HomeMy WebLinkAboutPuget Sound Energy - #10488943
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SCHEDULE 74 UNDERGROUND CONVERSION
Project Construction Agreement
Project Name: Sounder Station/Allev - Conversion of Electrical Distribution
Project Number: 10488943
THIS Agreement, dated as of this ~ day of -f\\ \~X S t- ' 2004, is made by' and between
the CITY OF AUBURN, a Municipal Corporation (the "Govern ent Entlty"), 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 has determined that it is necessary to replace the existing overhead
electric distribution system within the area specified in the Project Plan (as defined below) (the
"Conversion Area") with a comparable underground electric distribution system, all as more> specifically
described in the Project Plan (the "Conversion Project").
C. The Government Entity and the Company have previousiy entered into a Project Design
Agreement dated as of ADril 6. 2004 (the "Design Agreement"), pursuant to which the partiøs compieted
certain engineering design, cost assessment, operating rights planning and other preliminary work relating
to the Conversion Project and, in connection with that effort, developed the Project Plan.
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 completion of the
Conversion Project, which both parties intend shall qualify as an underground conversion under the terms
of Schedule 74.
AGREEMENT
The Government Entity and the Company therefore agree as follows:
1. Definitions.
(a) Unless specifically defined otherwise herein, all terms defined in Schedule 74 shall have the same
meanings when used in this Agreement, including, without limitation, the following:
i) Cost of Conversion;
Ii) Public Thoroughfare;
Iii) Temporary Service;
iv) Trenching and Restoration;
v) Underground Distribution System; and
vi) Underground Service Lines.
Construction Agreement: Schedule 74
City of Auburn: Sounder Station/Alley Conversion
PSE #10488943
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(b) "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 Systern comparable to the overhead distribution system being replaced. For
purposes of the foregoing, a "comparable" system shall :nclude, unless the Parties otherwise
agree, the number of empty ducts (not to exceed two (2), typically having a diametler of 6" or less)
of such diameter and number as may be specified and agreed upon in the Project Plan necessary
to replicate the load-carrying capacity (system amperage class) of the overhead system being
replaced.
(c) "Estimated Reimbursable Private Conversion Costs" shall rnean the Cornpany's good faith
estimate of the Reimbursable Private Conversion Costs, as specified in the Project Plan and as
changed and adjusted from time to time in accordance with Section 6, below.
(d) "Estimated Reimbursable Temporary Service Costs" shall mean the Company's good faith
estimate of the Reimbursable Temporary Service Costs, as specified in the Project Plan and as
changed and adjusted from time to time in accordance with Section 6, below.
(e) "Estimated Reimbursable Upgrade Costs" shall mean the Company's good faith estimate of the
Reimbursable Upgrade Costs, as specified in the Project Plan and as changed ami adjusted from
time to time in accordance with Section 6, below.
(f) "Estimated Shared Company Costs" shall mean the Company's good faith estimate of the Shared
Company Costs, as specified in the Project Plan and as changed and adjusted frorn time to time
in accordance with Section 6, below.
(g) "Estimated Shared Government Costs" shall mean the Government Entity's good faith estimate of
the Shared Government Costs, as specified in the Project Plan and as changed and adjusted
from time to time in accordance with Section 6, below.
(h) "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.
For purposes of the foregoing, any empty ducts installed at the request of the Government Entity
shall be a Government-Requested Upgrade.
(i) "Party" shall mean either the Company, the Government Entity, or both.
Q) "Private Property Conversion" shall mean that portion, if any, of the Conversion Pmject for which
the existing overhead electric distribution system is located, as of the date determined in
accordance with Schedule 74, (i) outside of the Public Thoroughfare, or (Ii) pursuant to rights not
derived from a franchise previously granted by the Government Entity or pursuant to rights not
otherwise previously granted by the Government Entity.
(k) "Project Plan" shall mean the project plan developed by the Parties under the Design Agreement
and attached hereto as Exhibit A, as the same may be changed and amended from time to time in
accordance with Section 6, below. The Project Plan includes, among other things, (i) a detailed
description of the Work that is required to be performed by each Party and any third party, (Ii) the
applicable requirements and specifications for the Work, (ili) a description of the Operating Rights
that are required to be obtained by each Party for the Conversion Project (and the requirements
and specifications with respect thereto), (iv) an itemization and summary of the Estimated Shared
Company Costs, Estimated Shared Government Costs, Estimated Reimbursable Private
Conversion Costs (if any), Estimated Reimbursable Temporary Service Costs (if any) and
Estimated Reimbursable Upgrade Costs (if any), and (v) the Work Schedule.
Construction Agreement: Schedule 74
City of Aubum: Sounder Station/Alley Conversion
PSE #10488943
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(I) "Operating Rights" shall mean sufficient space and legal rights for the construction, operation,
repair, and rnaintenance of the Underground Distribution System.
(m) "Reimbursable Private Conversion Costs" shall mean (i) all Costs of Conversion, i'l any, incurred
by the Company which are attributable to a Private Property Conversion, less (ii) the distribution
pole replacement costs (if any) that would be avoided by the Company on account of such Private
Property Conversion, as determined consistent with the applicable Company distribution facilities
replacement program, plus (ili) just compensation as provided by law for the Company's interests
in real property on which such existing overhead distribution system was located prior to
conversion; provided that the portion of the Reimbursable Private Conversion Costs attributable to
the Costs of Conversion under subparagraph (i) of this paragraph shall not exceed the Estimated
Reimbursable Private Conversion Costs without the prior written authorization of the Government
Entity.
