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CITY OF YAKIMA
PROFESSIONAL SERVICES AGREEMENT
FOR AIR SERVICE DEVELOPMENT AND CONSULTING SERVICES
THIS PROFESSIONAL SERVICES AGREEMENT, entered into on the date of last execution, between the City of
Yakima, a Washington municipal corporation ("City")and RRC ASSOCIATES, ("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 that the Contractor will provide include services described in Exhibit A,which is attached hereto
and incorporated herein by this reference.
2. Compensation
The City agrees to pay the Contractor according to Exhibit B, attached hereto and incorporated herein, which Exhibit
includes the specifications and payment schedule of itemized prices at the time and in the manner and upon the
conditions provided for the Contract.
3. Contract Term
The period of this Contract shall be for a period of one year from its effective date.
4. Changes
Any proposed change in this Contract shall be submitted to the other party, for its prior written approval. If approved,
change will be made by a contract modification that will become effective upon execution by the parties hereto. Any
oral statement or representation changing any of these terms or conditions is specifically unauthorized and is not valid.
5. Agency Relationship between City and Contractor
Contractor shall, at all times, be an independent Contractor and not an agent or representative of City with regard to
performance of the Services. Contractor shall not represent that it is, or hold itself out as, an agent or representative
of City. In no event shall Contractor be authorized to enter into any agreement or undertaking for,or on, behalf of City.
6. Successors and Assigns
a. Neither the City, nor the Contractor, shall assign, transfer, or encumber any rights, duties, or interests
accruing from this Contract 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.
7. Property Rights
All records or papers of any sort relating to the City and to the project 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 project 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.
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8. Inspection and Production of Records
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 Contract,
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 Contract as may be requested by the City. Until the expiration of six(6)years after final
payment of the compensation payable under this Contract,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
Contract.
c. All records relating to Contractor's services under this Contract 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 Contract 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 Contract.
9. Work Made for Hire
All work the Contractor performs under this Contract 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 Contract. On completion or termination of the Contract,
the Contractor shall deliver these materials to the City.
10. Guarantee
Contractor warrants the Services will be free from defects in material and workmanship for a period of one year following
the date of completion and acceptance of the Services.
11. Compliance with Law
Contractor agrees to perform all Services under and pursuant to this Contract 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. Contractor shall procure and have all applicable and necessary permits,
licenses and approvals of any federal, state, and local government or governmental authority or this project, 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.
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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).
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.
12. Nondiscrimination Provision
During the performance of this Contract, 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, 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.
13. 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.
14. Indemnification and Hold Harmless
a. Contractor shall take all necessary precautions in performing the Services to prevent injury to persons or
property. Contractor agrees to defend, indemnify and hold harmless the City, its elected and appointed
officials,officers,employees,attorneys,agents,and volunteers from any and all claims,demands,losses,
liens, liabilities, penalties, fines, lawsuits, and other proceedings and all judgments, awards, costs and
expenses (including reasonable costs and attorney fees) which result or arise out of the sole negligent
acts or omissions of Contractor, its officials, officers,employees or agents.
b. If any suit,judgment, action, claim or demand arises out of, or occurs in conjunction with, the negligent
acts and/or omissions of both the Contractor and the City, or their elected or appointed officials,officers,
employees, agents, attorneys or volunteers, pursuant to this Contract, each party shall be liable for its
proportionate share of negligence for any resulting suit, judgment, action, claim, demand, damages or
costs and expenses, including reasonable attorneys'fees.
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c. Contractor's Waiver of Employer's Immunity under Title 51 RCW. If any design or engineering work is
done pursuant to this Contract, Contractor intends that its indemnification, defense, and hold harmless
obligations set forth above in Section A shall operate with full effect regardless of any provision to the
contrary in Title 51 RCW,Washington's Industrial Insurance Act. Accordingly,to the extent necessary to
fully satisfy the Contractor's indemnification, defense, and hold harmless obligations set forth above in
section A, Contractor specifically waives any immunity granted under Title 51 RCW, and specifically
assumes all potential liability for actions brought by employees of the Contractor against the City and its
elected and appointed officials,officers,employees,attorneys,agents,and volunteers. The parties have
mutually negotiated this waiver. Contractor shall similarly require that its subcontractors, and anyone
directly or indirectly employed or hired by Contractor,and anyone for whose acts Contractor may be liable
in connection with its performance of this Agreement,shall 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 provisions of this section shall survive the expiration or termination of this
Agreement.
d. Nothing contained in this Section or this Contract 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 Contract.
15. Contractor's Liability Insurance
At all times during performance of the Services and this Contract, 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 Contract. Contractor shall provide and maintain in force
insurance in limits no less 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 will 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 will 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 as proof of commercial liability insurance with a minimum liability limit of Two Million Dollars
($2,000,000.00) per occurrence, combined single limit bodily injury and property damage, and Two Million
Dollars ($2,000,000.00) general aggregate. 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 Contract. The
policy 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
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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. Employer's Liability(Stop Gap)
Contractor and all subcontractor(s) shall at all times comply with all applicable workers' compensation,
occupational disease, and occupational health and safety laws, statutes, and regulations to the full extent
applicable, and shall maintain Employer's Liability insurance with a limit of no less than $1,000,000.00. The
City shall not be held responsible in any way for claims filed by Contractor or its employees for services
performed under the terms of this Contract. Contractor agrees to assume full liability for all claims arising
from this Contract including claims resulting from negligent acts of all subcontractor(s). Contractor is
responsible to ensure subcontractor(s) have insurance as needed. Failure of subcontractors(s) to comply
with insurance requirements does not limit Contractor's liability or responsibility.
Contractor's insurance coverage shall be primary insurance with respect to those who are Additional Insureds under
this Contract. Any insurance, self-insurance or insurance pool coverage maintained by the City shall be in excess of
the Contractor's insurance and shall not contribute to it.
