Loading...
065-20 - Terra Associates, Inc. - ContractCITY OF PORT ORCHARD PROFESSIONAL SERVICES AGREEMENT THIS Agreement is made effective as of July 28, 2020, by and between the City of Port Orchard, a municipal corporation, organized under the laws of the State of Washington, whose address is: CITY OF PORT ORCHARD, WASHINGTON (hereinafter the "CITY") 216 Prospect Street Port Orchard, Washington 98366 Contact: Mayor Robert Putaansuu Phone: 360.876.4407 Fax: 360.895.9029 And TERRA ASSOCIATES INC., a Corporation, organized under the laws of the State of Washington, doing business at: Terra Associates, Inc (hereinafter the "CONSULTANT") 12220-113th Avenue NE Ste 130 Kirkland, WA 98034 Contact: TED SCHEPPER Phone:425.821.7777 Email: tschepper@terra-associates.com for professional services in connection with the following Project: McCormick Ridge Dam Safety Upgrades TERMS AND CONDITIONS 1. Services by Consultant. A. The Consultant shall perform the services described in the Scope of Work attached to this Agreement as Exhibit "A." The services performed by the Consultant shall not exceed the Scope of Work without prior written authorization from the City. B. The City may from time to time require changes or modifications in the Scope of Work. Such changes, including any decrease or increase in the amount of compensation, shall be agreed to by the parties and incorporated in written amendments to the Agreement. 2. Schedule of Work. A. The Consultant shall perform the services described in the Scope of Work in accordance with the tasks identified within Exhibit "A" and the terms of this Agreement. If delays beyond the Consultant's reasonable control occur, the parties will negotiate in good faith to determine whether an extension is appropriate. B. The Consultant is authorized to proceed with services upon receipt of a written Notice to Proceed. 3. Terms. This Agreement shall commence on Jules 28, 2020("Commencement Date") and shall terminate December 31 2020 unless extended or terminated in writing as provided herein. The City of Port Orchard and Terra Associates, Inc Professional Service Agreement Contract No. C065-20 U:\StaffReports\2020\20200728\7104 C065-20 - TERRA ASSOCIATES 1NC.docx 1 of 10 Rev 7/18/2019 City reserves the right to offer two (2) one-year extensions prior to contract expiration to retain the selected company's services. 4. Compensation. TIME AND MATERIALS NOT TO EXCEED. Compensation for these services shall not exceed $5,900.00 without written authorization and will be based on the list of billing rates and reimbursable expenses attached hereto as Exhibit "A." 5. Payment. A. The Consultant shall maintain time and expense records and provide them to the City monthly after services have been performed, along with monthly invoices in a format acceptable to the City for work performed to the date of the invoice. B. All invoices shall be paid by City warrant within thirty (30) days of receipt of a proper invoice. If the City objects to all or any portion of any invoice, it shall so notify the Consultant of the same within fifteen (15) days from the date of receipt and shall pay that portion of the invoice not in dispute, and the parties shall immediately make every effort to settle the disputed portion. C. The Consultant shall keep cost records and accounts pertaining to this Agreement available for inspection by City representatives for three (3) years after final payment unless a longer period is required by a third -party agreement. Copies shall be made available on request. D. On the effective date of this Agreement (or shortly thereafter), the Consultant shall comply with all federal and state laws applicable to independent contractors, including, but not limited to, the maintenance of a separate set of books and records that reflect all items of income and expenses of the Consultant's business, pursuant to Revised Code of Washington (RCW) 51.08.195, as required by law, to show that the services performed by the Consultant under this Agreement shall not give rise to an employer - employee relationship between the parties, which is subject to Title 51 RCW, Industrial Insurance. E. If the services rendered do not meet the requirements of the Agreement, the Consultant will correct or modify the work to comply with the Agreement. The City may withhold payment for such work until the work meets the requirements of the Agreement. 6. Discrimination and Compliance with Laws A. The Consultant agrees not to discriminate against any employee or applicant for employment or any other person in the performance of this Agreement because of race, creed, color, national origin, marital status, sex, age, disability, or other circumstance prohibited by federal, state, or local law or ordinance, except for a bona fide occupational qualification. B. Even though the Consultant is an independent contractor with the authority to control and direct the performance and details of the work authorized under this Agreement, the work must meet the approval of the City and shall be subject to the City's general right of inspection to secure the satisfactory completion thereof. The Consultant agrees to comply with all federal, state and municipal laws, rules and regulations that are now effective or become applicable within the term(s) of this Agreement to the City of Port Orchard and Terra Associates, Inc Professional Service Agreement Contract No. C065-20 U:\SlaffPeports\2020\20200728\7104 C065-20 -TERRA ASSOCIATES INC.doex 2of10 Rev 7/18/2019 Consultant's business, equipment and