HomeMy WebLinkAboutFCS Group - Professional Services Agreement for 12319P - Growth Plan and Annexation Study PROFESSIONAL SERVICES AGREEMENT
FOR
12319P - GROWTH PLAN AND ANNEXATION STUDY
THIS PROFESSIONAL SERVICES AGREEMENT, entered into this 1st day of September,
2023, between the City of Yakima, a Washington municipal corporation ("City"), and FCS
Group, ("Contractor").
WITNESSETH: The parties, in consideration of the terms and conditions herein, do hereby
covenant and agree as follows:
1. Statement of Work
The minimum services (hereinafter referred to as "Services") that the Contractor will provide
include services described in RFQ and RFP 12319, which are 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 deliverables and payment schedule of itemized prices as
listed in the Contractor's Proposal submittal at the time and in the manner and upon the
conditions provided for the Contract.
3. Contract Term
The period of this Contract shall be for a period of one year from its effective date.
4. 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.
5. 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 itself, and for its heirs, executors, administrators, successors, and
assigns, does hereby agree to the full performance of all the covenants herein
contained upon the part of the Contractor.
6. Property Rights
All records or papers of any sort relating to the City and to the project will at all times be the
property of the City and shall be surrendered to the City upon demand. All information
concerning the City and said project which is not otherwise a matter of public record or required
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by law to be made public, is confidential, and the Contractor will not, in whole or part, now or
at any time disclose that information without the express written consent of the City.
7. Inspection and Production of Records
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. If any litigation, claim or audit
is started before the expiration of the six(6)year period, the records shall be retained
until all litigation, claims, or audit findings involving the records have been resolved.
c. All records relating to Contractor's services under this 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.
8. Work Made for Hire
All work the Contractor performs under this Contract shall be considered work made for hire,
and shall be the property of the City. The City shall own any and all data, documents, plans,
copyrights, specifications, working papers, and any other materials the Contractor produces in
connection with this Contract. On completion or termination of the Contract, the Contractor
shall deliver these materials to the City.
9. 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, including
policies adopted by the City, as those laws, ordinances, rules, regulations, and policies now
exist or may hereafter be amended or enacted. Contractor shall procure and have all
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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.
Contractor shall procure and have all applicable and necessary permits, licenses and
approvals of any federal, state, and local government or governmental authority or this project,
pay all charges and fees, and give all notices necessary and incidental to the due and lawful
execution of the work.
a. Procurement of a City Business License. Contractor must procure a City of Yakima
Business License and pay all charges, fees, and taxes associated with said license.
b. Contractor must provide proof of a valid Washington department of Revenue state
excise tax registration number, as required in Title 85 RCW.
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.
10.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, gender identity, pregnancy,
veteran's status, political affiliation or belief, or the presence of any sensory, mental or physical
handicap in violation of the Washington State Law Against Discrimination (RCW chapter
49.60) or the Americans with Disabilities Act (42 USC 12101 et seq.).
This provision shall include but not be limited to the following: employment, upgrading,
demotion, transfer, recruitment, advertising, layoff or termination, rates of pay or other forms
of compensation, selection for training, and the provision of Services under this Agreement.
In the event of the Contractor's noncompliance with the non-discrimination clause of this
contract or with any such rules, regulations, or orders, this Contract may be cancelled,
terminated, or suspended in whole or in part and the Contractor may be declared ineligible for
any future City contracts.
11.Pay Transparency Nondiscrimination Provision:
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The Contractor will not discharge or in any other manner discriminate against employees or
applicants because they have inquired about, discussed, or disclosed their own pay or the pay
of another employee or applicant. However, employees who have access to the compensation
information of other employees or applicants as a part of their essential job functions cannot
disclose the pay of other employees or applicants to individuals who do not otherwise have
access to compensation information, unless the disclosure is (a) in response to a formal
complaint or charge, (b) in furtherance of an investigation, proceeding, hearing, or action,
including an investigation conducted by the employer, or (c) consistent with the contractor's
legal duty to furnish information.
