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HomeMy WebLinkAboutCowling & Company LLC dba Widener & Associates - Wrigley Drive Extension (#15009) (CP5.ST.3A.19.00)Agreement Number: 20-013 Local Agency Professional Services Cost Plus Fixed Fee Consultant Agreement Does this Require DES filing? ❑ Yes i No Firm/Organization Legal Name (do not use dba's): Cowling & Company LLC P Address Federal Aid Number 1902 120th Pl. SE, Suite 202, Everett, WA 98208 STPUL-3552(001) UBI Number Federal TIN 602-348-384❑ 81-4539538❑ Execution Date Completion Date 12/31/2021 1099 Form Required Federal Participation ❑ Yes No Yes ❑ No Project Title Wrigley Drive Extension Description of Work This project will extend Wrigley Drive from Clemente Lane to Convention Drive. ❑ Yes % ❑i No DBE Participation Total Amount Authorized: $24,898.40 ❑ Yes % ❑i No MBE Participation Management Reserve Fund: 0 ❑ Yes % ❑i No WBE Participation Yes % ❑ ❑i No SBE Participation Maximum Amount Payable: $24,898.40 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 *(G-3 & G-4 are not required) Exhibit I Alleged Consultant Design Error Procedures Exhibit J Consultant Claim Procedures Agreement Number: 20-013 Local Agency Professional Services Cost Plus Fixed Fee Consultant Agreement Page 1 of 14 Revised 01101/2020 THIS AGREEMENT, made and entered into as shown in the "Execution Date" box on page one (1) of this AGREEMENT, between the City of Pasco 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. 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: 20-013 Local Agency Professional Services Cost Plus Fixed Fee Consultant Agreement Page 2 of 14 Revised 01/01/2020 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, is required to enter the amounts paid to all firms (including Prime) 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: Dustin C Wittman Agency: City of Pasco Address: 525 N 3rd Ave City: Pasco Name: Jordan Widener[] Agency:Cowling & Co. LLC DBA Widener & Assoc. Address: 1902 120th Pl. SE, Suite 202 State: WA Zip: 99301 City: Everett State: WA Zip: 98208 Email: wittmand@pasco-wa.gov Email: rwidener@prodigy.net Phone: (509) 545-3447 Phone: (425) 332-3961 Facsimile: (509) 543-5728 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. This AGREEMENT may require filing with the Department of Enterprise Services (DES) pursuant to RCW 39.26.140. If such approval is required by DES, this AGREEMENT shall not bind the AGENCY until approved by DES. If the AGREEMENT must be approved by DES, work cannot begin, nor payment made until ten (10) or more working days following the date of filing, and, until approved by DES. Any subsequent SUPPLEMENTAL AGREEMENT may also be subject to filing and/or approval from DES. All work under this AGREEMENT shall be completed by the date shown in the heading of this AGREEMENT titled "Completion Date." The established completion time shall not be extended because of any delays attributable to the CONSULTANT, but may 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: 20-013 Local Agency Professional Services Cost Plus Fixed Fee Consultant Agreement Page 3 of 14 Revised 0110112020 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 A&E 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 A&E 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. (excluding Meals, which are reimbursed at the per diem rates identified in this section) 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 the WSDOT' 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: 20-013 Loca/Agency Professional Services Cost Plus Fixed Fee Consultant Agreement Page 4 of 14 Revised 01/01/2020 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 a 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, "Extra 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, "Extra 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: 20-013 Local Agency Professional Services Cost Plus Fixed Fee Consultant Agreement Page 5 of 14 Revised 01/01/2020 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: 20-013 Local Agency Professional Services Cost Plus Fixed Fee Consultant Agreement Page 6 of 14 Revised 01/01/2020 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 (42 U.S.C. Chapter 21 Subchapter V § 2000d through 2000d -4a) • Federal -aid Highway Act of 1973 (23 U.S.C. Chapter 3 § 324) • Civil Rights Restoration Act of 1987 (Public Law 100-259) • American with Disabilities Act of 1990 (42 U.S.C. Chapter 126 § 12101 et. seq.) • 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: 20-013 Local Agency Professional Services Cost Plus Fixed Fee Consultant Agreement Page 7 of 14 Revised 01/09/2020 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: 20-013 Local Agency Professional Services Cost Plus Fixed Fee Consultant Agreement Page 8 of 14 Revised 0110112020 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 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 the AGENCY'S, their agents', officers' and employees' failure to comply with specific written instructions regarding use provided to STATE and/or the AGENCY, their agents, officers and employees by the CONSULTANT, their 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 by the Parties. Agreement Number: 20-013 Local Agency Professional Services Cost Plus Fixed Fee Consultant Agreement Page 9 of 14 Revised 01101/2020 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: Dustin C Wittman Agency: City of Pasco Address: 525 N 3rd Ave City: Pasco State: WA Zip: 99301 Email: wittmand@pasco-wa.gov Phone: (509) 545-3447 Facsimile: (509) 543-5728 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: 20-013 Local Agency Professional Services Cost Plus Fixed Fee Consultant Agreement Page 10 of 14 Revised 0110112020 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 inAGREEMENT'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: 20-013 Local Agency Professional Services Cost Plus Fixed Fee Consultant Agreement Page 11 of 14 Revised 0110112020 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 and AGENCY security data, or information which may jeopardize any part of the project that relates to any of these types of information. The CONSULTANT agrees to hold the State's Confidential Information in strictest confidence and not to 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: 20-013 Local Agency Professional Services Cost Plus Fixed Fee Consultant Agreement Page 12 of 14 Revised 0110112020 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 parry; (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: 20-013 Local Agency Professional Services Cost Plus Fixed Fee Consultant Agreement Page 13 of 14 Revised 01/0112020 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, "ESP' 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. Signature I PIP Signature 04/10/20200 Date dbvlzo Date Any modification, change, or reformation of this AGREEMENT shall require approval as to form by the Office of the Attorney General. Agreement Number: 20-013 Local Agency Professional Services Cost Plus Fixed Fee Consultant Agreement Page 14 of 14 Revised 0110112020 Exhibit A Scope of Work Federal Aid No. STPUL-3552(001) For a detailed Scope of Work, please see the attached proposal submitted by Cowling & Co. LLC., dba Widener & Associates, following Exhibit J. Agreement Number: 20-013 Exhibit A - Local Agency Professional Services Cost Plus Fixed Fee Consultant Agreement Revised 0110112020 Page 1 of 1 WSDOT determined a 0% DBE goal for this project on March 16th, 2020. Exhibit B DBE Participation Agreement Number: 20-013 Exhibit B - Local Agency Professional Services Cost