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HomeMy WebLinkAboutPW18-145 - Original - Comcast of Washington, Inc. - S 228th st Grade Separation: Joint Trench Agreement - 04/09/2018 KE G- Records CONTRACT COVER SHEET This is to be completed May the Contract Manager prior to submission to the City Clerk's Office. All portions are to be completed. 1t you have questions, please contact the City Clerk's Office at 25 -8S -,572 . El Blue/Motion Sheet Attached Pink Sheet Attached' Vendor Name: Comcast Vendor Number (.i DE): Contract Number (City Clerk): r 19 15 Category: Contract Agreement Sub-Category (it applicable): hoos� ,. _..Q��r��_�tejrra_..._.. � . Project Name: South 2281h St Grade Separation Project 3oint Utility 'drench Contract Execution Date: Date signed by Mayor 'Termination date: Contract Manager: mSusanne Provencao Smith Department PW mmmEngineering Contract Amount: $124,845 Approval Authority: F Director ® Mayor ❑ City Council Other Details: Joint_Utility Trench Aareemment with Comcast_is shared with Zavo, Group LLC and Puget Sound Energy. Trench will be located along the north side of S 228`n St, between the 'UP Railroad and 76 Ave S. 40 000 T Agenda Item: Consent Calendar - 8E W (;,n N TO: City Council DATE: April 3, 2018 SUBJECT: South 228th Street Grade Separation Project Joint Utility Trench Agreements with Comcast, Zayo, and Puget Sound Energy - Authorize MOTION: Authorize the Mayor to sign Joint Utility Trench Agreements with Comcast, Zayo and Puget Sound Energy for the South 228th Street UPRR Grade Separation Project, subject to final terms and conditions acceptable to the City Attorney and Public Works Director. SUMMARY: Century Link, Comcast, Zayo, and Puget Sound Energy (PSE) Gas and Power will need to relocate their facilities to accommodate construction of the South 228th Street Union Pacific Railroad (UPRR) Grade Separation project. Currently, these facilities lie underground and are in conflict with future improvements along South 228th Street on the east side of the UPRR tracks. Comcast, Zayo and PSE Gas will participate in a joint utility trench that the City's contractor will construct as part of the overall project. Constructing these improvements as part of a City public works contract ensures the timely relocation of utilities and minimizes utility conflicts during construction of other improvements. This arrangement reduces the risk of change orders due to utilities, which can be significant. Each utility will pay its proportionate share of costs to complete the relocation of its facilities. Last year many of these utility companies relocated their facilities on the west side of the UPRR tracks from above ground poles to underground, They participated in a joint utility trench that the City's contractor constructed on the west side of the tracks. EXHIBITS: Joint Utility Trench Agreement with AT&T RECOMMENDED BY: Public Works Committee YEA: Troutner, Fincher, Higgins NAY: BUDGET IMPACT: All costs will be reimbursed by the utilities to the City. STRATEGIC PLAN GOAL(S): Z Authentic Connectivity and Communication - Uniting people to people, to places, and to their government through superior infrastructure, enriched community interactions, and responsive, trusting relationships. X Sustainable Funding - Maximizing long-term Financial success through responsible fiscal oversight, economic growth, and community partnerships. JOINT TRENCH AGREEMENT Between the City of Kent and Comcast for the S. 228t' St. GRADE SEPARATION AT THE UNION PACIFIC RAILROAD— (Union Pacific Railroad to 72n'Ave S) 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. 228'h 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, and PSE gas facilities (the "Trench"). This joint utility trench will be placed along the north side of S. 228'h Street, between the Union Pacific Railroad and 72"d Ave S. 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, Zayo, 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 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 JOINT TRENCH AGREEMENT—Page 1 of 10 (January 16,2018) (between City of Kent and Comcast Re:S. 228"Street) 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 Tinffic 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. (a) 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. 3.6 Surveys. The City shall provide the survey for the location of the Trench and vaults. JOINT TRENCH AGREEMENT—Page 2 of 10 (January 16,2018) (between City of Kent and Comcast Re:S.228"Street) 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. Comeast 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. 