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HomeMy WebLinkAbout071-26 - Kiewit Infrastructure West Co. - ContractDocusign Envelope ID: 4F3305E9-3586-89C2-80CE-4AA29CE24EA9 071-26 Port Orchard Contract #: Authorized Amount: $515,000 Date Start: 3/24/2026 Date End: 3/24/2028 CONTRACT CITY OF PORT ORCHARD WATER UTILITY RELOCATION - GORST VICINITY FISH BARRIER REMOVAL PROJECT CONTRACT NO. 071-26 THIS CONTRACT ("Contract") is made and entered into this 24th day of March, 2026, by and between the City of Port Orchard, a municipality incorporated and existing under the laws of the State of Washington, hereinafter called the "City," and Kiewit Infrastructure West Co., hereinafter called the "Contractor." WITNESSETH: General Provisions. A. Description of Work. The Contractor, in consideration of the covenants, agreements and payments to be performed and made by the City, hereby covenants and agrees to furnish all labor, tools, materials, equipment and supplies required for, and to execute, construct and finish in full compliance with the Contract Documents, Water Utility Relocation — Gorst Vicinity Fish Barrier Removal Project. The Contractor further agrees to perform all such work for the Contract Price stated in the Contractor's Relocation Agreement #9 attached hereto and incorporated herein by this reference as if set forth in full. Contractor further represents that the services furnished under this Agreement will be performed in accordance with and as described in the attached plans and specifications and with the Port Orchard Municipal Code, the City's Public Works Standards, which includes (but is not limited to) the 2021 edition of the WSDOT Standard Specifications for Road, Bridge, and Municipal Construction (which shall apply except where noted otherwise). All of these standards are by this reference incorporated herein and made a part hereof. Contractor further represents that the services furnished under this Agreement will be performed in accordance with generally accepted professional practices within the Puget Sound region in effect at the time such services are performed. The Contract Documents include: Relocation Agreement #9 Exhibit A - Delegation Exhibit B — Design Exhibit D — Overview All Exhibits to this Contract are by this reference incorporated herein and made a part hereof as if set forth in full. Docusign Envelope ID: 4F3305E9-35B6-89C2-80CE-4AA29CE24EA9 B. Time of Completion. Time is of the essence of this Contract. The Contractor shall begin work within fourteen (14) calendar days after the City issues the Notice to Proceed. All work covered by this Contract shall be completed in accordance with the project schedule established for the WSDOT Project 9920 utility relocation work and as coordinated with WSDOT and Kiewit. Completion shall be determined upon acceptance of the Work as described in Section 2 of the relocation Agreement #9. II. Non -Discrimination. During the performance of this Contract, the Contractor, for itself, its assignees, and successors in interest agrees to comply with the following non-discrimination statutes and authorities; including but not limited to compliance with the following 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 Docusign Envelope ID: 4F3305E9-3586-89C2-80CE-4AA29CE24EA9 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 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). Title VI of the Civil Rights Act of 1964 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 ensure that its contracts comply with these regulations. Also, in accordance with Title VI, the City is required to include the following clauses in every contract subject to Title VI and its related regulations. Therefore, during the performance of this Contract, the Contractor, for itself, its assignees, and successors in interest agrees as follows: 1. Compliance with Regulations: The Contractor 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 Contract. Docusign Envelope ID: 4F3305E9-3586-89C2-80CE-4AA29CE24EA9 2. Nondiscrimination: The Contractor, with regard to the work performed by it during this Contract, 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 Contractor will not participate directly or indirectly in the discrimination prohibited by the Acts and the Regulations as set forth herein, including employment practices when this Contract covers any activity, project, or program set forth in Appendix B of 49 C.F.R. part 21. 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, national origin, sex, age, disability, income -level, or LEP. 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 City or the FHWA to be pertinent to ascertain compliance with such Acts, Regulations, and instructions. Where any information required of the Contractor is in the exclusive possession of another who fails or refuses to furnish the information, the Contractor will so certify to the City or the FHWA, as appropriate, and will set forth what efforts it has made to obtain the information. 5. Sanctions for Noncompliance: In the event of the Contractor's noncompliance with the Non-discrimination provisions of this Contract, the City will impose such contract sanctions as it or the FHWA may determine to be appropriate, including, but not limited to: 1. withholding payments to the Contractor under the Contract until the Contractor complies; and/or 2. cancelling, terminating, or suspending the 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 City or the FHWA 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 City to enter into any litigation to protect the interests of the City. In addition, the Contractor may request the United States to enter into the litigation to protect the interests of the United States. Docusign Envelope ID: 4F3305E9-3586-89C2-80CE-4AA29CE24EA9 Ill. Public Records Act Chaster 42.56 RCW Contractor understands that her/his bid response documents, and any contract documents may be subject to release under the Public Records Act Chapter 42.56 RCW and the City may be required to disclose such documents upon a request. Contractor acknowledges that they have been advised to mark any records believed to be trade secrets or confidential in nature as "confidential." If records marked as "confidential" are found to be responsive to the request for records, the City as a courtesy to the Contractor, may elect to give notice to Contractor of the request so as to allow Contractor to seek a protective order from a Court. Contractor acknowledges and agrees that any records deemed responsive to a public records request may be released at the sole discretion of, and without notice by, the City. IV. Termination The City may terminate this contract for cause or for convenience. 1. Termination for Cause. The City may, upon 7 days written notice to Contractor and to its surety, terminate (without prejudice to any right or remedy of the City) the contract, or any part of it, for cause upon the occurrence of any one or more of the following events: Contractor fails to complete the work or any portion thereof with sufficient diligence to ensure substantial completion of the work within the contract time; Contractor is adjudged bankrupt, makes a general assignment for the benefit of its creditors, or a receiver is appointed on account of its insolvency; Contractor fails in a material way to replace or correct work not in conformance with the Contract Documents, Contractor repeatedly fails to supply skilled workers or proper materials or equipment; Contractor materially disregards or fails to comply with laws, ordinances, rules, regulations, or orders of any public authority having jurisdiction; or Contractor is otherwise in material breach of any provision of the contract. Upon termination, the City may, at its option, take possession of or use all documents, materials, equipment, tools, and construction equipment and machinery thereon owned by Contractor to maintain the orderly progress of, and to finish, the work, and finish the work by whatever other reasonable method it deems expedient. 