HomeMy WebLinkAboutPW08-047 - Original - Comcast - 4th Ave N Improvements Joint Trench Agreement - 03/13/2008Records Management
KENT DocumentWasHrNcroN
CONTRACT COVER SHEET
This is to be compleled by the Conirqct Monoger prior lo submission to City Clerks Office. All
portions qre to be completed, if you hove queslions, pleose conlocl Mory Simmons, Cily
Clerks Office.
Vendor Nome 'Carncrrsf
Conlrocl Num a8-oq7
Ihis is ossigned by Mory Simmons
Vendor Number:
Projecl Nomes :4th Ave- N. I rrlvem ents
Conlrqct Effective Dqte:Dole of the s sionoture
Controct Terminqtion Dole:
Conlroct Renewql Notice (Doys):
Number of doys required nolice for terminolion or renewol or omendmenl
Conlrocl Monoger:Ken Lonoh (r lz
Deporlment:Enoineerino
Abslroct:
Relocoie C sl focililies in o ioinl trench for the 4th Ave. N. lmprove nts oroiect.
ADCL7832 07/O2
JOINT TRENCH AGREEMENT
Between the City of Kent and Comcast
for 4th Avenue North Improvements
THIS AGREEMENT, is entered into between the City of Kent, a Washington municipal
corporation ("City"), and Comcast of Washington fV, Inc. a Washington corporation
("Comcast"). City and Comcast referred to separately as a *Pattf' or together as "Parties".
RECITALS
WHEREAS, the City is making certain right-of-way improvements to 4ft Avenue N,
Kent, WA ('Tmprovement Project") .
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, Comcast is required to underground its current above-ground
facilities located on 4b Avenue N, Kent, WA.
WHEREAS, Comcast, will need to place fiber-optic, coaxial or other communications
cabling ("Comcast Facilities"; separately or together with the City's Facilities and/or other City-
contracted third party facilities as "Facilities") in the same locations in which the City is
performing the lrnprovement Project and installing their own facilities ("City Facilities").
WHEREAS, the installation of such Comcast Facilities shall include boring and/or the
excavation of trenches, and the placement of the Comcast Facilities (as specifically designated
and/or provided by Comcast) in such bores or trenches together with the City Facilities and/or
other City-contracted third party facilities, and backfilling of said trenches, if necessary, as
defined below (the "Work").
WHEREAS, the Parties recognize the efficiencies of entering into an agreement whereby
one trench will be dug for the Parties to relocate the Facilities.
AGREEMENT
To facilitate construction of a joint trench, the parties agree as follows:
SCOPE OF WORI(
The City of Kent will advertise for construction bids and enter irtto 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 east side of 4th Avenue N. from James Street to approximately
375 feet north of West Cloudy Street. There will be approximately fow (4) trench crossings of
4th Avenue N. to serve customers on the west side of the street.
JOINT TRENCHAGREEMENT-Page lof 8 (l.Iovember 27,2007)
(between City of Kent and Comcast Re: 4h Ave N)
I
2. CONTRACTORREQUIREMENTS
The independent contractor hired by the City to perform this work shall be referred to as
'the Contractor" in this Agreement. The Contractor, pursuant to a contract with the City, shall
excavate the trench, install City Facilities, PSE and Qwest facilities (City-contracted third party
facilities, "Third Party Facilities"), accommodate and coordinate the installation of Comcast
Facilities, install the bedding material, backfill and conpact the trench, and perform any
restoration required by the City, all to be performed in a good and workmanlike manner
consistent with industry standards (the "Work"). 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, iN 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, which permit shall
not be unreasonably delayed, withheld or conditioned. 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 trorch area.
B. Installatton Comcast shall be responsible for supplying and/or installing within the
open trench the Comcast Facilities, including all conductors, vaults and conduits as outlined in
subsection 3.D. All right, title and interest in the Comcast Facilities and associated equipment
shall at all times remain with Comcast. Parties hereto acknowledge and agree that Comcast shall
in no event be required to remove their respective, affected aerial facilities prior to completion of
the underground facilities in accordance with this Agreement, and so long as said installation is
completed in conformity with this Agreement.
