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HomeMy WebLinkAbout31_Joint Trench Agreement - Final1 Joint Trench Agreement/_________ JOINT TRENCH AGREEMENT This Joint Trench Agreement (“Agreement”) is made effective on the _____ day of __________, 20___ (“Effective Date”) between NorthWestern Corporation d/b/a NorthWestern Energy, a Delaware corporation with offices at 11 East Park, Butte, Montana, 59701 (“NorthWestern”) and __________ a __________ with offices at__________ (“Joint Occupant”). WHEREAS, NorthWestern and Joint Occupant construct, maintain, own and operate underground facilities in the State of Montana in connection with their respective utility or other operations; and WHEREAS, NorthWestern and Joint Occupant periodically install facilities in a joint trench and share the costs of such effort; NOW THEREFORE, in consideration of the mutual promises contained herein NorthWestern and Joint Occupant agree as follows: 1. Scope. NorthWestern and Joint Occupant agree that the terms of this Agreement shall apply to the development of a joint trench by NorthWestern (“Trench Services”), installation standards for facilities installed by Joint Occupant and sharing of the cost of the Trench Services. Nothing herein obligates or otherwise requires NorthWestern to perform Trench Services or allow Joint Occupant or any third party to install facilities in a trench constructed by NorthWestern. Trench Services will only be performed upon receipt of a request from Joint Occupant and with the mutual agreement of NorthWestern. 2. Compensation. 2.1 The costs for Trench Services are set forth in a Compensation Schedule attached to this Agreement as Exhibit A. Such costs may be modified by the parties as required to reflect cost variations incurred during the performance of Trench Services and upon any subsequent renewal or extension of this Agreement. 2.2 Exhibit A identifies costs associated with development of a standard trench. Trench Services cost associated with boring, large excavator rental, compaction, traffic control, permitting, hard surface restoration and additional work required to address unanticipated conditions are not included in the rates set forth in Exhibit A. If such costs are billed by NorthWestern, the parties will share responsibility in equal proportions. 2.3 Upon completion of Trench Services, NorthWestern will deliver a billing document to Joint Occupant. Payment for Trench Services shall be delivered by Joint Occupant within 30 days of receipt of invoice. In the event of a dispute regarding an invoice, Joint Occupant shall pay the undisputed portion and notify NorthWestern of the amount in dispute and the basis for the withholding. 3. Term. This Agreement shall be binding upon the parties from its date of execution, and shall continue in full force and effect until the _____ day of __________, 20__ (“Term”). The Term may be extended by agreement of the parties. 4. Joint Trench Requirements. 2 Joint Trench Agreement/_________ 4.1. Communication of Work Plans. NorthWestern will communicate intended work plans, to the best of its knowledge, in designated division utility meetings. It is the responsibility of the Joint Occupant to attend meetings to stay apprised of upcoming projects where Trench Services may be performed. NorthWestern will use the billing document to identify trench footages and total charges for each project. 4.2 Trench Development. NorthWestern will supply the labor, tools, heavy and light vehicles and other equipment necessary for performance of Trench Services. Joint Occupant will supply materials, labor, tools and other equipment necessary for the installation of Joint Occupant’s facilities within the joint trench. NorthWestern will perform Trench Services and Joint Occupant will install its facilities in accordance with National Electric Safety Code, National Fuel Gas Code and applicable laws, codes, rules, regulations and permits. Joint Occupant shall immediately correct all non-compliant installations at its sole cost and expense. NorthWestern may use subcontractors to perform Trench Services under this Agreement. 4.3 Materials. Each party shall arrange for the purchase and delivery of materials required for the performance of Trench Services and installation of facilities within a joint trench. All materials shall comply with applicable laws, codes, rules, regulations, permits and NorthWestern’s standards. NorthWestern may inspect materials prior to installation, and may reject non-compliant materials. 4.4 Permits, Licenses and Authorizations. Each party is responsible for obtaining, prior to the commencement of Trench Services, all rights, easements, licenses, permits, approvals, agreements and other authorizations required by any governmental authority or third party for the performance of its respective obligations under this Agreement. Each party agrees to comply with all applicable laws, codes, rules, regulations and permits relating to the performance of Trench Services and installation, maintenance and use of its respective facilities in a joint trench. 4.5 Safety/Notifications. Each party shall comply with all applicable local, state and federal safety laws, codes, rules and regulations including, without limitation, those promulgated by the Occupational Safety & Health Administration and the Department of Transportation. Joint Occupant shall promptly notify NorthWestern in the event of any accident or incident involving personal injury or property damage of any kind occurring during the installation of Joint Occupant’s facilities in the joint trench. 