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002-25 - Resolution - Contract with KPFF, Dekalb PierDocusign Envelope ID: 60E2C9AA-9DF4-416F-A48B-1 E52C3D73B91 RESOLUTION NO.002-25 A RESOLUTION OF THE CITY OF PORT ORCHARD, WASHINGTON, AUTHORIZING THE MAYOR TO EXECUTE A CONTRACT WITH KPFF, INC. FOR THE DEKALB PIER AND WATERWAY AQUATIC LAND LEASE SURVEY, AND DOCUMENTING PROCUREMENT PROCEDURES. WHEREAS the City of Port Orchard is in the process of reauthorizing an existing Department of Natural Resources (DNR) permit for continued use of the Dekalb Pier leasehold area under state-owned aquatic lands; and WHEREAS, the current DNR permit was set expire in 2024 and is currently in hold -over status, and DNR has requested an updated, comprehensive survey of the leasehold area before a new permit may be issued to ensure compliance with Title 58 RCW and Chapter 332-130 WAC; and WHEREAS, the preparation of an Aquatic Land Lease Survey is an architectural or engineering (A/E) professional service, subject to the City's procurement policies for A/E professional services; WHEREAS, on December 16, 2024, pursuant to state law and the City's Procurement Policies Resolution No. 072-23, as amended, the DCD established a list of qualified consultants for the project from the MRSC 2024 Consultant Roster under the categories of Surveying and Mapping; and WHEREAS, KPFF, Inc. was the only firm to respond to the City's request, and upon review of their qualifications and scope of work, the Public Works Department identified them as the most qualified vendor for this work; and WHEREAS, after negotiations with KPFF, Inc. as the most qualified vendor, the City received a fee proposal for this scope of work from KPFF Inc. in the amount of $23,009.00 on November 26, 2024; and WHEREAS, the Public Works Department and City staff recommends that the City Council approve a contract with KPFF, Inc. to complete the Dekalb Pier and Waterway Aquatic Land Lease Survey as necessary to secure the reauthorization of the DNR permit; and WHEREAS, the Port Orchard City Council, at the 2015 recommendation of the State Auditor's Office, wishes to document their consultant selection process as described above for this particular contract by Resolution; now, therefore, THE CITY COUNCIL OF THE CITY OF PORT ORCHARD, WASHINGTON, HEREBY RESOLVES AS FOLLOWS: THAT: It is the intent of the Port Orchard City Council that the recitals set forth above are hereby adopted and incorporated as findings in support of this Resolution. Docusign Envelope ID: 60E2C9AA-9DF4-416F-A48B-1 E52C3D73B91 Resolution No. 002-25 Page 2 of 2 THAT: The City Council approves of and authorizes the Mayor to execute a Professional Services Agreement with KPFF, Inc. for the Dekalb Pier and Waterway Aquatic Land Lease Survey, in the total amount of $23,009.00, as attached hereto as Exhibit A and incorporated herein by this reference. THAT: This Resolution shall take full force and effect upon passage and signatures hereon. PASSED by the City Council of the City of Port Orchard, SIGNED by the Mayor and attested by the Clerk in authentication of such passage this 14t" day of January 2025 Signed by: E3F•6F 4�B... Robert Putaansuu, Mayor ATTEST: Signed by: `PORT iORc`'%, dRA SASdRRflf1(1dR Brandy Wallace, MMC, City Clerk - ; SEAL �3 Ltn�p ���0 [j;� Docusign Envelope ID: 60E2C9AA-9DF4-416F-A48B-1 E52C3D73B91 Port Orchard Contract #: Authorized Amount: $23,009.00 Date Start: 1/14/25 Date End: 2/4/25 CONSULTANT SERVICES AGREEMENT THIS AGREEMENT is entered into by and between the City of Port Orchard, Washington, a municipal corporation organized under the laws of the State of Washington ("City") and KPFF, INC. , ("Consultant") organized under the laws of the State of Washington, located and doing business at 612 Woodland Square Loop SE, Ste 100, Lacey, WA 98503, Contact: Jereme Chapman, Phone 360 292- 7230, Email: Jereme.chapman@kpff.com (hereinafter the "Consultant"). RECITALS: WHEREAS, the City desires to have certain services performed for its residents; and WHEREAS, the City has selected the Consultant to perform such services pursuant to certain terms and conditions; and WHEREAS, the City complied with the requirements for hiring Consultant contained in Chapter 91,62-1111:Z��i�� NOW, THEREFORE, in consideration of the mutual benefits and conditions set forth below, the parties agree as follows: AGREEMENT: 1. Scope of Services to be Performed by Consultant. The Consultant shall perform those services described on Exhibit "A," which is attached hereto and incorporated herein by this reference as if set forth in full. In performing such services, the Consultant shall at all times comply with all federal, state, and local statutes, rules and ordinances applicable to the performance of such services and the handling of any funds used in connection therewith. The Consultant shall perform the services diligently and completely and in accordance with professional standards of conduct and performance. The Consultant shall request and obtain prior written approval from the City if the scope or schedule is to be modified in any way. If the services provided hereunder are funded in whole or in part under a Grant Funding Agreement, then Consultant will comply with the terms of such Grant Funding Agreement to ensure that the City is able to obtain the maximum funding under such Grant Funding Agreement. If this applies, the City will provide the Consultant with a copy of the Grant Funding Agreement. City of Port Orchard and KPFF Public Works Project: Dekalb Pier & Waterway Aquatic Land Lease Updated 41202218DR Page 1 of 17 Docusign Envelope ID: 60E2C9AA-9DF4-416F-A48B-1 E52C3D73B91 If the services provided hereunder are funded in whole or in part under a Grant Funding Agreement, then Consultant will comply with the terms of such Grant Funding Agreement to ensure that the City is able to obtain the maximum funding under such Grant Funding Agreement. If this applies, the City will provide the Consultant with a copy of the Grant Funding Agreement. 