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FY2021-17 Kodiak Landfill Final Design and Services with Jacobs Engineering.KODIAK ISLAND BOROUGH STAFF REPORT APRIL 21, 2022 ASSEMBLY REGULAR MEETING SUBJECT: Contract No. FY2021-17 Change Order No.1 With CH2M Hill Engineers For Services During Construction For The Landfill Stage 3 Closure Project In An Amount Not To Exceed $25,000 ORIGINATOR: Project Manager/Inspector, Matt Gandel RECOMMENDATION: Move to authorize the Manager to execute Change Order No. 1 to Contract No. FY2021-17 with CH2M Hill Engineers for services during construction for the Landfill Stage 3 Closure project in an amount not to exceed $25,000. DISCUSSION: In April 2021 the Assembly approved a contract with CH2M Hill Engineers for design, bidding assistance, and services during construction for the Landfill Stage 3 Closure project. Design was completed in October 2021, the project was issued for public bid in November 2021, and the Assembly awarded a contract to the low bidder in January 2022. In March 2022, CH2M Hill notified KIB staff that the design and bidding phases had required more resources than anticipated, and there were not sufficient funds available to complete the project. Some of these additional costs can be attributed to correspondence with the United States Department of Agriculture (USDA) Rural Development (funding source) which required extensive review and modifications to standard bid and contract specifications to meet USDA requirements. Additionally, during the bid process there were extended conversations with KIB staff about adding blasting and processing of rock as part of the project scope. Ultimately the bid specifications were modified to add blasting and processing of rock required for the contractor to complete the project, and an additional unit price was added for blasting and processing of additional rock for future landfill cover. Due to these unanticipated scope items the consultant costs for design and bidding exceeded the available budget, and additional funds are required to complete the construction phase. Services during construction includes reviewing and responding to Requests for Information, reviewing submittals, and attending project meetings. Staff has reviewed the costs submitted to date and the proposed additional costs and feels the request is reasonable. ALTERNATIVES: Take no action or do not approve the change order. Neither of these are recommended as consultant services will be required to successfully complete the construction phase of the project. FISCAL IMPACT: The design and services during construction costs for this project are being funded by a loan from United States Department of Agriculture Rural Development. Kodiak Island Borough KODIAK ISLAND BOROUGH STAFF REPORT APRIL 21, 2022 ASSEMBLY REGULAR MEETING OTHER INFORMATION: Per KI BC 3.30.100 Change orders — Manager authority. The manager, or designee, is authorized, without assembly approval, to enter into change orders with respect to borough projects where the amount of additional expenditure occasioned by the change order or orders does not, in the aggregate, exceed the total contract amounts approved for the project, plus project contingency equal to 10 percent of the approved contract amount. Additional contingency may be requested and approved by the assembly. The manager, or designee, shall report monthly to the assembly the nature and amount of such change orders. Project approval should include a budget for the project that includes a contingency line item of 10 percent. Change orders above the manager's approval limit, but not exceeding five percent of the original contract amount or $50,000, whichever is lower, require approval by: A. The mayor and deputy presiding officer; B. The mayor and one assembly member in the absence of the deputy presiding officer; C. The deputy presiding officer and one assembly member in the absence of the mayor. Such approval may be by signature or electronic signature. Change orders greater than five percent of approved contract amount or $50,000, whichever is lower, require assembly approval. The authority contained in this section is independent and exclusive of the purchasing authority defined in KIBC 3.30.010. Kodiak Island Borough Jacobs April 8, 2022 Matt Candel Project Manager Kodiak Island Borough 710 Mill Bay Road Kodiak, AK 99615 949 E 36th Avenue, Suite 500 Anchorage, Alaska 99508 United States T+1.907.762.1500 F+1.907.762.1600 www.jacobs.com Subject: Fee Proposal for Additional Services During Construction for Kodiak Landfill Stage 3 Closure Dear Matt, CH2M HILL Engineers, Inc. (Jacobs) is pleased to provide thisfee proposal for additional services during construction for the Stage 3 Closure project. We suggest the following additional scope be added for Task 3: Task 3 —Services During Bidding and Construction. Additional work to include: preparation of bid phase and construction phase paperwork for the USDA Rural Development loan; preparation of change order documentation for rock processing; review of additional RFI and submittals; possible site visitsfor construction observation; and preparation of field directives and record drawings. Fee proposal. As agreed, we propose adding the following total to existing Task 3 of the contract: Task Estimated Price 3 -Additional Bid & Construction Services $25,000 Total $25,000 CH21VI HILL, Inc. Jacobs April 8, 2022 Subject: Fee Proposal for Additional Services During Construction for Kodiak Landfill Stage 3 Closure Contract Terms. We propose to conduct this work asunder our existing contract #FY2021- 17 for Stage 3 Closure Design and Construction Services using our 2022 rates (escalated at 3% from 2021 rates). We will be conducting thiswork using our legal entity CH2M HILL Engineers, Inc., a Jacobs company. Si n cerel y CH2M Hill Engineers, Inc. Cory Hinds, RE Jacobs Project Manager Josh Lawson Manager of Projects l�°-;a� Kodiak Island Borough Assembly Newsletter Vol. FY2022, No. 30 April 22, 2022 At Its Regular Meeting Of April 21, 2022, The Kodiak Island Borough Assembly Took The Following Actions. The Next Regular Meeting Of The Borough Assembly Is Scheduled On May 5, 2022, At 6:30 p.m. In The Borough Assembly Chambers. ADOPTED Ordinance No. FY2022-14 Amending Kodiak Island Borough Code Section 17.145.070 Regarding Communication Tower Approval Criteria. ADOPTED Ordinance No. FY2022-16 Establishing An Opioid Settlement Fund AUTHORIZED Contract No. FY2021-17 Change Order No.1 With CH2M Hill Engineers For Services During Construction For The Landfill Stage 3 Closure Project In An Amount Not To Exceed $25,000 ADVANCED Ordinance No. FY2022-17 Amending Kodiak Island Borough Code Section 2.30.020 General Rules By Removing The Provisions That Pertain To Declaration Of A Disaster Or Emergency To Public Hearing At The Next Regular Meeting Of The Assembly AUTHORIZED Fire Protection Area No. 1 To Move Forward With The Advertisement Of The Invitation For Bid For Bayside Fire Station Chiefs Response Vehicle Purchase View our website: Visit our Facebook page: � Follow us on www.kodiakak.us www.facebook.com/KodiakisIandBorough Twitter: @KodiakBorough ON a cO bs. 949 E. 36th Avenue, Suite 500 Anchorage, Alaska 99508 United States T +1.907.762.1500 F +1.907.762.1600 www.jacobs.com March 11, 2021 Dave Conrad Director of Engineering & Facilities Kodiak Island Borough 710 Mill Bay Road Kodiak, AK 99615 Subject: REVISED Fee Proposal for Kodiak Landfill Stage 3 Closure Final Design and Services During Construction Dear Dave, CH2M HILL Engineers, Inc. (Jacobs) is pleased to provide this revised fee proposal for final design for interim closure of a portion of the Kodiak Landfill, hereby called the Stage 3 Closure. The purpose of this interim closure is to divert clean stormwater away from the Leachate lagoon to reduce the volume of leachate that must be treated in the Leachate Treatment Plant. Jacobs has already prepared a concept design for the Stage 3 Closure. The concept design has been reviewed by KIB and has been submitted to ADEC for information purposes. We suggest the following scope of work: Task 1 — 80% Design and Draft Bid Documents. Jacobs will address KIB comments on the concept design and will generate 80% design drawings, and draft bid documents including technical specs and bidding requirements. A list of proposed design drawings is provided in Attachment 1. A list of proposed technical specifications is provided in Attachment 2. The design will consider the geotechnical question of leaving the interim portions of the Liner in place or if removal will be required prior to placement of final lifts. Following submittal of the 80% design, Jacobs and KIB will have a teleconference to discuss and resolve comments. Deliverables: 80% design drawings (all drawings to 80% completion); technical specifications (all specifications to 80% completion); draft bid documents; AACE CH2M HILL, Inc. ,pacobs. March 11, 2021 Subject: REVISED Fee Proposal for Kodiak Landfill Stage 3 Closure Final Design and Services During Construction Class 2 construction cost estimate (expected accuracy -5% to +20%), 80% basis of design report, and response to comments. Assumptions: KIB will provide a copy of the latest front-end bid