4.6 Completion of Trench/Delays. NorthWestern will undertake commercially reasonable efforts to complete the Trench Services in accordance with communicated work plans. Joint Occupant shall not delay NorthWestern’s Trench Services. NorthWestern is not obligated to maintain an open trench in the event Joint Occupant fails to install its facilities in accordance with the communicated schedule. NorthWestern assumes no liability for delays caused by Joint Occupant and will not reopen a trench to allow Joint Occupant to install facilities after completion of a project. 4.7 Clean-Up/Damages to Property. Joint Occupant shall remove waste materials, tools, construction equipment and surplus materials upon completion of installation of its facilities. Each party is responsible for restoring and replacing in a suitable manner all 3 Joint Trench Agreement/_________ public and private property damaged by such party during the performance of its obligations under this Agreement. 4.8 Maintenance of Facilities. After completion of the Trench Services and installation of facilities, each party shall be responsible for operation, maintenance, relocation or removal of its facilities in accordance with requirements of applicable governmental authorities, private owners of real property and applicable laws, rules, regulations and permits. Each party shall exercise due care of other parties’ facilities. 4.9 Incidental Labor. At the request of Joint Occupant, NorthWestern may provide incidental labor to assist with work required to complete the installation of Joint Occupant facilities in the Joint Trench. Joint Occupant shall compensate NorthWestern at the hourly rate specified in Exhibit A. For clarification, the rate specified in Exhibit A only includes compensation for manual labor, and additional charges may apply to any use of NorthWestern’s tools, vehicles or other equipment necessary for the work required to complete the installation of Joint Occupant’s facilities. 5. Termination. Either party may terminate this Agreement prior to expiration upon 30 days written notice to the other party. Either party may terminate this Agreement should it determine the other party is failing to perform any of its material obligations under this Agreement. Termination of this Agreement shall not affect any parties liability incurred hereunder prior to the effective date of such termination or responsibility to continue using and maintaining installed facilities in accordance with applicable laws, codes, rules, regulations and permits. 6. Force Majeure. If NorthWestern is prevented in whole or in part from performing Trench Services by unforeseeable causes beyond its reasonable control and without its fault or negligence, NorthWestern is excused from performance. NorthWestern will promptly deliver written notice of the force majeure condition to the Joint Occupant. 7. Indemnification. Each party shall indemnify, defend and hold harmless the other party and its officers, directors, affiliates, agents and employees from and against any and all third party claims and liabilities to the extent the claim or liability is caused by any negligent or intentional act, error or omission of the indemnifying party. In the event that any loss, damage or liability with respect to any claim is caused by the negligence of both NorthWestern and Joint Occupant, such loss or damage shall be borne by NorthWestern and Joint Occupant in the proportion that their respective negligence bears to the total negligence causing such loss, damage or liability. 8. Insurance. 8.1 Required Coverage. Joint Occupant shall secure and maintain at its own cost and expense the following minimum insurance coverage throughout the Term: (i) workers' compensation insurance providing statutory benefits in accordance with the laws and regulations of the State of Montana; (ii) employer’s liability in the amount of $1,000,000 - each accident, $1,000,000 disease - policy limit and $1,000,000 disease – each employee; (iii) commercial general liability insurance with minimum limits of $1,000,000 per occurrence, $2,000,000 general aggregate; and (iv) automobile liability insurance with a 4 Joint Trench Agreement/_________ minimum, combined single limit of $1,000,000 per occurrence for bodily injury, including death, and property damage. 8.2 Insurance Requirements. All policies must: (i) be placed with such insurers having an A.M. Best rating of A-VII or better; (ii) be endorsed to name NorthWestern as an additional insured with respect to any liabilities assumed under the Agreement (not applicable to workers' compensation and employers' liability); (iii) apply severally and not collectively to each insured against whom claim is made or suit is brought; (iv) be primary with respect to the interest of NorthWestern as additional insured and any insurance maintained by NorthWestern is excess and not contributory insurance with the insurance required hereunder; (v) include a waiver of the right of subrogation against NorthWestern; (vi) include within automobile coverage(s), owned, non-owned, hired and borrowed vehicles; and (vii) not be canceled or have limits or coverage reduced or restricted without Joint Occupant providing at least 30 days prior written notice to the Contract Administration Department, NorthWestern Energy, 11 E Park St. Butte, Montana 59701. 