personnel engaged in operations covered by this Agreement or accruing out of the performance of such operations. C. The Consultant shall obtain a City of Port Orchard business license prior to commencing work pursuant to a written Notice to Proceed. D. Violation of this Paragraph 6 shall be a material breach of this Agreement and grounds for cancellation, termination, or suspension of the Agreement by the City, in whole or in part, and may result in ineligibility for further work for the City. 7. Relationship of Parties. The parties intend that an independent contractor -client relationship will be created by this Agreement. As the Consultant is customarily engaged in an independently established trade which encompasses the specific service provided to the City hereunder, no agent, employee, representative or sub -consultant of the Consultant shall be or shall be deemed to be the employee, agent, representative or sub -consultant of the City. In the performance of the work, the Consultant is an independent contractor with the ability to control and direct the performance and details of the work, the City being interested only in the results obtained under this Agreement. None of the benefits provided by the City to its employees, including but not limited to compensation, insurance, and unemployment insurance, are available from the City to the employees, agents, representatives or sub -consultants of the Consultant. The Consultant will be solely and entirely responsible for its acts and for the acts of its agents, employees, representatives and sub -consultants during the performance of this Agreement. The City may, during the term of this Agreement, engage other independent contractors to perform the same or similar work that the Consultant performs hereunder. 8. Suspension and Termination of Agreement A. Termination without cause. This Agreement may be terminated by the City at any time for public convenience, for the Consultant's insolvency or bankruptcy, or the Consultant's assignment for the benefit of creditors. B. Termination with cause. This Agreement may be terminated upon the default of the Consultant and the failure of the Consultant to cure such default within a reasonable time after receiving written notice of the default. C. Rights Upon Termination. 1. With or Without Cause. Upon termination for any reason, all finished or unfinished documents, reports, or other material or work of the Consultant pursuant to this Agreement shall be submitted to the City, and the Consultant shall be entitled to just and equitable compensation for any satisfactory work completed prior to the date of termination, not to exceed the total compensation set forth herein. The Consultant shall not be entitled to any reallocation of cost, profit or overhead. The Consultant shall not in any event be entitled to anticipated profit on work not performed because of such termination. The Consultant shall use its best efforts to minimize the compensation payable under this Agreement in the event of such termination. Upon termination, the City may take over the work and prosecute the same to completion, by contract or otherwise. 2. Default. If the Agreement is terminated for default, the Consultant shall not be entitled to receive any further payments under the Agreement until all work called for has been City of Port Orchard and Terra Associates, Inc Professional Service Agreement Contract No. C065-20 U:\StaffReports\202ON20200728\7104 C065-20 -TERRA ASSOCIATES INC. docx 3of10 Rev 7/18/2019 fully performed. Any extra cost or damage to the City resulting from such default(s) shall be deducted from any money due or coming due to the Consultant. The Consultant shall bear any extra expenses incurred by the City in completing the work, including all increased costs for completing the work, and all damage sustained, or which may be sustained, by the City by reason of such default. D. Suspension. The City may suspend this Agreement, at its sole discretion. Any reimbursement for expenses incurred due to the suspension shall be limited to the Consultant's reasonable expenses, and shall be subject to verification. The Consultant shall resume performance of services under this Agreement without delay when the suspension period ends. E. Notice of Termination or Suspension. If delivered to the Consultant in person, termination shall be effective immediately upon the Consultant's receipt of the City's written notice or such date as stated in the City's notice of termination, whichever is later. Notice of suspension shall be given to the Consultant in writing upon one week's advance notice to the Consultant. Such notice shall indicate the anticipated period of suspension. Notice may also be delivered to the Consultant at the address set forth in Section 15 herein. 9. Standard of Care. The Consultant represents and warrants that it has the requisite training, skill and experience necessary to provide the services under this Agreement and is appropriately accredited and licensed by all applicable agencies and governmental entities. Services provided by the Consultant under this Agreement will be performed in a manner consistent with that degree of care and skill ordinarily exercised by members of the same profession currently practicing in similar circumstances. 