12.Indemnification and Hold Harmless
a. Contractor shall take all necessary precautions in performing the Services to prevent
injury to persons or property. The Contractor agrees to release, indemnify, defend,
and hold harmless the City, its elected and appointed officials, officers, employees,
agents, representatives, insurers, attorneys, and volunteers from all liabilities,
losses, damages, and expenses related to all claims, suits, arbitration actions,
investigations, and regulatory or other governmental proceedings arising from or in
connection with this Agreement or the acts, failures to act, errors or omissions of the
Contractor, or any Contractor's agent or subcontractor, in performance of this
Agreement.
b. Industrial Insurance Act Waiver. It is specifically and expressly understood that
the Contractor waives any immunity that may be granted to it under the Washington
State industrial insurance act, Title 51 RCW, solely for the purposes of this
indemnification. Contractor's indemnification shall not be limited in any way by any
limitation on the amount of damages, compensation or benefits payable to or by any
third party under workers' compensation acts, disability benefit acts or any other
benefits acts or programs. Contractor shall require that its subcontractors, and
anyone directly or indirectly employed or hired by Contractor, and anyone for whose
acts Contractor may be liable in connection with its performance of this Agreement,
comply with the terms of this paragraph, waive any immunity granted under Title 51
RCW, and assume all potential liability for actions brought by their respective
employees. The Parties acknowledge that they have mutually negotiated this
waiver.
c. Should a court of competent jurisdiction determine that this Agreement is subject to
RCW 4.24.115, then, in the event of liability for damages arising out of bodily injury
to persons or damages to property caused by or resulting from the concurrent
negligence of the 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 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.
13.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
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claims, damages, losses, and expenses arising out of or resulting from the performance of this
Contract. Contractor shall provide and maintain in force insurance in limits no less than that
stated below, as applicable. The City reserves the right to require higher limits should it deem
it necessary in the best interest of the public.
Contractor 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. All additional insured endorsements required by
this Section shall include an explicit waiver of subrogation.
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 Two Million Dollars ($2,000,000.00) per occurrence,
combined single limit bodily injury and property damage, and Two Million Dollars
($2,000,000.00) general aggregate. If Contractor carries higher coverage limits, such limits
shall be shown on the Certificate of Insurance and Endorsements and the City, its elected and
appointed officials, employees, agents, attorneys and volunteers shall be named as additional
insureds for such higher limits. The certificate shall clearly state who the provider is, the
coverage amount, the policy number, and when the policy and provisions provided are in
effect. Said policy shall be in effect for the duration of this Contract. The 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.
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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 Two Million Dollars ($2,000,000.00) per occurrence. If Contractor carries higher coverage
limits, such limits shall be shown on the Certificate of Insurance and Endorsements and the
City, its elected and appointed officials, employees, agents, attorneys and volunteers shall be
named as additional insureds for such higher limits. The certificate shall clearly state who the
provider is, the coverage amount, the policy number, and when the policy and provisions
provided are in effect. Said policy shall be in effect for the duration of this 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.
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 no less than $1,000,000.00. The City shall not be held responsible in any way for
claims filed by Contractor or its employees for services performed under the terms of this
Contract. Contractor agrees to assume full liability for all claims arising from this Contract
including claims resulting from negligent acts of all subcontractor(s). Contractor is responsible
to ensure subcontractor(s) have insurance as needed. Failure of subcontractors(s) to comply
with insurance requirements does not limit Contractor's liability or responsibility.
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 minimum 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.
14.Severability
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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.
15.Contract Documents
This Contract, the Request for Qualifications & Proposals No. 12319Q and 12319P 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.
16.Termination
Termination for Cause:
In the event the Contractor breaches this Contract, the City may terminate the Contract at its
sole discretion in such event that it provides the Contractor with written notice of Contractor's
breach and the Contractor fails to cure its breach within 30 days of this notice.
