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HomeMy WebLinkAbout5.946 Original Contract 5. 9-f.-lP Local Agency Consu Itant/ Add ress/T elephone Exeltech Consulting, Inc. Standard Consultant 8729 Commerce PI Dr NE, Suite A Agreement Lacey, WA 98516 [gI Architectural/Engineering Agreement (360) 357-8289 o Personal Services Agreement AQreement Number Project Title And Work Description Federal Aid Number City of Port Angeles, W A Peabody Street and 5th Street Overlay Agreement Type (Choose one) o Lump Sum Lump Sum Amount $ [gI Cost Plus Fixed Fee Overhead Progress Payment Rate 160.27 % Overhead Cost Method DBE Participation D Actual Cost DYes ~No % D Actual Cost Not To Exceed FederallD Number or Social Security Number % 91-1491880 ~ Fixed Overhead Rate 160.27 % Do you require a 1099 for IRS? Completion Date Fixed Fee $ 5,203.62 DYes ~No September 30, 2009 o Specific Rates Of Pay Total Amount Authorized $ 50,650.49 D Negotiated Hourly Rate Management Reserve Fund $ D Provisional Hourly Rate o Cost Per Unit of Work Maximum Amount Payable $ 50,650.49 Index of Exhibits (Check all that apply): ~ Exhibit A-I Scope of Work D Exhibit A-2 Task Order Agreement o Exhibit B-1 DBE Utilization Certification ~ Exhibit C Electronic Exchange of Data o Exhibit D-l Payment - Lump Sum ~ Exhibit D-2 Payment - Cost Plus o Exhibit D-3 Payment - Hourly Rate o Exhibit D-4 Payment - Provisional ~ Exhibit E-I Fee - Lump/FixedlUnit o Exhibit E-2 Fee - Specific Rates ~ Exhibit F Overhead Cost o Exhibit G Subcontracted Work o Exhibit G- I Subconsultant Fee o Exhibit G-2 Fee-Sub Specific Rates D Exhibit G-3 Sub Overhead Cost ~ Exhibit H Title VI Assurances ~ Exhibit I Payment Upon Termination of Agreement ~ Exhibit J Alleged Consultant Design Error Procedures ~ Exhibit K Consultant Claim Procedures o Exhibit L Liability Insurance Increase [8J Exhibit M- I a Consultant Certification ~ Exhibit M- I b Agency Official Certification ~ Exhibit M-2 Certification - Primary ~ Exhibit M-3 Lobbying Certification o Exhibit M-4 Pricing Data Certification o App. 31.910 Supplemental Signature Page THIS AGREEMENT, made and entered into this L~ ,.~ day of _~ , 1.O>Q<1 , between the Local Agency of C: 0+ ':\SClIt..'r)...-. .e..\.. , Washington, h\reinafter called the "AGENCY" , and the above organization hereinaft r called the "CONSULT ANT". DOT Form 140-089 EF Revised 3/2008 Page 1 of 8 WITNESSETH THAT: WHEREAS, the AGENCY desires to accomplish the above referenced project, and WHEREAS, the AGENCY 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 for the PROJECT; and WHEREAS, the CONSULTANT represents that he/she is in compliance 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 work and services as herein defined and necessary to accomplish the completed work for this PROJECT. The CONSULTANT shall furnish all services, labor, and related equipment necessary to conduct and complete the work as designated elsewhere in this AGREEMENT. II Scope of Work The Scope of Work and projected level of effort required for this PROJECT is detailed in Exhibit "A" attached hereto and by this reference made a part of this AGREEMENT. III General Requirements All aspects of coordination of the work of this AGREEMENT with outside agencies, groups, or individuals shall receive advance approval by the AGENCY. Necessary contacts and meetings with agencies, groups, and/or individuals shall be coordinated through the AGENCY. The CONSULT ANT shall attend coordination, progress and presentation meetings with the AGENCY and/or such Federal, State, Community, City or County officials, groups or individuals as may be requested by the AGENCY. The AGENCY will provide the CONSULT ANT 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 work in sufficient detail so that the progress of the work can easily be evaluated. The CONSULTANT, and each SUBCONSUL T ANT, shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The CONSULTANT, and each SUB CONSULTANT, shall carry out applicable requirements of 49 CFR Part 26 in the award and administration of US DOT-assisted contracts. Failure by the CONSULTANT to carry out these requirements is a material breach of this AGREEMENT that may result in the termination of this AGREEMENT. Participation for Disadvantaged Business Enterprises (DB E), if required, per 49 CFR Part 26, or participation of Minority Business Enterprises (MBE), and Women Business Enterprises (WBE), shall be shown on the heading ofthis AGREEMENT. IfD/M/WBE firms are utilized, the amounts authorized to each firm and their certification number will be shown on Exhibit "B" attached hereto and by this reference made a part of this AGREEMENT. If the Prime CONSULTANT is a DBE firm they must comply with the Commercial Useful Function (CUF) regulation outlined in the AGENCY'S "DBE Program Participation Plan". The mandatory DBE participation goals of the AGREEMENT are those established by the WSDOT'S Highway and Local Programs Project Development Engineer in consultation with the AGENCY. 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." 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 this PROJECT, 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 PROJECT, shall be without liability or legal exposure to the CONSULTANT. Page 2 of 8 IV Time for Beginning and Completion The CONSULTANT shall not begin any work under the terms of this AGREEMENT until authorized in writing by the AGENCY. All work under this AGREEMENT shall be completed by the date shown in the heading of this AGREEMENT under 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 or govemmental 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. V Payment Provisions The CONSULTANT shall be paid by the AGENCY for completed work and services rendered under this AGREEMENT as provided in Exhibit "D" attached hereto, and by reference made part of this AGREEMENT. Such payment shall be full compensation for work performed or services rendered and for all labor, materials, supplies, equipment, and incidentals necessary to complete the work. The CONSULT ANT shall conform to all applicable portions of 48 CFR Part 31. A post audit may be performed on this AGREEMENT. The need for a post audit will be determined by the State Auditor, WSDOT External Audit Office and/or at the request of the AGENCY'S PROJECT Manager. VI Sub-Contracting The AGENCY permits sub-contracts for those items of work as shown in Exhibit "G" attached hereto and by this reference made part of this AGREEMENT. Compensation for this sub-consultant work shall be based on the cost factors shown on Exhibit "G." The work of the sub-consultant shall not exceed its maximum amount payable unless a prior written approval has been issued by the AGENCY. All reimbursable direct