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Agreement between with Watershed Science and Engineering, Inc. for Cowlitz River Floodplain Study BEFORE THE BOARD OF COUNTY COMMISSIONERS { LEWIS COUNTY,WASHINGTON ACCEPTANCE OF AGREEMENT BETWEEN LEWIS COUNTY RESOLUTION 20-105 AND WATERSHED SCIENCE AND ENGINEERING INC. FOR A COWLITZ RIVER FLOODPLAIN STUDY AND AUTHORIZING SIGNATURES THEREON WHEREAS,the Board of County Commissioners(BOCC) has reviewed the Agreement between Lewis County, Washington, and Watershed Science and Engineering Inc.for the purposes of conducting a floodplain mapping study of the Cowlitz River in the vicinity of Packwood, Washington; and WHEREAS,the contract amount of$514,846 has been appropriated to Lewis County as a grant through the Washington State Department of Commerce;and WHEREAS, it appears to be in the best public interest to authorize the execution of said agreement for Lewis County; and NOW THEREFORE, BE IT RESOLVED that the BOCC approves the agreement between Lewis County and Watershed Science and Engineering Inc.for a Cowlitz River Floodplain Study and authorizes the Chair of the BOCC to sign the same. Done in an open meeting this 26th day of March 2020. APPROVED AS TO FORM: BOARD OF COUNTY COMMISSIONERS Jonathan Meyer, Prosecuting Attorney LEWIS COUNTY,WASHINGTON Aill/V464../3„7,-- 4, A . (2,,,.. By Amber Smith, Deputy Pros. Attorney Gary Stamper, Chair ATTEST: Edna J. Fund,Vice C i (/L Z4 ,) Rieva Lester, Clerk of the Board Robert C.Jackson, Commissioner � 'ScOUNTy.O i 0�,, •I,• �2• : SINCE o: 'y, 1845 iz' Attachment A Estimate of Professional Services Date: March 2, 2020 Prepared for: Lewis County Project: Cowlitz River near Packwood Floodplain Mapping Job Classification Hours Rate Cost Senior Professional 411.00 $202.53 $83,240 Senior Engineer I 141.00 $184.37 $25,996 Senior Engineer II 228.00 $150.84 $34,392 Staff Engineer 1271.00 $114.53 $145,568 Junior Engineer 64.00 $103.37 $6,616 GIS Specialist 0.00 $101.69 $0 Contract Administrator 12.00 $87.16 $1,046 Labor Subtotal 2127.00 $296,857 Reimburseables Mileage 2,820 0.585 $1,650 Per diem 17 125 $2,125 Survey Equipment In-house Charge 3 250 $750 Drone In-house Charge 5 100 $500 Pix 4D Monthly Charge 1 330 $330 Miscellaneous ODCs, Plotting, Couriers, etc. 1 1000 $1,000 Subconsultants GeoTerra- LiDAR and Aerial Imagery 1 45956 $45,956 PGS- Surveying 1 134338 $134,338 Perteet- Public Outreach and Meeting facilitation 1 21263 $21,263 5% Markup on Subconsultants 5% 201557 $10,078 Cost Summary Total Labor $296,857 Total Direct Expenses $6,355 Total Subconsultants $211,635 Grand Total $514,846 Prepared By: L. Karpack Watershed Science& Engineering Inc. 506 2nd Ave,Suite 2700 Seattle,WA 98104 Tel.(206)521-3000 Cowlitz River at Packwood Floodplain Mapping Scope of Work Project Background Lewis County Department of Public Works(County)seeks to develop new FEMA Flood Insurance Rate Maps (FIRMs) for the Cowlitz River in and near the community of Packwood, Washington. Existing FEMA maps for the reach of the Cowlitz near Packwood are based on an outdated 1979 study which assumed flood water from the Cowlitz River would overtop a natural ridge along the left bank of the river and flow southeast through Packwood, ultimately reaching Hall Creek to the east of town. Flooding of Packwood by the Cowlitz River has not been observed historically, including during an extreme flood in November 2006 that was estimated to be nearly a 100-year event. The County desires updated analysis and mapping will remove the Packwood downtown core from the FEMA floodplain. In addition to the Cowlitz River an updated hydraulic analysis and mapping of Hall Creek will also be required to evaluate how changes in overflows from the Cowlitz River might affect the mapping of that creek.The effective FIRMs indicate that flooding from Hall Creek may control inundation within the eastern portion of the Packwood downtown core. The project scope assumes both the Cowlitz River and Hall Creek will be studied. The County has secured funding to update the FEMA floodplain maps and selected Watershed Science and Engineering (WSE)to prepare the update. Scope of Work Task 1—Project Administration and Kick-Off Meeting Project Administration—WSE will perform project administration activities including, but not limited to: developing and maintaining a detailed project schedule,coordinating with the County's project manager, organizing and facilitating team meetings as needed,submitting monthly invoices and progress reports, and managing all sub-consultants. Project Kick-Off Meeting—At the start of the project, key members of the WSE team will meet with County staff to confirm project goals,discuss expectations, review and refine the project scope and schedule, and obtain or request existing data and information. Deliverables: 1) Project schedule; 2) Monthly invoices and progress reports. Task 2—Public Outreach WSE and subconsultant Perteet will develop a public outreach plan to engage and inform Packwood residents. The plan may consist of community meetings, information gathering sessions, and online project updates to ensure that all residents and business owners, including both full-and part-time community members, are kept informed. The budget assumes up to 5 public meetings will be conducted including an initial community meeting(as part of the March Packwood Development Authority(PDA) meeting),a preliminary results meeting, a community meeting coinciding with the release of the LOMR, and up to two additional meetings. Cowlitz River at Packwood Floodplain Mapping Scope of Work 1 ' Page Deliverables: Meeting announcements,flyers, agendas,facilitation, and summaries(note that the Consultant team will not organize or facilitate the March PDA meeting). Task 3—Site Reconnaissance Key members of WSE's team will conduct a site reconnaissance to identify key hydraulic controls and evaluate field conditions relevant to the hydraulic modeling, refine bathymetric and topographic data collection plans,and inform data collection needed to construct the hydraulic model. It is anticipated that the study will cover the reach of the Cowlitz River from the upstream extent of the current detailed study near RM 132 (at the confluence with the Muddy Fork)to downstream of the Hwy 12 Bridge(Cora Bridge) near RM 116.4. Deliverables: 1) Field notes, photographs,work plans for data collection activities. Task 4—Topographic Data Collection WSE subconsultant GeoTerra will collect LiDAR and aerial photographic imagery as needed to produce topographic mapping for the entire study area at a map scale of 1" = 100 feet, including feature data collection, imagery,terrain,contours,and LiDAR data. Imagery collected in May or June,during a time of low shadow conditions,will facilitate the delineation of feature data (structures, roads, fence lines, etc.) throughout the study area. In this area,the reduction in shadows will assist with collection of feature data. Lidar,collected in the late summer or early fall of 2020, during low water conditions for best coverage,will provide an accurate terrain surface. Ground control survey for the topographic data acquisition will be completed by Pacific Geomatic Services(PGS). The control survey will consist of fourteen (14)control points within the study area. Assumptions: • Acquisition of mapping grade aerial imagery is planned for May or June of 2020 with suitable flows and sun angles for aerial imagery and at a time when there is no appreciable snow cover. • Acquisition of the LiDAR is planned for late summer of 2020. • Topographic mapping and orthophoto imagery deliverables will be available within 60 days of the final Lidar data acquisition. Deliverables: • Project Map, boundaries, control, flight lines, exposures,and tile layout of orthophotos in ArcGIS format • Floodplain features,terrain surface, and DEM/DTM in AutoCAD dwg format • Floodplain features and terrain folder in ArcGIS geodatabase format • Color orthophotography in uncompressed GeoTiff format(tiles) • Color orthophotography in compressed SID/SDW format (tiles and mosaic at 1:20 target compression) • Lidar report in PDF format • Metadata (technical details) in PDF format. Task 5—Bathymetric Survey WSE's subconsultant PGS will collect bathymetric survey data for cross sections throughout the study area including the Cowlitz River, Muddy Fork, and (potentially) Hall Creek. Cross sections will be surveyed at a Cowlitz River at Packwood Floodplain Mapping Scope of Work 2 I P a g e nominal spacing of 500 feet to provide data for the proposed one-dimensional/two-dimensional (1D/2D) hydraulic modeling.The