Plus Fixed Fee Consultant Agreement Revised 0110112020 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 N/A B. Roadway Design Files N/A C. Computer Aided Drafting Files N/A Agreement Number: 20-013 Exhibit C - Local Agency Professional Services Cost Plus Fixed Fee Consultant Agreement Revised 01/0112020 Page 1 of 4 D. Specify the Agency's Right to Review Product with the Consultant Agency has full rights to review work with Consultant, ask questions, and request revisions. E. Specify the Electronic Deliverables to Be Provided to the Agency Full details of deliverables from Consultant to Agency can be found in 'Exhibit A' under the following Sections: - Section 1.1 - Design Assistance and Early Agency Coordination - Section 1.2 - Cultural & Historic Resources - Section 1.3 - Hazardous Materials Memo - Section 1.4 - NEPA CE - Section 1.5 - Noise Study F. Specify What Agency Furnished Services and Information Is to Be Provided The Agency will supply a description of the proposed project, traffic and intersection data, roadway alignments for the existing condition and the proposed design, and a 11x17 plan and profile of the alignments. Agreement Number: 20-013 Exhibit C - Local Agency Professional Services Cost Plus Fixed Fee Consultant Agreement Revised 01/09/2020 Page 2 of 4 II. Any Other Electronic Files to Be Provided N/A III. Methods to Electronically Exchange Data E-mail or FTP site Exhibit C - Local Agency Professional Services Cost Plus Fixed Fee Consultant Agreement Revised 01101/2020 Page 3 of 4 A. Agency Software Suite Microsoft Office B. Electronic Messaging System E-mail C. File Transfers Format E-mail or FTP site Exhibit C - Local Agency Professional Services Cost Plus Fixed Fee Consultant Agreement Revised 01101/2020 Page 4 of 4 Exhibit D Prime Consultant Cost Computations For Cost computations, please see the attached Cost Computations submitted by Cowling & Co. LLC., dba Widener & Associates, following the Scope of Work. Agreement Number: 20-013 Exhibit D - Local Agency Professional Services Cost Plus Fixed Fee 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. There is no sub -consultant participating at this time. 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. See the attached proposal submitted by Cowling & Co. LLC., dba Widener & Associates. Agreement Number: 20-013 Exhibit E - Local Agency Professional Services Cost Plus Fixed Fee Consultant Agreement Revised 0110112020 Page 1 of 1 Exhibit F Title V/ 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: 20-013 Exhibit F - Local Agency Professional Services Cost Plus Fixed Fee Consultant Agreement Revised 0110112020 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 Agreement Number: 20-013 Exhibit G - Local Agency Professional Services Cost Plus Fixed Fee Consultant Agreement Revised 01/0112020 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 Cowling & Co. LLC., dba Widener & Associates whose address is 1902 120th Pl. SE, Suite 202, Everett, WA 98208 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 Pasco 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. Cowling & Company LLC DBA Widener & Associates El Consultant (Firm Name) -�y Signature (Authorized Official of Consultant) 04/10/20200 Date Agreement Number: 20-013 Exhibit G - Local Agency Professional Services Cost Plus Fixed Fee Consultant Agreement Revised 01/0112020 Page 1 of 1 Exhibit G -1(b) Certification of Agency Official I hereby certify that I am the: ❑i Public Works Director ❑ Other of the City of Pasco , 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): I acknowledge that this certificate is to be furnished to the Washington State Department of Transportation 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. �l Date Agreement Number: 20-013 Exhibit G - Local Agency Professional Services Cost Plus Fixed Fee Consultant Agreement Revised 0110112020 Page 1 of 1 Exhibit G-2 Certification Regarding Debarment, Suspension and Other Responsibility Matters - Primary Covered Transactions I. The prospective primary participant certifies to the best of its knowledge and belief, that it and its principals: A. Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions by any Federal department or agency; B. Have not within a three (3) year period preceding this proposal been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, State, or local) transaction or contract under a public transaction; violation of Federal or State anti-trust statues or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property; C. Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (Federal, State, or local) with commission of any of the offenses enumerated in paragraph (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. Cowling & Company DBA Widener & Associates Consultant (Firm Name) Signature (Authorized Official of Consultant) 04/10/202011 Date Agreement Number: 20-013 Exhibit G - Local Agency Professional Services Cost Plus Fixed Fee 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: 20-013 Exhibit I - Local Agency Professional Services Cost Plus Fixed Fee Consultant Agreement Revised 0110112020 Page 1 of 2 Step 5 Forward Documents to Local Programs For federally funded projects all available information, including costs, should be forwarded through the Region Local Programs Engineer to LP for their review and consultation with the FHWA. LP will meet with representatives of the agency and the consultant to review 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: 20-013 Exhibit I - Local Agency Professional Services Cost Plus Fixed Fee Consultant Agreement Revised 0110112020 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: 20-013 Exhibit J - Local Agency Professional Services Cost Plus Fixed Fee Consultant Agreement Revised 01101/2020 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: 20-013 Exhibit J - Local Agency Professional Services Cost Plus Fixed Fee Consultant Agreement Revised 0110112020 Page 2 of 2 Widener & Associates Transportation & Environmental Planning 1902 120'x' PL. SE. STE 202 Everett, WA 98208 SCOPE OF SERVICES Tel (425)-332-3961 TASK 1.0 - ENVIRONMENTAL DOCUMENTATION (WIDENER) Widener and Associates will assist the City in the preparation of environmental documentation of the project by providing the following services. 1.1 Design Assistance and Early Agency Coordination Early input into the formation of project alternatives will be provided to ensure each alternative includes provisions to minimize impacts to the surrounding environment. This coordination within the various design elements of the project will identify and incorporate minimization measures early in the alternative development phase of the project and will ensure that an appropriate range of alternatives are developed prior to the agency coordination. 