documents in electronic format that can be adapted for this project. The basis of design report will be a series of technical memoranda by engineering discipline including: cover design; grading; and stormwater. This set of documents can be forwarded to ADEC for their review. Task 2 — Final Design and Bid Documents. Jacobs will address KIB comments and finalize the drawings, technical specifications, and bid documents. Deliverables: 100% design drawings; technical specifications; final bid documents; AACE Class 1 construction cost estimate (expected accuracy -3% to +15%), and response to comments. Assumptions: KIB will review the final bid documents, confirm appropriate dates for bidding and construction, and will manage the release of bid documents via KIB website, local newspapers, or other methods. Task 3 — Services During Bidding and Construction. Cory Hinds will attend a pre-bid teleconference and Jacobs will respond to questions from bidders (allotment of 16 hours to respond to bidder questions). During the bid period, Jacobs will respond to bidder questions and issue addenda (allotment of 24 hours for addenda) as directed by KIB. During construction, Jacobs will track, review and approve submittals (allotment of 64 hours for submittals) as directed by KIB. Jacobs will set up an internet and email-based system using Bentley Connection Client for receiving incoming submittals and posting submittal responses. Jacobs will track the progress of submittals and provide summary of status as needed. Cory Hinds will attend bi-weekly construction meetings via teleconference (allotment of 10 hours for construction meetings) to work through construction details and issues with KIB and the construction contractor. Preparation of field directives and record drawings are not included but can be added Later if requested. No travel is anticipated at this time but can be added as needed via amendment. 2 .jacobs March 11, 2021 Subject: REVISED Fee Proposal for Kodiak Landfill Stage 3 Closure Final Design and Services During Construction Fee Proposal. Estimated price for these tasks, built using labor rates included in Attachment 3, are shown in the table below. Task Estimated Price 1-80% Design $54,300 2-100% Design $21,200 3-Bid & Construction Services $17,100 Total $92,600 Contract Terms. We propose to conduct this work on a time and materials basis using the enclosed Agreement for Professional Services included as Attachment 4. We will be conducting this work using our legal entity CH2M HILL Engineers, Inc., a Jacobs company. Sincerely Cory Hinds, P.E. Josh Lawson Jacobs Project Manager Manager of Projects 3 Attachment 1 - List of Drawings Kodiak LF, Stage 3 Closure # Drawing 1 Cover sheet, Vicinity Map, and Index of Drawings 2 Abbreviations, Legend, and General Notes 3 Existing Site Conditions Plan (will include control points) 4 Final and Interim Cover and Temporary ESC Plan 5 Subgrade Plan 6 Stormwater Management Plan 7 Monitoring and Instrumentation Plan 8 Erosion & Sedimentation Control Sections and Details 9 Cover Sections and Details 1 10 Cover Sections and Details 2 11 Stormwater Details 12 Subgrade Control Points 13 Final Grading and Drainage Control Points Attachment 2 - List of Specifications Kodiak LF, Stage 3 Closure Section Title Division 01- General Requirements 01 11 00 Summary of Work 01 31 13 Project Coordination 01 32 00 Construction Progress Documentation 01 33 00 Submittal Procedures 0145 16.13 Contractor Quality Control 01 50 00 Temporary Facilities and Controls 01 57 13 Erosion and Sediment Control During Construction 01 77 00 Closeout Procedures Division 31 - Earthwork 3123 13 Subgrade Preparation 312316 Excavation 312323 Fill and Backfill 31 23 23.15 Trench Backfill 313219.16 Geotextile 31 32 20 Strip Drains 31 37 00 Riprap Division 33 - Utilities 33 05 01 Conveyance Piping - General 33 41 01 Storm Drainage Piping 33 47 13.01 Landfill Liners - LLDPE Attachment 3 2021 Staff Rates Kodiak LF, Stage 3 Closure Labor Category/Description 2021 Hourly Rate Project Management 1/Design Manager $ 186 Project Management 3/Project Manager $ 186 Civil Engineer 1/Civil and Stormwater Lead $ 129 Civil Design 1/CADD $ 93 Civil Design Technician 6/Process Automation Lead $ 98 Geotechnical Engineer 1/Geosynthetics $ 129 Geotechnical Engineer 5/Geosynthetics Review $ 190 Environmental Engineer 4/Project Controls $ 186 Environmental Engineer 6/Civil Review $ 190 Technologist Professional 1/Stormwater Review $ 190 Publishing Technician 6/Specifications Processing $ 165 Estimating Professional 6/Cost Estimator $ 190 Client Deliverables Support 6/Publications and Editing $ 103 Accounting Professional 1/Project Accountant $ 78 AGREEMENT FOR PROFESSIONAL SERVICES BETWEEN C112M HILL ENGINEERS, INC. AND KODIAK ISLAND BOROUGH AGREEMENT FOR PROFESSIONAL SERVICES TABLE OF CONTENTS ARTICLE 1 General Obligations of Engineer ARTICLE 2 General Obligations of Client ARTICLE 3 Compensation ARTICLE 4 Payments ARTICLE 5 Period of Service ARTICLE 6 Changes in Scope of Services ARTICLE 7 Warranty ARTICLE 8 Indemnification ARTICLE 9 Limitation of Liability ARTICLE 10 Insurance ARTICLE 11 Relationship of Engineer to Client ARTICLE 12 Personnel ARTICLE 13 Ownership of Instruments of Service and Data ARTICLE 14 Permits and Licenses ARTICLE 15 Adherence to Laws ARTICLE 16 Nondisclosure of Proprietary and Confidential Materials ARTICLE 17 Certification or Sealing of Instruments of Services by Professional Engineer ARTICLE 18 Force Majeure ARTICLE 19 Project Delay ARTICLE 20 Construction Phase Services ARTICLE 21 Governing Law ARTICLE 22 Alternate Dispute Resolution ARTICLE 23 Notices and/or Communications ARTICLE 24 Miscellaneous File: APS —JEG (4-6-09) 1 2 2 2 3 3 4 4 4 5 5 5 5 6 6 7 7 8 8 9 9 AGREEMENT FOR PROFESSIONAL SERVICES THIS AGREEMENT, made and executed as of the day of , 2020 by and between C112M HILL ENGINEERS, INC., with a place of business at 949 East 36`h Avenue, Anchorage, (hereinafter called "Engineer") and the Kodiak Island Borough, an incorporated borough, with a place of business at 710 Mill Bay Road, Kodiak (hereinafter called "Client"), collectively referred to herein as "Parties", provides as follows: ARTICLE 1 GENERAL OBLIGATIONS OF ENGINEER The description of the Client's project (the "Project") and scope of services (hereinafter "Services") to be provided to Client is stated in a fonnal Proposal from Engineer dated (the "Proposal"). The Proposal is made a part of this Agreement by reference. ARTICLE 2 GENERAL OBLIGATIONS OF CLIENT Client shall provide Engineer full information regarding Client's requirements for the Project and shall provide information regarding existing facilities, such as drawings, as -built drawings, legal description, easements, rights of way, agreements with any utilities, or any other information in Client's possession which is necessary or useful in connection with the Project. Client shall appoint a representative that will have the authority to make decisions on behalf of Client regarding the Project. Client shall make decisions regarding the Project in a timely manner. ARTICLE 3 COMPENSATION Engineer will be compensated for Services as set forth in the Proposal. ARTICLE 4 PAYMENTS Engineer will submit monthly invoices for compensation and expenses by electronic transmission. Payments will be due within 30 days after receipt of invoices and shall be made by electronic finds transfer to the bank and account designated in the invoice. Past due amounts will accrue interest at one and one-half percent (1`/2%) per month, without limiting other remedies. File: APS -JEG (4-6-09) Page 1 of 10 In the event Client does not make payments as required herein, in addition to any other remedy available to Engineer, including but not limited to termination, Engineer shall have the right to suspend its performance on the Project and await receipt of all payments and interest then due before resuming performance. Engineer shall be entitled an extension of time for the period of suspension. During any suspension, Engineer shall have the right to terminate the Agreement for non-payment. ARTICLE 5 PERIOD OF SERVICE Engineer shall make its best efforts to complete its Services for the Project within the time period set forth in the Proposal. ARTICLE 6 CHANGES IN SCOPE OF SERVICES Client may, at any time, make changes in the scope of Services for the Project or in the definition of Services to be performed. In the event Client notifies Engineer of its desire to make a change in the scope of Services that may change the cost of performance, Engineer shall, within ten (10) working days after receiving such notice, give Client notification of any potential change in price for the Services. Equitable adjustments to price and time of performance resulting from scope of Services changes will be negotiated and upon mutual agreement by Client and Engineer, this Agreement will be modified by a written instrument, signed by both parties, to reflect the changes in scope of Services, price and schedule. ARTICLE 7 WARRANTY A. Engineer warrants that its engineering, design and consulting Services will be performed in accordance with generally accepted standards in the industry. Following completion of its Services and for a period of