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18-096.00 Allwest: Mission Ave Improvements Materials Testing
• • • Local Agency Professional Services Negotiated Hourly Rate Consultant Agreement Agreement Number: 18-096 Does this Require DES filing? ❑ Yes ❑I No Firm/Organization Legal Name (do not use dba's): Aliwest Testing and Engineering, Inc. Address Federal Aid Number 3005 N Ind. Ln, 5th St., Spokane Valley,WA99216 UBI Number Federal TIN;or SSN Number 602-216-413 P ED CTED. Execution Date Completion Date Lei 1 (g December 31, 2019 1099 Form Required Federal Participation 0 Yes Q No ❑ Yes 0 No Project Title Mission Avenue Improvement Project, CIP 0123 Description of Work ,, , Provide Materials Testing Services for the Mission Avenue Improvement Project, CIP 0123 This document contains confidential tax information and has been redacted pursuant to RCW 82.32.330. You may petition for a review of our findings pertaining to any redacted or withheld documents pursuant to Spokane Valley Municipal Code (SVMC) 2.75.080; and obtain judicial review pursuant to RCW 42.56.550. ❑ Yes % Q No DBE Participation Maximum Amount Payable: $35,624.00 ❑ Yes % Q No MBE Participation ❑ Yes % ❑� No WBE Participation ❑ Yes % Q No SBE Participation Index of Exhibits Exhibit A Scope of Work Exhibit B DBE Participation/SBE Plan I Exhibit C Preparation and Delivery of Electronic Engineering and Other Data Exhibit D Prime Consultant Cost Computations Exhibit E Sub-consultant Cost Computations Exhibit F Title VI Assurances • Exhibit G Certification Documents Exhibit H Exhibit I Alleged Consultant Design Error Procedures Exhibit J Consultant Claim Procedures Agreement Number: 18-096 Local Agency Professional Services Negotiated Hourly Rate Consultant Agreement Page 1 of 14 Revised 11/01/2017 THIS AGREEMENT,made and entered into as.showrr in the"Execution Date"box On page one(I)of this AGREEMENT, between the hereinafter called the"AGENCY,"and the"F rcti/Organization Name"referenced on page one(l)of this AGREEMENT,hereinafter called the"COiSULTANT." WHEREAS, the AGENCY desires to accomplish the work referenced h "Description of Work'clot page one(I), of this AGREEMENT and hereafter called the"SERVICES;"and does riot have sufficient staffto.meet the required commitment and therefore deems it advisable and desirable to engage`the assistance of a CONSULTANT to provide the necessary SERVICES;and WHEREAS, the CONSULTANT represents that they comply with the Washington State Statutes relating to professional registration,if applicable,and has signified a willingness to furnish consulting services to the AGENCY. NOW,THEREFORE,in consideratioq.of fhe terms,conditions,covenants,and performance contained herein, or attached and incorporated and made a part hereof,the parties heretoegree as follows: I. General Description of Work The work under this AGREEMENT shall consist of the-above-described SERVICES as herein defined,and necessary to accomplish the-completed work for this project. The CONSULTANT shall furnish all services, labor, and related equipment and, if applicable,sub-consultants and subcontractersnecessary to conduct and complete the SERVICES as designated elsewhere'in this AGREEMENT. If. 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. General Requirements All aspects of coordination of the work of this AGREEMENT with outside,agencies, groups,or individuals shall receive,advance approval by the AGENCY. Necessary contacts and meetings with agencies,groups, and/or individuals shall be coordinated through the AGENCY. The CONSULTANT shall attend coordination, progress, and presentation meetings with the AGENCY and/or such State,Federal,Community, City,or County officials, groups or individuals as may be requested by the AGENCY. The AGENCY will provide the CONSULTANT sufficient notice prior to meetings requiring CONSULTANT participation.The minimum.required hours or days' notice shall be agreed to between the AGENCY and the CONSULTANT and shown in Exhibit"A.'' The CONSULTANT shalt prepare a monthly progress report, in a form approved by the AGENCY,which will outline in written and graphical form the various phases and the order of performance of the SERVICES in sufficient detail so that the progress vfthe SERVICES can easily be evaluated. The CONSULTANT,any sub-consultants,end the AGENCY shall comply with all Federal,&tate,.dnd local laws, rules,codes, regulations,and all AGENCY policies anddirectivea, applicable to the work to be perforated under this AGREL-"MENT. This AGREEMENT shall be interpreted and construed in accordance with the laws of the State of Washington. Agreemept Number: i -Oq (p Local Agency Professional Services Negotiated Hourly Rates Consultant Agreement Page 2 of 14 Revised 11/01/2017 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 IBE firths are utilized at the commencement of this AGREEMENT,the amounts authorized to each firm and their•certification number will be shown on Exhibit"B"attached hereto and bythis reference made part of this-AGREEMENT. If the Prime CONSULTANT is a DBE certified firm they must comply with the Commercial Useful Function (CUF)regulation outlined in theAGENCY's"DBE Program Participation Plan"and perform a minimum of 30%Of the total amount of this AGREEMENT. ft is recommended, but not required,that non-DBE Prime CONSULTANTS perform a minimum of 30%of the total amount of this AGREEMENT. In the absents of a mandatory UDBE,a voluntary SBE goal amount of ten percent of the Consultant Agreement is established. The Consultant shall submit a SBE Participation Plan prior to commencing work. Although the goal is voluntary,the outreach efforts to provide SBE maximum practicable opportunities are not. The CONSULTANT,on a monthly basis, shall enterthe amounts paid to all firms involved with this AGREEMENT into the wsdot.di'versitycompliance.com program. Payment information shall identify any DBE Participation. Non-minority, woman.owned DBEs does not count towards UDBEgoat attainment. All Reports, PS&E materials,and other data furnished to the CONSULTANT by the AGENCY shall be returned. All electronic files,prepared by the CONSULTANT,must meet the requirements as outlined in Exhibit"C— Preparation and Delivery of Electronic Engineering and other Data." All designs, drawings, specifications,documents,and other work products, including all electronic files,prepared by the CONSULTANT prior to completion or termination of this AGREEMENT are instruments of service for these SERVICES,and are the property of the AGENCY. Reuse by the AGENCY or by Others, acting through or on behalf of the AGENCY of any such instruments of service, not occurring as a part of this SERVICE,shall be without liability or legal exposure to the CONSULTANT Any and all notices or requests required under this AGREEMENT shall he made in writing and sent to the other party by(i)certified mail,return receipt requested,or(ii) by email pr facsimile,to the address set forth below: Tf to AGENCY: If to CONSULTANT: Name: Chris Bainbridge, City Clerk Name: AndyEliason, PE Agency: City of Spokane Valley Agency: Allwest Testing& Engineering,Inc. Address: 10210 E Sprague Ave./ Address: 3005 N. Industrial Lane, 5th St., City: Spokane Valley State: WA Zip: 99206 City: Spokane Valley State: WA Zip: 992.16 Email: cbainbridge@spokanevalley.org Email: aeliason@allwesttesting.com Phone: 509-720-5000 Phone: 5091534-4411 Facsimile: 509-720-5075 Facsimile: 509-534-9326 IV. Time for Beginning and Completion The CONSULTANT shall not begin any work under the terms of this AGREEMENT until authOrized in writing by the AGENCY. ThisAGREEMENT may xequire tiling with the Department of Enterprise Services.