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HomeMy WebLinkAboutContractPage 1 of 12 JOINT UTILITY TRENCH CONSTRUCTION AGREEMENT Between COMCAST and the CITY OF RENTON City of Renton Agreement No. _____________________ THIS AGREEMENT ("Agreement"), effective as of ______________, 2021 (the "Effective Date"), is made by and between the CITY OF RENTON, a Washington Municipal Corporation (“the CITY"), and Comcast Cable Communications Management, LLC, a Delaware limited liability company, on behalf of itself and its applicable affiliates holding the franchise agreement(s) in the area covered by this Agreement (collectively, “COMCAST” The City and COMCAST are each referred to in this Agreement as a "Party" and collectively as the “Parties.”). The Attachments referred to herein are incorporated by this reference. RECITALS A. The CITY is making improvements to Duvall Avenue NE (the “Project”) within the corporate boundaries of the CITY. B. COMCAST provides broadband communications services in the CITY. C. The Project includes relocation of facilities that are currently located along the corridor and owned by COMCAST and other utility service providers. All of these utility services are to be relocated as part of the Project (“Relocation”). D. The CITY has developed, advertised and opened bids for a construction contract, including Plans, Specifications and Estimates (“PS& E”) to construct the Project. By this reference, the PS&E as advertised and awarded for construction, and including any published amendments during the bidding period, are made a part of this Agreement. E. The Relocation requires trenching within the right-of-way for placement of facilities of utilities service providers, including COMCAST, the CITY and others into a Joint Utility Trench (“JUT”). F. COMCAST desires to secure the services of the CITY to install conduit and utility vaults underground (“Work") and COMCAST desires to cooperate in the planning, engineering, design and other work associated with completion of the JUT and the Work. AGREEMENT NOW, THEREFORE, in consideration of the mutual covenants, terms, conditions and obligations contained herein, and intending to be bound hereby, the Parties agree as follows: DocuSign Envelope ID: 54E94DC3-EDD9-4572-B1E1-B893AD5D6CEF Oct 1st DocuSign Envelope ID: DF20628D-0E0E-4882-9C3D-DEFF08FBF162 CAG-21-239 CAG-21-239 Page 2 of 12 1. Project Description and Term. A. The JUT will be placed in the CITY right-of-way along Duvall Avenue NE as part of the Project and facilities extended to those side streets and to properties included and as shown in the PS&E. The JUT will be constructed to accommodate the underground facilities of several utility service providers, including as a minimum, the CITY, COMCAST, and PSE (gas and electric). The CITY has awarded a construction contract for the Project, and will enter into a contract that includes construction of the Project, including the JUT and the Work. B. Term: This Agreement shall commence on the Effective Date and continue until the JUT and the Work are completed. 2. Performance of Work. A. The CITY, acting through the successful bidder ("CITY Contractor"), will perform and complete the Work in accordance with the PS&E and all applicable federal, state and local laws and the requirements of those that own or have jurisdiction over the rights of way in which the Work is to be performed. As one of the first orders of work to be required, the CITY Contractor will develop a construction schedule for the Project in sufficient detail to allow the CITY and COMCAST to understand timeframes for completion of the Project and the Work. B. To the extent that performance of the Work requires the installation of any materials that would not be needed but for COMCAST's participation in the Project, COMCAST will arrange for the purchase and delivery of such materials to the CITY Contractor. Specific materials to be purchased and delivered by COMCAST are defined in the PS&E. 3. Responsibility of Parties to Complete the Work. A. CITY Responsibilities: 1. City Contractor Duties. CITY will cause the CITY Contractor to excavate the JUT, accommodate and coordinate the installation of underground utilities, install vaults and conduits, furnish and install bedding material, backfill and compact the JUT, and perform any restoration required by the CITY within the right-of-way. CITY and/or CITY Contractor will exercise reasonable care in the performance of the Work, and will install COMCAST conduit and utility vaults in accordance with written requirements and drawings provided in the PS& E. The CITY Contractor will provide all traffic control required for the CITY’S Work, except for the Work described in Section 3(B)(3). 