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HomeMy WebLinkAboutR-2023-031 Resolution authorizing acceptance of a Washington State Department of Transportation Award for $750,000 for the Cowiche Canyon Trail Project 2430A RESOLUTION RESOLUTION NO. R-2023-031 authorizing acceptance and execution of a grant program agreement with the State of Washington Department of Transportation for the Cowiche Canyon Trail Project 2430 WHEREAS, in 2015 the State Legislature selected the Cowiche Canyon Trail Project (Project) to receive $2,000,000 in Connecting Washington (CWA) funding; and WHEREAS, the City has been using that funding since Sept 2016 on the Cowiche Canyon Trail Project for engineering, trail work, and other matters; and WHEREAS, the City already designed the first mile of the Cowiche Canyon Trail Project along Cowiche Canyon Road, and continues to work on the long term plan of connecting the Yakima Greenway to the Cowiche Canyon East Trailhead to enhance pedestrian and biking opportunities in Yakima; and WHEREAS, the City of Yakima received additional grant funding of $750,000 from the Washington State Department of Transportation (WSDOT) Connecting Washington (CWA) Tier 2 Pedestrian and Bicycle 2022 Supplemental Transportation Budget State Funding for the Project, and WHEREAS, the original $2,000,00 of funding has carried over from year-to-year, so that the total funding available for the project is now $2,750,000; and WHEREAS, there is no required match funding from the City to accept the additional grant funds; and WHEREAS, the design is complete and the additional grant award provides the funds needed to fully fund construction of the designed section of the trail in 2023, and WHEREAS, the City Council finds that it is in the best interests of the City of Yakima and its residents to accept and execute the grant agreement with WSDOT for the Cowiche Canyon Trail project 2430, and authorize the City Manager to take all necessary steps to execute the grant agreement, necessary contracts, and administer the funds received from WSDOT, now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: Section 1. The City Manager is hereby authorized to accept the Washington State Department of Transportation (WSDOT) grant, attached hereto and incorporated herein by this reference, not to exceed Seven Hundred Fifty Thousand Dollars ($750,000.00) as described in the Grant Program Agreement, and directed to take all necessary steps to secure the funding for the Cowiche Canyon Trail Project 2430. Section 2. The appropriate administrative officials of the City are hereby authorized to receive monies and to expend the same as authorized by the WSDOT award. Section 3. The City Manager, or his designee, shall have responsibility for the administration of said funds and expenditure of said funds received pursuant to the WSDOT award, which is attached hereto as Exhibit "1" and incorporated herein, and the budget submitted therewith for the grant. Section 4. The City Council hereby authorizes the City Manager to execute any and all contracts necessary and not to exceed the budgeted amounts outlined in Exhibit "1", and enter into any other necessary agreements or documents to accomplish the Nob Hill Boulevard Overlay Project 2619 funded through the WSDOT award. Section 5. Severability. If any section, subsection, paragraph, sentence or clause of this resolution is declared invalid or unconstitutional for any reason, such decision shall not affect the validity or constitutionality of the remaining portions of the resolution. ADOPTED BY THE CITY COUNCIL this 21st day of February, 2023. .62,--e4i Janice Deccio, Mayor ATTEST: tSLorIt'Isar Tee, City Cl 4 Transportation Building 310 Maple Park Avenue S.E. P.O. Box 47300 Olympia, WA 98504-T300 360-705-7000 TTti': 1-800-833-6388 www.wsdot.wa.gov March 31, 2022 Mr. Bill Preston Public Works Director City of Yakima 129 North 2nd Street Yakima, Washington 98901 Cowiche Canyon Trail HLP-1485(024) Connecting Washington — Tier Pedestrian & Bicycle 2022 Supplemental Transportation Budget State Funding Dear Mr. Preston: WSDOT is pleased to advise you that the 2022 Supplemental Transportation Budget has revised the above -mentioned project funding through the Connecting Washington (CWA) — Tier Pedestrian & Bicycle program. The state funding is limited as shown below: Cowiche Canyon Trail 2015-17 Available Funding: $ 17,930 2017-19 Available Funding: $ 96,133 2019-21 Available Funding: $ 218,837 2021-23 Available Funding: $2,417,100 $2,750,000 In the event the 2021-23 funding is not all reimbursed, WSDOT will request the remaining funding through the 2023-25 budget development. Until the funding is provided by the legislature, WSDOT can only reimburse your agency for the approved work completed each biennium, as reflected above. Therefore, it is critical that the city update the Local Project Report detailing the project's delivery, so that the funding aligns with the city's schedule. In order to meet the state and federal requirements, the following are required: • Reporting of benefits and expenditures for transit, bicycle, and pedestrian elements at award and during construction annually is required. (see attached) • Project expenditures incurred before receiving notice from Local Programs of state fund authorization are not eligible for reimbursement. • Please refer to the Local Programs webpage for detailed authorization information including: (https://wsdot.wa.gov/business-wsdot/support-local-programs) ✓ Local Agency Guidelines (LAG) manual for detailed requirements; V Transportation Improvement Program (TIP) and Statewide Transportation Improvement Program (STIP) amendments, as applicable; ✓ Funding and billing forms; 5 Bill Preston Cowiche Canyon Trail SR 520 Trail Grade Separation at 40th Street March 31, 2022 ✓ Local Project Report is required to be completed by the end of June and December each year. To access the database you will need an account name and password. Your account name is Yakima and your password is Yakim007. The password is case sensitive. Also, the legislature expects that for some projects, costs will be reduced due to the application of practical solutions. Local Programs encourages all agencies to submit monthly progress billings to ensure timely reimbursement of eligible expenditures. For assistance please contact Randy Giles, your Region Local Programs Engineer, at 509.577.1780. Sincerely, Jay Drye, PE Director Local Programs Attachment JD:st:ml cc: Christina Wickenhagen, Executive Director, YVCOG Randy Giles, South Central Local Programs Engineer 6 Connecting Washington Projects — Reporting Requirements 1. At Contract Award — report the estimated cost to implement any transit, bicycle or pedestrian project elements. 2. Annually, report separately on amounts expended and the funds utilized to benefit transit, bicycle and pedestrians. To assist in approximating the amount of funding spent on a contract, below are some types of work for each of the elements: ■ Transit elements, such as: ✓ Bus pullout ✓ Direct Access On/Off ramp ✓ HOV/HOT Lane V Park and Ride Lot ✓ Transit stops/shelters ✓ Business Access & Transit (BAT) lanes Bicycle elements, such as: ✓ Stand-alone/separate path ✓ Shared use path (50% bicycle/50% pedestrian) ✓ Drainage systems associated with the path (ignore if incidental) ✓ Joint use shoulder including pavement marking & signage (shoulder was widened for bicycles to travel on) ✓ Bike lane on bridge (% based on width of lane to total bridge width) V Bike racks on buses, at trailheads, on local routes or schools / Bike parking stations V Bike share projects ✓ Roadway reconfiguration (road diets) (50% bicycle/50% pedestrian) ✓ Raised crosswalk/intersection (50% bicycle/50% pedestrian) ✓ Curb extensions (bulb out) (50% bicycle/50% pedestrian) Pedestrian elements, such as: ✓ Sidewalk and trails or walking path ✓ Shared use path (50% bicycle/50% pedestrian) ✓ Curb and gutter for sidewalk ✓ Drainage systems associated with the path (ignore if incidental) ✓ Sidewalk on bridge (% based on width of sidewalk to total bridge width) ✓ Electronic Walk Sign with audio speaker (APS) V Lighting at pedestrian crossing ( if easy to break out of illumination system ) V Pedestrian lighting ✓ Crosswalk pavement markings and signage V ADA accessible curb ramps ✓ Roadway reconfiguration (road diets) (50% bicycle/50% pedestrian) V Raised crosswalk/intersection (50% bicycle/50% pedestrian) ✓ Curb extensions (bulb out) (50% bicycle/50% pedestrian) ✓ Refuge Islands WSDOT — Local Programs ITEM TITLE: SUBMITTED BY: BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. 6.K. For Meeting of: February 21, 2023 Resolution authorizing acceptance of a Washington State Department of Transportation Award for $750,000 for the Cowiche Canyon Trail Project 2430 Scott Schafer, Director of Public Works * Bill Preston, City Engineer - (509) 575-6754 SUMMARY EXPLANATION: In June of 2015, the State Legislature selected the Cowiche Canyon Trail project as one of the Tier 2 Pedestrian and Bicycle Safety projects as part of the Connecting Washington funding program in the amount of $2,000,000. In 2022, the State Legislature selected Yakima to receive an additional $750,000 award for the Cowiche Canyon Trail project 2430 as part of the Tier 2 Pedestrian & Bicycle 2022 Supplemental Transportation Budget. There is no required matching funds by the City with acceptance of the Award. The project will construct approximately 1 mile of trail and a pedestrian bridge over Cowiche Creek. The City of Yakima has completed the design and intends to advertise for construction bids by following the procedure established by WSDOT in the spring of 2023. ITEM BUDGETED: No STRATEGIC PRIORITY: Neighborhood and Community Building APPROVED FOR SUBMITTAL BY THE CITY MANAGER RECOMMENDATION: Adopt Resolution ATTACHMENTS: Description Upload Date 0 Resolutbn 2/3/2023 0 Award Letter 1/10/2023 Type Resoldon Backup Material AGREEMENT BETWEEN CITY OFYANDMA.WASH|NGTON AND J-g-B ENGINEERS, INC. FOR PROFESSIONAL SERVICES THIS AGREEMENT, made and entered into onthis __3 day of YN ,�U23.by and between the C�yofYakima, VVmehingUon.amunicipal uorporoUonwith its principal office at128North Second Streat, Ymhima, WA 98901. (hereinafter referred to as "CITY"), and J'W'B Engineers Inc, (hereinafter referred to as "ENGINEER"); said corporation being licensed and registered to do business in the State of Washington, and will provide engineering services for Conv|ohe Canyon Tmm|| —Phame 1 under this Agreement on behalf of the City of Yakima, herein referred to as the "PROJECT." WITNESSETH: RECITALS WHEREAS, CITY desires to retain the ENGINEER to provide engineering services for design and construction of the PROJECT, as described in this Agreement and subsequent Amendments thereto; and WHEREAS. ENGINEER represents that it has available and offers toprovide personnel with knowledge and experience necessary tusatisfactorily accomplish the work within the required time and that it has no conflicts of interest prohibited by law from entering into this Agreement; NOW, THEREFORE, CITY and ENGINEER agree aufollows: SECTION INCORPORATION OF RECITALS 1.1 The above recitals are incorporated into these operative provisions of the Agreement. SECTION SCOPE OFSERVICES 2.01 ENGINEER agrees hoperform those services described hereafter. Unless modified in writing by both panbem, duties of ENGINEER shall not be construed to exceed those services specifically set forth herein. 2.0.2 ENGINEER shall use its best efforts tumaintain continuity in personnel and shall onei0n. Richard Door, PE Program K8anegmp Senior as Phncipm|'in-Chmrgethroughout the term of this Agreement unless other personnel are approved by the CITY. 21 agrees to perform those tasks described hnExhibit A,entitled "Scope of Services" (WORK) which is attached hereto and made a part of this Agreement as if fully set forth herein. 2.2 Additional CITY and ENGINEER agree that not all WORK to be performed by ENGINEER can be defined in detail at the time this Agreement io exeoubed, and that additional WORK related to the Project and not covered in Exhibit may be needed during performance of this Agreement. CITY may, at any time, by written order, direct the ENGINEER to revise portions of the PROJECT WORK previously completed in aaoUsfaotory mannor, delete portions ofthe PROJECT, or request that the ENGINEER perform additional WORK beyond the scope of the PROJECT WORK. Such changes hereinafter shall bereferred toae"Additional Gon/iceo.^ 2.21 If such Additional Services cause an increase or decrease in the ENGINEER'S costof, or time required for, performance ofany services under this Agnaamant, a contract price and/or completion time adjustment pursuant to this Agreement shall be made and this Agreement shall be modified in writing and accepted by the parties hereto. 2.2.2 Compensation for each auch request for Additional Services shall be negotiated by the CITY and the ENGINEER according to the provisions set forth in Exhibit B, attached hereto and incorporated herein by this reference, and if so authorized, shall be considered part of the PROJECT WORK. The ENGINEER shall not perform any Additional Services until ao authorized byCITY and agreed tobythe ENGINEER inwriting. 33 The ENGINEER must assert any claim for adjustment in writing within thirty (30) days from the date ofthe ENG|NEER'mreceipt ofthe written notification nfchange. SECTION 3 TERM 31. The berm for this AGREEMENT shall be from the dmba of signature of both parties through December 31.2024. SECTION 4 C1TY`S RESPONSIBILITIES 41 CITY -FURNISHED DATA: The CITY will provide to the ENGINEER all technical data in the CITY'S puameooimn relating tothe ENGINEER'S services onthe PROJECT including information on any pre-existing conditions known to the CITY that constitute hazardous waste contamination on the PROJECT site aadetermined byonauthorized regulatory agency. 4.2 ACCESS TO FACILITIES AND PROPERTY: The CITY will make its facilities reasonably accessible to ENGINEER as required for ENGINEER'S performance of its services and will provide labor and safety equipment as reasonably required by ENGINEER for such access. 4.3 TIMELY REVIEW: The CITY will examine the ENGINEER'S studies, reports, sketches, drawings, specifications, proposals, and other documents; obtain advice of an attorney,insurance counselor, acoountmnt, auditor, bond and financial adviooro, and other consultants as CITY deems appropriate; and render in vvhUng decisions required of CITY in m Umna|y manner. Such examinations and dmniuions, however, shall not relieve the ENGINEER of any contractual obligations nor of its duty to render professional services meeting the standards of care applicable to its profession. 4.4 CITY ohm| appoint a C[[Y'S Representative with respect to WORK to be performed under this Agreement. C|TY'S Representative ahmU have complete authority bntransmit instructions and receive information. ENGINEER shall bnentitled hmreasonably rely onsuch instructions made by the C|TY'G Representative un|aao otherwise directed in writing by the CITY. but ENGINEER shall be responsible for bringing to the attention of the CITY'S Representative any instructions which the ENGINEER believes are inadequate, inuomp|etm, or inaccurate based upon the ENGINEER'S knowledge. 4.5 Any documents, ommican.ondnaportsprovidedbytheC|TY tnthe ENGINEER are available solely as additional information to the ENGINEER and will not relieve the ENGINEER of its professional duties and obligations under this Agreement or at law. The ENGINEER ehmU be entitled to reasonably rely upon the accuracy and the completeness of such documents, services and reports, but shall be responsible for exercising customary professional care in using and reviewing such documents, services, and reports and drawing conclusions from them. SECTION 5 AUTHORIZATION, PROGRESS, AND COMPLETION 51 |nsigning this Agreement, CITY grants ENGINEER specific authorization toproceed with WORK described in Exhibit A. The time for completion is defined in Exhibit A, or as amended. SECTION 6 COMPENSATION 61 COMPENSATION ONATIME SPENT BASIS ATSPECIFIC HOURLY RATES: For the services described inExhibit A.compensation shall beaccording boExhibit C' Schedule of Specific Hourly Rabya, attached hereto and incorporated herein by this refanenoa, on mtime spent basis plus reimbursement for direct non -salary expenses. 6.11 DIRECT NON -SALARY EXPENSES: Direct Non -Salary Expenses are those costs incurred on or directly for the PROJECT including, but not limited to, necessary transportation costs, including current rates for ENGINEER'S vehicles; meals and lodging; laboratory tests and analyses; phnUnQ, binding and reproduction charges; all costs associated with other outside nonprofessional oen/ioao and facilities; special CITY - requested and PROJECT -related insurance and performance warranty costs; and other similar costs. Reimbursement for Direct Non -Salary Expenses will be on the basis of actual charges plus m reasonable marhup, not tmexceed tan percent (1096). and on the basis of current rates when furnished by ENGINEER. Estimated Direct Non -Salary Expenses are shown in Exhibit B. 6111 Travel conts, including transportation, |od0ing, aubointenco, and incidental expenses incurred by employees of the ENGINEER and each of the Subnunuu|tonhminconnection with PROJECT WORK; provided, aefollows: ^ That maximum of U.S. INTERNAL REVENUE SERVICE allowed cents per mile will be paid for the npanaUon, mainbenanoe, and depreciation costs of company or individually owned vehicles for that portion of time they are used for PROJECT WORK. ENGINEER, whenever possible, will use the least expensive form ofground transportation. ° That reimbursement for meals inclusive of tips shall not exceed a maximum offorty dollars ($40) per day per person. This nobe may be adjusted onoyearly basis. ° That accommodation shall baotmreasonably priced hote|/mote|. ° That air travel ahm|| be by coach o|muo, and shall be used only when absolutely necessary. 6.1.2 Telephone charges, computer charges, in-house reproduction charges, first class postage, and FAX charges are not included in the direct expense costs, but are considered included in the Schedule of Specific Hourly Billing Rates. 6.1.3 Professional 8ubconoukant . Professional 8ubconaultmnts are those coats for engineering, ennhihenbuno. Qent»chnica| services and similar professional manvicao approved by the CITY. Reimbursement for Professional Subonneu|bonho will be on the basis of actual costs billed plus a reasonable markup, not to exceed ten percent (10%) for services provided tothe CITY through this Agreement. Estimated Subuonmu|tantcosts are shown in Exhibit B. 6.2 Un|ann specificallyauthorizedinvvhUngbytheCD-fthetobubudgabarymmuurdforthisPROJECT ohoU not exceed $26,008. The ENGINEER shall make all reasonable efforts hocomplete the WORK within the budget and will keep CITY informed of progress toward that end om that the budget or WORK effort can be adjusted if found necessary. The ENGINEER is not obligated to incur costs beyond the indicated budget, as may be adjusted, nor is the CITY obligated to pay the ENGINEER beyond these limits. When any budget has been increased, the ENGINEER'S excess costs expended prior to such inonymea will be allowable to the same extent on if such costs had been incurred after the approved increase, and provided that the City was informed in writing at the time such costs were incurred. 6.3 The ENGINEER shall submit hothe City's Representative oninvoice each month for payment for PROJECT services completed through the accounting out -off day of the previous month. Such invoices shall be for PROJECT services and WORK performed and costs incurred prior to the date ofthe invoice and not covered bypreviously submitted invoices. The ENGINEER shall submit with each invoice a summary of time expended on the PROJECT for the current billing period, copies ofmuboonau|tant invuiomu, and any other supporting materials and details determined necessary by the City to substantiate the costs incurred. CITY will use its beat efforts to pay such invoices within thirty (30) days of receipt and upon approval of the WORK done and amount billed. CITY will notify the ENGINEER promptly if any problems are noted with the invoice. CITY may question any item in an invoice, noting to ENGINEER the questionable item(s) and withholding payment for such item(s). The ENGINEER may resubmit such item(s) in a subsequent invoice together with additional supporting information requested. 6.4 If payment is not made within sixty (60) days following receipt of approved invoices, interest on the unpaid balance shall accrue beginning with the sixty-first (6159) day at the rate of 1.0% per month or the maximum interest rate permitted by law, whichever is less; provided, however, that no interest shall accrue pursuant to Chapter 39.76 RCW when before the date of timely payment a notice of dispute is issued in good faith by the CITY to the ENGINEER pursuant to the terms of RCW 39.76.020(4). 6.5 Final payment of any balance due the ENGINEER for PROJECT services will be made within forty- five (45) days after satisfactory completion of the services required by this Agreement as evidenced by CITY's written acceptance and after such audit or verification as CITY may deem necessary, together with ENGINEER's execution and delivery of a release of all known payment claims against CITY arising under or by virtue of this Agreement, other than such payment claims, if any, as may be specifically exempted by the ENGINEER from the operation of the release in stated amounts to be set forth therein. 6.6 Payment for any PROJECT services and WORK shall not constitute a waiver or release by CITY of any claims, right, or remedy it may have against the ENGINEER under this Agreement or by law, nor shall such payment constitute a waiver, remission, or discharge by CITY of any failure or fault of the ENGINEER to satisfactorily perform the PROJECT WORK as required under this Agreement. SECTION 7 RESPONSIBILITY OF ENGINEER 7.1 The ENGINEER shall be responsible for the professional quality, technical adequacy and accuracy, timely completion, and the coordination of all plans, designs, drawings, specifications, reports, and other services furnished by the ENGINEER under this Agreement. The ENGINEER shall, without additional compensation, correct or review any errors, omissions, or other deficiencies in its plans, designs, drawings, specifications, reports, and other services. The ENGINEER shall perform its WORK according to generally accepted civil engineering standards of care and consistent with achieving the PROJECT WORK within budget, on time, and in compliance with applicable laws, regulations, and permits. 7.2 CITY'S review or approval of, or payment for, any plans, drawings, designs, specifications, reports, and incidental WORK or services furnished hereunder shall not in any way relieve the ENGINEER of responsibility for the technical adequacy, completeness, or accuracy of its WORK and the PROJECT WORK. CITY'S review, approval, or payment for any of the services shall not be construed to operate as a waiver of any rights under this Agreement or at law or any cause of action arising out of the performance of this Ayreeriient. 7.3 In performing WORK and services hereunder, the ENGINEER and its subcontractors, subconsultants, employees, agents, and representatives shall be acting as independent contractors and shall not be deemed or construed to be employees or agents of CITY in any manner whatsoever. The ENGINEER shall not hold itself out as, nor claim to be, an officer or employee of CITY by reason hereof and shall not make any claim, demand, or application to or for any right or privilege applicable to an officer or employee of CITY. The ENGINEER shall be solely responsible for any claims for wages or compensation by ENGINEER's employees, agents, and representatives, including subconsultants and subcontractors, and shall save and hold CITY harmless therefrom. 7.4 INDEMNIFICATION AND HOLD HARMLESS: 7.4.1 ENGINEER shall take all necessary precautions in performing the WORK to prevent injury to persons or property. The ENGINEER agrees to release, indemnify, defend, and hold harmless the City, its elected and appointed officials, officers, employees, agents, representatives, insurers, attorneys, and volunteers from all liabilities, losses, damages, and expenses related to all claims, suits, arbitration actions, investigations, and regulatory or other governmental Page 4 proceedings arising from or in connection with this Agreement due to the negligent acts, failures to act, mnona or omissions of the ENG|NEER, or any of EN(S|NEER'm agent(s) or subcontractor(s), in performance of this Agreement, except for claims caused by the City's sole negligence. 7.4.2 Industrial Insurance Act Waiver. It is specifically and expressly understood that the ENGINEER waives any immunity that may be granted to it under the Washington State industrial insurance act. Tide 51 FlCVV, solely for the purposes of this indemnification. ENG|NEER'o indemnification shall not be limited in any way by any limitation on the amount of damages, compensation or benefits payable to or by any third party under workers' compensation acts, disability benefit acts orany other benefits acts orprograms. ENGINEER shall require that its subcontractors, and anyone directly or indirectly employed or hired by ENGINEER, and anyone for whose acts ENGINEER may be liable in connection with its performance of this Agreement, comply with the terms of this paragraph, waive any immunity granted under Title 51 RCVV.mnd assume all pm&anUa| liability for actions brought by their respective employees. The Parties acknowledge that they have mutually negotiated this waiver. 7.4.3 Should a court of competent jurisdiction determine that this Agreement is subject to RCVV 4.24.115, then, in the event ofliability for damages arising out ofbodily injury to persons or damages to property caused by or resulting from the concurrent negligence of the ENGINEER and the City. the ENG|NEER's |imbi|ih/, including the duty and cost to defand, oho|| be only to the extent of the ENG|NEER'o negligence. 7.4.4 Nothing contained in this Section or this Agreement uhm|| be construed to unoata a liability or right ofindemnification inany third party. 7.4.5 The terms of this Section shall survive any expiration or termination of this Agreement. 7.5 In any and all claims by an employee of the ENGINEER, any subcontractor, anyone directly or indirectly employed by any of them, or anyone for whose acts any of them may be |imb|e, the indemnification obligations under this Agreement ehmU not be limited in any way by any limitation on the amount or types of damages, compensation, or benefits payable by or for the ENGINEER or a subcontractor under workers' or workmens' compensation acts, disability benefit acts, or other employee benefit acts. The ENGINEER specifically and expressly waives its immunity under the Industrial Insurance /\nt. Title 51, R|CVV. Such waiver has been mutually negotiated by the ENGINEER and the CITY. 7.6 It is understood that any resident engineering or inspection provided by ENGINEER is for the purpose of determining compliance with the technical provisions of PROJECT specifications and does not constitute any form of guarantee or insurance with respect to the performance of contractor. ENGINEER does not assume responsibility for methods or appliances used by a contractor, for a contractor's safety programs or methods, or for contractors' compliance with laws and regulations. CITY shall use its best efforts to ensure that the construction contract requires that the contractor(s) indemnify and name CITY, the C|TY's and the ENG|NEER'o officero, prinoipo|a, emp|myueo, ogunta, nupnoaentaUveo, and engineers as additional insureds on contractor's insurance policies covering PR!OJECT, exclusive of insurance for ENGINEER professional liability. 77 ENGINEER shall be mu|a|y responsible for and shall pay all toxes, dmducUonm, and ausaoomenbo, including but not limited to fodano| income tax. F|CA, social security tmx, assessments for unemployment and industrial injury insunsnce, and other deductions from income which may be required by law or a0000med against either party as m result of this Agreement. In the event the City is assessed a tax or assessment as a result of this Agreement, ENGINEER shall pay the same before itbecomes due. 7.8 SUBSURFACE INVESTIGATIONS: In moi|m. foundadon. groundwater, and other subsurface investigations, the actual characteristics may vary significantly between successive test points and sample inhenm|o and at locations other than xvhono observotimn, axp|onaUpn, and investigations have been made. Because of the inherent uncertainties insubsurface evaluations, changed or unanticipated underground conditions may occur that could affect total PROJECT cost and/or execution. Theme conditions and cost/execution effects are not the responsibility of the ENGINEER, to the extent that ENGINEER has exercised the applicable and appropriate standard of professional care, thoroughness and judgment in performing such investigations. SECTION 8 PROJECT SCHEDULE AND BUDGET 81 The general PROJECT schedule and the budget for both the entire PROJECT and its component tasks shall be as set forth in this Agreement and attached Exhibits. The project schedule and performance dates for the individual tasks shall be mutually agreed to by the CITY and the ENGINEER within fifteen (15)days after execution ofthis Agreement. The performance dates and budgets for tasks may be modified only upon written agreement of the parties hereto. The performance date for tasks and the completion date for the entire PROJECT shall not be extended, nor the budget increased because of any unwarranted delays attributable to the ENG|NEER, but may be extended or increased by the CITY in the event of delay caused by special services requested by the CITY or because of unavoidable delay caused by any governmental motion or other conditions beyond the control of the ENGINEER which could not be reasonably anticipated or avoided. 