(DES) pursuant to RCW 39.26.140. If Such approval is.required by DE$,this AGREEMENT shall not bind the AGENCY until approved by DES. If the AGREEMENT must be apprdved by DES,work cannot begin,icor payment made until ten(10)or more working days following the date of filing,and until approved by DES. Any subsequent SUPPLEMENTAL AGREEMENT may also be subject to filing and/or,approval from DES. All work under this AGREEMENT shall be completed by the date shown in the heading of this AGREEMENT titled "Completion Date." The established completion time shall not be extended because of any delays attributable to the CONSULTANT, but may beexxtended 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 supplcrtrental AGREEMENT issued by the AGENCY is required to extend the established conipletion time. Agreement Number:. (, —0et 6 LacblAgebcy Professional Setadces Negotiated Hourly Rate Consultant Agreement Page 3 of 14 Revised 11/0112017 V, Payment Provisions The CONSULTANT shall be paid'by the AGENCY for completed SERVICES rendered under this AGREEMENT as providedWhereinafter.. Such payment shall be full compensation for.SERVICES per°foritred 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 31 (www.ecfr.gov).. A. Hourly Rates:Hourly rates are comprised of the following elements-Direct(Raw)Labor,Indirect Cost Rate, and Fixed Fee(Profit). The CONSULTANT shall be paid by the AGENCY for work done, based upon the negotiated hourly rates shown in Exhibits"D".and''E"attached hereto and by reference made part of this AGREEMENT. These negotiated hourly rates will be accepted based on a review of the CONSULTAINIT's direct labor rates and indireOt.cost rate computations and agreed upon fixed fee. The accepted negotiated rates shall be memorialized in a final written acknowledgement between the parties, Such final written acknowledgement shall be incorporated into,and become a part of,this AGREEMENT. The initially accepted negotiated rates shall be applicable from the approval date, as memorialized in a final written acknowledgement, to 180 days following the CONSULTANT's-fiscal year end(FYE)date. The direct(raw) labor rates and classifications,as shown on Exhibits"D"and"E"shall be subject to renegotiations for each sgbsequenttwelve.(12)month period'(180 days following FYE date to 180 days following FYE date)upon written request of the CONSULTANT or the AGENCY. The written request must be made to The other party within ninety(90)days following.the'CONSULTANT's FYE date. If no such Written request is made,the current direct(raw) labor rates and classifications as shown on Exhibits"0"and"E", will remain in effect for the twelve(12)month period, Conversely, if a timely request is made in the manner set forth above,the patties will commence negotiations to determine the new direct(taw)labor rates and classifications that will be applicable for the twelve(12) month period. Any agreed to renegotiated rates shall be memorialized in a final written acknowledgement between the parties. Such final written acicnowledgement shall he incorporated into, and become a part of,this AGREEMENT. If requested,the CONSULTANT shall provide current payroll register and classifications to aid in negotiations. if the parties cannot reach an agreement on,the direct(raw)labor rates and classifications,the AGENCY shall perform an audit of the CONSULTANT's baoksand records to determine the CONSULTANT's actual costs. The audit findingswill establish the direct(raw) labor rates and classifications that will be applicable for the twelve(12) month period. The fixed fee as identified in Exhibits"D"and"E"shall represent a value to be applied throughout the life of the AGREEMENT. The CONSULTANT shall submit annually to the AGENCY an updated indirect cost rate within 180days of the close,of its fiscal year. An approved updated indirect cost rate-shall be included in the current fiscal year rates under this AGREEMENT,even if/when other components of the hourly rate are not renegotiated_ These rates will be applicable for the twelve(12)month period. M the AGENCY's option,a provisional and/or conditional indirect cost rate may be negotiated. This provisional or.conditional indirect.rate shall remain in effect until the updated indirect cost rate is completed and approved. Indirect cost rate costs incus' ed during the-provisional or conditional period will not be adjusted. The CONSULTANT flay request an extension of the last°approved indirect cost rate for thetwelve(12)month period. These requests forprovisiOna'l indirect Cost rate and/or extension will be considered on a case-by-case basis,andifranted,will be memorialized in a final written acknowledgement. The CONSULTANT,shall maintain and have.accessible support data,for verification of the components of the hourly rates,Lt.,direct(raw) labor, indirect cost tate,and fixed Fee(profit)percentage. The CONSULTANT shall bill each employees actual classification,and actual salary plus indirect cost rate plus fired fee. Agreement Naber; I o I.ocalAgency ProfessionarServlces Negotiated Hourly Rate Consultant Agreement. Page 4 of 14 Revised 11/017201 r B. Direct Non-Salary Costs: Direct Non-Salary Coats will be reimbursed at the actual cost to the CONSULTANT. These charges may incluse,but are not limited to,the following items: travel, printing, long distance telephone, supplies,computer charges. The CONSULTANT shall comply with the rules and regulations regarding travel costs(excluding air,train,and rental car costs)in accordance with the WSDOT'S Accounting Manual M 13- 82,Chapter 10—Travel Rules and Procedures,and all revisions thereto. Air,train and rental card costs shall be reimbursed in accordance with 48 Code of Federal Regulations(CFR)Part 31.205-46"Travel Costs"The billing for direct non-salary costsshall include an itemized listing of the charges directly identifiable With these SERVICES. The CONSULTANT shall maintain theoriginal supporting documents in their office. Copies of the original supporting documents shall be supplied to the AGENCY upon request. All above charges must be necessary for the SERVICES provided under this AGREEMENT. C. Maximum Amount Payable:The Maximum Amount Payable by the AGENCY to the CONSULTANT under this AGREEMENT shall not exceed the amount shown in the heading of this AGREEMENT on page one(I.) 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. D. Monthly Progress Payments: Progress payments may be claimed on a monthly basis for all costs authorized in A and B above. The monthly billings shall be•supported by detailed statements for hours expended at the rates established in Exhibit"D," including names and classifications of all employees,and billingsfor all direct non- salary expenses. To provide a means of verifying 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. E. Final Payment: Final Payment of any balance due the CONSULTANT of the gross amount earned will be made promptly upon its verification by the AGENCY after the completion of the SERVICES under this AGREEMENT, contingent upon'receipt of all PS&E,plans, maps,notes, reports,electronic data,and other related documents which are required to be furnished under this AGREEMENT. Acceptance of such Final Payment by the CONSULTANT shall constitute a release of all clainis for payment,which the CONSULTANT may have against the AGENCY unless such claims are specifically reserved in writing and transmitted to the AGENCY by the CONSULTANT prior to itsacceptance. Said Final Payment shall not, however, be a bar to any claims that the AGENCY may have against the CONSULTANT or to•any remedies the AGENCY may pursue with respect to such claims. The payment of any billing will not constitute agreement as to the appropriateness of any item and at the time of final audit all required adjustments will be made and reflected in a.final payment. In the event that such final audit reveals an overpayment to the CONSULTANT,the CONSULTANT will refund such overpayment to the AGENCY within thirty(30)calendar days of notice of the overpayment. Such refund shall not constitute a waiver by the CONSULTANT for any claims relating to the validity of afinding,by the AGENCY of overpayment. Per the WSDOT's "Audit Gdide for Consultants," Chapter 23,"Resolution Procedures,"the CONSULTANT has twenty(20)working days After receipt of the final Post Audit to begin the appeal process to the AGENCY for audit findings. F. Inspection of Cost Records,;The CONSULTANT and their sub-consultants shall keep available.for inspection by representatives of the AGENCY and the United States,for a period of six(6)years atter receipt offinal 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 df,in connection with, or related t©this AGREEMENT is initiated before the expiration of the six(6)year period,the cost records and accounts shall be retained until such litigation,claim,or audit involving the records is Completed. An interim or post audit may be performed#on this AGREEMENT. The audit, ifany,.will be performed by the State Auditor, WSDOT'sdnternal Audit Office and/or at the request of the AGENCY's Project Manager. Agreement Number: )(a —CA'(o Local AgencyProfesslonal Services Negotiated Hourly Rate Consulter*Agreement Page,e of 14 Revised 11101/2017 VI. Sub-Contracting The AGENCY permits subcontracts for those•items of SERVICES as shown in Exhibit"A"attached hereto and by this reference made part of this AGREEMENT The CONSULTANT shall not subcontract for the performance of any SERVICE under this AGREEMENT without prior written permission of the AGENCY. Nd permission forsubcontracting 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 atttount payable identified in each Task Order unless a prior written approval has been issued by the AGENCY. All reimbursable direct labor, indirect cost mate,direct non-salary costs and fixed fee costs for the sub-consultant shall be negotiated and substantiated in