HomeMy WebLinkAboutPS 2018-08-06 Item 2B - Contracts - Contract Amendment for City Attorney Services with Kenyon Disend / Contract for Prosecution Services with Walls Law FirmTO:
City of Tukwila
Allan Ekberg, Mayor
INFORMATIONAL MEMORANDUM
Mayor Ekberg
Public Safety Committee
FROM: David Cline, City Administrator
DATE: August 1, 2018
SUBJECT: Kenyon Disend, PLLC Contract Amendment
Contract for Prosecution Services
BACKGROUND
The City contracts with Kenyon Disend, PLLC for City Attorney services, which has included a
provision for prosecution services. For the past several years Kenyon Disend has sub-
contracted prosecution services out to the Walls Law Firm.
DISCUSSION
As of September 1, 2018 Kenyon Disend will no longer be sub -contracting out prosecution
services, The attached contract amendment reflects the discontinuation of prosecution services
and a corresponding reduction to the monthly compensation from $46,436 per month to
$33,436.
To ensure continuation of prosecution services, the City is proposing to contract directly with the
Walls Law Firm for prosecution services effective September 1, 2018 through December 31,
2018 for $13,500 per month. The City plans to post a Request for Proposals (RFP) for
Prosecution Services for the 2019-2020 biennium. The RFP will be posted August 22, 2018 and
all proposals will be due by 5 PM September 21, 2018.
RECOMMENDATION
It is recommended that both contracts be forwarded to the consent agenda of the August 20,
2018 City Council meeting for approval and authorization for execution by the Mayor.
ATTACHMENTS
Draft Contract Amendment for Kenyon Disend PLLC for City Attorney Services
Draft Contract with the Walls Law Firm for Prosecution Services
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10
City of Tukwila
6200 Southcenter BoWevard, Tukwila WA 98188
Agreement Number:
CONTRACT FOR SERVICES
Amendment #1
Between the City of Tukwila and Kenyon Disend PLLC
That portion of Contract No. 16-183 between the City of Tukwila and Kenyon Disend is
hereby amended as follows:
1. Scope and Schedule of Services to be Performed by Contractor. The
Contractor shall perform those services described on Exhibit A-1 attached hereto and
incorporated herein by this reference as if fully set forth. In performing such services, the
Contractor shall at all times comply 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-1 attached
hereto and incorporated herein by this reference.
All other provisions of the contract shall remain in full force and effect.
Dated this
day of , 2018.
CITY OF TUKWILA CONTRACTOR
Allan Ekberg, Mayor Michael R. Kenyon
Managing Member
ATTEST/AUTHENTICATED APPROVED AS TO FORM
Christy O'Flaherty, MMC, City Clerk Office of the City Attorney
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EXHIBIT A — 1
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 attomey/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;
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,
1 2 Kenyon Disend Contract Amendment 2018
Page 2 of 4
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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.
Kenyon E)isend Contract Arne.
'nein
Page 3 of 4
1 3
EXHIBIT B - 1
COMPENSATION AND METHOD OF PAYMENT
1. For 2018, for all general city attorneyandosccutor-sepii-ees-set forth in
paragraphs 1 and 2 of Exhibit A, Contractor shall be paid a flat monthly fee of - 11,
$33,436.00 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.
1 4 Kenyon [)send Cant.ra.et Amenclment 201.8
Page 4 of 4
City of Tukwila
6200 Southcenter Boulevard, Tukwila WA 9
CONTRACT FOR SERVICES
Contract Number:
This Agreement is entered into by and between the City of Tukwila, Washington, a non -charter
optional municipal code city hereinafter referred to as "the City," and Walls Law Firm hereinafter referred
to as -the Contractor.
WHEREAS, the City has determined the need to have certain services performed for its citizens
but does not have the manpower or expertise to perform such services; and
WIIEREAS, the City desires to have the Contractor perform such services pursuant to certain terms
and conditions; now, therefore,
CONSIDERATION OF the mutualbenefits: and conditions hereinafter contained, the parties
hereto agree as follows:
1. Scope and Schedule of Services to be Performed by Contractor. The Contractor shall perform those
services described on Exhibit A attached hereto and incorporated herein by this reference as if fully set
forth. In performing such services, the Contractor shall at all times comply with all Federal, State, and
local statutes, ordinances and rules applicable to the performance of such services and the 'handling. of
any funds used in connection therewith including the provisions of the Washington Supreme Court
Order 25700-A-1013 and the public defense standards adopted by the City pursuant to TMC 2.70.
Compliance with these standards goes to the essence of this Agreement. The Contractor shall request
and obtain prior written approval from the City if the scope Of services 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. Duration of .Agreement. This Agreement shall be in full force and effect .for a period commencing
September 1, 201.8 and ending December 31, 201.8 unless sooner terminated under the provisions
hereinafter specified or extended by the express written consent of Contractor and the Mayor or his
designee.
4. 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 sociai security or contributing to the State,
Industrial lnsurancc ..Program, or otherwise assuming the duties of an employer with respect to the
Contractor, or any employee of the Contractor.
