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Contract - 09-19-2023 - 13046 - Professional Services Agreement: Toutle Wastewater Treatment Plan Improvement Project - Phase 1 - Project No. 2956 - Gibbs & Olson, Inc. AS-13046 13. BOCC Agenda Meeting Date: 09/19/2023 PROFESSIONAL SERVICES AGREEMENT: Toutle Wastewater Treatment Plant Improvements Project- Phase 1- Project No. 2956 - Gibbs & Olson, Inc. Submitted For: Susan Eugenis, Public Works Submitted By: Carol Sides, Public Works Department: Public Works Information Subject and Summary Statement Attached is a Professional Services Agreement with Gibbs & Olson for the Toutle Wastewater Treatment Plant Improvements Project. The agreement is for multiple phases; an initial engineering report to the Department of Ecology, design of the improvements approved by the Department of Ecology, and construction support. The dollar amount requested, $82,000, is for Gibbs & Olson, Inc. to provide engineering services to write an engineering report required by the Department of Ecology prior to any plant improvements occurring. The report will help determine the specific improvements that will be designed in Phase 2 of the project, which is scheduled to begin in early 2024. Will Staff Attend - NAME OF STAFF or No Yes Department Recommendation It is the recommendation of the Department of Public Works that the Board move to accept the Personal Services Agreement with Gibbs & Olson, Inc. for the Toutle Wastewater Treatment Plant Improvements Project and authorize funding for Phase 1 in an amount not to exceed $82,000. Fiscal Impact Expenditure Required $: 82,000 Budget Sufficient Y-N: Y Amendment Required Y-N: Source of Funds -What Dept ? : Water-Sewer Grant Y-N: Y Attachments Personal Services Agreement Form Review Inbox Reviewed By Date Patrick Harbison Patrick Harbison 09/13/2023 05:34 AM Susan Eugenis Susan Eugenis 09/13/2023 08:45 AM Mike Moss,Public Works Mike Moss 09/13/2023 09:18 AM Form Started By:Carol Sides Started On:09/12/2023 07:22 AM ►,►-rz cnIJy�� PROFESSIONAL SERVICES AGREEMENT Contract Number: 2023- -01 SHIN 0 THIS AGREEMENT is entered into between COWLITZ COUNTY, a political subdivision of the State of Washington, (hereinafter called "County" or "Cowlitz County") and Name: Gibbs &Olson, Inc. Address: PO Box 400 Longview, WA 98632 Phone N°: 360-425-0991 (hereinafter called "Consultant"). This Agreement is comprised of: ® Attachment A— Scope of Work ® Attachment B— Compensation ® Attachment C—General Conditions ® Attachment D— Special Terms and Conditions ® Attachment E— Rates and Reimburseables ❑ Attachment F—(specify) copies of which are attached hereto and incorporated herein by this reference as if fully set forth. The term of this Agreement shall commence on the 19th day of September 2023 and shall, unless terminated as provided elsewhere in the Agreement, terminate on the 31st day of December, 2025. The County reserves the right to extend the contract for up to 1 additional 1-year period. IN WITNESS WHEREOF, the parties have executed this Agreement on this i�day of sf� 2023. BOARD OF COUNTY COMMISSIO RS CONSULTANT: OF COWL WASHIN ON 11 r a zx�_ Richard R. Dahl, Chairman Gibbs &Olson, Inc. Print name: Richard A. Cushman ne La Arne Mortensen, Commissioner Title: President , /+ Date: September 11, 2023 Dennis P. Weber, Commissioner �0UV A EST• �Qa CQ �oWuTz OUNTY Kelly row sky, Clerk of the a %,, n WAS Him ON CONTRACT HAS BEEN APPROVED AS TO FORM BY COWLITZ COUNTY PROSECUTING ATTORNEY [2014—ver. 3] PROFESSIONAL SERVICES AGREEMENT ATTACHMENT A SCOPE OF WORK The County hereby engages the Consultant to serve as an independent consultant providing engineering services to the County on the terms and conditions set forth in this Agreement. The Consultant agrees to complete the services on behalf of the County as outlined below. In the event the Consultant, its agents or assigns, is unable to complete its work as scheduled, the contract period and compensation may be adjusted by mutual agreement of the County and Consultant. PROJECT DESCRIPTION The County owns and operates an oxidation ditch wastewater secondary treatment plant located in Toutle, Washington. The County had an Evaluation Report prepared in 2021 which recommended several plant upgrades to improve plant performance and reliability. An engineering report prepared in accordance with WAC 173-240-130 will be prepared for review and approval by the Washington Department of Ecology (Ecology) and the County. This report will be the basis for the ensuing design work which will follow. The County intends to utilize American Rescue Plan Act(ARPA) funds for this project. ARPA funding requires construction funding to be obligated by December 31, 2024 meaning the construction contract has to be executed between the County and the construction contractor by this date. Construction is required to be completed and closed out by December 31, 2026. INFORMATION TO BE PROVIDED BY COUNTY The County will provide the following information to the Engineer for use on this project: • County's most recent 36-months of Daily Monitoring Reports (DMR's); ■ County's O&M Manual for the Toutle wastewater treatment plant(WWTP); • Record drawings showing piping, basins and other facility wastewater infrastructure information including elevations as available; • Any wastewater lab analysis results not included in the monthly DMR's; • Population projections for the sanitary sewer service area. ASSUMPTIONS Engineer has utilized the following assumptions in preparing the identified scope of work and budget. If any of these assumptions are found to be invalid, Engineer reserves the right to request an amendment to modify the scope of work and budget. 1. Drawings for report figures will be prepared in AutoCAD Civil3D 2022. 2. Drawings and documents prepared by Engineer will be provided to the County in .pdf and CAD format. 3. No historical or cultural resources evaluation is required. 4. A critical areas evaluation report and geotechnical investigation are not required. 5. No field survey work will be performed by Engineer. 