2. Termination for Convenience. The City may, upon written notice, terminate (without prejudice to any right or remedy of the City) the contract, or any part of it, for the convenience of the City. 3. Settlement of Costs. If the City terminates for convenience, Contractor shall be entitled to make a request for an equitable adjustment for its reasonable direct costs incurred prior to the effective date of the termination, plus a reasonable allowance for overhead and profit on work performed prior to termination, plus the reasonable administrative costs of the termination, but shall not be entitled to any other costs or damages, Docusign Envelope ID: 4F3305E9-3586-89C2-80CE-4AA29CE24EA9 whatsoever, provided however, the total sum payable upon termination shall not exceed the Contract Sum reduced by prior payments. VI. Independent Contractor. The parties intend that an Independent Contractor -Employer Relationship will be created by this Agreement and that the Contractor has the ability to control and direct the performance and details of its work, the City being interested only in the results obtained under this Agreement. VII. Changes. The City may issue a written change order for any change in the Contract work during the performance of this Agreement. If the Contractor determines, for any reason, that a change order is necessary, Contractor must submit a written change order request to the person listed in the Notice provision section of this Agreement, within fourteen (14) calendar days of the date Contractor knew or should have known of the facts and events giving rise to the requested change. If the City determines that the change increases or decreases the Contractor's costs or time for performance, the City will make an equitable adjustment. The City will attempt, in good faith, to reach agreement with the Contractor on all equitable adjustments. However, if the parties are unable to agree, the City will determine the equitable adjustment as it deems appropriate. The Contractor shall proceed with the change order work upon receiving either a written change order from the City or an oral order from the City before actually receiving the written change order. If the Contractor fails to require a change order within the time specified in this paragraph, the Contractor waives its right to make any claim or submit subsequent change order requests for that portion of the contract work. If the Contractor disagrees with the equitable adjustment, the Contractor must complete the change order work; however, the Contractor may elect to protest the adjustment as provided in subsections A through E of Section IX entitled, "Claims," below. The Contractor accepts all requirements of a change order by: (1) endorsing it, (2) writing a separate acceptance, or (3) not protesting in the way this section provides. A change order that is accepted by Contractor as provided in this section shall constitute full payment and final settlement of all claims for contract time and for direct, indirect and consequential costs, including costs of delays related to any work, either covered or affected by the change. Docusign Envelope ID: 4F3305E9-35B6-89C2-80CE-4AA29CE24EA9 VIII. Claims. If the Contractor disagrees with anything required by a change order, another written order, or an oral order from the City, including any direction, instruction, interpretation, or determination by the City, the Contractor may file a claim as provided in this section. The Contractor shall give written notice to the City of all claims within fourteen (14) calendar days of the occurrence of the events giving rise to the claims, or within fourteen (14) calendar days of the date the Contractor knew or should have known of the facts or events giving rise to the claim, whichever occurs first. Any claim for damages, additional payment for any reason, or extension of time, whether under this Agreement or otherwise, shall be conclusively deemed to have been waived by the Contractor unless a timely written claim is made in strict accordance with the applicable provisions of this Agreement. At a minimum, a Contractor's written claim shall include the information set forth in subsections A, items 1 through 5 below. FAILURE TO PROVIDE A COMPLETE, WRITTEN NOTIFICATION OF CLAIM WITHIN THE TIME ALLOWED SHALL BE AN ABSOLUTE WAIVER OF ANY CLAIMS ARISING IN ANY WAY FROM THE FACTS OR EVENTS SURROUNDING THAT CLAIM OR CAUSED BY THAT DELAY. A. Notice of Claim. Provide a signed written notice of claim that provides the following information: 1. The date of the Contractor's claim; 2. The nature and circumstances that caused the claim; 3. The provisions in this Agreement that support the claim; 4. The estimated dollar cost, if any, of the claimed work and how that estimate was determined; and 5. An analysis of the progress schedule showing the schedule change or disruption if the Contractor is asserting a schedule change or disruption. B. Records. The Contractor shall keep complete records of extra costs and time incurred as a result of the asserted events giving rise to the claim. The City shall have access to any of the Contractor's records needed for evaluating the protest. The City will evaluate all claims, provided the procedures in this section are followed. If the City determines that a claim is valid, the City will adjust payment for work or time by an equitable adjustment. No adjustment will be made for an invalid protest. C. Contractor's Duty to Complete Protested Work. In spite of any claim, the Contractor shall proceed promptly to provide the goods, materials and services required by the City under this Agreement. Docusign Envelope ID: 4F3305E9-3586-89C2-80CE-4AA29CE24EA9 D. Failure to Protest Constitutes Waiver. By not protesting as this section provides, the Contractor also waives any additional entitlement and accepts from the City any written or oral order (including directions, instructions, interpretations, and determination). E. Failure to Follow Procedures Constitutes Waiver. By failing to follow the procedures of this section, the Contractor completely waives any claims for protested work and accepts from the City any written or oral order (including directions, instructions, interpretations, and determination). IX. Limitation Of Actions. CONTRACTOR MUST, IN ANY EVENT, FILE ANY LAWSUIT ARISING FROM OR CONNECTED WITH THIS AGREEMENT WITHIN 120 CALENDAR DAYS FROM THE DATE THE CONTRACT WORK IS COMPLETE OR CONTRACTOR'S ABILITY TO FILE THAT CLAIM OR SUIT SHALL BE FOREVER BARRED. THIS SECTION FURTHER LIMITS ANY APPLICABLE STATUTORY LIMITATIONS PERIOD. X. Warranty. Upon acceptance of the contract work, Contractor must provide the City a one-year warranty bond in the amount of twenty percent (20%) of the contract price a form and amount acceptable to the City. The Contractor shall correct all defects in workmanship and materials within one (1) year from the date of the City's acceptance of the Contract work, including replacing vegetation that fails to thrive. In the event any parts are repaired or replaced, only original replacement parts shall be used —rebuilt or used parts will not be acceptable. When defects are corrected, the warranty for that portion of the work shall extend for one (1) additional year from the date such correction is completed and accepted by the City. The Contractor shall begin to correct any defects within seven (7) calendar days of its receipt of notice from the City of the defect. If the Contractor does not accomplish the corrections within a reasonable time as determined by the City, the City may complete the corrections and the Contractor shall pay all costs incurred by the City in order to accomplish the correction. XI. Indemnification. Contractor 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 all legal costs and attorney fees, arising out of or in connection with the Contractor's performance of this Agreement, except for that portion of the injuries and damages caused by the sole negligence of the City. The City's inspection or acceptance of any of Contractor's work when completed shall not be grounds to avoid any of these covenants of indemnification. 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 Docusign Envelope ID: 4F3305E9-3586-89C2-80CE-4AA29CE24EA9 damages to property caused by or resulting from the concurrent negligence of the Contractor and the City, its officers, officials, employees, agents and volunteers, the Contractor's liability hereunder shall be only to the extent of the Contractor's negligence. It is further specifically and expressly understood that the indemnification provided herein constitutes the contractor's waiver of immunity under Industrial Insurance, Title 51 RCW, solely for the purposes of this indemnification. The parties further acknowledge that they have mutually negotiated this waiver. THE PROVISIONS OF THIS SECTION SHALL SURVIVE THE EXPIRATION OR TERMINATION OF THIS AGREEMENT. XII. Insurance. The Contractor 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 Contractor, its agents, representative, employees or subcontractors. No Limitation. Contractor's maintenance of insurance as required by the agreement shall not be construed to limit the liability of the Contractor to the coverage provided by such insurance, or otherwise limit the City's recourse to any remedy available at law or in equity. A. Minimum Scope of Insurance. Contractor shall obtain insurance of the types described below: 1. 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. 