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HomeMy WebLinkAbout4426+Press Esc Key to Insert new record, Ctrl-Z to Clear form Press Del Key to Terminate Insert Mode INSERT Contract Maintenance Contract Number 4426 Vendor Name PUGET SOUND ENERGY INC ~Subject UNDERGROUND CONVERSION - WASHINGTON AVENUE SDepartment ENGINEERING Status Code CON + Amount $135800.00 ~ Begin Date 05/06/2004 + Insurance End Date 09/30/2004 ~ Type Amount Review Date 02/15/2006 ~ Press F1 for + valid insurance + type codes + Insurance Total $0.00 % Insurance Review Date + $ Comments 01/01/2006 + SCHEDULE 74 UNDERGROUND CONVERSION Project Construction Agreement Project Name: City of Bremerton -Washington Avenue between 2r~ and 4th~Avenues Project Number: #101019342 THIS Agreement, dated as of this _~day of ~ ¢[.~-,~ ,2004, is made by and between City of Bremerton, 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 November 20, 2003 (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 Bremerton - Washington Avenue] of such diameter and number as may be specified and agreed upon in the Project Plan necessary to replicate the Icad-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 Project Plan and as changed and adjusted from time to time in accordance with Section 6, below. (e) "Estimated Reimbursable Upgrade Costs" shall mean the Company's good faith estimate of the Reimbursable Upgrade Costs, as specified in the Project Plan and as changed 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 Project Plan and as changed and adjusted from time to time in accordance with Section 6, below. (h) "Government-Requested Upgrade" shall mean any feature of the Underground Distribution System which is requested by the Government Entity and is not reasonably required to make the Underground Distribution System comparable to the overhead distribution system being replaced. For purposes of the foregoing, any empty ducts installed at the request of the Government Entity shall be a Government-Requested Upgrade. (i) "Path/' 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, (i) outside of the Public Thoroughfare, or (ii) pursuant to rights not derived from a franchise previously granted by the Government Entity or pursuant to rights not otherwise previously granted by the Government Entity. (k) "Project Plan" shall mean the project plan developed by the Parties under the Design Agreement and attached hereto as Exhibit A, as the same may be changed and amended from time to time in accordance with Section 6, below. The Project Plan includes, among other things, (i) a detailed description of the Work that is required to be performed by each Pady and any third party, (ii) 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. (I) "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 "B" to Schedule 74, Page 2 [City of Bremerton - Washington Avenue] replacement program, plus (iii)just compensation as provided by law for the Company's interests in real property on which such existing overhead distribution system was located prior to conversion; provided that the portion of the Reimbursable Private Conversion Costs attributable to the Costs of Conversion under subparagraph (i) of this paragraph shall not exceed the Estimated Reimbursable Private Conversion Costs without the prior written authorization of the Government Entity. (n) "Reimbursable Temporary Service Costs" shall mean all costs incurred by the Company which are attributable to (i) any facilities installed as part of the Conversion Project to provide Temporary Service, as provided for in Schedule 74, and (ii) the removal of any facilities installed to provide Temporary Service (less salvage value of removed equipment); provided that the 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 Govemment 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 (ii) 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 (ii) 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 followin~j 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 Bremerton - Washington Avenue] i) furnish and install an Underground Distribution System within the Conversion Area (excluding any duct and vault installation or other Work which the Parties have ~_ specified in the Project Plan is to be performed by the Government Entity); ii) provide a Company inspector on-site at the times specified in the 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 iii) upon connection of those persons or entities to be served by the Underground Distribution System and removal of facilities of any other utilities that 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, (ii) the Company Work yet to be completed, and (iii) an estimate regarding whether the Conversion Project is on target with respect to the Estimated Shared Company Costs, the Estimated Reimbursable Private Conversion Costs (if any), the Estimated Reimbursable Temporary Service Costs (if any), the Estimated Reimbursable Upgrade Costs (if any) and the Work Schedule. (c) Except as otherwise provided in the Company's Electric Tariff G, the Company shall own, operate and maintain all electrical facilities installed pursuant to this Agreement including, but not limited to, the Underground Distribution System and Underground Service Lines. (d) Subject to the terms and conditions of this Agreement, the Company shall perform all Company Work in accordance with the Project Plan, the Work Schedule and this Agreement. 