HomeMy WebLinkAboutPW05-407 - Original - Schedule 74 Underground Conversion - Project Construction Agreement SCHEDULE 74 UNDERGROUND CONVERSION
Project Construction Agreement
Project Name: Citv of Kent 116'h Ave SE—SR 516 to SE 2561h St.
Project Number 101027468
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THIS Agreement, dated as of this2ez'day of .Dec.eAo BBC+ , 200S is made by and
between the City of Kent, 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 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 previously entered into a Project Design
Agreement dated as of (the "Design Agreement"), pursuant to which the parties completed
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
(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 System comparable to the overhead distribution system being replaced. For
purposes of the foregoing, 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)
Construction Agreement, Attachment"B"to Schedule 74, Page 1
City of Kent 116t°Ave SE—SR 516 to SE 256'St.
of such diameter and number as maybe 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 mean the Company'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 Protect 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 and 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 from 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 Protect 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.
(j) "Private Property Conversion"shall mean that portion, if any,of the Conversion Project for which
the existing overhead electric distribution system is located, as of the date determined in
accordance with Schedule 74, (1) outside of the Public Thoroughfare, or(a) 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, (1) a detailed
description of the Work that is required to be performed by each Party and any third party, (it)the
applicable requirements and specifications for the Work, (iii) 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.
(1) "Operating Rights"shall mean sufficient space and legal rights for the construction, operation,
repair, and maintenance of the Underground Distribution System.
(m) "Reimbursable Private Conversion Costs"shall mean (i)all Costs of Conversion, if 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
Construction Agreement, Attachment'Vto Schedule 74, Page 2
City of Kent 116"Ave SE—SR 516 to SE 256'"St.
replacement program, plus (m)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 (u) the removal of any facilities installed to provide
Temporary Service (less salvage value of removed equipment), provided that the Reimbursable
Temporary Service Costs shall not exceed the Estimated Reimbursable Temporary Service Costs
without the prior written authorization of the Government Entity
(o) "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 without 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 without the prior
written authorization of the Government Entity. For the avoidance of doubt, the "Shared Company
Costs" shall,as and to the extent specified in the Design Agreement, include the actual,
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 (u)the acquisition of any Operating Rights which the Parties have, by mutual agreement,
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.
(r) "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(u) costs 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)
(t) "Work Schedule"shall mean the schedule 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. Obligations of the Company.
(a) Subject to the terms and conditions of this Agreement, the Company 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 "Company Work"):
Construction Agreement, Attachment"B"to Schedule 74, Page 3
City of Kent 116"Ave SE—SR 516 to SE 256`"St.
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);
u) provide a Company inspector on-site at the times specified in the Work 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
in) upon connection of those persons or entities to be served by the Underground
Distribution System and removal of facilities of any other utilities that are connected to
the poles of the overhead system, remove the existing overhead system (including
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 date, (u)the
Company Work yet to be completed, and (iu) 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 shall own, operate
and maintain all electrical facilities installed pursuant to this Agreement including, but not limited
p 9 9�
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. Obligations of the Government Entity.
(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
in) 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 provided 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 ir, 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
(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, (H)the
Government Work yet to be completed, and (ui) an estimate regarding whether the Conversion
Project is on target with respect to the Estimated Shared Government Costs and the Work
Schedule.
(d) The Govemment Entity shall be responsible for coordinating all work to be performed in
connection with the street improvement program within the Conversion Area
Construction Agreement,Attachment"B"to Schedule 74, Page 4
City of Kent 116'"Ave SE—SR 516 to SE 256"St.
i
(e) Subject to the terms and conditions of this Agreement, the Government Entity shall perform all
Government Work in accordance with the Protect 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 Protect Plan. Changes to the Work Schedule shall be made only in accordance wan
Section 6, below.
(b) Promptly following the execution of this Agreement, and upon completion by the Government
Entity of any necessary preliminary work,the Government Entity shall hold a pre-construction
meeting involving all participants in the Conversion Protect to review protect 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 the 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 Protect Plan.