labor, overhead, direct non-salary costs and fixed fee costs for the sub-consultant shall be substantiated in the same manner as outlined in Section V. All sub-contracts shall contain all applicable provisions of this AGREEMENT. With respect to sub-consultant payment, the CONSULTANT shall comply with all applicable sections of the Prompt Payment laws as set forth in RCW 39.04.250 and RCW 39.76.011. The CONSULTANT shall not sub-contract for the performance of any work under this AGREEMENT without prior written permission of the AGENCY. No permission for sub-contracting shall create, between the AGENCY and sub- contractor, any contract or any other relationship. A DBE certified sub-consultant is required to perform a minimum amount of their sub-contracted agreement that is established by the WSDOT Highways and Local Programs Project Development Engineer in consultation with the AGENCY. VII Employment 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 the AGREEMENT price or consideration or otherwise recover the full amount of such fee, commission, percentage, brokerage fee, gift, or contingent fee. Any and all employees of the CONSULTANT or other persons while engaged in the performance of any work or services required of the CONSULTANT under this AGREEMENT, shall be considered employees of the CONSULTANT only and not of the AGENCY, and any and all claims that may arise under any Workmen's Compensation Act on behalf of said employees or other persons while so engaged, and any and all claims made by a Page 3 of 8 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 the contract, any professional or technical personnel who are, or have been, at any time during the period ofthe contract, in the employ ofthe United States Department of Transportation, or the STATE, or the AGENCY, except regularly retired employees, without written consent of the public employer of such person. VIII Nondiscrimination During the performance of this contract, the CONSULTANT, for itself, its assignees, and successors in interest agrees to comply with the following laws and regulations: Title VI of the Civil Rights Act of 1964 (42 USC Chapter 21 Subchapter V Section 2000d through 2000d-4a) Federal-aid Highway Act of 1973 (23 USC Chapter 3 Section 324) Rehabilitation Act of 1973 (29 USC Chapter 16 Subchapter V Section 794) Age Discrimination Act of 1975 (42 USC Chapter 76 Section 6101 et seq.) Civil Rights Restoration Act of 1987 (Public Law 100-259) American with Disabilities Act of 1990 (42 USC Chapter 126 Section 12101 et. seq.) 49 CFR Part 21 23 CFR Part 200 RCW 49.60.180 In relation to Title VI of the Civil Rights Act of 1964, the CONSULTANT is bound by the provisions of Exhibit "H" attached hereto and by this reference made part of this AGREEMENT, and shall include the attached Exhibit "H" 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 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 CONSULT ANT, a final payment shall be made to the CONSULT ANT as shown in Exhibit "I" for the type of AGREEMENT used. No payment shall be made for any work 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 herein above, 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. Page 4 of 8 In such an event, the amount to be paid shall be determined by the AGENCY with consideration given to the actual costs incurred by the CONSULTANT in performing the work to the date of termination, the amount of work originally required which was satisfactorily completed to date of termination, whether that work 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 work required and the time which may be required to do so, and other factors which affect the value to the AGENCY of the work 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 above. If it is determined for any reason that the CONSULTANT was not in default or that the CONSULT ANT'S failure to perform is without the CONSULTANT'S or it's employee's default 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 in accordance with the termination for other than default clauses listed previously. In the event of the death of any member, partner or officer of the CONSULTANT or any of its supervisory personnel assigned to the PROJECT, or dissolution of the partnership, termination of the corporation, or disaffiliation ofthe principally involved employee, the surviving members of the CONSULT ANT hereby agree to complete the work under the terms ofthis AGREEMENT, if requested to do so by the AGENCY. This subsection shall not be a bar to renegotiation of the AGREEMENT between the surviving members of the CONSULTANT and the AGENCY, if the AGENCY so chooses. In the event of the death of any of the parties listed in the previous paragraph, should the surviving members of the CONSULTANT, with the AGENCY'S concurrence, desire to terminate this AGREEMENT, payment shall be made as set forth in the second paragraph of this section. Payment for any part of the work 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 work 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 complete work of this AGREEMENT as necessary to correct errors appearing therein, when required to do so by the AGENCY, without additional compensation thereof. Should the AGENCY find it desirable for its own purposes to have previously satisfactorily completed work 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 XIV. XI Disputes Any dispute concerning questions of fact in connection with the work not disposed of by AGREEMENT between the CONSULTANT and the AGENCY shall be referred for determination 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 de novo 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", and disputes concerning claims will be conducted under the procedures found in Exhibit "K". XII Venue, Applicable Law, and Personal Jurisdiction In the event that either party deems it necessary to institute legal action or proceedings to enforce any right or obligation under this AGREEMENT, the parties hereto agree that any such 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 to such action shall 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. Page 5 of 8 XIII Legal Relations The CONSULTANT shaJl comply with aJl Federal, State, and local laws and ordinances applicable to the work to be done under this AGREEMENT. This contract shaJl be interpreted and construed in accordance with the laws of the State of Washington. The CONSULTANT shall indemnify and hold the AGENCY and the STATE and its officers and employees harmless from and shaJl process and defend at its own expense all claims, demands, or suits at law or equity arising in whole or in part from the CONSULTANT'S negligence or breach of any of its obligations under this