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AG 16-060RETURN TO: ? w EXT: 2, -�-co ID •4-- ri D u 5 CITY OF FEDERAL WAY LAW DEPARTMENT ROUTING FORM 1. ORIGINATING DEPT/DIV: PUBLIC WORKS,/ STRFF.TS 2. ORIGINATING STAFF PERSON: NAVEEN CHANDRA EXT: 2729 3. DATE REQ. BY: RUSH 4. TYPE OF DOCUMENT (CHECK ONE): ❑ CONTRACTOR SELECTION DOCUMENT (E.G., RFB, RFP, RFQ) ❑ PUBLIC WORKS CONTRACT ❑ SMALL OR LIMITED PUBLIC WORKS CONTRACT ❑ PROFESSIONAL SERVICE AGREEMENT ❑ MAINTENANCE AGREEMENT ❑ GOODS AND SERVICE AGREEMENT ❑ HUMAN SERVICES/ CDBG ❑ REAL ESTATE DOCUMENT ❑ SECURITY DOCUMENT (E.G. BOND RELATED DOCUMENTS) ❑ ORDINANCE ❑ RESOLUTION ❑ CONTRACT AMENDMENT (AG#):16 -060 ❑ INTERLOCAL ❑ OTHER SUPPLEMENT # 5 5. PROJECT NAME: CITYWIDE FLASHING YELLOW ARROW RETROFITS PROJECT 6. NAME OF CONTRACTOR: KPG, PS ADDRESS: 3131 ELLIOTT AVENUE # 400 SEATTLE WA 98121 TELEPHONE: 206 -286 -1640 E -MAIL: FAX: SIGNATURE NAME: NELSON DAVIS TITLE: PRINCIPAL 7. EXHIBITS AND ATTACHMENTS: ❑ SCOPE, WORK OR SERVICES ❑ COMPENSATION ❑ INSURANCE REQUIREMENTS /CERTIFICATE ❑ ALL OTHER REFERENCED EXHIBITS ❑ PROOF OF AUTHORITY TO SIGN ❑ REQUIRED LICENSES Cl PRIOR CONTRACT /AMENDMENTS CFW LICENSE #101042 BL, Exp. 12/31/201 UBI #601248468 , EXP. (}5131/201 8. TERM: COMMENCEMENT DATE: APRIL 11, 2016 COMPLETION DATE: JANUARY 31, 2017 9. TOTAL COMPENSATION: UNCHANGED -TIME EXTENSION ONLY /$99,1 76.59 TOTAL (INCLUDE EXPENSES AND SALES TAX, IF ANY) (IF CALCULATED ON HOURLY LABOR CHARGE - ATTACH SCHEDULES OF EMPLOYEES TITLES AND HOLIDAY RATES) REIMBURSABLE EXPENSE: ❑ YES ❑ NO IF YES, MAXIMUM DOLLAR AMOUNT: UNCHANGED/$2,300 TOTAL IS SALES TAX OWED: ❑ YES ❑ NO IF YES, $ PAID BY: ❑ CONTRACTOR ❑ CITY ❑ PURCHASING: PLEASE CHARGE To: 306 - 4400 - 165 - 595 -30 -411 10. DOCUMENT/ CONTRACT REVIEW El PROJECT MANAGER eDIVISION MANAGER Ll'DEPUTY DIRECTOR Er-DIRECTOR ❑ RISK MANAGEMENT (IF APPLICABLE) -LT- LAW DEPT 11. COUNCIL APPROVAL (IF APPLICABLE) COMMITTEE APPROVAL DATE: INITIAL/ DATE APPROVED COUNCIL APPROVAL DATE: 12. CONTRACT SIGNATURE ROUTING SENT TO VENDOR/CONTRACTOR DATE SENT:_ ` 'y� ►I I{ DATE REC'D: ❑ ATTACH: SIGNATURE AUTHORITY, INSURANCE CERTIFICATE, LICENSES, EXHIBITS LAW DEPT ❑ CHIEF OF STAFF SIGNATORY (MAYOR OR DIRECTOR ❑ CITY CLERK ASSIGNED AG # SIGNED COPY RETURNED ❑ RETURN ONE ORIGINAL COMMENTS: PLEASE EXECUTE 112" ORIGINALS INLT -LA L / DATE SIGNED r1Rl MA DATE SENT: /2-24-IU # A a 1115 Project p SUPPLEMENT NO. 1 I CITY OF FEDERAL WAY LOCAL AGENCY STANDARD CONSULTANT AGREEMENT FOR CITYWIDE FLASHING YELLOW ARROW RETROFITS PROJECT CONSTRUCTION MANAGEMENT SERVICES The local agency of the City of Federal Way desires to supplement the agreement entered into with KPG, PS effective the 11th day of April 2016, identified as Agreement No. 16 -060. All provisions in the Agreement remain in effect except as expressly modified by this supplement, "Supplement No. 1." The changes to the Agreement are described as follows: Section IV, Time for Beginning and Completion, shall be amended to extend the completion date to January 31, 2017. Signed this' day of , 2016. KPG, PS. t f , By: _ Nelson, Davis Its: President 3131 Elliott Ave, #400 Seattle, WA 98121 (206) 286 -1640 CITY OF F O RAL WAY By.�� Jim F 11 Its: Mayor 33325 a Ave S Federal Way, WA 98003 (253) 835 -2401 APPROVED S TO Mark Orthmann, Acting City Attorney K: \S'I'R13fs'1'S \PROJE(:'1S \2014 Safety Project \Construction \CN Management \KPG \Supplement 1 \1G -(1<i0 CEYAR- Supplement No Ldocs RETURN TO: 1,4 taie, C EXT: 21 b i CITY OF FEDERAL WAY LAW DEPARTMENT ROUTING FORM 1. ORIGINATING DEPT/DIV: PUBLIC WORKS / t " ' (JON it 2. ORIGINATING STAFF PERSON: Ses'(O, 4. TYPE OF DOCUMENT (CHECK ONE): ❑ CONTRACTOR SELECTION DOCUMENT (E.G., RFB, RFP, RFQ) ❑ PUBLIC WORKS CONTRACT ❑ ❑ PROFESSIONAL SERVICE AGREEMENT ❑ GOODS AND SERVICE AGREEMENT ❑ REAL ESTATE DOCUMENT ❑ ORDINANCE ❑ CONTRACT AMENDMENT (AG #): ❑ INTERLOCAL OC.r..\ Ac�1..YvLA..- i"40TsiSSIo�1A' (.'�G 1 %c.e..tre CLP C) EXT: 2"-% 3. DATE REQ. BY: SMALL OR LIMITED PUBLIC WORKS CONTRACT ❑ MAINTENANCE AGREEMENT ❑ HUMAN SERVICES / CDBG ❑ SECURITY DOCUMENT (E.G. BOND RELATED DOCUMENTS) ❑ RESOLUTION 5. PROJECT NAME: C1 VJ‘..1t. (ACW. tny `pV1 R•Crov. (c v ►kS 6. NAME OF CONTRACTOR: K V) G ADDRESS: IS3 Cf~ P! t1Ayt„ BALI--V1‘ S'tc 4& VS P g t \ TELEP HONE: Z0L.Z.XIL t& 4A E -MAIL: FAX: SIGNATURE NAME: Iitkot" bo tJCt TITLE: Vc tel 7. EXHIBITS AND ATTACHMENTS: ❑ SCOPE, WORK OR SERVICES ❑ COMPENSATION ❑ INSURANCE REQUIREMENTS /CERTIFICATE ❑ ALL OTHER REFERENCED EXHIBITS ❑ PROOF OF AUTHORITY TO SIGN ❑ REQUIRED LICENSES ❑ PRIOR CONTRACT /AMENDMENTS CFW LICENSE #� (OlD1-i2- BL, EXP. 12/31/ t(P UBI # (Q01 2-+ (+1-12 , EXP. 5 /3 1 8. TERM: COMMENCEMENT DATE: k.)9CN1 CS+.4.-C.u■t lOH COMPLETION DATE: 1>QLt111144t/ %% 11A1- 9. T AL COMPENSATION: $ Ciq All' 6 . S (INCLUDE EXPENSES AND SALES TAX, IF ANY) ` (IF CALCULATED ON HOURLY LABOR CHARGE - ATTACH SCHEDULES OF EMPLOYEES TITLES AND HOLIDAY RATES) REIMBURSABLE EXPENSE: (YES ❑ NO IF YES, MAXIMUM DOLLAR AMOUNT: $ 2.1300. 00 IS SALES TAX OWED: ❑ YES ❑ NO IF IF YES, $ PAID BY: ❑ CONTRACTOR ❑ CITY �p' PURCHASING: PLEASE CHARGE TO: W W • 4 1. v0 • • 19 J • ' �/ ,/13 ' O 10. DOCUMENT / CONTRACT REVIEW PROJECT MANAGER DIVISION MANAGER ❑ DEPUTY DIRECTOR X DIRECTOR ❑ RISK MANAGEMENT (IF APPLICABLE) X LAW DEPT 11. COUNCIL APPROVAL (IF APPLICABLE) INITIAL / DAT ' VIEWED INITIAL / DATE APPROVED I t L. Mcv—ZOu 31‘01140 (2.0 5 pi vest) COMMITTEE APPROVAL DATE: 12. CONTRACT SIGNATURE ROUTING ✓�, r ,, 1 JSENT TO VENDOR/CONTRACTOR DATE SENT: ✓��� l ( (❑ ATTACH: SIGNATURE AUTHORITY, INSURANCE CERTIFICATE, LICENSES, EXHIBITS INITIAL / DATE S GN D 41 ( LAW DEPT CHIEF OF STAFF .1(5 .SIGNATORY (MAYOR ORS) ❑ CITY CLERK ASSIGNED AG # SIGNED COPY RETURNED RETURN ONE ORIGINAL COMM EXECU E " 2 dRIGINALS AG# lho - 049,0` '7 DATE SENT: ' -2140 ' 4sT cST �-orIN\ COUNCIL APPROVAL DATE: DATE REC'D: I MO 1oconsvlerst .yv & cAg,"4& 4eirwA.s �►n Ps ib'ks See v&es. 1/15 Local Agency A &E Professional Services Cost Plus Fixed Fee Consultant Agreement Agreement Number: AG 16 - NOD Firm /Organization Legal Name (do not use dba's): KPG, P.S. Address 753 9th Avenue N, Seattle, WA 98109 Federal Aid Number NA UBI Number 601- 248 -468 Federal TIN or SSN Number 91- 1477622 Execution Date ri [ + l N ipt Completion Date December 31, 2016 1099 Form Required Yes No Federal Participation A Yes No Project Title Citywide Flashing Yellow Arrow Retrofits Description of Work Perform Construction Management Services for the Citywide Flashing Yellow Arrow Retrofits Project ili Yes fl No DBE Participation Yes No MBE Participation Yes ® No WBE Participation Ei Yes i, No SBE Participation Total Amount Authorized: $99,176.59 Management Reserve Fund: Maximum Amount Payable: $99,176.59 Index of Exhibits Exhibit A Exhibit 13 Exhibit C Exhibit D Exhibit C Exhibit F Exhibit G Exhibit H Exhibit 1 Exhibit J Scope of Work Participation Preparation and Delivery of Electronic Engineering and Other Data Prime Consultant Cost Computations Title VI Assurances Certification Documents • Alleged Consultant Design Error Procedures Consultant Claim Procedures Agreement Number: AG 16 - ad) Local Agency A &E Professional Services Cost Plus Fixed Fee Consultant Agreement Page 1 of 14 Revised 4/10/2015 THIS AGREEMENT, made and entered into as shown in the "Execution Date" box on page one (1) of this AGREEMENT, between the City of Federal Way hereinafter called the "AGENCY," and the "Firm / Organization Name" referenced on page one (1) of this AGREEMENT, hereinafter called the "CONSULTANT." WHEREAS, the AGENCY desires to accomplish the work referenced in "Description of Work" on page one (1) of this AGREEMENT and hereafter called the "SERVICES;" and does not have sufficient staff to 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 consideration of the terms, conditions, covenants, and performance contained herein, or attached and incorporated and made a part hereof, the parties hereto agree as follows: 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 subcontractors necessary to conduct and complete the SERVICES as designated elsewhere in this AGREEMENT. II. General 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 General Scope of Work was developed utilizing performance based contracting methodologies. III. 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 shall 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 of the SERVICES can easily be evaluated. The CONSULTANT, any sub - consultants, and the AGENCY shall comply with all Federal, State, and local laws, rules, codes, regulations, and all AGENCY policies and directives, applicable to the work to be performed under this AGREEMENT. This AGREEMENT shall be interpreted and construed in accordance with the laws of the State of Washington. Agreement Number: AG 16 - Local Agency A &E Professional Services Cost Plus Fixed Fee Consultant Agreement Page 2 of 14 Revised 4/10/2015 Participation for Disadvantaged Business Enterprises (DBE) or Small Business Enterprises (SBE), if required, per 49 CFR Part 26, shall be shown on the heading of this AGREEMENT. If DBE firms are utilized at the commencement of this AGREEMENT, the amounts authorized to each firm and their certification number will be shown on Exhibit `B" attached hereto and by this 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 the AGENCY's "DBE Program Participation Plan" and perform a minimum of 30% of the total amount of this AGREEMENT. It is recommended, but not required, that non -DBE Prime CONSULTANTS perform a minimum of 30% of the total amount of this AGREEMENT. The CONSULTANT, on a monthly basis, is required to submit DBE Participation of the amounts paid to all DBE firms invoiced for this AGREEMENT. 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 be made in writing and sent to the other party by (i) certified mail, return receipt requested, or (ii) by email or facsimile, to the address set forth below: If to AGENCY: Name: Sarady Long Agency: City of Federal Way Address: 33325 8th Avenue South City: Federal Way State: WA Zip: 98003 Email: sarady .long @cityoffederalway.com Phone: 253.835.2743 Facsimile: 25.835.2709 If to CONSULTANT: Name: Nelson Davis Agency: KPG, P.S. Address: 753 9th Avenue North City: Seattle State: WA Zip: 98109 Email: nelson @kpg.com Phone: 206.267.1052 Facsimile: 206.286.1639 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. All work under this AGREEMENT shall be completed by the date shown in the heading of this AGREEMENT titled "Completion Date." The established completion time shall not be extended because of any delays attributable to the CONSULTANT, but may be extended by the AGENCY in the event of a delay attributable to the AGENCY, or because of unavoidable delays caused by an act of GOD, governmental actions, or other conditions beyond the control of the CONSULTANT. A prior supplemental AGREEMENT issued by the AGENCY is required to extend the established completion time. Agreement Number: AG 16 - O(oO Local Agency A &E Professional Services Cost Plus Fixed Fee Consultant Agreement Page 3 of 14 Revised 4/10/2015 V. Payment Provisions The CONSULTANT shall be paid by the AGENCY for completed SERVICES rendered under this AGREEMENT as provided hereinafter. Such payment shall be full compensation for SERVICES performed or SERVICES rendered and for all labor, materials, supplies, equipment, and incidentals necessary to complete SERVICES, specified in Section II, "Scope of Work ". The CONSULTANT shall conform to all applicable portions of 48 CFR Part 31 (www.ecfr.gov). The estimate in support of the Cost Plus Fixed Fee amount is attached hereto as Exhibits "D" and "E" and by this reference made part of this AGREEMENT. A. Actual Costs: Payment for all consulting services for this PROJECT shall be on the basis of the CONSULTANT'S actual cost plus a fixed fee. The actual cost shall include direct salary cost, indirect cost rate, and direct non -salary costs. 