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HomeMy WebLinkAboutDesimone Consulting LLC - Consulting Services Agreement Consulting Services Agreement Desimone Consulting LLC and City of Yakima This Services Agreement (this "Agreement"),dated as of February 19,2024 (the "Effective Date"), is by and between Desimone Consulting LLC, a Washington State limited liability company (the"Service Provider"), and the City of Yakima, a Washington State city, with offices located at 129 N 2nd St, Yakima, WA 98901 (the"Client" and together with Service Provider, the "Parties", and each a"Party"). WHEREAS, Service Provider has the capability and capacity to provide certain consulting services; and WHEREAS Client desires to retain Service Provider to provide the said services, and Service Provider is willing to perform such services under the terms and conditions hereinafter set forth; NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration,the receipt and sufficiency of which are hereby acknowledged, Service Provider and Client agree as follows: 1. Services. Service Provider shall provide to Client the services (the "Services") set out in one or more statements of work to be issued by Client and accepted by Service Provider(each, a"Statement of Work"). The initial accepted Statement of Work is attached hereto as Exhibit A. Additional Statements of Work shall be deemed issued and accepted only if agreed to in writing and signed by Parties. 2. Obligations. 1. Service Provider Obligations. Service Provider shall designate employees that it determines, in its sole discretion,to be capable of being a primary contact to act as its authorized representative with respect to all matters pertaining to this Agreement. 2. Client Obligations. Client shall: a. Designate one of its employees or agents to serve as its primary contact with respect to this Agreement and to act as its authorized representative with respect to matters pertaining to this Agreement(the "Client Contract Manager"), with such designation to remain in force unless and until a successor Client Contract Manager is appointed. b. Require that the Client Contract Manager responds promptly to any reasonable requests from the Service Provider for instructions, information or approvals required by the Service Provider to provide the Services. c. Cooperate with Service Provider in its performance of the Services and provide access to Client's premises, employees, contractors, and equipment as required to enable Service Provider to provide the Services. d. Take all steps necessary, including obtaining any required licenses or consents,to prevent Client-caused delays in Service Provider's provision of the Services. 3. Compensation and Expenses. 1. Compensation. In consideration of the provision of the Services by the Service Provider to the Client under this Agreement, Client shall pay a monthly retainer fee (the"Fee") of$5,000 per month for a one-year Term(as defined in Section 7 hereto). The Fee is due and payable in advance on the first of each month. The fee for February, 2024 shall be paid on a prorated basis. 2. Expenses. Client shall reimburse Service Provider for all reasonable expenses incurred,which includes but not limited to any reasonable travel expenses incurred at Client's request in accordance with the Statement of Work,in connection with the performance of Services. 3. Payment of Invoices. Payment to Service Provider of Fees and the reimbursement of expenses pursuant to this Section 3 shall constitute payment in full for the performance of the Services. Unless otherwise provided in the Statement of Work, said fee will be payable within thirty(30) calendar days of receipt by the Client of an invoice from Service Provider but in no event more than fifteen(15) calendar days after completion of the Services performed pursuant to the Statement of Work. 4. Applicable Taxes. Client shall be responsible for all sales,use and excise taxes,and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Client hereunder;provided,that, in no event shall Client pay or be responsible for any taxes imposed on, or with respect to, Service Provider's income, revenues, gross receipts, personnel or real or personal property or other assets. 5. Late Fee. Any unpaid Fee not received by the last day of each month will be considered late and subject to a late fee. Any unpaid invoices for reimbursement of expenses not received within the specified period in Section 3.3 will be considered late and subject to a late fee. All delinquent payments shall bear interest at the lesser of the rate of one and one-half percent(1.5%)per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. The client shall also reimburse the Service Provider for all costs incurred in collecting any delinquent payments, including,without limitation, attorneys' fees. In addition to all other remedies available under this Agreement or at law(which Service Provider does not waive by the exercise of any rights hereunder), Service Provider shall be entitled to suspend the provision of any Services if the Client fails to pay any fees when due hereunder and such failure continues for fifteen(15) calendar days following written notice thereof. 4. Limited Warranty and Limitation of Liability. 