AGREEMENT; provided that nothing herein shaJl require a CONSULTANT to indemnify the AGENCY or the STATE against and hold harmless the AGENCY or the STATE from claims, demands or suits based solely upon the conduct of the AGENCY or the STATE, their agents, officers and employees; and provided further that if the claims or suits are caused by or result from the concurrent negligence of (a) the CONSULTANT'S agents or employees, and (b) the AGENCY or the STATE, their agents, officers and employees, this indemnity provision with respect to (I) claims or suits based upon such negligence (2) the costs to the AGENCY or the ST ATE of defending such claims and suits shaJl be valid and enforceable only to the extent of the CONSULTANT'S negligence or the negligence of the CONSULTANT'S agents or employees. The CONSULTANT'S relation to the AGENCY shaJl be at aJl times as an independent contractor. The CONSULTANT shaJl comply with all applicable sections of the applicable Ethics laws, including RCW 42.23, which is the Code of Ethics for regulating contract interest by municipal officers. The CONSULTANT specificaJly assumes potential liability for actions brought by the CONSULTANT'S own employees against the AGENCY and, solely for the purpose of this indemnification and defense, the CONSULTANT specificaJly waives any immunity under the state industrial insurance law, Title 51 RCW. Unless otherwise specified in the AGREEMENT, the AGENCY shaJl be responsible for administration of construction contracts, if any, on the PROJECT. Subject to the processing ofa new sole source, or an acceptable supplemental agreement, the CONSULT ANT shall provide On-Call assistance to the AGENCY during contract administration. By providing such assistance, the CONSULTANT shaJl 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 the 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 and property damage insurance in an aggregate amount not less than two million dollars ($2,000,000) for bodily injury, including death and property damage. The per occurrence amount shall not exceed one miJlion doJlars ($1,000,000). C. Vehicle liability insurance for any automobile used in an amount not less than a one million dollar ($1,000,000) combined single limit. Excepting the Worker's Compensation Insurance and any Professional Liability Insurance secured by the CONSULTANT, the AGENCY will be named on all policies as an additional insured. The CONSULTANT shaJl furnish the AGENCY with verification of insurance and endorsements required by the AGREEMENT. The AGENCY reserves the right to require complete, certified copies of aJl 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 (I4) days of the execution of this AGREEMENT to the AGENCY. 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 shall be limited to the amount payable under this AGREEMENT or one million ($1,000,000) dollars, whichever is the greater, unless modified by Exhibit "L". In no case shaJl the CONSULTANT'S professional liability to third parties be limited in any way. Page 6 of 8 The AGENCY wiII pay no progress payments under Section V until the CONSULTANT has fully complied with this section. This remedy is not exclusive; and the AGENCY and the STATE may take such other action as is available to it under other provisions of this AGREEMENT, or otherwise in law. XIV Extra Work A. the AGENCY may at any time, by written order, make changes within the general scope of the 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 work under this AGREEMENT, whether or not changed by the order, or otherwise affects any other terms and conditions of the AGREEMENT, the AGENCY shall make an equitable adjustment in the (I) maximum amount payable; (2) delivery or completion schedule, or both; and (3) other affected terms and shall modify the AGREEMENT accordingly. C. The CONSULT ANT 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 the AGREEMENT. D. Failure to agree to any adjustment shall be a dispute under the 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. XV Endorsement of Plans If applicable, the CONSULTANT shall place their endorsement on all plans, estimates, or any other engineering data furnished by them. XVI Federal and State Review The Federal Highway Administration and the Washington State Department of Transportation shall have the right to participate in the review or examination ofthe work in progress. XVII Certification of the Consultant and the Agency Attached hereto as Exhibit "M-I(a and b)" are the Certifications of the CONSULTANT and the AGENCY, Exhibit "M -2" Certification Regarding Debarment, Suspension and Other Responsibility Matters - Primary Covered Transactions, Exhibit "M-3" Certification Regarding the Restrictions of the Use of Federal Funds for Lobbying and Exhibit "M-4" Certificate of Current Cost or Pricing Data. Exhibit "M-3" is required only in AGREEMENTS over $100,000 and Exhibit "MA" is required only in AGREEMENTS over $500,000. XVIII 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 an amendment to this AGREEMENT. XIX 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 agreements contained in the proposal, and the supporting material submitted by the CONSULT ANT, and does hereby accept the AGREEMENT and agrees to all of the terms and conditions thereof. Page 7 of 8 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. By By /~~ ~ ~~ Consultant ~~e.ltec.h e,.DnSIt1 ~lVlC. Agency (-; ~\ tit Vt:)ll.r L\.....Je..t. DOT Form 140-089 EF Revised 3/2008 Page 8 of 8 Exh i bit A-1 Scope of Work City of Port Angeles Peabody Street - 5th to 8th Vicinity and 5th Street - Ennis St. to Liberty St. April 17, 2009 Prepared by: Exeltech Consulting, Inc 8729 Commerce PI Dr NE, Suite A Lacey, WA 98516 "0/ e e tee h Scope of Work Peabody Street and 5th Street Overlay Table of Contents 1. PROJ ECT MANAG EM ENT..................... ................................................. ......................... 2 1.1 Project Coordination.......................................................................................................... 2 2. FI NAL DES I GN AN D PS&E support........................................................ .......... ...............2 2.1 Field Reviews.................................................................................................................... 2 2.2 Review and mark-up 95% plans .......................................................................................2 2.3 Review environmental documentation.............................................................................. 3 3. Construction Support Services............................................. ............................................. 