HomeMy WebLinkAboutEsser, Luke - Professional Services Agreement for Consultant ServicesPROFESSIONAL SERVICES AGREEMENT
FOR
CONSULTANT SERVICES
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THUS PROFESSIONAL SERVICES AGREEN�ENT,enteredintmth�^��� ^daVmf�^)^/�'^^ ,2O22,betxveenthe
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City mfYakima, aWashington municipal corporation (°Cit«") with its principal office mt129North Second Street,
Yakima, Washington, 98901, and LUKE ESSER, ("Contractor") whose principal offices are located ot4O4 1681h
Place SE, Bellevue, Washington B0OO8.
WITNESSETH:The parties, in consideration of the terms and conditions herein, do hereby covenant and agree
as follows:
1. Statement of Work
a. The mjnimum services (hereinafter referred to as "Services") that the Contractor willprovide include
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services and consultation regarding Washington State Legislative and Administrative Advocacy Services, and
related services, on behalf ofthe City of Yakima. The Services Contractor agrees to perform are described in
Exhibit °A°attached hereto and fully incorporated herein.
b. Contractor represents that it has mxmi|aM|e, and offers to provide, personnel with knowledge and
experience necessary to satisfactorily accomplish the SERVICES within the required time and that it has no
conflicts of interest prohibited by law from entering into this Agreement.
c Additional Services: City and Contractor agree that not all Services to beperfornnd by Contractor can be
defined in detail at the time this Agreement isexecuted, and that additional services, related to the Services
out|inedinExhibit A,may beneeded during performance ofthis Agreement. City may, atany time bxwritten
order, direct the Contractor to revise portions of work previously completed in m satisfactory manner, delete
portions of any work completed, or request that the Contractor perform additional Services beyond the scope
ofthe Services outlined inExhibit A. Such changes hereafter may bereferred tmaoAdditional Services.
1. |fAdditional Services cause anincrease ordecrease .inthe Contractor's cost of, mrtime required for,
performance of any services underthis Agreement, a contract price and/or
- completion time adjustment
pursuant to this Agreement shall be made and this Agreement shall be modified in writing accordingly.
2' Compensation for each such request for Additional Services shall be negotiated by the City and
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Contractor, and if smauthorized, shall be considered part ofthe Services. The Contractor shall not perform any
Additional Services until so authorized by the City and agreed to by the Contractor in writing.
2. Compensation
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a. Compensation on a time spent basis. For the Services described in Exhibit A, compensation shall be
Three Thousand Dollars ()permnmnth,p|usreinmbursemnentfordirectnon-sakuryexpmnses.
1' Direct Non -Salary Expenses. Direct non-sa|mryexpesnemare those costs incurred onordirectly for
the Services including, but not limited to, necessary transportation costs, including current rates for Contractors
vehicle; meals and lodging; printing, binding and reproduction charges; all costs associated with other outside
nonprofessional services and facilities; and other similar costs. Reimbursement for direct non -salary expenses
will be on the basis of actual charges and on the basis of current rates when furnished by Contractor.
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2. Travel costs, including transporataion, lodging, meals and incidental expenses incurred by Contractor
|nconnection with the Services will beprovided, amfollows:
i. A rnoninmunn or U.S Internal Revenue Service a||mxvpd cents per mile will be paid for the
operation, maintenance, and depreciation costs ofcompany orindividually owned vehicles for that portion mf
time they are used for Services. Contractor, whenever possible, will use the least expensive form of ground
transportation.
ii. Reimbursement for meals inclusive of tips shall not exceed a maximum of forty dollars
perdmvperpersmn'-ThisratemmaVbe adjusted onmyearly basis.
iii. Accommodation shall baatareasonably priced hote .
' iv. ,Air travel shall babvcoach class, and shall beused only when absolutely necessary. ~
3. Telephone charges, computer charges, in-house reproduction charges, first class postage and FAX
charges are not included in the direct expense costs, but will be paid if billing rates sheet is provided by
Contractor atthe time of entry into this Contract. Such rate sheet may be updated no more often than once
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per calendar year upon 30 days notice to City of the billing rate changes and provision of the"rate sheet to the
b.Unless specificallyauthorized in writing by the City, the total annual budgetary cost for the Services of
Contractor shall not exceed Thirty -Six Thousand Dn||am ($ plus reimbursement for direct non -salary
expenses. The Contractor will make reasonable efforts tmcomplete , the ^ Services within budget ~ and will keep
the City informed mfp�-messtmnxmrdtMatendsothat' the budget orServices ' effort can beadjusted if found
necessary. The Contractor isnot obligated toincur costs beyond the indicated
~ budget, 'asmay '~beadjusted, nor
is the City obligated to pay the Contractor beyond these limits. When any budget has been increased, the
Contracto,r's excess costs expended prior to such increase will be allowable in the same extent as if such costs
had been incurred after the approved increase, and provided that the City was informed inwriting mtthe time
c i such costs xv reincurred.