6. A recommendation for outfall repairs will not be included in the Report. SCOPE OF SERVICES: The Engineer shall perform the following services under this Agreement. Task 1 - Project Management,Administration & Meetings: Engineer will perform day to day management activities including oversight of Engineer's work, scheduling, budgeting, invoicing and preparing monthly progress reports to County. Project management will also include coordination and communication with County and Ecology. Page 1 Kickoff Meeting: Engineer will conduct a project kickoff meeting with County staff and key members of Engineer's project team. Progress Meetings: Engineer proposes conducting a progress meeting with the County every 3-4 weeks during the project. Engineer has budgeted for a total of 3 progress meetings. Meetings with Ecology and Cowlitz County: Engineer will participate in up to 3 meetings with the County and Ecology to review report elements prior to submission of the Engineering Report to Ecology. Task 2—Gather& Review of Available Information and Data Engineer will review County provided information. Task 3—Outfall Field Visit and Repair Alternatives Evaluation Engineer will meet with the County in the field to evaluate the condition of the outfall and discuss options for keeping it in service. A recommended plan of action will be presented to the County but will not be included in the Engineering Report. Task 4—Oxidation Ditch Mixing/Aeration Alternatives Evaluation & Design Criteria Engineer will evaluate up to 4 options for providing aeration and mixing beyond the existing brush aerator system for improved efficiency. The Engineer will review the results of this evaluation with the County. A recommended alternative will be identified, and design criteria will be developed for the selected alternative. Task 5—Effluent Pump Station Alternatives Evaluation & Design Criteria Engineer will meet with the County to discuss potential alternatives for modifying the effluent pump station to eliminate confined space entry requirements for personnel. A recommended alternative will be identified, and design criteria will be developed for this alternative. Task 6— Evaluate & Develop Design Criteria for Other WWTP Improvements Engineer will meet with the County to discuss other plant improvements such as the new influent flow meter, chlorine contact chamber and chemical feed system upgrades, electrical upgrades including motor control centers (MCCs) and standby electrical generator, plant Supervisory Control and Data Acquisition (SCADA) system and other miscellaneous plant improvements. Task 7— Prepare SEPA Checklist Engineer will prepare a SEPA checklist for the Report as an Action Item to support the Engineering Report and ensuing design and construction of the improvements. Task 8—Prepare an Engineering Report in Accordance with WAC 173-240-130 Engineer will prepare an engineering report in accordance with WAC 173-240-130. The report will be sufficiently complete so that design plans and specifications can be developed from it without substantial changes. The engineering report shall include the following information: a. Current flow and population served information. b. Influent flow, waste load and population served projections for a 20-year planning horizon; c. Current plant performance data and analyses. d. Basic design data and sizing calculations that impact the treatment units. e. A description of the existing treatment process and operation, including a flow diagram and hydraulic profile. f. All necessary maps and layout plan views, conceptual cross-sections/profiles, and figures as appropriate. Page 2 g. A discussion of the various alternatives evaluated, recommended alternatives with design criteria and the reasons other alternatives evaluated are not preferred. h. An implementation schedule for final design, permitting and construction of recommended plant upgrades. i. A planning level opinion of total project cost for design, permitting, and construction of the recommended alternatives. This opinion of cost will include sales tax and an appropriate level of contingency. The Engineering Report will be required to be reviewed and approved by both Ecology and the County. The Engineer will provide a draft of the Engineering Report to the County for review and comment in pdf format. The Engineer will address County review comments and will revise the draft Engineering Report as appropriate and will provide an updated draft Engineering Report to the County for submittal to Ecology for their review and comment. The Engineer will address Ecology review comments and will revise the draft Engineering Report as appropriate. The final Engineering Report will be reviewed with the County and will then be submitted by the County for final approval to Ecology. The draft deliverables will be provided to the County in pdf format. Report submissions to Ecology will be electronic .pdf copies unless otherwise requested by Ecology. Task 9 —Scoping for Final Design and Permitting Engineer will prepare a proposed scope of work, schedule and budget for final design and permitting for use in amending this Agreement to advance the project at the completion of the engineering report phase. SCHEDULE MILESTONES The following schedule milestones are based on Engineer receiving an executed Agreement and notice to proceed from the County by September 20, 2023, and will be adjusted on a day for day basis based on the actual Notice to Proceed date if it is after September 20, 2023. Complete Outfall Repair Evaluation and Make Recommendation to County—October 26, 2023 Complete Oxidation Ditch Mixing/Aeration Alternatives Evaluation and Make Recommendation to County — November 2, 2023 Complete Effluent Pump Station Alternatives Evaluation and Make Recommendation to County— November 16, 2023 Complete Alternatives Evaluation and Make Recommendations to County for Other WWTP Improvements— November 16, 2023 Prepare SEPA Checklist and Provide to County for Review— November 30, 2023 Submit Draft Engineering Report to County for Review— December 7, 2023 Revise Draft Engineering Report to Address County Review Comments— December 21, 2023 Submit Draft Engineering Report to Ecology for Review— December 28, 2023 Revise Draft Engineering Report to Address Ecology Review Comments— February 29, 2024 LIMITATION OF LIABILITY Engineer shall not be