twelve (12) months thereafter, if the Services provided hereunder do not conform to the warranty above stated and the same is reported to Engineer by Client in writing promptly after recognition thereof, Engineer shall, at no cost to Client, furnish all remedial engineering, design or consulting Services required in connection therewith as soon as reasonably possible after receipt of such report from Client; and Engineer shall have no liability for costs related to the repair, replacement, addition or deletion of materials, equipment or facilities as a result of such failure to conform to the above -referenced warranties, which costs shall be deemed costs of the project, whether incurred during performance of the Services or after completion of the Services. B. Engineer's warranties shall not apply to any defect which results from: ordinary wear and tear, misoperation, corrosion or erosion, noise levels, operating conditions more severe than those contemplated in the original design, or a defect in a process or mechanical design or equipment furnished or specified by Client or others. File: APS -JEG (4-6-09) Page 2 of 10 C. All representations, warranties and guarantees made by Engineer in connection with its Services are limited to those set forth in this Article 6. IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE SPECIFICALLY EXCLUDED. For any deficiencies in the Services, Client shall be restricted to the remedies expressly set forth in this Article 6; such remedies are Client's sole and exclusive remedies for deficiencies in the Services and Client hereby waives any and all other remedies, whether at law or in equity, and regardless of whether the claim is asserted under contract, tort (including the concurrent or sole and exclusive negligence of Engineer), strict liability or otherwise. ARTICLE 8 INDEMNIFICATION A. Engineer will defend, indemnify and hold the Client harmless from all claims, liabilities, demands, costs, expenses (including attorneys' fees) and causes of action arising out of third party claims for bodily injury (including death) and damage to tangible property to the extent caused by a negligent act or omission of Engineer, its employee or subconsultant. B. The Client hereby agrees to release, waive all rights of subrogation against, defend, indemnify and hold Engineer harmless from all claims, liabilities, demands, costs, expenses (including attorneys' fees) and causes of action arising out of bodily injury (including death) to any person or damage or loss to any property ("Harms"), irrespective of Engineer's fault (including, without limitation, breach of contract, tort including concurrent or sole and exclusive negligence, strict liability or otherwise of Engineer), when the Harms result from (i) the discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon land, the atmosphere or any water course or body of water; (ii) errors or omissions in Engineer's Services due to Engineer being required, directly or indirectly, by Client to take certain actions contrary to the recommendations of Engineer; (iii) errors or omissions in Engineer's Services while assisting in the commissioning, start-up or operation of Client's facilities; and (iv) the acts, errors, omissions or negligence of Client, its employee or other contractor. ARTICLE 9 LIMITATION OF LIABILITY The total aggregate liability of Engineer arising out of the performance or breach of this Agreement shall not exceed twenty-five percent (25%) of the compensation paid to Engineer under this Agreement. Notwithstanding any other provision of this Agreement, Engineer shall have no liability to the Client for contingent, consequential or other indirect damages including, without limitation, damages for loss of use, revenue or profit (direct or indirect); operating costs and facility downtime; or other similar business interruption losses, however the same may be caused. The limitations and exclusions of liability set forth in this Article shall apply regardless of the fault, breach of contract, tort (including negligence), strict liability or otherwise of File: APS —JEG (4-6-09) Page 3 of 10 Engineer, its employees or subconsultants. The Parties agree that the limitations of liability and waiver of damages as set forth herein shall not be interpreted as a form of indemnification. ARTICLE 10 INSURANCE A. During the term of this Agreement, Engineer shall, at its sole expense, secure and maintain in force policies of insurance of the following types: 1. Workers' compensation coverage in accordance with the statutory requirements of the jurisdiction in which services are to be performed. 2. Employer's liability insurance with a minimum of $250,000. 3. Comprehensive General Liability Insurance, subject to a limit for bodily injury and property damage combined of at least $1,000,000 aggregate. 4. Automobile liability insurance subject to a limit for bodily injury and property damage combined, of at least $1,000,000 per occurrence. B. Engineer shall furnish Client certificates of insurance evidencing the insurance coverages required in this Article 9. The certificates shall stipulate that should any of the above insurance policies be cancelled before the termination of this Agreement, the issuing company will endeavor to mail thirty (30) days' written notice to Client. C. As between Engineer and Client, Client agrees to insure (or at its election to self -insure) its existing property and the facilities which are the subject of the Engineer's services, from risks insurable under Fire and Extended Coverage, All Risk Builder's Risk, and Business Interruption Insurance policies. Client hereby waives any rights which it or its insurers may have against Engineer for any damages, losses or expenses resulting from the risks to be insured (or self-insured) by Client or its contractors on the facilities which are the subject of Engineer's Services, and Client agrees to include Engineer as an additional insured in all such policies and in any waiver of rights obtained by Client from its contractor with respect to property damage insurance carried by such contractor. ARTICLE 11 RELATIONSHIP OF ENGINEER TO CLIENT The Engineer shall be and shall operate as an independent contractor with respect to the Services performed under this Agreement and shall not be nor operate as an agent or employee of Client. This Agreement is not intended to be one of hiring under the provisions of a Workers' Compensation statute or other law and shall not be so construed. File: APS —JEG (4-6-09) Page 4 of 10 ARTICLE 12 PERSONNEL Engineer agrees that during Engineer's performance of Services hereunder, adequate provision shall be made to staff and retain the services of such competent personnel as may be appropriate or necessary for the performance of such Services. Client shall have the right to review the personnel assigned by Engineer, and Engineer shall remove any personnel not acceptable to Client. Engineer may remove personnel assigned to the Project without Client's prior approval, provided the progress of the Services shall not be unreasonably impaired. ARTICLE 13 OWNERSHIP OF INSTRUMENTS OF SERVICE AND DATA A. Client agrees to defend, indemnify and hold harmless Engineer and its employees from and against claims resulting from re -use of the design data, drawings, estimates, calculations and specifications prepared by Engineer ("instruments of service") on extensions of the project or at a location other than that contemplated by this Agreement. Client is advised that should Client re -use the instruments of service at another location, the instruments of service should be reviewed and sealed by Client or an engineer licensed in the jurisdiction where the instruments of service are sought to be re -used. B. All materials and information that are the property of Client and all copies or duplications thereof shall be delivered to Client by Engineer, if requested by Client, upon completion of Services. Engineer may retain one complete set of reproducible copies of all of its instruments of service. ARTICLE 14 PERMITS AND LICENSES Engineer represents to Client that it has and will maintain during the performance of the Services under this Agreement any permits or licenses which, under the regulations of federal, state, or local governmental authority, it may be required to maintain in order to perform the Services. ARTICLE 15 ADHERENCE TO LAWS Engineer shall adhere to federal, state, and local laws, rules, regulations, and ordinances applicable to performance of the Services hereunder including, without limitation, all applicable provisions of federal and state law relating to equal employment opportunity and non- discrimination. File: APS -JEG (4-6-09) Page 5 of 10 ARTICLE 16 NONDISCLOSURE OF PROPRIETARY AND CONFIDENTIAL MATERIALS Client and Engineer agree that any disclosure will be made on the following basis: A. Confidential Client Information ("Primary Data") disclosed to Engineer which is identified in writing by Client as proprietary to Client shall be: (1) safeguarded, (2) maintained in confidence, and (3) made available by Engineer only to those of its employees or others who have a need -to -know and agree to equivalent conditions pertaining to nondisclosure as contained