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3. Contract Term
The period of this Contract shall be for mperiod oftwo (3)years from its effective date. The City may, atits
option, extend the Contract ona year to yearbasis for uptnfour(4) additional years. Contract extensions shall
beautomatic, and shall gminto effect — without written confirmation, unless the City provides admancenoticeof
the intention to not renew.
4~ 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 toperformance ofthe Services. Contractor shall not represent that it is, orhold itself out as, anagent
orrepresentative ofCity. In no event shall Contractor be authorized to enter into any agreement or undertaking
for, oron, .behalf ofCity. '
S. Successors and -
- 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.
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b. The Contractor for himself, and for his heirs, executors, administrators, successors, and assigns,
does hereby agree to the full performance of all the covenants herein contained upon the part of
the Contractor.
6. Property Rights
All records orpapers of any sort relating to the City and to the project will atall times be the property of the
City and shall be surrendered to the City upon demand. All information concerning the City and said Services
which isnot otherwise amatter mfpublic record orrequired bxlaw tm be
—nnmd `ub|h��cmnf�ent�[and the
Contractor xxi||notinxxho|eorpartnoxvoratany tinoedisclose that information
'~ without
consent ofthe City. ` '
7.Uwmpection and Production of Records
a. The records relating to the Services shall, at all times,
' be subject to inspection
' with the
approval ofthe City, but failure 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 ofthis Contract asmay berequested bythe City. Until the expiration ofsix (6)years
after final payment of the compensation payable under this Contract, or for a longer period if
required by |axv or by the Washington Secretary ofStmte~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 bxContractor 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 tothe Services are City mfYakima records. They must beproduced tothird
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 oftime required pursuant tmthe Washington Secretary ofStmte'orecords
retention schedule.
d. The terms of this section shall survive any expiration or termination of this Contract
8. Work Made for Hire
All work the Contractor performs under this Contract shall beconsidered work made for hire, and shall bethe
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. Oncompletion or
termination mfthe Contract, the Contractor shall deliver these materials tothe City'
9. Compliance with Law
Contractor agrees toperform all Services under and pursuant tmthis Contract infull compliance with any `-and
all applicable laws, rules, and regulationsadoo1ed or promulgated
' by any governmental agency or regulatory
body, whetherfederal, state, local, or otherwise,' including policies adopted by the City, as those laws,
ordinances, rules, regulations, and policies now exist or may hereafter be amended or enacted. Contractor shall
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procure and have all applicable and necessary permits, licenses and approvals mfany federal, state and local
government mrgovernmental authority orthis project, 'payaUchargesmndfees,andgiveaUnmticeonecensarV
and incidental to the due and lawful execution of the work.
Contractor shall procure and have all applicable and necessary permits, licenses and approvals of any federal,
state, and local government or governmental authority or this project, pay all charges and fees and give ` all
notices necessary and incidental to the due and lawful execution of the work. ^
o. Procurement ofaCity Business License. Contractor must prouneaCitymfYakinnm0usineysLicense
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and pay all charge�fees,and taxes associated vx�hsaid license.
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b. Contractor must provide proof mfm valid Washington department of Revenue state excise tau
registration number, as required inTitle 83 RCVV.
c. Contractor must provide proof of a valid Washington Unified Business Identification (UBI) number.
Contractor must have a current U8| number and not be disqualified from bidding on any public
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xvmrkocontract under RCVV39.OG.1O1o�G.l3J�GS�
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� "d. Contractor must provide proof ofavalid Washington Employment Security Department number if
required bvTitle 5ONCVV'
e. Foreign theC��d�eo not ' require corporate
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proposers to qualify in the City, County or State prior to submitting a proposal, it is speCifiCdIly
' ° ^ 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 toconducting any business inthe City.
