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086-21 - Fehr & Peers - ContractLocal Agency A & E Professional Senrices Lump Sum Consultant Agreement Agreement Number: LA 10096 lndex of Exhibits ExhibitA Exhibit B Exhibit C Exhibit D Exhibit E Exhibit F Exhibit G Exhibit H Exhibit I Exhibit J Scope of Work DBE Participation Preparation and Delivery of Electronic Engineering and Other Data Prime Consultant Cost Computations Sub-consultant Cost Computations Title VI Assurances Certifi cation Documents Liability Insurance Increase Alleged Consultant Design Error Procedures Consultant Claim Procedures Firm/Organization Legal Name (do not use dba's): Fehr & Peers Address lI27 Broadway, Suite 102, Tacoma, WA 98402 FederalAid Number UBI Number 602-67t-978 FederalTlN 68-006s540 Execution Date 9lts/21 Completion Date t0130/21 1099 Form Required Ives nruo Federal Participation fl ves n r.ro Project Title City of Port Orchard Citywide Street Lighting Study Description of Work The City's street lighting system consists mostly of cobra head fixtures mounted at utility pole locations, which does not always provide adequate lighting at intersections. The study will identiff locations with lighting deficiencies and prioritize improvements with an emphasis on pedestrian safety at crossing locations or locations with a history of either serious injury collisions or a high frequency of collisions. The study will provide cost estimates for design and construction at the highest priority locations. We value our working relationship with the City and understand the need to complete the work on this project within the grant funding deadline. ! v"s ! ves ! ve. n v"t E E E E No DBE Participation No MBE Participation No WBE Participation No SBE Participation Maximum Amount Payable: $39,983. 1 7 AgreementNumber: LA 10096 Page 1 of 13Local Agency A & E Professional Services Lump Sum ConsultantAgreement Revrbed 0AU/2021 THIS AGREEMENT, made and entered into as shown in the "Execution Date" box on page one (l) of this AGREEMENI between the City of Port Orchard , hereinafter called the "AGENCY," and the "Firm I Organization Name" referenced on page one (l) of this AGREEMENI hereinafter called the "CONSULTANT." WHEREAS, the AGENCY desires to accomplish the work referenced in "Description of Work" on page one (l) of this AGREEMENT and hereafter called the "SERVICES;" and does not have sufficient staffto meet the required commitment and therefore deems it advisable and desirable to engage the assistance of a CONSULIANT to provide the necessary SERVICES; and WHEREAS, the CONSULIANT represents that they comply with the Washington State Statutes relating to professional registration, if applicable, and has signified a willingness to furnish consulting services to the AGENCY. NOW, THEREFORE, in consideration of the terms, conditions, covenants, and performance contained herein, or attached and incorporated and made a part hereof, the parties hereto agree as follows: l. General Description of Work The work under this AGREEMENT shall consist of the above-described SERVICES as herein defined, and necessary to accomplish the completed work for this project. The CONSULIANT shall furnish all services, labor, and related equipment and, if applicable, sub-consultants and subcontractors necessary to conduct and complete the SERVICES as designated elsewhere in this AGREEMENT. ll. Scope of Work The Scope of Work and projected level of effort required for these SERVICES is described in Exhibit "A" attached hereto and by this reference made a part of this AGREEMENT. The Scope of Work was developed utilizing performance based contracting methodologies. Ill. GeneralRequirements All aspects of coordination of the work of this AGREEMENT with outside agencies, groups, or individuals shall receive advance approval by the AGENCY. Necessary contacts and meetings with agencies, groups, and/or individuals shall be coordinated through the AGENCY. The CONSULIANT shall attend coordination, progress, and presentation meetings with the AGENCY andlor such State, Federal, Community, City, or County officials, groups or individuals as may be requested by the AGENCY. The AGENCY will provide the CONSULIANT sufficient notice prior to meetings requiring CONSULIANT participation. The minimum required hours or days' notice shall be agreed to between the AGENCY and the CONSULIANT and shown in Exhibit "A." The CONSUUIANT shall prepare a monthly progress report, in a form approved by the AGENCX which will outline in written and graphical form the various phases and the order of performance of the SERVICES in sufficient detail so that the progress of the SERVICES can easily be evaluated. The CONSULIANT, any sub-consultants, and the AGENCY shall comply with all Federal, State, and local laws, rules, codes, regulations, and all AGENCY policies and directives, applicable to the work to be performed under this AGREEMENT. This AGREEMENT shall be interpreted and construed in accordance with the laws of the State of Washington. Local Agency A & E Professional Seruices Lump Sum ConsultantAgreement Revised 02/01/2021 AgreementNumber: LA 10096 Page 2 of 13 Participation for Disadvantaged Business Enterprises (DBE) or Small Business Enterprises (SBE), if required, per 49 CFR Part 26, shall be shown on the heading of this AGREEMENT. If DBE firms are utilized at the commencement of this AGREEMENT, the amounts authorized to each firm and their certification number will be shown on Exhibit o'8" attached hereto and by this reference made part of this AGREEMENT. If the Prime CONSUIjIANT is a DBE certified firm they must comply with the Commercial Useful Function (CUF) regulation outlined in the AGENCY's "DBE Program Participation Plan" and perform a minimum of 30/o of the total amount of this AGREEMENT. It is recommended, but not required, that non-DBE Prime CONSULIANTS perform a minimum of 30%o of the total amount of thisAGREEMENT. In the absents of a mandatory DBE goal, a voluntary SBE goal amount of ten percent of the Consultant Agreement is established. The Consultant shall develop a SBE Participation Plan prior to commencing work. Although the goal is voluntary, the outreach efforts to provide SBE maximum practicable opportunities are not. The CONSULTANT, on a monthly basis, shall enter the amounts paid to all firms involved with this AGREEMENT into the wsdot.diversitycompliance.com program. Payment information shall identiff any DBE Participation. All Reports, PS&E materials, and other data furnished to the CONSULIANT by the AGENCY shall be returned. All electronic files, prepared by the CONSULTANI must meet the requirements as outlined in Exhibit "C - Preparation and Delivery of Electronic Engineering and other Data." All designs, drawings, specifications, documents, and other work products, including all electronic files, prepared by the CONSULTANT prior to completion or termination of this AGREEMENT are instruments of service for these SERVICES, and are the property of the AGENCY. Reuse by the AGENCY or by others, acting through or on behalf of the AGENCY of any such instruments of service, not occurring as a part of this SERVICE, shall be without liability or legal exposure to the CONSULIANT. Any and all notices or requests required under this AGREEMENT shall be made in writing and sent to the other party by (i) certified mail, return receipt requested, or (ii) by email or facsimile, to the address set forth below: If to AGENCY: Name: K. Chris Hammer Agency: City of Port Orchard Address: 216 Prospect Street City: Port Orchard State: WA Zip: qgZAA Email: kchammer@cityofoortorchard.us Phone: 360-876-4991 Facsimile: 360-876-4980 Ifto CONSULTANT: Name: Chris Grgich Agency: Fehr & Peers Address: I127 Broadway, Suite 102 City: Tacoma State: WA Zip: 98402 Email: c.grgich@fehrandpeers.com Phone: 206-453^1612 Facsimile: 206-57 6-4225 lV. Time for Beginning and Gompletion The CONSULTANT shall not begin any work under the terms of this AGREEMENT until authorized in writing by the AGENCY. All work under this AGREEMENT shall be completed by the date shown in the heading of this AGREEMENT titled "Completion Date." The established completion time shall not be extended because of any delays attributable to the CONSULTANT, but may be extended by the AGENCY in the event of a delay attributable to the AGENCY, or because of unavoidable delays caused by an act of GOD, governmental actions, or other conditions beyond the control of the CONSULTANT. A prior supplemental AGREEMENT issued by the AGENCY is required to extend the established completion time. Local Agency A & E Professional Services Lump Sum Consultant Ag reeme nt Rev ised 02/01 /2021 AgreementNumber: LA 10096 Page 3 of 14 V. Payment Provisions The CONSULIANT shall be paid by the AGENCY for completed SERVICES rendered under this AGREEMENT as provided hereinafter. Such payment shallbe full compensation for SERVICES performed or SERVICES rendered and for all labor, materials, supplies, equipment, and incidentals necessary to complete SERVICES. The CONSULTANT shall conform to all applicable portions of 48 CFR Part 3l (www.ecfr.gov). The estimate in support of the lump sum amount is attached hereto as Exhibits "D" and "E" and by this reference made part of this AGREEMENT. A. Lump Sum Agreement: Payment for all consulting SERVICES shall be on the basis of a lump sum amount as shown on page one (1) of thisAGREEMENT. B. Maximum Amount Payable: The Maximum Total Amount Payable by the AGENCY to the CONSULIANT under this AGREEMENT shall not exceed the amount shown in the heading of this AGREEMENT on page one (1.) The Maximum Amount Payable does not include payment for extra work as stipulated in section XIII, "Extra Work." No minimum amount payable is guaranteed under this AGREEMENT. C. Monthly Progress Payments: The CONSULTANT may submit billings to the AGENCY for reimbursement of costs on a monthly basis. To provide a means of veriffing the billed salary costs for the CONSULTANT's employees, the AGENCY may conduct employee interviews. These interviews may consist of recording the names, titles, salary rates, and present duties of those employees performing work on the SERVICES at the time of the interview. D. Final Payment: Final Payment of any balance due the CONSULIANT of the gross amount earned will be made promptly