If at any time during the life of the Contract, 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 Contract.
Should a court of competent jurisdiction determine that this Contract is subject to RCW 4.24.115, then, in the event of
liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the
concurrent negligence of Contractor and the City, its officers, elected and appointed officials, employees, agents,
attorneys and volunteers, Contractor's liability hereunder shall be limited to the extent of the Contractor's negligence.
Professional Service: Defense&Indemnity Agreement:The Contractor agrees to defend,indemnify and save
harmless the City of Yakima, its appointed and elective officers and employees,from and against all loss
or expense, including but not limited to judgments, settlements, attorney's fees and costs by reason of
any and all claims and demands upon the City of Yakima, its elected or appointed officials or employees
for damages, whether such damage is due to the negligence, or errors or omissions of the Contractor,
his/her subcontractors, its successor or assigns,or its or their agent, servants,or employees, It is further
provided that no liability shall attach to the City of Yakima by reason of entering into this Contract,except
as expressly provided herein.
Professional Liability: The Contractor shall provide evidence of Professional Liability insurance covering
professional errors and omissions. Such policy must provide the following minimum limits:
$1,000,000 per Claim
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 Contract.
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16. Severability
If any term or condition of this Contract or the application thereof to any person(s) or circumstances is held invalid,
such invalidity shall not affect other terms,conditions or applications which can be given effect without the invalid term,
condition or application. To this end,the terms and conditions of this Contract are declared severable.
17. Contract Documents
This Contract, Scope of Work, conditions, addenda, and modifications and Contractor's proposal (to the extent
consistent with Yakima City documents)constitute the Contract Documents and are complementary. Specific Federal
and State laws and the terms of this Contract,in that order respectively,supersede other inconsistent provisions.These
Contract Documents are on file in the Office of the Purchasing Manager, 129 No. 2nd St.,Yakima,WA,98901, and are
hereby incorporated by reference into this Contract.
18. Termination
Termination for Cause: The City may terminate the Contract after providing the Contractor with thirty (30)
calendar days written notice of the Contractor's right to cure a failure of the Contractor to perform under
the terms of this Contract.
The Contractor may terminate the Contract after providing the City sixty(60)calendar days' notice of the
City's right to cure a failure of the City to perform under the terms of the Contract.
Upon the termination of the Contract for any reason, or upon Contract expiration, each party shall be
released from all obligations to the other party arising after the date of termination or expiration, except
for those that by their terms survive such termination or expiration
Termination for Convenience: Either party may terminate the Contract at any time,without cause,by providing
a written notice; the City by providing at least thirty(30)calendar days' notice to the Contractor, and the
Contractor providing at least sixty(60)calendar days' notice to the City in advance of the intended date
of termination.
In the event of termination for convenience, the Contractor shall be entitled to receive compensation for
any fees owed under the Contract. The Contractor shall also be compensated for partially completed
services. In this event, compensation for such partially completed services shall be no more than the
percentage of completion of the services requested, at the sole discretion of the City, multiplied by the
corresponding payment for completion of such services as set forth in the Contract. 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 thirty(30) days of written notice to the Contractor requesting the refund.
Contract Cancellation: The City reserves the right to cancel the Contract in whole or in part without penalty if
the Contractor:
a. Breaches or defaults an obligation under the Contract;
b. Fails to perform any material obligation required under the Contract;
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;
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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
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
Contract;
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
m. Change in Funding: If the funds upon which the City relied to establish this Contract are withdrawn,
reduced, or limited, or if additional or modified conditions are placed on such funding, the City may
terminate this Contract by providing at least five business days written notice to the Contractor. The
termination shall be effective on the date specified in the notice of termination.
19. 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 afore mentioned
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.
20. Substitution
The Contractor shall not substitute or deviate from said specifications of this Contract without a written agreement
amendment, signed by the City Manager, or pursuant to Section 53 below entitled "Change or Notice". Any violation
of this procedure by the Contractor will be considered cause for immediate cancellation of the Contract for cause by
the City.
21. Contractor Shall Furnish
Except as otherwise specifically provided in this Contract, Contractor shall furnish the following, all as the same may
be required to perform the services described in Exhibit A, in accordance with this Contract: personnel, labor and
supervision; and technical, professional and other services. All such services, property and other items furnished or
required to be furnished,together with all other obligations performed or required to be performed, by Contractor under
this Contract are sometime collectively referred to in this Contract as the"(Services)."
22. Complementary Provisions
All provisions of this Contract 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 Contract, 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 Contract.
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23. 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 invoice. To insure prompt payment, each invoice should cite purchase order number, RFP number,
description of item purchased, 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:
Robert Peterson, Airport Director
Yakima Air Terminal-McAllister Field
2406 W.Washington Ave, Suite B
Yakima,WA 98903
24. 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.
25. Delegation of Professional Services
The services provided for herein shall be performed by Contractor, and no person other than regular associates or
employees of Contractor shall be engaged on such work or services. 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 Contract. 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. 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 Contract. Subject to compliance with the requirements of this Contract, Contractor
shall perform the services in accordance with its own methods.
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26. 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 Contract.
27. 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 Contract.
In the event the City is assessed a tax or assessment as a result of this Contract, Contractor shall pay the same before
it becomes due.
The City and its agencies are exempt from payment of all federal excise taxes and,but not sales tax(currently at 8.2%).
Tax will not be considered in determining which proposal is the lowest or best, however RCW 39.30.040 allows the
City to take any sales tax and B&O tax that is will receive from purchasing supplies, materials and equipment within its
boundaries into consideration when determining the lowest responsible Proposer.
28. Inspection: Examination of Records
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 Contract, 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.
29. 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.
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 for a period of not less than three(3) years after final payment is made.
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30. 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 Contract, 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 Contract and who have been apprised of, and agree to maintain, the confidential nature of such
information in accordance with the terms of this Contract.
