City of Seattle City Budget Office CONSULTANT AGREEMENT Title: Streetcar Cost Review AGREEMENT NUMBER: CBO 2018-002 This Agreement is made and entered into by and between the City of Seattle (“the City”), a Washington municipal corporation, through its City Budget Office (CBO), as represented by the CBO Director; and KPMG LLP, 1918 8th Avenue, Suite 2900, Seattle, WA 98101 (“Consultant”), a limited liability partnership of the State of Delaware and authorized to do business in the State of Washington. Recitals: WHEREAS, the purpose of this contract is to conduct an independent review of capital and operating costs associated with the Seattle Streetcar; WHEREAS, the Streetcar currently operates two lines, the First Hill Streetcar and the South Lake Union Streetcar. A third line connecting the two, the Center City Streetcar Project, has been proposed; and WHEREAS, the Consultant was selected through an informal competitive RFQ process because of an Adverse Effect determination. NOW THEREFORE, in consideration of the terms, conditions, covenants and performance of the Scope of Work contained herein, the City and Consultant mutually agree as follows: 1. TERM OF AGREEMENT. The term of this Agreement begins when fully executed by all parties and ends when work is completed and accepted by the City, unless amended by written agreement or terminated earlier under termination provisions. 2. TIME OF BEGINNING AND COMPLETION. The Consultant shall begin the work outlined in the “Scope of Work” (“Work”) upon receipt of written notice to proceed from the City. The City will acknowledge in writing when the Work is complete. Time limits established under this Agreement shall not be extended because of delays for which the Consultant is responsible, but may be extended by the City, in writing, for the City’s convenience or conditions beyond the Consultant’s control. Consultant will use best efforts to meet the City’s timetable of 25 calendar days for completing the work; however, the City agrees that there shall be no penalty or reduction in Consultant’s payment due to the inability to complete all work within the City’s timetable of 25 calendar days. 3. SCOPE OF WORK. The Scope of Work of this Agreement and the time scheduled for completion of such Work, as modified by Consultant’s Engagement Letter, are provided below, including the Consultant’s proposed delivery and “Approach” to executing the Scope of Work detailed in the Engagement Letter, which is incorporated into this Agreement by reference: Tasks: A) Evaluate the Seattle Department of Transportation’s (SDOT) operating plan for the Seattle Streetcar System A.1 Perform sensitivity analysis of SDOT’s project performance assumptions and traffic analysis: Streetcar Cost Review Agreement No. CBO 2018-001 1 Page FAS Rev: 3/20/2018 A.2 A.3 A.4 A.5 i. Headways ii. Reliability iii. Ridership (STOPS model) Evaluate cost assumptions and clearly identify assumptions for project costs, including: i. platform hours ii. maintenance costs iii. staffing levels Provide comparisons of cost assumptions with other publicly- and privately-operated US streetcar systems. Evaluate revenue assumptions: i. Farebox recovery, including impact of transfers ii. Sponsorship of vehicles and stations iii. Partnership funding iv. FTA operations funding v. Other sources of revenue Based on evaluated cost and revenue assumptions, evaluate estimates of annual revenues and cost of operations of the Streetcar System. Provide multiple projections as necessary to account for risk and variance in potential outcomes. The estimates should clearly indicate the projected operating subsidy and the cost per boarding. The financial estimates should cover: i. Current (2017) South Lake Union and First Hill Streetcar operations for comparison ii. First full year of operations for the consolidated Streetcar System iii. Fifth full year of operations for the consolidated Streetcar System iv. An estimate of the cost to operate the First Hill streetcar and South Lake Union streetcars separately (i.e., the cost if the Center City connector is not built) for what would have been the fifth full year of operations for the consolidated Streetcar System B) Evaluate the capital delivery costs and risks for the Center City Streetcar Project B.1 Review project scope and identify possible scope omissions and additional activities required to achieve the desired service levels. B.2 Review changes to project scope and whether these changes have been captured in the project budget. B.3 Review and assess cost assumptions in the entire capital project budget, including the related utility work. B.4 Evaluate project contingency needs through discussions with project stakeholders, identify potential risk factors and cost exposure, and assess whether the current project budget accounts for risk and contingency needs. B.5 Provide cost considerations of cancelling or delaying the project, including the related utility work, through discussions and supporting cost information provided by the main contractor and other stakeholders. C) Deliverables C.1 After an initial round of interviews with stakeholders the consultants will report back to the contract manager on their initial assessment of the scope to provide their feedback on how to accomplish the review within the given timeframe C.2 Participate in biweekly check-ins with City Budget Office (CBO) and other relevant City staff C.3 At the end of the engagement, provide a white paper summarizing the analysis and key findings C.4 Presentations to the Mayor's Office, City Council, CBO, SDOT, and others as needed D) Timeline The consultant review is expected to take approximately 25 calendar days. E) Protocol • The consultants will report to CBO. • The consultants will work with SDOT’s Finance and Administration division to obtain information Streetcar Cost Review Agreement No. CBO 2018-001 2 Page FAS Rev: 3/20/2018 • on streetcar financials and contract information. The consultants will work with CPRS, the project manager, and the Transit and Mobility Division (mainly the Streetcar manager) to obtain information about the streetcar contracts, milestones, operating cost assumptions, and to connect with the right individuals at Metro. F) Assumptions • The Consultants will check in with CBO on a weekly basis to provide a brief written progress report. • CBO will coordinate the weekly check ins, which may be in person or by phone depending on Consultant availability and convenience. • Consultants will invoice CBO and CBO will pay on a timely basis. • KPMG’s completion of this engagement and the fees charged are dependent on the City’s performance of its responsibilities as noted below, as well as the City’s timely decisions and approval of KPMG’s actions and deliverables. City shall be responsible for any delays, additional costs, or other liabilities caused by or associated with any deficiencies in its performance of its responsibilities. • KPMG will require the support of City personnel in order to achieve timely completion of the engagement. Support includes, but is not limited to, assistance to collect all