accordance with section V"Payment Provisions"herein and shall be memorialized in a final written acknowledgement between the parties. All subcontracts shall contain all applicable provisions of this AGREEMENT,snd 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 CONSULTANTshall comply with all applicable sections of the STATE'S Prompt Payment laws as set forth in RCW 39.04250 and RCW 39.76.01 I. The CONSULTANT,sub-recipient,or sub-consultant shall not discriminate on the basis of race,color,national origin,or sex in the performance of this AGREEMENT. The CONSULTANT shalt carry out applicable requirements of 49 CFR Part 26 in the award and administration of DOT-assisted contracts. Failure by the CONSULTANT to carry out these requirements is a material breach of this AGREEMENT,Which May result in the termination of this AGREEMENT or such other remedy as the recipient deems appropriate. VII. Employment and Organizational Conflict of Interest The CONSULTANT warrants that they have not employed or retained any company or person,other than a bona fide employee working solely for the CONSULTANT,to solicit or secure this contract,and that it has not paid or agreed to pay any company or person,other than a bona fide employee working solely for the CONSULTANT,any fee,commission, percentage,brokerage fee,gift,or any other consideration, contingent upon or resulting from the award or making of this contract. For breach or violation ofthiswat'rant,the AGENCY shall have the right to annul this AGREEMENT without liability or, in its discretion,to deduct from this AGREEMENT price or consideration or otherwise recover the full amount of such fee,commission, percentage,brokerage fee,gift,or contingent fee. Any and all employees of no.CONSULTANT or other persons while engaged in the performance of any work or services required of the CONSULTANT under this AGREEMENT,shall be considered employees of the CONSULTANT only and not of the AGENCY,and any and all claims that may ariseunderany Workmen's Compensation Action behalf of said employees or other per ons while so engaged,.aud any and all claims made by a third party as a conaequenCe df any act or omission on the part of the CONSULTANT's employees or other persons While so engaged on any of the work orservices provided,to be rendered herein, shall be the sole obligation and responsibility of the CONSULTANT. The CONSULTANT shall notengage, on a,full-or part-time basis,or other basis,during the period'of this AGREEMENT,any professional or technical personnel who act,os have been,at any time during the period of this AGREEMENT,in the employ of the United States Department of Transportation or the AGENCY,except regularly retired employees,without written consent ofthe publio employer of such person if he/she willbe working on this AGREEMENT for the CONSULTANT. Agreement Number: 1$ -6c1(, Local AgencyProf ss onaf Services Negotiated HobrlypRate Consultant Agreement Page 6 of,14 ReVlsed 19/01/201 i VIII. Nondiscrimination During the performance of this AGREEMENT,the CONSULTANT, for itself; its assignees,sub-consultants, subcontractors and successors in interest,.agrees.to comply with the following laws and regulations: • Title VIof the Civil Rights Act of.1964 • Civil Rights Restoration Act of 1987 (42 U.S.G. Chapter 21 Subchapter V§2000d (Pub`lie 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 Part 200 • Rehabilitation Act or 1973 - 49 CFR Part 21. (29 U.S.C. Chapter 16 Subchapter V § 794) • 49 CFR Part 26 • Age Discrimination Act Of 1975 • RCW 49.60.l80 (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 AGREEMENT,and shall include the attached Exhibit "F" in every sub-contract, including procurement of materials and leasers of equipment,unless exempt by the Regulations or directives issued pursuant thereto. IX. Termination of Agreement The.right is reserved by the AGENCY to terminate this AGREEMENT at any time with or without cause upon ten (10)days written notice to the CONSULTANT. En the event this AGREEMENT is terminated by the AGENCY, other than for default on the part of the CONSULTANT,a final payment shall be made to the CONSULTANT for actual hours charged at the time of termination of this AGREEMENT, plus any direct non-salary costs incurred up to the time of termination of this AGREEMENT. No payment shall be made for any SERVICES completed after ten (10)days,following receipt by the CONSULTANT of the notice to'terminate. If the accumulated payment made to the CONSULTANT prior to Notice of Termination exceeds the total amount that would be due when computed as set forth in paragraph two(2-)of this section,,then no final payment shall be due and the CONSULTANT shall'immediately reimburse the AGENCY for any excess paid. If the services of the CONSULTANT are terminated by the AGENCY for default on the part of the CONSULTANT, the above formula for payment shall not apply. In the event of a termination fclr default, the amount to be paid to the°CONSULTANT shall be determined by the AGENCY with consideration given'to the actual costa incurred by the CONSULTANT in perforthipg SERVICES to the date of termination,the amount of:SER.VICES originally required which was satisfactorily completed to date of termination,whether that SERVICE is in a form ova type which"is usable to the 6GENCY'at thio time of termination, the cost to the AGENCYof employing another firm to corttplete the,SERVICES required and the time which may be required tad°so,and other factors whieb affect the value to the AGENCY of the SERVICES perforilied at the time of termination. Under no circumstances shall payment made under this subsection exceed the amount,which would have been made using the formula set forth in paragraph two (2)of this section. If it is determined for any reason that the CONSULTANT was not in default or that the CONSULTANT's failure to perform is without the CONSULTANT's or its employee's fault or negligence,the termination shall be deemed to be a termination for the convenience of the AGENCY. inauch an event,the CONSULTANT would be reimbursed for actual costs in accordance with the.termination for other than default clauses listed previously. Agreement Number: l -O`t'(p /.Oral AgencyProfesslonal Services Negotiated Hourly Rate Consultant Agreement cage 7 of 14 Revised 11/01/2017 The CONSULTANT shall,within 15 days, ngtify the AGENCY in writing,in the event of the death of any member, partner,or officer of the CONSULTANT or the death or change of any of the.CONSULTANT'$supervisory and/or other key personnel assigned to the project or disaffiliation of any principally involved CONSULTANT employee. The CONSULTANT shall also notify the AGENCY, in writing, in the event of the sale or transfer of 50%or more of the beneficial ownership of the CONSULTANT within 45 days of kuch 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 rerm(s) of this AGREEMENT. If termination for convenience occurs,final payment will be made to ttte.CONSULTANT as set forth,in the second and third paragraphs of this section. Payment for any part of the SERVICES by the AGENCY shall not constitute a,waiver by the AGENCY of any remedies of any type it may have against the CONSULTANT for any breach of this AGREEMENT by the CONSULTANT,or for failure of the CONSULTANT to perform SERVICES required of it by the AGENCY. Forbearance of any rights under the AGREEMENT will not constitute waiver^of entitlement to exercise those rights with respect to any future act or omission by the CONSULTANT. X. Changes of Work The CONSULTANT shall make such changes and revisions in the completed work of this AGREEMENT as necessary to correct errors appearing therein,without additional compensation thereof. Should the AGENCY find it desirable for its own purposes to have previously.satisfactorily completed SERVICES or parts thereof changed or revised, the CONSULTANT shall intake 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 X111 "Extra Work." XI. Disputes Any disputed issue not resolved pursuant to the terms of this AGREEMENT shall be submitted in writing within 10 days to the Director of Public Works or AGENCY Engineer,,whose decision in the matter shall be final and binding on the parties of this AGREEMENT;provided however, that if an Action is brought challenging the Director of Public Works or AGENCY Engineer's decision,that deciaipn shall be subject to judicial review. If the parties to this AGREEMENT mutually agree,disputes concerning alleged design errors will be conducted under the procedures found ib Exhibit"J". In the event that either party deem it necessary to institute legal action or proceeding to enforce any right or obligation under this AGREEMENT, this action shall be initiated in the Superior Court of the.State of Washington, situated in the county in which