2. Notice of Materials Required. The CITY will provide COMCAST notice, not less than ten (10) working days prior to the required delivery date, requesting DocuSign Envelope ID: 54E94DC3-EDD9-4572-B1E1-B893AD5D6CEFDocuSignEnvelopeID: DF20628D-0E0E-4882-9C3D-DEFF08FBF162 Page 3 of 12 delivery of necessary conduits and vaults and all related materials that the CITY Contractor reasonably requires to install the JUT and conduits. COMCAST’s failure to respond or supply materials may lead to project delay and, except for delays resulting from Force Majeure Events, may lead to enforcement of penalties and recovery of damages under claims made pursuant to COMCAST's Section 11 indemnification obligations. 3. Plan Discrepancies. If there is any discrepancy between the PS& E and the COMCAST plans, the Parties mutually agree to work together to resolve such discrepancy between said plans. B. COMCAST Responsibilities: 1. Provision of Work, Materials, and Equipment. All work and equipment described in this section as COMCAST responsibilities shall be provided by COMCAST in the manner and timeframe described herein at COMCAST's sole cost and expense. 2. Coordination. COMCAST will maintain continued coordination with the CITY regarding installation of COMCAST’s facilities. This coordination will include, but not be limited to the following: a. The CITY Contractor will develop a schedule that will accurately depict how the CITY Contractor plans to complete the project, including the Relocation and the Work. COMCAST will be responsible for coordinating its work to meet this project schedule. b. A weekly meeting will be held in which the CITY Contractor will provide a schedule and list of materials needed for the following two (2) weeks. A representative from COMCAST will attend each meeting and provide weekly progress reports. The COMCAST representative will be responsible for coordinating the delivery of materials per the discussion of schedule at these weekly meetings, in accordance with Section 3(A)(2). c. COMCAST will furnish all materials required for the installation of COMCAST conduit and utility vaults including vaults, conduits, and all other materials necessary for installation of the vaults and conduits required by the CITY Contractor for the installation of COMCAST facilities that week, not less than ten (10) working days prior to the date that the work is scheduled to begin as discussed in the weekly meeting, provided that CITY gives COMCAST notice in accordance with Section 3(A)(2). The CITY will provide a reasonable location to COMCAST where the materials will be delivered. DocuSign Envelope ID: 54E94DC3-EDD9-4572-B1E1-B893AD5D6CEFDocuSignEnvelopeID: DF20628D-0E0E-4882-9C3D-DEFF08FBF162 Page 4 of 12 d. COMCAST and the CITY will provide an inspector on-site, on twenty-four (24) hours’ notice, to inspect and accept the installation of all vault and conduit installation work. COMCAST's inspector will not direct the CITY Contractor in any manner; the COMCAST inspector will communicate all requests in writing to the CITY's inspector. e. Once sections of vault and conduit are installed by the CITY and accepted by COMCAST, COMCAST will complete installation of conductors and equipment and perform cut-over and transfer of existing customers and facilities to the new underground system, and remove all existing facilities associated with the Work that are no longer in use. This will be done in a manner that does not delay or otherwise impact progress of construction of the Project. COMCAST’s responsibilities will include, but not be limited to, furnishing and installing all cables, conductors, electrical equipment, and temporary utility poles; conversion to underground; and for the removal of poles, and other equipment no longer needed. COMCAST’s failure to respond or comply may lead to project delay and, except for delays resulting from Force Majeure Events, may lead to enforcement of penalties and recovery of damages under claims made pursuant to COMCAST's Section 11 indemnification obligations. 3. Traffic Control. COMCAST or its contractor will provide traffic control when COMCAST or its contractor is installing its new underground cabling and splicing, performing overhead construction, or removing its existing overhead facilities. Traffic control plans to be utilized by COMCAST or its contractor will be coordinated with traffic control established for the Project. Traffic control plans shall be submitted to the CITY’s Transportation Project Manager. 4. Installation Not in Right of Way. The installation of any COMCAST facilities not in CITY right-of-way, including but not limited to cable, conduit, and pedestals, will be the responsibility of COMCAST. COMCAST will coordinate with private property owners on whose property the facilities will be located. The Project will not provide for any construction outside of the CITY’s rights-of-way. Coordination of work, and payment for necessary easements or agreements from private property owners, is the responsibility of COMCAST and shall be done in a manner so as not to delay or otherwise impact the construction of the Project. 