liable for loss or damage occasioned by delays beyond Engineer's control, or for loss of earnings, loss of use or other incidental or consequential damages suffered by County or others, however caused. Page 3 Engineer's liability hereunder, whether in tort or in contract, for any cause of action, inclusive of legal costs, shall be limited to 150 percent of the fee earned by Engineer under this Agreement. Page 4 PROFESSIONAL SERVICES AGREEMENT ATTACHMENT B COMPENSATION 1. ❑ a. FIXED FEE FOR SERVICE: For services rendered, the County shall pay to the Contractor a fixed fee of DOLLARS ($ ) for the completed work set forth in Attachment"A.". Payments for completed tasks shall be made no more frequently than ❑ bi-monthly; ❑ quarterly; ❑ semi-annually; ❑ annually; ❑ at completion of project; ❑ other (specify) Each request for payment shall be supported by an invoice specifying the tasks completed up to the request for payment and the payment amount requested. In no event shall payment be sought in an amount which represents a percentage of the fee greater than the percentage of completed tasks. OR ® b. HOURLY RATES: For services rendered, the County shall compensate the Contractor at the following hourly rates: Name/Position Hourly Rate See attachment Payments for completed tasks shall be made no more frequently than ® monthly; ❑ quarterly; ❑ semi- annually; ❑ annually; ❑ at completion of project; ❑ other (specify) Each request for payment shall be supported by an invoice specifying: the name/position of the Contractor's employee if two or more are identified above; number of hours worked; completed tasks for which compensation is sought and; payment amount requested. In no event shall Contractor be compensated in excess of EIGHTY-TWO THOUSAND AND NO/100THS DOLLARS ($82,000.00) for the completed work set forth in Attachment"A." 2. AND ® a. The compensation set forth herein includes, without limitation: labor, materials, equipment, travel, telephone, computer, copiers and the like. OR ❑ b. The County shall reimburse the Contractor for actual expenses incurred for travel, telephone, copiers and computer. Reimbursement for airfare, mileage, meals and/or accommodations shall be at the same rate as that applicable to county employees traveling on county business. OR ❑ c. Other (specify) The County, in addition to the compensation herin set forth shall provide to the Contractor the following: Page 1 Attachment B-Budget Estimate-Page 2 Toutle WWTP Improvements Project-Engineering Report Cowlitz County Public Works September 11,2023 CGd Project Engr. Engr. Total Prin. Manager V II Admin Budget Task Task Description 1 Project Management,Administration&Meetings 8 16 8 4 4 $7,692 2 Gather&Review of Available Information and Data 4 10 10 12 2 $6,838 3 Outfall Field Visit and Repair Alternative Evaluation 6 12 12 20 0 $9,104 4 Oxidation Ditch Mixing/Aeration Alternatives Evaluation&Design Criteria 6 12 12 20 0 $9,104 5 Effluent Pump Station Alternative Evaluation&Design Criteria 6 12 12 20 0 $9,104 6 Evaluate& Develop Design Criteria for Other WWTP Improvements 8 10 16 24 0 $10,492 7 Prepare SEPA Checklist 2 4 2 8 4 $3,190 8 Prepare Engineering Report in Accordance with WAC 173-240-130 8 40 24 52 14 $23,524 9 Scoping for Final Design &Permitting 4 1 4 4 0 0 $2,548 Subtotal 52 120 100 160 24 $81,596 Mileage $100 Reproduction $304 TOTAL ESTIMATED BUDGETI $82,000 2023 Hourly Rates $240 $210 $187 $145 $84 PROFESSIONAL SERVICES AGREEMENT ATTACHMENT C GENERAL CONDITIONS 1. Scope of Coasultants Services. The Consultant agrees to provide to the County services and any materials set forth in the project narrative identified as Attachment A during the agreement period. No material, labor, or facilities will be furnished by the County, except as provided for herein. 2. AmQunting and Payment for Consultant Service . Payment to the Consultant for services rendered under this Agreement shall be as set forth in Attachment B unless specifically stated in Attachment B, the County will not reimburse the Consultant for any costs or expenses incurred by the Consultant in the performance of this contract. 3. Delegation and Subcontracting. Consultant's services are deemed personal and no portion of this contract may be delegated or subcontracted to any other individual, firm or entity without the express and prior written approval of the County Project Manager. 4. Independent Consultant. The Consultant's services shall be furnished by the Consultant as an independent consultant and nothing herein contained shall be construed to create a relationship of employer/employee or master/servant. The Consultant acknowledges that the entire compensation for this Agreement is specified in Attachment B and the Consultant is not entitled to any county benefits including, but not limited to: vacation pay, holiday pay, sick leave pay, medical, dental or other insurance benefits, or any other rights or privileges afforded to Cowlitz County employees. The Consultant represents that it maintains a separate place of business, serves clients other than the County, will report all income and expense accrued under this contract with the Internal Revenue Service on a business tax schedule, and has a tax account with the State of Washington Department of Revenue for payment of all sales and use and Business and Occupation taxes collected by the State of Washington. In the event that either the state or federal government determines that an employer/employee or master/servant relationship exists rather than an independent consultant relationship such that Cowlitz County is deemed responsible for federal withholding, social security contributions, workers compensation and the like, the Consultant agrees to reimburse Cowlitz County for any payments made or required to be made by Cowlitz County. Should any payments be due to the Consultant pursuant to this Agreement, the Consultant agrees that reimbursement may be made by deducting from such future payments a pro rata share of the amount to be reimbursed. Notwithstanding any determination by the state or federal government that an employer/employee or master/servant relationship exists, the Consultant, its officers, employees and agents, shall not be entitled to any benefits which Cowlitz County provides to its employees. 