3 3.1 Inspection.......................................................................................................................... 3 3.2 Documentation Control..................................................................................................... 4 3.3 Review as builts ................................................................................................................ 4 Scope of Work Peabody Street and 5th Street Overlay The City of Port Angeles (City) is the Contracting Agency for this scope of work. Exeltech Consulting, Inc. (Consultant) shall work under the City's Project Engineer/Project Manager to provide design review and construction inspection and documentation for the project. Proiect Description This project includes shoulder rebuild, drainage, grinding and overlay of existing streets, striping, installing ADA sidewalk ramps, and utility adjustments as needed on Peabody Street between 5th and 8th, and on 5th Street between Ennis St. and Liberty Street, and at other sites as shown on the plans sent to us by the City in March, 2009. This project has been designed by the City of Port Angeles to approximately the 95% design level. Proiect Assumptions The following list of Exeltech's assumptions will serve as the baseline for finalizing the project to Advertising. 1. The level of effort for this project is based on a contracted construction schedule of 30 working days, and a total Consultant contract period of no more than two (2) months (to include limited pre-construction and post-construction efforts). Schedule delays or added scope outside of the Consultant's control may increase project cost. 2. Construction is to be completed in the 2009 construction season. 3. The Contractor's work schedule is assumed to consist of an 8 hour work day, 5 days per week. 4. Hazardous Materials and/or Archaeological discoveries/conditions are not present on the project site. 5. The City of Port Angeles will request and obtain an official Record of Materials (ROM) from the Washington State Department of Transportation, and provide it to the Consultant for use during the project. 6. After completion of the project the Consultant will turn over all relevant documentation in their files to the City. Copies of anything in the project files will be provided to the City upon request. 7. The City will provide the Consultant with the 95% PS&E package for this project to review. The Consultant's shall review the project design provided by the City and offer comments for the City to consider incorporating. 8. The City shall be responsible for the task of checking Intent to Pay Prevailing Wages and Certified Payrolls against Federal Wage Rates, approving sub contractor packages, request for materials, writing change orders and responding to RFls. The Consultant will Exeltech Consulting, Inc. Scope of Services Peabody Street and 5th Street Overlay Page 1 conduct interviews with the Contractor's employees and a provide payroll interview report. The City will review this report against Federal Wage Rates. 9. The City will prepare and send the Environmental Classification Summary (ECS) checklist for the project to the Consultant for review and offer comments for the City to incorporate into the final plans. 10. No drafting will be required. 11. The Consultant will not stamp/sign the final PS&E. 12. The City will make timely payment of invoices (within 30 days of approved invoice). 1. PROJECT MANAGEMENT The Consultant shall provide project management and documentation of work progress, including coordinating the work products of the QA/QC team and Inspection Services. 1.1 Project Coordination The Consultant will work with the City to develop the scope and budget for the Consultant's services on the Project. The Consultant will submit monthly progress reports and invoices. Deliverables . Scope and budget . Monthly Progress Reports (3) . Monthly Invoices (3) 2. FINAL DESIGN AND PS&E SUPPORT The Consultant shall review the City's 95% PS&E and suggest proposed revisions to the PS&E package for the project for the City to incorporate into the final plans. The details of these plans are summarized below. 2.1 Field Reviews The Consultant will conduct a plan in hand field review to ensure the plans show ground truth and are constructible. The field review will include a general sight verification and will not include surveying. It is assumed that the field review will generally verify accuracy of the existing data. 2.2 Review and mark-up 95% plans The Consultant will review the 95% plans prepared by the City of Port Angeles for clarity and will incorporate their findings in Task 2.1 by reding and greening hard copy plans to be submitted to the City for suggested revisions to be incorporated into the final plans. Exeltech Consulting. Inc. Scope of Services Peabody Street and 5th Street Overlay Page 2 Deliverables . One set of plans showing mark ups based on field review (electronic copy) 2.3 Review environmental documentation The Consultant will review the City's Draft ECS and offer suggested revisions to be incorporated into the final ECS that the City will prepare a'nd submit for approval. It is assumed that no independent environmental research or analysis will be required. Deliverables . One updated ECS with suggested revisions (electronic copy) 3. CONSTRUCTION SUPPORT SERVICES 3.1 Inspection The City shall inspect on-site construction activities for conformance with the project plan specifications, Contract documents, submittals and applicable codes and design standards. Any non-conformances, deviations, defects or deficiencies observed will be documented and communicated to the City. The Consultant shall track and inspect all materials deliveries, storage and protection for compliance against the ROM provided by the City. The Consultant shall coordinate the technical inspection and verify acceptance testing for all project materials and constructed components as specified by the ROM. The Consultant shall document all observed non-conforming work, and as necessary in conjunction with the design team make recommendations to the City for corrective measures. Resolution of all nonconforming issues/item, will be tracked to assure that corrective work is completed. As necessary, disputes will be elevated to the proper level. The Consultant shall provide Inspector's daily reports by utilizing the WSDOT electronic Inspector's Daily Report forms 422-004 and 422-004A, documenting weather conditions, labor, equipment, and materials used, material and equipment deliveries to the site, phases of work being undertaken with start and stop times, work by bid item number, environmental permit compliance, Contractor contacts made, visitors to the site, quality of work, shortages, requests