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. JOINT TRENCH AGREEMENT-Page 3 of 10 (January 16,2018) (between Cite of Kent and Comcast Re:S. 228i1t Street) (a) Comeast 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 Comeast'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 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 JOINT TRENCH AGREEMENT—Page 4 of 10 (January 16,2018) (between City of Kent and Comcast Re:S.228"Streeo 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 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. JOINT TRENCH AGREEMENT—Page 5 of 10 (January 16,2018) (between City of Kent and Comcast Re:S. 228"Street) 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. 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. JOINT TRENCH AGREEMENT—Page 6 of 10 (January 16,2018) (between City of Kent and Comcast Re:S.228`r'Street) 9.2 Nonivaiver 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 Attorneys 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 attorneys 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 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. 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. 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. JOINT TRENCH AGREEMENT-Page 7 of 10 (January 16,2018) (befiveen Ci{r of Kett and Conicast Re:S. 228'Street) 9,1 o F�ntire ligreement. 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 lan(,ua,,e contained in this Aureement, the terms of this Agreement shall prevail. Z7 t:� 111� IN WITNESS WHEREOF, the parties below have executed this Agreement. COMCAST CITY OF KENT (A rr k' V Print Nanle:� r\e V1 Print Name: Fitle: V r-, I I VIA vi L e- Title: fnaAA�c DATE_ Cc — t �/ DATE— LA I li — NOTICES TO BE SENT TO: NOTICES TO BE SENT TO: Comcast CITY OF KENT Comcast of Washington, Inc. City of Kent 1525 75th St Sw 220 Fourth Avenue South Everett, WA 9820,3 Kent, WA 98032 Attn: Jerry Steele Attn: Tim LaPorte f253)288-7432 (Desk) (253) 856-5534 (Desk) (206)391-1763 (Cell) (253) 856-6500 (Fax) With a copy to: APPROVED AS TO FORM: Corricast 1701 JFK Boulevard Philadelphia, PA 19103 Attention: General Counsel Kent Law Department JOINT TRENCH AGREE\4ENM'-Page 8 of 10 (January 10,2019) (helween Cit),ol'Kart err d Comcast Rc:S. 228"Street) Exhibit A S. 2281h Street East Joint Trench Agreement 76TH AVE S 4TH AVE N 50UNU 1 i0UAW CO.LLC;OWNLH) AIR CARGO{UCCUPAN I'r HRP PROPER-IES;OWNER) Z2545 Mh AVL,S. 750 S.2281,S 1. TAX 10:MMt193-0U4q IAX In 383040-02311 JALAJ KLAVANO PROPERTIES L.-C(OWNE.R� . ALEXANOER EXHISI—S(OCCJPANT: 7446 S.228t ST. I— TAX to 383090-035C 6TH AVE N 00 ` N N U) 229th ST,KENT L—C.(OWNM, ~ Ic+I_AI I IVL U.0(U4vN{,H1 PACIFIC METALS iOCCUPANT) 74 If.S.228h S?. IN I L HN A I IONAL PAIL H TAX ID 385090-3660 (OCCJI'AN I) 12258th AVE.N. TAX jr)M30C-13085 —UNION PACIFIC RAILROAD--:. _—— --- INTERURBAN TRAIL S. 228th ST. GRADE SEPARATION AT THE UNION PACIFIC RAILROAD �KE EAST JOINT UTILITY TRENCH CITY (;;' EVT T INTERURBAN TRAIL TO 76TH AVE S E-816 ENONEEkINc de."TWENT A JOINT TRENCH AGREEMENT—Page 9 of 10 (January 16,2018) (between City of Kent and Comcast Re:S. 228"Street) EXHIBIT B PROPORTIONATE SHARES C ITT AS71" COST FOR� (SHAR1,NG MKIN JO TNT T'RENCli COST , VAILULTS, AND KINOR "IREP10-)ES FOR VAULTS CONNEcriONS) ASSUMED 60LF rRENCH FOR EAC11 V,,;kl,,JL,T CONNECTION. ASSUMED THERE ARE 4, VAULT'S WITH SAME SIZE AND IPR[CE IN THE WES"T' JOINT "I'll"ENCH. Quail. Item Dekription FUnit COMCAST TOTAL COST 0 1 Joint"french By Linear Foot EA 6014 240 Joint Utility Trench (2,0 Ft. Wide,3 Ft, Min. Cover) 1..F 00 1,NO Crushed Surfacing Top Course, 5/8 Inch Minus For Trenches to Connect 4 $ 6015 91 V,-WIts and VaLlItS Installation. 'FON 35 6036 74 Sand for Conduits Bedding ForTrcnches to Connect 4 Vaults TON 35 6038 20 Foundation Material,Class I and 11 TON 35 6051 4 Comcast-Vault Excavation and Installation (264-TA) EA 3,000 1 $ 1 6056* 1,722 Installaitorl and Proofing of'4 Inch Diameter Coincast COMILlit L F 6 10,3 6115 16 Non-Woven Gcotextile Fabric For Vault Installation SY 13 6155* 1,020 xtra Excavation Class B SF 0.75 77 TOTAL SCHEDULE 1 89,175 ENGINEERING&CONTINGENCY COST 201%, 1,"tigineering&COIISU'Udion Management ry I 01X,Con(i ngency 10%Sale Tax s TOTAL ENGINEERING& CONTINGENCY COST 35,670 s TOTAL PROJECT CONSTRUCTION COST 12M JOINT FRENCHAGREEMENT-Page 10 of 10 {January 16,2018) (between 01),q1'Kew and COmeast Re:S. 228"'Street) / r / / / / / / / / //f / , / / r / r / / 1 / / / / / / / / / / / , v / / r / / VMS / // lam 1 s / / / / 1 r / / / / / / / / / / 1 / / / r / / � r / / f / �i / / / / / / / / // / r/ / / / t, r / / / / / / / / / // / / / / / // / / / / / ,r / / / / f / / r / 1 r �/ r / / / // / / / / / / / / / / / / / / / / / / / / / / / / / / / / /