5. No Guarantee of Em to ment. The performance of all or part of this contract by the Consultant shall not operate to vest any employment rights whatsoever and shall not be deemed to guarantee any employment of the Consultant or any employee of the Consultant or any subconsultant or any employee of any subconsultant by the County at the present time or in the future. 6. Regulations and Requirements.This Agreement shall be subject to all federal, state and local laws, rules, and regulations. 7. RiQht to Review. This contract is subject to review by any federal or state auditor. The County shall have the right to review and monitor the financial and service components of this program by whatever means are deemed expedient by the County Project Manager. Such review may occur with or without notice, and may include, but is not limited to, on-site inspection by County agents or employees, inspection of all records or other materials which the County deems pertinent to the Agreement and its performance, and any and all communications with or evaluations by service recipients under this Agreement. The Consultant shall preserve and maintain all financial records and records relating to the performance of work under this Agreement for six (6) years after contract termination, and shall make them available Page 1 PROFESSIONAL SERVICES AGREEMENT ATTACHMENT C for such review, within Cowlitz County, State of Washington, upon request, during reasonable business hours. 8. Modifications. Either party may request changes in the Agreement.Any and all agreed modifications shall be in writing, signed by each of the parties. 9. Termination for Default. If the Consultant defaults by failing to perform any of the obligations of the contract or becomes insolvent or is declared bankrupt or makes an assignment for the benefit of creditors, the County may, by depositing written notice to the Consultant in the U.S. Mail, postage prepaid, terminate the contract, and at the County's option, obtain performance of the work elsewhere. If the contract is terminated for default, the Consultant shall not be entitled to receive any further payments under the contract. Any extra cost or damage to the County resulting from such default(s) shall be deducted from any money due or coming due to the Consultant. The Consultant agrees to bear any extra expenses incurred by the County in completing the work, including all increased costs for completing the work, and all damage sustained, or which may be sustained by the County by reason of such default. If a notice of termination for default has been issued and it is later determined for any reason that the Consultant was not in default, the rights and obligations of the parties shall be the same as if the notice of termination had been issued pursuant to the Termination for Public Convenience paragraph hereof. 10. Termination for Public Convenience.The County may terminate the contract in whole or in part whenever the County determines, in its sole discretion that such termination is in the interests of the County. Whenever the contract is terminated in accordance with this paragraph, the Consultant shall be entitled to payment for actual work performed for completed items of work. An equitable adjustment in the contract price for partially completed items of work will be made, but such adjustment shall not include provision for loss of anticipated profit on deleted or uncompleted work. Termination of this contract by the County at any time during the term, whether for default or convenience, shall not constitute a breach of contract by the County. 11. Termination Due to Insufficient Funds. If sufficient funds for payment under this contract are not appropriated or allocated or are withdrawn, reduced, or otherwise limited, the County may terminate this contract upon thirty (30) days written notice to the Consultant. No penalty or expense shall accrue to the County in the event this provision applies. 12. Termination Procedure. The following provisions apply in the event that this Agreement is terminated: (a) The Consultant shall cease to perform any services required hereunder as of the effective date of termination and shall comply with all reasonable instructions contained in the notice of termination, if any. (b) The Consultant shall provide the County with an accounting of authorized services provided through the effective date of termination. (c) If the Agreement has been terminated for default, the County may withhold a sum from the final payment to the Consultant that the County determines necessary to protect itself against loss or liability. 13. Hold Harmless. Consultant shall defend, indemnify,and hold County harmless from and against all claims, demands, losses, damages, or costs, including but not limited to damages arising out of bodily injury or death to persons and damage to property, caused by or resulting from: (a) The sole negligence of the Consultant, its officers, employees, agents, or subconsultants; (b) The concurrent negligence of the Consultant, its officers, employees, agents, or subconsultants, but only to the extent of the negligence of the Consultant, its officers, employees, agents, or subconsultants; or (c) The use of any design, process, or equipment that constitutes an infringement of any United States patent presently issued, or violates any other proprietary interest including copyright, trademark, and trade secret. Page 2 PROFESSIONAL SERVICES AGREEMENT ATTACHMENT C It is further agreed by and between the parties that in no event shall any County appointed or elected officer, agent, employee, or volunteer, when executing their official duties in good faith, be in any way personally liable or responsible for any agreement or performance contained herein, whether express or implied, nor for any statement or representation made herein or in any connection with this Agreement. 