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Home My WebLink About02/05/2013 12 Yakima Railroad Grade Separations Phase 3, Construction Management/Inspection Agreement with KBA 0 9 71 BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. / For Meeting of: February 5, 2013 ITEM TITLE: Resolution authorizing a Professional Services Agreement with KBA, Inc., in an amount not to exceed $973,000 for construction management and inspection services required on the Yakima Railroad Grade Separations Phase 3 - Martin Luther King, Jr. Boulevard project. SUBMITTED BY: Debbie Cook, PE, Director of Utilities and Engineering CONTACT Doug Mayo, PE, City Engineer, 576 -6678 PERSON /TELEPHONE: SUMMARY EXPLANATION: The Yakima Railroad Grade Separations, Phase 3 - Martin Luther King, Jr. Boulevard project has been awarded to Mowat Construction Company, and they are scheduled to begin constructing this project on February 25th. This project involves highly specialized construction methods. In order to ensure that the construction management and inspection is performed correctly, it is imperative that this construction oversight be performed by personnel with experience in this type of construction. Since the City does not often construct highly complex projects, it does not have personnel with the required expertise. Following the federal consultant selection procedure and utilizing the Municipal Research and Service Center's (MRSC) roster of consulting firms, the City interviewed three civil engineering firms on the MRSC roster that represented that they had the required experience. KBA, Inc. scored the highest on the interview. Staff recommends that the engineering firm of KBA, Inc. be retained for engineering services required for the construction management and inspection services of the MLK Underpass. Resolution X Ordinance Other (specify) Contract: Mail to: Contract Term: 2/5/13 to Amount: $973,000 Expiration Date: 12/31/14 12/31/14 p Insurance Required? Yes Funding Fund 392 Phone: Source: • APPROVED FOR SUBMITTAL: cif City Manager 411 STAFF RECOMMENDATION: Staff respectfully requests that Council adopt the resolution authorizing the execution of the Professional Services Agreement with KBA, Inc. BOARD /COMMISSION RECOMMENDATION: ATTACHMENTS: Click to download ❑ Resolution • ❑ Local Agency Standard Consultant Agreement • • RESOLUTION NO. 2013 - A RESOLUTION authorizing the City Manager to execute a Professional Services Agreement with KBA, Inc., in an amount not to exceed $973,000 for construction management and inspection services required on the Yakima Railroad Grade Separations Phase 3 - Martin Luther King, Jr Boulevard project. WHEREAS, due to the highly specialized nature of the Martin Luther King, Jr Boulevard Railroad Grade Separation project, it would be advantageous to hire an engineering consultant with the expertise required to perform construction management and inspection duties; and, WHEREAS, the City utilizes the Municipal Research and Services Center (MRSC) of Washington roster of consultants whose statements of qualifications represent that they have the expertise necessary to perform the services required by the City; and, WHEREAS, on January 10, 2013, the City held interviews with three consulting firms listed on the MRSC roster as having the experience necessary to perform these services; and, WHEREAS, as a result of these interviews, the City selected KBA, Inc. to provide the said services for this project; and, WHEREAS, it is requested that the City Manager have the authority to execute a Local Agency Standard Consultant Agreement with KBA, Inc. to perform the duties of Construction Management and Inspection for the MLK Grade Separation project; and, WHEREAS, the City Council deems it to be in the best interests of the City to authorize the City Manager to execute a Local Agency Standard Consultant Agreement with KBA, Inc for consulting services to perform the duties of Construction Management and Inspection for the MLK Grade Separation project, now, therefore BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA. The City Manager is hereby authorized to execute a Professional Services Agreement with KBA, Inc., in an amount not to exceed $973,000 for construction management and inspection services required on the Yakima Railroad Grade Separations Phase 3 - Martin Luther King, Jr Boulevard project. The form of said professional services agreement shall be reviewed and approved by the City Attorney or his designee ADOPTED BY THE CITY COUNCIL this 5 day of February, 2013 Micah D Cawley, Mayor ATTEST City Clerk Local Agency Consultant/Address /Telephone Standard Consultant Agreement ❑ Architectural /Engineering Agreement ❑ Personal Services Agreement Agreement Number Project Title And Work Description Federal Aid Number Agreement Type (Choose one) ❑ Lump Sum Lump Sum Amount $ ❑ Cost Plus Fixed Fee Overhead Progress Payment Rate Overhead Cost Method DBE Participation ❑ Actual Cost El Yes ❑ No Federal ID Number or Social Security Number ❑ Actual Cost Not To Exceed ❑ Fixed Overhead Rate % Do you require a 1099 for IRS'? Completion Date Fixed Fee $ ❑ Yes ❑ No ❑ Specific Rates Of Pay Total Amount Authorized $ ❑ Negotiated Hourly Rate Management Reserve Fund $ ❑ Provisional Hourly Rate ❑ Cost Per Unit of Work Maximum Amount Payable $ Index of Exhibits (Check all that apply): ❑ Exhibit A -1 Scope of Work ❑ Exhibit G -2 Fee -Sub Specific Rates ❑ Exhibit A -2 Task Order Agreement ❑ Exhibit G -3 Sub Overhead Cost ❑ Exhibit B -1 DBE Utilization Certification ❑ Exhibit H Title `'T Assurances ❑ Exhibit C Electronic Exchange of Data ❑ Exhibit I Payment Upon Termination of Agreement ❑ Exhibit D -1 Payment - Lump Sum ❑ Exhibit J Alleged Consultant Design Error Procedures ❑ Exhibit D -2 Payment - Cost Plus ❑ Exhibit K Consultant Claim Procedures ❑ Exhibit D -3 Payment - Hourly Rate ❑ Exhibit L Liability Insurance Increase ❑ Exhibit D -4 Payment - Provisional ❑ Exhibit ICI-la Consultant Certification ❑ Exhibit E -1 Fee - Lump /Fixed /Unit ❑ Exhibit ICI -lb Agency Official Certification ❑ Exhibit E -2 Fee - Specific Rates ❑ Exhibit M-2 Certification - Primary ❑ Exhibit F Overhead Cost ❑ Exhibit M-3 Lobbying Certification ❑ Exhibit G Subcontracted Work ❑ Exhibit M-4 Pricing Data Certification ❑ Exhibit G -1 Subconsultant Fee ❑ App 31 910 0 Supplemental Signature Page THIS AGREEMENT made and entered into this day of between the Local Agency of Washington, hereinafter called the AGENCY' and the above organization hereinafter called the 'CONSULTANT' DOT Form 140 -089 EF Page 1 of 8 Revised 3/2008 WITNESSETH THAT WHEREAS, the AGENCY desires to accomplish the above referenced project, and WHEREAS, the AGENCY does not have sufficient staff to meet the required commitment and therefore deems it advisable and desirable to engage the assistance of a CONSULTANT to provide the necessary services for the PROJECT and WHEREAS, the CONSULTANT represents that he she is in compliance with the Washington State Statutes relating to professional registration, if applicable, and has signified a willingness to furnish Consulting services to the AGENCY NOW THEREFORE, in consideration of the terms, conditions, covenants and performance contained herein, or attached and incorporated and made a part hereof, the parties hereto agree as follows I General Description of Work The work under this AGREEMENT shall consist of the above described work and services as herein defined and necessary to accomplish the completed work for this PROJECT The CONSULTANT shall furnish all services, labor, and related equipment necessary to conduct and complete the work as designated elsewhere in this AGREEMENT II Scope of Work The Scope of Work and projected level of effort required for this PROJECT is detailed in Exhibit A attached hereto and by this reference made a part of this AGREEMENT III General Requirements All aspects of coordination of the work of this AGREEMENT with outside agencies, groups, or individuals shall receive advance approval by the AGENCY Necessary contacts and meetings with agencies, groups, and/or individuals shall be coordinated through the AGENCY The CONSULTANT shall attend coordination, progress and presentation meetings with the AGENCY and/or such Federal, State, Community City or County officials, groups or individuals as may be requested by the AGENCY The AGENCY will provide the CONSULTANT sufficient notice prior to meetings requiring CONSULTANT participation The minimum required hours or days notice shall be agreed to between the AGENCY and the CONSULTANT and shown in Exhibit A The CONSULTANT shall prepare a monthly progress report, in a form approved by the AGENCY which will outline in written and graphical form the various phases and the order of performance of the work in sufficient detail so that the progress of the work can easily be evaluated The CONSULTANT, and each SUBCONSULTANT shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract The CONSULTANT and each SUBCONSULTANT shall carry out applicable requirements of 49 CFR Part 26 in the award and administration of USDOT - assisted contracts Failure by the CONSULTANT to carry out these requirements is a material breach of this AGREEMENT that may result in the termination of this AGREEMENT Participation for Disadvantaged Business Enterprises (DBEI, if required, per 49 CFR Part 26, or participation of Iv1monty Business Enterprises (MBE), and Women Business Enterprises (WBE), shall be shown on the heading of this AGREEMENT If D /IvF \VBE firms are utilized, the amounts authorized to each firm and their certification number will be shown on Exhibit 'B' attached hereto and by this reference made a part of this AGREEMENT If the Prime CONSULTANT is a DBE firm they must comply with the Commercial Useful Function (CUP regulation outlined in the AGENCY'S DBE Program Participation Plan The mandatory DBE participation goals of the AGREEMENT are those established by the WSDOT'S Highway and Local Programs Project Development Engineer in consultation with the AGENCY All Reports, PS&E materials, and other data furnished to the CONSULTANT by the AGENCY shall be returned All electronic files, prepared by the CONSULTANT must meet the requirements as outlined in Exhibit 'C All designs, drawings, specifications, documents, and other work products, including all electronic files, prepared by the CONSULTANT prior to completion or termination of this AGREEMENT are instruments of service for this PROJECT and are the property of the AGENCY Reuse by the AGENCY or by others, acting through or on behalf of the AGENCY of any such instruments of service, not occurring as a part of this PROJECT