2. Compensation. The City shall pay the Consultant for services rendered according to the rates and methods set forth below. ❑ LUMP SUM. Compensation for these services set forth in Exhibit A shall be a Lump Sum of $ TIME AND MATERIALS NOT TO EXCEED. Compensation for these services shall not exceed $23,009 without written authorization and will be based on the list of billing rates and reimbursable expenses attached hereto as Exhibit "A." ❑ TIME AND MATERIALS. Compensation for these services shall be on a time and materials basis according to the list of billing rates and reimbursable expenses attached hereto as Exhibit „g ❑ OTHER 3. Payment. A. The Consultant shall maintain time and expense records and provide them to the City monthly after services have been performed, along with monthly invoices in a format acceptable to the City for work performed to the date of the invoice. B. All invoices shall be paid by City warrant within thirty (30) days of receipt of a proper invoice. If the City objects to all or any portion of any invoice, it shall so notify the Consultant of the same within fifteen (15) days from the date of receipt and shall pay that portion of the invoice not in dispute, and the Parties shall immediately make every effort to settle the disputed portion. C. The Consultant shall keep cost records and accounts pertaining to this Agreement available for inspection by City representatives for three (3) years after final payment unless a longer period is required by a third -party agreement. Copies shall be made available on request. D. On the effective date of this Agreement (or shortly thereafter), the Consultant shall comply with all federal and state laws applicable to independent contractors, including, but not limited to, the maintenance of a separate set of books and records that reflect all items of income and expenses of the Consultant's business, pursuant to Revised Code of Washington (RCW) 51.08.195, as required by law, to show that the services performed by the Consultant under this Agreement shall not give rise to an employer -employee relationship between the parties, which is subject to Title 51 RCW, Industrial Insurance. City of Port Orchard and KPFF Public Works Project: Dekalb Pier & Waterway Aquatic Land Lease Updated 41202218DR Page 2 of 17 Docusign Envelope ID: 60E2C9AA-9DF4-416F-A48B-1 E52C3D73B91 E. If the services rendered do not meet the requirements of the Agreement, the Consultant will correct or modify the work to comply with the Agreement. The City may withhold payment for such work until the work meets the requirements of the Agreement. The City shall pay the Consultant for services rendered within ten (10) days after City Council voucher approval. However, if the City objects to all or any portion of an invoice, it shall notify Consultant and reserves the option to only pay that portion of the invoice not in dispute. In that event, the Parties will immediately make every effort to settle the disputed portion. F. The City reserves the right to direct the Consultant's compensated services before reaching the maximum amount. 4. Duration of Agreement. A. This Agreement shall be in full force and effect for a period commencing on January 14, 2025 and ending February 4, 2025 unless sooner terminated under the provisions of this Agreement. The City reserves the right to offer two (2) one-year extensions prior to expiration of the Agreement to retain the Consultant's services. B. Time is of the essence of this Agreement in each and all of its provisions in which performance is required. If delays beyond the Consultant's reasonable control occur, the Parties will negotiate in good faith to determine whether an extension is appropriate. C. The Consultant shall obtain a City of Port Orchard business license prior to commencing work pursuant to a written Notice to Proceed. D. The Consultant is authorized to proceed with services upon receipt of a written Notice to Proceed. 5. Standard of Care. The Consultant represents and warrants that it has the requisite training, skill, and experience necessary to provide the services under this Agreement and is appropriately accredited and licensed by all applicable agencies and governmental entities. Services provided by the Consultant under this Agreement will be performed in a manner consistent with that degree of care and skill ordinarily exercised by members of the same profession currently practicing in similar circumstances. 6. Ownershio and Use of Documents. A. Ownership. Any records, files, documents, drawings, specifications, data, or information, regardless of form or format, and all other materials produced by the Consultant in connection with the services provided to the City, shall be the property of the City whether the project for which they were created is executed or not. City of Port Orchard and KPFF Public Works Project: Dekalb Pier & Waterway Aquatic Land Lease Updated 41202218DR Page 3 of 17 Docusign Envelope ID: 60E2C9AA-9DF4-416F-A48B-1 E52C3D73B91 B. Records preservation. Consultant understands that this Agreement is with a government agency and thus all records created or used in the course of Consultant's work for the City are considered "public records" and are subject to disclosure by the City under the Public Records Act, Chapter 42.56 RCW ("the Act"). Consultant agrees to safeguard and preserve records in accordance with the Act. The City may be required, upon request, to disclose the Agreement, and the documents and records submitted to the City by Consultant, unless an exemption under the Public Records Act applies. If the City receives a public records request and asks Consultant to search its files for responsive records, Consultant agrees to make a prompt and thorough search through its files for responsive