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 Contract, and shall return or destroy said Confidential Information as directed by the City in writing.
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.
31. Price Increases
If requested by the Contractor in writing thirty(30) days before the anniversary date of each year of the contract, the
City will consider increasing the Contractor's rates per the Seattle-Tacoma-Bremerton Consumer Price Index for Urban
Wage Earners and Clerical Workers(CPI-W)for the previous twelve months. The City,in its sole discretion,will decide
whether to approve or deny the rate increase request or any part thereof within 30 days of receipt of the request. If
approved, increase shall take effect 30 days after approval.
Price increases for any other justifiable reason will be considered on a case-by-case basis. Price increase requests
will not be considered or granted until any outstanding required financial reports have been submitted to the City. [OR
Enter price Increase clause that best fits your service]
The rates and discounts shown on proposal shall be consistently applied and remain firm throughout the first twelve
months of the contract. If requested by the Contractor, on the anniversary date of the contract, labor rates may be
adjusted per the West C, Urban Wage Earners and Clerical Workers Consumer Price Index --50,000 to 330,000
populations for the next year's contract term,if the City agrees to the request. No discount adjustments will be allowed.
32. Suspension of Work
The City may suspend, in writing, all or a portion of the Service under this Agreement if unforeseen circumstances
beyond the City's control are interfering with normal progress of the Service. The Contractor may suspend, in writing
by via email or certified mail, all or a portion of the Service under this Agreement if unforeseen circumstances beyond
Contractor's control are interfering with normal progress of the Service. The Contractor may suspend Service on the
Project in the event the City does not pay invoices when due, except where otherwise provided by this Agreement.
The time for completion of the Service shall be extended by the number of days the Service is 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 Service on the suspended portion of Project in accordance with Section 18.
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33. 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 Contract 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.
34. 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 without the prior written consent of the City. In the event that such prior written
consent to an assignment is granted,then the assignee shall assume all duties,obligations,and liabilities of Contractor
stated herein.
35. No Conflict of Interest
Contractor represents that it or its employees do not have any interest and shall not hereafter acquire any interest,
director indirect,which would conflict in any manner or degree with the performance of this Contract. Contractor further
covenants that it will not hire anyone or any entity having such a conflict of interest during the performance of this
Contract.
36. Material Safety Data Sheet
If any item(s)on an order(s) resulting from this award(s)is a hazardous chemical,as defined under 29CFR 1910.1200,
provide one(1)copy of a Material Safety Data Sheet for each item with the shipped container(s)and one(1)copy with
the invoice(s).
37. 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.
38. Promotional Advertising 1 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. Release of broadcast e-mails pertaining to this procurement shall not be made without prior
written authorization of the contracting agency.
39. Time is of the Essence
Timely provision of the services required under this Contract shall be of the essence of the Contract, including the
provision of the services within the time agreed or on a date specified herein.
Page 11 of 27
40. Expansion clause
Any resultant contract may be further expanded by the Purchasing Manager in writing to include any other item/service
normally offered by the Contractor, as long as the price of such additional products is based on the same cost/profit
formula as the listed item/service. At any time during the term of this contract, other City departments may be added
to this contract, if both parties agree.
41. Patent Infringement
The contractor selling to the City the articles described herein guarantees the articles were manufactured or produced
in accordance with applicable federal labor laws. Further, that the sale or use of the articles described herein will not
infringe any United States patent. The contractor covenants that it will at its own expense defend every suit which shall
be brought against the City(provided that such contractor is promptly notified of such suit, and all papers therein are
delivered to it)for any alleged infringement of any patent by reason of the sale or use of such articles, and agrees that
it will pay all costs,damages, and profits recoverable in any such suit.
42. Ownership
All material produced as a result of this Contract shall be the exclusive property of the City. Additionally,the City shall
have unrestricted authority to reproduce, distribute, and use any submitted report, template,data,or material,and any
associated documentation that is designed or developed and delivered to the Agency as part of the performance of the
Contract.
43. Safety Requirements
All materials,equipment, and supplies provided to the City must comply fully with all safety requirements,federal,state
and local laws,ordinances, rules, regulations as set forth by the State of Washington RCW's,WAC's and all applicable
OSHA Standards.
44. Access and Review of Contractor's Facilities
The City may visit and view any of the offices, premises, facilities and vehicles of the Contractor and/or Contractor's
Subcontractor upon request and reasonable notice during the term of the Contract and Contract renewals/extensions.
45. Notice of Change in Financial Condition
If, during the Contract Term, the Contractor experiences a change in its financial condition that may affect its ability to
perform under the Contract, or experiences a change of ownership or control, the Contractor shall immediately notify
the 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 Contract termination.
46. Facility Security
The City may prohibit entry to any secure facility,or remove from the facility,a Contract employee who does not perform
his/her duties in a professional manner, or who violates the secure facility's security rules and procedures. The City
reserves the right to search any person, property, or article entering its facilities.
47. Waiver of Breach
A waiver by either party hereto of a breach of the other party hereto of any covenant or condition of this Contract 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 Contract,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.
Page 12 of 27
48. Integration
This Contract, 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
Contract may not be modified or altered except in writing signed by both parties.
49. Force Majeure
Contractor will not be responsible for delays in delivery due to acts of God, fire, strikes, epidemics, 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 or God, etc.)the date of delivery will be extended for
a period equal to the time lost due to the reason for delay.
50. Governing Law
This Contract shall be governed by and construed in accordance with the laws of the State of Washington.
51. Venue
The venue for any judicial action to enforce or interpret this Contract shall lie in a court of competent jurisdiction in
Yakima County, Washington.
52. Authority
The person executing this Contract,on behalf of Contractor,represents and warrants that he/she has been fully authorized
by Contractor to execute this Contract on its behalf and to legally bind Contractor to all the terms, performances and
provisions of this Contract.
