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").