6. Changes.
(a) Either Party may, at any time, by written notice thereof to the other Party, request changes 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; (n) changes in the
specifications, drawings and other requirements in the Protect Plan, (ni) 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 Government 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/or the
Work Schedule to reflect such change. 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 Shared 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, (6)the discovery of any condition within the Conversion Area which affects the scope, cost,
Construction Agreement, Attachment'Vto Schedule 74, Page 5
City of Kent 116"Ave SE—SR 516 to SE 256"St.
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 (in) 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 Compensation and Payment
(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%) to the
Government Entity
ii) The Government Entity shall pay one hundred percent (100%) of all Reimbursable
Private Conversion Costs, if any.
ui) The Government Entity shall pay one hundred percent (100%) of all Reimbursable
Upgrade Costs, if any.
iv) The Government Entity shall pay one hundred percent (100%) of all Reimbursable
Temporary Service Costs, if any.
v) The Government Entity shall pay one hundred percent (100%) of the costs it incurs to
perform that portion of the Government Work specified in Section 3(a)(i) and (u) (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.
vn) 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 applicable,to
the other Party under this Agreement (the "Net Amount"). The Net Amount shall be determined
by using the amount of the Total Shared Costs allocated to the Government Entity under
Section 7(a)(i), and adjusting such amount as follows:
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
in) 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
Construction Agreement,Attachment"B"to Schedule 74, Page 6
City of Kent 116"Ave SE—SR 516 to SE 256'"St.
(c) Within sixty(60) 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, at a minimum,
break down the Shared Government Costs by the following categones as applicable h) property
and related costs incurred and/or paid by the Government Entity, including any costs of obtaining
Operating Rights, and (n)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 Government 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, (u) 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, (ill) 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 Agreement, and
(vn) the Net Amount, as determined in accordance with Section 7(h), above,together Nvdh 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. (Q design and engineering costs,and(u) construction costs, including
and listing separately inspection, labor, materials 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. During 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.
(b) The Company releases and shall defend, indemnify and hold the Government Entity harmless
from al!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 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 Insurance 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
Construction Agreement, Attachment "B"to Schedule 74, Page 7
City of Kent 116`"Ave SE— SR 516 to SE 256tb St.
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 followinq written notice from the
Government Entity that service from underground facilities are available in accordance 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 connect such
persons' and entities' Underground Service Lines to the Underground Distribution System
(b) The Parties acknowledge that single family residences within the Conversion Area must(1)
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 (u) 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 from overhead to underground
within the timelines provided in RCW 35.96.050
10 Dispute Resolution.
(al 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 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 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 Section 10, 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 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.
Construction Agreement, Attachment"B"to Schedule 74, Page 8
City of Kent 116"Ave SE—SR 516 to SE 2W St.
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"), then 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,eartnquake 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
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 insurances, 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 termination 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) Agreement Subiect To Tariff. This Agreement is subject to the General Rules and Provisions 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 effect as of the
date of this Agreement.
(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.
Construction Agreement, Attachment"B"to Schedule 74, Page 9
City of Kent 116'Ave SE—SR 516 to SE 256" St.
(d) Compliance 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) Independent 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 employer 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 otherwise
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 Rights 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 circumstance
(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 Authority. This Agreement is subject to the rules, regulations, orders and other
requirements, now or hereafter in effect, of all governmental 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 character are by
this reference incorporated in this Agreement.
Q) No Partnership. 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 Further, neither Party shall have any right, power or authority to enter into any
agreement 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) Severability. 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 severable from
the invalid provisions.
Construction Agreement, Attachment"B"to Schedule 74, Page 10
City of Kent 1 W Ave SE—SR 516 to SE 256" St.
(1) Notice Any notice under this Agreement shall be in writing and shall be faxed (with a copy
followed by mad 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 City of Kent
220 Fourth Ave South
Kent, WA 98032-5895
Attn Mark Madfai
Fax: 253-856-6500
If to the Company Puget Sound Energy, Inc.