8.2 Not later than the tenth (1 01h) day of each calendar month during the performance of the PROJECT, the ENGINEER ohnU submit to the C|TY'o Representative a copy of the current schedule and a written narrative description of the WORK accomplished by the ENGINEER and subconsultants on each task, indicating agood faith estimate mf the percentage completion thereof nnthe last day of the previous month. Additional oral or written reports shall be prepared at the CITY's request for presentation toother governmental agencies and/or hothe public. SECTION 9 REUSE OF DOCUMENTS 91 All internal WORK products ofthe ENGINEER are instruments nrservices ofthis PROJECT. Thera shall be no reusa, chmnQa, or mkoraUun by the CITY or others acting through or on behalf cfthe CITY without written permission of the ENGINEER, which shall not be unreasonably withheld and will be at the C|TY'o ou|a risk. The CITY agrees to indemnify the ENGINEER and its nffioena, employees, subcontractors, and affiliated corporations from all claims, damages, losses, and costs including, but not limited to, litigation expenses and attorney's fees arising out of or related to such unauthorized nsuaa, nhonge, or alteration; proxded, however. that the ENGINEER will not be indemnified for such claims, damages, |oameo, and costs including, without limitation, litigation expenses and oMnnnay fees ifthey were caused by the EN(3|NEERys own negligent acts or omissions. 9.2 The ENGINEER agrees that any and all planm, drawingn, deoigna, opeuifioaUons, computer pn»gnamm, technical nepoda, operating manua|o, ca|uu|oUmna, nwteo, and other WORK submitted or which are specified to be delivered under this Agreement or which are developed or produced and paid for under this Agreement, whether or not complete, shall be owned by and vested in the 8.3 All rights to potento, trademarks, copyrights, and trade secrets owned by ENGINEER (hereinafter "Intellectual Prmperty^)anwell aoany modifications, updates orenhancements to said Intellectual Property during the performance of the WORK remain the property of ENGINEER, and ENGINEER does noigrant CITY any right nrlicense tosuch Intellectual Property. SECTION10 AUDIT AND ACCESS TO RECORDS 101 The ENGINEER, including its subconsultants, shall maintain books, records, documents and other evidence directly pertinent to performance of the WORK under this Agreement in accordance with generally accepted accounting principles and practices consistently applied. The CITY, or the C|TY'sduly authorized nepneoentativa, shall have access husuch booho, reconda, dooumante, and other evidence for inspection, audit, and copying for a period of three years after completion of the PROJECT. The CITY shall also have access tosuch booho, neoonds, and documents during the performance of the PROJECT WORK, if deemed necessary by the CITY, to verify the ENGINEER's WORK and invoices. 10.2 Audits conducted pursuant to this section shall be in accordance with generally accepted auditing 10.3 The ENGINEER agrees bmthe disclosure mfall information and reports resulting from access to records pursuant bothis section provided that the ENGINEER is afforded the opportunity for an audit exit conference and an opportunity to comment and submit any supporting documentation on the pertinent portions of the draftaudit reportand thatthefinal auditreportwill include ENGINEER's written comments, ifany. 10'4 The ENGINEER shall ensure that the foregoing paragraphs are included in each subcontract for WORK on the Project. 10.5 Any charges of the ENGINEER paid bythe CITY which are found bymnaudit to be inadequately substantiated shall be reimbursed to the CITY. SECTION11 INSURANCE 111 At all times during performance of the WORK or obligations under this AQneemert. ENGINEER shall secure and maintain in effect insurance to protect the CITY and the ENGINEER from and against all claims, damages, losses, and expenses arising out of or resulting from the performance ofthis Agreement. ENGINEER shall provide and maintain in force insurance in limits no less than those stated be|oxv, as applicable. The CITY reserves the right to require higher limits should it daann it necessary in the best interest of the public. If ENGINEER carries higher coverage limits than the limits stated below, such higher limits shall be shown on the Certificate of Insurance and Endorsements and ENGINEER ehm|( be named as an additional insured for such higher limits. Failure by the City to demand such verification of coverage with these insurance requirements or failure of the City to identify a deficiency from the insurance documentation provided shall not be construed as a waiver of ENG|NEER's obligation to maintain such insurance. ENG|NEER'n insurance coverage shall be primary insurance with respect to those who are Additional Insureds under this Agreement. Any inmununcm, self-insurance or insurance pool coverage maintained by the City nho|| be in axcaae of the ENG|NEER'o insurance and neither the City nor its insurance providers shall contribute to any mett|ementa, defense comho, or other payments made by ENG|NEER'minounonoe. Commercial General Liability Insurance. Before this Agreement is fully executed bythe parties, ENGINEER shall provide the CITY with acertificate of insurance as proof nfcommercial liability insurance and commercial umbrella liability insurance with a total liability limit of the limits required in the pn|ioy, subject to minimum limits of Two Million Dollars ($2,000,000.00) per occurrence combined single limit bodily injury and property damage, and Two Million Dollars ($2.000.000.00)genena| aggregate. The certificate shall clearly state who the provider is, the coverage amount, the policy number, and when the policy and provisions provided are in effect. Said policy shall be in effect for the duration of this Agreement. The policy shall name the C|T^f, its elected and appointed officials, officers, agents, employees, and volunteers as additional insureds. The insured shall not cancel or change the insurance without first giving the CITY thirty (30) calendar days prior written notice. The insurance shall be with an insurance company orcompanies noted A'V|| orhigher in Baat's Guide and admitted inthe State ofWashington. 11.1.2. Commercial Automobile Liability Insurance. ` a. If ENGINEER owns any vmhio|au, before this Agreement is fully executed by the parUee. ENGINEER shall provide the CITY with o certificate of insurance as proof of owmmonuia| automobile liability insurance and commercial umbrella liability insurance with a total liability limit of the limits required in the pm|ioy, subject to minimum limits of Two Million OoUmrm ($2.000.000.00) per occurrence combined single limit bodily injury and property damage. Automobile liability will apply hn"Any Auto" and beshown onthe b. If ENGINEER does not own any vehicles, only "Non -owned and Hired Automobile same limits as required in that section of this Agreement, which is Section 10.1.1 entitled "Commercial General Liability Insurance". C. Under either situation described above in Section 10.1.2.a. and Section 10.1.2.b., the required certificate of insurance shall clearly state who the provider is, the coverage amnount, the policy number, and when the policy and provisions provided are in effect. Said policy shall baineffect for the duration ofthis Agreement. The policy shall name the C|TY, its elected and appointed offioia|o, officeru, agonto, emp|oyeao, and volunteers aaadditional insureds. The insured shall not cancel orchange the insurance without first giving the CITY thirty (30) calendar days prior written notice. The insurance shall be with an insurance company or companies rated A-VII or higher in Best's Guide and admitted inthe State ofWashington. 11.1.3^ Statutory workers' compensation and employer's liability insurance as required by state 11.1.4, Professional Liability Coverage. Before this Contract iafully executed bythe parties, ENGINEER shall provide the City with a certificate of insurance as proof of professional liability coverage with o btm| liability limit of the limits required in the po|ioy, subject to minimum limits of Two Million Dollars ($2,000,000.00) per claim, and Two Million Dollars ($2.00.00.00)aggregate. The certificate shall clearly state who the provider is, the coverage amount, the policy number, and when the policy and provisions provided are in effect. Said policy shall baineffect for the duration ofthis Contract. The insured shall not cancel orchange the insurance without first giving the CITY thirty (3O)calendar days prior written notice. The insurance ohmU be with on insurance company orcompanies rated A-V|| or higher in Bemt'o Guide. If the policy in written on m claims made basis the coverage will continue in force for an additional two yamne after the completion of this contract. Fo|una of either or all of the additional insureds to report a claim under such insurance ahoU not prejudice the rights of the C|TY, its elected and appointed offioim|o, officers, employees, agents, and representatives there under. The CITY and the C|TY'oelected and appointed officials, officers, principals, employees, representatives, and agents shall have no obligation for payment ofpremiums because of being named as additional insureds under such insurance. None ofthe policies issued pursuant tnthe requirements contained herein shall be cmnca|ad, allowed to expire, or changed in any manner that affects the rights of the CITY until thirty (30) days after written notice to the CITY of such intended cancellation, expiration orchange. 11.2 If at any time during the life of the Agreement, or any extension, ENGINEER fails to maintain the required insurance in full force and afeat, all work under the Agreement shall be discontinued immediately. Any failure to maintain the required insurance may be sufficient cause for the City to terminate the Agreement. SECTION 12 SUBCONTRACTS 121 ENGINEER shall be entitled, to the extent determined appropriate by ENGINEER, to subcontract any portion of the WORK to be performed under this Agreement. However. ENGINEER shall be considered the Prime Contractor hereunder and shall be the sole point of contact with regard to all contractual matters arising hmnmunder, including the performance of WORK and payment of any and all charges resulting from contractual obligations. 12.2 Any subconsultants or subcontractors to the ENGINEER utilized on this PROJECT, including any substitutions thereof, will be subject to prior approval by C|TY, which approval shall not be unreasonably withheld. Each subcontract shall besubject horeview bythe C|TY'oRepresentative, if requested, prior to the subconsultant or subcontractor proceeding with the WORK. Such review shall not constitute an approval as to the legal form or content of such subcontract. The ENGINEER shall be responsible for the architectural and engineering pmrfnrmanua, acto, and omissions of all persons and firms performing subcontract WORK. 12.3 CITY does not anticipate ENGINEER subcontracting with any additional persons or firms for the purpose of completing this Agreement. 12.4 The ENGINEER shall submit, along with its monthly invoices, a description of all WORK completed by euboonaubonto and subcontractors during the preceding month and copies of all invoices thereto. 12.5 If dissatisfied with the baok0ruund, perfmnnmnoe, and/or general methodologies of any subcontractor, the City may request inwriting that the subcontractor beremoved. TheENG|NEER shall comply with this request at once and shall not employ the subcontractor for any further WORK under this Agreement. SECTION 13 ASSIGNMENT 131 This Agreement is binding on the heira, successors and assigns of the parties hereto. This Agreement may not be assigned by CITY or ENGINEER without prior written consent of the other, which consent will not baunreasonably withheld. The ENGINEER for itself and its heirs, executors, adminiotrmtons, aucoaauono and ammiQno, does hereby agree to the full performance of all of the covenants herein contained upon the part ofthe ENGINEER. |tioexpressly intended and agreed that no third party beneficiaries are created bythis Agreement, and that the rights and remedies provided herein shall inure only tothe benefit of the parties tothis Agreement. SECTION14 INTEGRATION 141 This Agreement represents the entire understanding ofCITY and ENGINEER mnhothose matters contained herein. No prior oral or written understanding shall be of any force or effect with respect bnthose matters covered herein. This Agreement may not bemodified oraltered except inwriting signed by both parties. SECTION 15 JURISDICTION AND VENUE 151 This Agreement shall be administered and interpreted under the |mvva of the State of Washington. Jurisdiction of litigation arising from this Agreement shall be in Washington State. If any part of this Agreement iofound to conflict with applicable |awm, such part shall be inoporadiv*, null, and void insofar as it conflicts with said laws, but the remainder of this Agreement shall be in full force and effect. Venue for all disputes arising under this Agreement shall lie in a court of competent jurisdiction inYakima County, Washington. SECTION 16 EQUAL EMPLOYMENT and NONDISCRIMINATION 161 During the performance of this Agramment. ENGINEER and ENG|NEER's nuboonaultonts and subcontractors shall not discriminate in violation of any applicable federal, state and/or local law or regulation on the basis of agm, aex, race, oreed, re|igion, color, national ohQin, mohba| sbubun, disobi|ib/, honorably discharged veteran or military atahuo, pnegnancy, sexual ohmntadion, and any other classification protected under federal, state, orlocal law. This provision shall include but not be limited to the following: amp|oymmnt, upgnading, demoUon, tnonsfer, recruitment. advertising, layoff ortermination, rates nfpay orother forms of compensation, selection for training, and the provision of services under this Agreement. ENGINEER agrees to comply with the applicable provisions of State and Federal Equal Employment Opportunity and Nondiscrimination statutes and regulations. SECTION 17 SUSPENSION OF WORK 171 CITY may suspend, in writing by certified mail, all or a portion of the WORK under this Agreement if unforeseen circumstances beyond C|TY'n control are interfering with normal pruArmno of the WORK. ENGINEER may suspend, in writing by certified mail, all or a portion of the WORK under this Agreement if unforeseen circumstances beyond ENG|NEERys onnbo| are interfering with normal progress ofthe WORK. ENGINEER may suspend WORK onthe PROJECT inthe event CITY does not pay invoices when due, except where otherwise provided by this Agreement. The time for completion ofthe WORK shall boextended bythe number ofdays WORK is suspended. If the period of suspension exceeds ninety (90) days, the terms of this Agreement are subject to renegotiation, and both parties are granted the option to terminate WORK on the suspended portion of Project in accordance with SECTION 17. SECTION 18 TERMINATION OFWORK 181 Either party may terminate this Agreement, in whole or in part, if the other party materially breaches its obligations under this Agreement and is in default through no fault of the terminating party. Howaver, nosuch termination may beeffected unless the other party iagiven: (1) not less than fifteen (15) calendar days written notice delivered by certified moi|, return receipt requested, of intent to terminate; and (2) an opportunity for consultation and for cure with the terminating party before termination. Notice uho|| be considered issued within seventy-two (72) hours ofmailing by certified mail to the place of business of either party as set forth in this Agreement. 18.2 In addition to termination under subsection 17.1 of this Section, CITY may terminate this Agreement for its convenience, inwhole nrinpart, provided the ENGINEER iogiven: (1)not less than fifteen (15) calendar days written notice delivered by certified mai|, return receipt naquaatad, of intent to terminate; and (2) on opportunity for consultation with CITY before the effective termination date. 18.3 If CITY terminates for default on the port of the ENGINEER, an adjustment in the contract price pursuant to the Agreement shall be made, but (1) no amount shall be allowed for anticipated profit on unperformed services or other WORK, and (2) any payment due to the ENGINEER at the time of termination may be adjusted to the extent of any additional costs or damages CITY has incurred, or is likely to inour, because of the ENGINEER'S breach. In such event. CITY shall consider the amount of WORK originally required which was satisfactorily completed to date of tennination, whether that WORK is in a form orofo h/pa which is usable and suitable to CITY at the data of termination and the cost to CITY of completing the VVC)RK itself or of employing another firm to complete it. Under no circumstances shall payments made under this provision exceed the contract price. In the event of default, the ENGINEER agrees to pay CITY for any and all damages, costs, and expenses whether directly, indirectly, or consequentially caused by said default. This provision shall not preclude CITY from filing claims and/or commencing litigation to secure compensation for damages incurred beyond that covered by contract retainage or other withheld payments. 18/4 If the ENGINEER terminates for default onthe part ofCITY orif CITY terminates for convenience, the adjustment pursuant to the Agreement shall include payment for services eaUmfautuh|y pedbnnod to the date of termination, in addition to termination settlement costs the ENGINEER reasonably incurs relating tocommitments which had become firm before the termination, unless CITY determines hoassume said commitments. 18.6 Upon receipt ofatermination notice under subsections 171 or17.2above, the ENGINEER shall (1) promptly discontinue all services affected (unless the notice directs otherwise), and (2) deliver or otherwise make available to CITY all originals of data, dnavvinAa, opeuiDoaUona, ou|uu|aUona, napodo, amtimahea, mummoheo, and such other informetion, dooumanta, and materials as the ENGINEER or its subconsultants may have accumulated or prepared in performing this Agreement, whether completed or in progress, with the ENGINEER retaining copies of the same. 18]6 Upon termination under any subparagraph above, CITY reserves the right to prosecute the WORK to completion utilizing other qualified firms or individuals; provided, the ENGINEER shall have no responsibility to prosecute further WORK thereon. 187 If, after termination for failure of the ENGINEER to fulfill contractual obiQadono, it is determined that the ENGINEER has not uofailed, the termination shall be deemed to have been effected for the convenience of CITY. In such avant, the adjustment pursuant to the Agreement uhmU be determined aoset forth insubparagraph 17.4ofthis Section. 18.8 If, because of death, unavailability or any other occurrence, it becomes impossible for any key personnel employed by the ENGINEER in PROJECT WORK or for any corporate officer of the ENGINEER to render his services tothe PROJECT. the ENGINEER shall not be relieved of its approval ofCITY. If CITY agrees to termination of this Agreement under this provision, payment shall be made as set forth in subparagraph 17.3 of this Section. SECTION 19 DISPUTE RESOLUTION 191 In the event that any dispute shall arise as to the interpretation or performance of this Agreement, or in the event of notice of default as to whether such default does constitute m breach of the contract, and if the parties hereto cannot mutually settle such differences, then the parties shall first pursue mediation aommeans hmresolve the dispute. |fneither ofthe afore mentioned methods are muoommwfu| then any dispute relating to this Agreement mhoU be decided in the courts of Yakima Counb/, in accordance with SECTION 14. If both parties consent in vxhUng, other available means ofdispute resolution may boimplemented. SECTION 20 NOTICE 201 Any notice required to begiven under the terms of this Agreement shall bedirected to the party at the address set forth below. Notice shall boconsidered issued and effective upon receipt thereof by the addressee -party, or seventy-two (72) hours after mailing by certified mail to the place of business set forth below, whichever imearlier. CITY City ofYakima 1%9N2ndStreet Yakima, VVA889U1 Attn: Bill Preston ENGINEER: J-0-113 Engineers, Inc 3611 South Zinte|Way Kennewick, WA 99337 Attn: Rick Door SECTION 21 INSPECTION AND PRODUCTION OF RECORDS 211 All records in all formats relating to the WORK ehmU. at all Umeo, be subject to inspection by and with the approval of the City, but the making of (or failure or delay in making) such inspection or approval shall not relieve ENGINEER of responsibility for performance of the WORK in accordance with this Agnaament, notwithstanding the City'e hnmvv|edga of defective or non -complying performmnca, its substantiality orthe ease of its discovery. ENGINEER shall provide the City euffioiant, omha, and proper facilities, and/or mend copies of the requested documents to the City. ENGINEER's records relating to the WORK will be provided to the City upon the City's request. 21.2 ENGINEER shall promptly furnish the City with such information and records which are related to the WORK ofthis Agreement aamay barequested bythe City. Until the expiration wfsix (8)years after final payment of the compensation payable under this A0neennent, or for m longer period if required by law ur by the Washington Secretary mfStmhu'o record retention mohedu|e. ENGINEER shall retain and provide the City access to (and the City shall have the right to examine, audit and copy) all ofENG|NEER'a buohu, documents, papers and records which one related hmthe WORK performed by ENGINEER under this Agreement. Prior electronic format and/or destroyinq any records, ENGINEER shall contact CITY's Records Administrator (509-575-6037) to discuss retention. In no event shall any --record relating to the WORK be destroyed without CITY consultation. 21.3 All naourdm relating to ENG|NEER'o marvioam under this Agreement must be made available to the City, and the records relating tothe WORK are City ofYakima records. They must beproduced to third parties, if required pursuant to the Washington State Public Records Act, Chapter 42.56 RCW, orbylaw. All records relating to ENGINEER's services under this Agreement must be retained by ENGINEER for the minimum period of time required pursuant to the Washington Secretary of State's records retention schedule. Puue11 21.4 The terms of this section shall survive any expiration or termination of this Agreement. SECTION 22 COMPLIANCE WITH THE LAW 221 ENGINEER agrees to perform all WORK under and pursuant to this Agreement in full compliance with any and all applicable |owm, ru|am, and regulations adopted or promulgated by any governmental agency or regulatory bndy, whether federal, ntobo. |ocm|, or otherwise, including policies adopted by the City. as those |mvva, ondinannas, ru|em, nngu|mUono, and policies now exist or may hereafter be amended or enacted. ENGINEER shall procure and have all applicable and necessary permits, licenses and approvals of any fedanm|, state, and local government or governmental authority or this project, pay all charges and fees, and give all notices necessary and incidental tothe due and lawful execution ofthe work. 22.2 ENGINEER ahm| procure and have all applicable and necessary pmnnito. |ioanaee and approvals of any federal, state, and local government or governmental authority or this project, pay all charges and fees, and give all notices necessary and incidental to the due and lawful execution of the work. 22.21 Procurement of City Business License. ENGINEER must procure a City of Yakima Business License and pay all charges, fees, and taxes associated with said license. 22.2.2 ENGINEER must provide proof of a valid Washington department of Revenue state excise tax registration number, as required in Title 85 RCVV. 22.2.3 ENGINEER must provide proof of a valid Washington Unified Business Identification (UBI) number. ENGINEER must have ocurrent UQ|number and not bodisqualified from bidding on any public works contract under RCW 39.06.101 or 36.12.065(3). 32.2.4 ENGINEER must provide proof ofm valid Washington Employment Security Department number as required by Title 50 RCW. 23.2.5 Although the City does not require foreign corporate proposers to qualify in the Cih/. County or State prior to submitting a prwpmoa|, it is specifically understood and agreed that any such corporation will promptly take all necessary maoounem to become authorized to conduct business in the City of Yakima, at their own expanme, without regard tuwhether such corporation is actually ovvondod the oontnaot, and in the event that the avvond is made, prior to conducting any business in the SECTION 23 MISCELLANEOUS PROVISIONS 23.1 Nondiscrimination. During the performance ofthis Agreement, the ENGINEER agrees aofollows: The ENGINEER shall not discriminate against any person on the grounds of race, onaed, ow|or, noUQion, national ohgin, nax, oga, marital otatuo, sexual uhentmtion, gender identity, pnognmnoy, veteran's otatuo, political affiliation or belief, or the presence of any oanaory, mental or physical handicap in violation of the Washington State Law Against Discrimination (RCW chapter 49.60) or the Americans with Disabilities Act (42UQC121O1otueq.). This provision shall include but not bo limited to the following: employment, upgrading, demotion, transfer, recruitment, advertising, layoff or termination, rates of pay or other forms of compensation, selection for training, and the provision of WORK under this Agreement. In the event of the ENG|NEER'm noncompliance with the non- discrimination clause of this contract or with any such rules, regulations, or orders, this Agreement may be nmnca||ad, berminmtmd, or suspended in xvho|a or in part and the ENGINEER may be declared ineligible for any future City contracts. 23.2 Pay transparency nondiscrimination. The ENGINEER will not discharge or in any other manner discriminate against employees nrapplicants because they have inquired about, dianuooed, or disclosed their own pay or the pay of another employee or applicant. Hmwever, employees who essential job functions cannot disclose the pay of other employees or applicants to individuals who do not otherwise have access to compensation information, unless the disclosure is (a) in response to a formal complaint or charge, (b) in furtherance of an inveatigedon, proceeding, heahng, or action, including an investigation conducted by the employer, or (c) consistent with the contractor's |eQo| duty tmfurnish information. 23.3 Geverabi|hy. If any term or condition of this Agreement or the application thereof to any person(s) or circumstances is held inva|id, such invalidity shall not affect other tanns, conditions or applications which can be given effect without the invalid b*nn, condition or application. To this end, the terms and conditions ofthis Agreement are declared severable. 23.4 Agreement documents. ThiaAgreemard.dhmRequeotforC)ua|ificmUone&Propooa|mNo.N/A.UUmd N/A Scope of Work, nondUUono, addenda, and modifications and ENG|NEEP[o proposal (to the extent consistent with Yakima City documents) constitute the Agreement Documents and are complementary. Specific Federal and State |mxvo and the terms of this AQnaomnant, in that order respectively, supersede other inconsistent provisions. These Agreement Documents are on file in the Office of the Purchasing Manager, 129 No. 2": SL, Yakima, VVA. 88901. and are hereby incorporated by reference into this Agreement. 23.6 Notice of change in financial condition. If, during this Agreement, the ENGINEER experiences m change in its financial condition that may affect its ability to podbmo under the Agreement, or experiences a change of ownership or control, the ENGINEER shall immediately notify the City in writing. Failure to notify the City of such a change in financial condition or change of ownership or control shall bosufficient grounds for termination. 23.6 Noconflicts ofinterest. ENGINEER represents that itorits employees donot have any interest and shall not hereafter acquire any interest, direct orindirect, which would conflict inany manner or dagnan with the performance of this Agreement. ENGINEER further covenants that it will not hire anyone or any entity having such o conflict of interest during the performance of this Agreement. 23.7 Promotional advertising prohibited. Reference to or use of the City, any of its departments, agencies orother subunits, nrany official oremployee for commercial promotion is prohibited. News releases pertaining to this procurement shall not be made without prior approval of the City. Release of broadcast emails pertaining to this procurement shall not be made without prior written authorization of the City. 23.8 Time ioofthe essence. Timely provision ufthe WORK required under this Agreement shall beof the essence of the Agreement, including the provision of the WORK within the time agreed or on a date specified herein. 23.9 Waiver of breach. Awaiver byeither party hereto ofobreach ofthe other party hereto of any covenant or condition of this Agreement shall not impair the right of the party not in default to avail itself ofany subsequent breach thereof. Lanienoy, delay or failure of either party to insist upon strict performance of any agreement, covenant or condition of this Agreement, or to exercise any right herein given in any one or more inetonoeo, shall not be construed as a waiver or relinquishment ofany such agreement, covenant, condition mrright. 2310 Force Mamure. ENGINEER will not be responsible for delays in delivery due to acts of God, firo, strikes, riots, delay in transportation, or those effects of epidemics or pandernics that could not have been reasonably mnboipmhad or mitigated through acts of the ENGINEER; provided ENGINEER notifies the City immediately in writing of such pending or actual delay. Normally in the event of such delays, the date of delivery of WORK will be extended for a period of time equal to the time lost due to the reason for delay. 2311 Authority. The person executing this Agreement on behalf of ENGINEER represents and warrants that they have been fully authorized by ENGINEER to execute this Agreement on its behalf and to legally bind ENGINEER to all terms, performances, and provisions of this Agreement. 