shall be without liability or legal exposure to the CONSULTANT Page 2 of 8 IV Time for Beginning and Completion The CONSULTANT shall not begin any work under the terms of this AGREEMENT until authorized in writing by the AGENCY All work under this AGREEMENT shall be completed by the date shown in the heading of this AGREEMENT under completion date The established completion time shall not be extended because of any delays attributable to the CONSULTANT but may be extended by the AGENCY in the event of a delay attributable to the AGENCY or because of unavoidable delays caused by an act of GOD or governmental actions or other conditions beyond the control of the CONSULTANT A prior supplemental agreement issued by the AGENCY is required to extend the established completion tune V Payment Provisions The CONSULTANT shall be paid by the AGENCY for completed work and services rendered under this AGREEMENT as provided in Exhibit 'D' attached hereto, and by reference made part of this AGREEMENT Such payment shall be full compensation for work performed or services rendered and for all labor, materials, supplies, equipment, and incidentals necessary to complete the work The CONSULTANT shall conform to all applicable portions of 48 CFR Part 31 A post audit may be performed on this AGREEMENT The need for a post audit will be determined by the State Auditor, WSDOT External Audit Office and/or at the request of the AGENCY'S PROJECT Manager VI Sub - Contracting The AGENCY permits sub - contracts for those items of work as shown in Exhibit 'G' attached hereto and by this reference made part of this AGREEMENT Compensation for this sub - consultant work shall be based on the cost factors shown on Exhibit 'G The work of the sub - consultant shall not exceed its maximum amount payable unless a prior written approval has been issued by the AGENCY All reimbursable direct labor, overhead, direct non -salary costs and fixed fee costs for the sub - consultant shall be substantiated in the same manner as outlined in Section V All sub - contracts shall contain all applicable provisions of this AGREEMENT With respect to sub - consultant payment, the CONSULTANT shall comply with all applicable sections of the Prompt Payment laws as set forth in RCW 39 04 250 and RCW 39 76 011 The CONSULTANT shall not sub - contract for the performance of any work under this AGREEMENT without prior written permission of the AGENCY No permission for sub - contracting shall create, between the AGENCY and sub- contractor, any contract or any other relationship A DBE certified sub - consultant is required to perform a minimum amount of their sub - contracted agreement that is established by the WSDOT Highways and Local Programs Project Development Engineer in consultation with the AGENCY VII Employment The CONSULTANT warrants that they have not employed or retained any company or person, other than a bona fide employee working solely for the CONSULTANT to solicit or secure this contract, and that it has not paid or agreed to pay any company or person, other than a bona fide employee working solely for the CONSULTANT any fee, commission, percentage, brokerage fee, gift, or any other consideration, contingent upon or resulting from the award or making of this contract For breach or violation of this warrant, the AGENCY shall have the right to annul this AGREEMENT without liability or, in its discretion, to deduct from the AGREEMENT price or consideration or otherwise recover the full amount of such fee, commission, percentage, brokerage fee, gift, or contingent fee Any and all employees of the CONSULTANT or other persons while engaged in the performance of any work or services required of the CONSULTANT under this AGREEMENT shall be considered employees of the CONSULTANT only and not of the AGENCY and any and all claims that may arise under any Workmen's Compensation Act on behalf of said employees or other persons while so engaged, and any and all claims made by a Page 3 of 8 third party as a consequence of any act or omission on the part of the CONSULTANT'S employees or other persons while so engaged on any of the work or services provided to be rendered herein, shall be the sole obligation and responsibility of the CONSULTANT The CONSULTANT shall not engage, on a full- or part-time basis, or other basis, during the period of the contract, any professional or technical personnel who are, or have been, at any time during the period of the contract, in the employ of the United States Department of Transportation, or the STATE, or the AGENCY except regularly retired employees, without written consent of the public employer of such person VIII Nondiscrimination During the performance of this contract, the CONSULTANT for itself, its assignees, and successors in interest agrees to comply with the following laws and regulations Title `'T of the Civil Rights Act of 1964 (42 USC Chapter 21 Subchapter V Section 2(()( id through 2( a id -4a I Federal -aid Highway Act of 1973 (23 USC Chapter 3 Section 3241 Rehabilitation Act of 1973 (29 USC Chapter 16 Subchapter V Section 7941 Age Discrimination Act of 1975 ( 42 USC Chapter 76 Section 6101 et seq ) Civil Rights Restoration Act of 1987 (Public Law 100-2591 American with Disabilities Act of 199( 0 ( 42 USC Chapter 126 Section 12101 et seq ) 49 CFR Part 21 23 CFR Part 2(1(1 RCW49601800 In relation to Title `'T of the Civil Rights Act of 1964, the CONSULTANT is bound by the provisions of Exhibit If attached hereto and by this reference made part of this AGREEMENT and shall include the attached Exhibit If in every sub - contract, including procurement of materials and leases of equipment, unless exempt by the Regulations or directives issued pursuant thereto IX Termination of Agreement The right is reserved by the AGENCY to terminate this AGREEMENT at any time upon ten (1 01 it days written notice to the CONSULTANT In the event this AGREEMENT is terminated by the AGENCY other than for default on the part of the CONSULTANT a final payment shall be made to the CONSULTANT as shown in Exhibit 'I' for the type of AGREEMENT used No payment shall be made for any work completed after ten (1 01 it days following receipt by the CONSULTANT of the Notice to Terminate If the accumulated payment made to the CONSULTANT prior to Notice of Termination exceeds the total amount that would be due when computed as set forth herein above, then no final payment shall be due and the CONSULTANT shall immediately reimburse the AGENCY for any excess paid If the services of the CONSULTANT are terminated by the AGENCY for default on the part of the CONSULTANT the above formula for payment shall not apply Page 4 of 8 In such an event, the amount to be paid shall be determined by the AGENCY with consideration given to the actual costs incurred by the CONSULTANT in performing the work to the date of termination, the amount of work originally required which was satisfactorily completed to date of termination, whether that work is in a form or a type which is usable to the AGENCY at the time of termination, the cost to the AGENCY of employing another firm to complete the work required and the time which may be required to do so, and other factors which affect the value to the AGENCY of the work performed at the time of termination Under no circumstances shall payment made under this subsection exceed the amount, which would have been made using the formula set forth above If it is determined for any reason that the CONSULTANT was not in default or that the CONSULTANT'S failure to perform is without the CONSULTANT'S or it s employee s default or negligence, the termination shall be deemed to be a termination for the convenience of the AGENCY In such an event, the CONSULTANT would be reimbursed for actual costs in accordance with the termination for other than default clauses listed previously In the event of the death of any member, partner or officer of the CONSULTANT or any of its supervisory personnel assigned to the PROJECT or dissolution of the partnership, termination of the corporation, or disaffiliation of the principally involved employee, the surviving members of the CONSULTANT hereby agree to complete the work under the terms of this AGREEMENT if requested to do so by the AGENCY This subsection shall not be a bar to renegotiation of the AGREEMENT between the surviving members of the CONSULTANT and the AGENCY if the AGENCY so chooses In the event of the death of any of the parties listed in the previous paragraph, should the surviving members of the CONSULTANT with the AGENCY'S concurrence, desire to terminate this AGREEMENT payment shall be made as set forth in the second paragraph of this section Payment for any part of the work by the AGENCY shall not constitute a waiver by the AGENCY of any remedies of any type it may have against the CONSULTANT for any breach of this AGREEMENT by the CONSULTANT or for failure of the CONSULTANT to perform work required of it by the AGENCY Forbearance of any rights under the AGREEMENT will not constitute waiver of entitlement to exercise those rights with respect to any future act or omission by the CONSULTANT X Changes of Work The CONSULTANT shall make such changes and revisions in the complete work of this AGREEMENT as necessary to correct errors appearing therein, when required to do so by the AGENCY without additional compensation thereof Should the AGENCY find it desirable for its own purposes to have previously satisfactorily completed work or parts thereof changed or revised, the CONSULTANT shall make such revisions as directed by the AGENCY This work shall be considered as Extra Work and will be paid for as herein provided under Section XIV XI Disputes Any dispute concerning questions of fact in connection with the work not disposed of by AGREEMENT between the CONSULTANT and the AGENCY shall be referred for determination to the Director of Public Works or AGENCY Engineer, whose decision in the matter shall be final and binding on the parties of this AGREEMENT provided, however, that if an action is brought challenging the Director of Public Works or AGENCY Engineer s decision, that decision shall be subject to de novo judicial review If the parties to this AGREEMENT mutually agree, disputes concerning alleged design errors will be conducted under the procedures found in Exhibit J' and disputes concerning claims will be conducted under the procedures found in Exhibit 'IC XII Venue, Applicable Law, and Personal Jurisdiction In the event that either party deems it necessary to institute legal action or proceedings to enforce any right or obligation under this AGREEMENT the parties hereto agree that any such