1. Direct (RAW) Labor Costs: The Direct (RAW) Labor Cost is the direct salary paid to principals, professional, technical, and clerical personnel for the time they are productively engaged in work necessary to fulfill the terms of this AGREEMENT. The CONSULTANT shall maintain support data to verify the direct salary costs billed to the AGENCY. 2. Indirect Cost Rate (ICR) Costs: ICR Costs are those costs, other than direct costs, which are included as such on the books of the CONSULTANT in the normal everyday keeping of its books. Progress payments shall be made at the ICR rates shown in attached Exhibits "D" and "E" of this AGREEMENT. Total ICR payment shall be based on Actual Costs. The AGENCY agrees to reimburse the CONSULTANT the actual ICR costs verified by audit, up to the Maximum Total Amount Payable, authorized under this AGREEMENT, when accumulated with all other Actual Costs. A summary of the CONSULTANT'S cost estimate and the ICR percentage is shown in Exhibits "D" and "E ", attached hereto and by this reference made part of this AGREEMENT. The CONSULTANT (prime and all sub- consultants) will submit to the AGENCY within six (6) months after the end of each firm's fiscal year, an ICR schedule in the format required by the AGENCY (cost category, dollar expenditures, etc.) for the purpose of adjusting the ICR rate for billings received and paid during the fiscal year represented by the ICR schedule. It shall also be used for the computation of progress payments during the following year and for retroactively adjusting the previous year's ICR cost to reflect the actual rate. The ICR schedule will be sent to Email: ConsultantRates @wsdot.wa.gov. Failure to supply this information by either the prime CONSULTANT or any of their sub - consultants shall cause the AGENCY to withhold payment of the billed ICR costs until such time as the required information is received and an overhead rate for billing purposes is approved. The AGENCY's Project Manager and/or the Federal Government may perform an audit of the CONSULTANT'S books and records at any time during regular business hours to determine the actual ICR rate, if they so desire. 3. Direct Non -Salary Costs: Direct Non - Salary Costs will be reimbursed at the Actual Cost to the CONSULTANT. These charges may include, but are not limited to, the following items: travel, printing, long distance telephone, supplies, computer charges and fees of sub - consultants. Air or train travel will be reimbursed only to economy class levels unless otherwise approved by the AGENCY. The CONSULTANT shall comply with the rules and regulations regarding travel costs (excluding air, train, and rental car costs) in accordance with WSDOT's Accounting Manual M 13 -82, Chapter 10 — Travel Rules and Procedures, and revisions thereto. Air, train, and rental car 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 Costs shall include an itemized listing of the charges directly identifiable with the PROJECT. The CONSULTANT shall maintain the original 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. Agreement Number: AG 16 - Oki0 Local Agency A &E Professional Services Cost Plus Fixed Fee Consultant Agreement Page 4 of 14 Revised 4/10/2015 4. Fixed Fee: The Fixed Fee, which represents the CONSULTANT'S profit, is shown in attached Exhibits "D" and "E" of this AGREEMENT. This fee is based on the Scope of Work defined in this AGREEMENT and the estimated person -hours required to perform the stated Scope of Work. In the event the CONSULTANT enters into a supplemental AGREEMENT for additional work, the supplemental AGREEMENT may include provisions for the added costs and an appropriate additional fee. The Fixed Fee will be prorated and paid monthly in proportion to the percentage of work completed by the CONSULTANT and reported in the Monthly Progress Reports accompanying the billings. Any portion of the Fixed Fee earned but not previously paid in the progress payments will be covered in the final payment, subject to the provisions of Section IX entitled "Termination of Agreement." 5. Management Reserve Fund (MRF): The AGENCY may desire to establish MRF to provide the Agreement Administrator with the flexibility to authorize additional funds to the AGREEMENT for allowable unforeseen costs, or reimbursing the CONSULTANT for additional work beyond that already defined in this AGREEMENT. Such authorization(s) shall be in writing and shall not exceed the lesser of $100,000 or 10% of the Total Amount Authorized as shown in the heading of this AGREEMENT. The amount included for the MRF is shown in the heading of this AGREEMENT. This fund may not be replenished. Any changes requiring additional costs in excess of the MRF shall be made in accordance with Section XIII, "Changes of Work." 6. Maximum Total Amount Payable: The Maximum Total Amount Payable by the AGENCY to the CONSULTANT under this AGREEMENT shall not exceed the amount shown in the heading of this AGREEMENT. The Maximum Total Amount Payable is comprised of the Total Amount Authorized, and the MRF. The Maximum Total Amount Payable does not include payment for Extra Work as stipulated in Section XIII, "Changes of Work." No minimum amount payable is guaranteed under this AGREEMENT. B. Monthly Progress Payments: The CONSULTANT may submit billings to the AGENCY for reimbursement of Actual Costs plus the ICR and calculated fee on a monthly basis during the progress of the work. Such billings shall be in a format approved by the AGENCY and accompanied by the monthly progress reports required under Section III, "General Requirements" of this AGREEMENT. The billings will be supported by an itemized listing for each item including Direct (RAW) Labor, Direct Non - Salary, and allowable ICR Costs to which will be added the prorated Fixed Fee. To provide a means of verifying the billed Direct (RAW) Labor costs for CONSULTANT employees, the AGENCY may conduct employee interviews. These interviews may consist of recording the names, titles, Direct (RAW) Labor rates, and present duties of those employees performing work on the PROJECT at the time of the interview. C. 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 work under this AGREEMENT, contingent, if applicable, upon receipt of all PS &E, plans, maps, notes, reports, electronic data and other related documents which are required to be furnished under this AGREEMENT. Acceptance of such Final Payment by the CONSULTANT shall constitute a release of all claims 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 its acceptance. 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 a finding by the AGENCY of overpayment. 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. Agreement Number: AG 16 - 0 (9 a Local Agency A &E Professional Services Cost Plus Fixed Fee Consultant Agreement Page 5 of 14 Revised 4/10/2015 D. 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 after receipt of final payment, the cost records and accounts pertaining to this AGREEMENT and all items related to or bearing upon these records with the following exception: if any litigation, claim or audit arising out of, in connection with, or related to this AGREEMENT is initiated before the expiration of the six (6) year period, the cost records and accounts shall be retained until such litigation, claim, or audit involving the records is completed. An interim or post audit may be performed on this AGREEMENT. The audit, if any, will be performed by the State Auditor, WSDOT's Internal Audit Office and/or at the request of the AGENCY's Project Manager. 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. No permission for subcontracting shall create, between the AGENCY and sub - consultant, any contract or any other relationship. Compensation for this sub - consultant SERVICES shall be based on the cost factors shown on Exhibit "E" attached hereto and by this reference made part of this AGREEMENT. The SERVICES of the sub - consultant shall not exceed its maximum amount payable identified in each sub - consultant cost estimate unless a prior written approval has been issued by the AGENCY. All reimbursable direct labor, indirect cost rate, direct non -salary costs and fixed fee costs for the sub - consultant shall be negotiated and substantiated in accordance with section V "Payment Provisions" herein and shall be memorialized in a final written acknowledgement between the parties. All subcontracts shall contain all applicable provisions of this AGREEMENT, and the CONSULTANT shall require each sub - consultant or subcontractor, of any tier, to abide by the terms and conditions of this AGREEMENT. With respect to sub - consultant payment, the CONSULTANT shall comply with all applicable sections of the STATE's Prompt Payment laws as set forth in RCW 39.04.250 and RCW 39.76.011. The 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 shall 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 of this warrant, 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 the 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 arise under any Workmen's Agreement Number: AG 16 - Q(Qb Local Agency ASE Professional Services Cost Plus Fixed Fee Consultant Agreement Page 6 of 14 Revised 4/10/2015 Compensation Act on behalf of said employees or other persons while so engaged, and any and all claims made by a third party as a consequence of any act or omission on the part of the CONSULTANT's employees or other persons while so engaged on any of the work or services provided to be rendered herein, shall be the sole obligation and responsibility of the CONSULTANT. The CONSULTANT shall not engage, on a full- or part-time basis, or other basis, during the period of this AGREEMENT, any professional or technical personnel who are, or 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 of the public employer of such person if he /she will be working on this AGREEMENT for the CONSULTANT. 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 VI of the Civil Rights Act of 1964 • Civil Rights Restoration Act of 1987 (42 U.S.C. Chapter 21 Subchapter V § 2000d (Public Law 100 -259) through 2000d -4a) • American with Disabilities Act of 1990 • Federal -aid Highway Act of 1973 (42 U.S.C. Chapter 126 § 12101 et. seq.) (23 U.S.C. Chapter 3 § 324) • 23 CFR Part 200 • Rehabilitation Act of 1973 • 49 CFR Part 21 (29 U.S.C. Chapter 16 Subchapter V § 794) • 49 CFR Part 26 • Age Discrimination Act of 1975 • RCW 49.60.180 (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 leases 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. In the event this AGREEMENT is terminated by the AGENCY, other than for default on the part of the CONSULTANT, a final payment shall be made to the CONSULTANT for actual hours charged and any appropriate fixed fee percentage 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 for default, the amount to be paid to the CONSULTANT shall be determined by the AGENCY with consideration given to the actual costs incurred by the CONSULTANT in performing SERVICES to the date of termination, the amount of SERVICES originally required which was satisfactorily completed to Agreement Number: AG 16 - Local Agency A &E Professional Services Cost Plus Fixed Fee Consultant Agreement Page 7 of 14 Revised 4/10/2015 date of termination, whether that SERVICE is in a form or a type which is usable to the AGENCY at the time of termination, the cost to the AGENCY of employing another firm to complete the SERVICES required and the time which may be required to do so, and other factors which affect the value to the AGENCY of the SERVICES performed at the time of termination. Under no circumstances shall payment made under this subsection exceed the amount, which would have been made using the formula set forth in paragraph two (2) of this section. If it is determined for any reason that the 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. In such an event, the CONSULTANT would be reimbursed for actual costs and appropriate fixed fee percentage in accordance with the termination for other than default clauses listed previously. The CONSULTANT shall, within 15 days, notify 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's 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 15 days of such sale or transfer occurring. The CONSULTANT shall continue to be obligated to complete the SERVICES under the terms of this AGREEMENT unless the AGENCY chooses to terminate this AGREEMENT for convenience or chooses to renegotiate any term(s) of this AGREEMENT. If termination for convenience occurs, final payment will be made to the CONSULTANT as set forth in the second and third paragraphs of this section. Payment for any part of the SERVICES by the AGENCY shall not constitute a waiver by the AGENCY of any remedies of any type it may have against the CONSULTANT for any breach of this AGREEMENT by the 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 make such revisions as directed by the AGENCY. This work shall be considered as Extra Work and will be paid for as herein provided under section XIII "Extra Work." 