2312 Survival. The foregoing sections of this Agreamerd, induaiva, shall survive the expiration or IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective authorized officers or representatives as of the day and year first above written. CITY F YAKIMA J-U-B ENGINEERS, INC Bob Harrison Printed Name:. be ict Title: City Manager Date: Attest City Cler Resolution: R-2023- O ( Contract 2023- C7r2 a re-r-s A tSEAL Printed Name: Richard Door Title: Date: Program Manager - Senior Page 14 STATE OFVVASH|N8TON COUNTY OF YAKIMA I certify that I know or have satisfactory evidence that Bob Harrison is the person who appeared before me, and said person acknowledged that hesigned this instrument, on oath stated that hawas authorized to execute the instrument, and acknowledged it as the CITY MANAGER of the CITY OF YAK|yWA, to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. Dated: ~- Seal or Stamp � � (Signature) � ��� Title �`Anted Nam( Mycommission expires: � STATE OFVVASH|NGTON )en. COUNTY OF BENTON | certify that | know orhave satisfactory evidence that Richard Door � is the person who appeared before me, and said person acknowledged that he/she oignoddhioinotrument,onoathototedthsd he/she was authorized to execute the instrument, and acknowledged it as the — PROGRAM MANAGER - SENIOR— of —J-U-B ENGINEERS, INC— to be the free and voluntary act of such party for the uses and purposes mentioned inthe instrument. Dated: (D / / /l Seal or Stamp EXHIBIT A SCOPE OF WORK See Attached Scope of Services Page 16 J-11.eENGINEERS, INC. J-U-B ENGINEERS, Inc. Exhibit A — Scope of Services PROJECT NAME: CowichoConynnTrail — Phase 1 � CLIENT: City of Yakima J-W-B PROJECT NUMBER: 07-22-004 CLIENT PROJECT NUMBER: 2430 PART 1-PROJECT UNDERSTANDING J-U-B's understanding of this project's history and CLIENT's general intent and scope of the projectare described osfollows: The City of Yakima intends to advertise for construction the Cowiche Canyon Trail — Phase 1 project. Whereas, J-U-B provided the pedestrian bridge design and is the Engineer of Record for that portion of the project. The CLIENT wishes to enter into an agreement for engineering support during construction. Full time construction management will be provided by the City of Yakima while J-U-B will provide on -call services as requested for answering bidder questions and assisting the City in addendum preparation and needed. During construction J-U-B will respond to Requests for Information (RFI) and review submittals as requested bythe City. PART 3-SCOPE OF SERVICES BYJ-0-B J-U-B's Services under this Agreement are limited to the following tasks. Any other items necessary to plan and implement the project, including but not limited to those specifically listed in PART 3, are the responsibility ofCLIENT. A. Task 010: Project Management 1. Set up project into J-U-B's financial and record keeping systems for document retention and project controls. 2. Regularly monitor project otatum.budgatandonhedu|a. 3. Attend client meetings as requested or needed to report assigned task status. 4. During periods ofproject activity, provide a regular report bo CLIENT on project status, budget and schedule. 5. Provide a monthly invoice including budget status. 6. Provide ongoing document handling and filing. o. Assumptions: i Smonths ofProject Management ii NoaubconouKanbsare provided b. Deliverables: i. Invoices with Status and Budget Tracking B. Tmmk020: Bidding Phase Services 1. The CLIENT will lead bid phase services. J-U-B will provide on call support services which may include responding to bidder's questions; providing comments to the addenda developed by the CLIENT; and attending the bid opening (remotely) led by the CLIENT. J'U'8 will review the bids and provide recommendation if requested by the CLIENT. City will have their Council review the bids prior to award. a. Assumptions: uU-13 Agreement for Professional Services i It is assumed that the CLIENT will advertise and provide bidding administration including notice of award documentation, gathering of insurance and bonding certificates, and notice bnproceed documents. ii. CLIENT will prepare addenda. J-U-B will provide support to items related to the pedestrian bridge. iii Nopre-bid meeting b. CLIENT will beresponsible for advertisements. o. Deliverables: i. Addenda assistance as necessary. C. Task 030: Pneommmtruc0on8MmeUng 1. J-U-B shall prepare as needed and attend the preconstruction meeting. It is anticipated that no out of town travel will be needed and the meeting will likely be remote due to COVID restrictions. J-U-B will have representative Engineer of Record staff available for the preconstruction meeting and tmfollow upwith any resulting issues orrequests. o. Assumptions: i J'U-BEngineers attendance representing the bridge design components. O. Task 040: Site Visits 1. For this task, J'U-8xiU: e. Aorequested byCLIENT, J'U-Bwill visit the site with CLIENT toevaluate any apparent defects in work, boassist in dorifinoUonn and interpretations, field ordero, orchange orders. b. Assumptions: i. For budget purposes assume (1)site visit byJ'U-8staff. c Deliverables: i. Observation Daily Report if requested by CLIENT E. Task 050: Request For Information and Submittal Review 1. J-U-B will respond to RFI's by the contractor, review contractor submittals and shop drawings as assigned bythe CLIENT. a. Assumptions: i For budget purposes assume Nine Submittal reviews and up to 40 hours for RFI's. b. Deliverables: i. Follow up responses via email F. Task 060: Change Orders and Work Change Directives 1. Anrequested byCLIENT, J'U'Bwill assist inevaluation ofChange Orders. m. Assumptions: i For budget purposes a monetary estimate is assumed and will be supplemented as needed. b. Deliverables: i. Documented evaluation as requested by CLIENT. G. Task 070:Project Closeout 1. Prepare record drawings, ifnecessary. o. The record drawings will be prepared based on information gathered during field observations aswell aainformation provided byothers. The accuracy mrcompleteness of information provided byothers will not beverified byJ'U'B. b If the record drawings will be a public record, J-U-B will grant the public entity with jurisdiction the right to copy and disseminate the hard copy or digital image to those who legitimately request the information inwriting. Any release, use, mrreuse bythe public entity, any J-m Agreement for Professional Services individual, or organization, shall be at the public entity's, individual's, and/or organization's sole risk and without liability orlegal exposure boJ'U'B. n. Any seals of the registrants included on the record drawings will represent that the drafting of the record drawing information was completed by staff under the registrants' responsible charge. 2. Archive paper and electronic files and records. 3. Communicate the project completion to CLIENT and other affected agencies and stakeholders, as required. 4. Close financial billing and accounting records in J-1-1-13's financial and record -keeping systems. PART 3-CLIENT-PROVIDED WORK AND ADDITIONAL SERVICES ' A. CLIENT -Provided Work ' CLIENT is responsible for completing, or authorizing others to uomp|ote, all tasks not specifically included above in PART 2 that may be required for the project including, but not limited to: 1. Construction Management 2. Permits Approvals and Coordination 3. Inspections and Resident Project Representative 4. Material Testing 5. Construction Surveying (]C 0. Construction Documentation and Funding Agency Coordination B. Additional Services -CLIENT reserves the right to add future tasks for subsequent phases or related work to the scope of services upon mutual agreement of scope, additional fees, and schedule. These future tasks, to be added by amendment at a later date as Additional Services, may include: 1. Assisting CLIENT with audit reviews and requests for design documentation, PART 4: BASIS OF FEE AND SCHEDULE OF SERVICES C. CLIENT shall pay J-U'Bfor the identified Services inPART 2mafollows: 1. For Time and Materials fees: a. For all services performed on the project, Client shall pay J-U-13 an amount equal to the cumu|aUvehounonhargedbothePnojectbyeanhc|oseofJ'U'8'oparoonne|Umaaroteohnm the table in Exhibit C — Schedule of Specific Hourly Rates b. Client shall pay J-U'Bfor Reimbursable Expenses times omultiplier of1.1 c. Client shall pay J-U-B for J-U-13's Consultants' charges times a multiplier of 1.1. 2. J-U-13 may alter the distribution of compensation between individual tasks to be consistent with services rendered while not exceeding the total project amount. O. Period ofService: If the period of service for the task identified above is extended beyond 12 months, thocmmpenomUonannwuntforJ-U'B'saan/ioamrnmybmappnophata|vadjumtedt000countforom|ary adjustments and extended duration of project management and administrative services. E. CLIENT acknowledges that J-U-B will not be responsible for impacts to the schedule by actions of others over which J-U-13 has no control. F. The following table summarizes the fees and anticipated schedule for the services identified in PART 2. uU-B Agreement for Professional Services EXHIBIT B Professional Fees Task Number 010 020 030 040 050 060 070 080 Task Name Project Management Bidding Phase Services Preconstruction Meeting Site Visits (Includes estimated $1000 expenses) Request For Information and Submittal Review Change Orders and Work Change Directives Project Closeout Management Reserve Fee Type Time and Materials (Estimated Amount Shown) Amount (Rounded) $2900 Time and Materials $900 (Estimated Amount Shown) Time and Materials $400 (Estimated Amount Shown) Time and Materials $3600 (Estimated Amount Shown) Time and Materials $14,300 (Estimated Amount Shown) Time and Materials $1,100 (Estimated Amount Shown) Time and Materials $400 (Estimated Amount Shown) Time and Materials $2400 (Estimated Amount Shown) Anticipated Schedule Concurrent with work progress Concurrent with work progress Concurrent with work progress Concurrent with work progress Concurrent with work progress Concurrent with work progress Within 30 days of receiving Contractor As-builts As requested Total: $26,000 (Rounded $100) PART 4 - NOTE on Coronavirus and Schedule: J-U-B is committed to meeting your project schedule commitments as delineated above. As our response to the COVID-19 pandemic, J-U-B is engaging in safety procedures in help to protect clients, staff, their families, and the public. Our staff or offices may be subject to quarantine or other interruptions. Since COVID-19 impacts are beyond J-U-B's control, we are not responsible for the force majeure impacts to delivery timelines, or subsequent project delays and related claims, costs, or damages. Should circumstances related to the COVID-19 issue arise with J-U-B staff or in a J-U-B NOTE on Coronavirus and Schedule: J-U-B is committed to meeting your project schedule commitments as delineated above. As our response to the COVID-19 pandemic, J-U-B is engaging in safety procedures in help to protect clients, staff, their families, and the public. Our staff or offices may be subject to quarantine or other interruptions. Since COVID-19 impacts are beyond J-U-B's control, we are not responsible for the force majeure impacts to delivery timelines, or subsequent project delays and related claims, costs, or damages. Should circumstances related to the COVID-19 issue arise with J-U-B staff or in a J-U-B office that will impact our delivery schedule, we will notify you of the circumstances and mutually agree to a schedule adjustment. J-1.1-6 Agreement for Professional Services Exhibit A — Scope of Work Page 4 For internal J-U-B use only: PROJECT LOCATION (STATE): Washington TYPE OF WORK: City R&D: No GROUP: Transportation PROJECT DESCRIPTION(S) 1. Construction Management (C15) 2. Highway/Interstate/Roadway (H07) J-U-B Agreement for Professional Services Exhibit A - Scope of Work Page 5 EXHIBIT °°C°' SCHEDULE OF RATES See Attached Schedule of Specific Rates 2022 Page 18 Exhibit C - Schedule of Specific Hourly Rates ENGINEERS, Inc. � 2022 Rate Table Labor Category 1OOAdministrative Support 1O2Administrative Assistant 1O4Senior Administrative Support 110 PFA 112 PFA-Lead 114 PFA Senior 12DTechnical Writer/Graphic Designer 122 Technical Writer/Graphic Designer- Lead l24Technical Writer/Graphic Designer -Senior 2ODSurvey Technician 202Survey Technician Lead 2O4Survey Technician Senior 21OAssistant Surveyor 212Assistant Surveyor Lead 214 Professional Land Surveyor 216PLS Lead 218 PLS Senior 220 PLS Discipline Lead 228Assistant Designer 23OCAD Technician Drafter 232 CAD Technician ' Designer 2J4CAD Designer Lead 236 CAD Designer Senior 240Project Designer Z4ZProject Designer Lead 244Project Engineer | 245 Project Engineer || 246 Project Engineer ' Lead 248Project Engineer 'Senior 250 Project Engineer Discipline Lead 252Project Engineer ' Discipline Lead 'Senior 260 Construction Observer 202 Construction Observer 'Lead 204Construction Observer Senior 27OConstruction Management Assistant 272 Construction Manager 274 Senior Construction Manager 276 Construction Manager Discipline Lead C 0 N F! D EAN "15 L Hourly Billing Rate Code $47 300 $53 ]U2 $76 304 $77 306 $94 308 $105 310 $78 312 $85 314 $112 316 $83 318 $110 320 $132 322 $105 324 $120 326 $146 328 $162 329 $186 330 $198 332 $83 334 $98 335 $110 338 $1]S 340 $145 350 $124 352 $145 364 $160 35§ $172 358 $182 400 $210 402 $220 404 $230 406 $115 408 $130 410 $150 $125 $170 $190 $215 Labor Category Planning Technician Planner Planner 'Lead Planner Senior Planner Discipline Lead Environmental Scientist Assistant Environmental Scientist Environmental Specialist Lead Environmental Specialist Senior Environmental Specialist Discipline Lead TLGAasistant TLGPmcdtioner TLGPmctitinner Lead TLGPmctitinner Senior TLGDiscipline Lead TLGDiscipline Lead Senior G|STechnidan G|5 Analyst G|SDev.Analyst Senior G|SAnalyst Senior G|SDev.Analyst G|SDiscipline Lead Landscape Designer Landscape Architect Landscape Architect Lead Landscape Architect Senior Landscape Architect Discipline Lead Assistant Project Manager Project Manager Program Manager Program Manager Lead Program Manager Senior Principal (Alternative Category, xm/Dffisr) 7) Rates subject to change on a yearly basis. 2) GPS,m8eaye, per diem, and other direct costs will be specified /nProject Scopes ofWork and budgets. No direct costs will becharged without Client approval. 3)A 70percent markup will beapplied k`Suhconsu/uxntfees. Hourly Rate $96 $148 $183 $88 $125 $150 $185 $195 $88 $1]2 $146 $179 $198 $230 $gO $110 $110 $160 $160 $185 $94 $125 $141 $165 $180 $170 $185 $210 $220 $230 $230 CONTRACT THIS AGREEMENT, made and entered into in triplicate, this i S day of ii..Vle. , 2023, by and between the City of Yakima, hereinafter called the Owner, and Belsaas & Smith Construction, Inc. a Washington Corporation, hereinafter called the Contractor. WITNESSETH: That in consideration of the terms and conditions contained herein and attached and made a part of this agreement, the parties hereto covenant and agree as follows: I. The Contractor shall do all work and furnish all tools, materials, labor and equipment for THE BID AMOUNT OF :$ 1,877,158.00, for Lower Cowiche Creek Trail, City Project No. 2430, all in accordance with, and as described in the attached specifications and the 2022 Standard Specifications for Road, Bridge, and Municipal Construction which are by this reference incorporated herein and made a part hereof, and shall perform any alterations in or additions to the work provided under this contract and every part thereof. Work shall start within ten (10) days after the Notice to Proceed and shall be completed in One -hundred forty (140) working days The first chargeable working day shall be the llth working day after the date on which the City issues the Notice to Proceed. If said work is not completed within the time specified, the Contractor agrees to pay to the Owner the sum specified in the Standard Specifications for each and every day said work remains uncompleted after expiration of the specified time, as liquidated damages. The Contractors shall provide and bear the expense of all equipment, work and labor of any sort whatsoever that may be required for the transfer of materials and for constructing and completing the work provided for in this contract and every part thereof, except such as are mentioned in the specifications to be furnished by the City of Yakima. II. The City of Yakima hereby promises and agrees with the Contractor to employ, and does employ the Contractor to provide the materials and to do and cause to be done the above described work and to complete and finish the same according to the attached plans and specifications and the terms and conditions herein contained and hereby contracts to pay for the same according to the attached specifications and the schedule of unit or itemized prices hereto attached, at the time and in the manner and upon the conditions provided for in this contract. III. INDEMNIFICATION. The Contractor shall release, indemnify, defend, and hold harmless the City, its elected and appointed officials, officers, employees, agents, representatives, insurers, attorneys, and volunteers from all liabilities, losses, damages, and expenses related to all claims, suits, arbitration actions, investigations, and regulatory or other governmental proceedings arising from or in connection with this Agreement or the acts, failures to act, errors or omissions of the Contractor, or any Contractor's agent or subcontractor, in performance of this Agreement, except for claims caused by the City's sole negligence The City's right to indemnification includes attorney's fees and costs associated with establishing the right to indemnification hereunder in favor of the City. IV. The Contractor for himself, and for his heirs, executors, administrators, successors, and assigns, does hereby agree to the full performance of all the covenants herein contained upon the part of the Contractor. V. It is further provided that no liability shall attach to the City of Yakima by reason of entering into this contract, except as expressly provided herein. IN WITNESS WHEREOF the parties hereto have caused this agreement to be executed the day and year first herein above written. Countersigned: CITY OF YAKIMA this (`' day of "s''." 2023. City Manager Attest: CITY CONTRACT NO* . 3—IUS RESOLUTION NO.I`-ac7. )31 CONTRACTOR t (L'Atstri huh ,a Corporation Contracto Bv: Its: t \r (President, Owner, etc ) Address: 1 O 1Do X Li ko tlltA,Sbia4-oi ,ww abola4 Bond No 107833772 CONTRACT BOND BOND TO CITY OF YAKIMA KNC7WALL MEN BY THESE PRESENTS: That whereas the Oty of Yaldn>a, Washington has awarded to Belsaas & Smith Construction Inc., ((Infractor) hereinafter designated as the "Principal" a contract for the construction of the prgect designated Lower Cowiche Creek Trail, City Project No. 2430, all as hereto attached and made a pat hereof and whereas, sad principal is required under the team of said contract to furnish a bond for the fathfti performance of sad contrail: Now THEREFORE, we, thepiindpal, and Travelers Casualty and Surety Company of America (Surety), acorporation, organized and existing under and by virtue of the laws of the State of CT dtiy authorized to do business in the State of Washington, as surety, are jointly and severally held and firmly bound unto the Oty of Yakima, Washington, in the penal sum of $1,877,158.00 (Total Contract Amount) lawful I r u ey of the United Stag, the payment of which we jointly and severally bind ourselves, air heirs, executors, administrators and assigns, and successors and assigns, fimny by these presents. THE CONDITIONS OF THIS BOND IS SUCH, that if the above borxied principal shall faithfully perform all of the provisions of sad contract in the manner and within the time therein set forth, or wthn such extensions of time as may be granted under sad contrail, and shall pay all laborers, mechanics, sub -contractors and matenalmen; the dainns of any person or persons ring under the contract to the extent such dams are provided for in RCW 39.08.010; the state wth respell to taxes i rposed pursuant to Titles 50, 51 and 82 RCW which may be due, and all persons who shall supply said principal or subcontractors wth provisions and supplies for the aannying on of sad work, and shall hid sad City of Yakima, Washington, their employees, agents, and elected or appointed offiaals, harness from any damage occasioned to any person or property by reason of any carelessness or negigence on the part of sad pnnapal, or any sub - co ntrador in the perfomnance of sad worts, and shall indemnify and hid the Oty of Yakima, Washington, its employees, agents, and elected or apponted officals, hairless from any damage or expense by reason of failure of performance as spedfied in said contract, or from defects appearing or developing in the matenal or wortarenship provided or performed under sad contract after its acceptance thereof by the City of Yakima, Washington, and all dams filed in corrplia ce with Chapter 39 08 RCWa e resolved and all taxes pursuant to Titles 50 and 51 and 82 RCW have been pad, then amd in that event this obligation shall be void, but otherwise it shall be and remain in full force and effect. This obligation is entered into in pursuance of the statutes of the State of Washington, and the Ordina>ces of the City of Yawnma, Washngton IN WTNESS W-EREOF, the said principal and the sad surety have caused this bond to be signed and sealed by their duly authorized officers the 22nd day of May 2023 dastofomr (Title) S� W 14'rv.- r i ti S (CityAttrne0 Belsaas & Smith Construction, Inc. (Pint Name) Travelers Casualty and Surety Company of America 1kJ Ia Y 1 ► ( l Vtkl1A.A. (&) Lori McKimmy (Pint Name) Attorney -in -Fact (Title) TRAVELERSJ Travelers Casualty and Surety Company of America Travelers Casualty and Surety Company St. Paul Fire and Marine Insurance Company POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS: That Travelers Casualty and Surety Company of America, Travelers Casualty and Surety Company, and St. Paul Fire and Marine Insurance Company are corporations duly organized under the laws of the State of Connecticut (herein collectively called the "Companies"), and that the Companies do hereby make, constitute and appoint Lori McKimmy of YAKIMA , Washington , their true and lawful Attorney(s)-in-Fact to sign, execute, seal and acknowledge any and all bonds, recognizances, conditional undertakings and other writings obligatory in the nature thereof on behalf of the Companies in their business of guaranteeing the fidelity of persons, guaranteeing the performance of contracts and executing or guaranteeing bonds and undertakings required or permitted in any actions or proceedings allowed by law. IN WITNESS WHEREOF, the Companies have caused this instrument to be signed, and their corporate seals to be hereto affixed, this 21st day of April, 2021. State of Connecticut By: City of Hartford ss. Robert L. Raney;'Senior Vice President On this the 21st day of April, 2021, before me personally appeared Robert L. Raney, who acknowledged himself to be the Senior Vice President of each of the Companies, and that he, as such, being authorized so to do, executed the foregoing instrument for the purposes therein contained by signing on behalf of said Companies by himself as a duly authorized officer. IN WITNESS WHEREOF, I hereunto set my hand and official seal. My Commission expires the 30th day of June, 2026 co Anna P. Nowik, Notary Public This Power of Attorney is granted under and by the authority of the following resolutions adopted by the Boards of Directors of each of the Companies, which resolutions are now in full force and effect, reading as follows: RESOLVED, that the Chairman, the President, any Vice Chairman, any Executive Vice President, any Senior Vice President, any Vice President, any Second Vice President, the Treasurer, any Assistant Treasurer, the Corporate Secretary or any Assistant Secretary may appoint Attorneys -in -Fact and Agents to act for and on behalf of the Company and may give such appointee such authority as his or her certificate of authority may prescribe to sign with the Company's name and seal with the Company's seal bonds, recognizances, contracts of indemnity, and other writings obligatory in the nature of a bond, recognizance, or conditional undertaking, and any of said officers or the Board of Directors at any time may remove any such appointee and revoke the power given him or her; and it is FURTHER RESOLVED, that the Chairman, the President, any Vice Chairman, any Executive Vice President, any Senior Vice President or any Vice President may delegate all or any part of the foregoing authority to one or more officers or employees of this Company, provided that each such delegation is in writing and a copy thereof is filed in the office of the Secretary; and it is FURTHER RESOLVED, that any bond, recognizance, contract of indemnity, or writing obligatory in the nature of a bond, recognizance, or conditional undertaking shall be valid and binding upon the Company when (a) signed by the President, any Vice Chairman, any Executive Vice President, any Senior Vice President or any Vice President, any Second Vice President, the Treasurer, any Assistant Treasurer, the Corporate Secretary or any Assistant Secretary and duly attested and sealed with the Company's seal by a Secretary or Assistant Secretary, or (b) duly executed (under seal, if required) by one or more Attorneys -in -Fact and Agents pursuant to the power prescribed in his or her certificate or their certificates of authority or by one or more Company officers pursuant to a written delegation of authority; and it is FURTHER RESOLVED, that the signature of each of the following officers: President, any Executive Vice President, any Senior Vice President, any Vice President, any Assistant Vice President, any Secretary, any Assistant Secretary, and the seal of the Company may be affixed by facsimile to any Power of Attorney or to any certificate relating thereto appointing Resident Vice Presidents, Resident Assistant Secretaries or Attorneys -in - Fact for purposes only of executing and attesting bonds and undertakings and other writings obligatory in the nature thereof, and any such Power of Attorney or certificate bearing such facsimile signature or facsimile seal shall be valid and binding upon the Company and any such power so executed and certified by such facsimile signature and facsimile seal shall be valid and binding on the Company in the future with respect to any bond or understanding to which it is attached. I, Kevin E. Hughes, the undersigned, Assistant Secretary of each of the Companies, do hereby certify that the above and foregoing is a true and correct copy of the Power of Attorney executed by said Companies, which remains in full force and effect. Dated this day of May , 2023 Kevin E. Hughes, Assi tant Secretary To verify the authenticity of this Power of Attorney, please call us at 1-800-421-3880. Please refer to the above -named Attorney(s)-in-Fact and the details of the bond to which this Power of Attorney is attached. RETAINAGE BOND (RCW 60.28.011) Bond No. 107833773 KNOW ALL MEN BY THESE PRESENTS, that Belsaas & Smith Construction, Inc. a corporation existing under and by virtue of the laws of the State of Washington and authorized to do business in the State of Washington as Principal, and Travelers Casualty and Surety Company of America, a corporation organized and existing under the laws of the State of CT and authorized to transact business in the State of Washington as Surety, are jointly and severally held and bound unto the City of Yakima as Obligee, in the penal sum of Ninety -Three Thousand Eight Hundred Fifty -Seven and 90/100 Dollars ($93,857.90) which is 5% of the Principal's contract with Obligee for Lower Cowiche Creek Trail, City Project No. 2430 WHEREAS, on the day of May 2023 the said Principal, herein, executed a contract with the Obligee as described above. WHEREAS, said contract and RCW 60.28 require Obligee to withhold from the Principal the sum of 5% from monies earned on estimates during the progress of the construction, hereinafter referred to as earned retained funds. AND NOW WHEREAS, Principal, pursuant to RCW 60.28.011, has requested that the Obligee not retain any earned retained funds as allowed under RCW 60.28. NOW, THEREFORE, the condition of this obligation is such that the Surety is held and bound unto the Obligee in the penal sum of 5% of the final contract cost which shall include any increases due to change orders, increases in quantities of work or the addition of any new item of work. If the Principal shall use the earned retained funds, which will not be retained, for the purposes of RCW 60.28, then this obligation shall be null and void; otherwise, it shall remain in full force and effect. PROVIDED, HOWEVER that any suit under this bond must be instituted within the time period provided by applicable Washington State law. WITNESS our hands this day of May 2023. Belsaas & ith Construc • , Inc. Travelers Casualty and Surety Company of America CIM°-'14pit Lori McKimmy, Attorne'-in-Fact TRAVELERSJ Travelers Casualty and Surety Company of America Travelers Casualty and Surety Company St. Paul Fire and Marine Insurance Company POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS: That Travelers Casualty and Surety Company of America, Travelers Casualty and Surety Company, and St Paul Fire and Marine Insurance Company are corporations duly organized under the laws of the State of Connecticut (herein collectively called the "Companies"), and that the Companies do hereby make, constitute and appoint Lori McKimmy of YAKIMA , Washington , their true and lawful Attorney(s)-in-Fact to sign, execute, seal and acknowledge any and all bonds, recognizances, conditional undertakings and other writings obligatory in the nature thereof on behalf of the Companies in their business of guaranteeing the fidelity of persons, guaranteeing the performance of contracts and executing or guaranteeing bonds and undertakings required or permitted in any actions or proceedings allowed by law. IN WITNESS WHEREOF, the Companies have caused this instrument to be signed, and their corporate seals to be hereto affixed, this 21st day of April, 2021. State of Connecticut By: City of Hartford ss. Robert L. Rane enior Vice President On this the 21st day of April, 2021, before me personally appeared Robert L. Raney, who acknowledged himself to be the Senior Vice President of each of the Companies, and that he, as such, being authorized so to do, executed the foregoing instrument for the purposes therein contained by signing on behalf of said Companies by himself as a duly authorized officer IN WITNESS WHEREOF, I hereunto set my hand and official seal. My Commission expires the 30th day of June, 2026 Anna P. Nowik, Notary