action shall be initiated in the Superior court of the State of Washington, situated in the county in which the AGENCY is located The parties hereto agree that all questions shall be resolved by application of Washington law and that the parties to such action shall have the right of appeal from such decisions of the Superior court in accordance with the laws of the State of Washington The CONSULTANT hereby consents to the personal jurisdiction of the Superior court of the State of Washington, situated in the county in which the AGENCY is located Page 5 of 8 XIII Legal Relations The CONSULTANT shall comply with all Federal, State, and local laws and ordinances applicable to the work to be done under this AGREEMENT This contract shall be interpreted and construed in accordance with the laws of the State of Washington The CONSULTANT shall indemnify and hold the AGENCY and the STATE and its officers and employees harmless from and shall process and defend at its own expense all claims, demands, or suits at law or equity arising in whole or in part from the CONSULTANT'S negligence or breach of any of its obligations under this AGREEMENT provided that nothing herein shall require a CONSULTANT to indemnify the AGENCY or the STATE against and hold harmless the AGENCY or the STATE from claims, demands or suits based solely upon the conduct of the AGENCY or the STATE, their agents, officers and employees, and provided further that if the claims or suits are caused by or result from the concurrent negligence of I a I the CONSULTANT'S agents or employees, and (b ) the AGENCY or the STATE, their agents, officers and employees, this indemnity provision with respect to (1) claims or suits based upon such negligence (21 the costs to the AGENCY or the STATE of defending such claims and suits shall be valid and enforceable only to the extent of the CONSULTANT'S negligence or the negligence of the CONSULTANT'S agents or employees The CONSULTANT'S relation to the AGENCY shall be at all times as an independent contractor The CONSULTANT shall comply with all applicable sections of the applicable Ethics laws, including RCW 4223, which is the Code of Ethics for regulating contract interest by municipal officers The CONSULTANT specifically assumes potential liability for actions brought by the CONSULTANT'S own employees against the AGENCY and, solely for the purpose of this indemnification and defense, the CONSULTANT specifically waives any immunity under the state industrial insurance law Title 51 RCW Unless otherwise specified in the AGREEMENT the AGENCY shall be responsible for administration of construction contracts, if any on the PROJECT Subject to the processing of a new sole source, or an acceptable supplemental agreement, the CONSULTANT shall provide On -Call assistance to the AGENCY during contract administration By providing such assistance, the CONSULTANT shall assume no responsibility for proper construction techniques, job site safety or any construction contractor s failure to perform its work in accordance with the contract documents The CONSULTANT shall obtain and keep in force during the terms of the AGREEMENT or as otherwise required, the following insurance with companies or through sources approved by the State Insurance Commissioner pursuant to Title 48 RCW Insurance Coverage A Worker s compensation and employer s liability insurance as required by the STATE B Commercial general liability and property damage insurance in an aggregate amount not less than two million dollars ($2,()()() i u u it for bodily injury including death and property damage The per occurrence amount shall not exceed one million dollars ($1,()()() (u u it C Vehicle liability insurance for any automobile used in an amount not less than a one million dollar ($1,000 0001 combined single limit Excepting the Worker s Compensation Insurance and any Professional Liability Insurance secured by the CONSULTANT the AGENCY will be named on all policies as an additional insured The CONSULTANT shall furnish the AGENCY with verification of insurance and endorsements required by the AGREEMENT The AGENCY reserves the right to require complete, certified copies of all required insurance policies at any time All insurance shall be obtained from an insurance company authorized to do business in the State of Washington The CONSULTANT shall submit a verification of insurance as outlined above within fourteen (141 days of the execution of this AGREEMENT to the AGENCY No cancellation of the foregoing policies shall be effective without thirty (3i it days prior notice to the AGENCY The CONSULTANT'S professional liability to the AGENCY shall be limited to the amount payable under this AGREEMENT or one million ($1,(( I (H H it dollars, whichever is the greater, unless modified by Exhibit 'L In no case shall the CONSULTANT'S professional liability to third parties be limited in any way Page 6 of 8 The AGENCY will pay no progress payments under Section V until the CONSULTANT has fully complied with this section This remedy is not exclusive, and the AGENCY and the STATE may take such other action as is available to it under other provisions of this AGREEMENT or otherwise in law XIV Extra Work A The AGENCY may at any time, by written order, make changes within the general scope of the AGREEMENT in the services to be performed B If any such change causes an increase or decrease in the estimated cost of, or the time required for, performance of any part of the work under this AGREEMENT whether or not changed by the order, or otherwise affects any other terms and conditions of the AGREEMENT the AGENCY shall make an equitable adjustment in the (1) maximum amount payable, Cl delivery or completion schedule, or both, and (31 other affected terms and shall modify the AGREEMENT accordingly C The CONSULTANT must submit any request for equitable adjustment' hereafter referred to as 'CLAIM' under this clause within thirty (3( it days from the date of receipt of the written order However, if the AGENCY decides that the facts justify it, the AGENCY may receive and act upon a CLAIM submitted before final payment of the AGREEMENT D Failure to agree to any adjustment shall be a dispute under the Disputes clause However, nothing in this clause shall excuse the CONSULTANT from proceeding with the AGREEMENT as changed E Notwithstanding the terms and conditions of paragraphs (A) and (Bl above, the maximum amount payable for this AGREEMENT shall not be increased or considered to be increased except by specific written supplement to this AGREEMENT XV Endorsement of Plans If applicable, the CONSULTANT shall place their endorsement on all plans, estimates, or any other engineering data furnished by them XVI Federal and State Review The Federal Highway Administration and the Washington State Department of Transportation shall have the right to participate in the review or examination of the work in progress XVII Certification of the Consultant and the Agency Attached hereto as Exhibit 'M -1) a and b) are the Certifications of the CONSULTANT and the AGENCY Exhibit 'M -2' Certification Regarding Debarment, Suspension and Other Responsibility Flatters - Primary Covered Transactions, Exhibit M-3' Certification Regarding the Restrictions of the Use of Federal Funds for Lobbying and Exhibit 'M -4' Certificate of Current Cost or Pricing Data Exhibit M-3' is required only in AGREEMENTS over $1()() 000 ii i and Exhibit M-4' is required only in AGREEMENTS over $5( iii 000 i XVIII Complete Agreement This document and referenced attachments contain all covenants, stipulations, and provisions agreed upon by the parties No agent, or representative of either party has authority to make, and the parties shall not be bound by or be liable for, any statement, representation, promise or agreement not set forth herein No changes, amendments, or modifications of the terms hereof shall be valid unless reduced to writing and signed by the parties as an amendment to this AGREEMENT XIX Execution and Acceptance This AGREEMENT may be simultaneously executed in several counterparts, each of which shall be deemed to be an original having identical legal effect The CONSULTANT does hereby ratify and adopt all statements, representations, warranties, covenants, and agreements contained in the proposal, and the supporting material submitted by the CONSULTANT and does hereby accept the AGREEMENT and agrees to all of the terms and conditions thereof Page 7 of 8 In witness whereof, the parties hereto have executed this AGREEMENT as of the day and year shown in the "Execution Date" box on page one (1) of this AGREEMENT By By Consultant Agency DOT Form 140 -089 EF Revised 3/2008 Page 8 of 8 KBA, Inc January 18, 2013 EXHIBIT A -1 SCOPE OF SERVICES Construction Engineering Services For Yakima Railroad Grade Separations Phase 3, Martin Luther King, Jr. Boulevard Contract No. 1818 KBA, Inc (Consultant) will provide Construction Engineering (CE) services to the City of Yakima (Agency), a Washington municipal corporation, for the Project known as the Yakima Railroad Grade Separations, Phase 3, MLK Boulevard Project (Project) These services will include consultation, contract administration, field observation, documentation, on -call survey and material testing, as required during the construction of the Project, as detailed below Project Description: Construction of underpass structure to carry MLK Boulevard beneath BNSF railroad, including rail track bridge, vehicle road surface, sidewalks, security lighting, storm water pumping system, retaining walls and overhead roadway (Front Street) crossing bridge The Designer of Record on this project is Berger /ABAM Engineers (Designer) CONSTRUCTION CONTRACT MANAGEMENT SERVICES A. Consultant Contract and Team Management. Provide overall day - to - day management of the consultant contract and team, including 1 Decide on best modes and frequency of communication with Agency and Designer, and use them Liaison and coordinate with Agency on a regular basis to discuss Project issues and status 2 Manage Consultant Team, comprised of Consultant's staff and subconsultants Organize and layout work for Consultant Team 3 Review monthly expenditures and Consultant Team scope activities Prepare and submit to Agency monthly, an invoice and progress report describing Consultant Team services provided that month Prepare and submit reporting required by funding source(s), if any Deliverables • Monthly invoices and progress reports B. Preconstruction Services 1 Review Contract Documents to familiarize team with Project requirements 2 Prepare a Construction Engineering Management Plan (CEM Plan) for the Project