(n) "Reimbursable Temporary Service Costs" shall mean all costs incurred by the Company which
are attributable to (i) any facilities installed as part of the Conversion Project to provide Temporary
Service, as provided for in Schedule 74, and (Ii) the removal of any facilities installed to provide
Temporary Service (less salvage value of removed equipment); provided that the F~eimbursable
Temporary Service Costs shall not exceed the Estimated Reimbursable Temporar( Service Costs
without the prior written authorization of the Government Entity.
(0) "Reimbursable Upgrade Costs" shall mean all Costs of Conversion incurred by the, Company
which are attributable to any Government-Requested Upgrade; provided that the Reimbursable
Upgrade Costs shall not exceed the Estimated Reimbursable Upgrade Costs withclut the prior
written authorization of the Government Entity.
(p) "Shared Company Costs" shall mean all Costs of Conversion (other than Reimbursable Upgrade
Costs, Reimbursable Private Conversion Costs and Reimbursable Temporary Service Costs)
incurred by the Company in connection with the Conversion Project; provided, however, that the
Shared Company Costs shall not exceed the Estimated Shared Company Costs wi;thout the prior
written authorization of the Government Entity. For the avoidance of doubt, the "Shared Com pany
Costs" shall, as and to the extent specified in the Design Agreement, include the aGtual,
reasonable costs to the Company for the "Design Work" performed by the Company under the
Design Agreement.
(q) "Shared Government Costs" shall mean all Costs of Conversion incurred by the Government
Entity in connection with (I) any duct and vault installation Work which the Parties have specified
in the Project Plan is to be performed by the Government Entity as part of the Government Work,
and (Ii) the acquisition of any Operating Rights which the Parties have, by mutual a!~reement,
specified in the Project Plan are to be obtained by the Government Entity for the Conversion
Project, but only to the extent attributable to that portion of such Operating Rights which is
necessary to accommodate the facilities of the Company; provided, however, that the Shared
Government Costs shall not exceed the Estimated Shared Government Costs without the prior
written authorization of the Company.
(1') "Total Shared Costs" shall mean the sum of the Shared Company Costs and the Shared
Government Costs. For the avoidance of doubt, the Total Shared Costs shall not include, without
limitation, (i) costs to the Government Entity for Trenching and Restoration, or (ii) C()sts associated
with any joint use of trenches by other utilities as permitted under Section 3(b).
(s) "Work" shall mean all work to be performed in connection with the Conversion Project, as more
specifically described in the Project Plan, including, without limitation, the Company Work (as
defined in Section 2(a), below) and the Government Work (as defined in Section 3(a), below).
Construction Agreement: Schedule 74
City of Aubum: Sounder Station/Alley Conversion
PSE #10488943
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(t) 'Work Schedule" shall mean the scheduie specified in the Project Plan which sets forth the
milestones for completing the Work, as the same may be changed and amended from time to
time in accordance with Section 6, below.
2. Obliaations of the Comoanv.
(a) Subject to the terms and conditions of this Agreement, the Company shall do the f()lIowing as
specified in, and in accordance with the design and construction specifications and other
requirements set forth in, the Project Plan (the "Company Work"):
i) furnish and install an Underground Distribution System within the Conversion Area
(excluding any duct and vault installation or other Work which the Parties have
specified in the Project Plan is to be performed by the Government Entity);
Ii) provide a Company inspector on-site at the times specified in the Worl\ Schedule to
inspect the performance of any duct and vault installation Work which the Parties
have specified in the Project Plan is to be performed by the Government Entity; and
iii) upon connection of those persons or entities to be served by the Underground
Distribution System and removal of facilities of any other utilities that alre connected to
the poles of the overhead system, remove the existing overhead system (inciuding
associated wires and Company-owned poles) of 15,000 volts or less within the
Conversion Area except for Temporary Services.
(b) Upon request of the Government Entity, the Company shall provide periodic reports of the
progress of the Company Work identifying (i) the Company Work completed to dat,e, (Ii) the
Company Work yet to be completed, and (Iii) an estimate regarding whether the Conversion
Project is on target with respect to the Estimated Shared Company Costs, the Estimated
Reimbursable Private Conversion Costs (if any), the Estimated Reimbursable Temporary Service
Costs (if any), the Estimated Reimbursable Upgrade Costs (if any) and the Work Schedule.
(c) Except as otherwise provided in the Company's Electric Tariff G, the Company sha.ll own, operate
and maintain all electrical facilities installed pursuant to this Agreement including, but not limited
to, the Underground Distribution System and Underground Service Lines.
(d) Subject to the terms and conditions of this Agreement, the Company shall perform all Company
Work in accordance with the Project Plan, the Work Schedule and this Agreement.
3. Obliaations of the Government Entitv.
(a) Subject to the terms and conditions of this Agreement, the Government Entity shall do the
following as specified in, and in accordance with the design and construction specifications and
other requirements set forth in, the Project Plan (the "Government Work"):
i) provide the Trenching and Restoration;
Ii) perform the surveying for alignment and grades for ducts and vaults; and
iii) perform any duct and vault installation and other Work which the Parties have
specified in the Project Plan is to be performed by the Government Entity.
(b) Other utilities may be permitted by the Government Entity to use the trenches provi,jed by the
Government Entity for the installation of their facilities so long as such facilities or the installation
thereof do not interfere (as determined pursuant to the Company's electrical standards) with the
Underground Distribution System or the installation or maintenance thereof. Any such use of the
trenches by other utilities shall be done subject to and in accordance with the joint trench design
specifications and installation drawings set forth or otherwise identified in the Project Plan, and the
Government Entity shall be responsible for the coordination of the design and installation of the
facilities of the other utilities to ensure compliance with such specifications and drawings.