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 decision 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 in 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 the AGENCY is located. The parties hereto agree that all questions shall be resolved by application of Washington law and that the parties have the right of appeal from such decisions of the Superior Court in accordance with the laws of the State of Washington. The 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. Agreement Number: AG 16 - Nob Local AgencyA &E Professional Services Cost Plus Fixed Fee Consultant Agreement Page 8 of 14 Revised 4/10/2015 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 AGENCY policies and directives, applicable to the work to be performed under this AGREEMENT. This AGREEMENT shall be interpreted and construed in accordance with the laws of the State of Washington. The CONSULTANT shall defend, indemnify, and hold The State of Washington (STATE) and the AGENCY and their officers and employees harmless from all claims, demands, or suits at law or equity arising in whole or in part from the negligence of, or the breach of any obligation under this AGREEMENT by, the 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; provided that nothing herein shall require a CONSULTANT to defend or indemnify the STATE and the AGENCY and their officers and employees against and hold harmless the STATE and the AGENCY and their officers and employees from claims, demands or suits based solely upon the negligence of, or breach of any obligation under this AGREEMENT by the STATE and the AGENCY, their agents, officers, employees, sub - consultants, subcontractors or vendors, of any tier, or any other persons for whom the STATE and /or the AGENCY may be legally liable; and provided further that if the claims or suits are caused by or result from the concurrent negligence of (a) the 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 AGENCY, their agents, officers, employees, sub - consultants, subcontractors and or vendors, of any tier, or any other persons for whom the STATE and or AGENCY may be legally liable, the defense and indemnity obligation shall be valid and enforceable only to the extent of the CONSULTANT's negligence or the negligence of the CONSULTANT's agents, employees, sub - consultants, subcontractors or vendors, of any tier, or any other persons for whom the 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 taw or equity arising in whole or in part from the alleged patent or copyright infringement or other allegedly improper appropriation or use of trade secrets, patents, proprietary information, know -how, copyright rights or inventions by the CONSULTANT or the CONSULTANT's agents, employees, sub - consultants, subcontractors or vendors, of any tier, or any other persons for whom the CONSULTANT may be legally liable, in performance of the Work under this AGREEMENT or arising out of any use in connection with the AGREEMENT of methods, processes, designs, information or other items furnished or communicated to STATE and /or the AGENCY, their agents, officers and employees pursuant to the AGREEMENT; provided that this indemnity shall not apply to any alleged patent or copyright infringement or other allegedly improper appropriation or use of trade secrets, patents, proprietary information, know -how, copyright rights or inventions resulting from STATE and /or AGENCY's, their agents', officers' and employees' failure to comply with specific written instructions regarding use provided to STATE and /or 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, the AGENCY 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 a violation 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 between the Parties. Agreement Number: AG 16 - (� Local Agency A &E Professional Services Cost Plus Fixed Fee Consultant Agreement Page 9 of 14 Revised 4/10/2015 Unless otherwise specified in this AGREEMENT, the AGENCY shall be responsible for administration of construction contracts, if any, on the project. Subject to the processing of a new sole source, or an acceptable supplemental AGREEMENT, the CONSULTANT shall provide On -Call assistance to the AGENCY during contract administration. By providing such assistance, the CONSULTANT 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 this AGREEMENT, or as otherwise required, the following insurance with companies or through sources approved by the State Insurance Commissioner pursuant to Title 48 RCW. Insurance Coverage A. Worker's compensation and employer's liability insurance as required by the STATE. B. Commercial general liability insurance written under ISO Form CG 00 01 12 04 or its equivalent with minimum limits of one million dollars ($1,000,000.00) per occurrence and two million dollars ($2,000,000.00) in the aggregate for each policy period. C. Business auto liability insurance written under ISO Form CG 00 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) combined single limit for each occurrence. Excepting the Worker's Compensation Insurance and any Professional Liability Insurance, the STATE and AGENCY, their officers, employees, and agents will be named on all policies of CONSULTANT and any sub - consultant and /or subcontractor as an additional insured (the "AIs "), with no restrictions or limitations concerning products and completed operations coverage. This coverage shall be primary coverage and non - contributory and any coverage maintained by the AIs shall be excess over, and shall not contribute with, the additional insured coverage required hereunder. The CONSULTANT's and the sub - consultant's and /or subcontractor's insurer shall waive any and all rights of subrogation against the AIs. The 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 company authorized to do business in the State of Washington. The CONSULTANT shall submit a verification of insurance as outlined above within fourteen (14) days of the execution of this AGREEMENT to: Name: Sarady Long Agency: City of Federal Way Address: 33325 8th Avenue South City: Federal Way State: WA Zip: 98003 Email: sarady.long @cityoffederalway.com Phone: 253.835.2743 Facsimile: 253.835.2709 No cancellation of the foregoing policies shall be effective without thirty (30) days prior notice to the AGENCY. The CONSULTANT's professional liability to the AGENCY, including that which may arise in reference to section IX "Termination of Agreement" of this AGREEMENT, shall be limited to the accumulative amount of the authorized AGREEMENT amount or one million dollars ($1,000,000.00), whichever is greater, unless the limit of liability is increased by the AGENCY pursuant to Exhibit H. In no case shall the CONSULTANT's professional liability to third parties be limited in any way. Agreement Number: AG 16 - Q(oO Local Agency A &E Professional Services Cost Plus Fixed Fee Consultant Agreement Page 10 of 14 Revised 4/10/2015 The parties enter into this AGREEMENT for the sole benefit of the parties, and to the exclusion of any third party, and no third party beneficiary is intended or created by the execution of this AGREEMENT. The AGENCY will pay no progress payments under section V "Payment Provisions" until the CONSULTANT has fully complied with this section. This remedy is not exclusive; and the AGENCY may take such other action as is available to it under other provisions of this AGREEMENT, or otherwise in law. XIII. Extra Work A. The AGENCY may at any time, by written order, make changes within the general scope of this AGREEMENT in the SERVICES to be performed. B. If any such change causes an increase or decrease in the estimated cost of, or the time required for, performance of any part of the SERVICES under this AGREEMENT, whether or not changed by the order, or otherwise affects any other terms and conditions of this AGREEMENT, the AGENCY shall make an equitable adjustment in the: (1) maximum amount payable; (2) delivery or completion schedule, or both; and (3) other affected terms and shall modify this AGREEMENT accordingly. C. The CONSULTANT must submit any "request for equitable adjustment," hereafter referred to as "CLAIM," under this clause within thirty (30) days from the date of receipt of the written order. However, if the AGENCY decides that the facts justify it, the AGENCY may receive and act upon a CLAIM submitted before final payment of this AGREEMENT. D. Failure to agree to any adjustment shall be a dispute under the section XI "Disputes" clause. However, nothing in this clause shall excuse the CONSULTANT from proceeding with the AGREEMENT as changed. E. Notwithstanding the terms and conditions of paragraphs (A.) and (B.) above, the maximum amount payable for this AGREEMENT, shall not be increased or considered to be increased except by specific written supplement to 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 "G -3" Certification Regarding the Restrictions of the Use of Federal Funds for Lobbying and Exhibit "G -4" Certificate of Current Cost or Pricing Data. Exhibit "G -3" is required only in AGREEMENT's over one hundred thousand dollars ($100,000.00) and Exhibit "G -4" is required only in AGREEMENT's over five hundred thousand dollars ($500,000.00.) These Exhibits must be executed by the CONSULTANT, and submitted with the master AGREEMENT, and returned to the AGENCY at the address listed in section III "General Requirements" prior to its performance of any SERVICES under this AGREEMENT. Agreement Number: AG 16 - 0( b Local Agency A &E Professional Services Cost Plus Fixed Fee Consultant Agreement Page 11 of 14 Revised 4/10/2015 XVII. Complete Agreement This document and referenced attachments contain all covenants, stipulations, and provisions agreed upon by the parties. No agent, or representative of either party has authority to make, and the parties shall not be bound by or be liable for, any statement, representation, promise or agreement not set forth herein. No changes, amendments, or modifications of the terms hereof shall be valid unless reduced to writing and signed by the parties as a supplement to this AGREEMENT. XVIII. Execution and Acceptance This AGREEMENT may be simultaneously executed in several counterparts, each of which shall be deemed to be an original having identical legal effect. The CONSULTANT does hereby ratify and adopt all statements, representations, warranties, covenants, and AGREEMENT's contained in the proposal, and the supporting material submitted by the CONSULTANT, and does hereby accept this AGREEMENT and agrees to all of the terms and conditions 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 unauthorized persons under either chapter 42.56 RCW or other local, state or federal statutes ( "State's Confidential Information "). The "State's Confidential Information" includes, but is not limited to, names, addresses, Social Security numbers, e-mail addresses, telephone numbers, financial profiles, credit card information, driver's license numbers, medical data, law enforcement records (or any other information identifiable to an individual), STATE and AGENCY source code or object code, STATE and AGENCY security data, non - public Specifications, STATE and AGENCY non - publicly available data, proprietary software, State security data, or information which may jeopardize any part of the project that relates to any of these types of information. The CONSULTANT agrees to hold the State's Confidential Information in strictest confidence and not to make use of the State's Confidential Information for any purpose other than the performance of this 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 upon 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, or investigate the use of the State's Confidential Information collected, used, or acquired by the CONSULTANT through this AGREEMENT. The monitoring, auditing, or investigating may include, but is not limited to, salting databases. Agreement Number: AG 16 - typo Local Agency A &E Professional Services Cost Plus Fixed Fee Consultant Agreement Page 12 of 14 Revised 4/10/2015 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 the AGENCY with information which is proprietary and /or confidential during the term of this AGREEMENT. The parties agree to maintain the confidentiality of such information during the term of this AGREEMENT and afterwards. All materials containing such proprietary and /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 AGREEMENT. 