herein. B. Upon completion of the Project or sooner if Client so requests, the Engineer shall return to Client's representative all Primary Data furnished to the Engineer under this Agreement and shall, if requested, deliver to the Client's representative all drawings, schedules, calculations, and other documents generated by Engineer for use in connection with the Project ("Secondary Data"). C. Engineer shall not use for itself or to disclose to third parties any Primary Data or Secondary Data without the prior written consent of Client. D. The nondisclosure obligations pertaining to Primary and Secondary Data shall terminate three (3) years from date Engineer's association with this Project terminates. The nondisclosure obligations shall not apply to any data which: 1. Was known to the Engineer (and previously unrestricted) before disclosure of Primary Data to Engineer under this Agreement or before generation of Secondary Data; 2. Is subsequently acquired by the Engineer from a third party who is not in default of any obligation restricting the disclosure of such information; or 3. Is subsequently available or becomes generally available to the public. E. Notwithstanding this nondisclosure obligation, Engineer may nevertheless draw upon its experience in its future association with other clients. ARTICLE 17 CERTIFICATION OR SEALING OF INSTRUMENTS OF SERVICE BY PROFESSIONAL ENGINEER All specifications, drawings, and other engineering documents that are prepared by Engineer shall be certified or sealed by a registered professional engineer. Such certifications or seals shall be valid for the state in which the specifications, drawings, or other engineering documents are to be used or applied. File: APS -JEG (4-6-09) Page 6 of 10 ARTICLE 18 FORCE MAJEURE Any delays in or failure of performance by Engineer or Client, other than the payment of money, shall not constitute default hereunder if and to the extent such delays or failures of performance are caused by occurrences beyond the reasonable control of Client or Engineer, as the case may be, including but not limited to, acts of God or the public enemy; compliance with any order or request of any governmental authority; fires, floods, explosion, accidents; riots, strikes or other concerted acts of workmen, whether direct or indirect; or any causes, whether or not of the same class or kind as those specifically named above, which are not within the reasonable control of Client or Engineer respectively. In the event that any event of force majeure as herein defined occurs, Engineer shall be entitled to a reasonable extension of time for performance of its Services under this Agreement. ARTICLE 19 PROJECT DELAY If the Engineer's proposal calls for provision of its Services under a guaranteed maximum price, fixed fee, or stipulated lump sum basis and the Engineer's work on any phase of the Services is extended by one or more force majeure events or other delays not attributable in whole or in part to the fault of Engineer, then the guaranteed maximum price, fixed fee, or stipulated lump sum, as the case may be, shall be equitably adjusted. ARTICLE 20 CONSTRUCTION PHASE SERVICES If this Agreement includes the furnishing of any Services during the construction phase of the Project, the following terms will apply: A. If Engineer is called upon to observe the work of Client's construction contractor(s) for the detection of defects or deficiencies in such work, Engineer will not bear any responsibility or liability for such defects or deficiencies or for the failure to so detect. Engineer shall not make inspections or reviews of the safety programs or procedures of the construction contractor(s), and shall not review their work for the purpose of ensuring their compliance with safety standards. B. If Engineer is called upon to review submittals from construction contractors, Engineer shall review and approve or take other appropriate action upon construction contractor(s)' submittals such as shop drawings, product data and samples, but only for the limited purpose of checking for conformance with information given and the design concept expressed in the contract documents. The Engineer's action shall be taken with such reasonable promptness as to cause no delay in the work while allowing sufficient time in the Engineer's professional judgment to permit adequate review. Review of such submittals will not be conducted for the purpose of determining the accuracy and completeness of other details such as dimensions and quantities or for substantiating instructions for installation or File: APS -JEG (4-6-09) Page 7 of 10 performance of equipment or systems designed by the construction contractor, all of which remain the responsibility of the construction contractor. The Engineer's review shall not constitute approval of safety precautions or of construction means, methods, techniques, sequences or procedures. The Engineer's approval of a specific item shall not indicate approval of an assembly of which the item is a component. C. Engineer shall not assume any responsibility or liability for performance of the construction services, or for the safety of persons and property during construction, or for compliance with federal, state and local statutes, rules, regulations and codes applicable to the conduct of the construction services. D. All services performed by others, including construction contractors and their subcontractors, shall be warranted only by such others and not by the Engineer. E. All contracts between Client and its construction contractor(s) shall contain broad form indemnity and insurance clauses in favor of Client and Engineer, in a form satisfactory to Engineer. ARTICLE 21 GOVERNING LAW This Agreement shall be governed by and construed in accordance with the laws of the State of Alaska. ARTICLE 22 ALTERNATE DISPUTE RESOLUTION A. Client and Engineer understand and appreciate that their long term mutual interests will be best served by affecting a rapid and fair resolution of any claims or disputes which may arise out of this Agreement. Therefore, both Parties agree to use their best efforts to resolve all such disputes as rapidly as possible on a fair and equitable basis. Toward this end both Parties agree to develop and follow a process for presenting, rapidly assessing, and settling claims on a fair and equitable basis. B. If any dispute or claim arising under this Agreement cannot be resolved by the project managers for the Parties within thirty (30) days after they identified the problem, the Parties agree that either of them may refer the matter to a panel consisting of one (1) executive from each party not directly involved in the claim or dispute for review and resolution. A copy of the Agreement, agreed upon facts (and areas of disagreement), and concise summary of the basis for each side's contentions will be provided to both executives who shall review the same, confer, and attempt to reach a mutual resolution of the issue. C. If the dispute cannot be resolved under the process set forth in Section B, the Parties may elect to resolve the dispute through non-binding mediation. If mediation is to be utilized, the Parties shall select a single unrelated but qualified Mediator who shall hold a hearing (not to exceed half a day) during which each Party shall present its version of the facts (supported, if desired, by sworn, written testimony, and other relevant documents), its assessment of damages, and its argument. The Parties shall provide the Mediator with File: APS —JEG (4-6-09) Page 8 of 10 copies of all documents provided to their senior executives under Section B at least ten (10) days prior to the scheduled date of the mediation hearing. The Parties may also provide the Mediator with copies of any laws or regulations that they feel are relevant to the dispute. A copy of the Agreement and any disputed Purchase Orders will be provided to the Mediator. Formal written arguments, legal memorandum, and live testimony are discouraged but may be permitted at the discretion of the Mediator. Both Parties agree to make any involved employees or documents available to the other Party for its review and use in preparing its position under this clause without the need for subpoena or other court order. D. Following the mediation, the Mediator will meet with both Parties and provide each of them, on a confidential basis, with his/her views of the strengths and weaknesses of their respective positions. The Parties will then reconvene and, with the assistance of the Mediator, attempt to resolve the matter. If the Parties cannot achieve resolution on the day of the mediation hearing or within forty-eight (48) hours thereafter, the Mediator will, within fifteen (15) additional days, issue a written, non-binding decision on the issue. E. If the matter has not been resolved utilizing the processes set forth above and the Parties are unwilling to accept the non-binding decision of the Mediator, either or both Parties may elect to pursue resolution through litigation. In the event of any litigation between the Parties, it is agreed and stipulated that the case shall be heard and decided by the court, without a jury. F. The costs of the Mediator shall be borne equally by