relevant documents (paper or electronic) and assistance scheduling interviews and coordinating meetings. • This Agreement is based on the City accepting responsibility for substantive outcomes of this engagement and, therefore, has a responsibility to be in a position in fact and appearance to make an informed judgment on the results of the proposed work and that the City will comply with the following: − Designate a qualified management level individual to be responsible and accountable for overseeing the engagement and review of draft deliverables. City personnel assigned to the project will review draft deliverables on a timely basis. − Establish and monitor the performance of the engagement to ensure that it meets management’s objectives − Make any decisions that involve management functions related to the engagement and accept full responsibility for such decisions − Evaluate the adequacy of services performed and any findings that result. − Determining the objectives, scope, and extent of KPMG’s assistance. • The services, fees and timing described herein are based upon the following assumptions: − KPMG will act as an independent contractor in providing these services as set out in this letter and does not undertake to perform obligations of the City whether regulatory or contractual. − KPMG is not responsible for and will not make management decisions relating to this engagement or any other aspect of the City’s business. The City shall have responsibility for making all decisions with respect to the management and administration of its capital projects. − KPMG’s work under this engagement does not include a review or audit of financial statements, tax services, or other services performed by KPMG not listed in this engagement letter. − In providing our services, KPMG will undertake no role or view that could be considered public policy advocacy or lobbying. The Work is subject to City review and approval. The Consultant shall confer with the City periodically and prepare and present information and materials (e.g. detailed outline of completed Work) requested by the City to determine the adequacy of the Work or Consultant’s progress. 4. EXPANSION FOR NEW WORK. This Agreement scope may be expanded for new work. Any expansion for New Work (work not specified within the Scope of Work Section of this Agreement, and/or not specified in the original RFP as intended work for the Agreement) must comply with all the following limitations and requirements: (a) the New Work is not reasonable to solicit separately; (b) the New Work is for reasonable purpose; (c) the New Work was not reasonably known either the City or Consultant at time of contract or else was mentioned as a possibility in the solicitation (such as future phases of work, or a change in law); (d) the New Work is not significant enough to be reasonably regarded as an independent body of work; (e) the New Work would not have attracted a different field of competition; and (f) the change does not vary the essential identified or main purposes of the Agreement. The City may make exceptions for immaterial changes, emergency or sole source conditions, or other situations required in City opinion. Certain changes are Streetcar Cost Review Agreement No. CBO 2018-001 3 Page FAS Rev: 3/20/2018 not New Work subject to these limitations, such as additional phases of Work anticipated at the time of solicitation, time extensions, Work Orders issued on an On-Call contract, and similar. New Work must be mutually agreed and issued by the City through written Addenda. New Work performed before an authorizing Amendment may not be eligible for payment. 5. INTERLOCAL COOPERATION ACT. RESERVED 6. PAYMENT. A. This contract provides for a firm fixed price payment negotiated based on cost to complete the Scope of Work. Total compensation under this Agreement shall not exceed $416,214 unless modified by a written amendment to this Agreement. B. Consultant’s proposed costs, including fully-loaded hourly rates are provided in the Consultant’s Engagement Letter, which is incorporated into this Agreement by reference. 6.1 PAYMENT PROCEDURES. The Consultant may submit invoices to the City as frequently as twice per month during progress of work, for partial payment for work completed to date. Payment shall be made by the City to the Consultant upon the City’s receipt of a properly prepared invoice containing the information listed below. Deliver all invoices and invoice/billing notices under this Agreement to: If to the City: Adam Schaefer, Fiscal & Policy Analyst City of Seattle, City Budget Office Adam.schaefer@seattle.gov / 206-684-8358 600 4th Avenue, 6th Floor Seattle, WA 98104 If to the Consultant: Clay Gilge, Principal KPMG LLP cgilge@kpmg.com / 206-913-4670 1918 8th Avenue, Suite 2900 Seattle, WA 98101 See attached checklist for further instructions. Invoices must clearly display the following (sub-consultants' invoices must also include this information): • Invoice Date and Invoice Number • City Project Manager Name: Adam Schaefer (Please do not put PM’s name in the address) • Department Contract No. CBO 2018-002 • Contract Title: Streetcar Cost Review • Period covered by the invoice • Task # and title • Percentage of task completed to date • Cumulative billings per task and for the total project • Previous amount(s) billed • Amount of current invoice 6.2 REIMBURSABLES Reimbursables are included in the firm fixed price and shall not be billed separately. 6.3 PROMPT PAY. Definitions A. An invoice is considered received when it is date-stamped as received by the office of the recipient who is designated within this contract. If the invoice is not date-stamped or otherwise marked as received by a department, the date of the invoice will be considered the date the invoice is received. Streetcar Cost Review Agreement No. CBO 2018-001 4 Page FAS Rev: 3/20/2018 B. A payment is considered made on the day it is mailed or is available. C. Disputed items include, but are not restricted to, improperly prepared invoices, lack of appropriate supporting documentation, unapproved staff or staff rates on the invoice, and unsatisfactory work product or services. Prompt Payment to Consultant A. Timely Payment: Except as provided otherwise herein, payment for an invoice will be issued and mailed to the Consultant within thirty (30) calendar days of receipt of the invoice. B. Disputed Items: The City may withhold payment for disputed items. The City will promptly notify the Consultant in writing, outlining the disputed items, the amount withheld and actions the Consultant must take to resolve the disputed items. The City default is to delay payment until a revised invoice is submitted and approved. However, the Consultant may request partial payment for the approved amounts, if the unapproved amount represents a small share of the total invoice. The City shall pay the revised invoice within thirty (30) calendar days of receipt. C. Legal Fees: In any action brought to collect interest due under this Section, the prevailing party is entitled to an award of reasonable attorney fees. Prompt Payment to