survey will include cross sections at key locations along the river such as grade changes and significant hydraulic constrictions.Approximately 170 cross sections will be surveyed along the main stem of the Cowlitz River and an additional 15 cross sections on the Muddy Fork. Cross section surveys will be collected for Hall Creek to the extent these are necessary for accurate hydraulic modeling. That will depend on the amount of flow to be conveyed (including Cowlitz River overflows)and the size of the channel and its visibility in the LIDAR data. WSE will combine the bathymetric data and topographic surface derived from LiDAR to create cross sections for the hydraulic model. In locations where 2D modeling will be used a composite terrain surface(combined topographic and bathymetric data)will be developed. The area of breakout flows from the Cowlitz River through Packwood will likely be modeled using a 2D flow area. Hall Creek will be modeled as either a 1D branch or 2D flow area,to be determined after initial modeling is conducted. Other areas along the main stem Cowlitz or Muddy Fork may be modeled as 2D flow areas if this is determined to be necessary for accurate hydraulic analysis. In locations to be modeled using 2D the terrain surface will be developed by interpolating a bathymetric surface from the cross section surveys and merging this with the LiDAR topographic data. Assumptions: • Cross-section survey will be performed during low-flow conditions, likely in late August or September. • The County will acquire right of entry for private properties that need to be accessed. • Cross-section surveys will be focused on bathymetric areas not visible in the LiDAR, plus limited extension to overlap with the LiDAR. Deliverables: 1)Cross section bathymetric survey data; 2) Composite topographic surface for 20 model areas created by merging the bathymetric surface and topographic data. ( Task 6—Hydrologic Analysis Hydrologic data in the form of discharge hydrographs for the 10-,2-, 1-and 0.2-percent annual-chance events will be developed for the Cowlitz River, Muddy Fork, and Hall Creek. WSE will use USGS gage data for the Cowlitz River and regression equations to develop hydrologic data for the Cowlitz River and Muddy Creek. Hydrologic data for Hall Creek will be developed using regression equations or potentially WWHM hydrologic modeling as appropriate. Deliverables: 1) Hydrologic data development summary;2) Hydrologic data suitable for use as input to the hydraulic modeling&analysis. Task 7—Hydraulic Modeling WSE will use the topographic surface, bathymetric data, and hydrologic inputs to develop an unsteady HEC- RAS 1D/2D model of the project area that includes the Cowlitz River, Muddy Fork,and Hall Creek within the study area described previously. This study area is extremely complex from a hydraulic perspective, and a 1D/2D hydraulic model will reflect that complexity as needed for accurate floodplain mapping. The model will be calibrated to available high-water mark data (including anecdotal information)then run to compute water surface elevations and flood extents for the 10-, 2-, 1-and 0.2-percent annual-chance events.The Cowlitz River at Packwood Floodplain Mapping Scope of Work 3 I P a g e 1 3 regulatory floodways of the Cowlitz River and Hall Creek will also be updated to match with current channel alignments and to provide adequate flood flow conveyance per FEMA guidelines. Deliverables: 1) Hydraulic model development and calibration summary; 2) Hydraulic model inputs and outputs, 3) reporting as necessary to support a map revision request submittal to FEMA. Task 8—Floodplain Mapping WSE will delineate the 1-and 0.2 percent annual-chance floodplain and FEMA floodway boundaries for the Cowlitz River and Hall Creek. Deliverables will meet all FEMA submittal requirements as described in FEMA Guidelines and Specifications. Deliverables: 1) Mapping of the 1-and 0.2-percent annual-chance floodplain boundary delineations;2) FEMA floodway boundary delineations; 3) base flood elevations (BFEs); 4) applicable base map features, and 5) FEMA acceptable metadata files describing the mapping data. Task 9—Study Documentation and FEMA Coordination WSE will provide data,documents,and other information required by FEMA to process a Letter of Map Revision (LOMR)or Physical Map Revision (PMR) request. Deliverables will include: 1. Written documentation describing the methods and assumptions used in the hydrologic and hydraulic analyses, special modeling techniques, model calibration, and the delineation of the floodplain and floodway boundaries. 