HomeMy WebLinkAboutPW17-438 - Original - Comcast - S 228th St Grade Separation at UPRR: Joint Trench - 07/25/2017 � � + � aaM/11/,1/1urn le
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CONTRACT COVER SHEET
This is to be completed by the Contract Manager prior to submission
to the City Clerk's Office.. All portions are to be completed.
If you have questions, please contact the City Clerk's Office at 253 856-5725.
Vendor lame: Comcast
Vendor Number:
3a Edwards plumber
Contract Number: P it
This is assigned by City Clerk's Office
Project Name: S 228th St Grade Separation at UPRR Ind Ave S to the UPRR
Description: ❑ Interlocal Agreement ❑ Change Order ❑ Amendment ® Contract
® Other: .point Trench Agreement
Contract Effective Date: 7,/25/2017 —Termination [date: Ind'ef.
Contract Renewal Notice (days):
Number of days required notice for termination or renewal or amendment
Contract Manager: T LaPorte Department: Public Works
Contract Amount:
Approval Authority: 0' Director ❑ mayor ❑' City Council Meeting Date
Detail: (i.e. address, location, parcel number, tax id, etc.):
JOINT TRENCH AGREEMENT
Between the City of Kent and Comcast
for the S. 228th St. GRADE SEPARATION AT THE UNION PACIFIC RAILROAD—
(72ND AVE S. to the Union Pacific Railroad)
THIS AGREEMENT, is entered into between the City of Kent, a Washington municipal
corporation ("City"), and Comcast of Washington, Inc., a Washington corporation ("Comcast").
RECITALS
WHEREAS, the City is making right-of-way improvements to S. 228th Street, and
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 and under State law, these right-of-way improvements require
Comcast to relocate their facilities that are currently in conflict with this project, 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.
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 with a
Contractor for the construction of a joint utility trench which shall include Comcast, Zayo, PSE
power and PSE gas facilities (the "Trench"). This joint utility trench will be placed along the
north side of S. 2281h Street, between 72"d Ave. S. and the Union Pacific Railroad. There will be
approximately one (1) trench crossings of S. 228th Street to serve customers on the south side of
the street. All utilities that cross S. 228th Street will use this Trench.
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, will be
responsible for constructing the trench and installing Comcast, Verizon, Zayo, PSE power and
PSE gas facilities; accommodating and coordinating the installation of PSE facilities; installing
the bedding material, backfilling and compacting the Trench; and performing any restoration
required by the City. The City represents that any such contract shall further require that the
Contractor's work be performed in a good and workmanlike manner consistent with industry
standards and conducted in conformity with (i) the applicable procedures and requirements of the
JOINT TRENCH AGREEMENT—Page 1 of 11 (June 27,2017)
(between City of Kent and Comcast Re:S. 22ffh Street)
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
3.1 Drawings. Comcast shall provide engineering drawings, specifications,
construction standards, estimated material quantities, and cost estimates to the City for the
underground relocation of Comcast's facilities. The drawings shall show in detail the location
and elevation of the conduits, Trench, and vaults.
3.2 Provision of Conduit and Vaults. Comcast shall provide conduit for installation
by the Contractor in the Trench and shall furnish and deliver all vaults to the site for installation
by the Contractor. Comcast shall schedule all deliveries in a timely manner as outlined in
Section 3.4, so as not to delay the Contractor.
3.3 Traffic Control. The Contractor shall perform all traffic control associated with
installation of facilities within the Trench. Comcast shall be responsible for providing traffic
control during installation of facilities not located within the Trench. Comcast shall submit a
general traffic control plan for these installations.
3.4 Comcast Coordination.
The Contractor will install Comcast's conduit in the Trench and in the street crossings.
The Contractor will excavate for and place Comcast vaults in the Trench including bedding and
backfill. Comcast shall maintain continued coordination with the Contractor regarding the
installation of Comcast's facilities and shall coordinate closely with the Contractor to provide all
necessary materials on-site in a timely manner; provided that Contractor shall provide Comcast
with at least ten(10) days prior notification for material delivery by Comcast.
(b) For any work that Comcast performs independently from the Contractor's work in
the Trench, Comcast shall coordinate closely with the City and the Contractor to ensure this
work will not conflict with the Contractor's work in the Trench. Comcast shall pay any claims
for additional compensation made by the Contractor resulting from conflicts with Comcast's
independent work in accordance with Section 4.5 of this Agreement.
3.5 Removal of Affected Facilities. Parties acknowledge and agree that Comcast
shall in no event be required to remove its respective, affected facilities, prior to completion of
its underground facilities, in accordance with this Agreement, as long as the installation is
completed in conformity with this Agreement.
JOINT TRENCH AGREEMENT-Page 2 of I 1 (June 27,2017)
(between City of Kent and Comcast Re:S. 228`h Street)
3.6 Surveys. The City shall provide the survey for the location of the Trench and
vaults.
3.7 Title to Facilities. All rights, title and interest in the facilities and associated
equipment shall at all times remain with Comcast.