The CEM Plan will be developed based on the Consultant's boilerplate document, and modified to adapt to and include Agency practices and funding agency requirements, including forms to be used on the Project Submit to Agency for review and comment, and finalize based on those comments The CEM Plan will cover at least the following a Communication and coordination between the CE Team, Designer, Agency and other stakeholders b Project procedures and forms c Document control system 3 Organize and lead preconstruction conference a Prepare and distribute notices b Prepare agenda -%Frge t =%i ntra. L\lllent al in'aiEF- I_ I I'- Fair ad'r rade 3e parat' nei['raft Ilegohat, nF In -hpu seLrate\E .I HI] d... 1 of 7 KBA, Inc January 18, 2013 c Conduct the meeting d Prepare and distribute meeting notes to attendees and affected agencies 4 Organize and conduct a partnering meeting, with participants from Consultant, Agency, contractor, and other stakeholders prepare agenda, lead the meeting, and prepare and distribute meeting notes Deliverables • Construction Engineering Management Plan, draft and final • Preconstruction Conference Notice, Agenda, and Notes • Partnering meeting Agenda and Notes C Construction Phase Services — Contract Administration Some of the tasks detailed below will be shared with or undertaken by the Agency, as well as some tasks detailed under Section E 2 below 1 Liaison with the Agency and construction contractor Assist Agency with liaison activities with Designer, appropriate agencies, property owners, and utilities 2 Provide the Agency with brief monthly construction progress reports, highlighting progress and advising of issues which are likely to impact cost, schedule, or quality /scope 3 Schedule Review a Review construction contractor's schedules for compliance with Contract Documents b Monitor the construction contractor's conformance to schedule and require revised schedules when needed Consult with and advise Agency on schedule changes and challenges 4 Progress Meetings Lead regular (usually weekly) progress meetings with the construction contractor, including Agency pre - briefing, and preparing weekly meeting agenda and meeting notes, and distributing copies to attendees Track outstanding issues on a weekly basis 5 Update CEM Plan as needed to reflect changes in policy and /or procedure that occur during the Project, and orient CE Team to the changes 6 Submittals Review shop drawings, samples, and test reports submitted by the construction contractor, for general conformance to the Contract Documents 7 Record of Materials (ROM) Update existing ROM indicating anticipated material approvals, material compliance documentation, and materials testing requirements Maintain records of material compliance documentation received and advise of any known deficiencies 8 Prepare weekly statement of working days and distribute to the Agency and Contractor 9 Manage RFI (Request for Information) process Track RFIs submitted by construction contractor, and Agency response 10 Change Management Evaluate entitlement, and prepare scope, impact, and independent estimate for change orders Facilitate resolution of change orders 11 Evaluate construction contractor's Schedule of Values for lump sum items Review the Contract Price allocations and verify that such allocations are made in accordance with the requirements of the Contract Documents 12 Conduct on -site wage interviews 13 Assist the Agency in the investigation of malfunctions or failures during construction 14 Record Drawings Review not less than monthly, the construction contractor's redline set of contract plans Maintain a CE Team set of conformed drawings tracking plan changes, S%Frge t =% ntra t =\lllent al ImaIEF- I_ II- F atl wal ra arat' nJGraft F1egohat' nF e... ni In -h u seGraft =€E .I pa__ii1 1111 d... 2 of 7 KBA, Inc January 18, 2013 location of discovered anomalies and other items, as encountered by the CE team Use these markups to check the progress of the Contractor - prepared Record Drawings 15 Document Control Establish and maintain document filing and tracking systems, following Agency guidelines and meeting funding agency requirements Together with Agency personnel, collect, organize, and prepare documentation on the Project a One hard copy of files will be kept in the Project field office b Electronic documentation will be stored in a Project Website, using SharePoint software, managed and hosted by the Consultant The Agency will be provided with up to 5 licenses for their and the construction contractor's use of the SharePoint website during the Project Consultant will provide one training session each for Agency and construction contractor users of the SharePoint system 16 Final Records Compile and convey final Project records, transferring to the Agency for archiving at final acceptance of the Project Records will consist of hard copy originals and electronic records on CD /DVD, to include searchable copies of the SharePoint documents in pdf format Deliverables • Monthly Construction Progress Reports • Schedule Review Comments • As -built Schedule • Meeting Agendas and Notes • Submittal Log • Record of Materials • RFI Log • Change Order(s) • Progress Pay Requests • Certificates of Completion and punch list(s) • Final records — hard copy and electronic D. Construction Phase Services — Field 1 Observe the technical conduct of the construction, including providing day -to -day contact with the construction contractor, Agency, utilities, and other stakeholders, and monitor for adherence to the Contract Documents The Consultant's personnel will act in accordance with Sections 1 -05 1 and 1 -05 2 of the Standard Specifications 2 Observe material, workmanship, and construction areas for compliance with the Contract Documents and applicable codes, and notify construction contractor of noncompliance Advise Agency of any non - conforming work observed during site visits 3 Prepare daily construction reports, recording the construction contractor's operations as actually observed by the Consultant, includes quantities of work placed that day, contractor's equipment and crews, and other pertinent information 4 Interpret Contract Documents, in coordination with Agency and Designer 5 Decide questions which may arise as to the quality and acceptability of material furnished, work performed, and rate of progress of work performed by the construction contractor 6 Coordinate with permit holders on the Project to monitor compliance with approved permits, if applicable 7 Prepare field records and documents to help assure the Project is administered in accordance with funding agency requirements 8 Attend and actively participate in regular on -site meetings S%Frge t =% ntra t =\lllent al ImaIEF- I_ II- F atl wal ra arat' nJClraft 11 egohat' nF e... ni In -h u seGraft =€E .I pa__ii1 1111 d... 3 of 7 KBA, Inc January 18, 2013 9 Take periodic digital photographs during the course of construction Photographs to be labeled and organized as detailed in the CEM Plan 10 Punch List Upon substantial completion of work, coordinate with the Agency and affected agencies, to prepare a 'punch list' of items to be completed or corrected Coordinate final inspection with those agencies 11 Testing Conduct or cause to be conducted, materials and laboratory tests Coordinate the work of the Field Representative(s) and testing laboratories in the observation and testing of materials used in the construction, document and evaluate results of testing, and inform Agency and construction contractor of deficiencies 12 Construction Surveying Provide one -time control survey as described in the Contract Provisions, and spot checks of construction contractor's staking up to the limits of the budget for these services Deliverables • Daily Construction Reports with Project photos and Field Note Records — submitted on a weekly basis • Punch List • Test reports E. Assumptions 1 Budget a Staffing levels are anticipated in accordance with the attached budget estimate Consultant services are budgeted for a 16 -month period, from February 2013 through June 2014 This is intended to span the originally planned construction duration of 300 working days, plus time allotted for Project setup and closeout b If additional budget is needed to cover such instances as the following, Agency and Consultant will negotiate a supplement to this Agreement The contractor's schedule requires inspection coverage of extra crews and shifts ii The construction contract runs longer than the time period detailed above iii Any added scope tasks c The budget allocations shown on Exhibit E -1 are itemized to aid in Project tracking purposes only The budget may be transferred between tasks or people, or between labor and expenses, provided the total contracted amount is not exceeded without prior authorization Use of the Management Reserve will be with prior Agency authorization only d The budget assumes that Consultant's standard forms, logs, and processes will be used on the Project SharePoint site Any customization to meet specialized Agency requirements will be Extra Work 2 Items and Services Agency will provide a Meeting arrangements and facilities for preconstruction meetings b Field office (provided by the Contractor), to include workstations (desk, chair, and storage) for 3 staff ii conference table and chairs landline telephone for each assigned staff [or IP phone system] iv hi -speed data connection (minimum 2 -GB upload speed) v utilities and sanitary facilities S%Frge t =% ntra.t =\lllent al ImaIEF- I_ II- F atl wal ra arat' nJGraft F1egohat' nF e... ni In -h u seGraft =€E .I pa__ii1 1111 d... 4 of 7 KBA, Inc January 18, 2013 c Retain Engineer of Record for shop drawing review, RFIs, design changes, and final record drawings d Take the lead in liaison activities with the Designer, appropriate agencies, property owners, and utilities e Coordination with and enforcement of utility franchise agreements and /or contracts and schedules for services related to this Project f Public Information Prepare and distribute any media communications and public notices on Project status g Prepare all required permits and permit transfers that are not the responsibility of the construction contractor Verify that the required permits, bonds, and insurance have been obtained and submitted by the construction contractor h Manage Submittal Process Track and review, or cause to be reviewed by other appropriate party, work plans, shop drawings, samples, test reports, and other data submitted by the construction contractor, for general conformance to the Contract Documents RFIs Review /evaluate and respond to RFIs j Monthly