4. Compensation. A. COMCAST agrees to pay the CITY a portion of the JUT costs, including JUT bedding and backfill, commensurate with COMCAST’s proportionate share of JUT usage. For planning purposes, an estimate of the costs to be reimbursed by COMCAST to the CITY DocuSign Envelope ID: 54E94DC3-EDD9-4572-B1E1-B893AD5D6CEFDocuSignEnvelopeID: DF20628D-0E0E-4882-9C3D-DEFF08FBF162 Page 5 of 12 for the Work is included as Attachment A to this Agreement. This compensation covers a pro rata share of certain costs, and the pro rata share formula is set forth on Attachment A. Preliminary costs will be agreed upon prior to construction. Costs will be finalized after completion of construction and will be subject to final review and approval by COMCAST, which approval shall not be unreasonably withheld. COMCAST agrees to pay the CITY for its portion of the actual construction costs approved by COMCAST based on the pro rata share formula set forth on Attachment A. B. Share of additional expenses: COMCAST will pay its proportionate share of any reasonable, additional expenses incurred by the CITY to complete the Work, including engineering and inspection costs associated with the Work, provided such additional expenses are mutually agreed upon by the Parties in writing, prior to such additional expenses being incurred. C. Invoice: COMCAST agrees to pay all uncontested amounts to the CITY within sixty 60) days of being invoiced by the CITY for amounts which COMCAST has agreed to pay under this Agreement. COMCAST’S responsibility for payment of contested amounts shall be resolved under the Dispute Resolution provisions set forth in Section 9 below. The making of final payment by Comcast 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 the CITY makes written request to Comcast for final payment. D. Defective or Unauthorized Work: COMCAST reserves the right to withhold payment from the CITY for any defective or unauthorized work performed by the CITY 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. 5. Amendments and Change Orders. A. Any request for change by either Party must be agreed upon in advance as evidenced by written amendment and signed by authorized representatives of both Parties. B. Any change requested by COMCAST to be performed by the CITY will be submitted to the CITY's Inspector, who will submit the request to the CITY Contractor to obtain a reasonable price from the CITY Contractor to perform the work. The CITY will notify COMCAST of the price. COMCAST will have thirty-six (36) hours after being notified of the price to respond and confirm the requested change, and authorize the change in work and cost. C. COMCAST will reimburse the CITY for its share of all negotiated costs associated with any change, including associated engineering and inspection costs. COMCAST will not pay for any share of additional expenses incurred due solely to approved change requests from other private utilities and/or the CITY. DocuSign Envelope ID: 54E94DC3-EDD9-4572-B1E1-B893AD5D6CEFDocuSignEnvelopeID: DF20628D-0E0E-4882-9C3D-DEFF08FBF162 Page 6 of 12 6. Schedule. The CITY Contractor will be responsible for planning and scheduling the Work and the CITY will require the CITY Contractor to submit a progress schedule to the CITY and COMCAST prior to beginning construction activities. 7. Notices. All notices will be in writing and will be delivered by certified mail return receipt requested or any other physical delivery system which is capable of providing proof of delivery. Any such notice will be deemed delivered on the date of receipt. The Parties shall also send copies of each such notice via email. All notices will be addressed to the Parties as specified below: COMCAST James Cohn COMCAST 402 Valley Ave NW Puyallup, WA 98371 253) 569-0636 cell James_cohn@comcast.com With a copy to: Comcast Cable Communications Management, LLC 1500 Market Street Philadelphia, PA 19102 Attention: General Counsel CITY OF RENTON Robert Hanson, PE City of Renton Public Works Department Transportation Systems Division 1055 South Grady Way Renton, WA 98057 206) 507-4814 cell BHanson@rentonwa.gov Flora Lee, PE City of Renton Public Works Department Transportation Systems Division 1055 South Grady Way Renton, WA 98057 425) 430-7303 FLee@rentonwa.gov DocuSign Envelope ID: 54E94DC3-EDD9-4572-B1E1-B893AD5D6CEFDocuSignEnvelopeID: DF20628D-0E0E-4882-9C3D-DEFF08FBF162 Page 7 of 12 Either Party may change the above addresses to which notices are sent by giving notice of such change to the other Party in accordance with the provisions of this section. 8. Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Washington. The Work shall be performed in accordance with all applicable federal, state, county and city laws, codes and ordinances. 9. Dispute Resolution, Jurisdiction and Venue. Any controversy or claim, whether based on contract, statute, tort, fraud misrepresentation or other theory, related directly or indirectly to this agreement between COMCAST and the CITY will be resolved by mutual negotiation between the Parties. Should such negotiations fail to settle such controversy or claim, the Parties may agree to binding arbitration. Any lawsuit or legal action brought by any party to enforce or interpret this Agreement or any of its terms or covenants shall be brought in the King County Superior Court for the State of Washington at the Maleng Regional Justice Center in Kent, King County, Washington, or its replacement or successor. 