3. ObliRations 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 iii) perform any duct and vault installation and other Work which the Parties have specified in the Project Plan is to be performed by the Government Entity. (b) Other utilities may be permitted by the Government Entity to use the trenches 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 in accordance with the joint trench design specifications and installation drawings set forth or otherwise identified in the Project Plan, and the Government Entity shall be responsible for the coordination of the design and installation of the facilities of the other utilities to ensure compliance with such specifications and drawings. (c) Upon request of the Company, the Government Entity shall provide periodic reports of the progress of the Government Work identifying (i) the Government Work completed to date, (ii) the Government Work yet to be completed, and (iii) an estimate regarding whether the Conversion Project is on target with respect to the Estimated Shared Govemment Costs and the Work Schedule. (d) The Government Entity shall be responsible for coordinating all work to be performed in connection with the street improvement program within the Conversion Area. Construction Agreement, Attachment "B" to Schedule 74, Page 4 [City of Bremer[on - Washington Avenue] (e) Subject to the terms and conditions of this Agreement, the Government Entity shall perform all Government Work in accordance with the Project Plan, the Work Schedule and this Agreement. 4. Work Schedule. (a) The Government Entity and the Company have agreed upon the Work Schedule as set forth in the Project Plan. Changes to the Work Schedule shall be made only in accordance with 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 Project to review project design, coordination requirements, work sequencing and related pre-mobilization requirements. Following the pre- construction meeting, the Government Entity shall give the Company written notice to proceed with the Work at least ten (10) business days prior to the commencement date specified in the Work Schedule. (c) Subject to the terms and conditions of this Agreement, each Party shall perform 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 Project 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; (ii) changes in the specifications, drawings and other requirements in the Project Plan, (iii) changes in the Work Schedule, and (iv) changes in the location, alignment, dimensions or design of items included in the Work. No Request for Change shall be effective and binding upon the Parties unless signed by an authorized representative of each Party. (b) If any change included in an approved Request for Change would cause a change in the cost of, or the time required for, the performance of any part of the Work, an equitable adjustment shall be made in the Estimated Shared Company Costs, the Estimated Shared 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, (ii) the discovery of any condition within the Conversion Area which affects the scope, cost, Construction Agreement, Attachment "B" to Schedule 74, Page 5 [City of Bremerton - Washington Avenue] schedule or other aspect of the Work and was not known by or disclosed to the affected Party prior to the date of this Agreement, or (iii) any change or inaccuracy in any assumptions regarding the scope, cost, schedule or other aspect of the Work which are expressly identified by the Parties in the Project Plan. Upon the request of either Party, the Parties will negotiate in good faith with the objective of agreeing in writing on a mutually acceptable equitable adjustment. If, at any time thereafter, the Parties are unable to agree upon the terms of the equitable adjustment, either Party may submit the matter for resolution pursuant to the dispute resolution provisions in Section 10, below. (d) Notwithstanding any dispute or delay in reaching agreement or arriving at a mutually acceptable equitable adjustment, each Party shall, if requested by the other Party, proceed with the Work in accordance with any approved Request for Change. Any request to proceed hereunder must be accompanied by a written statement setting forth the requesting Party's reasons for rejecting the proposed equitable adjustment of the other Party. 7. 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 alt Reimbursable Private Conversion Costs, if any. iii) 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 (ii) (i.e., Trenching and Restoration and surveying). vi) The Company shall pay one hundred percent (100%) of the costs it incurs to design, provide and construct any Company-Initiated Upgrade. vii) The Company shall pay one hundred percent (100%) of the costs it incurs to obtain Operating Rights outside the Public Thoroughfare. (b) Based on the allocation of responsibilities set forth in Section 7(a), above, the Parties shall determine the net amount payable by the Government Entity or the Company, as 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 afl Reimbursable Private Conversion Costs, Reimbursable Upgrade Costs and Reimbursable Temporary Service Costs. iii) Subtracting (as a credit to the Government Entity) any payments previously made to the Company by the Government Entity under the Design Agreement which, under the terms of the Design Agreement, are to be credited to the Government Entity under this Agreement. The Net Amount, as so calculated, (A) will be an amount payable to the Company if it is a positive number, and (B) shall be an amount payable to the Government Entity if it is a negative