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HomeMy WebLinkAboutMichael Bailey - Financial and budgeting consulting services, interim Finance Director, budget advisory committeePROFESSIONAL SERVICES AGREEMENT FOR FINANCIAL AND BUDGETING CONSULTING SERVICES THIS PROFESSIONAL SERVICES AGREEMENT, entered into on the date of last execution, and effective February 1, 2025, between the City of Yakima, a Washington municipal corporation ("City"), and MICHAEL BAILEY Consulting, a sole proprietorship ("Contractor"). WITNESSETH: The parties, in consideration of the terms and conditions herein, do hereby covenant and agree as follows: 1. Statement of Work The minimum services (hereinafter referred to as "Services") that the Contractor will provide include performing the duties and serving as the Interim Finance Director for the City of Yakima, providing services and consultation regarding the priority based budgeting process for the City of Yakima, and facilitating work sessions for the budget advisory committee. 2. Compensation The City agrees to pay the Contractor as follows: 1. The City shall pay Contractor an hourly rate of One Hundred Fifty and 00/100ths dollars ($150.00) for the Work done under this Agreement. Contractor shall provide the City invoices not more than once monthly itemizing the hours spent and tasks undertaken. 2. The City will pay a flat rate of Two Thousand Five Hundred and 00/100ths dollars ($2,500.00) per month which shall cover any and all travel costs associated with this Agreement. Travel costs include, but are not limited to, costs of hotel stays, mileage. wear and tear on vehicle, gas, meals, and travel time to and from Yakima. 3. Contract Term The period of this Agreement shall be effective February 1, 2025 and terminate no later than June 30, 2025. The term may be extended in one month intervals by agreement of the Parties, under the same terms and conditions herein, up to six additional months. 4. Agency Relationship between City and Contractor Contractor shall, at all times, be an independent Contractor with regard to performance of the Services. In no event shall Contractor be authorized to enter into any third -party agreement, external undertaking, or matter outside the scope of the role as interim finance director, for, or on, behalf of City without the express consent of the City Manager. 5. Successors and Assigns a. Neither the City, nor the Contractor, shall assign, transfer, or encumber any rights, duties, or interests accruing from this Agreement without the prior written consent of the other. b. The Contractor for himself, and for his heirs, executors, administrators, successors, and assigns, does hereby agree to the full performance of all the covenants herein contained upon the part of the Contractor. 6. Property Rights All records or papers of any sort relating to the City and to the Services will at all times be the property of the City and shall be surrendered to the City upon demand. All information concerning the City and said Services which is not otherwise a matter of public record or required by law to be made public, is confidential, and the Contractor will not, in whole or part, now or at any time disclose that information without the express written consent of the City. 7. Inspection and Production of Records Page 1 of 12 a. The records relating to the Services shall, at all times, be subject to inspection by and with the approval of the City, but the making of (or failure or delay in making) such inspection or approval shall not relieve Contractor of responsibility for performance of the Services in accordance with this Agreement, notwithstanding the City's knowledge of defective or non -complying performance, its substantiality or the ease of its discovery. Contractor shall provide the City sufficient, safe, and proper facilities, and/or send copies of the requested documents to the City. Contractor's records relating to the Services will be provided to the City upon the City's request. b. Contractor shall promptly furnish the City with such information and records which are related to the Services of this Agreement as may be requested by the City. Until the expiration of six (6) years after final payment of the compensation payable under this Agreement, or for a longer period if required by law or by the Washington Secretary of State's record retention schedule, Contractor shall retain and provide the City access to (and the City shall have the right to examine, audit and copy) all of Contractor's books, documents, papers and records which are related to the Services performed by Contractor under this Agreement. If any litigation, claim, or audit is started before the expiration of the six -year period, the records shall be retained until all litigation, claims or audit findings involving the records have been resolved. c. All records relating to Contractor's Services under this Agreement must be made available to the City, and the records relating to the Services are City of Yakima records. They must be produced to third parties, if required pursuant to the Washington State Public Records Act, Chapter 42.56 RCW, or by law. All records relating to Contractor's Services under this Agreement must be retained by Contractor for the minimum period of time required pursuant to the Washington Secretary of State's records retention schedule. d. The terms of this section shall survive any expiration or termination of this Agreement. 