1.2 Cultural and Historic Resources This work would include the preparation of the report in accordance with the Washington State Department of Archaeology and Historic Preservation Office standards and guidelines. The work will include the following subtasks. Pertinent literature on the archaeology, ethnography of the project area will be reviewed to determine the existence of archaeological sites and to refine the probability of archaeological resources and traditional cultural places in the project areas. The Consultant will maintain contact with the local tribes for any information on historic Indian use of the project area. A systematic field reconnaissance will be conducted to identify previously recorded and/or unrecorded archaeological sites for the proposed project where ground -disturbing activities are expected to take place. Field reconnaissance will consist of the traverse of pedestrian transects at varying intervals, depending on terrain throughout the proposed project area. Shovel probes (digging a hole with a shovel) will be excavated, as deep as feasible, and in areas expected to have a high probability for cultural resources. Shovel probes will be augmented through auger probes to explore the deepest possible deposits. Shovel probes will be screened in highly probable areas and in soil matrixes too dense to identify small chipping debris. All new sites will be mapped, photographed, and recorded on Washington State Archeological Inventory forms and submitted to the state Office of Archeological and Historic Preservation (OAHP) for Smithsonian numbers. Every effort will be made to include Tribal cultural resources personnel in assisting the field effort. Rights -of -entry will be provided by the City. Deliverables: One (1) electronic PDF of a draft report will be prepared to describe cultural resources identified in the project area to meet state and federal standards for reporting as outlined in the guidelines provided by the DAHP. The report will include summary background information appropriate to a cultural resources assessment of the project area, including environment, previous cultural resources studies. A discussion of agency and Tribal consultation, methodology, the results of the investigation, and a map of located archaeological sites will be provided. Recommendations will also be extended to any cultural resources that may be significant. Monitoring of construction excavation recommendations may also be included. The historic structures inventory form and/or archaeological site inventory form will be attached to the report as an appendix. One (1) electronic PDF of a revised draft Report incorporating City comments. Three copies of a final report incorporating DAHP and Tribal comments. 1.3 Hazardous Materials Memo A Hazardous Materials Memo will be prepared to evaluate the presence, or likely presence, of potential hazardous substances within the physical limits of the project that would have an effect on the overcrossing project. Sites with potential for environmental issues/impacts include those that indicate current or past uses as service stations, battery shops, dry cleaners, chemical storage, or manufacturing facilities; sites with fuel or chemical storage tanks or drums present; or those with strong pungent or noxious odors. The scope of services for this study will include: 1. A review of the results of a federal, state, and local environmental database search provided by an outside environmental data service for listings of known or suspected environmental problems at the sites or nearby properties within the search distances specified by WSDOT. 2. A review of historical aerial photographs, fire insurance maps, city directories, chain -of -title reports, and tax assessor records, as available and appropriate, to identify past development history on the parcels relative to the possible use, generation, storage, release, or disposal of hazardous substances. An attempt to identify uses of the sites from the present to the time that records show no apparent development of the site, or to 1940, whichever is earlier. 3. Conduct a visual reconnaissance of the parcels and adjacent properties to identify visible evidence of potential sources of contamination. 4. A letter report that will summarize the results of this study. The letter report will briefly discuss the project activities and include a table ranking the parcels (low, moderate, high) by their potential for contamination from either on-site or off-site sources. A draft letter report will be provided for review and comment. Upon receiving comments, the letter will be modified as appropriate and made final. Deliverables: • Electronic copy of the draft Hazmat Memo will be provided. • Electronic copy of the Hazmat Memo will be provided incorporating City comments. • Electronic copy of the final Hazmat Memo will be provided incorporating WSDOT/FHWA comments if required. It is assumed that WSDOT/FHWA comments will not alter the basic conclusion of the documentation or require further alternative studies. 1.4 NEPA CE Services will be provided to prepare a NEPA Categorical Exclusion Documentation Form (CE) with supporting documentation as required by WSDOT for projects that receive federal funding through WSDOT (Environmental Procedures Manual, Section 300.04). The CE will include the recommended NEPA determination (assumed to be a Class II, Documented Categorical Exclusion). We will document this assumption following the WSDOT Local Agency Guidance (LAG) manual. The project will be determined to be a Class II Documented Categorical Conclusion and neither a NEPA Environmental Impact Statement nor an Environmental Assessment will be required. Deliverables: Electronic copy of the draft ECS will be provided. Electronic copy of the final ECS documentation will be provided incorporating County comments. Electronic copy of the final ECS documentation will be provided incorporating WSDOT/FHWA comments if required. It is assumed that WSDOT/FHWA comments will not alter the basic conclusion of the documentation or require further alternative studies. 1.5 Noise Study The purpose of the Traffic Noise Report is to evaluate traffic noise levels at sensitive receptors near the project that would be potentially affected by traffic noise and to identify potential mitigation measures. The Traffic Noise Report will be developed in accordance with the Washington State Department of Transportation's Environmental Procedures Manual. 1. Sound Level Measurements: After review of the proposed project alternatives the Consultant shall visit the project area to identify potentially sensitive noise receivers and to take measurements of existing sound levels. The Consultant will measure existing noise levels during the peak hours to be used in calibrating the noise model. Measurements will be undertaken in accordance with WSDOT and FHWA guidelines and will be made with a Type 1 sound level meter. During these measurements, sources of existing noise and topographical features will be noted and traffic speeds and vehicle numbers and mix will be noted. 2. Construction Noise Impact Evaluation: The noise analysis will evaluate potential short-term impacts of noise from construction activities. Construction noise on nearby sensitive receptors will be evaluated based on estimates published by the U.S. Environmental Protection Agency (EPA) of maximum noise levels of typical construction equipment in conjunction with simple distance attenuation. Computer modeling of construction noise levels will not be performed. 3. Traffic Noise Impact Evaluation: The Consultant will evaluate traffic noise impacts using the FHWA Traffic Noise Model (TNM) to estimate future traffic noise levels for the worst-case build alternative. The worst-case scenario will be selected from among the build alternatives, and will be chosen based on expected future traffic volumes and the location of the alignment relative to sensitive receivers. The noise modeling will predict PM peak -hour Leq noise levels from traffic at a maximum of fifteen (15) receptor locations that could be affected by the proposed project and will consider existing conditions and design year conditions. Modeling to calculate noise contour lines is not included. 