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 known to the other party; (ii) is rightfully disclosed to one of the parties by a third party that is not acting as an agent or representative for the other party; (iii) is independently developed by or for the other party; (iv) is publicly known; or (v) is generally utilized by unaffiliated third parties engaged in the same business or businesses as the CONSULTANT. The parties also acknowledge that the AGENCY is subject to Washington State and federal public disclosure laws. As such, the AGENCY shall maintain the confidentiality of all such information marked proprietary and/ or confidential or otherwise exempt, unless such disclosure is required under applicable state or federal law. If a public disclosure request is made to view materials identified as "Proprietary and/or confidential information" or otherwise exempt information, the AGENCY will 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 will include the date that such records will be released by the AGENCY to the requester and state that unless the sub - consultant obtains a court order from a court of competent jurisdiction enjoining that disclosure the AGENCY will release the requested information. If the 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. XX. Records Maintenance During the progress of the Work and SERVICES provided hereunder and for a period of not less than six (6) years from the date of final payment to the 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. If any 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, claim or audit continues past the six (6) year retention period. For purposes of this AGREEMENT, "documents" means every writing or record of every type and description, including electronically stored information ( "ESI "), that is in the possession, control, or custody of the CONSULTANT, including, without limitation, any and all correspondences, contracts, AGREEMENT `s, appraisals, plans, designs, data, surveys, maps, spreadsheets, memoranda, stenographic or handwritten notes, reports, records, telegrams, schedules, diaries, notebooks, logbooks, invoices, accounting records, work sheets, charts, notes, drafts, scribblings, recordings, visual displays, photographs, minutes of meetings, Agreement Number: AG 16 - pub Local Agency A&E Professional Services Cost Plus Fixed Fee Consultant Agreement Page 13 of 14 Revised 4/10/2015 tabulations, computations, summaries, inventories, and writings regarding conferences, conversations or telephone conversations, and any and all other taped, recorded, written, printed or typed matters of any kind or description; every copy of the foregoing whether or not the original is in the possession, custody, or control of the CONSULTANT, and every copy of any of the foregoing, whether or not such copy is a copy identical to an original, or whether or not such copy contains any commentary or notation whatsoever that does not appear on the original. For purposes of this AGREEMENT, "ESI" means any and all computer data or electronic recorded media of any kind, including "Native Files ", that are stored in any medium from which it can be retrieved and examined, either directly or after translation into a reasonably useable form. ESI may include information and/or documentation stored in various software programs such as: Email, Outlook, Word, Excel, Access, Publisher, PowerPoint, Adobe Acrobat, SQL databases, or any other software or electronic communication programs or databases that the CONSULTANT may use in the performance of its operations. ESI may be located on network servers, backup tapes, smart phones, thumb drives, CDs, 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 ESI 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" in every subcontract it enters into in relation to this AGREEMENT and bind the sub - consultant to its terms, unless expressly agreed to otherwise in writing by the AGENCY prior to the execution of such subcontract. In witness whereof, the parties hereto have executed this AGREEMENT as of the day and year shown in the "Execution Date" box on page one (1) of this AGREEMENT. r Signature Nelson Davis, PE Jim Ferrell, Mayor City of Federal Way Approved As to Form -5'12 -L1c .i1).(Amy Jo Pearsall, City Attorney -L (-to( (, Date ///& Date Agreement Number: AG 16 - Q(p0 Local Agency A &E Professional Services Cost Plus Fixed Fee Consultant Agreement Page 14 of 14 Revised 4/10/2015 Exhibit A Scope of Work Project No. Agreement Number: AG 16 - O(QQ WSDOT Form 140 -089 EF Exhibit A Page 1 of 1 Revised 10/30/2014 EXHIBIT A Construction Management Services Scope of Work March 1, 2016 City of Federal Way Citywide Flashing Yellow Arrow Retrofits Project Federal Aid Number: HSIP -000S (409) This work will provide construction management services for the Citywide Flashing Yellow Arrow Retrofits project, which includes installation and or replacement of traffic signal heads, flashing yellow arrow signal heads, wiring, signal equipment upgrades, and signage at the intersections below and as shown in the Plans. The contractor for the project is Valley Electric Co. of Mount Vernon. There is a 12% DBE goal for this project. • 11th Ave S at S 324th Street • 20th Ave 5 at 5 336th Street • SW Campus Drive at WinCo Driveway • 32nd Ave 5 at 5 320th Street • 20th Ave S and S 316th Street • 215t Ave SW and SW 344th Street • 18th Ave 5 at S 288th Street • 23rd Ave S at S 317th Street • 20th Ave S at 5 314th Street • 26th Ave SW at SW 320th Street • 16th Ave 5 at SR 509 (S Dash Point Rd) • 23rd Ave S at 5 322nd Street • 23`d Ave 5 at S 314th Street • 215t Ave SW at SW 325th Street • 21st Ave SW at SW 334th Street • 9th Ave S at S 348th Street (N -S) • 16th Ave S at S 344th Street (E -W) • SR 161 SB at SR 18 (Overhead Lane Use Control Signs) • SR 18 EB at SR 161 (Overhead lane Use Control Signs) City of Federal Way Citywide Flashing Yellow Arrow Retrofits Project Construction Management Services Scope of Work Page 1 of 8 KPG Project Number 16029 3/1/2016 EXHIBIT A A detailed scope for the Contract follows: I. INTRODUCTION The following scope of services and associated costs are based upon the assumptions outlined below. General Assumptions: • The CONSULTANT will include one full -time inspector which includes 7 hours of inspection time a day plus one hour for paperwork, and a full -time documentation specialist at 8 hours a day. There will be no materials testing provided. • The CONSULTANT'S level of service is based on project duration of approximately 60 working days of construction. A material procurement suspension is anticipated following the Notice to Proceed. • WSDOT will prepare the Record of Materials (ROM) and the CONSULTANT will update, manage, and deliver a completed ROM. • The AGENCY will review and execute the insurance, bonds, and the Construction Contract. • All Community Outreach will be completed by the AGENCY. • The CONSULTANT will review RAM's, shop drawings, and answer RFI's. These services will be performed in accordance with the Contract Plans & Special Provisions, WSDOT Local Agency Guidelines (LAG), the WSDOT Construction Manual, and AGENCY of Federal Way engineering standards. • Relocation of franchised utilities is not anticipated. If needed, franchised utilities will provide field inspection for all work surrounding the construction or relocation of their utility systems. The CONSLUTANT will coordinate franchise utility inspection. City of Federal Way Citywide Flashing Yellow Arrow Retrofits Project Construction Management Services Scope of Work Page 2 of 8 KPG Project Number 16029 3/1/2016 EXHIBIT A II. SCOPE OF WORK The objective and purpose of this Construction Management Services Agreement is for the CONSULTANT to successfully deliver the construction of the Project to the AGENCY by ensuring that the improvements are constructed in accordance with the approved Plans and Specifications, as may be amended or revised, that all of the required Project documentation is accounted for, and ultimately that the AGENCY receives a successful review by WSDOT Local Programs at the end of the Project. At the end of the project, the CONSULTANT will provide to the AGENCY all construction phase documentation in indexed three ring binders. TASK 1— ADMINISTRATION Provide monthly invoicing reports. This effort will include the following elements. • Review monthly expenditures and Construction Management (CM) team scope activities. Prepare and submit project progress letters to the AGENCY along with invoices describing CM services provided each month. Prepare and submit reporting required by funding source(s), if any. Deliverables • Monthly invoices TASK 2 — PRECONSTRUCTION SERVICES 2.1 Pre - Construction Conference: The CONSULTANT will prepare an agenda for, distribute notices of, and conduct a Pre - Construction Conference in the AGENCY's offices. The CONSULTANT's design engineer, inspector, and document control specialist will attend the Pre - construction Conference. The CONSULTANT will prepare a written record of the meeting and distribute copies of the notes to all attendees and affected agencies, staff, etc. At the Pre - Construction Conference, the CONSULTANT shall facilitate discussions with the contractor concerning the plans, specifications, schedules, franchise utilities, unusual conditions, Federal, State, and local requirements, and any other items that will result in better project understanding among the parties involved and meet the Federal Funding requirements. Deliverables • Pre - Construction Conference agenda with meeting minutes City of Federal Way Citywide Flashing Yellow Arrow Retrofits Project Construction Management Services Scope of Work Page 3 of 8 KPG Project Number 16029 3/1/2016 EXHIBIT A TASK 3 — CONSTRUCTION SERVICES - FIELD 3.1 Inspection - The CONSULTANT shall provide the services of one (1) full -time inspector during construction activities. CONSULTANT staff shall oversee the work on the project site, and will observe the technical progress of the construction, including providing day -to -day contact with the contractor and the AGENCY. The CONSULTANT's field inspection staff will perform the following duties as a matter of their daily activities: i. Observe technical conduct of the construction, including