for change orders, engineer directives and/or clarifications, design issues, safety, traffic management, accidents, any notices received, interfaces with other agencies and government officials, identification of different site conditions and contaminated materials and the influence of external events such as weather and strikes which may affect the cost or completion schedule for the work. Inspector daily reports shall be transmitted electronically to the City at least on a weekly basis. The Consultant will provide daily reports on Force Account items on 422-008 form, and document and calculate the amount to be paid for work performed on the force account. The Consultant will document lump sum bid items, and calculate and provide percent complete report Exeltech Consulting, Inc. Scope of Services Peabody Street and 5th Street Overlay Page 3 The Consultant shall provide a weekly statement of working days to the contractor and a copy to the file. Deliverables . Inspector's Daily Reports . Weekly Statement of Working Days 3.2 Documentation Control The Consultant shall place all documentation of materials received, pay notes, force account sheets, IDRs and other documentation in an organized way approved by the City at commencement of the project. Deliverables . All materials above placed in binders 3.3 Review as builts The Consultant will review the Contractor's submitted as built plans to verify accuracy of document against the IDRs. Deliverables . Marked up as built plans Exeltech Consulting, Inc. Scope of Services Peabody Street and 5th Street Overlay Page 4 Exhibit C Electronic Exchange of 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: 1. The Agency's Right to Review Product with the Consultant 2. Electronic Messaging System 3. File Transfers Format Exhibit 0-2 Payment (Cost Plus a Fixed Fee) The CONSULTANT shall be paid by the AGENCY for completed work and services rendered under this AGREEMENT as provided hereinafter. Such payment shall be full compensation for work performed or services rendered and for all labor, materials, supplies, equipment, and incidentals necessary to complete the work specified in Section II, "Scope of Wark." The CONSULTANT shall conform to all applicable portions of 48 CFR Part 31. 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, overhead, direct non-salary costs, and fixed fee. 1. Direct Salary Costs: The Direct Salary 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 CONSUL T ANT shall maintain support data to verify the direct salary costs billed to the AGENCY. 2. Overhead Costs: Overhead 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 rate shown in the heading of this AGREEMENT under "Overhead Progress Payment Rate." Total overhead payment shall be based on the method shown in the heading of the AGREEMENT. The two options are explained as follows: a. Fixed Rate: If this method is indicated in the heading of the AGREEMENT the AGENCY agrees to reimburse the CONSULTANT for overhead at the percentage rate shown. This rate shall not change during the life of the AGREEMENT. b. Actual Cost: If this method is indicated in the heading of the AGREEMENT the AGENCY agrees to reimburse the CONSULTANT the actual overhead 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 CONSULTANTS cost estimate and the overhead computation is shown in Exhibit "E" attached hereto and by this reference made part of this AGREEMENT. When an Actual Cost method is used, the CONSUL TANT (prime and all sub-consultants) will submit to the AGENCY within six (6) months after the end of each firm's fiscal year, an overhead schedule in the format required by the AGENCY (cost category, dollar expenditures, etc.) for the purpose of adjusting the overhead rate for billing purposes. It shall be used for the computation of progress payments during the following year and for retroactively adjusting the previous year's overhead cost to reflect the actual rate. DOT Form 140-089 EF Exhibit 0-2 Revised 8/07 Failure to supply this information by either the prime CONSULTANT or any of their sub- consultants shall cause the AGENCY to withhold payment of the billed overhead costs until such time as the required inforfuaiion is received and an overhead rate for billing purposes is approved. The AGENCY, STATE and/or the Federal Government may perform an audit of the CONSULTANT'S books andrecords at any time during regular business hours to determine the actual overhead rate, if they so desire. 3. Direct Non-Salary Costs: Direct Non-Salary Costs will be reimbursed at the Actual Cost to the CONSULTANT. These charges may include, but are not limited to, the following items: travel, printing, long distance telephone, supplies, computer charges and sub- consultant costs. a. Subconsultant costs will include a Sub-Consultant Oversight mark-up of 4% as allowed in accordance with 48 CFR 31.2 Subconsultant costs including Oversight Markup must be itemized on the Subconsultant Fee Determination - Summary sheet attached as Exhibit G-l. b. 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 AGENCY'S Travel Rules and Procedures. However, air, train, and rental car costs shall be reimbursed in accordance with 48 CFR Part 31.205-46 "Travel Costs." c. The billing for Direct Non-Salary Costs shall include an itemized listing of the charges directly identifiable with the PROJECT. d. 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. c. All above charges must be necessary for the services provided under this AGREEMENT. 4. Fixed Fee: The Fixed Fee, which represents the CONSULTANT'S profit, is shown in the heading of this AGREEMENT under Fixed Fee. This amount does not include any additional Fixed Fee, which could be authorized from the Management Reserve Fund. 