation is complete, compensation rights and obligations shall be as follows, and shall ultimately be modified to the full extent necessary to be consistent with the final outcome of the litigation. By agreeing to the compensation system set forth herein, Qwest in no way admits to Kent's interpretation of RCW 35.99.060, nor does it waive any rights to cost recovery for this or any other project which Qwest may undertake at the request of the City . Qwest specifically reserves any and all rights under the law, including, but not limited to, those arising in connection with the litigation. If the litigation determines that Qwest is not responsible for the payment of a proportionate share of joint trench costs, the City shall refund to Qwest, within sixty (60) days after such determination any payments due Qwest consistent with the final outcome of this litigation. B. Trench costs. Qwest agrees to pay the City for installation of Qwest conduit and vaults, a portion of the trench costs, including trench bedding and backfill, and associated traffic control 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. C. Survey. Qwest agrees to pay the reasonable costs for the City surveyor's time to provide Qwest vault locations and elevations and any other survey that may be required to locate and place Qwest facilities. D. Additional Expenses. Qwest agrees to pay their proportionate share of additional expenses incurred due to Qwest's approved change requests requiring additional trench depth or JOINT TRENCH AGREEMENT—Page 3 of 9 (May 9,2005) (between City of Kent and Qwest Re:Military Road) width and for unforeseen conditions, including but not limited to dewatering for ground water. Qwest will not pay for any share of additional expenses incurred due to approved change requests from PSE, Comcast and/or the City. If unforeseen conditions arise, the City and Qwest shall work together to negotiate in good faith Qwest's contribution to costs incurred on account of such unforeseen conditions If the parties are unable to agree on Qwest's contribution to costs incurred on account of unforeseen conditions, the conflict will be resolved by Qwest relocating its facilities at its sole expense. Qwest shall always have the right to perform the relocation of its own facilities. E. Claims by Contractor. Qwest agrees to pay the cost of any claims for damages made by the contractor that are proven to be proximately caused by Qwest. These claims may include delays caused by installing Qwest facilities or delays caused by Qwest providing materials. F. Vaults. Qwest agrees to pay for the excavation, site preparation, and installation for their vaults (in the percentages set forth in Exhibit A) 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 Qwest's vaults will be finalized after completion of construction to account for actual construction costs. G. Invoice. Qwest 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 Qwest has agreed to pay under this Agreement. H. Defective or Unauthorized Work. Per the terms of the agreement between the City and contractor, Qwest 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 Qwest's written approval. If for any reason it is necessary to satisfactorily complete any portion of the work,Qwest may complete the work using its own means and the City shall be liable to Qwest for any additional costs incurred by Qwest. "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. Qwest 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 City. I. Final Payment/Waiver of Claims. The making of final payment by the parties shall constitute a waiver of claims by the City, except those previously and properly made and identified by the City as unsettled at the time request for final payment is made. 5. CHANGES. Qwest 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 Qwest of this price. Qwest shall have 24 hours from receiving the price from the City within which to respond. If Qwest chooses not to accept the contractor's price then this work shall only be performed by Qwest according to a mutually agreed upon schedule with the contractor so as not to cause delay to the contractor. Neither party may change any JOINT TRENCH AGREEMENT—Page 4 of 9 (May 9,2005) (between City of Kent and Qwest Re:Military Road) provision of this Agreement, including without limitation costs, without the prior written consent of the other. 