8. Work Made for Hire All work the Contractor performs under this Agreement shall be considered work made for hire, and shall be the property of the City. The City shall own any and all data, documents, plans, copyrights, specifications, working papers, and any other materials the Contractor produces in connection with this Agreement. On completion or termination of the Agreement, the Contractor shall deliver these materials to the City. 9. Compliance with Law Contractor agrees to perform all Services under and pursuant to this Agreement in full compliance with any and all applicable laws, rules, and regulations adopted or promulgated by any governmental agency or regulatory body, whether federal, state, local, or otherwise, including policies adopted by the City, as those laws, ordinances, rules, regulations, and policies now exist or may hereafter be amended or enacted. Contractor shall procure and have all applicable and necessary permits, licenses and approvals of any federal, state, and local government or governmental authority for the Services, pay all charges and fees, and give all notices necessary and incidental to the due and lawful execution of the work. Contractor shall procure and have all applicable and necessary permits, licenses and approvals of any federal, state, and local government or governmental authority for the Services, pay all charges and fees, and give all notices necessary and incidental to the due and lawful execution of the work. a. Procurement of a City Business License. Contractor must procure a City of Yakima Business License and pay all charges, fees, and taxes associated with said license. b. Contractor must provide proof of a valid Washington department of Revenue state excise tax registration number, as required in Title 85 RCW. c. Contractor must provide proof of a valid Washington Unified Business Identification (UBI) number. Contractor must have a current UBI number and not be disqualified from bidding on any public works contract under RCW 39.06.101 or 36.12.065(3). Page 2 of 12 d. Contractor must provide proof of a valid Washington Employment Security Department number as required by Title 50 RCW. e. Foreign (Non -Washington) Corporations: Although the City does not require foreign corporate proposers to qualify in the City, County or State prior to submitting a proposal, it is specifically understood and agreed that any such corporation will promptly take all necessary measures to become authorized to conduct business in the City of Yakima, at their own expense, without regard to whether such corporation is actually awarded the contract, and in the event that the award is made, prior to conducting any business in the City. 10. Nondiscrimination Provision During the performance of this Agreement, the Contractor agrees as follows: The Contractor shall not discriminate against any person on the grounds of race, creed, color, religion, national origin, sex, age, marital status, sexual orientation, gender identity, pregnancy, veteran's status, political affiliation or belief, or the presence of any sensory, mental or physical handicap in violation of the Washington State Law Against Discrimination (RCW chapter 49.60) or the Americans with Disabilities Act (42 USC 12101 et seq.). This provision shall include but not be limited to the following: employment, upgrading, demotion, transfer, recruitment, advertising, layoff or termination, rates of pay or other forms of compensation, selection for training, and the provision of Services under this Agreement. In the event of the Contractor's noncompliance with the non-discrimination clause of this contract or with any such rules, regulations, or orders, this Contract may be cancelled, terminated, or suspended in whole or in part and the Contractor may be declared ineligible for any future City contracts. 11. Pay Transparency Nondiscrimination Provision: The Contractor will not discharge or in any other manner discriminate against employees or applicants because they have inquired about, discussed, or disclosed their own pay or the pay of another employee or applicant. However, employees who have access to the compensation information of other employees or applicants as a part of their essential job functions cannot disclose the pay of other employees or applicants to individuals who do not otherwise have access to compensation information, unless the disclosure is (a) in response to a formal complaint or charge, (b) in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or (c) consistent with the contractor's legal duty to furnish information. 