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HomeMy WebLinkAboutFS 2016-11-22 Item 2C - Agreement - 2017-2018 City Attorney Services with Kenyon DisendTO: FROM: DATE: SUBJECT City of Tukwila Mayor's Office - David Cline, City Administrator Mayor Ekberg Finance & Safety Committee David Cline, City Administrator November 3, 2016 Kenyon Disend PLLC Contract for City Attorney Services Allan Ekberg, Mayor ISSUE The current contract for City Attorney services provided by Kenyon Disend expires December 31, 2016. Attached is a proposed contract for 2017 -2018. BACKGROUND The City of Tukwila contracts for legal services summarized as follows: • General City Attorney services; • Prosecution services; • Litigation and contested administrative proceedings; • Paralegal services; and • "Special services" (services not otherwise specified). DISCUSSION Under the current and proposed contracts, general City Attorney services are provided at a flat monthly rate. Litigation, contested administrative proceedings and "special services" are subject to prior approval and are billed at the hourly rates of contractor staff involved. Contractor's hourly rates are attached to the proposed 2017 -2018 contract. The 2015 -2016 flat rate for City Attorney services for general City Attorney and Prosecution services was $39,318.00 per month. The 2017 -2018 contract increases the flat rate to $45,083 per month for 2017 and $46,436 for 2018. This reflects an approximate 8.7% increase to account for additional prosecution costs related to adding an additional day of court calendars each week. It also considers cost of living adjustments and modest increases in attorney billing rates. RECOMMENDATION It is recommended that this contract be forwarded to the consent agenda of the December 5, 2016 City Council for approval and authorization for execution by the Mayor. ATTACHMENTS Draft Contract for City Attorney Services, 2017 -2018 Tukwila City Hall • 6200 Southcenter Boulevard • Tukwila, WA 98188 • 206 - 433 -1800 - Website: TukwilaWA.gov J,�wi�a w4 I905 City of Tukwila Contract Number: 6200 Southcenter Boulevard, Tukwila WA 98188 CONTRACT FOR LEGAL SERVICES This Agreement is entered into by and between the CITY OF TUKWILA, Washington, a noncharter optional municipal code city hereinafter referred to as "the City," and KENYON DISEND, PLLC, hereinafter referred to as "the Contractor," whose principal office is located in Issaquah, Washington. WHEREAS, the City has a need to have certain WHEREAS, the City desires to have the Contract terms and conditions; now, therefore, IN CONSIDERATION OF the mutual benefits parties hereto agree as follows: 1. Scope and Schedule of Sf perform those services described on reference as if fully set forth. In perf performed for its citizens; and h services pursuant to certain and conditions hereinafter contained, the :d by Contractor. The Contractor shall iereto and incorporated herein by this the Contractor shall at all times comply attached with all federal, state, and local statutes, rules and ordinances applicable to the performance of such services and the handling of any funds used in connection therewith. Such local rules and ordinances shall include, but not be limited to, the City Code of Ethics, as set forth in Ordinance No. 2068. The Contractor shall request and obtain prior written approval from the City if the scope or schedule is to be modified in any way. 2. Compensation and Method of Payment. The City shall pay the Contractor for services rendered according to the rate and method set forth on Exhibit B attached hereto and incorporated herein by this reference. 3. Contractor Budget. The Contractor shall apply the funds received under this Agreement within the maximum, limits set forth in this Agreement. 4. Duration of'Agreement. This Agreement shall be in full force and effect for a period commencing January 1, 2017, and ending December 31, 2018, unless sooner terminated pursuant to paragraph 8 of this Agreement. 5. Independent Contractor. Contractor and City agree that Contractor is an independent contractor with respect to the services provided pursuant to this Agreement. Nothing in this Agreement shall be considered to create the relationship of employer and employee between the parties hereto. Neither Contractor nor any employee of Contractor shall be entitled to any benefits accorded City employees by virtue of the services provided under this Agreement. The City shall not :• be responsible for withholding or otherwise deducting federal income tax or social security or contributing to the State Industrial Insurance Program, or otherwise assuming the duties of an employer with respect to the Contractor, or any employee of the Contractor. 