6905 South 228th Street
Kent, WA 98032
Attn Doug Corbin
Fax 253-395-6882
Any Party may change its address specified in this Section 13(I) by giving the other Party notice of
such change in accordance with this Section 10001).
(m) Applicable Law. This Agreement shall in all respects be interpreted, construed and enforced in
accordance with the laws of the State of Washington (wdho!it reference to ri!ies governing rnnfliCt
of laws), except to the extent such laws may be preempted by the laws of the United States of
America.
(n) Entire Agreement 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; 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
(o) Successors and Assigns. 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. Company:
City of Kent PUGET SOUND ENERGY, INC
BY goiv BY '9
ITS H J�� ITS Municipal Liaison Manager
Date Signed Date Signed t LZZ-o A S
Approved as to form.
4&A
Construction Agreement, Attachment'B"to Schedule 74, Page 11
City of Kent 1 16" Ave SE—SR 516 to SE 256"St.
® PUGET SOUND ENERGY
Exhibit "A" Project Plan
Schedule 74 Underground Conversion
City of Kent- 116th Ave SE Conversion SCH-74
PSE Project Number: 101027468
September 26, 2005
Pursuant to Puget Sound Energy("PSE") Rate Schedule 74 and as described in this Project Plan,
PSE will convert its existing overhead electrical distribution system of 15,000 volts or less to an
equivalent Underground Distribution System. This Project Plan describes work to be performed
by PSE and the City of Kent(the "City") for the conversion of certain PSE electrical distribution
system facilities as described herein(the "Conversion Project") Construction of this Conversion
Project is contingent upon and shall not commence prior to both written acceptance of this
Project Plan and written execution of a Schedule 74 Construction Agreement by the City and
PSE.
This Project Plan includes and consists of:
• Detailed description of the Construction Work to be performed
• Applicable requirements, drawings and specifications for the work(attached)
• Operating Rights to be obtained for the Conversion Project (attached)
• Construction Work Schedule
• Construction Costs Estimate Summary(attached)
Revisions to this Protect Plan must be mutually approved by the City and PSE.
Scope of Work
This Conversion Project will replace PSE's existing overhead electrical distribution system with
an Underground Distribution System within the following area(the "Conversion Area"): On
I I Ave SE from SR-516 to SE 256th St., Kent . The Conversion Project is approximately
2,800 feet in length, including laterals and road crossings.
The Conversion Project includes modification or replacement of all existing services lines within
the Conversion Area to connect to the Underground Distribution System and removal of PSE's
existing overhead electric distribution facilities (including PSE distribution poles and pole
mounted street lights) from the Conversion Area.
There are no Company Initiated Upgrades, Government Entity Requested Upgrades or
Temporary Service elements included in the Conversion Project Scope of Work.
The following portions of PSE's existing facilities to be converted are located outside of Public
Thoroughfare: All Vault and Transformers are to be located on city obtained nght-of-way.
City of Kent
1161h Ave SE Conversion SCH-74 Underground Conversion Page 1
101027468
In conjunction with the Conversion Project, PSE will remove its existing street lighting system -
within the Conversion Area. Provision of a new street lighting system within the Conversion
Area under terms of applicable PSE Tariff Schedules will be addressed on a separate work order
and work sketch. Additional costs will apply and will be quoted separately.
Responsibilities of Parties
City Responsibilities
a) Provide written notice to customers within the Conversion Area in advance of Conversion
Project Construction Work start. The notice will include contact information for both the
City and PSE, the expected Conversion Project schedule, anticipation of service interruptions
and work required to be performed by customers.
b) Coordinate other utility conversion,removal and relocation from PSE's poles.
c) Provide all surveying for equipment placement, locations, and establish all grade elevations
for the Underground Distribution System within the Conversion Area.
d) Provide all necessary excavation, bedding, backfill, off-site disposal, site restoration and
coordination for installation of the Underground Distribution System. This includes
trenching,backfill, and restoration for cut-over and transfer of existing underground system
and service lines from the existing overhead distribution system to the new Underground
Distribution System.
e) Coordinate private property trenching, excavation and restoration activity with private
property owners affected by this Conversion Project.
f) Provide flagging and traffic control as required for all work performed by the City.
g) Install and proof all ducts and vaults for the Underground Distribution System(excluding
work in ducts or vaults containing energized cables or equipment—see PSE Responsibilities)
in accordance with PSE standards and specifications using ducts and vaults provided by PSE.