number. Construction Agreement, Attachment "B" to Schedule 74, Page 6 [City of Bremerton - Washington Avenue] (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 categories, as applicable: (i) property and related costs incurred and/or paid by the Government Entity, including any costs of obtaining Operating Rights, and (ii) construction costs incurred and/or paid by the Government Entity, including and listing separately inspection, labor, materials and equipment, overhead and all costs charged by any agent, contractor or subcontractor of the 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, (ii) the Parties' relative share of the Total Shared Costs based on the Company's itemization of the Shared Company Costs and the Government Entity's itemization of the Shared Government Costs set forth in the Government Itemization, (iii) any Reimbursable Private Conversion Costs, (iv) any Reimbursable Upgrade Costs, (v) any Reimbursable Temporary Service Costs, (vi) any credits to the Government Entity for payments previously made to the Company by the Government Entity under the Design Agreement which, under the terms of the Design Agreement, are to be credited to the Government Entity under this Agreement, and (vii) the Net Amount, as determined in accordance with Section 7(b), above, together with such documentation and information as the Government Entity may reasonably request to verify the Company Statement. The itemization of the Shared Company Costs included in the Company Statement shall, at a minimum, break down the Shared Company Costs by the following categories, as applicable: (i) design and engineering costs, and (ii) construction costs, including and listing separately inspection, labor, 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 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 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 Bremerton - Washington Avenue] 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 followijng 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 (i) provide a service trench and conduit, in accordance with the Company's specifications, from the underground meter base to the point of service provided during the conversion, and (ii) pay for the secondary service conductors as defined in Schedule 85 of the Company's Electric Tariff G. The Government Entity shall exercise its authority to order disconnection and removal of overhead facilities with respect to owners failing to convert service lines from overhead to underground within the timelines provided in RCW 35.96.050. 10. Dispute Resolution. (a) 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 lO(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 Bremerton - Washington Avenue] 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, 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 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 $1,000,000 per occurrence and $2,000,000 aggregate for personal injury; and $1,000,000 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 Bremerton - Washington Avenue] (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. (j) 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 padnership 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 Bremerton - Washington Avenue] (I) Notice. Any notice under this Agreement shall be in writing and shall be faxed (with a copy followed by mail or hand delivery), delivered in person, er mailed, properly addressed and stamped with the required postage, to the intended recipient as follows: If to the Government Entity: City of Bremerton Public Works and Utilities 3027 Olympus Drive Bremerton, WA 98310 Attn: Lynn Price Fax: 360.473.5398 If to the Company: Puget Sound Energy 22884 Ryen Drive Poulsbo, WA 98370 Attn: Linda Streissguth Fax: 360-779-4897 Any Party may change its address specified in this Section 13¢) by giving the other Party notice of such change in accordance with this Section 13(I). (m) Applicable Law. This Agreement shall in all respects be interpreted, construed and enforced in accordance with the laws of the State of Washington (without reference to rules governing conflict of laws), except to the extent such laws may be preempted by the laws of the United States of America. (n) Entire Aqreement. 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 Assiqns. 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 BREMERTON PUGET SOUND ENERGY, INC. ITS MAYOR ITS ~/Jf/~ccf¢.~/ Date Signed z.~./. ,,.~O - (~/ Date Signed Approved as to form: Construction Agreement, Attachment "B" to Schedule 74, Page 11 [City of Bremerton - Washington Avenue] PUGET SOUND ENEt?GY Exhibit A: Project Plan City of Bremerton: Washington Ave Underground Conversion Project Number 101019342 March 24,2004 This Project Plan describes work to be performed by Puget Sound Energy and/or its contractor CPSE") and the City of Bremerton and/or its contractor ("City") for the conversion of certain PSE electrical distribution system facilities as described heroin (the "Conversion Project"). In addition to this document, this Project Plan includes and consists Relevant drawings and specifications for the Conversion Project work Relevant PSE Standards for installation of PSE facilities Project Cost Estimate document(s) Revisions to this Project Plan must be mutually approved by the City and PSE. Conversion Project Scope Pursuant to PSE's Schedule 74, PSE will convert its existing overhead distribution system of ,15,000 volts and less to an Underground Distribution System within