the Parties. Each Party will bear its own costs of mediation. ARTICLE 23 NOTICES AND/OR COMMUNICATIONS All notices and/or communications to be given under this Agreement shall be in writing and shall be addressed as follows: To En ig neer Original to: Cory Hinds, P.E. Position: Project Manager & Facilities Address: CH2M HILL ENGINEERS, INC. 949 E. 36h Avenue, Suite 500 Anchorage, AK 99508 Copy to: Position: Address: File: APS -JEG (4-6-09) Page 9 of 10 To Client Original to: David Conrad Position: Director of Engineering Address: Kodiak Island Borough 710 Mill Bay Road Kodiak, AK 99615 Copy to: Position: Address: Either party may, by written notice to the other, change the representative or the address to which such notices, certificates, or communications are to be sent. ARTICLE 24 MISCELLANEOUS A. Waiver. Waiver by either party of any breach or failure to enforce any of the terms and conditions of this Agreement at any time shall not in any way effect, limit, or waive such party's rights thereafter to enforce and compel strict compliance with all the terms and conditions of this Agreement. B. Severability. Any provision of this Agreement prohibited by law shall be ineffective to the extent of such prohibition without invalidating the remaining provisions of this Agreement. C. Rights and Remedies. The specific remedies set forth in this Agreement, including but not limited to those remedies with respect to the quality of the Services performed by Engineer hereunder, are the exclusive remedies of the Parties. D. Transfer of Ownership. Client represents that either it is the sole owner of the facilities which are the object of the Services or that it is authorized to bind and does bind all owners of such facilities to the releases and limitations of liability set forth in this Agreement. Client further agrees that any future recipient of any interest in the facilities and the Services will be bound by such releases and limitations of liability such that the total aggregate liability of Engineer to Client and such recipients shall not exceed the limits of liability set forth in this Agreement. E. Time of Accrual. For services performed by Engineer before substantial completion, all causes of action against Engineer shall accrue and the statute of limitations shall commence to run no later than the date of substantial completion of the Project. For services performed by Engineer after the date of substantial completion but before final completion of the Project, all causes of action against Engineer shall accrue and the statute of limitations shall commence to run no later than the date of final completion. The Parties expressly agree that the discovery rule for purposes of accrual shall not apply. F. Publicity. Neither of the Parties shall make any press release, news disclosure or other advertising related to the Project that includes the name of the other party without first obtaining the written approval of the other party. G. Entirety of Agreement. This Agreement constitutes the entire Agreement between the parties with respect to the subject matter hereof and supersedes all prior negotiations and discussions concerning the subject matter hereof. IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be effective as of the date first above written. ENGINEER: C112M HILL ENGINEERS, INC. By: File: APS —JEG (4-6-09) CLIENT: By: Page 10 of 10 Title: Manager of Projects Title: File: APS -JEG (4-6-09) Page 11 of 10 ; .acobs March 11, 2021 Dave Conrad Director of Engineering & Facilities Kodiak Island Borough 710 Mill Bay Road Kodiak, AK 99615 CONTRACT # FY2021-17 Project # 21009 949 E. 36th Avenue, Suite 500 Anchorage, Alaska 99508 United States T +1.907.762.1500 F +1.907.762.1600 www.jacobs.com Subject: REVISED Fee Proposal for Kodiak Landfill Stage 3 Closure Final Design and Services During Construction Dear Dave, CH2M HILL Engineers, Inc. (Jacobs) is pleased to provide this revised fee proposal for final design for interim closure of a portion of the Kodiak Landfill, hereby called the Stage 3 Closure. The purpose of this interim closure is to divert clean stormwater away from the Leachate lagoon to reduce the volume of leachate that must be treated in the Leachate Treatment Plant. Jacobs has already prepared a concept design for the Stage 3 Closure. The concept design has been reviewed by KIB and has been submitted to ADEC for information purposes. We suggest the following scope of work: Task 1 — 80% Design and Draft Bid Documents. Jacobs will address KIB comments on the concept design and will generate 80% design drawings, and draft bid documents including technical specs and bidding requirements. A list of proposed design drawings is provided in Attachment 1. A list of proposed technical specifications is provided in Attachment 2. The design will consider the geotechnical question of leaving the interim portions of the liner in place or if removal will be required prior to placement of final lifts. Following submittal of the 80% design, Jacobs and KIB will have a teleconference to discuss and resolve comments. Deliverables: 80% design drawings (all drawings to 80% completion); technical specifications (all specifications to 80% completion); draft bid documents; AACE CH2M HILL, Inc. .;acobs March 11, 2021 Subject: REVISED Fee Proposal for Kodiak Landfill Stage 3 Closure Final Design and Services During Construction Class 2 construction cost estimate (expected accuracy -5% to +20%), 80% basis of design report, and response to comments. Assumptions: KIB will provide a copy of the latest front-end bid documents in electronic format that can be adapted for this project. The basis of design report will be a series of technical memoranda by engineering discipline including: cover design; grading; and stormwater. This set of documents can be forwarded to ADEC for their review. Task 2 — Final Design and Bid Documents. Jacobs will address KIB comments and finalize the drawings, technical specifications, and bid documents. Deliverables: 100% design drawings; technical specifications; final bid documents; AACE Class 1 construction cost estimate (expected accuracy -3% to +15%), and response to comments. Assumptions: KIB will review the final bid documents, confirm appropriate dates for bidding and construction, and will manage the release of bid documents via KIB website, local newspapers, or other methods. Task 3 — Services During Bidding and Construction. Cory Hinds will attend a pre-bid teleconference and Jacobs will respond to questions from bidders (allotment of 16 hours to respond to bidder questions). During the bid period, Jacobs will respond to bidder questions and issue addenda (allotment of 24 hours for addenda) as directed by KIB. During construction, Jacobs will track, review and approve submittals (allotment of 64 hours for submittals) as directed by KIB. Jacobs will set up an internet and email -based system using Bentley Connection Client for receiving incoming submittals and posting submittal responses. Jacobs will track the progress of submittals and provide summary of status as needed. Cory Hinds will attend bi-weekly construction meetings via teleconference (allotment of 10 hours for construction meetings) to work through construction details and issues with KIB and the construction contractor. Preparation of field directives and record drawings are not included but can be added later if requested. No travel is anticipated at this time but can be added as needed via amendment. .;acobs March 11, 2021 Subject: REVISED Fee Proposal for Kodiak Landfill Stage 3 Closure Final Design and Services During Construction Fee Proposal. Estimated price for these tasks, built using Labor rates included in Attachment 3, are shown in the table below. Task Price 1-80% Design $54,300 2-100% Design $21,200 3 -Bid & Construction Services $17,100 Total $92,600 Contract Terms. We propose to conduct this work on a time and materials basis using the enclosed Agreement for Professional Services included as Attachment 4. We will be conducting this work using our legal entity CH2M HILL Engineers, Inc., a Jacobs company. Sincerely Cory Hinds, P.E. Jacobs Project Manager Josh Lawson Manager of Projects Attachment 1 - List of Drawings Kodiak LF, Stage 3 Closure # Drawing 1 Cover sheet, Vicinity Map, and Index of Drawings 2 Abbreviations, Legend, and General Notes 3 Existing Site Conditions Plan (will include control points) 4 Final and Interim Cover and Temporary ESC Plan 5 Subgrade Plan 6 Stormwater Management Plan 7 Monitoring and Instrumentation Plan 8 Erosion & Sedimentation Control Sections and Details 9 Cover Sections and Details 1 10 Cover Sections and Details 2 11 Stormwater Details 12 Subgrade Control Points 13 Final Grading and Drainage Control Points Attachment 2 - List of Specifications Kodiak LF, Stage 3 Closure Section Title Division 01- General Requirements 01 11 00 Summary of Work 01 31 13 Project Coordination 01 32 00 Construction Progress Documentation 01 33 00 Submittal Procedures 0145 16.13 Contractor Quality Control 01 50 00 Temporary Facilities and Controls 01 57 13 Erosion and Sediment Control During Construction 01 77 00 Closeout Procedures Division 31 - Earthwork 31 23 13 Subgrade Preparation 312316 Excavation 31 23 23 Fill