4. Mitigation Analysis: The Consultant will identify mitigation measures to reduce noise levels during construction. If predicted long-term traffic noise levels from operation of the project would cause noise impacts, mitigation measures will be developed in cooperation with the lead agency and design engineers. Mitigation analysis, if required, will include evaluation of the effectiveness and general size and location of natural and man-made noise barriers using the TNM model. Deliverables: • Electronic copy of a draft Traffic Noise Analysis Report for review by City with accompanying draft special provisions if required. • Electronic copy of a draft Traffic Noise Analysis Report, incorporating the City's comments, for submittal to FHWA/WSDOT. • Electronic copy of a revised draft Traffic Noise Analysis Report, incorporating comments by FHWA/WSDOT submittal for approval. Project Name Client Location Wrigley Drive Extension City of Pasco Engineering City of Pasco Date 3/5/2020 Project Senior Manager Biologist Project Biologist Hours Hours Hours NEPA CE Draft 6 24 Final 4 6 Section 106 APE 4 8 Final Report 4 4 Hazmat Draft Report 4 8 Final Report 2 4 Noise Study Report Field Work 4 2 12 Data Analysis 81 2 40 Draft Report 81 5 24 Final Report 21 4 7 Total hours 46 13 137 Hours Rate * Cost Summary 46 $170.40 $7,838.40 Environmental Manager 13 $120.00 $1,560.00 Senior Biologist 137 $76.80 $10,521.60 Project Biologist Expense Section 106 $4,500 Mileage 480 miles @ .58 & $200 for 2 nights $478 $24,898.40 TOTAL ESTIMATED COST * ANTE On -Call Rates Request for Sole Source Consultant Services Checklist for Submitting a Request for Sole Source Consulting Services (Adapted in part from a WSDOT Memorandum: Request for Consultant Services, A&E Services Project Specific Sole Source) The following checklist must be provided with requests to use sole source consultant services, rather than competitive bid procedures, on a project: Agency: City of Pasco Project Title: Wrigley Drive Extension Date: 4/11/2020 Federal -Aid Number: STPUL-3552(001) Checklist for a Supplement to an Existing Agreement Description of the Existing Project: Initials Date or N/A Checklist items for a Supplement to an Existing A reement MLS N/A Date the pnoject was originally advertised. MLS N/A Date the original A eement was executed. MLS I N/A Completion date of the original Agreement. MLS N/A Total dollar amount of the ori'nal Agreement Click -lien: to cuter tcxt- MLS N/A Date Supplemental Agreement Number 1 was executed. MLS N/A Completion date of Supplemental Agreement Number 1. MLS N/A Total dollar amount of Supplemental A eement Number 1. MLS N/A Describe the reason(s) for Supplemental Agreement Number 1. (Note: Using an electronic form of this checklist, provide the above information for each existing Supplemental Agreement, numbering the Supplements sequentially.) Checklist for Both a New Agreement and Supplement to an Existing Agreement Initials Date or N/A Checklist Items — New and Supplements to Agreements MLS 4/16/20 Describe the proposed project for the Sole Source Agreement: Wrigley Drive Extension Environmental Services was advertised for qualifications on two separate occasions. The project was first advertised on July 28, 2019 (also the following week) with a closing date of August 20, 2019. No qualifications were submitted by potential consultants. After reaching out to WSDOT Local Programs, the City was advised to advertise the project again. The project was advertised a second time on September 1, 2019 (also the following week) with a closing date of September 24, 2019. Again, no qualifications were provided by potential consultants. On each occasion, the advertisement was published in the paper of record as required, but it did not receive an responses. Since no responses were received during either 3 -week DOT 140-567 Page 1 of 3 10/2015 Initials Date or N/A Checklist Items -- New and Supplements to Agreements _ advertising periods, WSDOT Local Programs indicated a non-competitive contract award would be allowed. The City of Pasco is seeking a non-competitive award to continue progressing the project. MLS 4/16/20 State the specific intended purpose of the Agreement and describe the services and/or deliverables that are needed: (Note. If two or more phases of work are anticipated, describe each phase separately.) This contract is for environmental services in the PE phase only. Anticipated deliverables include: cultural & historic resources review, hazardous materials memo, noise study, NEPA, and SEPA. MLS 4/16/20 Date that the sole source consulting services are desired. April 2020. MLS 4/16/20 Duration ofwork/phase I of work 4 months (Repeat this lime for each phase of work, numbering therm sequentially.[ Describe the funding sources of the project (including participation percentages): Federal funding (STPUL) and local match. Federal funding is at 86.5% with local match at 13.5%. MLS 4/16120 Provide the estimated cost of the services that will be performed by the sole; source consultant": $25,000 MLS N/A Provide the estimated cost of services to be Provided by a subconsultant: $0.00 Describe the work to be performed by a subconsultant. MLS N/A N/A MLS 4/16/20 Provide justification for the use of sole source consultant services (i.e., how it was determined that competitive procurement is not appropriate for this project) by giving an explanation to the items listed below: The City has advertised the project two separate times (3 weeks each) and received no statements of qualification either time. MLS 4/16/20 Describe the unique nature of the services and./or the unique qualifications, abilities or expertise of the consultant to meet the agency's needs (e.g., describe how they are highly specialized or one -of —a -kind, include other factors which may be considered, such as what is their past performance, cost effectiveness [learning curve), and /or the follow-up nature of the required services): The selected consultant must have the availability and expertise to perform environmental studies such as a Noise Study. There are several consultants who could perform this work, but they must have the equipment and expertise in house to perform these studies. Widener and Associates has developed a strong history with the City of Pasco working on the Lewis Street Overpass Project_ Widener is willing, qualified, and able to perform the work required to achieve environmental compliance. MLS 4/16/20 Describe other special circumstances which may be relevant, such as confidential investigations, copyright restrictions or time constraints, if time constraints are applicable, identify when the agency was on notice of the need OOT 140-567 Page 2 of 3 9012015 Initials Date or NIA Checklist Items — New and Supplements to A eements for the services and the entity that imposed the constraints, explain the authority (if not obvious) of the entity to impose them, and provide the timelines within which the work must be accomplished. MLS ` 4116/20 1 MLS Agency After no qualifications were submitted, the City reached out to several consultants to understand the lack of interest. Most consultants indicated the same idea - the project is too small to prepare a qualification package. With this non-competitive award, a qualified consultant can be contracted to completed the required environmental documents. if environmental can not completed, the City will be unable to construct this important roadway for the citizens of Pasco. Describe the availability of consultants in the location required (e.g., if the proposed consultant is the only source available in the geographical arca, state the basis for this conclusion and the rationale for limiting the size of the geographical area selected): There are several consultants in the geographical area who could potentially perform these necessary services, but none have responded to the two separate advertisements for consultant services. 