HomeMy WebLinkAboutPW18-214 - Original - Puget Sound Energy - Contract - 06/01/2018 Records Management Document
CONTRACT COVER SHEET
This is to be completed by the Contract Manager prior to submission
to the City Clerk's Office. All portions are to be completed.
If you have questions, please contact the City Clerk's Office at 253-856-5725.
Blue/Motion Sheet Attached
Pink Sheet Attached
Vendor Name: Puget Sound Energy
......................................................................
Vendor Number (IDE):
Contract Number (City Clerk):
Category: Choose item.n a it .
..................................___.__..1--------—-----
Facility Relocation Agreement
Sub-Category (if applicable): Choose an I item...
Project Name: S 228th St UPRR Grade Separation Project
Contract Execution Date: �a (k k ?)
4rAR—("r'W- fYJ Termination Date:
Contract Manager: Mark Madfai Department: PW: Engineering
. ................. ..................................
Contract Amount:
Approval Authority: ❑ Director ❑ Mayor City Council
Other Details:
--------------
FACILITY RELOCATION AGREEMENT
This Agreement, dated as of„ � 1__� , 2018, 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 transmission and 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 this reference.
B. The Government Entity plans to construct improvements to the 228`h Street
UPRR Rail Crossing ("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
1.1 Relocation Work. The Relocation Work is described in Exhibit B attached to
this Agreement.
1.2 Performance of Relocation Work. Subject to the terms and conditions of
this Agreement and any applicable tariffs on file with the WUTC, PSE shall use reasonable
efforts to perform the Relocation Work. PSE shall perform the Relocation Work in
accordance with the schedule provided in Exhibit B (the "Relocation Schedule") with
-I-
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 shalt the
Government Entity be relieved or released from its obligations hereunder, in the event of any
delay in the performance of the Relocation Work due to any (a) repair, maintenance,
improvement, renewal or replacement work on PSE's utility systems, which work is
necessary or prudent as determined by PSE in its sole discretion; or(b) actions taken by PSE
which are necessary or consistent with prudent utility practices to protect the performance,
integrity, reliability or stability of PSE's utility systems or any systems to which such systems
are connected.
1.3 Adjustments to the Relocation Work. PSE shall notify the Government
Entity in writing of any reasonably anticipated adjustments to the Relocation Work(including
the Relocation Schedule and/or Relocation Cost Estimate) that result from (a) the revision or
modification of any Improvements in a manner that requires PSE to revise its plans and
specifications for the Relocation Work; (b) delays in PSE's performance of the Relocation
Work caused by the Government Entity (or its agents, servants, employees, contractors,
subcontractors, or representatives); or (c) conditions or circumstances otherwise beyond the
control of PSE. The Parties acknowledge that additional requirements not contemplated by
the Parties may arise during the performance of the Relocation Work. In the event such
additional requirements arise, the Parties shall provide written notice thereof and shall use
good faith reasonable efforts to appropriately respond to such requirements in a prompt and
efficient manner, including appropriate adjustments to the Relocation Schedule and/or the
Relocation Cost Estimate.
1.4 Performance by Government Entity. In the event the Government Entity is
unable to perform its obligations under Sections 2 and 3 below to PSE's reasonable
satisfaction, and absent written waiver by PSE of such obligations, the Parties shall use
reasonable efforts to adjust the Relocation Schedule to allow additional time for the
Government Entity to perform such obligations; provided, that if the Parties cannot
reasonably agree upon such schedule adjustment, PSE may, at its option, thereafter terminate
this Agreement by giving written notice to the Government Entity, and the Government
Entity shall promptly pay PSE the amounts payable to PSE in connection with such
termination under Section 5.5. PSE's determination as to the satisfaction or waiver of any
such condition under this Agreement shall not be deemed to be a determination of
satisfaction or waiver of any other condition arising under this Agreement.
1.5 Notice to Proceed with Construction Work. At least 30 days prior to the
date specified in the Relocation Schedule for commencement of construction for the
Relocation Work, the Government Entity shall either (a) provide to PSE a written notice to
proceed with such construction work, or (b) terminate this Agreement by written notice to
PSE. In the event of such termination, the Government Entity shall promptly pay PSE the
amounts payable to PSE in connection with termination under Section 5.5.
-2-
Section 2. Operating Rights.
Unless otherwise provided for in Exhibit B, the Government Entity shall be solely
responsible for the acquisition of, and any costs related to acquisition of any and all operating
rights for the hacilities 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 PSF.'s satisfaction that PSE shall obtain
clear, good and sufficient title to such rights, if applicable. PSE shall not be obligated to
commence the Relocation Work, or otherwise in any way change, limit, curtail, impair or
otherwise affect the normal and reliable operation of the Facilities as located upon or relative
to the Existing Operating Rights, unless and until PSE is in possession of the New Operating
Rights.
Section 3. Permits.