upon its verification by the AGENCY after the completion of the SERVICES under this AGREEMENI contingent, if applicable, upon receipt of all PS&E, plans, maps, notes, reports, electronic data, and other related documents which are required to be furnished under this AGREEMENT. Acceptance of such Final Payment by the CONSULIANT shall constitute a release of all claims for payment, which the CONSUUIANT may have against the AGENCY unless such claims are specifically reserved in writing and transmitted to the AGENCY by the CONSULIANT prior to its acceptance. Said Final Payment shall not, however, be a bar to any claims that the AGENCY may have against the CONSULIANT or to any remedies the AGENCY may pursue with respect to such claims. The payment of any billing willnot constitute agreement as to the appropriateness of any item and at the time of final audit all required adjustments will be made and reflected in a final payment. In the event that such final audit reveals an overpayment to the CONSULIANT, the CONSULIANT will refund such overpayment to the AGENCY within thirty (30) calendar days of notice of the overpayment. Such refund shall not constitute a waiver by the CONSULTANT for any claims relating to the validity of a finding by the AGENCY of overpayment. Per WSDOT's "Audit Guide for Consultants," Chapter 23 "Resolution Procedures," the CONSULIANT has twenty (20) working days after receipt of the final Post Audit to begin the appeal process to the AGENCY for audit findings. E. Inspection of Cost Records: The CONSUUIANT and their sub-consultants shall keep available for inspection by representatives of the AGENCY and the United States, for a period of six (6) years after receipt of final payment, the cost records and accounts pertaining to this AGREEMENT and all items related to or bearing upon these records with the following exception: if any litigation, claim or audit arising out of, in connection with, or related to this AGREEMENT is initiated before the expiration of the six (6) year period, the cost records and accounts shall be retained until such litigation, claim, or audit involving the records is completed. A post audit may be performed on this AGREEMENT. The audit, if any, will be performed by the State Auditor, WSDOT's Internal Audit Office and lor at the request of the AGENCY's Project Manager. Local Agency A & E Professional Seruices Lump Sum ConsultantAgreement Revised 02/01/2021 AgreementNumber: LA 10096 Page 4 of 13 Vl. Sub-Contracting The AGENCY permits subcontracts for those items of SERVICES as shown in Exhibit "A" attached hereto and by this reference made part of this AGREEMENT. The CONSULIANT shall not subcontract for the performance of any SERVICE under this AGREEMENT without prior written permission of the AGENCY. No permission for subcontracting shall create, between the AGENCY and sub-consultant, any contract or any other relationship. Compensation for this sub-consultant SERVICES shall be based on the cost factors shown on Exhibit "E" attached hereto and by this reference made part of this AGREEMENT. The SERVICES of the sub-consultant shall not exceed its maximum amount payable identified in each sub- consultant cost estimate unless a prior written approval has been issued by the AGENCY. All reimbursable direct labor, indirect cost rate, direct non-salary costs and fixed fee costs for the sub-consultant shall be negotiated and substantiated in accordance with section V "Payment Provisions" herein and shall be memorialized in a finalwritten acknowledgement between the parties. All subcontracts shall contain all applicable provisions of this AGREEMENT, and the CONSULTANT shall require each sub-consultant or subcontractor, of any tier, to abide by the terms and conditions of this AGREEMENT. With respect to sub-consultant payment, the CONSUUIANT shall comply with all applicable sections of the STATE's Prompt Payment laws as set forth in RCW 39.04.250 and RCW 39.76.011. The CONSULIANT, sub-recipient, or sub-consultant shall not discriminate on the basis of race, colog national origin, or sex in the perforrnance of this AGREEMENT. The CONSULTANT shall carry out applicable requirements of 49 CFR Part 26 in the award and administration of DOT:assisted contracts. Failure by the CONSULIANT to carry out these requirements is a material breach of this AGREEMENI which may result in the termination of this AGREEMENT or such other remedy as the recipient deems appropriate. Vll. Employment and Organizational Conflict of lnterest The CONSULIANT warrants that they have not employed or retained any company or person, other than a bona fide employee working solely for the CONSULIANI to solicit or secure this contract, and that it has not paid or agreed to pay any company or person, other than a bona fide employee working solely for the CONSULIANI any fee, commission, percentage, brokerage fee, gift, or any other consideration, contingent upon or resulting from the award or making of this contract. For breach or violation of this warrant, the AGENCY shall have the right to annul this AGREEMENT without liability oq in its discretion, to deduct from this AGREEMENT price or consideration or otherwise recover the full amount of such fee, commission, percentage, brokerage fee, gift, or contingent fee. Any and all employees of the CONSULTANT or other persons while engaged in the perforrnance of any work or services required of the CONSULTANT under this AGREEMENT, shall be considered employees of the CONSULTANT only and not of the AGENCY and any and all claims that may arise under any Workmen's Compensation Act on behalf of said employees or other persons while so engaged, and any and all claims made by a third party as a consequence of any act or omission on the part of the CONSULIANT's employees or other persons while so engaged on any of the work or services provided to be rendered herein, shall be the sole obligation and responsibility of the CONSUIiIANT. The CONSUL|ANT shall not engage, on a full- or part-time basis, or other basis, during the period of this AGREEMENI any professional or technical personnel who are, or have been, at any time during the period of this AGREEMENI in the employ of the United States Department of Transportation or the AGENCY, except regularly retired employees, without written consent of the public employer of such person if he/she will be working on this AGREEMENT for the CONSULIANT. Local Agency A & E Professional Services Lump Sum ConsulhntAgreement Revised 02/01/2021 AgreementNumber: LA 10096 Page 5 of 13 Vlll. Nondiscrimination During the performance of this AGREEMENT, the CONSULIANT, for itself; its assignees, sub-consultants, subcontractors and successors in interest, agrees to comply with the following laws and regulations: . Title VI of the Civil Rights Act of 1964 . Civil Rights Restoration Act of 1987 (42 U.S.C. Chapter 2l Subchapter V $ 2000d (Public Law 100-259) through 2000d-4a) . American with Disabilities Act of 1990. Federal-aid Highway Act of 1973 (42 U.S.C. Chapter 126 $ 12101 et. seq.) (23 U.S.C. Chapter 3 $ 324) . 23 CFR part200 . Rehabilitation Act of 1973 . 49 CFR part2l (29 U.S.C. Chapter 16 Subchapter V $ 794) . 49 CFR part26. Age Discrimination Act of 1975 . RCW 49.60.1g0(42 U.S.C. Chapter 76 $ 6101 et. seq.) In relation to Title VI of the Civil Rights Act of 1964,the CONSULTANT is bound by the provisions of Exhibit "F" attached hereto and by this reference made part of this AGREEMENI and shall include the attached Exhibit "F" in every sub-contract, including procurement of materials and leases of equipment, unless exempt by the Regulations or directives issued pursuant thereto. lX. Termination of Agreement The right is reserved by the AGENCY to terminate this AGREEMENT at any time with or without cause upon ten (10) days written notice to the CONSULTANT. In the event this AGREEMENT is terminated by the AGENCY, other than for default on the part of the CONSULTANT, a final payment shall be made to the CONSULIANT for actual hours charged and any appropriate fixed fee percentage at the time of termination of this AGREEMENI plus any direct non-salary costs incurred up to the time of termination of this AGREEMENT. No payment shall be made for any SERVICES completed after ten (10) days following receipt by the CONSULIANT of the notice to terminate. If the accumulated payment made to the CONSULIANT prior to Notice of Termination exceeds the total amount that would be due when computed as set forth in paragraph two (2) of this section, then no final payment shall be due and the CONSULIANT shall immediately reimburse the AGENCY for any excess paid. If the services of the CONSULIANT are terminated by the AGENCY for default on the part of the CONSULIANT, the above formula for payment shall not apply. In the event of a termination for default, the amount to be paid to the CONSULIANT shall be determined by the AGENCY with consideration given to the actual costs incurred by the CONSULIANT in performing SERVICES to the date of termination, the amount of SERVICES originally required which was satisfactorily completed to date of termination, whether that SERVICE is in a form or a type which is usable to the AGENCY at the time of termination, the cost to the AGENCY of employing another firm to complete the SERVICES required and the time which may be required to do so, and other factors which affect the value to the AGENCY of the SERVICES performed at the time of termination. Under no circumstances shall payment made under this subsection exceed the amount, which would have been made using the formula set forth in paragraph two (2) of this section. If it is determined for any reason that the CONSULIANT was not in default or that the CONSULTANT's failure to perform is without the CONSULTANT's or its employee's fault or negligence, the termination shall be deemed to be a termination for the convenience of the AGENCY. In such an event, the CONSULIANT would be reimbursed for actual costs and appropriate fixed fee percentage in accordance with the termination for other than default clauses listed previously. AgreementNumber: LA 10096 Local Agency A & E Professional Seruices Lump Sum ConsultantAgreement Revised 02/01/2021 Page 6 of 13 The CONSULTANT shall, within 15 days, notiff the AGENCY in writing, in the event of the death of