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 F\ina: the AGENCY may desire to establish a Management Reserve Fund 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 Management Reserve Fund is shown in the heading of this AGREEMENT. This fund may not be replenished. Any changes requiring additional costs in excess of the Management Reserve Fund shall be made in accordance with Section XIV, "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 Management Reserve Fund. The Maximum Total Amount Payable does not include payment for Extra Work as stipulated in Section XIV, "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 calculated overhead and 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 Salary, Direct Non-Salary, and allowable Overhead Costs to which will be added the prorated Fixed Fee. To provide a means of verifying the billed salary costs for CONSULTANT employees, the AGENCY may conduct employee interviews. These interviews may consist of recording the names, titles, salary rates, and present duties of those employees performing work on the 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 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) 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) days after receipt of the final POST AUDIT to begin the appeal process to the AGENCY for audit findings. D. Inspection of Cost Records: The CONSULTANT and their sub-consultants shall keep available for inspection by representatives of the AGENCY, ST ATE and the United States, for a period of three (3) 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 contract is initiated before the expiration of the three (3) year period, the cost records and accounts shall be retained until such litigation, claim, or audit involving the records is completed. Exhibit E-1 Consultant Fee Determination - Summary Sheet (Lump Sum, Cost Plus Fixed Fee, Cost Per Unit of Work) Project: City of Port Angeles, W A Direct Salary Cost (DSC): Classification Man Hours ~ = em Principal 2.0 X 63.50 $ 127.00 Project Manager (PM) 46.0 X 46.00 2,116.00 Project Engineer (PE) 0.0 X 50.00 0.00 Project Inspector (PI) 438.0 X 33.15 14,519.70 Office/Design Engineer 0.0 X 35.30 0.00 Environmental Manager 6.0 X 50.45 302.70 CADD Technician 0.0 X 28.88 0.00 Admin! Accounting 8.0 X 35.00 280.00 X Total DSC = $ 17,345.40 Overhead (OH Cost -- including Salary Additives): OH Rate x DSC of Fixed Fee (FF): FF Rate x DSC of 160.27 %x$ 17,345.40 27,799.47 30 %x$ 17,345.40 5,203.62 Reimbursables: Itemized 302.00 Subconsultant Costs (See Exhibit G): Grand Total 50,650.49 Prepared By: Roger Horton / Leah Jones May 6, 2009 Date: DOT Form 140-089 EF Exhibit E-1 Revised 6/05 Exhibit E-1 Consultant Fee Determination - SUrTllnary Sheet City of Port Angeles - Pavers EXEL TECH CONSULTING, INC. Sheet 1 of 3 Date: May 5, 2009 TASK COST SUMMARY LABOR COSTS: Labor Resources Labor-hours Salary Rate 1 Principal 2 Hrs. @ $63.50 = 2 Project Manager (PM) 46 Hrs. @ $46.00 = 3 Project Engineer (PE) 0 Hrs. @ $50.00 = 4 Project Inspector (PI) 438 Hrs. @ $33.15 5 Office/Design Engineer (ODE) 0 Hrs. @ $35.30 = 6 Environmental Manager (EM) 6 Hrs. @ $50.45 7 CADD Technician 0 Hrs. @ $28.88 = 8 Admin/Accounting 8 Hrs.@ $35.00 = 500 Hrs. Overhead 160.27% = Profit (DL) 30.00% = Labor Subtotal = DIRECT NON-LABOR COSTS ANTICIPATED: Travel Miscellaneous Direct Non-Labor Costs Subtotal = Cost $127.00 $2,116.00 $0.00 $14,519.70 $0.00 $302.70 $0.00 $280.00 $17,345.40 $27,799.47 $5,203.62 $50,348.49 $242.00 $60.00 $302.00 EXEL TECH ESTIMATED COSTS = $50,650.49 I ,,;j I E~Hll)it E-1 Consultant Fee Determination - Summary Sheet City of Port Angeles - Pavers Sheet 2 of 3 EXEL TECH CONSULTING, INC. Date: May 5, 2009 PROJECT LABOR-HOUR ESTIMATE Labor-hour Resources Prin PM PE PI ODE EM CADD Admin Total 1. Project Management 1.1 Project coordination 2 44 0 0 8 54 Subtotal Task 1 2 44 0 0 0 0 0 8 54 2. QAlQC PS&E 2.1 Field reviews 25 25 2.2 Review and mark-up 95% plans and specials 2 125 127 2.5 Review environmental documentation 6 6 Subtotal Task 2 0 2 0 150 0 6 0 0 158 3. Construction Management 3.1 Inspection 240 240 3.2 Documentation control 40 40 3.3 Review as builts 8 0 8 Subtotal Task 3 0 0 0 288 0 0 0 0 288 Total of hours: 2 46 0 438 0 6 0 8 500 ) Exhibit E~1 Consultant Fee Determination - Summary Sheet City of Port Angeles - Pavers EXEL TECH CONSULTING, INC. Sheet 3 of 3 Date: May 5, 2009 DIRECT NON-LABOR COSTS TRAVEL 1. Meetings 2. Site Visits 2 Trips @ 220 miles @ $0.550 = $242.00 free TRAVEL TOTAL $242.00 MISCELLANEOUS EXPENSES 1 . Express Mail 2 ea. @ $30.00 = MISC. EXPENSES TOTAL $60.00 $60.00 DIRECT COSTS TOTAL $302.00 Exhibit F ~ Wi Washington State .. Department of Transportation Paula .J. Hammond, P.E. Secretary of Transportation Transportation Building 310 Maple Park Avenue S.E. P.o. Box 47300 Olympia. WA 98504-7300 350-705-7000 TIY: 1-800-833-6388 www.wsdol.wa.gov December 12,2008 Ms. Michelle Rhodes Exeltech Consulting, Tnc. 2590 Willamette DR NE, Suite 101 Lacey, WA 98516-1325 Re: Exeltech Consulting, Inc. Overhead Schedule Fiscal Year End December 31, 2007 Dear Ms. Rhodes: On December 12, 2008, as a WSDOT representative. Oliver Domondon, Audit Specialist, reviewed your proposed FYE December 31,2007 Overhead Schedule. Oliver also reviewed the documentation provided by Exeltech Consulting, Inc. during this review process. The reviewed data included, but was not limited to; the schedule of the indirect cost rate, a description of the company, basis of accounting and description ofExeltech Consulting, Inc. accounting system and the basis of indirect costs. Based on our review, we are issuing this letter of concurrence establishing Exeltech Consulting, Inc. overhead rate for the fiscal year ending December 31,2007. The Company Wide Rate (Composite Rate) is 160.27% of direct labor. Included within this rate are the Home Rate of 180.47% of direct labor, and the Field Rate of 111.69% of direct labor. Costs billed to actual agreements will still be subject to audit of actual costs. If you or any representative of Exeltech Consulting, Inc. have any questions, please contact Martha Roach, Agreement Compliance Audit Manager at (360) 705-7006. Sincerely, 7Vt~~ Martha S. Roach Agreement Compliance Audit Manager MR:ds Enclosures cc: Steve McKerney Janice Zahn - Port of Seattle File Marilyn Bowman Rick Griffith MS 47323 MS 47323 Exeltech Inc. Overhead Schedule FYE December 31,2007 Field Rate Allocation Proposed Accepted Amount Exeltech WSDOT Composite Home Field Category from GL Inc. Adj. Adj. Ref. Rate % Overhead Overhead Direct Labor Base $1,399,482 $1,399,482 5960,669 $438,813 Fringe Benefits Payroll Taxes $218,802 A $218,802 15.63% $150,196 $68,606 Vacation/Holiday/Sick Leave 231,520 A 231,520 16.54% 158,926 72,594 Bonus - Employees 40,322 (40,322) A,V 0 0.00% 0 0 Bonus - Kuruvilla(Shareholder) 215,000 (109,869) (l05,131) A,C,V 0 0.00% 0 0 Health & Dental Insurance - Employees 103,879 A 103,879 7.42% 71,307 32,572 Insurance - Keyman, Kuruvilla (Shareholder) 791 (791) A,K 0 0.00% 0 0 Retirement -Kuruvilla(Shareholder) 2,813 A 2,813 0.20% 1,931 882 Retirement - Employees 33,116 A 33,116 2.37% 22,732 10,384 Total Fringe Benefits $846,243 ($110,660) $590,130 42.17% $405,092 $185,038 m >< ~. General Overhead Expenses 0- ;:+.: Auto, Boat, Parking & Ferries ($5,328) 5,328 8, * $0 0.00% $0 $0 ,1' Advertising 3,952 (3,952) B,G 0 0.00% 0 0 Bad Debt 1,159 (1,159) 8, I 0 0.00% 0 0 Bank Service Charges 611 B 611 0.04% 521 90 Charitable Donations 2,959 (2,959) 8,D 0 0.00% 0 0 Computer and IT Maintenance 37,865 B 37,865 2.71% 32,299 5,566 Depreciation 71,261 B 71,261 5.09% 60,786 10,475 Dues, Subscriptions & Books 28,452 (920) B,Q 27,532 1.97% 23,485 4,047 Education 21,092 