14. Industrial Insurance Waiver.With respect to the performance of this Agreement and as to claims against the County, its appointed and elected officers, agents and employees, the Consultant expressly waives its immunity under Title 51 of the Revised Code of Washington, the Industrial Insurance Act, as now or hereafter amended, or other worker's compensation act, disability benefit act, or other employee benefit act of any jurisdiction otherwise applicable, for injuries to its employees and agrees that the obligations to indemnify, defend and hold harmless provided in this Agreement extend to any claim brought by or on behalf of any employee of the Consultant. Along with the other provisions of this Agreement, this waiver is mutually negotiated by the parties to this Agreement. 15. Venue and Choice of Law. In the event that any litigation should arise concerning the construction or interpretation of any of the terms of this Agreement, the venue of such action shall be in the courts of the State of Washington in and for the County of Cowlitz. This Agreement shall be governed by the law of the State of Washington. 16. Withholding Payment. In the event the County Project Manager determines that the Consultant has failed to perform any obligation under this Agreement within the times set forth in this Agreement, then the County may withhold from amounts otherwise due and payable to Consultant the amount determined by the County as necessary to cure the default, until the County Project Manager determines that such failure to perform has been cured. Withholding under this clause shall not be deemed a breach entitling Consultant to termination or damages, provided that the County promptly gives notice in writing to the Consultant of the nature of the default or failure to perform, and in no case more than ten (10) days after it determines to withhold amounts otherwise due. A determination of the County Project Manager set forth in a notice to the Consultant of the action required and/or the amount required to cure any alleged failure to perform shall be deemed conclusive, except to the extent that the Consultant acts within the times and in strict accord with the provision of the Disputes clause of this Agreement. The County may act in accordance with any determination of the County Project Manager which has become conclusive under this clause, without prejudice to any other remedy under the Agreement, to take all or any of the following actions: (1)cure any failure or default, (2)to pay any amount so required to be paid and to charge the same to the account of the Consultant, (3) to set off any amount paid or incurred from amounts due or to become due the Consultant. In the event the Consultant obtains relief upon a claim under the Disputes clause, no penalty or damages shall accrue to the Consultant by reason of good faith withholding by the County under this clause. 17. Rights and Remedies.The duties and obligations imposed by this Agreement and the rights and remedies available hereunder shall be in addition to and not a limitation of any duties, obligations, rights and remedies otherwise imposed or available bylaw. 18. Consultant Commitments Warranties and Representations. Any written commitment received from the Consultant concerning this Agreement shall be binding upon the Consultant, unless otherwise specifically provided herein with reference to this paragraph. Failure of the Consultant to fulfill such a commitment shall render the Consultant liable for damages to the County. A commitment includes, but is not limited to any representation made prior to execution of this Agreement, whether or not incorporated elsewhere herein by reference, as to performance of services or equipment, prices or options for future acquisition to remain in effect for a fixed period, or warranties. 19. Patent/Copyright Infringement. Consultant will defend, indemnify, and save harmless County, its appointed and elected officers, agents and employees from and against all loss or expense, including but not limited to claims, demands, actions,judgments, settlements, attorneys' fees and costs by reason of any and all claims and demands upon the County, its elected or appointed officials or employees for damages because of the Consultant's alleged infringement on any patent or copyright. The Consultant will pay those costs and damages attributable to any such claims that are finally awarded against the Page 3 PROFESSIONAL SERVICES AGREEMENT ATTACHMENT C County, its appointed and elected officers, agents and employees in any action. Such defense and payments are conditioned upon the following: (a) That Consultant shall be notified promptly in writing by County of any notice of such claim. (b) Consultant shall have the right, hereunder, at its option and expense, to obtain for the County the right to continue using the information, in the event such claim of infringement, is made, provided no reduction in performance or loss results to the County. 20. Q sautes. (a) General. Differences between the Consultant and the County, arising under and by virtue of the contract documents shall be brought to the attention of the County at the earliest possible time in order that such matters may be settled, or other appropriate action promptly taken. The records, orders, rulings, instructions, and decision of the County Project Manager shall be final and conclusive thirty (30) days from the date of mailing unless the Consultant mails or otherwise furnishes to the County Project Manager a written notice of appeal. The notice of appeal shall include facts, law, and argument as to why the conclusions of the County Project Manager are in error. In connection with any appeal under this clause, the Consultant and County shall have the opportunity to submit written materials and argument and to offer documentary evidence in support of the appeal. Oral argument and live testimony will not be permitted. The decision of the County Project Manager for the determination of such appeals shall be final and conclusive. Reviews of the appellate determination shall be brought in the Superior Court of Cowlitz County within fifteen (15) days of mailing of the written appellate determination. Pending final decision of the dispute, the Consultant shall proceed diligently with the performance of this Agreement and in accordance with the decision rendered. (b) !Notice of Potential Claims. The Consultant shall not be entitled to additional compensation or to extension of time