2. Discharge summary data,water surface elevations,and other pertinent floodplain data in tabular form listed by cross section referenced to river/stream mile designations and major landmarks. 3. Discussion of the transition of the 1-percent annual-chance floodplain and floodway boundaries to adjacent effective FEMA flood studies. 4. Required LOMR or PMR application forms including flood profiles, floodway data tables, floodplain workmaps, and study documentation for County review and subsequent submittal to FEMA. 5. Support to the County for the review and resolution of appeals or comments received following community notification of proposed floodplain map changes. 6. Support to the County to respond to concerns or questions raised during FEMA's review of the LOMR or PMR request. Cowlitz River at Packwood Floodplain Mapping Scope of Work 4 I P a g e Local Agency A & E Professional Services Lump Sum Consultant Agreement Agreement Number: Firm/Organization Legal Name (do not use dba's): Watershed Science and Engineering Inc. Address Federal Aid Number 506 2nd Ave., Suite 2700 Seattle WA 98104 UBI Number Federal TIN 603-061-793 27-3996941 Execution Date Completion Date March 30, 2020 June 30, 2021 1099 Form Required Federal Participation El Yes ❑� No ❑ Yes El No Project Title Cowlitz River at Packwood Floodplain Mapping Description of Work Consultant will perform a floodplain study of the Cowlitz River near Packwood, WA and submit required paperwork to FEMA to update the current Flood Insurance Rate Maps. Full Scope of Work is attached. ❑ Yes Q No DBE Participation Maximum Amount Payable: $514,846 ❑ Yes D No MBE Participation ❑ Yes Q No WBE Participation ❑ Yes ❑� No SBE Participation Index of Exhibits Exhibit A Scope of Work Exhibit B DBE Participation Exhibit C Preparation and Delivery of Electronic Engineering and Other Data Exhibit D Prime Consultant Cost Computations Exhibit E Sub-consultant Cost Computations Exhibit F Title VI Assurances Exhibit G Certification Documents Exhibit H Liability Insurance Increase Exhibit I Alleged Consultant Design Error Procedures Exhibit J Consultant Claim Procedures Agreement Number: Local Agency A &E Professional Services Lump Sum Consultant Agreement Page 1 of 13 linvicuriniinti n n ti THIS AGREEMENT,made and entered into as shown in the"Execution Date"box on page one(1)of this AGREEMENT,between the Lewis County 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. Scope of Work The Scope of Work and projected level of effort required for these SERVICES is described in Exhibit"A"attached hereto and by this reference made a part of this AGREEMENT. The Scope of Work was developed utilizing performance based contracting methodologies. 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: Local Agency A & E Professional Services Lump Sum Consultant Agreement Page 2 of 13 P ,icorl 4!/n9/9n17 • 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. In the absence of a mandatory UDBE, the Consultant shall continue their outreach efforts to provide SBE firms maximum practicable opportunities. The CONSULTANT, on a monthly basis, shall enter the amounts paid to all firms involved with this AGREEMENT into the wsdot.diversitycompliance.com program. Payment information shall identify any DBE Participation.Non-minority, woman owned DBEs does not count towards UDBE goal attainment. All Reports, PS&E materials, and other data furnished to the CONSULTANT by the AGENCY shall be returned. All electronic files, prepared by the CONSULTANT, must meet the requirements as outlined in Exhibit "C — Preparation and Delivery of Electronic Engineering and other Data." All designs, drawings, specifications, documents, and other work products, including all electronic files, prepared by the CONSULTANT prior to completion or termination of this AGREEMENT are instruments of service for these SERVICES, and are the property of the AGENCY. Reuse by the AGENCY or by others, acting through or on behalf of the AGENCY of any such instruments of service, not occurring