Public This Power of Attorney is granted under and by the authority of the following resolutions adopted by the Boards of Directors of each of the Companies, which resolutions are now in full force and effect, reading as follows: RESOLVED, that the Chairman, the President, any Vice Chairman, any Executive Vice President, any Senior Vice President, any Vice President, any Second Vice President, the Treasurer, any Assistant Treasurer, the Corporate Secretary or any Assistant Secretary may appoint Attorneys -in -Fact and Agents to act for and on behalf of the Company and may give such appointee such authority as his or her certificate of authority may prescribe to sign with the Company's name and seal with the Company's seal bonds, recognizances, contracts of indemnity, and other writings obligatory in the nature of a bond, recognizance, or conditional undertaking, and any of said officers or the Board of Directors at any time may remove any such appointee and revoke the power given him or her; and it is FURTHER RESOLVED, that the Chairman, the President, any Vice Chairman, any Executive Vice President, any Senior Vice President or any Vice President may delegate all or any part of the foregoing authority to one or more officers or employees of this Company, provided that each such delegation is in writing and a copy thereof is filed in the office of the Secretary; and it is FURTHER RESOLVED, that any bond, recognizance, contract of indemnity, or writing obligatory in the nature of a bond, recognizance, or conditional undertaking shall be valid and binding upon the Company when (a) signed by the President, any Vice Chairman, any Executive Vice President, any Senior Vice President or any Vice President, any Second Vice President, the Treasurer, any Assistant Treasurer, the Corporate Secretary or any Assistant Secretary and duly attested and sealed with the Company's seal by a Secretary or Assistant Secretary; or (b) duly executed (under seal, if required) by one or more Attorneys -in -Fact and Agents pursuant to the power prescribed in his or her certificate or their certificates of authority or by one or more Company officers pursuant to a written delegation of authority; and it is FURTHER RESOLVED, that the signature of each of the following officers: President, any Executive Vice President, any Senior Vice President, any Vice President, any Assistant Vice President, any Secretary, any Assistant Secretary, and the seal of the Company may be affixed by facsimile to any Power of Attorney or to any certificate relating thereto appointing Resident Vice Presidents, Resident Assistant Secretaries or Attorneys -in - Fact for purposes only of executing and attesting bonds and undertakings and other writings obligatory in the nature thereof, and any such Power of Attorney or certificate bearing such facsimile signature or facsimile seal shall be valid and binding upon the Company and any such power so executed and certified by such facsimile signature and facsimile seal shall be valid and binding on the Company in the future with respect to any bond or understanding to which it is attached. I, Kevin E. Hughes, the undersigned, Assistant Secretary of each of the Companies, do hereby certify that the above and foregoing is a true and correct copy of the Power of Attorney executed by said Companies, which remains in full force and effect. Dated this 22nd day of May , 2023 Kevin E. Hughes, Assi taut Secretary To verify the authenticity of this Power of Attorney, please call us at 1-800-421-3880. Please refer to the above -named Attomey(s)-in-fact and the details of the bond to which this Power of Attorney is attached. Local Agency Professional Services Cost Plus Fixed Fee Consultant Agreement Agreement Number: Does this Require DES filing? ❑ Yes ❑ No Firm/Organization Legal Name (do not use dba's): Preston L. Shepard and Associates Address 521 N. 20th Ave. Ste. 3, Yakima, WA 98902 Federal Aid Number UBI Number 600 263 440-001-0001 Federal TIN or SSN Number 91-1014702 Execution Date Completion Date 12/31/2026 1099 Form Required Federal Participation ❑ Yes i No 1111 Yes i No Project Title Lower Cowiche Creek Trail - Materials Testing Description of Work Materials Testing: aggregate gradation testing (both for backfill and the trail), concrete testing on the piers, abutments and micropiles, rebar testing Total Amount Authorized: Management Reserve Fund: Maximum Amount Payable: ❑ Yes % i No DBE Participation ❑ Yes % i No MBE Participation ❑ Yes % i No WBE Participation Yes i No SBE Participation ❑ % Index of Exhibits Exhibit A Exhibit B Exhibit C Exhibit D Exhibit E Exhibit F Exhibit G Exhibit H Exhibit 1 Exhibit J Scope of Work DBE Participation/SBE Plan Preparation and Delivery of Electronic Engineering and Other Data Prime Consultant Cost Computations Sub -consultant Cost Computations Title VI Assurances Certification Documents Liability Insurance Increase Alleged Consultant Design Error Procedures Consultant Claim Procedures Agreement Number: Local Agency Professional Services Cost Plus Fixed Fee Consultant Agreement Page 1 of 14 Revised 03/30/2021 THIS AGREEMENT, made and entered into as shown in the "Execution Date" box on page one (1) of this AGREEMENT, between the City of Yakima hereinafter called the "AGENCY," and the "Firm / Organization Name" referenced on page one (1) of this AGREEMENT, hereinafter called the "CONSULTANT." WHEREAS, the AGENCY desires to accomplish the work referenced in "Description of Work" on page one (1) of this AGREEMENT and hereafter called the "SERVICES;" and 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; and WHEREAS, the CONSULTANT represents that they comply 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 SERVICES as herein defined, and necessary to accomplish the completed work for this project. The CONSULTANT shall furnish all services, labor, and related equipment and, if applicable, sub -consultants and subcontractors necessary to conduct and complete the SERVICES as designated elsewhere in this AGREEMENT. II. General Scope of Work The Scope of Work and projected level of effort required for these SERVICES is described in Exhibit "A" attached hereto and by this reference made a part of this AGREEMENT. The General Scope of Work was developed utilizing performance based contracting methodologies. 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 State, Federal, 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 SERVICES in sufficient detail so that the progress of the SERVICES can easily be evaluated. The CONSULTANT, any sub -consultants, and the AGENCY shall comply with all Federal, State, and local laws, rules, codes, regulations, and all AGENCY policies and directives, applicable to the work to be performed under this AGREEMENT. This AGREEMENT shall be interpreted and construed in accordance with the laws of the State of Washington. Agreement Number: Local Agency Professional Services Cost Plus Fixed Fee Consultant Agreement Page 2 of 14 Revised 03/30/2021 Participation for Disadvantaged Business Enterprises (DBE) or Small Business Enterprises (SBE), if required, per 49 CFR Part 26 shall be shown on the heading of this AGREEMENT. If DBE firms are utilized at the commencement of this AGREEMENT, the amounts authorized to each firm and their certification number will be shown on Exhibit "B" attached hereto and by this reference made part of this AGREEMENT. If the Prime CONSULTANT is a DBE certified firm they must comply with the Commercial Useful Function (CUF) regulation outlined in the AGENCY's "DBE Program Participation Plan" and perform a minimum of 30% of the total amount of this AGREEMENT. It is recommended, but not required, that non -DBE Prime CONSULTANTS perform a minimum of 30% of the total amount of this AGREEMENT. In the absents of a mandatory UDBE, a voluntary SBE goal amount of ten percent of the Consultant Agreement is established. The Consultant shall submit a SBE Participation Plan prior to commencing work. Although the goal is voluntary, the outreach efforts to provide SBE maximum practicable opportunities are not. The CONSULTANT, on a monthly basis, is required to enter the amounts paid to all firms (including Prime) involved with this AGREEMENT into the wsdot.diversitycompliance.com program. Payment information shall identify any DBE Participation. Non minority, woman owned DBEs does not count towards UDBE goal attainment. 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 — Preparation and Delivery of Electronic Engineering and other Data." 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 these SERVICES, 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 SERVICE, shall be without liability or legal exposure to the CONSULTANT. Any and all notices or requests required under this AGREEMENT shall be made in writing and sent to the other party by (i) certified mail, return receipt requested, or (ii) by email or facsimile, to the address set forth below: If to AGENCY: If to CONSULTANT: Name: Bill Preston, PE Agency: City of Yakima - Engineering Address: 129 N. 2nd Street City: Yakima State: WA Zip: 98901 Email: bill.preston@yakimawa.gov Phone: 509-576-6754 Facsimile: N/A Name: Scott Garland Agency: Preston L. Shepard and Associates, Inc. Address: 521 N. 20th Avenue, Ste. 3 City: Yakima State: WA Zip: 98902 Email: sgarland@gmail.com Phone: 509-575-6990 Facsimile: N/A 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. This AGREEMENT may require filing with the Department of Enterprise Services (DES) pursuant to RCW 39.26.140. If such approval is required by DES, this AGREEMENT shall not bind the AGENCY until approved by DES. If the AGREEMENT must be approved by DES, work cannot begin, nor payment made until ten (10) or more working days following the date of filing, and, until approved by DES. Any subsequent SUPPLEMENTAL AGREEMENT may also be subject to filing and/or approval from DES. All work under this AGREEMENT shall be completed by the date shown in the heading of this AGREEMENT titled "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, 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 time. Agreement Number: Local Agency Professional Services Cost Plus Fixed Fee Consultant Agreement Page 3 of 14 Revised 03/30/2021 V. Payment Provisions The CONSULTANT shall be paid by the AGENCY for completed SERVICES rendered under this AGREEMENT as provided hereinafter. Such payment shall be full compensation for SERVICES performed or SERVICES rendered and for all labor, materials, supplies, equipment, and incidentals necessary to complete SERVICES, specified in Section II, "Scope of Work". The CONSULTANT shall conform to all applicable portions of 48 CFR Part 31 (www.ecfr.gov). The estimate in support of the Cost Plus Fixed Fee amount is attached hereto as Exhibits "D" and "E" and by this reference made part of this AGREEMENT. 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, indirect cost rate, and direct non -salary costs. 1. Direct (RAW) Labor Costs: The Direct (RAW) Labor 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. Indirect Cost Rate (ICR) Costs: ICR 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 ICR rates shown in attached Exhibits "D" and "E" of this AGREEMENT. Total ICR payment shall be based on Actual Costs. The AGENCY agrees to reimburse the CONSULTANT the actual ICR 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 CONSULTANT'S cost estimate and the ICR percentage is shown in Exhibits "D" and "E", attached hereto and by this reference made part of this AGREEMENT. The CONSULTANT (prime and all A&E sub -consultants) will submit to the AGENCY within six (6) months after the end of each firm's fiscal year, an ICR schedule in the format required by the AGENCY (cost category, dollar expenditures, etc.) for the purpose of adjusting the ICR rate for billings received and paid during the fiscal year represented by the ICR schedule. It shall also be used for the computation of progress payments during the following year and for retroactively adjusting the previous year's ICR cost to reflect the actual rate. The ICR schedule will be sent to Email: ConsultantRates@wsdot.wa.gov. Failure to supply this information by either the prime CONSULTANT or any of their A&E sub -consultants shall cause the AGENCY to withhold payment of the billed ICR costs until such time as the required information is received and an overhead rate for billing purposes is approved. The AGENCY's Project Manager 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 ICR rate, if they so desire. 3. Direct Non -Salary Costs: Direct Non -Salary Costs will be reimbursed at the Actual Cost to the CONSULTANT. (excluding Meals, which are reimbursed at the per diem rates identified in this section) These charges may include, but are not limited to, the following items: travel, printing, long distance telephone, supplies, computer charges and fees of sub -consultants. 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 WSDOT' Accounting Manual M 13-82, Chapter 10 — Travel Rules and Procedures, and revisions thereto. Air, train, and rental car costs shall be reimbursed in accordance with 48 Code of Federal Regulations (CFR) Part 31.205-46 "Travel Costs." The billing for Direct Non -Salary Costs shall include an itemized listing of the charges directly identifiable with the PROJECT. 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. All above charges must be necessary for the services provided under this AGREEMENT. Agreement Number: Local Agency Professional Services Cost Plus Fixed Fee Consultant Agreement Page 4 of 14 Revised 03/30/2021 4. Fixed Fee: The Fixed Fee, which represents the CONSULTANT'S profit, is shown in attached Exhibits "D" and "E" of this AGREEMENT. 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 (MRF): The AGENCY may desire to establish a MRF 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% of the Total Amount Authorized as shown in the heading of this AGREEMENT. The amount included for the MRF is shown in the heading of this AGREEMENT. This fund may not be replenished. Any changes requiring additional costs in excess of the MRF shall be made in accordance with Section XIII, "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 MRF. The Maximum Total Amount Payable does not include payment for Extra Work as stipulated in Section XIII, "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 ICR and calculated 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 (RAW) Labor, Direct Non -Salary, and allowable ICR Costs to which will be added the prorated Fixed Fee. To provide a means of verifying the billed Direct (RAW) Labor costs for CONSULTANT employees, the AGENCY may conduct employee interviews. These interviews may consist of recording the names, titles, Direct (RAW) Labor 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, if applicable, 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 final audit; all required adjustments will be made and reflected in a final payment. In the event that such final audit reveals an overpayment to the CONSULTANT, the CONSULTANT will refund such overpayment to the AGENCY within thirty (30) calendar 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) working days after receipt of the final POST AUDIT to begin the appeal process to the AGENCY for audit findings. Agreement Number: Local Agency Professional Services Cost Plus Fixed Fee Consultant Agreement Page 5 of 14 Revised 03/30/2021 D. Inspection of Cost Records: The CONSULTANT and their sub -consultants shall keep available for inspection by representatives of the AGENCY and the United States, for a period of six (6) years after receipt of final 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 AGREEMENT is initiated before the expiration of the six (6) year period, the cost records and accounts shall be retained until such litigation, claim, or audit involving the records is completed. An interim or post audit may be performed on this AGREEMENT. The audit, if any, will be performed by the State Auditor, WSDOT's Internal Audit Office and /or at the request of the AGENCY's Project Manager. VI. Sub -Contracting The AGENCY permits subcontracts for those items of SERVICES as shown in Exhibit "A" attached hereto and by this reference made part of this AGREEMENT. The CONSULTANT shall not subcontract for the performance of any SERVICE under this AGREEMENT without prior written permission of the AGENCY. No permission for subcontracting shall create, between the AGENCY and sub -consultant, any contract or any other relationship. Compensation for this sub -consultant SERVICES shall be based on the cost factors shown on Exhibit "E" attached hereto and by this reference made part of this AGREEMENT. The SERVICES of the sub -consultant shall not exceed its maximum amount payable identified in each sub - consultant cost estimate unless a prior written approval has been issued by the AGENCY. All reimbursable direct labor, indirect cost rate, direct non -salary costs and fixed fee costs for the sub -consultant shall be negotiated and substantiated in accordance with section V "Payment Provisions" herein and shall be memorialized in a final written acknowledgement between the parties. All subcontracts shall contain all applicable provisions of this AGREEMENT, and the CONSULTANT shall require each sub -consultant or subcontractor, of any tier, to abide by the terms and conditions of this AGREEMENT. With respect to sub -consultant payment, the CONSULTANT shall comply with all applicable sections of the STATE's Prompt Payment laws as set forth in RCW 39.04.250 and RCW 39.76.011. The CONSULTANT, sub -recipient, or sub -consultant shall not discriminate on the basis of race, color, national origin, or sex in the performance of this AGREEMENT. The CONSULTANT shall carry out applicable requirements of 49 CFR Part 26 in the award and administration of DOT -assisted contracts. Failure by the CONSULTANT to carry out these requirements is a material breach of this AGREEMENT, which may result in the termination of this AGREEMENT or such other remedy as the recipient deems appropriate. VII. Employment and Organizational Conflict of Interest 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 armul this AGREEMENT without liability or, in its discretion, to deduct from this 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 Agreement Number: Local Agency Professional Services Cost Plus Fixed Fee Consultant Agreement Page 6 of 14 Revised 03/30/2021 Compensation Act on behalf of said employees or other persons while so engaged, and any and all claims made by a 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 this AGREEMENT, any professional or technical personnel who are, or have been, at any time during the period of this AGREEMENT, in the employ of the United States Department of Transportation or the AGENCY, except regularly retired employees, without written consent of the public employer of such person if he/she will be working on this AGREEMENT for the CONSULTANT. VIII. Nondiscrimination During the performance of this AGREEMENT, the subcontractors and successors in interest, agrees to • Title VI of the Civil Rights Act of 1964 (42 U.S.C. Chapter 21 Subchapter V § 2000d through 2000d-4a) • Federal -aid Highway Act of 1973 (23 U.S.C. Chapter 3 § 324) • Rehabilitation Act of 1973 (29 U.S.C. Chapter 16 Subchapter V § 794) • Age Discrimination Act of 1975 (42 U.S.C. Chapter 76 § 6101 et. seq.) CONSULTANT, for itself, its assignees, sub -consultants, comply with the following laws and regulations: • Civil Rights Restoration Act of 1987 (Public Law 100-259) • American with Disabilities Act of 1990 (42 U.S.C. Chapter 126 § 12101 et. seq.) • 23 CFR Part 200 • 49 CFR Part 21 • 49 CFR Part 26 • RCW 49.60.180 In relation to Title VI of the Civil Rights Act of 1964, the CONSULTANT is bound by the provisions of Exhibit "F" attached hereto and by this reference made part of this AGREEMENT, and shall include the attached Exhibit "F" 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 with or without cause upon ten (10) 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 for actual hours charged and any appropriate fixed fee percentage at the time of termination of this AGREEMENT, plus any direct non -salary costs incurred up to the time of termination of this AGREEMENT. No payment shall be made for any SERVICES completed after ten (10) 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 in paragraph two (2) of this section, 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. In the event of a termination for default, the amount to be paid to the CONSULTANT shall be determined by the AGENCY with consideration given to the actual costs incurred by the CONSULTANT in performing SERVICES to the date of termination, the amount of SERVICES originally required which was satisfactorily completed to Agreement Number: Local Agency Professional Services Cost Plus Fixed Fee Consultant Agreement Page 7 of 14 Revised 03/30/2021 date of termination, whether that SERVICE 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 SERVICES required and the time which may be required to do so, and other factors which affect the value to the AGENCY of the SERVICES 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 in paragraph two (2) of this section. 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 its employee's fault 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 and appropriate fixed fee percentage in accordance with the termination for other than default clauses listed previously. The CONSULTANT shall, within 15 days, notify the AGENCY in writing, in the event of the death of any member, partner, or officer of the CONSULTANT or the death or change of any of the CONSULTANT's supervisory and/or other key personnel assigned to the project or disaffiliation of any principally involved CONSULTANT employee. The CONSULTANT shall also notify the AGENCY, in writing, in the event of the sale or transfer of 50% or more of the beneficial ownership of the CONSULTANT within 15 days of such sale or transfer occurring. The CONSULTANT shall continue to be obligated to complete the SERVICES under the terms of this AGREEMENT unless the AGENCY chooses to terminate this AGREEMENT for convenience or chooses to renegotiate any term(s) of this AGREEMENT. If termination for convenience occurs, final payment will be made to the CONSULTANT as set forth in the second and third paragraphs of this section. Payment for any part of the SERVICES 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 SERVICES 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 completed work of this AGREEMENT as necessary to correct errors appearing therein, without additional compensation thereof. Should the AGENCY find it desirable for its own purposes to have previously satisfactorily completed SERVICES 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 XIII "Extra Work." XI. Disputes Any disputed issue not resolved pursuant to the terms of this AGREEMENT shall be submitted in writing within 10 days 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 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." In the event that either party deem it necessary to institute legal action or proceeding to enforce any right or obligation under this AGREEMENT, this 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 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. Agreement Number: Local Agency Professional Services Cost Plus Fixed Fee Consultant Agreement Page 8 of 14 Revised 03/30/2021 XII. Legal Relations The CONSULTANT, any sub -consultants, and the AGENCY shall comply with all Federal, State, and local laws, rules, codes, regulations and all AGENCY policies and directives, applicable to the work to be performed under this AGREEMENT. This AGREEMENT shall be interpreted and construed in accordance with the laws of the State of Washington. The CONSULTANT shall defend, indemnify, and hold the State of Washington (STATE) and the AGENCY and their officers and employees harmless from all claims, demands, or suits at law or equity arising in whole or in part from the negligence of, or the breach of any obligation under this AGREEMENT by, the CONSULTANT or the CONSULTANT's agents, employees, sub consultants, subcontractors or vendors, of any tier, or any other persons for whom the CONSULTANT may be legally liable; provided that nothing herein shall require a CONSULTANT to defend or indemnify the STATE and the AGENCY and their officers and employees against and hold harmless the STATE and the AGENCY and their officers and employees from claims, demands or suits based solely upon the negligence of, or breach of any obligation under this AGREEMENT by the STATE and the AGENCY, their agents, officers, employees, sub -consultants, subcontractors or vendors, of any tier, or any other persons for whom the STATE and/or the AGENCY may be legally liable; and provided further that if the claims or suits are caused by or result from the concurrent negligence of (a) the CONSULTANT or the CONSULTANT's agents, employees, sub -consultants, subcontractors or vendors, of any tier, or any other persons for whom the CONSULTANT is legally liable, and (b) the STATE and/or AGENCY, their agents, officers, employees, sub -consultants, subcontractors and or vendors, of any tier, or any other persons for whom the STATE and/or AGENCY may be legally liable, the defense and indemnity obligation shall be valid and enforceable only to the extent of the CONSULTANT's negligence or the negligence of the CONSULTANT's agents, employees, sub -consultants, subcontractors or vendors, of any tier, or any other persons for whom the CONSULTANT may be legally liable. This provision shall be included in any AGREEMENT between CONSULTANT and any sub -consultant, subcontractor and vendor, of any tier. The CONSULTANT shall also defend, indemnify, and hold the STATE and the AGENCY and their officers and employees harmless from all claims, demands, or suits at law or equity arising in whole or in part from the alleged patent or copyright infringement or other allegedly improper appropriation or use of trade secrets, patents, proprietary information, know-how, copyright rights or inventions by the CONSULTANT or the CONSULTANT's agents, employees, sub -consultants, subcontractors or vendors, of any tier, or any other persons for whom the CONSULTANT may be legally liable, in performance of the Work under this AGREEMENT or arising out of any use in connection with the AGREEMENT of methods, processes, designs, information or other items furnished or communicated to STATE and/or the AGENCY, their agents, officers and employees pursuant to the AGREEMENT; provided that this indemnity shall not apply to any alleged patent or copyright infringement or other allegedly improper appropriation or use of trade secrets, patents, proprietary information, know-how, copyright rights or inventions resulting from STATE and/or the AGENCY's, their agents', officers' and employees' failure to comply with specific written instructions regarding use provided to STATE and/or the AGENCY, their agents, officers and employees by the CONSULTANT, their agents, employees, sub -consultants, subcontractors or vendors, of any tier, or any other persons for whom the CONSULTANT may be legally liable. The CONSULTANT's relation to the AGENCY shall be at all times as an independent contractor. Notwithstanding any determination by the Executive Ethics Board or other tribunal, the AGENCY may, in its sole discretion, by written notice to the CONSULTANT terminate this AGREEMENT if it is found after due notice and examination by the AGENCY that there is a violation of the Ethics in Public Service Act, Chapter 42.52 RCW; or any similar statute involving the CONSULTANT in the procurement of, or performance under, this AGREEMENT. The CONSULTANT specifically assumes potential liability for actions brought by the CONSULTANT's own employees or its agents against the STATE and/or 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. This waiver has been mutually negotiated by the Parties. Agreement Number: Local Agency Professional Services Cost Plus Fixed Fee Consultant Agreement Page 9 of 14 Revised 03/30/2021 Unless otherwise specified in this 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 this 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 insurance written under ISO Form CG 00 01 12 04 or its equivalent with minimum limits of one million dollars ($1,000,000.00) per occurrence and two million dollars ($2,000,000.00) in the aggregate for each policy period. C. Business auto liability insurance written under ISO Form CG 00 01 10 01 or equivalent providing coverage for any "Auto" (Symbol 1) used in an amount not less than a one million dollar ($1,000,000.00) combined single limit for each occurrence. Excepting the Worker's Compensation Insurance and any Professional Liability Insurance, the STATE and AGENCY, their officers, employees, and agents will be named on all policies of CONSULTANT and any sub - consultant and/or subcontractor as an additional insured (the "AIs"), with no restrictions or limitations concerning products and completed operations coverage. This coverage shall be primary coverage and non-contributory and any coverage maintained by the AIs shall be excess over, and shall not contribute with, the additional insured coverage required hereunder. The CONSULTANT's and the sub -consultant's and/or subcontractor's insurer shall waive any and all rights of subrogation against the AIs. The CONSULTANT shall furnish the AGENCY with verification of insurance and endorsements required by this 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 (14) days of the execution of this AGREEMENT to: Name: Bill Preston Agency: City of Yakima - Engineering Address: 129 N. 2nd St. City: Yakima State: WA Zip: 98901 Email: bill.prestonnayakimawa.gov Phone: 509-576-6754 Facsimile: N/A No cancellation of the foregoing policies shall be effective without thirty (30) days prior notice to the AGENCY. The CONSULTANT's professional liability to the AGENCY, including that which may arise in reference to section IX "Termination of Agreement" of this AGREEMENT, shall be limited to the accumulative amount of the authorized AGREEMENT amount or one million dollars ($1,000,000.00), whichever is greater, unless the limit of liability is increased by the AGENCY pursuant to Exhibit H. In no case shall the CONSULTANT's professional liability to third parties be limited in any way. Agreement Number: Local Agency Professional Services Cost Plus Fixed Fee Consultant Agreement Page 10 of 14 Revised 03/30/2021 The parties enter into this AGREEMENT for the sole benefit of the parties, and to the exclusion of any third party, and no third party beneficiary is intended or created by the execution of this AGREEMENT. The AGENCY will pay no progress payments under section V "Payment Provisions" until the CONSULTANT has fully complied with this section. This remedy is not exclusive; and the AGENCY may take such other action as is available to it under other provisions of this AGREEMENT, or otherwise in law. XIII. Extra Work A. The AGENCY may at any time, by written order, make changes within the general scope of this 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 SERVICES under this AGREEMENT, whether or not changed by the order, or otherwise affects any other terms and conditions of this AGREEMENT, the AGENCY shall make an equitable adjustment in the: (1) maximum amount payable; (2) delivery or completion schedule, or both; and (3) other affected terms and shall modify this AGREEMENT accordingly. C. The CONSULTANT must submit any "request for equitable adjustment," hereafter referred to as "CLAIM," under this clause within thirty (30) 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 this AGREEMENT. D. Failure to agree to any adjustment shall be a dispute under the section XI "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 (B.) 