2. Commercial General Liability insurance shall be written on ISO occurrence form CG 00 01 and shall cover liability arising from premises, operations, stop gap liability, independent contractors, products -completed operations, personal injury and advertising injury, and liability assumed under an insured contract. The Commercial General Liability insurance shall be endorsed to provide the Aggregate Per Project Endorsement ISO form CG 25 03 1185. There shall be no endorsement or modification of the Commercial General Liability insurance for liability arising from explosion, collapse or underground property damage. The City shall be named as an insured under the Contractor's Commercial General Liability insurance policy with respect to the work performed for the City using ISO Additional Insured endorsement CG 20 10 10 01 and Additional Insured -Completed Operations endorsement CG 20 37 10 01 or substitute endorsements providing equivalent coverage. Docusign Envelope ID: 4F3305E9-3586-89C2-80CE-4AA29CE24EA9 3. Workers' Compensation coverage as required by the Industrial Insurance laws of the State of Washington. 4. Builders Risk insurance covering interests of the City, the Contractor, Subcontractors, and Sub -subcontractors in the work. Builders Risk insurance shall be on a all-risk policy form and shall insure against the perils of fire and extended coverage and physical loss or damage including flood and earthquake, theft, vandalism, malicious mischief, collapse, temporary buildings and debris removal. This Builders Risk insurance covering the work will have a deductible of $5,000 for each occurrence, which will be the responsibility of the Contractor. Higher deductibles for flood and earthquake perils may be accepted by the City upon written request by the Contractor and written acceptance by the City. Any increased deductibles accepted by the City will remain the responsibility of the Contractor. The Builders Risk insurance shall be maintained until final acceptance of the work by the City. B. Minimum Amounts of Insurance. Contractor shall maintain the following insurance limits: 1. Automobile Liability insurance with a minimum combined single limit for bodily injury and property damage of $1,000,000 per accident. 2. Commercial General Liability insurance shall be written with limits no less than $1,000,000 each occurrence, $2,000,000 general aggregate and a $2,000,000 products - completed operations aggregate limit. 3. Builders Risk insurance shall be written in the amount of the completed value of the project with no coinsurance provisions. C. Other Insurance Provisions. The insurance policies are to contain, or be endorsed to contain, the following provisions for Automobile Liability, Commercial General Liability and Builders Risk insurance: 1. The Contractor's insurance coverage shall be primary insurance as respect the City. Any insurance, self-insurance, or insurance pool coverage maintained by the City shall be excess of the Contractor's insurance and shall not contribute with it. 2. The Contractor's insurance shall be endorsed to state that coverage shall not be cancelled by either party, except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City. D. Contractor's Insurance for Other Losses. The Contractor shall assume full responsibility for all loss or damage from any cause whatsoever to any tools, Contractor's employee -owned tools, machinery, equipment, or motor vehicles owned or rented by the Contractor, or the Contractor's agents, suppliers or contractors as well as to any temporary structures, scaffolding and protective fences. Docusign Envelope ID: 4F3305E9-3586-89C2-80CE-4AA29CE24EA9 E. Waiver of Subrogation. The Contractor and the City waive all rights against each other any of their Subcontractors, Sub -subcontractors, agents and employees, each of the other, for damages caused by fire or other perils to the extend covered by Builders Risk insurance or other property insurance obtained pursuant to the Insurance Requirements Section of this Contract or other property insurance applicable to the work. The policies shall provide such waivers by endorsement or otherwise. F. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best rating of not less than A:VII. G. Verification of Coverage. Contractor 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 Automobile Liability and Commercial General Liability insurance of the Contractor before commencement of the work. Before any exposure to loss may occur, the Contractor shall file with the City a copy of the Builders Risk insurance policy that includes all applicable conditions, exclusions, definitions, terms and endorsements related to this Project. H. Subcontractors. Contractor shall ensure that each subcontractor of every tier obtain at a minimum the same insurance coverage and limits as stated herein for the Contractor (with the exception of Builders Risk insurance). Upon request the City, the Contractor shall provide evidence of such insurance. XIII. WORK PERFORMED AT CONTRACTOR'S RISK. Contractor shall take all necessary precautions and shall be responsible for the safety of its employees, agents, and subcontractors in the performance of the contract work and shall utilize all protection necessary for that purpose. All work shall be done at Contractor's own risk, and Contractor shall be responsible for any loss of or damage to materials, tools, or other articles used or held for use in connection with the work. XIV. Miscellaneous Provisions. A. Non -Waiver of Breach. The failure of the City to insist upon strict performance of any of the covenants and agreements contained in this Agreement, or to exercise any option conferred by this Agreement in one or more instances shall not be construed to be a waiver or relinquishment of those covenants, agreements or options, and the same shall be and remain in full force and effect. B. Resolution of Disputes and Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington. If the parties are unable to settle any dispute, difference or claim arising from the parties' performance of this Agreement, the exclusive means of resolving that dispute, difference or claim, shall only be by filing suit exclusively under the venue, rules and jurisdiction of the Kitsap County Superior Court, Kitsap County, Washington, unless the parties agree in writing to an alternative dispute resolution process. In any claim or lawsuit for damages arising from the parties' performance of this Docusign Envelope ID: 4F3305E9-3586-89C2-80CE-4AA29CE24EA9 Agreement, each party shall pay all its legal costs and attorney's fees incurred in defending or bringing such claim or lawsuit, including all appeals, in addition to any other recovery or award provided by law; provided, however, nothing in this paragraph shall be construed to limit the City's right to indemnification under Section XII of this Agreement. C. Written Notice. All communications regarding this Agreement shall be sent to the parties at the addresses listed on the signature page of the Agreement, unless notified to the contrary. Any written notice hereunder shall become effective three (3) business days after the date of mailing by registered or certified mail, and shall be deemed sufficiently given if sent to the addressee at the address stated in this Agreement or such other address as may be hereafter specified in writing. D. Assignment. Any assignment of this Agreement by either party without the written consent of the non -assigning party shall be void. If the non -assigning party gives its consent to any assignment, the terms of this Agreement shall continue in full force and effect and no further assignment shall be made without additional written consent. E. Modification. No waiver, alteration, or 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 Contractor. F. Entire Agreement. The written provisions and terms of this Agreement, together with any Exhibits attached hereto, shall supersede all prior verbal statements of any officer or other representative of the City, and such statements shall not be effective or be construed as entering into or forming a part of or altering in any manner this Agreement. All of the above documents are hereby made a part of this Agreement. However, should any language in any of the Exhibits to this Agreement conflict with any language contained in this Agreement, the terms of this Agreement shall prevail. G. Compliance with Laws. The Contractor agrees to comply with all federal, state, and municipal laws, rules, and regulations that are now effective or in the future become applicable to Contractor's business, equipment, and personnel engaged in operations covered by this Agreement or accruing out of the performance of those operations. H. 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.IN WITNESS WHEREOF the parties hereto have caused these presents to be duly executed. Docusign Envelope ID: 4F3305E9-3586-89C2-80CE-4AA29CE24EA9 CITY OF PORT ORCHARD Signed by: By: Robert Putaansuu, Mayor CONTRACT Signed by: By: , Mt -S F6kWSNA, Title: Project Manager 33930 Weyerhaeuser Way Suite 300 Address: Federal Way, WA 98001 ATTEST: Signed by: Brandy Wallace, MMC, City Clerk APPROVED AS TO FORM: Signed by: Charlotte Archer, City Attorney NOTICES TO BE SENT TO: CONTRACTOR: James Robinson CITY Rob Putaansuu NAME: NAME: ADDRESS: 33930 Weyerhaeuser Way Suite 300 Fec &l t� bOtkf§66et, Port Orchard, WA TELEPHONE: 808-321-1959 TELEPHONE: 360.876.4407 EMAIL: James.Robinson@kiewit.com EMAIL:cityhall @portorchardwa.gov 98366 With a copy to the City Clerk at the same address Docusign Envelope ID: 4F3305E9-3586-89C2-80CE-4AA29CE24EA9 hereof, you shall be entitled to reasonable compensation for such extraordinary services from the CONTRACTOR and reimbursement from the CONTRACTOR for all costs and expenses, including attorney fees occasioned by such default, delay, controversy or litigation. 