12. Indemnification and Hold Harmless a. Contractor shall take all necessary precautions in performing the Services to prevent injury to ns or property. The Contractor agrees to release, indemnify, defend, and hold harmless the City, its elected and appointed officials, officers, employees, agents, representatives, insurers, attorneys, and volunteers from all liabilities, losses, damages, and expenses related to all claims, suits, arbitration actions, investigations, and regulatory or other governmental p edings arising from or in connection with this Agreement or the acts, failures to act, errors or omissions of the Contractor, or any Contractor's agent or subcon or, in performance of this Agreement, except for claims caused by the City's sole negligence. b Industrial Insurance Act Waiver. It is specifically and expressly tinders tt • that the Contractor waives any immunity that may be granted to it under the Washington State industrial insurance act, Title 51 RCW, solely for the purposes of this indemnification. Contractor's indemnification shall not be limited in any way by any limitation on the amount of damages, compensation or benefits payable to or by any third party under workers' compensation acts, disability benefit acts or any other benefits acts or programs. Contractor shall require that its subcontractors, and anyone directly or indirectly employed or hired by Contractor, and anyone for whose pets Contractor may be liable in connection with its performance of this Agreement, comply with the terms of this paragraph, waive any immunity granted under Title 51 RCW, and assume all potential liability for actions brought by their respective employees. The Parties acknowledge that they have mutually negotiated this waiver. Page 3 of 12 c. Should a court of competent jurisdiction determine that this Agreement is subject to RCVV 4.4.11 b, then, in the event of liability for damages arising out of bodily injury to persons or damages to property cau • by or resulting from the concurrent negligence of the Contractor and the City, the Contractors liability, including the duty and cost to defend, shall be only to the extent of the Contractors negligence. d. Nothing contained in this Section or this Agreement shall be construed to create a liability or a right of indemnification in any third party. e. The terms of this Section shall survive any expiration or termination of this Agreement. 13. Contractor's Liability Insurance At all times during performance of the Services and this Agreement, Contractor shall secure and maintain in effect insurance to protect the City and Contractor from and against any and all claims, damages, losses, and expenses arising out of or resulting from the performance of this Agreement. Contractor shall provide and maintain in force insurance in limits no Tess than that stated below, as applicable. The City reserves the right to require higher limits should it deem it necessary in the best interest of the public. Contractor shall provide a Certificate of Insurance to the City as evidence of coverage for each of the policies and outlined herein. A copy of the additional insured endorsement attached to the policy shall be included with the certificate. This Certificate of insurance shall be provided to the City, prior to commencement of work. Failure of City to demand such verification of coverage with these insurance requirements or failure of City to identify a deficiency from the insurance documentation provided shall not be construed as a waiver of Contractor's obligation to maintain such insurance. The following insurance is required: a. Commercial Liability Insurance Before this Contract is fully executed by the parties, Contractor shall provide the City with a certificate of insurance and additional insured endorsements as proof of commercial liability insurance with a minimum liability limit of One Million Dollars ($1,000,000.00) per occurrence, combined single limit bodily injury and property damage, and One Million Dollars ($1,000,000.00) general aggregate. If Contractor carves higher coverage limits, such limits shall be shown on the Certificate of Insurance and Endorsements and the City, its elected and appointed officials, employees, agents, attorneys and volunteers shall be named as additional insureds for such higher limits. The certificate shall clearly state who the provider is, the coverage amount, the policy number, and when the policy and provisions provided are in effect. Said policy shall be in effect for the duration of this Agreement. The certificate of insurance and additional insured endorsements shall name the City of Yakima, its elected and appointed officials, employees, agents, attorneys and volunteers as additional insureds, and shall contain a clause that the insurer will not cancel or change the insurance without first giving the City prior written notice. The insurance shall be with an insurance company or companies rated A-VII or higher in Best's Guide and admitted in the State of Washington. The requirements contained herein, as well as City of Yakima's review or acceptance of insurance maintained by Contractor is not intended to and shall not in any manner limit or qualify the liabilities or obligations assumed by Contractor under this contract. b. Automobile Liability