providing day -to -day contact with construction contractor, AGENCY, utilities, and other stakeholders, and monitor for adherence to the Contract Documents. The CONSULTANT's personnel will act in accordance with Sections 1 -05.1 and 1 -05.2 of the Standard Specifications. ii. Inspect material, workmanship, and construction areas for compliance with the Contract Documents and applicable codes, and notify construction contractor of noncompliance. iii. Document all material delivered to the job site in accordance with the LAG Manual. iv. Prepare daily inspection reports, recording the construction contractor's operations as actually observed by the CONSULTANT; includes quantities of work placed that day, contractor's equipment and crews, and other pertinent information. All daily inspection reports will adhere to WSDOT Local Agency Guidelines. v. Prepare field note records and documents (work performed, quantities placed, and material acceptance methods) to help assure the Project is administered in accordance with funding agency requirements. The Utilities will provide measurement and payment information to the CONSULTANT for development of monthly pay estimates. vi. Perform on site DBE Reviews per WSDOT LAG Manual and submit to WSDOT Highways and Local Programs. vii. Attend and actively participate in regular weekly construction meetings. viii. Take periodic digital photographs during the course of construction, and record locations. ix. Coordinate with the AGENCY's traffic operations and maintenance personnel. x. Monitor the contractor's temporary traffic control operations for compliance with the Contract Documents and AGENCY Standards. xi. Punch List: Upon substantial completion of work, the CONSULTANT shall coordinate with the contractor and affected agencies, to prepare a 'punch list' of items to be completed or corrected. Coordinate final inspection with those agencies. Assumptions • CONSULTANT will provide observation services for 7 hours a day that the contractor's personnel are on -site. The Inspector's work schedule will be approved by the AGENCY. • The CONSULTANT's monitoring of the construction contractor's activities is to ascertain whether or not they are performing the work in accordance with the Contract Documents; in case of noncompliance, CONSULTANT will reject non - conforming work, and pursue remedies in the interests of the AGENCY, as detailed in the Contract Documents. The City of Federal Way Citywide Flashing Yellow Arrow Retrofits Project Construction Management Services Scope of Work Page 4 of 8 KPG Project Number 16029 3/1/2016 EXHIBIT A CONSULTANT cannot guarantee the construction contractor's performance, and it is understood that CONSULTANT shall assume no responsibility for: proper construction means, methods, techniques; project site safety, safety precautions or programs; or for the failure of any other entity to perform its work in accordance with laws, contracts, regulations, or AGENCY's expectations. AGENCY 3.2 Substantial Completion: Upon substantial completion of work, coordinate with the AGENCY and Other affected agencies, to perform a project inspection and develop a comprehensive list of deficiencies or 'punch list' of items to be completed. A punch list and Certificate of Substantial Completion will be prepared by the CONSULTANT and issued by the AGENCY. Deliverables • Daily Construction Reports with project photos — submitted on a daily basis • Punch List, Certificate of Substantial Completion City of Federal Way Citywide Flashing Yellow Arrow Retrofits Project Construction Management Services Scope of Work Page 5 of 8 KPG Project Number 16029 3/1/2016 EXHIBIT A AGENCYAGENCYTASK 4 — CONSTRUCTION SERVICES — OFFICE 4.1 Document Control. Original documentation will be housed at the CONSULTANT's office, and filed in accordance with standard filing protocol to meet WSDOT Local Program Requirements. Document Control also consists of preparing Final Project Reports for the AGENCY for WSDOT and FHWA acceptance and includes: • Final Estimate (Approving Authority File) • Comparison of Preliminary and Final Quantities (Approving Authority File) • Final Records as identified in WSDOT LAG (Approving Authority File) • Record of Material (Samples and Tests) • Materials Certification • Affidavit of Wages Paid and Certified Payrolls • Release for the Protection of Property Owners and General Contractor • All project related correspondence 4.2 Weekly Meetings: Attend weekly meetings, including preparation of agenda, meeting notes, and distribution of notes to attendees. Outstanding issues to be tracked on a weekly basis. 12 meetings assumed. 4.3 Initial Schedule Review: Perform detailed schedule review of contractor provided CPM for conformance with the contract documents. 4.4 Lump Sum Breakdown: Evaluate construction contractors' Schedule of Values for lump sum items. Review the Contract Price allocations and verify that such allocations are made in accordance with the requirements of the Contract Documents. Lump Sum Breakdowns for payment each month will be calculated with detailed data per WSDOT LAG Requirements. 4.5 Monthly Pay Requests: Prepare monthly requests for payment, review with the AGENCY, contractor and approve as permitted. Utilize AGENCY provided format for pay estimates, or CONSULTANT format. Three estimates assumed. 4.6 Certified Payroll: Process and track all certified payroll per WSDOT Highways & Local Program Requirements. This includes verifying the initial payroll for compliance and 10% of all payrolls submitted thereafter. Tracking payroll each week. Payroll and payroll logs will adhere to WSDOT LAG requirements. 4.7 Wage Rate Interviews: Perform wage rate interviews with both the General Contractor and subcontractors. 4.8 Weekly Statement of Working Days: Prepare and issue weekly statement of working day report each week. 4.9 WSDOT & FHWA Reporting: Prepare and track all necessary reports per WSDOT Highways & Local Program Requirements. One informal meeting (non- audit) with the AGENCY to transfer project document files for AGENCY staff to become familiar with files in the event that WSDOT Highways and Local Programs staff request to review project documentation status. City of Federal Way Citywide Flashing Yellow Arrow Retrofits Project Construction Management Services Scope of Work Page 6 of 8 KPG Project Number 16029 3/1/2016 EXHIBIT A 4.10 Subcontractor Documentation: Process / approve all required subcontractor documentation per WSDOT Highways & Local Program Requirements. Request to Sublets will be verified and logged. Certification for Federal Aid will be obtained from all subcontractors. This includes checking System Award Management System (SAMS), verifying OM /WBE, verifying business licensing, reviewing insurance documentation, verifying AGENCY business licensing, Intent to Pay Prevailing Wage and Affidavit of Wages Paid. All subcontractor documentation will be logged into WSDOT's subcontractor logs. 4.11 DBE Requirements: Prepare and track all DBE work on a monthly basis, perform DBE and wage rate interviews, obtain Quarterly DBE Reports from the contractor and send over to WSDOT Highways and Local Programs. 4.12 Audit Oversight: Provide limited assistance as necessary to answer questions in the event that the AGENCY is audited by WSDOT Local Programs and others. 4.13 Physical Completion Letter: Following completion of all punch list work, prepare physical completion letter to the contractor and WSDOT, and recommend that AGENCY and /or Utilities accept the project. 4.14 Project Closeout: Transfer all project documents to the AGENCY for permanent storage. • Meeting agendas and notes • Monthly Pay Estimates • WSDOT Reporting • Subcontractor Packets • Physical Completion Letter • Final Project Documents TASK 5 — SUBMITTAL /RFI PROCESSING 5.1. Submittals: Perform review of Submittals 5.2 Request for Information (RFI): Perform review of RFI's and materials substitute requested by contractor and provide recommendation for approval or rejection. Assume 5 RFI's. 5.3 Record of Materials (ROM): The CONSULTANT will prepare and update the ROM based on the Special Provisions and Plans for use on the project per the contract specifications and WSDOT /LAG requirements. Maintain the ROM according to WSDOT Local Programs Requirements. The ROM will track all of the materials delivered to the site including manufacturer /supplier, approved RAM's, QPL items, material compliance documentation, and all other required documentation. Deliverables • Completed Record of Material for Material Certification City of Federal Way Citywide Flashing Yellow Arrow Retrofits Project Construction Management Services Scope of Work Page 7 of 8 KPG Project Number 16029 3/1/2016 EXHIBIT A TASK 6 — CHANGE MANAGEMENT 6.1 Change Orders and Minor Change: The CONSULTANT will develop change orders and minor change per AGENCY of Federal and WSDOT Local Programs Guidelines, provide technical assistance to negotiate change orders, and assist in resolution of disputes which may occur during the course of the project. 6.2 Field Work Directives: The CONSULTANT will prepare field work directives as necessary to keep the contractor on schedule. 6.3 Force Account: The CONSULTANT will track the contractor's force account labor, equipment and materials and provide payment according to WSDOT requirements. All force account calculations will be verified by the CONSULTANT's Resident Engineer and double checked by the documentation specialist per WSDOT LAG Manual. Deliverables • Change Order(s) • Force Account Records TASK 7 — MANAGEMENT RESERVE Additional services requested by the AGENCY, will be performed only when authorized by the AGENCY. Authorization to perform additional services will be in writing, specifying the work to be performed, and basis of payment. No additional cost for Management Reserve for the Project have been included in this scope of work. Items such as Community Outreach, Public Meetings, Ribbon Cutting Ceremony, claims analysis, surveying, and audits, are examples of possible additional services. At the time these services are required, the CONSULTANT shall provide a detailed scope of work and an estimate of costs. The CONSULTANT shall not proceed with the work until the AGENCY has authorized the work and issued a notice to proceed. City of Federal Way Citywide Flashing Yellow Arrow Retrofits Project Construction Management Services Scope of Work Page 8 of 8 KPG Project Number 16029 3/1/2016 Exhibit C Preparation and Delivery of Electronic Engineering and Other Data In this Exhibit the agency, as applicable, is to provide a description of the format and standards the consultant is to use in preparing electronic files for transmission to the agency. The format and standards to be provided may include, but are not limited to, the following: I. Surveying, Roadway Design & Plans Preparation Section A. Survey Data AutoCAD Civil 3D- Standards B. Roadway Design Files AutoCAD Civil 3D -KPG Standards C. Computer Aided Drafting Files AutoCAD Civil 3D -KPG Standards Agreement Number: AG 16 - Q(� WSDOT Form 140 -089 EF Exhibit C Page 1 of 4 Revised 10/30/2014 D. Specify the Agency's Right to Review Product with the Consultant E. Specify the Electronic Deliverables to Be Provided to the Agency F. Specify What Agency Furnished Services and Information Is to Be Provided Agreement Number: AG 16 - �(�� WSDOT Form 140 -089 EF Exhibit C Page 2 of 4 Revised 10/30/2014 II. Any Other Electronic Files to Be Provided III. Methods to Electronically Exchange Data Via email or FTP site- .DWG, .xls, .docx, .pdf as request WSDOT Form 140 -089 EF Exhibit C Page 3 of 4 Revised 10/30/2014 A. Agency Software Suite Microsoft Office, AutoCAD B. Electronic Messaging System Outlook C. File Transfers Format As request WSDOT Form 140 -089 EF Exhibit C Page 4 of 4 Revised 10/30/2014 Exhibit D Prime Consultant Cost Computations Agreement Number: AG 16 - 000 WSDOT Form 140 -089 EF