Subconsultants A. Cut-Off Date: Except as provided otherwise herein, payment for an invoice will be made to a subconsultant within thirty (30) calendar days of receipt by the Consultant. The Consultant may establish a monthly cut-off date of (to be established by Prime) that subconsultants must submit an invoice in order to assure 30-day payment. B. Disputed Items: The Consultant may withhold payment for disputed items. The Consultant will promptly notify the subconsultant in writing, outlining disputed items, the amount withheld and actions the subconsultant must take to resolve the disputed item(s). Such withheld amounts are limited only to items in dispute. The subconsultant can request partial payment for the approved amounts, or that the Consultant delay their entire payment until a revised invoice is submitted to and accepted by the Consultant. The Consultant shall pay the revised invoice within thirty (30) calendar days of receipt. C. Flow-Down Clauses: The Consultant shall require this provision in each subcontract of any tier. 7. TAXES, FEES AND LICENSES. A. The Consultant shall pay and maintain in current status, all necessary licenses, fees, assessments, permit charges, etc. It is the Consultant’s sole responsibility to monitor and determine any changes or the enactment of any subsequent requirements for said fees, assessments, or changes and to immediately comply. B. Where required by state statute, ordinance or regulation, the Consultant shall pay and maintain in current status all taxes necessary for performance. The Consultant shall not charge the City for federal excise taxes. The City will furnish Consultant an exemption certificate where appropriate. C. As authorized by SMC, the Director of Finance and Administrative Services may withhold payment pending satisfactory resolution of unpaid taxes and fees due the City. 8. ADDRESSES FOR NOTICES AND DELIVERABLE MATERIALS. See section 6.1 PAYMENT PROCEDURES 9. EQUAL BENEFITS. This provision applies to all contracts valued at $52,000 or above, including amendments. The Consultant shall comply with SMC Ch. 20.45 and Equal Benefit Program Rules, which require the Streetcar Cost Review Agreement No. CBO 2018-001 5 Page FAS Rev: 3/20/2018 Consultant to provide the same or equivalent benefits (“equal benefits”) to domestic partners of employees as the Consultant provides to spouses of employees. At the City’s request, the Consultant shall provide information and verification of the Consultant’s compliance. Any violation of this Section is material breach, for which the City may exercise enforcement actions or remedies defined in SMC Chapter 20.45. 10. SOCIAL EQUITY REQUIREMENTS. A. Non-discrimination: The Consultant shall not discriminate against any employee or applicant for employment because of race, color, age, sex, marital status, sexual orientation, gender identity,political ideology, creed, religion, ancestry, national origin, honorably discharged veteran or military status or the presence of any sensory, mental or physical handicap, unless based upon a bona fide occupational qualification. The Consultant shall affirmatively try to ensure applicants are employed, and employees are treated equally during employment, without regard to race, color, age, sex, marital status, sexual orientation, gender identify, political ideology, creed, religion, ancestry, national origin, honorably discharged veteran or military status or the presence of any sensory, mental or physical handicap. Such efforts include, but are not limited to employment, upgrading, demotion, transfer, recruitment, layoff, termination, rates of pay or other compensation, and training. B. WMBE Inclusion: The Consultant was selected, in part, due to the expertise of its only planned subcontractor. If the Consultant requires the services of additional subcontractors not foreseen at the time of execution, it shall make reasonable efforts to purchase the goods or services of woman and minority businesses. C. Paid Sick Time and Safe Time Ordinance: The Consultant shall be aware that the City has a Paid Sick Time and Safe Time ordinance that requires companies to provide employees who work more than 240 hours within a year inside Seattle, with accrued paid sick and paid safe time for use when an employee or a family member needs time off from work due to illness or a critical safety issue. The ordinance applies to employers, regardless of where they are located, with more than four full-time equivalent employees. This is in addition and additive to benefits a worker receives under prevailing wages per WAC 296-127-014(4). City contract specialists may audit payroll records or interview workers as needed to ensure compliance to the ordinance. Please see http://www.seattle.gov/laborstandards, or you may call the Office of Labor Standards at 206-6844500. D. Other Labor Standards Requirements: The Consultant shall comply to the extent applicable, with the City's Minimum Wage labor standards as required by SMC 14.19, setting wage standards for employees working within city limits as well as the Wage Theft labor standards as required by SMC 14.20, setting basic requirements for payment of wages and tips for employees working within city limits and providing various payment documentation to employees. 11. PROTECTION OF PROPERTY Consultant is responsible for protecting its person and property at all times, including but not limited to supplies and equipment to perform services hereunder; Consultant releases and agrees to hold the City harmless from liability for losses or damages or any kind sustained by Consultant in performing the services required hereunder. 12. INDEMNIFICATION. Consultant shall defend, indemnify, and hold the City 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 tangible property, caused by or resulting from: • the sole negligence or willful misconduct of Consultant, its officers, employees, agents or subconsultants; • the concurrent negligence of Consultant, its officers, employees, agents or subconsultants but only to the extent of the negligence of Consultant, its officers, employees, agents or subconsultants; • the negligent performance or non-performance of the contract by the Consultant; or • the use of any design, process, or equipment that constitutes an infringement of any patent in effect, or violates any other intellectual proprietary interest, including copyright, trademark, and Streetcar Cost Review Agreement No. CBO 2018-001 6 Page FAS Rev: 3/20/2018 trade secret. Consultant waives its immunity under Title 51 RCW to the extent it is required to indemnify, defend and hold harmless the City and its officials, agents or employees. 