as a part of this SERVICE, shall be without liability or legal exposure to the CONSULTANT. Any and all notices or requests required under this AGREEMENT shall 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: If to CONSULTANT: Name: Betsy Dilllin Name: Larry Karpack Agency: Lewis County Public Works Agency: Watershed Science& Engineering Address: 2025 NE Kresky Ave Address: 506 2nd Ave., Suite 2700 City: Chehalis State: WA Zip: 98532 City: Seattle State: WA Zip: 98104 Email: betsy.dillin@lewiscountywa.gov Email: larry@watershedse.com Phone: (360)740-1138 Phone: (206)521-3000x101 Facsimile: Facsimile: 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: Local Agency A & E Professional Services Lump Sum Consultant Page 3 of 14 d nrcc mcn!Rnvicnr!f19/M/9f19f1 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. The CONSULTANT shall conform to all applicable portions of 48 CFR Part 31 (www.ecfr.gov). The estimate in support of the lump sum amount is attached hereto as Exhibits"D"and"E"and by this reference made part of this AGREEMENT. A. Lump Sum Agreement: Payment for all consulting SERVICES shall be on the basis of a lump sum amount as shown on page one(1)of this AGREEMENT. B. Maximum 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 on page one (1.)The Maximum Amount Payable does not include payment for extra work as stipulated in section XIII, "Extra Work."No minimum amount payable is guaranteed under this AGREEMENT. C. Monthly Progress Payments: The CONSULTANT may submit billings to the AGENCY for reimbursement of costs on a monthly basis. To provide a means of verifying the billed salary costs for the CONSULTANT's employees,the AGENCY may conduct employee interviews. These interviews may consist of recording the names,titles, salary rates,and present duties of those employees performing work on the SERVICES at the time of the interview. D. Final Payment: Final Payment of any balance due the CONSULTANT of the gross amount earned will be made promptly upon its verification by the AGENCY after the completion of the SERVICES under this AGREEMENT, contingent, 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. Per WSDOT's"Audit Guide for Consultants," Chapter 23 "Resolution Procedures,"the CONSULTANT has twenty(20)working days after receipt of the final Post Audit to begin the appeal process to the AGENCY for audit findings. E. 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. A post audit may be performed on this AGREEMENT. The audit, if any,will be performed by the State Auditor,WSDOT's Internal Audit Office and/or at the request of the AGENCY's Project Manager. Agreement Number: Local Agency A& E Professional Services Lump Sum Consultant Agreement Page 4 of 13 Raiiieorl 61/M/9119l1 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 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. Agreement Number: Local Agency A &E Professional Services Lump Sum Consultant Agreement Page 5 of 13 Rov;cc.1 n1/n1/?non 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 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. Agreement Number: Local Agency A & E Professional Services Lump Sum Consultant Agreement Page 6 of 13 Pa,icod nhin1i?n9n 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. 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 Agreement Number: Local Agency A &E Professional Services Lump Sum Consultant Agreement Page 7 of 13 Pot/icor/n1inhi,n9n 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 law or equity arising in whole or in part from the alleged patent or copyright infringement or other allegedly improper appropriation or use of trade secrets, patents, proprietary information, know-how, copyright rights or inventions by the CONSULTANT or the CONSULTANT's agents, employees, sub-consultants, subcontractors or vendors, of any tier, or any other persons for whom the CONSULTANT may be legally liable, in performance of the Work under this AGREEMENT or arising out of any use in connection with the AGREEMENT of methods,processes, designs, information or other items furnished or communicated to STATE and/or the AGENCY,their agents, officers and employees pursuant to the AGREEMENT; provided that this indemnity shall not apply to any alleged patent or copyright infringement or other allegedly improper appropriation or use of trade secrets,patents,proprietary information,know-how, copyright rights or inventions resulting from STATE and/or AGENCY's,their agents', officers'and employees' failure to comply with specific 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. 