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. XIV. Endorsement of Plans If applicable, the CONSULTANT shall place their endorsement on all plans, estimates, or any other engineering data furnished by them. XV. Federal Review The Federal Highway Administration shall have the right to participate in the review or examination of the SERVICES in progress. XVI. Certification of the Consultant and the AGENCY Attached hereto as Exhibit "G-1(a and b)" are the Certifications of the CONSULTANT and the AGENCY, Exhibit "G-2" Certification Regarding Debarment, Suspension and Other Responsibility Matters - Primary Covered Transactions, Exhibit "G-3" Certification Regarding the Restrictions of the Use of Federal Funds for Lobbying and Exhibit "G-4" Certificate of Current Cost or Pricing Data. Exhibit "G-3" is required only in AGREEMENT's over one hundred thousand dollars ($100,000.00) and Exhibit "G-4" is required only in AGREEMENT's over five hundred thousand dollars ($500,000.00.) These Exhibits must be executed by the CONSULTANT, and submitted with the master AGREEMENT, and returned to the AGENCY at the address listed in section III "General Requirements" prior to its performance of any SERVICES under this AGREEMENT. Agreement Number: Local Agency Professional Services Cost Plus Fixed Fee Consultant Agreement Page 11 of 14 Revised 03/30/2021 XVII. 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 a supplement to this AGREEMENT. XVIII. 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 AGREEMENT's contained in the proposal, and the supporting material submitted by the CONSULTANT, and does hereby accept this AGREEMENT and agrees to all of the terms and conditions thereof. XIX. Protection of Confidential Information The CONSULTANT acknowledges that some of the material and information that may come into its possession or knowledge in connection with this AGREEMENT or its performance may consist of information that is exempt from disclosure to the public or other unauthorized persons under either chapter 42.56 RCW or other local, state or federal statutes ("State's Confidential Information"). The "State's Confidential Information" includes, but is not limited to, names, addresses, Social Security numbers, e-mail addresses, telephone numbers, financial profiles, credit card information, driver's license numbers, medical data, law enforcement records (or any other information identifiable to an individual), STATE and AGENCY source code or object code, STATE and AGENCY security data, non-public Specifications, STATE and AGENCY non -publicly available data, proprietary software, STATE and AGENCY security data, or information which may jeopardize any part of the project that relates to any of these types of information. The CONSULTANT agrees to hold the State's Confidential Information in strictest confidence and not to make use of the State's Confidential Information for any purpose other than the performance of this AGREEMENT, to release it only to authorized employees, sub -consultants or subcontractors requiring such information for the purposes of carrying out this AGREEMENT, and not to release, divulge, publish, transfer, sell, disclose, or otherwise make it known to any other party without the AGENCY's express written consent or as provided by law. The CONSULTANT agrees to release such information or material only to employees, sub -consultants or subcontractors who have signed a nondisclosure AGREEMENT, the terms of which have been previously approved by the AGENCY. The CONSULTANT agrees to implement physical, electronic, and managerial safeguards to prevent unauthorized access to the State's Confidential Information. Immediately upon expiration or termination of this AGREEMENT, the CONSULTANT shall, at the AGENCY's option: (i) certify to the AGENCY that the CONSULTANT has destroyed all of the State's Confidential Information; or (ii) returned all of the State's Confidential Information to the AGENCY; or (iii) take whatever other steps the AGENCY requires of the CONSULTANT to protect the State's Confidential Information. As required under Executive Order 00-03, the CONSULTANT shall maintain a log documenting the following: the State's Confidential Information received in the performance of this AGREEMENT; the purpose(s) for which the State's Confidential Information was received; who received, maintained and used the State's Confidential Information; and the final disposition of the State's Confidential Information. The CONSULTANT's records shall be subject to inspection, review, or audit upon reasonable notice from the AGENCY. The AGENCY reserves the right to monitor, audit, or investigate the use of the State's Confidential Information collected, used, or acquired by the CONSULTANT through this AGREEMENT. The monitoring, auditing, or investigating may include, but is not limited to, salting databases. Agreement Number: Local Agency Professional Services Cost Plus Fixed Fee Consultant Agreement Page 12 of 14 Revised 03/30/2021 Violation of this section by the CONSULTANT or its sub -consultants or subcontractors may result in termination of this AGREEMENT and demand for return of all State's Confidential Information, monetary damages, or penalties. It is understood and acknowledged that the CONSULTANT may provide the AGENCY with information which is proprietary and/or confidential during the term of this AGREEMENT. The parties agree to maintain the confidentiality of such information during the term of this AGREEMENT and afterwards. All materials containing such proprietary and/or confidential information shall be clearly identified and marked as "Confidential" and shall be returned to the disclosing party at the conclusion of the SERVICES under this AGREEMENT. The CONSULTANT shall provide the AGENCY with a list of all information and materials it considers confidential and/or proprietary in nature: (a) at the commencement of the term of this AGREEMENT; or (b) as soon as such confidential or proprietary material is developed. "Proprietary and/or confidential information" is not meant to include any information which, at the time of its disclosure: (i) is already known to the other party; (ii) is rightfully disclosed to one of the parties by a third party that is not acting as an agent or representative for the other party; (iii) is independently developed by or for the other party; (iv) is publicly known; or (v) is generally utilized by unaffiliated third parties engaged in the same business or businesses as the CONSULTANT. The parties also acknowledge that the AGENCY is subject to Washington State and federal public disclosure laws. As such, the AGENCY shall maintain the confidentiality of all such information marked proprietary and/ or confidential or otherwise exempt, unless such disclosure is required under applicable state or federal law. If a public disclosure request is made to view materials identified as "Proprietary and/or confidential information" or otherwise exempt information, the AGENCY will notify the CONSULTANT of the request and of the date that such records will be released to the requester unless the CONSULTANT obtains a court order from a court of competent jurisdiction enjoining that disclosure. If the CONSULTANT fails to obtain the court order enjoining disclosure, the AGENCY will release the requested information on the date specified. The CONSULTANT agrees to notify the sub -consultant of any AGENCY communication regarding disclosure that may include a sub -consultant's proprietary and/or confidential information. The CONSULTANT notification to the sub -consultant will include the date that such records will be released by the AGENCY to the requester and state that unless the sub -consultant obtains a court order from a court of competent jurisdiction enjoining that disclosure the AGENCY will release the requested information. If the CONSULTANT and/or sub -consultant fail to obtain a court order or other judicial relief enjoining the AGENCY by the release date, the CONSULTANT shall waive and release and shall hold harmless and indemnify the AGENCY from all claims of actual or alleged damages, liabilities, or costs associated with the AGENCY's said disclosure of sub -consultants' information. XX. Records Maintenance During the progress of the Work and SERVICES provided hereunder and for a period of not less than six (6) years from the date of final payment to the CONSULTANT, the CONSULTANT shall keep, retain and maintain all "documents" pertaining to the SERVICES provided pursuant to this AGREEMENT. Copies of all "documents" pertaining to the SERVICES provided hereunder shall be made available for review at the CONSULTANT's place of business during normal working hours. If any litigation, claim or audit is commenced, the CONSULTANT shall cooperate with AGENCY and assist in the production of all such documents. "Documents" shall be retained until all litigation, claims or audit findings have been resolved even though such litigation, claim or audit continues past the six (6) year retention period. For purposes of this AGREEMENT, "documents" means every writing or record of every type and description, including electronically stored information ("ESI"), that is in the possession, control, or custody of the CONSULTANT, including, without limitation, any and all correspondences, contracts, AGREEMENT `s, appraisals, plans, designs, data, surveys, maps, spreadsheets, memoranda, stenographic or handwritten notes, reports, records, telegrams, schedules, diaries, notebooks, logbooks, invoices, accounting records, work sheets, charts, notes, drafts, scribblings, recordings, visual displays, photographs, minutes of meetings, Agreement Number: Local Agency Professional Services Cost Plus Fixed Fee Consultant Agreement Page 13 of 14 Revised 03/30/2021 tabulations, computations, summaries, inventories, and writings regarding conferences, conversations or telephone conversations, and any and all other taped, recorded, written, printed or typed matters of any kind or description; every copy of the foregoing whether or not the original is in the possession, custody, or control of the CONSULTANT, and every copy of any of the foregoing, whether or not such copy is a copy identical to an original, or whether or not such copy contains any commentary or notation whatsoever that does not appear on the original. For purposes of this AGREEMENT, "ESI" means any and all computer data or electronic recorded media of any kind, including "Native Files", that are stored in any medium from which it can be retrieved and examined, either directly or after translation into a reasonably useable form. ESI may include information and/or documentation stored in various software programs such as: Email, Outlook, Word, Excel, Access, Publisher, PowerPoint, Adobe Acrobat, SQL databases, or any other software or electronic communication programs or databases that the CONSULTANT may use in the performance of its operations. ESI may be located on network servers, backup tapes, smart phones, thumb drives, CDs, DVDs, floppy disks, work computers, cell phones, laptops or any other electronic device that CONSULTANT uses in the performance of its Work or SERVICES hereunder, including any personal devices used by the CONSULTANT or any sub -consultant at home. "Native files" are a subset of ESI and refer to the electronic format of the application in which such ESI is normally created, viewed, and /or modified. The CONSULTANT shall include this section XX "Records Maintenance" in every subcontract it enters into in relation to this AGREEMENT and bind the sub -consultant to its terms, unless expressly agreed to otherwise in writing by the AGENCY prior to the execution of such subcontract. 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. Signature Signature CITY CONTRACTNtf RESOLUTiON NO: 07/17/2023 Date Any modification, change, or reformation of this AGREEMENT shall require approval as to form by the Office of the Attorney General. Agreement Number: Local Agency Professional Services Cost Plus Fixed Fee Consultant Agreement Page 14 of 14 Revised 03305/2021 Exhibit A Scope of Work See attached. Project No. Agreement Number: Exhibit A - Local Agency Professional Services Cost Plus Fixed Fee Consultant Agreement Revised 03/30/2021 Page 1 of 1 Exhibit B DBE Participation N/A Agreement Number: Exhibit B - Local Agency Professional Services Cost Plus Fixed Fee Consultant Agreement Revised 03/30/2021 Page 1 of 1 Exhibit C Preparation and Delivery of Electronic 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 N/A B. Roadway Design Files N/A C. Computer Aided Drafting Files N/A Agreement Number: Exhibit C - Local Agency Professional Services Cost Plus Fixed Fee Consultant Agreement Revised 03/30/2021 Page 1 of 4 D. Specify the Agency's Right to Review Product with the Consultant Agency shall have the right to review data when requested. E. Specify the Electronic Deliverables to Be Provided to the Agency Test reports if not on paper F. Specify What Agency Furnished Services and Information Is to Be Provided Contract plans and specifications Agreement Number: Exhibit C - Local Agency Professional Services Cost Plus Fixed Fee Consultant Agreement Revised 03/30/2021 Page 2 of 4 II. Any Other Electronic Files to Be Provided N/A III. Methods to Electronically Exchange Data Email or FTP Exhibit C - Local Agency Professional Services Cost Plus Fixed Fee Consultant Agreement Revised 03/30/2021 Page 3 of 4 A. Agency Software Suite N/A B. Electronic Messaging System Electronic files to be emailed to Agency. C. File Transfers Format N/A Exhibit C - Local Agency Professional Services Cost Plus Fixed Fee Consultant Agreement Revised 03/30/2021 Page 4 of 4 Exhibit D Prime Consultant Cost Computations See attached Agreement Number: Exhibit D - Local Agency Professional Services Cost Plus Fixed Fee Consultant Agreement Revised 03/30/2021 Page 1 of 1 Exhibit E Sub -consultant Cost Computations There isn't any sub -consultant participation at this time. The CONSULTANT shall not sub -contract for the performance of any work under this AGREEMENT without prior written permission of the AGENCY. Refer to section VI "Sub -Contracting" of this AGREEMENT. N/A Agreement Number: Exhibit E - Local Agency Professional Services Cost Plus Fixed Fee Consultant Agreement Revised 03/30/2021 Page 1 of 1 Exhibit F - Title VI Assurances Appendix A & E APPENDIX A During the performance of this contract, the contractor, for itself, its assignees, and successors in interest (hereinafter referred to as the "contractor") agrees as follows: 1. Compliance with Regulations: The contractor (hereinafter includes consultants) will comply with the Acts and the Regulations relative to Non-discrimination in Federally -assisted programs of the U.S. Department of Transportation, (Title of Modal Operating Administration), as they may be amended from time to time, which are herein incorporated by reference and made a part of this contract. 2. Non-discrimination: The contractor, with regard to the work performed by it during the contract, will not discriminate on the grounds of race, color, or national origin in the selection and retention of subcontractors, including procurements of materials and leases of equipment. The contractor will not participate directly or indirectly in the discrimination prohibited by the Acts and the Regulations, including employment practices when the contract covers any activity, project, or program set forth in Appendix B of 49 CFR Part 21. [Include Modal Operating Administration specific program requirements.] 3. Solicitations for Subcontracts, Including Procurements of Materials and Equipment: In all solicitations, either by competitive bidding, or negotiation made by the contractor for work to be performed under a subcontract, including procurements of materials, or leases of equipment, each potential subcontractor or supplier will be notified by the contractor of the contractor's obligations under this contract and the Acts and the Regulations relative to Non-discrimination on the grounds of race, color, or national origin. [Include Modal Operating Administration specific program requirements.] 4. Information and Reports: The contractor will provide all information and reports required by the Acts, the Regulations, and directives issued pursuant thereto and will permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the Recipient or the (Title of Modal Operating Administration) to be pertinent to ascertain compliance with such Acts, Regulations, and instructions. Where any information required of a contractor is in the exclusive possession of another who fails or refuses to furnish the information, the contractor will so certify to the Recipient or the (Title of Modal Operating Administration), as appropriate, and will set forth what efforts it has made to obtain the information. 5. Sanctions for Noncompliance: In the event of a contractor's noncompliance with the Non- discrimination provisions of this contract, the Recipient will impose such contract sanctions as it or the (Title of Modal Operating Administration) may determine to be appropriate, including, but not limited to: a. withholding payments to the contractor under the contract until the contractor complies; and/or b. cancelling, terminating, or suspending a contract, in whole or in part. 6. Incorporation of Provisions: The contractor will include the provisions of paragraphs one through six in every subcontract, including procurements of materials and leases of equipment, unless exempt by the Acts, the Regulations and directives issued pursuant thereto. The contractor will take action with respect to any subcontract or procurement as the Recipient or the (Title of Modal Operating Administration) may direct as a means of enforcing such provisions including sanctions for noncompliance. Provided, that if the contractor becomes involved in, or is threatened with litigation by a subcontractor, or supplier because of such direction, the contractor may request the Recipient to enter into any litigation to protect the interests of the Recipient. In addition, the contractor may request the United States to enter into the litigation to protect the interests of the United States. Local Agency Professional Services Cost Plus Agreement Number Fixed Fee Consultant Agreement Revised 03/30/2021 Exhibit F - Title VI Assurances Appendix A & E APPENDIX E During the performance of this contract, the contractor, for itself, its assignees, and successors in interest (hereinafter referred to as the "contractor") agrees to comply with the following non-discrimination statutes and authorities; including but not limited to: Pertinent Non -Discrimination Authorities: • Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252), (prohibits discrimination on the basis of race, color, national origin); and 49 CFR Part 21. • The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42 U.S.C. § 4601), (prohibits unfair treatment of persons displaced or whose property has been acquired because of Federal or Federal -aid programs and projects); • Federal -Aid Highway Act of 1973, (23 U.S.C. § 324 et seq.), (prohibits discrimination on the basis of sex); • Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. § 794 et seq.), as amended, (prohibits discrimination on the basis of disability); and 49 CFR Part 27; • The Age Discrimination Act of 1975, as amended, (42 U.S.C. § 6101 et seq.), (prohibits discrimination on the basis of age); • Airport and Airway Improvement Act of 1982, (49 USC § 471, Section 47123), as amended, (prohibits discrimination based on race, creed, color, national origin, or sex); • The Civil Rights Restoration Act of 1987, (PL 100-209), (Broadened the scope, coverage and applicability of Title VI of the Civil Rights Act of 1964, The Age Discrimination Act of 1975 and Section 504 of the Rehabilitation Act of 1973, by expanding the definition of the terms "programs or activities" to include all of the programs or activities of the Federal -aid recipients, sub -recipients and contractors, whether such programs or activities are Federally funded or not); • Titles II and III of the Americans with Disabilities Act, which prohibit discrimination on the basis of disability in the operation of public entities, public and private transportation systems, places of public accommodation, and certain testing entities (42 U.S.C. §§ 12131-12189) as implemented by Department of Transportation regulations at 49 C.F.R. parts 37 and 38; • The Federal Aviation Administration's Non-discrimination statute (49 U.S.C. § 47123) (prohibits discrimination on the basis of race, color, national origin, and sex); • Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low -Income Populations, which ensures discrimination against minority populations by discouraging programs, policies, and activities with disproportionately high and adverse human health or environmental effects on minority and low-income populations; • Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency, and resulting agency guidance, national origin discrimination includes discrimination because of limited English proficiency (LEP). To ensure compliance with Title VI, you must take reasonable steps to ensure that LEP persons have meaningful access to your programs (70 Fed. Reg. at 74087 to 74100); • Title IX of the Education Amendments of 1972, as amended, which prohibits you from discriminating because of sex in education programs or activities (20 U.S.C. 1681 et seq). Local Agency Professional Services Cost Plus Agreement Number Fixed Fee Consultant Agreement Revised 03/30/2021 Exhibit G Certification Documents Exhibit G-1(a) Certification of Consultant Exhibit G-1(b) Certification of Exhibit G-2 Certification Regarding Debarment, Suspension and Other Responsibility Matters - Primary Covered Transactions Exhibit G 3 Certification Regarding the Restrictions of the Use of Federal Funds for Lobbying Exhibit G 1 Certificate of Current Cost or Pricing Data Agreement Number: Exhibit G - Local Agency Professional Services Cost Plus Fixed Fee Consultant Agreement Revised 03/30/2021 Page 1 of 1 Exhibit G-1(a) Certification of Consultant I hereby certify that I am the and duly authorized representative of the firm of Preston L. Shepard and Associates whose address is 521 N. 20th Ave. Ste. 3, Yakima, WA 98902 and that neither the above firm nor I have: 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 this 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 furnished to the City of Yakima 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. PLSA Engineering & Surveying Inc. Consultant (Firm Name) LS/ 07/17/2023 Signature (Authorized Official of Consultant) Date Agreement Number: Exhibit G - Local Agency Professional Services Cost Plus Fixed Fee Consultant Agreement Revised 03/30/2021 Page 1 of 1 Exhibit G-1 (b) Certification of AGENCY OFFICIAL I hereby certify that I am the: ❑ City Engineer, Bill Preston ❑ Other of the City of Yakima , and Preston L. Shepard and Associates 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 furnished to the City of Yakima 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. Signature Date Agreement Number: 3H3H NoiSagency Professional Services Cost Plus Fixed Fee Consultant Agreement Revised 03/30/2021 Page 1 of 1 Exhibit G-2 Certification Regarding Debarment, Suspension and Other Responsibility Matters - Primary Covered Transactions 1. 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 (3) year period preceding this proposal been convicted of or had a civil judgment rendered against them for commission of 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 anti-trust 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 (1)(b) of this certification; and D. Have not within a three (3) year period preceding this application / proposal had one or more public transactions (Federal, State and local) terminated for cause or default. II. 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. Preston L. Shepard and Associates Consultant (Firm Name) 07/17/2023 Signature (Authorized Official of Consultant) Date Agreement Number: Exhibit G - Local Agency Professional Services Cost Plus Fixed Fee Consultant Agreement Revised 03/30/2021 Page 1 of 1 Exhibit H Liability Insurance Increase To Be Used Only If Insurance Requirements Are Increased The professional liability limit of the CONSULTANT to the AGENCY identified in Section XII, Legal Relations and Insurance of this Agreement is amended to $ N/A The CONSULTANT shall provide Professional Liability insurance with minimum per occurrence limits in the amount of $ N/A Such insurance coverage shall be evidenced by one of the following methods: • Certificate of Insurance. • Self-insurance through an irrevocable Letter of Credit from a qualified financial institution. Self-insurance through documentation of a separate fund established exclusively for the payment of professional liability claims, including claim amounts already reserved against the fund, safeguards established for payment from the fund, a copy of the latest annual financial statements, and disclosure of the investment portfolio for those funds. Should the minimum Professional Liability insurance limit required by the AGENCY as specified above exceed $1 million per occurrence or the value of the contract, whichever is greater, then justification shall be submitted to the Federal Highway Administration (FHWA) for approval to increase the minimum insurance limit. If FHWA approval is obtained, the AGENCY may, at its own cost, reimburse the CONSULTANT for the additional professional liability insurance required. Notes: Cost of added insurance requirements: $ • Include all costs, fee increase, premiums. • This cost shall not be billed against an FHWA funded project. • For final contracts, include this exhibit. Agreement Number: Exhibit H - Local Agency Professional Services Cost Plus Fixed Fee Consultant Agreement Revised 03/30/2021 Page 1 of 1 Exhibit I Alleged Consultant Design Error Procedures The purpose of this exhibit is to establish a procedure to determine if a consultant's alleged design error is of a nature that exceeds the accepted standard of care. In addition, it will establish a uniform method for the resolution and/or cost recovery procedures in those instances where the agency believes it has suffered some material damage due to the alleged error by the consultant. Step 1 Potential Consultant Design Error(s) is Identified by Agency's Project Manager At the first indication of potential consultant design error(s), the first step in the process is for the Agency's project manager to notify the Director of Public Works or Agency Engineer regarding the potential design error(s). For federally funded projects, the Region Local Programs Engineer should be informed and involved in these procedures. (Note: The Director of Public Works or Agency Engineer may appoint an agency staff person other than the project manager, who has not been as directly involved in the project, to be responsible for the remaining steps in these procedures.) Step 2 Project Manager Documents the Alleged Consultant Design Error(s) After discussion of the alleged design error(s) and the magnitude of the alleged error(s), and with the Director of Public Works or Agency Engineer's concurrence, the project manager obtains more detailed documentation than is normally required on the project. Examples include: all decisions and descriptions of work; photographs, records of labor, materials and equipment. Step 3 Contact the Consultant Regarding the Alleged Design Error(s) If it is determined that there is a need to proceed further, the next step in the process is for the project manager to contact the consultant regarding the alleged design error(s) and the magnitude of the alleged error(s). The project manager and other appropriate agency staff should represent the agency and the consultant should be represented by their project manager and any personnel (including sub -consultants) deemed appropriate for the alleged design error(s) issue. Step 4 Attempt to Resolve Alleged Design Error with Consultant After the meeting(s) with the consultant have been completed regarding the consultant's alleged design error(s), there are three possible scenarios: • It is determined via mutual agreement that there is not a consultant design error(s). If this is the case, then the process will not proceed beyond this point. • It is determined via mutual agreement that a consultant design error(s) occurred. If this is the case, then the Director of Public Works or Agency Engineer, or their representatives, negotiate a settlement with the consultant. The settlement would be paid to the agency or the amount would be reduced from the consultant's agreement with the agency for the services on the project in which the design error took place. The agency is to provide LP, through the Region Local Programs Engineer, a summary of the settlement for review and to make adjustments, if any, as to how the settlement affects federal reimbursements. No further action is required. • There is not a mutual agreement