5. This agreement shall not be binding until executed by the CONTRACTOR and the AGENCY and accepted by you. 6. This instrument contains the entire agreement between you, the CONTRACTOR and the AGENCY. You are not a party to nor bound by any instrument or agreement other than this. You shall not be required to take notice of any default or any other matter nor be bound by nor required to give notice or demand, nor required to take any action whatever except as herein expressly provided. You shall not be liable for any loss or damage not caused by your own negligence or willful misconduct. 7. The foregoing provisions shall be binding upon the assigns, successors, personal representative and heir of the Parties hereto. Contractor BY: Title: Date: Address: CITY OF PORT ORCHARD Agency Date: The above savings account agreement and instruction received and accepted this day of , 20 Bank Name Authorized Bank Officer Docusign Envelope ID: 4F3305E9-3586-89C2-80CE-4AA29CE24EA9 CITY OF PORT ORCHARD MAINTENANCE/WARRANTY BOND NOTE: This form must be completed at Contract Completion. Before the Performance Bond or the retainage can be released, the City must receive the one year Maintenance /Warranty Bond Project #: Surety Bond #: Date Posted: Expiration Date: RE Project Name: Owner/Developer/Contractor: Project Address: KNOW ALL PERSONS BY THESE PRESENTS: That we, (hereinafter called the "Principal"), and , a corporation organized under the laws of the State of , and authorized to transact surety business in the State of Washington (hereinafter called the "Surety"), are held and firmly bound unto the City of Port Orchard, Washington, in the sum of dollars ($ ) 20% of the total contract amount, lawful money of the United States of America, for the payment of which sum we and each of us bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, by these presents. THE CONDITIONS of the above obligation are such that: WHEREAS, the above named Principal has constructed and installed certain improvements on public property in connection with a project as described above within the City of Port Orchard; and WHEREAS, the Principal is required to post a bond for the twelve (12) months following written and final acceptance of the project in order to provide security for the obligation of the Principal to repair and/or replace said improvements against defects in workmanship, materials or installation during the twenty-four (24) months after written and final approval/acceptance of the same by the City; NOW, THEREFORE, this Maintenance Bond has been secured and is hereby submitted to the City. It is understood and agreed that this obligation shall continue in effect until released in writing by the City, but only after the Principal has performed and satisfied the following conditions: A. The work or improvements installed by the Principal and subject to the terms and conditions of this Bond are as follows: (insert complete description of work here) B. The Principal and Surety agree that the work and improvements installed in the above - referenced project shall remain free from defects in material, workmanship and installation (or, Docusign Envelope ID: 4F3305E9-3586-89C2-80CE-4AA29CE24EA9 in the case of landscaping, shall survive,) for a period of twenty-four (24) months after written and final acceptance of the same and approval by the City. Maintenance is defined as acts carried out to prevent a decline, lapse or cessation of the state of the project or improvements as accepted by the City during the twenty-four (24) month period after final and written acceptance, and includes, but is not limited to, repair or replacement of defective workmanship, materials or installations. C. The Principal shall, at its sole cost and expense, carefully replace and/or repair any damage or defects in workmanship, materials or installation to the City -owned real property on which improvements have been installed and leave the same in as good condition or better as it was before commencement of the work. D. The Principal and the Surety agree that in the event any of the improvements or restoration work installed or completed by the Principal as described herein, fail to remain free from defects in materials, workmanship or installation (or in the case of landscaping, fail to survive), for a period of twenty-four (24) months from the date of approval/acceptance of the work by the City, the Principal shall repair and/replace the same within ten (10) days of demand by the City, and if the Principal should fail to do so, then the Surety shall: 1. Within twenty (20) days of demand of the City, make written commitment to the City that it will either: a). remedy the default itself with reasonable diligence pursuant to a time schedule acceptable to the City; or b). tender to the City within an additional ten (10) days the amount necessary, as determined by the City, for the City to remedy the default, up to the total bond amount. Upon completion of the Surety's duties under either of the options above, the Surety shall then have fulfilled its obligations under this bond. If the Surety elects to fulfill its obligation pursuant to the requirements of subsection D(1)(b), the City shall notify the Surety of the actual cost of the remedy, upon completion of the remedy. The City shall return, without interest, any overpayment made by the Surety, and the Surety shall pay to the City any actual costs which exceeded the City estimate, limited to the bond amount. 2. In the event the Principal fails to make repairs or provide maintenance within the time period requested by the City, then the City, its employees and agents shall have the right at the City's sole election to enter onto said property described above for the purpose of repairing or maintaining the improvements. This provision shall not be construed as creating an obligation on the part of the City or its representatives to repair or maintain such improvements. E. Corrections. Any corrections required by the City shall be commenced within ten (10) days of notification by the City and completed within thirty (30) days of the date of notification. If the work is not performed in a timely manner, the City shall have the right, without recourse to legal action, to take such action under this bond as described in Section D above. Docusign Envelope ID: 4F3305E9-35B6-89C2-80CE-4AA29CE24EA9 F. Extensions and Changes. No change, extension of time, alteration or addition to the work to be performed by the Principal shall affect the obligation of the Principal or Surety on this bond, unless the City specifically agrees, in writing, to such alteration, addition, extension or change. The Surety waives notice of any such change, extension, alteration or addition thereunder. G. Enforcement. It is specifically agreed by and between the parties that in the event any legal action must be taken to enforce the provisions of this bond or to collect said bond, the prevailing party shall be entitled to collect its costs and reasonable attorney fees as a part of the reasonable costs of securing the obligation hereunder. In the event of settlement or resolution of these issues prior to the filing of any suit, the actual costs incurred by the City, including reasonable attorney fees, shall be considered a part of the obligation hereunder secured. Said costs and reasonable legal fees shall be recoverable by the prevailing party, not only from the proceeds of this bond, but also over and above said bond as a part of any recovery (including recovery on the bond) in any judicial proceeding. The Surety hereby agrees that this bond shall be governed by the laws of the State of Washington. Venue of any litigation arising out of this bond shall be in Kitsap County Superior Court. H. Bond Expiration. This bond shall remain in full force and effect until the obligations secured hereby have been fully performed and until released in writing by the City at the request of the Surety or Principal. DATED this day of SURETY COMPANY (Signature must be notarized) By: Its: Business Name: Business Address: City/State/Zip Code: Telephone Number: , 20_ DEVELOPER/OWNER (Signature must be notarized) By: Its: Business Name: Business Address: City/State/Zip Code: Telephone Number: CHECK FOR ATTACHED NOTARY SIGNATURE Developer/Owner (Form P-1) Surety Company (Form P-2) Docusign Envelope ID: 4F3305E9-3586-89C2-80CE-4AA29CE24EA9 