HomeMy WebLinkAbout04-18-2011 Agenda Modification
*0000,
CITY OF * * Interoffice Memorandum
Engineering Division
* WASHINGTON
To: Public Works Committee
From: Dennis Dowdy, Public Works Director
CC: Mayor
City Clerk
Councilmembers
Dennis Selle Assistant Director/City Engineer
Ingrid Gaub, Assistant City Engineer
Date: April 14, 2011
Re: Agenda Modification for the April 18, 2011 Public Works Committee Meeting
This modification transmits the following agenda item:
III. ISSUES
B. RESOLUTION NO. 4704 AUTHORIZING THE MAYOR TO NEGOTIATE AND
EXECUTE AN AGREEMENT WITH PUGET SOUND ENERGY INC FOR THE
PURPOSE OF RELOCATING POWER FACILITIES IN ADVANCE OF
CONSTRUCTION OF THE SOUTH DIVISION STREET PROMENADE PROJECT*
(Vondrak)
Page 1 of 1
AUBURN * MOKE THAN YOU IMAGINED
CITY OF -J
AGENDA BILL APPROVAL FORM
WASHINGTON
Agenda Subject:
Date:
Resolution No. 4704
April 13, 2011
Department:
Attachments:
Budget Impact:
Public Works
Resolution No. 4704
$ 0
Administrative Recommendation:
City Council to introduce and adopt Resolution No. 4704.
Background Summary:
Resolution No. 4704 authorizes the Mayor to negotiate and execute an agreement with Puget Sound
Energy, Inc. for the purpose of relocating power facilities in advance of construction of the South Division
Street Promenade project.
City staff believes having Puget Sound Energy, Inc. complete the relocation of existing power facilities in
advance of construction activities will minimize construction interruption and maintain the current
anticipated construction schedule of the South Division Street Promenade project.
The total estimated project costs are $7.6 million. The cost to relocate the power facilities is approximately
$450,000 and will be funded with Local Revitalization Financing.
W0418-8
Reviewed by Council & Committees:
Reviewed by Departments & Divisions:
❑ Arts Commission COUNCIL COMMITTEES:
❑ Building ❑ M&O
❑ Airport ® Finance
❑ Cemetery ❑ Mayor
❑ Hearing Examiner ❑ Municipal Serv.
❑ Finance ❑ Parks
❑ Human Services ❑ Planning & CD
❑ Fire ❑ Planning
❑ Park Board ®Public Works
® Legal ❑ Police
❑ Planning Comm. ❑ Other
® Public Works ❑ Human Resources
Action:
Committee Approval: ❑Yes ❑No
Council Approval: ❑Yes ❑No Call for Public Hearing
Referred to Until
Tabled Until
Councilmember: Wagner
Staff: Dowdy
Meeting Date: : April 18, 2011
Item Number:
* moRE THAN YQLJ IMAGINED
Au.Bu
RESOLUTION NO. 4704
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF AUBURN, WASHINGTON, AUTHORIZING THE
MAYOR TO NEGOTIATE AND EXECUTE AN
AGREEMENT WITH PUGET SOUND ENERGY, INC. FOR
THE PURPOSE OF RELOCATING POWER FACILITIES
IN ADVANCE OF CONSTRUCTION OF THE SOUTH
DIVISION STREET PROMENADE PROJECT.
WHEREAS, Puget Sound Energy, Inc. has existing power facilities
located in the vicinity of the Project which will have to be relocated to
accommodate the Project; and
WHEREAS, Puget Sound Energy, Inc. is responsible for the planning,
review, design, permitting, and relocation of said power facilities in advance of
construction of the South Division Street Promenade project, hereinafter
referred to as the "Project"; and
WHEREAS, it is in the City's best interest to have Puget Sound Energy,
Inc. complete the relocation of said power facilities in advance of construction of
the Project.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN,
WASHINGTON, HEREBY RESOLVES as follows:
Section 1. The Mayor is hereby authorized to negotiate and execute an
agreement with Puget Sound Energy, Inc., for the purpose of completing facility
relocation work in advance of construction of the South Division Street
Resolution No. 4704
April 18, 2011
Page 1
Promenade project, in substantial conformity with the agreement attached
hereto, marked as Exhibit "A" and incorporated herein by this reference.