4. COMPENSATION
4.1 Trench costs. Comcast shall pay the City a portion of the Trench costs,
commensurate with its proportionate share of Trench usage, including street crossings, as shown
in Exhibit B 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.
4.2 Survey. Comcast shall pay a proportionate share of costs to provide survey for
vault locations and elevations and any other survey that may be required to locate and place
Comcast facilities. These costs shall be based on a percentage of the construction costs.
4.3 Traffic Control. Comcast shall pay a proportionate share of traffic control costs
related to the construction of the Trench where Comcast facilities are included. The
proportionate share will be based on trench usage as shown in Exhibit B. Comcast shall pay for
all traffic control during the installation of Comcast facilities, not associated with the Trench.
4.4 Additional Expenses. Comcast agrees to pay its proportionate share of additional
expenses incurred due to all 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 is not obligated to pay for any share of additional expenses incurred due solely
to approved change requests from other private utilities and/or the City.
4.5 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 the installation of Comcast facilities, delays caused by Comcast providing materials,
or any other conflicts between the Contractor and Comcast's contractor.
4.6 Vaults. Comcast agrees to pay for the excavation, site preparation, and
installation for their vaults, including bedding and backfill, separately and in addition to any
survey costs and Trench costs within this Section 4. 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.
JOINT TRENCH AGREEMENT—Page 3 of 11 (June 27,2017)
(between City of Kent and Comcast Re:S. 228`h Street)
4.7 Invoice. Comcast shall pay the City within sixty (60) days of submittal by the
City of an itemized billing for Comcast's proportionate share of all actual, identified expenses
incurred by the City or the Contractor in constructing the Trench as set forth in this Section 4.
4.8 Defective or Unauthorized Work.
(a) Comcast reserves the right to withhold payment to 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.
(b) Before withholding payment to the City, Comcast shall provide written notice to
the City of any work it believes to be defective or unauthorized. Upon receipt of written notice,
the City shall be afforded 60 days to correct any work it agrees is defective or unauthorized. If
the City does not agree that the work is defective or unauthorized within 15 days of receipt of the
written notice, Comcast may correct or complete the work at its sole cost.
4.9 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. Comcast shall then have 24 hours from the
time it receives 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, contractors, subcontractors, representatives 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.
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
JOINT TRENCH AGREEMENT—Page 4 of 11 (June 27,2017)
(between City of Kent and Comcast Re:S. 22ffh Street)
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.
7.1 The City's Contractor shall maintain in full force and effect at its own cost
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, sub consultants or subcontractors:
(a) Commercial General Liability insurance with limits of no less than five million
dollars ($5,000,000.00) per occurrence and five million dollars ($5,000,000.00) general
aggregate. Coverage shall be at least as broad as that provided by ISO CG 00 01 1/96 or its
equivalent and include severability of interests. Coverage shall include, but not be limited to:
blanket contractual, Products/Completed operations/broad form property damage; explosion,
collapse and underground (XCU); and employers liability. Such insurance shall name the City,
its officers, officials and employees as additional insureds per ISO CG 2026 or its
equivalent. There shall be a waiver of subrogation and rights of recovery against the City, its
officers, officials and employees. Coverage shall apply as to claims between insureds on the
policy, if applicable. Coverage may take the form of a primary layer and a secondary or
umbrella layer, but the combination of layers must equal $5,000,000 at a minimum.
(b) Commercial Automobile Liability insurance with minimum combined single
limits of one million dollars ($1,000,000.00) each occurrence with respect to each of
Contractor's owned, hired and non-owned vehicles assigned to or used in the operation of this
contract in the City. The policy shall contain a severability of interests provision.
(c) Workers' Compensation insurance with statutory limits as required in the state(s)
of operation; and providing coverage for any employee in connection with this Agreement, even
if not required by statute. Employer's Liability or "Stop Gap" insurance with limits of not less
than $1,000,000 each accident.
(d) The insurance shall not be canceled or materially changed so as to be out of
compliance with these requirements without thirty (30) days' written notice first provided to the
City, via certified mail, and ten (10) days' notice for nonpayment of premium. If the insurance is
canceled or materially altered so as to be out of compliance with the requirements of this
JOINT TRENCH AGREEMENT—Page 5 of 11 (June 27,2017)
(between City of Kent and Comcast Re:S. 228`h Street)
subsection within the term of this contract, Contractor shall provide a replacement
policy. Contractor agrees to maintain continuous uninterrupted insurance coverage, in at least
the amounts required, for the duration of this contract.
7.2 Deductibles/Certificate of Insurance. Any deductible of the policies shall not in
any way limit Contractor's liability to the City.
7.3 Endorsements. All policies shall contain, or shall be endorsed so that:
(a) The City, its officers, officials, boards, commissions, employees and agents are to
be covered as, and have the rights of, additional insureds with respect to liability arising out of
activities performed by, or on behalf of, Contractor under this contract;
(b) Contractor's insurance coverage shall be primary insurance with respect to the
City, its officers, officials, boards, commissions, employees and agents. Any insurance or self-
insurance maintained by the City, its officers, officials, boards, commissions, employees and
agents shall be in excess of the Contractor's insurance and shall not contribute to it; and
(c) Contractor's insurance shall apply separately to each insured against whom a
claim is made or lawsuit is brought, except with respect to the limits of the insurer's liability.
