HomeMy WebLinkAboutPW09-156 - Original - Puget Sound Energy, Inc. - East Valley Highway Improvements - 02/05/2009 Records Manzagerrie�-
KENT Document
WASHINGTON N
CONTRACT COVER SHEET
This is to be completed by the Contract Manager prior to submission
to City Clerks Office. All portions are to be completed.
If you have questions, please contact City Clerk's Office.
Vendor Name: Puget Sound Energy, Inc.
Vendor Number:
JD Edwards Number
Contract Number: NOT- I�p
This is assigned by City Clerk's Office
Project Name: East Valley Highway Improvements
Description: ❑ Interlocal Agreement ❑ Change Order ❑ Amendment ® Contract
❑ Other:
Contract Effective Date: 2/5/09 Termination Date:
Contract Renewal Notice (Days):
Number of days required notice for termination or renewal or amendment
Contract Manager: Chad Bieren Department: Engineering
Detail: (i.e. address, location, parcel number, tax id, etc.):
The attached Facility Relocation Agreement_is for PSE to perform certain engineering _
design and construction work relating to modification or relocation of its facilities. The
work shall take place on East Valley Highway between SR 167 and S. 212th St.
S Public\RecordsManagement\Forms\ContractCover\adcc7832 1 11/08
FACILITY RELOCATION AGREEMENT
This Agreement, dated as of �C-6. S , 2009. is made and entered into by and
between Puget Sound Energy, Inc., a Washington corporation("PSE"), and City of Kent,
("Government Entity"). PSE and the Government Entity are sometimes referred to herein
individually as a "Party" and collectively as the"Parties."
RECITALS
A. PSE owns and operates certain utility systems and facilities necessary and
convenient to the distribution of electricity("Facilities") that are located on or in relation to
certain operating rights ("Existing Operating Rights"). The Facilities and Existing Operating
Rights are more particularly described on Exhibit A attached hereto and incorporated herein
by tlus reference.
B. The Government Entity plans to construct improvements to East Valley
Highway between SR 167 and S. 212t' Street ("Improvements").
C. In connection with the Improvements, the Government Entity has requested
that PSE perform certain engineering design work and certain construction work relating to
modification or relocation of its Facilities (the "Relocation Work"), all in accordance with
and subject to the terms and conditions of this Agreement, and any applicable tariff on file
with the Washington Utilities and Transportation Commission(the"WUTC").
D. The Government Entity has provided to PSE a written plan for the
Improvements (the"Improvement Plan") which includes, among other things, (a) plans and
specifications sufficient in detail, as reasonably determined by PSE, for PSE to design and
perform the Relocation Work, including reasonably detailed drawings showing the planned
Improvements, (b) a list of the key milestone dates for the Improvements, and (c) information
concerning possible conflicts between PSE's Facilities and other utilities or facilities.
The Parties, therefore, agree as follows:
AGREEMENT
Section 1. Relocation Work
2.1 Relocation Work. The Relocation Work is described in Exhibit B attached to
this Agreement.
2.2 Performance of Relocation Work. Subject to the terms and conditions of
this Agreement and any applicable tariffs on file with the WUTC, PSE shall use reasonable
efforts to perform the Relocation Work. PSE shall perform the Relocation Work in
accordance with the schedule provided in Exhibit B (the"Relocation Schedule") with
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reasonable diligence in the ordinary course of its business and in light of any operational
issues as to the remainder of its utility systems that may be influenced by the Relocation
Work. PSE shall have no liability to the Government Entity or any third party, nor shall the
Government Entity be relieved or released from its obligations hereunder, in the event of any
delay in the performance of the Relocation Work due to any(a) repair, maintenance,
improvement, renewal or replacement work on PSE's utility systems, which work is
necessary or prudent as determined by PSE in its sole discretion, or(b) actions taken by PSE
which are necessary or consistent with prudent utility practices to protect the performance,
integrity, reliability or stability of PSE's utility systems or any systems to which such systems
are connected.
2.3 Adjustments to the Relocation Work. PSE shall notify the Government
Entity in writing of any reasonably anticipated adjustments to the Relocation Work(including
the Relocation Schedule and/or Relocation Cost Estimate) that result from(a) the revision or
modification of any Improvements in a manner that requires PSE to revise its plans and
specifications for the Relocation Work; (b) delays in PSE's performance of the Relocation
Work caused by the Government Entity(or its agents, servants, employees, contractors,
subcontractors, or representatives); or(c) conditions or circumstances otherwise beyond the
control of PSE. The Parties acknowledge that additional requirements not contemplated by
the Parties may arise during the performance of the Relocation Work. In the event such
additional requirements arise, the Parties shall provide written notice thereof and shall use
good faith reasonable efforts to appropriately respond to such requirements in a prompt and
efficient manner, including appropriate adjustments to the Relocation Schedule and/or the
Relocation Cost Estimate.