Pay Requests Prepare monthly requests for payment and /or review payment requests submitted by the construction contractor Review with Consultant and construction contractor, and approve, as appropriate k Monitor compliance with Prevailing Wage Monitor Payroll Compliance and review Statements of Intent to Pay Prevailing Wage against the Contract Document requirements Collect, record, and check weekly certified payrolls I Prepare Certificates of Substantial, Physical, and Final Completion 3 Scope a The SharePoint tool being used on this Project is proprietary to the Consultant (KBA, Inc ), and may not be used by any other party or on any other project without the written permission and involvement of KBA, Inc b Consultant will provide observation services for the days /hours that their Inspector(s) personnel is /are on -site The Inspector(s) will not be able to observe or report construction activities, or collect documentation, during the time they are not on -site c The Consultant's monitoring of the construction contractor's activities is to ascertain whether or not they are performing the work in accordance with the Contract Documents, in case of noncompliance, Consultant will reject non - conforming work and pursue the other remedies in the interests of the Agency, as detailed in the Contract Documents The Consultant cannot guarantee the construction contractor's performance, and it is understood that Consultant shall assume no responsibility for proper construction means, methods, techniques, Project site safety, safety precautions or programs, or for the failure of any other entity to perform its work in accordance with laws, contracts, regulations, or Agency's expectations d Definitions and Roles The use of the term "inspect" in relation to Consultant services is synonymous with "construction observation, and reference to the "Inspector" role is synonymous with "Field Representative," and means performing on -site observations of the progress and quality of the Work and determining, in general, if the Work is being performed in conformance with the Contract Documents, and notifying the Agency if Work does not conform to the Contract Documents or requires special inspection or testing Where "Specialty Inspector" or "specialty inspection" is used, it refers to inspection by a Building Official or independent agent of the Building Official, or other licensed /certified inspector who provides a certified inspection report in accordance with an established standard 3%Frge t =%i ntra. L =\lllent al ImaIEF- I_ II- F atl wader rade 3e parat' ne l[lraft 11 egohat' nF e... ni In -h u seLran=\E .I ii1 1'1 I, d... 5 of 7 KBA, Inc January 18, 2013 e Because of the prior use of the Project site, there is a possibility of the presence of toxic or hazardous materials Consultant shall have no responsibility for the discovery, presence, handling, removal or disposal of toxic or hazardous materials, or for exposure of persons to toxic or hazardous materials in any form at the Project site, including but not limited to asbestos, asbestos products, polychlorinated biphenyl (PCB), or other toxic substances If the Consultant suspects the presence of hazardous materials, they will notify the Agency immediately for resolution f Review of Shop Drawings, samples, and other submittals will be for general conformance with the design concept and general compliance with the requirements of the contract for construction Such review will not relieve the Contractor from its responsibility for performance in accordance with the contract for construction, nor is such review a guarantee that the work covered by the shop drawings, samples and submittals is free of errors, inconsistencies or omissions g Any opinions of probable construction cost provided by the Consultant will be on the basis of experience and professional judgment However, since Consultant has no control over competitive bidding or market conditions, the Consultant cannot and does not warrant that bids or ultimate construction costs will not vary from these opinions of probable construction costs h Development of construction schedules and /or sequencing, and /or reviewing and commenting on contractor's schedules, is for the purpose of estimating number of days to complete a project, and for identifying potential schedule and coordination challenges and determining compliance with the construction contract It is not a guarantee that a construction contractor will complete the Project in that sequence or timeline, as means and methods are the responsibility of the construction contractor Consultant is not responsible for any costs, claims or judgments arising from or in any way connected with errors, omissions, conflicts or ambiguities in the Contract Documents prepared by others The Consultant does not have responsibility for the professional quality or technical adequacy or accuracy of the design plans or specifications, nor for their timely completion by others j Consultant will spot check construction contractor layout and staking to the limits of available budget, but accuracy of all layout and staking is solely the responsibility of the construction contractor k Consultant will not be liable for any damage to the Field Office or utilities unless caused by Consultant's own negligence I RCW 4 24 115 is applicable to Consultant's services provided under this Agreement m Because data stored on electronic media can deteriorate undetected or can be modified without Consultant's knowledge, Agency agrees that Consultant will not be held liable for the completeness, correctness, readability, or compatibility of any electronic media submitted to Agency, after an acceptance period of 30 days after delivery of the electronic files II. OPTIONAL SERVICES All services not detailed above, are considered Optional Services, which, along with any other Extra Work requested by the Agency, will be performed only when a mutually negotiated Supplement to this Agreement is executed, specifying scope of services and budget Potential Optional Services include A Survey 1 Restaking and /or changes to the one -time control and construction staking, as design changes or stakes or monuments are interfered with by construction contractor 2 Detailed as -built surveying S �Fr ntra . t =\?IIent' al i n i aIEF -I. I I' -Fatl wads} ra , r drat ne lGrafte 11 egoh at nF e... ni In -h u seGraft =\E .I -S r -1i 1 , i'11 d... 6 of 7 KBA, Inc January 18, 2013 B Public Involvement Support 1 Coordinate media releases and traffic advisory updates 2 Develop and maintain Project website, updating Project progress monthly 3 Provide periodic notification newsletters to affected property owners on upcoming work, and include contact numbers C Provide administrative and support services during construction which are not included in the above scope of services, which may include 1 Investigations, meetings, and negotiations with the construction contractor involving claims and legal complaints, or a significant amount of defective or rejected work A "significant amount" would be an item that might represent more than 2 5 percent of the total contract bid amount 2 Additional work resulting from delinquency or insolvency of the construction contractor, or as a result of damage to the construction Project caused by fire, flood, earthquake or other acts of God, all exclusive of additional work resulting from litigation 3 Additional work resulting from strikes, walkouts, or other acts of trade or labor unions or work required to resolve disputes or goals involving minorities Additional work resulting from significant delays or acceleration of the work by the construction contractor 4 Assistance to legal, financial, or other consultants engaged by the Agency beyond the services previously described 5 Additional services resulting from changes in scope or design of the Project due to circumstances beyond the Consultant's control Changes include, but are not limited to, changes in size, complexity, the schedule, character of construction, or method of financing D Prepare additional copies of approved drawings, specifications, and other contract documents, either for bidding purposes, or as requested by the Agency E Provide record drawings F Drafting of Procedures, or Operations and Maintenance Manual(s) 3%Frge t =%i ntra. L =\lllent al ImaIEF- I_ II- F atl wader rade 3e parat' ne IEraft 11 egohat' nF eg oni In -h u seLran=\E .I ii1 1'1 I, dr.. 7 of 7 Exhibit C Electronic Exchange of Engineering and Other Data In this Exhibit the agency, as applicable, is to provide a description of the format and standards the consultant is to use in preparing electronic files for transmission to the agency The format and standards to be provided may include, but are not limited to, the following: I. Surveying, Roadway Design & Plans Preparation Section A. Survey Data B. Roadway Design Files C Computer Aided Drafting Files D Specify the Agency's Right to Review Product with the Consultant E. Specify the Electronic Deliverables to Be Provided to the Agency F Specify What Agency Furnished Services and Information Is to Be Provided II. Any Other Electronic Files to Be Provided III. Methods to Electronically Exchange Data A. Agency Software Suite B. Electronic Messaging System C File Transfers Format DOT Form 140 -089 EF Exhibit C Revised 6/05 Exhibit D -2 Payment (Cost Plus a Fixed Fee) The CONSULTANT shall be paid by the AGENCY for completed work and services rendered under this AGREEMENT as provided hereinafter Such payment shall be full compensation for work performed or services rendered and for all labor, materials, supplies, equipment, and incidentals necessary to complete the work specified in Section II. "Scope of Work." The CONSULTANT shall conform to all applicable portions of 48 CFR Part ;1. A. Actual Costs. Payment for all consulting services for this PROJECT shall be on the basis of the CONSULTANT'S actual cost plus a fixed fee. The actual cost shall include direct salary cost, overhead, direct non - salary costs, and fixed fee. 1. Direct Salary Costs. The Direct Salary Cost is the direct salary paid to principals, professional, technical, and clerical personnel for the time they are productively engaged in work necessary to fulfill the terms of this AGREEMENT The CONSULTANT shall maintain support data to verify the direct salary costs billed to the AGENCY 2. Overhead Costs. Overhead Costs are those costs other than direct costs, which are included as such on the books of the CONSULTANT in the normal everyday keeping of its books. Progress payments shall be made at the rate shown in the heading of this AGREEMENT under' Overhead