HomeMy WebLinkAboutPuget Sound Energy - #10445174SCHEDULE 74 UNDERGROUND CONVERSION
Project Design Agreement
Project Name: 3rd/cross Street SE Road Improvements
Project Number: 10445174
THIS Agreement, dated as of th~sc>~'~ day of ~c,~Y,.~.c,,~ ~, ,200'~, ~s made by and between
the CITY OF AUBURN, a Municipal Corporation (the "Government~Entity"), and PUGET SOUND
ENERGY, Inc., a Washington Corporation (the "Company").
RECITALS
A. The Company is a public service company engaged in the sale and distribution of electric
energy and, pursuant to its franchise or other rights from the Government Entity, currently locates its
electric distribution facilities within the jurisdictional boundaries of the Government Entity.
B. The Government Entity is considering conversion of the Company's existing overhead electric
distribution system to a comparable underground electric distribution, as more specifically described in the
Scope of Work (as defined in paragraph 2, below) furnished to the Company by the Government Entity
(the "Conversion Project").
C. The Government Entity has requested that the Company perform certain engineering design
services and otherwise work cooperatively with the Government Entity to develop a mutually acceptable
Project Plan (as defined in paragraph 6, below) for the Conversion Project, in accordance with and subject
to the terms and conditions of this Agreement (the "Design Work").
D. The Government Entity and the Company wish to execute this written contract in accordance
with Schedule 74 of the Company's Electric Tariff G ("Schedule 74") to govern the Design Work for the
Conversion Project.
AGREEMENT
The Government Entity and the Company therefore agree as follows:
1. Unless specifically defined otherwise herein, all terms defined in Schedule 74 shall have the same
meanings when used in this Agreement.
The Government Entity shall, within ten (10) business days after the date of this Agreement, provide
the Company with a written scope of work for the Conversion Project which includes, among other
things, (a) a reasonably detailed description of the scope of the work required for the Conversion
Project, (b) a list of the key milestone dates for the Conversion Project, (c) reasonably detailed
drawings showing any associated planned improvements to the Public Thoroughfare, and (d) a
statement as to whether the Government Entity desires to install the ducts and vaults for the
Conversion Project (the "Scope of Work"). The Government Entity shall provide the Company two (2)
hard copies of the Scope of Work and a copy of the relevant electronic file(s) in a mutually agreed
electronic format.
Design Agreement, Schedule 74, Page 1
City of Auburn: 3'~/Cross Street SE
Notification #10445174
3. Within ten (10) business days of its receipt of the Scope of Work, the Company shall prepare and
submit to the Government Entity (a) a reasonably detailed, good faith estimate of the cost to perform
the Design Work (the "Design Cost Estimate"), and (b) a proposed schedule for completion of the
Design Work which, to the extent reasonably practicable, reflects the applicable key milestone dates
specified in the Scope of Work and provides for completion of the Design Work within ninety (90)
business days from the date the Company receives the Government Entity's notice to proceed under
paragraph 5, below (the "Design Schedule"). The proposed Design Cost Estimate and the proposed
Design Schedule shall be based upon the then-current Scope of Work. Unless otherwise specified in
the Scope of Work, the Design Work shall not include negotiation or acquisition of third party property
rights but shall include preliminary planning between the Company and the Government Entity
regarding their respective obligations for negotiating and acquiring third party property rights.
Within ten (10) business days after the Government Entity's receipt of the proposed Design Cost
Estimate and the proposed Design Schedule from the Company, the Government Entity and the
Company shall meet in order to (a) review the proposed Design Cost Estimate, (b) review the
proposed Design Schedule; (c) review the Scope of Work, and (d) make any changes necessary to
create a final Scope of Work, final Design Cost Estimate, and final Design Schedule that are
reasonably acceptable to both parties. If the parties are unable to agree upon a final version of the
Scope of Work, Design Cost Estimate, and/or Design Schedule, then either party may, by written
notice to the other party, submit the matter for resolution pursuant to the dispute resolution procedures
in paragraph 16, below. The final Scope of Work, Design Cost Estimate and Design Schedule, once
determined in accordance with this paragraph 4, may thereafter be changed or amended only in
accordance with the change procedures set forth in paragraph 13, below.