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. Agreement Number: Local Agency A & E Professional Services Lump Sum Consultant Agreement Page 8 of 13 Pov;carr nhmv7n9n I 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 Ms 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 Ms. 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: Betsy Dillin Agency: Lewis County Address: 2025 NE Kresky Ave City: Chehalis State: WA Zip: 98532 Email: betsy.dillin@lewiscountywa.gov Phone: (360)740-1138 Facsimile: No cancellation of the foregoing policies shall be effective without thirty (30) days prior notice to the AGENCY. The CONSULTANT's professional liability to the AGENCY, including that which may arise in reference to section IX"Termination of Agreement"of this AGREEMENT, shall be limited to the accumulative amount of the authorized AGREEMENT amount or one million dollars ($1,000,000.00),whichever is greater, unless the limit of liability is increased by the AGENCY pursuant to Exhibit H. In no case shall the CONSULTANT's professional liability to third parties be limited in any way. The parties enter into this AGREEMENT for the sole benefit of the parties, and to the exclusion of any third party, and no third party beneficiary is intended or created by the execution of this AGREEMENT. The AGENCY will pay no progress payments under section V"Payment Provisions"until the CONSULTANT has fully complied with this section. This remedy is not exclusive; and the AGENCY may take such other action as is available to it under other provisions of this AGREEMENT, or otherwise in law. Agreement Number: Local Agency A &E Professional Services Lump Sum Consultant Agreement Page 9 of 13 £ ,,,;co,1 nhm1i9n9n 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. 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. Agreement Number: Local Agency &E Professional Services Lump Sum Consultant Agreement Page 10 of 13 nhinhi?n2n 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. 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. Agreement Number: Local Agency A &E Professional Services Lump Sum Consultant Agreement Page 11 of 13 no,,;co,i nhma/9n')n 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, 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. Agreement Number: Local Agency &E Professional Services Lump Sum Consultant Agreement Page 12 of 13 Pnvice,i n/mhifn91) 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. )-i 4147' A (i 1 1A. Signature Date Signature Date Any modification, change, or reformation of this AGREEMENT shall require approval as to form by the Office of the Attorney General. Agreement Number: Local Agency A &E Professional Services Lump Sum Consultant Agreement Page 13 of 13 Rovicorl/1i/hi/9nm Exhibit A Scope of Work Federal Aid No. See Attached. Agreement Number: Exhibit A-Local Agency A &E Professional Services Lump Sum Consultant Agreement Revised 01/01/2020 Page 1 of 1 Exhibit B DBE Participation NA Agreement Number: Exhibit B-Local Agency A & E Professional Services Lump Sum Consultant Agreement Revised 01/01/2020 Page 1 of 1 Exhibit C Preparation and Delivery of Electronic Engineering and Other Data In this Exhibit the agency, as applicable, is to provide a description of the format and standards the consultant is to use in preparing electronic files for transmission to the agency. The format and standards to be provided may include, but are not limited to, the following: I. Surveying, Roadway Design & Plans Preparation Section A. Survey Data B. Roadway Design Files NA C. Computer Aided Drafting Files Agreement Number: Exhibit C-Local Agency A&E Professional Services Lump Sum Consultant Agreement Revised 01/01/2020 Page 1 of 4 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 IppV Agreement Number: Exhibit C-Local Agency A &E Professional Services Lump Sum Consultant Agreement Revised 01/01/2020 Page 2 of 4 II. Any Other Electronic Files to Be Provided III. Methods to Electronically Exchange Data Exhibit C-Local Agency A&E Professional Services Lump Sum Consultant Agreement