Construction Agreement: Schedule 74
City of Aubum: Sounder Station/Alley Conversion
PSE #10488943
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(c) Upon request of the Company, the Government Entity shall provide periodic reports of the
progress of the Government Work identifying (i) the Government Work completed to date, (ii) the
Governrnent Work yet to be completed, and (Iii) an estimate regarding whether the Conversion
Project is on target with respect to the Estimated Shared Government Costs and the Work
Schedule.
(d) The Government Entity shall be responsible for coordinating all work to be performed in
connection with the street improvement program within the Conversion Area.
(e) Subject to the terms and conditions of this Agreement, the Government Entity shali perform all
Government Work in accordance with the Project Plan, the Work Schedule and this Agreement.
4. Work Schedule.
(a) The Government Entity and the Company have agreed upon the Work Schedule as set forth in
the Project Plan. Changes to the Work Schedule shall be made only in accordancle with
Section 6, below.
(b) Promptly following the execution of this Agreement, and upon cornpletion by the Government
Entity of any necessary prelim inary work, the Government Entity shall hold a pre-construction
meeting involving all participants in the Conversion Project to review project design, coordination
requirements, work sequencing and related pre-mobilization requirements. Following the pre-
construction meeting, the Government Entity shall give the Company written notice to proceed
with the Work at least ten (10) business days prior to the commencement date specified in the
Work Schedule.
(c) Subject to the terms and conditions of this Agreement, each Party shall perform thø Work
assigned to it under this Agreement in accordance with the Work Schedule. So long as the
Company performs the Company Work in accordance with the Work Schedule, the, Company
shall not be liable to the Government Entity (or its agents, servants, employees, contractors,
subcontractors, or representatives) for any claims, actions, damages, or liability asserted or
arising out of delays in the Work Schedule.
5. Location of Facilities.
All facilities of the Company installed within the Conversion Area pursuant to this Agreement shall be
located, and all related Operating Rights shall be obtained, in the manner set forth in the applicable
provisions of Schedule 74, as specified by the Parties in the Project Plan.
6. Chanoes.
(a) Either Party may, at any time, by written notice thereof to the other Party, request cl1anges in the
Work within the general scope of this Agreement (a "Request for Change"), including, but not
limited to: (i) changes in, substitutions for, additions to or deletions of any Work; (ii) changes in the
specifications, drawings and other requirements in the Project Plan, (iii) changes in the Work
Schedule, and (iv) changes in the location, alignment, dimensions or design of items included in
the Work. No Request for Change shall be effective and binding upon the Parties unless signed
by an authorized representative of each Party.
(b) If any change included in an approved Request for Change would cause a change in the cost of,
or the time required for, the performance of any part of the Work, an equitable adjustment shall be
made in the Estimated Shared Company Costs, the Estimated Shared Governrnent Costs, the
Estimated Reimbursable Private Conversion Costs (if any), the Estimated Reimbumable
Temporary Service Costs (if any), the Estimated Reimbursable Upgrade Costs (if any) and/or the
Work Schedule to reflect such change.
Construction Agreement: Schedule 74
City of Auburn: Sounder Station/Alley Conversion
PSE #10488943
5
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 provisions in Section 10, below.
(c) The Work Schedule, the Estimated Shared Company Costs, the Estimated Sharecl Government
Costs, the Estimated Reimbursable Private Conversion Costs, the Estimated Reimbursable
Temporary Service Costs and/or the Estimated Reimbursable Upgrade Costs shall be further
equitably adjusted from time to time to reflect any change in the costs or time required to perform
the Work to the extent such change is caused by: (i) any Force Majeure Event under Section 11,
below, (ii) the discovery of any condition within the Conversion Area which affects the scope, cost,
schedule or other aspect of the 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 Work which are expressly identified by the Parties
in the Project Plan. 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
Section 10, below.
(d) Notwithstanding any dispute or delay in reaching agreement or arriving at a mutually acceptable
equitable adjustment, each Party shall, if requested by the other Party, proceed with the Work in
accordance with any approved Request for Change. Any request to proceed hereunder must be
accompanied by a written statement setting forth the requesting Party's reasons for rejecting the
proposed equitable adjustment of the other Party.
7. ComDensation and Pavment.
(a) Subject to and in accordance with the terms and conditions of this Agreement (including, without
limitation, the payment procedures set forth in this Section 7), payment in connection with the
Conversion Project and this Agreement shall be as follows:
i) The Total Shared Costs shall be allocated to the Parties in the following percentages:
(A) sixty percent (60%) to the Company, and (B) forty percent (40%) tc, the
Government Entity.
Ii) The Government Entity shall pay one hundred percent (100%) of all Reimbursable
Private Conversion Costs, if any.
Iii) The Government Entity shall pay one hundred percent (100%) of all Reirnbursable
Upgrade Costs, if any.
iv) The Government Entity shall pay one hundred percent (100%) of all RE!imbursable
Temporary Service Costs, if any.
v) The Government Entity shall pay one hundred percent (100%) of the CI)StS it incurs to
perform that portion of the Government Work specified in Section 3(a)(i) and (ii) (i.e.,
Trenching and Restoration and surveying).
vi) The Company shall pay one hundred percent (100%) of the costs it incurs to design,
provide and construct any Company-Initiated Upgrade.
vii) The Company shall pay one hundred percent (100%) of the costs it incurs to obtain
Operating Rights outside the Public Thoroughfare.