the following area (the Conversion Area"): Along and within Washington Avenue between 2"a and 4~h Avenue including the intersections of all cross streets and alleys there along as may be necessary and convenient. The Conversion Project includes modification or replacement of all existing service lines w/thin the Conversion Area to connect to the Underground Distribution System and removal of PSE's existing overhead distribution facilities from the Conversion Area. Refer to project drawings for PSE Work Order 101019342. The conversion is 1390 feet in length. In conjunction with the Conversion Project, the existing street lighting system within the Conversion Area will be removed and the City will provide and install a new street lighting system from a connection point location at location HI-I-2. The City will install the service from the meter point to the HH. The construction responsibilities are not finalized at this time and will be an addendum to this agreement. There are no Company Initiated Upgrades or Temporary Service elements included in this Project Scope. The City has requested the following upgrade: Total Underground Transformer located at V-10 of above reference drawing, located on the north side of Burwell Street approximately 100 feet west of Washington Avenue. Operating Rights The existing overhead distribution facilities are located within the Public Thoroughfare unless otherwise indicated in this Project Plan. The Underground Distribution System will be located within Public Thoroughfare, except for facilities at location V08 (Stn: 4+96) and V09 (Stn: 6+20). Sufficient Space is not available within existing Public Thoroughfare at these locations. Unless otherwise mutually agreed, operating rights to provide Sufficient Space will need to be acquired pursuant to Schedule 74 Section 3 prior to the start of Conversion Project construction. City of Bremerton Page Washington Ave. Underground Conversion 101019342 Ci.ty Responsibilities Notice to Customers: The City will provide appropriate written notice to customers within the Conversion Area prior to the start of Conversion Project construction work, including City and PSE contact information, Conversion Project Schedule, anticipation of service interruptions and work required to be performed by customers. Trenching, Restoration & Job Coordination: The City will perform all excavation and trcnching, shoring ('if required), bcdding, backfill, site restoration and job coordination required for the installation of the Underground Distribution System. At locations where existing underground clcctrical facilities arc to bc cut over to thc underground system, thc CiD' or it's Contractor will provide scheduled excavation with two (2) business days notice. Surveying: The City will perform all surveying for alignment and grades of vaults and ducts for the installation of the Underground Distribution System. Installation of Ducts & Vaults: The City will perform the installation of ducts and vaults for thc Underground Distribution System using materials provided by PSE subject to inspection and acceptance of this work by PSE. PSE will accept the completed ducts and vaults system upon thc City's showing to PSE's rcasonablc satisfaction that thc system is installed to proper grade and at the proper location, is free of damage and clear of debris, and contains appropriate pulling lines. Staging and Storage: The City will provide secure staging and storage area(s) for ducts and vaults materials provided by PSE and will be responsible for thc security and condition of these materials until they are installed and accepted by PSE or returned to PSE. Traffic Control: The City will provide flagging and traffic control as required for all work performed by the City. Notice to Convert or Modify Service Lines: Unless otherwise specified in this Project Plan, at thc complction of thc Conversion Project all customers within thc Conversion Ama must bc served by underground services lines. The City will provide written notice to customers within thc Conversion Area that they must rcplacc existing overhead service lines with underground service lines or modify/reroute existing underground service lines as required to connect to the Underground Distribution System. Service lines to bc rcplaccd or modified arc listcd in this Project Plan. Coordination of Other Utilities: The City will coordinate the removal and relocation of other utilities attached to PSE's poles within the Conversion Area and will coordinate any joint use by other utilities of any excavations and/or trenches used for the Conversion Project. PSE Responsibilities Ducts & Vaults Materials: PSE will provide and deliver on site all materials for installation of ducts and vaults by thc City. Dclivcry shall bc in accordancc with lc~cr agrccmcnt signcd by thc City on April ~-- , 2004. Inspection and Acceptance of Ducts & Vaults: PSE will provide inspection services to oversee proper installation of ducts and vaults by the City. PSE will accept the completed ducts City of Bremerton Page 2 Washington Ave Underground Conversion 101019342 and vaults system upon the City's showing to PSE's reasonable satisfaction that the system is installed to propcr grade and at thc propcr location, is frcc of damagc and clear of debris, and contains appropriate pulling lines. Proofing of all conduit runs with a mandrel is also required. - Mandrc! will bc supplicd by thc PSE inspector. Installation of Electrical Facilities: Following acceptance of the ducts and vaults