2.4 Performance by Government Entity. In the event the Government Entity is
unable to perform its obligations under Sections 3 and 4 below to PSE's reasonable
satisfaction, and absent written waiver by PSE of such obligations, the Parties shall use
reasonable efforts to adjust the Relocation Schedule to allow additional time for the
Government Entity to perform such obligations; provided, that if the Parties cannot
reasonably agree upon such schedule adjustment, PSE may, at its option, thereafter terminate
this Agreement by giving written notice to the Government Entity, and the Government
Entity shall promptly pay PSE the amounts payable to PSE in connection with such
termination under Section 6.5 PSE's determination as to the satisfaction or waiver of any
such condition under this Agreement shall not be deemed to be a determination of
satisfaction or waiver of any other condition arising under this Agreement
2.5 Notice to Proceed with Construction Work. At least 10 days prior to the
date specified in the Relocation Schedule for commencement of construction for the
Relocation Work, the Government Entity shall either (a) provide to PSE a written notice to
proceed with such construction work, or(b) terminate this Agreement by written notice to
PSE. In the event of such termination, the Government Entity shall promptly pay PSE the
amounts payable to PSE in connection with termination under Section 6.5
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Section 3. Operating Rights.
Unless otherwise provided for in Exhibit B, the Government Entity shall be solely
responsible for any costs related to acquisition of any and all operating rights for the Facilities
that are necessary or appropriate, in addition to or as replacement for the Existing Operating
Rights, for completion of the Relocation Work("New Operating Rights"). Such New
Operating Rights shall be in PSE's name, shall be of equivalent quality and kind as the
Existing Operating Rights and shall be provided in a form acceptable to PSE, all as
determined by PSE in its sole discretion. The New Operating Rights shall be provided with
sufficient title information demonstrating to PSE's satisfaction that PSE shall obtain clear,
good and sufficient title to such rights, if applicable PSE shall not be obligated to commence
the RelocationWork, or otherwise in any way change, limit, curtail, impair or otherwise affect
the normal and reliable operation of the Facilities as located upon or relative to the Existing
Operating Rights, unless and until PSE is in possession of the New Operating Rights.
Section 4. Permits.
The Government Entity shall be solely responsible for any costs related to acquisition
of any and all permits, licenses, certificates, inspections, reviews, impact statements,
determinations, authorizations, exemptions or any other form of review or approval given,
made, done, issued or provided by any one or more governmental authorities with jurisdiction
necessary or convenient for the Relocation Work(collectively, "Permits"). The Permits shall
be on such terms and conditions as PSE shall, in its sole discretion, determine to be
appropriate to its needs. PSE shall not be obligated to commence construction for the
Relocation Work, or otherwise in any way change, limit, curtail, impair or otherwise affect
the normal and reliable operation of the Facilities, unless and until PSE is in possession of all
Permits necessary for the Relocation Work and all rights of appeal with respect to the Permits
shall have been exhausted. The Government Entity shall be responsible for perfonnance of
and any costs associated with any mitigation required by the Permits.
Section 5. Materials and Ownership
Unless specifically agreed otherwise in writing by the Parties, PSE shall provide all
necessary materials, equipment and labor required to perform the Relocation Work. All
materials, information, property and other items provided for,used or incorporated into the
Relocation Work(including but not limited to the Facilities) shall be and remain the property of
PSE.
Section 6. Relocation Costs
6.1 Estimate. PSE's good faith estimate of the costs to perform the Relocation
Work(the "Relocation Cost Estimate", Exhibit C attached hereto) is $50,884.57.
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The Parties agree that the Relocation Cost Estimate is an estimate only and PSE
shall be entitled to reimbursement of all actual costs incurred in or allocable to the
performance of the Relocation Work.