A 21,092 1.51% 17,992 3,100 Equipment Lease 14,075 B 14,075 1.01% 12,006 2,069 Insurance 119,468 A 119,468 8.54% 101,907 17,561 Interest 42,329 (42,329) B,E 0 0.00% 0 0 Licenses & Permits 11,548 B 11,548 0.83% 7,927 3,621 Meals & Entertainment 10,362 (10,363) 8,F (1) 0.00% (0) (0) Office Supplies 20,389 B 20,389 1.46% 13,996 6,393 Office Move 8,410 B 8,410 0.60% 5,773 2,637 Page 2 Exeltech Inc. Overhead Schedule FYE December 31 , 2007 Field Rate Allocation Proposed Accepted Amoun t Exeltech WSDOT Composite Home Field Category from GL Inc. Adj. Adj. Ref. Rate % Overhead Overhead Personnel Recruitment 13,066 B 13,066 0.93% 8,969 4,097 Postage & Delivery 12,066 B 12,066 0.86% 8,283 3,783 Printing & Reproduction 26,584 (1,984) B,L 24,600 1.76% 16,887 7,713 Professional Fees 14,067 (2,017) B, J 12,050 0.86% 8,272 3,778 Rent 232,354 B 232,354 16.60% 159,498 72,856 Repairs & maintenance 10,793 B 10,793 0.77% 7,409 3,384 Software Expenses 746 B 746 0.05% 512 234 Staff Meetings & Kitchen Supplies 20,508 (3,839) (12,096) B, N, R, S, T, U 4,573 0.33% 3,139 1,434 Supplies - Operating 3,030 B 3,030 0.22% 2,585 445 Taxes - City & State Business 56,395 B 56,395 4.03% 48,105 8,290; Taxes Personal Property' 1,891 B 1,891 0.14% 1,613 278 m Telephone 39,284 B 39,284 2.81% 26,966 12,318 >(..,- :J . TemporaI)' Help 3,927 B 3,927 0.28% 3,349 577 0-. .'. ;:+" Travel 39,208 (349) B,P 38,859 2.78% 33,147 5,712 .". Uniforms 1,298 (1,298) B,O 0 0.00% 0 0 Gifts/Flowers 3,319 (3,319) B,H 0 0.00% 0 0 Wages, Employees-Indirect 875,197 (1,441) (120,851) A,M,W 752,905 53.80% 642,232 110,673 Wages - Indirect, Kuruvilla (Shareholder) 94,922 A 94,922 6.78% 80,969 13,953 Total ~neral Overhead Expenses $1,837,259 ($73,361) ($130,186) $1,633,712 116.74% $1,328,626 $305,085 Total Overhead Expenses $2,683,502 ($184,021) ($130,186) $2,223,842 158.90% $1,733,7l9 $490,123 FCCM $19,055 Facilites Capital Cost of Money Overhead Rate 191.75% 160.27% 180.47% 111.69% Exeltech, Inc. - Reviewed & Accepted -12/11/08 OD Overhead rate subject to WSDOT audit Page 3 Exeltech Inc. Overhead Schedule FYE December 31, 2007 Field Rate Allocation Category Proposed Amount from GL Exeltech Inc. Adj. WSDOT Adj. Ref. Accepted Composite Rate 0/0 Home Overhead Field Overhead References: A Allocation A = Direct Field Labor / Direct Total Labor = $438,813.47/ $1,399,482.00 = B Allocation B = (Indirect Labor * Allocation A) / (Direct Home Labor + Indirect Labor) ($968,677.92 * .3136) / ($960,668.53 + $968,677.92) = Exeltech, Inc. Adjustments: Exeltech, Inc. FYE 12/31/07 Overhead Schedule has not been audited by a CPAfirm or another agency C Bonuses in excess of 15% of total allowable overhead per WSDOT Overhead Policy. D Contributions unallowable per 48 CFR 31.205-8; includes Tacoma Youth Symphony, MDA auction. E Interest unallowable per 48 CFR 31.205-20. Local meals & Entertainment unallowable per 48 CFR 31.205-14, WSDOT Travel Directive D 13-50, and WSDOT Overhead Policy; includes Seattle Mariners F tickets. G Advertising cost nonallowable per 48 CFR 31.205-1. H Gifts to clients unallowable per 48 CFR 31.205-14. I Bad Debt unallowable per 48 CFR 31.205-3; J Federal tax return preparation fees over $250 unallowable per 48 CFR 31.205.41 (b)(t), 48 CFR 3 I.201-6(d), and WSDOT Overhead Policy. K Key man insurance unallowable per 48 CPR 31.205-19(e)(2)(v). L Marketing Cost unallowable per 48 CFR 31.205-1 (1). M Overtime premium unallowable per 48 CFR 22.103-2. N Xmas part expenses in excess of 25 per employee & picnic costs in excess of 10 per employee per 48 CPR 31.205-14. WSDOT Adjustments: o Imprinted clothing unallowable per 48 CFR 31.205-1(f) (6). P Penalties unallowable per 48 CFR 31.205-15 (a); includes flight change fees, toll infraction. Q Costco membership unallowable per gift 48 CFR 31.205-13(b). R Holiday Party in excess of $25 per attended employee per 48 CPR 31.205-14 & WSDOT Policy. S Picnic expense in excess of $10 per attended employee per 48 CFR 31.205 - 1 4 & WSDOT Policy. T Prior year expense unallowable per 48 CFR 31.201-2 ( c ); costs include 2006 Space Needle holiday party. U Entertainment unallowable per 48 CFR 31.205- 14; costs include Musuem of Flight, goodbye party, Dumas Bay Rental Centre. V Distribution of Profit unallowable per 48 CFR 31.205-6(ii)(B) & AASHTO Audit Guide Ch. 5-2. W Reasonableness per 48 CFR 31.201-3. Indirect labor adjusted for 6 employees between the period of April- September; finn lost a project in April and 6 employees were laid off in September. This adjustment was proposed and agreed with by the finn. * Debit adjustment to zero the account. 31.36% 14.70% m >< ::r .-- rr ;::;: " Page 4 , Exhibit H Title VI Assurances During the performance of this AGREEMENT, the CONSULTANT, for itself, its assignees, and successors in interest agrees as follows: 1. Compliance with Regulations: The CONSULTANT shall comply with the Regulations relative to non- discrimination in federally assisted programs of the AGENCY, Title 49, Code of Federal Regulations, Part 21, as they may be amended from time to time (hereinafter referred to as the "REGULATIONS"), which are herein incorporated by reference and made a part of this AGREEMENT. 2. Non-discrimination: The CONSULTANT, with regard to the work performed during the 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 the 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 AGENCY, STATE or the Federal Highway Administration (FHW A) 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, 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 FHW A may determine to be appropriate, including, but not limited to: Withholding of payments to the CONSULTANT under the AGREEMENT until the CONSULTANT complies, and/or; . Cancellation, termination, or suspension of the AGREEMENT, in whole or in part DOT Form 140-089 EF Exhibit H Revised 6/05 6. Incorporation of Provisions: The CONSULTANT shall include the provisions of paragraphs (1) through (5) in every sub-contract, 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 AGENCY, STATE or FHW A 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 and the STATE enter into such litigation to protect the interests of the AGENCY and the STATE and, in addition, the CONSULTANT may request the United States enter into such litigation to protect the interests of the United States. Exhibit I Payment Upon Termination of Agreement By the Agency Other Than for Fault of the Consultant (Refer to Agreement, Section IX) Lump Sum Contracts A final payment shall be made to the CONSULTANT which when added to any payments previously made shall total the same percentage of the Lump Sum Amount as the work completed at the time of termination is to the total work required for the PROJECT. In addition, the CONSULTANT shall be paid for any authorized extra work completed. Cost Plus Fixed Fee Contracts A final payment shall be made to the CONSULTANT which when added to any payments previously made, shall total the actual costs plus the same percentage of the fixed fee as the work completed at the time of termination is to the total work required for the Project. In addition, the CONSULTANT shall be paid for any authorized extra work completed. 