Revised 01/01/2020 Page 3 of 4 A. Agency Software Suite B. Electronic Messaging System C. File Transfers Format Exhibit C-Local Agency A&E Professional Services Lump Sum Consultant Agreement Revised 01/01/2020 Page 4 of 4 Exhibit D Prime Consultant Cost Computations See Attached. Agreement Number: Exhibit D-Local Agency A & E Professional Services Lump Sum Consultant Agreement Revised 01/01/2020 Page 1 of 1 Exhibit E Sub-consultant Cost Computations The CONSULTANT shall not sub-contract for the performance of any work under this AGREEMENT without prior written permission of the AGENCY. Refer to section VI "Sub-Contracting" of this AGREEMENT. II Agreement Number: Exhibit E-Local Agency A &E Professional Services Lump Sum Consultant Agreement Revised 01/01/2020 Page 1 of I 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: Exhibit F-Local Agency A & E Professional Services Lump Sum Consultant Agreement Revised 01/01/2020 Page 1 of 1 Exhibit G Certification Documents Exhibit G-1(a) Certification of Consultant • Exhibit G-1(b) Certification of 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 Exhibit G-4 Certificate of Current Cost or Pricing Data Agreement Number: Page 1 of 1 Exhibit G-1(a) Certification of Consultant I hereby certify that I am the and duly authorized representative of the firm of whose address is 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 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. Consultant(Firm Name) Signature(Authorized Official of Consultant) Date Agreement Number: Page 1 of 1 • Exhibit G-1(b) Certification of I hereby certify that I am the: ❑ Other of the , and or its representative has not been required, directly or indirectly as an express or implied condition in connection with obtaining or carrying out this AGREEMENT to: a) Employ or retain, or agree to employ to retain, any firm or person; or b) Pay, or agree to pay, to any firm,person, or organization, any fee, contribution, donation, or consideration of any kind; except as hereby expressly stated (if any): 1 acknowledge that this certificate is to be furnished to the and the Federal Highway Administration, U.S. Department of Transportation, in connection with this AGREEMENT involving participation of Federal-aid highway funds, and is subject to applicable State and Federal laws,both criminal and civil. Signature Date Agreement Number: Page 1 of I h � 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 (l)(b) of this certification; and D. Have not within a three (3) year period preceding this application/proposal had one or more public transactions(Federal, State and local)terminated for cause or default. 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. Consultant(Firm Name) Signature(Authorized Official of Consultant) Date Agreement Number: 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. Consultant(Firm Name) Signature(Authorized Official of Consultant) Date Agreement Number: Page 1 of 1 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 * are accurate, complete,and current as of 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***: • ti *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: Page 1 of 1 L r Exhibit H Liability Insurance Increase To Be Used Only If Insurance Requirements Are Increased The professional liability limit of the CONSULTANT to the AGENCY identified in Section XII, Legal Relations and Insurance of this Agreement is amended to $ • The CONSULTANT shall provide Professional Liability insurance with minimum per occurrence limits in the amount of$ Such insurance coverage shall be evidenced by one of the following methods: • Certificate of Insurance. • Self-insurance through an irrevocable Letter of Credit from a qualified financial institution. Self-insurance through documentation of a separate fund established exclusively for the payment of professional liability claims, including claim amounts already reserved against the fund, safeguards established for payment from the fund, a copy of the latest annual financial statements, and disclosure of the investment portfolio for those funds. Should the minimum Professional Liability insurance limit required by the AGENCY as specified above exceed $1 million per occurrence or the value of the contract, whichever is greater, then justification shall be submitted