regarding the alleged consultant design error(s). The consultant may request that the alleged design error(s) issue be forwarded to the Director of Public Works or Agency Engineer for review. If the Director of Public Works or Agency Engineer, after review with their legal counsel, is not able to reach mutual agreement with the consultant, proceed to Step 5. Agreement Number: Exhibit 1- Local Agency Professional Services Cost Plus Fixed Fee Consultant Agreement Revised 03/30/2021 Page 1 of 2 Step 5 Forward Documents to Local Programs For federally funded projects all available information, including costs, should be forwarded through the Region Local Programs Engineer to LP for their review and consultation with the FHWA. LP will meet with representatives of the agency and the consultant to review the alleged design error(s), and attempt to find a resolution to the issue. If necessary, LP will request assistance from the Attorney General's Office for legal interpretation. LP will also identify how the alleged error(s) affects eligibility of project costs for federal reimbursement. • If mutual agreement is reached, the agency and consultant adjust the scope of work and costs to reflect the agreed upon resolution. LP, in consultation with FHWA, will identify the amount of federal participation in the agreed upon resolution of the issue. • If mutual agreement is not reached, the agency and consultant may seek settlement by arbitration or by litigation. Agreement Number: Exhibit 1- Local Agency Professional Services Cost Plus Fixed Fee Consultant Agreement Revised 03/30/2021 Page 2 of 2 Exhibit J 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 forward 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, forward a copy of the consultant's claim and the Agency's recommendation for federal participation in the claim to the WSDOT 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 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 and/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. If the Agency does not agree with the consultant's claim, proceed to step 3 of the procedures. Agreement Number: Exhibit J - Local Agency Professional Services Cost Plus Fixed Fee Consultant Agreement Revised 03/30/2021 Page 1 of 2 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 Public 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 Local Programs and FHWA regarding final 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 final decision regarding the consultant's claim(s). Include the final 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 and/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. Agreement Number: Exhibit J - Local Agency Professional Services Cost Plus Fixed Fee Consultant Agreement Revised 03/30/2021 Page 2 of 2 PLSA ENGINEERING & SURVEYING 521 No. 20th Avenue Suite 3 YAKIMA, WA 98902 TELEPHONE (509) 575-6990 FAX (509) 575-6993 WWW.PLSAOFYAKI MA.COM 2023 City of Yakima Lower Cowiche Creek Trail proj ect Statement of Qualifications 2023 Special Inspection/Testing PLSA ENGINEERING & SURVEYING SC l'T I). GARLAND, PE. RICH:\RD I.. LVEHR, PLS 1OSE:PH W RAKER, PLS SYLUS S, SEL.BFRG, PLANNING June 21, 2023 Bill Preston, PE City Engineer Engineering Division 129 North Second Street, 2nd Floor Yakima, WA 98901 Re: Statement of Qualifications Lower Cowiche Creek Trail Dear Mr. Preston: Our firm would be privileged to provide Special Inspections and Testing services for your needs on this project. Enclosed is a summary of professional services that PLSA can provide to you for this project. PLSA has a legacy of successfully delivering top quality performance on schedule, within budget and tailored to the individual needs of the client. We are a diverse firm with primary areas of expertise in civil engineering, land surveying, and construction quality control testing and special inspection. During the last 59 years, our clients have included governmental agencies, school districts, churches, utility districts and a great number of private sector developers throughout the State of Washington. PLSA has one primary office located in Yakima, Washington and is an Equal Opportunity Employer completely compliant with governmental regulations. PLSA carries a General Liability Insurance Policy with a one -million -dollar limit per occurrence, two million general aggregate and a Professional Liability Insurance Policy with a two -million - dollar limit per occurrence, two -million -dollar general aggregate. Certificates of Insurance are available upon request. Enclosed you will find our breakdown of the information requested. I sincerely believe that upon review of our credentials, you will determine that PLSA will provide the best possible services with the highest level of efficiency and professionalism. Thank you for your time and consideration. Sincerely, Scott Garland 521 North 20 `Avenue. Suite 3 Yakima. Washington 98902 • i5091 575-6990 • info©pisaofyakim .om SCOTT D. GARLAND, P.E. President Principal Engineer Specialized Professional Assignment Engineering design responsibilities include the design of residential and commercial development including domestic water systems, wastewater collection systems, and stormwater collection facilities. Engineering duties also require the design of reinforced concrete, timber, reinforced earth structures, earth retaining structures, geotechnical investigations and soil bearing support recommendations, Responsibilities include quality control and inspection of construction materials and methods, verification and testing of construction materials including soil, concrete, bolting and welding as well as supervision of other quality control testing personnel. Representative Experience Performed all design and drafting requirements for a 40-acre commercial development site. This includes off -site municipal utilities, roadways, and on -site grade and stormwater drainage design. Performed construction monitoring, including inspection of reinforcing steel, welded steel joints and bolted steel connections. Also performed field tests for concrete and the casting of concrete test cylinders for compression testing. Provided soil compaction testing and solutions to aid the contractor in meeting density requirements. Soil density and moisture content were determined by the use of a Nuclear Densometer. Laboratory soil tests performed include Standard and Modified Proctors, Gradation Analysis, and the determination of Atterberg Limits. Director of quality control project personnel. Designed a variety of structural components for residential and commercial structures. This includes reinforced concrete design, timber design, and reinforced earth structure design. Researched site history, compiled environmental hazards data, and prepared environmental site assessment report for commercial manufacturing site. Attained 10 years of practical construction field experience prior to entering the Engineering profession. Experience includes construction management and scheduling. Academic Background AS, Solar Energy Systems Design, 1983 AS, Pre -Engineering, 1996 BSCE, University of Washington, 1999 Licenses PE, Washington State, 2010, No. 46938 Licensed Nuclear Gauge Operator, Washington Affiliations Society of Professional Engineers DEMIAN WALTER QC Lab and Field Technician/Estimator Specialized Professional Assignment Quality control technician responsible for inspection and testing of soil, concrete, reinforcement placement, masonry and asphalt, bolting and welding, spray applied fireproofmg for conformance to contract specification drawings and UBC requirements. Also performs laboratory testing procedures as per ASTM, AASHTO, and/or WSDOT methods. Experience 26 years overall experience Representative Experience • Inspect and test soil using a nuclear density/moisture gauge. • Inspect concrete forms and reinforcement placement, sample and test concrete for slump, air content, cast test cylinders for compressive strength. • Inspect reinforced masonry, grout, and mortar. • Perform compaction testing on asphaltic concrete using nuclear densometer gauge. • Perform laboratory tests on soil and aggregate. • Perform laboratory tests on asphalt. • Perform laboratory tests on concrete. • Verify and inspect bolting and welding of structural steel • Spray on Fireproofing. • Project Estimator. • Monitor Engineered Fill Operations. Proiect Experience • Goldendale Energy Center for Calpine and Nepco • The M.A.T.E.S. Facility for the Army National Guard • Highway 97 paving project at Satus Pass with the Washington State DOT • U.S. Army Umatilla Chemical Depot Incinerator for Raytheon • Concrete testing for U.S. Army @ Fort Greely, AK • Interstate 82- Selah Interchange • Various projects at Hanford Nuclear Reservation • Yakama Legends Casino & Event Center • Central Washington University Music Facility Phase I & II • Central Washington University Sue Lombard Hall • Central Washington University Science Facility • Yakima Valley Higher Education Center for Central Washington University • Outlook Elementary School in Outlook, WA • Sierra Vista Middle School, Sunnyside, WA • Central Washington University Sub/Rec. Building • Ace Hardware Distribution Center, Moxee, WA • Central Washington University Barto Hall • Central Washington University Student Village • Central Washington University Hogue Hall • Pacific NW University of Health Sciences • Toppenish, High School • Fort Simcoe Dormitory Buildings, White Swan, WA • Union Gap K-8 School, Union Gap, WA • Hentage University Science Building, Toppenish, WA • East Valley High School, Moxee, WA Licenses and Certifications ACI Level I Concrete Field Testing Certified Licensed Nuclear Gauge Operator ICC Certified Spray Applied Fire Proofing Special Inspector JOSHUA CAFFREY Testing Manager: Supervising Lab Technician Specialized Professional Assignment Quality control technician responsible for lab management and performs laboratory testing procedures as per ASTM, AASHTO, and/or WSDOT methods. Josh inspects and tests soil, concrete, reinforcement placement, masonry and asphalt for conformance to contract specification drawings and UBC requirements. Experience 27 years overall experience Representative Experience Inspect and test soil using a nuclear density/moisture gauge. Inspect concrete forms and reinforcement placement, sample and test concrete for slump, air content, cast test cylinders for compressive strength. Inspect masonry grout and mortar. Perform compaction testing on asphaltic concrete using nuclear gauge. Sieve/Gradation of all soils and aggregates. Rice of asphalt. Extraction/Gradation of asphalt. Verify and inspect bolting and welding of structural steel. Spray on Fireproofing Project Experience • U.S. Army Umatilla Chemical Depot Incinerator for Raytheon • Various projects at Hanford Nuclear Reservation • Various projects for the City of Yakima • Yakama Legends Casino Event Center • Central Washington University Music Facility Phase I & II • Central Washington University Science Facility • Yakima Valley Higher Education Center for Central Washington University • Pendleton Airport Runways, Pendleton, OR • Pendleton High School, Pendleton, OR • Cle Elum Fish Hatchery for U.S. Dept. of Fish & Wildlife • Yakima Valley Community College Anthon Glenn Hall, Yakima, WA • Ace Hardware Distribution Center, Moxee, WA • Central Washington University Dean Hall • Central Washington University Student Village • Pacific NW University of Health Sciences • Toppenish, High School • Fort Simcoe Dormitory Buildings, White Swan, WA • Union Gap K-8 School, Union Gap, WA • Heritage University Science Building, Toppenish, WA Licenses and Certifications Licensed Nuclear Gauge Operator ACI Level I Concrete Field Testing Certified Soil, asphalt and concrete certified ICC Certified Masonry O�U CERTIFICATE OF AASH 0 ACCREDITATION ACCREDITED PLSA Engineering In Yakima, Washington, USA AMERICAN ASSOCIATION nr STATE HtGMWAY AND TRANSPORTATION OFFICIALS AASHIO has demonstrated proficiency for the testing of construction materials and has conformed to the requirements established in AASHTO R 18 and the AASHTO Accreditation policies established by the AASHTO Committee on Materials and Pavements. The scope of accreditation can be viewed on the Directory of AASHTO Accredited Laboratories (aashtoresource.org). Tymon, Moe Jamshidi, AASHTO Executive Director AASHTO COMP Chair This certificate was generated on 11/18/2021 at 5:16 PM Eastern Time. Please confirm the current accreditation status of this laboratory at aashtoresource.org/aap/accreditation-directory AASHI❑ ACCREDITED SCOPE OF AAS HTO ACCREDITATION FOR: PLSA Engineering in Yakima, Washington, USA Quality Management System Standard: R18 Establishing and Implementing a Quality System for Construction Materials Testing Laboratories Page 1 of 3 Accredited Since: 07/15/2002 This certificate was generated on 11/18/2021 at 5:16 PM Eastern Time. Please confirm the current accreditation status of this laboratory at aashtoresource.org/aap/accreditation-directory AASHIO ACCREDITED SCOPE OF AASHTO ACCREDITATION FOR: PLSA Engineering in Yakima, Washington, USA Soil Standard: Accredited Since: T100 Specific Gravity of Soils D698 The Moisture -Density Relations of Soils Using a 5.5 Ib [2.5 kg] Rammer and a 12 in. [305 mm] Drop D1140 Amours o aterial in Soils Finer than the No. 200 (75-pm) Sieve D1557 Moisture -Density Relations of Soils Using a 10 Ib [4.54 kg] Rammer and an 18 in. [457 mm] Drop D2216 Laboratory Determination of Moisture Content of Soils miataalliMPF Page 2 of 3 This certificate was generated on 11/18/2021 at 5:16 PM Eastern Time. Please confirm the current accreditation status of this laboratory at aashtoresource.org/aap/accreditation-directory 07/15/2002 07/15/2002 07/15/2002 07/15/2002 07/15/2002 AASHIO ACCREDITED SCOPE OF AASHTO ACCREDITATION FOR: PLSA Engineering in Yakima, Washington, USA Aggregate Standard: C117 (Fine Aggregate) Material Finer Than 75-pm (No. 200) Sieve C136 (Fine Aggregate) Sieve Analysis of Aggregates D241 'Plastic Fines in Graded Aggregates and Soils by Use of the Sand Equivalent Test Page 3 of 3 Accredited Since: 10/08/2013 10'08/2013 12/22/2003 This certificate was generated on 11/18/2021 at 5:16 PM Eastern Time. Please confirm the current accreditation status of this laboratory at aashtoresource.org/aap/accreditation-directory PLSA ENGINEERING & SURVEYING SCOTT D. GARLAND, P.E. 1OSEPH W. BAKER, PLS RICFIARD 1.,. WEHR, PLS SYLUS S. SELBERG, PLANNING PLSA RATE SHEET FOR QC TESTING & SPECIAL INSPECTIONS For the purpose of estimating fees for our services, the following are examples of costs of some of the typical tests that PLSA performs. Actual billing will be based on an hourly basis. Personnel Principal Engineer Field Technician Office Administration Special Inspector Lab Technician AWS Weld Inspector $ 250/ hour $ 105 /hour $ 95 /hour $ 105 /hour $ 105 /hour $ 100 /hour Field Testing Cost to perform concrete control testing in field (one test per pour) $290/visit Cost to perform rebar inspections $260/visit Cost to perform field density testing on soils (standard visit not requiring observation) $260/visit Cost to perform High Strength Bolt Inspections $320/visit Cost to perform epoxy anchors inspections $320/visit Cost to perform asphalt paving compaction testing $1,050/day Laboratory Moisture -Density Relationships Proctor Test (ASTM D 698/D1557) $260/each HMA Rice/Extraction/Gradation of HMA $370/each Sieve Analysis $160/each Percent Fracture of Aggregates $55/each Concrete Compressive Strength Cost to test concrete cylinders $30/each 521 North 201' Avenue. Suite 3 • Yakima, ``Washington 98902 • (509) 575-6990 • uifo©plsaofvakima.com Local A • ency A : rofessional Se Cost Plus Fixed Fee Consultant A • ree ices ent Agreement Number: Firm/Organization Legal Name (do not use dba's): Gray & Osborne, Inc. Address 1130 Rainier Ave S., Suite 300, Seattle, WA 98144 UBI Number 600 087 923 Execution Date 1099 Form Required 0 Yes 0 No Federal Aid Number HLP-1485(024) Federal TIN or SSN Number 91-0890718 Completion Date December 31, 2026 Federal Participation I:: Yes No Project Title Cowiche Canyon Trail - Phase 1 - Construction Engineering Description of Work Construction Engineering for the Cowiche Canyon Trail project. Yes Yes 0 Yes El Yes Index of Exhibits El No DBE Participation 0 No MBE Participation 0 No WBE Participation El No SBE Participation Exhibit A Scope of Work Exhibit B DBE Participation Total Amount Authorized: $200,000.00 Management Reserve Fund: $0.00 Maximum Amount Payable: $200,000.00 Exhibit C Preparation and Delivery of Electronic Engineering and Other Data Exhibit D Prime Consultant Cost Computations Exhibit E Sub -consultant Cost Computations Exhibit F Title VI Assurances Exhibit G Certification Documents Exhibit H Liability Insurance Increase Exhibit I Alleged Consultant Design Error Procedures Exhibit J Consultant Claim Procedures Agreement Number: Local Agency A&E Professional Services Cost Plus Fixed Fee Consultant Agreement Page 1 of 14 Revised 02/01/2021 THIS AGREEMENT, made and entered into as shown in the "Execution Date" box on page one (1) of this AGREEMENT, between the City of Yakima hereinafter called the "AGENCY," and the "Firm / Organization Name" referenced on page one (1) of this AGREEMENT, hereinafter called the "CONSULTANT." WHEREAS, the AGENCY desires to accomplish the work referenced in "Description of Work" on page one (1) of this AGREEMENT and hereafter called the "SERVICES;" and 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; and WHEREAS, the CONSULTANT represents that they comply 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 ork The work under this AGREEMENT shall consist of the above -described SERVICES as herein defined, and necessary to accomplish the completed work for this project. The CONSULTANT shall furnish all services, labor, and related equipment and, if applicable, sub -consultants and subcontractors necessary to conduct and complete the SERVICES as designated elsewhere in this AGREEMENT. II. General Scope of ork The Scope of Work and projected level of effort required for these SERVICES is described in Exhibit "A" attached hereto and by this reference made a part of this AGREEMENT. The General Scope of Work was developed utilizing performance based contracting methodologies. 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, andJor individuals shall be coordinated through the AGENCY. The CONSULTANT shall attend coordination, progress, and presentation meetings with the AGENCY and/or such State, Federal, 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 SERVICES in sufficient detail so that the progress of the SERVICES can easily be evaluated. The CONSULTANT, any sub -consultants, and the AGENCY shall comply with all Federal, State, and local laws, rules, codes, regulations, and all AGENCY policies and directives, applicable to the work to be performed under this AGREEMENT. This AGREEMENT shall be interpreted and construed in accordance with the laws of the State of Washington. Agreement Number: Local Agency A&E Professional Services Cost Plus Fixed Fee Consultant Agreement Page 2 of 14 Revised 02/01/2021 Participation for Disadvantaged Business Enterprises (DBE) or Small Business Enterprises (SBE), if required, per 49 CFR Part 26, shall be shown on the heading of this AGREEMENT. If DBE firms are utilized at the commencement of this AGREEMENT, the amounts authorized to each firm and their certification number will be shown on Exhibit `B" attached hereto and by this reference made part of this AGREEMENT. If the Prime CONSULTANT is a DBE certified firm they must comply with the Commercial Useful Function (CUF) regulation outlined in the AGENCY's "DBE Program Participation Plan" and perform a minimum of 30% of the total amount of this AGREEMENT. It is recommended, but not required, that non -DBE Prime CONSULTANTS perform a minimum of 30% of the total amount of this AGREEMENT. In the absents of a mandatory DBE goal, a voluntary SBE goal amount of ten percent of the Consultant Agreement is established. The Consultant shall develop a SBE Participation Plan prior to commencing work. Although the goal is voluntary, the outreach efforts to provide SBE maximum practicable opportunities are not. The CONSULTANT, on a monthly basis, shall enter the amounts paid to all firms (including Prime) involved with this AGREEMENT into the wsdot.diversitycompliance.cotn program. Payment information shall identify any DBE Participation. 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 — Preparation and Delivery of Electronic Engineering and other Data." 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 these SERVICES, 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 SERVICE, shall be without liability or legal exposure to the CONSULTANT. Any and all notices or requests required under this AGREEMENT shall be made in writing and sent to the other party by (i) certified mail, return receipt requested, or (ii) by email or facsimile, to the address set forth below: If to AGENCY: Name: Bill Preston, City Engineer Agency: City of Yakima Address: 129 North Second Street City: Yakima State: WA Zip: 98901 Email: Bill.Preston@yakimawa.gov Phone: (509) 576-6754 Facsimile: (509) 576-6614 If to CONSULTANT: Name: Michael B. Johnson, President Agency: Gray & Osborne, Inc. Address: 1130 Rainier Ave South, Suite 300 City: Seattle State: WA Zip: 98144 Email: mjohnson@g-o.com Phone: (206) 284-0860 Facsimile: (206) 283-3206 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 titled "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, 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 time. Agreement Number: Local Agency AM Professional Services Cost Plus Fixed Fee Consultant Page 3 of 14 Agreement Revised 02/01/2021 V. Payment Provisions The CONSULTANT shall be paid by the AGENCY for completed SERVICES rendered under this AGREEMENT as provided hereinafter. Such payment shall be full compensation for SERVICES performed or SERVICES rendered and for all labor, materials, supplies, equipment, and incidentals necessary to complete SERVICES, specified in Section II, "Scope of Work". The CONSULTANT shall conform to all applicable portions of 48 CFR Part 31 (www.ecfr.gov). The estimate in support of the Cost Plus Fixed Fee amount is attached hereto as Exhibits "D" and "E" and by this reference made part of this AGREEMENT. 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, indirect cost rate, and direct non -salary costs. 1. Direct (RAW) Labor Costs: The Direct (RAW) Labor 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. Indirect Cost Rate (ICR) Costs: ICR 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 ICR rates shown in attached Exhibits "D" and "E" of this AGREEMENT. Total ICR payment shall be based on Actual Costs. The AGENCY agrees to reimburse the CONSULTANT the actual ICR 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 CONSULTANT'S cost estimate and the ICR percentage is shown in Exhibits "D" and "E", attached hereto and by this reference made part of this AGREEMENT. The CONSULTANT (prime and all A&E sub -consultants) will submit to the AGENCY within six (6) months after the end of each firm's fiscal year, an ICR schedule in the format required by the AGENCY (cost category, dollar expenditures, etc.) for the purpose of adjusting the ICR rate for billings received and paid during the fiscal year represented by the ICR schedule. It shall also be used for the computation of progress payments during the following year and for retroactively adjusting the previous year's ICR cost to reflect the actual rate. The ICR schedule will be sent to Email: ConsultantRates@wsdot.wa.gov. Failure to supply this information by either the prime CONSULTANT or any of their A&E sub -consultants shall cause the AGENCY to withhold payment of the billed ICR costs until such time as the required information is received and an overhead rate for billing purposes is approved. The AGENCY's Project Manager 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 ICR rate, if they so desire. 3. Direct Non -Salary Costs: Direct Non -Salary Costs will be reimbursed at the Actual Cost to the CONSULTANT. (excluding Meals, which are reimbursed at the per diem rates identified in this section) These charges may include, but are not limited to, the following items: travel, printing, long distance telephone, supplies, computer charges and fees of sub -consultants. 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 WSDOT's Accounting Manual M 13-82, Chapter 10 — Travel Rules and Procedures, and revisions thereto. Air, train, and rental car costs shall be reimbursed in accordance with 48 Code of Federal Regulations (CFR) Part 31.205-46 "Travel Costs." The billing for Direct Non -Salary Costs shall include an itemized listing of the charges directly identifiable with the PROJECT. 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. All above charges must be necessary for the services provided under this AGREEMENT. Agreement Number: Local Agency A&E Professional Services Cost Plus Fixed Fee Consultant Agreement Page 4 of 14 Revised 02/01/2021 4. Fixed Fee: The Fixed Fee, which represents the CONSULTANT'S profit, is shown in attached Exhibits "D" and "E" of this AGREEMENT. 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 (MRF): The AGENCY may desire to establish MRF 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% of the Total Amount Authorized as shown in the heading of this AGREEMENT. The amount included for the MRF is shown in the heading of this AGREEMENT. This fund may not be replenished. Any changes requiring additional costs in excess of the MRF shall be made in accordance with Section XIII, "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 MRF. The Maximum Total Amount Payable does not include payment for Extra Work as stipulated in Section XIII, "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 ICR and calculated 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 (RAW) Labor, Direct Non -Salary, and allowable ICR Costs to which will be added the prorated Fixed Fee. To provide a means of verifying the billed Direct (RAW) Labor costs for CONSULTANT employees, the AGENCY may conduct employee interviews. These interviews may consist of recording the names, titles, Direct (RAW) Labor 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, if applicable, 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 final audit; all required adjustments will be made and reflected in a final payment. In the event that such final audit reveals an overpayment to the CONSULTANT, the CONSULTANT will refund such overpayment to the AGENCY within thirty (30) calendar 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) working days after receipt of the final POST AUDIT to begin the appeal process to the AGENCY for audit findings. Agreement Number: Local Agency A&E Professional Services Cost Plus Fixed Fee Consultant Agreement Page 5 of 14 Revised 02/01/2021 D. Inspection of Cost Records: The CONSULTANT and their sub -consultants shall keep available for inspection by representatives of the AGENCY and the United States, for a period of six (6) years after receipt of final 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 AGREEMENT is initiated before the expiration of the six (6) year period, the cost records and accounts shall be retained until such litigation, claim, or audit involving the records is completed. An interim or post audit may be performed on this AGREEMENT. The audit, if any, will be performed by the State Auditor, WSDOT's Internal Audit Office and/or at the request of the AGENCY's Project Manager. VI. Sub -Contracting The AGENCY permits subcontracts for those items of SERVICES as shown in Exhibit "A" attached hereto and by this reference made part of this AGREEMENT. The CONSULTANT shall not subcontract for the performance of any SERVICE under this AGREEMENT without prior written permission of the AGENCY. No permission for subcontracting shall create, between the AGENCY and sub -consultant, any contract or any other relationship. Compensation for this sub -consultant SERVICES shall be based on the cost factors shown on Exhibit "E" attached hereto and by this reference made part of this AGREEMENT. The SERVICES of the sub -consultant shall not exceed its maximum amount payable identified in each sub - consultant cost estimate unless a prior written approval has been issued by the AGENCY. All reimbursable direct labor, indirect cost rate, direct non -salary costs and fixed fee costs for the sub -consultant shall be negotiated and substantiated in accordance with section V "Payment Provisions" herein and shall be memorialized in a final written acknowledgement between the parties. All subcontracts shall contain all applicable provisions of this AGREEMENT, and the CONSULTANT shall require each sub -consultant or subcontractor, of any tier, to abide by the terms and conditions of this AGREEMENT. With respect to sub -consultant payment, the CONSULTANT shall comply with all applicable sections of the STATE's Prompt Payment laws as set forth in RCW 39.04.250 and RCW 39.76.011. The CONSULTANT, sub -recipient, or sub -consultant shall not discriminate on the basis of race, color, national origin, or sex in the performance of this AGREEMENT. The CONSULTANT shall carry out applicable requirements of 49 CFR Part 26 in the award and administration of DOT -assisted contracts. Failure by the CONSULTANT to carry out these requirements is a material breach of this AGREEMENT, which may result in the termination of this AGREEMENT or such other remedy as the recipient deems appropriate. VII. Employment and Organizational Conflict of Interest 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 this 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 Agreement Number: Local Agency At&E Professional Services Cost Plus Fixed Fee Consultant Agreement Page 6 of 14 Revised 02/01/2021 Compensation Act on behalf of said employees or other persons while so engaged, and any and all claims made by a 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 this AGREEMENT, any professional or technical personnel who are, or have been, at any time during the period of this AGREEMENT, in the employ of the United States Department of Transportation or the AGENCY, except regularly retired employees, without written consent of the public employer of such person if he/she will be working on this AGREEMENT for the CONSULTANT. VIII. Nondiscrimination During the performance of this AGREEMENT, the CONSULTANT, for itself, its assignees, sub -consultants, subcontractors and successors in interest, agrees to comply with the following laws and regulations: • Title VI of the Civil Rights Act of 1964 (42 U.S.C. Chapter 21 Subchapter V § 2000d through 2000d-4a) • Federal -aid Highway Act of 1973 (23 U.S.C. Chapter 3 § 324) • Rehabilitation Act of 1973 (29 U.S.C. Chapter 16 Subchapter V § 794) • Age Discrimination Act of 1975 (42 U.S.C. Chapter 76 § 6101 et. seq.) • Civil Rights Restoration Act of 1987 (Public Law 100-259) • American with Disabilities Act of 1990 (42 U.S.C. Chapter 126 § 12101 et. seq.) • 23 CFR Part 200 • 49 CFR Part 21 • 49 CFR Part 26 • RCW 49.60.180 In relation to Title VI of the Civil Rights Act of 1964, the CONSULTANT is bound by the provisions of Exhibit "F" attached hereto and by this reference made part of this AGREEMENT, and shall include the attached Exhibit "F" in every sub -contract, including procurement of materials and leases of equipment, unless exempt by the Regulations or directives issued pursuant thereto. X. Termination of Agreement The right is reserved by the AGENCY to terminate this AGREEMENT at any time with or without cause upon ten (10) 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 for actual hours charged and any appropriate fixed fee percentage at the time of termination of this AGREEMENT, plus any direct non -salary costs incurred up to the time of termination of this AGREEMENT. No payment shall be made for any SERVICES completed after ten (10) 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 in paragraph two (2) of this section, 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. In the event of a termination for default, the amount to be paid to the CONSULTANT shall be determined by the AGENCY with consideration given to the actual costs incurred by the CONSULTANT in perfolming SERVICES to the date of termination, the amount of SERVICES originally required which was satisfactorily completed to Agreement Number: Local Agency A&E Professional Services Cost Plus Fixed Fee Consultant Agreement Page 7 of 14 Revised 02/01/2021 date of termination, whether that SERVICE 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 SERVICES required and the time which may be required to do so, and other factors which affect the value to the AGENCY of the SERVICES 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 in paragraph two (2) of this section. 