The Government Entity shall, within ten (10) business days after determination of the final of the
Scope of Work, Design Cost Estimate, and Design Schedule, issue (a) a written notice to proceed
which shall delineate the final Scope of Work, Design Cost Estimate, and Design Schedule, or (b) a
written notice to terminate this Agreement without cost to the Government Entity. If the Government
Entity terminates this Agreement, the costs incurred by the Company in preparing and submitting the
Design Cost Estimate and the Design Schedule shall not be reimbursable to the Company, and the
rights and obligations of the parties under this Agreement shall be terminated in their entirety and
without liability to either parfy.
Following the Company's receipt of the notice to proceed, and within the applicable time period
specified in the Design Schedule, the Company shall, with the cooperation and assistance of the
Government Entity as outlined in this Agreement, prepare a project plan for the Conversion Project
(the "Project Plan") which shall include, among other things, the following: (a) a detailed description of
the work that is required to be performed by each party and any third party in connection with the
Conversion Project (the "Construction Work"), (b) the applicable requirements, drawings, and
specifications for the Construction Work, (c) a description of any operating and other property rights
that are required to be obtained by each party for the Conversion Project (and the requirements and
specifications with respect thereto), (d) a detailed estimate of the costs to be incurred by each party in
its performance of the Construction Work, and (e) a detailed schedule for completing the Construction
Work (including, without limitation, the dates for delivery of the ducts and vaults and other materials
for use at the site of the Construction Work).
7. The Government Entity shall be responsible for coordinating the Design Work with all other design
work to be per/ormed in connection with the Conversion Project and any associated planned
improvements to the Public Thoroughfare. The parties shall work together in an effort to mitigate the
costs of the Conversion Project to each party, including, without limitation, identifying ways to
accommodate the facilities of the Company to be installed as part of the Conversion Project within the
Public Thoroughfare.
Design Agreement, Schedule 74, Page 2
City of Auburn: 3r~/Cross Street SE
Notification #10445174
8. Within the applicable time period specified in the Design Schedule, the Company shall prepare and
submit to the Government Entity a proposed initial draft of the Project Plan. The parties understand
and acknowledge that the proposed Project Plan submitted by the Company shall be preliminary in
nature and shall not include, without limitation, information required to be supplied by the Government
Entity (e.g., scope and estimate of the cost of the Construction Work to be performed by the
Government Entity).
Within the applicable time period specified in the Design Schedule, the Government Entity shall
(a) review the proposed Project Plan submitted by the Company, (b) complete any information
required to be supplied by the Government Entity, (c) make any changes required to conform the
proposed Project Plan to the Scope of Work and this Agreement, and (d) return the amended Project
Plan to the Company.
10. Within the applicable time period specified in the Design Schedule, the Company shall review the
amended Project Plan submitted by the Government Entity and notify the Government Entity in writing
of either the Company's acceptance of, or the Company's specific objections to, the amended Project
Plan. If the Company makes any objection to the amended Project Plan, and the parties are unable to
resolve the objections and mutually agree upon the Project Plan prior to the final design date specified
in the Design Schedule, then either party may, by written notice to the other party, submit the matter
for resolution pursuant to the dispute resolution procedures in paragraph 16, below. The Project Plan,
as mutually agreed upon by the parties or established through the dispute resolution process, shall be
attached to and incorporated in a Project Construction Agreement substantially in the form attached
hereto as Exhibit A (the "Construction Agreement") which is to be signed by the parties prior to
commencement of the Construction Work.
11. The parties intend and agree that the Design Work and the Project Plan in its final forrn shall conform
to the following requirements:
(a)
The Project Plan shall, if requested by the Government Entity in its initial Scope of Work, specify
that the Government Entity shall install the ducts and vaults for the Conversion Project; provided
that (i) the parties mutually agree upon and set forth in the Project Plan (A) the costs of such
installation work to be included in the Cost of Conversion, and (B)the specifications and
standards applicable to such installation work, and (ii) such installation work is accomplished by
the Government Entity in accordance with the applicable design and construction specifications
provided by the Company and set forth in the Project Plan.
(b)
Each estimate of the costs to be incurred by a party shall, at a minimum, be broken down by
(i) the design and engineering costs, (ii)property and related costs, including any costs of
obtaining operating rights, and (iii) construction costs, including and listing separately inspection,
labor, materials, and equipment.