for (1) any act or failure to act by the County Project Manager or the County, or (2) the happening of any event or occurrence, unless the Consultant has given the County a written Notice of Potential Claim within ten (10) days of the commencement of the act, failure, or event giving rise to the claim, and before final payment by the County. The written Notice of Potential Claim shall set forth the reasons for which the Consultant believes additional compensation or extension of time is due, the nature of the cost involved, and insofar as possible, the amount of the potential claim. Consultant shall keep full and complete daily records of the work performed, labor and material used, and all costs and additional time claimed to be additional. (c) Detailed Claim. The Consultant shall not be entitled to claim any such additional compensation, or extension of time, unless within thirty (30) days of the accomplishment of the portion of the work from which the claim arose, and before final payment by the County, the Consultant has given the County a detailed written statement of each element of cost or other compensation requested and of all elements of additional time required, and copies of any supporting documents evidencing the amount or the extension of time claimed to be due. 21. Ownership of Items Produced and Public Disclosure. All writings, programs, data, art work, music, maps, charts, tables, illustrations, records or other written, graphic, analog or digital materials prepared by the Consultant and/or its consultants or subconsultants, in connection with the performance of this Agreement shall be the sole and absolute property of the County and constitute "work made for hire" as that phrase is used in federal and/or state intellectual property laws. Except as to data or information in the public domain or previously known to Consultant or required to be disclosed by law, subpoena or other process, the following shall apply: (a) Correspondence, emails, reports and other electronic or written work product will be generated between the Consultant and County during the course of this Contract. This Contract and such work product in the possession of Consultant may be deemed public records subject to disclosure under the Washington State Public Records Act, Chapter 42.56 RCW(Public Records Act).Thus,the County shall be required, upon request, to disclose this Contract and all documents related to it unless an Page 4 PROFESSIONAL SERVICES AGREEMENT ATTACHMENT C exemption under the Public Records Act or other laws applies. Consultant shall fully cooperate with and assist the County with respect to any request for public records received by the County related to the services performed under this Contract. (b) Should County receive a request for disclosure, County agrees to provide Consultant ten (10) days written notice of impending release, and to cooperate with any legal action which may be initiated by Consultant to enjoin or otherwise prevent such release, provided that all expense of any such litigation shall be borne by Consultant, including any damages, attorney's fees or costs awarded by reason of having opposed disclosure, and further provided that County shall not be liable for any release where notice was provided and Consultant took no action to oppose the release of information. Notice of any proposed release of information pursuant to Chapter 42.56 RCW, shall be provided to Consultant according to the"Notice"provision herein. If the Consultant has not obtained an injunction and served the County with that injunction by the close of business on the tenth business day after the County sent notice, the County will then disclose the record unless it makes an independent determination that the record is exempt from disclosure. Notwithstanding the above, the Consultant must not take any action that would affect (a) the County's ability to use goods and services provided under this Contract or (b) the Consultant obligations under this Contract. The Consultant will fully cooperate with the County in identifying and assembling records in case of any public disclosure request. (c) Consultant's failure to timely provide such records upon demand shall be deemed a material breach of this Contract.To the extent that the County incurs any monetary penalties, attorneys'fees, and/or any other expenses as a result of such breach, Consultant shall fully indemnify and hold harmless County as set forth in Section 13. For purposes of this section, the terms "public records" and "agency"shall have the same meaning as defined by Chapter 42.56 RCW, as said chapter has been construed by Washington courts. The provisions of this section shall survive the expiration or termination of this Agreement. (d) In the event the County uses the Instruments of Service without retaining the authors of the Instruments of Service, the County releases the Consultant and Consultant's subconsultants from all claims and causes of action arising from such uses. The County, to the extent permitted by law, further agrees to indemnify and hold harmless Consultant and its subconsultants from all costs and expenses, including the cost of defense, related to claims and causes of action asserted by any third person or entity to the extent such costs and expenses arise from the County's unauthorized use of the Instruments of Service. 22. Recovery of Payments to Consultant.The right of the Consultant to retain monies paid to it is contingent upon satisfactory performance of this Agreement, including the satisfactory completion of the project described in the Scope of Work (Attachment A). In the event that the Consultant fails, for any reason, to perform obligations required of it by this Agreement, the Consultant may, at the County Project Manager's sole discretion, be required to repay to the County all monies disbursed to the Consultant for those parts of the project that are rendered worthless in the opinion of the County Project Manager by such failure to perform. Interest shall accrue at the rate of 12 percent (12%) per annum from the time the County Project Manager demands repayment of funds. 