(b) Based on the allocation of responsibilities set forth in Section 7(a), above, the Parties shall
determine the net amount payable by the Government Entity or the Company, as applicabie, to
the other Party under this Agreement (the "Net Amount"). The Net Amount shall be' determined
by using the arnount of the Total Shared Costs allocated to the Government Entity under
Section 7(a)(i), and adjusting such amount as follows:
Construction Agreement: Schedule 74
City of Aubum: Sounder Station/Alley Conversion
PSE #10488943
6
-'---_._,._,-~---_._~._._.~_...-
i) Subtracting (as a credit to the Government Entity) the amount of the Shared
Government Costs.
ii) Adding (as a credit to the Company) the amount of all Reimbursable Private
Conversion Costs, Reimbursable Upgrade Costs and Reimbursable Temporary
Service Costs.
iii) Subtracting (as a credit to the Government Entity) any payments previously made to
the Company by the Government Entity under the Design Agreement which, under
the terms of the Design Agreement, are to be credited to the Government Entity
under this Agreement.
The Net Amount, as so calculated, (A) will be an amount payable to the Company if it is a positive
number, and (B) shall be an amount payable to the Government Entity if it is a negative number.
(c) Within sixty (SO) business days of completion of the Conversion Project, the Government Entity
shall provide the Company with an itemization of the Shared Government Costs (the "Government
Itemization"), together with such documentation and information as the Company may reasonably
request to verify the Government Itemization. The Government Itemization shall, alt a rninimum,
break down the Shared Government Costs by the following categories, as applicable: (i) property
and related costs incurred and/or paid by the Government Entity, including any costs of obtaining
Operating Rights, and (ii) construction costs incurred and/or paid by the Government Entity,
including and listing separately inspection, labor, materials and equipment, overhead and all costs
charged by any agent, contractor or subcontractor of the Governrnent Entity.
(d) Within thirty (30) business days after the Company's receipt of the Government Itemization and
requested documentation and information, the Company shall provide the Government Entity a
written statement (the "Company Statement") showing (i) an itemization of the Shared Company
Costs, (ii) the Parties' relative share of the Total Shared Costs based on the Company's
itemization of the Shared Company Costs and the Government Entity's itemization of the Shared
Government Costs set forth in the Government Itemization, (Iii) any Reimbursable Private
Conversion Costs, (iv) any Reimbursable Upgrade Costs, (v) any Reimbursable Temporary
Service Costs, (vi) any credits to the Government Entity for payments previously made to the
Company by the Government Entity under the Design Agreement which, under the terms of the
Design Agreement, are to be credited to the Government Entity under this Agreemlent, and
(vii) the Net Amount, as determined in accordance with Section 7(b), above, together with such
documentation and information as the Government Entity may reasonably request to verify the
Company Statement. The itemization of the Shared Company Costs included in the Company
Statement shall, at a minimum, break down the Shared Company Costs by the following
categories, as applicable: (i) design and engineering costs, and (ii) construction costs, including
and listing separately inspection, labor, rnaterials and equipment, overhead and all costs charged
by any agent, contractor or subcontractor of the Company.
(e) Within thirty (30) business days after the Government Entity's receipt of the Company Statement
and requested documentation and information, the Net Amount shall be paid by the owing Party to
the other Party, as specified in the Company Statement.
8. Indemnification.
(a) The Government Entity releases and shall defend, indemnify and hold the Company harmless
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. DUlCing the
performance of such activities the Government Entity's employees or contractors shall at all times
remain employees or contractors, respectively, of the Government Entity.
Construction Agreement: Schedule 74
City of Aubum: Sounder Station/Alley Conversion
PSE #10488943
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(b) The Company releases and shall defend, indemnify and hold the Government Entity harmless
from all claims, iosses, 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 Company in its performance under this Agreement. During the performance of
such activities the Company's employees or contractors shall at all times remain employees or
contractors, respectively, of the Company.
(c) Solely for purposes of enforcing the indemnification obligations of a Party under this Section 8,
each Party expressly waives its immunity under Title 51 of the Revised Code of Washington, the
Industrial nsurance Act, and agrees that the obligation to indemnify, defend and hold harmless
provided for in this Section 8 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.
9. Conversion of Service to Customers within Conversion Area.
(a) Upon commencement of the Work, the Government Entity shall notify all persons and entities
within the Conversion Area that service lines to such customers must be converted from overhead
to underground service within the applicable statutory period following written notic,e from the
Government Entity that service from underground facilities are available in accordalnce with RCW
35.96.050. Upon the request of any customer, other than a single family residential customer,
within the Conversion Area, the Company shall remove the overhead system and c:onnect such
persons' and entities' Underground Service Lines to the Underground Distribution Systern.
(b) The Parties acknowledge that single family residences within the Conversion Area must (i)
provide a service trench and conduit, in accordance with the Company's specifications, from the
underground meter base to the point of service provided during the conversion, and (ii) pay for the
secondary service conductors as defined in Schedule 85 of the Company's Electric Tariff G. The
Government Entity shall exercise its authority to order disconnection and removal of overhead
facilities with respect to owners failing to convert service lines frorn overhead to underground
within the time lines provided in RCW 35.96.050.
10. DisDute Resolution.
(a) Any dispute, disagreement or claim arising out of or concerning this Agreement mUlst 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 rnay 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 ancl shall be
treated as compromise and settlement negotiations for purposes of the state and feideral rules of
evidence.