6. Indemnification. The Contractor shall indemnify, defend and hold harmless the City, its officers, agents and employees, from and against any and all claims, losses or liability, including attorney's fees, arising from injury or death to persons or damage to property occasioned by any act, omission or failure of the Contractor, its officers, agents and employees, in performing the work required by this Agreement. With respect to the performance of this Agreement and as to claims against the City, its officers, agents and employees, the Contractor expressly waives its immunity under Title 51 of the Revised Code of Washington, the Industrial Insurance Act, for injuries to its employees, and agrees that the obligation to indemnify, defend and hold harmless provided for in this paragraph extends to any claim brought by or on behalf of any employee of the Contractor. This waiver is mutually negotiated by the parties. This paragraph shall not apply to any damage resulting from the sole negligence of the City, its agents and employees. To the extent any of the damages referenced by this paragraph were caused by or resulted from the concurrent negligence of the City, its agents or employees, this obligation to indemnify, defend and hold harmless is valid and enforceable only to the extent of the negligence of the Contractor, its officers, agents, and employees. 7. Insurance. The Contractor shall procure and maintain in full force throughout the duration of this Agreement professional liability insurance with a minimum coverage of $1,000,000 per claim and $3,000,000 aggregate. Contractor shall provide evidence of such coverage in a manner and form acceptable to the City in the City's sole discretion. Cancellation of the required insurance shall automatically result in termination of this Agreement. 8. Termination. This Agreement may at any time be terminated by the City giving to the Contractor thirty (30) days written notice of the City's intention to terminate the same. 9. Discrimination Prohibited. The Contractor shall not discriminate against any employee, applicant for employment, or any person seeking the services of the Contractor to be provided under this Agreement on the basis of race, color, religion, creed, sex, age, national origin, marital status or presence of any sensory, mental or physical handicap. 10. Assignment and Subcontract. The Contractor shall not assign or subcontract any portion of the services contemplated by this Agreement, except for prosecution services, without the written consent of the City. 11. Entire Agreement. This Agreement contains the entire agreement between the parties hereto and no other Agreements, oral or otherwise, regarding the subject matter of this Agreement, shall be deemed to exist or bind any of the parties hereto. Either party may request changes in the agreement. Proposed changes which are mutually agreed upon shall be incorporated by written amendments to this Agreement and with the consent of the City Council. -2- 50 12. Notices. Notices to the City of Tukwila shall be sent to the following address: City Clerk City of Tukwila 6200 Southcenter Blvd. Tukwila, Washington 98188 Notices to the Contractor shall be sent to the address provided by the Contractor upon the signature line below. 13. Applicable Law; Venue; Attorney's Fees. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington. In the event any suit, arbitration, or other proceeding is instituted to enforce any term of this Agreement, the parties specifically understand and agree that venue shall be properly laid in King County, Washington. The prevailing party in any such action shall be entitled to its attorney's fees and costs of suit. DATED this day of CITY OF TUKWILA C MayorAllan Ekberg ATTEST /AUTHENTICATED: Christy O'Flaherty, City Clerk 2016. CONTRACTOR: KENYON DISEND, PLLC IM Michael R. Kenyon Managing Member ADDRESS: 11 Front Street South Issaquah, Washington 98027 (425) 392 -7090 -3- 51 52 EXHIBIT A -- SCOPE OF SERVICES Contractor agrees to provide a level of service equal to or greater than the level of service provided by an in -house city attorney office consisting of one city attorney and one assistant city attorney /prosecutor. In particular, Contractor agrees to: 1. Provide general city attorney services, which include but are not limited to: A. Attend regular meetings of the City Council; B. Attend Executive Sessions and special meetings of the City Council, Committee of the Whole, Committee meetings, and meetings of City Boards and Commissions, upon request; C. Prepare or review ordinances, resolutions, contracts, interlocal agreements, and other city documents or materials as requested; D. Practice "preventative law" in the form of regular consultation with staff and elected officials, and maintenance of between 20 and 25 "office hours" each week at City Hall, exclusive of prosecutor time; E. Provide special classes and/or seminars for staff, elected officials, Boards, and Commissions on issues including, but not limited to, ethics, conflict of interest, and the appearance of fairness doctrine. F. Except as set forth in Section 3, defend litigation brought against the City; G. Defend or initiate administrative hearings involving the City including, but not limited to, drug forfeiture and seizure hearings, code