(c)
All facilities of the Company installed as part of the Conversion Project shall be located, and all
related property and operating rights shall be obtained, in the manner set forth in the applicable
provisions of Schedule 74. The Project Plan shall describe in detail the location of such facilities,
any related property and operating rights required to be obtained, and the relative responsibilities
of the parties with respect thereto.
(d)
The schedule set forth in the Project Plan for completing the Construction Work shall include, at a
minimum, milestone time periods for completion of the Trenching, installation of ducts and vaults,
the construction and removal of any Temporary Service, and the removal of overhead facilities.
Design Agreement, Schedule 74, Page 3
City of Auburn: 3~/Cross Street SE
Notification #10445174
(e) The Project Plan may include the specification of work and requirements for Government-
Requested Upgrades and Company-Initiated Upgrades; provided, however, that the costs
incurred by the Company with respect to the design and engineering of Company-Initiated
Upgrades shall not be included in the costs reimbursable to the Company under this Agreement
or the Construction Agreement. For purposes of the foregoing, (i)the term "Government-
Requested Upgrade" shall mean any feature of the Underground Distribution System which is
requested by the Government Entity and is not reasonably required to make the Underground
Distribution System comparable to the overhead distribution system being replaced, and (ii) the
term "Company-Initiated Upgrade" shall mean any feature of the Underground Distribution System
which is required by the Company and is not reasonably required to make the Underground
Distribution System comparable to the overhead distribution system being replaced. For
purposes of subparagraph (ii), above, a "comparable" system shall include, unless the parties
otherwise agree, the number of empty ducts (not to exceed two (2), typically having a diameter of
6" or less) of such diameter and number as may be specified and agreed upon in the final Scope
of Work necessary to replicate the Icad-carrying capacity (system amperage class) of the
overhead system being replaced. For purposes of subparagraph (i), above, any empty ducts
installed at the request of the Government Entity shall be a Government-Requested Upgrade.
(f) The Project Plan shall set forth all specifications, design standards and other requirements for the
Construction Work and the Conversion Project, including, but not limited to, the following:
(i) applicable federal and state safety and electric codes and standards, (ii) applicable construction
and other standards of the Company, and (iii) applicable street design and other standards of the
Government Entity which are in effect as of the commencement of the Conversion Project.
12. Upon request of the Government Entity, and in any event at the times specified in the Design
Schedule, the Company shall provide periodic reports which compare the actual costs of the Design
Work incurred to that point in time to the Design Cost Estimate, as changed or amended in
accordance with paragraph 13, below. Further, if at any time the Company reasonably expects that
the actual cost of the Design Work will exceed the Design Cost Estimate, as changed or amended in
accordance with paragraph 13, below, the Company shall notify the Government Entity' immediately.
Upon receipt of the Company's notice, the Government Entity may, at its option,
(a) notify the Company in writing that this Agreement is terminated; or
(b) request a reasonably detailed explanation supported by documentation (reasonably satisfactory to
the Government Entity) to establish that the actual costs in excess of the Design Cost Estimate
are:
(i) reasonable,
(ii) consistent with the Scope of Work, and
(iii) consistent with sound engineering practices.
If the Government Entity requests an explanation, the Government Entity shall, within ten (10)
business days after receipt of the explanation,
(a)
(b)
change the Scope of Work in accordance with paragraph 13, below, or
direct the Company to continue with the Design Work without a change in the Scope of Work, but
reserving to the Government Entity the right to dispute the reasonableness of the costs to be paid
the Company under paragraph 14, below, in accordance with the dispute resolution procedures in
paragraph 16, below, or
(c)
direct the Company to discontinue performing the Design Work pending resolution, pursuant to
paragraph 16, below, of any dispute regarding the reasonableness of the costs, in which event the
Design Schedule will be adjusted to reflect the delay, or
Design Agreement, Schedule 74, Page 4
City of Auburn: 3~/Cross Street SE
Notification #10445174
(d) notify the Company in writing that this Agreement is terminated.
In the event the Government Entity terminates this Agreement or discontinues the performance of the
Design Work under subparagraph (c), above, for more than ninety (90) days, the Government Entity
shall pay the Company for all costs incurred by the Company in its performance of the Design Work
prior to the date the Company receives the Government Entity's notice of termination, plus any costs
incurred by the Company for materials and other items ordered or procured by the Company with the
prior authorization of the Government Entity in order to meet the schedule for the Conversion Project.
The foregoing payment obligation shall survive any termination of this Agreement.