theAGENCY is located. The parties hereto agree that all questions shall be resolved by application of Washington law and that the parties have the right of appeal from such decisions of the Superior Court in accordance with the laws of the State of Washington. The CONSULTANT hereby consents to the personal jurisdiction of the Superior Court of the State of Washington, situated in the county in which the AGENCY is located. XII. Legal Relations The CONSULTANT,any sub-consultants,and the AGENCY shall comply with all Federal,State,and local laws, rules,codes:regulations and all AGENCYpolicies and directives,applicable to the work to be performed under this AGREEMENT. This.AGREEMENT shall beinterpieted'and construed in accordarnce•with the laws or the State of Washington. The.CONSULTANT shall defend, indentrtify,and bola the State of Washington(STATE),the AGENCY and their officers and employees hafolless from all claims,demands,or suits at law or e4%tity arising in whole or in part from the negligence of,or the breach of any obligation under this AGREEMENT by,the CONSULTANT or the .CONSCtLTANT's agents,employees,sub consultants,subcontractors or vendors,of any tier,or any°other persons for Whom the CONSULTANT may be.legally liable;provided that nothing herein shall require a CONSULTANT 4reement Number. I ^4r) (p Local AgenCyprofessional Services Negotiated NourlyRate Consultant Agreement Page 8 of 14 Revised 11101/2017 to defend or indemnify the STATE and therAliENCY 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/or the AGENCY,their agents,officers,employees,sub-consultants,'subcontractors or vendors,of any tier,or any other persons for whom the STATE and/or the AGENCY may be legally liable;and provided further that if the claims or suits are caused by nor result from the concurrent negligence of(a)the CONSULTANT or the CONSULTANT'S agents,employees, sub-consultants,subcontractors or vendors,of any tier,or any other persons for whom the CONSULTANT is legally liable,and(b) the STATE and/or the AGENCY, its agents,officers; employees,sub-consultants,subcontractors and or vendors, of any tier,or any other persons for whom the STATE and/or the AGENCY may bd legally liable, the defense aid indemnity obligation shall be valid and enforceable only to•the extent of the CONSULTANT's negligence or the negligence of file CONSULTANT's agents,employees,sub-consultants;subcontractors or vendors,of any tier,or any other persons for whom the CONSULTANT may be legally liable. This provision shall be included in any AGREEMENT between CONSULTANT and any Sub-consultant,subcontractor and vendor,of any tier. The CONSULTANT shall also defend, indemnify,and hold the STATE and the AGENCY and their officers and employees harmless from•all claims,demands,or suits at law or equity arising in whole or impart 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, its 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 irrformation,know-how,copyright rights or inventions resulting from STATE's and/or the AGENCY'S,their agents',officers'and employees"failure to comply with specific written instructions regarding use provided to STATE and/or the AGENCY,,their agents,officers and employees by,the CONSULTANT, its agents,employees, sub-consultants,subcontractors or vendors,of any tier,or any other persons for whom the CONSULTANT may be legally liable. The CONSULTANT's relation to the AGENCY shall be at all times as an independent contractor. Notwithstanding any determination by the Executive Ethics Board or other tribunal,theAGENCY may, in its sole discretion,by written notice to the CONSULTANT terminate this AGREEMENT if it is found after due notice and examination by the AGENCY that there is aviolation of the Ethics in Public Service Act,Chapter 42.52 RCW;or any similar statute involving the CONSULTANT in the procurement of,or performance under, this AGREEMENT. The CONSULTANT specifically assumes potential liability for actions brought by the CONSULTANT's own employees or its agents against the STATE and/or the AGENCY and,solely for the purpose of this indemnification and defense, the.CONSULTANT specifically Waives any immunity under the state industrial insurance law,Title 51 RCW. This waiver has been mutually negotiated by the,Parties. Unless otherwise specified in this AGREEMENT,the AGENCY shall be responsible for adthibistration of construction contracts, if any, on the project.. Subject to the processing of a new solei source,or an acceptable supplemental AGREEMENT, the CONSULTANT shall provide On-Call assistance to the,AGENCY during contract administration. By providing such assistance,the CONSULT ANT shall assume no responsibility for:proper construction techniques,job site safety, or any construction contractor's failure to perform its work in accordance with the contract documents. The CONSULTANT shall obtain and keep In force during the terms of thisAGREEMENT,oras otherwise required, the following insurance with companies or thhougb sources approved by the State Insurance Commissioner pursuant to Title 48 RCW. Agreement Number: I ij^09 (p Local Agency.Professlonat Services JllegotlatedliourlyRate Consultant Agreement Page 9 of 14 Revised 11/01/2017 insurance Coverage A. Worker's compensation and employer%liability insurance as required by the STATE. 13. Commercial general liability insurance written under ISO Forth CG 00 01 12 04 or its equivalent with minimum limits of one million dollars($1,000,000.00)per occurrence and twa million dollars($2,000,000.00)in the aggregate for each polio period. C. Business auto liability insurance written under 1SQ Form CG 00 01 10 01 or equivalent providing coverage for any"Auto"(Symbol 1)used in an amount not less than a one million dollar($1,000,000.00)cotnbined single limit for each occurrence. Excepting the Worker's Compensation Insurance and any Professional Liability Insurance,the STATE and AGENCY,their officers,employees,and,agents will be named on all policies of CONSULTANT and any sub- consultant and/or subcontractor as an additional insured(the"Ars"),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 theAIs shall be excess over,and shall riot 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 Als. The CONSULTANT shall furnish the.AGENCY with verification of insurance and endorsements required by this AGREEMENT. The AGENCY reserves the right to require complete, certified copies of all required insurance policies at any time. All insurance shall.be obtained from an insurance companyyauthorized to do,business in the State of Washington. The CONSULTANT shall submit a verification of insurance as outlined above within fourteen (I4)days of the execution of this AGREEMENT-to: Name: Chris Bainbridge, City Clerk Agency: City of Spokane Valley Address: 10210 E. Sprague Ave. ✓ City: Spokane Valley State: WA Zip: 99206 Email: cbainbridge@spokanevallcy.org Phone; 509-720-5000 Facsimile: 509-720-5075 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 theaccumufative amount of the author'ced AGREEMENT 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 intetirled.or created by the execution of this AGREEMENT'. The AGENCY will pay naprogress payments oder section V"Payment provisions"until theCONSULTANT has fully complied with this section. This remedy is riot exclusive;,and the AGENCY may take such other aotionr as is available to it under other provisions of thisAG,REEMENT,or otherwise in law. Agrceneut Npmber: IS "O4 fD Local Agency.Professional,Ssrvlces Negotiated Hourly Rate Consultant Agreement Page 10 of 14 Revised 11101/2017 XIII. Extra Work A. The AGENCY may at any time, by written order, Make changeswithin the general 'scope of this AGREEMENT in the SERVICES to be performed. B. If any such change causesali 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 ordet,or otherwise affects any other terms and'conditions of this AGREEMENT,the AGENCY shall make an eggitable adjustment in the: (I) maximum amount payable;(2)delivery or completion schedule,orboth;and(3)other affected terms and shall modify thisAGREEMENT accordingly. C. The CONSt1LTANTmust submit any"request for equitable adjustment,"hereafter referred to as"CLAIM," under this clause within thirty (30j days from the date of receipt of the written order. Hdwevet,°if the AGENCY decides that the facts justify it,the AGENCY may receive andact upon a CLAIM submitted before final payment of this AGREEMENT. D. Failure to agree to any adjustment shall be a dispute under the section,XI"Disputes"clause. However,.nothing in this clause shall excuse the CONSULTANT from proceeding with the AGREEMENT as changed. E. Notwithstanding the terms and conditionsof paragraphs(A.)and(B-)above, the maximum amount payable for this AGREEMENT,shall not be increased or considered to be increased