7.4 Acceptability of Insurers. The insurance obtained by Contractor shall be placed
with insurers with a Best's rating of no less than "A VII."
7.5 Verification of Coverage. The Contractor shall furnish the City with certificates
of insurance and endorsements or a copy of the page of the policy reflecting blanket additional
insured status. The certificates and endorsements for each insurance policy are to be signed by a
Person authorized by that insurer to bind coverage on its behalf. The certificates and
endorsements for each insurance policy are to be on standard forms or such forms as are
consistent with standard industry practices.
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 their facilities 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.
JOINT TRENCH AGREEMENT—Page 6 of 1 I (June 27,2017)
(between City of Kent and Comcast Re:S. 22ffh Street)
9. MISCELLANEOUS.
9.1 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.
9.2 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
9.3 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.
9.4 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.
9.5 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.
9.6 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.
9.7 Severahility. 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.
9.8 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.
JOINT TRENCH AGREEMENT—Page 7 of 11 (June 27,2017)
(between City of Kent and Comcast Re:S. 228"Street)
9.9 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.
9.10 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—Page 8 of 11 (June 27,2017)
(between City of Kent and Comcast Re:S. 228`h Street)
IN WITNESS WHEREOF, the parties below have executed this Agreement,
CONICAST CITY OF DENT'
Print Name \,v.. m ° ' .. Print Name:� �
Title: w /6f" Title: ,✓" t `
DATE DATE . '
NOTICES TO BE SENT TO: NOTICES TO BE SENT TIC.:
Comeast CITY OF DENT
Comcast of Washington, Inc. City of Dent
410 Valley Ave NW, Suite 12 Bldg C 220 Fourth Avenue. South
Puyallup, WA 98371 Kent WA 98032
Attn: bill Walker Attn: Chad Bieren
(253) 288-7538 (Desk) (253) 856-5534 (Desk)
(206) 2.55-6975 (Cell) 253 856-6500 Fax
With a copy to: APPROVED AS TO FORM:
Comcast
1701 J FK Boulevard
Philadelphia, PA 19103
Attention: General Counsel Kent Law Department
JOIN f"'1°RE C H AGREEMENT- Page 9 of']I (.fungi 27,2017)
(between City gfKent and CoraPcast lit,.5. 728'11 Street)
Exhibit A
S. 228"' Street Joint Trench Agreement
72ND AVE. S,
LEGEND:
JOINT UTILITY
TRENCH LOCATION
4,
V)
clq
4
V)
A
JOINT TRENCH AGREEMENT
S 228TH ST GRADE SEPARATION
AT THE UNION PACIFIC RAILROAD
EXHIBIT A
INTERURBAN 'TRAIL
UNION PACIFIC RAILROAD
JOIN'T"TRENCI-1 AGREEMENT - Page 10 of 11 (June 27, 2017)
(between Qy ql'Kent and Conicast Re: S. 28"'Sweet)
EXHIBIT B
PROPORTIONATE SHARES
COMCAST COST FOR: (SHARING MAIN JOINI—TRENCH COS]', "ULTS, AND MINOR
TRENCKES FOR VAULTS COUNECTIONS)
gggg!,&
COMCAST TOTAL COST
I I I Joint Trench B.y Linear Foot EA 'S 103,608 5 1 G3,608
601-1 60 Joint Utlry Trench(2Ft Wide.4 F1 LF 25 S 15100
Crushed Surfacing Top Cour-w.5i8 Incb Minus For Trenches to Ccnnect 4 Vaults
6015 63 and vaults kstalloticm TOINI 25 5 1.581
6036 20 Sand for Conduit,Besidme FcT Trenches to Connect 4 Vaults TON $ 25 S 499
6045 22' Permeable Ballast for Vaults Instalaticti TON S 25 5 542
60-171 4 Ccaicast-Vaun:Excivationand lailallatian(2,54-TA EA 5 2-500 S 10.600
6055 1.882 Tnstallaiten and Proofing of 4 Inch Diaxnerez Cc=rmt Conduit LF S 6 S 11.292
6100 IS Ncn-77oveu Geowtfite Fabnc F r Vault InsiAlation Ski S 4 S 71
6110 376 Shoi-izg at Fsttra Excavation C loss B SF S 075 S 282
TOTAL 5C HE M LE 1 5 129_37�')
ENGINIEUMING&CO.NMGEINCY COST,
20"i Engineering&Com"t'lumou),Lmazemecl S 25_871b
10, Ccatinsenc';
!G c Sale Tax S 12-937
TOTAL E-NGEif-E,MING&CO'NiTLNGENCY COTF i S 5L'750
ITOTALFROJECT CONSTRUCTION CCKT 5 131.125
JOINT TRENCH AGREEMENT Page I I of I I (June 27, 2017)
(between City oj'Kent and Comcast Re.- S. 228'I'Strect)