In the event of the City breaches this Contract, the Contractor may terminate the Contract at
its sole discretion in such event that it provides the City with written notice of City's breach and
the City failes to cure its breach of the Contract within 60 days of this notice.
The following represents a non-exclusive, illustrative list of instances that shall be considered
a breach by the Contractor:
a. Defaults on an obligation under the 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;
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k. Fails to maintain the confidentiality of the City information that is considered to be
Confidential Information, proprietary, or containing Personally Identifiable
Information;
I. Contractor performance threatens the health or safety of a City, County or municipal
employee; or
Termination for Convenience:
The City may terminate the Contract, without cause, by providing 30 days written notice of
termination.
In the event of termination for convenience, the Contractor shall be entitled to receive
compensation for any fees owed under the Contract. The Contractor shall also be
compensated for partially completed services. In this event, compensation for such partially
completed services shall be no more than the percentage of completion of the services
requested, at the sole discretion of the City, multiplied by the corresponding payment for
completion of such services as set forth in the Contract. Alternatively, at the sole discretion of
the City, the Contractor may be compensated for the actual service hours provided. The City
shall be entitled to a refund for goods or services paid for but not received or implemented,
such refund to be paid within 30 days of written notice to the 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, 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.
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.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 within 120 days from original award.
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 within
120 days from original award.
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19.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 52 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.
20.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 sometime collectively referred to in this
Contract as the "(Services)."
21.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.
22.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: Joseph Calhoun
129 N 2nd Street
Yakima, WA 98901
23.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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24.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.
25.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.
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26.Removal of Subcontractor
If dissatisfied with the background, performance, and/or general methodologies of any
subcontractor, the City may request in writing that the subcontractor be removed. The
Contractor shall comply with this request at once and shall not employ the subcontractor for
any further work/services under this Contract.
27.Taxes and Assessments
Contractor shall be solely responsible for and shall pay all taxes, deductions, and
assessments, including but not limited to federal income tax, FICA, social security tax,
assessments for unemployment and industrial injury insurance, and other deductions from
income which may be required by law or assessed against either party as a result of this
Contract. In the event the City is assessed a tax or assessment as a result of this Contract,
Contractor shall pay the same before it becomes due.
The City and its agencies are exempt from payment of all federal excise taxes, but not sales
tax (currently at 8.3%). Tax will not be considered in determining which proposal is the lowest
or best, however RCW 39.30.040 allows the City to take any sales tax and B&O tax that is will
receive from purchasing supplies, materials and equipment within its boundaries into
consideration when determining the lowest responsible Proposer.
28.Contractor Tax Delinquency
Contractors who have a delinquent Washington tax liability may have their payments offset by
the State of Washington.
29.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.
30.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
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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.
31.Confidential, Proprietary and Personally Identifiable Information
Contractor shall not use Confidential, Proprietary or Personally Identifiable Information of City
for any purpose other than the limited purposes set forth in this Contract, and all related and
necessary actions taken in fulfillment of the obligations there under. Contractor shall hold all
Confidential Information in confidence, and shall not disclose such Confidential Information to
any persons other than those directors, officers, employees, and agents ("Representatives")
who have a business-related need to have access to such Confidential Information in
furtherance of the limited purposes of this Contract and who have been apprised of, and agree
to maintain, the confidential nature of such information in accordance with the terms of this
Contract.
Contractor shall institute and maintain such security procedures as are commercially
reasonable to maintain the confidentiality of the Confidential Information while in its possession
or control including transportation, whether physically or electronically.
Contractor shall ensure that all indications of confidentiality contained on or included in any
item of Confidential Information shall be reproduced by Contractor on any reproduction,
modification, or translation of such Confidential Information. If requested by the City in writing,
Contractor shall make a reasonable effort to add a proprietary notice or indication of
confidentiality to any tangible materials within its possession that contain Confidential
Information of the City, as directed.