any member, partner, or officer of the CONSULIANT or the death or change of any of the CONSULIANT's supervisory and/or other key personnel assigned to the project or disaffiliation of any principally involved CONSULIANT employee. The CONSULTANT shall also notiff the AGENCY in writing, in the event of the sale or transfer of 50% or more of the beneficial ownership of the CONSULTANT within l5 days of such sale or transfer occurring. The CONSULTANT shall continue to be obligated to complete the SERVICES under the terms of this AGREEMENT unless the AGENCY chooses to terminate this AGREEMENT for convenience or chooses to renegotiate any term(s) of this AGREEMENT. If termination for convenience occurs, final payment will be made to the CONSULTANT as set forth in the second and third paragraphs of this section. Payment for any part of the SERVICES by the AGENCY shall not constitute a waiver by the AGENCY of any remedies of any type it may have against the CONSULTANT for any breach of this AGREEMENT by the CONSULTANI or for failure of the CONSULIANT to perform SERVICES required of it by the AGENCY. Forbearance of any rights under the AGREEMENT will not constitute waiver of entitlement to exercise those rights with respect to any future act or omission by the CONSUUIANT. X. Changes of Work The CONSUUIANT shall make such changes and revisions in the completed work of this AGREEMENT as necessary to correct errors appearing therein, without additional compensation thereof. Should the AGENCY find it desirable for its own purposes to have previously satisfactorily completed SERVICES or parts thereof changed or revised, the CONSULIANT shall make such revisions as directed by the AGENCY. This work shall be considered as Extra Work and will be paid for as herein provided under section XIII "Extra Work." Xl. Disputes Any disputed issue not resolved pursuant to the terms of this AGREEMENT shall be submitted in writing within l0 days to the Director of Public Works or AGENCY Engineer, whose decision in the matter shall be final and binding on the parties of this AGREEMENT; provided however, that if an action is brought challenging the Director of Public Works or AGENCY Engineer's decision, that decision shall be subject to judicial review. If the parties to this AGREEMENT mutually agree, disputes concerning alleged design effors will be conducted under the procedures found in Exhibit ooJ". In the event that either party deem it necessary to institute legal action or proceeding to enforce any right or obligation under this AGREEMENT, this action shall be initiated in the Superior Court of the State of Washington, situated in the county in which the AGENCY is located. The parties hereto agree that all questions shall be resolved by application of Washington law and that the parties have the right of appeal from such decisions of the Superior Court in accordance with the laws of the State of Washington. The CONSUUIANT hereby consents to the personal jurisdiction of the Superior Court of the State of Washington, situated in the county in which the AGENCY is located. Xll. Legal Relations The CONSULIANT, any sub-consultants, and the AGENCY shall comply with all Federal, State, and local laws, rules, codes, regulations and all AGENCY policies and directives, applicable to the work to be performed under this AGREEMENT. This AGREEMENT shall be interpreted and construed in accordance with the laws of the State of Washington. The CONSULIANT shall defend, indemniff, and hold The State of Washington (STATE) and the AGENCY and their officers and employees harmless from all claims, demands, or suits at law or equity arising in whole or in part from the negligence of, or the breach of any obligation under this AGREEMENT by, the CONSUUIANT or the CONSULTANT's agents, employees, sub consultants, subcontractors or vendors, of any tier, or any other persons for whom the CONSULIANT may be legally liable; provided that nothing herein shall require a CONSULIANT AgreementNumber: LA 10096 Local Agency A & E Professional Seruices Lump Sum ConsultantAgreement Revised 02/01/2021 Page 7 of 13 to defend or indemniff the STATE and the AGENCY and their officers and employees against and hold harmless the STATE and the AGENCY and their officers and employees from claims, demands or suits based solely upon the negligence of or breach of any obligation under this AGREEMENT by the STATE and the AGENCY their agents, officers, employees, sub-consultants, subcontractors or vendors, of any tier, or any other persons for whom the STATE andlor the AGENCY may be legally liable; and provided further that if the claims or suits are caused by or result from the concurrent negligence of (a) the CONSULIANT or the CONSULTANT's agents, employees, sub-consultants, subcontractors or vendors, of any tier, or any other persons for whom the CONSULIANT is legally liable, and (b) the STATE and/or AGENCY, their agents, officers, employees, sub-consultants, subcontractors and or vendors, of any tier, or any other persons for whom the STATE and or AGENCY may be legally liable, the defense and indemnity obligation shall be valid and enforceable only to the extent of the CONSULIANT's negligence or the negligence of the CONSULTANT's agents, employees, sub-consultants, subcontractors or vendors, of any tier, or any other persons for whom the CONSULIANT may be legally liable. This provision shall be included in any AGREEMENT between CONSUUIANT and any sub-consultant, subcontractor and vendor, of any tier. The CONSUUIANT shall also defend, indemniff, and hold the STATE and the AGENCY and their officers and employees harmless from all claims, demands, or suits at law or equity arising in whole or in part from the alleged patent or copyright infringement or other allegedly improper appropriation or use of trade secrets, patents, proprietary information, know-how, copyright rights or inventions by the CONSULTANT or the CONSULTANT's agents, employees, sub-consultants, subcontractors or vendors, of any tier, or any other persons for whom the CONSULTANT may be legally liable, in performance of the Work under this AGREEMENT or arising out of any use in connection with the AGREEMENT of methods, processes, designs, information or other items furnished or communicated to STATE and/or the AGENCY their agents, officers and employees pursuant to the AGREEMENT; provided that this indemnity shall not apply to any alleged patent or copyright infringement or other allegedly improper appropriation or use of trade secrets, patents, proprietary information, know-how, copyright rights or inventions resulting from STATE and/or AGENCY's, their agents', officers' and employees' failure to comply with specific wriffen instructions regarding use provided to STATE and/or AGENCY their agents, officers and employees by the CONSULIANT, its agents, employees, sub-consultantso subcontractors or vendors, of any tiero or any other persons for whom the CONSULIANT may be legally liable. The CONSULTANT's relation to the AGENCY shall be at alltimes as an independent contractor. Notwithstanding any determination by the Executive Ethics Board or other tribunal, the AGENCY may, in its sole discretion, by written notice to the CONSULIANT terminate this AGREEMENT if it is found after due notice and examination by the AGENCY that there is a violation of the Ethics in Public Service Act, Chapter 42.52 RCW; or any similar statute involving the CONSULIANT in the procurement of, or perfoffnance under, this AGREEMENT. The CONSULTANT specifically assumes potential liability for actions brought by the CONSULTANT's own employees or its agents against the STATE and /or the AGENCY and, solely for the purpose of this indemnification and defense, the CONSULIANT specifically waives any immunity under the state industrial insurance law, Title 5l RCW. This waiver has been mutually negotiated between the Parties, Unless otherwise specified in this AGREEMENT, the AGENCY shall be responsible for administration of construction contracts, if any, on the project. Subject to the processing ofa new sole source, or an acceptable supplemental AGREEMENT, the CONSUUIANT shall provide On-Call assistance to the AGENCY during contract administration. By providing such assistance, the CONSULIANT shall assume no responsibility for: proper construction techniques, job site safety, or any construction contractor's failure to perform its work in accordance with the contract documents. The CONSUUIANT shall obtain and keep in force during the terms of this AGREEMENT, or as otherwise required, the following insurance with companies or through sources approved by the State Insurance Commissioner pursuant to Title 48 RCW. Local Agency A & E Professrbnal Services Lump Sum ConsultantAgreement Revised 02/01/2021 AgreementNumber: LA 10096 Page I of 13 Insurance Coverage A. Worker's compensation and employer's liability insurance as required by the STATE. B. Commercial general liability insurance written under ISO Form CG 00 0l 12 04 or its equivalent with minimum limits of one million dollars ($1,000,000.00) per occurrence and two million dollars ($2,000,000.00) in the aggregate for each policy period. C. Business auto liability insurance written under ISO Form CG 00 0l l0 0l or equivalent providing coverage for any "Auto" (Symbol l) used in an amount not less than a one million dollar ($1,000,000.00) combined single limit for each occurrence. Excepting the Worker's Compensation Insurance and any Professional Liability Insurance, the STATE and AGENCY, their officers, employees, and agents will be named on all policies of CONSULIANT and any sub- consultant and/or subcontractor as an additional insured (the "AIs"), with no restrictions or limitations concerning products and completed operations coverage. This coverage shall be primary coverage and non-contributory and any coverage maintained by the AIs shall be excess over, and shall not contribute with, the additional insured coverage required hereunder. The CONSULTANT's and the sub-consultant's and/or subcontractor's insurer shall waive any and all rights of subrogation against the AIs. The CONSUUIANT shall furnish the AGENCY with verification of insurance and endorsements required by this AGREEMENT. The AGENCY reserves the right to require complete, certified copies of all required insurance