4116/20j Disadvantaged Business Enterprise (DBE) goals may apply on a federally l funded project. Explain reason(s) for waiving DBE participation goals: I A DBE/UDBE goal of 0% was established for this oroiect. Signature of Agency Official Recommended Approval r• Region Local Programs Engineer Approval lAbDigitally signed by John Ho, PE Date: 2020.04.20 11:59:06 -07'00' Local Programs Doi 940-567 10/2095 Date �zo 2, Date Date Page 3 of 3 Clientlt- 1A94442 COWLICO ACORDTM CERTIFICATE OF LIABILITY INSURANCE YYYY) r 4/20DATE (M 4120/2020 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer any rights to the certificate holder in lieu of such endorsement(s). PRODUCER USI Insurance Services NW PR 601 Union Street, Suite 1000 CONTACT Please See Below: NAME: �"8"Nt:206441-6300 NC, No: E-MAIL ADDRESS: select@usi.com INSURERS AFFORDING COVERAGE NAIC # Seattle, WA 98101 INSURER A: Sentinel Insurance Company Ltd 11000 52SBUAE1390 INSURED INSURER B: Continental Casualty Company 20443 Cowling And Co. L.L.C. DBA Widener & Associates 1902 120th PL SE, Suite 202 Everett, WA 98208-6292 INSURER C INSURER D INSURER E: INSURER F COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACTOR 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. LTR TYPE OF INSURANCE ADINSR WVD POLICY NUMBER POLICY EFF MPMLDDY EXP LIMITS A X COMMERCIAL GENERAL LIABILITY X X 52SBUAE1390 1/28/2020 01/28/2021 EACH�OECTCURRENCE s2,000,000 PREMISES Ea o 'unence $1 1 000 1 000 CLAIMS -MADE � OCCUR MED EXP (Any one person) $10,000 PERSONAL & ADV INJURY $2,000,000 L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $4,000,000 POLICY F JETLOC r'OTHER: PRODUCTS-COMPIOPAGG $4,000,000 $ A AUTOMOBILE LIABILITY X X 52SBUAE1390 1/28/2020 01/28/2021 MENED Ea aocdenlSINGLE LIMIT $2,000,000 BODILY INJURY (Per person) $ ANY AUTO BODILY INJURY (Per accident) $ OWNED SCHEDULED AUTOS ONLY AUTOS X HIRED X NON -OWNED AUTOS ONLY AUTOS ONLY OP.E dent DAMAGE $ Par. UMBRELLA LIAB H OCCUR EACH OCCURRENCE $ AGGREGATE $ EXCESS LIAB CLAIMS -MADE DED RETENTION $ $ 1 A WORKERS COMPENSATION AND EMPLOYERS' LIABILITY ANY PROPRIETOR/PARTNER/EXECUTIVE Y / N OFFICER/MEMBER EXCLUDED? F_N] (Mandatory in NH) N 1 A X 52SBUAE1390 (WA Stop Gap) 1/28/2020 01/28/2021 OTH- PERUTF 1.X IER E.L. EACH ACCIDENT $1,000,000 E.L. DISEASE - EA EMPLOYEE $1,000,000 E.L. DISEASE - POLICY LIMIT $1,000,000 If yes, describe under DESCRIPTION OF OPERATIONS below B Professional EEM591907501 2/17/2020 02/17/2021 $1,000,000 per claim Liability $1,000,000 annl aggr. DESCRIPTION OF OPERATIONS / LOCATIONS 1 VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) RE: Wrigley Drive Extension. The General Liability policy includes an automatic Additional Insured endorsement that provides Additional Insured status to the Certificate Holder, only when there is a written contract that requires such status, and only with regard to work performed on behalf of the named insured. City Of PBSCO SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE y THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN Attn: Dustin C Wittman ACCORDANCE WITH THE POLICY PROVISIONS. 525 N 3rd Ave. Pasco, WA 99301 AUTHORIZED REPRESENTATIVE ©1988-2015 ACORD CORPORATION. All rights reserved. ACORD 25 (2016103) 1 Of 1 The ACORD name and logo are registered marks of ACORD #S28555327/M28168055 BXFZP This page has been left blank intentionally. BUSINESS LIABILITY COVERAGE FORM Form SS 00 08 04 05 0 2005, The Hartford (b) Rented to, in the care, custody or control of, or over which physical control is being exercised for any purpose by you, any of your "employees", "volunteer workers", any partner or member (if you are a partnership or joint venture), or any member (if you are a limited liability company). b. Real Estate Manager Any person (other than your "employee" or "volunteer worker"), or any organization while acting as your real estate manager. c. Temporary Custodians Of Your Property Any person or organization having proper temporary custody of your property if you die, but only: (1) With respect to liability arising out of the maintenance or use of that property; and (2) Until your legal representative has been appointed. d. Legal Representative If You Die Your legal representative if you die, but only with respect to duties as such. That representative will have all your rights and duties under this insurance. e. Unnamed Subsidiary Any subsidiary and subsidiary thereof, of yours which is a legally incorporated entity of which you own a financial interest of more than 50% of the voting stock on the effective date of this Coverage Part. The insurance afforded herein for any subsidiary not shown in the Declarations as a named insured does not apply to injury or damage with respect to which an insured under this insurance is also an insured under another policy or would be an insured under such policy but for its termination or upon the exhaustion of its limits of insurance. 3. Newly Acquired Or Formed Organization Any organization you newly acquire or form, other than a partnership, joint venture or limited liability company, and over which you maintain financial interest of more than 50% of the voting stock, will qualify as a Named Insured if there is no other similar insurance available to that organization. However: a. Coverage under this provision is afforded only until the 180th day after you acquire or form the organization or the end of the policy period, whichever is earlier; and BUSINESS LIABILITY COVERAGE FORM b. Coverage under this provision does not apply to: (1) 'Bodily injury" or "property damage" that occurred; or (2) "Personal and advertising injury" arising out of an offense committed before you acquired or formed the organization. 4. Operator Of Mobile Equipment With respect to "mobile equipment" registered in your name under any motor vehicle registration law, any person is an insured while driving such equipment along a public highway with your permission. Any other person or organization responsible for the conduct of such person is also an insured, but only with respect to liability arising out of the operation of the equipment, and only if no other insurance of any kind is available to that person or organization for this liability. However, no person or organization is an insured with respect to: a. 'Bodily injury" to a co -"employee" of the person driving the equipment; or b. "Property damage" to property owned by, rented to, in the charge of or occupied by you or the employer of any person who is an insured under this provision. 5. Operator of Nonowned Watercraft With respect to watercraft you do not own that is less than 51 feet long and is not being used to carry persons for a charge, any person is an insured while operating such watercraft with your permission. Any other person or organization responsible for the conduct of such person is also an insured, but only with respect to liability arising out of the operation of the watercraft, and only if no other insurance of any kind is available to that person or organization for this liability. However, no person or organization is an insured with respect to: a. 'Bodily injury" to a co -"employee" of the person operating the watercraft; or b. 