6. INDEMNIIFICATION; LIENS AND ENCUMBRANCES. Each party shall defend, indemnify and hold the other party harmless from any and all claims, injuries, damages, losses or suits including all legal costs and attorney fees (except each party shall be responsible for its own costs and fees for subsection iii below, as provided in Section 12 (D)of this Agreement), arising out of or in connection with (i)the performance of the parry's work required under this Agreement, (ii) any personal injuries or property damage received or sustained by any person or property arising in whole or in part in connection with the party's performance of the Agreement, (iii) any breach by the party of the Agreement, and (iv) any act or omission, neglect, negligence, gross negligence or willful misconduct of the party in connection with this Agreement. Notwithstanding the foregoing, this indemnification shall only apply to injuries and damages caused by the negligence or willful misconduct of the party. For purposes of this Section 6, the term "party" shall include each party to this agreement, plus their officers,officials,employees, agents,contractors and subcontractors. 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 (including, in the case of the City, any action by the contractor or any subcontractor),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. 1. Automobile Liability insurance with limits no less than $1,000,000 combined single limit per accident for bodily injury and property damage. 2. Commercial General Liability insurance written on an occurrence basis with limits no less than $1,000,000 combined single limn 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. JOINT TRENCH AGREEMENT—Page 5 of 9 (May 9,2005) (between City of Kent and Qwest Re:Military Road) 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, with respect to 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. WARRANTY In addition to any other express or implied obligations under the Agreement, the City warrants for a period of one (1) year(or longer, if so provided by law, and to the extent provided by law) after final payment by Qwest for the work, that all labor, workmanship, components, materials and other parts of the work performed by the City's contractor will be free from defects in material and workmanship under normal use and service in accordance with Qwest's submitted engineering design. This time period relates only to the specific obligation of the City to correct the work, and has no relationship to the time within which Qwest may seek to enforce the City's obligations under the Agreement or within which the City must comply with the Agreement. If any defects in the City's work occur during the warranty period,upon notice from Qwest, the City will immediately, at its own expense, correct and remedy those defects in the City's work. If the City fails to promptly correct these defects in the City's work, Qwest may correct the work itself or hire another contractor to do so and the City shall pay for all reasonable and verifiable costs of correction promptly upon demand by Qwest. 9. LIMITATION OF LIABILITY Except for each party's indemnification obligations or breach of the section titled Confidential Information, neither party is liable to the other for consequential, incidental, indirect, punitive or special damages, including commercial loss and lost profits, however caused, and regardless of legal theory or foreseeability, directly or indirectly arising under this Agreement,even if such party has been apprised of the possibility of the damages. 10. RECORDS AND AUDITS The City will maintain complete and accurate records with respect to this Agreement, invoicing and payment. The records will, to the extent applicable, be kept in accordance with generally accepted accounting principles and will be kept for a period of three (3) years after termination of the Agreement. Qwest or its designee may audit,copy and inspect the records and accounts at all reasonable times during this period. 11. CONFIDENTIAL INFORMATION "Confidential Information" means trade secrets, systems, data, and customer information provided, disclosed or made accessible by Qwest to the City or the contractor under this JOINT TRENCH AGREEMENT—Page 6 of 9 (May 9,2005) (between City of Kent and Qwest Re:Military Road) Agreement or in connection with the work. The parties acknowledge that the City is a public entity subject to the Washington State Public Disclosure Act(RCW 42.17 et seq.). Subject to applicable law, the City will: (a) not use Confidential Information for any purpose other than the fulfillment of its obligations under the Agreement, (b)not disclose Confidential Information to any third party (including any affiliate of itself or of Qwest) without the prior written consent of Qwest; (c) not make any copies of Confidential Information without Qwest's prior consent; and (d) protect and treat all Confidential Information with the same degree of care as it uses to protect its own confidential information of like importance. In the event the City or the contractor is required to disclose Confidential Information pursuant to law, the City will notify Qwest of the required disclosure with sufficient time for Qwest to seek relief, will cooperate with Qwest in taking appropriate protective measures, and will make such disclosure in a fashion that maximizes protection of the Confidential Information. Subject to applicable law, at the conclusion of the Agreement, or any time at the specific request of Qwest, any and all Confidential Information will be returned to Qwest. 