Insurance Before this Agreement is fully executed by the parties, Contractor shall provide the City with a certificate of insurance as proof of automobile liability insurance with a minimum liability limit of One Million Dollars ($1,000,000.00) per occurrence. If Contractor carries higher coverage limits, such limits shall be shown on the Certificate of Insurance and Endorsements and the City, its elected and appointed officials, employees, agents, attorneys and volunteers shall be named as additional insureds for such higher limits. The certificate shall clearly state who the provider is, the coverage amount, the policy number, and when the policy and provisions provided are in effect. Said policy shall be in effect for the duration of this Agreement. The certificate of insurance and additional insured endorsements shall name the City of Yakima, its elected and appointed officials, employees, agents, attorneys and volunteers as additional insureds, and shall contain a clause that the insurer will Page 4 of 12 not cancel or change the insurance without first giving the City prior written notice. The insurance shall be with an insurance company or companies rated A-VII or higher in Best's Guide and admitted in the State of Washington. The requirements contained herein, as well as City of Yakima's review or acceptance of insurance maintained by Contractor is not intended to and shall not in any manner limit or qualify the liabilities or obligations assumed by Contractor under this contract. The business auto liability shall include Hired and Non -Owned coverage if necessary. c. Professional Liability The Contractor shall provide evidence of Professional Liability insurance covering professional errors and omissions. Contractor shall provide the City with a certificate of insurance as proof of professional liability insurance with a minimum liability limit of One Million Dollars ($1,000,000.00) per claim combined single limit bodily injury and property damage, and One Million Dollars ($1,000,000.00) aggregate. The certificate shall clearly state who the provider is, the coverage amount, the policy number, and when the policy and provisions provided are in effect. The insurance shall be with an insurance company or companies rated A-VII or higher in Best's Guide. If the policy is written on a claims made basis the coverage will continue in force for an additional two years after the completion of this contract. If insurance is on a claims made form, its retroactive date, and that of all subsequent renewals, shall be no later than the effective date of this Agreement. Con'tor's insurance coverage shall be primary insurance with respect to those who are Additional Insureds under this Agreement Any insurance, self-insurance or insurance ••'I coverage maintained by the City shall be in excess of the Contractor's insurance and neither the City nor its insurance providers shall contribute to any settlements, defense costs, or other payments made by Contractor's insurance. If at any time during the life of the Agreement, or any extension, Contractor fails to maintain the required insurance in full force and effect, all work under the contract shall be discontinued immediately. Any failure to maintain the required insurance may be sufficient cause for the City to terminate the Agreement. 14. Severability If any term or condition of this Agreement or the application thereof to any person(s) or circumstances is held invalid, such invalidity shall not affect other terms, conditions or applications which can be given effect without the invalid term, condition or application. To this end, the terms and conditions of this Agreement are declared severable. 15. Termination Termination for Cause: In the event the Contractor breaches this Agreement, the City may terminate the Agreement at its sole discretion in such event that it provides the Contractor with written notice of Contractor's breach and the Contractor fails to cure its breach within 3 days of this notice. In the event of the City breaches this Agreement, the Contractor may terminate the Agreement at its sole discretion in such event that it provides the City with written notice of City's breach and the City failes to cure its breach of the Agreement within 15 days of this notice. The following represents a non-exclusive, illustrative list of instances that shall be considered a breach by the Contractor: a. Defaults on an obligation under the Agreement; b. Fails to perform any material obligation required under the Agreement; c. Files a petition in bankruptcy, becomes insolvent, or otherwise takes action to dissolve as a legal entity; d. Allows any final judgment not to be satisfied or a lien not to be disputed after a legally -imposed, 30-day notice; e. Makes an assignment for the benefit of creditors; f. Fails to follow the sales and use tax certification requirements of the State of Washington; Page 5 of 12 g. Incurs a delinquent Washington tax liability; h. Becomes a State or Federally debarred Contractor; i. Is excluded from federal procurement and non -procurement contracts; j. Fails to maintain and