to the Federal Highway Administration (FHWA) for approval to increase the minimum insurance limit. If FHWA approval is obtained,the AGENCY may, at its own cost, reimburse the CONSULTANT for the additional professional liability insurance required. Notes: Cost of added insurance requirements: $ • Include all costs, fee increase, premiums. • This cost shall not be billed against an FHWA funded project. • For final contracts, include this exhibit. Agreement Number: Exhibit H-Local Agency A &E Professional Services Lump Sum Consultant Agreement Revised 01/01/2020 Page 1 of 1 Exhibit I Alleged Consultant Design Error Procedures The purpose of this exhibit is to establish a procedure to determine if a consultant's alleged design error is of a nature that exceeds the accepted standard of care. In addition, it will establish a uniform method for the resolution and/or cost recovery procedures in 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: Exhibit I-Local Agency A 8 E Professional Services Lump Sum Consultant Agreement Revised 01/O1/2020 Page 1 of 2 1 i 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: Exhibit I Local Agency A &E Professional Services Lump Sum Consultant Agreement Revised 01/01/2020 Page 2 of 2 Exhibit J Consultant Claim Procedures The purpose of this exhibit is to describe a procedure regarding claim(s)on a consultant agreement. The following procedures should only be utilized on consultant claims greater than$1,000. If the consultant's claim(s) are a total of$1,000 or less, it would not be cost effective to proceed through the outlined steps. It is suggested that the Director of Public Works or Agency Engineer negotiate a fair and reasonable price for the consultant's claim(s) that total$1,000 or less. This exhibit will outline the procedures to be followed by the consultant and the agency to consider a potential claim by the consultant. Step 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: Exhibit J-Local Agency A &E Professional Services Lump Sum Consultant Agreement Revised 01/01/2020 Page 1 of 2 Step 3 Preparation of Support Documentation Regarding Consultant's Claim(s) If the Agency does not agree with the consultant's claim, the project manager shall prepare a summary for the Director of Public Works 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: Exhibit J-Local Agency A &E Professional Services Lump Sum Consultant Agreement Revised 01/01/2020 Page 2 of 2 BOCC AGENDA ITEM SUMMARY Resolution: BOCC Meeting Date: Am h b, 2U20 Suggested Wording for Agenda Item: Agenda Type: Deliberation Acceptance of Agreement between Lewis County and Watershed Science and Engineering, Inc. for a Cowlitz River Floodplain Study and Authorizing Signatures Thereon Contact: Betsy Dillin Phone: 360-740-1138 Department: PW - Public Works Description: Lewis County Department of Public Works (County) seeks to develop new FEMA Flood Insurance Rate Maps (FIRMs) for the Cowlitz River in and near the community of Packwood, Washington. Existing FEMA maps for the reach of the Cowlitz near Packwood are based on an outdated 1979 study which assumed flood water from the Cowlitz River would overtop a natural ridge along the left bank of the river and flow southeast through Packwood, ultimately reaching Hall Creek to the east of town. Flooding of Packwood by the Cowlitz River has not been observed historically, including during an extreme flood in November 2006 that was estimated to be nearly a 100-year event. The County desires updated analysis and mapping will remove the Packwood downtown core from the FEMA floodplain. In addition to the Cowlitz River an updated hydraulic analysis and mapping of Hall Creek will also be required to evaluate how changes in overflows from the Cowlitz River might affect the mapping of that creek. The effective FIRMs indicate that flooding from Hall Creek may control inundation within the eastern portion of the Packwood downtown core. The project scope assumes both the Cowlitz River and Hall Creek will be studied. The County has secured funding to update the FEMA floodplain maps and selected Watershed Science and Engineering, Inc. (WSE) to prepare the update. Approvals: Publication Requirements: Publications: User Status PA's Office Approved Additional Copies: Cover Letter To: Betsy Dillin Kim Amrine Rose Williams