53. Change or Notice
Any alterations made to the Contract 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 Contract.
The City shall have the right to renegotiate the terms and conditions of this Contract to the extent required to
accommodate a change in governing 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 Contract impossible,patently unreasonable,or unnecessary. Notices and demands under and related
to this Contract shall be in writing and sent to the parties at their addresses as follows:
TO CITY AND ALSO TO: TO CONTRACTOR:
Purchasing Manager David Becher
City of Yakima Director of Research
129 North 2nd street 4770 Baseline Rd., Suite 360
Yakima,WA 98901 Boulder, CO 80303
Page 13 of 27
54. Survival
The foregoing sections of this Contract, 2-53 inclusive, shall survive the expiration or termination of this Contract in
accordance with their terms.
IN WITNESS WHEREOF,the parties hereto execute this Contract as of the day and year first above written.
CITY OF YAKIMA RRC ASSOCIATES
144 By:
Alex Mey rhoff, Interim Ci anager David Becher, Director of Research
303-396-1611 david@rrcassociates.com
Date: �' �� Date: _January 6,2020
David Becher
Attest: Print name)
City ClerkLY . ,'�
IA
STATE OF �, i ),�
COUNTY OF,
CITY CONTRACT NO: I
RESOLUTION NO:
Page 14 of 27
EXHIBIT A
PASSENGER MARKET SURVEY
SCOPE OF WORK
1. YKM passenger survey: Similar to 2012,this would be a survey administered to departing
passengers at YKM. Last time,the survey was on paper, and was distributed by YKM staff to
passengers. This time, subject to discussions with YKM, we could consider either replicating the
previous methodology, or employing a hybrid methodology of a WIFI login survey and a paper
survey handed out by staff and/or made available to passengers to pick up and complete (e.g.via a
kiosk or table with signage and dropbox set up in the passenger waiting area). RRC would work
with you and YKM staff to choose the methodology and update the survey to address current issues
(while retaining several questions for comparability to 2012). We would summarize the results in a
.pptx (comparing this year and 2012 and/or other examining other segments) as part of the
Summary Report (item 5 below), and provide supporting crosstabs and comments in an appendix.
2. YKM business survey: Also similar to 2012, Yakima area businesses would be invited to take an
online survey regarding use of and opinions regarding YKM. RRC would update the survey in
consultation with Airplanners and YKM staff. Email invites to the business community would be
handled by YKM or its business partners. RRC would analyze and summarize the results as part of
the Summary Report(item 5 below), again comparing 2019 and 2012 results.
3. Yakima County resident airport usage patterns/ARC data: Again, similar to 2012, RRC would
purchase a database of Yakima County resident air travel itineraries from the Airlines Reporting
Corporation, and use it especially to analyze originating airport market shares(e.g. YKM, PSC, SEA),
as well as destinations by originating airport; and compare results to 2012.
4. PSC passenger origin, per device mobility data: RRC would purchase and analyze a database
showing the geographic origin (i.e. common evening location and common daytime location) of
cellphones and other digital devices identified as spending time in the Tri-Cities Airport terminal
passenger waiting area over the most recent available 12 months.The data would provide an
indication of the catchment area of PSC and the degree of passenger leakage from Yakima County
to PSC. Subject to confirmation,the data should also contain the "PRIZM" categories of PSC
passengers (i.e. 68 lifestage and social groups defined on the basis of affluence, urbanicity of
residence, age of householder, and presence of children in the home, among other factors.)
5. Summary report: RRC would pull key findings and observations from the above four sources into a
single summary report, similar to 2012.
Page 15 of 27
EXHIBIT B
ITEMIZED COST
(COMPENSATION)
1. Passenger survey: $3,600 (Note: this assumes utilization of either a paper survey
methodology or a wifi survey methodology. Implementing both methodologies in
combination would cost$1,800 more.)
2. Business survey: $3,600
3. ARC data: $3,800
4. PSC passenger origin: $3,000
5. Summary report: $1,800
TOTAL NOT TO EXCEED COST FOR SERVCIES:$15,800
Page 16 of 27
EXHIBIT C
2 CFR 200 PROCUREMENT STANDARDS WHEN UTILIZING FEDERAL FUNDS
Federal Funding
When spending Federal Funding, the City complies with and has a separate policy for "Uniform
Administrative Requirement, Cost Principals, and Audit Requirements for Federal Awards",
published in Title 2 of the Code of Federal Regulations, (2 CFR 200), specifically 2 CFR 200.318
through 200.326. ALL GRANTS ARE DIFFERENT, so one size does not fit all. Some grants simply
require you to use your own procurement rules, while others require you to insert their
contracting clauses into your contract.
2 CFR 200 Procurement Standards for when utilizing Federal Funds
(Adapted for City of Helena use to comply with 200.318 through 200.326)
200.318 General procurement standards.
200.319 Competition.
200.320 Methods of procurement to be followed.
200.321 Contracting with small and minority businesses, women's business enterprises, and labor
surplus area firms.
200.322 Procurement of recovered materials.
200.323 Contract cost and price.
200.324 Federal awarding agency or pass-through entity review.
200.325 Bonding requirements.
200.326 Contract provisions.
1. General procurement standards. (Adapted from §200.318)
A. Conform to Federal Law: The City uses its own documented procurement procedures which reflect
applicable State, local, laws and regulations, providing for procurements that conform to applicable
Federal law and the standards identified in these Procurement Standards.
B. Oversight: City Attorney shall maintain oversight when procuring Equipment, Materials, Services and
Limited Public Works, to ensure that contractors perform in accordance with the terms, conditions,
and specifications of their contracts or purchase orders.