Exhibit D Page 1 of 1 Revised 10/30/2014 Project Name: Consultant: COST PLUS FIXED FEE Exhibit D Consultant Fee Determination City of Federal Way Citywide Flashing Yellow Arrow Retrofits Construction Management Services KPG, P.S. Classification Project Manager / Resident Engineer Project Engineer Construction Inspector Document Specialist Office Admin Total Direct Salary Cost (DSC) Overhead (131.49% x DSC) Fixed Fee (30% x DSC) Hours Rate 130 $ 57.69 $ 16 $ 38.58 $ 484 $ 37.86 $ 363 $ 28.85 $ 5 $ 29.81 $ 998 Cost 7,500 617 18,324 10,473 134 $37,047.92 $48,714.30 $11,114.37 Subtotal: $96,876.59 REIMBURSABLES Construction Vehicle (12 weeks @ $150 /wk) Miscellaneous - Mileage, Reprographics $1,800 $500 Subtotal: $2,300 TOTAL $99,176.59 HOUR AND FEE ESTIMATE Project: City of Federal Way Citywide Flashing Yellow Arrow Retrofits Project Construction Services RFB # 15 -014, HSIP - 000S(409) March 2, 2016 EXHIBIT D KPG Interdisciplinary Design Direct Salary Cost (DSC) Task Description Billing Rate Labor Hour Estimate Total Budget Project Manager/ Resident Engineer Project Engineer Document. Specialist Const. Inspector Admin $ 57.69 $ 38.58 $ 28.85 $ 37.86 $ 29.81 $ 150.85 $ 100.88 $ 75.44 $ 99.00 $ 77.95 1 - Project Administration (Estimated duration 3 months) 1.1 Monthly Invoice Report 0 0 0 0 1.5 $ 75.44 Task Budget Estimate 0 0 0 0 4.5 $ 350.78 2 - Preconstruction Services (Estimated duration 2 weeks) 2.1 Pre - construction Conference 4 4 15 4 0 Task Budget Estimate 4 4 15 4 0 $ 2,534.54 3 - Construction Services - Field (Estimated duration 12 weeks) 3.1 Weekly level of effort by Classification 7 0 0 40 0 Task Budget Estimate} 84 0 0 480 I 0 $ 60,191.76 4 - Construction Services - Office (Estimated duration 12 weeks) 4.1 Weekly level of effort by Classification 2 0 24 0 0 Task Budget Estimate' 24 0 288 0 0 $ 25,347.17 5 - Submittals / RFI Processing - Office (Estimated duration 12 weeks) 5.1 Weekly level of effort by Class Task Budget Estimate{ 112 ' 12 48 0 0 ' $ 6,641.95 6 - Change Management - Office (Estimated duration 12 weeks) 6.1 Weekly level of effort by Classification Ta k Budget Estimate' 6 1 0 112 0 0 ' $ 1,810.40 Subtotal - Laborj 130 i 16 363 `' `484 ( 4.5 , f $ ' 96,876.59 Reimbursables Construction Vehicle (12 weeks @ $150 /wk) $ 1,800.00 Miscellaneous - Mileage, Reprographics $ 500.00 Subtotal - Reimbursables $ 2,300.00 Total Project Budget $ 99,176.59 Hourly rates are based on the following: Direct Salary Costs $ 57.69 $ 38.58 $ 28.85 $ 37.86 $ 29.81 Overhead @ 131.49% $ 75.86 $ 50.73 $ 37.93 $ 49.78 $ 39.20 131.49% Fixed Fee @ 30% $ 17.31 $ 11.57 $ 8.66 $ 11.36 $ 8.94 30.00 Total Labor Rate $ 150.85 $ 100.88 $ 75.44 I $ 99.00 $ 77.95 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 performed during 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 materials 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 this AGREEMENT covers a program set forth in Appendix B of the REGULATIONS. 3. Solicitations for Sub - consultants, Including Procurement of Materials and Equipment: In all solicitations either by competitive bidding or negotiations made by the CONSULTANT for 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, other sources of information, and its facilities as may be determined by the AGENCY, 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 Provisions: The CONSULTANT shall include the provisions of paragraphs (1) through (5) in every subcontract, including procurement of materials and leases of equipment, unless exempt by the REGULATIONS, or 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 of enforcing such provisions including sanctions for 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 CONSULTANT may request the AGENCY enter into such litigation to protect the interests of the STATE and /or the AGENCY and, in addition, the CONSULTANT may request the United States enter into such litigation to protect the interests of the United States. Agreement Number: AG 16 - 0(00 WSDOT Form 140 -089 EF Exhibit F Page 1 of 1 Revised 10/30/2014 Exhibit G Certification Documents Exhibit G -1(a) Exhibit G -1(b) Exhibit G -2 Certification of Consultant Certification of City of Federal Way Certification Regarding Debarment, Suspension and Other Responsibility Matters - Primary Covered Transactions Exhibit G -3 Certification Regarding the Restrictions of the Use of Federal Funds for Lobbying Exhibit G -4 Certificate of Current Cost or Pricing Data Agreement Number: /G WSDOT Form 140 -089 EF Exhibit G Page 1 of 1 Revised 10/30/2014 Exhibit G -1(a) Certification of Consultant I hereby certify that I am the and duly authorized representative of the firm of KPG, P.S. whose address is 753 9th Avenue North, Seattle, WA 98109 and that neither the above firm nor I have: a) Employed or retained for a commission, percentage, brokerage, contingent fee, or other consideration, any firm or person (other than a bona fide employee working solely for me or the above CONSULTANT) 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 person in connection with carrying out this AGREEMENT; or c) Paid, or agreed to pay, to any firm, organization or person (other than a bona fide employee working solely for me or the above 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); I acknowledge that this certificate is to be furnished to the City of Federal Way and the Federal Highway Administration, U.S. Department of Transportation in connection with this AGREEMENT involving participation of Federal -aid highway funds, and is subject to applicable State and Federal laws, both criminal and civil. KPG, P.S. Consultant (Firm Name) Signature (Authorized Official of Consultant) Date Nelson Davis, PE Agreement Number: /G i WSDOT Form 140 -089 EF Exhibit G Page 1 of 1 Revised 10/30/2014 Exhibit G -1(b) Certification of I hereby certify that I am the: Gfl Mayor, Jim Ferrell Other of the City of Federal Way , and KPG, P.S. or its representative has not been required, directly or indirectly as an express or implied condition in connection with obtaining or carrying out this AGREEMENT to: a) Employ or retain, or agree to employ to retain, any firm or person; or b) Pay, or agree to pay, to any firm, person, or organization, any fee, contribution, donation, or consideration of any kind; except as hereby expressly stated (if any): I acknowledge that this certificate is to be furnished to the City of Federal Way and the Federal Highway Administration, U.S. Department of Transportation, in connection with this AGREEMENT involving participation of Federal -aid highway funds, and is subject to applicable State and Federal laws, both criminal and civil. Signature t////;0‘ Date Agreement Number: / ( - WSDOT Form 140 -089 EF Exhibit G Page 1 of 1 Revised 10/30/2014 Exhibit G -2 Certification Regarding Debarment, Suspension and Other Responsibility Matters - Primary Covered Transactions I. The prospective primary participant certifies to the best of its knowledge and belief, that it and its principals: A. Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions by any Federal department or agency; B. Have not within a three (3) year period preceding this proposal been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, State, or local) transaction or contract under a public transaction; violation of Federal or State anti -trust statues or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property; C. Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (Federal, State, or local) with commission of any of the offenses enumerated in paragraph (1)(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. II. Where the prospective primary participant is unable to certify to any of the statements in this certification, such prospective participant shall attach an explanation to this proposal. KPG, P.S. Consultant (Firm Name) Signature (Authorized Official of Consultant) Date Nelson Davis, PE Agreement Number: WSDOT Form 140 -089 EF Exhibit G Revised 10/30/2014 Page 1 of 1 Exhibit G -3 Certification Regarding the Restrictions of the Use of Federal Funds for Lobbying The prospective participant certifies, by signing and submitting this bid or proposal, to the best of his or her knowledge and belief, that: 1. No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any Federal agency, a Member of Congress, an officer or employee of Congress, or any employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative AGREEMENT, and the extension, continuation, renewal, amendment, or modification of Federal contract, grant, loan or cooperative AGREEMENT. 2. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any Federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan or cooperative AGREEMENT, the undersigned shall complete and submit Standard Form - LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by Section 1352, Title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000.00, and not more than $100,000.00, for each such failure. The prospective participant also agrees by submitting his or her bid or proposal that he or she shall require that the language of this certification be included in all lower tier sub- contracts, which exceed $100,000, and that all such sub - recipients shall certify and disclose accordingly. KPG, P.S. Consultant (Firm Name) I Signature (Authorized Official of Consultant) Date Nelson Davis, PE Agreement Number: /& yto 0 WSDOT Form 140 -089 EF Exhibit G Page 1 of 1 Revised 10/30/2014 Exhibit G-4 Certificate of Current Cost or Pricing Data This is to certify that, to the best of my knowledge and belief, the cost or pricing data (as defined in section 2.101 of the Federal Acquisition Regulation (FAR) and required under FAR subsection 15.403 -4) submitted, either actually or by specific identification in writing, to the Contracting Officer or to the Contracting Officer's representative in support of Citywide Flashing Yellow Arrow Retrofits * are accurate, complete, and current as of March 02, 2016 ' *• This certification includes the cost or pricing data supporting any advance AGREEMENT's and forward pricing rate AGREEMENT's between the offer or and the Government that are part of the proposal. Firm: Signature Title Date of Execution * * *: 2i / 2-- *Identify the proposal, quotation, request for pricing adjustment, or other submission involved, giving the appropriate identifying number (e.g. project title.) * *Insert the day, month, and year, when price negotiations were concluded and price AGREEMENT was reached. ** *Insert the day, month, and year, of signing, which should be as close as practicable to the date when the price negotiations were concluded and the contract price was agreed to. Agreement Number: AG 16 - WSDOT Form 140 -089 EF Exhibit G Page 1 of 1 Revised 10/30/2014 Exhibit 1 Alleged Consultant Design Error Procedures The purpose of this exhibit is to establish a procedure to determine if a consultant's alleged design error is of a nature that exceeds the accepted standard of care. In addition, it will establish a uniform method for the resolution and/or cost recovery procedures in those instances where the agency believes it has suffered some material damage due to the alleged error by the consultant. Step 1 Potential Consultant Design Error(s) is Identified by Agency's Project Manager At the first indication of potential consultant design error(s), the first step in the process is for the Agency's project manager to notify the Director of Public Works or Agency Engineer regarding the potential design error(s). For federally funded projects, the Region Local Programs Engineer should be informed and involved in these procedures. (Note: The Director of Public Works or Agency Engineer may appoint an agency staff person other than the project manager, who has not been as directly involved in the project, to be responsible for the remaining steps in these procedures.) Step 2 Project Manager Documents the Alleged Consultant Design Error(s) After