13. (a)
Either party may, at any time, by written notice thereof to the other party, request changes to the
Scope of Work (a "Request for Change"). No Request for Change shall be effective and binding
upon the parties unless signed by an authorized representative of each party. If any approved
Request for Change would cause an increase in the cost of, or the time required for, the
performance of any part of the Design Work, an equitable adjustment in the Design Cost Estimate
and the Design Schedule shall be made to reflect such increase. The parties shall negotiate in
good faith with the objective of agreeing in writing on a mutually acceptable equitable adjustment.
If the parties are unable to agree upon the terms of the equitable adjustment, either party may
submit the matter for resolution pursuant to the dispute resolution procedures in paragraph 16,
below. Notwithstanding any dispute or delay in reaching agreement or arriving at a mutually
acceptable equitable adjustment, each party shall, if requested by the other par~, proceed with
the Design Work in accordance with the Request for Change. Any such request 1:o proceed must
be accompanied by a written statement setting forth the requesting party's reasons for rejecting
the proposed equitable adjustment of the other party.
(b)
The Design Cost Estimate and/or the Design Schedule shall be equitably adjusted from time to
time to reflect any change in the costs or time required to perform the Design Work to the extent
such change is caused by: (i)any Force Majeure Event under paragraph 17, below, (ii)the
discovery of any condition within the Conversion Area which affects the scope, cost, schedule or
other aspect of the Design Work and was not known by or disclosed to the affected party prior to
the date of this Agreement, or (iii) any change or inaccuracy in any assumptions regarding the
scope, cost, schedule or other aspect of the Design Work which are expressly identified by the
parties in the final Scope of Work. Upon the request of either party, the parties will negotiate in
good faith with the objective of agreeing in writing on a mutually acceptable equitable adjustment.
If, at any time thereafter, the parties are unable to agree upon the terms of the equitable
adjustment, either party may submit the matter for resolution pursuant to the dispute resolution
provisions in paragraph 16, below.
14. Upon completion of the Design Work (i.e., the date on which the Project Plan is final under
paragraph 10, above, either by mutual agreement of the parties or as established through the dispute
resolution procedures), the Government Entity shall pay the Company all actual, reasonable costs to
the Company for the Design Work (which, if disputed in good faith by the Government Entity, may be
submitted by either party for resolution pursuant to the dispute resolution provisions in paragraph 16,
below), plus any costs incurred by the Company for materials and other items ordered by the
Company with the prior authorization of the Government Entity in order to meet the schedule for the
Conversion Project. If, thereafter, the Construction Agreement is executed by the parties and the
Conversion Project is completed within five (5) years from the date of this Agreement, the full amount
of the costs incurred by the Company in its performance of the Design Work shall be included in the
"Shared Company Costs" under the Construction Agreement and any payment of such amounts
under this Agreement shall be credited to the Government Entity in calculating the "Net Amount"
payabJe under the Construction Agreement.
Design Agreement, Schedule 74, Page 5
City of Auburn: 3~/Cross Street SE
Notification #10445174
15. Within sixty (60) business days after completion of the Design Work, the Company shall issue to the
Government Entity an itemized invoice for the amounts payable under this Agreement.
Such invoice shall be in a form mutually agreed upon by the Company and the Government Entity and
shall, at a minimum, itemize the design and engineering costs, including and listing separately
inspection, labor, materials and equipment. In the event the Government Entity does not verify such
invoice within ten (10) business days of receipt, the Government Entity shall provide a written request
to the Company specifying the additional information needed to verify the invoice. The Company will
provide, within a reasonable period after receipt of any request, such documentation and information
as the Government Entity may reasonably request to verify such invoice. The Government Entity shall
pay the Company all amounts payable under this Agreement within thirty (30) days after receipt of the
Company's invoice. Payment as provided in this Agreement shall be full compensation for the
Company's performance of the Design Work, including without limitation all services rendered and all
materials, supplies, equipment, and incidentals necessary to complete the Design Work.