20. Nondiscrimination Provisixm,
During the performance mfthis Contract, the Contractor agrees asfollows:
The Contractor shall not discriminate against any person on the grounds of race, creed, color, religion, national
origin, sex, age, marital status, sexual orientation, gender identity, pregnancy, veteran's status, political
affiliation orbelief, orthe presence nfany sensory, mental urphysical handicap inviolation ofthe Washington
State Law Against Discrimination (RCW chapter `49.G0)mrthe Americans with Disabilities Act (42 USC 12101 et
seq.).
This provision shall include but not belimited tothe following: employment, upgrading, demotion, transfer,
recruitment, advertising, layoff mrtermination, rates of pay or other forms of compensation, selection for
training, and the provision ofServices under this Agreement. r, .
|nthe event ofthe Contractor's noncompliance with the non-discrimination clause of this contract or with any
such rules, regulations, ororders, this Contract may bmcanceUed,ternminmted,�rsuspended inxxho|eorinpart
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and the Contractor rnaVbeded�
declared contracts._ '
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11. Pay Transparency Nondiscrimination Provision:
The Contractor will not discharge or in any other manner discriminate against employees or applicants because
they have inquired about, discussed, ordisclosed their own pay orthe pay of another employee or applicant.
'o-- e�ennp|oe xxhoh =a���ost�th�conm'ensati ninformnationofother enmp|myaeomrapplicants msa
, . .^
part of their essential job functions cannot disclose the pay of other employees or applicants to individuals who
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donot otherwise have access tmcompensation information, unless the disclosure is(a)inresponse tmaformal
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
12. Indemnification and Hold Harmless
a' Contractor shall take all necessary precautions inperforming the "Services to prevent injury to
persons orproperty. 'The Contractor agrees to release, indemnify, defend, and hold harmless the
City, its elected and appointed officials, officers, employees, agents representatives, insurers,
attorneys, and volunteers from all liabilities, losses, damages, and expenses related to all claims,
suits, arbitration actions, investigations, and regulatory orother governmental proceedings arising
from or in connection with this Agreement or the acts, failures to act, errors or omissions of the
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Contractor, or any Contractor's agent or subcontractor, in performance of this Agreement,^ except
for claims caused by the City's sole negligence. The City's right to indemnification includes
attorney's fees costs associated with establishing the right to indemnification hereunder in favor of
the City.
b. Industrial Insurance Act Waiver. It is specifically and expressly understood that the Contractor
waives any immunity that may be granted to it underthe Washington State industrial insurance act,
Title 51 RCW, solely for the purposes of this indemnification. Contractor's indemnification shall not
be limited in any way by any limitation on the amount of damages, compensation or benefits
payable to or bVany third party under workers' compensation acts, disability benefit acts or any
other benefits acts or programs. Contractor shall require that its subcontractors, and anyone
directly orindirectly employed mrhired bwContractor, and anyone `for whose acts Contractor may
be liable in connection with its performance ofthis Agreement, comply with the terms of this
paragraph, waive]anyimmunity granted under Title 51 MCVV, and assume all potential liability for
actions brought by their respective employees. The Parties acknowledge that they have mutually
negotiated this waiver.
o- Should a court of competent jurisdiction determine that this Agreement is subject to RCW
- 4.24.115,
then, in the event arising out bodily injury to persons mrdannegestV
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property caused bworresulting from the concurrent negligence mfthe Contractor and the City, the
Contractor's liability, including the duty and cost to defend, shall be only to the extent of the
Contractor's negligence. /
d. Nothing contained in this Section or this Contract shall be construed to create m liability or right
of indemnification in any third party.
The terms of this Section shall survive any expiration or termination of this Contract.
13. Cmmtrac*oemLiability insurance
Atall times during performanceofthe Services and this Contract, Contractor shall secure and maintain ineffect
insurance hoprotect the City and Contractor from and against any and all claims, .damages, losses, and expenses
arising out oforresulting from the performance ofthis Contract. Contractor shall provide and maintain inforce
insurance inlimits noless than that stated below, asapplicable. The City reserves the right torequire higher
limits should it deem it necessary in the best interest ofthe public.
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Contractor shall provide a Certificate of Insurance to the City as evidence of coverage for each of the policies
and outlined herein. A copy of the additional insured endorsement attached to the policy shall be included with
the certificate. This Certificate of insurance shall be provided to the City, prior to commencement of work.
