HomeMy WebLinkAboutCBRE | Heery - Professional Services Agreement PROFESSIONAL SERVICES AGREEMENT
Commissioning Services
For Yakima Center North Expansion
THIS PROFESSIONAL SERVICES AGREEMENT, entered into this I I day of '"la►tit ,2020, between the
City of Yakima,a Washington municipal corporation("City"),and CBRE I HEERY,("Contractor").
WITNESSETH: The parties, in consideration of the terms and conditions herein,do hereby covenant and agree as
follows:
4. Statement of Work
The minimum services that the Contractor will provide include services described in the Request for Proposals which
is attached as Exhibit A 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 Contractor's Proposal, including fee schedule of itemized prices in the manner and upon the conditions
provided for the Contract.
3. Contract Term
The period of this Contract shall be from date of execution until March 27,2021,with the provision that the term may
be extended until such time that the project reaches completion and final acceptance.
4. Changes
Any proposed change in this Contract shall be submitted to the other party for its prior written approval. If approved,
the 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 prepared for and funded by the City hereunder
will at all times be the property of the City and shall be surrendered to the City upon demand. Notwithstanding any
provision hereof to the contrary, all methodologies, systems, procedures, management tools, software, ideas,
inventions, know-how and other intellectual capital that Contractor has developed, created or acquired prior to
performing Services under this Agreement (Contractor's Intellectual Capital"), are and shall remain the sole and
exclusive proprietary property of Contractor,and City shall not have or acquire any right,claim,title or interest in or to
any of Contractor's Intellectual Capital. All information concerning the City and said project which is not otherwise a
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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.
S. 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. Provided such is prepared for and funded by 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 that any goods and deliverables provided in connection with 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.
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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).
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 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,
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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.
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 stated below,as applicable.
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 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. The City, its elected and appointed officials, employees,
agents,attorneys and volunteers shall be included on the certificate of insurance as additional insureds
to the extent of loss attributable to the Contractor. 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 include the City of Yakima,its
elected and appointed officials,employees,agents,attorneys and volunteers as additional insureds. The
insurer will not cancel or change the insurance without Contractor 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
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' I
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 Contract is fully executed by the parties,Contractor shaft provide the City with a certificate of
insurance as proof of automobile liability insurance with a liability limit of Two Million Dollars
($2,000,000.00) per occurrence. The City, its elected and appointed officials, employees, agents,
attorneys and volunteers shall be included on the certificate of insurance as additional insureds to the
extent of loss attributable to the Contractor. 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 include the City of Yakima, its
elected and appointed officials,employees,agents,attorneys and volunteers as additional insureds. The
insurer will not cancel or change the insurance without Contractor 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. 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$1,000,000.00. The City shall
not be held responsible in any way for claims filed by Contractor's 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) under contract with
Contractor. 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.
d. 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 liability limit of Two Million Dollars($2,000,000.00)per claim combined single limit bodily
injury and property damage, and Two Million Dollars ($2,000,000.00)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 Contract.
Contractor's insurance coverage shall be primary insurance with respect to those who are Additional Insureds under
this Contract to the extent of loss attributable to the Contractor. 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.
Contractor's insurance shall not be called upon to respond to or cover claims or losses that arose solely as a result of
the negligence of the City or any additional insured.
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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.
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.
Contractor and City each hereby waives,for itself and its affiliates,right of recovery,and agrees that no third party shall
have any right of recovery by way of subrogation,assignment or otherwise,against the other Party or its affiliates with
regard to losses or claims insured against under this Agreement.
The City shall maintain or as to subpart(b)cause others on its behalf to maintain(a)commercially reasonable amounts
of commercial general liability insurance covering the City's negligence,and (b)'all risk"property insurance for the
Project on a replacement value basis.
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, the Request for Proposals 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
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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. Breathes 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;
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. Re-Award
When the contract is terminated by the Contractor upon providing the written notice as herein required, the City,
pursuant to City ordinance,may re-award the contract to the next most responsible Proposer.
When a Contractor is unable to supply goods and/or services to the City and is in breach of the contract,or when the
contract is terminated by the City for cause as herein provided,the City reserves the right to re-award the contract to
the next most responsible Proposer
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21. Substitution
The Contractor shall not substitute or deviate from said specifications of this Contract without a written amendment,
signed by the City Manager,or pursuant to Section 58 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.
22. 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 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)."
23. 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.
24. 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:"RFQP 11920Q,Project Management for
Yakima Center N.Expansion";purchase order number, percentage of project completion;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:
Yakima Convention Center
Attn: Connie Upton,General Manager
10 North 80 Street
Yakima,WA 98901
25. Credit Card Acceptance
The City, in its sole discretion, will determine the method of payment for goods and/or services as part of this
agreement. The City's preferred method of payment is by procurement(credit)card. Proposers may be required to
have the capability of accepting the City's authorized procurement card as a method of payment. No price changes or
additional fee(s)may be assessed when accepting the procurement card as a form of payment.
26. 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.
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27. 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.
28. Licenses
If applicable, Contractor shall have a valid and current business license per Chapter 5.02 Section 5.02.010 of the
Yakima Municipal Code covering this type of business and shall satisfy all applicable City Code provisions. Said license
shall be obtained prior to the award of any contract. Inquiries as to fees,etc.,should be made to the Office of Code
Administration,telephone(509)575-6121.