keep in force all required insurance, permits and licenses as provided in the Agreement; k. Fails to maintain the confidentiality of the City information that is considered to be Confidential Information, proprietary, or containing Personally Identifiable Information; or I. Contractor performance threatens the health or safety of a City, County or municipal employee. Termination for Convenience: The City may terminate the Agreement, without cause, by providing 3 days written notice of termination. In the event of termination for convenience, the Contractor shall be entitled to receive compensation for any fees owed under the Agreement. The Contractor shall also be compensated for partially completed services. In this event, compensation for such partially completed services shall be pro rated to the effective date of the termination. Alternatively, at the sole discretion of the City, the Contractor may be compensated for the actual service hours provided. The City shall be entitled to a refund for goods or services paid for but not received or implemented, such refund to be paid within 30 days of written notice to the Contractor requesting the refund. Chance in Funding.: In addition to the above termination provisions, if the funds upon which the City relied to establish this Agreement are withdrawn, reduced, or limited, or if additional or modified conditions are placed on such funding, the City may terminate this Agreement by providing at least five (5) business days written notice to the Contractor. The termination shall be effective on the date specified in the notice of termination. 16. Dispute Resolution In the event that any dispute shall arise as to the interpretation of this Agreement, or in the event of a notice of default as to whether such default does constitute a breach of the contract, and if the parties hereto cannot mutually settle such differences, then the parties shall first pursue mediation as a means to resolve the dispute. If the aforementioned methods are either not successful then any dispute relating to this Agreement shall be decided in the courts of Yakima County, in accordance with the laws of Washington. If both parties consent in writing, other available means of dispute resolution may be implemented. 17. Contractor Shall Furnish Except as otherwise specifically provided in this Agreement, Contractor shall furnish the following, all as the same may be required to perform and provide the services in accordance with the terms of this Agreement: personnel, labor, products and supervision; and technical, professional and other services. All such services, products, property and other items furnished or required to be fumished, together with all other obligations performed or required to be performed, by Contractor under this Agreement are sometimes collectively referred to in this Contract as the "Services." 18. Complementary Provisions All provisions of this Agreement are intended to be complementary, and any Services required by one and not mentioned in another shall be performed to the same extent as though required by all. Details of the Services that are not necessary to carry out the intent of this Agreement, but that are not expressly required, shall be performed or furnished by Contractor as part of the Services, without any increase in the compensation otherwise payable under this Agreement. 19. Invoices The City will use its best efforts to pay each of Contractor's invoices within thirty (30) days after the City's receipt and verification thereof; provided, however, that all such payments are expressly conditioned upon Contractor providing services hereunder that are satisfactory to the City. The City will notify the Contractor promptly if any problems are noted with the Page 6 of 12 invoice. To insure prompt payment, each invoice should cite the City's contract number, detailed description of work, unit and total price, discount term and include the Contractor's name and return remittance address. Contractor will mail invoices to the City at the following address: City of Yakima Attn: Cally Price 129 N 2nd Street Yakima, WA 98901 20. Prime Contractor Contractor is the Prime Contractor hereunder. The Prime Contractor shall be the sole point of contact with regard to all contractual matters arising hereunder, including the performance of Services and the payment of any and all charges resulting from its contractual obligations. 