and Backfill 31 23 23.15 Trench Backfill 313219.16 Geotextile 31 32 20 Strip Drains 31 37 00 Riprap Division 33 - Utilities 33 05 01 Conveyance Piping - General 33 41 01 Storm Drainage Piping 33 47 13.01 Landfill Liners - LLDPE Attachment 3 2021 Staff Rates Kodiak LF, Stage 3 Closure Labor Category/Description 2021 Hourly Rate Project Management 1/Design Manager $ 186 Project Management 3/Project Manager $ 186 Civil Engineer 1/Civil and Stormwater Lead $ 129 Civil Design 1/CADD $ 93 Civil Design Technician 6/Process Automation Lead $ 98 Geotechnical Engineer 1/Geosynthetics $ 129 Geotechnical Engineer 5/Geosynthetics Review $ 190 Environmental Engineer 4/Project Controls $ 186 Environmental Engineer 6/Civil Review $ 190 Technologist Professional 1/Stormwater Review $ 190 Publishing Technician 6/Specifications Processing $ 165 Estimating Professional 6/Cost Estimator $ 190 Client Deliverables Support 6/Publications and Editing $ 103 Accounting Professional 1/Project Accountant $ 78 AGREEMENT FOR PROFESSIONAL SERVICES BETWEEN C112M HILL ENGINEERS, INC. AND KODIAK ISLAND BOROUGH AGREEMENT FOR PROFESSIONAL SERVICES TABLE OF CONTENTS ARTICLE 1 General Obligations of Engineer ARTICLE 2 General Obligations of Client ARTICLE 3 Compensation ARTICLE 4 Payments ARTICLE 5 Period of Service ARTICLE 6 Changes in Scope of Services ARTICLE 7 Warranty ARTICLE 8 Indemnification ARTICLE 9 Limitation of Liability ARTICLE 10 Insurance ARTICLE 11 Relationship of Engineer to Client ARTICLE 12 Personnel ARTICLE 13 Ownership of Instruments of Service and Data ARTICLE 14 Permits and Licenses ARTICLE 15 Adherence to Laws ARTICLE 16 Nondisclosure of Proprietary and Confidential Materials ARTICLE 17 Certification or Sealing of Instruments of Services by Professional Engineer ARTICLE 18 Force Majeure ARTICLE 19 Project Delay ARTICLE 20 Construction Phase Services ARTICLE 21 Governing Law ARTICLE 22 Alternate Dispute Resolution ARTICLE 23 Notices and/or Communications ARTICLE 24 Miscellaneous File: APS — JEG (4-6-09) 1 1 1 1 2 2 2 3 3 4 4 4 5 5 5 E 6 6 7 7 8 8 9 9 AGREEMENT FOR PROFESSIONAL SERVICES THIS AGREEMENT, made and executed as of the day of , 2020 by and between C112M HILL ENGINEERS, INC., with a place of business at 949 East 36th Avenue, Anchorage, (hereinafter called "Engineer") and the Kodiak Island Borough, an incorporated borough, with a place of business at 710 Mill Bay Road, Kodiak (hereinafter called "Client"), collectively referred to herein as "Parties", provides as follows: ARTICLE 1 GENERAL OBLIGATIONS OF ENGINEER The description of the Client's project (the "Project") and scope of services (hereinafter "Services") to be provided to Client is stated in a formal Proposal from Engineer dated (the "Proposal"). The Proposal is made a part of this Agreement by reference. ARTICLE 2 GENERAL OBLIGATIONS OF CLIENT Client shall provide Engineer full information regarding Client's requirements for the Project and shall provide information regarding existing facilities, such as drawings, as -built drawings, legal description, easements, rights of way, agreements with any utilities, or any other information in Client's possession which is necessary or useful in connection with the Project. Client shall appoint a representative that will have the authority to make decisions on behalf of Client regarding the Project. Client shall make decisions regarding the Project in a timely manner. ARTICLE 3 COMPENSATION Engineer will be compensated for Services as set forth in the Proposal. ARTICLE 4 PAYMENTS Engineer will submit monthly invoices for compensation and expenses by electronic transmission. Payments will be due within 30 days after receipt of invoices and shall be made by electronic funds transfer to the bank and account designated in the invoice. Past due amounts will accrue interest at one and one-half percent (1 %2%) per month, without limiting other remedies. File: APS — JEG (4-6-09) Page 1 of 10 In the event Client does not make payments as required herein, in addition to any other remedy available to Engineer, including but not limited to termination, Engineer shall have the right to suspend its performance on the Project and await receipt of all payments and interest then due before resuming performance. Engineer shall be entitled an extension of time for the period of suspension. During any suspension, Engineer shall have the right to terminate the Agreement for non-payment. ARTICLE 5 PERIOD OF SERVICE Engineer shall make its best efforts to complete its Services for the Project within the time period set forth in the Proposal. ARTICLE 6 CHANGES IN SCOPE OF SERVICES Client may, at any time, make changes in the scope of Services for the Project or in the definition of Services to be performed. In the event Client notifies Engineer of its desire to make a change in the scope of Services that may change the cost of performance, Engineer shall, within ten (10) working days after receiving such notice, give Client notification of any potential change in price for the Services. Equitable adjustments to price and time of performance resulting from scope of Services changes will be negotiated and upon mutual agreement by Client and Engineer, this Agreement will be modified by a written instrument, signed by both parties, to reflect the changes in scope of Services, price and schedule. ARTICLE 7 WARRANTY A Engineer warrants that its engineering, design and consulting Services will be performed in accordance with generally accepted standards in the industry. Following completion of its Services and for a period of twelve (12) months thereafter, if the Services provided hereunder do not conform to the warranty above stated and the same is reported to Engineer by Client in writing promptly after recognition thereof, Engineer shall, at no cost to Client, furnish all remedial engineering, design or consulting Services required in connection therewith as soon as reasonably possible after receipt of such report from Client; and Engineer shall have no liability for costs related to the repair, replacement, addition or deletion of materials, equipment or facilities as a result of such failure to conform to the above -referenced warranties, which costs shall be deemed costs of the project, whether incurred during performance of the Services or after completion of the Services. R Engineer's warranties shall not apply to any defect which results from: ordinary wear and tear, misoperation, corrosion or erosion, noise levels, operating conditions more severe than those contemplated in the original design, or a defect in a process or mechanical design or equipment furnished or specified by Client or others. C. All representations, warranties and guarantees made by Engineer in connection with its Services are limited to those set forth in this Article 6. IMPLIED WARRANTIES OF File: APS — JEG (4-6-09) Page 2 of 10 MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE SPECIFICALLY EXCLUDED. For any deficiencies in the Services, Client shall be restricted to the remedies expressly set forth in this Article 6; such remedies are Client's sole and exclusive remedies for deficiencies in the Services and Client hereby waives any and all other remedies, whether at law or in equity, and regardless of whether the claim is asserted under contract, tort (including the concurrent or sole and exclusive negligence of Engineer), strict liability or otherwise. ARTICLE 8 INDEMNIFICATION A. Engineer will defend, indemnify and hold the Client harmless from all claims, liabilities, demands, costs, expenses (including attorneys' fees) and causes of action arising out of third party claims for bodily injury (including death) and damage to tangible property to the extent caused by a negligent act or omission of Engineer, its employee or subconsultant. R The Client hereby agrees to release, waive all rights of subrogation against, defend, indemnify and hold Engineer harmless from all claims, liabilities, demands, costs, expenses (including attorneys' fees) and causes of action arising out of bodily injury (including death) to any person or damage or loss to any property ("Harms"), irrespective of Engineer's fault (including, without limitation, breach of contract, tort including concurrent or sole and exclusive negligence, strict liability or otherwise of Engineer), when the Harms result from (i) the discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon land, the atmosphere or any water course or body of water; (ii) errors or omissions in Engineer's Services due to Engineer being required, directly or indirectly, by Client to take certain actions contrary to the recommendations of Engineer; (iii) errors or omissions in Engineer's Services while assisting in the commissioning, start-up or operation of Client's facilities; and (iv) the acts, errors, omissions or negligence of Client, its employee or other contractor. ARTICLE 9 LIMITATION OF LIABILITY The total aggregate liability of Engineer arising out of the performance or breach of this Agreement shall not exceed twenty-five percent (25%) of the compensation paid to Engineer under this Agreement. Notwithstanding any other provision of this Agreement, Engineer shall have no liability to the Client for contingent, consequential or other indirect damages including, without limitation, damages for loss of use, revenue or profit (direct or indirect); operating costs and facility downtime; or other similar business interruption losses, however the same may be caused. The limitations and exclusions of liability set forth in this Article shall apply regardless of the fault, breach of contract, tort (including negligence), strict liability or otherwise of Engineer, its employees or subconsultants. The Parties agree that the limitations of liability and waiver of damages as set forth herein shall not be interpreted as a form of indemnification. ARTICLE 10 INSURANCE File: APS — JEG (4-6-09) Page 3 of 10 A. During the term of this Agreement, Engineer shall, at its sole expense, secure and maintain in force policies of insurance of the following types: 1. Workers' compensation coverage in accordance with the statutory requirements of the jurisdiction in which services are to be performed. 