Progress Payment Rate." Total overhead payment shall be based on the method shown in the heading of the AGREEMENT The two options are explained as follows. a. Fixed Rate: If this method is indicated in the heading of the AGREEMENT the AGENCY agrees to reimburse the CONSULTANT for overhead at the percentage rate shown. This rate shall not change during the life of the AGREEMENT b Actual Cost: If this method is indicated in the heading of the AGREEMENT the AGENCY agrees to reimburse the CONSULTANT the actual overhead costs verified by audit, up to the Maximum Total Amount Payable, authorized under this AGREEMENT, when accumulated with all other Actual Costs. A summary of the CONSULTANTS cost estimate and the overhead computation is shown in Exhibit "E attached hereto and by this reference made part of this AGREEMENT When an Actual Cost method is used, the CONSULTANT (prime and all sub - consultants) will submit to the AGENCY within six (6) months after the end of each firm's fiscal year, an overhead schedule in the format required by the AGENCY (cost category, dollar expenditures, etc.) for the purpose of adjusting the overhead rate for billing purposes. It shall be used for the computation of progress payments during the following year and for retroactively adjusting the previous year's overhead cost to reflect the actual rate. DOT Form 140 -089 EF Exhibit D -2 Revised 6/08 Failure to supply this information by either the prime CONSULTANT or any of their sub - consultants shall cause the AGENCY to withhold payment of the billed overhead costs until such time as the required information is received and an overhead rate for billing purposes is approved. The AGENCY. STATE and/or the Federal Government may perform an audit of the CONSULTANT'S books and records at any time during regular business hours to determine the actual overhead rate, if they so desire. 3 Direct Non - Salary Costs. Direct Non - Salary Costs will be reimbursed at the Actual Cost to the CONSULTANT These charges may include, but are not limited to, the following items: travel, printing, long distance telephone, supplies, computer charges and sub - consultant costs. a. Air or train travel will be reimbursed only to economy class levels unless otherwise approved by the AGENCY The CONSULTANT shall comply with the rules and regulations regarding travel costs (excluding air, train, and rental car costs) in accordance with the AGENCY'S Travel Rules and Procedures. However, air, train, and rental car costs shall be reimbursed in accordance with 48 CFR Part ; 1.205 -46 "Travel Cost b. The billing for Direct Non - Salary Costs shall include an itemized listing of the charges directly identifiable wh the PROJECT c. The CONSULTANT shall maintain the original supporting documents in their office. Copies of the original supporting documents shall be supplied to the AGENCY upon request. d. All above charges must be necessary for the services provided under this AGREEMENT 4 Fixed Fee: The Fixed Fee, which represents the CONSULTANT'S profit, is shown in the heading of this AGREEMENT under Fixed Fee. This amount does not include any additional Fixed Fee, which could be authorized from the Management Reserve Fund. This fee is based on the Scope of Work defined in this AGREEMENT and the estimated person - hours required to perform the stated Scope of Work. In the event the CONSULTANT enters into a supplemental AGREEMENT for additional work, the supplemental AGREEMENT may include provisions for the added costs and an appropriate additional fee. The Fixed Fee will be prorated and paid monthly in proportion to the percentage of work completed by the CONSULTANT and reported in the Monthly Progress Reports accompanying the billings. Any portion of the Fixed Fee earned but not previously paid in the progress payments will be covered in the final payment, subject to the provisions of Section IX entitled' Termination of Agreement." 5 Management Reserve Fund: The AGENCY may desire to establish a Management Reserve Fund to provide the Agreement Administrator with the flexibility to authorize additional funds to the AGREEMENT for allowable unforeseen costs, or reimbursing the CONSULTANT for additional work beyond that already defined in this AGREEMENT Such authorization(s) shall be in writing and shall not exceed the lesser of $100.000 or 10 °0 of the Total Amount Authorized as shown in the heading of this AGREEMENT The amount included for the Management Reserve Fund is shown in the heading of this AGREEMENT This fund may not be replenished. Any changes requiring additional costs in excess of the Management Reserve Fund shall be made in accordance with Section NZY. 'Extra Work. "6 Maximum Total Amount Payable: The Maximum Total Amount Payable by the AGENCY to the CONSULTANT under this AGREEMENT shall not exceed the amount shown in the heading of this AGREEMENT The Maximum Total Amount Payable is comprised of the Total Amount Authorized, and the Management Reserve Fund. The Maximum Total Amount Payable does not include payment for Extra Work as stipulated in Section NZY. "Extra Work." No minimum amount payable is guaranteed under this AGREEMENT B. Monthly Progress Payments. The CONSULTANT may submit billings to the AGENCY for reimbursement of Actual Costs plus the calculated overhead and fee on a monthly basis during the progress of the work. Such billings shall be in a format approved by the AGENCY and accompanied by the monthly progress reports required under Section III. "General Requirements" of this AGREEMENT The billings will be supported by an itemized listing for each item including Direct Salary, Direct Non - Salary, and allowable Overhead Costs to which will be added the prorated Fixed Fee. To provide a means of verifying the billed salary costs for CONSULTANT employees, the AGENCY may conduct employee interviews. These interviews may consist of recording the names, titles, salary rates, and present duties of those employees performing work on the PROJECT at the time of the interview C Final Payment: Final Payment of any balance due the CONSULTANT of the gross amount earned will be made promptly upon its verification by the AGENCY after the completion of the work under this AGREEMENT, contingent upon receipt of all PS &E, plans, maps, notes, reports, electronic data and other related documents which are required to be furnished under this AGREEMENT Acceptance of such Final Payment by the CONSULTANT shall constitute a release of all claims for payment, which the CONSULTANT may have against the AGENCY unless such claims are specifically reserved in writing and transmitted to the AGENCY by the CONSULTANT prior to its acceptance. Said Final Payment shall not, however, be a bar to any claims that the AGENCY may have against the CONSULTANT or to any remedies the AGENCY may pursue with respect to such claims. The payment of any billing will not constitute agreement as to the appropriateness of any item and at the time of fmal audit, all required adjustments will be made and reflected in a final payment. In the event that such fmal audit reveals an overpayment to the CONSULTANT, the CONSULTANT will refund such overpayment to the AGENCY within thirty (30) days of notice of the overpayment. Such refund shall not constitute a waiver by the CONSULTANT for any claims relating to the validity of a finding by the AGENCY of overpayment. The CONSULTANT has twenty (20) days after receipt of the final POST AUDIT to begin the appeal process to the AGENCY for audit findings. D Inspection of Cost Records. The CONSULTANT and their sub - consultants shall keep available for inspection by representatives of the AGENCY. STATE and the United States, for a period of three (3) years after receipt of fmal payment, the cost records and accounts pertaining to this AGREEMENT and all items related to or bearing upon these records with the following exception: if any litigation, claim or audit arising out of, in connection with, or related to this contract is initiated before the expiration of the three (3) year period, the cost records and accounts shall be retained until such litigation, claim, or audit involving the records is completed. EXHIBIT E -1 CONSULTANT FEE DETERMINATION SUMMARY SHEET (Cost Plus Fixed Fee) PROJECT Yakima Railroad Grade Separations Ph 3 - MLK Blvd. DIRECT SALARY COST (DSC) 2013 ? lae,iecation H cvr ' [s? Fate Est ?yet (M3) Project Manager 132 x $75 00 = $ 9,900 (E6) Resident Engineer 1,352 x $50 00 = $ 67,600 (P4) Office Engineer / Project Admin 1 440 x $40 00 = $ 57,600 (P4) Inspector 1,776 $42 00 $ 74,592 (P1) Jr Inspector 512 $15 00 $ 7,680 (M1) Project Controls 66 x $44 72 = $ 2,952 (M1) Administrative Manager (SharePoint) 60 x $36 50 = $ 2,190 (A5) IT Administrator 16 x $38 46 = $ 615 TOTAL 2013 DSC 5,354 $ 223,129 2014 ? laesiecatic�n H our [!V F a t e Est ?yet (M3) Project Manager 72 x $75 00 = $ 5,400 (E6) Resident Engineer 762 x $50 00 = $ 38,100 (P4) Office Engineer / Project Admin 810 x $40 00 = $ 32,400 (P4) Inspector 1,016 $42 00 $ 42,672 (P1) Jr Inspector 0 $1500 $ - (M1) Project Controls 36 x $44 72 = $ 1,610 (M1) Administrative Manager (SharePoint) 12 x $36 50 = $ 438 (A5) IT Administrator 0 x $38 46 = $ - TOTAL 2014 DSC 2,708 $ 120,620 TOTAL DSC 8,062 $ 343,749 OVERHEAD: ,s H ,r - „ ,11 „ 11 , alas 400rtnss DSC x OH of 130 51% $ 448,627 FIXED FEE DSC (only) x FF Rate of 30 0% $ 103,125 REIMBURSABLES Misc Supplies, Equipment, Per Diem $ 1,500 SUBCONSULTANT COSTS ,san Ci Matenals Testing r -n -a eed' $ 66,000 Surveying, x -to -e � eedl $ 10,000 TOTAL SUBCONSULTANTS $ 76,000 MANAGEMENT RESERVE $ - GRAND TOTAL $ 973,000 KBA adjusts DSC rates annually on January 1 Rate adjustments will be negotiated for 2014 PREPARED BY K Wendell Adams Date January 21 2013 - Revised s IF rqe del= ontrac teiIIH nt4 al 1rr1a1BF -1= 11 -F atln ladlI rad e 1 core lDrafts 2 I 1 eaoh ati onF el ord=Vn -hou seLl ra ft= \E - E -1 -L. ill 111_4 1= Page 1 of 1 Exhibit F Breakdown of Overhead Cost Account Title $ Beginning Total % of Direct Labor Direct Labor 3,225,302 100 00% Overhead Expenses FICA 383,832 11 90% Unemployment 85,504 2 65% Health /Accident Insurance 344,694 10 69% Medical Aid & Industrial Insurance 22,286 0 69% HolidayNacation /Sick Leave 499,453 15 49% Commission /Bonus /Pension 287,902 8 93% Total Fringe Benefits 1,623,671 50.34% General Overhead State B &O Taxes 169,210 5 25% Insurance 130,964 4 06% Administration & Time Not Assignable 1,610,558 49 94% Printing, Stationery & Supplies 15,842 0 49% Professional Services 47,581 1 48% Travel Not Assignable 2,605 0 08% Telephone & Telegraph Not Assignable 60,345 1 87% Fees, Dues & Professional Meetings 42,076 1 30% Utilities & Maintenance 43,160 1 34% Professional Development 57,198 1 77% Rent 114,310 3 54% Equipment Support 252,213 7 82% Office, Miscellaneous & Postage 39,578 1 23% Total General Overhead 2,585,640 80.17% Total Overhead (General + Fringe) 4,209,311 130.51% Overhead Rate (Total Overhead / Direct Labor) 130.51% DOT Form 140 -089 EF Exhibit F Revised 6/05 Exhibit G Subcontracted Work The AGENCY permits subcontracts for the following portions of the work of this AGREEMENT DOT Form 140 -089 EF Exhibit G Revised 6/05 c r ` ■ 1106 L edwich Ave, Z36887mC8 kima, WQ 9 LBj " &er i 09) kr. (509) 469 -300 Fax January 17, 2013 K. Adams KBA, Inc 11000 Main Street Bellevue, WA 98004 RE: Yakima Valley Separation Project Mr Adams Bear Testing, Inc. is a small firm and does not have a WSDOT audited overhead rate schedule or an independent audit overhead schedule. We request consideration to utilize our all- inclusive billing rates for the following personnel who will be assigned to this project Employee Position Description Billing Rate Bobby Lee Testing Tech $52.96 Eric Gillihan Testing Tech $52.96 David Espinoza Testing Tech $52 96 Steven T. Baer Testing Tech $52 96 Steven R. Baer Project Manager $95 00 Aaron Davis Administration $35.00 Camille Smith Administration $35.00 These billing rates include direct salary cost, overhead and fee, and it is typical of how we invoice our clients The following direct expenses and testing fees will also be invoiced for this project See Attachment "A" Thank you for your consideration We look forward to working with you. Sincerely, Baer T sting, Inc A r 1 °--. avis, President General E -mail: general@baertestinq com AN EQUAL OPPORTUNITY EMPLOYER 1.106" Led wio5 BT9 Seer Weep Y ivy fd�l9 Ave. (609)459-3068 Dfg'ce (509)469-3070 Far Attachment A 12/18/2012 Estimated Budge Proposal Bid Date. Project Name: MLK - Yakima Grade Separation Date: 12/18/2012 Category Units Unit Price Total Notes !Soil & Aggregate Testing Sieve Analysis, Fractured Face count, Flat and Elongated Particles, Sand Equivalent, each 30 $ 75 00 $ 2,250 00 Moisture- Density (proctor), each 30 $ 150.00 $ 4,500 00 Inspector to perform soil /aggregate inspections, per hour 180 $ 52.96 $ 9,532.80 Soils Investigation / Geotechnical Investigation, each* Quotes Available Upon Request Estimated Soil & Aggregate Testing Total: $ 16,282 80 !Concrete Testing 6 x 12" or 4 x 8 " Compressive Strength tests, each 400 $ 15 00 $ 6,000 00 Inspector to perform concrete inspections, per hour 360 $ 52.96 $ 19,065 60 Technician to Pickup, Process & Transport Cylinders, per hour 180 $ 52 96 $ 9,532.80 Estimated Concrete Testing Total: $ 34,598 40 Asphalt Testing Extraction / Gradation, each 15 $ 150 00 $ 2,250 00 Theoretical maximum specific gravity (rice), each 15 $ 75.00 $ 1,125 00 Inspector to perform asphalt inspections, per hour 55 5 $ 52 96 $ 2,939.28 Technician to Pickup & Transport HMA Samples, per hour $ 52 96 $ - Estimated Asphalt Testing Total: $ 6,314.28 AN EQUAL OPPORTUNITY EMPLOYER 1 11101 9 YI06ier/►sa Ate. Yali7)77d, fig 95902 (509)459- 3MOf5ce Inc (509)459-3DIDFax Masonry Testing Inspector to perform masonry inspections, per hour $ 52.96 $ - 4 x 4 x 8" Grout compressive strength test, each $ 15 00 $ - 2 x 4" Mortar compressive strength, each $ 15 00 $ - Unit masonry prism, each $ 60.00 $ - Estimated Masonry Testing Total: $ - 'Structural Steel Testing Bolt inspection, per hour $ 55.00 $ - Visual welding inspection, per hour* $ 75 00 $ - U/T Inspection, per hour* Quotes Available Upon Request Estimated Structural Steel Testing Total: $ - Miscellaneous Mileage, per mile 4620 $ 0 75 $ 3,465 00 Overtime surchage - Charged prior to 8 AM or after 5 PM $ 26.48 Testing Manager - Site visits and /or review, per hour 40 $ 95 00 $ 3,800.00 Nuclear densometer, per hour 235 5 $ 5.00 $ 1,177 50 Estimated Miscellaneous Total: $ 8,442.50 ESTIMATED BUDGET GRAND TOTAL: $ 65,637 98 I AN EQUAL OPPORTUNITY EMPLOYER P L S A ENGINEERING & SURVEYING BRADLEY J CARD, P E RICHARD L WEHR, PLS SCOTT GARLAND, P E JOSEPH W BAKER, PL5 January 16, 2013 KBA, Inc. 11000 Main Street Bellevue, WA 98004 Re: Yakima Grade Separation Project Gentlemen: PLSA Engineering and Surveying is a small firm of 12 persons and does not have a WSDOT audited OH Rate letter and schedule or an independent audit OH rate letter and schedule. The following is a listing of personnel who will be assigned to this project: Employee Position Description Total Billing Rate Joseph Baker Principal Surveyor $105.00 Ronald Wishert Survey Party Chief 95.00 Merle Shuyler Survey Party Chief 90.00 Darren Wilhelm Survey Instrument Man 70.00 The above billing rates are all- inclusive rates (to include direct salary cost, overhead, and fee). Sincerely, -- °`�aI JOSEPH BAKER, P.L.S. President JB:mc 1120 West Lincoln Avenue • Yakima, Washington 98902 • (509) 575 -6990 • FAX (509) 575 -6993 Exhibit H Title VI Assurances During the performance of this AGREEMENT, the CONSULTANT, for itself, its assignees, and successors in interest agrees as follows. 1. Compliance with Regulations. The CONSULTANT shall comply with the Regulations relative to non- discrimination in federally assisted programs of the AGENCY. Title 49. Code of Federal Regulations, Part 21, as they may be amended from time to time (hereinafter referred to as the "REGULATIONS which are herein incorporated by reference and made a part of this AGREEMENT 2. Non - discrimination: The CONSULTANT, with regard to the work performed during the AGREEMENT, shall not discriminate on the grounds of race, color, sex, or national origin in the selection and retention of sub - consultants, including procurement of materials and leases of equipment. The CONSULTANT shall not participate either directly or indirectly in the discrimination prohibited by Section 21.5 of the REGULATIONS, including employment practices when the AGREEMENT covers a program set forth in Appendix B of the REGULATIONS. Solicitations for Sub - consultants. Including Procurement of Materials and Equipment: In all solicitations either by competitive bidding or negotiations made by the CONSULTANT for work to be performed under a sub - contract, including procurement of materials or leases of equipment, each potential sub - consultant or supplier shall be notified by the CONSULTANT of the CONSULTANT'S obligations under this AGREEMENT and the REGULATIONS relative to non - discrimination on the grounds of race, color, sex, or national origin. 4 Information and Reports. The CONSULTANT shall provide all information and reports required by the REGULATIONS or directives issued pursuant thereto, and shall permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by AGENCY. STATE or the Federal Highway Administration (FHWA) to be pertinent to ascertain compliance with such REGULATIONS, orders and instructions. Where any information required of a CONSULTANT is in the exclusive possession of another who fails or refuses to furnish this information, the CONSULTANT shall so certify to the AGENCY. STATE or the FHWA as appropriate, and shall set forth what efforts it has made to obtain the information. 5 Sanctions for Non - compliance: In the event of the CONSULTANT'S non - compliance with the non- discrimination provisions of this AGREEMENT, the AGENCY shall impose such AGREEMENT sanctions as it, the STATE or the FHWA may determine to be appropriate, including, but not limited to • • Withholding of payments to the CONSULTANT under the AGREEMENT until the CONSULTANT complies, and, or, • Cancellation, termination, or suspension of the AGREEMENT, in whole or in part DOT Form 140 -089 EF Exhibit H Revised 8/05 6 Incorporation of Provisions. The CONSULTANT shall include the provisions of paragraphs (1) through (5) in every sub - contract, including procurement of materials and leases of equipment, unless exempt by the REGULATIONS, or directives issued pursuant thereto. The CONSULTANT shall take such action with respect to any sub - consultant or procurement as the AGENCY. STA I'E or FHWA may direct as a means of enforcing such provisions including sanctions for non - compliance. Provided, however, that in the event a CONSULTANT becomes involved in, or is threatened with, litigation with a sub - consultant or supplier as a result of such direction, the CONSULTANT may request the AGENCY and the STATE enter into such litigation to protect the interests of the AGENCY and the STATE and, in addition, the CONSULTANT may request the United States enter into such litigation to protect the interests of the United States. Exhibit 1 Payment Upon Termination of Agreement By the Agency Other Than for Fault of the Consultant (Refer to Agreement, Section IX) Lump Sum Contracts A final payment shall be made to the CONSULTANT which when added to any payments previously made shall total the same percentage of the Lump Sum Amount as the work completed at the time of termination is to the total work required for the PROJECT In addition. the CONSULTANT shall be paid for any authorized extra work completed. Cost Plus Fixed Fee Contracts A final payment shall be made to the CONSULTANT which when added to any payments previously made. shall total the actual costs plus the same percentage of the fixed fee as the work completed at the time of termination is to the total work required for the Project. In addition. the CONSULTANT shall be paid for any authorized extra work completed. Specific Rates of Pay Contracts A final payment shall be made to the CONSULTANT for actual hours charged at the time of termination of this AGREEMENT plus any direct nonsalary costs incurred at the time of termination of this AGREEMENT Cost Per Unit of Work Contracts A final payment shall be made to the CONSULTANT for actual units of work completed at the time of termination of this AGREEMENT DOT Form 140 -089 EF Exhibit 1 Revised 8/05 Exhibit K Consultant Claim Procedures The purpose of this exhibit is to describe a procedure regarding claim(s) on a consultant agreement. The following procedures should only be utilized on consultant claims greater than $1.000 If the consultant's claim(s) are a total of $1.000 or less, it would not be cost effective to proceed through the outlined steps. It is suggested that the Director of Public Works or Agency Engineer negotiate a fair and reasonable price for the consultant's claim(s) that total $1.000 or less. This exhibit will outline the procedures to be followed by the consultant and the agency to consider a potential claim by the consultant. Step 1 — Consultant Files a Claim with the Agency Project Manager If the consultant determines that they were requested to perform additional services that were outside of the agreement's