FORM P-1 / NOTARY BLOCK (Developer/Owner) STATE OF WASHINGTON ss. KS1u1►1O161: I certify that I know or have satisfactory evidence that is the person who appeared before me, and said person acknowledged as the of that they signed this instrument, on oath stated that they are authorized to execute the instrument and acknowledged it to be their free and voluntary act for the uses and purposes mentioned in the instrument. Dated: (print or type name) NOTARY PUBLIC in and for the State of Washington, residing at: My Commission expires: Docusign Envelope ID: 4F3305E9-35B6-89C2-80CE-4AA29CE24EA9 FORM P-2/NOTARY BLOCK (Surety Company) STATE OF WASHINGTON ss. COUNTY OF I certify that I know or have satisfactory evidence that is the person who appeared before me, and said person acknowledged as the of that they signed this instrument, on oath stated that they are authorized to execute the instrument and acknowledged it to be their free and voluntary act for the uses and purposes mentioned in the instrument. Dated: (print or type name) NOTARY PUBLIC in and for the State of Washington, residing at: My Commission expires: Docusign Envelope ID: 4F3305E9-35B6-89C2-80CE-4AA29CE24EA9 Utility Relocation Agreement No. 9 Utility Name & Address: SR 3/SR 16/SR 166, Gorst Vicinity — Remove Fish Barriers Project (Contract No. 9920) Design Responsibility: Construction Responsibility: City of Port Orchard City of Port Orchard City of Port Orchard 216 Prospect Street Port Orchard, WA 98366 Contractors Name & Address: Kiewit Infrastructure West Co. 33930 Weyerhaeuser Way, Suite 300 Federal Way, WA 98001 Cost Responsibility: City of Port Orchard WSDOT#9920 RFP Utility Designation: inType1 ❑Type2 This Utility Relocation Agreement (the Agreement) is made and entered into between Kiewit Infrastructure West Co. (KIEWIT) and the above -named Utility (UTILITY), collectively the "Parties" and individually the "Party." Recitals 1. The Washington State Department of Transportation (WSDOT) is planning an improvement along SR 3/SR 16/SR 166 which consists of the removal and replacement of five existing culverts with fish passage structures (referred to as sites), per the project titled above; and has contracted with KIEWIT to perform the necessary improvements (the Project). The project site included as part of this agreement is as follows: Site ID WDFW Site ID US / SR Name County Site A 990168 SR 3 Gorst Creek Kitsap County Site B 991585 SR 3 / SR 16 UNT to Gorst Creek Kitsap County Site C 991670 SR 16 Kabelac Creek Kitsap County Site D 990270 SR 16 UNT to Ross Creek Kitsap County Site E 15.02010.90 SR 166 Olney Creek Kitsap County 2. The WSDOT has granted an "Assignment/Delegation of Utility Permit/Franchise Rights and Obligations" dated 02/26/2024 to KIEWIT regarding WSDOT Utility Permit/Franchise Numbers below and as shown in Exhibit A. Site ID WDFW Site ID Utility Owner Franchise Number Site D 990270 City of Port Orchard N/A 3. In connection therewith, it is necessary to design and remove and/or relocate and/or construct certain UTILITY facilities (the Work) to facilitate the Project. 4. In order to facilitate the completion of the Work, KIEWIT will provide all materials, equipment, labor, contract administration, and any other efforts required to perform the following for facilities owned by UTILITY: x❑ Design ® Relocation ❑ As -Built Survey ❑ Design Review l Construction l As -Built Review ® Permanent Material Supply for Construction ❑ Protect in Place x❑ Removal ❑ Field Inspection ❑ Betterments ❑ Franchise/Permit Application/ Amendment Docusign Envelope ID: 4F3305E9-3586-89C2-80CE-4AA29CE24EA9 In order to facilitate the completion of the Work, UTILITY will provide all materials, equipment, labor, contract administration, and any other efforts required to perform the following for facilities owned by UTILITY: ❑ Design ❑ Relocation ® As -Built Survey ® Design Review ❑ Construction ❑ As -Built Review ❑ Permanent Material Supply for Construction ❑ Protect in Place ❑ Removal ® Field Inspection © Betterments M Franchise/Permit Application/ Amendment 6. As defined in the conformed Request for Proposals (RFP) of WSDOT Project 9920 dated October November 26, 2024, the following Party is of the Type noted above and is entirely responsible for the cost to complete all aspects of the work for UTILITY facilities: ❑ KIEWIT ® UTILITY Both KIEWIT and UTILITY will perform their respective duties in a timely manner so that the design is completed by Site D: TBD, and the remaining work identified in Sections 4 & 5 is completed by Site D: TBD. The Final Relocation Agreement supersedes any and all versions of the Draft Utility Relocation Agreement of the same Number, and between the same Parties for the same Project designated above. Now, therefore, in consideration of the terms, conditions, covenants, and performances contained herein, as well as the attached Exhibits which are incorporated and made a part hereof, IT IS MUTUALLY AGREED AS FOLLOWS: 1. Plans and Special Provisions 1.1. Program Guide: The "Utility Relocation and Accommodation on Federal Aid Highway Projects" shall determine and establish the definitions and applicable standards for this Agreement. By this reference this document is adopted and made a part of this Agreement as if fully contained herein. 1.2. Betterment: A betterment is an improvement to UTILITY facilities not required by code, regulation, standard industry practice, or any other applicable regulation. If any of the Work constitutes a betterment as defined in the "Utility Relocation and Accommodation on Federal Aid Highway Projects", the UTILITY is solely responsible for the costs of such improvement. 1.3. The Party performing the construction agrees to perform the work in accordance with: ® The Plans identified in Exhibit B ❑ The Special Provisions in Exhibit C (if applicable) UTILITY agrees that is solely responsible for ensuring that all Plans and Special Provisions meet UTILITY's standards, codes, and regulations. In the event of a discrepancy between UTILITY's standards, codes, and regulations and those of WSDOT, those of UTILITY shall prevail unless it is determined by WSDOT that this condition will present a hazard to the safety and comfort of the traveling public. 2. Construction, Inspection, and Acceptance 2.1. UTILITY agrees to disconnect/reconnect and or deactivate/activate its facilities upon reasonable notice to UTILITY as requested by KIEWIT when such action is required to be performed by UTILITY. The Parties agree to define disconnect/reconnect and or deactivate/activate requirements, including notification and response, in Exhibit C. UTILITY facilities not removed pursuant to this Agreement shall remain the ownership, operation and maintenance responsibility of UTILITY. Docusign Envelope ID: 4F3305E9-3586-89C2-80CE-4AA29CE24EA9 2.2. Salvage: All materials removed from UTILITY's facilities shall become the property of UTILITY and disposed of by UTILITY, unless otherwise specified in Exhibit C. Arrangements to salvage certain materials for later usage by either Party shall be specified in Exhibit C. 2.3. If KIEWIT is to perform the Work, UTILITY shall furnish an inspector in a timely manner to observe the Work and verify that all standards, codes, and regulations are being met as described in Section 1.3. If UTILITY is to perform the Work, KIEWIT shall supply an inspector in a timely manner to observe the Work and verify that all improvements are compatible with the overall design, phasing, and construction of the Project. 2.4. The Party performing the construction agrees to promptly notify the other Party upon completion of the Work. 2.5. If KIEWIT is performing the Work, UTILITY shall, within five (5) working days of being notified that the Work is completed: (a) deliver a letter of acceptance to WSDOT, or (b) deliver to WSDOT written reasons why the Work does not comply with the previously approved Plans and Special Provisions. UTILITY agrees to work diligently and in good faith with KIEWIT to resolve any issues so as not to delay the Project. If all issues are resolved, UTILITY agrees to deliver to WSDOT a letter of acceptance as provided herein. 2.6. If UTILITY is performing the Work, KIEWIT shall, within five (5) working days of being notified that the Work is completed: (a) deliver a letter of acceptance to UTILITY, or (b) deliver to UTILITY written reasons why the Work does not comply with the previously approved Plans and Special Provisions. KIEWIT agrees to work diligently and in good faith with UTILITY to resolve any issues so as not to delay the Project. If all issues are resolved, KIEWIT agrees to deliver to UTILITY a letter of acceptance as provided herein. 