16. Dispute Resolution Procedures:
(a)
Any dispute, disagreement or claim arising out of or concerning this Agreement must first be
presented to and considered by the parties. A party who wishes dispute resolution shall notify the
other party in writing as to the nature of the dispute. Each party shall appoint a representative
who shall be responsible for representing the party's interests. The representatives shall
exercise good faith efforts to resolve the dispute. Any dispute that is not resolved within ten (10)
business days of the date the disagreement was first raised by written notice shall be referred by
the parties' representatives in writing to the senior management of the parties for resolution. In
the event the senior management are unable to resolve the dispute within twenty (20) business
days (or such other period as the parties may agree upon), each party may pursue resolution of
the dispute through other legal means consistent with the terms of this Agreement. All
negotiations pursuant to these procedures for the resolution of disputes shall be confidential and
shall be treated as compromise and settlement negotiations for purposes of the state and federal
rules of evidence.
(b)
Any claim or dispute arising hereunder which relates to the Scope of Work, Design Cost
Estimate, and Design Schedule under paragraph 4, above; the Project Plan under paragraph 10,
above; or any Request for Change (including, without limitation, any associated equitable
adjustment) under paragraph 13, above; and is not resolved by senior management within the
time permitted under paragraph 16(a), above, shall be resolved by arbitration in Seattle,
Washington, under the Construction Industry Arbitration Rules of the American Arbitration
Association then in effect. The decision(s) of the arbitrator(s) shall be final, conclusive and
binding upon the Parties. All other disputes shall be resolved by litigation in any court or
governmental agency, as applicable, having jurisdiction over the Parties and the dispute.
(c)
In connection with any arbitration under this paragraph 16, costs of the arbitrator(s), hearing
rooms and other common costs shall be divided equally among the parties. Each party shall
bear the cost and expense of preparing and presenting its own case (including, but not limited to,
its own attorneys' fees); provided, that, in any arbitration, the arbitrator(s) may require, as part of
his or her decision, reimbursement of all or a portion of the prevailing partes cost,~ and expenses
by the other party.
(d) Unless otherwise agreed by the parties in writing, the parties shall continue to perform their
respective obligations under this Agreement during the pendency of any dispute.
17. 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 Fome Majeure Event. Force Majeure Events shall include,
without limitation, war; civil disturbance; flood, earthquake or other ACt of God; storm, earthquake or
Design Agreement, Schedule 74, Page 6
City of Auburn: 3~/Cross Street SE
Notification #10445174
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
Work or this Agreement. Upon removal or termination of the Fome Majeure Event, the party claiming
a Force Majeure Event shall promptly perform the affected obligations 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 caused by a Force Majeure Event.
18. This Agreement is subject to the General Rules and Provisions set forth in Tariff Schedule 80 of the
Company's electric Tariff G and to Schedule 74 of such Tariff as approved by the Washington Utilities
and Transportation Commission and in effect as of the date of this Agreement.
19. Any notice under this Agreement shall be in writing and shall be faxed (with a copy followed by mail or
hand delivery), delivered in person, or mailed, properly addressed and stamped with the required
postage, to the intended recipient as follows:
If to the Government Entity:
Attn: City Enoineerl Dennis Selle
Fax: 253.931.3053
If tO the ComDanv:
Puget Sound Energy, Inc.
6905 South 228m Street, SKC-SVC
Kent, WA 98032
Attn: Mary Ausburn, AICP
Municipal Liaison Manager
Fax: (253) 395-6882
Either party may change its address specified in this paragraph by giving the other party notice of such
change in accordance with this paragraph.
20. This Agreement shall in all respects be interpreted, construed and enforced in accordance with the
laws of the State of Washington (without reference to rules governing conflict of laws), except to the
extent such laws may be preempted by the laws of the United States of America.
21. This Agreement constitutes the entire agreement of the parties with respect to the subject matter
hereof and all other agreements and understandings of the Parties, whether written or oral, with
respect to the subject matter of this Agreement are hereby superseded in their entireties.
Design Agreement, Schedule 74, Page 7
City of Auburn: 3'~/Cross Street SE
Notification #10445174
22. This Agreement shall be binding upon and inure to the benefit of the respective successors, assigns,
purchasers, and transferees of the parties, including but not limited to, any entity to which the rights or
obligations of a party are assigned, delegated, or transferred in any corporate reorganization, change
of organization, or purchase or transfer of assets by or to another corporation, partnership,
association, or other business organization or division thereof.
Government Entity:
CITYDFr-AtJBURN
Date Signed [ /~/ I~)'~ ,~
Company:
PUGET SOUND ENERGY. INC.
Date Signed
Design Agreement, Schedule 74, Page 8
City of Auburn: 3"'/Cross Street SE
Notification #10445174