1. Service Provider warrants that it shall perform the Services: a. In accordance with the terms and subject to the conditions set out in the respective Statement of Work and this Agreement. b. Using personnel of required skill, experience, and qualifications. c. In a timely, efficient, and professional manner in accordance with recognized industry standards for similar services. 2. Service Provider's sole and exclusive liability and Client's sole and exclusive remedy for breach of this warranty shall be as follows: a. Service Provider shall use reasonable commercial efforts to promptly cure any such breach;provided,that if Service Provider cannot cure such breach within a reasonable time(but no more than thirty(30) calendar days)after Client's written notice of such breach, Client may, at its option, terminate the Agreement by serving written notice of termination in accordance with Section 7.2. b. In the event the Agreement is terminated pursuant to Section 4.2(a)above, Service Provider shall within thirty(30)calendar days after the effective date of termination, refund to Client any fees paid by the Client as of the date of termination for the Service or Deliverables(as defined in Section 5 below), less a deduction equal to the fees for receipt or use of such Deliverables or Service up to and including the date of termination on a pro- rated basis. c. The foregoing remedy shall not be available unless Client provides written notice of such breach within thirty (30) calendar days after performance of such Service or Deliverable to Client. 3. SERVICE PROVIDER MAKES NO WARRANTIES EXCEPT FOR THAT PROVIDED IN SECTION 4.1, ABOVE. ALL OTHER WARRANTIES, EXPRESS AND IMPLIED,ARE EXPRESSLY DISCLAIMED. 5. Intellectual Property. All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not),trademarks, service marks,trade secrets,know-how and other confidential information,trade dress, trade names,tools,models, frameworks, industry perspectives, logos, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, "Intellectual Property Rights") in and to all documents, work product and other materials that are delivered to Client under this Agreement or prepared by or on behalf of the Service Provider in the course of performing the Services, (collectively,the "Deliverables") shall be owned by Service Provider. Service Provider hereby grants Client a license to use all Intellectual Property Rights in the Deliverables free of additional charge and on a non-exclusive, worldwide, non-transferable,non- sublicensable, fully paid-up, royalty-free, and perpetual basis to the extent necessary to enable Client to make reasonable use of the Deliverables and the Services. 6. Confidentiality. 1. "Confidential Information"means any information that is treated as confidential by a party, including but not limited to all non-public information about its business affairs, strategy, products or services, Intellectual Property Rights, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether disclosed orally or in writing, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as "confidential." Confidential Information shall not include information that: (a)is already known to the Receiving Party without restriction on use or disclosure prior to receipt of such information from the Disclosing Party; (b) is or becomes generally known by the public other than by breach of this Agreement by, or other wrongful act of the Receiving Party; (c) is developed by the Receiving Party independently of, and without reference to, any Confidential Information of the Disclosing Party; or (d) is received by the Receiving Party from a third party who is not under any obligation to the Disclosing Party to maintain the confidentiality of such information. 2. Parties agree: a. not to disclose or otherwise make available Confidential Information of the Disclosing Party to any third party without the prior written consent of the Disclosing Party; provided,however, that the Receiving Party may disclose the Confidential Information of the Disclosing Party to its Affiliates, and officers, employees, consultants, and legal advisors who have a "need to know,"who have been apprised of this restriction, and who are themselves bound by nondisclosure obligations at least as restrictive as those set forth in this Section 6; b. to protect and safeguard the confidentiality of the Disclosing Party's Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; c. to use the Confidential Information of the Disclosing Party only for the purposes of performing its obligations under the Agreement or, in the case of Client, to make use of the Services and Deliverables; and d. to immediately notify the Disclosing Party in the event it becomes aware of any loss or disclosure of any of the Confidential Information of Disclosing Party. 