2.7. If either Party does not respond within five (5) working days as provided in Sections 2.5 and 2.6, the Work and the administration thereof will be deemed accepted by the other Party, and the Party performing the Work shall be released from all future claims and demands except for latent defects to the extent allowed by Washington Law. 2.8. Upon completion and acceptance of the Work pursuant to Sections 2.5, 2.6, or 2.7, to the extent allowed by Washington law, UTILITY agrees that it shall be solely responsible for all future ownership, operation, and maintenance costs of its facilities, without KIEWIT or WSDOT liability or expense. 2.9. KIEWIT will prepare the final construction "as -built" survey and documentation in general conformance with WSDOT's Construction Manual. KIEWIT will maintain one set of plans as the official "as -built" set, then make notations in red of all plan revisions typically recorded per standard WSDOT practice, as directed by WSDOT's Construction Manual. Once the approving Party has accepted the Work per Section 2.5, 2.6, or 2.7, KIEWIT will provide one (1) reproducible set of "as-builts" to UTILITY. 3. Payment 3.1. The Party identified in Recital 6 of this Agreement agrees that it shall be responsible for the actual direct and related indirect costs of the efforts to perform the Work by the Party(ies) identified in the following Recitals: Docusign Envelope ID: 4F3305E9-3586-89C2-80CE-4AA29CE24EA9 ❑ Recital 4 (KIEWIT) x❑ Recital 5 (UTILITY) 3.2. The total cost to achieve completion of the Work is estimated to be: x Unspecified ❑$ ❑ To be included in the Final Utility Agreement An itemized estimate of costs for the Work is: x Not included ❑ Included in Exhibit D ❑ To be included in the Final Utility Agreement 3.3. If monies are deemed to be due from one Party to the other as required by the terms of this Agreement, the Party identified in Recital 6 of this Agreement agrees to pay the other Party the actual cost for its participation in the completion of the Work for UTILITY. The Party identified in Recital 6 shall make any payments due to the other Party within thirty (30) calendar days after receiving request for payment. 3.4. Should the Party identified in Recital 6 of this Agreement fail to make payment to the other Party according to the terms of this Agreement, the Party owed unpaid monies shall have the right to terminate this Agreement after reasonable notice to the defaulting Party and an opportunity to cure. 4. Change in Work or Cost Increase 4.1. Increase in Cost: In the event unforeseen conditions, not caused by the negligence or willful misconduct of KIEWIT, WSDOT, its or their agents, or a third party, require an increase in the cost of the Work as specified in Section 3.2, a change in the agreed total cost will: ❑ Be paid One Hundred Percent (100%) by KIEWIT ® Be paid One Hundred Percent (100%) by UTILITY ❑ Be paid at a split cost as identified below: KIEWIT: Percent (%) UTILITY: Percent (%) A change to the total cost of the Work identified in Section 3.2 will only be considered if the actual cost to complete the Work is equal to or more than the following percentage over the value identified in Section 3.2 ❑ Percent (_____%) x Not Applicable 4.2. If it is determined by the Party performing the Work that additional Work or a change in the Work is required, prior written approval must be secured from the Party identified in Recital 6. However, where the change is required to mitigate a Project emergency or safety threat to the traveling public, the Party performing the Work may direct the change without the approval of the Party identified in Recital 6. Proper notifications shall be made between both Parties of such changes as soon as possible thereafter. 4.3. Regardless of the Party performing the Work, UTILITY may request additions to the Work in writing. KIEWIT will review the request and accommodate the requested changes as elective changes, provided that a change does not negatively impact WSDOT's transportation system and complies with the Standard Specifications, Project permits, state and/or federal law, applicable rules and/or regulations, and/or WSDOT design policies, and does not unreasonably delay critically scheduled Project contract activities. Costs to construct UTILITY facilities above and beyond the cost required for the scope of the Work will be paid for solely by UTILITY, regardless of the Party performing these additional activities. Docusign Envelope ID: 4F3305E9-3586-89C2-80CE-4AA29CE24EA9 5. Franchise of Permit 5.1. UTILITY shall apply for a new permit, franchise, or amendment to its current franchise for those new or modified UTILITY facilities that will be located within WSDOT's right of way. After receiving the application, WSDOT will issue a new permit or a new or amended franchise, as applicable. 6. Right of Entry/Permits 6.1. KIEWIT agrees to provide copies of its Right of Entry Permits and Temporary Construction Easements with all privately owned lands, as requested by UTILITY. UTILITY may elect to perform its Work within the limits and restrictions of KIEWIT temporary construction easement. If UTILITY does not elect to perform its Work within the limits of KIEWIT temporary construction easements; UTILITY agrees to arrange for rights of entry upon all privately owned lands upon which UTILTY has a claimed property rights and which are necessary to perform the Work. UTILITY also agrees to obtain all necessary permissions for KIEWIT to perform the Work on such lands, which may include reasonable use restrictions on those lands. UTILITY agrees to provide the rights of entry and applicable permissions under this section to KIEWIT within ten (10) calendar days of entering into this Agreement. Upon completion of the Work on such lands, those rights of entry and permissions beyond the rights of entry and permissions granted by the WSDOT permit or franchise shall terminate. 6.2. KIEWIT agrees to provide copies of applicable permits that it has received to perform the work outside of this agreement, as requested. If applicable, UTILITY may elect to perform its Work under KIEWIT permits with the understanding all permit restrictions and conditions are met. It is the responsibility of the UTILITY to fully understand and comply with all KIEWIT permit conditions and requirements, including; but not limited to, performing the work within the identified boundaries and providing all necessary reports and documentation to support permit requirements and provide to KIEWIT in a timely manner after completion of Work. If UTILITY does not elect to perform its Work under KIEWIT permits; UTILITY agrees to obtain all necessary permits to perform the Work. If UTILITY elects for KIEWIT to perform any of the Work, UTILITY also agrees to obtain all necessary permit for KIEWIT to perform the Work. UTILITY agrees to provide the applicable permits under this section to KIEWIT within ten (10) calendar days of entering into this Agreement. Upon completion of the Work, those permits beyond the permissions granted by the issuing agencies shall terminate. 7. General Provisions 7.1. Indemnification: To the extent authorized by law, UTILITY and KIEWIT shall indemnify and hold harmless one another and their employees and/or officers from and shall process and defend at its own expense any and all claims, demands, suits at law or equity, actions, penalties, losses, damages (both to persons and/or property), or costs, of whatsoever kind or nature, brought against the one Party arising out of, in connection with, or incident to the other Party's performance or failure to perform any aspect of this Agreement, provided, however, that if such claims are caused by or result from the concurrent negligence of (a) UTILITY and (b) KIEWIT, their respective employees and/or officers, or involves those actions covered by RCW 4.24.115, this indemnity provision shall be valid and enforceable only to the extent of the negligence of UTILITY or KIEWIT, and provided further, that nothing herein shall require the UTILITY or KIEWIT to hold harmless or defend the other or its employees and/or officers from any claims arising from that Party's sole negligence or that of its employees and/or officers. The terms of this section shall survive the termination of this Agreement. 7.2. Disputes: If a dispute occurs between the UTILITY and KIEWIT at any time during the prosecution of the Work, the Parties agree to negotiate at the management level to resolve any issues. Should such negotiations fail to produce a satisfactory resolution, the Parties agree Docusign Envelope ID: 4F3305E9-3586-89C2-80CE-4AA29CE24EA9 to enter into arbitration and/or mediation before proceeding to any other legal remedy. Each Party shall be responsible for its own fees and costs. The Parties agree to equally share the cost of a mediator or arbiter. 7.3. Venue: In the event that either Party deems it necessary to institute legal action or proceedings to enforce any right or obligation under this Agreement, the Parties hereto agree that any such action or proceedings shall be brought in the State of Washington. Each Party shall be responsible for its own attorney's fees and costs. 