Section 2. That the Mayor is authorized to implement such other
administrative procedures as may be necessary to carry out the directives of
this legislation.
Section 3. That this Resolution shall take effect and be in full force
upon passage and signatures hereon.
Dated and Signed this day of , 2011.
CITY OF AUBURN
PETER B. LEWIS
MAYOR
ATTEST:
Danielle E. Daskam,
City Clerk
APPROVED AS TO FORM:
Daniel B. Heid,
City Attorney
Resolution No. 4704
April 18, 2011
Page 2
Exhibit A
FACILITY RELOCATION AGREEMENT
This Agreement, dated as of , 201 1, is made and entered into by and
between Puget Sound Energy, Inc., a Washington corporation ("PSE"), and The City of
Auburn, a Washington municipal corporation, ("Government Entity"). PSE and the
Government Entity are sometimes referred to herein individually as a "Party" and collectively
as the "Parties."
RECITALS
A. PSE owns and operates certain utility systems and facilities necessary and
convenient to the transmission and distribution of electricity and natural gas ("Facilities")
that are located on or in public right of way of the Government Entity. The Facilities occupy
said public right of way ("Existing Operating Rights") pursuant to that certain Franchise
Agreements, dated , by and between PSE and the Government Entity (the
" Agreement"). The Facilities are more particularly described on Exhibit A
attached hereto and incorporated herein by this reference.
B. The Government Entity plans to construct improvements to South Division
Street from West/East Main Street to 3rd St NW/NE, including West Main Street from A St
SW to South Division Street, and portions of 1st St SW/SE from A St SW to A St SE and 2nd
St SW/SE from A St SW to A St SE ("Improvements").
C. In connection with the Improvements, the Government Entity has requested
that PSE perform certain engineering design work and certain construction work relating to
modification or relocation of its Facilities (the "Relocation Work"), all in accordance with
and subject to the terms and conditions of this Agreement, and any applicable tariff on file
with the Washington Utilities and Transportation Commission (the "WUTC").
D. The Government Entity has provided to PSE a written plan for the
Improvements (the "Improvement Plan") which includes, among other things, (a) plans and
specifications sufficient in detail, as reasonably determined by PSE, for PSE to design and
perform the Relocation Work, including reasonably detailed drawings showing the planned
Improvements, (b) a list of the key milestone dates for the Improvements, and (c) information
concerning possible conflicts between PSE's Facilities and other utilities or facilities.
The Parties, therefore, agree as follows:
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AGREEMENT
Section 1. Relocation Work
1.1 Relocation Work. The Relocation Work is described in Exhibit B attached to
this Agreement.
1.2 Performance of Relocation Work. Subject to the terms and conditions of
this Agreement and any applicable tariffs on file with the WUTC, PSE shall use reasonable
efforts to perform the Relocation Work. PSE shall perform the Relocation Work in
accordance with the schedule provided in Exhibit B (the "Relocation Schedule") with
reasonable diligence in the ordinary course of its business and in light of any operational
issues as to the remainder of its utility systems that may be influenced by the Relocation
Work. PSE shall have no liability to the Government Entity or any third party, nor shall the
Government Entity be relieved or released from its obligations hereunder, in the event of any
delay in the performance of the Relocation Work due to any (a) repair, maintenance,
improvement, renewal or replacement work on PSE's utility systems, which work is
necessary or prudent as determined by PSE in its sole discretion; or (b) actions taken by PSE
which are necessary or consistent with prudent utility practices to protect the performance,
integrity, reliability or stability of PSE's utility systems or any systems to which such systems
are connected.