system installed by thc City, PSE will install all electrical facilitics for thc Underground Distribution System. Removal of Electrical Facilities: PSE will remove the existing overhead facilities (including overhead services lines) within the Conversion Area after the Underground Distribution System is placed in service, all customer service lines are connected thereto and all other utilities have been removed from PSE's poles. PSE will fill holes left after pole remove with crushed rock. Traffic Control: PSE will provide flagging and traffic control as required for all work performed by PSE. Underground Service Lines: Unless otherwise specified in this Project Plan, at the completion of thc Convcrsion Projcct all customers w/thin thc Convcrsion Area must bc served by underground services lines. PSE will install underground service lines for single-family rcsidcntial customers (in trcnchcs and conduits provided by thc customer) and will conncct alt underground service lines to the Underground Distribution System, all in accordance with PSE Schcdulc 85. PSE will provide information and ass/stance to customcm and thc City to facilitatc work to be performed by customers associated with underground service lines. PSE will disconnect and rcconncct scrvicc to customers during regular business hours and will schcdulc service line work with customers at least two business days in advance. Service lines to be rcplaccd or modified arc listed in this Project Plan. Service Interruptions: Temporary interruptions of electrical service to customers will be required during construction of thc Conversion Project and transfer of customers to thc Underground Distribution System. PSE will use reasonable efforts to provide at least two working days advance noticc of scrvicc interruptions to customcrs. Customers Responsibilities Underground Service Lines: Unless otherwise specified in this Project Plan, at the completion of the Conversion Project all customers within the Conversion Area must be served by underground services lines. Customers must make their premises ready for service by underground service lines and must make application to PSE for replacement, modification and connection of service lines. Non-residential customers must provide suitable customer installed, o~med and maintained underground service lines in accordance with PSE Schedule 85. Residential customers (single family residences) must provide the trench, backfill and suitable conduit undcr obstructions (if any) to PSE's specifications, and PSE will install, ow~ and maintain the service lines therein in accordance with PSE Schedule 85. Customers served by mndcrground service lines conncctcd to PSE's ovcrhead distribution systcm must pcrform thc above work as necessary to reroute existing underground service lines to connect to the Underground Distribution System Scrvicc lines to be replaced or modified arc listed in this Project Plan. City of Bremerton Page 3 Washington Ave. Underground Conversion 101019342 Construction Work Schedule The Conversion Project Work will be performed in accordance with the following Work Schedule, unless this Schedule is revised by mutual consent and a~eement of the City and PSE or circumstances beyond the control of PSE and the City preclude such performance.' Installation of ducts and vaults: Start date - April 5th and working continuously until completed and accepted by PSE. Installation of the new underground system will begin after successful acceptance of the duct and vault installation. Removal of the overhead system will begin after the City has notified PSE that all utilities have mmovcd thcir facilitics from thc polcs. Project Cost Estimate & Allocation The estimated costs to perform the Conversion Project are presented in the attached Project Costs Estimate Smnmary (Attachment A) and consist of PSE's good faith estimate of costs to design and construct the Conversion Project together with the City's good faith estimate of its costs to perform certain work as described in the Project Plan (if any). Estimated project costs are based on the installation of Facilities and performance of the Conversion Project as described in this Project Plan and may be subject to change in the event that performance of the Conversion Project differs from that described in this Project Plan. Actual project costs will be allocated pursuant to the Conversion Project Design Agreement and Construction Agreement and PSE's rote Schedule 74. As of the date of this Project Plan and unless otherwise altered by one or more mutually agreed Requests for Change, certain project costs will be allocated as follows: City costs incurred to acquire Public Thoroughfare for the installation of the Conversion Projcct Facilitics (if any) wilt bc Sharcd Govcrnmcnt Costs. The City has elected to install the ducts and vaults for this Conversion Project. The costs incurrcd by thc CiD' to pcrform this work togcthcr with PSE's costs to pcrform inspcction of the City's work will be Shared Government Costs and Shared Company Costs respectively to · thc cxtcnt thc total of such costs ("total amount") docs not cxcccd thc cstimatc of costs to thc Conversion Project for installation of ducts and vaults if performed by PSE ("estimated amount"). Any portion of thc total amount in cxccss of thc cstimatcd amount will bc allocated 100% to the City. The City has requested certain upgrades to the design of the Undcrground Distr/bution Systcm. Costs associatcd w/th thcsc upgradcs which cxcccd thc estimated cost of the standard installation w/Il be allocated 100% to the City. Assumptions The Project Design Work (construction plans and specifications), Construction Schedule and Construction Costs Estimate are based on and reflect the followim, assumptions. Construct/on conditions that are not consistent with these assumptions may reset in a request for change to the City of Bremerton Page 4 Washin~on Ave Underground Conversion 101019342 Construction Schedule ands'or Construction Costs Estimate pursuant to Section 6 of the Constraction Agrccmcnt. Schedule 1 SE xwll be prowoea conunuous access to the construction s~te an~d associated electrical work from 7:00 AM to 5:30 PM Monday through Friday (regular business hours). 