23. Project Approval. The extent and character of all work and services to be performed under this Agreement by the Consultant shall be subject to the review and approval of the County Project Manager. For purposes of this Agreement, the County Project Manager is: Name: Gibbs &Olson Address: PO Box 400 Longview, WA 98632 Phone: 360-425-0991 E-Mail: Page 5 PROFESSIONAL SERVICES AGREEMENT ATTACHMENT C In the event there is a dispute with regard to the extent and character of the work to be done, the determination of the County Project Manager as to the extent and character of the work to be done shall govern subject to the Consultant's right to appeal that decision as provided herein. 24. Non-Discrimination.The Consultant shall not discriminate against any person on the basis of race, creed, political ideology, color, national origin, sex, marital status, sexual orientation, age, or the presence of any sensory, mental or physical handicap. 25. Subconsultants. In the event that the Consultant employs the use of any subconsultants, the contract between the Consultant and the subconsultant shall provide that the subconsultant is bound by the terms of this Agreement between the County and the Consultant. The Consultant shall ensure that in all subcontracts entered into, County is named as an express third-party beneficiary of such contracts with full rights as such. 26. Third Paft Beneficiaries. This agreement is intended for the benefit of the County and Consultant and not for the benefit of any third parties. 27. Standard of Care. The Consultant shall perform its duties hereunder in a manner consistent with that degree of care and skill ordinarily exercised by members of the same profession as Consultant currently practicing under similar circumstances. The Consultant shall, without additional compensation, correct those services not meeting such a standard. 28. Time is of the Essence. Time is of the essence in the performance of this contract unless a more specific time period is set forth in either the Special Terms and Conditions or Scope of Work. 29. Notice. Except as set forth elsewhere in the Agreement, for all purposes under this Agreement, except service of process, any notices shall be given by the Consultant to the County Project Manager. Notice to the Consultant for all purposes under this Agreement shall be given to the person executing the Agreement on behalf of the Consultant at the address identified on the signature page. 30. Severability. If any term or condition of this contract or the application thereof to any person(s) or circumstances is held invalid, such invalidity shall not affect other terms, conditions or applications which can be given effect without the invalid term, condition or application. To this end, the terms and conditions of this contract are declared severable. 31. Precedence. In the event of inconsistency in this Agreement, unless otherwise provided herein, the inconsistency shall be resolved by giving precedence in the following order: (a) Applicable federal, state and local statutes, ordinances and regulations; (b) Scope of Work(Attachment A) and Compensation (Attachment B); (c) Special Terms and Conditions (Attachment D); and (d) General Conditions (Attachment C). 32. Waiver. Waiver of any breach or condition of this contract shall not be deemed a waiver of any prior or subsequent breach. No term or condition of this contract shall be held to be waived, modified or deleted except by an instrument, in writing, signed by the parties hereto. 33. Attorney Fees. In the event that litigation must be brought to enforce the terms of this agreement, the prevailing party shall be entitled to be paid reasonable attorney fees. 34. Construction. This agreement has been mutually reviewed and negotiated by the parties and should be given a fair and reasonable interpretation and should not be construed less favorably against either party. 35. Survival. Without being exclusive, Paragraphs 4, 7, 13-19, 21-22 and 30-35 of these General Conditions shall survive any termination, expiration or determination of invalidity of this Agreement in whole or in Page 6 PROFESSIONAL SERVICES AGREEMENT ATTACHMENT C part. Any other Paragraphs of this Agreement which, by their sense and context, are intended to survive shall also survive. 36. Contract Documents. The Contract Documents for this Agreement, except for modifications issued after execution of this Agreement, form a contract and all are as fully a part of the contract as if attached to this Agreement or repeated herein. The contract represents the entire and integrated Agreement between the parties and supersedes any prior statements, discussions or understandings between the parties except as provided herein. An enumeration of the contract documents is set forth below: 1. Notice of Award; and 2. Addenda; and 3. Agreement; and 4. Conditions of Cowlitz County Request for Qualifications published on July 5, 2023; and 5. Statement of Qualifications from Consultant dated July 27, 2023. Page 7 PROFESSIONAL SERVICES AGREEMENT ATTACHMENT D SPECIAL TERMS AND CONDITIONS 1. Reporting. The Consultant shall submit written progress reports to the County Project Manager as set forth below: ® With each request for payment. ❑ Monthly. ❑ Quarterly. ❑ Semi-annually. ❑ Annually. ❑ Project completion. ❑ Other: Reports shall include any problems, delays or adverse conditions which will materially affect the Consultant's ability to meet project objectives or time schedules together with a statement of action taken or proposed to resolve the situation. Reports shall also include recommendations for changes to the Scope of Work, if any. Payments may be withheld if reports are not submitted. 