1.3 Adjustments to the Relocation Work. PSE shall notify the Government
Entity in writing of any reasonably anticipated adjustments to the Relocation Work (including
the Relocation Schedule and/or Relocation Cost Estimate) that result from (a) the revision or
modification of any Improvements in a manner that requires PSE to revise its plans and
specifications for the Relocation Work; (b) delays in PSE's performance of the Relocation
Work caused by the Government Entity (or its agents, servants, employees, contractors,
subcontractors, or representatives); or (c) conditions or circumstances otherwise beyond the
control of PSE. The Parties acknowledge that additional requirements not contemplated by
the Parties may arise during the performance of the Relocation Work. In the event such
additional requirements arise, the Parties shall provide written notice thereof and shall use
good faith reasonable efforts to appropriately respond to such requirements in a prompt and
efficient manner, including appropriate adjustments to the Relocation Schedule and/or the
Relocation Cost Estimate.
1.4 Performance by Government Entity. In the event the Government Entity is
unable to perform its obligations under Sections 2 and 3 below to PSE's reasonable
satisfaction, and absent written waiver by PSE of such obligations, the Parties shall use
reasonable efforts to adjust the Relocation Schedule to allow additional time for the
Government Entity to perform such obligations; provided, that if the Parties cannot
reasonably agree upon such schedule adjustment, PSE may, at its option, thereafter terminate
this Agreement by giving written notice to the Government Entity, and the Government
Entity shall promptly pay PSE the amounts payable to PSE in connection with such
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termination under Section 5.5. PSE's determination as to the satisfaction or waiver of any
such condition under this Agreement shall not be deemed to be a determination of
satisfaction or waiver of any other condition arising under this Agreement.
1.5 Notice to Proceed with Construction Work. At least twenty-eight (28)
calendar days prior to the date specified in the Relocation Schedule for commencement of
construction for the Relocation Work, the Government Entity shall either (a) provide to PSE
a written notice to proceed with such construction work, or (b) terminate this Agreement by
written notice to PSE. In the event of such termination, the Government Entity shall
promptly pay PSE the amounts payable to PSE in connection with termination under Section
5.5.
Section 2. Operating Rights.
Unless otherwise provided for in Exhibit B, the Government Entity shall be solely
responsible for any costs related to acquisition of any and all operating rights for the Facilities
that are necessary or appropriate, in addition to or as replacement for the Existing Operating
Rights, for completion of the Relocation Work ("New Operating Rights"). Such New
Operating Rights obtained by PSE shall be in PSE's name, shall be of equivalent quality and
kind as the Existing Operating Rights and shall be provided in a form acceptable to PSE, all
as determined by PSE in its sole discretion. The New Operating Rights shall be provided
with sufficient title information demonstrating to PSE's satisfaction that PSE shall obtain
clear, good and sufficient title to such rights, if applicable. PSE shall not be obligated to
commence the RelocationWork, or otherwise in any way change, limit, curtail, impair or
otherwise affect the normal and reliable operation of the Facilities as located upon or relative
to the Existing Operating Rights, unless and until PSE is in possession of the New Operating
Rights.
Section 3. Permits.
PSE shall obtain all necessary permits, licenses, certificates, inspections, reviews,
impact statements, determinations, authorizations, exemptions or any other form of review or
approval given, made, done, issued or provided by any one or more governmental authorities
with jurisdiction necessary or convenient for the Relocation Work (collectively, "Permits")
and the Government Entity shall be solely responsible for any costs related to the acquisition
of said required documentation. The Permits shall be on such terms and conditions as PSE
shall, in its sole discretion, determine to be appropriate to its needs. PSE shall not be
obligated to commence construction for the Relocation Work, or otherwise in any way
change, limit, curtail, impair or otherwise affect the normal and reliable operation of the
Facilities, unless and until PSE is in possession of all Permits necessary for the Relocation
Work and all rights of appeal with respect to the Permits shall have been exhausted. The
Government Entity shall be responsible for performance of and any costs associated with any
mitigation required by the Permits.
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Section 4. Materials and Ownership
Unless specifically agreed otherwise in writing by the Parties, PSE shall provide all
necessary materials, equipment and labor required to perform the Relocation Work. All
materials, information, property and other items provided for, used or incorporated into the
Relocation Work (including but not limited to the Facilities) shall be and remain the property of
PSE.