records and to promptly turn over any responsive records to the City's public records officer at no cost to the City. 7. Relationship of the Parties; Independent Consultant. The Parties intend that an independent contractor -client relationship will be created by this Agreement. As the Consultant is customarily engaged in an independently established trade which encompasses the specific service provided to the City hereunder, no agent, employee, representative or sub -consultant of the Consultant shall be or shall be deemed to be the employee, agent, representative or sub -consultant of the City. In the performance of the work, the Consultant is an independent contractor with the ability to control and direct the performance and details of the work, the City being interested only in the results obtained under this Agreement. None of the benefits provided by the City to its employees, including, but not limited to, compensation, insurance, and unemployment insurance are available from the City to the employees, agents, representatives, or sub - consultants of the Consultant. The City shall not be responsible for withholding or otherwise deducting federal income tax or social security or contributing to the State Industrial Insurance Program, or otherwise assuming the duties of an employer with respect to the Consultant, or any employee of the Consultant. The Consultant will be solely and entirely responsible for its acts and for the acts of its agents, employees, representatives, and sub -consultants during the performance of this Agreement. The City may, during the term of this Agreement, engage other independent contractors to perform the same or similar work that the Consultant performs hereunder. 8. Indemnification. Consultant shall defend, indemnify, and hold the City, its officers, officials, employees, agents, and volunteers harmless from any and all claims, injuries, damages, losses or suits including attorneys' fees, arising out of or resulting from the acts, errors or omissions of the Consultant in performance of this Agreement, except for injuries and damages caused by the sole negligence of the City. Should a court of competent jurisdiction determine that this Agreement is subject to RCW 4.24.115, then, in the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of the Consultant and the City, its officers, officials, employees, and volunteers, the Consultant's liability, including the duty and cost to defend, hereunder shall be only to the extent of the Consultant's negligence. IT IS FURTHER SPECIFICALLY AND EXPRESSLY UNDERSTOOD THAT THE INDEMNIFICATION PROVIDED HEREIN CONSTITUTES THE CONSULTANT'S WAIVER OF IMMUNITY UNDER INDUSTRIAL INSURANCE, City of Port Orchard and KPFF Public Works Project: Dekalb Pier & Waterway Aquatic Land Lease Updated 412022180R Page 4 of 17 Docusign Envelope ID: 60E2C9AA-9DF4-416F-A48B-1 E52C3D73B91 TITLE 51 RCW, SOLELY FOR THE PURPOSES OF THIS INDEMNIFICATION. THIS WAIVER HAS BEEN MUTUALLY NEGOTIATED BY THE PARTIES. The provisions of this section shall survive the expiration or termination of this Agreement. 9. Insurance. The Consultant shall procure and maintain for the duration of the Agreement, insurance against claims for injuries to persons or damage to property which may arise from or in connection with the performance of the work hereunder by the Consultant, its agents, representatives, or employees. A. Minimum Scope of Insurance. Consultant shall obtain insurance of the types described below: limits: i. Automobile Liability insurance covering all owned, non -owned, hired and leased vehicles. Coverage shall be written on Insurance Services Office (ISO) form CA 00 01 or a substitute form providing equivalent liability coverage. If necessary, the policy shall be endorsed to provide contractual liability coverage. ii. Commercial General Liability insurance shall be written on ISO occurrence form CG 00 01 and shall cover liability arising from premises, operations, independent Consultants and personal injury and advertising injury. The City shall be named as an insured under the Consultant's Commercial General Liability insurance policy with respect to the work performed for the City. iii. Workers' Compensation coverage as required by the Industrial Insurance laws of the State of Washington. iv. Professional Liability insurance appropriate to the Consultant's profession. B. Minimum Amounts of Insurance. Consultant shall maintain the following insurance i. Automobile Liability insurance with a minimum combined single limit for bodily injury and property damage of $1,000,000 per accident. ii. Commercial General Liability insurance shall be written with limits no less than $1,000,000 each occurrence, $2,000,000 general aggregate. iii. Professional Liability insurance shall be written with limits no less than $1,000,000 per claim and $1,000,000 policy aggregate limit. C. Other Insurance Provision. The Consultant's Automobile Liability, Commercial General Liability, and Professional Liability insurance policies are to contain, or be endorsed to contain, that they shall be primary insurance as respect the City. Any Insurance, self-insurance, or insurance City of Port Orchard and KPFF Public Works Project: Dekalb Pier & Waterway Aquatic Land Lease Updated 41202218DR Docusign Envelope ID: 60E2C9AA-9DF4-416F-A48B-1 E52C3D73B91 pool coverage maintained by the City shall be excess of the Consultant's insurance and shall not contribute with it. D. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best rating of not less than A-VII. E. Verification of Coverage. The Consultant shall furnish the City with original certificates and a copy of the amendatory endorsements, including but not necessarily limited to the additional insured endorsement, evidencing the insurance requirements of the Consultant before commencement of the work. F. Notice of Cancellation. The Consultant shall provide the City with written notice of any policy cancellation, within two business days of their receipt of such notice. G. Failure to Maintain Insurance. Failure on the part of the Consultant to maintain the insurance as required shall constitute a material breach of contract, upon which the City may, after giving five business days' notice to the Consultant to correct the breach, immediately terminate the contract or, at its discretion, procure or renew such insurance and pay any and all premiums in connection therewith, with any sums so expended to be repaid to the City on demand, or at the sole discretion of the City, offset against funds due the Consultant from the City. H. No Limitation. Consultant's maintenance of insurance as required by the Agreement shall not be construed to limit the liability of the Consultant to the coverage provided by such insurance, or otherwise limit the City's recourse to any remedy available at law or in equity. 10. Record Keeping and Reporting. A. The Consultant shall maintain accounts and records, including personnel, property, financial, and programmatic records, which sufficiently and properly reflect all direct and indirect costs of any nature expended and services performed pursuant to this Agreement. The Consultant shall also maintain such other records as may be deemed necessary by the City to ensure proper accounting of all funds contributed by the City to the performance of this Agreement. B. The foregoing records shall be maintained for a period of seven (7) years after termination of this Agreement unless permission to destroy them is granted by the Office of the Archivist in accordance with Chapter 40.14 RCW and by the City. 11. City's Right of Inspection and Audit. A. Even though the Consultant is an independent contractor with the authority to control and direct the performance and details of the work authorized under this Agreement, the work must meet the approval of the City and shall be subject to the City's general right of inspection to secure the satisfactory completion thereof. The Consultant agrees to comply with all federal, state, and municipal laws, rules, and regulations that are now effective or become applicable within the terms of this City of Port Orchard and KPFF Public Works Project: Dekalb Pier & Waterway Aquatic Land Lease Updated 41202218DR Page 6 of 17 Docusign Envelope ID: 60E2C9AA-9DF4-416F-A48B-1 E52C3D73B91 Agreement to the Consultant's business, equipment, and personnel engaged in operations covered by this Agreement or accruing out of the performance of such operations. B. The records and documents with respect to all matters covered by this Agreement shall be subject at all times to inspection, review or audit by the City during the performance of this Agreement. All work products, data, studies, worksheets, models, reports, and other materials in support of the performance of the service, work products, or outcomes fulfilling the contractual obligations are the products of the City. 12. Work Performed at the Consultant's Risk. The Consultant shall take all precautions necessary and shall be responsible for the safety of its employees, agents, and sub -consultants in the performance of the work hereunder and shall utilize all protection necessary for that purpose. All work shall be done at the Consultant's own risk, and the Consultant shall be responsible for any loss of or damage to materials, tools, or other articles used or held by the Consultant for use in connection with the work. 13. Termination. A. Termination without cause. This Agreement may be terminated by the City at any time for public convenience, for the Consultant's insolvency or bankruptcy, or the Consultant's assignment for the benefit of creditors. B. Termination with cause. This Agreement may be terminated upon the default of the Consultant and the failure of the Consultant to cure such default within a reasonable time after receiving written notice of the default. C. Rights Upon Termination. i. With or Without Cause. Upon termination for any reason, all finished or unfinished documents, reports, or other material or work of the Consultant pursuant to this Agreement shall be submitted to the City, and the Consultant shall be entitled to just and equitable compensation for any satisfactory work completed prior to the date of termination, not to exceed the total compensation set forth herein. The Consultant shall not be entitled to any reallocation of cost, profit or overhead. The Consultant shall not in any event be entitled to anticipated profit on work not performed because of such termination. The Consultant shall use its best efforts to minimize the compensation payable under this Agreement in the event of such termination. Upon termination, the City may take over the work and prosecute the same to completion, by contract or otherwise. ii. Default. If the Agreement is terminated for default, the Consultant shall not be entitled to receive any further payments under the Agreement until all work called for has been fully performed. Any extra cost or damage to the City resulting from such default(s) shall be deducted from any money due or coming due to the Consultant. The Consultant shall bear any extra expenses incurred by the City in completing the work, including all increased City of Port Orchard and KPFF Public Works Project: Dekalb Pier & Waterway Aquatic Land Lease Updated 41202218DR Page 7 of 17 Docusign Envelope ID: 60E2C9AA-9DF4-416F-A48B-1 E52C3D73B91 costs for completing the work, and all damage sustained, or which may be sustained, by the City by reason of such default. D. Suspension. The City may suspend this Agreement, at its sole discretion. Any reimbursement for expenses incurred due to the suspension shall be limited to the Consultant's reasonable expenses, and shall be subject to verification. The Consultant shall resume performance of services under this Agreement without delay when the suspension period ends. E. Notice of Termination or Suspension. If delivered to the Consultant in person, termination shall be effective immediately upon the Consultant's receipt of the City's written notice or such date as stated in the City's notice of termination, whichever is later. Notice of suspension shall be given to the Consultant in writing upon one week's advance notice to the Consultant. Such notice shall indicate the anticipated period of suspension. Notice may also be delivered to the Consultant at the address set forth in the "Notices" Section herein. F. Nothing in this Subsection shall prevent the City from seeking any legal remedies it may otherwise have for the violation or nonperformance of any provisions of this Agreement. 