C. Conflict of Interest: City maintains written standards of conduct covering conflicts of interest and
governing the actions of its employees engaged in the selection, award and administration of
contracts in the City. In addition, no employee, officer, or agent may participate in the selection,
award, or administration of a contract supported by a Federal award if he or she has a real or apparent
conflict of interest. Such a conflict of interest would arise when the employee, officer, or agent, any
member of his or her immediate family, his or her partner, or an organization which employs or is
about to employ any of the parties indicated herein, has a financial or other interest in or a tangible
personal benefit from a firm considered for a contract.
Page 17 of 27
The officers, employees, and agents of the City may neither solicit nor accept gratuities, favors, or
anything of monetary value from contractors or parties to subcontracts.
D. Organizational Conflicts of Interest: If the City has a parent, affiliate, or subsidiary organization that
is not a state, local government, or Indian tribe, the City maintains written standards of conduct
covering organizational conflicts of interest. Organizational conflicts of interest means that because
of relationships with a parent company, affiliate, or subsidiary organization, the City entity is unable
or appears to be unable to be impartial in conducting a procurement action involving a related
organization.
E. Most Economical Approach: The City must avoid acquisition of unnecessary or duplicative items.
Consideration should be given to consolidating or breaking out procurements to obtain a more
economical purchase. Where appropriate, an analysis will be made of lease versus purchase
alternatives, and any other appropriate analysis to determine the most economical approach.
F. Intergovernmental Procurements: To foster greater economy and efficiency, and in accordance with
efforts to promote cost-effective use of shared services across the Federal Government, the City is
encouraged to enter into state and local intergovernmental agreements or inter-entity agreements
where appropriate for procurement or use of common or shared goods and services.
G. Federal Surplus: The City is encouraged to use Federal excess and surplus property in lieu of
purchasing new equipment and property whenever such use is feasible and reduces project costs.
H. Value Engineering: The City is encouraged to use value engineering clauses in contracts for
construction projects of sufficient size to offer reasonable opportunities for cost reductions. Value
engineering is a systematic and creative analysis of each contract item or task to ensure that its
essential function is provided at the overall lower cost.
I. Responsible Contractor: The City must award contracts only to responsible contractors possessing
the ability to perform successfully under the terms and conditions of a proposed procurement.
Consideration will be given to such matters as contractor integrity, compliance with public policy,
record of past performance, and financial and technical resources. See also §200.213 Suspension
and debarment.
J. Records: The City must maintain records sufficient to detail the history of procurement. These
records will include, but are not necessarily limited to, the following: rationale for the method of
procurement, selection of contract type, contractor selection or rejection, and the basis for the
contract price.
K. Time and Materials Contracts: The City entity may use a time and materials type contract only after
a determination that no other contract is suitable and if the contract includes a ceiling price that the
contractor exceeds at its own risk. Time and materials type contract means a contract whose cost to
a City is the sum of:
i. The actual cost of materials; and
ii. Direct labor hours charged at fixed hourly rates that reflect wages, general and administrative
expenses, and profit.
L. Ceiling Price: Since this formula generates an open-ended contract price, a time-and-materials
contract provides no positive profit incentive to the contractor for cost control or labor efficiency.
Therefore, each contract must set a ceiling price that the contractor exceeds at its own risk. Further,
Page 18 of 27
the City awarding such a contract must assert a high degree of oversight in order to obtain reasonable
assurance that the contractor is using efficient methods and effective cost controls.
M. Issues: The City alone must be responsible, in accordance with good administrative practice and
sound business judgment, for the settlement of all contractual and administrative issues arising out
of procurements. These issues include, but are not limited to, source evaluation, protests, disputes,
and claims. These standards do not relieve the City of any contractual responsibilities under its
contracts. The Federal awarding agency will not substitute its judgment for that of the City unless the
matter is primarily a Federal concern. Violations of law will be referred to the local, state, or Federal
authority having proper jurisdiction.
[78 FR 78608, Dec. 26, 2013, as amended at 79 FR 75885, Dec. 19, 2014; 80 FR 43309, July 22, 2015]
2. Competition. (Adapted from §200.319)
A. Full and Open Competition: All procurement transactions must be conducted in a manner providing
full and open competition consistent with the standards of this section. In order to ensure objective
contractor performance and eliminate unfair competitive advantage, contractors that develop or draft
specifications, requirements, statements of work, or invitations for bids or requests for proposals must
be excluded from competing for such procurements. Some of the situations considered to be
restrictive of competition include but are not limited to:
B. Unreasonable Requirements: Placing unreasonable requirements on firms in order for them to
qualify to do business;
C. Unnecessary Experience and Bonding: Requiring unnecessary experience and excessive bonding;
D. Noncompetitive Pricing: Noncompetitive pricing practices between firms or between affiliated
companies;
E. Noncompetitive Contracts: Noncompetitive contracts to consultants that are on retainer contracts;
F. Organizational conflicts of interest:
G. Brand Name: Specifying only a "brand name" product instead of allowing "an equal" product to be
offered and describing the performance or other relevant requirements of the procurement; and
H. Arbitrary Actions: Any arbitrary action in the procurement process.
I. Geographical Preferences: The City will conduct procurements in a manner that prohibits the use of
statutorily or administratively imposed state, local, or tribal geographical preferences in the evaluation
of bids or proposals, except in those cases where applicable Federal statutes expressly mandate or
encourage geographic preference. Nothing in this section preempts state licensing laws. When
contracting for architectural and engineering (NE) services, geographic location may be a selection
criterion provided its application leaves an appropriate number of qualified firms, given the nature
and size of the project, to compete for the contract.