12. 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, the parties shall attempt in good faith to resolve the dispute arising out of or relating to this Agreement promptly by negotiation between executives or senior officials who have authority to settle the controversy and who are at a higher level than the persons with direct responsibility for administration of this Agreement. All reasonable requests for information made by one party to the other will be honored. All negotiations pursuant to this clause are confidential and shall be treated as compromise and settlement negotiations for purposes of applicable rules of evidence. If the parties are unable to resolve the dispute within sixty (60) days after commencement of such negotiations, the parties shall subject the dispute to mediation with a mediator agreed to by both parties. If the parties are unable to agree to a mediator or the dispute is not resolved through mediation, resolution of the 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 6 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. JOINT TRENCH AGREEMENT—Page 7 of 9 (May 9,2005) (between City of Kent and Qwest Re.Military Road) 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. 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 wluch would be binding upon another,and;(ii)be responsible for any obligation or expense whatsoever of another. J. 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. 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. L. Term. The term of this Agreement will commence on the Effective Date and continue until all obligations are met unless the Agreement is otherwise terminated in accordance with the Agreement. In no event will the Term extend beyond 12/31/2006. Either party may terminate this Agreement,in whole or in part, for its convenience upon thirty(30) calendar days' prior written notice. The City will be entitled to payment for all Work satisfactorily completed as of the date of termination. Qwest will be entitled to receive all Work completed or in progress as of the date of termination. Neither party will have any other liability arising out of termination. All representations, warranties and indemnifications contained in the Agreement will survive the termination of this Agreement. In addition and not in limitation of the foregoing, the sections entitled Warranty, Confidential Information, Indemnification; Liens and Encumbrances, Limitation of Liability, Records and Audits and Dispute Resolution will survive the termination or expiration of this Agreement. Expiration or termination of this Agreement will not relieve either party from its obligations arising under the Agreement prior to expiration or termination. JOINT TRENCH AGREEMENT—Page 8 of 9 (May 9,2005) (between City of Kent and Qwest Re.Military Road) IN WITNESS WHEREOF,the patties below have executed this Agreement. QWEST OF WASHINGTON IV,INC. CI7;T UAdA,& AWWV Ak Print Name: Mark D. Schmidt Print M rre- Title: Director Process M ana em�ent Titl /1'fA v DATE O 5-Z )--ZW5 DATE 10 -3©- O- — NOTICES TO BE SENT TO: NOTICES TO BE SENT TO: QWEST CITY OF KENT Qwest City of Kent 23315 66th Avenue South 220 Fourth Avenue South Kent,WA 98032 Kent,WA 98032 Attn: Jeff Watson Attn: Chad Bieren (253) 372-5358(Desk) (253) 856-5534 (Desk) (877) 506-3732 (Pager) (253) 856-6500 (Fax) (253) 372-5174 (Fax) APPROVED AS TO FORM: L . Kent Law Department JOINT TRENCH AGREEMENT—Page 9 of 9 (May 9,2005) (between City of Kent and Qwest Re:Military Road) Exhibit A Military Road Trench Agreement I I EXHIBIT A-JOINT TRENCH AGREEMENT—MILITARY ROAD (between City of Kent and Qwest) iIt I II N N1 3 W aI ONi ON10NiW NNM000~ONAA W NP. 000 gVlNNNOCC0 01 01 5 0110 0 co 0 c0 NN N N NF+ i+ N i ►JNNNNN N N N N N I+ M I+ H IA FA IA O O O O z + +.1 +pp + ��+pp + +p + {+� + + + + .+' + + + �+'p +q + + �+p + + + + + + + + + fm Oef 01OMS tNp O1 V 0 FAA N N O a O `ePiPS at iSO Goo 0 Oa Goo 0001& b g G G n z Qp INS O V O W t0 r r W Q N N Nw coA O �' V l0 coN coo N 000 N v ^' O 3 ► V `+ A F+ (tom+ N A yA M M {Vn O+ A W to pM V V (n A .11 p M A {An A A A A VI pM A 8 . 88 PW, iRO Oa cl C%f Ch CD LgOW ONV yAy � V COC COC ONOAAGOG NO14 V W 4q4q (n Lq i,J c4� 0% O g A A V A O O V A O O A ) A O v O O O V 0 0 W N "' W 0 0 0 OD OD O OD A ONO N OD N 00 OAO O Q T W A O O O O F+ O N N N N N N N W W W W N N N N N N Ni N N N N N N N QQ O 01 O O O N O � $ NM (A A VI 0000 O W O J O Vi m N N ONO (Nn O ..4 N O tnn N F V W W Z T W N W p W N VI N VI N N p p N In ,p 00 $ V 00 10 00 00 O W V V N N V O �O N O O N V W F+ O N O+ N N E ��Wpp N .4 N O W Fyn A OWO ~ V N FA+ oN A A V ON O 0 0 0 O + O O� T N N OD 01 A 01 A O 00 A O W O O N h+ O W W W W W W W O O O O O O O N O O O N N N W O O O pgOp � 0 0 PJ 01 WW 8$0 p W A O obi W r W V `Q O{ Q O O `Q O� O O O N O O O p O ? 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