HomeMy WebLinkAboutReg 2018-08-20 Item 5C - Agreements - Contract Amendment #1 to Discontinue Prosecution Services with Kenyon Disend / 2018 Prosecution Services with Walls Firm for $13,500 per MonthCOUNCIL AGENDA SYNOPSIS
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MeetingDate
Prepared by
Mayor's remen'
Council review
08/20/18
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ITEM INFORMATION
ITEM No.
5.C.
SIAM, SPoNS0R: DAVID CUNE
ORIGINAL AGFND \ DA 1 k: 08/06/18
AckNI) \ ITEM TI11,1 Amendment to Kenyon Disend Contract for City Attorney Services
Contract for Prosecution Services with the Walls Law Firm
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Date 08/20/18
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SPONSOR -ouned OA Mayor 0 IR EDCD jFinane R1 [ITS 0P&R PoIfre P ' our
SPC)NSOW S The Kenyon Disend contract amendment reflects no longer providing prosecution services
SummARy and a reduction in monthly compensation from $46,436 to $33,436.
The City will contract with the Walls Law Firm for prosecution services for a flat rate of
$13,500 per month.
RI xt] Avr D BY El C.O.\X'. Mtg.
El Trans &Infrastructure
DATE: 08/06/18
ri CDN Comm
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111 Parks
Comm.
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CHAIR: HOUGARDY
Public Safety Comm.
EI Planning Comm.
Arts Comm.
COMMI I'l EE
RECOMMENDATIONS:
SPoNsoR/ADmiN.
CONINE
Mayor's Office
IILL, Unanimous Approval; Forward to Consent Agenda on 08/20/18
COST IMPACT / FUND SOURCE
Exri ND' I URI!, RP QUIRFD AMOUNT BUDGETED APPROPRIATION REQUIRED
$ $
Fund Source:
Comments:
MTG. DATE
RECORD OF COUNCIL ACTION
08/20/18
MTG. DATE
ATTACHMENTS
08/20/18
Informational Memorandum dated 08/01/18
Kenyon Disend PLLC Contract Amendment #1
Contract for Prosecution Services with Walls Law Firm
Minutes from the Public Safety Committee meeting of 08/06/18
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City of Tu ila
Allan Ekberg, Mayor
TO:
INFOR
ATIONAL E ORANDU
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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12
City of Tukwila
6200 Southcenter Boulevard, Tukwila WA 98188
1906
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
ATTEST/AUTHENTICATED
Michael R. Kenyon
Managing Member
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 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;
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 4 Kenyon Disend Contract Amendment 2018
Page 2 of 4
N. File and defend appeals of municipal court decisions; and
O. Such other city prosecution matters as arc 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.
Kenyon Disend Contract Amendment 2018
Page 3 of 4 5
EXHIBIT B — 1
COMPENSATION AND METHOD OF PAYMENT
1. 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,
$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.
6 Kenyon Disend Contract Amendment 2018
Page 4 of 4
2905
City of Tukwila
6200 Southcenter Boulevard, Tukwila WA 98188
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 Finn 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 perfoiin such services; and
WHEREAS, the City desires to have the Contractor perform such services pursuant to certain terms
and conditions; now, therefore,
IN CONSIDERATION OF the mutual benefits 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, 2018 and ending December 31, 2018 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 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.
5. 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 Page 1 ofl 7
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. The provisions of this
section shall survive the expiration or termination of this Agreement.
6. Insurance, The Contractor shall procure and maintain for the duration of 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 not 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:
1. Professional Liability 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.
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 liability
insurance shall cover all owned, non -owned, hired and leased vehicles. Coverage shall be written
on Insurance Services Office (ISO) form CA 00 01 or a substitute form providing equivalent
liability coverage. If necessary, the policy shall be endorsed to provide contractual liability
coverage.
3. Commercial General Liability: The Contractor shall procure and maintain in full force
throughout the duration of this Agreement Commercial General Liability insurance with limits
no less than $1,000,000 each occurrence, $2,000,000 general aggregate and $2,000,000
products -completed operations aggregate limit. Commercial General Liability insurance shall
be written on ISO occurrence form 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 form CG 25 03 11 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. The 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 10 01 and Additional Insured-
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Prosecution Services Page 2 of 7
Completed Operations endorsement CG 20 37 10 01 or substitute endorsements providing
equivalent coverage.