C. Traffic Control. The City's Contractor shall provide all traffic control associated
with installation of Facilities within the Contractor controlled open trench area. Comcast shall
be responsible for providing traffrc control during installation of Comcast Facilities not
associated with the controlled open trench area.
D. Comcast Coordination- Comcast shall maintain reasonable and continued
coordination with the Contractor regarding the installation of Comcast Facilities. This
coordination shall include but not be limited to the following:
1. Timing of when and where materials will be delivered on-site.
JOINT TRENCHAGREEMENT-Page 2 of 8
(between City of Kent and Comcast Re: 4h Ave N)
(November 27,2007)
2. Time and drnation of work including project schedule by Comcast's
contractor to install Comcast 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:
a. Comcast shall have available manpower and equipment on site and shall
have a three (3) hour window per day with which to install conduits in the
trench provided and plumb them into the vaults. The City's Contractor
will install Comcast's conduit in the street crossings.
b. The Contractor will excavate approximately 200 feet of trench a day
except at street crossings.
c. The Contractor shall provide Comcast reasonable daily notification as to
the exact timing of when Comcast's three (3) hour installation window
will starl each day.
d. The Contractor will excavate for and place Comcast vaults in the open
trench area.
e. Comcast shall coordinate closely with the Contractor and provide all
necessary materials.
3. Location of where Comcast's contractor will begin the work.
4. Coordination with other City-contracted third parties who also have facilities
to place in the joint trench. This may include the stacking of conduits with
another utility, and locating conduits below or around other vaults.
E. Suweys. The City will provide the survey for the location of the trench and vaults.
F. Election Not to Proceed. If Comcast elects not to proceed with the Work, Comcast
shall remain liable for installing the Comcast Facilities within the approved permit at the time
frame specified on the permit.
4. COMPENSATION
A. Trench costs. If Comcast elects to proceed with the Work, 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 and Comcast agrees to pay the City for its portion of the actual construction costs.
B. Street Crossings. Comcast agrees to pay for the installation costs for the 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.
JOINT TRENCH AGREEMENT-Page 3 of 8
(between City of Kent and Comcast Re: 4h Ave N)
(Novennber 27,2007)
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.
D. Additional Expenses. Comcast agrees to pay their proportionate share of additional
expenses incurred due to Comcast's approved change requests requinng 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 the Crty or any City-contracted third party.
E. Claims by Contractor. Comcast agrees to pay the entire cost of any claims made by
the Contractor that are directly caused by Comcast's umeasonable or unforeseeable actions,
including but not limited to unreasonable delays caused by installing Comcast facilities,
unforeseeable delays caused by Comcast providing materials, or any other umeasonable conflicts
between the Contractor and Comcast's contractor.
F. Yaults. Comcast agrees to pay for the excavation, site preparation, and installation
of the -vaults being installed for Comcast's exclusive use ("Comcast 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 and Comcast. The cost to
excavate for and install Comcast Vaults will be finahzed after completion of construction and
Comcast agrees to pay the City for actual construction costs. The parties will work with the
Contractorto keep the cost of the Comcast Vaults as close as reasonably possible to the approved
preliminary bid.
G. 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.
H. Defective or Unauthorized Work Per the terms of the agreement between the City
and Contractor, Comcast reselves 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 City shall ensure that its Agreement with Contractor
makes Contractor liable to Comcast for any additional costs incurred by Comcast hereunder.
"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.
I. Final PaymentlWaiver of Claims. The City will ensure that the agreement with the
Contractor provides that the making of final payment by the parties shall constitute a waiver of
JOINT TRENCH AGREEMENT- Page 4 of 8
(between City of Kent and Comcast Re: 4h Ave N)
(Novmber 27,2007)
l
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. CIIANGES.
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 an estimated price from the
Contractor to perform the work, and noti$ Comcast of this estimated price. Comcast shall have
twenty four (24) hours from receiving the estimated price from the City to respond. If Comcast
chooses not to accept the Contractor's estimated price then this Work shall only be performed by
Comcast according to a mutually agreed upon schedule with the Contractor so zts not to cause
delay to the Contractor.