J. The City ensures that all solicitations:
Page 19 of 27
i. Incorporate a clear and accurate description of the technical requirements for the material,
product, or service to be procured. Such description must not, in competitive procurements,
contain features which unduly restrict competition. The description may include a statement
of the qualitative nature of the material, product or service to be procured and, when
necessary, must set forth those minimum essential characteristics and standards to which it
must conform if it is to satisfy its intended use. Detailed product specifications should be
avoided if at all possible. When it is impractical or uneconomical to make a clear and accurate
description of the technical requirements, a "brand name or equivalent" description may be
used as a means to define the performance or other salient requirements of procurement. The
specific features of the named brand which must be met by offers must be clearly stated; and
ii. Identify all requirements which the offerors must fulfill and all other factors to be used in
evaluating bids or proposals.
iii. The City ensures that all prequalified lists of persons, firms, or products which are used in
acquiring goods and services are current and include enough qualified sources to ensure
maximum open and free competition. Also, the City must not preclude potential bidders from
qualifying during the solicitation period.
[78 FR 78608, Dec. 26, 2013, as amended at 79 FR 75885, Dec. 19, 2014]
3. Methods of procurement to be followed. (Adapted from §200.320 )
The City must use one of the following methods of procurement.
A. Procurement by micro-purchases. Procurement by micro-purchase is the acquisition of supplies or
services, the aggregate dollar amount of which does not exceed the micro-purchase threshold
(§200.67 Micro-purchase). To the extent practicable, the City must distribute micro-purchases
equitably among qualified suppliers. Micro-purchases may be awarded without soliciting competitive
quotations if the City considers the price to be reasonable.
B. Procurement by small purchase procedures. Small purchase procedures are those relatively simple
and informal procurement methods for securing services, supplies, or other property that do not cost
more than the Simplified Acquisition Threshold. If small purchase procedures are used, price or rate
quotations must be obtained from an adequate number of qualified sources.
C. Procurement by sealed bids (formal advertising). Bids are publicly solicited and a firm fixed price
contract(lump sum or unit price) is awarded to the responsible bidder whose bid, conforming with all
the material terms and conditions of the invitation for bids, is the lowest in price. The sealed bid
method is the preferred method for procuring construction, if the conditions in paragraph (C)(i) of this
section apply.
i. In order for sealed bidding to be feasible, the following conditions should be present:
1) A complete, adequate, and realistic specification or purchase description is available;
2) Two or more responsible bidders are willing and able to compete effectively for the
business; and
3) The procurement lends itself to a firm fixed price contract and the selection of the
successful bidder can be made principally on the basis of price.
Page 20 of 27
4) If sealed bids are used, the following requirements apply:
a) Bids must be solicited from an adequate number of known suppliers, providing
them sufficient response time prior to the date set for opening the bids (11 days
for the City in 2 issues and 13 days for the County in 2 issues). The invitation for
bids must be publicly advertised;
b) The invitation for bids, which will include any specifications and pertinent
attachments, must define the items or services in order for the bidder to properly
respond;
c) All bids will be opened at the time and place prescribed in the invitation for bids,
and opened publicly;
d) A firm fixed price contract award will be made in writing to the lowest responsive
and responsible bidder. Where specified in bidding documents, factors such as
discounts, transportation cost, and life cycle costs must be considered in
determining which bid is lowest. Payment discounts will only be used to determine
the low bid when prior experience indicates that such discounts are usually taken
advantage of; and
e) Any or all bids may be rejected if there is a sound documented reason.
D. Procurement by competitive proposals. The technique of competitive proposals is normally
conducted with more than one source submitting an offer, and either a fixed price or cost-
reimbursement type contract is awarded. It is generally used when conditions are not appropriate for
the use of sealed bids. If this method is used, the following requirements apply:
i. Requests for proposals must be publicized and identify all evaluation factors and their
relative importance. Any response to publicized requests for proposals must be considered
to the maximum extent practical;
ii. Proposals must be solicited from an adequate number of qualified sources;
iii. The City must have a written method for conducting technical evaluations of the proposals
received and for selecting recipients;
iv. Contracts must be awarded to the responsible firm whose proposal is most advantageous
to the program, with price and other factors considered; and
v. The City may use competitive proposal procedures for qualifications-based procurement
of architectural/engineering (NE) professional services whereby competitors'qualifications
are evaluated and the most qualified competitor is selected, subject to negotiation of fair
and reasonable compensation. The method, where price is not used as a selection factor,
can only be used in procurement of NE professional services. It cannot be used to
purchase other types of services though NE firms are a potential source to perform the
proposed effort.
vi. Procurement by noncompetitive proposals. Procurement by noncompetitive proposals is
procurement through solicitation of a proposal from only one source and may be used only
when one or more of the following circumstances apply:
1)The item is available only from a single source;
Page 21 of 27
2)The public exigency or emergency for the requirement will not permit a delay resulting
from competitive solicitation;
3)The Federal awarding agency or pass-through entity expressly authorizes
noncompetitive proposals in response to a written request from the City; or
4)After solicitation of a number of sources, competition is determined inadequate.
[78 FR 78608, Dec. 26, 2013, as amended at 79 FR 75885, Dec. 19, 2014; 80 FR 54409, Sept. 10, 2015]
4. Contracting with small and minority businesses, women's business enterprises, and labor surplus area
firms. (Adapted from §200.321)
A. The City must take all necessary affirmative steps to assure that minority businesses, women's
business enterprises, and labor surplus area firms are used when possible.
B. Affirmative steps must include:
i. Placing qualified small and minority businesses and women's business enterprises on
solicitation lists (forward requests to Purchasing);
ii. Assuring that small and minority businesses, and women's business enterprises are
solicited whenever they are potential sources.
iii. Dividing total requirements, when economically feasible, into smaller tasks or quantities to
permit maximum participation by small and minority businesses, and women's business
enterprises;
iv. Establishing delivery schedules, where the requirement permits, which encourage
participation by small and minority businesses, and women's business enterprises;
v. Using the services and assistance, as appropriate, of such organizations as the Small
Business Administration and the Minority Business Development Agency of the
Department of Commerce, and Montana Department of Transportation
https://www.mdt.mt.gov/business/contracting/civil/dbe.shtml.; and
vi. Requiring the prime contractor, if subcontracts are to be let, to take the affirmative steps
listed in paragraphs (i) through (ii) of this section.