13. INSURANCE. Insurance certification and additional insured endorsement policy must be submitted to the City. See attached “INSURANCE REQUIREMENTS AND TRANSMITTAL FORM.” 14. AUDIT. Upon request, the Consultant shall permit the City and any other governmental agency (“Agency”) involved in funding of the Work, to inspect and audit all pertinent timekeeping and expense records. This includes work of the Consultant, any subconsultant, or any other person or entity that performed connected or related Work. Such timekeeping and expense records shall be made available at any and all times deemed necessary by the Agency, including up to six years after final payment or release of withheld amounts. Such inspection and audit shall occur in King County, Washington or other reasonable locations that the Agency selects. The Consultant shall permit the Agency to copy timekeeping and expense records. The Consultant shall ensure that inspection, audit and copying rights of the Agency is a condition of any subcontract, agreement or other arrangement under which any other person or entity may perform work under this Agreement. 15. INDEPENDENT CONSULTANT. A. The Consultant is an independent Consultant. This Agreement does not intend the Consultant to act as a City employee. The City has neither direct nor immediate control over the Consultant nor the right to control the manner or means by which the Consultant works. Neither the Consultant nor any Consultant employee shall be an employee of the City. This Agreement prohibits the Consultant to act as an agent or legal representative of the City. The Consultant is not granted express or implied rights or authority to assume or create any obligation or responsibility for or in the name of the City, or to bind the City. The City is not liable for or obligated to pay sick leave, vacation pay, or any other benefit of employment, nor to pay social security or other tax that may arise from employment. The Consultant shall pay all income and other taxes as due. The Consultant may perform work for other parties; the City is not the exclusive user of the services that the Consultant provides. B. If the City needs the Consultant to Work on City premises and/or with City equipment, the City may provide the necessary premises and equipment. Such premises and equipment are exclusively for the Work and not to be used for any other purpose. C. If the Consultant works on the City premises using City equipment, the Consultant remains an independent Consultant. The Consultant will notify the City Project Manager if s/he or any other Workers are within 90 days of a consecutive 36-month placement on City property. If the City determines using City premises or equipment is unnecessary to complete the Work, the Consultant will be required to work from its own office space or in the field. The City may negotiate a reduction in Consultant fees or charge a rental fee based on the actual costs to the City, for City premises or equipment. 16. KEY PERSONS. The Consultant shall not transfer or reassign any individual designated in this Agreement as essential to the Work, without the express written consent of the City, which shall not be unreasonably withheld. If any such individual leaves the Consultant’s employment, the Consultant shall present to the City one or more individuals with greater or equal qualifications as a replacement, subject to the City’s approval, which shall not be unreasonably withheld. The City’s approval does not release the Consultant from its obligations under this Agreement. 17. ASSIGNMENT AND SUBCONTRACTING. The Consultant shall not assign or subcontract its obligations under this Agreement without the City’s written consent, which may be granted or withheld in the City’s sole discretion. Any subcontract made by the Consultant shall incorporate by reference this Agreement, except as otherwise provided. The Consultant shall ensure that all subconsultants comply with the obligations and requirements of the subcontract. The City’s consent to any assignment or subcontract does not release the consultant from liability or any obligation within this Agreement, whether before or after City consent, assignment, or subcontract. Streetcar Cost Review Agreement No. CBO 2018-001 7 Page FAS Rev: 3/20/2018 18. CITY ETHICS CODE (SMC 4.16.010 TO .105). A. The Consultant shall promptly notify the City in writing of any person expected to be a Consultant Worker (including any Consultant employee, subconsultant, principal, or owner) and was a former City officer or employee within the past twelve (12) months. B. The Consultant shall ensure compliance with the City Ethics Code by any Consultant Worker when the Work or matter related to the Work is performed by a Consultant Worker who has been a City officer or employee within the past two years. C. The Consultant shall provide written notice to the City of any Consultant worker who shall or is expected to perform over 1,000 hours of contract work for the City within a rolling 12-month period. Such hours include those performed for the Consultant and other hours that the worker performed for the City under any other contract. Such workers are subject to the City Ethics Code, SMC 4.16. The Consultant shall advise their Consultant Workers. D. The Consultant shall not directly or indirectly offer anything of value (such as retainers, loans, entertainment, favors, gifts, tickets, trips, favors, bonuses, donations, special discounts, work or meals) to any City employee, volunteer or official that is intended, or may appear to a reasonable person to be intended, to obtain or give special consideration to the Consultant. Promotional items worth less than $25 may be distributed by the Consultant to City employees if the Consultant uses the items as routine and standard promotional materials. Any violation of this provision may cause termination of this Agreement. Nothing in this Agreement prohibits donations to campaigns for election to City office, so long as the donation is disclosed as required by the election campaign disclosure laws of the City and of the State. E. Campaign Contributions (Initiative Measure No. 122): Elected officials and candidates are prohibited from accepting or soliciting campaign contributions from anyone having at least $250,000 in contracts with the City in the last two years or who has paid at least $5,000 in the last 12 months to lobby the City. Please contact Polly Grow at polly.grow@seattle.gov for more information about the measure, or call the Ethics Director with questions at 206-615-1248. 19. NO CONFLICT OF INTEREST. The Consultant confirms that the Consultant has no business interest or a close family relationship with any City officer or employee who was or will be involved in the consultant selection, negotiation, drafting, signing, administration or evaluation of the Consultant’s work. As used in this section, the term Consultant includes any worker of the Consultant who was, is, or will be, involved in negotiation, drafting, signing, administration or performance of the Agreement. The term close family relationship refers to: spouse or domestic partner, any dependent parent, parent-in-law, child, son-in-law, daughter-in-law; or any parent, parent in-law, sibling, uncle, aunt, cousin, niece or nephew residing in the household of a City officer or employee described above. 