Contractor shall maintain all Confidential Information as confidential for a period of three (3)
years from the date of termination of this Contract, and shall return or destroy said Confidential
Information as directed by the City in writing.
Contractor may disclose Confidential Information in connection with a judicial or administrative
proceeding to the extent such disclosure is required under law or a court order, provided that
the City shall be given prompt written notice of such proceeding if giving such notice is legally
permissible.
32.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 16.
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33.Provision of Services
The Contractor shall provide the services set forth herein with all due skill, care, and diligence,
in accordance with accepted industry practices, standards and legal requirements, and to the
City 's satisfaction; the City decision in that regard shall be final and conclusive. The City may
inspect, observe and examine the performance of the services performed on the City premises
at any time. The City may inspect, observe and examine the performance of Contractor's
services at reasonable times, without notice, at any other premises.
a. If the City notifies the Contractor that any part of the services rendered are
inadequate or in any way differ from the Contract requirements for any reason, other
than as a result of the City's default or negligence, the Contractor shall, at its own
expense, reschedule and perform the services correctly within such reasonable time
as the City specifies. This remedy shall be in addition to any other remedies
available to the City by law or in equity.
b. The Contractor shall be solely responsible for controlling the manner and means by
which it and its Contracted Personnel or its subcontractors perform the services, and
the Contractor shall observe, abide by, and perform all of its obligations in
accordance with all legal requirements and City work rules.
34.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.
35.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.
36.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.
37.Contract Preservation
If any provision of the Agreement, or the application of such provision, shall be rendered or
declared invalid by a court of competent jurisdiction, or by reason of its requiring any steps,
actions or results, the remaining parts or portions of this Agreement shall remain in full force
and effect.
12319 Growth Plan and Annexation Study Page 13 of 20
38.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.
39.Time is of the Essence
Timely provision of the services required under this Contract shall be of the essence of the
Contract, including the provision of the services within the time agreed or on a date specified
herein.
40.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.
41.Patent Infringement
The contractor selling to the City the articles described herein guarantees the articles were
manufactured or produced in accordance with applicable federal labor laws. Further, that the
sale or use of the articles described herein will not infringe any United States patent. The
contractor covenants that it will at its own expense defend every suit which shall be brought
against the City (provided that such contractor is promptly notified of such suit, and all papers
therein are delivered to it) for any alleged infringement of any patent by reason of the sale or
use of such articles, and agrees that it will pay all costs, damages, and profits recoverable in
any such suit.
42.Warranty
Unless otherwise specifically stated by the Proposer, Contractor warrants that all goods and/or
services 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 services 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.
12319 Growth Plan and Annexation Study Page 14 of 20
43.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.
44.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.
45.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.
46.Integration
This Contract, along with the City of Yakima's RFQ 12319Q 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.
47.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.
48.Governing Law
This Contract shall be governed by and construed in accordance with the laws of the State of
Washington.
49.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.
12319 Growth Plan and Annexation Study Page 15 of 20
50.Authority
The person executing this Contract, on behalf of Contractor, represents and warrants that they
have 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.
51.Change or Notice
Any alterations, including changes to the nature of the service, 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: COPY TO: TO CONTRACTOR:
Joseph Calhoun Kristine White
Community Development Purchasing Manager
City of Yakima City of Yakima
129 North 2nd Street 129 North 2nd Street
Yakima WA, 98901 Yakima, WA 98901
52.Survival
The foregoing sections of this Contract, 1-51 inclusive, shall survive the expiration or
termination of this Contract in accordance with their terms.
12319 Growth Plan and Annexation Study Page 16 of 20
IN WITNESS WHEREOF, the parties hereto execute this Contract as of the day and year first
above written.