14. Discrimination Prohibited. A. The Consultant agrees not to discriminate against any employee or applicant for employment or any other person in the performance of this Agreement because of race, creed, color, national origin, marital status, sex, age, disability, or other circumstance prohibited by federal, state, or local law or ordinance, except for a bona fide occupational qualification. B. Violation of this Section shall be a material breach of this Agreement and grounds for cancellation, termination, or suspension of the Agreement by the City, in whole or in part, and may result in ineligibility for further work for the City. 15. Force Majeure. Notwithstanding anything to the contrary in this Agreement, any prevention, delay or stoppage due to strikes, lockouts, labor disputes, acts of God, acts of war, terrorist acts, inability to obtain services, labor, or materials or reasonable substitutes therefor, governmental actions, governmental laws, regulations or restrictions, civil commotions, casualty, actual or threatened public health emergency (including, without limitation, epidemic, pandemic, famine, disease, plague, quarantine, and other significant public health risk), governmental edicts, actions, declarations or quarantines by a governmental entity or health organization, breaches in cybersecurity, and other causes beyond the reasonable control of the Party obligated to perform, regardless of whether such other causes are (i) foreseeable or unforeseeable or (ii) related to the specifically enumerated events in this paragraph (collectively, a "Force Majeure"), shall excuse the performance of such Party for a period equal to any such prevention, delay or stoppage. To the extent this Agreement specifies a time period for performance of an obligation of either Party, that time period shall be extended by the period of any delay in such Party's performance caused by a Force Majeure. Provided however, that the current COVID-19 pandemic shall not be considered a Force Majeure unless constraints on a Party's City of Port Orchard and KPFF Public Works Project: Dekalb Pier & Waterway Aquatic Land Lease Updated 41202218DR Page 8 of 17 Docusign Envelope ID: 60E2C9AA-9DF4-416F-A48B-1 E52C3D73B91 performance that result from the pandemic become substantially more onerous after the effective date of this Agreement. 16. Assignment and Subcontract. The Consultant shall not assign or subcontract any portion of the services contemplated by this Agreement without the prior written consent of the City. Any assignment made without the prior approval of the City is void. 17. Conflict of Interest. The Consultant represents to the City that it has no conflict of interest in performing any of the services set forth in Exhibit "A." In the event that the Consultant is asked to perform services for a project with which it may have a conflict, Consultant will immediately disclose such conflict to the City. 18. Confidentiality. All information regarding the City obtained by the Consultant in performance of this Agreement shall be considered confidential. Breach of confidentiality by the Consultant shall be grounds for immediate termination. 19. Non -Appropriation of Funds. If sufficient funds are not appropriated or allocated for payment under this Agreement for any future fiscal period, the City will so notify the Consultant and shall not be obligated to make payments for services or amounts incurred after the end of the current fiscal period. This Agreement will terminate upon the completion of all remaining services for which funds are allocated. No penalty or expense shall accrue to the City in the event that the terms of the provision are effectuated. 20. Entire Agreement. This Agreement contains the entire agreement between the parties, and no other agreements, oral or otherwise, regarding the subject matter of this Agreement shall be deemed to exist or bind either of the parties. If there is a conflict between the terms and conditions of this Agreement and the attached exhibits, then the terms and conditions of this Agreement shall prevail over the exhibits. Either party may request changes to the Agreement. Changes which are mutually agreed upon shall be incorporated by written amendments to this Agreement. 21. Non -waiver of Breach. The failure of either party to insist upon strict performance of any of the covenants and agreements contained herein, or to exercise any option herein contained in one or more instances, shall not be City of Port Orchard and KPFF Public Works Project: Dekalb Pier & Waterway Aquatic Land Lease Updated 41202218DR Page 9 of 17 Docusign Envelope ID: 60E2C9AA-9DF4-416F-A48B-1 E52C3D73B91 construed to be a waiver or relinquishment of said covenants, agreements, or options, and the same shall be in full force and effect. 22. Modification. No waiver, alteration, modification of any of the provisions of this Agreement shall be binding unless in writing and signed by a duly authorized representative of the City and the Consultant. 