2 The normal PSE construction crew work schedule consists of five eight-hour workdays per ~veek within the working period referenced in assumption 1 above. 3 Once PSE's construction crews are mobilized, the conversion will be constructed in one continuous nonstop cffoa for cach phasc. 4 Cut-over and transfers of existing customers will be performed during regular business hours. Ovcrtimc chargcs may bc asscsscd for work performed outsidc of thc rcgular busincss hours referenced in assumption 1. 5 PSE's contractor and the City's contractor will mutually agree upon a schedule for excavation for and delivery of all vaults. Scheduling for delivery of vaults from the manufacture will require a minimum of two days notice. 6 Customer work to install or modify, service lines and work necessary by other utilities wilt be performed and completed so as not to interfere with or delay the performance of PSE's work. 7 A City of Bremerton permit does not include a permit fee and is the o~fly permit required. PSE Design Plans 7 The Conversion Project will be performed as shown in PSE's project drawings and PSE's design and construction standards which accompany this Project Plan. 8 Vaults, handholes and pad-mounted equipment have been located consistent with PSE Design Standard 6775.0035. 9 Locations for facilities as shown on PSE's project drawings am available for use. 10 Vault excavation will provide for appropriate grade, elevations and locations. The bottom of vault excavations will be leveled with a minimum of six (6) inches of 5/8 inch crushed rock. 11 Maximum trench depth for PSE conduits and conductors is 48 inches unless otherwise shown on PSE's project drawings or otherwise approved by PSE's project inspector. 12 Minimum depth of cover above the top of PSE's conduits and conductors is 36 inches unless otherwise shown on PSE's project drawings or otherwise approved by PSE's project inspector. 13 This Project Plan does not include installation and removal of"temporary" facilities at the request of others during construction. Cost Estimate i4 The estimated costs presented in the Construction Costs Estimate Summary am based on the installation of facilities at locations shown in PSE's project drawings and otherwise in accordance with this Project Plan. 15 The estimated costs presented in the Construction Costs Estimate Summary, are based on the performance of work by PSE in accordance with the Construction Work Schedule included City of Bremerton Page 5 Washin~on Ave. Underground Conversion 101019342 in this Project Plan during the working period addressed in assumptions 1 and 2 above. No ovcrtimc work is includcd in this Projcct Plan. 16 The estimated costs presented in the Construction Costs Estimate Summary provide for pcrformancc of duct & vault installation thc City mad PSE inspcction of this work. 17 The Daily Productivity Rate is based on the City's contractor opening a minimum of 50 feet oftrcnching pcr day. Thc daily production ratc is uscd to calculatc thc numbcr of days a PSE/Potelco inipector w/Il be required. PSE Facilities Design Standards This Conversion Project has been designed by PSE and will be constructed by PSE and the City in accordance with PSE design and construction standards in effect as of the date of this Project Plan. Standards applicable to work to be performed by the City have been provided to the City is PSE's Electric Distribution Trench/Duct/Vault Construction Standards, 2003, attached to this Project Plan by reference. Services Lines The following services must be replaced or modified to provide underground service from the Underground Distribution System. 1. 221 Washington Ave. Dodgcrs Eatcry Restaurant Neal J. Peterson LLC Convert to underground 4 wire 3 phase service and route to HH-1 2. 223 Washington Ave. 3 unit apartmcnt building Karen Fisher, Rainier Properties Convcrt to undcrground 3 wirc 1 phasc scrvicc and routc to HH-1 3. 206 Burwell Pizza and Bagcl Shop Pizzeria Jocl Diamond, Owncr Convert to underground 3 wire, 1 phase service and route to HH-2 City of Bremerton Page 6 Washington Ave Underground Conversion 101019342 4. 309 Washington Ave. 6 units of apartments over Pizzeria Kamn Fisher Rainier Properties Convert to underground 3 wire, 1 phase service and route to HH-2 5. 232 Washington ~Ave. The Sinclair Building Office building Kitsap Co. Consolidated Housing Authority Convert to underground 4 wire, 3 phase service and route to V-08 Cutovers: Existing underground service reconnected to new underground distribution system 1. 400 Washington Ave. Professional Building Reroute existing underground service to V-13 Acceptance of Proiect Plan The City and PSE mutually agree to and accept this Project Plan as of the date indicated: ? · City of Bremer[on Page 7 Washington Ave Underground Conversion 101019342