'Property damage" to property owned by, rented to, in the charge of or occupied by you or the employer of any person who is an insured under this provision. Additional Insureds When Required By Written Contract, Written Agreement Or Permit The person(s) or organization(s) identified in Paragraphs a. through f. below are additional insureds when you have agreed, in a written Form SS 00 08 04 05 Page 11 of 24 BUSINESS LIABILITY COVERAGE FORM contract, written agreement or because of a (e) Any failure to make such permit issued by a state or political inspections, adjustments, tests or subdivision, that such person or organization servicing as the vendor has be added as an additional insured on your agreed to make or normally policy, provided the injury or damage occurs undertakes to make in the usual subsequent to the execution of the contract or course of business, in connection agreement, or the issuance of the permit. with the distribution or sale of the A person or organization is an additional products; (f) Demonstration, installation, insured under this provision only for that period of time required by the contract, servicing or repair operations, agreement or permit. except such operations performed at the vendor's premises in However, no such person or organization is an connection with the sale of the additional insured under this provision if such product; person or organization is included as an additional insured by an endorsement issued (g) Products which, after distribution by us and made a part of this Coverage Part, or sale you, have been labeled including all persons or organizations added or relabeled used a as additional insureds under the specific container, part orr ingredient oof f any additional insured coverage grants in Section other thing or substance by or for F. — Optional Additional Insured Coverages. the vendor; or a. Vendors (h) "Bodily injury" or "property damage" arising out of the sole Any person(s) or organization(s) (referred to negligence of the vendor for its below as vendor), but only with respect to own acts or omissions or those of "bodily injury" or "property damage" arising its employees or anyone else out of "your products" which are distributed acting on its behalf. However, this or sold in the regular course of the vendor's exclusion does not apply to: business and only if this Coverage Part provides coverage for "bodily injury" or (i) The exceptions contained in "property damage" included within the Subparagraphs (d) or (f); or "products -completed operations hazard". (ii) Such inspections, adjustments, (1) The insurance afforded to the vendor tests or servicing as the vendor is subject to the following additional has agreed to make or normally exclusions: undertakes to make in the usual course of business, in This insurance does not apply to: connection with the distribution (a) "Bodily injury" or "property or sale of the products. damage" for which the vendor is (2) This insurance does not apply to any obligated to pay damages by insured person or organization from reason of the assumption of whom you have acquired such products, liability in a contract or agreement. or any ingredient, part or container, This exclusion does not apply to entering into, accompanying or liability for damages that the containing such products. vendor would have in the absence of the contract or agreement; b. Lessors Of Equipment (b) Any express warranty (1) Any person or organization from unauthorized by you; whom you lease equipment; but only with respect to their liability for "bodily (c) Any physical or chemical change injury", "property damage" or in the product made intentionally "personal and advertising injury" by the vendor; caused, in whole or in part, by your (d) Repackaging, except when maintenance, operation or use of unpacked solely for the purpose of equipment leased to you by such inspection, demonstration, testing, person or organization. or the substitution of parts under instructions from the manufacturer, and then repackaged in the original container; Page 12 of 24 Form SS 00 08 04 05 (2) With respect to the insurance afforded to these additional insureds, this insurance does not apply to any "occurrence" which takes place after you cease to lease that equipment. c. Lessors Of Land Or Premises (1) Any person or organization from whom you lease land or premises, but only with respect to liability arising out of the ownership, maintenance or use of that part of the land or premises leased to you. (2) With respect to the insurance afforded to these additional insureds, this insurance does not apply to: (a) Any "occurrence" which takes place after you cease to lease that land or be a tenant in that premises; or BUSINESS LIABILITY COVERAGE FORM e. Permits Issued By State Or Political Subdivisions (1) Any state or political subdivision, but only with respect to operations performed by you or on your behalf for which the state or political subdivision has issued a permit. (2) With respect to the insurance afforded to these additional insureds, this insurance does not apply to: (a) "Bodily injury", "property damage" or "personal and advertising injury" arising out of operations performed for the state or municipality; or (b) "Bodily injury" or "property damage" included within the "products - completed operations hazard". f. Any Other Party (b) Structural alterations, new (1) Any other person or organization who construction or demolition is not an insured under Paragraphs a. operations performed by or on through e. above, but only with behalf of such person or respect to liability for "bodily injury", organization. "property damage" or "personal and d. Architects, Engineers Or Surveyors advertising injury" caused, in whole or (1) Any architect, engineer, or surveyor, but in part, by your acts or omissions or only with respect to liability for "bodily the acts or omissions of those acting injury", "property damage" or "personal on your behalf: and advertising injury" caused, in whole (a) In the performance of your or in part, by your acts or omissions or ongoing operations; the acts or omissions of those acting on (b) In connection with your premises your behalf: owned by or rented to you; or (a) In connection with your premises; (c) In connection with "your work" and or included within the "products - (b) In the performance of your completed operations hazard", but ongoing operations performed by only if you or on your behalf. (i) The written contract or written (2) With respect to the insurance afforded agreement requires you to to these additional insureds, the provide such coverage to following additional exclusion applies: such additional insured; and This insurance does not apply to (ii) This Coverage Part provides "bodily injury", "property damage" or coverage for "bodily injury" or "personal and advertising injury" "property damage" included arising out of the rendering of or the within the "products - failure to render any professional completed operations hazard". services by or for you, including: (2) With respect to the insurance afforded (a) The preparing, approving, or to these additional insureds, this failure to prepare or approve, insurance does not apply to: maps, shop drawings, opinions, "Bodily injury", "property damage" or reports, surveys, field orders, "personal and advertising injury" change orders, designs or arising out of the rendering of, or the drawings and specifications; or failure to render, any professional (b) Supervisory, inspection, architectural, engineering or surveying architectural or engineering services, including: activities. Form SS 00 08 04 05 Page 13 of 24 BUSINESS LIABILITY COVERAGE FORM (a) The preparing, approving, or failure to prepare or approve, maps, shop drawings, opinions, reports, surveys, field orders, change orders, designs or drawings and specifications; or (b) Supervisory, inspection, architectural or engineering activities. The limits of insurance that apply to additional insureds are described in Section D. — Limits Of Insurance. How this insurance applies when other insurance is available to an additional insured is described in the Other Insurance Condition in Section E. — Liability And Medical Expenses General Conditions. No person or organization is an insured with respect to the conduct of any current or past partnership, joint venture or limited liability company that is not shown as a Named Insured in the Declarations. D. LIABILITY AND MEDICAL EXPENSES LIMITS OF INSURANCE 1. The Most We Will Pay The Limits of Insurance shown in the Declarations and the rules below fix the most we will pay regardless of the number of: a. Insureds; b. Claims made or "suits" brought; or c. Persons or organizations making claims or bringing "suits". 