10. Ownership of Work Product. A. All data, materials, reports, memoranda, and other documents developed under this Agreement whether finished or not shall become the property of the City, shall be forwarded to the City at its request and may be used by the City as it sees fit. Upon termination of this Agreement pursuant to paragraph 8 above, all finished or unfinished documents, reports, or other material or work of the Consultant pursuant to this Agreement shall be submitted to the City. Any reuse or modification of such documents, reports or other material or work of the Consultant for purposes other than those intended by the Consultant in its scope of services under this Agreement shall be at the City's risk. B. All written information submitted by the City to the Consultant in connection with the services performed by the Consultant under this Agreement will be safeguarded by the Consultant to at least the same extent as the Consultant safeguards like information relating to its own business. If such information is publicly available or is already in the Consultant's possession or known to it, or is rightfully obtained by the Consultant from third parties, the Consultant shall bear no responsibility for its disclosure, inadvertent or otherwise. The Consultant is permitted to disclose any such information only to the extent required by law, subpoena or other court order. 11. Work Performed at the Consultant's Risk. The Consultant shall take all precautions necessary and shall be responsible for the safety of its employees, agents and sub -consultants in the performance of the work hereunder, and shall utilize all protection necessary for that purpose. All work shall be done at the Consultant's own risk, and the Consultant shall be responsible for any loss of or damage to materials, tools, or other articles used or held by the Consultant for use in connection with the work. 12. Indemnification. The Consultant shall defend, indemnify and hold the City, its officers, officials, employees, agents and volunteers harmless from any and all claims, injuries, damages, losses or suits, City of Port Orchard and Terra Associates, Inc Professional Service Agreement Contract No. C065-20 U:\StaffReporis\2020\20200728\7104 C065-20 -TERRA ASSOCIATES 1NC,docx 4of10 Rev 7/18/2019 including all legal costs and attorneys' fees, arising out of or resulting from the acts, errors or omissions of the Consultant in performance of this Agreement, except for injuries or damages caused by the sole negligence of the City. Should a court of competent jurisdiction determine that this Agreement is subject to RCW 4.24.115, then, in the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of the Consultant and the City, its officers, officials, employees, agents and volunteers, the Consultant's liability hereunder shall be only to the extent of the Consultant's negligence. The provisions of this section shall survive the expiration or termination of this Agreement. IT IS FURTHER SPECIFICALLY AND EXPRESSLY UNDERSTOOD THAT THE INDEMNIFICATION PROVIDED HEREIN CONSTITUTES THE CONSULTANT'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. 13. Insurance. The Consultant shall procure and maintain for the duration of this Agreement, insurance against claims for injuries to persons or damage to property which may arise from or in connection with the performance of the work hereunder by the Consultant, its agents, representatives, or employees. A. Minimum Scope of Insurance Consultant shall obtain insurance of the types described below: 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 or a substitute form providing equivalent liability coverage and shall cover liability arising from premises, operations, independent contractors and personal injury and advertising injury. The City shall be named by endorsement as an additional insured under the Consultant's Commercial General Liability insurance policy with respect to the work performed for the City. 3. Workers' Compensation coverage as required by the Industrial Insurance laws of the State of Washington. 4. Professional Liability insurance appropriate to the Consultant's profession. B. Minimum Amounts of Insurance Consultant 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. City of Port Orchard and Terra Associates, Inc Professional Service Agreement Contract No. C065-20 U:\StaffReports\2020\20200728\7104 C065-20 - TERRA ASSOCIATES INC.docx 5of10 Rev 7/18/2019 2. Commercial General Liability insurance shall be written with limits no less than $1,000,000 each occurrence, $2,000,000 general aggregate. 3. Workers' Compensation Employer's Liability each accident $1,000,000, Employer's Liability Disease each employee $1,000,000, and Employer's Liability Disease — Policy Limit $1,000,000. 4. Professional Liability insurance shall be written with limits no less than $1,000,000 per claim and $1,000,000 policy aggregate limit. C. Other Insurance Provisions The insurance policies are to contain, or be endorsed to contain, the following provisions for Automobile Liability, Professional Liability and Commercial General Liability insurance: 1. The Consultant'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 Consultant's insurance and shall not contribute with it. 2. The Consultant'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. 