10. Force Majeure. Both Parties shall be excused from their performance if prevented by acts or events beyond the Parties reasonable control including extreme weather conditions, strikes, fires, embargoes, actions of civil or military law enforcement authorities, acts of God, or acts of legislative, judicial, executive, or administrative authorities ("Force Majeure Event"). 11. Indemnification. CITY will indemnify, defend and hold harmless COMCAST, its owners, parents, subsidiaries, and affiliates, and their respective officers, directors, and employees (collectively the “COMCAST Indemnified Parties”) from and against any and all liabilities, claims, judgments, losses, orders, awards, damages, costs, fines, penalties, costs of defense, and attorneys' fees (collectively Liabilities") to the extent they arise from or in connection with: (a) the performance of any work required under this Agreement by the CITY, the CITY Contractor and each of their respective officers, employees, subcontractors and/or representatives, except to the extent the injuries and damages are caused by the negligence or willful misconduct of any Comcast Indemnified Party; or (b) failure of the CITY, the CITY Contractor or any of their respective officers, employees, subcontractors and/or representatives to comply with any term of this Agreement or any applicable local, state, or federal law or regulation, including but not limited to the Occupational Safety and Health Act of 1970 and environmental protection laws. COMCAST will defend, indemnify, and hold harmless the CITY, its officers, employees, contractors, subcontractors and/or representatives (collectively the “CITY Indemnified Parties”) from and against any and all Liabilities to the extent they arise from or in connection with: (a) the performance of any work required under this Agreement by COMCAST, its officers, directors, DocuSign Envelope ID: 54E94DC3-EDD9-4572-B1E1-B893AD5D6CEFDocuSignEnvelopeID: DF20628D-0E0E-4882-9C3D-DEFF08FBF162 Page 8 of 12 employees, subcontractors and/or representatives, except to the extent the injuries and damages are caused by the negligence or willful misconduct of any CITY Indemnified Party; or b) failure of COMCAST, its officers, directors, employees, subcontractors and/or representatives to comply with any term of this Agreement or any applicable local, state, or federal law or regulation, including but not limited to the Occupational Safety and Health Act of 1970 and environmental protection laws. In the event of Liabilities arising out of injury or damages caused by or resulting from the concurrent negligence of the parties involved in the Project, each Party’s liability hereunder, including the duty and cost to defend, shall be limited only to the extent of its own negligence. The indemnification provisions herein constitute each Party’s waiver of immunity under industrial insurance, Title 51 RCW, solely to carry out the purposes of the indemnification provisions. The Parties acknowledge they have mutually negotiated this waiver. The foregoing waiver shall not in any way preclude the indemnifying Party from raising such immunity as a defense against any claim brought against the indemnifying Party by any of its employees. Except for each Party's indemnification obligations under this section, 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 such damages. The provisions of this Section 11 shall survive the termination or expiration of this Agreement. 12. Insurance. The CITY has included in the PS&E requirements for the CITY Contractor to secure and maintain insurance coverages that are consistent with state law and federal funding requirements. Each Party agrees to secure and maintain and the CITY shall cause Contractor to secure and maintain insurance in amounts not less than those specified below: A. Commercial General Liability insurance covering claims for bodily injury, death, personal injury or property damage (including loss of use) occurring or arising out of work performed under this Agreement for which the insured Party is responsible hereunder and including coverage for premises-operation product/completed operations and contractual liability coverage. The limits of insurance shall not be less than: Each Occurrence $1,000,000 General Aggregate $2,000,000 B. 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. DocuSign Envelope ID: 54E94DC3-EDD9-4572-B1E1-B893AD5D6CEFDocuSignEnvelopeID: DF20628D-0E0E-4882-9C3D-DEFF08FBF162 Page 9 of 12 C. Business Automobile Liability insurance covering the ownership, operation and maintenance of all owned, non-owned and hired motor vehicles used in connection with this Agreement with limits of at least $1,000,000 each accident. D. Each Party shall assume all property loss or damage from any cause whatsoever to any of their respective tools, employee owned tools, machinery, equipment, any motor vehicles owned or rented, including any temporary structures, scaffolding and protective fences used in performance of work under this Agreement unless caused by the negligent act, omission or willful misconduct of the other Party. The Parties shall require their agents and subcontractors to also assume the same property loss or damage as required under this paragraph D for their property. E. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best rating of not less than A-:VII. F. Verification of Coverage: COMCAST shall furnish the CITY with certificates and a copy of the amendatory endorsements or provisions, including but not necessarily limited to the additional insured endorsement, evidencing the Automobile Liability and Commercial General Liability insurance of COMCAST before commencement of the work. Upon request, the CITY shall provide evidence of coverage in accordance with this section 12. G. Contractors: COMCAST shall furnish separate certificates and endorsements for each of its contractors and subcontractor performing work associated with this Agreement. All coverages for contractors and subcontractors shall be subject to all of same insurance requirements as stated herein for COMCAST. 13. Relationship of the Parties. This Agreement does not create a partnership, joint venture or similar relationship between the Parties and neither Party will have the power to obligate the other in any manner whatsoever. Any person who performs services required by this Agreement to be performed by a Party will be solely the employee or agent of that Party. Each Party is solely responsible for (a) the hours of work, methods of performance and compensation of its employees and agents; (b) compliance with all federal, state, and local rules and regulations including those governing Worker's Compensation, Unemployment, Disability Insurance, and Social Security withholding for its employees and agents; and (c) all federal income taxes for its income derived in connection with this Agreement. 14. Assignment. Neither Party will assign this Agreement without the prior written consent of the other Party. Such consent will not be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, COMCAST may assign this Agreement (i) to any affiliate or (ii) in connection with the DocuSign Envelope ID: 54E94DC3-EDD9-4572-B1E1-B893AD5D6CEFDocuSignEnvelopeID: DF20628D-0E0E-4882-9C3D-DEFF08FBF162 Page 10 of 12 sale of any cable system or sale of substantially all of the business or assets of COMCAST, in each case, to which the Project relates. 15. Entire Agreement. This Agreement, including all Attachments and all specified references, contains the entire agreement between the Parties and supersedes all prior oral or written agreements with respect to the subject matter hereof. This Agreement may not be amended or modified except by a written instrument executed by the Parties hereto. No modifications to these terms, including handwritten, are permitted or shall be made without a duly executed written amendment between the Parties or, if prior to execution, a revised printed Agreement. In the event any handwritten modification is made to the Agreement terms and conditions, such modifications shall be considered null and void, whether or not acknowledged by the Parties, and the Agreement shall continue in full force and effect under its original, unadulterated terms and conditions. 16. Binding. The terms, covenants and conditions contained in this Agreement will be binding on and inure to the benefit of the Parties and their respective successors and assigns. The counterparts of this Agreement may be executed and delivered by facsimile or other electronic means by any of the Parties to any other Party, and the receiving Party may rely on the receipt of such document so executed and delivered as if the original had been received. 17. Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which together will constitute one agreement. 18. Authority. Each Party represents and warrants that it has the authority to execute, deliver and perform under this Agreement. signature page follows] DocuSign Envelope ID: 54E94DC3-EDD9-4572-B1E1-B893AD5D6CEFDocuSignEnvelopeID: DF20628D-0E0E-4882-9C3D-DEFF08FBF162 Page 11 of 12 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement effective as of the Effective Date. CITY OF RENTON By:_____________________________ COMCAST CABLE COMMUNICATIONS MANAGEMENT, LLC By:____________________________ Martin Pastucha Public Works Administrator Name: Title: Date: Date Approved as to Legal Form By: __________________________ Shane Moloney City Attorney clb (1204) 11/2/20 DocuSign Envelope ID: 54E94DC3-EDD9-4572-B1E1-B893AD5D6CEF 10/1/2021 Kevin Harrison VP Finance & Business Operations DocuSign Envelope ID: DF20628D-0E0E-4882-9C3D-DEFF08FBF162 12/ 20/2021 | 4:47 PM PST Approved by Cheryl Beyer via 10/1/2021 email Page 12 of 12 ATTACHMENT A DocuSign Envelope ID: 54E94DC3-EDD9-4572-B1E1-B893AD5D6CEFDocuSignEnvelopeID: DF20628D-0E0E-4882-9C3D-DEFF08FBF162