21. Delegation of Professional Services The services provided for herein shall be performed by Contractor. Contractor shall not (by contract, operation of law or otherwise) delegate or subcontract performance of any services to any other person or entity without the prior written consent of the City. Any such delegation or subcontracting without the City's prior written consent shall be voidable at the City's option. No delegation of subcontracting of performance of any of the services, with or without the City's prior written consent, shall relieve Contractor of its responsibility to perform the services in accordance with this Agreement. Contractor shall be fully responsible for the performance, acts and omissions of Contractor's employees, Contractor's subcontractors, and any other person who performs or furnishes any services (collectively, the "Support"). Contractor shall at all times be an independent contractor and not an agent or representative of the City with regard to performance of the services. Contractor shall not represent that it is, nor hold itself out as, an agent or representative of the City other than as allowed in this Agreement. In no event shall Contractor be authorized to enter into any agreement or undertaking for or on behalf of the City. Neither the Contractor nor any employee of the Contractor is entitled to any benefits that the City provides its employees. The Contractor is solely responsible for payment of any statutory workers compensation or employer's liability insurance as required by state law. The Contractor will have an active account with the Department of Revenue, other state agencies as needed, and a separate set of books or records that reflect all items of income and expenses of the business that the Contractor is conducting. Contractor shall perform the services in a timely manner and in accordance with the standards of the profession. At the time of performance, Contractor shall be properly licensed, equipped, organized, and financed to perform the services in accordance with this Agreement. Subject to compliance with the requirements of this Agreement, Contractor shall perform the services in accordance with its own methods. 22. Removal of Subcontractor If dissatisfied with the background, performance, and/or general methodologies of any subcontractor, the City may request in writing that the subcontractor be removed. The Contractor shall comply with this request at once and shall not employ the subcontractor for any further work/services under this Agreement. 23. Taxes and Assessments •Contractor shall be solely responsible for and shall pay all taxes, deductions, and assessments, including but not limited to federal income tax, FICA, social security tax, assessments for unemployment and industrial injury insurance, and other deductions from income which may be required by law or assessed against either party as a result of this Agreement. In the Page 7 of 12 event the City is assessed a tax or assessment as a result of this Agreement, Contractor shall pay the same before it becomes due. 24. Contractor Tax Delinquency Contractors who have a delinquent Washington tax liability may have their payments offset by the State of Washington. 25. Inspection: Examination of Records In addition to any reports required by the Scope of Work, the Contractor agrees to furnish the City with reasonable periodic reports and documents as it may request and in such form as the City requires pertaining to the work or services undertaken pursuant to this Agreement. The costs and obligations incurred or to be incurred in connection therewith, and any other matter are to be covered by this Agreement. The records relating to the services shall, at all times, be subject to inspection by and with the approval of the City, but the making of (or failure or delay in making) such inspection or approval shall not relieve Contractor of responsibility for performance of the services in accordance with this Agreement, notwithstanding the City's knowledge of defective or non- complying performance, its substantiality or the ease of its discovery. Contractor shall provide the City sufficient, safe, and proper facilities and equipment for such inspection and free access to such facilities. 26. Recordkeeping and Record Retention The Contractor shall establish and maintain adequate records of all expenditures incurred under the contract. All records must be kept in accordance with generally accepted accounting procedures. All procedures must be in accordance with federal, state and local ordinances. All email correspondence of Contractor during the course of executing the scope of this Agreement shall be through the City - issued email address to ensure retention of email correspondence. Contractor shall follow the Administrative Policy 1-1550 with regards to Records Management. The City shall have the right to audit, review, examine, copy, and transcribe any pertinent records or documents relating to any contract resulting from this proposal held by the Contractor. The Contractor will retain all documents applicable to the contract pursuant to Section 7 of this Agreement. 