019-17 - Puget Sound Energy, Inc. - ContractFACILITY RELOCATION AGREEMENT
Contract No. 019-17
This Agreement, dated as of February 14th , 2017 is made and entered into by and
between Puget Sound Energy, Inc., a Washington corporation ("PSE"), and the City of Port
Orchard, Washington ("Government Entity"). PSE and the Government Entity are
sometimes referred to herein individually as a "Parry" 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 in Exhibit A attached hereto and
incorporated herein by this reference.
B. The Government Entity plans to construct improvements to Tremont Ave,
SR16 to Port Orchard Blvd Project ("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
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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.
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 ten �UO 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.
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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 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 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 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 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
PSE.
Section 5. Relocation Costs
5.1 Estimate. PSE's good faith estimate of the costs to perform the Relocation
Work is two hundred thirty six thousand, two hundred fifty nine dollars ($236,259.00 - see
the "Facilities Relocation/Modification Billing Detail"). The Parties agree that the Relocation
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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.
5.2 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 2( 0%), 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, 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, and shall
reimburse PSE for, all costs and expenses incurred by PSE in connection with the
performance of 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.
5.4 Statement of Costs - Invoice. Within sixty 6600) 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.
5.6 Payment. The Government Entity shall, within thirty LaO) days after the
receipt of an invoice for costs payable under this Agreement, remit to PSE payment for the
full amount of the invoice.
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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, of 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 Parry. 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 WUTC. In the event of any
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
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following termination of this Agreement neither Parry 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 either 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 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 Parry, its
contractors or a third party; or any failure or delay in the performance by the other Parry, or a
third parry 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.
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.
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.
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In witness whereof, the Parties have executed this Agreement as of the date set forth above.
PSE:
Puget Sound Energy, Inc.
By Justin Shahan
2-
Its Supervisor, Customer & System Projects
Address: 5807 Milwaukee Ave E.
Pinup, WA 98372
Attn: Mike Klapperich
Government Enti
City of Port Orchard
By Robert Putaansuu
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Its Mayor
Address: 216 Prospect St. A _ F,. Q r
Port Orchard, WA 98366 "b®c "
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APPROVED AS TO FORM:
S*IrdCates, City Attorney
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Brandy Rinearson, CMC, City Clerk
WA
EXHIBIT A
FACILITIES
Pole Grid 619689-155082 (existing pole):
Pole Grid 619730-155085 (existing pole):
Pole Grid 619733-155100 (new/laminated pole):
Pole Grid 619706-155085 (existing pole):
Pole Grid 619716-155123 (new pole):
Pole Grid 619689-155082 (existing pole):
Pole Grid 619699-155136 (new pole):
Pole Grid 619690-155117 (existing pole):
Pole Grid 619686-155160 (new/laminated pole):
Pole Grid 619689-155151 (existing pole):
Pole Grid 619686-155186 (replace existing pole):
Pole Grid 619685-155221 (existing pole):
Pole Grid 619683-155254 (existing pole):
EXHIBIT B
RELOCATION WORK
Electric Project Scope of work.
Project Name: Tremont Ave, SR16 to Port Orchard Blvd Project
Notification Number: 10608538
PSE Job number 101040667
3/12 at grid number 619689-155082. Existing transmission wire heading South on
Pottery will be replaced and routed to a new laminate pole (South).
3/13 (existing) at grid number 619730-155085.
Pole is in direct conflict with the new road alignment..
Pole to be removed and transmission lines relocated to new laminate pole.
3/13 at grid number 619733-155100.
Install new laminate pole with new transmission lines heading SE on Tremont Place.
3/14 (existsing ) at grid number 619706-155085
Pole is in direct conflict with the new road alignment..
Pole to be removed and transmission lines relocated to new laminate pole.
3/14 at grid number 619716-155123
Install new pole to re -align transmission line along Tremont Place.
3/15 (existing) at grid number 619689-155082
Pole is in direct conflict with the new road alignment..
Pole to be removed and transmission lines relocated to new laminate pole.
3/15 at grid number 619699-155136
Install new pole to re -align transmission line along Tremont Place.
3/16_(existing) at grid number 619690-155117
Pole is in direct conflict with the new road alignment..
Pole to be removed and transmission lines relocated to new laminate pole.
3/16 at grid number 619686-155160
Install new laminate pole with new transmission lines heading NW on Tremont Place.
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3/17 (existing) at grid number 619689-155151
Pole is in direct conflict with the new road alignment.
Pole to be removed and transmission lines relocated to new laminate pole.
4/1 (existing) at grid number 619686-155186
Pole is in direct conflict with the new road alignment.
Schedule
Work is tentatively scheduled to begin Spring/Summer 2017 dependent upon
approval for Transmission outage request.
CITY RESPONSIBILITIES:
The City is required to provide adequate staking for the roadway improvement
project.
CONSTRUCTION NOTE:
* * * POLE STUB REMOVAL IS CONTIGENT UPON THE CONVERSION
AND/OR RELOCATION OF ALL OTHER FACILITIES ATTACHED TO
POLE.
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