2. Aggregate Limits The most we will pay for: a. Damages because of "bodily injury" and "property damage" included in the "products -completed operations hazard" is the Products -Completed Operations Aggregate Limit shown in the Declarations. b. Damages because of all other "bodily injury", "property damage" or "personal and advertising injury", including medical expenses, is the General Aggregate Limit shown in the Declarations. This General Aggregate Limit applies separately to each of your "locations" owned by or rented to you. "Location" means premises involving the same or connecting lots, or premises whose connection is interrupted only by a street, roadway or right-of-way of a railroad. This General Aggregate limit does not apply to "property damage" to premises while rented to you or temporarily occupied by you with permission of the owner, arising out of fire, lightning or explosion. 3. Each Occurrence Limit Subject to 2.a. or 2.b above, whichever applies, the most we will pay for the sum of all damages because of all "bodily injury", "property damage" and medical expenses arising out of any one 'occurrence" is the Liability and Medical Expenses Limit shown in the Declarations. The most we will pay for all medical expenses because of "bodily injury" sustained by any one person is the Medical Expenses Limit shown in the Declarations. 4. Personal And Advertising Injury Limit Subject to 2.b. above, the most we will pay for the sum of all damages because of all "personal and advertising injury" sustained by any one person or organization is the Personal and Advertising Injury Limit shown in the Declarations. 5. Damage To Premises Rented To You Limit The Damage To Premises Rented To You Limit is the most we will pay under Business Liability Coverage for damages because of "property damage" to any one premises, while rented to you, or in the case of damage by fire, lightning or explosion, while rented to you or temporarily occupied by you with permission of the owner. In the case of damage by fire, lightning or explosion, the Damage to Premises Rented To You Limit applies to all damage proximately caused by the same event, whether such damage results from fire, lightning or explosion or any combination of these. 6. How Limits Apply To Additional Insureds The most we will pay on behalf of a person or organization who is an additional insured under this Coverage Part is the lesser of: a. The limits of insurance specified in a written contract, written agreement or permit issued by a state or political subdivision; or b. The Limits of Insurance shown in the Declarations. Such amount shall be a part of and not in addition to the Limits of Insurance shown in the Declarations and described in this Section. Page 14 of 24 Form SS 00 08 04 05 BUSINESS LIABILITY COVERAGE FORM If more than one limit of insurance under this (1) Immediately send us copies of any policy and any endorsements attached thereto demands, notices, summonses or applies to any claim or "suit", the most we will pay legal papers received in connection under this policy and the endorsements is the with the claim or "suit"; single highest limit of liability of all coverages (2) Authorize us to obtain records and applicable to such claim or "suit". However, this other information; paragraph does not apply to the Medical Expenses (3) Cooperate with us in the investigation, limit set forth in Paragraph 3. above. settlement of the claim or defense The Limits of Insurance of this Coverage Part apply against the "suit"; and separately to each consecutive annual period and to (4) Assist us, upon our request, in the any remaining period of less than 12 months, starting enforcement of any right against any with the beginning of the policy period shown in the person or organization that may be Declarations, unless the policy period is extended liable to the insured because of injury after issuance for an additional period of less than 12 or damage to which this insurance months. In that case, the additional period will be may also apply. deemed part of the last preceding period for purposes d. Obligations At The Insured's Own Cost of determining the Limits of Insurance. E. LIABILITY AND MEDICAL EXPENSES No insured will, except at that insured's own cost, voluntarily make a payment, assume GENERAL CONDITIONS any obligation, or incur any expense, other 1. Bankruptcy than for first aid, without our consent. Bankruptcy or insolvency of the insured or of e. Additional Insured's Other Insurance the insured's estate will not relieve us of our If we cover a claim or "suit" under this obligations under this Coverage Part. Coverage Part that may also be covered 2. Duties In The Event Of Occurrence, by other insurance available to an Offense, Claim Or Suit additional insured, such additional insured a. Notice Of Occurrence Or Offense must submit such claim or "suit" to the other insurer for defense and indemnity. You or any additional insured must see to However, this provision does not apply to it that we are notified as soon as "occurrence" the extent that you have agreed in a practicable of an or an written contract, written agreement or offense which may result in a claim. To permit that this insurance is primary and the extent possible, notice should include: non-contributory with the additional (1) How, when and where the "occurrence" insured's own insurance. or offense took place; f. Knowledge Of An Occurrence, Offense, (2) The names and addresses of any Claim Or Suit injured persons and witnesses; and Paragraphs a. and b. apply to you or to (3) The nature and location of any injury any additional insured only when such or damage arising out of the "occurrence", offense, claim or "suit" is "occurrence" or offense. known to: b. Notice Of Claim (1) You or any additional insured that is If a claim is made or "suit" is brought an individual; against any insured, you or any additional (2) Any partner, if you or an additional insured must: insured is a partnership; (1) Immediately record the specifics of the (3) Any manager, if you or an additional claim or "suit" and the date received; insured is a limited liability company; and (4) Any "executive officer" or insurance (2) Notify us as soon as practicable. manager, if you or an additional You or any additional insured must see to insured is a corporation; it that we receive a written notice of the (5) Any trustee, if you or an additional claim or "suit" as soon as practicable. insured is a trust; or c. Assistance And Cooperation Of The (6) Any elected or appointed official, if you Insured or an additional insured is a political You and any other involved insured must: subdivision or public entity. Form SS 00 08 04 05 Page 15 of 24 BUSINESS LIABILITY COVERAGE FORM This Paragraph f. applies separately to you and any additional insured. 