(b) Any claim or dispute arising hereunder which relates to any Request for Change or any equitable
adjustment under Section 6, above, or the compensation payable by or to either Party under
Section 7, above, and which is not resolved by senior management within the time permitted
under Section 10(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.
Construction Agreement: Schedule 74
City of Auburn: Sounder Station/Alley Conversion
PSE #10488943
8
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All other disputes shall be resoived by litigation in any court or governmental agenc:y, as
applicable, having jurisdiction over the Parties and the dispute.
(c) In connection with any arbitration under this Section 10, costs of the arbitrator(s), ~Iearing 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 Party's costs and expenses
(including, but not limited to, reasonable attorneys' fees) 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.
11. Uncontrollable Forces.
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"), thein that Party's
performance shall be excused during the Force Majeure Event. Force Majeure Events shall include,
without limitation, war; civil disturbance; 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 invoiving 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 Force 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.
12. Insurance.
(a) PSE shall, and shall require each of its contractors to, secure and maintain in force throughout the
duration of the Conversion Project (or, if sooner, until termination of this Agreement)
comprehensive general liability insurance, with a minimum coverage of $2.000.000 per
occurrence and $2.000.000 aggregate for personal injury; and $2.000.000 per occurrence/
aggregate for property damages, and professional liability insurance in the amount of $2.000.000.
(b) The Government Entity shall ensure that each of its contractors performing any Government Work
secures and maintains in force throughout the duration of the Conversion Project (or, if sooner,
until term ination of this Agreement) insurance policies having the same coverage, amounts and
limits as specified Section 12(a), above.
(c) In lieu of the insurance requirements set forth in Section 12(a), above, the Company may self-
insure against such risks in such amounts as are consistent with good utility practice. Upon the
Government Entity's request, the Company shall provide the Government Entity with reasonable
written evidence that the Company is maintaining such self-insurance.
13. Other.
(a) Aareement Subiect To Tariff. This Agreement is subject to the General Rules and I~rovisions set
forth in Tariff Schedule 80 of the Company's electrical Tariff G and to Schedule 74 of such Tariff
as approved by the Washington Utilities and Transportation Commission and in effe,ct as of the
date of this Agreement.
Construction Agreement: Schedule 74
City of Aubum: Sounder Station/Alley Conversion
PSE #10488943
9
(b) Termination. The Government Entity reserves the right to terminate the Conversion Project and
this Agreement upon written notice to the Company. In the event that the Government Entity
terminates the Conversion Project and this Agreement, the Government Entity shall reimburse the
Company for all costs reasonably incurred by the Company in connection with the Work
performed prior to the effective date of termination. In such event, the costs reimbursable to the
Company (i) shall not be reduced by any Shared Government Costs or other costs incurred by the
Government Entity, and (Ii) shall be paid within thirty (30) days after the receipt of the Company's
invoice therefor. Sections 1, 5, 7, 8, 9, 10, 11 and 13 shall survive any termination of the
Conversion Project and/or this Agreement.
(c) Facilities Greater Than 15.000 Volts. Nothing in this Agreement shall in any way affect the rights
or obligations of the Company under any previous agreements pertaining to the existing or future
facilities of greater than 15,000 Volts within the Conversion Area.
(d) Comoliance With Law. The Parties shall, in performing the Work under this Agreement, comply
with all applicable federal, state, and local laws, ordinances, and regulations.
(e) No Discrimination. The Company, with regard to the Work performed by the Company under this
Agreement, shall comply with all applicable laws relating to discrimination on the basis race, color,
national origin, religion, creed, age, sex, or the presence of any physical or sensory handicap in
the selection and retention of employees or procurement of materials or supplies.
(f) Indeoendent Contractor. The Company and the Government Entity agree that the Company is an
independent contractor with respect to the Work and this Agreement. The Company is acting to
preserve and protect its facilities and is not acting for the Government Entity in performing the
Work. Nothing in this Agreement shall be considered to create the relationship of .~mployer and
employee between the Parties. Neither the Company nor any employee of the Company shall be
entitled to any benefits accorded employees of the Government Entity by virtue of the Work or this
Agreement. The Government Entity shall not be responsible for withholding or othørwise
deducting federal income tax or social security or contributing to the State Industrial Insurance
Program, or otherwise assuming the duties of an employer with respect to the Company, or any
employee of the Company.
(g) Nonwaiver of Riohts or Remedies. No failure or delay of either Party to insist upon or enforce
strict performance by the other Party of any provision of this Agreement or to exercise any other
right under this Agreement, and no course of dealing or performance with respect thereto, shall,
except to the extent provided in this Agreement, be construed as a waiver or, or choice of, or
relinquishment of any right under any provision of this Agreement or any right at law or equity not
otherwise provided for herein. The express waiver by either Party of any right or remedy under
this Agreement or at law or equity in a particular instance or circumstance shall not constitute a
waiver thereof in any other instance or circurnstance.
(h) No Third PartY Beneficiaries. There are no third-party beneficiaries of this Agreement. Nothing
contained in this Agreement is intended to confer any right or interest on anyone other than the
Parties, their respective successors, assigns and legal representatives.
(i) Governmental Authoritv. This Agreement is subject to the rules, regulations, orders and other
requirements, now or hereafter in effect, of all governrnental regulatory authorities and courts
having jurisdiction over this Agreement, the Parties or either of them. All laws, ordinances, rules,
regulations, orders and other requirements, now or hereafter in effect, of governmental regulatory
authorities and courts that are required to be incorporated into agreements of this cl1aracter are by
this reference incorporated in this Agreement.