7.4. Termination: 7.4.1. Unless otherwise provided herein, KIEWIT my terminate this Agreement upon thirty (30) calendar days written notice to UTILITY. 7.4.2. KIEWIT acknowledges and agrees that should it terminate this Agreement, such termination shall not relieve the Party identified in Recital 6 from its responsibility to ultimately pay for the design, removal, relocation and/or construction of UTILITY facilities so as not to delay or conflict with the Project. 7.5. Amendments: This Agreement may be amended by the mutual agreement of both Parties. Such amendments or modifications shall not be binding unless put in writing and signed by persons authorized to bind each of the Parties. 7.6. Independent Contractor: Both Parties shall be deemed independent contractors for all purposes, and the employees of each Party and any of its contractors, subcontractors, consultants, and the employees thereof, shall not in any manner be deemed to be the employees of the other Party. 7.7. Audit and Records: During the progress of the Work and for a period of not less than six (6) years from the date of final payment, both Parties shall maintain the records and accounts pertaining to the Work and shall make them available upon reasonable notice during normal business hours and as often as necessary, for inspection and audit by the other Party, Washington State, and/or Federal Government and copies of all records, accounts, documents or other data pertaining to the Work will be furnished upon request. The requesting Party shall pay the cost of copies produced. If any litigation, claim, or audit is commenced, the record, accounts along with supporting documentation shall be retained until any litigation, claim, or audit finding has been resolved even though such litigation, claim, or audit continues past the six -year retention period. 8. Waiver of Consequential Damages 8.1. Neither party will be liable to the other party for consequential damages of any nature or kind, including loss of profits/revenue and use. Damages based on actual costs incurred as a result of inexcusable delays on the reference Project are not consequential damages. 8.2. WAIVER OF CONSEQUENTIAL AND PUNITIVE DAMAGES. In no event shall either party hereto be liable to the other or obligated in any manner to pay to the other any special, incidental, consequential, punitive or similar losses or damages (including loss of profits, loss of production, loss of business opportunity or other consequential or indirect loss) based upon claims arising out of or in connection with the performance or non-performance of its obligations or otherwise under this Agreement, or the material inaccuracy of any representation made in this Agreement, whether such claims are based upon contract, tort, negligence, warranty or other legal theory; provided, however, that the waiver of this foregoing damages under this Section is intended to apply only to disputes and claims as between UTILITY and KIEWIT. Nothing in this Section shall limit the obligation of the UTILITY to indemnify, defend and hold harmless the KIEWIT Indemnitees, or the obligation of KIEWIT to indemnify, defend and hold harmless the UTILITY Indemnitees, for any consequential or punitive damages payable to third parties resulting from any act or Docusign Envelope ID: 4F3305E9-3586-89C2-80CE-4AA29CE24EA9 circumstance for which the UTILITY or KIEWIT, as applicable, is obligated to indemnify hereunder. Docusign Envelope ID: 4F3305E9-3586-89C2-80CE-4AA29CE24EA9 IN WITNESS WHEREOF, THE PARTIES HERETO HAVE EXECUTED THIS AGREEMENT AS OF THE DAY AND YEAR LAST WRITTEN BELOW. signed by: UTILITY L es z ROf.AO')RZRSAA7n Signature Rob Putaansuu By (Print Name) Mayor Title [:1IIWK1101 signed by: KIEWIT [iats r6kVuSbV�, Signature James Robinson By (Print Name) Project Manager Title 6/17/2026 Date Date ATTACHMENTS: ® Exhibit A — Assignment/Delegation of Utility Permit/Franchise Rights & Obligations ® Exhibit B — Plans (as designed by KIEWIT) ❑ Exhibit C — Special Provisions ❑ Exhibit D — Cost Estimate Docusign Envelope ID: 4F3305E9-3586-89C2-80CE-4AA29CE24EA9 Assignment/Delegation of Utility Franchise/Permit Rights and Obligations This is a Limited Assignment of Rights and Delegation of Obligations ("Assignment") by and between the Washington State Department of Transportation ("WSDOT") and Kiewit Infrastructure West Co. ("Design -Builder"). RECITALS WSDOT entered into a design -build contract with Design -Builder, for a highway improvement project within the following locations in Kitsap County, Washington for the SR 3/SR 104/SR 303/SR 307/SR 308 Kitsap County — Remove Fish Barriers Project: a. State Route 3, Mile Post 41.52 to 59.55; b. State Route 104, Mile Post 16.55 to 22.95; c. State Route 303, Mile Post 6.63 to 6.90; d. State Route 307, Mile Post 1.34 to 1.45; e. State Route 308, Mile Post 0.94 to 2.16 2. The Project requires the relocation of utilities that are located on WSDOT right of way pursuant to certain Utility Permits or Franchises. 3. WSDOT determined that it is in the best interest of the State of Washington and the traveling public to temporarily assign certain rights and delegate certain obligations under the Utility Permits and Franchises to the Design -Builder for the orderly, efficient, and effective relocation of utility facilities for the Project. 4. Design -Builder agrees that WSDOT's temporary assignment of rights and delegation of obligations under the Permits and Franchises will facilitate the orderly, efficient, and effective relocation of utility facilities for the Project. NOW, THEREFORE, IT IS MUTUALLY AGREED THAT: In consideration of the orderly, efficient, and effective relocation of utility facilities located within state highway right of way in support of the Project, WSDOT does hereby assign, transfer, and delegate unto Design -Builder the Utility Permits and Franchises identified in Exhibit A, subject to the terms and conditions set forth below. 1. This Assignment includes only those rights and obligations under the Permit or Franchise (and the General Provisions, Special Provisions, and Exhibits of the Permit or Franchise, if any) that are necessary or convenient for the Design -Builder to execute the Project. 2. This Assignment includes any amendment to, or replacement of, the Permit or Franchise (and the General Provisions, Special Provisions, and Exhibits thereto, if any) issued by WSDOT after the date of execution of this Assignment. 3. This Assignment does not include the right to amend, revoke, cancel, issue or otherwise modify the Permit or Franchise. 4. This Assignment is non-exclusive and WSDOT retains the right to exercise all rights and obligations under the Permit or Franchise. 5. This Assignment shall automatically terminate upon completion of the Project, unless terminated earlier by WSDOT in writing. Docusign Envelope ID: 4F3305E9-3586-89C2-80CE-4AA29CE24EA9 6. Design -Builder agrees that it shall be solely responsible for any causes of action or claims, if any, that arise between the Design -Builder and the Utility during the term of this Assignment; therefore, Design -Builder, its agents, employees, contractors, successors or assigns, will protect, save and hold harmless WSDOT, its authorized agents and employees, from all claims, actions, costs, damages (both to persons and property), injuries or expenses of any nature whatsoever by reason of the acts or omissions of Design -Builder, its agents, employees, contractors, successors or assigns, arising out of or in connection with Design -Builder's or its agents', employees', contractors', successors', or assigns' acts or omissions related to this Assignment; provided, that if the claims or damages are caused by or result from the concurrent acts or omissions of (a) WSDOT's authorized agents or employees and (b) Design -Builder, its agents, employees, contractors, successors or assigns, this indemnity provision shall be valid and enforceable only to the extent of the acts or omissions of Design -Builder, its agents, employees, contractors, successors or assigns. This provision shall survive the termination of this Assignment. 7. The Design -Builder shall not assign or transfer the rights or obligations granted in this Assignment in any manner whatsoever, unless WSDOT consents thereto in writing. 8. WSDOT shall provide a copy of this Assignment to the Utility after it is executed by WSDOT and Design -Builder. 9. The Design -Builder shall exercise its rights and obligations granted in this Assignment in a reasonable and prudent manner. Design -Builder hereby accepts the rights and assumes the obligations from WSDOT as set forth above. sri-✓ D I3rl Title: Area Manager WSDOT hereby assigns the rights and delegates the obligations as set forth above to Design -Builder. T wk:L ?