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 its employee's fault 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 and appropriate fixed fee percentage in accordance with the termination for other than default clauses listed previously. The CONSULTANT shall, within 15 days, notify the AGENCY in writing, in the event of the death of any member, partner, or officer of the CONSULTANT or the death or change of any of the CONSULTANT's supervisory and/or other key personnel assigned to the project or disaffiliation of any principally involved CONSULTANT employee. The CONSULTANT shall also notify the AGENCY, in writing, in the event of the sale or transfer of 50% or more of the beneficial ownership of the CONSULTANT within 15 days of such sale or transfer occurring. The CONSULTANT shall continue to be obligated to complete the SERVICES under the terms of this AGREEMENT unless the AGENCY chooses to terminate this AGREEMENT for convenience or chooses to renegotiate any term(s) of this AGREEMENT. If termination for convenience occurs, final payment will be made to the CONSULTANT as set forth in the second and third paragraphs of this section. Payment for any part of the SERVICES 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 SERVICES 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 completed work of this AGREEMENT as necessary to correct errors appearing therein, without additional compensation thereof. Should the AGENCY find it desirable for its own purposes to have previously satisfactorily completed SERVICES 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 XIII "Extra Work." XI. Disputes Any disputed issue not resolved pursuant to the terms of this AGREEMENT shall be submitted in writing within 10 days 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 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". In the event that either party deem it necessary to institute legal action or proceeding to enforce any right or obligation under this AGREEMENT, this 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 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. Agreement Number: Local Agency ASE Professional Services Cost Plus Fixed Fee Consultant Agreement Page 8 of 14 Revised 02/01/2021 XII. Legal Relations The CONSULTANT, any sub -consultants, and the AGENCY shall comply with all Federal, State, and local laws, rules, codes, regulations and all AGENCY policies and directives, applicable to the work to be performed under this AGREEMENT. This AGREEMENT shall be interpreted and construed in accordance with the laws of the State of Washington. The CONSULTANT shall defend, indemnify, and hold The State of Washington (STATE) and the AGENCY and their officers and employees harmless from all claims, demands, or suits at law or equity arising in whole or in part from the negligence of, or the breach of any obligation under this AGREEMENT by, the CONSULTANT or the CONSULTANT's agents, employees, sub consultants, subcontractors or vendors, of any tier, or any other persons for whom the CONSULTANT may be legally liable; provided that nothing herein shall require a CONSULTANT to defend or indemnify the STATE and the AGENCY and their officers and employees against and hold harmless the STATE and the AGENCY and their officers and employees from claims, demands or suits based solely upon the negligence of, or breach of any obligation under this AGREEMENT by the STATE and the AGENCY, their agents, officers, employees, sub -consultants, subcontractors or vendors, of any tier, or any other persons for whom the STATE and/or the AGENCY may be legally liable; and provided further that if the claims or suits are caused by or result from the concurrent negligence of (a) the CONSULTANT or the CONSULTANT's agents, employees, sub -consultants, subcontractors or vendors, of any tier, or any other persons for whom the CONSULTANT is legally liable, and (b) the STATE and/or AGENCY, their agents, officers, employees, sub -consultants, subcontractors and or vendors, of any tier, or any other persons for whom the STATE and or AGENCY may be legally liable, the defense and indemnity obligation shall be valid and enforceable only to the extent of the CONSULTANT's negligence or the negligence of the CONSULTANT's agents, employees, sub -consultants, subcontractors or vendors, of any tier, or any other persons for whom the CONSULTANT may be legally liable. This provision shall be included in any AGREEMENT between CONSULTANT and any sub -consultant, subcontractor and vendor, of any tier. The CONSULTANT shall also defend, indemnify, and hold the STATE and the AGENCY and their officers and employees harmless from all claims, demands, or suits at law or equity arising in whole or in part from the alleged patent or copyright infringement or other allegedly improper appropriation or use of trade secrets, patents, proprietary information, know-how, copyright rights or inventions by the CONSULTANT or the CONSULTANT's agents, employees, sub -consultants, subcontractors or vendors, of any tier, or any other persons for whom the CONSULTANT may be legally liable, in performance of the Work under this AGREEMENT or arising out of any use in connection with the AGREEMENT of methods, processes, designs, information or other items furnished or communicated to STATE and/or the AGENCY, their agents, officers and employees pursuant to the AGREEMENT; provided that this indemnity shall not apply to any alleged patent or copyright infringement or other allegedly improper appropriation or use of trade secrets, patents, proprietary information, know-how, copyright rights or inventions resulting from STATE and/or AGENCY's, their agents', officers' and employees' failure to comply with specific written instructions regarding use provided to STATE and/or AGENCY, their agents, officers and employees by the CONSULTANT, its agents, employees, sub -consultants, subcontractors or vendors, of any tier, or any other persons for whom the CONSULTANT may be legally liable. The CONSULTANT's relation to the AGENCY shall be at all times as an independent contractor. Notwithstanding any determination by the Executive Ethics Board or other tribunal, the AGENCY may, in its sole discretion, by written notice to the CONSULTANT terminate this AGREEMENT if it is found after due notice and examination by the AGENCY that there is a violation of the Ethics in Public Service Act, Chapter 42.52 RCW; or any similar statute involving the CONSULTANT in the procurement of, or performance under, this AGREEMENT. The CONSULTANT specifically assumes potential liability for actions brought by the CONSULTANT's own employees or its agents against the STATE and /or 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. This waiver has been mutually negotiated between the Parties. Agreement Number: Local Agency A&E Professional Services Cost Plus Fixed Fee Consultant Agreement Page 9 of 14 Revised 02/01/2021 Unless otherwise specified in this 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 this 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 insurance written under ISO Form CG 00 01 12 04 or its equivalent with minimum limits of one million dollars ($1,000,000.00) per occurrence and two million dollars ($2,000,000.00) in the aggregate for each policy period. C. Business auto liability insurance written under ISO Form CG 00 01 10 01 or equivalent providing coverage for any "Auto" (Symbol 1) used in an amount not less than a one million dollar ($1,000,000.00) combined single limit for each occurrence. Excepting the Worker's Compensation Insurance and any Professional Liability Insurance, the STATE and AGENCY, their officers, employees, and agents will be named on all policies of CONSULTANT and any sub - consultant and/or subcontractor as an additional insured (the "AIs"), with no restrictions or limitations concerning products and completed operations coverage. This coverage shall be primary coverage and non-contributory and any coverage maintained by the AIs shall be excess over, and shall not contribute with, the additional insured coverage required hereunder. The CONSULTANT's and the sub -consultant's and/or subcontractor's insurer shall waive any and all rights of subrogation against the AIs. The CONSULTANT shall furnish the AGENCY with verification of insurance and endorsements required by this 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 (14) days of the execution of this AGREEMENT to: Name: Bill Preston, City Engineer Agency: City of Yakima Address: 129 North Second Street City: Yakima State: WA Zip: 98901 Email: Bill.Preston@yakimawa.gov Phone: (509) 576-6754 Facsimile: (509) 576-6614 No cancellation of the foregoing policies shall be effective without thirty (30) days prior notice to the AGENCY. The CONSULTANT's professional liability to the AGENCY, including that which may arise in reference to section IX "Termination of Agreement" of this AGREEMENT, shall be limited to the accumulative amount of the authorized AGREEMENT amount or one million dollars ($1,000,000.00), whichever is greater, unless the limit of liability is increased by the AGENCY pursuant to Exhibit H. In no case shall the CONSULTANT's professional liability to third parties be limited in any way. Agreement Number: Local Agency A&E Professional Services Cost Plus Fixed Fee Consultant Agreement Page 10 of 14 Revised 02/01/2021 The parties enter into this AGREEMENT for the sole benefit of the parties, and to the exclusion of any third party, and no third party beneficiary is intended or created by the execution of this AGREEMENT. The AGENCY will pay no progress payments under section V "Payment Provisions" until the CONSULTANT has fully complied with this section. This remedy is not exclusive; and the AGENCY may take such other action as is available to it under other provisions of this AGREEMENT, or otherwise in law. XIII. Extra ork A. The AGENCY may at any time, by written order, make changes within the general scope of this 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 SERVICES under this AGREEMENT, whether or not changed by the order, or otherwise affects any other terms and conditions of this AGREEMENT, the AGENCY shall make an equitable adjustment in the: (1) maximum amount payable; (2) delivery or completion schedule, or both; and (3) other affected terms and shall modify this AGREEMENT accordingly. C. The CONSULTANT must submit any "request for equitable adjustment," hereafter referred to as "CLAIM," under this clause within thirty (30) 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 this AGREEMENT. D. Failure to agree to any adjustment shall be a dispute under the section XI "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 (B.) 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. XIV. Endorsement of Plans If applicable, the CONSULTANT shall place their endorsement on all plans, estimates, or any other engineering data furnished by them. XV. Federal Review The Federal Highway Administration shall have the right to participate in the review or examination of the SERVICES in progress. XVI. Certification of the Consultant and the Agency Attached hereto as Exhibit "G-1(a and b)" are the Certifications of the CONSULTANT and the AGENCY, Exhibit "G-2" Certification Regarding Debarment, Suspension and Other Responsibility Matters - Primary Covered Transactions, Exhibit "G-3" Certification Regarding the Restrictions of the Use of Federal Funds for Lobbying and Exhibit "G-4" Certificate of Current Cost or Pricing Data. Exhibit "G-3" is required only in AGREEMENT's over one hundred thousand dollars ($100,000.00) and Exhibit "G-4" is required only in AGREEMENT's over five hundred thousand dollars ($500,000.00.) These Exhibits must be executed by the CONSULTANT, and submitted with the master AGREEMENT, and returned to the AGENCY at the address listed in section III "General Requirements" prior to its performance of any SERVICES under this AGREEMENT. Agreement Number: Local Agency AM Professional Services Cost Plus Fixed Fee Consultant Agreement Page 11 of 14 Revised 02/01/2021 XVII. 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 a supplement to this AGREEMENT. XVIII. 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 AGREEMENT's contained in the proposal, and the supporting material submitted by the CONSULTANT, and does hereby accept this AGREEMENT and agrees to all of the terms and conditions thereof. XIX. Protection of Confidential Information The CONSULTANT acknowledges that some of the material and information that may come into its possession or knowledge in connection with this AGREEMENT or its performance may consist of information that is exempt from disclosure to the public or other unauthorized persons under either chapter 42.56 RCW or other local, state or federal statutes ("State's Confidential Information"). The "State's Confidential Information" includes, but is not limited to, names, addresses, Social Security numbers, e-mail addresses, telephone numbers, financial profiles, credit card information, driver's license numbers, medical data, law enforcement records (or any other information identifiable to an individual), STATE and AGENCY source code or object code, STATE and AGENCY security data, non-public Specifications, STATE and AGENCY non -publicly available data, proprietary software, State security data, or information which may jeopardize any part of the project that relates to any of these types of information. The CONSULTANT agrees to hold the State's Confidential Information in strictest confidence and not to make use of the State's Confidential Information for any purpose other than the performance of this AGREEMENT, to release it only to authorized employees, sub -consultants or subcontractors requiring such information for the purposes of carrying out this AGREEMENT, and not to release, divulge, publish, transfer, sell, disclose, or otherwise make it known to any other party without the AGENCY's express written consent or as provided by law. The CONSULTANT agrees to release such information or material only to employees, sub -consultants or subcontractors who have signed a nondisclosure AGREEMENT, the terms of which have been previously approved by the AGENCY. The CONSULTANT agrees to implement physical, electronic, and managerial safeguards to prevent unauthorized access to the State's Confidential Information. Immediately upon expiration or termination of this AGREEMENT, the CONSULTANT shall, at the AGENCY's option: (i) certify to the AGENCY that the CONSULTANT has destroyed all of the State's Confidential Information; or (ii) returned all of the State's Confidential Information to the AGENCY; or (iii) take whatever other steps the AGENCY requires of the CONSULTANT to protect the State's Confidential Information. As required under Executive Order 00-03, the CONSULTANT shall maintain a log documenting the following: the State's Confidential Information received in the performance of this AGREEMENT; the purpose(s) for which the State's Confidential Information was received; who received, maintained and used the State's Confidential Information; and the final disposition of the State's Confidential Information. The CONSULTANT's records shall be subject to inspection, review, or audit upon reasonable notice from the AGENCY. The AGENCY reserves the right to monitor, audit, or investigate the use of the State's Confidential Information collected, used, or acquired by the CONSULTANT through this AGREEMENT. The monitoring, auditing, or investigating may include, but is not limited to, salting databases. Agreement Number: Local Agency A&E Professional Services Cost Plus Fixed Fee Consultant Agreement Page 12 of 14 Revised 02/01/2021 Violation of this section by the CONSULTANT or its sub -consultants or subcontractors may result in termination of this AGREEMENT and demand for return of all State's Confidential Information, monetary damages, or penalties. It is understood and acknowledged that the CONSULTANT may provide the AGENCY with information which is proprietary and/or confidential during the term of this AGREEMENT. The parties agree to maintain the confidentiality of such information during the term of this AGREEMENT and afterwards. All materials containing such proprietary and/or confidential information shall be clearly identified and marked as "Confidential" and shall be returned to the disclosing party at the conclusion of the SERVICES under this AGREEMENT. The CONSULTANT shall provide the AGENCY with a list of all information and materials it considers confidential and/or proprietary in nature: (a) at the commencement of the term of this AGREEMENT; or (b) as soon as such confidential or proprietary material is developed. "Proprietary and/or confidential information" is not meant to include any information which, at the time of its disclosure: (i) is already known to the other party; (ii) is rightfully disclosed to one of the parties by a third party that is not acting as an agent or representative for the other party; (iii) is independently developed by or for the other party; (iv) is publicly known; or (v) is generally utilized by unaffiliated third parties engaged in the same business or businesses as the CONSULTANT. The parties also acknowledge that the AGENCY is subject to Washington State and federal public disclosure laws. As such, the AGENCY shall maintain the confidentiality of all such information marked proprietary and/ or confidential or otherwise exempt, unless such disclosure is required under applicable state or federal law. If a public disclosure request is made to view materials identified as "Proprietary and/or confidential information" or otherwise exempt information, the AGENCY will notify the CONSULTANT of the request and of the date that such records will be released to the requester unless the CONSULTANT obtains a court order from a court of competent jurisdiction enjoining that disclosure. If the CONSULTANT fails to obtain the court order enjoining disclosure, the AGENCY will release the requested information on the date specified. The CONSULTANT agrees to notify the sub -consultant of any AGENCY communication regarding disclosure that may include a sub -consultant's proprietary and/or confidential information. The CONSULTANT notification to the sub -consultant will include the date that such records will be released by the AGENCY to the requester and state that unless the sub -consultant obtains a court order from a court of competent jurisdiction enjoining that disclosure the AGENCY will release the requested information. If the CONSULTANT and/or sub -consultant fail to obtain a court order or other judicial relief enjoining the AGENCY by the release date, the CONSULTANT shall waive and release and shall hold harmless and indemnify the AGENCY from all claims of actual or alleged damages, liabilities, or costs associated with the AGENCY's said disclosure of sub -consultants' information. XX. Records Maintenance During the progress of the Work and SERVICES provided hereunder and for a period of not less than six (6) years from the date of final payment to the CONSULTANT, the CONSULTANT shall keep, retain and maintain all "documents" pertaining to the SERVICES provided pursuant to this AGREEMENT. Copies of all "documents" pertaining to the SERVICES provided hereunder shall be made available for review at the CONSULTANT's place of business during normal working hours. If any litigation, claim or audit is commenced, the CONSULTANT shall cooperate with AGENCY and assist in the production of all such documents. "Documents" shall be retained until all litigation, claims or audit findings have been resolved even though such litigation, claim or audit continues past the six (6) year retention period. For purposes of this AGREEMENT, "documents" means every writing or record of every type and description, including electronically stored information ("ESI"), that is in the possession, control, or custody of the CONSULTANT, including, without limitation, any and all correspondences, contracts, AGREEMENT s, appraisals, plans, designs, data, surveys, maps, spreadsheets, memoranda, stenographic or handwritten notes, reports, records, telegrams, schedules, diaries, notebooks, logbooks, invoices, accounting records, work sheets, charts, notes, drafts, scribblings, recordings, visual displays, photographs, minutes of meetings, Agreement Number: Local Agency A&E Professional Services Cost Plus Fixed Fee Consultant Agreement Page 13 of 14 Revised 02/01/2021 tabulations, computations, summaries, inventories, and writings regarding conferences, conversations or telephone conversations, and any and all other taped, recorded, written, printed or typed matters of any kind or description; every copy of the foregoing whether or not the original is in the possession, custody, or control of the CONSULTANT, and every copy of any of the foregoing, whether or not such copy is a copy identical to an original, or whether or not such copy contains any commentary or notation whatsoever that does not appear on the original. For purposes of this AGREEMENT, "ESP" means any and all computer data or electronic recorded media of any kind, including "Native Files", that are stored in any medium from which it can be retrieved and examined, either directly or after translation into a reasonably useable form. ESI may include information and/or documentation stored in various software programs such as: Email, Outlook, Word, Excel, Access, Publisher, PowerPoint, Adobe Acrobat, SQL databases, or any other software or electronic communication programs or databases that the CONSULTANT may use in the performance of its operations. ESI may be located on network servers, backup tapes, smart phones, thumb drives, CDs, DVDs, floppy disks, work computers, cell phones, laptops or any other electronic device that CONSULTANT uses in the performance of its Work or SERVICES hereunder, including any personal devices used by the CONSULTANT or any sub -consultant at home. "Native files" are a subset of ESI and refer to the electronic format of the application in which such ESI is normally created, viewed, and /or modified. The CONSULTANT shall include this section XX "Records Maintenance" in every subcontract it enters into in relation to this AGREEMENT and bind the sub -consultant to its terms, unless expressly agreed to otherwise in writing by the AGENCY prior to the execution of such subcontract. 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 (l) of this AGREEMENT. Signature Date Signature CITY CONTRACT NO: RESOLUTION NO' R-dr:03-6�31 / 123 Z I120 Li Date Any modification, change, or reformation of this AGREEMENT shall require approval as to form by the Office of the Attorney General. Agreement Number: Local Agency ASE Professional Services Cost Plus Fixed Fee Consultant Agreement Page 14 of 14 Revised D2/01/2021 Wait A Scope of ork See Attached Exhibit A Project No. Agreement Number: Exhibit A - Local Agency A&E Professional Services Cost Plus Fixed Fee Consultant Agreement Revised 02/01/2021 Page 1 of 1 EXHIBIT A SCOPE OF WO CITY OF YAKIMA COWICHE CANYON T ' • L — P SE 1 CONSTRUCTION ENGINEERING SERVICES INTRODUCTION The Consultant shall perform those tasks as listed herein to assist the City during the construction phase of the project, to include coordination with regulatory and funding agencies, adjacent property owners, utility companies, and the Contractor. CONSTRUCTION AGEMENT SERVICES It is the intent of this scope to provide services for the duration of the contract (140 working days). Task No. Task 1. Project Management — Provide overall project management to include resource allocation management, client contact, and coordination with various project stakeholders including, but not limited to, City, Contractor, abutting property owners (as needed), utility companies, and regulatory agencies during the construction phase of project. 2. Construction Management a. Review Contractor's schedule, and provide comments to Contractor and Agency as applicable. b. Provide submittal/RAM/QPL review; track/update status of submittals with the Record of Materials (ROM) (ROM items to be provided and updated by City); track material testing information, evaluate Contractor's Schedule of Values for lump sum items and verify allocations are made in accordance with the requirements of the Contract Documents. Review/track traffic control. Submittals related to the pedestrian bridge are excluded (superstructure, substructure, bridge phasing plan, etc.) and will be reviewed and responses to the contractor provided by the City and/or City hired structural engineer (J-U-B Engineers). G&O will directly coordinate with J-U-B Engineers as necessary. Page 1 of 4 c. Track, review and evaluate Request for Information from Contractor. Manage responses to RFIs. RFIs related to the pedestrian bridge are excluded and will be reviewed, and responses to the contractor provided by the City and/or City hired structural engineer (J-U-B Engineers). G&O will directly coordinate with J-U-B Engineers as necessary. Subcontractor/certified payroll review/tracking; review of requests to sublet, statement of intent to pay prevailing wages, complete wage rate interviews, and review affidavits of wages paid, in accordance with Section 1-08.1. d. Prepare monthly progress (pay) estimates and review with Contractor and City. Prepare WSDOT backup for quantities paid each month. Prepare up to four change orders. Represent the City's interest in negotiation of change order with the Contractor. Provide independent estimate and record quantity measurements of material, equipment, and manpower for determining costs for change orders. Coordinate with WSDOT to obtain Blue Book rates on equipment as may be applicable. Prepare change orders for execution by the City and Contractor subject to approval of the City and WSDOT Local Programs. This task does not include any work for new or additional design tasks nor additional survey work as may be related thereto depending on the nature of the change order(s). e. Conduct construction meetings with the Project Manager, the Contractor, City's representative, various regulatory or funding personnel, utility companies, and other stakeholders deemed necessary to help facilitate construction and construction coordination. The City shall provide a minimum of 24-hours notice to the consultant prior to requested meetings. Note: this item assumes up to 10 meetings/site visits by the Project Manager. f. At substantial completion, coordinate with the City, prepare a punchlist of items to be completed or corrected. g. Coordinate final walk-thru of the project with the City, Contractor, WSDOT (as needed), and Project Manager prior to recommending project acceptance. h. Provide copies of all project paperwork to the City. 3. Construction Staking - Provide the following construction survey items: Page 2 of 4 a. Centerline or offset centerline of the bridge structure. b. Stations of abutments and pier centerlines. c. Ten temporary benchmarks to enable the Contractor to set grades throughout the project. Two separate trips are anticipated for this item. d. Control points as shown in the Plans. 4. Construction Monitoring Services a. Provide part-time on -site observation services (up to 760 hours over the course of 140 working days) to observe the progress of the work and determine, in general, that the work is proceeding in accordance with the Contract Documents and notify Contractor of non-compliance. Inspection will not be required at all times depending on the Contractor's daily work efforts. At these times it will be the Engineer's judgement, with concurrence from the City, as to the level or inspection effort required. This scope assumes 75 days of full-time inspection and 25 days of half-time inspection. Also assumed is 6 days of structural observation of the bridge installation for conformance to the latest contract documents received from the City, to include: • Pile cap reinforcing • Wall pier reinforcing • Pier cap reinforcing • Abutment foundation reinforcing • Abutment walls reinforcing Prefabricated bridge after installation Additionally, provide special inspection services of the bridge micro pile installation, and bridge abutment footing subgrade — this work will be completed by our subconsultant, PanGEO, Inc. b. Prepare and transmit daily inspection forms. c. Review means and methods employed by Contractor and materials delivered to the site. Provide field documentation to include: Inspector's Daily Report, field note records, Weekly Quantity Reports, Weekly Working Day Reports, and Daily Report of Force Account Worked, wage rate interviews, and other pertinent documentation. Confirm quantities for payment with Contractor in the field. Page 3 of 4 5. Material Testing (City hired, PLSA Engineering & Surveying) a. Directly coordinate with City's hired material testing firm to complete testing as required by the contract documents. b. Review material testing results and arrange for additional testing as needed. 