except by specific written supplement to this AGREEMENT. XIV. Endorsement of Plans If applicable,the CONSULTANT shall place their endorsement on all plans,estimates,or any other engineering data furnished by them. XV. Federal Review The Federal Highway Administration shall have the right to participate in the review or examination of the SERVICES in progress. XVI. Certification of the Consultant and the AGENCY Attached hereto as Exhibit"G-1(a and b)"are the Certifications of the CONSULTANT and the AGENCY, Exhibit "G-2"Certification Regarding Debarment, Suspension and Other Responsibility Matters- Primary Covered Transactions, Exhibit"0-3"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($100,00.00)and Exhibit"G-4" is•required only in AGREEMENT's over five hundred thousand dollars($500,000.00.)These Exhibits must be executed by the CONSULTANT,and submitted with the master AGREEMENT, and returned to the AGENCY at the address iidted in section 111 "General Requirements"prior to its performance of any SERVICES under this AGREEMENT. XVII. Complete Agreement This document artd,referenced attachments contain all covenants,stipulations,and provisions agreed upon by the parties. No agent,or representativeof either party has authority to make,And the partits steal la not be bound by or be liable for, any statement,representation,promise or agreement not set forth herein. No changes,,atnerrdments, or modifications of the terms hereof shall be valid unless reduced to writing and sighed by the parties as.a supplement to this AGREEMENT Agreement Number: Local Agency Professional Services Negotiated Hourly Rate Consultant Agreement Page 11 of 14 Revised 11/01/2017 XVIII. Execution and Acceptance This AGREEMENT may be simultaneously executed in several counterparts,each Of which shall be deemed to bean original having identical regal effect. The CONSULTANT does hereby ratify and adopt alt statements, representations,warranties,covenants,and AGtfEEMENT's contained in the proposal,and the supporting material submitted by the CONSULTANT,and does hereby-accept this AGREEMENT and agree to all of the terms and tQnditions thereof. XIX. Protection of Confidential Information The CONSULTANT acknowledges that some of the Material and information that may come into its possession or knowledge in connection with this AGREEMENT or its performance may consist of information that is exempt from disclosure to the public or other unaothorited 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 nnrnbers,e-mail addresses,telephone numbers, financial profiles, credit card information,driver's license numbers,medical data, law'enfdreement records(or any other information identifiable to an individual),STATE and AGENCY source code or object code,STATE and AGENCY security data,non-public Specifications,STATE and AGENCY non-publicly available data,proprietary software, STATE and AGENCY security data,or information which may jeopardize any part of the project that relates to any of these types of information. The CONSULTANT agrees to hold the State's Confidential Information in strictest confidence and not to makeuse of the State's Confidential Information for any purpose other than the performance of this AGREEMENT,to release it only to authorized employees,sub-consultants or subcontractors requiring such information for the purposes-of carrying out this AGREEMENT, and not to release,divulge,publish; transfer, sell,disclose,or otherwise make it known'to any other party without the AGENCY's express written consent or as provided by law. The CONSULTANT agrees to release such information or material only to employees, sub-consultants or subcontractors who have signed a nondisclosure AGREEMENT,the terms of which have been previously approved by the AGENCY. The CONSULTANT agrees to implement physical,electronic,and managerial safeguards to prevent unauthorized access to the State's Confidential Information. Immediately Spon expiration or termination of this AGREEMENT, the CONSULTANT shall,at the AGENCY's option:(i.)certify to the AGENCY that the CONSULTANT has destroyed all of the State's Confidential Information; or(ii) returned all of the State's Confidential information to the AGENCY;.or'(iii)take whatever other steps the AGENCY requires of the CONSULTANT to protect the State's Confidential Information. As required under Executive Order 00-03, the CONSULTANT shall maintain a log documenting the following: the State's Confidential Information received in the,performance of this AGREEMENT;the purpose(s) for which the State's Confidential Information was received; who received, maintained and used the State's Confidential Information; and the final disposition of the State's Confidential Information. The CONSULTANT's records shall be subject to inspection, review,or audit upon reasonable notice from the AGENCY. The AGENCY reserves the right to monitor,,audit,yr investigate the use of the State's Confidential Information collected,used,or acquired by the CONSULTANT through this AGREEMENT, The monitoring;auditing,or investigating rhay include,but is not limited to,salting databases. Violation of this section by.the CONSULTANT or its sub-consultants.or subcontractors.may result in termination of this AGREEMENT and demand for return of all State's Confidential Information,monetary damages,or penalties. It is understood and acknowledged that the CONSULTANT may provide theAGENCY'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 Otitis AGREEMENT and afterwards. All materials containing such proprietaryattd/or confidential information shall be clearly identified and marked.as"Confidential"and shall be returned to the disclosing party at the Conclusion of the SERVICES under this AG,REEMENT. Agreement Number: 1 5^0 T6 Local Agency.Professioner,Services Negotiated Hourly Rafe Consultant Agreement Page 12 of 14 Revised f1/01/2017 The CONSULTANT shall provide the AGENCY with a list of all information and materials it considers-confidential and/or proprietary in nature: (a)at the commencement of the term of this AGREEMENT;or(b)as•soon as such confidential or proprietary material is developed.. "Proprietary and/or confidential information" is not meant to include any information which,at the-time of its disclosure: (i)is already (mown to the other party;(ii)is rightfully disclosed to one of the parties by a third party that is not acting As an agent or representative for the other party; (iii)is independentlyc developed by or for the other party;(iv) is publicly known; or.,(v)as generally'utilized'by unaffiliated third parties engaged in the same business Or busine'sses.as the CONSULTANT. The parties also acknowledge that theAGENCY is subject to Washington State and federal public disclosure laws. As such,the AGENCY shall maintain the confidentiality of all such information marked proprietary and/ or confidential or otherwise exempt,unless such disclosure is required under applicable state.er federal law. If a public disclosure request is made to view materials identified es"Proprietary and/or confidential information"or otherwise exempt information,the AGENCY will notify the CONSULTANT of the request and of the date that such records will be released to the requester unless the CONSULTANT obtains a Court order from a court of competent jurisdiction enjoining that disclosure. If the CONSULTANT fails to obtain the court order enjoining disclosure,the AGENCY will release the requested information on the date specified. The CONSULTANT agrees to notify the sub-consultant of any AGENCY communication regarding disclosure that may include a sub-consultant's proprietary and/or Confidential information. The CONSULTANT notification to the sub-consultant wilt include the date that such records will be released by theAGENCY to the requester and state that unless the sub-consultant obtains a court order from a court of competent jurisdiction enjoining that disclosure the AGENCY will release the requested information. If the CONSULTANT and/or sub-consultant fail to obtain a court order or other judicial relief enjoining the AGENCY by the release date,the CONSULTANT shall waive and release and shall hold harmless and indemnify the AGENCY from all claims of actual or alleged damages, liabilities,or costs associated with the AGENCY's said disclosure of sub-consultants'information. XIX. 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 dare of final payment to the CONSULTANT,'the CONSULTANT shall keep, retain and maintain all "documents" pertaining to the SERVICES provided pursuant to this AGREEMENT. CopieS of all"documents" pertaining to the SERVICES provided hereunder shall be made available for review at the CONSULTANT's place of business during normal working hours. lfany litigation,claim or audit is commenced,the CONSULTANT shall cooperate with AGENCY and assist in the production of all such documents. `Documents",shall be retained until all litigation,claims or audit findings have been resolved even though such litigation,claire 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`("ES1"),that is in the possession,control,or custody of the CONSULTANT,including, without lirhitation,.