3. The City will not waive its right to subrogation against the Consultant. The Consultant's insurance shall be endorsed acknowledging that the City will not waive their right to subrogation. The Consultant's insurance shall be endorsed to waive the right of subrogation against the City, or any self-insurance, or insurance pool coverage maintained by the City. 4. If any coverage is written on a "claims made" basis, then a minimum of a three (3) year extended reporting period shall be included with the claims made policy, and proof of this extended reporting period provided to the City. D. Acceptability of Insurers Insurance is to be placed with insurers with a current A.M. Best rating of not less than A:VII. E. Verification of Coverage The Consultant shall furnish the City with original certificates and a copy of the amendatory endorsements, including but not necessarily limited to the additional insured endorsement, evidencing the insurance requirements of the Consultant before commencement of the work. 14. Assigning or Subcontracting. The Consultant shall not assign, transfer, subcontract or encumber any rights, duties, or interests accruing from this Agreement without the express prior written consent of the City, which consent may be withheld in the sole discretion of the City. 15. Notice. Any notices required to be given by the City to the Consultant or by the Consultant to the City shall be in writing and delivered to the parties at the following addresses: City of Port Orchard and Terra Associates, Inc Professional Service Agreement Contract No. C065-20 U:\StaffReports\2020\20200728\7104 C065-20 -TERRA ASSOCIATES INC.docx 6of10 Rev 7/18/2019 Robert Putaansuu Mayor 216 Prospect Street Port Orchard, WA 98366 Phone: 360.876.4407 Fax: 360.895.9029 Hugh G. Goldsmith & Associates, Inc Attn: Lee Nyquist 1215 114" Ave SE Bellevue, WA 98004 Phone: 425.462.1080 Fax: 425.462.7719 16. Resolution of Disputes and Governing Law. A. Should any dispute, misunderstanding or conflict arise as to the terms and conditions contained in this Agreement, the matter shall first be referred to the Mayor, who shall determine the term or provision's true intent or meaning. The Mayor shall also decide all questions which may arise between the parties relative to the actual services provided or to the sufficiency of the performance hereunder. B. If any dispute arises between the City and the Consultant under any of the provisions of this Agreement which cannot be resolved by the Mayor's determination in a reasonable time, or if the Consultant does not agree with the Mayor's decision on a disputed matter, jurisdiction of any resulting litigation shall be filed in Kitsap County Superior Court, Kitsap County, Washington. C. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington. In any suit or action instituted to enforce any right granted in this Agreement, the substantially prevailing party shall be entitled to recover its costs, disbursements, and reasonable attorneys' fees from the other party. 17. General Provisions. A. Non -waiver of Breach. The failure of either party to insist upon strict performance of any of the covenants and agreements contained herein, or to exercise any option herein contained in one or more instances, shall not be construed to be a waiver or relinquishment of said covenants, agreements, or options, and the same shall be in full force and effect. B. Modification. No waiver, alteration, modification of any of the provisions of this Agreement shall be binding unless in writing and signed by a duly authorized representative of the City and the Consultant. C. Severability. The provisions of this Agreement are declared to be severable. If any provision of this Agreement is for any reason held by a court of competent jurisdiction to be invalid or unconstitutional, such invalidity or unconstitutionality shall not affect the validity or constitutionality of any other provision. D. Entire Agreement. The written provisions 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 whatsoever, the Agreement or the Agreement documents. The entire agreement between the parties with respect to the subject matter hereunder is contained in this Agreement and the Exhibits attached hereto, which may or may not have been dated prior to the execution of this Agreement. All of City of Port Orchard and Terra Associates, Inc Professional Service Agreement Contract No. C065-20 U:\SiaffReports\2020\20200728\7104 C065-20 -TERRA ASSOCIATES INC.doex 7of10 Rev 7/18/2019 the above documents are hereby made a part of this Agreement and form the Agreement document as fully as if the same were set forth herein. Should any language in any of the Exhibits to this Agreement conflict with any language contained in this Agreement, then this Agreement shall prevail. 18. Title VI The City of Port Orchard, in accordance with Title VI of the Civil Rights Act of 1964, 78 Stat. 252, 42 U.S.C. 2000d to 2000d-4 and Title 49, Code of Federal Regulations, Department of Transportation subtitle A, Office of the Secretary, Part 21, nondiscrimination in federally assisted programs of the Department of Transportation issued pursuant to such Act, must affirmatively insure that its contracts comply with these regulations. Therefore, during the performance of this Agreement, the Consultant, for itself, its assignees, and successors in interest agrees as follows: 1, Compliance with Regulations: The Consultant will comply with the Acts and the Regulations relative to Nondiscrimination in Federally -assisted programs of the U.S. Department of Transportation, Federal Highway Administration (FHWA), as they may be amended from time to time, which are herein incorporated by reference and made a part of this Agreement. 