23. Notices. All notices or other communications required or permitted under this Agreement shall be in writing and shall be (a) personally delivered, in which case the notice or communication shall be deemed given on the date of receipt at the office of the addressee; (b) sent by registered or certified mail, postage prepaid, return receipt requested, in which case the notice or communication shall be deemed given three (3) business days after the date of deposit in the United States mail; or (c) sent by overnight delivery using a nationally recognized overnight courier service, in which case the notice or communication shall be deemed given one business day after the date of deposit with such courier. In addition, all notices shall also be emailed, however, email does not substitute for an official notice. Notices shall be sent to the following addresses: Notices to the City of Port Orchard shall be sent to the following address: City Clerk City of Port Orchard 216 Prospect Street Port Orchard, Washington 98366 BwaIlace@cityofportorchard.us Phone:360.876.4407 Fax: 360.895.9029 Notices to the Consultant shall be sent to the following address: 612 Woodland Sauare L000 SE Ste 100 Lacey WA 98503 Phone No.: 360-292-7230 Email: jereme.chapman@kpff.com 24. Resolution of Disputes; Governing Law. A. Should any dispute, misunderstanding or conflict arise as to the terms and conditions contained in this Agreement, the matter shall first be referred to the Mayor, who shall determine the term or provision's true intent or meaning. The Mayor shall also decide all questions which may arise between the parties relative to the actual services provided or to the sufficiency of the performance hereunder. B. If any dispute arises between the City and the Consultant under any of the provisions City of Port Orchard and KPFF Public Works Project: Dekalb Pier & Waterway Aquatic Land Lease Updated 41202218DR Page 10 of 17 Docusign Envelope ID: 60E2C9AA-9DF4-416F-A48B-1 E52C3D73B91 of this Agreement which cannot be resolved by the Mayor's determination in a reasonable time, or if the Consultant does not agree with the Mayor's decision on a disputed matter, jurisdiction of any resulting litigation shall be filed in Kitsap County Superior Court, Kitsap County, Washington. C. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington. In any suit or action instituted to enforce any right granted in this Agreement, the substantially prevailing party shall be entitled to recover its costs, disbursements, and reasonable attorneys' fees from the other Party. 25. Compliance with Laws. The Consultant agrees to comply with all federal, state, and municipal laws, rules, and regulations that are now effective or in the future become applicable to Consultant's business, equipment, and personnel engaged in operations covered by this Agreement or accruing out of the performance of those operations. 26. Title VI. The City of Port Orchard, in accordance with Title VI of the Civil Rights Act of 1964, 78 Stat. 252, 42 U.S.C. 2000d to 2000d-4 and Title 49, Code of Federal Regulations, Department of Transportation subtitle A, Office of the Secretary, Part 21, nondiscrimination in federally assisted programs of the Department of Transportation issued pursuant to such Act, must affirmatively insure that its contracts comply with these regulations. Therefore, during the performance of this Agreement, the Consultant, for itself, its assignees, and successors in interest agrees as follows: A. Compliance with Regulations. The Consultant will comply with the Acts and the Regulations relative to Nondiscrimination in Federally -assisted programs of the U.S. Department of Transportation, Federal Highway Administration (FHWA), as they may be amended from time to time, which are herein incorporated by reference and made a part of this Agreement. B. Nondiscrimination. The Consultant, with regard to the work performed by it during this Agreement, will not discriminate on the grounds of race, color, national origin, sex, age, disability, income -level, or LEP in the selection and retention of subcontractors, including procurements of materials and leases of equipment. The Consultant will not participate directly or indirectly in the discrimination prohibited by the Acts and the Regulations as set forth in Appendix A, attached hereto and incorporated herein by this reference, including employment practices when this Agreement covers any activity, project, or program set forth in Appendix B of 49 C.F.R. part 21. C. Solicitations for Subcontracts, Including Procurements of Materials and Equipment. In all solicitations, either by competitive bidding, or negotiation made by the Consultant 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 Consultant of the Consultant's obligations under this Agreement and the Acts and the Regulations relative to Non-discrimination on the grounds of race, color, national origin, sex, age, disability, income -level, or LEP. City of Port Orchard and KPFF Public Works Project: Dekalb Pier & Waterway Aquatic Land Lease Updated 41202218DR Page 11 of 17 Docusign Envelope ID: 60E2C9AA-9DF4-416F-A48B-1 E52C3D73B91 D. Information and Reports. The Consultant 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 City or the FHWA to be pertinent to ascertain compliance with such Acts, Regulations, and instructions. Where any information required of the Consultant is in the exclusive possession of another who fails or refuses to furnish the information, the Consultant will so certify to the City or the FHWA, as appropriate, and will set forth what efforts it has made to obtain the information. E. Sanctions for Noncompliance. In the event of the Consultant's noncompliance with the non- discrimination provisions of this Agreement, the City will impose such contract sanctions as it or the FHWA may determine to be appropriate, including, but not limited to: i. withholding payments to the Consultant under the Agreement until the contractor complies; and/or ii. cancelling, terminating, or suspending the Agreement, in whole or in part. F. Incorporation of Provisions. The Consultant 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 Consultant will take action with respect to any subcontract or procurement as the City or the FHWA may direct as a means of enforcing such provisions including sanctions for noncompliance. Provided, that if the Consultant becomes involved in, or is threatened with litigation by a subcontractor, or supplier because of such direction, the Consultant may request the City to enter into any litigation to protect the interests of the City. In addition, the Consultant may request the United States to enter into the litigation to protect the interests of the United States. 27. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall constitute an original, and all of which will together constitute this one Agreement. 28. Severability. Any provision or part of this Agreement held to be void or unenforceable under any law or regulation shall be deemed stricken and all remaining provisions shall continue to be valid and binding upon the City and the Consultant, who agree that the Agreement shall be reformed to replace such stricken provision or part with a valid and enforceable provision that comes as close as reasonably possible to expressing the intent of the stricken provision. IN WITNESS WHEREOF, the City and the Consultant have executed this Agreement as of the dates listed below. CONSULTANT CITY OF PORT ORCHARD City of Port Orchard and KPFF Public Works Project: Dekalb Pier & Waterway Aquatic Land Lease Updated 41202218DR Page 12 of 17 Docusign Envelope ID: 60E2C9AA-9DF4-416F-A48B-1 E52C3D73B91 By: �- Title: Principal Date: 12/20/2024 City of Port Orchard and KPFF Public Works Project: Dekalb Pier & Waterway Aquatic Land Lease Updated 41202218DR Signed by: y� B j b P4aAtA SW o . Robert Putaansuu, Mayor 1/16/2025 Date: ATTEST/AUTHENTICATE rSigned by: �av� (PA((aLt, Brandy Wallace, MMC, City Clerk APPROVED AS TO FORM Signed by: E / 203701 F25520457_. Port Orchard City Attorney's Office Page 13 of 17 Docusign Envelope ID: 60E2C9AA-9DF4-416F-A48B-1 E52C3D73B91 APPENDIX A During the performance of this Agreement, the Consultant, for itself, its assignees, and successors in interest 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 C.F.R. 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 C.F.R. 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 4 7123), 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.P.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 City of Port Orchard and KPFF Public Works Project: Dekalb Pier & Waterway Aquatic Land Lease Updated 41202218DR Docusign Envelope ID: 60E2C9AA-9DF4-416F-A48B-1 E52C3D73B91 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). City of Port Orchard and KPFF Public Works Project: Dekalb Pier & Waterway Aquatic Land Lease Updated 41202218DR Docusign Envelope ID: 60E2C9AA-9DF4-416F-A48B-1E52C3D73B91 HIBIT A 612 Woodland Square Loop SE, Suite 100 Lacey, WA 98503 360.292.7230 kpff.com November 26, 2024 Denis Ryan City of Port Orchard 216 Prospect Street Port Orchard, WA 98366 Subject: Dekalb Street Pier & Waterway Aquatic Land Lease Surveying Services Dear Denis: lcpff Thank you for the opportunity to work with you on the above -mentioned project. Based on our review of the material provided and our understanding of the DNR Aquatic Land Lease (A.L.L.) survey process we have prepared the following anticipated scope of work for this project. SCOPE OF WORK Task 1— Aquatic Land Lease Survey • Establish site control and tie controlling monuments to the Washington State Plane Coordinate System (NAD 83/91) as per DNR requirements. • Perform a site topographic survey and utilize existing upland topographic data for the required site plan and supplement any additional items needed to prepare the A.L.L. survey. • Perform necessary research to establish lease area boundary. • Prepare/Draft A.L.L. survey and submit to DNR for review and comments. • Address DNR comments, if any, and submit for final approval. • Record a record of survey with the Kitsap County Auditor. • Deliverables will be a Record of Survey for Aquatic Land Lease recorded with the Kitsap County Auditor and required submittal package to DNR. ASSUMPTIONS/EXCLUSIONS In addition to any assumptions previously made in this proposal, the following assumptions have been made in preparation of this scope of work: Any scope of work requested or required that is not specifically identified in one of the tasks above may be considered an additional service. Prior to completing any such work, KPFF will discuss with you the need and impact on the scope and fee. 2. All recording and application fees will be the responsibility of the client and are not included in the fee schedule given below. 3. KPFF will be allowed unrestricted access to site during the course of project. Docusign Envelope ID: 60E2C9AA-9DF4-416F-A48B-1E52C3D73B91 ` ` 1IBIT A Denis Ryan November 26, 2024 Page 2 4. The reimbursement fee given does not include any DNR fees or payments for lease holds, the fee given includes title reports and recording of the Record of Survey. FEES We propose to provide the above services for an hourly not -to -exceed fee in accordance with the enclosed Terms and Conditions, which are made part of this proposal. Task 1 — Aquatic Land Lease Survey Reimbursable Cost* $21,509 1,500 *Reimbursable expenses for items such as travel, reprographic copying, title reports, recording and application fees, and courier service will be billed at cost. SCHEDULE KPFF is available to begin the project within three (3) weeks of your written authorization to proceed. Project deliverable to DNR for review within 3 weeks upon completion of the fieldwork. Final deliverable and recording schedule pending DNR review. We appreciate the opportunity to work with you on this project. If this proposal meets your approval, please sign below, and return one copy for our files. If you have any questions concerning this proposal, please feel free to call me at (360) 292-7230 or email jereme.chapman@kpff.com Sincerely, Jereme Chapman Principal JFC:MMC Enclosure 65400 DocuSigned by: vuu*S �'ja,� 1/16/2025 Approved: eeR s, osess 9PE Date: Denis Ryan Docusign Envelope ID: 60E2C9AA-9DF4-416F-A48B-1E52C3D73B91 HIBIT A TERMS AND CONDITIONS KPFF, Inc. ("KPFF") shall perform the services outlined in this agreement pursuant to the stated fee arrangement. 