CITY OF YAKIMA FCS GROUP
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City Manager 1
Date: Date: G - f 2 2--3
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CITY CONTRACT NO cat93--1.5y
RESOF_UT CN NO. N IA C 1•iA S . i
Attest: (Print name) ?'2‘ '"c i
Ci Clerk Y
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List of Exhibits attached to this contract
Exhibit A — RFQ and RFP Specificatons
Exhibit B - Deliverables and Payment Schedule of Itemized Prices
12319 Growth Plan and Annexation Study Page 17 of 20
EXHIBIT A
RFQ and RFP Specifications
12319 Growth Plan and Annexation Study Page 18 of 20
EXHIBIT B
Deliverables and Payment Schedule of Itemized Prices
B-1 — Deliverables:
TASK 1A.DATA COLLECTION AND ANALYSIS OF EXISTING CONDITIONS
FCS GROUP will gather relevant data and information related to each proposed annexation area, including
demographic data, land use information, current infrastructure assessments, existing services and facilities,
financial records, and any other pertinent data necessary for the analysis.
TASK 1B.IDENTIFICATION OF POTENTIAL FISCAL AND SERVICE
Level Impacts. We will identify and evaluate the potential impacts of annexation on the City and its residents,
including assessing fiscal implications, such as changes in tax revenue, service costs, and infrastructure
investments as well as quantifying the potential effects on service delivery, land use planning, and community
development.
TASK 1C. COST-BENEFIT ANALYSIS AND IMPLICATIONS OF ANNEXATION
For each annexation area, a comprehensive cost-benefit analysis will be performed, including a comparison of
the anticipated costs of providing services and infrastructure in the annexation area with the expected benefits,
such as increased tax revenue or economies of scale.
TASK 1 D.FINANCIAL PROJECTIONS FOR EACH ANNEXATION AREA
Financial projections will be prepared for each proposed annexation area including an estimate of future
revenues and expenditures.
TASK 1 E.RISK ASSESSMENT AND IDENTIFICATION OF POTENTIAL RISKS AND UNCERTAINTIES
For each annexation area, we will identify potential risks and uncertainties with annexation to help the City
understand and manage any potential challenges or adverse impacts that may arise from the annexation
process.
TASK 1 F.DOCUMENTATION AND RECOMMENDATIONS
The findings of the feasibility and fiscal analysis will be compiled into a technical memorandum, including the
identified impacts, cost-benefit analysis results, financial projections, and risk assessment. Based on the
analysis, FCS GROUP will provide recommendations to the City's leadership regarding the feasibility of
annexation for each area.
City Provided Data: The City shall provide the following to assist in the completion of Tasks 1A through 1 F:
Maps and related GI5 shape files and outputs(Excel)for the 5 potential annexation areas.At a minimum this
will include data available at L.Ity of 1 dkit7Ia Opera Data Site u0ic.y,1Ciii.uvvo,Luv1
o Land use zoning or plan designations
o Assessor records for each tax lot (land use code, current AV for land and improvements, etc.)
o Current job and housing(dwelling unit)estimates (based on Census data)
o Potential vacant tax lots
o Any known Water and sewer capacity limitations for each area
o Planned roadways and public facility investments and related capital costs (from system
master plans)for each area
12319 Growth Plan and Annexation Study Page 19 of 20
2. Background planning documents(Comp. Plan,Transportation/Water/Sewer master plans)data available
through:
Comp Plan/Capital Facilities/Transportation Plan
- https://www.yakimawa.goviservicesipjanning/comprehensive flan-2040-2i
Water System Plan - https:f_/www.yakimawa.gov/services/water-irrigation/
Wastewater Plan—Dana Kallevig, Wastewater Project Engineer—dana.kallev g aeyakimawa.gov
B-2 — Price:
The total compensation for Tasks 1A, 1 B, 1 C, 1 D, 1 E, and 1 F shall not exceed $40,000.
12319 Growth Plan and Annexation Study Page 20 of 20