20. ERRORS AND OMMISSIONS, CORRECTIONS. Consultant is responsible for professional quality, technical accuracy, and the coordination of all Work specified under this agreement. Consultant, without additional compensation, shall correct or revise errors or mistakes in the Work immediately upon notification by the City. The obligation provided for in this Section regarding acts or omissions resulting from this Agreement survives Agreement termination or expiration. 21. INTELLECTUAL PROPERTY RIGHTS. A. Copyrights. The Consultant shall retain the copyright (including the right of reuse) to all materials and documents prepared by the Consultant for the Work, whether or not the Work is completed. The Consultant grants to the City a non-exclusive, irrevocable, unlimited, royalty-free license to use copy and distribute every document and all the materials prepared by the Consultant for the City under this Agreement. If requested by the City, a copy of all drawings, prints, plans, field notes, reports, documents, files, input materials, output materials, the media upon which they are located (including cards, tapes, discs, and other storage facilities), software program or packages (including source code or codes, object codes, upgrades, revisions, modifications, and any related materials and/or any other related documents or materials developed solely for and paid for by the City to perform the Work, shall be promptly delivered to the City. B. Patents: The Consultant assigns to the City all rights in any invention, improvement, or discovery, with all related information, including but not limited to designs, specifications, data, patent rights and findings developed with the performance of the Agreement or any subcontract. Notwithstanding the Streetcar Cost Review Agreement No. CBO 2018-001 8 Page FAS Rev: 3/20/2018 above, the Consultant does not convey to the City, nor does the City obtain, any right to any document or material utilized by the Consultant created or produced separate from the Agreement or was pre-existing material (not already owned by the City), provided that the Consultant has identified in writing such material as pre-existing prior to commencement of the Work. If pre-existing materials are incorporated in the work, the Consultant grants the City an irrevocable, non-exclusive right and/or license to use, execute, reproduce, display and transfer the pre-existing material, but only as an inseparable part of the work. C. The City may make and retain copies of such documents for its information and reference with their use on the project. The Consultant does not represent or warrant that such documents are suitable for reuse by the City or others, on extensions of the project or on any other project. 22. NON-DISCLOSURE AGREEMENT No Signed Non-Disclosure Agreement is required 23. PROPRIETARY AND CONFIDENTIAL INFORMATION. The State of Washington’s Public Records Act (Release/Disclosure of Public Records) Under Washington State Law (reference RCW Chapter 42.56, the Public Records Act) all materials received or created by the City of Seattle are considered public records. These records include but are not limited to bid or proposal submittals, agreement documents, contract work product, or other bid material. The State of Washington’s Public Records Act requires that public records must be promptly disclosed by the City upon request unless that RCW or another Washington State statute specifically exempts records from disclosure. Exemptions are narrow and explicit and are listed in Washington State Law (Reference RCW 42.56 and RCW 19.108). As mentioned above, all City of Seattle offices (“the City”) are required to promptly make public records available upon request. However, under Washington State Law some records or portions of records may be considered legally exempt from disclosure. A list and description of records identified as exempt by the Public Records Act can be found in RCW 42.56 and RCW 19.108. If the City receives a public disclosure request for any records or parts of records that Contractor has properly and specifically listed on the City Non-Disclosure Request Form (Form) submitted with Contractor’s bid/proposal, or records that have been specifically identified in this contract, the City will notify Contractor in writing of the request and will postpone disclosure. While it is not a legal obligation, the City, as a courtesy, will allow Contractor up to ten business days to obtain and serve the City with a court injunction to prevent the City from releasing the records (reference RCW 42.56.540). If you fail to obtain a Court order and serve the City within the ten days, the City may release the documents. The City will not assert an exemption from disclosure on Contractor’s behalf. If Contractor believes that its records are exempt from disclosure, Contractor is obligated to seek an injunction under RCW 42.56.540. Contractor acknowledges that the City will have no obligation or liability to Contractor if the records are disclosed. 24. DISPUTES. Any dispute or misunderstanding that may arise under this Agreement, concerning the Consultant’s performance, shall first be through negotiations, if possible, between the Consultant’s Project Manager and the City’s Project Manager. It shall be referred to the Director and the Consultant’s senior executive(s). If such officials do not agree upon a decision within a reasonable period of time, either party may decline or discontinue such discussions and may then pursue the legal means to resolve such disputes, including but not limited to alternative dispute resolution processes. Nothing in this dispute process shall mitigate the rights of the City to terminate the contract. Notwithstanding all of the above, if the City believes in good faith that some portion of the Work has not been completed satisfactorily, the City may require the Consultant to correct such work prior to the City payment. The City will provide to the Consultant an explanation of the concern and the remedy that the City expects. The City may withhold from any payment otherwise due, an amount that the City in good faith finds to be under dispute, or if the Consultant provides no sufficient remedy, the City may retain the amount equal to the cost to the City for otherwise correcting or remedying the work not properly completed. Streetcar Cost Review Agreement No. CBO 2018-001 9 Page FAS Rev: 3/20/2018 25. TERMINATION. A. For Cause: The City may terminate this Agreement if the Consultant is in material breach of this Agreement, and such breach has not been corrected to the City’s reasonable satisfaction in a timely manner. B. For Reasons Beyond Control of the Parties: Either party may terminate this Agreement without recourse by the other where performance is rendered impossible or impracticable for reasons beyond such party’s reasonable control, such as, but not limited to, an act of nature, war or warlike operation, civil commotion, riot, labor dispute including strike, walkout or lockout, except labor disputes involving the Consultant’s own employees, sabotage, or superior governmental regulation or control. C. For City’s Convenience: The City may terminate this Agreement without cause and including the City’s convenience, upon written notice to the Consultant. D. Notice: Notice of termination under