2. Insurance. The Consultant shall maintain in full force and effect during the term of this Agreement, and until final acceptance of the work, public liability and property damage insurance with companies or through sources approved by the state insurance commissioner pursuant to RCW Title 48, as now or hereafter amended. The County, its appointed and elected officials, agents and employees, shall be specifically named as additional insureds in a policy with the same company which insures the Consultant or by endorsement to an existing policy or with a separate carrier approved pursuant to RCW Title 48, as now or hereafter amended, and the following coverages shall be provided: ® COMPREHENSIVE GENERAL LIABILITY: Bodily injury, including death and property damage $1,000,000 per occurrence $2,000,000 Aggregate ® ERRORS AND OMISSIONS or PROFESSIONAL LIABILITY with an Extended Reporting Period Endorsement(two-year tail). $1,000,000 per occurrence $2,000,000 Aggregate ® WORKERS COMPENSATION: Statutory amount ® AUTOMOBILE: coverage on owned, non-owned, rented and hired vehicles Bodily injury, liability, including death, and $1,000,000 Combined Single Limit Property damage liability All Consultant's and Consultant's subconsultants' insurance policies and additional named insured endorsements shall provide primary insurance coverage and be non-contributory. Any insurance, self-insured retention, deductible, risk retention or insurance pooling maintained or participated in by the County shall be excess and not contributory to such insurance policies. All Consultant's and Consultant's subconsultants' liability insurance policies must be endorsed to show this primary coverage. Page 1 PROFESSIONAL SERVICES AGREEMENT ATTACHMENT D Upon request, the Consultant shall provide a full and complete certified copy of all requested insurance policies to the County.The County reserves the right, but not the obligation,to revise any insurance requirement, not limited to limits,coverages and endorsements,or to reject any insurance policies which fail to meet the requirements of this Agreement. Additionally,the County reserves the right, but not the obligation, to review and reject any proposed insurer providing coverage based upon the insurer's financial condition or licensing status in Washington. Any deductibles and/or self- insured retentions exceeding $10,000, stop loss provisions, and/or exclusions contained in such policies must be approved by the County in writing. For any deductibles or self-insured retentions exceeding $10,000 or any stop-loss provisions,the County shall have the right to request and review the Consultant's most recent annual financial reports and audited financial statements as a condition of approval. Consultant hereby agrees to a waive subrogation with respect to each insurance policy maintained under this Agreement. When required by an insurer, or if a policy condition does not permit Consultant to enter into a pre-loss agreement to waive subrogation without an endorsement, then Consultant agrees to notify the insurer and obtain such endorsement. This requirement shall not apply to any policy which includes a condition expressly prohibiting waiver of subrogation by the insured or which voids coverage should the Consultant enter into such a waiver of subrogation on a pre-loss basis. The County, its departments, elected and appointed officials, employees, agents and volunteers shall be named as additional insureds on Consultant's and Consultant's subconsultants' insurance policies by way of endorsement for the full available limits of insurance maintained by the Consultant and subconsultant, and all coverage shall be primary and non-contributory. A statement or notation of additional insured status on a Certificate of Insurance shall not satisfy these requirements. [This endorsement shall not be required if the Consultant is a governmental entity and is insured through a governmental entity risk pool authorized by the State of Washington.] The Consultant shall, for each required insurance policy, provide a Certificate of Insurance, with endorsements attached, evidencing all required coverages, limits, deductibles, self-insured retentions and endorsements and which is conditioned upon the County receiving thirty (30) days prior written notice of reduction in coverages, cancellation or non-renewal. Each Certificate of Insurance and all insurance notices shall be provided to the attention of the project manager. This Agreement shall be void ab initio if the proof of coverage is not timely supplied. The insurance maintained under this Agreement shall not in any manner limit or qualify the liabilities or obligations of the Consultant under this Agreement. All insurance policy deductibles and self- insured retentions for policies maintained under this Agreement shall be paid by the Consultant. Compensation and/or payments due to the Consultant under this Agreement are expressly conditioned upon the Consultant's strict compliance with all insurance requirements. Payment to the Consultant shall be suspended in the event of non-compliance. Upon receipt of evidence of Consultant's compliance, payments not otherwise subject to withholding or set-off will be released to the Consultant. This Agreement shall be void ab initio if the proof of coverage is not timely supplied. If the Errors and Omissions or Professional Liability insurance obtained is an occurrence policy as opposed to a claims-made policy, the Extended Reporting Period Endorsement is not required. Page 2 Attachment E GIBBS &OLSON,INC.2023 Standard Rate&Reimburseables Schedule Hourly Labor Category Rate Principal $240 PM/Sr.Project Engineer $210 Engineer VI $196 Engineer V $187 Engineer IV $170 Engineer III $152 Engineer II $145 Engineer I $130 Design Technician II $115 '.Sr.Land Surveyor $155 Land Surveyor $120 1 Man Survey Crew $120 2 Man Survey Crew $195 3 Man Survey Crew $280 Senior Tech III/Resident Project Rep III $130 Senior Technician II/Resident Project Representative II $115 Senior Technician I/Resident Project Representative I $102 Technician I $70 Environmental/Grant/Contract/Financial Specialist $135 Administrative Assistant $84 Equipment Rates Digital Level/Total Station $10 Robotic Total Station $25 GPS Equipment per unit $35 Laser Scanner/Robotic Total Station $75 GPS&Sonar $95 16'Aluminum Boat w/ Outboard Motor $125/Day Rotohammer&Generator $20 ATV $125/Da Mileage @ Current IRS Rate $0.655 Expenses At Cost Plus 12% Subconsultants (Geotech,Elect.,Structural,Lab,Etc.)Invoice Plus 12% Photocopying/Plotting 8.5"x 11"black&white per each $0.10 8.5"x 11"color per each $0.20 11"x 17 black&white per each $0.20 11"x 17"color per each $0.40 plotting per square foot $0.80 Expert Witness Fees are 150% of listed rates above. Rates subject to change January 1st of following year. Page 1