Failure of City to demand such verification of coverage with these insurance requirements or failure of City to
identify a deficiency from the insurance documentation provided shall not be construed as a waiver of
Contractor's obligation to maintain such insurance.
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 neither the City nor its insurance providers shall contribute to any
settlements, defense costs, or other payments made by Contractor's insurance.
If at any time during the life of the 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.
The following insurance is required:
a. Commercial Liability Insurance
Before this Contract is fully executed by the parties, Contractor shall provide the City with a certificate of
insurance and additional insured endorsements as proof of commercial liability insurance with a minimum
liability limit of One Million Dollars ($1,000,000.00) per occurrence, combined single limit bodily injury and
property damage, and One Million Dollars ($1,000,000.00) general aggregate. If Contractor 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 certificate of insurance and additional insured endorsements shall name the City
of Yakima, its elected and appointed officials, employees, agents, attorneys and volunteers as additional
insureds, and shall contain a clause that the insurer will not cancel or change the insurance without first giving
the City prior written notice. The insurance shall be with an insurance company or companies rated A-VII or
higher in Best's Guide and admitted in the State of Washington. The requirements contained herein, as well as
City of Yakima's review or acceptance of insurance maintained by Contractor is not intended to and shall not in
any manner limit or qualify the liabilities or obligations assumed by Contractor under this contract.
b. Automobile Liability Insurance
Before this Contract is fully executed by the parties, Contractor shall provide the City with a certificate of
insurance as proof of automobile liability insurance with a minimum liability limit of One Million Dollars
($1,000,000.00) per occurrence. If Contractor carrieshigher 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 certificate of insurance
and additional insured endorsements shall name the City of Yakima, its elected and appointed officials,
employees, agents, attorneys and volunteers as additional insureds, and shall contain a clause that the insurer
will not cancel or change the insurance without first giving the City prior written notice. The insurance shall be
with an insurance company or companies rated A-VII or higher in Best's Guide and admitted in the State of
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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 orqualify the liabilities or
obligations assumed b*Contractor under this contract. The business auto liability shall include Hired and Non -
Owned coverage if necessary.
c. Employees 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 lams, 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 beheld responsible inany way for claims filed byContractor orits 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 oubcontna° r(s). Contractor is responsible to
ensure subcontractor(s) have insurance as needed. Failure ofsubomntnacto' /«\ to comply with insurance
requirements does not limit Contractor's liability or responsibility.
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If any term or condition of this Contract orthe application thereof to any or circumstances is held
invalid, suchinvalidity shall not affect other terms,^ conditions or applicationswhich can begiven effect without
the 'invalid term, �� 'condition - qrapplication. To this end, the terms and conditions nfthis Contract are declared
severable. '
15. Contract Documents
This Contract represents the entire understanding of the City and Contractor as to the matters contained herein.
No prior oral or written understanding shall be ofany force mreffect with respect tmthose matters covered
herein. This Agreement may not be modified or altered except in writing signed by both parties.
16. Termination
Either party may terminate the Contract, without cause, by providing 15 days
- written notice of termination.
In the event oftermination, upon notice mftermination, the Contractor shall promptly discontinue all services
affected (unless the notice directs otherwise), and deliver or otherwise make available to the City all originals
of information, documents and materials the Contractor orany subcontractors may have accumulated or
prepared in performing this Contract, whether completed or in progress, with the Contractor retaining copies
ofthe same.
The Contractor shall be entitled to receive compensation for any fees owed under the Contract for Services
performed prior to termination. 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 becompensated for the actual service hours provided. The City shall beentitled toa
refund for goods orservices paid for but not received orimplemented, such refundtobepaid within 3Odays of
written notice tothe Contractor requesting the refund. �
Change in Funding: In addition to the above termination provisions, if the funds upon which the City relied to
establish this Contract are withdrawn, reduced, or limited, orifadditional ormodified conditions are placed on
such funding, the City may terminate this Contract bxproviding atleast five business days written notice 1othe
Contractor. The termination shall beeffective onthe date specified in the notice mftermination.
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17. 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.
18. 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 and provide the services in accordance with the terms of this Contract: personnel,
labor, products and supervision; and technical, professional and other services. All such services, products,
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 sometimes collectively referred to in this
Contract as the "(Services)."
19. 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.
20. 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, RFQP number, detailed description of work, unit and total price, discount term and include the
Contractor's name and return remittance address.