Indemnification. The Contractor shall defend, indemnify and hold the City, its officers, agents,.
officials, employees and .volunteers harmless from any and all claims, injuries, damages, losses or suits
including attorney fees, arising out of or in connection with the performance of this Agreement, except
Prosecution Services
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for injuries and damages caused by the sole negligence of the City. 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, its officers, officials, employees, and volunteers,
the Contractor's liability hereunder shall be only to the extent of the Contractor's negligence. It is
further specifically and expressly understood that the indemnification provided herein constitutes the
Contractor's waiver of immunity under Industrial Insurance, Title 51 RCW, solely for the purposes of
this indemnification. This waiver has been mutually negotiated by the parties. 'Ihe provisions of this
section shall survive the expiration or termination of this Agreement.
6. losuratic.e. The Contractor shall procure and maintain for the durationof the .Agreement„ insurance
against claims for injuries to persons or damage to property which may arise from or in connection with
the performance of the work hereunder by the Contractor, their agents, representatives, employees or
subcontractors. Contractor's maintenance of insurance, its scope of coverage and limits as required
herein shall riot be construed to limit the liability of the Contractor to the coverage provided by such
insurance, or otherwise Limit the City's recourse to any remedy available at law or in equity.
A. Minimum Scope of Insurance. Contractor shall obtain insurance of the types and with the limits
described below:
Professional Liability 1.nsurance:. 'lite Contractor shall procure and maintainin full force
throughout the duration of this .Agreement Professional .Liability insurance with a minimum
coverage of $1,000,000per 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.
2. Automobile Liability: The Contractor shall procure and maintain in full force throughout the
duration of this Agreement .Automobile Liability insurance with a minimum combined .single
limit for bodily injury and property damage of $1.,000„000 per accident. .Automobile Iiahihty
insurance shall cover all owned, non -owned, hiredand leased vehicles. Coverage shall he written
on Insurance Services Office (ISO) form CA 00 01 or a substitute f.'orinproviding equivalent
liability coverage. If necessary, the policy shall he endorsed to provide contractual liability
coverage.
3. Commercial General .Liability: The Contractor shall :procure and .m.aintain in full force
throughout the duration of this Agreement Commercial General Liability insurance with lirnits
n.o less than $1.„000,000 each occinTence„ $2,000,000 general aggregate and S2,000,000
products -completed operations aggregate limit. Commercial General Liability insurance shall
.be written on ISO occurrence forin CG 00 01 and shall cover liability arising from. premises,
operations, independent contractors, products -completed operations, stop gap liability, personal
injury and advertising injury, and liability assumed under an insured contract. The Commercial
General Liability insurance shall be endorsed to provide the Aggregate Per Project Endorsement
ISO .fonn CG 25 03 LI 85 or an equivalent endorsement. There shall be no endorsement or
modification of the Commercial General Liability Insurance for liability arising .from explosion,
collapse or underground property damage. T'he City shall be named as an insured under the
Contractor's Commercial General Liability insurance policy with respect to the work performed
for the City using ISO Additional Insured endorsement CG 20 10 1.0 01 and Additional Insured-
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Prosecution Services Page 2 of 7
Completed Operations endorsement C(1.3. 20 37 1.0 01or substitute endorsements providing
equivalent coverage.
WorkersCompensation: The Contractor shall procure and maintain Workers' Compensation
coverage as required by the Industrial Insurance laws of the State of Washington.
13. Other insurance Provision. The Contractor's Automobile Liability and Commercial. General
Liability insurance policies are to contain, or be endorsed to contain that they shall be primary
insurance with respect to the City. Any insura.nce, .self-insttrance, or insurance pool coverage
maintained by the City shall he excess of the Contractor's insurance and shall not contribute with it..
C. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best rating
of not less than A: VII.
D. Verification of Coverage. Contractor shall famish the City with original certificates and a copy of
the amendatory endorsements, including but not necessarily limited to the additional insured
endorsement, evidencing the insurance requirements of the Contractor before commencement of the
work.
E. Subcontractors. The Contractor shall have sole responsibility for determining the insurance
coverage and limits required, if any, to be obtained by subcontractors, which determination shall be
made in accordance with reasonable and prudent business practices.
F. Notice of Cancellation. The Contractor shall provide the City and all Additional insureds for this
work with written notice of any policy cancellation„ within two business days of their receipt of such
notice.
7. Record Keeping and 'Reporting.
A. The Contractor shall maintain. accounts and records, including personnel, property, financial. and
programmatic records which sufficiently and properly reflect all direct and indirect costs of any
nature expended and services performed in the perfOnnance of this Agreement and other such
records as may be deemed necessary by the City to ensure the performance of this Agreement.
B. These records shall be maintained for a period of seven (7) years after termination hereof unless
permission to destroy them is granted by the office of the archivist in accordance with RCW Chapter
40.14 and by the City.
8. Audits and ............ The records and documents with respect; to all matters covered by this
Agreement shall be subject at all times to inspection, review or audit by law during the perfbnnancc of
this Agreement, to the extent permittedby law.