2. Nondiscrimination: The Consultant, with regard to the work performed by it during this Agreement, will not discriminate on the grounds of race, color, national origin, sex, age, disability, income -level, or LEP in the selection and retention of subcontractors, including procurements of materials and leases of equipment. The Consultant will not participate directly or indirectly in the discrimination prohibited by the Acts and the Regulations as set forth in Appendix A, attached hereto and incorporated herein by this reference, including employment practices when this Agreement covers any activity, project, or program set forth in Appendix B of 49 C.F.R. part 21. Solicitations for Subcontracts, Including Procurements of Materials and Equipment: In all solicitations, either by competitive bidding, or negotiation made by the Consultant for work to be performed under a subcontract, including procurements of materials, or leases of equipment, each potential subcontractor or supplier will be notified by the Consultant of the Consultant's obligations under this Agreement and the Acts and the Regulations relative to Non-discrimination on the grounds of race, color, national origin, sex, age, disability, income -level, or LEP. Information and Reports: The Consultant will provide all information and reports required by the Acts, the Regulations and directives issued pursuant thereto and will permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the City or the FHWA to be pertinent to ascertain compliance with such Acts, Regulations, and instructions. Where any information required of the Consultant is in the exclusive possession of another who fails or refuses to furnish the information, the Consultant will so certify to the City or the FHWA, as appropriate, and will set forth what efforts it has made to obtain the information. 5. Sanctions for Noncompliance: In the event of the Consultant's noncompliance with the Non- discrimination provisions of this Agreement, the City will impose such contract sanctions as it or the FHWA may determine to be appropriate, including, but not limited to: 1. withholding payments to the Consultant under the Agreement until the contractor complies; and/or City of Port Orchard and Terra Associates, Inc Professional Service Agreement Contract No. C065-20 U:\StaffReports\2020\20200728\7104 C065-20 -TERRA ASSOCIATES 1NC.docx 8of10 Rev 7/18/2019 2. cancelling, terminating, or suspending the Agreement, in whole or in part. 6. Incorporation of Provisions: The Consultant will include the provisions of paragraphs one through six in every subcontract, including procurements of materials and leases of equipment, unless exempt by the Acts, the Regulations and directives issued pursuant thereto. The Consultant will take action with respect to any subcontract or procurement as the City or the FHWA may direct as a means of enforcing such provisions including sanctions for noncompliance. Provided, that if the Consultant becomes involved in, or is threatened with litigation by a subcontractor, or supplier because of such direction, the Consultant may request the City to enter into any litigation to protect the interests of the City. In addition, the Consultant may request the United States to enter into the litigation to protect the interests of the United States. IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year set forth above. CITY OF PORT ORCHARD, WASHINGTON By: — - ox ►- Robert Putaansuu, Mayor CONSULTANT -� By: Name: Ted Schepper, .4. ATTEST/AUT 1CATE. Title: By: rar dy ' i&rson, MMC City Clerk APPRP� TO FORM: - ----- }} C?l*l t'@,' ' ry, ity Attorney l_ ' ° rrfJ"'�i� � y .1'l lJ f:i�� �•��ti�\ City of Port Orchard and Terra Associates, Inc Professional Service Agreement Contract No. C065-20 U:1.Slafr Repogs12020@0200725\7I 04 C065-20 -TERM ASSOCIATES INCADox 9of10 President Rev 7/18/2019 APPENDIX A During the performance of this Agreement, the Consultant, for itself, its assignees, and successors in interest agrees to comply with the following non-discrimination statutes and authorities; including but not limited to: Pertinent Non -Discrimination Authorities: • Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252), (prohibits discrimination on the basis of race, color, national origin); and 49 C.F.R. Part 21. • The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42 U.S.C. § 4601), (prohibits unfair treatment of persons displaced or whose property has been acquired because of Federal or Federal -aid programs and projects); ■ Federal -Aid Highway Act of 1973, (23 U.S.C. § 324 et seq.), (prohibits discrimination on the basis of sex); • Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. § 794 et seq.), as amended, (prohibits discrimination on the basis of disability); and 49 C.F.R. Part 27; • The Age Discrimination Act of 1975, as amended, (42 U S.C. § 6101 et seq.), (prohibits discrimination on the basis of age); ■ Airport and Airway Improvement Act of 1982, (49 USC§ 471, Section 4 7123), as amended, (prohibits discrimination based on race, creed, color, national origin, or sex); ■ The Civil Rights Restoration Act of 1987, (PL 100-209), (Broadened the scope, coverage and applicability of Title VI of the Civil Rights Act of 1964, The Age Discrimination Act of 1975 and Section 504 of the Rehabilitation Act of 1973, by expanding the definition of the terms "programs or activities" to include all of the programs or activities of the Federal -aid recipients, sub - recipients and contractors, whether such programs or activities are Federally funded or not); • Titles II and III of the Americans with Disabilities Act, which prohibit discrimination on the basis of disability in the operation of public entities, public and private transportation systems, places of public accommodation, and certain testing