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, logboeks, invoices,accounting records, work sheets,charts, notes,drafts,scribblings, rbcdrdiQgs,visual displays,photographs,minutes of meetings, tabulations,computations,suntmariea, inventories,end 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 whetlieror not the original is in.the possession,custody,or Control of the CONSULTANT,and every copy of any of the.f tregoing,whether or net such copy is a copy identical to an.original, or whethei.pr not such copy contains any commentary ornotatiop whatsoever that does not appear on the original. Agreement Number: I -Okun Local Agency Professional Services Negotiated Hourly Rate Consultant Agreement Pagq 13 of 14 Revised 11/01/2011 For purposes of this AGREEMENT,"ESI"means any and all computer data or electronic recorded media of any kind, including"Native Mee,that are stored iii any medium from which it can be retrieved and examined,either directly or after translation into a reasonably useable form. EST may ilic4ude information and/or documentation stored In various software programs Such as:Eraail,.Oi.ttlook, Word,Excel,Access, Publisher,PowerPoint,Adobe Acrobat,SQL databases,or any othersoftWare or electronic communication programs or databases;that the CONSULTANT may use in the performance of its•operatidus. ESI may be located on network sewers,backup tapes,smart phones,thumb drives, Cps,DVDs,floppy disks, work computers,cell phones,laptops or any other electronic device that CONSULTANT uses in the performance of its Work or SERVICES hereunder, including any personal devices used by the CONSULTANT'or Any sub-consultant at home. "Native files"are a subset of ESZ and refer to the electronic format of the application in,Which such ESI is normally created,viewed,and/or modified. The CONSULTANT shall include this section XX "Records Maintenance"hi every subcontract it miters Into in relation to this AGREEMENT and bind the sub-consultant to its terms,unless expressly agreed to otherwise in writing by the'A"GENCY prior to the execution of such subcontract. In witness whereof, the parties hereto have executed this AGREEMENT as of the day aid year shown in the "Execution Date'box on page tone(I)of this AGRF MENT. 6 /_ //43 Signature Date W/�� C— /s=t 0 Sig tire Date Any modification, change, or reformation of this AGREEMENT shall require approval as tb„brm"by the Office of the Attorney General. Agreement Nurpber: l 6-0,76 Local Agency Professional Services Negotiated Hourly Rate Consultant Agreement Page 94 of 14 Revised 11/01/2017 Exhibit A Scope of Work Project No. Provide Materials Testing Services for the Mission Avenue rmprovenient Project on and Time and Materials negotiated rate basis. • Agreement Number: 1,5- Exhibit A ,--ExhibitA-Local Agency Professional Services Megotlated Hourly Rate Consultant Agreement Revised 1111)1/201T Page 1 of 1 Exhibit B OBE Participation/SBE Plan This contract has a 0%liDBE Goat. Agreement?Number: I o_pet 6 Exhibiti3-Local Aggncy PrbfesslonaJ Serv1Ces Negotiated HowlyRate Con§rlltant Agreement Revised 11/01/2017 Page 1 of 1 Exhibit C Preparation antDelivery 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 file`s fortransmission to the agency.The format and standards to be provided may include,but are not limited to,the following: 1. Surveying,Roadway Design&Plans Preparation Section A. Survey Data NA B. Roadway Design Files NA C. Computer Aided Drafting files NA Agreement Number: l Exhibit C-LbcdrAgency Pro fessionatServices Negotiated tiourlyRate Consultant Agreement Revised 11/01/Zo17 Page 1 of4 D. Specify the Agency/s Right to Review Product with the Consultant `The City of Spokatic Valley bas the Tight to review all test method procedures, test results, test reports and all personnel accreditations for Work done oil under this contract. E. Specify the Electronic Deliverables to Be Provided to the Agency pdfs of all test reports. F. Specify What Agency Furnished SetvicesundIrrforinatiori is to Be Provided City will provide a copy of Contract Provisions and Plans Agreement Ntunber: 13 _0�D Exhibit G-Local Ay chcy,Prbfessionat Setviceg IUegotiatecffiburly Rate Consultant Agreement Revised 11101,12011 Pagel of 4 LT`. Any Other EIectrenicFiles to Be Provides! None I[G Methods to Electronically Exchange'Data Microsoft Outlbok Exhibit B-Local Agency Professional Services Negotiated Hourly Rate Consultant igreement Revised 11101120$7. Page 3 of 4 A. Agency Software Suite Microsoft Office B. Electronic Messaging System Microsoft Outlodk C. File Transfers Format Microsft Office and Adobe Exhibll C-Local Agency Frofesslcnal Services MegotThted Hourly Rate Consultant Attrrement Revised-II/0/2617 Page 4 of 4 Exhibit D Prime Consultant Post Computations Please see attached cost table. Agreement Nunter: n -0q.(p Exhibit D-Local Agency Professional'Services Negotiated Hourly Rate Consultant Agreement Revised 11/01/2017 Page 1 al DOCUMENTS EXEMPT FROM PUBLIC DISCLOSURE The page(s) entitled "Attachment C— Price Proposal" contain(s) confidential cost and rate data and is(are) withheld from public disclosure pursuant to 23 USC 112(2)(E). Prenotification; confidentiality of data. A recipient of funds requesting or using the cost and rate data shall notify any affected firm before such request or use. Such data shall be confidential and shall not be accessible or provided, in whole or in part, to another firm or to any government agency which is not part of the group of agencies sharing cost data under this paragraph, except by written permission of the audited firm. If prohibited by law, such cost and rate data shall not be disclosed under any circumstances. You may petition for a review of our findings pertaining to any redacted or withheld documents pursuant to Spokane Valley Municipal Code (SVMC) 2.75.080; and obtain judicial review pursuant to RCW 42.56.550. Exhibit E Sub-consultant Cost Computations There isn't any sub-consultant participation at this time.The CONSULTANT shall not sub-contract for the performance of any work under this'AGREEMENT without prior written permission of theAGENCY. Refer to section Vf"Sub-Contracting'of this AGREEMENT. • Agreement Number. i $-0Q (a Exhibit E-Local Agency ProfessionalServices Negotiated Hardy Rate Consultant Agreement Revised l il01/2017 Page 1 of 1 Exhibit F Title VI Assurances 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 shall comply with the Regulations relative to non- discrimination in federally assisted programs of the AGENCY,Title 49,Code of Federal Regulations, Part 21,as they may be amended from time to time(hereinafter referred to as the"REGULATIONS"), which are herein incorporated by,reference and made a part of this AGREEMENT. 2. Non-discrimination:The CONSULTANT,with regard to the work perfonnedduring this AGREEMENT, shall not discriminate on the grounds of race,color,sex,or national origin in the selection and retention of sub-consultants, including procurement of tttaterials and leases of equipment.The CONSULTANT shall not participate either directly or indirectly in the discrimination prohibited by Section 21.5 of the REGULATIONS,including employment practices when Ibis AGREEMENT covers a program set forth in Appendix B of the REGULATIONS. 3. Solicitations for Sub-consultants, Including Procurement ofMaterials and Equipment: In all solicitations either by competitive bidding or negotiations nide by the CONSULTANTfor work to be performed under a sub-contract, including procurement of materials or leases of equipment,each potential sub- consultant or supplier shall be notified by the CONSULTANT of the CONSULTANT's obligations under this AGREEMENT and the REGULATIONS relative to non-discrimination on the grounds of race,color, sex,or national origin. 4. information and Reports:The CONSULTANT shall provide all information and reports required by the REGULATIONS or directives issued pursuant thereto,and shall permit access to its books,records, accounts,othersources of information,and its facilities as may be determined by theAGENCY,the STATE,or the Federal Highway Administration(FHWA) to be pertinent to ascertain compliance with such REGULATIONS,orders and instructions. Where any information required of a CONSULTANT is in the exclusive possession of another who fails or refuses to furnish this information,the CONSULTANT shall so certify to the AGENCY,the STATE,or the FHWA as appropriate,and shall set forth what efforts it has made to obtain the information. 