ü) No PartnershiD. This Agreement shall not be interpreted or construed to create an association,
joint venture or partnership between the Parties or to impose any partnership obligations or liability
upon either Party.
Construction Agreement: Schedule 74
City of Aubum: Sounder Station/Alley Conversion
PSE #10488943
10
._~-_._--~----_._~-- "---
Further, neither Party shall have any right, power or authority to enter into any agreiement or
undertaking for or on behalf of, to act as or be an agent or representative of, or to otherwise bind
the other Party.
(k) Severabilitv. In the event that any provision of this Agreement or the application of any such
provision shall be held invalid as to either Party or any circumstance by any court having
jurisdiction, such provision shall remain in force and effect to the maximum extent provided by
law, and all other provisions of this Agreement and their application shall not be affected thereby
but shall remain in force and effect unless a court or arbitrator holds they are not s,everable from
the invalid provisions.
(I) Notice. 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 Entitv:
Citv of Auburn
25 W mp\;'" So
/J.. b..n...J W-fI q!JòOl- <I'i'iB
Attn: -Sc:.c1t 10....7T1!!,L
Fax: t:lS3 i q.3/- 30.5'3
If to the Comoanv:
Puget Sound Energy, Inc.
6905 South 228'h Street, SKC-SVC
Kent, W A 98032
Attn: Mary Ausburn, AICP
Fax: (253) 395-6882
Any Party may change its address specified in this Section 13(1) by giving the other Party notice of
such change in accordance with this Section 13(1).
(m) Aoolicable Law. 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.
(n) Entire Aareement. 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 suporseded in their
entireties; provided, however, that except as expressly set forth in this Agreement, nothing herein
is intended to or shall alter, amend or supersede the Design Agreement and the same shall
remain in full force and effect in accordance with its terms.
Construction Agreement: Schedule 74
City of Aubum: Sounder Station/Alley Conversion
PSE #10488943
11
~ -~---,---~-_._.,-
(0) Successors and Assians. 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 or¡ anization or
division thereof.
Government Entity:
Company:
CITY OF AUBURN
PUGET SOUND ENERGY. INC.
~(?
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Date Signed "¿~/()l-!
~
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BY
f\I\
J'1\W\('}\~
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BY
ITS
ITS
Date Signed
Construction Agreement: Schedule 74
City of Aubum: Sounder Station/Alley Conversion
PSE #10488943
12
.-..~-~_._-----,._-
· PUGET SOUND ENERGY
Exhibit A: Project Plan
City of Auburn: Sounder Alley Underground ConveJrsion
Project Number # 101021645
July 27, 2004
This Projcct Plan describes work to be performed by Pugct Sound Energy and/or its contractor
("PSE") and the City of Auburn and/or its contractor ("City") for the conversion of
certain PSE electrical distribution system íàcilities as described herein (the "Conversion Project").
In addition to this document, this Project Plan includes and consists of:
· Relevant drawings and specifications for the Conversion Project work
· Relevant PSE Standards for installation ofPSE facilities
· Project Cost Estimate document(s)
Revisions to this Proiect Plan must be mutuallv aDDfoved bv the Citvand PSE.
Conversion Project ScoDe
Pursuant to PSE's Schedule 74, PSE will convert its existing overhead distribution system of
J 5,000 volts and less to an Underground Distribution System within the following area (the
"Conversion Area"): The right-of-way (alley) south of East Main, between A Street SW and B
Street SW. The Conversion Project includes modification or replacement of all existing service
lines within the Conversion Area to connect to the Underground Distribution System and
removal ofPSE's existing overhead distribution facilities from the Conversion Area. Refer to
project drawings for PSE Work Order 101021645.
There are no Company Initiated Upgrades, Government Requested Upgrades or Temporary
Service elements included in this Project Scope.
ODeratÎDI! Ril!hts
The existing overhead distribution facilities are located with the Public Thoroughfaœ unless
otherwise indicated in this Project Plan. The new Underground Distribution System will be
located within Public Thoroughfare (the allcy), except for the new single phase transfonner that
by mutual agreement will be placcd in an existing PSE Easement on Sound Transit property.
City of Auburn
Sounder Alley Underground Conversion
101021645
Page I
--...--"--..-.-----------.."
." --------------- ------_.__.._._~.... ....------
City Responsibilities
Trenching, Restoration & Job Coordination: The City will perform all excavatiion and
trenching, shoring (if required), bedding, backfill, site restoration and job coordination required
for the installation of the Underground Distribution System. At locations where existing
underground electrical facilities are to be cut over to the underground system, the City or it's
Contractor will provide scheduled excavation with two (2) business days notice.
Surveying: The City will perform all surveying for alignment and grades of vaults and ducts for
the installation ofthe Underground Distribution System.
Notice for Materials Delivery: The City will provide PSE five (5) working days notice prior to
the start of ducts and vaults installation to allow for delivery ofPSE's materials, scheduling ()f
vault deliveries and scheduling ofPSE's construction crew.
Staging and Storage: The City will provide secure staging and storage area( s) for ducts and
vaults materials provided by PSE and will be responsible for the security and condition of these
materials until they are installed.
Traffic Control: The City will provide flagging and traffic control as required for all work
performed by the City.
Notice to Convert or Modify Service Lines: Unless otherwise specified in this Project Plan, at
the completion of the Conversion Project all customers within thc Conversion Area must be
served by underground services lines. The City will provide written notice to customers within
the Conversion Area that they must replace existing overhead service lines with underground
service lines or modify/reroute existing underground service lines as required to connect to the
Underground Distribution System. Service lines to be replaced or modified are listed in this
Project Plan.