entities (42 U.S.C. §§ 12131-12189) as implemented by Department of Transportation regulations at 49 C.P.R. parts 37 and 38; • The Federal Aviation Administration's Non-discrimination statute (49 U.S.C. § 47123) (prohibits discrimination on the basis of race, color, national origin, and sex); • Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low -Income Populations, which ensures discrimination against minority populations by discouraging programs, policies, and activities with disproportionately high and adverse human health or environmental effects on minority and low-income populations; • Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency, and resulting agency guidance, national origin discrimination includes discrimination because of limited English proficiency (LEP). To ensure compliance with Title VI, you must take reasonable steps to -ensure that LEP persons have meaningful access to your programs (70 Fed. Reg. at 74087 to 74100); • Title IX of the Education Amendments of 1972, as amended, which prohibits you from discriminating because of sex in education programs or activities (20 U.S.C. 1681 et seq). City of Port Orchard and Terra Associates, Inc Professional Service Agreement Contract No. C065-20 UAStaff Reports\2020\20200728\71 04 C065-20 - TERRA ASSOCIATES INC.docx 10 of 10 Rev 7/18/2019 TERRA ASSOCIATES, Inc. Consultants in Geotechnical Engineering, Geology and Environmental Earth Sciences October 21, 2019 Revised July 15, 2020 No. P-6039 Mr. Zack Holt Stormwater Program Manager City of Port Orchard 216 Prospect Street Port Orchard, Washington 98366 Subject: Meeting Summary and Proposal Geotechnical Engineering Evaluation McCormick Ridge Dam Port Orchard, Washington References: 1. 2018 Periodic Inspection Report, McCormick North Phase I East Dam, dated December 2018, prepared by Washington State Department of Ecology — Dam Safety Office, DSO File KP15-1891 2. Geotechnical Engineering Evaluation, McCormick North, Project No. T-2957-4, prepared by Terra Associates, Inc., dated May 5, 2004 revised May 13, 2004 Dear Mr. Holt: As requested, we met with you and representatives of Goldsmith Engineering at the subject site to observe and discuss current conditions of the subject stormwater detention dam. The purpose of the meeting was to clarify civil and geotechnical design and construction issues identified by Department of Ecology Dam Safety Office (DSO) personnel during their recent inspection of the dam with City officials. A summary of DSO's requirements arising from the inspection is contained in the referenced Periodic Inspection Report. DSO has re-classified the dam's downstream hazard rating to "Hazard Class 1C, high" based on increased downstream populations since its construction in 2008. As part of the new hazard rating's more stringent design requirements, DSO requires analysis of ravine stability slopes using a seismic acceleration value for the 2,475- year return period earthquake. During our on -site meeting, we recommended that in addition to analysis of the ravine location, a stability analysis of the northern embankment be completed using the revised earthquake acceleration criterion. 12220 113th Avenue NE, Ste. 130, Kirkland, Washington 98034 Phone (425) 821-7777 • Fax (425) 821-4334 Mr. Zack Holt October 21, 2019 Revised July 15, 2020 During our site visit, we observed that the geocells lining the pond slopes had been disturbed at isolated locations as a result of removal of small trees during pond maintenance operations. In addition, we observed areas of geocell disturbance that appear related to slippage of topsoil beneath the geocells. One of the geotechnical requirements listed in the DSO report pertains to recommendations from the geotechnical engineer for repair of the geocells. SCOPE OF WORK In our meeting, we discussed the possibility of requiring additional site explorations for use in stability analyses of the north dam embankment. Test pit data contained in the referenced Geotechnical Evaluation Report, including two test pits at the north embankment location, indicate that glacially consolidated till and outwash sands underlie the dam. In addition, Terra Associates, Inc. observed placement and tested compaction of embankment fills during the dam's construction. Based on these results, in our opinion, additional subsurface explorations at the site will not be required to complete our stability analyses. Our scope of work includes responding to the geotechnical engineering requirements contained in the DSO inspection report and discussed in greater detail during our on -site meeting. Using the results of our previous subsurface explorations and laboratory testing, analyses will be undertaken to develop conclusions pertaining to stability of the ravine slope, and the north and west dam embankments. The results of our study will be summarized in a written report. Specifically, the report will address the following: • Site observations. + Slope stability analyses. • A discussion of options for stabilizing embankments, if required. • Recommendations for geocell repair, ESTIMATED FEES The fees for our services will be invoiced on a time and expense basis in accordance with the attached Standard Fee Schedule and General Conditions. For the scope of work outlined, we estimate that our fee will be $5,900. No. P-6039 Page No. 2 Mr. Zack Holt October 21, 2019 Revised July 15, 2020 Our fee estimate will not be exceeded unless our scope of work changes due to variations in dam safety inspection requirements, or if it is determined