3. Financial Responsibility Laws a. When this policy is certified as proof of financial responsibility for the future under the provisions of any motor vehicle financial responsibility law, the insurance provided by the policy for "bodily injury" liability and "property damage" liability will comply with the provisions of the law to the extent of the coverage and limits of insurance required by that law. b. With respect to "mobile equipment" to which this insurance applies, we will provide any liability, uninsured motorists, underinsured motorists, no-fault or other coverage required by any motor vehicle law. We will provide the required limits for those coverages. 4. Legal Action Against Us No person or organization has a right under this Coverage Form: a. To join us as a party or otherwise bring us into a "suit" asking for damages from an insured; or b. To sue us on this Coverage Form unless all of its terms have been fully complied with. A person or organization may sue us to recover on an agreed settlement or on a final judgment against an insured; but we will not be liable for damages that are not payable under the terms of this insurance or that are in excess of the applicable limit of insurance. An agreed settlement means a settlement and release of liability signed by us, the insured and the claimant or the claimant's legal representative. 5. Separation Of Insureds Except with respect to the Limits of Insurance, and any rights or duties specifically assigned in this policy to the first Named Insured, this insurance applies: a. As if each Named Insured were the only Named Insured; and b. Separately to each insured against whom a claim is made or "suit" is brought. 6. Representations a. When You Accept This Policy By accepting this policy, you agree: (1) The statements in the Declarations are accurate and complete; (2) Those statements are based upon representations you made to us; and (3) We have issued this policy in reliance upon your representations. b. Unintentional Failure To Disclose Hazards If unintentionally you should fail to disclose all hazards relating to the conduct of your business at the inception date of this Coverage Part, we shall not deny any coverage under this Coverage Part because of such failure. 7. Other Insurance If other valid and collectible insurance is available for a loss we cover under this Coverage Part, our obligations are limited as follows: a. Primary Insurance This insurance is primary except when b. below applies. If other insurance is also primary, we will share with all that other insurance by the method described in c. below. b. Excess Insurance This insurance is excess over any of the other insurance, whether primary, excess, contingent or on any other basis: (1) Your Work That is Fire, Extended Coverage, Builder's Risk, Installation Risk or similar coverage for "your work"; (2) Premises Rented To You That is fire, lightning or explosion insurance for premises rented to you or temporarily occupied by you with permission of the owner; (3) Tenant Liability That is insurance purchased by you to cover your liability as a tenant for "property damage" to premises rented to you or temporarily occupied by you with permission of the owner; (4) Aircraft, Auto Or Watercraft If the loss arises out of the maintenance or use of aircraft, "autos" or watercraft to the extent not subject to Exclusion g. of Section A. — Coverages. (5) Property Damage To Borrowed Equipment Or Use Of Elevators If the loss arises out of "property damage" to borrowed equipment or the use of elevators to the extent not subject to Exclusion k. of Section A. — Coverages. Page 16 of 24 Form SS 00 08 04 05 (6) When You Are Added As An Additional Insured To Other Insurance That is other insurance available to you covering liability for damages arising out of the premises or operations, or products and completed operations, for which you have been added as an additional insured by that insurance; or (7) When You Add Others As An Additional Insured To This Insurance That is other insurance available to an additional insured. However, the following provisions apply to other insurance available to any person or organization who is an additional insured under this Coverage Part: (a) Primary Insurance When Required By Contract This insurance is primary if you have agreed in a written contract, written agreement or permit that this insurance be primary. If other insurance is also primary, we will share with all that other insurance by the method described in c. below. (b) Primary And Non -Contributory To Other Insurance When Required By Contract If you have agreed in a written contract, written agreement or permit that this insurance is primary and non-contributory with the additional insured's own insurance, this insurance is primary and we will not seek contribution from that other insurance. Paragraphs (a) and (b) do not apply to other insurance to which the additional insured has been added as an additional insured. When this insurance is excess, we will have no duty under this Coverage Part to defend the insured against any "suit" if any other insurer has a duty to defend the insured against that "suit". If no other insurer defends, we will undertake to do so, but we will be entitled to the insured's rights against all those other insurers. BUSINESS LIABILITY COVERAGE FORM When this insurance is excess over other insurance, we will pay only our share of the amount of the loss, if any, that exceeds the sum of: (1) The total amount that all such other insurance would pay for the loss in the absence of this insurance; and (2) The total of all deductible and self- insured amounts under all that other insurance. We will share the remaining loss, if any, with any other insurance that is not described in this Excess Insurance provision and was not bought specifically to apply in excess of the Limits of Insurance shown in the Declarations of this Coverage Part. c. Method Of Sharing If all the other insurance permits contribution by equal shares, we will follow this method also. Under this approach, each insurer contributes equal amounts until it has paid its applicable limit of insurance or none of the loss remains, whichever comes first. If any of the other insurance does not permit contribution by equal shares, we will contribute by limits. Under this method, each insurer's share is based on the ratio of its applicable limit of insurance to the total applicable limits of insurance of all insurers. 8. Transfer Of Rights Of Recovery Against Others To Us a. Transfer Of Rights Of Recovery If the insured has rights to recover all or part of any payment, including Supplementary Payments, we have made under this Coverage Part, those rights are transferred to us. The insured must do nothing after loss to impair them. At our request, the insured will bring "suit" or transfer those rights to us and help us enforce them. This condition does not apply to Medical Expenses Coverage. b. Waiver Of Rights Of Recovery (Waiver Of Subrogation) If the insured has waived any rights of recovery against any person or organization for all or part of any payment, including Supplementary Payments, we have made under this Coverage Part, we also waive that right, provided the insured waived their rights of recovery against such person or organization in a contract, agreement or permit that was executed prior to the injury or damage. Form SS 00 08 04 05 Page 17 of 24