3. If the Receiving Party becomes legally compelled to disclose any Confidential Information,the Receiving Party shall provide: a. prompt written notice of such requirement so that the Disclosing Party may seek, at its sole cost and expense, a protective order or other remedy; and b. reasonable assistance, at the Disclosing Party's sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If, after providing such notice and assistance as required herein,the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose no more than that portion of the Confidential Information which, on the advice of the Receiving Party's legal counsel,the Receiving Party is legally required to disclose and, upon the Disclosing Party's request, shall use commercially reasonable efforts to obtain assurances from the applicable court or agency that such Confidential Information will be afforded confidential treatment. 7. Term. Termination and Survival. 1. This Agreement shall commence as of the Effective Date and shall continue for a period of one (1) year, unless sooner terminated pursuant to Section 7.2 or Section 7.3. Any changes to the renewal term after the initial period of one (1) year will be upon mutual written agreement of the parties. 2. Either Party may terminate this Agreement upon providing the other party a written advance notice of termination of at least thirty (30) calendar days. The effective date of termination will be thirty (30) calendar days upon the receipt of such written termination notice. In the event of any termination,the Client shall pay the Service Provider all fees and expenses up to the effective date of termination. 3. Notwithstanding anything to the contrary in Section 7.2, Service Provider may terminate this Agreement before the expiration date of the Term on written notice if Client fails to pay any amount when due hereunder: (a) and such failure continues for fifteen(15) days after Client's receipt of written notice of nonpayment; or(b)more than two(2) times in any six (6)month period; 4. The rights and obligations of the parties set forth in this Section 7.4 and any right or obligation of the parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement,will survive any such termination or expiration of this Agreement. 8. Limitation of Liability. 1. IN NO EVENT SHALL SERVICE PROVIDER BE LIABLE TO CLIENT OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, PROFIT, DATA, OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT,TORT(INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. 2. IN NO EVENT SHALL SERVICE PROVIDER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, ' WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT(INCLUDING NEGLIGENCE), OR OTHERWISE,EXCEED TWO (2) TIMES THE AGGREGATE AMOUNTS PAID OR PAYABLE TO SERVICE PROVIDER PURSUANT TO THIS AGREEMENT. 9. Entire Agreement. This Agreement, including and together with any related Statements of Work, exhibits, schedules, attachments, and appendices, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral,regarding such subject matter. The parties acknowledge and agree that if there is any conflict between the terms and conditions of this Agreement and the terms and conditions of any Statement of Work,the terms and conditions of this Agreement shall supersede and control. 10. Notices. All notices, requests, consents, claims, demands,waivers and other communications under this Agreement(each, a"Notice", and with the correlative meaning "Notify")must be in writing and addressed to the other Party at its address set forth below(or to such other address that the receiving Party may designate from time to time in accordance with this Section). Unless otherwise agreed herein, all Notices must be delivered by personal delivery, nationally recognized overnight courier or certified or registered mail (in each case,return receipt requested,postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) on receipt by the receiving Party; and (b)if the Party giving the Notice has complied with the requirements of this Section 10. Notice to Client: 129 N 2nd St e Yakima, WA 98901 Attention: Dave Zabell City Administrator City of Yakima Notice to Service Provider: Desimone Consulting LLC 307—29th Street NE Suite 104 Puyallup, WA 98372 Attention: Richard Desimone III 11. Severability. If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term,provision of this Agreement, invalidate, or render unenforceable such term or provision in any other jurisdiction. 12. Amendments.No amendment to,modification of,rescission, termination, or discharge of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. 13. Waiver. No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy,power or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right,remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. 14. Assignment. Client shall not assign,transfer, delegate, or subcontract any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Service Provider. Any assignment or delegation in violation of this Section 14 shall be invalid. No assignment or delegation shall relieve the Client of any of its obligations under this Agreement. 15. Successors and Assigns. This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns. 16. Relationship of the Parties. The relationship between the parties is that of independent contractors.Nothing contained in this Agreement shall be construed as creating any agency, partnership,joint venture or other form of joint enterprise, employment,or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. 17. No Third-Party Beneficiaries. This Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement. 