2. Employer's liability insurance with a minimum of $250,000. 3. Comprehensive General Liability Insurance, subject to a limit for bodily injury and property damage combined of at least $1,000,000 aggregate. 4. Automobile liability insurance subject to a limit for bodily injury and property damage combined, of at least $1,000,000 per occurrence. B. Engineer shall furnish Client certificates of insurance evidencing the insurance coverages required in this Article 9. The certificates shall stipulate that should any of the above insurance policies be cancelled before the termination of this Agreement, the issuing company will endeavor to mail thirty (30) days' written notice to Client. C. As between Engineer and Client, Client agrees to insure (or at its election to self -insure) its existing property and the facilities which are the subject of the Engineer's services, from risks insurable under Fire and Extended Coverage, All Risk Builder's Risk, and Business Interruption Insurance policies. Client hereby waives any rights which it or its insurers may have against Engineer for any damages, losses or expenses resulting from the risks to be insured (or self-insured) by Client or its contractors on the facilities which are the subject of Engineer's Services, and Client agrees to include Engineer as an additional insured in all such policies and in any waiver of rights obtained by Client from its contractor with respect to property damage insurance carried by such contractor. ARTICLE 11 RELATIONSHIP OF ENGINEER TO CLIENT The Engineer shall be and shall operate as an independent contractor with respect to the Services performed under this Agreement and shall not be nor operate as an agent or employee of Client. This Agreement is not intended to be one of hiring under the provisions of a Workers' Compensation statute or other law and shall not be so construed. ARTICLE 12 PERSONNEL Engineer agrees that during Engineer's performance of Services hereunder, adequate provision shall be made to staff and retain the services of such competent personnel as may be appropriate or necessary for the performance of such Services. Client shall have the right to review the personnel assigned by Engineer, and Engineer shall remove any personnel not acceptable to Client. Engineer may remove personnel assigned to the Project without Client's prior approval, provided the progress of the Services shall not be unreasonably impaired. ARTICLE 13 OWNERSHIP OF INSTRUMENTS OF SERVICE AND DATA File: APS — JEG (4-6-09) Page 4 of 10 A Client agrees to defend, indemnify and hold harmless Engineer and its employees from and against claims resulting from re -use of the design data, drawings, estimates, calculations and specifications prepared by Engineer ("instruments of service") on extensions of the project or at a location other than that contemplated by this Agreement. Client is advised that should Client re -use the instruments of service at another location, the instruments of service should be reviewed and sealed by Client or an engineer licensed in the jurisdiction where the instruments of service are sought to be re -used. R All materials and information that are the property of Client and all copies or duplications thereof shall be delivered to Client by Engineer, if requested by Client, upon completion of Services. Engineer may retain one complete set of reproducible copies of all of its instruments of service. ARTICLE 14 PERMITS AND LICENSES Engineer represents to Client that it has and will maintain during the performance of the Services under this Agreement any permits or licenses which, under the regulations of federal, state, or local governmental authority, it may be required to maintain in order to perform the Services. ARTICLE 15 ADHERENCE TO LAWS Engineer shall adhere to federal, state, and local laws, rules, regulations, and ordinances applicable to performance of the Services hereunder including, without limitation, all applicable provisions of federal and state law relating to equal employment opportunity and non- discrimination. ARTICLE 16 NONDISCLOSURE OF PROPRIETARY AND CONFIDENTIAL MATERIALS Client and Engineer agree that any disclosure will be made on the following basis: A Confidential Client Information ("Primary Data") disclosed to Engineer which is identified in writing by Client as proprietary to Client shall be: (1) safeguarded, (2) maintained in confidence, and (3) made available by Engineer only to those of its employees or others who have a need -to -know and agree to equivalent conditions pertaining to nondisclosure as contained herein. R Upon completion of the Project or sooner if Client so requests, the Engineer shall return to Client's representative all Primary Data furnished to the Engineer under this Agreement and shall, if requested, deliver to the Client's representative all drawings, schedules, calculations, and other documents generated by Engineer for use in connection with the Project ("Secondary Data"). C. Engineer shall not use for itself or to disclose to third parties any Primary Data or Secondary Data without the prior written consent of Client. D. The nondisclosure obligations pertaining to Primary and Secondary Data shall terminate File: APS — JEG (4-6-09) Page 5 of 10 three (3) years from date Engineer's association with this Project terminates. The nondisclosure obligations shall not apply to any data which: 1. Was known to the Engineer (and previously unrestricted) before disclosure of Primary Data to Engineer under this Agreement or before generation of Secondary Data; 2 Is subsequently acquired by the Engineer from a third party who is not in default of any obligation restricting the disclosure of such information; or 3. Is subsequently available or becomes generally available to the public. E. Notwithstanding this nondisclosure obligation, Engineer may nevertheless draw upon its experience in its future association with other clients. ARTICLE 17 CERTIFICATION OR SEALING OF INSTRUMENTS OF SERVICE BY PROFESSIONAL ENGINEER All specifications, drawings, and other engineering documents that are prepared by Engineer shall be certified or sealed by a registered professional engineer. Such certifications or seals shall be valid for the state in which the specifications, drawings, or other engineering documents are to be used or applied. ARTICLE 18 FORCE MAJEURE Any delays in or failure of performance by Engineer or Client, other than the payment of money, shall not constitute default hereunder if and to the extent such delays or failures of performance are caused by occurrences beyond the reasonable control of Client or Engineer, as the case may be, including but not limited to, acts of God or the public enemy; compliance with any order or request of any governmental authority; fires, floods, explosion, accidents; riots, strikes or other concerted acts of workmen, whether direct or indirect; or any causes, whether or not of the same class or kind as those specifically named above, which are not within the reasonable control of Client or Engineer respectively. In the event that any event of force majeure as herein defined occurs, Engineer shall be entitled to a reasonable extension of time for performance of its Services under this Agreement. File: APS — JEG (4-6-09) Page 6 of 10 ARTICLE 19 PROJECT DELAY If the Engineer's proposal calls for provision of its Services under a guaranteed maximum price, fixed fee, or stipulated lump sum basis and the Engineer's work on any phase of the Services is extended by one or more force macure events or other delays not attributable in whole or in part to the fault of Engineer, then the guaranteed maximum price, fixed fee, or stipulated lump sum, as the case may be, shall be equitably adjusted. ARTICLE 20 CONSTRUCTION PHASE SERVICES If this Agreement includes the furnishing of any Services during the construction phase of the Project, the following terms will apply: A. If Engineer is called upon to observe the work of Client's construction contractor(s) for the detection of defects or deficiencies in such work, Engineer will not bear any responsibility or liability for such defects or deficiencies or for the failure to so detect. Engineer shall not make inspections or reviews of the safety programs or procedures of the