5. Procurement of recovered materials. (Adapted from §200.322 )
The City must comply with section 6002 of the Solid Waste Disposal Act, as amended by the Resource
Conservation and Recovery Act. The requirements of Section 6002 include procuring only items designated
in guidelines of the Environmental Protection Agency (EPA) at 40 CFR part 247 that contain the highest
percentage of recovered materials practicable, consistent with maintaining a satisfactory level of
competition, where the purchase price of the item exceeds $10,000 or the value of the quantity acquired
during the preceding fiscal year exceeded $10,000; procuring solid waste management services in a
manner that maximizes energy and resource recovery; and establishing an affirmative procurement
program for procurement of recovered materials identified in the EPA guidelines.
Page 22 of 27
[78 FR 78608, Dec. 26, 2013, as amended at 79 FR 75885, Dec. 19, 2014]
6. Contract cost and price. (Adapted from §200.323)
A. The City must perform a cost or price analysis in connection with every procurement action in excess
of the Simplified Acquisition Threshold including contract modifications. The method and degree of
analysis is dependent on the facts surrounding the particular procurement situation, but as a starting
point, the City must make independent estimates before receiving bids or proposals.
B. The City must negotiate profit as a separate element of the price for each contract in which there is
no price competition and in all cases where cost analysis is performed. To establish a fair and
reasonable profit, consideration must be given to the complexity of the work to be performed, the risk
borne by the contractor, the contractors investment, the amount of subcontracting, the quality of its
record of past performance, and industry profit rates in the surrounding geographical area for similar
work.
C. Costs or prices based on estimated costs for contracts under the Federal award are allowable only
to the extent that costs incurred or cost estimates included in negotiated prices would be allowable
for the City. The City may reference its own cost principles that comply with the Federal cost
principles.
D. The cost plus a percentage of cost and percentage of construction cost methods of contracting must
not be used.
7. Federal awarding agency or pass-through entity review. (Adapted from §200.324)
A. The City must make available, upon request of the Federal awarding agency or pass-through entity,
technical specifications on proposed procurements where the Federal awarding agency or pass-
through entity believes such review is needed to ensure that the item or service specified is the one
being proposed for acquisition. This review generally will take place prior to the time the specification
is incorporated into a solicitation document. However, if the City desires to have the review
accomplished after a solicitation has been developed, the Federal awarding agency or pass-through
entity may still review the specifications, with such review usually limited to the technical aspects of
the proposed purchase.
B. The City must make available upon request, for the Federal awarding agency or pass-through entity
pre-procurement review, procurement documents, such as requests for proposals or invitations for
bids, or independent cost estimates, when:
i. The City's procurement procedures or operation fails to comply with the procurement
standards in this part;
ii. The procurement is expected to exceed the Simplified Acquisition Threshold and is to be
awarded without competition or only one bid or offer is received in response to a solicitation;
iii. The procurement, which is expected to exceed the Simplified Acquisition Threshold,
specifies a "brand name" product;
iv. The proposed contract is more than the Simplified Acquisition Threshold and is to be
awarded to other than the apparent low bidder under a sealed bid procurement; or
Page 23 of 27
v. A proposed contract modification changes the scope of a contract or increases the contract
amount by more than the Simplified Acquisition Threshold.
C. The City is exempt from the pre-procurement review in paragraph (ii) of this section if the Federal
awarding agency or pass-through entity determines that its procurement systems comply with the
standards of this part.
D. The City may request that its procurement system be reviewed by the Federal awarding agency or
pass-through entity to determine whether its system meets these standards in order for its system to
be certified. Generally, these reviews must occur where there is continuous high-dollar funding, and
third party contracts are awarded on a regular basis;
E. The City may self-certify its procurement system. Such self-certification must not limit the Federal
awarding agency's right to survey the system. Under a self-certification procedure, the Federal
awarding agency may rely on written assurances from the City that it is complying with these
standards. The City must cite specific policies, procedures, regulations, or standards as being in
compliance with these requirements and have its system available for review.
8. Bonding requirements. (Adapted from §200.325)
For construction or facility improvement contracts or subcontracts exceeding the Simplified Acquisition
Threshold, the Federal awarding agency or pass-through entity may accept the bonding policy and
requirements of the City provided that the Federal awarding agency or pass-through entity has made a
determination that the Federal interest is adequately protected. If such a determination has not been made,
the minimum requirements must be as follows:
A. A bid guarantee from each bidder equivalent to five percent of the bid price. The"bid guarantee" must
consist of a firm commitment such as a bid bond, certified check, or other negotiable instrument
accompanying a bid as assurance that the bidder will, upon acceptance of the bid, execute such
contractual documents as may be required within the time specified.
B. A performance bond on the part of the contractor for 100 percent of the contract price.A"performance
bond" is one executed in connection with a contract to secure fulfillment of all the contractor's
obligations under such contract.
C. A payment bond on the part of the contractor for 100 percent of the contract price. A"payment bond"
is one executed in connection with a contract to assure payment as required by law of all persons
supplying labor and material in the execution of the work provided for in the contract.
9. Federal Contract provisions. (Adapted from §200.326)
The City's contracts utilizing Federal Funding must contain the applicable provisions described in Appendix
II to Part 200—Contract Provisions for City Contracts Under Federal Awards, which can be viewed and
copied at:
http://federal.elaws.us/cfr/title2.chapterii.part200.appii
In addition to other provisions required by the Federal agency or non-Federal entity, all contracts made by the
non-Federal entity under the Federal award must contain provisions covering the following, as applicable.