9. 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. Failure to provide products
on schedule may result in contract termination. If the Contractor's insurance coverage is canceled for
any reason, the City shall have the right to terminate this Agreement immediately.
10. Discrimination Prohibited. The Contractor, with regard to the services to be provided under this
agreement, shall not discriminate against any employee, applicant for employment, on the basis of
race, religion, creed, color, national origin, age, veteran status, sex, sexual orientation, gender identity,
1'roseculion Services.
1 7
Pave 3 01'7
marital status, political affiliation or the presence of any sensory, mental or physical disability in the
selection and retention of employees Or procurement of materials or supplies.
11. AS.Si2mrtprit and Subcontract. The Contractor shall not assign or subcontract any portion of the
services contemplated by this Agreement without the written consent of the City.
12. Entir., A -ee ent• rviodification. This Agreement, together with attachments or addenda, represents
the entire and integrated Agreement between the City and the Contractor and supersedes all prior
negotiations, representations, or agreements written or oral. No amendment or modification of this
Agreement shall be of any force or effect unless. it is in writing and signed by the parties.
13. Severability and Survival. If any term, condition or provision of this .Agreementis declared void or
unenforceable or limited in its application or effect, such event shall not affect any other provisions
hereof and all other provisions shall remain fully enforceable.. The provisions of this Agreement, which.
by their sense and context are reasonably intended to survive the completion, expiration or cancellation
of this Agreement, shall survive termination of this Agreement.
14. 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 he sent
Walls Law .Firm
16300 Christensen Rd.
Tukwila, WA 981.88
the
foliowing address:
15. Applicable Venue; Attorney's Fees. This .Agreement shall he 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 (.'..ounty, Washington. The prevailing party in any such
action shall he entitled to its attorney's fees and costs of suit.
DATED this day of
CETY OF TUKWILA
, 2(118.
WALLS LAW FIRM
Allan . Ekberg, Mayor Name, Attorney, WSBA No.
.ATTEST/AUTHENTICATED:
APPROVED AS TO FORM:
Christy O'Flaherty, City Clerk Rachcl Turpin, City Attorney.
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Prosecution. Services
Page 4 of 7
E'XIIIBIT A - SCOPE OF SERVICES
Review, make tiling decisions, and file all Tukwila 'Police Department reports :involving misdemeanor
and gross misdemeanor crimes and represent the City on all contested, traffic hearings.
Appear at all criminal calendars in Tukwila Municipal Court on behalf of the City of Tukwila
including but not limited to: in-custody/out-of-custody arraignments, pre-trial hearings and motions,
readiness hearings, bench and/or jury trials, sentencing, review hearings and appeals.
Conduct investigations, contact witnesses, conduct plea bargain negotiations and make appropriate
plea offers consistent with the laws and regulations as well as City of Tukwila standards and policies,
make sentencing and bail recommendations to the Court, prepare and present legal memoranda.,
subpoenas, jury and other related materials, argue motions, represent the City at restitution hearings,
conduct bench and/or jury trials.
4. Administrative functions relating to criminal prosecution and contested traffic hearings such as,
creation and maintenance of files, and completion of discovery requests. Files will be i.e.tained
accordance with the State of 'Washington records retention requirements.
5. Provide legal research, training and assistance to the Tukwila Police Department including statutory
interpretation, enforcement issues and case decisions. Attend police department administrative staff
meetings as requested.
6. File and defend appeals of municipal court decisions.
7. Contractor agrees to attend seven (7) hours of prosecution focused training each year. This
requirement also applies to all associate counsel. Each Attorney will submit a copy of their
Continuing Legal Education (CLE) Credits transcript from the Washington State Bar Association
(WSBA) with the Annual Report.
Reporting: Contractor agrees to submit the following reports:
• Monthly Statistics Reports: This report shall take substantially the same form as that attached
hereto as Exhibit C and shall be submitted with the monthly invoice;
An Annual Report detailing the number of cases filed for the year, the number of cases referred for
pre -filing diversion, the number of cases where pre -filing diversion was successfully completed,
the number of cases where stipulated orders of continuance or deferred prosecution was agreed to
and the number of cases dismissed.
Prosecution. Services Page 5 of 71 9
EXHIBIT B COMPENSATION AND METHOD OF 'PAYMENT
. For all prosecution services set forth in Exhibit A, Contractor shall be paid a flat monthly fee of
13.500.
. The Contractor shall invoice the City by the 10th day of each month for the previous month
services.
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Prosecution Services .Page 6 of 7.
EXHIBIT C PROSECUTION MONTITLY ..REPORT
CASES
Neilin Ts
, ,
DIVERSION
„.:PRITANttli
Referred for e- ilin 'version
,.
Successful contpletion of pre -tiling diversto
DISPOSITIONS ,
Deterred Prosecution
SOC/ Pre -Trial Diversion Agreeinen
D'WI S 3 Amended to Infraction
Dismissals prior to Readiness
TRIALS
SET
711tIL ')
Stirralitted Facts ”I'ritil
Bench 'T'rial
tajy-
_Trial
Dismissals — Post Readiness/Day of Trial
Prosceution Services
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