'Specific Rates of Pay Contracts .A final payment shall be made to the CONSULTANT for actual hours charged at the time of termination of this AGREEMENT plus any direct nonsalary costs incurred at the time of termination of this AGREEMENT. Cost Per Unit of Work Contracts A final payment shall be made to the CONSULTANT for actual units of work completed at the time of termination of this AGREEMENT. DOT Fonn 140-089 EF Exhibit I Revised 6/05 Exhibit J 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 Highways and 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 oflabor, 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 manger 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 H&LP, through the Region DOT Form 140-089 EF Exhibit J Revised 6/05 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. Step 5 - Forward Documents to Highways and Local Programs For federally funded projects all available information, including costs, should be forwarded through the Region Highways and Local Programs Engineer to H&LP for their review and consultation with the FHW A. H&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, H&LP will request assistance from the Attorney General's Office for legal interpretation. H&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. H&LP, in consultation with FHW A, 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. Exhibit K 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 FHW A 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 Highways and 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 Highways and Local Programs (if applicable), and FHW A (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. DOT Form 140-089 EF Exhibit K Revised 6/05 If the Agency does not agree with the consultant's claim, proceed to step 3 of the procedures. 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 Pubic Works or Agency Engineer shall review and administratively approve or disapprove the claim, or portions thereof, which may include getting Agency Councilor Commission approval (as appropriate to agency dispute resolution procedures). If the project involves federal participation, obtain concurrence from WSDOT Highways and Local Programs and FHW A 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. Exhibit M-1 (a) Certification Of Consultant Project No. Local Agency I hereby certify that I am Vye,s \ den-\- representative of the firm of Exeltech Consulting, Inc. 81ZQ (!Jammer-ere., 1/IPtCe.1Mve. NG)Slli~A watj,wA qe6JI, firm I here represent has: and duly authorized whose address is and that neither I nor the above (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 the 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 available 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. 6f4f~ DOT Form 140-089 EF Exhibit M-1(a) Revised 6/05 Exhibit M-1 (b) Certification Of Agency Official I hereby cenify that I am the AGENCY Official of the Local Agency of C. -L, .. t- \?..r t....'".,.!~ S Washington, and that the consulting firm 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 available 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. \'-I\A"1 , 1..0, Date "'2..0>C>'- ~ -L;~ , Signature /Jl ~ DOT Form 140-089 EF Exhibit M-1(b) Revised 6/05 Exhibit M-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-year period preceding this proposal been convicted of or had a civil judgment rendered against them for commission or 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 antitrust 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, or local) terminated for cause or default. II. Where the prospective primary participant is unable to certify to any of the statements in this certification, such prospective participant shall attach an explanation to this proposal. Consultant (Firm): Exeltech Consulting, Inc. sf #'L<<J 11 (Date) (Signature) Presi DOT Form 140-089 EF Exhibit M-2 Revised 6/05 Exhibit M-3 Certification Regarding The Restrictions of The use of Federal Funds for Lobbying The prospective participant certifies, by signing and submitting this bid or proposal, to the best of his or her knowledge and belief, that: 1. No federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any Federal agency, a member of Congress, an officer or employee of Congress, or an employee of a member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement. 2.If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any Federal agency, a member of Congress, an officer or employee of Congress, or an employee of a member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by Section 1352, Title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 imd not more than $100,000 for each such failure. The prospective participant also agrees by submitting his or her bid or proposal that he or she shall require that the language of this certification be included in all lower tier subcontracts which exceed $100,000 and that all such subrecipients shall certify and disclose accordingly. Consultant(Firm): Exeltech Consulting, Inc. 't1(+iU()~ (Date) (Signature) P DOT Form 140-089 EF Exhibit M-3 Revised 6/05 Exhibit N American Recovery and Reinvestment Act of 2009 (ARRA) Employment Report The Consultant shall submit monthly reports of the number of employees actively working on this agreement for the Consultant and all Subconsultants of every tier. The reports shall include all employees actively working on this agreement at the jobsite, in the project office, in the home office, or teleworking from a home or other alternative office location; to include all engineering personnel, administration personnel sampling and testing technicians, and lab technicians actively performing work directly in support of this agreement (excluding suppliers) during the reporting month. The report shall be prepared using Form FHW A-1589 and submitted monthly to the Project Engineer. The initial report shall be submitted to the Project Engineer within 3D-days of execution. Subsequent reports shall be submitted to the Project Engineer no later than lO-days after the end of each report month. Failure by the Consultant to submit ARRA Employment Reports for the Consultant and all Subconsultants of every tier shall be reason for withholding all progress payments until reports are received.