discussion of the alleged design error(s) and the magnitude of the alleged error(s), and with the Director of Public Works or Agency Engineer's 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 sub - consultants) deemed appropriate for the alleged design error(s) issue. Step 4 Attempt to Resolve Alleged Design Error with Consultant After the meeting(s) with the consultant have been completed regarding the consultant's alleged design error(s), there are three possible scenarios: • It is determined via mutual agreement that there is not a consultant design error(s). If this is the case, then the process will not proceed beyond this point. • It is determined via mutual agreement that a consultant design error(s) occurred. If this is the case, then the Director of Public Works or Agency Engineer, or their representatives, negotiate a settlement with the consultant. The settlement would be paid to the agency or the amount would be reduced from the consultant's agreement with the agency for the services on the project in which the design error took place. The agency is to provide LP, through the Region Local Programs Engineer, a summary of the 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 agreement regarding the alleged consultant design error(s). The consultant may request that the alleged design error(s) issue be forwarded to the Director of Public Works or Agency Engineer for review. If the Director of Public Works or Agency Engineer, after review with their legal counsel, is not able to reach mutual agreement with the consultant, proceed to Step 5. Agreement Number: AG 16 - Otot WSDOT Form 140 -089 EF Exhibit 1 Page 1 of 2 Revised 10/30/2014 Step 5 Forward Documents to Local Programs For federally funded projects all available information, including costs, should be forwarded through the Region Local Programs Engineer to LP for their review and consultation with the FHWA. LP will meet with representatives of the agency and the consultant to review the alleged design error(s), and attempt to find a resolution to the issue. If necessary, LP will request assistance from the Attorney General's Office for legal interpretation. LP will also identify how 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 costs to reflect the agreed upon resolution. LP, in consultation with FHWA, will identify the amount of federal participation in the agreed upon resolution of the issue. • If mutual agreement is not reached, the agency and consultant may seek settlement by arbitration or by litigation. Agreement Number: AG 16 - r?wb WSDOT Form 140 -089 EF Exhibit 1 Page 2 of 2 Revised 10/30/2014 Exhibit J Consultant Claim Procedures The purpose of this exhibit is to describe a procedure regarding claim(s) on a consultant agreement. The following procedures should only be utilized on consultant claims greater than $1,000. If the consultant's claim(s) are a total of $1,000 or less, it would not be cost effective to proceed through the outlined steps. It is suggested that the Director of Public Works or Agency Engineer negotiate a fair and reasonable price for the consultant's claim(s) that total $1,000 or less. This exhibit will outline the procedures to be followed by the consultant and the agency to consider a potential claim by the consultant. Step 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 is included in the claim; • Any correspondence that directed the consultant to perform the additional work; • Timeframe of the additional work that was outside of the project scope; • Summary of direct labor dollars, overhead costs, profit and reimbursable costs associated with the additional work; and • Explanation as to why the consultant believes the additional work was outside of the agreement scope of work. Step 2 Review by Agency Personnel Regarding the Consultant's Claim for Additional Compensation After the consultant has completed step 1, the next step in the process is to forward the request to the Agency's project manager. The project manager will review the consultant's claim and will met with the Director of Public Works or Agency Engineer to determine if the Agency agrees with the claim. If the FHWA is participating in the project's funding, forward a copy of the consultant's claim and the Agency's recommendation for federal participation in the claim to the WSDOT Local Programs through the Region Local Programs Engineer. If the claim is not eligible for federal participation, payment will need to be from agency funds. If the Agency project manager, Director of Public Works or Agency Engineer, WSDOT Local Programs (if applicable), and FHWA (if applicable) agree with the consultant's claim, send a request memo, including backup documentation to the consultant to either supplement the agreement, or create a new agreement for the claim. After the request has been approved, the Agency shall write the supplement and /or new agreement and pay the consultant the amount of the claim. Inform the consultant that the final payment for the agreement is subject to audit. 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: AG 16 - Mob b WSDOT Form 140 -089 EF Exhibit J Page 1 of 2 Revised 10/30/2014 Step 3 Preparation of Support Documentation Regarding Consultant's Claim(s) If the Agency does not agree with the consultant's claim, the project manager shall prepare a summary for the Director of Public Works 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 Consultant Claim and Agency Documentation The Director of Public Works or Agency Engineer shall review and administratively approve or disapprove the claim, or portions thereof, which may include getting Agency Council or Commission approval (as appropriate to agency dispute resolution procedures). If the project involves federal participation, obtain concurrence from WSDOT Local Programs and FHWA regarding final settlement of the claim. If the claim is not eligible for federal participation, payment will need to be from agency funds. 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 claim(s). Include the final dollar amount of the accepted claim(s) and rationale utilized for the decision. Step 6 Preparation of Supplement or New Agreement for the Consultant's Claim(s) The agency shall write the supplement and /or new agreement and pay the consultant the amount of the claim. Inform the consultant that the final payment for the agreement is subject to audit. Agreement Number: AG 16 - O�Q WSDOT Form 140 -089 EF Exhibit J Page 2 of 2 Revised 10/30/2014 ACORCP CERTIFICATE OF LIABILITY INSURANCE DATE (MMIDD/YYYY) 4/15/2016 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 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 Michael J Hall & Company Hall & Company 19660 10th Ave NE Poulsbo WA 9837Q COCT NAME Michael J Hall & Company (A/cC.No. Ext1:360- 598 -3700 FAX (A /C, No): AADDRESS:certificates 0L hallandcompany.com INSURER(S) AFFORDING COVERAGE NAIC # INSURED KPG Inc 753 9th Avenue North Seattle WA 98109 282 INSURERA:The Travelers Indemnity Company of 25682 INSURER B :The Charter Oak Fire Insurance Comp INSURER C :Underwriters at Lloyd's London INSURER D : 25615 INSURER E : INSURER F : 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 LTR TYPE OF INSURANCE ADDL INSR SUBR WVD POLICY NUMBER POLICY EFF (MM/DDIYYYY) POLICY EXP (MMIDD/YYYY) LIMITS A GENERAL X LIABILITY COMMERCIAL GENERAL LIABILITY 6803947N451 6/1/2015 6/1/2016 EACH OCCURRENCE $1,000,000 DAMAGE TO RENTED PREMISES (Ea occurrence) $300,000 MED EXP (Any one person) $5,000 CLAIMS -MADE X OCCUR PERSONAL &ADVINJURY $1,000,000 X XCU /OCP /BFPD GENERAL AGGREGATE $2,000,000 X Cross Liability PRODUCTS - COMP /OP AGG $2,000,000 GE 'L AGGREGATE POLICY POLICY X LIMIT APPLIES PER: PRO- LOC $ B AUTOMOBILE X LIABILITY ANY AUTO ALLOWNED AUTOS HIRED AUTOS SCHEDULED AUTOS NON -OWNED AUTOS BA4011N714 6/1/2015 6/1/2016 CEO BINEDt) INGLE LIMIT $1,000,000 $ BODILY INJURY (Per person) BODILY INJURY (Per accident) $ PROPERTY DAMAGE (Per accident) $ UMBRELLA LIAB EXCESS LIAB OCCUR CLAIMS -MADE EACH OCCURRENCE $ AGGREGATE $ $ DED RETENTION $ A WORKERS COMPENSATION AND EMPLOYERS' LIABILITY Y / N ANY PROPRIETOR/PARTNER /EXECUTIVE OFFICER /MEMBER EXCLUDED? (Mandatory in NH) If yes, describe under DESCRIPTION OF OPERATIONS below N /A 6803947N451 6/1/2015 6/1/2016 i WC STATU- X OTH- TORY LIMITS ER WA Stop Gap E.L. EACH ACCIDENT $1,000,000 E.L. DISEASE - EA EMPLOYEE $1,000,000 E.L. DISEASE - POLICY LIMIT $1,000,000 C Professional Liab Claims Made 1147823385/015 6/1/2015 6/1/2016 $1,000,000 Per Claim $1,000,000 Aggregate DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (Attach ACORD 101, Additional Remarks Schedule, if more space is required) Certificate Holder(s) is /are an Additional Insured on the Commercial General Liability and Auto Liability when required by written contract or agreement regarding activities by or on behalf of the Named Insured. The Commercial General Liability insurance is primary insurance and any other insurance maintained by the Additional Insured shall be excess only and non - contributing with this insurance. A waiver of subrogation applies to the Commercial General Liability, Auto Liability, Umbrella / Excess Liability and Workers Compensation / Employers Liability in favor of the Additional Insured. Flashing Yellow Arrow - Construction Services See Attached... CERTIFICATE HOLDER CANCELLATION City of Federal Way 33325 8th Ave S Federal Way WA 98003 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE ACORD 25 (2010/05) ©1988 -2010 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD ACORD AGENCY CUSTOMER ID: 282 LOC #: ADDITIONAL REMARKS SCHEDULE Page 1 of 1 AGENCY Michael J Hall & Company NAMED INSURED KPG Inc 753 9th Avenue North Seattle WA 98109 POLICY NUMBER CARRIER NAIC CODE EFFECTIVE DATE: ADDITIONAL REMARKS THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACORD FORM, FORM NUMBER. 25 FORM TITLE: CERTIFICATE OF LIABILITY INSURANCE KPG PN 16029 Attention: Mercedes Tenuta ACORD 101 (2008/01) © 2008 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD COMMERCIAL GENERAL LIABILITY THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. BLANKET ADDITIONAL INSURED (ARCHITECTS, ENGINEERS AND SURVEYORS) This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART A. The following is added to WHO IS AN INSURED (Section II): Any person or organization that you agree in a "contract or agreement requiring insurance" to in- clude as an additional insured on this Coverage Part, but only with respect to liability for "bodily in- jury", "property damage" or "personal injury" caused, in whole or in part, by your acts or omis- sions or the acts or omissions of those acting on your behalf: a. b. c. In the performance of your ongoing opera- tions; In connection with premises owned by or rented to you; or In connection with "your work" and included within the "products- completed operations hazard ". Such person or organization does not qualify as an additional insured for "bodily injury", "property damage" or "personal injury" for which that per- son or organization has assumed liability in a con- tract or agreement. The insurance provided to such additional insured is limited as follows: d. This insurance does not apply on any basis to any person or organization for which cover- age as an additional insured specifically is added by another endorsement to this Cover- age Part. e. This insurance does not apply to the render- ing of or failure to render any "professional services ". f. The limits of insurance afforded to the addi- tional insured shall be the limits which you agreed in that "contract or agreement requir- ing insurance" to provide for that additional insured, or the limits shown in the Declara- tions for this Coverage Part, whichever are less. This endorsement does not increase the limits of insurance stated in the LIMITS OF CGD3810907 B. C. INSURANCE (Section III) for this Coverage Part. The following is added to Paragraph a. of 