this Section shall be given by the party terminating this Agreement to the other, not fewer than five (5) business days prior to the effective date of termination. E. Actions upon Termination: if termination occurs and is not the fault of the Consultant, the Consultant shall be paid for the services properly performed prior to termination, with any reimbursable expenses then due, but such compensation shall not exceed the maximum compensation to be paid under the Agreement. The Consultant agrees this payment shall fully and adequately compensate the Consultant and all subconsultants for all profits, costs, expenses, losses, liabilities, damages, taxes and charges of any kind (whether foreseen or unforeseen) attributable to the termination of this Agreement. F. Upon termination, the Consultant shall provide the City with the most current design documents, contract documents, writings and other products the Consultant has produced to termination, along with copies of all project-related correspondence and similar items. The City shall have the same rights to use these materials as if termination had not occurred; provided however, that the City shall indemnify and hold the Consultant harmless from any claims, losses, or damages to the extent caused by modifications made by the City to the Consultant’s work product. The Consultant shall have no liability for the City’s use of any incomplete or draft work product. 26. CONSULTANT PERFORMANCE EVALUATION. The Consultant’s performance will be evaluated by the City at the conclusion of the contract. The Evaluation template can be viewed http://www.seattle.gov/contracting/docs/ccPE.doc. 27. DEBARMENT. Federal Debarment: The Consultant shall immediately notify the City of any suspension or debarment or other action that excludes the Consultant or any subconsultant from participation in Federal contracts. Consultant shall verify all subconsultants intended and/or used by the Consultant for performance of City Work are in good standing and are not debarred, suspended or otherwise ineligible by the Federal Government. Debarment shall be verified at https://www.sam.gov. Consultant shall keep proof of such verification of subconsultant debarment status within the Consultant records. City of Seattle Debarment: Under SMC Chapter 20.70, the Director of City Purchasing and Contracting Services (CPCS), as hereby delegated by the Director of Finance and Administrative Services, may debar and prevent a Consultant from contracting or subcontracting with the City for up to five years after determining the Consultant: A. Received overall performance evaluations of deficient, inadequate, or substandard performance on three or more City contracts; B. Failed to comply with City ordinances or contract terms, including but not limited to, ordinance or contract terms related to woman and minority business utilization, discrimination, equal benefits, or other state, local or federal non-discrimination laws; C. Abandoned, surrendered, or failed to complete or to perform work on or for a City contract; D. Failed to comply with contract provisions, including but not limited to quality of workmanship, timeliness of performance, and safety standards; E. Submitted false or intentionally misleading documents, reports, invoices, or other statements to the City in connection with a contract; F. Colluded with another firm to restrain competition; G. Committed fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a contract for the City or any other government entity; H. Failed to cooperate in a City debarment investigation. Streetcar Cost Review Agreement No. CBO 2018-001 10 Page FAS Rev: 3/20/2018 The CPCS Director or designee may issue an Order of Debarment under the SMC 20.70.050. Rights and remedies of the City under these provisions are besides other rights and remedies provided by law or under the Agreement. 28. MISCELLANEOUS PROVISIONS. A. Amendments: No modification of this Agreement shall be effective unless in writing and signed by an authorized representative of each of the parties hereto. B. Background Checks and Immigrant Status: The City may require background checks for some or all of the employees that may perform work under this Agreement. The City reserves the right to require such background checks at any time. The City has strict policies regarding the use of background checks, criminal checks, immigrant status, and/or religious affiliation for contract workers. The policies are incorporated into the contract and available for viewing on-line at http://www.seattle.gov/citypurchasing-and-contracting/social-equity/background-checks. C. Notification Requirements for Federal Immigration Enforcement Activities: To the extent legally permitted, prior to responding to any requests from an employee or agent of any federal immigration agency including the Immigration and Customs Enforcement (ICE), the U.S. Department of Homeland Security (DHS), Homeland Security Investigations (HSI), Enforcement Removal Operations (ERO), Customs and Border Protection (CBP), and U.S. Citizenship and Information Services (USCIS) regarding your City contract, Consultants shall notify the Project Manager immediately. Such requests include, but are not limited to: a. requests for access to non-public areas in City buildings and venues (i.e., areas not open to the public such as staff work areas that require card key access and other areas designated as “private” or “employee only”); or b. requests for data or information (written or oral) about workers engaged in the work of this contract or City employees. No access or information shall be provided without prior review and consent of the City. The Consultant shall request the ICE authority to wait until the Project Manager is able to verify the credentials and authority of the ICE agent and will direct the Consultant on how to proceed. D. Binding Agreement: This Agreement shall not be binding until signed by both parties. The provisions, covenants and conditions in this Agreement shall bind the parties, their legal heirs, representatives, successors and assigns. E. Americans with Disabilities Act (ADA): RESERVED F. Federal and State Compliance: To the extent legally permitted, the Consultant, at no expense to the City, shall comply with all laws of the United States and Washington, the Charter and ordinances of the City of Seattle; and rules, regulations, orders and directives of their administrative agencies and officers. Without limiting the generality of this paragraph, the Consultant shall comply with the requirements of this Section. G. Venue: This Agreement shall be construed and interpreted under the laws of Washington. The venue of any action brought shall be in the Superior Court of King County. H. Remedies Cumulative: Rights under this Agreement are cumulative and nonexclusive of any other remedy of law or in equity. I. Captions: The titles of sections or subsections are for convenience only and do not define or limit the contents. J. Severability: If any term or provision is determined by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement shall not be