�'lcfuiu Title: Olympic Region Utility Manager Dated: 2/20/2024 Dated: 2/26/2024 2 Docusign Envelope ID: 4F3305E9-35B6-89C2-80CE-4AA29CE24EA9 WSDOT ROW EXISTING 2" AIR/VACUUM VALVE 220 210 20+89.50 - INSTALL 16" BUTTERFLY VALVE - CONNECT TO EXISTING 16" WATER MAIN 200 EXISTING 16" DI WATER �21+33.04 190 21+34.50 TOP=179.50 180 IE=178.17 2 22'/ ELBOW WITH THRUST BLOCK AND RESTRAINED JOINT 170 - 21+44.50 2" '4. BLOW OFF 160 20+00 21+00 - 20+98.87 _221 ELBOW EXISTING GRADE 220 FINI HED RADE 2:1 LOPE 77 M T GRAD 210 1:5:1 SLOP 23+08.00 - 7 RE OVE XISTIN - INSTALL 16" BUTTERFLY VALVE EXISTING 2O 16" WATER MAIN 21 85.35 187.68 190 21+74.90 185.44 = EXISTING 16" DI WATER 180 22+73.50 - EXISTING CASING 21+85.50 - 170 ,SSEMB Y CONNECT TO EXISTING 1G' WATER MAIN 22 LF E TENSION 30" STEEL CASING 160 22+00 23+00 24+00 PROFILE 21+79.50 REMOVE EXISTING 16" WATER MAIN BEND GENERAL NOTES 1. ALL CONSTRUCTION SHALL BE IN ACCORDANCE WITH ALL CURRENTLY ADOPTED WSDOT AND APWA SPECIFICATIONS AND PLANS, AND THE CITY OF PORT ORCHARD MUNICIPAL CODE. 2. THE DESIGN ELEMENTS WITHIN THESE PLANS HAVE BEEN REVIEWED ACCORDING TO THE PORT ORCHARD DESIGN STANDARDS. SOME ELEMENTS MAY HAVE BEEN OVERLOOKED OR MISSED BY THE CITY OF PORT ORCHARD CITY ENGINEER. ANY DEVIATION FROM ADOPTED STANDARDS IS NOT ALLOWED UNLESS SPECIFICALLY APPROVED BY THE CITY OF PORT ORCHARD CITY ENGINEER, PRIOR TO CONSTRUCTION. 3. WATER MAINS 16 INCHES IN DIAMETER AND SMALLER MUST BE IN ACCORDANCE WITH THE LATEST EDITION OF THE STANDARD SPECIFICATIONS FOR ROAD, BRIDGE , AND MUNICIPAL CONSTRUCTION DEVELOPED BY THE WASHINGTON STATE DEPARTMENT OF TRANSPORTATION (WSDOT), SPECIFICALLY SECTION 7-09 WATER MAINS. ANY DEVIATION FROM THESE STANDARD SPECIFICATIONS WILL BE CLEARLY NOTED IN THESE STANDARDS. 4. ALL NEW LINES MUST BE PRESSURE TESTED AND DISINFECTED PRIOR TO CONNECTING TO THE EXISTING WATER MAIN. ONLY CITY REPRESENTATIVES ARE ALLOWED TO OPERATE EXISTING AND NEW TIE IN VALVES. 5. MAINTAIN MINIMUM COVER OF 4 FT OVER WATER LINE. DEPTH OF COVER IN EXCESS OF 7 -FEET REQUIRES CITY APPROVAL. 6. PIPE BEDDING, TAPPING, CONCRETE THRUST BLOCKS, TIE BACKS, AND RESTORATION PER COPO STANDARD DRAWINGS 801, 802, 803-A, AND 803-B. 7. BLOW OFF '.'ALVE INSTALLED PER COPO DRAW1 - LOCATE WIRE INSTALLED WITH I EGENfl LENGTH OF PROJECT. BUTTERFLY VALVE VALVE ATTACH UPDATE -w -w WATERLINE DRAWING EXISTING CONTOUR PROPOSED CONTOUR 45 ALIGNMENT & STATION RIGHT OF WAY EXISTING EDGE OF PAVEMENT PROPOSED EDGE OF PAVEMENT OP OVERHEAD UTILITY 0 50 100 SCALE IN FEET FILE NAME Z:\2400001-2409999\2400142 Gorst Vicinity\CADD\Design\XL6547_BP-WA.dgn DATE P.E.STAMP BOX Washington State Department of Transportation GORST VINICITY REMOVE FISH BARRIERS OLNEY CREEK TIME 6:26:49 PM REGION ND. STATE FED.AID PROJ.NO. PLAN REF NO WA 1 DATE 3/6/2026 10 was ----------- @KI@Wlt PLOTTED BY CharitiZ DESIGNED BY JOB NUMBER XL6547 SHEET xx OF SXXS ENTERED BY CHECKED BY CONTRACT NO. XXXXXX LOCATION NO. PROJ. ENGR. UTILITY PLAN AND PROFILE REGIONAL ADM. REVISION DATE BY Docusign Envelope ID: 4F3305E9-3586-89C2-80CE-4AA29CE24EA9 James.Robinson From: Chariti Zlateff <Chariti.Zlateff@kpff.com> Sent: Tuesday, March 10, 2026 4:41 PM To: Scott Wolf Cc: James.Robinson; Patrick.Sloan-PTR; Trevor.Lighty-PTR; Tim.Knighton-PTR Subject: [External]Gorst Meeting - Site D - Waterline Plan Attachments: XL6547_BP-WA_notes.pdf Follow Up Flag: Follow up Flag Status: Flagged Gorst Meeting — Notes — March 10, 2026 • Pressure Test — 250 PSI for an hour o City of Port Orchard, Chapter 8 — Design Standards for Water Extensions ■ 20. Water Main Inspection and Testing • System Appurtenances — COPO Drawing 880 - Alter o Do not drill hole is 90 ■ REMOVE drill hole direction o ADD LOCATE WIRE o Attach altered drawing to plan to use for this installation • ADD LOCATE WIRE Along top of installed PIPE for project • Sand - Casing material o City of Port Orchard, Chapter 8 — Design Standards for Water Extensions ■ D. Special Construction (Pipeline Casing) ■ 9. Sand Unless specifically required by the City Engineer, sand shall not be used in a casing for filling between the casing and carrier pipe. In those instances where the City Engineer does require sand, it shall be clean and 90-100 percent will pass the No. 4 sieve. Not more than 5 percent will pass the No. 200 sieve. Sand shall be free from clay and organic material. Please see the attached notes updated on the plan. Let me know if you have any questions Thank you, Chariti Chariti Zlateff, PE kpffCivil Engineer, PE (ID, WA and NV) O 986.860.8452 Cell 509.434.4042 509 West Hanley Avenue, Suite 203 Coeur d'Alene, ID 83815 1 Docusign Envelope ID: 4F3305E9-3586-89C2-80CE-4AA29CE24EA9 GORST VICINITY - REMOVE FISH BARRIERS UTILITY RELOCAITON DESIGN & CONSTRUCTION - WATERLINE, SITE D Site D - Overview The Anderson Creek Transmission line runs parallel to the WSDOT ROW on the inside curve (south and west of alignment) crossing perpendicular to the SR16 alignment near the creek crossing. Main is 16" ductile iron encased beneath the highway which traverses the terrain area in a valley within the limit of the utility crossing. A widening is proposed to accommodate a temporary bypass road for MOT which will require an extension of the main and casing and relocation to the southwest. The current concept to be progressed to final design includes relocating the 16" water main below the lowered temporary widening for MOT and permanently leaving the relocated pipe in place. This work is being proposed as the utility is in direct conflict with work to be performed as part of WSDOT Contract C9920 — Gorst Vicinity Fish Passage; and to meet conditions in franchise agreement between WSDOT and City of Port Orchard Design Services Include: • Meetings — as identified in the attached fee worksheet, shall include: o Bi-weekly meetings with WSDOT, akin to Task Force meetings to keep them informed on design development. o Owner Meetings — City of Port Orchard to work through technical issues. o Kiewit and Team Meetings • Preparation of utility plans, profiles, details and specifications. Refer to fee spreadsheet for assumed number of plans. • Owner is responsible for submission to WSDOT. • Plan reviews will be limited to a constructability review performed by Kiewit prior, an over -the - shoulder review with WSDOT at the 60% design level. KPFF to resolve all comments from WSDOT and the utility owners and provide a formal submittal to WSDOT at 100%. Comments from the 100% review will be resolved prior to RFC. Assumptions • KPFF assumes no alternatives analysis or geotechnical coordination will be required at Site D. • KPFF assumes no utility variance will be required at Site D. • The Site D 16" water main can be shut down for the relocation without any water sequencing plans or details and no special provisions for construction staging of the 16" water main. • City of Port Orchard Standard Detail for Thrust Blocking may be utilized without custom thrust block design and calculations. Exclusions • Updates to plans beyond what is scoped herein to be addressed by others. This scope does not include any revisions to the current plans such as Site Preparation, TESC, or to address conflicts with drainage, for example. The RFC plans for other disciplines are already completed and work doesn't cover updates to other RFC sheets. • This scope of services does not include calculations or modeling of the water distribution system. It is assumed that the main will be replaced in kind and any modifications will not have an appreciable impact on the performance of the system. Necessary modeling or calculations will be performed by the utility owner. Docusign Envelope ID: 4F3305E9-3586-89C2-80CE-4AA29CE24EA9 Construction Work Include: • Mobilization & Demobilization • Remove Water System as shown • Install new 16" butterfly valves • Extend new 30" split casing to be seem welded after installation • Installation of new 16" pipe extending out of new slope cut • Test and flush system per Port Orchard Water • Backfill with bedding per Port Orchard Water details Assumptions • Final design, dated March 6, 2026; and meeting minutes prior to March 17, 2026 • All lane closures of SR16 per C9920 allowable hours • Allowable outage up to 10 -calendar days • As -Built survey • Working hours include both day and night; along with weekends • Illumination required to complete work at night • Assumed existing line is in good working condition with no leaks • Potholing and verification of utility • Utility within proximity to as-builts • Testing of new line prior to testing of old line • Temporary work including shoring to support excavation • Quality Control Testing Exclusions • Quality Assurance to be provided by City • Hazardous or contaminated material testing • Abatement or handling of any contaminated or hazardous material • Utility permits or franchise agreements • Water for testing to be provided by City • No permanent pavement rehabilitation of WSDOT owned road • Damage or leaks of existing line due to testing • Any changes from final design to released for construction drawings/specifications • Any permit fees • Logging, clear & Grub, and site restoration as part of WSDOT Contract C9920 • Bond