6. Ii\DEMNIF'ICATION;LIENSANDENCUMBRANCES.
Each party shall defend, indemni& and hold the other party, their officers, officials, employees
and agents harmless from any and all actual claims, injurios, damages, losses or suits including
all legal costs and attorney fees but excluding incidental, special, consequential or indirect
damages not related to unreasonable delay of the Contractor, arising out of or in connection with
the performance of the party's work required under this Agreement, except to the extent the
injuries and damages axe caused by the negligence or willful misconduct of the other party. City
further agrees to indemni&, save harmless and defend Comcast from payment of any federal,
state, or local taxes or contributions or compensation imposed under unerrployment insurance,
social security, income tax, labor, and any other laws with respect to City's employees, agsnts, or
contractors engaged in the performance ofthe Work.
The indemnification from Comcasc to the City shall include all actual claims, injuries,
damages, losses or suits from third parties but excluding incidental, special, consequential or
indirect damages not relating to umeasonable delay of the Contractor, arising out of the work
performed by Comcast in the trench, except and to the extent such 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 rnjury to persons
or damages to property caused by or resulting from the concurent 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 TRENCHAGREEMENT-Page 5 of 8
(between City of Kent and Comcast Re: 4th Ave N)
(Novembo 27,2007)
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.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN,
THE PARTIES HEREBY ACKNOWLEDGES AND AGREES THAT NEIT}IER PARTY
SIIALL BE LIABLE TO TIIE OT}IER FOR ANY SPECIAL, INCIDENTAL, PUMTIVE,
E)GMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO
FRUSTRATION OF ECONOMIC OR BUSINESS DGECTATIONS, LOSS OF PROFITS,
LOSS OF CAPITAL, COST OF SUBSTITUTE PRODUCT(S), FACILITIES OR SERVICES,
DOWN TIME,BUT NOT INCLUDING UNREASONABLE DELAY OF TIIE
CONTRACTO& EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
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.
l. Automobile Liability insurance with limits no less than $1,000,000 combined
single limit per accident for bodily tnjory and property damage; and
2. Commercial General Liability insurance written on an occrurence basis with
limits no less than $1,000,000 combined single limit per occurrence and
general aggregate for personal rnjury, 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 occrurence
and aggregate.
Any payment of deductible or self insured retention shall be the sole responsibility of
the Contractor. The parties, their officials, employees, agents and volunteers shall be named as
additional insureds on the insurance policy, as respects work performed by or on behalf of the
parties and a copy of the endorsement naming the parties as additional insured shall be attached
to the Certificate of Insurance, copies of which shall be provided to the parties prior to
coinmencement of construction by the contractor. The Contractor's insurance shall contain a
clause stating that coverage shall apply sepmately to each insured against whom claim is made or
suit is brought, except with respects to the limits of the insurer's liability.
8. FRANCI{ISE AGREEMENT.
JOINT TRENCH AGREEMENT- Page 6 of 8
(between City of Kent and Comcast Re: 4h Ave N)
(l.{ovmber 27,2007)
The City and Comcast agree that as to future projects, by entering into this Agreement,
neither party has waived any rights it rnay 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 Agreernent
shall not be considered as a basis for future undergrounding pojects that may be franchise-
required.
9. TERM AND TERMINATION
A. The initial term of this Agreement shall be no more than five (5) years fromthe
date this Agreement is executed by both parties hereto. Provided neither party has terminated
this Agreement pursuant to subsections (b), (c) or (d) below, the Agreement may be renewed by
the parties upon mutually agreed upon terms.
B. Either pmfy shall have the right to terminate this Agreement for its convenience
by providing the other parfy written notice sixty (60) days prior to the date termination is desired;
provided, that City shall not have the right to stop Work on the Improvement Project prior to the
stated termination date. Comcast shall pay City for all Work completed prior to the termination
date, less any monies already paid by Comcast.
C. Either party may terminate this Agreement for default in the event the other party
has failed to satis$ its obligations under the Agreement, and fails to remedy either such problem
within twenty (20) business days after receip of written notice of default.
10. MISCELLAIIEOUS.
A. Compliance with Laws. The parties shall comply with all federal, state and local
laws, rules and regulations throughout every aspect in the performance of this Agreement.