scope of work, they may be entitled to a claim. The first step that must be completed is the request for consideration of the claim to the Agency's project manager The consultant's claim must outline the following: • Summation of hours by classification for each firm that is included in the claim: • Any correspondence that directed the consultant to perform the additional work: • Timeframe of the additional work that was outside of the project scope: • Summary of direct labor dollars, overhead costs, profit and reimbursable costs associated with the additional work: and • Explanation as to why the consultant believes the additional work was outside of the agreement scope of work. Step 2 — Review by Agency Personnel Regarding the Consultant's Claim for Additional Compensation After the consultant has completed step 1, the next step in the process is to fonvard the request to the Agency's project manager. The project manager will review the consultant's claim and will met with the Director of Public Works or Agency Engineer to determine if the Agency agrees with the claim. If the FHWA is participating in the project's funding, fonvard a copy of the consultant's claim and the Agency's recommendation for federal participation in the claim to the WSDOT Highways and Local Programs through the Region Local Programs Engineer. If the claim is not eligible for federal participation, payment will need to be from agency funds. If the Agency project manager. Director of Public Works or Agency Engineer, WSDOT Highways and Local Programs (if applicable), and FHWA (if applicable) agree with the consultant's claim, send a request memo, including backup documentation to the consultant to either supplement the agreement, or create a new agreement for the claim. After the request has been approved, the Agency shall write the supplement ands or new agreement and pay the consultant the amount of the claim. Inform the consultant that the final payment for the agreement is subject to audit. No further action in needed regarding the claim procedures. DOT Form 140 -089 EF Exhibit K Revised 6/05 If the Agency does not agree with the consultant's claim, proceed to step 3 of the procedures. Step 3 — Preparation of Support Documentation Regarding Consultant's Claim(s) If the Agency does not agree with the consultant's claim, the project manager shall prepare a summary for the Director of Public Works or Agency Engineer that included the following: • Copy of information supplied by the consultant regarding the claim: • Agency's summation of hours by classification for each firm that should be included in the claim: • Any correspondence that directed the consultant to perform the additional work: • Agency's summary of direct labor dollars. overhead costs, profit and reimbursable costs associated with the additional work: • Explanation regarding those areas in which the Agency does/does not agree with the consultant's claim(s): • Explanation to describe what has been instituted to preclude future consultant claim(s): and • Recommendations to resolve the claim. Step 4 — Director of Public Works or Agency Engineer Reviews Consultant Claim and Agency Documentation The Director of Pubic Works or Agency Engineer shall review and administratively approve or disapprove the claim, or portions thereof. which may include getting Agency Council or Commission approval (as appropriate to agency dispute resolution procedures). If the project involves federal participation, obtain concurrence from WSDOT Highways and Local Programs and FHWA regarding fmal settlement of the claim. If the claim is not eligible for federal participation, payment will need to be from agency funds. Step 5 — Informing Consultant of Decision Regarding the Claim The Director of Public Works or Agency Engineer shall notify (in writing) the consultant of their fmal decision regarding the consultant's claim(s). Include the fmal dollar amount of the accepted claim(s) and rationale utilized for the decision. Step 6 — Preparation of Supplement or New Agreement for the Consultant's Claim(s) The agency shall write the supplement ands or new agreement and pay the consultant the amount of the claim. Inform the consultant that the final payment for the agreement is subject to audit. Exhibit M -1(a) Certification Of Consultant Project No. Local Agency I hereby certify that I am and duly authorized representative of the firm of whose address is and that neither I nor the above firm I here represent has. (a) Employed or retained for a commission, percentage, brokerage, contingent fee, or other consideration, any firm or person (other than a bona fide employee working solely for me or the above CONSULTANT) to solicit or secure the AGREEMENT. (b) Agreed, as an express or implied condition for obtaining this contract, to employ or retain the services of any firm or person in connection with carrying out this AGREEMENT, or (c) Paid, or agreed to pay, to any firm, organization or person (other than a bona fide employee working solely for me or the above CONSULTANT) any fee, contribution, donation, or consideration of any kind for, or in connection with, procuring or carrying out this AGREEMENT, except as hereby expressly stated (if any): I acknowledge that this certificate is to be available to the Washington State Department of Transportation and the Federal Highway Administration, U.S. Department of Transportation in connection with this AGREEMENT involving participation of Federal -aid highway funds, and is subject to applicable State and Federal laws, both criminal and civil. Date Signature DOT Form 140 -089 EF Exhibit M -1(a) Revised 6/05 Exhibit M -1(b) Certification Of Agency Official I hereby certify that I am the AGENCY Official of the Local Agency of Washington. and that the consulting firm or its representative has not been required. directly or indirectly as an express or implied condition in connection with obtaining or carrying out this AGREEMENT to (a) Employ or retain. or agree to employ to retain. any firm or person: or (b) Pay. or agree to pay. to any firm. person. or organization. any fee. contribution, donation. or consideration of any kind: except as hereby expressly stated (if any): I acknowledge that this certificate is to be available to the Washington State Department of Transportation and the Federal Highway Administration. U.S. Department of Transportation. in connection with this AGREEMENT involving participation of Federal -aid highway funds. and is subject to applicable State and Federal laws. both criminal and civil. Date Signature DOT Form 140 -089 EF Exhibit M -1(b) Revised 6/05 Exhibit M -2 Certification Regarding Debarment, Suspension, and Other Responsibility Matters - Primary Covered Transactions The prospective primary participant certifies to the best of its knowledge and belief, that it and its principals. A. Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions by any federal department or agency. B. Have not within a three -year period preceding this proposal been convicted of or had a civil judgment rendered against them for commission or fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (federal, state, or local) transaction or contract under a public transaction: violation of federal or state antitrust statues or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property. C Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (federal, state, or local) with commission of any of the offenses enumerated in paragraph (I) (B). of this certification: and D Have not within a three (3) year period preceding this applicatiomproposal had one or more public transactions (federal, state, or local) terminated for cause or default. IL Where the prospective primary participant is unable to certify to any of the statements in this certification, such prospective participant shall attach an explanation to this proposal. Consultant (Firm): (Date) (Signature) President or Authorized Official of Consultant DOT Form 140 -089 EF Exhibit M -2 Revised 6/05 Exhibit M -3 Certification Regarding The Restrictions of The use of Federal Funds for Lobbying The prospective participant certifies, by signing and submitting this bid or proposal, to the best of his or her knowledge and belief, that: 1. No federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any Federal agency, a member of Congress, an officer or employee of Congress, or an employee of a member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement. 2.If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any Federal agency, a member of Congress, an officer or employee of Congress, or an employee of a member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form -LLL. 'Disclosure Form to Report Lobbying." in accordance with its instructions. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into Submission of this certification is a prerequisite for making or entering into this transaction imposed by Section 1352, Title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10.000 and not more than $100.000 for each such failure. The prospective participant also agrees by submitting his or her bid or proposal that he or she shall require that the language of this certification be included in all lower tier subcontracts which exceed $100.000 and that all such subrecipients shall certify and disclose accordingly Consultant (Firm): (Date) (Signature) President or Authorized Official of Consultant DOT Form 140 -089 EF Exhibit M -3 Revised 6/05 Exhibit M-4 Certificate of Current Cost or Pricing Data This is to certify that, to the best of my knowledge and belief, the cost or pricing data (as defined in section 15 401 of the Federal Acquisition Regulation (FAR) and required under FAR subsection 15 403-4) submitted, either actually or by specific identification in writing, to the contracting officer or to the contracting officer's representative in support of are accurate, complete, and current as of ** This certification includes the cost or pricing data supporting any advance agreements and fonward pricing rate agreements between the offeror and the Government that are part of the proposal. Firm Name Title Date of Execution*** * Identify the proposal, quotation, request for price adjustment, or other submission involved, giving the appropriate identifying number (e.g.. RFP No ). ** Insert the day, month, and year when price negotiations were concluded and price agreement was reached. * ** Insert the day, month, and year of signing, which should be as close as practicable to the date when the price negotiations were concluded and the contract price was agreed to. DOT Form 140 -089 EF Exhibit M -4 Revised 6/05