additional geotechnical engineering analysis and design are required for a selected option of dam embankment stabilization. In such cases, a detailed scope breakdown and fee estimate will be provided to you for your approval, prior to proceeding with any additional work beyond that outlined in this proposal. Our fee estimate does not include costs for consulting services that may be required following initial submittal of our report. If you agree with the outlined scope of services and associated fee, please indicate your authorization to proceed by signing one copy of this letter and returning it to our office. We appreciate the opportunity to submit this proposal and look forward to working with you on this project. If you have any questions or require additional information, please call. Sincerely yours, TERRA ASSOCIATES, INC. Z"-( � Q-'e- - 1 Kevin P. Roberts, P.E. Geotechnical Engineer Eric]: Standard Fee Schedule and General Conditions I accept the above and the attached Standard Fee Schedule and General Conditions. Signature: Name: Title: Date: No. P-6039 Page No. 3 TERRA ASSOCIATES, Inc. Consultants in Geotechnical Engineering, Geology and Environmental Earth Sciences STANDARD FEE SCHEDULE & GENERAL CONDITIONS EFFECTIVE JANUARY 1, 2020 TERRA ASSOCIATES, Inc. professional service fees are based on the following conditions: PERSONNEL HOURLY CHARGE: PRINCIPAL......................... ...................................................... ::.... ......................... PROJECT MANAGER ..................................... . PROJECT ENGINEER/GEOLOGIST/SCIENTIST..................................................... STAFF ENGINEER/GEOLOGIST/SCIENTIST.......................................................... SENIOR ENGINEERING TECHNICIAN.................................................................... CADDTECHNICIAN..................................................................................... ENGINEERING TECHNICIAN......................................................... :.................. :...... WORD PROCESSOR/CLERICAL............................................................................. LEGAL TESTIMONY AND PREPARATION (4-hour minimum) ............................... TRAVEL EXPENSES: $ 180.00 per hour $ 130.00 per hour $ 118.00 per hour $ 95.00 per hour $ 83.00 per hour $ 83 00 per hour $ 75.00 per hour $ 52.00 per hour $ 260.00 per hour Subsistence reimbursement paid to employees on business for the Client will be charged at a rate of $225.00 per day for projects located more than 60 miles from our office. Portal to portal mileage will be charged for vehicle use at the rate of $ 65 per mile. ADDITIONAL SERVICES: Charges for equipment furnished by TERRA will be at predetermined rates as indicated on our proposal or as discussed with Client. Charges of services not furnished directly by TERRA such as subcontracted excavating and drilling equipment, special equipment rental, services of outside consultants, fares of public carriers, printing, photographs, ferry tolls, long distance phone calls, special fees, and permits required for the project will be charged at the rate of cost plus 15 %. LIMITATION OF LIABILITY AND INDEMNITY: The services provided by TERRA are for the sole benefit of Client No other person or entity shall be entitled to rely upon the reports or results produced by TERRA. Client agrees to limit TERRA's total professional liability arising from the work done to the greatest of (a) $50,000.00, or (b) TERRA's total fee for services rendered. Upon specific request and payment, TERRA can provide evidence of professional liability insurance up to a maximum of $2,000,000 This insurance is not available for single- family residential projects. The charge for such insurance is $500 or 5 percent (5%) of TERRA's fee, whichever is greater. These charges will be in addition to fees charged for professional services and will be billed as a surcharge above professional fees. Client agrees to look solely to TERRA and its insurance proceeds and hereby releases and waives any claims it might have against the employees, officers, directors, and/or shareholders of TERRA. Client agrees to indemnify and defend TERRA, its employees, officers, directors, and shareholders against (1) all claims of professional error or omission arising from the work which, in total, exceed the foregoing; (2) any loss or expense incurred as a result of the breach of any other promise given by Client; and (3) any loss, claim, damage, or expense which is in part or in whole the result of the actions of anyone other than TERRA and its employees. INVOICES: TERRA will submit invoices to the Client on a monthly basis, and a final bill upon completion of our work. Payment is due upon presentation of invoice and is past due thirty (30) days from the date of the invoice. Client agrees to pay a finance charge of one and one half percent (1'Y2 %) per month on past due accounts In the event of default in the payment of fees under this agreement, Client agrees to pay all costs of collection, including collection agency fees and reasonable attorneys' fees incurred. Accepted by Date (Over) 12220 113th Avenue NE, Ste. 130, Kirkland, Washington 98034 Phone (425) 821-7777 ■ Fax (425) 821-4334 RIGHT OF ENTRY & UTILITIES: The Client will provide for right of entry of TERRA and all necessary equipment in order to complete the work. While TERRA will take reasonable precautions to minimize damage to the project site, it is understood by the Client that in the normal course of work, some damage to