6.2 Costs in Excess of Estimate. PSE shall use reasonable efforts to monitor its
actual costs incurred during the performance of the Relocation Work, and in the event PSE
determines that such costs are likely to exceed the Relocation Cost Estimate by more than
twenty percent(20%), PSE shall so notify the Government Entity in writing In such event
PSE may, at its discretion, suspend performance the Relocation Work and PSE shall not be
obligated to continue with performance of any Relocation Work unless and until PSE
receives the Government Entity's written acceptance of PSE's revised Relocation Cost
Estimate and written notice to proceed with the Relocation Work. In the event PSE does not
receive such acceptance and notice from the Government Entity within ten (10) working days
from the date of PSE's notice, then PSE may, at its discretion, tenninate this Agreement. In
the event of such termination, the Government Entity shall promptly pay PSE the amounts
payable to PSE in connection with termination under Section 6.5.
6.3 Relocation Costs. The Government Entity shall be responsible for, and shall
reimburse PSE for, all costs and expenses incurred by PSE in connection with the
performance the Relocation Work (the"Relocation Costs") For purposes of this Agreement,
the Relocation Costs shall include, without limitation, any and all direct and indirect costs
incurred by PSE in connection with the performance of the Relocation Work, including, but
not limited to, labor, personnel, supplies,materials, overheads, contractors, consultants,
attorneys and other professionals, administration and general expenses and taxes.
6.4 Statement of Costs - Invoice. Within sixty(60) days of the completion of the
Relocation Work, PSE shall provide the Govermnent Entity with a statement and invoice of
the actual Relocation Costs incurred by PSE. PSE shall provide, within a reasonable period
after receipt of any written request from the Government Entity, such documentation and
information as the Government Entity may reasonably request to verify any such invoice.
6.5 Costs Upon Termination of Agreement. In the event either Party terminates
this Agreement, the Government Entity shall promptly pay PSE, the following:
(a) all costs and expenses incurred by PSE in connection with the
Relocation Work(including, without limitation, all Relocation Costs incurred through
the date of termination and such additional costs as PSE may incur in connection with
its suspension or curtailment of the Relocation Work and the orderly termination of
the Relocation Work); and
(b) all costs and expenses incurred by PSE in returning and restoring the
Facilities to normal and reliable commercial operations.
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6.6 Payment. The Government Entity shall, within thirty(30) days after the
receipt of an invoice for costs payable under this Agreement,remit to PSE payment for the
full amount of the invoice.
Section 7. Indemnification
7.1 Indemnification. The Government Entity releases and shall defend,
indemnify and hold harmless PSE from all claims, losses, harm, liabilities, damages, costs
and expenses (including,but not limited to,reasonable attorneys' fees) caused by or arising
out of any negligent act or omission or willful misconduct of the Government Entity in its
performance under this Agreement. PSE releases and shall defend, indemnify and hold
harmless the Government Entity from all claims, losses,harm, liabilities, damages, costs and
expenses (including, but not limited to, reasonable attorneys' fees) caused by or arising out of
any negligent act or omission or willful misconduct of PSE in its performance under this
Agreement. During the performance of such activities employees or contractors of each Party
shall at all times remain employees or contractors, respectively, that Party and shall not be, or
be construed to be, employees or contractors,respectively, of the other Party.
7.2 Title 51 Waiver. 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.
Section 8. Disclaimers and Limitation of Liability
8.1 Disclaimer. PSE makes no representations or warranties of any kind, express
or implied, with respect to the Relocation Work or other items or services provided under this
Agreement including, but not limited to, any implied warranty of merchantability or fitness
for a particular purpose or implied warranty arising out of course of performance, course of
dealing or usage of trade.
8.2 Limitation of Liability. In no event shall PSE be liable, whether in contract,
warranty, tort or otherwise, to any other party or to any other person for any indirect,
incidental, special or consequential damages arising out of the performance or
nonperformance of the Relocation Work or this Agreement.
Section 9. Miscellaneous
9.1 Tariffs Control. This Agreement is in all respects subject to all applicable
tariffs of PSE now or hereafter in effect and on file with the WUTC. In the event of any
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conflict or inconsistency between any provision of this Agreement and any such tariff, the
terms of the tariff shall govern and control.
9.2 Survival. Sections 3, and 5 through 9 shall survive any termination of this
Agreement. Subject to the foregoing, and except as otherwise provided herein, upon and
following termination of this Agreement neither Party shall have any further obligations
ansing under this Agreement and this Agreement shall be of no further force or effect.
9.3 Waiver. The failure of any Party to enforce or insist upon strict performance
of any provision of this Agreement shall not be construed to be a waiver or relinquishment of
any such provision or any other provision in that or any other instance; rather, the same shall
be and remain in full force and effect.