5. Sanctions for Non-compliance: In the event of the CONSULTANT's non-compliance with.the non- discrimination provisions of this AGREEMENT,the AGENCY shall impose such AGREEMENT sanctions as it,the STATE,or the FHWA may determine to be appropriate,including, but not limited to: • Withholding of payments to the CONSULTANT under this AGREEMENT until the CONSULTANT complies,and/or; • Cancellation,termination,or suspension of this AGREEMENT, in whole or in part. 6. Incorporation of ProVi$tonS:The CONSULTANT shall include the provisiOns of paragraphs(I)through <5) in every subcontract, including procurement of materials and leases of equipment, unles§exempt by the REGULATIONS,gt directives issued pursuant thereto.The CONSULTANT shall take such action with respect to.any sub-consultant or procurement as-the STATE,the AGENCY,or FHWA may direct as a means ofenfoocing such provisions including sanctions f`br non-compliance. Provided,however,,that in the event a CONSULTANT becomes involved in,or is threatened with, litigation with a sub-consultant or supplier as a,result of such direction,the CON"SULTA1SIT may request the AGENC(enter into such litigation to protect the interests of the STATE and/or the AGENCY and, in addition,the CONSULTANT may request theUpited States enter into such litigation to protect the interests of the.United States. Agreement Number: f 9-oc( Fidtlbi F•LOca!Agency Professional Ssrvieea Negotiated fiburlyRate Consultant Agreement Revised 11/01/2017 Page 1 of 1 Exhibit G Certification Documents Exhibit G-1(a) Certification of Consultant Exhibit 0-1(b) Certification of C1A ( 5v( & � -e V&A Exhibit G-2 Certification RegardinglDebarment,Suspension and tiler Responsibility Matters- Primary Covered Transactions Exhibit-04 - -•• _ _ - . • _ . •: . . .. . Agreement Number: l -01.(p Exhibit G-Local Agency Professional Services Negotiated Hourly Rate Consultant Agreement Revised 11/012017' Page 1,of 1 Exhibit G-1(a) Certification of Consultant I hereby certify that I am theat;ld.duly authori?ed representative of the firm of Allwest Testing and Engineering whose address is 3005 N. Industrial Lane,5th St.,, Spokane Valley, WA 99216 and that neither the above firm nor I havoc a) Employed or retained for a commission,percentage, brokerage,>corntingent fee,or other consideration, any firm or person(other than a bona fide employee working Solely for me or the above-COILTANT) to solicit or secure this AGREEMENT; b) Agreed,as an express or implied condition for obtaining this contract,to employ or retain the services of any firm or persoh in Connection with carrying out this AGREEMENT;or c) Paid,or agreed to pay,to any firm,orkani2atioh or person(other than a bona fide employee working solely for me or the above CONSULTANT)any fee,contribution,donation,or consideration of any kind for, or in connection with,procuring or carrying out this AGREEMENT:except as hereby expressly Stated(if any); 1 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 participatiolt offederal-aid highway funds,and issctbject to applieableState and Federal laws, both criminal and civil. ALLWEST Testing&Engineering,Inc:(ALLWEST) Consultant(Finn Name? 6/5hg Signature,(Auth riaedofficial of Consultant) Date qt Agreement Number: I 5-Off (p Exhibit G-focal Agency Professional Services Negotiated Hourly Rate Consultant Agreement Revised 11101/2017 Page 1 of Exhibit G-1(b) Certification of I hereby certify that I am the: x[ City Manager Q Other of the City of Spokane Valley ,and Allwest Testing and Engineering,Inc. or its representative has not been required,directly or indirectly as an express or implied condition in connection with obtaining or carrying out thisAc IREEMENT to: a) Employ or retain,or agree to employ to retain,any firm or person;or b) Pay,or agree to pay, to any firm,person,or organization,any fee,contribution,donation,or consideration of any kind; except as hereby expressly stated(if any): I acknowledge that this certificate is to be furnished to the and the Federal Highway Administration,U.S. Department of Transportation, in connection with this AGREEMENT involving participation of Federalaaid highway funds,and is subject to applicable State and Federal laws,both criminal and civil. —e.-'fig Sign re Date Agreement Number: I 0-c Q (� Exhibit Q-Local Agency Professional Services Negotiated Hourly Rate Consultant Agreement Revised 11/01/207 Page 1 of 1 Exhibit G-2 Certification Regarding Debarment, Suspension and Other Responsibility Matters . Primary Covered Transactions 1. The prospective primary participant certifies to the best of-its knowledge and belief,that it and its principals: A. Ace not presently debarred,suspended,.proposed for debarment,declared ineligibles 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 comjrlissicfn offraud or a cat-Maar offense In connecti<rt with obtaining, attempting to obtain,or performing public(Federal, State,dr local) transaction or contract under a public transaction;violation of Federal.or State anti-trust statues or commission of embezzlement, theft, forgery,bribery,fal"siAcation.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(l)(b) of this certification;and D. Have not within a three (3)-year period preceding this application/proposal had one or More public transactions(Federal,.State and local)terminated for cause or default. U. Where the prospective primary participant'is unable to certify to any of the statements in this certification, such prospective participant shall attach an ekplanation to this proposal. ALLWEST Testing&Engineering,ine.(ALLWEST) Consultant(Firm Name) ( 6/5// Signature(Authori d Official of Consultant) Date Agreement[dumber. j .64 6 Exhibit G-Local Agency Profest/coral Servlces.Negotlated Hourly Rate ConsultantAgrrement Revised 11/01/201 y Page 1 of 1 Exhibit I Alleged Consultant Design Error Procedures The purpose of this exhibit is to establish a procedure to determine if a consultant's alleged design error is of a nature that exceeds the accepted standard of care.In addition, it will establish a uniform method for the resolution and/or cost recovery procedures in (hose instances wherethe 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 prbeeSs is for the Agency's project manager to notify the Director of-Public Works or Agency Engineer regarding the potential design error(s).For federally('ended projects, the Region Local Programs Engineer should be informed and involved in these procedures.,(Note:The'Director of Public Works or Agency Engineer nay appoint an agency staff personothertharrthe project manager,who has not been as directly involved in the project, to be responsible for the remaining steps in these procedures.) Step 2 Project Manager Documents the Alleged Consultant Design Error(s) After discussion of the alleged design error(s)and the magnitude of the alleged error(s),and with the Director of Public Works or Agency Engineer's concurrence,the project manager obtains more detailed documentation than is normally required on the project. Examples include:all decisions and descriptions of work;photographs,records of labor,materials and equipment. Step 3 Contact the Consultant Regarding the Alleged Design Error(s) If it is determined that there is a need to proceed further,the next step in the process is for the project manager to contact the consultant regarding the alleged design error(s)and the magnitude of the alleged error(s).The project manager and other appropriate agency staff should represent the agency and the consultant should be represented by their project manager And any personnel (including strb.'