18. Choice of Law. This Agreement and all related documents including all exhibits attached hereto, and all matters arising out of or relating to this Agreement, whether sounding in contract;tort, or statute are governed by, and construed in accordance with,the laws of the State of Washington, without giving effect to the conflict of law's provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Washington. 19. Dispute Resolution. 1. Jurisdiction and Venue. Any mediation or lawsuit involving any dispute or matter arising under this Agreement may only be brought before the appropriate tribunal or court in King County, Washington. All Parties hereby consent to the exercise of personal jurisdiction by any such tribunal or court with respect to any such proceeding. 2. Mediation/Arbitration. In the event of any dispute arising under or relating to this Agreement,the Parties hereby agree to mediate any such dispute before a mediator from Judicial Dispute Resolution, LLC or Judicial Arbitration and Mediation Services in Seattle, Washington. If the dispute is not resolved within sixty (60)calendar days from the request for mediation, such dispute shall be submitted to arbitration under the Commercial Arbitration Rules before an arbitrator appointed by the American Arbitration Association in Seattle, Washington. 20. Attorneys' Fees. In the event that any party institutes any legal suit, action, or proceeding, including arbitration,against the other party to enforce the covenants contained in this Agreement (or obtain any other remedy in respect of any breach of this Agreement)/arising out of or relating to this Agreement,the prevailing party in the suit, action or proceeding shall be entitled to receive,in addition to all other damages to which it may be entitled,the costs incurred by such party in conducting the suit, action, or proceeding, including reasonable attorneys' fees and expenses and court costs. 21. Cumulative Remedies. The rights and remedies under this Agreement are cumulative and are in addition to and nqt in substitution for any other rights and remedies available at law or in equity or otherwise. 22. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be the same agreement.Notwithstanding anything to the contrary in Section 10, a signed copy of this Agreement delivered by facsimile,email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement. 23. Force Majeure. The Service Provider shall not be liable or responsible to Client,nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Service Provider including, without limitation, acts of God,flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities(whether war is declared or not),terrorist threats or acts, riot, or other civil unrest,national emergency, revolution,insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials,materials or telecommunication breakdown or power outage. IN WITNESS WHEREOF,the parties hereto have caused this Agreement to be executed as of the Effective Date by their respective duly authorized officers. SERVICE PROVIDER: CLIENT: Des' one Consulting LLC one of Yakima (.6.2.......„ i By: Richard Desimone III It y: (DA_ i-1'Je, -' Title: Managing Member Title: 1,1, r -1 w' c rryA r- Date signed: 11 2 t f l..0 2 w Date signed: a I` -\\ , ��'-' n. CITY CONTRACT NO: J� RESOLUTION NO: EXHIBIT A INITIAL STATEMENT OF WORK Pursuant to the Agreement, Service Provider shall perform the following Federal Government Relations services for Client: • Work with the appropriate City of Yakima staff and leadership to help identify infrastructure needs and priorities that can contribute to the City's economic development goals. • Help the City of Yakima staff and leadership in identifying federal funding resources that could contribute to advancing the City's infrastructure needs and priorities. • Engage Washington State congressional members and their staff and, as needed, Federal Agency personnel to assist the City in seeking to secure federal funding resources for identified infrastructure needs and priorities. • Assisting the City in identifying and facilitating third party engagement, as appropriate, to support its federal funding requests. In support of these efforts, within the previously defined scope of work, Service Provider will: • Assist the City of Yakima in arranging and participating in meetings with Federal policymakers, including members and staff of the Congress and relevant Executive Agencies,to support the federal funding process. • Provide ongoing information and analysis on activity related to the established federal funding strategy. • Provide guidance on engagement with Federal policymakers including members and staff of the Congress and Administration regarding policy related to the City of Yakima's interests. • Participate in regular planning activities. • Coordinate and work with the City and other stakeholders to advocate for agreed upon policy objectives and strategies to support funding initiatives. All capitalized terms used herein shall be deemed to have the meanings set forth in the Consulting Agreement by and between Desimone Consulting LLC, a Washington limited liability company, (the"Service Provider") dated February 19, 2023,and the City of Yakima, a Washington state city(the"Client").