In addition,Contractors are required to be registered by the State per Chapter 18.27 of the Revised Code of Washington
and their registration number must be listed on the bid/RFP/quote.
Contractor shall take all reasonable precautions to protect against any bodily injury (including death) or property
damage that may occur in connection with the services.
29. 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.
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30. 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.
31. Contractor Tax Delinquency
Contractors who have a delinquent Washington tax liability may have their payments offset by the State of Washington.
32. 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.
33. 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.
34. ConfidentIIal,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.
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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.
35. Suspension of Work
The City may suspend,in writing by certified mail, 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 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.
36. 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 of care 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.
37. 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.
22008Q Convention Center N.Expansion Commissioning Services Page 11 of 16
38. 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 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.
39. 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.
40. Promotional Advertising I 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.
41. 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.
42. Expansion clause
Any resultant contract may be further expanded by the Purchasing Manager in writing to include any other item 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.
43. 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.
44. Safety Requirements
All materials, equipment, supplies, and services 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.
45. Warranty
Unless otherwise specifically stated by the Proposer,Contractor warrants that all goods and deliverables furnished
under this contract are warranted against defects by the Proposer for one (1) year from date of receipt, are new,
conform strictly to the specifications herein, are merchantable, good workmanship, free from defect, are fit for the
intended purpose of which such goods and deliverables are ordinarily employed and if a particular purpose is stated in
a Special Condition,the goods are then warranted as for that particular purpose. Contractor further warrants that no
violation of any federal,state or local law,statute,rule,regulation,ordinance or order will result from the manufacturer,
production, sale,shipment,installation or use of any other goods. Contractor's warranties(and any more favorable
warranties,service policies,or similar undertaking of Contractor)shall survive delivery,inspection,and acceptance of
the goods or services.
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46. 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.
47. 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.
48. 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.
49. 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.
50. Integration 2 O( Q 1111e-0^-
This Contract, along with the City of Yakima's RFQ 444320Q and the Contractor's response to the Request for
Qualifications("RFQ"),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.
51. 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.
52. Goveming Law .
This Contract shall be governed by and construed in accordance with the laws of the State of Washington.
53. 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.
54. 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.
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55. 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:
Connie Upton Maria Mayhue Dennis Lawler
General Manager Acting Purchasing Manager Senior Managing Director
Yakima Convention Center City of Yakima CBRE I Heery
10 North 8th Street 129 North 2nd street 1420 5th Ave,Suite 1700
Yakima WA,98901 Yakima,WA 98901 Seattle,WA 98101
56. Limitations of Liability and Scope
Neither Party shall be liable for any lost or prospective profits or any other indirect,consequential,special,incidental,
punitive, or other exemplary losses or damages, whether based in contract, warranty, indemnity, negligence, strict
liability or other tort or otherwise,regardless of the foreseeability or the cause thereof.Contractor shall not be liable for
any Claim based upon or resulting from any erroneous or incomplete data provided by the City or any third party or
otherwise contained in the City's databases.
The City acknowledges that Contractor is not an environmental expert or consultant in the field of Hazardous Materials
(as hereinafter defined). Notwithstanding any provision hereof to the contrary,with respect to any Hazardous Materials
that may be present below,on,about or otherwise affecting a Project or any property of the City,Contractor shall not
be responsible for detecting,handling,removing,remediating or disposing of such Hazardous Materials,except to the
extent of any Hazardous Materials brought onto the property by Contractor ("Contractor Hazardous Materials").
Contractor shall not use Hazardous Materials except in the ordinary course of providing the Services and in compliance
with applicable laws. "Hazardous Materials"shall mean any hazardous material or substance which is or becomes
defined as a"hazardous waste,""hazardous substance," °hazardous material,"pollutant, or contaminant under any
applicable law.
Contractor shall not be responsible for detecting or remediating any pre-existing conditions at a Project site or other
property of the City that may adversely affect the operations, maintenance or use thereof or the health or safety of
persons or property. Contractor shall not be responsible for detecting or remediating any structural or latent defects or
other defects in design or construction of a facility or manufacturing defects in equipment at a property,whether pre-
existing or arising during the Term. Notwithstanding anything to the contrary contained herein,the City shall indemnify,
defend and hold Contractor harmless from and against all Claims asserted against or incurred by Contractor to the
extent arising out of any Hazardous Materials (other than Contractor Hazardous Materials) or any condition or
22008Q Convention Center N.Expansion Commissioning Services Page 14 of 16
circumstance arising initially prior to the date of this Agreement(regardless.of whether such condition or circumstance
continues).
57. Survival
The foregoing sections of this Contract, 2-56 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.
CI OF YA 7 CBRE I Heery
l��
Alex Meyertloff,Interim City Ma ager
Date: 1 2 Date: .. 4:1.
CITY CONTRACT NO: 0_
Attest: RESOLUTION NO: Dennis Lawler,Senior Managing Director
d
City Clerk
z l
Ji �YT
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EXHIBIT A
Separate Attachment—Request for Proposals
EXHIBIT B
Separate Attachment—CBRE I Heery Proposal
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