The Government Entity shall be solely responsible for the acquisition of, and 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 Pennits necessary for the Relocation Work and all rights of appeal with
respect to the Permits shall have been exhausted. The Government Entity shall be
responsible for performance of and any costs associated with any mitigation required by the
Permits.
Section 4. Materials and Ownership
Unless specifically agreed otherwise in writing by the Parties, PSE shall provide all
necessary materials, equipment and labor required to perform the Relocation Work. All
materials, information, property and other items provided for, used or incorporated into the
Relocation Work(including but not limited to the Facilities) shall be and remain the property of
PSF..
Section 5. Relocation Costs
5.1 Estimate. PSE's good faith estimate of the costs to perform the Relocation
Work(the "Relocation Cost Estimate") is $713,867.11 and includes all direct and indirect
costs incurred by PSE in connection with the performance of the Relocation Work including,
-3-
but not limited to, labor, personnel, supplies, materials, overheads, contractors, consultants,
attorneys and other professionals, administration and general expenses and taxes. However, it
does not include any provisions or adjustments for unforeseen site conditions.
5.2 Costs in Excess of Estimate. In the event PSE determines an unforeseeable
condition is likely to cause costs to exceed the Relocation Cost Estimate, PSE shall so notify
the Government Entity in writing within 48hrs and provide an estimate of additional costs
based on the information available at the time. In such event, PSE or the Government Entity
may, at its discretion, suspend performance of 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 associated Cost Estimate that
includes the additional costs and written notice to continue with the Relocation Work. In the
event PSE does not receive such acceptance and notice from the Government Entity within
ten (10) working days from the date of PSE's notice, then PSE may, at its discretion,
terminate this Agreement In the event of such termination, the Government Entity shall
promptly pay PSE the amounts payable to PSE in connection with termination under Section
5.5.
5.3 Relocation Costs. The Government Entity shall be responsible for an amount
up to, but not exceeding, the Relocation Cost Estimate set forth in Section 5.1, in connection
with the performance of the Relocation Work. However, if unforeseen site conditions arise
that would result in additional costs, such as higher than expected ground water, the
Government Entity shall be responsible for those costs in excess of the Relocation Cost
Estimate pursuant to Section 5.2. The Government Entity shall also be responsible for costs
in excess of the Relocation Cost Estimate associated with changes or scope additions directed
or requested by the Government Entity.
5.4 Statement of Costs -Invoice. Within sixty (60) days of the completion of the
Relocation Work, PSE shall provide the Government Entity with a statement and invoice of
the actual Relocation Costs incurred by PSE. PSE shall provide, within a reasonable period
after receipt of any written request from the Government Entity, such documentation and
information as the Government Entity may reasonably request to verify any such invoice.
5.5 Costs Upon Termination of Agreement. In the event either Party terminates
this Agreement, the Government Entity shall promptly pay PSE, the following:
(a) all costs and expenses incurred by PSE in connection with the
Relocation Work(including, without limitation, all Relocation Costs incurred through
the date of termination and such additional costs as PSE may incur in connection with
its suspension or curtailment of the Relocation Work and the orderly termination of
the Relocation Work); and
(b) all costs and expenses incurred by PSE in returning and restoring the
Facilities to normal and reliable commercial operations.
-4.
5.6 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 6. Indemnification
6.1 Indemnification. The Government Entity releases and shall defend,
indemnify and hold harmless PSE from all claims, losses, harm, liabilities, damages, costs
and expenses (including, but not limited to, reasonable attorneys' fees) caused by or arising
out of any negligent act or omission or willful misconduct of the Government Entity in its
performance under this Agreement. PSE releases and shall defend, indemnify and hold
harmless the Government Entity from all claims, losses, harm, liabilities, damages, costs and
expenses (including, but not limited to, reasonable attorneys' fees) caused by or arising out of
any negligent act or omission or willful misconduct of PSE in its performance under this
Agreement. During the performance of such activities employees or contractors of each Party
shall at all times remain employees or contractors, respectively, that Party and shall not be, or
be construed to be, employees or contractors, respectively, of the other Party.
6.2 Title 51 Waiver. Solely for purposes of enforcing the indemnification
obligations of a Party under this Section 6, each Party expressly waives its immunity under
Title 51 of the Revised Code of Washington, the Industrial Insurance Act, and agrees that the
obligation to indemnify, defend and hold harmless provided for in this Section 6 extends to
any such claim brought against the indemnified Party by or on behalf of any employee of the
indemnifying Party. The foregoing waiver shall not in any way preclude the indemnifying
Party from raising such immunity as a defense against any claim brought against the
indemnifying Party by any of its employees.
Section 7. Disclaimers and Limitation of Liability
7.1 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.
7.2 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 8. Miscellaneous
8.1 Tariffs Control. This Agreement is in all respects subject to all applicable
tariffs of PSE now or hereafter in effect and on file with the W UTC. In the event of any
-5-
conflict or inconsistency between any provision of this Agreement and any such tariff, the
terms of the tariff shall govern and control.