B. Nonwaiver of Breach. The failure of a party to insist upon strict performance of
any of the terms and rights contained herein, or to exercise any option herein conferred in one or
more instances, shall not be constructed to be a waiver or relinquishment of those terms and
rights and they shall remain in full force and effect
C. Governing Law. This Agreement shall be governed and construed in accordance
with the laws of the State of Washington. If any dispute arises between the parties or between
any party and the contractor under any of the provisions of this Agreement, resolution of that
dispute shall be available only through the jurisdiction, venue and rules of the Kjng County
Superior Court, King County, Washington.
JOINT TRENCH AGREEMENT- Page 7 of 8
(between City of Kent and Comcast Re: 4h Ave N)
(l.Iovember 27,2007)
D. Attornqt's Fees. To the extent not inconsistent with RCW 39.04.240, rn any claim
or lawsuit for damages arising from the parties' performance of this Agreernent, 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 parfy'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.
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 ofthe provisions ofthis
Agreement shall be binding unless in writing and signed by a duly authorized representative of
each of affectedpafiy.
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 agmcy, employment, joint
venture, co-enployer or partnership is created by this Agreement. No parfy hereto shall (i) have
the power or authority to act for another in any manner to create obligations or detfis which
would be binding upon another, and; (ir) be responsible for any obligation or expense whatsoever
ofanother.
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 occumence of an event
of "force majewe," 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, firs, 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.
J. Entire Agreernent 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 TRENCHAGREEMENT-Page 8 of 8
(between City of Kent and Comcast Re: 4h Ave IV)
(l.{ovember 27,2007)
IN WITNESS WIfiREOF, the parties below have executed this Agreement.
coMcAsT oF WASHTNGTON IV,INC. CrTy OF r(ENT
Print alTre Ken
M or
2
NOTICES TO BE SENT TO:NOTICES TO BE SENT TO:
COMCAST CITY OF I(ENT
Comcast City of Kent
4020 Auburn WavN )).O Fol,rt'h Awenrr Sorrth
Arrhrrn W'A Kent. WA 98032
Attn: JimNies A,tfn' Ken T.anoho
Print
Title:
DA
(2s3) 288-75310esk)
Q06\ 571-8893 (Ce11)
o53\ 288-7sOO
Q53\ 856-s516 k)
'l
With a copy to:
Comcast Cable Communications, LLC
One Comcast Center, 50ft Floor
Philadelphia, PA 19103
Attention: Cable Law Dept - Operations
PICiviNILES\OpflFiles\o177-zoo5uoitrtTretrchA8remmt-Comc6t-MilitaryR@d.doc
APPROVED AS TO FORM:
Kent Law
JOINT TRENCH AGREEMENT- Page 9 of 8
(between City af Kent and Comcast Re: 4h Ave N)
Qrlovember 27,2007)
Exhibit A
4ftAvenue North Trench Agreement
EXHIBIT A. JOINT TRENCH AGREEMENT - +E AVENUE NORTH
(between City of Kent and Comcast)
Total BalanceDue$48,398$48.756$123,167$11s,516$5,894$5,527$8,198$7.680$185,647$177,479-$8,1 68EngneenngDesign,Coordination andlnspection$600$eB0$o$o$o$1,580Vault and Conduitlnstallation$+$o240924$c$0$o$11,164Trenching$43,558$40,852$123,167$115,516$5,894$5,527$8,1 88$7,680$180,807$169.575-$11,232EstimateBidEstimateBidEstimateBidEstimateBidEstimateBidQweslPSE PowerComcastCityTotalsDifferenceRevsionRevsionCost Summarv Estimate vs. Bid1l2Bl20AB James StreetCost Summarv Estimate vs. Bid Table1l2Bl2AAB 4th Ave NTotal BalanceDue$77,784$70.698$63,873$57.678$45,678$41,248$0$187,335$169.624-$17 ,7 11EngineeringDesign,Coordination andlnspection$750$7s+$0$o$$00$o$1,484Vault and Conduitlnstallation$s$s300188$0$o$0$o$o$10,488Trenchino$71 ,734$64,776$63,873$57.678$45,678$41,248$o$181,285$163.702-$17,583EstimateBidEstimateBidEstimateBidEstimateBidEstimateBidQwestPSE PowerComcastCityTotalsDifference316/20084:56 PMC:\Documents and Settings!nies001\Local Settings\Temporary lnternet Files\OLK64\Compare Est vs Bid