4. Other Insurance in COMMERCIAL GENERAL LIABILITY CONDITIONS (Section IV): However, if you specifically agree in a "contract or agreement requiring insurance" that the insurance provided to an additional insured under this Cov- erage Part must apply on a primary basis, or a primary and non - contributory basis, this insurance is primary to other insurance that is available to such additional insured which covers such addi- tional insured as a named insured, and we will not share with the other insurance, provided that: (1) The "bodily injury" or "property damage" for which coverage is sought occurs; and (2) The "personal injury" for which coverage is sought arises out of an offense committed; after you have entered into that "contract or agreement requiring insurance ". But this insur- ance still is excess over valid and collectible other insurance, whether primary, excess, contingent or on any other basis, that is available to the insured when the insured is an additional insured under any other insurance. The following is added to Paragraph 8. Transfer Of Rights Of Recovery Against Others To Us in COMMERCIAL GENERAL LIABILITY CON- DITIONS (Section IV): We waive any rights of recovery we may have against any person or organization because of payments we make for "bodily injury", "property damage" or "personal injury" arising out of "your work" performed by you, or on your behalf, under a "contract or agreement requiring insurance" with that person or organization. We waive these rights only where you have agreed to do so as part of the "contract or agreement requiring insur- ance" with such person or organization entered into by you before, and in effect when, the "bodily © 2007 The Travelers Companies, Inc. Includes the copyrighted material of Insurance Services Office, Inc., with its permission Page 1 of 2 COMMERCIAL GENERAL LIABILITY injury" or "property damage" occurs, or the "per- sonal injury" offense is committed. D. The following definition is added to DEFINITIONS (Section V): "Contract or agreement requiring insurance" means that part of any contract or agreement un- der which you are required to include a person or organization as an additional insured on this Cov- Page 2 of 2 erage Part, provided that the "bodily injury" and "property damage" occurs, and the "personal in- jury" is caused by an offense committed: a. After you have entered into that contract or agreement; b. While that part of the contract or agreement is in effect; and c. Before the end of the policy period. © 2007 The Travelers Companies, Inc. CG D3 81 09 07 Includes the copyrighted material of Insurance Services Office, Inc.. with its permission COMMERCIAL AUTO This endorsement modifies insurance provided under the following: BUSINESS AUTO COVERAGE FORM With respect to coverage provided by this endorsement, the provisions of the Coverage Form apply unless modi- fied by the endorsement, GENERAL DESCRIPTION OF COVERAGE — This endorsement broadens coverage. However, coverage for any injury, damage or medical expenses described in any of the provisions of this endorsement may be excluded or limited by another endorsement to the Coverage Part, and these coverage broadening provisions do not apply to the extent that coverage is excluded or limited by such an endorsement. The following listing is a general cover- age description only. Limitations and exclusions may apply to these coverages. Read all the provisions of this en- dorsement and the rest of your policy carefully to determine rights; duties, and what is and is not covered. A. BLANKET ADDITIONAL INSURED H. AUDIO, VISUAL AND DATA ELECTRONIC B. EMPLOYEE HIRED AUTO EQUIPMENT — INCREASED LIMIT C. EMPLOYEES AS INSURED I. WAIVER OF DEDUCTIBLE — GLASS D. SUPPLEMENTARY PAYMENTS — INCREASED J. PERSONAL EFFECTS LIMITS K. AIRBAGS E. TRAILERS — INCREASED LOAD CAPACITY L. AUTO LOAN LEASE GAP F. HIRED AUTO PHYSICAL DAMAGE M. BLANKET WAIVER OF SUBROGATION G. PHYSICAL DAMAGE — TRANSPORTATION EXPENSES — INCREASED LIMIT A. BLANKET ADDITIONAL INSURED performing duties related to the conduct of The following is added to Paragraph A.1., Who Is your business. An Insured, of SECTION II — LIABILITY COV- 2. The following replaces Paragraph b. in B.5., ERAGE: Other Insurance, of SECTION IV - BUSI- NESS AUTO CONDITIONS: Any person or organization who is required under a written contract or agreement between you and that person or organization, that is signed and executed by you before the "bodily injury" or "property damage" occurs and that is in effect during the policy period, to be named as an addi- tional insured is an "insured" for Liability Cover- age, but only for damages to which this insurance applies and only to the extent that person or or- ganization qualifies as an "insured" under the Who Is An Insured provision contained in Section II. B. EMPLOYEE HIRED AUTO 1. The following is added to Paragraph A.1., Who Is An Insured, of SECTION II — LI- ABILITY COVERAGE: An "employee" of yours is an "insured" while operating a covered "auto" hired or rented under a contract or agreement in that "em- ployee's" name, with your permission, while CA T4 20 07 10 b. For Hired Auto Physical Damage Cover- age, the following are deemed to be cov- ered "autos" you own: (1) Any covered "auto" you lease, hire, rent or borrow; and (2) Any covered "auto" hired or rented by your "employee" under a contract in that individual "employee's" name, with your permission, while perform- ing duties related to the conduct of your business. However, any "auto" that is leased, hired, rented or borrowed with a driver is not a covered "auto ". C. EMPLOYEES AS INSURED The following is added to Paragraph A.1., Who Is An Insured, of SECTION II — LIABILITY COV- ERAGE: © 2010 The Travelers Indemnity Company. All rights reserved. Page 1 of 3 Includes copyrighted material of Insurance Services Office, Inc. with its permission. COMMERCIAL AUTO Any "employee" of yours is an "insured" while us- ing a covered "auto" you don't own, hire or borrow in your business or your personal affairs. D. SUPPLEMENTARY PAYMENTS — INCREASED LIMITS 1. The following replaces Paragraph A.2.a.(2) of SECTION II — LIABILITY COVERAGE: (2) Up to $3,000 for cost of bail bonds (in- cluding bonds for related traffic law viola- tions) required because of an "accident" we cover. We do not have to furnish these bonds. 2. The following replaces Paragraph A.2.a.(4) of SECTION II — LIABILITY COVERAGE: (4) All reasonable expenses incurred by the "insured" at our request, including actual loss of earnings up to $500 a day be- cause of time off from work. E. TRAILERS —INCREASED LOAD CAPACITY The following replaces Paragraph C.1. of SEC- TION 1— COVERED AUTOS: 1. "Trailers" with a load capacity of 3,000 pounds or less designed primarily for travel on public roads. F. HIRED AUTO PHYSICAL DAMAGE The following is added to Paragraph A.4., Cover- age Extensions, of SECTION III — PHYSICAL DAMAGE COVERAGE: Hired Auto Physical Damage Coverage If hired "autos" are covered "autos" for Liability Coverage but not covered "autos" for Physical Damage Coverage, and this policy also provides Physical Damage Coverage for an owned "auto ", then the Physical Damage Coverage is extended to "autos" that you hire, rent or borrow subject to the following: (1) The most we will pay for "loss" in any one "accident" to a hired, rented or borrowed "auto" is the lesser of: (a) $50,000; (b) The actual cash value of the damaged or stolen property as of the time of the "loss"; or (c) The cost of repairing or replacing the damaged or stolen property with other property of like kind and quality. (2) An adjustment for depreciation and physical condition will be made in determining actual cash value in the event of a total "loss ". Page 2 of 3 (3) If a repair or replacement results in better than like kind or quality, we will not pay for the amount of betterment. (4) A deductible equal to the highest Physical Damage deductible applicable to any owned covered "auto ". (5) This Coverage Extension does not apply to: (a) Any "auto" that is hired, rented or bor- rowed with a driver; or (b) Any "auto" that is hired, rented or bor- rowed from your "employee ". G. PHYSICAL DAMAGE — TRANSPORTATION EXPENSES — INCREASED LIMIT The following replaces the first sentence in Para- graph A.4.a., Transportation Expenses, of SECTION III — PHYSICAL DAMAGE COVER- AGE: We will pay up to $50 per day to a maximum of $1,500 for temporary transportation expense in- curred by you because of the total theft of a cov- ered "auto" of the private passenger type. H. AUDIO, VISUAL AND DATA ELECTRONIC EQUIPMENT — INCREASED LIMIT Paragraph C.2.. Limit Of Insurance, of SEC- TION III — PHYSICAL DAMAGE COVERAGE is deleted. I. WAIVER OF DEDUCTIBLE — GLASS The following is added to Paragraph D., Deducti- ble, of SECTION III — PHYSICAL DAMAGE COVERAGE: No deductible for a covered "auto" will apply to glass damage if the glass is repaired rather than replaced. J. PERSONAL EFFECTS The following is added to Paragraph A.4., Cover- age Extensions, of SECTION III — PHYSICAL DAMAGE COVERAGE: Personal Effects Coverage We will pay up to $400 for "loss" to wearing ap- parel and other personal effects which are: (1) Owned by an "insured "; and (2) In or on your covered "auto ". This coverage only applies in the event of a total theft of your covered "auto ". No deductibles apply to Personal Effects cover- age. © 2010 The Travelers Indemnity Company. All rights reserved. CA T4 20 07 10 Includes copyrighted material of Insurance Services Office, Inc. with its permission. K. AIRBAGS The following is added to Paragraph B.3., Exclu- sions, of SECTION III — PHYSICAL DAMAGE COVERAGE: Exclusion 3.a. does not apply to "loss" to one or more airbags in a covered "auto" you own that in- flate due to a cause other than a cause of "loss" set forth in Paragraphs A.1.b. and A.1.c., but only: a. If that "auto" is a covered "auto" for Compre- hensive Coverage under this policy; b. The airbags are not covered under any war- ranty; and c. The airbags were not intentionally inflated. We will pay up to a maximum of $1,000 for any one "loss ". L. AUTO LOAN LEASE GAP The following is added to Paragraph A.4., Cover- age Extensions, of SECTION 111 — PHYSICAL DAMAGE COVERAGE: Auto Loan Lease Gap Coverage for Private Passenger Type Vehicles In the event of a total "loss" to a covered "auto" of the private passenger type shown in the Schedule or Declarations for which Physical Damage Cov- erage is provided, we will pay any unpaid amount due on the lease or loan for such covered "auto" less the following: (1) The amount paid under the Physical Damage Coverage Section of the policy for that "auto "; and CA T4 20 07 10 COMMERCIAL AUTO (2) Any: (a) Overdue lease or loan payments at the time of the "loss "; (b) Financial penalties imposed under a lease for excessive use, abnormal wear and tear or high mileage; (c) Security deposits not returned by the les- sor; (d) Costs for extended warranties, Credit Life Insurance, Health, Accident or Disability Insurance purchased with the loan or lease; and (e) Carry-over balances from previous loans or leases. M. BLANKET WAIVER OF SUBROGATION The following replaces Paragraph A.5., Transfer Of Rights Of Recovery Against Others To Us, of SECTION IV — BUSINESS AUTO CONDI- TIONS: 5. Transfer Of Rights Of Recovery Against Others To Us We waive any right of recovery we may have against any person or organization to the ex- tent required of you by a written contract exe- cuted prior to any "accident" or "loss ", pro- vided that the "accident" or "loss" arises out of the operations contemplated by such con- tract. The waiver applies only to the person or organization designated in such contract. © 2010 The Travelers Indemnity Company. All rights reserved. Page 3 of 3 Includes copyrighted material of Insurance Services Office, Inc. with its permission. WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS SECTION IV -