policies at any time. All insurance shall be obtained from an insurance company authorized to do business in the State of Washington. The CONSULTANT shall submit a verification of insurance as outlined above within fourteen (14) days of the execution of this AGREEMENT to: Name: K. Chris Hammer Agency: City of Port Orchard Address: City of Port Orchard City: Port Orchard State: WA Zip: 98366 Emai I : kchammer@cityofportorchard.us Phone: 360-876-4991 Facsimile: 360-876-4980 No cancellation of the foregoing policies shall be effective without thirty (30) days prior notice to the AGENCY. The CONSULTANT's professional liability to the AGENCY including that which may arise in reference to section IX "Termination of Agreement" of this AGREEMENT, shall be limited to the accumulative amount of the authorized AGREEMENT amount or one million dollars ($1,000,000.00), whichever is greater, unless the limit of liability is increased by the AGENCY pursuant to Exhibit H. In no case shall the CONSULTANT's professional liability to third parties be limited in any way. The parties enter into this AGREEMENT for the sole benefit of the parties, and to the exclusion of any third party, and no third party beneficiary is intended or created by the execution of this AGREEMENT. The AGENCY will pay no progress payments under section V "Payment Provisions" until the CONSULTANT has fully complied with this section. This remedy is not exclusive; and the AGENCY may take such other action as is available to it under other provisions of this AGREEMENI or otherwise in law. Local Agency A & E Professional Services Lump Sum ConsultantAgreement Revised 02/01/2021 AgreementNumber: LA 10096 Page 9 of 13 Xlll. Extra Work A. The AGENCY may at any time, by written order, make changes within the general scope of this AGREEMENT in the SERVICES to be performed. B. If any such change causes an increase or decrease in the estimated cost of, or the time required for, performance of any part of the SERVICES under this AGREEMENT, whether or not changed by the order, or otherwise affects any other terms and conditions of this AGREEMENT, the AGENCY shall make an equitable adjustment in the: (l) maximum amount payable; (2) delivery or completion schedule, or both; and (3) other affected terms and shall modify this AGREEMENT accordingly. C. The CONSULIANT must submit any "request for equitable adjustment," hereafter referred to as "CLAIM," under this clause within thirty (30) days from the date of receipt of the written order. However, if the AGENCY decides that the facts justiff it, the AGENCY may receive and act upon a CLAIM submitted before final payment of this AGREEMENT. D. Failure to agree to any adjustment shall be a dispute under the section XI "Disputes" clause. However, nothing in this clause shall excuse the CONSULIANT from proceeding with the AGREEMENT as changed. E. Notwithstanding the terms and conditions of paragraphs (A.) and (B.) above, the maximum amount payable for this AGREEMENT, shall not be increased or considered to be increased except by specific written supplement to thisAGREEMENT. XlV. Endorsement of Plans If applicable, the CONSURANT shall place their endorsement on all plans, estimates, or any other engineering data fumished by them. XV. Federal Review The Federal Highway Administration shall have the right to participate in the review or examination of the SERVICES in progress. XVl. Gertification of the Consultant and the Agency Attached hereto as Exhibit "G-l(a and b)" are the Certifications of the CONSULTANT and the AGENCI Exhibit "G-2" Certification Regarding Debarment, Suspension and Other Responsibility Matters - Primary Covered Transactions, Exhibit 6(G-3" Certification Regarding the Restrictions of the Use of Federal Funds for Lobbying and Exhibit "G-4" Certificate of Current Cost or Pricing Data. Exhibit "G-3" is required only in AGREEMENT's over one hundred thousand dollars ($100,000.00) and Exhibit "G-4" is required only in AGREEMENT's over five hundred thousand dollars ($500,000.00.) These Exhibits must be executed by the CONSULIANI and submiffed with the masterAGREEMENT, and returned to the AGENCY at the address listed in section III "General Requirements" prior to its performance of any SERVICES under this AGREEMENT. XVll. CompleteAgreement This document and referenced attachments contain all covenants, stipulations, and provisions agreed upon by the parties. No agent, or representative of either party has authority to make, and the parties shall not be bound by or be liable for, any statement, representation, promise or agreement not set forth herein. No changes, amendments, or modifications of the terms hereof shall be valid unless reduced to writing and signed by the parties as a supplement to this AGREEMENT. Local Agency A & E Professional Services Lump Sum ConsultantAgreement Revised 02/01/2021 AgreementNumber: LA 10096 Page 10 of 13 XVlll. Execution and Acceptance This AGREEMENT may be simultaneously executed in several counterparts, each of which shall be deemed to be an original having identical legal effect. The CONSULIANT does hereby rati$ and adopt all statements, representations, warranties, covenants, and AGREEMENT's contained in the proposal, and the supporting material submitted by the CONSUUIANT, and does hereby accept this AGREEMENT and agrees to all of the terms and conditions thereof. XlX. Protection of Confidential lnformation The CONSUIjIANT acknowledges that some of the material and information that may come into its possession or knowledge in connection with this AGREEMENT or its performance may consist of information that is exempt from disclosure to the public or other unauthorized persons under either chapter 42.56 RCW or other local, state or federal statutes ("State's Confidential Information"). The "State's Confidential Information" includes, but is not limited to, names, addresses, Social Security numbers, e-mail addresses, telephone numbers, financial profiles, credit card information, driver's license numbers, medical data, law enforcement records (or any other information identifiable to an individual), STATE and AGENCY source code or object code, STATE, and AGENCY security data, non-public Specifications, STATE and AGENCY non-publicly available data, proprietary software, State security data, or information which may jeopardize any part of the project that relates to any of these types of information. The CONSULTANT agrees to hold the State's Confidential Information in strictest confidence and not to make use of the State's Confidential Information for any purpose other than the performance of this AGREEMENI to release it only to authorized employees, sub-consultants or subcontractors requiring such information for the purposes of carrying out this AGREEMENT, and not to release, divulge, publish, transfer, sell, disclose, or otherwise make it known to any other party without the AGENCY's express written consent or as provided by law. The CONSUUIANT agrees to release such information or material only to employees, sub-consultants or subcontractors who have signed a nondisclosure AGREEMENT, the terms of which have been previously approved by the AGENCY. The CONSULIANT agrees to implement physical, electronic, and managerial safeguards to prevent unauthorized access to the State's Confidential Information. Immediately upon expiration or termination of this AGREEMENT, the CONSULIANT shall, at the AGENCY's option: (i) certiff to the AGENCY that the CONSULIANT has destroyed all of the State's Confidential Information; or (ii) returned all of the State's Confidential Information to the AGENCY; or (iii) take whatever other steps the AGENCY requires of the CONSULTANT to protect the State's Confidential Information. As required under Executive Order 00-03, the CONSULTANT shall maintain a log documenting the following: the State's Confidential Information received in the perforrnance of this AGREEMENT; the purpose(s) for which the State's Confidential Information was received; who received, maintained and used the State's Confidential Information; and the final disposition of the State's Confidential Information. The CONSULIANT's records shall be subject to inspection, reviewo or audit upon reasonable notice from the AGENCY. The AGENCY reserves the right to monitor, audit, or investigate the use of the State's Confidential Information collected, used, or acquired by the CONSULTANT through this AGREEMENT. The monitoring, auditing, or investigating may include, but is not limited to, salting databases. Violation of this section by the CONSULIANT or its sub-consultants or subcontractors may result in termination of this AGREEMENT and demand for return of all State's Confidential Information, monetary damages, or penalties. It is understood and acknowledged that the CONSULIANT may provide the AGENCY with information which is proprietary and/or confidential during the term of this AGREEMENT. The parties agree to maintain the confidentiality of such information during the term of this AGREEMENT and afterwards. All materials containing such proprietary andlor confidential information shall be clearly identified and marked as "Confidential" and shall be returned to the disclosing party at the conclusion of the SERVICES under this AGREEMENT. AgreementNumber: LA 10096 Local Agency A & E Professional Services Lump Sum Consultant Agreement Revised 02/01/2021 Page 11 of 13 The CONSULTANT shall provide the AGENCY with a list of all information and materials it considers confidential and/or proprietary in nature: (a) at the commencement of the term of this AGREEMENT; or (b) as soon as such confidential or proprietary material is developed. "Proprietary andlor confidential information" is not meant to include any information which, at the time of its disclosure: (i) is already known to the other party; (ii) is rightfully disclosed to one of the parties by a third party that is not acting as an agent or representative for the other parfy; (iii) is independently developed by or for the other party; (iv) is publicly known; or (v) is generally utilized by unaffiliated third parties engaged in the same business or businesses as the CONSULTANT. The parties also acknowledge that the AGENCY is subject to Washington State and federal public disclosure laws. As such, the AGENCY