Section 5. Relocation Costs
5.1 Estimate. PSE's good faith estimate of the costs to perform the Relocation
Work (the "Relocation Cost Estimate") is [amount]. The Parties agree that the Relocation
Cost Estimate is an estimate only and PSE shall be entitled to reimbursement of all actual
costs incurred in or allocable to the performance of the Relocation Work.
5.2 Costs in Excess of Estimate. PSE shall use reasonable efforts to monitor its
actual costs incurred during the performance of the Relocation Work, and in the event PSE
determines that such costs are likely to exceed the Relocation Cost Estimate by more than ten
percent (10%), PSE shall so notify the Government Entity in writing. In such event PSE
may, at its discretion, suspend performance the Relocation Work and PSE shall not be
obligated to continue with performance of any Relocation Work unless and until PSE
receives the Government Entity's written acceptance of PSE's revised Relocation Cost
Estimate and written notice to proceed with the Relocation Work. In the event PSE does not
receive such acceptance and notice from the Government Entity within ten (10) working days
from the date of PSE's notice, then PSE may, at its discretion, terminate this Agreement. In
the event of such termination, the Government Entity shall promptly pay PSE the amounts
payable to PSE in connection with termination under Section 5.5.
5.3 Relocation Costs. The Government Entity shall be responsible for, and shall
reimburse PSE for, all costs and expenses incurred by PSE in connection with the
performance the Relocation Work (the "Relocation Costs") described in Exhibit B. For
purposes of this Agreement, the Relocation Costs shall include, without limitation, any and
all direct and indirect costs incurred by PSE in connection with the performance of the
Relocation Work, including, but not limited to, labor, personnel, supplies, materials,
overheads, contractors, consultants, attorneys and other professionals, administration and
general expenses and taxes.
5.4 Statement of Costs - Invoice. Within sixty (60) calendar days of the
completion of the Relocation Work, PSE shall provide the Government Entity with a
statement and invoice of the actual Relocation Costs incurred by PSE. PSE shall provide,
within a reasonable period after receipt of any written request from the Government Entity,
such documentation and information as the Government Entity may reasonably request to
verify any such invoice.
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5.5 Costs Upon Termination of Agreement. In the event either Party terminates
this Agreement, the Government Entity shall promptly pay PSE, the following:
(a) all costs and expenses incurred by PSE in connection with the
Relocation Work (including, without limitation, all Relocation Costs incurred through
the date of termination and such additional costs as PSE may incur in connection with
its suspension or curtailment of the Relocation Work and the orderly termination of
the Relocation Work); and
(b) all costs and expenses incurred by PSE in returning and restoring the
Facilities to normal and reliable commercial operations.
5.6 Payment. The Government Entity shall, within thirty (45) calendar days after
the receipt of an invoice for costs payable under this Agreement, remit to PSE payment for
the full amount of the invoice.
Section 6. Indemnification
6.1 Indemnification. The Government Entity releases and shall defend,
indemnify and hold harmless PSE from all claims, losses, harm, liabilities, damages, costs
and expenses (including, but not limited to, reasonable attorneys' fees) caused by or arising
out of any negligent act or omission or willful misconduct of the Government Entity in its
performance under this Agreement. PSE releases and shall defend, indemnify and hold
harmless the Government Entity from all claims, losses, harm, liabilities, damages, costs and
expenses (including, but not limited to, reasonable attorneys' fees) caused by or arising out of
any negligent act or omission or willful misconduct of PSE in its performance under this
Agreement. During the performance of such activities employees or contractors of each Party
shall at all times remain employees or contractors, respectively, that Party and shall not be, or
be construed to be, employees or contractors, respectively, of the other Party.
6.2 Title 51 Waiver. Solely for purposes of enforcing the indemnification
obligations of a Party under this Section 6, each Party expressly waives its immunity under
Title 51 of the Revised Code of Washington, the Industrial Insurance Act, and agrees that the
obligation to indemnify, defend and hold harmless provided for in this Section 6 extends to
any such claim brought against the indemnified Party by or on behalf of any employee of the
indemnifying Party. 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.
Section Disclaimers and Limitation of Liability
7.1 Disclaimer. PSE nor the Government Entity make representations or
warranties of any kind, express or implied, with respect to the Relocation Work or other
items or services provided under this Agreement including, but not limited to, any implied
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warranty of merchantability or fitness for a particular purpose or implied warranty arising out
of course of performance, course of dealing or usage of trade.