1. Additional Services — Should the Scope of Services change from those set forth in the Agreement for Professional Services, the fee for such additional services will be negotiated between Client and KPFF and agreed to in a written amendment. 2. Limitation of Liability — To the greatest extent allowed by law, the aggregate liability of KPFF for any and all injuries, claims, demands, losses, expenses or damages, of whatever kind, arising out of or in any way related to this Agreement or the services provided by KPFF on this project, shall be limited to $50,000 or the total fee received by KPFF pursuant to this Agreement, whichever is greater. Further, no officer, director, shareholder or employee of KPFF shall bear any personal liability to Client for any and all injuries, claims, demands, losses, expenses or damages, of whatever kind or character, arising out of or in any way related to this Agreement or the services provided by KPFF on this project. 3. Mediation — All disputes between Client and KPFF arising out of or relating to this Agreement shall be submitted to nonbinding mediation as a condition precedent to commencement of any other dispute resolution proceeding. 4. Suspension of Services — If Client fails to make payments to KPFF in accordance with this Agreement, such failure shall provide KPFF the option to suspend performance of services under this Agreement upon seven (7) days' written notice to Client. In the event of a suspension of services, KPFF shall have no liability for any delays or damages caused because of such suspension. Before resuming services, KPFF shall be paid all sums due prior to suspension and any expenses incurred by KPFF in the interruption and resumption of its services. KPFF's fees for the remaining services and time schedules shall be equitably adjusted. If any invoice is in dispute, Client shall pay under written protest and KPFF shall continue to provide services in a mutual effort to keep the project on schedule and the Parties shall resolve the payment dispute after substantial completion. 5. Termination — This Agreement may be terminated by either party with seven (7) days written notice to the other in the event of a substantial failure of performance by the other party through no fault of the terminating party. If this Agreement is terminated, KPFF shall be paid for services performed to the termination notice date, including reimbursable expenses due. 6. Ownership of Instruments of Service — KPFF's drawings, calculations and specifications are KPFF's Instruments of Service and are, and shall remain, the property of KPFF as the author and owner, whether the project for which they are made is executed or not. So long as Client performs all of its obligations under this Agreement, including, without limitation, payment of all sums owed to KPFF and its consultants, KPFF grants a revocable, royalty - free license to Client to use the Instruments of Service for the limited purpose of facilitating the design, construction, or maintenance of the Project. The Instruments of Service are not to be used on other projects or extensions to this project except by agreement in writing. Any unauthorized use or modifications to the Instruments of Services absent KPFF's written approval shall be at Client's sole risk and without liability to KPFF. Client shall indemnify, immediately defend, and hold KPFF harmless from and against any and all losses, claims, or damages arising out of or related to such subsequent use or modification, other than to the extent such losses arise out of the sole negligence or willful misconduct of KPFF. 7. Contract & Construction Administration — KPFF's review of contractor's shop drawings shall be for the limited purpose of checking general conformance with the Contract Documents. KPFF expressly disclaims any responsibility for contractor or subcontractor construction means and methods and Client acknowledges contractor's ultimate responsibility for constructing the Project in conformance with the Contract Documents. KPFF's presence on the site is for the limited purpose of providing observation and does not include responsibility for supervision or direction of the actual work of the contractor, its employees or agents, nor under any circumstances shall Consultant be responsible for the means and methods of construction, or site safety, which is solely within the purview of others. 8. No Third -Party Beneficiary — Nothing in this Agreement shall create a contractual relationship with or a cause of action in favor of any third party against KPFF or Client. 9. No Assignments — Neither party to this Agreement shall transfer, sublet or assign any rights under or interest in this Agreement (including but not limited to monies that are due or monies that may be due) without the prior written consent of the other party. 10. Payments — KPFF will submit monthly invoices. Payment is due on the date of the invoice and becomes delinquent one month thereafter. A late charge will be added to delinquent amounts at the rate of one -and -one-half percent (1 '/z %) for each one month of delinquency (or the maximum allowable by law, whichever is lower). 11. Waiver of Consequential Damages — To the fullest extent permitted by law, the Parties waive any entitlement to recovery of consequential damages for any act, error, or omission arising out of or related to this Agreement. Page 1 of 1