shall maintain the confidentialify of all such information marked proprietary and/ or confidential or otherwise exempt, unless such disclosure is required under applicable state or federal law. If a public disclosure request is made to view materials identified as "Proprietary and/or confidential information" or otherwise exempt information, the AGENCY will notiff the CONSULIANT of the request and of the date that such records will be released to the requester unless the CONSULIANT obtains a court order from a court of competent jurisdiction enjoining that disclosure. If the CONSULIANT fails to obtain the court order enjoining disclosure, the AGENCY will release the requested information on the date specified. The CONSULTANT agrees to notify the sub-consultant of any AGENCY communication regarding disclosure that may include a sub-consultant's proprietary and/or confidential information. The CONSULIANT notification to the sub-consultant will include the date that such records will be released by the AGENCY to the requester and state that unless the sub-consultant obtains a court order from a court of competent jurisdiction enjoining that disclosure the AGENCY will release the requested information. If the CONSULIANT and/or sub-consultant fail to obtain a court order or other judicial relief enjoining the AGENCY by the release date, the CONSUUIANT shall waive and release and shall hold harmless and indemnifr the AGENCY from all claims of actual or alleged damages, liabilities, or costs associated with the AGENCY's said disclosure of sub-consultants' information. XX. Records Maintenance During the progress of the Work and SERVICES provided hereunder and for a period of not less than six (6) years from the date of final payment to the CONSULIANI the CONSULIANT shallkeep, retain and maintain all "documents" pertaining to the SERVICES provided pursuant to this AGREEMENT. Copies of all "documents" pertaining to the SERVICES provided hereunder shall be made available for review at the CONSULTANT's place of business during normal working hours. If any litigation, claim or audit is commenced, the CONSUUIANT shall cooperate with AGENCY and assist in the production of all such documents. ooDocuments" shall be retained until all litigation, claims or audit findings have been resolved even though such litigation, claim or audit continues past the six (6) year retention period. For purposes of this AGREEMENT, "documents" means every writing or record of every type and description, including electronically stored information ("ESI"), that is in the possession, control, or custody of the CONSULIANT, including, without limitation, any and all correspondences, contracts, AGREEMENT's, appraisals, plans, designs, data, surveys, maps, spreadsheets, memoranda, stenographic or handwritten notes, reports, records, telegrams, schedules, diaries, notebooks, logbooks, invoices, accounting records, work sheets, charts, notes, drafts, scribblings, recordings, visual displays, photographs, minutes of meetings, tabulations, computations, summaries, inventories, and writings regarding conferences, conversations or telephone conversations, and any and all other taped, recorded, written, printed or typed matters of any kind or description; every copy of the foregoing whether or not the original is in the possession, custody, or control of the CONSULIANT, and every copy of any of the foregoing, whether or not such copy is a copy identical to an original, or whether or not such copy contains any commentary or notation whatsoever that does not appear on the original. AgreementNumber: LA 10096 Local Agency A & E Professional Seruices Lump Sum ConsultantAgreement Revised 02/01/2021 Page 12 of 13 For purposes of this AGREEMENT, "ESI" means any and all computer data or electronic recorded media of any kind, including "Native Files", that are stored in any medium from which it can be retrieved and examined, either directly or after translation into a reasonably useable form. ESI may include information and/or documentation stored in various software programs such as: Email, Outlook, Word, Excel, Access, Publisher, PowerPoint, Adobe Acrobat, SQL databases, or any other software or electronic communication programs or databases that the CONSUUTANT may use in the performance of its operations. ESI may be located on network seryers, backup tapes, smart phones, thumb drives, CDs, DVDs, floppy disks, work computers, cell phones, laptops or any other electronic device that CONSULIANT uses in the performance of its Work or SERVICES hereunder, including any personal devices used by the CONSULIANT or any sub-consultant at home. "Native files" are a subset of ESI and refer to the electronic format of the application in which such ESI is normally created, viewed, and /or modified. The CONSULIANT shall include this section XX "Records Maintenance" in every subcontract it enters into in relation to this AGREEMENT and bind the sub-consultant to its terms, unless expressly agreed to otherwise in writing by the AGENCY prior to the execution of such subcontract. In witness whereof, the parties hereto have executed this AGREEMENT as of the day and year shown in the "Execution Dateo'box on page one (1) of this AGREEMENT. September 15,2021 Date September 15,2021 Signature Date Any modffication, change, or reformation of this AGREEMENT shall require approval as toform by the Office of the Attorney General. u AgreementNumber: LA 10096 Page 13 of 13Local Agency A & E Professional Seruices Lump Sum ConsultantAgreement Revrbed 02/01/2021 Exhibit A Scope of Work See attachment Federal Aid No. AgreementNumber: LA 10096 Exhibit A - Local Agency A & E Protessional Seruices Lump Sum Consultant Agreement Revised 0401/2021 Page 1 of 1 FrHR.f PEERs September 1,2021 Christian Williams, PE City of Port Orchard cwi I liams@cityofportorcha rd.us Subject:Port Orchard Citywide Street tighting Study Draft Scope & Fee Fehr & Peers is pleased to submit a draft scope and fee for the proposed work on the Port Orchard City Wide Lighting Study. The City's street lighting system consists mostly of cobra head fixtures mounted at utility pole locations, which does not always provide adequate lighting at intersections. The study will identify locations with lighting deficiencies and prioritize improvements with an emphasis on pedestrian safety at crossing locations or locations with a history of either serious injury collisions or a high frequency of collisions. The study will provide cost estimates for design and construction at the highest priority locations. We value our working relationship with the City and understand the need to complete the work on this project within the grant funding deadline. The project will consist of the following tasks and deliverables, Scope ofWork 1.o Data Collection & Field Work City of Port Orchard staff will provide Fehr & Peers with an existing street light inventory in Excel format. Fehr & Peers will import the data into our GIS mapping tool for field verification and updates as needed. Fehr & Peers will provide a field study of the existing illumination on the secondary arterials and collectors identified with the highest number of collisions in the Local Roadway Safety Plans (see Table 1) Field work will include up to three in person site visits and drive throughs by up to two Fehr & Peers staff of all corridors listed, no longer than 8 hours each. Site visits will be during dark hours to measure the existing illumination at each site. Data to be collected during the site visits will include: Approximate location and type of existing luminaires. Operability of existing luminaires (on/off,low light, flickering, etc.) Visual lnspection of lllumination Quality (adequate, below standards, dark) at key locations. At key locations (specifically at intersection and pedestrian crossings) where it is unclear if illumination standards are met, up to five spot photometer readings will be included to determine the footcandles of the existing illumination system. a a a .l '1 ti1i.,; q! Pcri Crcharci 5epierrber 1 i:O? 1 Pa,:ie 2 tf '1 Table 1: Study Corridors Bethet Rood sE ttJ:::#:*southern Fred 1 mire 10 Lund Avenue sE Carl Pickel Dr to Valentin" Ln 0.5 rir", 4 SE Pottery Avenue Tremont St to SR 16 1 mile 10 Sidney Avenue Tremont St to Fireweed St 1 mile 10 Sidney Road SR 16 to SW Hovde Rd .5 miles 3 Tremont street Port orchard Boulevard to 0.25 miles 4Blackjack Creek Bridge 1. lntersections of Study Conidors only counted in the first corridor listed. 2. Number of intersections listed are assumed to be the number of study intersections included. Some corridors also include several driveways which are not included in the scope. z.o lllumination System Mapping Fehr & Peers will import the lighting inventory provided by the City into a GIS database. The inventory will be added to and updated based on the field observations for the study intersections. Street lighting outside of the study areas will be imported but not updated. Additional information to be added to the lllumination System Map will include additional luminaires not included in the existing inventory, and operability of existing luminaires (operable, or inoperable), and illumination quality (adequate, below standard, or dark). Spot photometer readings will be added at intersection and pedestrian crossings where illumination is present, but it is unclear if it meets standards. 3.o Illumination System Upgrade Prioritization Once the existing field conditions are verified for the subject intersections and maps/inventories are updated, Fehr & Peers will prioritize locations for improvement using several metrics: 1) General pedestrian activity levels (high, medium, low). 2) Crash history for pedestrian/bicycle and vehicle only collisions (based on the data supporting the Local Roadway Safety Plan). 3) Likelihood of vulnerable users due to attractive locations such as schools, senior centers or senior housing communities, libraries, transit stops, on street parking, and human service providers. Fehr & Peers will provide a ranked list of intersection locations, ordered from highest to lowest priority for illumination upgrades based on the metrics above. n lnte rsectionsl,2CorridorLimitsLength :' tt,, r,i i'; 1 t, 1' ) (. | \ ?-:.,: i?:.;lfr,til)a.'l- 1. .)'