affected, and each term and provision shall be valid and enforceable to the fullest extent permitted by law. Streetcar Cost Review Agreement No. CBO 2018-001 11 Page FAS Rev: 3/20/2018 K. Waiver: No covenant, term or condition or the breach shall be deemed waived, except by written consent of the party against whom the waiver is claimed, and any waiver of the breach of any covenant, term or condition shall not be deemed a waiver of any preceding or succeeding breach of the same or any other covenant, term of condition. Neither the acceptance by the City of any performance by the Consultant after the time the same shall have become due nor payment to the Consultant for any portion of the Work shall constitute a waiver by the City of the breach or default of any covenant, term or condition unless otherwise expressly agreed to by the City in writing. L. Entire Agreement: This document along with any exhibits and all attachments, and subsequently issued addenda, comprises the entire agreement between the City and the Consultant. The solicitation (Request for Proposal or Solicitation for Qualifications), Addenda and Consultants Proposal (“Engagement Letter”) are each explicitly included as Attachments material to and incorporated into the Agreement. Where there are conflicts between these documents, the controlling document will first be this Agreement or as amended, the Consultant’s Proposal (“Engagement Letter”), then the City Solicitation documents. If there is a conflict between the law and this Agreement, the Consultant will abide by the law. M. Negotiated Agreement: The parties acknowledge this is a negotiated agreement, that they have had this Agreement reviewed by their respective legal counsel, and that the terms and conditions of this Agreement are not to be construed against any party on the basis of such party’s draftsmanship. N. No personal liability: No officer, agent or authorized employee of the City shall be personally responsible for any liability arising under this Contract, whether expressed or implied, nor for any statement or representation made or in any connection with this Agreement. ADDITIONAL TERMS Limitation of Liability. Notwithstanding anything else in this contract to the contrary, including all attachments, the liability of the Contractor on account of any actions, damages, claims, liabilities, costs, expenses or losses in any way arising out of or relating to the services performed under the Contract shall be limited to the amount of fees paid or owing to the Contractor under the Contract. In no event shall the Contractor be liable for consequential, special, indirect, incidental, punitive or exemplary damages, costs, expenses, or losses (including, without limitation, lost profits and opportunity costs). The provisions of this paragraph shall apply regardless of the form of action, damage, claim, liability, cost, expense, or loss asserted, whether in contract, statute, rule, regulation or tort (including but not limited to negligence) or otherwise, and shall survive contract termination or expiration. Management Decisions. The City acknowledges and agrees that the Contractor’s services may include advice and recommendations; but all decisions in connection with the implementation of such advice and recommendations shall be the responsibility of, and made by, the City. Contractor will not perform management functions or make management decisions for the City. Third Party Usage. The City acknowledges and agrees that any advice, recommendations, information, Deliverables or other work product (“Advice”) provided by the Contractor in connection with the services under the Contract is intended for the City’s sole benefit and the Contractor does not authorize any party other than the City to benefit from or rely upon such Advice, or make any claims against the Contractor relating thereto. Any such benefit or reliance by another party shall be at such party’s sole risk. Contractor may, in its sole discretion mark such Advice to reflect the foregoing. Except for disclosures that are required by law or that are expressly permitted by this Contract, the City will not disclose, or permit access to such Advice to any third party without Contractor’s prior written consent. California Accountancy Act. For engagements where services will be provided by Contractor through offices located in California, the City acknowledges that certain of Contractor's personnel who may be considered "owners" under the California Accountancy Act and implementing regulations (California Business and Professions Code section 5079(a); 16 Cal. Code Regulations sections 51 and 51.1) and who may provide services in connection with this engagement, may not be licensed as certified public accountants under the laws of any of the various states. Ownership. Upon full and final payment to Contractor under the Contract, Contractor assigns and grants to the City, title in the tangible items specified as deliverables or work product in Contract (the “Deliverables”) and any copyright interest in the Deliverables; provided that if and to the extent that any Contractor property is contained in any of the Streetcar Cost Review Agreement No. CBO 2018-001 12 Page FAS Rev: 3/20/2018 Deliverables (“KPMG Property”), Contractor hereby grants the City, under Contractor’s intellectual property rights in such KPMG Property, a royalty-free, non-exclusive, non-transferable, perpetual license to use such KPMG Property solely in connection with the City’s use of the Deliverables. Contractor acknowledges that it shall obtain no ownership right in Confidential Information of the City. In addition, the City acknowledges and agrees that Contractor shall have the right to retain for its files copies of each of the Deliverables and all information necessary to comply with its contractual obligations and applicable professional standards. Electronic Communications. Contractor and the City may communicate with one another by electronic mail or otherwise transmit documents in electronic form during the course of this engagement. Each party accepts the inherent risks of these forms of communication (including the security risks of interception of or unauthorized access to such communications, the risks of corruption of such communications and the risks of viruses or other harmful devices). The City agrees that the final hardcopy or electronic version of a document, including a Deliverable, or other written communication that the Contractor transmits to the City shall supersede any previous versions transmitted by the Contractor to the City. Active Spreadsheets and Electronic Files. Contractor may use models, electronic files and spreadsheets with embedded macros created by Contractor to assist Contractor in providing the services under the Contract. If the City requests a working copy of any such model, electronic file or spreadsheet, the Contractor may, at its discretion, make such item available to the City for its internal use only on an as-is basis and such item shall be considered a Deliverable; provided that the City is responsible for obtaining the right to use