enforcement, and similar matters; H. Such other general city attorney matters as are assigned; I. Provision of cellular telephones to all attorneys employed by Contractor, and a list of such telephone numbers to the City; J. Comprehensive Internet and remote access capability, including e -mail, linking Contractor's office with City Hall; and K. Oversight and coordination of the City Clerk's Office. M 53 2. Provide city prosecution services, which include but are not limited to: L. Review, determine filing decision, and file all Tukwila Police Department reports involving misdemeanor and gross misdemeanor crimes, and represent the City on all contested traffic hearings; M. Regularly consult with and train police department personnel on selected legal issues, and attend police department administrative staff meetings as requested; N. File and defend appeals of municipal court decisions; and O. Such other city prosecution matters as are assigned. 3. Provide City Attorney services for litigation and contested administrative proceedings, which include but are not limited to: P. Initiation and defense of litigation and contested administrative proceedings on the City's behalf. Contractor shall be compensated for such litigation and contested administrative proceedings as Separate Matters under paragraph 2 of Exhibit B. 4. Provide Special Services, which include but are not limited to: Q. Other specialized municipal law services; provided, however, that any such Special Services shall first be authorized by the Mayor, and shall be subject to paragraph 3 of Exhibit B regarding compensation. 5. Provide paralegal services, which include but are not limited to: R. General paralegal support for the City Attorney and for the prosecuting attorney equivalent to one FTE. 6. It is understood and agreed that the City Attorney shall not provide private legal services to any employee of the City of Tukwila during the term of this agreement. -5- 54 EXHIBIT B -- COMPENSATION AND METHOD OF PAYMENT 1. For 2017, for all general city attorney and city prosecutor services set forth in paragraphs 1 and 2 of Exhibit A, Contractor shall be paid a flat monthly fee of $45,083.00, plus extraordinary expenses. For 2018, for all general city attorney and city prosecutor services set forth in paragraphs 1 and 2 of Exhibit A, Contractor shall be paid a flat monthly fee of $46,436.00, plus extraordinary expenses. Extraordinary expenses shall include court filing fees, deposition and other discovery costs, parking, mileage costs other than to and from City Hall or other locations within the City, and other similar expenses advanced by Contractor on City's behalf. Extraordinary expenses shall not include routine photocopying, fax, or long - distance telephone charges. 2. All litigation and administrative proceeding services set forth in paragraph 3 of Exhibit A shall be considered to be Separate Matters. Contractor shall maintain its current practice of providing individual monthly billing statements for each Separate Matter. Separate Matters mean (a) each individual civil action filed by or against the City, except that multiple condemnation lawsuits related to the same project shall constitute only one Separate Matter, (b) all Code Enforcement matters collectively conducted before the Hearing Examiner or in Court, but not including general code enforcement services which shall be included in Contractor's flat monthly fee, (c) all criminal appeals collectively filed by or against the City, (d) all significant projects which require specialized knowledge and hours expended outside of the regular office hours for that attorney; and (e) all drug or other forfeiture matters collectively filed by or against the City. Contractor shall include within the monthly flat fee, and shall not otherwise bill the City for, the first $5,000 expended on any Separate Matter as computed at Contractor's normal hourly rates for 2017 and 2018. Thereafter, and for each such Separate Matter, Contractor shall be paid its normal hourly rates for 2017 and 2018. A copy of Contractor's hourly rates for 2017 is attached hereto. Rates for 2018 shall be provided to the City by October 1, 2017. 3. Special Services, if any, shall first be approved by the Mayor and City Council after negotiation regarding (1) whether additional compensation is fair and equitable for such Special Services and, if so, (2) the amount and manner of payment (e.g., flat fee, hourly, other) for such Special Services. mom 55 KENYON DISEND, PLLC HOURLY RATE SCHEDULE FOR YEAR 2017 Partners and Senior Attornevs: Michael R. Kenyon $320.00 Bruce L. Disend $320.00 Kim Adams Pratt $280.00 Robert F. Noe $280.00 David A. Linehan $280.00 Associate Attornevs: Rachel B. Turpin $185.00 Ann Marie Soto $180.00 Charlotte A. Archer $180.00 Amy S. Mill $160.00 Alexandra L. Kenyon $145.00 PARALEGALS: Margaret C. Starkey $130.00 Sheryl A. Loewen $115.00 Pam M. Odegard $115.00 Kathy I. Swoyer $115.00 Terry T. Curran $115.00 Antoinette M. Mattox $105.00 -7-