{ Page 24 of 27
(A) Contracts for more than the simplified acquisition threshold currently set at$150,000, which is the
inflation adjusted amount determined by the Civilian Agency Acquisition Council and the Defense Acquisition
Regulations Council (Councils)as authorized by 41 U.S.C. 1908, must address administrative, contractual, or
legal remedies in instances where contractors violate or breach contract terms, and provide for such sanctions
and penalties as appropriate.
(B)All contracts in excess of$10,000 must address termination for cause and for convenience by the non-
Federal entity including the manner by which it will be effected and the basis for settlement.
(C) Equal Employment Opportunity. Except as otherwise provided under 41 CFR Part 60, all contracts that
meet the definition of"federally assisted construction contract" in 41 CFR Part 60-1.3 must include the equal
opportunity clause provided under 41 CFR 60-1.4(b), in accordance with Executive Order 11246, "Equal
Employment Opportunity"(30 FR 12319, 12935, 3 CFR Part, 1964-1965 Comp., p. 339), as amended by
Executive Order 11375, "Amending Executive Order 11246 Relating to Equal Employment Opportunity,"and
implementing regulations at 41 CFR part 60, "Office of Federal Contract Compliance Programs, Equal
Employment Opportunity, Department of Labor."
(D) Davis-Bacon Act, as amended(40 U.S.C. 3141-3148). When required by Federal program legislation,all
prime construction contracts in excess of$2,000 awarded by non-Federal entities must include a provision for
compliance with the Davis-Bacon Act(40 U.S.C. 3141-3144, and 3146-3148)as supplemented by Department
of Labor regulations(29 CFR Part 5,"Labor Standards Provisions Applicable to Contracts Covering Federally
Financed and Assisted Construction"). In accordance with the statute, contractors must be required to pay
wages to laborers and mechanics at a rate not less than the prevailing wages specified in a wage determination
made by the Secretary of Labor. In addition, contractors must be required to pay wages not less than once a
week. The non-Federal entity must place a copy of the current prevailing wage determination issued by the
Department of Labor in each solicitation. The decision to award a contract or subcontract must be conditioned
upon the acceptance of the wage determination. The non-Federal entity must report all suspected or reported
violations to the Federal awarding agency. The contracts must also include a provision for compliance with the
Copeland"Anti-Kickback"Act(40 U.S.C. 3145), as supplemented by Department of Labor regulations(29
CFR Part 3, "Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in Part
by Loans or Grants from the United States"). The Act provides that each contractor or subrecipient must be
prohibited from inducing, by any means, any person employed in the construction, completion, or repair of
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public work,to give up any part of the compensation to which he or she is otherwise entitled. The non-Federal
entity must report all suspected or reported violations to the Federal awarding agency.
(E)Contract Work Hours and Safety Standards Act(40 U.S.C. 3701-3708). Where applicable, all contracts
awarded by the non-Federal entity in excess of$100,000 that involve the employment of mechanics or laborers
must include a provision for compliance with 40 U.S.C. 3702 and 3704, as supplemented by Department of
Labor regulations(29 CFR Part 5). Under 40 U.S.C. 3702 of the Act, each contractor must be required to
compute the wages of every mechanic and laborer on the basis of a standard work week of 40 hours. Work in
excess of the standard work week is permissible provided that the worker is compensated at a rate of not less
than one and a half times the basic rate of pay for all hours worked in excess of 40 hours in the work week.
The requirements of 40 U.S.C. 3704 are applicable to construction work and provide that no laborer or
mechanic must be required to work in surroundings or under working conditions which are unsanitary,
hazardous or dangerous. These requirements do not apply to the purchases of supplies or materials or articles
ordinarily available on the open market, or contracts for transportation or transmission of intelligence.
(F) Rights to Inventions Made Under a Contract or Agreement. If the Federal award meets the definition of
"funding agreement" under 37 CFR §401.2(a)and the recipient or subrecipient wishes to enter into a contract
with a small business firm or nonprofit organization regarding the substitution of parties, assignment or
performance of experimental, developmental, or research work under that"funding agreement,"the recipient
or subrecipient must comply with the requirements of 37 CFR Part 401, "Rights to Inventions Made by
Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative
Agreements,"and any implementing regulations issued by the awarding agency.
(G)Clean Air Act(42 U.S.C. 7401-7671q.)and the Federal Water Pollution Control Act(33 U.S.C. 1251-
1387), as amended—Contracts and subgrants of amounts in excess of$150,000 must contain a provision that
requires the non-Federal award to agree to comply with all applicable standards, orders or regulations issued
pursuant to the Clean Air Act(42 U.S.C. 7401-7671q)and the Federal Water Pollution Control Act as
amended(33 U.S.C. 1251-1387). Violations must be reported to the Federal awarding agency and the Regional
Office of the Environmental Protection Agency(EPA).
(H) Debarment and Suspension(Executive Orders 12549 and 12689)—A contract award(see 2 CFR 180.220)
must not be made to parties listed on the governmentwide exclusions in the System for Award Management
(SAM), in accordance with the OMB guidelines at 2 CFR 180 that implement Executive Orders 12549 (3 CFR
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i
part 1986 Comp., p. 189)and 12689(3 CFR part 1989 Comp., p. 235), "Debarment and Suspension."SAM
Exclusions contains the names of parties debarred, suspended, or otherwise excluded by agencies, as well as
parties declared ineligible under statutory or regulatory authority other than Executive Order 12549.
(1) Byrd Anti-Lobbying Amendment(31 U.S.C. 1352) Contractors that apply or bid for an award exceeding
$100,000 must file the required certification. Each tier certifies to the tier above that it will not and has not
used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an
officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of
a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by
31 U.S.C. 1352. Each tier must also disclose any lobbying with non-Federal funds that takes place in
connection with obtaining any Federal award. Such disclosures are forwarded from tier to tier up to the non-
Federal award.
(J) See §200.322 Procurement of recovered materials.
[78 FR 78608, Dec. 26, 2013, as amended at 79 FR 75888, Dec. 19, 2014]
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