.).) i ?,.. i= '' t: .', 4.o Recommended Illumination System Upgrades & Cost Estimates Fehr & Peers will provide high level recommendations for illumination system upgrades and planning level cost estimates for the top ten intersections as ranked in Task 4. These high-level recommendations will be based on Fehr & Peers' past experience designing illumination for a variety of intersection types and configurations and will include the likely number of poles and luminaires to bring each intersection up to appropriate WSDOT Design Manual lighting levels. They will not involve detailed AGI lighting analysis. Based on the number of poles and luminaires, Fehr & Peers will compile high level cost estimates; further utility location, surveys, and detailed engineering would be needed for more detailed cost estimates, Fehr & Peers will also include exhibits showing approximate pole locations for each of the ten intersections, these will be clearly marked as preliminary and that further illumination analysis and engineering design would be needed. 5.o Study Memorandum Fehr & Peers will document the previous tasks in a brief technical memo including the prioritized list of locations for improvements and estimated costs, with full maps and tables of the lighting inventory included as an appendix. & Schedule Fee Fehr & Peers understands this project is time sensitive due to grant funding schedules that cannot be adjusted. We expected to receive written Notice to Proceed on September 15th with a deadline for the project and all charges of September 30th. Fehr & Peers proposes to complete this project on a Lump Sum basis not to exceed $39,983.17, a detailed fee estimate is attached. a 1. GIS database including lighting inventory, additional observed luminaires, operability of existing luminaires, illumination quality, and photometer readings City of Port Orcharc) September 1, 2A? 1 Page 4 cf 4 Sincerely, FEHR & PEERS Associate n 2. Exhibits showing approximate preliminary pole locations and planning level cost estimates for ten highest priority intersections 3. Study memorandum ACCEPTED BY:\L )e 0,;'ra1il* Chris Grgich, Pf, FfOf Signature: Name: Title: Company: Date:7 -ro-I Exhibit B DBE Participation N/A Agreement Number: LA 10096 Exhibit B - Local Agency A & E Professional Servrces Lump Sum Consultant Agreement Revised 02/01/2021 Page I of 1 Exhibit C Preparation and Delivery of Electronic Engineering and Other Data In this Exhibit the agency, as applicable, is to provide a description of the format and standards the consultant is to use in preparing electronic files for transmission to the agency. The format and standards to be provided may include, but are not limited to, the following: I. Surveying, Roadway Design & Plans Preparation Section A. Survey Data N/A B. Roadway Design Files N/A C. Computer Aided Drafting Files N/A Agreement Number: LA 10096 Exhibit C - Local Agency A & E Professional Seryrbes Lump Sum Consultant Agreement Revised O2/01/2021 Page I of4 D. Speciff the Agency's Right to Review Product with the Consultant E. Specifu the Electronic Deliverables to Be Provided to the Agency 1. GIS database including lighting inventory, additional observed luminaires, operability of existing luminaires, illumination quality, and photometer readings 2. PDF Exhibits showing approximate preliminary pole locations and planning level cost estimates for ten highest priority intersections 3. PDF Study memorandum F. Specify WhatAgency Furnished Services and Information Is to Be Provided Existing Excel based street lighting inventory Agreement Number: LA 10096 Exhibit C - Local Agency A & E Protessional Servrbes Lump Sum Consultant Agreement Revised 02/01/2021 Page 2 ot 4 II. Any Other Electronic Files to Be Provided N/A III. Methods to Electronically Exchange Data Email/OneDrive for larger files Exhibit C - Local Agency A & E Professional Seryrbes Lump Sum Consultant Agreement Revised 0U01/2021 Page 3 of 4 A. Agency Software Suite GIS, Excel B. Electronic Messaging System Email C. File Transfers Format Excel, GIS Shapefiles Exhibit C - Local Agency A & E Professional Seryrces Lump Sum Consultant Agreement Revised 02/01/2021 Page 4 of 4 Exhibit D Pri me Consu ltant Gost Computations Lump Sum, not to exceed $39,983.17. A more detailed breakdown is provided in the attachment. AgreementNumber: LA 10096 Exhibit D - Local Agency A & E Professional Seryl'ces Lump Sum Consultant Agreement Revised 02/01/2021 Page I of 1 Fee Proposal for Port Orchard Citywide Street Lighting StudyDirect ROverhead (189.31%o)Fee16.,000.1$66.4sAdmin$3sBrittanySkinnerGIS/PeterNguyen$3e.42$74.6379PlannerKristaRunchey$33.17I8.83ineer INicholasHarris$32.6e1ChrisGrgich$s4.81$1034610c0KendraBrciland$88.94$168.3ProjectDaniel Dyre$81.e1ons (assumed 5% of labor costs)1 - Data Collection and Field Work2 - lllumination3 - llluminationPrioritization4 - Recommended lllumination& Cost Estimates5-MemorandumCommunications &Travel Costs (250 mi @ $0.56/mi)I Exhibit E Sub-co nsultanf Cosf Computations The CONSULTANT shall not sub-contract for the performance of any work under this AGREEMENT without prior written permission of the AGENCY. Refer to section VI "Sub-Contracting" of this AGREEMENT. No sub-consultants, N/A AgreementNumber: LA 10096 Exhibit E - Local Agency A & E Professional Services Lump Sum Consultant Agreemenf Revised 02/01/2021 Page 1 of 1 Exhibit F - Title Vl Assurances Appendix A & E APPENDIX A During the performance of this contract, the contractor, for itself, its assignees, and successors in interest (hereinafter referred to as the "contractor") agrees as follows: Compliance with Regulations: The contractor (hereinafter includes consultants) will comply with the Acts and the Regulations relative to Non-discrimination in Federally-assisted programs of the U.S. Department of Transportation, (Title of Modat Operating Administrution), as they may be amended from time to time, which are herein incorporated by reference and made a part of this contract. 2. Non-discrimination: The contractor, with regard to the work performed by it during the contract, will not discriminate on the grounds of race, color, or nationalorigin in the selection and retention of subcontractors, including procurements of materials and leases of equipment. The contractor will not participate directly or indirectly in the discrimination prohibited by the Acts and the Regulations, including employment practices when the contract covers any activity, project, or program set forth in Appendix B of 49 CFR Part 2l. [Include Modal Operating Administration specific program requirements.J 3. Solicitations for Subcontracts,Including Procurements of Materials and Equipment: In all solicitations, either by competitive bidding, or negotiation made by the contractor for work to be performed under a subcontract, including procurements of materials, or leases of equipment, each potential subcontractor or supplier will be notified by the contractor of the contractor's obligations under this contract and the Acts and the Regulations relative to Non-discrimination on the grounds of race, color, or national origin. [Include Mo dul Op erating Ad ministration speciftc progfttm req uirements.J 4. Information and Reports: The contractor will provide all information and reports required by the Acts, the Regulations, and directives issued pursuant thereto and will permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the Recipient or the (Title of Modal Operating Administration) tobe pertinent to ascertain compliance with such Acts, Regulations, and instructions. Where any information required of a contractor is in the exclusive possession of another who fails or refuses to furnish the information, the contractor will so certiff to the Recipient or the (Title of Modal Operating Administration), as appropriate, and will set forth what efforts it has made to obtain the information. 5. Sanctions for Noncompliance: In the event of a contractor's noncompliance with the Non- discrimination provisions of this contract, the Recipient will impose such contract sanctions as it or the (Title of Modal Operating Administration) may determine to be appropriate, including, but not limited to: a. withholding payments to the contractor under the contract until the contractor complies; and/or b. cancelling, terminating, or suspending a contract, in whole or in part. 6. Incorporation of Provisions: The contractor will include the provisions of paragraphs one through six in every subcontract, including procurements of materials and leases of equipment, unless exempt by the Acts, the Regulations and directives issued pursuant thereto. The contractor will take action with respect to any subcontract or procurement as the Recipient or the (Title of Modal Operating Administrution) may direct as a means of enforcing such provisions including sanctions for noncompliance. Provided, that if the contractor becomes involved in, or is threatened with litigation by a subcontractor, or supplier because of such direction, the contractor may request the Recipient to enter into any litigation to protect the interests of the Recipient. In addition, the contractor may request the United States to enter into the litigation to protect the interests of the United States. Local Agency A & E Professional Services Lump S um C onsultant A g rceme nt Revised 02/01/2021 Agreement Number Exhibit F - Title Vl Assurances Appendix A & E a a APPENDIX E During the performance of this contract, the contractor, for itself, its assignees, and successors in interest (hereinafter referred to as the "contractor") agrees to comply with the following non-discrimination statutes and authorities; including but not limited to: Pertinent Non-Discrimination Authorities: Title VI of the Civil Rights Acr of 1964 (42 U.S.C. $ 2000d et seq., 78 stat. 252), (prohibits discrimination on the basis of race, color, national origin); and 49 CFR Part 21. The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42 U.S.C. $ 4601), (prohibits unfair treatment of persons displaced or whose property has been acquired because of Federal or Federal-aid programs and projects); Federal-Aid Highway Act of 1973, (23 U.S.C. $ 324 et seq.), (prohibits discrimination on the basis of sex); Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. $ 794 et seq.), as amended, (prohibits