7.2 Limitation of Liability. In no event shall PSE or the Government Entity be
liable, whether in contract, warranty, tort or otherwise, to any other party or to any other
person for any indirect, incidental, special or consequential damages arising out of the
performance or nonperformance of the Relocation Work or this Agreement.
Section 8. Miscellaneous
8.1 Tariffs Control. This Agreement is in all respects subject to all applicable
tariffs of PSE now or hereafter in effect and on file with the WUTC. In the event of any
conflict or inconsistency between any provision of this Agreement and any such tariff, the
terms of the tariff shall govern and control.
8.2 Survival. Sections 2, and 4 through 8 shall survive any termination of this
Agreement. Subject to the foregoing, and except as otherwise provided herein, upon and
following termination of this Agreement neither Party shall have any further obligations
arising under this Agreement and this Agreement shall be of no further force or effect.
8.3 Waiver. The failure of any Party to enforce or insist upon strict performance
of any provision of this Agreement shall not be construed to be a waiver or relinquishment of
any such provision or any other provision in that or any other instance; rather, the same shall
be and remain in full force and effect.
8.4 Entire Agreement. This Agreement, including any exhibits hereto, sets forth
the complete and integrated agreement of the Parties. This Agreement cannot be amended or
changed except by written instrument signed by the Party to be bound thereby.
8.5 Force Majeure. In the event that either Party is prevented or delayed in the
performance of any of its obligations under this Agreement by reason beyond its reasonable
control (a "Force Majeure Event"), then that Party's performance shall be excused during the
Force Majeure Event. Force Majeure Events shall include, without limitation, war; civil
disturbance; storm, flood, earthquake or other Act of God; storm, earthquake or other
condition which necessitates the mobilization of the personnel of a Party or its contractors to
restore utility service to customers; laws, regulations, rules or orders of any governmental
agency; sabotage; strikes or similar labor disputes involving personnel of a Party, its
contractors or a third party; or any failure or delay in the performance by the other Party, or a
third party who is not an employee, agent or contractor of the Party claiming a force Majeure
Event, in connection with the Relocation Work or this Agreement. Upon removal or
termination of the Force Maj eure Event, the Party claiming a Force Maj eure Event shall
promptly perform the affected obligation in an orderly and expedited manner under this
Agreement or procure a substitute for such obligation. The Parties shall use all commercially
reasonable efforts to eliminate or minimize any delay cause by a Force Maj eure Event.
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8.6 Enforceability. The invalidity or unenforceability of any provision of this
Agreement shall not affect the other provisions hereof, and this Agreement shall be construed
in all respects as if such invalid or unenforceable provisions were omitted.
8.7 Notice. Any notice, request, approval, consent, order, instruction, direction or
other communication under this Agreement given by either Party to the other Party shall be in
writing and shall be delivered in person to an authorized representative or mailed, properly
addressed and stamped with the required postage, to the intended recipient at the address and
to the attention of the person specified below the Parties' respective signatures on this
Agreement. Either Party may from time to time change such address by giving the other
Party notice of such change in accordance with this section.
8.8 Governing Law. This Agreement shall be interpreted, construed and
enforced in all respects in accordance with the laws of the State of Washington. This
Agreement shall be fully binding upon the Parties and their respective successors, assigns and
legal representatives.
In witness whereof, the Parties have executed this Agreement as of the date set forth above.
PSE: Government Enti
Puget Sound Energy, Inc.
By By
Its Its
Address: Address:
Attn:
Attn:
EXHIBIT A
FACILITIES AND EXISTING OPERATING RIGHTS
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EXHIBIT B
RELOCATION WORK
(TO INCLUDE A DESCRIPTION OF THE WORK TO BE PERFORMED BY PSE
TOGETHER WITH A SCHEDULE FOR THE PERFORMANCE OF THE WORK
AND A DESCRIPTION OF ANY NEW OPERATING RIGHTS REQUIRED FOR
THE PERFORMANCE OF THE WORK)
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