property or landscaping may occur, the correction of which is not part of this agreement. In the execution of our work, TERRA will take reasonable precautions to avoid damage to buried structures or utilities. The owner or the owner's representative agree to hold us harmless for any damages to buried structures which are not called to our attention and correctly shown on the plans furnished to us. OWNERSHIP OF DOCUMENTS AND SAMPLES: All reports, boring logs, field data, field notes, laboratory test data, calculations, estimates, and other documents prepared by the consultant, as instruments of service, shall remain the property of TERRA. We will retain all pertinent records relating to the services performed for a period of five years following submittal of the report, during which period the records will be made available to the Client at all reasonable times. For geotechnical studies, all rock and soil samples will be disposed upon issuance of our report. For testing during construction, samples will be disposed upon completion of our laboratory testing. Additional storage or transfer of samples can be made at the owner's expense, upon written request STANDARD OF CARE: Services performed by TERRA under this Agreement will be conducted in a manner consistent with that level of care and skill ordinarily exercised by members of the profession currently practicing under similar conditions. No other warranty, expressed or implied, is made. Client recognizes that subsurface and groundwater conditions at the site may vary from those at the locations where samples or investigations are made Consistent with the foregoing standard of care, TERRA will use its professional judgment to select the number and location of all samples and investigations Client assumes the risk that despite such care the samples and investigations may not accurately represent the entire site. INSURANCE AND SUBROGATION: Upon written request and payment of charges as discussed above, TERRA will provide Client with evidence of its insurance covering public and professional liability. Client waives any claims against TERRA and its employees, officers, and directors, which are beyond the limits or coverage of such insurance. TERRA, for itself and its insurers, waives and releases Client from any right of recovery for loss or damage which is covered by such insurance as TERRA has in force. Client, for itself and its insurers, waives and releases TERRA from any right of recovery for loss or damage which is covered by any policy of insurance which is carried by Client at the time of the loss or damage or which would be covered by an "All risk," "Builders risk" or similar coverage then available in the state of Washington. If Client carries such "All risk," "Builders risk" or similar coverage, Client shall include TERRA as an additional named insured. Client warrants that all other contractors and subcontractors working on the same site shall have in their contracts identical provisions with respect to all claims against TERRA, its employees, officers, and directors. NOTICE AND ACTIONS: If Client becomes aware of any set of circumstances for which it believes it or anyone else may have a claim against TERRA, then Client shall: (a) notify TERRA of the set of circumstances within 30 days of becoming aware of them; (b) promptly provide TERRA with copies of all reports, memoranda, notes, or other documents relating to such set of circumstances; (c) permit or obtain permission for TERRA or its representatives to inspect the site of such set of circumstances; and (d) take such corrective action as TERRA determines appropriate. Failure to comply with any of the foregoing shall constitute a waiver of any and all claims against TERRA and its employees, officers and directors. In all events, any litigation or arbitration arising from any contract or the performance of any work by TERRA shall be commenced within one (1) year after completion of the work. For purposes of this paragraph, work shall be deemed complete upon TERRA's issuance of a final report relating to the set of circumstances, notwithstanding the fact that there may be additional or subsequent services performed on the same site. Construction monitoring shall be considered separate work from initial site evaluation even if both are performed pursuant to the same contract. In the event of any arbitration or litigation arising from this agreement or any services provided by TERRA, the prevailing party shall be entitled to attorney's fees. HAZARDOUS WASTE: For services involving or relating to any hazardous waste elements of this Agreement it is further agreed that the Owner shall indemnify and hold harmless TERRA and their consultants, agents, and employees from and against all claims, damages, losses and expenses, direct and indirect, or consequential damages, including but not limited to fees and charges of attorneys and court and arbitration costs, arising out of or resulting from the performance of the work by TERRA or claims against TERRA arising from the work of others, related to hazardous waste. The above indemnification provision extends to claims against TERRA which arise out of or are related to, or are based upon, the dispersal, discharge, escape, release or saturation of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids, gases or any other material, irritant, contamination or pollutant in or into the surface or subsurface (a) soil, (b) water or water- courses, (c) objects, or (d) any tangible or intangible matter, whether sudden or not.