"Proofing" as used herein is defined as verification using a mandrel that the duct and vault
system Is free and clear of damage, installed to the proper grade and at the proper location
and contains a pulling line.
h) Provide PSE at least ten(10)business days notice prior to the start of trenching activity to
allow for delivery of PSE materials to the job site and scheduling of PSE's on-site Inspector.
Provide at least two (2)business days notice for scheduled delivery of vaults from the
manufacturer. A business day is defined as Monday through Friday between the hours of
7:00 AM to 6:00 PM, excluding holidays.
i) Provide secure staging and storage area(s) for duct and vault materials provided by PSE. The
City shall be responsible for the security and condition of these materials until they are
installed and accepted by PSE or returned to PSE's custody.
j) Provide labor and equipment for the off-loading of PSE duct and vault materials delivered to
the job site.
City of Kent
I I6th Ave SE Conversion SCH-74 Underground Conversion Page 2
101027468
k) Promptly following notice from PSE that the Underground Distribution System has been
energized, provide notice to customers within the Conversion Area informing them of their
obligation and responsibility to convert their overhead service lines to underground service
lines as provided by state law or to modify existing underground service lines for connection
to the Underground Distribution System. Affected service lines are listed in the Service
Lines section of this Project Plan.
1) Facilitate weekly(or as otherwise agreed by the City and PSE) construction coordination
meetings to include all relevant parties participating in the conversion including PSE and it's
contractor(s), the City and it's contractor(s), and other utilities.
m) Provide any necessary operating rights for the installation of PSE's facilities in accordance
with PSE's Schedule 74 Section 3 and as mutually agreed by the PSE and the City.
Operating rights are further addressed in the Operating Rights section of this Project Plan.
n) Modify, reroute or replace service lines to City owned facilities to connect to the
Underground Distribution System.
o) Following notification from PSE that Construction Work is complete,provide to PSE any
Shared Government Costs as provided for in the Construction Agreement.
p) Provide scheduled excavation within five(5)working days notice at two (2) locations on
116th Ave. SE, where PSE or its contractor's line crews will intercept energized facilities. In
addition, the city will be required to provide excavation for cut-over and transfer operations
working directly with PSE or its contractor.
Pueet Sound Enerev Responsibilities
a) Provide all duct and vault materials, cables, electrical equipment and components necessary
for installation of the Underground Distribution System.
b) Following notice from the City, deliver or cause to be delivered all duct and vault materials
to the designated staging/storage area(s). Acknowledge delivered quantities and condition of
duct and vault materials by signing shipping manifests.
c) Following notice from the City, provide inspection services needed for overseeing the proper
installation of ducts and vaults by the City.
d) Accept delivery of the completed duct and vault system once the new system has been
proofed(as described above)by the City. PSE will provide a mandrel to the City to be used
in proofing of the duct and vault system.
e) Provide PSE electrical workers to complete duct installation and proofing when such work is
performed at or in any energized vault containing energized cables or equipment.
f) Install (except for ducts and vaults installed by the City) and energize the Underground
Distribution System. Provide written notice to the City when the Underground Distribution
System is energized.