discrimination on the basis of disability); and 49 CFR Part27; The Age Discrimination Act of 1975, as amended, (42 U.S.C. $ 6101 et seq.), (prohibits discrimination on the basis ofage); Airport and Airway Improvement Act of 1982, (49 USC $ 471, Section 47123), as amended, (prohibits discrimination based on race, creed, color, national origin, or sex); The Civil Rights Restoration Act of 1987, (PL 100-209), (Broadened the scope, coverage and applicability of Title VI of the Civil Rights Act of 1964,The Age Discrimination Act of 1975 and Section 504 of the Rehabilitation Act of 1973, by expanding the definition of the terms "programs or activities" to include all of the programs or activities of the Federal-aid recipients, sub-recipients and contractors, whether such programs or activities are Federally funded or not); Titles II and III of the Americans with Disabilities Act, which prohibit discrimination on the basis of disability in the operation of public entities, public and private transportation systems, places of public accommodation, and certain testing entities (42 U.S.C. $$ l2l3l-12189) as implemented by Department of Transportation regulations at 49 C.F.R. parts 37 and 38; The Federal Aviation Administration's Non-discrimination statute (49 U.S.C. 5 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, nationalorigin 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. l68l et seq). a a a a a a a a a a Local Agency A & E Professional Services Lump Sum Consultant Agreement Revised 02/01/2021 Agreement Number Exhibit G NTTTTTINTNNN Exhibit G-l(a) Exhibit G-l(b) Exhibit G-2 Exhibit c-3 Exhibit G-4 Certifi cation of Consultant Certification of Certification Regarding Debarment, Suspension and Other Responsibility Matters - Primary Covered Transactions Certification Regarding the Restrictions of the Use of Federal Funds for Lobbying Certificate of Current Cost or Pricing Data Agreement Number Exhibit G - Locat Agency A & E Professional Seryrbes Lump Sum Consultant Agreement Revised 02/01/2021 Page 1 of I Exhibit G-1(a) Gertification of Consultant I hereby certiff that I am the and duly authorized representative of the firm of Fehr & Peers whose address is ll27 Broadway, Suite 102, Tacoma, WA 98402 and that neither the above firm nor I have: a) Employed or retained for a commission, percentage, brokerage, contingent fee, or other consideration, any firm or person (other than a bona fide employee working solely for me or the above CONSULIANT) to solicit or secure thisAGREEMENT; b) Agreed, as an express or implied condition for obtaining this contract, to employ or retain the services of any firm or person in connection with carrying out this AGREEMENT; or c) Paid, or agreed to pay, to any firm, organization or person (other than a bona fide employee working solely for me or the above CONSULIANT) any fee, contribution, donation, or consideration of any kind for, or in connection with, procuring or carrying out this AGREEMENT; except as hereby expressly stated (if any); I acknowledge that this certificate is to be furnished to the City of Port Orchard/WSDOT and the Federal Highway Administration, U.S. Department of Transportation in connection with this AGREEMENT involving participation of Federal-aid highway funds, and is subject to applicable State and Federal laws, both criminal and civil. Fehr & Peers Consultant (Firm Name) September 15,2021 S Consultant)Date Agreement Number: Exhibit G-l(a) - Local Agency A & E Professional Seryices Lump Sum Consuftant Agreement Revised 02/01/2021 Page 1 of I Exhibit G-1(b) Gertification of Nla I hereby certiff that I am the: E n oth.. ofthe , and or its representative has not been required, directly or indirectly as an express or implied condition in connection with obtaining or carrying out this AGREEMENT to: a) Employ or retain, or agree to employ to retain, any firm or person; or b) Pay, or agree to pay, to any firm, person, or organization, any fee, contribution, donation, or consideration ofany kind; except as hereby expressly stated (ifany): I acknowledge that this certificate is to be furnished to the and the Federal Highway Administration, U.S. Department of Transportation, in connection with this AGREEMENT involving participation of Federal-aid highway funds, and is subject to applicable State and Federal laws, both criminal and civil. Signature Date Agreement Number: Exhibit G-|(b) - Local Agency A & E Professional Services Lump Consultant Agreement Revised 02/01/2021 Page I of 1 Exhibit G-2 Certification Regarding Debarment, Suspension and Other Responsibility Matters - Primary Covered Transactions I. The prospective primary participant certifies to the best of its knowledge and belief, that it and its principals: A. Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions by any Federal department or agency; B. Have not within a three (3) year period preceding this proposal been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, State, or local) transaction or contract under a public transaction; violation of Federal or State anti-trust statues or commission of embezzlement, theft, forgery bribery falsification or destruction of records, making false statements, or receiving stolen property; C. Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (Federal, State, or local) with commission of any of the offenses enumerated in paragraph (lXb) of this certification; and D. Have not within a three (3) year period preceding this application / proposal had one or more public transactions (Federal, State and local) terminated for cause or default. II. Where the prospective primary participant is unable to certiff to any of the statements in this certification, such prospective participant shall attach an explanation to this proposal. Fehr & Peers Consultant (Firm Name) September 15,202I Signature (Authorized Consultant)Date Agreement Number: Exhibit G-2 - Locat Agency A & E Professional Seruices Lump Sum Consultant Agreement Revised 02/01/2021 Page 1 of 1 Exhibit G-3 Certification Regarding the Restrictions of the Use of Federal Funds for Lobbying The prospective participant certifies, by signing and submitting this bid or proposal, to the best of his or her knowledge and belief, that: 1. No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any Federal agency, a Member of Congress, an officer or employee of Congress, or any employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative AGREEMENI and the extension, continuation, renewal, amendment, or modification of Federal contract, grant,loan or cooperative AGREEMENT. 2. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any Federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant,loan or cooperative AGREEMENT, the undersigned shall complete and submit Standard Form - LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by Section 1352, Title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000.00, and not more than $100,000.00, for each such failure. The prospective participant also agrees by submitting his or her bid or proposal that he or she shall require that the language of this certification be included in all lower tier sub-contracts, which exceed $100,000, and that all such sub-recipients shall certif,, and disclose accordingly. Fehr & Peers Consultant (Firm Name) September 15,2021 Signature (Authorized Consultant)Date Agreement Number: Exhibit G-3 - Local Agency A & E Professional Seryrbes Lump Sum Consultant Agreement Revised 02/01/2021 Page I of I Exhibit G,4 Certificate of Current Cost or Pricing Data This is to certiff that, to the best of my knowledge and belief, the cost or pricing data (as defined in section 2.101 of the FederalAcquisition Regulation (FAR) and required under FAR subsection 15.403-4) submitted, either actually or by specific identification in writing, to the Contracting Officer or to the Contracting Officer's representative in support of Port Orchard Citywide St Lighting Study * are accurate, complete, and current as of September 15,2021 This certification includes the cost or pricing data supporting any advance AGREEMENT's and forward pricing rate AGREEMENT's between the offer or and the Government that are part of the proposal. Firm: Fehr & Peers Associate Signature Title Date of Execution***: September 15,2021 *Identi$ the proposal, quotation, request for pricing adjustment, or other submission involved, giving the appropriate identif,ing number (e.g. project title.) **lnsert the day, month, and year, when price negotiations were concluded and price AGREEMENT was reached. * **Insert the day, month, and year, of signing, which should be as close as practicable to the date when the price negotiations were concluded and the contract price was agreed to. AgreementNumber: LA 10096 Exhibit G-l - Local Agency A & E Professional Seryrces Lump Sum Consultant Agreement Revised 02/01/2021 Page I of I Exhibit H Liabi I ity I nsu rance I ncrease To Be Used Only If Insurance Requirements Are Increased The professional liability limit of the CONSULIANT to the AGENCY identified in Section XII, Legal Relations and Insurance of this Agreement is amended to $ N/A The CONSULIANT shall provide Professional Liability insurance with minimum per occuffence limits in the amount of $ Such insurance coverage shall be evidenced by one of the following methods: . Certificate of Insurance. . Self-insurance through an irrevocable Letter of Credit from a qualified financial institution. Self-insurance through documentation of a separate fund established exclusively for the payment of professional liability claims, including claim amounts already reserved against the fund, safeguards established for payment from the fund, a copy of the latest annual financial statements, and disclosure of the investment portfolio for those funds. Should the minimum Professional Liability insurance limit required by the AGENCY as specified above exceed $ I million per occurrence or the value of the contract, whichever is greater, then justification shall be submitted to the Federal Highway Administration (FHWA) for approval to increase the minimum insurance limit. If FHWA approval is obtained, the AGENCY may, at its own cost, reimburse the CONSUUIANT for the additional professional liability insurance required. Notes: Cost of added insurance requirements: $. Include all