8.3 Evidence of Insurance. The completed insurance certificate form and a copy of the policy endorsement must be delivered to the NorthWestern Energy Contract Administration Department, 11 E Park St. Butte, Montana 59701. 9. Limitation of Liability. The parties are not liable for any indirect, incidental, consequential, special, exemplary or punitive damages arising from or related to this Agreement, its performance, enforcement, breach or termination, such as, but not limited to, loss of revenue, anticipated profits, or loss of business. 10. Assignment. Neither party may assign or otherwise transfer this Agreement or its duties and obligations contained in this Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, consent is not required if the assignment in connection with a merger, consolidation or corporate reorganization involving substantially all of the assets of the party assigning this Agreement. 11. Notices. All notices shall be in writing and shall be delivered by certified mail return receipt requested or any other delivery system that is capable of providing proof of delivery. Any such notice shall be deemed effective on the date of receipt. All notices shall be addressed to Joint Occupant or NorthWestern as specified below: To NorthWestern: NORTHWESTERN ENERGY Attn: Patti Rafish, Joint Use Coordinator 11 East Park Street Butte, Montana 59701 Email: patti.rafish@northwestern.com Phone (406) 497-3349 To Joint Occupant: [Joint Occupant Name] Attn: 5 Joint Trench Agreement/_________ Address: Email: Phone: A party may change the above addresses to which notices are sent by giving written notice of such change to the other party in accordance with the provisions of this section. 12. Applicable Law, Forum and Disputes. This Agreement shall be governed in all respects by the laws of the State of Montana. Any action arising out of this Agreement must be brought in state or federal courts of the State of Montana. Process in any action or proceeding referred to in the preceding sentence may be served on either party electronically. When a dispute has arisen and negotiations between the parties have reached an impasse, either party may give the other party written notice of the dispute. In the event such notice is given, the parties shall attempt to resolve the dispute promptly by negotiations between representatives who have authority to settle the controversy and who are at a higher level of management than the persons with direct responsibility for the matter. The representatives shall confer in person or by telephone promptly to attempt to resolve the dispute. If the dispute has not been resolved by negotiation within 30 days of the notice, then either party may proceed to a court of competent jurisdiction. 13. Miscellaneous. Nothing contained in this Agreement shall be deemed or construed by the parties or by any third person or court to create the relationship of employer and employee, principal and agent or of partnership or joint venture. A waiver by either party of any default or breach by the other party of any covenants, terms or conditions of this Agreement will not limit the right of a party to enforce such covenants, terms or conditions or to pursue rights in the event of any subsequent default or breach. If any portion of this Agreement is held to be void or unenforceable, the balance will continue to be effective. This Agreement is binding upon and inures to the benefit of the heirs, legal representatives, successors and assigns of the parties. This Agreement will not be modified, amended or changed in any respect except by a written document signed by the parties. This Agreement is for the exclusive benefit of the parties and does not constitute a third party beneficiary agreement and may not be relied upon or enforced by a third party. Each party represents that it has full power and authority to enter into and perform this Agreement and the person signing this Agreement on behalf of each party has been properly authorized and empowered to sign this Agreement. This Agreement constitutes the entire agreement of the parties. Covenants or representations not contained or incorporated therein are not binding upon the parties. This Agreement may be executed in counterparts, which together constitute one instrument. Copies of this fully executed instrument have the same force and effect as the original. IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as of the day and year first above written. NorthWestern Energy Joint Occupant By: By: Print Name: Print Name Title: Title: Date: Date: 6 Joint Trench Agreement/_________ 7 Joint Trench Agreement/_________ EXHIBIT A COMPENSATION SCHEDULE ITEM # DESCRIPTION UNIT COST 1000 Joint Occupancy Trench Services 1001 Open Trench Up to 100’ of residential service drop Each $75.00 1002 Open Trench Greater than 100’ of residential service drop Per foot $0.75 2000 Joint Occupancy Trenching Mainline 2001 Open Trench Mainline Per foot $0.75 3000 Joint Occupancy Trench - Assistance Labor 3001 NorthWestern Provided Labor Per man hr $99.00 Pursuant to Section 2.2 of the Agreement, Trench Services cost associated with boring, large excavator rental, compaction, traffic control, permitting, hard surface restoration and additional work required to address unanticipated conditions are not included in the rates set forth above.