Coordination of Other Utilities: The City will coordinate the removal and relocation of other
utilities attached to PSE's poles within the Conversion Area and will coordinate any joint use by
other utilities of any excavations and/or trenches used for the Conversion Project.
PSE Responsibilities
Installation of Ducts & Vaults: PSE will provide and deliver on site all duct and vault materials
and install these materials in the City provided excavation. PSE, or it's contractor, will install
and proof all ducts and vaults for the Underground Distribution System in accordance with PSE
standards. "Proofing" as used herein is defined as: verification that the duct and vault system is
free and clear of damage, installed to proper grade and at proper location and contains a pulling
line.
Installation of Electrical Facilities: Following installation of the duct and vaults, PSE will
install all electrical facilities for the Underground Distribution System.
Removal of Electrical Facilities: Following the connection and conversion of all customer
service lines within the Conversion Area and the removal of all other Utility systems from PSE
poles, PSE will mobilize within 5 work days and remove PSE poles and fill pole holies with
crushed rock.
City of Auburn
Sounder Alley Underground Conversion
101021645
Page 2
^-~_._~-----
Traffic Control: PSE will provide flagging and traffic control as required for all work
perfonned by PSE. Other than standard flagging, special traffic control provisions are not
included in this project plan. A city of Auburn Right of Way Pennit is the only peJmit required
for this project.
Underground Service Lines: Unless otherwise specified in this Project Plan, at the completion
of the Conversion Project all customers within the Conversion Area must be served by
underground services lines. PSE will connect non-residential underground service lines to the
Underground Distribution System, in accordance with PSE Schedule 85. PSE will provide
infonnation and assistance to customers and the City to facilitate work to be performed by
customers associated with underground service lines. PSE will disconnect and reconnect service
to customers during regular business hours and will schedule service line work with customers at
least two business days in advance. Service lines to be replaced or modified are listed in this
Project Plan.
Service Interruptions: Temporary interruptions of electrical service to customers will be
required during construction of the Conversion Project and transfer of customers to the
Underground Distribution System. PSE will use reasonable efforts to provide at least two
working days advance notice of service interruptions to customers.
Customer Responsibilities
Underground Service Lines: Unless otherwise specified in this Project Plan, at th,~ completion
of the Conversion Project all customers within the Conversion Area must be served by
underground services lines. Customers must make their premises ready for service by
underground service lines and must make application to PSE for replacement, modification and
connection of service lines. Non-residential customers must provide suitable customer installed,
owned and maintained underground service lines in accordance with PSE Schedule 85.
Residential customers (single family residences) must provide the trench, backfill and suitable
conduit under obstructions (if any) to PSE's specifications, and PSE will install, own and
maintain the service lines therein in accordance with PSE Schedule 85. Customers served by
underground service lines connected to PSE's overhead distribution system must perfonn the
above work as necessary to reroute existing underground service lines to connect to the
Underground Distribution System. Service lines to be replaced or modified are listed in this
Project Plan.
Construction Work Schedule
The Conversion Project Work will be perfonned in accordance with the following Work
Schedule, unless said Schedule is revised by mutual consent and agreement ofthe City and PSE
or circumstances beyond the control of PSE and the City preclude such perfonnance.
It is anticipated that the project will start the first week of August. The City will start excavation
the day before the PSE civil crew is scheduled. Installation of the vault and duct will take place
the following day. The line crew will be scheduled following the installation of the vault and
duct system.
City of Auburn
Sounder Alley Underground Conversion
10 1021645
Page 3
Proiect Cost Estimate & Allocation
The estimated costs to perform the Conversion Project are presented in the attached Project Costs
Estimatc Summary (Attachment A) and consist of PSE's good faith estimate of costs to design
and construct the Conversion Project together with the City's good faith estimate of its costs to
perform certain work as described in the Project Plan (if any). Estimated project costs are based
on the installation of Facilities and performance of the Conversion Project as described in this
Project Plan and may be subject to change in the event that performance of the Conversion
Project differs fÌ'om that described in this Project Plan.
Assumptions
The Project Design Work (construction plans and specifications), Construction Schedule and
Construction Costs Estimate are based on and reflect the following assumptions. Construction
conditions that are not consistent with these assumptions may result in a request for change to the
Construction Schedule and/or Construction Costs Estimate pursuant to Section 6 of the
Construction Agreement.
Schedule
1 PSE will be provided continuous access to the construction site and associated dectrical
work fÌ'om 7:00 AM to 5:30 PM Monday through Friday (regular business hours).
2 The normal PSE construction crew work schedule consists of four ten-hour workdays per
week within the working period referenced in assumption 1 above.
3 Excavation will be provided by the City such that the installation of the vault arld duct is
completed within one working day.
4 Cut-over and transfers of existing customers will be performed during regular business hours.
Overtime charges may be assessed for work performed outside of the regular business hours
referenced in assumption I.
5 PSE's contractor and the City's contractor will mutually agree upon a schedule for excavation
for and delivery of all vaults. Scheduling for delivery of vaults fÌ'om the manufacture will
require a minimum of two days notice.
6 Customer work to install or modify service lines and work necessary by other utilities will be
performed and completed so as not to interfere with or delay the performance ofPSE's work.
City of Auburn
Sounder Alley Underground Conversion
101021645
Page 4
"--"~---~-~-.-..~._--_._.~
PSE Design Plans
7 The Conversion Project will be perfonned as shown in PSE's project drawings and PSE's
design and construction standards which accompany this Project Plan.