Contractor will mail invoices to the City at the following address:
City of Yakima
Attn: Cally Price
129 N 2nd Street
Yakima, WA 98901
Email-cally.price@yakimawa,gov
21. 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
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entity without the priormrittenoonsmntoftheCitV Any such delegation orsubcontracting without the Cky's
prior written consent shall bevoidable atthe City's option.
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No delegation of subcontracting of performance of any of the services, with wrwithout the 0ty'oprior 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 orfurnishes any services (collectively, the
"Support").
Contractor shall atall times be an independent contractor and not anagent orrepresentative ofthe City with
regard toperformance ofthe services. Contractor shall not represent that it is, nor hold itself out as, an agent
or representative of the City. In noevent shall Contractor be authorized tmenter into any agreement mr
undertaking for oronbehalf ofthe City. Neither the Contractor nor any employee mfthe Contractor isentitled
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to any bene�tothat the City provides its employees. The Contractor imsolely responsible forpaVmmentofany
statutory workers compensation bir employers liability insurance as required bystate 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 inaccordance with this Contract. Subject tmcompliance with the 'requirements ofthis: Contract,
Contractor shall perform the services inaccordance with its own methods.
22. Licenses
If applicable, Contractor shall have avalid and current business license per Chapter S.02 Section 6.02.010 of the
Yakima Municipal Code covering this type of business and shall satisfy all applicable City Code provisions. Said
license shall beobtained prior 'tothe award mfany contract. Inquiries astmfees, etc,should bemade t6the
Office of Code Administration, telephone (509) 575-6121.
|naddition, and if applicable, 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.
Contractorshall take all reasonable precautions to protect against any bodily injury(induding death) orproperty
damage that may occur inconnection with the services.
23.Removal mf Subcontractor
Ifdissatisfied with the background, performance, and/or general methodologies mfany subcontractor, the City
may request inwriting that the subcontractor be removed. The Contractor shall comply with this request o1
once and shall not employ the subcontractor for any further work/services under this Contract.
24.Taxes and Assessments
Contractor shall besolely responsiblefor 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 orassessed against eitherpartyas
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 itbecomes due.
The City and its agencies are exempt from payment of all federal excise taxes, but not sales tax (currently at
0.3%). Tax will not be considered in determining which proposal is the lowest or best,however RCVV39.80.04O
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allows the City 1mtake any sales tax and B&Q tax that is will receive from purchasing supplies, materials and
equipment within its boundaries into consideration when determining the lowest responsible Proposer.
25. Contractor Tax Delinquency
Contractors who �� a delinquent Washington tax liability may have their payments offset �t����
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Washington..
26.K : Examination of Records '
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The Contractor agrees to furnish the City with reasonable periodic reports and documents as it may request and
insuch 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 tqthe servicesshall, mtall times, besubject tqinspection bwand with .the approval ofthe
�^City, but the
'rnaWng,of/mr failureordelay inmaking) suchinspection orapproval shall not relieve Contractor mf
' responsibility for performance of the services in accordance with this Contract, notwithstanding the Citv a
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knowledge mfdefective ornon-complying performance, its substantiality orthe ease mfits discovery. Contractor
shall provide the City sufficient, safe, and proper facilities and equipment for such inspection and free access to
such facilities.
27. Reoordkeepingmnd Record Retention
The Contractor shall establish and maintain adequate
^ of all expendituresincurredunderthe—
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All records must be kept in accordance with generally accepted accounting procedures. All procedures must be
inaccordance with federal, state and local ordinances.
The City shall have the righttmaudit,revievxexanoine,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.
28. Confidential, Proprietary and Personally identifiable Information
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Contractor shall not use Confidential, Proprietary or Pmrymna||v Identifiable information of the [kV for any
purpose other than the limited purposes set forth inthis Contract, and all related and necessary actions taken
in fulfillment of the obligations thereunder' 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 infurtherance _�fthe |inoiteUpurposesmfthis Contract and xxhmhave been apprised
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of, and agree to maintain, the confidential nature of such information in accordance with the terms of this
Contractor shall institute and maintain such security procedures asare commercially reasonable hmmaintain
the confidentiality mfthe Confidential Information while inits possession orcontrol i �-ng transportation,
whether physically orelectronically.
Contractor shallmnsune that
- all indications mfconfidentiality cmntainedmnmrimdudedin any item mfConfidential
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.