8.2 Survival. Sections 2, and 4 through 8 shall survive any termination of this
Agreement. Subject to the foregoing, and except as otherwise provided herein, upon and
following termination of this Agreement neither Party shall have any further obligations
arising under this Agreement and this Agreement shall be of no further force or effect.
8.3 Waiver. The failure of any Party to enforce or insist upon strict performance
of any provision of this Agreement shall not be construed to be a waiver or relinquishment of
any such provision or any other provision in that or any other instance; rather, the same shall
be and remain in full force and effect.
8.4 Entire Agreement. This Agreement, including any exhibits hereto, sets forth
the complete and integrated agreement of the Parties. This Agreement cannot be amended or
changed except by written instrument signed by the Party to be bound thereby.
8.5 Force Majeure. In the event that either Party is prevented or delayed in the
performance of any of its obligations Linder 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 tinder 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.
8.6 Enforceability. The invalidity or unenforceability of any provision of this
Agreement shall not affect the other provisions hereof, and this Agreement shall be construed
in all respects as if such invalid or unenforceable provisions were omitted.
8.7 Notice. Any notice, request, approval, consent, order, instruction, direction or
other communication under this Agreement given by either Party to the other Party shall be in
writing and shall be delivered in person to an authorized representative or mailed, properly
addressed and stamped with the required postage, to the intended recipient at the address and
to the attention of the person specified below the Parties' respective signatures on this
Agreement. Either Party may from time to time change such address by giving the other
Party notice of such change in accordance with this section.
-6-
8.8 Governing Law. This Agreement shall be interpreted, construed and
enforced in all respects in accordance with the laws of the State of Washington. This
Agreement shall be fully binding upon the Parties and their respective successors, assigns and
legal representatives.
In witness whereof, the Parties have executed this Agreement as of the date set forth above.
PSE: Government Entity:
Puget Sound Energy,Inc.
13 — By T
Is 5 Its
Address: 69CS' S. 2'MA SSA- Address: A 2
14- 980 __. ,.dill e1F -
Attn: Attn:
-7-
B" � �°
@
aQ
� q.All
m — o
R�pP i q 9 � p Y41
K
Ila
O mAg
N
N
all
W _ S
� m4@
ce
� e
A '
O 7
r g
gg
IBMT e6R1
TV
Ll
J
x
s
3 HER
g a �
BI
filly`i Y
it —dn,.
Q c e_
a in s �. ��� Q Y EZZ
IN? Q j Qi Q Q QRA
F No
w�
t�� m
� U
\ \ \ \ \ \ \ \ / §
/ / \ � /
0 u o j
\ ® } \ \ ^ / \ _
c j = , }
0 8 \ { ) iE
-
) + 0 u
\ G ) CL
± k
2 > > > . .
0 : 0a 2
$ ~ \ j {
U ° ` � � ;
a
; u � u
! o =
O ! { k
f � § : . . . . . . .
2 ) t2U -
O « E \ u _
k ƒ , --
U ri—6
O » 2 0 -
/ aOB ° 0 `
A / } / {
/
7 _ \ \ j . : ° \
; q2V, V, ®
\ \ \ \ \ \ \ \ � \ � � \
\ ) -
4 ; ®
i�
� � w"� � � m
im a m.u;w we a•
` v w w �.m m � m
B um� Ip� � I I i�o��0
P 9 III Q° �
� V � �
i nrdl�l l mil.
i i i
V � I � � � �"
if � �
pp�� I v i,i�
�N'N w � is m Q�tl
iw '� I � � a. ..o� 0P � Mx. �w ._... �w T�� I�I IIO M��`.. ������ I III ' � ii �
I �
lip
I � R a �
�� I � � d
mVi Miuµv� li�l� „ �� �� �u of������i) a �i a ��,�'��I�������, � �I
.. r
" Y i �.:
uro � �
um, P^
i A ,.
w � �
�� min.. " m� � a mu ,� �w. �, ��� ., .. ,. � w w �.. �� mu :w� �m w e � � m a � � � ���.� ��m�w am
mu ' a; .� � i aw i °�"" w mi m urp sa��w , i mn � �
W " � f." �. "B, I.0 � ar"w Ok M"�' J6J.@ � W I,. � � I ^ ei ".
i
' �� � p, i
www' i ' i m` i I
m{
e �� .wC��' �.a pW+'
�. &
a
i i. o � ,,. .�okd. ,,.
� '�" � w� �� ...
�� �
' i - i i� t. �, s�uuw
o�i
c ow a I� iV� i � i
� wm �* ��
�D °, ° �,�,"° �'� ���'��yJh w mC� '' "� �mm"'�uw �aV�eGar6A mm ;md �' "` �wv„ '�� w:�u����.
Ulu i .� , ' ,� �� �� i_.-. � .... � 4
� �