9.4 Entire Agreement. This Agreement, including any exhibits hereto, sets forth
the complete and integrated agreement of the Parties. This Agreement cannot be amended or
changed except by written instrument signed by the Party to be bound thereby.
9.5 Force Majeure. In the event that either Party is prevented or delayed in the
performance of any of its obligations under this Agreement by reason beyond its reasonable
control(a "Force Majeure Event"), then that Party's performance shall be excused during the
Force Majeure Event Force Majeure Events shall include, without limitation, war; civil
disturbance; storm, flood, earthquake or other Act of God; storm, earthquake or other
condition which necessitates the mobilization of the personnel of a Party or its contractors to
restore utility service to customers; laws, regulations, rules or orders of any governmental
agency; sabotage; strikes or similar labor disputes involving personnel of a Party, its
contractors or a third party; or any failure or delay in the performance by the other Party, or a
third party who is not an employee, agent or contractor of the Party claiming a force Majeure
Event, in connection with the Relocation Work or this Agreement. Upon removal or
termination of the Force Majeure Event, the Party claiming a Force Majeure Event shall
promptly perform the affected obligation in an orderly and expedited manner under this
Agreement or procure a substitute for such obligation. The Parties shall use all commercially
reasonable efforts to eliminate or minimize any delay cause by a Force Majeure Event.
9.6 Enforceability. The invalidity or unenforceabihty of any provision of this
Agreement shall not affect the other provisions hereof, and this Agreement shall be construed
in all respects as if such invalid or unenforceable provisions were omitted.
9.7 Notice. Any notice,request, approval, consent, order,instruction, direction or
other communication under this Agreement given by either Party to the other Party shall be in
writing and shall be delivered in person to an authorized representative or mailed, properly
addressed and stamped with the required postage, to the intended recipient at the address and
to the attention of the person specified below the Parties'respective signatures on this
Agreement. Either Party may from time to time change such address by giving the other
Party notice of such change in accordance with this section.
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9.8 Governing Law. This Agreement shall be interpreted, construed and
enforced in all respects in accordance with the laws of the State of Washington. This
Agreement shall be fully binding upon the Parties and their respective successors, assigns and
legal representatives.
In witness whereof, the Parties have executed this Agreement as of the date set forth above.
PSE: Government Entity:
Puget Sound Energy,Inc. CIof Kei
By Cam—_ o
Its l_ a or
Address: fog U 9 S, z 2 F��-" ST Aires . 4a`Avenue S.
K&kL T _ thl y 98o3Z Kent, WA 98032
Attn: Attn: Larry Blanchard
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EXHIBIT A
FACILITIES AND EXISTING OPERATING RIGHTS
Location#1 Tax Parcel#775780-0091
Existing switch cabinet and vaults located on a PSE easement.
Location# 2 Tax parcel# 122204-9040
Existing vault located on a PSE easement
Location# 3 Tax Parcel#122204-9095
Existing vault located on a PSE easement
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EXHIBIT B
RELOCATION WORK
Construction Schedule: February/March 2009
Location #1 Tax Parcel# 775780-0091
The City, at the time of this Facility Relocation Agreement,has a Possession
and Use Agreement for City nght-of-way for this entire parcel. PSE will
locate a new switch cabinet and vaults to the new right-of-way based on the
City's Possession and Use Agreement with the property owner. The City
agrees to provide PSE, at no cost to PSE, an easement in a form acceptable to
PSE covering the north 20 feet of the west 10 feet of tax parcel#775780-0091
once the City has taken final possession in fee of the property.
Location #2 Tax parcel# 122204-9040
PSE will locate a vault within a 10 foot X 10 foot easement in the northeast
corner of tax parcel # 122204-9040
Location# 3 Tax Parcel#122204-9095
PSE will locate a vault within an easement located at the north 5 feet of the
east 12 feet of tax parcel#122204-9095.
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Return Signed Document to t`�; CONTRACT TERMINATION DATE:
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Brief Explanation of Document:
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All Contracts Must Be Routed Through the Law Department
(This Area to be Completed By the Law Department)
Received-:5
Approval of I ��Deet.,009
Law•Dept Comments
P 9✓.
Date Forwarded to Mayor,
Shaded Areas to Be Completed by Administration Staff
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Received: —�
FEB - 2009
Recommendations & Comments:
CITI'DF r ENT
CM CLERK
Disposition: ��e� �fjt129� G��IL
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Date Returned:
lage58'0 • 3/05