6. Project Closeout Services a. Assist the City in closing out the project, prepare notice of completion form, Final Project Voucher, in compliance with State and Federal law. b. Provide project files to the City and WSDOT if requested. EXCLUDED SERVICES 1. DBE tracking. 2. Submittals and RFIs related to the pedestrian bridge are excluded. We understand J-U-B Engineers will complete their review. G&O will directly coordinate these efforts directly with J-U-B Engineers. 3. Construction survey staking beyond the above listed work. (This work is to be accomplished by the Contractor.) 4. Material testing services. The "not -to -exceed" budget amount of $200,000 for the Construction Management Services described herein is provide in the breakdown in Exhibit B. Page 4 of 4 E articipation No DBE Participation. Agreement Number: Exhibit B - Local Agency A&E Professional Services Cost Plus Fixed Fee Consultant Agreement Revised 02/01/2021 Page 1 of 1 e aration an • elive of Iectronic ineeri • an 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 AutoCAD 2020 B. Roadway Design Files AutoCAD 2020, Civil 3-D, AGi32 C. Computer Aided Drafting Files AutoCAD 2020 Agreement Number: Exhibit C - Local Agency A&E Professional Services Cost Plus Fixed Fee Consultant Agreement Revised 02/01/2021 Page 1 of 4 D. Specify the Agency's Right to Review Product with the Consultant Agency shall have the right to review data when requested. E. Specify the Electronic Deliverables to Be Provided to the Agency Contract provisions: .pdf file Contract Plans: .pdf file F. Specify What Agency Furnished Services and Information Is to Be Provided Agency will provide construction contract documents, to include Plans, Specifications, bid tabulation, and City standard documents if required. Agreement Number: Exhibit C - Local Agency A&E Professional Services Cost Plus Fixed Fee Consultant Agreement Revised 02/01/2021 Page 2 of 4 II. Any Other Electronic Files to Be Provided Contract Plans in AutoCAD format. Contract Specifications in PDF format. III. Methods to Electronically Exchange Data Electronic files to be emailed to Agency. Exhibit C - Local Agency A&E Professional Services Cost Plus Fixed Fee Consultant Agreement Revised 02/01/2021 Page 3 of 4 A. Agency Software Suite N/A B. Electronic Messaging System N/A C. File Transfers Format N/A Exhibit C - Local Agency A&E Professional Services Cost Plus Fixed Fee Consultant Agreement Revised 02/0V2021 Page 4 of 4 x ibit D ri e Consultant Cost Co putations See Attached Agreement Number: Exhibit D - Local Agency A&E Professional Services Cost Plus Fixed Fee Consultant Agreement Revised 02/01/2021 Page 1 of 1 EXHIBIT D CONSULTANT FEE DETE " 'NATION - SUMM (COST PLUS FIXED FEE) Project: City of Yakima - Cowiche Canyon Trail - Phase 1 Additional Engineering Costs Direct Salary Cost (DSC): Discipline Required Principal -in -Charge Project Manager/Engineer Civil EngmeeriDesigner Field Inspector Structural Engineer CADD Technician Survey Crew (2 person) Professional Land Surveyor (P.L.S.) Subtotal Direct Labor Costs (DLC): Indirect Labor Costs (Overhead) @ 184.49% x DLC: Fee @ 30% x DLC: Direct Non -Salary Cost: Mileage (at $0.65 per mile) Lodging and Meals Subconsultant: PanGEO Inc. TOTAL ESTIMATED COST: Prepared by Gray Osbome, Inc Estimated Hours Page 1 of 1 27 115 176 Y SHEET Estimated Rate $40 to $55 $37 to $55 $32 to $36 700 $30 to $52 60 24 40 24 $36 to $67 $15 to $36 $50 to $85 $35 to $42 Estimated Amount $1,566 $5,290 $7,040 $28,700 $3,840 $1,008 $2 600 $1,248 $ 51,292 $ 94,629 $ 15,388 4,518 8,830 $ 25,343 $ 200,000 EXHIBIT D Consultant Fee Determination - Summary Sheet (Specific Rates of Pay) Fee Schedule Title Hourly Rate AutoCAD/GIS Tech./Engineering Intern $20 - $54 Electrical Engineer $38 - $69 Structural Engineer $36 - $67 Environmental Tech./Specialist $28 - $52 Engineer -In -Training $30 - $55 Civil Engineer $35 - $55 Project Engineer $38 - $57 Project Manager $42 - $75 Principal -in -Charge $46 - $75 Resident Engineer $38 - $58 Field Inspector $30 - $56 Field Survey Crew (2 Person)* $55 - $94 Field Survey Crew (3 Person)* $91 - $130 Professional Land Surveyor $38 - $61 Overhead 184.49% $36.90 - $99.62 $70.11 - $127.30 $66.42 - $123.61 $51.66 - $95.93 $55.35 - $101.47 $64.57 - $101.47 $70.11 - $105.16 $77.49 - $138.37 $84.87 - $138.37 $70.11 - $107.00 $55.35 - $103.31 $101.47 - $173.42 $167.89 - $239.84 $70.11 - $112.54 Profit 30% Rate Per Hour $6.00 - $16.20 $62.90 - $169.82 $11.40 - $20.70 $119.51 - $217.00 $10.80 - $20.10 $8.40 $15.60 $9.00 $16.50 $10.50 $16.50 $110.07 $172.97 $113.22 - $210.71 $88.06 - $163.53 $94.35 - $172.97 $11.40 $17.10 $119.51 $179.26 $12.60 $22.50 $132.09 $235.87 $13.80 $22.50 $144.67 $235.87 $11.40 $17.40 $119.51 $182.40 $9.00 $16.80 $94.35 $176.11 $16.50 $28.20 $172.97 $295.62 $27.30 $39.00 $286.19 - $408.84 $11.40 $18.30 $119.51 - $191.84 NIA N/A " Secretarial and clerical fees are not billed, but are included in the overhead multiplier listed. The same is true for accounting, bookkeeping, postage, in-house printing up to $150, word processing, computer use, computer -aided drafting, and telephone and fax costs. Secretary/Word Processor* NIA NIA All actual out-of-pocket expenses incurred directly on the project are added to the billing. The billing is based on direct out-of-pocket expenses; meals, lodging, laboratory testing and transportation. The transportation rate is $0.65 per mile or the current maximum IRS rate without receipt IRS Section 162(a). August 29, 2022 Gray & Osborne, Inc. 1130 Rainier Avenue South, #300 Seattle, WA 98144 Subject: Acceptance FYE 2020 ICR — Audit Office Review Dear Melissa Drysdale: Development Division Contract Services Office PO Box 47408 Olympia, WA 96504-7408 7345 Linderson Way SW Tumwater, WA 98501-6504 TT!: 1-800-833-6388 wwwwsdot,wa.gov Transmitted herewith is the WSDOT Audit Office's memo of "Acceptance" of your firm's FYE 2020 Indirect Cost Rate (ICR) of 184.49% of direct labor (rate includes 0.15% Facilities Capital Cost of Money). This rate will be applicable for WSDOT Agreements and Local Agency Contracts in Washington only. This rate may be subject to additional review if considered necessary by WSDOT. Your ICR must be updated on an annual basis. Costs billed to agreements/contracts will still be subject to audit of actual costs, based on the terms and conditions of the respective agreement/contract. This was not a cognizant review. Any other entity contracting with your firm is responsible for determining the acceptability of the ICR. If you have any questions, feel free to contact our office at (360) 705-7019 or via email consul tan tratesOlwsdotwa.gov Regards; ERIK K. JONSON Contract Services Manager EKJ:ah -consultant ost x i.it utations If no sub -consultant participation at this time. The CONSULTANT shall not sub -contract for the performance of any work under this AGREEMENT without prior written permission of the AGENCY. Refer to section VI "Sub -Contracting" of this AGREEMENT. See Attached. Agreement Number: Exhibit E - Local Agency A&E Professional Services Cost Plus Fixed Fee Consultant Agreement Revised 02/01/2021 Page 1 of 1 INCORPORATIED Geotechnical & Earthquake Engineering Consultants June 23, 2023 File No. P-8772 Mr. Mike Meskimen, P.E. Gray & Osborne, Inc. 180 Iron Horse Court Yakima, WA, 98901 Subject: Proposal for During Construction Geotechnical Support Services Cowiche Canyon Trail Project Yakima, Washington Dear Mr. Meskimen: Attached please find our proposal to provide geotechnical support services during the construction of the Cowiche Canyon Trail Project in Yakima, Washington. The principal focus of our scope of work will be the micropiles supporting the interior piers of the pedestrian bridge as well as the adequacy of the foundation subgrade for the footings at the bridge abutments. Details and assumptions of proposed scope of work are outlined in the attached Exhibit I. As detailed in Exhibit II, we estimate that a budget of $25,343 will be needed, based on the assumptions stated in Exhibit I. An overhead rate of 128.56% and a profit equivalent to 30% of direct salary cost were used in our budget estimate. The overhead rate is currently being reviewed by WSDOT and we expect approval in July. If a different rate is approved by WSDOT, we will revise the budget accordingly. Please call should you have any questions regarding this proposal. Sincerely, Siew L. Tan, P.E. Principal Geotechnical Engineer 3213 Eastlake Avenue East, Suite B Seattle, WA 98102 Tel: (206) 262-0370 www.nangeoinc.com Proposal for Geotechnical Services Cowiche Canyon Trail Project, Yakima, Washington June 23, 2023 Enclosures: Exhibit I: Scope of Services; Exhibit II: Cost Estimate P-8772 Cowiche Canyon Trail Rl.docx Page 2 of 2 PanGEO, Inc, Proposal for Geotechnical Services Cowiche Canyon Trail Project, Yakima, Washington June 23, 2023 EXHIBIT I - SCOPE OF SERVCIES 1. Design Document Review — Review project plans and specifications related to the design and inspection requirements for the bridge foundations. We also request that a full geotechnical report prepared for the project be made available for our review to gain an understanding of the design approach and assumptions. 2. Kickoff Meeting — Attend a project kickoff meeting with the project team on site to coordinate inspection activities. 3. Submittal Review — Review submittals from the contractor for the pile installation and testing. 4. Micropile Installation and Testing — A total of sixteen 8-inch diameter drill micropiles with permanent casings will be installed to support the interior piers of the pedestrian bridge. PanGEO will provide full-time observation during the installation of the micropiles, to verify the installation meets the requirements of the design. The scope of inspection for the piles will be in general conformance to Chapter 8 of Federal Highway Administration (FHWA) Publication Number FHWA NHI-05-039 Micropile Design and Construction. PanGEO will also provide full-time observation during the testing of the micropiles, to verify the piles meet the acceptance criteria for the project. The level of efforts for this task can be highly variable, depending on the contactor's equipment, subsurface conditions at the pile locations, and general logistic considerations. For budgeting purposes, we assume 10 working days for this task. 5. Bridge Abutment Footing Subgrade — On site to observe the footing subgrade for the bridge, to verify that the exposed soil conditions are consistent with the soil conditions encountered in the test borings and design assumptions. We assume two trips for this task. 6. Field Reports — Prepare field reports documenting our observations. The field report will include description of daily activities, methods of installation and testing, installation log for each micropiles, and results of testing in both tabulated form and plots. At the end of the project, we will issue a final stamped report summarizing our observations. 7. Consultation/Meetings — As needed. We include four hours for this task. P-8772 Cowiche Canyon Trail R1.docx Page 1 of 2 PanGEO, Inc. Proposal for Geotechnical Services Cowiche Canyon Trail Project, Yakima, Washington June 23, 2023 EXHIBIT II - COST ESTIMATE ESTIMATED LABOR: WORK TASK DESCRIPTION Design Document Review Kick off meeting Submittal Review ObservePile Installation & Testing Abutment Footings (2 trips) Prepare Field Reports/Revirew Consultation/Meetings TOTAL LABOR: LABORATORY TESTING: Test Moisture Content Grain Size Analysis Atterberg Limits Tan $90.33 PERSONNEL & HOURLY RATE Swenson Inspector $5414 $37.96 1 4 4 6 8 1 4 2 4 100 12 2 6 I 14 4 10 36 126 0 0 0 Est. No. Tests Unit Cost $25 $165 Total Cost $0 $0 LABORATORY TOTAL: $0 TOTAL HOURS 9 14 5 106 12 22 4 0 TOTAL AMOUNT $459 $629 $307 $4,193 $650 $1,037 $361 $0 163 $7,635 ESTIMATED LABOR + OH + PROFIT Direct Salary Cost $7,635 Overhead Cost (128,56%) $9,816 Profit (30% of Direct Salary) $5,235 ESTIMATED LABOR + OH + PROFIT $22,687 ESTIMATED DIRECT EXPENSES: Mileage: © $0.66/mi $1,056 Laboratory Testing $0 Per Diem ($160/night x10) $1,600 TOTAL DIRECT EXPENSES: $2,656 Labor Cost + OH + Profit $22,687 Direct Evenses $2,656 PanGEO TOTAL: $25,343 P-8772 Cowiche Canyon Trail Rl.docx Page 1 of 1 PanGEO, Inc. Exhibit F - Title Vi Assurances Appendix A & E APPENDIX A During the performance of this contract, the contractor, for itself, its assignees, and successors in interest (hereinafter referred to as the "contractor") agrees as follows: 1. Compliance with Regulations: The contractor (hereinafter includes consultants) will comply with the Acts and the Regulations relative to Non-discrimination in Federally -assisted programs of the U.S. Department of Transportation, (Title of Modal Operating Administration), as they may be amended from time to time, which are herein incorporated by reference and made a part of this contract. 2. Non-discrimination: The contractor, with regard to the work performed by it during the contract, will not discriminate on the grounds of race, color, or national origin in the selection and retention of subcontractors, including procurements of materials and leases of equipment. The contractor will not participate directly or indirectly in the discrimination prohibited by the Acts and the Regulations, including employment practices when the contract covers any activity, project, or program set forth in Appendix B of 49 CFR Part 21. [Include Modal Operating Administration specific program requirements.] 3. Solicitations for Subcontracts, Including Procurements of Materials and Equipment: In all solicitations, either by competitive bidding, or negotiation made by the contractor for work to be performed under a subcontract, including procurements of materials, or leases of equipment, each potential subcontractor or supplier will be notified by the contractor of the contractor's obligations under this contract and the Acts and the Regulations relative to Non-discrimination on the grounds of race, color, or national origin. [Include Modal Operating Administration specific program requirements.] 4. Information and Reports: The contractor will provide all information and reports required by the Acts, the Regulations, and directives issued pursuant thereto and will permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the Recipient or the (Title of Modal Operating Administration) to be pertinent to ascertain compliance with such Acts, Regulations, and instructions. Where any information required of a contractor is in the exclusive possession of another who fails or refuses to furnish the information, the contractor will so certify to the Recipient or the (Title of Modal Operating Administration), as appropriate, and will set forth what efforts it has made to obtain the information. 5. Sanctions for Noncompliance: In the event of a contractor's noncompliance with the Non- discrimination provisions of this contract, the Recipient will impose such contract sanctions as it or the (Title of Modal Operating Administration) may determine to be appropriate, including, but not limited to: a. withholding payments to the contractor under the contract until the contractor complies; and/or b. cancelling, terminating, or suspending a contract, in whole or in part. 6. Incorporation of Provisions: The contractor will include the provisions of paragraphs one through six in every subcontract, including procurements of materials and leases of equipment, unless exempt by the Acts, the Regulations and directives issued pursuant thereto. The contractor will take action with respect to any subcontract or procurement as the Recipient or the (Title of Modal Operating Administration) may direct as a means of enforcing such provisions including sanctions for noncompliance. Provided, that if the contractor becomes involved in, or is threatened with litigation by a subcontractor, or supplier because of such direction, the contractor may request the Recipient to enter into any litigation to protect the interests of the Recipient. In addition, the contractor may request the United States to enter into the litigation to protect the interests of the United States. Local Agency A&E Professional Services Cost Agreement Number Plus Fixed Fee Consultant Agreement Revised 02/01/2021 xhi • t Title I APPENDIX E ssurances • en • Ix During the performance of this contract, the contractor, for itself, its assignees, and successors in interest (hereinafter referred to as the "contractor") agrees to comply with the following non-discrimination statutes and authorities; including but not limited to: Pertinent Non -Discrimination Authorities: • Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252), (prohibits discrimination on the basis of race, color, national origin); and 49 CFR Part 21. • The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42 U.S.C. § 4601), (prohibits unfair treatment of persons displaced or whose property has been acquired because of Federal or Federal -aid programs and projects); • Federal -Aid Highway Act of 1973, (23 U.S.C. § 324 et seq.), (prohibits discrimination on the basis of sex); • Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. § 794 et seq.), as amended, (prohibits discrimination on the basis of disability); and 49 CFR Part 27; • The Age Discrimination Act of 1975, as amended, (42 U.S.C. § 6101 et seq.), (prohibits discrimination on the basis of age); • Airport and Airway Improvement Act of 1982, (49 USC § 471, Section 47123), as amended, (prohibits discrimination based on race, creed, color, national origin, or sex); • The Civil Rights Restoration Act of 1987, (PL 100-209), (Broadened the scope, coverage and applicability of Title VI of the Civil Rights Act of 1964, The Age Discrimination Act of 1975 and Section 504 of the Rehabilitation Act of 1973, by expanding the definition of the terms "programs or activities" to include all of the programs or activities of the Federal -aid recipients, sub -recipients and contractors, whether such programs or activities are Federally funded or not); • Titles II and III of the Americans with Disabilities Act, which prohibit discrimination on the basis of disability in the operation of public entities, public and private transportation systems, places of public accommodation, and certain testing entities (42 U.S.C. §§ 12131-12189) as implemented by Department of Transportation regulations at 49 C.F.R. parts 37 and 38; • The Federal Aviation Administration's Non-discrimination statute (49 U.S.C. § 47123) (prohibits discrimination on the basis of race, color, national origin, and sex); • Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low -Income Populations, which ensures discrimination against minority populations by discouraging programs, policies, and activities with disproportionately high and adverse human health or environmental effects on minority and low-income populations; • Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency, and resulting agency guidance, national origin discrimination includes discrimination because of limited English proficiency (LEP). To ensure compliance with Title VI, you must take reasonable steps to ensure that LEP persons have meaningful access to your programs (70 Fed. Reg. at 74087 to 74100); • Title IX of the Education Amendments of 1972, as amended, which prohibits you from discriminating because of sex in education programs or activities (20 U.S.C. 1681 et seq). Local Agency A&E Professional Services Agreement Number Negotiated Hourly Rate Consultant Agreement Revised 02/01/2021 Certification Exhibit ocu ents Exhibit G-1(a) Certification of Consultant Exhibit G-1(b) Certification of City of Yakima Exhibit G-2 Certification Regarding Debarment, Suspension and Other Responsibility Matters - Primary Covered Transactions Agreement Number: Exhibit G - Local Agency A&E Professional Services Cost Plus Fixed Fee Consultant Agreement Revised 02/01/2021 Page 1 of 1 Exhibit G-1(a) Certification of Consultant I hereby certify that I am the and duly authorized representative of the firm of Gray & Osborne, Inc. whose address is 1130 Rainier Avenue South, Suite 300, Seattle, WA 98144 and that neither the above firm nor I have: 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 this 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 furnished to the City of Yakima 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. Gray & Osborne, Inc. Consultant (Firm Name) Signature (Authorized Official of Consultant) Ti Date Agreement Number: Exhibit G - Local Agency A&E Professional Services Cost Plus Fixed Fee Consultant Agreement Revised 02/01/2021 Exhibit G-1(b) Certification of City of Yakima I hereby certify that I am the: City Engineer, Bill Preston, P.E. LJ Other of the City of Yakima , and Gray & Osborne, Inc. 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 furnished to the City of Yakima 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. Signature Date Agreement Number: Exhibit G - Local Agency A&E Professional Services Cost Plus Fixed Fee Consultant Agreement Revised 02/01/2021 Exhibit G-2 Certification Regarding Debarment, Suspension and Other Responsibility Matters - Primary Covered Transactions I. 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 (3) year period preceding this proposal been convicted of or had a civil judgment rendered against them for commission of 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 anti-trust 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 (1)(b) of this certification; and D. Have not within a three (3) year period preceding this application / proposal had one or more public transactions (Federal, State and local) terminated for cause or default. II. 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. Gray & Osborne, Inc. Consultant (Firm Name) Signature (Authorized Official of Consultant) Date Agreement Number: Exhibit G - Local Agency A&E Professional Services Cost Plus Fixed Fee Consultant Agreement Revised 02/01/2021 Lia • )chi•it ilit Insurance Increase To Be Used Only If Insurance Requirements Are Increased The professional liability limit of the CONSULTANT to the AGENCY identified in Section XII, Legal Relations and Insurance of this Agreement is amended to $ N/A The CONSULTANT shall provide Professional Liability insurance with minimum per occurrence limits in the amount of $ N/A Such insurance coverage shall be evidenced by one of the following methods: • Certificate of Insurance. • Self-insurance through an irrevocable Letter of Credit from a qualified financial institution. Self-insurance through documentation of a separate fund established exclusively for the payment of professional liability claims, including claim amounts already reserved against the fund, safeguards established for payment from the fund, a copy of the latest annual financial statements, and disclosure of the investment portfolio for those funds. Should the minimum Professional Liability insurance limit required by the AGENCY as specified above exceed $1 million per occurrence or the value of the contract, whichever is greater, then justification shall be submitted to the Federal Highway Administration (FHWA) for approval to increase the minimum insurance limit. If FHWA approval is obtained, the AGENCY may, at its own cost, reimburse the CONSULTANT for the additional professional liability insurance required. Notes: Cost of added insurance requirements: $ N/A • Include all costs, fee increase, premiums. • This cost shall not be billed against an FHWA funded project. • For final contracts, include this exhibit. Agreement Number: Exhibit H - Local Agency A&E Professional Services Cost Plus Fixed Fee Consultant Agreement Revised 02/01/2021 Page 1 of 1 Ile•e • onsultant SI • xh" • it I rror roce • ures The purpose of this exhibit is to establish a procedure to determine if a consultant's alleged design error is of a nature that exceeds the accepted standard of care. In addition, it will establish a uniform method for the resolution and/or cost recovery procedures in those instances where the agency believes it has suffered some material damage due to the alleged error by the consultant. Step 1 Potential Consultant Design Error(s) is Identified by Agency's Project Manager At the first indication of potential consultant design error(s), the first step in the process is for the Agency's project manager to notify the Director of Public Works or Agency Engineer regarding the potential design error(s). For federally funded projects, the Region Local Programs Engineer should be informed and involved in these procedures. (Note: The Director of Public Works or Agency Engineer may appoint an agency staff person other than the project manager, who has not been as directly involved in the project, to be responsible for the remaining steps in these procedures.) Step 2 Project Manager Documents the Alleged Consultant Design Error(s) After discussion of the alleged design error(s) and the magnitude of the alleged error(s), and with the Director of Public Works or Agency Engineer's concurrence, the project manager obtains more detailed documentation than is normally required on the project. Examples include: all decisions and descriptions of work; photographs, records of labor, materials and equipment. Step 3 Contact the Consultant Regarding the Alleged Design Error(s) If it is determined that there is a need to proceed further, the next step in the process is for the project manager to contact the consultant regarding the alleged design error(s) and the magnitude of the alleged error(s). The project manager and other appropriate agency staff should represent the agency and the consultant should be represented by their project manager and any personnel (including sub -consultants) deemed appropriate for the alleged design error(s) issue. Step 4 Attempt to Resolve Alleged Design Error with Consultant After the meeting(s) with the consultant have been completed regarding the consultant's alleged design error(s), there are three possible scenarios: • It is determined via mutual agreement that there is not a consultant design error(s). If this is the case, then the process will not proceed beyond this point. • It is determined via mutual agreement that a consultant design error(s) occurred. If this is the case, then the Director of Public Works or Agency Engineer, or their representatives, negotiate a settlement with the consultant. The settlement would be paid to the agency or the amount would be reduced from the consultant's agreement with the agency for the services on the project in which the design error took place. The agency is to provide LP, through the Region Local Programs Engineer, a summary of the settlement for review and to make adjustments, if any, as to how the settlement affects federal reimbursements. No further action is required. • There is not a mutual agreement regarding the alleged consultant design error(s). The consultant may request that the alleged design error(s) issue be forwarded to the Director of Public Works or Agency Engineer for review. If the Director of Public Works or Agency Engineer, after review with their legal counsel, is not able to reach mutual agreement with the consultant, proceed to Step 5. Agreement Number: Exhibit I - Local Agency A&E Professional Services Cost Plus Fixed Fee Consultant Agreement Revised 02/01/2021 Page 1 of 2 Step 5 Forward Documents to Local Programs For federally funded projects all available information, including costs, should be forwarded through the Region Local Programs Engineer to LP for their review and consultation with the FHWA. LP will meet with representatives of the agency and the consultant to review the alleged design error(s), and attempt to find a resolution to the issue. If necessary, LP will request assistance from the Attorney General's Office for legal interpretation. LP will also identify how the alleged error(s) affects eligibility of project costs for federal reimbursement. • If mutual agreement is reached, the agency and consultant adjust the scope of work and costs to reflect the agreed upon resolution. LP, in consultation with FHWA, will identify the amount of federal participation in the agreed upon resolution of the issue. • If mutual agreement is not reached, the agency and consultant may seek settlement by arbitration or by litigation. Agreement Number: Exhibit 1 - Local Agency A&E Professional Services Cost Plus Fixed Fee Consultant Agreement Revised 02/01/2021 Page 2 of 2 xhi it J o sultant lai race* ures 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 forward 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, forward a copy of the consultant's claim and the Agency's recommendation for federal participation in the claim to the WSDOT 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 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 and/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. If the Agency does not agree with the consultant's claim, proceed to step 3 of the procedures. Agreement Number: Exhibit J - Local Agency AM Professional Services Cost Plus Fixed Fee Consultant Agreement Revised 02/01/2021 Page 1 of 2 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 Public 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 Local Programs and FHWA regarding final 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 final decision regarding the consultant's claim(s). Include the final 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 and/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. Agreement Number: Exhibit J - Local Agency A&E Professional Services Cost Plus Fixed Fee Consultant Agreement Revised 02/01/2021 Page 2 of 2