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 deterrtiined via mutual agreement that a consultant design error(s)occurred. If this is the case, then the Director of''Publ is 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 front the consultant's agreement with the agency for the services,on-the project in which the design error toots place.The agency is to provide LP,throughthe Region Local Prograrps Engineer,a summary of the-settlement for review and to make adjustments, if any,as to how the settlement affects federal reimbursements.No further action is required. • There is not a mutual agreementregarding the alleged consultant design error(s).The consultant may request that the alleged design error(s) issue be forwarded to the Director of Public WorlIs or Agency Engineer for review If the Director of Public Works or Agency Engineer,after review with their legal counsel,is not able to reach mutual agreement with the consultant,proceed to Step . Agreement Number: 19 Exhipit f-Local Agency Professional Services Negotiated Hourly Rate Consultant Agreement Revised 11101/2617 Page 1 of 2 Step 5 Forward Documents to Local Programs For federally Funded projects all available information, including costs,should be forwarded through the Region Local Programs.Engineer to LP for their review and consultation with the FHWA. LP will meet with representatives of the agency and the consultant to-review tie alleged design errof(A),and attempt tb find a resolufigato the issue. if necessary,LP will request assistance from the Attorney General's Office for legal interpretation.LP will also identify bow the alleged error(s)affects eligibility.of project costs for federal reimbursement. • If mutual agreement is reached,the agency and consultant adjust the scope of work and tosts to reflect the agreed upon resolution.LP, in consultation with.FHWA; will identify the a nount of federal participation in the agreed,upgn resolution of the issue. • If mutual agreement is not reached,the agency and consultant may seek settlement by arbitration or by litigation. Agreement Number: I B-09' 6 Exhibit I-focal Agency Professional Services Negotiated Hourly Rate CohsultantAgreement Revised 11/01/2017 Paga 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 onrcnsultant-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.ft is suggested that the Director of Public Works or Agency Engined negotiate a fair and reasonable.price for the ponsultant'-s clairrt(s) that total$1,000 or less. This exhibit will outline the procedures to be followed by the consultant and the agency to consider a potential claim by the consultant. Step 1 Consultant Files a Claim with the Agency Project Manager If the consultant determines that they were requested to perform'additional services that were outside of the agreement's scope of work„they may be entitled to a claim.The,first step that must be completed is the request for,consideration of the claim to the Agency's project manager. The consultant's claim must outline the following: • Summation of hours by classification for each firm that it 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•doilars,overhead costs,profit and reimbursable costs associated with the additional work;and • Explanation as to why the consultant believes the additionat work was outside of the agreement scope of work. Step 2 Review by Agency Personnel Regarding the Consultant's Claim for Additional Compensation After the consultant has completed step I,the text step in the process is to forward the request to the Agency's project manager. Theproject manager will review the consultant's claim and will met with the Director of Public Works or Agency Engineer to determine if the Agency agrees with the claim. If the FHWA is participating in the project's funding, forward a cOpy of the consultant's claim and the Agency's recommendation for federal participation in the claim to the WSDOT Local Programs through the Region Local Programs Engineer. If the claim is not eligible for federal participation,payment will need to be from agency funds. If the Agency project manager,Director of Public Works or Agency Engineer, WSDOTLocal Programs (if applicable'),and FHWA(if applicable)agree with the consultant's clailn4 send a request memo, including backup documentation to the Consultant to either supplement the agreement{or create 4 new agreement far the claim.After the request hes been approved,the Agency shall write the supplement and/or new agreement and pay the consultant theamottnt of the claim. Inform the consultant that the final payment for the agreement is subject to audit,No further action,in needed regarding the claim procedures.. If the Agency does not agree with the consultant's claim, proceed to step 3 of the procedures. Agreement Number: l ,S^Off'/ o Exhibit J-Local Agency Prbfesslonal Services Negotiated Hourly Rate ConsultantAgreementRevfsed 41/b1/2017 Page 1 of 2 Step 3•Preparation of Support Documentation Regarding Consultant's Cfaim(s) If the Agency does not agree with the consultant's claim, the,project manager shall prepare a summary for the Director of Public Works or Agency Engineer that included the following: • Copy of information supplied by the consultant regarding the claim; • Agency's summation of hours by classification for each firm that should be included in the claim; • Any correspondence that directed the consultant to perform the additional work; • Agency's summary of direct labor dollars,overhead costs, profit and reimbursable costs associated with the additional work; • Explanation regarding those areas in which the Agency does/does not agree with the consultant's claim(s); • Explanation to describe what has been instituted to preclude future consultant claim(s);,and • Recommendations to resolve the claim. Step 4 Director of Public Works or Agency Engineer Reviews Cpnstltant Claim and Agency Documentation The Director of Public Works or Agency Engineer shall review and administratively approve or disapprove the claim,or portions thereof,which may include getting Agency Council or Commission approval(as appropriate to agency dispute resolution procedures). If theproject involves federal participation,obtain concurrence from WSDOT Local Programs and l-{WA regarding final settlement of the Clain. If the claim is not eligible for federal participation,payment will need to be from agency funds, Step 5 Informing Consultant of Decision Regarding the Claim The Director of Public Works Or Agency Engineer shall notify (in writing)the consultant of their final decision regarding the consultant's claiot",(s). Include the final dollar amount of the accepted claim(s) and rationale utilized for the decision. Step 6 Preparation of Supplement or New Agreenrent 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 theagreernentis subject to audit. Agreement Number: l g t5‘i (� Exhibit J Local Aggncy Professional Services Negotiated NO*Rate Consultant Agreement Revised 11/01/2017 Page 2 of 2 .�1 ALLWTES-01 PMILLER ACORO' CERTIFICATE OF LIABILITY INSURANCE DATE(MMIDD/YYYY) 401.------- 05/24/2018 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER.THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S),AUTHORIZED REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED,the policy(ies)must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy,certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER CONTACT NAME: Aliiant Insurance Services,Inc. PHONE FAX 818 W Riverside Ave Ste 800 (NC,No,Ext):(509)325-3024 (A/C,No): Spokane,WA 99201 ADDRESS: INSURER(S)AFFORDING COVERAGE NAIC# _ INSURER A:Ohio Security Insurance Company 24082 INSURED INSURER B:American Fire and Casualty Company 24066 Allwest Testing&Engineering Inc. INSURER C: 690 Capstone Ct INSURER D: Hayden,ID 83835 INSURER E: INSURER F: COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR TYPE OF INSURANCE ADDL SUBR POLICY NUMBER POLICY EFF POLICY EXP LIMITS LTR INSD WVD (MMIDDIYYYYI (MM/DD/YYYY► A X COMMERCIAL GENERAL LIABILITY EACH OCCURRENCE _S 1,000,000 S. CLAIMS-MADE X OCCUR X BKS56505694 04/01/2018 04/01/2019 pR MISES(Ea o Irience) S 1,000,000 MED EXP(Any one person) S 15,000 PERSONAL&ADV INJURY S 1,000,000 / GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE S 2,000,000 ,/ POLICY X JEC ri LOC PRODUCTS-COMP/OPAGG S 2,000,000 OTHER: WA STOP GAP s • 1,000,000 B AUTOMOBILE LIABILITY • COMBINED SINGLE LIMIT 1,000,000 (Ea accident) S X ANY AUTO X BAA56505694 04/01/2018 04/01/2019 BODILYINJURY(Perperson) S _ OWNED SCHEDULED AUTOSOONLY _ AUTOS ppBODILY INJURY(Per accident) S _ AUTOS ONLY _ NON-OWNEDOS N (Peri accidentDAMAGE S S UMBRELLA LIAB OCCUR EACH OCCURRENCE S EXCESS LIAB CLAIMS-MADE AGGREGATE S _ DED RETENTION S S A WORKERS COMPENSATION PER OTH- AND EMPLOYERS'LIABILITY STATUTE ER ANY PROPRIETOR/PARTNER/EXECUTIVE YIN BKS56505694 04/01/2018 04/01/2019 EL.EACH ACCIDENT S 1,000,000 OFFICER/MEMBER EXCLUDED? N I A inNH) E.L.DISEASE-EA EMPLOYEES 1,000,000 If yes,describe under 1,000,000 • DESCRIPTION OF OPERATIONS below • E.L.DISEASE-POLICY LIMIT S DESCRIPTION OF OPERATIONS/LOCATIONS I VEHICLES (ACORD 101,Additional Remarks Schedule may be attached If more space Is required) City of Spokane Valley their officers,employees and agens are additional insured under the general liablity for ongoing operations of the named insured as required by written contract,coverage is primary and noncontributory and waiver of subrogation applies. City of Spokane Valley their officers,employees and agens are additional insured under the automobile liability,waiver of subrogation applies. Umbrella follows form. CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE Cityof Spokane ValleyTHE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN P ACCORDANCE WITH THE POLICY PROVISIONS. 11707 East Sprague Avenue,Suite 106 Spokane Valley,WA 99206 . 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