27. Confidential, Proprietary and Personally Identifiable Information Contractor shall not use Confidential, Proprietary or Personally Identifiable Information of City for any purpose other than the limited purposes set forth in this Agreement, and all related and necessary actions taken in fulfillment of the obligations there under. Contractor shall hold all Confidential Information in confidence, and shall not disclose such Confidential Information to any persons other than those directors, officers, employees, and agents ("Representatives") who have a business -related need to have access to such Confidential Information in furtherance of the limited purposes of this Agreement and who have been apprised of, and agree to maintain, the confidential nature of such information in accordance with the terms of this Agreement. Contractor shall institute and maintain such security procedures as are commercially reasonable to maintain the confidentiality of the Confidential Information while in its possession or control including transportation, whether physically or electronically. Contractor shall ensure that all indications of confidentiality contained on or included in any item of Confidential Information shall be reproduced by Contractor on any reproduction, modification, or translation of such Confidential Information. If requested by the City in writing, Contractor shall make a reasonable effort to add a proprietary notice or indication of confidentiality to any tangible materials within its possession that contain Confidential Information of the City, as directed. Contractor shall maintain all Confidential Information as confidential for a period of three (3) years from the date of termination of this Agreement, and shall return said Confidential Information as directed by the City in writing. Page 8 of 12 Contractor may disclose Confidential Information in connection with a judicial or administrative proceeding to the extent such disclosure is required under law or a court order, provided that the City shall be given prompt written notice of such proceeding if giving such notice is legally permissible. 28. Suspension of Work The City may suspend, in writing by certified mail, all or a portion of the Services under this Agreement if unforeseen circumstances beyond the City's control are interfering with normal progress of the Services. The Contractor may suspend, in writing by certified mail, all or a portion of the Services under this Agreement if unforeseen circumstances beyond Contractor's control are interfering with normal progress of the Services. The Contractor may suspend Services in the event the City does not pay invoices when due, except where otherwise provided by this Agreement. The time for completion of the Services shall be extended by the number of days the Services are suspended. If the period of suspension exceeds ninety (90) days, the terms of this Agreement are subject to renegotiation, and both parties are granted the option to terminate the Services in accordance with Section 15. 29. Provision of Services The Contractor shall provide the services set forth herein with all due skill, care, and diligence, in accordance with accepted industry practices, standards and legal requirements, and to the City 's satisfaction; the City decision in that regard shall be final and conclusive. The City may inspect, observe and examine the performance of the services performed on the City premises at any time. The City may inspect, observe and examine the performance of Contractor's services at reasonable times, without notice, at any other premises. a. If the City notifies the Contractor that any part of the services rendered are inadequate or in any way differ from the Agreement requirements for any reason, other than as a result of the City's default or negligence, the Contractor shall, at its own expense, reschedule and perform the services correctly within such reasonable time as the City specifies. This remedy shall be in addition to any other remedies available to the City by law or in equity. b. The Contractor shall be solely responsible for controlling the manner and means by which it and its Contracted Personnel or its subcontractors perform the services, and the Contractor shall observe, abide by, and perform all of its obligations in accordance with all legal requirements and City work rules. 30. Assignment This Contract, or any interest herein, or claim hereunder, shall not be assigned or transferred in whole or in part by Contractor to any other person or entity. 31. No Conflict of Interest Contractor represents that it or its employees do not have any interest and shall not hereafter acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of this Agreement. Contractor further covenants that it will not hire anyone or any entity having such a conflict of interest during the performance of this Agreement. 32. Contract Preservation If any provision of the Agreement, or the application of such provision, shall be rendered or declared invalid by a court of competent jurisdiction, or by reason of its requiring any steps, actions or results, the remaining parts or portions of this Agreement shall remain in full force and effect. 33. Promotional Advertising / News Releases Reference to or use of the City, any of its departments, agencies or other subunits, or any official or employee for commercial promotion is prohibited. News releases pertaining to this procurement shall not be made without prior approval of the City. Page 9 of 12 Release of broadcast e-mails pertaining to this procurement shall not be made without prior written authorization of the contracting agency. 