City of Kent
116th Ave SE Conversion SCH-74 Underground Conversion Page 3
101027468
r
g) Perform cut-over and transfer of existing Underground Distribution System and existing
underground service lines from the overhead distribution system to the new Underground
Distribution System where applicable(see City Responsibility item"d" concerning trenching
responsibility) PSE will notify the City for excavation and the affected customers at least
two (2) business days prior to installation, transfer, and connection of underground service
lines. Affected service lines are listed in the Service Lines section of this Project Plan.
h) Install and connect replacement underground service lines to single family residences and
connect replacement non-residential underground service lines provided by customers within
the Conversion Area pursuant to PSE Tariff Schedule 85. Affected service lines are listed in
the Service Lines section of this Project Plan.
i) Remove the existing overhead electric distribution system including, conductors, equipment,
down guys, anchors and poles after all service lines to customers within the Conversion Area
are connected to the Underground Distribution System and all other utilities have been
removed from PSE's poles. Holes left following removal of poles will be filled with crushed
rock and compacted in accordance with applicable City standards or specifications.
j) Provide flagging and traffic control as required for all work performed by PSE (except as
may otherwise be reasonably provided by the City during installation of ducts and vaults in
conjunction with City performed trenching, excavation,back-fill and restoration).
k) Attend weekly(or as otherwise agreed by the City and PSE) construction coordination
meetings facilitated by the City and its contractor.
Operating Rights
The Underground Distribution System will be located within Public Thoroughfare except as
described in the Operating Rights Attachment. The Construction Work will not be released by
PSE for construction until i) all operating rights necessary for the installation of PSE's facilities
have been obtained and have been verified by PSE, or ii)the City otherwise signs an agreement
releasing PSE from any and all financial obligations associated with the location or relocation of
PSE facilities resulting from commencement of construction prior to acquisition of all identified
necessary operating rights.
Construction Work Schedule
The work will be performed in accordance with the following Work Schedule,unless this
schedule is revised by mutual agreement of the City and PSE or circumstances beyond the
reasonable control of the City and/or PSE preclude such performance.
Installation of ducts and vaults: Scheduled to begin in January.
City of Kent
116th Ave SE Conversion SCH-74 Underground Conversion Page 4
101027468
Installation and enerlhation of the Undereround Distribution System: To begin after the
duct and vault installation has been completed by the City and accepted by PSE which is
estimated to be at the end of February. PSE will make every reasonable effort to perform the
installation and energization of the underground distribution system within 30 business days after
the completion of the duct and vault installation.
Removal of overhead facilities: All overhead facilities will be removed after all the new
underground distribution facilities have been installed and energized and after all the overhead
services have been converted to underground and connected to the new underground distribution
facilities. The removal shall be completed within 15 business days after the City provides notice
that all services have been converted and all other utilities have been removed from PSE poles.
Construction Cost Estimate
The estimated costs to perform the Construction Work and the allocation of costs between the
parties are presented in the attached Construction Costs Estimate Summary. These estimated
costs are valid for 90 days from the date on the Construction Costs Estimate Summary page. If
construction does not start within 90 days, the estimated cost is subject to revision.
Project Assumptions
The project design, construction plans and cost estimates are based on and reflect the following
assumptions. Construction conditions that are not consistent with these assumptions may result
in a request for change or an equitable adjustment to project compensation under Section 6 of the
Construction Agreement.
Cost Assumptions
1. The Construction Work will be performed in accordance with the Construction Work
Schedule.
2. PSE's Project Manager will accept or reject(with written justification) the duct and vault
installation work performed by the City within five (5)business days notice of completion
from the City. In the event PSE rejects any of the ducts or vaults (with reasonable written
justification), the City will perform the necessary remedial work. The City will then re-
notify PSE and PSE shall have five(5)business days to accept or reject the remedial work.
3. All PSE cables can be pulled through the ducts and vaults system to be used for the
Conversion Project utilizing normal cable pulling techniques.
4. Street Use permit is the only permit necessary for PSE to perform its work for this
Conversion Project and will be issued within two (2) weeks of PSE submitting a complete
permit application (including any supporting documentation reasonably required by the City,
including a traffic control plan). There will be no charge for the permit or inspection fees.