8 Vaults, handholes and pad-mounted equipment have been located consistent with PSE
Design Standard 6775.0035.
9 Locations for facilities as shown on PSE's project drawings are available for use.
10 Vault excavation will provide for appropriate grade, elevations and locations. The bottom of
vault excavations will be leveled with a minimum of six (6) inches of 5/8 inch-,crushed rock.
II Maximum trench depth for PSE conduits and conductors is 48 inches unless otherwise shown
on PSE's project drawings or otherwise approved by PSE's Project Manager. Shoring, if
required, will be provided by the City to PSE standards.
12 Minimum depth of cover above the top ofPSE's conduits and conductors is 36 inches for
primary voltage and 24 inches for secondary voltage unless otherwise shown on PSE's
project drawings or otherwise approved by PSE's Project Manager.
13 This Project Plan does not include installation and removal of "temporary" facilities at the
request of others during construction.
14 The plans call for using an existing 4" conduit located approximately 5' ITom the transfonner
location and extending west approximately 125'. A conduit marker has been observed at the
west end. No marker is visible at the east end. Project pricing is based on spending up to two
hours assisting in locating this conduit on the same day that the crew is scheduled to install
the vault and duct. Any additional time beyond two hours or time spent the day before
installation is scheduled will be billed as an additional project cost.
15 If the existing conduit is not available for use either because it can not be found in a
reasonable time or due to damage, the city will provide the additional trench required at no
cost to PSE. The cost for additional conduit and labor to install it will be billed as an
additional project cost.
Cost Estimate
16 The estimated costs presented in the Construction Costs Estimate Summary are based on the
installation offacilities at locations shown in PSE's project drawings and otherwise in
accordance with this Project Plan.
17 The estimated costs presented in the Construction Costs Estimate Summary are based on the
perfonnance of work by PSE in accordance with the Construction Work Schedule included
in this Project Plan during the working period addressed in assumptions I and 2 above. No
overtime work is included in this Project Plan.
18 The estimated costs presented in the Construction Costs Estimate Summary provide for
pcrfonnance of duct & vault installation by PSE.
19 The Construction Costs Estimate includes a City of Auburn pennit fee of$137.00
City of Auburn
Sounder Alley Underground Conversion
101021645
Page 5
PSE Facility Desil!:n Standards
This Conversion Project has been designed by PSE and will be constructed by PSE and the City
in accordance with PSE design and construction standards in effect as of the date of this Project
Plan. Standards applicable to work perfonned by the City are attached to this Project Plan.
Customer Service Lines to be Converted
126 W Main St
128 WMain St
Acceptance of Proiect Plan
The City and PSE mutually agree to and accept this Project Plan as of the date indkated:
:::th~u~ ~
Date: 7 !~)ðj
For PSE:
B~~_~"^^"
Date: '8,.:<..,. ~
City of Auburn
Sounder Alley Underground Conversion
101021645
Page 6
---- ~._~_._------'------_.-._,._------,_._------
. PUGET SOUND ENERGY
Date: 7ml2OO4
project Title: Auburn, Sounder Alley Conversion
Project Description: Convert 1 Span of Prlma'Y,lnstall120124O Padmount XFMR, Handhole(s), and Convert ServIces.
Rate Schedule: 74
ProJect ManagBl'I Phone #: Tõm Qua"" /253-476-6156
Project Engineer / Phon..: Susan Ponsler / ~76-6109
Municipal liaison Mgr I Phone 41: Mary Ausburn /253-395-6867
Project.: 101021645
Revision II:
RevIsion Date:
1,2
Total 100% GE
Reimbursable
Costs
Estimate
Reimbursable Costs
PrIor
ConvIReloc
WIthin 5 Years
Estimate
Temporary
ServIces
Estimate
100% Govwnment Enti
Gov Req
UPGrade
Estimate
Private
Con~lon
EstImate
Construction
Costs Totals·
Estimate
100% PSE
Costs
estimate
Shared Costs3
Estimate
2.700
9,500
1.800
$
$
$
$
$
$
$
$
$
$
$
$
I~
$
$
$
$
$
$
i
$
$
$
$
$
$
t
$
$
$
$
$
$
i
$
$
$
$
$
$
i
$
$
$
$
$
$
i
2,700
9,500
1.800
$
$
$
$
$
$
.
Company
Labor
Materials
Equipment
Inspection
Service Provider Outside Services
Operating Rights
Overhead
$
$
$
$
-
$
$
$
$
$
-
$
$
$
$
1
$
$
$
$
$
-
$
$
$
$
$
-
$
$
$
$
$
-
$
$
$
$
$
-
$
$
$
$
$
-
$
Government Entity
Labor
Materials
Operating Rights
Other
Construction Coats Totals
4,000
4.000
PI :ed allocation of estimated Construction Costs at Completion of Construc1lon Work
Company- $' ã.4oõ
Government Enti' $ 5.600
8.400
5,600
$
$
$
$
Agreement and Section 7 of Schedule 74 Construction Agreement
-,
, Estimate prepared in accordance with Sections 6 & 11 of Schedule 74
2 All amounts shown in this estimate are rounded up to the next $100
3 Shared Costs are allocated 40% to the Government Entity and 60% to the Company if the Conversion Project is completed
.. Total Costs excludes Government Entity costs of trenching, restoration. and surveying
Design
7/27/2004 3,59 PM
Printed
Construction Estimate
I
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,
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