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Contractor shall maintain all Confidential Information as confidential for a period of three (3) years from the
date of termination of this Contra�ando�Ur�u�ord*�' ��[m���n�||n�nm��n�sdi����the
` .
City in writing.
Contractor may disclose Confidential Information in connection with a judicial oradministrative _proceeding to
the extent such disclosure is required under law or a court order, provided that the City shall be givenpnonnpt
written notice of such proceeding if giving such notice is legally permissible.
29. Suspension of Work
The City may suspend, in writing by certified mail, all oraportion 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 portion mfthe 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 bythis Agreement. The time .for completion mfthe Service shall beextended bythe
number ofdays the Service iosuspended. |fthe period ofsuspension exceeds ninety (9O)days, the terms ofthis
Agreement are subject to renegotiation, and both parties are granted the option to terminate the Service on
the suspended portion ofProject inaccordance with Section lG. `
30. 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 ^ssa1isfactiom; 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. |fthe City notifies the Contractor that any part ofthe services rendered are inadequate mrinany
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 asthe City specifies. This remedy shall beinaddition toany
'^ other remedies available tothe City bxlaw orinequity. `
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 �eornmall of�sobligati
ons
inaccmndanceha|||ega|requireentsand City work
�'
~31.Notice mf Change 0mFinancial 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 inwriting. Failure tonotifxthe City ofsuch achange infinancial condition orchange
of ownership or control shall be sufficient grounds for Contract termination.
32. Assignment^.
This Contract, or any interest herein, mrclaim hereunder, shall not beassigned ortransferred inwhole orinpart
by Contractor to any other person or entity without the prior written consent of the City. |nthe event that such
prior written consent toanassignment is granted, �then the assignee shall assume all duties, obligations, and
liabilities of Contractor stated herein.
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33. 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.
34. 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.
35. Promotional Advertising / News Releases
Reference to or use of the City, any of its departments, agencies or other subunits, or any official or employee
for commercial promotion is prohibited. News releases pertaining to this procurement shall not be made
without prior approval of the City. Release of broadcast e-mails pertaining to this procurement shall not be
made without prior written authorization of the contracting agency.
36. 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.
37. 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.
38. 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 dutiesin a professional manner, or who violates the securefacility's security rules and
procedures. The City reserves the right to search any person, property, or article entering its facilities.
39. 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 or more instances, shall not be
construed as a waiver or relinquishment of any such agreement, covenant, condition or right.
40. Force Majeure
Contractor will not be responsible for delays in delivery due to acts of God, fire, strikes, epidemics, pandemics,
war, riot, delay in transportation or railcar transport shortages, provided Contractor notifies the City
immediately in writing of such pending or actual delay. Normally, in the event or any such delays (acts of God,
etc.) the date of delivery will be extended for a period equal to the time lost due to the reason for delay.
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41. Governing Law
This Contract shall be governed by and construed in accordance with the laws of the State of Washington.
42.Venwe
The venue for anyjudicial action to enforce or interpret this Contract shall lie in a court of competent jurisdiction
in Yakima County, Washington.
43. Authority
The person executing this Contract, onbehalf ofContractor, represents and warrants that he/she has been fully
authorized bxContractor tpexecute this Contract onits behalf and tolegally bind Contractor tmall the terms,
performances and provisions of this Contract.
44. Change or Notice
Any alterations, including changes tmthe nature ofthe service, made 1mthe Contract shall berendered inwriting
and signed by both responsible parties; no changes without such signed documentation shall be valid. No
alterations outside ofthe general scope and intent mfthe original 0equestfmrPrnposo|sorinexcessofa||oxvab|e
and accepted price changes shall bemade.
|nnoevent shall the Contractor bepaid orbeentitled 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) b^ulness 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 inwriting 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 mf 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 ofthe 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
TO CITY:
Bob Harrison
Call Price
City Manager's Office
City mfYakima
129North 2"o Street
Yakima WA, 9Q901
45. Survival
TO CONTRACTOR:
Luke Esser
40415gt"Place SE
Bellevue, WA 98008
The foregoing sections mfthis Contract, 1-45inclusive, shall survive the expiration mrtenninationofthis Contract
in accordance with their terms.
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IN WITNESS WHEREOF, the parties hereto execute this Contract as of the day and year first above written.
CITY OF YAKIMA
City Manager
LUKE ESSER
8TV CON T A ' N9;
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EXHIBIT A
Scope of Work
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