costs, fee increase, premiums. . This cost shall not be billed against an FHWA funded project. . For final contracts, include this exhibit. AgreementNumber: LA 10096 Exhibit H - Local Agency A & E Professional Seruices Lump Sum Consultant Agreement Revised 02/01/2021 Page 1 ot 1 Exhibit I Alleged Consultant Design Error Procedures The purpose of this exhibit is to establish a procedure to determine if a consultant's alleged design error is of a nature that exceeds the accepted standard of care. In addition, it will establish a uniform method for the resolution and/or cost recovery procedures in those instances where the agency believes it has suffered some material damage due to the alleged error by the consultant. Step 1 Potential Consultant Design Error(s) is Identified by Agency's Project Manager At the first indication of potential consultant design error(s), the first step in the process is for the Agency's project manager to noti$ the Director of Public Works or Agency Engineer regarding the potential design error(s). For federally funded projects, the Region Local Programs Engineer should be informed and involved in these procedures. (Note: The Director of Public Works or Agency Engineer may appoint an agency staffperson other than the project manager, who has not been as directly involved in the project, to be responsible for the remaining steps in these procedures.) Step 2 Project Manager Documents the Alleged Consultant Design Error(s) After discussion of the alleged design error(s) and the magnitude of the alleged error(s), and with the Director of Public Works or Agency Engineer's concuffence, the project manager obtains more detailed documentation than is normally required on the project. Examples include: all decisions and descriptions of work; photographs, records of labor, materials and equipment. Step 3 Contact the Consultant Regarding the Alleged Design Error(s) If it is determined that there is a need to proceed furthel the next step in the process is for the project manager to contact the consultant regarding the alleged design error(s) and the magnitude of the alleged error(s). The project manager and other appropriate agency staffshould represent the agency and the consultant should be represented by their project manager and any personnel (including sub-consultants) deemed appropriate for the alleged design error(s) issue. Step 4 Attempt to Resolve Alleged Design Error with Consultant After the meeting(s) with the consultant have been completed regarding the consultant's alleged design error(s), there are three possible scenarios: . It is determined via mutual agreement that there is not a consultant design error(s). If this is the case, then the process will not proceed beyond this point. . It is determined via mutual agreement that a consultant design error(s) occurred. If this is the case, then the Director of Public Works or Agency Engineer, or their representatives, negotiate a settlement with the consultant. The settlement would be paid to the agency or the amount would be reduced from the consultant's agreement with the agency for the services on the project in which the design error took place. The agency is to provide LP, through the Region Local Programs Engineer, a summary of the sefflement for review and to make adjustments, if any, as to how the settlement affects federal reimbursements. No further action is required. . There is not a mutual agreement regarding the alleged consultant design error(s). The consultant may request that the alleged design error(s) issue be forwarded to the Director of Public Works or Agency Engineer for review If the Director of Public Works orAgency Engineer, after review with their legal counsel, is not able to reach mutual agreement with the consultant, proceed to Step 5. AgreementNumber: LA 10096 Exhibit I - Local Agency A & E Professional Services Lump Sum Consultant Agreement Revised 0AM/2021 Page I of 2 Step 5 Forward Documents to Local Programs For federally funded projects all available information, including costs, should be forwarded through the Region Local Programs Engineer to LP for their review and consultation with the FHWA. LP will meet with representatives of the agency and the consultant to review the alleged design error(s), and attempt to find a resolution to the issue. If necessary LP will request assistance from the Attorney General's Office for legal interpretation. LP will also identifu how the alleged enor(s) affects eligibility of project costs for federal reimbursement. . If mutual agreement is reached, the agency and consultant adjust the scope of work and costs to reflect the agreed upon resolution. LR in consultation with FHWA, will identifu the amount of federal participation in the agreed upon resolution of the issue. . If mutual agreement is not reached, the agency and consultant may seek settlement by arbitration or by litigation. AgreementNumber: LA 10096 Exhibit I Local Agency A & E Protessional Services Lump Sum Consultant Agreement Revised 02/01/2021 Page 2 of 2 Exhibit J Consultant Claim Procedures The purpose of this exhibit is to describe a procedure regarding claim(s) on a consultant agreement. The following procedures should only be utilized on consultant claims greater than $1,000. If the consultant's claim(s) are a total of $ 1,000 or less, it would not be cost effective to proceed through the outlined steps. It is suggested that the Director of Public Works or Agency Engineer negotiate a fair and reasonable price for the consultant's claim(s) that total $1,000 or less. This exhibit will outline the procedures to be followed by the consultant and the agency to consider a potential claim by the consultant. Step I Consultant Files a Claim with the Agency Project Manager If the consultant determines that they were requested to perform additional services that were outside of the agreement's scope of work, they may be entitled to a claim. The first step that must be completed is the request for consideration of the claim to the Agency's project manager. The consultant's claim must outline the following: . Summation of hours by classification for each firm that is included in the claim; . Any correspondence that directed the consultant to perform the additional work; . Timeframe of the additional work that was outside of the project scope; . Summary of direct labor dollars, overhead costs, profit and reimbursable costs associated with the additional work; and . Explanation as to why the consultant believes the additional work was outside of the agreement scope of work. Step 2 Review by Agency Personnel Regarding the Consultant's Claim forAdditional Compensation After the consultant has completed step 1, the next step in the process is to forward the request to the Agency's project manager. The project manager will review the consultant's claim and will met with the Director of Public Works or Agency Engineer to determine if the Agency agrees with the claim. If the FHWA is participating in the project's funding, forward a copy of the consultant's claim and the Agency's recommendation for federal participation in the claim to the WSDOT Local Programs through the Region Local Programs Engineer. If the claim is not eligible for federal participation, payment will need to be from agency funds. If the Agency project manager, Director of Public Works orAgency Engineer, WSDOT Local Programs (if applicable), and FHWA (if applicable) agree with the consultant's claim, send a request memo, including backup documentation to the consultant to either supplement the agreement, or create a new agreement for the claim. After the request has been approved, the Agency shall write the supplement andlor new agreement and pay the consultant the amount of the claim. Inform the consultant that the final payment for the agreement is subject to audit. No further action in needed regarding the claim procedures. If the Agency does not agree with the consultant's claim, proceed to step 3 of the procedures. AgreementNumber: LA 10096 Exhihit J - Local Agency A & E Professional Seruices Lump Sum Consultant Agreement Revised 02/01/2021 Page I of 2 Step 3 Preparation of Support Documentation Regarding Consultant's Claim(s) If the Agency does not agree with the consultant's claim, the project manager shall prepare a summary for the Director of Public Works orAgency Engineer that included the following: . Copy of information supplied by the consultant regarding the claim; . Agency's summation of hours by classification for each firm that should be included in the claim; . Any correspondence that directed the consultant to perform the additional work; . Agency's summary of direct labor dollars, overhead costs, profit and reimbursable costs associated with the additional work; . Explanation regarding those areas in which the Agency does/does not agree with the consultant's claim(s); . Explanation to describe what has been instituted to preclude future consultant claim(s); and . Recommendations to resolve the claim. Step 4 Step 5 Director of Public Works orAgency Engineer Reviews Consultant Claim and Agency Documentation The Director of Public Works or Agency Engineer shall review and administratively approve or disapprove the claim, or portions thereof, which may include getting Agency Council or Commission approval (as appropriate to agency dispute resolution procedures). Ifthe project involves federal participation, obtain concuffence from WSDOT Local Programs and FHWA regarding final settlement of the claim. If the claim is not eligible for federal participation, payment will need to be from agency funds. Informing Consultant of Decision Regarding the Claim The Director of Public Works or Agency Engineer shall notif, (in writing) the consultant of their final decision regarding the consultant's claim(s). Include the final dollar amount of the accepted claim(s) and rationale utilized for the decision. Step 6 Preparation of Supplement or New Agreement for the Consultant's Claim(s) The agency shall write the supplement and/or new agreement and pay the consultant the amount of the claim. Inform the consultant that the final payment for the agreement is subject to audit. AgreementNumber: LA 10096 Exhibit J - Local Agency A & E Professional Seruices Lump Sum Consultant Agreemenf Revrbed 0U01/2021 Page 2 of 2