34. Time is of the Essence Timely provision of the services required under this Agreement shall be of the essence of the Agreement, including the provision of the services within the time agreed or on a date specified herein. 35. Facility Security The City may prohibit entry to any secure facility, or remove from the facility, the Contractor if he does not perform his duties in a professional manner, or if he violates the secure facility's security rules and procedures. The City reserves the right to search any person, property, or article entering its facilities. 36. Waiver of Breach A waiver by either party hereto of a breach of the other party hereto of any covenant or condition of this Agreement shall not impair the right of the party not in default to avail itself of any subsequent breach thereof. Leniency, delay or failure of either party to insist upon strict performance of any agreement, covenant or condition of this Agreement, or to exercise any right herein given in any one or more instances, shall not be construed as a waiver or relinquishment of any such agreement, covenant, condition or right. 37. Integration and Supercession This Agreement represents the entire understanding of the City and Contractor as to those matters contained herein. No prior oral or written understanding shall be of any force or effect with respect to those matters covered herein. This Agreement may not be modified or altered except in writing signed by both parties. This Agreement supercedes all prior agreements, incluidng the Agreement referred to as City Contract No. 2025-019. 38. Force Majeure Contractor will not be responsible for delays in delivery due to acts of God, fire, strikes, epidemics, pandemics, war, riot, delay in transportation or railcar transport shortages, provided Contractor notifies the City immediately in writing of such pending or actual delay. Normally, in the event or any such delays (acts of God, etc.) the date of delivery will be extended for a period equal to the time lost due to the reason for delay. 39. Governing Law This Agreement shall be govemed by and construed in accordance with the laws of the State of Washington. 40. Venue The venue for any judicial action to enforce or interpret this Agreement shall lie in a court of competent jurisdiction in Yakima County, Washington. 41. Authority The person executing this Agreement, on behalf of Contractor, represents and warrants that he/she has been fully authorized by Contractor to execute this Agreement on its behalf and to legally bind Contractor to all the terms, performances and provisions of this Agreement. 42. Notice of Change in Financial Condition If, during the Agreement Term, the Contractor experiences a change in its financial condition that may affect its ability to perform under the Agreement, or experiences a change of ownership or control, the Contractor shall immediately notify the Page 10 of 12 City in writing. Failure to notify the City of such a change in financial condition or change of ownership or control shall be sufficient grounds for Agreement termination. 43. Change or Notice Any alterations, including changes to the nature of the service, made to the Agreement shall be rendered in writing and signed by both responsible parties; no changes without such signed documentation shall be valid. No alterations outside of the general scope and intent of the original Request for Proposals or in excess of allowable and accepted price changes shall be made. In no event shall the Contractor be paid or be entitled to payment for services that are not authorized herein or any properly executed amendment. Notice of Business Changes: Contractor shall notify the City in writing within three (3) business days of any change in ownership of the facilities of the Contractor or of the facilities of any subcontractor. The Contractor shall notify the City in writing as soon as possible, and in no event later than three (3) business days, after any decision by the Contractor to change or discontinue service that will affect services provided to the City under this Agreement. The City shall have the right to renegotiate the terms and conditions of this Agreement to the extent required to accommodate a change in goveming law or policy that, in the sole discretion of the City, either substantially and unreasonably enlarges the Contractor's duties hereunder, or renders performance, enforcement or compliance with the totality of the Agreement impossible, patently unreasonable, or unnecessary. Notices and demands under and related to this Agreement shall be in writing and sent to the parties at their addresses as follows: TO CITY: Vicki Baker City Manager City of Yakima 129 North 2nd Street Yakima WA, 98901 COPY TO: Cally Price Assistant to the City Manager City of Yakima 129 North 2nd Street Yakima, WA 98901 TO CONTRACTOR: Mike Bailey P.O. Box 715 Woodinville, WA 98072 44. Survival The foregoing sections of this Contract, 1-44 inclusive, shall survive the expiration or termination of this Agreement in accordance with their terms. IN WITNESS WHEREOF, the parties hereto execute this Agreement as of the day and year first above written.: MICHAEL BAILEY City Manager, Date:' City Clerk Page 12 of 12