construction contractor(s), and shall not review their work for the purpose of ensuring their compliance with safety standards. B. If Engineer is called upon to review submittals from construction contractors, Engineer shall review and approve or take other appropriate action upon construction contractor(s)' submittals such as shop drawings, product data and samples, but only for the limited purpose of checking for conformance with information given and the design concept expressed in the contract documents. The Engineer's action shall be taken with such reasonable promptness as to cause no delay in the work while allowing sufficient time in the Engineer's professional judgment to permit adequate review. Review of such submittals will not be conducted for the purpose of determining the accuracy and completeness of other details such as dimensions and quantities or for substantiating instructions for installation or performance of equipment or systems designed by the construction contractor, all of which remain the responsibility of the construction contractor. The Engineer's review shall not constitute approval of safety precautions or of construction means, methods, techniques, sequences or procedures. The Engineer's approval of a specific item shall not indicate approval of an assembly of which the item is a component. C. Engineer shall not assume any responsibility or liability for performance of the construction services, or for the safety of persons and property during construction, or for compliance with federal, state and local statutes, rules, regulations and codes applicable to the conduct of the construction services. D. All services performed by others, including construction contractors and their subcontractors, shall be warranted only by such others and not by the Engineer. File: APS — JEG (4-6-09) Page 7 of 10 E. All contracts between Client and its construction contractor(s) shall contain broad form indemnity and insurance clauses in favor of Client and Engineer, in a form satisfactory to Engineer. ARTICLE 21 GOVERNING LAW This Agreement shall be governed by and construed in accordance with the laws of the State of Alaska. ARTICLE 22 ALTERNATE DISPUTE RESOLUTION A Client and Engineer understand and appreciate that their long term mutual interests will be best served by affecting a rapid and fair resolution of any claims or disputes which may arise out of this Agreement. Therefore, both Parties agree to use their best efforts to resolve all such disputes as rapidly as possible on a fair and equitable basis. Toward this end both Parties agree to develop and follow a process for presenting, rapidly assessing, and settling claims on a fair and equitable basis. B. If any dispute or claim arising under this Agreement cannot be resolved by the project managers for the Parties within thirty (30) days after they identified the problem, the Parties agree that either of them may refer the matter to a panel consisting of one (1) executive from each party not directly involved in the claim or dispute for review and resolution. A copy of the Agreement, agreed upon facts (and areas of disagreement), and concise summary of the basis for each side's contentions will be provided to both executives who shall review the same, confer, and attempt to reach a mutual resolution of the issue. C. If the dispute cannot be resolved under the process set forth in Section B, the Parties may elect to resolve the dispute through non-binding mediation. If mediation is to be utilized, the Parties shall select a single unrelated but qualified Mediator who shall hold a hearing (not to exceed half a day) during which each Party shall present its version of the facts (supported, if desired, by sworn, written testimony, and other relevant documents), its assessment of damages, and its argument. The Parties shall provide the Mediator with copies of all documents provided to their senior executives under Section B at least ten (10) days prior to the scheduled date of the mediation hearing. The Parties may also provide the Mediator with copies of any laws or regulations that they feel are relevant to the dispute. A copy of the Agreement and any disputed Purchase Orders will be provided to the Mediator. Formal written arguments, legal memorandum, and live testimony are discouraged but may be permitted at the discretion of the Mediator. Both Parties agree to make any involved employees or documents available to the other Party for its review and use in preparing its position under this clause without the need for subpoena or other court order. D. Following the mediation, the Mediator will meet with both Parties and provide each of them, on a confidential basis, with his/her views of the strengths and weaknesses of their respective positions. The Parties will then reconvene and, with the assistance of the Mediator, attempt to resolve the matter. If the Parties cannot achieve resolution on the day of the mediation hearing or within forty-eight (48) hours thereafter, the Mediator will, within fifteen (15) additional days, issue a written, non-binding decision on the issue. File: APS — JEG (4-6-09) Page 8 of 10 E. If the matter has not been resolved utilizing the processes set forth above and the Parties are unwilling to accept the non-binding decision of the Mediator, either or both Parties may elect to pursue resolution through litigation. In the event of any litigation between the Parties, it is agreed and stipulated that the case shall be heard and decided by the court, without a jury. E The costs of the Mediator shall be borne equally by the Parties. Each Party will bear its own costs of mediation. ARTICLE 23 NOTICES AND/OR COMMUNICATIONS All notices and/or communications to be given under this Agreement shall be in writing and shall be addressed as follows: To Engineer Original to: Cory Hinds, P.E. Position: Project Manager & Facilities Address: CH2M HILL ENGINEERS, INC. 949 E. 36th Avenue, Suite 500 Anchorage, AK 99508 Copy to: Position: Address: To Client Original to: David Conrad Position: Director of Engineering Address: Kodiak Island Borough 710 Mill Bay Road Kodiak, AK 99615 Copy to: Jena Hassigner Position: Solid Waste Manager Address: Kodiak Island Borough 710 Mill Bay Road Kodiak, AK 99615 Billing to: Patricia Valerio, pvalerio@kodiakak.us Either party may, by written notice to the other, change the representative or the address to which such notices, certificates, or communications are to be sent. ARTICLE 24 MISCELLANEOUS A Waiver. Waiver by either parry of any breach or failure to enforce any of the terms and conditions of this Agreement at any time shall not in any way effect, limit, or waive such parry's rights thereafter to enforce and compel strict compliance with all the terms and conditions of this Agreement. File: APS — JEG (4-6-09) Page 9 of 10 party's rights thereafter to enforce and compel strict compliance with all the terms and conditions of this Agreement. B. Severability. Any provision of this Agreement prohibited by law shall be ineffective to the extent of such prohibition without invalidating the remaining provisions of this Agreement. C. Rights and Remedies. The specific remedies set forth in this Agreement, including but not limited to those remedies with respect to the quality of the Services performed by Engineer hereunder, are the exclusive remedies of the Parties. D. Transfer of Ownership. Client represents that either it is the sole owner of the facilities which are the object of the Services or that it is authorized to bind and does bind all owners of such facilities to the releases and limitations of liability set forth in this Agreement. Client further agrees that any future recipient of any interest in the facilities and the Services will be bound by such releases and limitations of liability such that the total aggregate liability of Engineer to Client and such recipients shall not exceed the limits of liability set forth in this Agreement. E. Time of Accrual. For services performed by Engineer before substantial completion, all causes of action against Engineer shall accrue and the statute of limitations shall commence to run no later than the date of substantial completion of the Project. For services performed by Engineer after the date of substantial completion but before final completion of the Project, all causes of action against Engineer shall accrue and the statute of limitations shall commence to run no later than the date of final completion. The Parties expressly agree that the discovery rule for purposes of accrual shall not apply. F. Publicity. Neither of the Parties shall make any press release, news disclosure or other advertising related to the Project that includes the name of the other party without first obtaining the written approval of the other party. G. Entirety of Agreement. This Agreement constitutes the entire Agreement between the parties with respect to the subject matter hereof and supersedes all prior negotiations and discussions concerning the subject matter hereof. IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be effective as of the date first above written. ENGINEER: CH2M H[L 11,WWERS, INC. By: Title: Managerof Projects File: APS - JEG (4-6-09) CLIENT: By: Page 10 of 10