5. The daily productivity rate for PSE duct and vault installation is based on the City's
contractor opening a minimum of 75 feet of trench per working day. The daily productivity
rate is used to calculate the number of days a PSE provided inspector will be required.
City of Kent
l 16th Ave SE Conversion SCH-74 Underground Conversion Page 5
101027468
6. Work to be performed by PSE does not include installation and/or removal of Temporary
Service facilities at the request of others during construction.
7. All cut-over and transfer work will be completed during regular working hours.
8. Installation of protective bollards may be necessary at some locations and may not be
included in the project design. In the event unplanned bollards are required, the associated
installation cost will be a shared cost.
9. Where noted on the plans, existing PSE ducts, either empty or currently used, are to be
utilized for new cables. The Construction Costs Estimate assumes that such ducts are in
place and available for use to pull in new cables using the same equipment and effort as
newly installed ducts. If these conduits are not useable,new conduits will need to be
installed. The cost for this installation would become part of the shared costs of the
conversion and a change order would be initiated.
Schedule
1. There will be a total of two (2) PSE crew mobilizations as follows: i) one mobilization of an
underground line crew for installation of underground conductors and equipment; and ii) one
mobilization of an overhead line crew for removal of the existing overhead facilities. Once
mobilized PSE crews will have continuous productive work until all PSE Construction Work
is complete.
2. All PSE Construction Work will be performed during regular working hours from 7:OOAM to
6:00 PM excluding holidays. In the event that lane closures are necessary for performance of
work, PSE shall be limited to working between the hours of 8:00 AM to 4:00 PM
3. Work requiring scheduled interruption of electric service(cut-overs and transfers) will be
performed during the working hours specified in Schedule Assumption #2 above, and will be
scheduled with at least two (2)business days notice. PSE will notify customers of scheduled
service interruptions.
Additional Considerations
Service Lines
Service Imes within the Conversion Area must be replaced or modified to provide underground
service from the Underground Distribution System as described in the attached Service Lines
Replacement &Modification Requirements List. PSE Tanff Schedule 85 will apply to
performance of this work.
Cut-overs and Transfers
PSE customers within the Conversion Area will experience interruption of electric service during
performance of the Construction Work when transferring system and customer loads from the
overhead distribution system to the Underground Distribution System. PSE will notify
customers at least two (2) business days in advance of expected service interruptions. Customers
may request that cut-over and transfer work affecting their service be performed outside the
regular working hours listed above subject to the customer's written agreement to reimburse PSE
City of Kent
116th Ave SE Conversion SCH-74 Underground Conversion Page 6
101027468
for the additional cost (at overtime rates)to perform such work outside the regular working
hours.
New Service
Connection of new or increased load for City facilities(such as new traffic signals)under terms
of PSE Tariff Schedule 85 will be addressed on a separate work order and work sketch.
Additional costs may apply and will be quoted separately.
PSE Design & Construction Standards
This Conversion Project has been designed and will be constructed in accordance with PSE
design and construction standards in effect as of the date of this Project Plan. PSE standards
applicable to Construction Work to be performed by the City have been provided to the City in
PSE's "Electric Distribution Trench/Duct/Vault Construction Standards, 2005". All relevant
PSE standard described above are attached to this Project Plan by this reference.
Temporary Support(Holding) of PSE Poles
Whenever any pole(s) are required to be temporarily supported due to excavation in proximity to
such poles, the City will coordinate with PSE to provide such support. The need to temporarily
support such poles shall be determined by PSE, and if required, such support shall be provided
by PSE. As used herein, "temporary support"means supporting one or more poles for a
continuous working period of ten hours or less. The associated expense for this will be a shared
cost.
Acceptance OProiect Plan
The City and PSE mutually agree to and accept this Project Plan as of the date indicated below:
For the For PS
By: 7e�o;
/ By: ,
Its: / / �D�. Its: AA- AA.
Date: �� �� ' U `� Date: L
City of Kent
116th Ave SE Conversion SCH-74 Underground Conversion Page 7
101027468
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