any third party products necessary to use or operate such item. Contractor retains ownership of and all rights in such models, electronic files, and/or spreadsheets with embedded macros; except for the City data contained therein. Use of Vendors. The City acknowledges and agrees that in connection with the performance of services under the Contract, Contractor and its Member Firms, in their discretion or at the City’s direction, may utilize the services of third parties within and outside of the United States to complete the services under the Contract. The City further acknowledges and agrees that Contractor-controlled parties, member Firms of KPMG International, and other third party service providers (collectively, “Vendors”) may have access to Confidential Information from offshore locations, and that the Contractor uses Vendors within and outside of the United States to provide at Contractor’s direction administrative or clerical services to Contractor. These Vendors may in the performance of such services have access to the City’s Confidential Information. Contractor represents to the City that with respect to each Vendor, Contractor has technical, legal and/or other safeguards, measures and controls in place to protect Confidential Information of the City from unauthorized disclosure or use. Contractor shall be responsible to the City for Contractor-controlled, member Firms or Vendor’s failure to comply. City Vendors and Conflicts. The City is aware that Contractor may be providing assurance, tax and/or advisory services to other actual or potential contractors of the City. Contractor will perform an internal search for any potential client conflicts relating to any of the City’s contractors identified by the City as having a role in connection with Contractor’s performance of this Contract. The City hereby agrees that a contractor’s status as the Contractor’s client does not impact Contractor’s engagement to perform this Contract. Contractor will advise the City of any conflicts of interest that could prevent it from performing the Contract. However, Contractor is a large firm that is engaged by new clients on a daily basis and as a result it cannot guarantee that, following its conflict search, an engagement for any other related party will not be accepted somewhere else in Contractor’s firm. Should any new information come to Contractor’s attention, Contractor will promptly inform the City. Contractor shall perform this Contract in accordance with applicable professional standards. Disputes. The parties agree that any dispute or claim arising out of or relating to the Contract or the services provided thereunder shall first be submitted to non-binding mediation as a prerequisite to litigation. Mediation may take place at a location to be designated by the parties using the Mediation Procedures of the International Institute for Conflict Prevention and Resolution, with the exception of paragraph 2 (Selecting the Mediator). If, after good faith efforts, the parties are unable to resolve their dispute through mediation within ninety (90) days after the issuance by one of the parties of a request for mediation, then the parties are free to pursue all other legal and equitable remedies available to them. Nothing herein shall preclude Contractor from filing a timely formal claim in accordance with applicable Washington law provided, however, that Contractor shall, if permitted, seek a stay of said claim during the pendency of any mediation. Either party may seek to enforce any written agreement reached by the parties during mediation in any court of competent jurisdiction. Export Control. Contractor and the City acknowledge and agree that each shall comply with all applicable United States export control laws and regulations in the performance of each party’s respective activities under this Streetcar Cost Review Agreement No. CBO 2018-001 13 Page FAS Rev: 3/20/2018 Agreement. The City shall not provide Contractor, or grant Contractor access to. information (induding tochnicol data or homology). verbelly. ebcmceuy, or in herdoopy, (DJ software or hardware, that is controlled for export by the United States government under the Arms Expon Control Act of 1976. Export Actoa?1979, the lntema?ond Traf?c in Arms Regulations Export Administration Rogqutione Department of Enemy Part 810 Regulations or Nuclear Rogdatory Commission Part 110 Requiem. except hfonm?on, eo?were or producteortheiewenoeofnunidpol LLPwillnotowee?dudorydutytotm IN WITNESS WHEREOF. in consideration or the tonne. conditions and covenants wnta?ned. or attached end incorporated and mode I port. the parties have executed this Agreement by having legally-binding af?x their signatures belw. CITY OF SEATTLE 33113:. f; 11/] Ty?eir?im He .Enmim! (4k K?o?a mo Tl?e City ofSetule Business Licence hub": 214?1 Washington State Uni?ed Business Identi?er Number (UBI): Attachmem: - Quu?onnm (required above 38K) to be rammed with your signed Aaroemenr. hT/l . vl mne? anthA/Prhm tr in! I - Insurance Tmneniual form - proof of comma and blanket/WM! thawed endoraanwnf mm coverage for the Ciy of Scams should be submifed mih your signedAgreement. Streetcar C081 Review 14' Aquarium No. C80 2018?001 FAS Rev: 3i20l2018 Invoice Review Checklist The City intends to pay you promptly. Below is a checklist to ensure your payment will be processed quickly. Provide this to the best person in your company for ensuring invoice quality control. Send the invoices to the correct address: Adam Schaefer, Fiscal & Policy Analyst City of Seattle, City Budget Office 600 4th Avenue, 6th Floor Seattle, WA 98104 Adam.schaefer@seattle.gov / 206-684-8358 Validate that the time for services performed is within the Contract Begin Date and Contract End Date. Ensure invoice items have not been previously billed or paid, given the time for which services were performed. Ensure enough money remains on the contract including amendments), to pay the invoice. Ensure the Labor Rates match the most current approved rate sheet. Ensure the Overhead Rate and Fee used in calculating personnel costs match the most current approved rate sheet. Ensure the Direct Charges on the invoice are allowable by contract. Eliminate unallowable costs (e.g. Traveling Business or First Class, Alcoholic Beverages, etc.) Verify that personnel named are explicitly allowed for within the contract or most current approved rate sheet. Ensure WMBE utilization is provided to the City and/or entered into the City on-line system if required under Section 10.B.. Check the math. Ensure back-up documentation is adequate and complete. Definitions • Services- Deliverables or work performed by the consultant including analysis, advice, recommendations, report preparation, design development, and other specialized services. • Direct Charges- Non-Salary expenses that are necessary and directly applicable to the work required by the contract, for example, Travel & Per Diem, Reproduction Expenses, Office Supplies, and Subconsultants. • Contract End Date: Day contract expires. Streetcar Cost Review Agreement No. CBO 2018-001 15 Page FAS Rev: 3/20/2018