4. Workers' Compensation: The Contractor shall procure and maintain Workers' Compensation
coverage as required by the Industrial Insurance laws of the State of Washington.
B. 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 insurance, self-insurance, or insurance pool coverage
maintained by the City shall be 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 furnish 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 performance 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 Inspections. 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 performance of
this Agreement, to the extent permitted by law.
9. Termination. This Agreement may at any time be ten-ninated 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,
Prosecution Services Page 3 of
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. Assignment 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. Entire Agreement; Modification. 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 terin, condition or provision of this Agreement is 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 be sent to the foliowing address:
Walls Law Fiiiii
16300 Christensen Rd
Tukwila, WA 98188
15. 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 , 2018.
CITY OF TUKWILA
Allan Ekberg, Mayor
ATTEST/AUTHENTICATED:
Christy O'Flaherty, City Clerk
WALLS LAW FIRM
Name, Attorney, WSBA No.
APPROVED AS TO FORM:
Rachel Turpin, City Attorney
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Prosecution Services Page 4 of 7
EXHIBIT A - SCOPE OF SERVICES
1. Review, make filing decisions, and file all Tukwila Police Department reports involving misdemeanor
and gross misdemeanor crimes and represent the City on all contested traffic hearings.
2. 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 rnotions,
readiness hearings, bench and/or jury trials, sentencings, review hearings and appeals.
3. 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 retained in
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 (C1_,E) Credits transcript from the Washington State Bar Association
(WSBA) with the Annual Report.
8. 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 of3 1
EXHIBIT B - COMPENSATION AND METHOD OF PAYMENT
1. For all prosecution services set forth in Exhibit A, Contractor shall be paid a flat monthly fee of
$13,500.
2. 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 MONTHLY REPORT
New Filings
vmaitViNEWVITi
AligtOORNiteRattfilba,::sm,
Re erred for pre -filing diversion
Successful completio
e-filin div
ion
Defer
Pro cutio
SOC/ Pre -Trial Diversion Agreem n
DW
S 3 Amended to Infraction
Dismissals prior o Readines
Stipulated Facts Tri
nch Trial
ury Tri
Dismissals — Post Readiness/Day of Trial
Prosecution Services Page 7 o12l3
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NSILA
0
0
City of Tukwila
City Council Public Safety Committee
PUBLIC SAFETY COMMITTEE
Meeting Minutes
August 6, 2018 - 5:30p.m. - Hazelnut Conference Room, City Hall
Councilmembers: Kathy Hougardy, Chair; Dennis Robertson, Thomas McLeod
Staff: David Cline, Bruce Linton, Bill Devlin, Brandon Miles, Jay Wittwer, Don Tomaso,
Kim Walden, Trish Kinlow, Laurel Humphrey
Guests: Justine Kim, Shiels Obletz Johnsen; Steve Goldblatt, Public Safety Plan Program
Management Quality Assurance Consultant; Joe Duffie, resident; Jeff Moser &
John Kleba, Knox Company
CALL TO ORDER: Chair Hougardy called the meeting to order at 5:30 p.m.
I. ANNOUNCEMENT
II. BUSINESS AGENDA
A. Contract Amendment: Demolition Services for Justice Center
Staff is seeking Council approval of Amendment No. 2 with BNBuilders in the amount of
$134,571 for demolition of the property located at 14835 Tukwila International Boulevard. The
6,600 square foot building is vacant and attracting squatters, vermin and associated public
health problems including small fires. BNBuilders has received competitive bids for the
demolition and staff would like to expedite this contract so the demolition can occur as soon
as possible. The cost is budgeted in the Plan and the Program Management Quality Assurance
consultant concurs with the amendment. UNANIMOUS APPROVAL. FORWARD TO AUGUST 6,
2018 REGULAR MEETING.
B. Contracts: Legal and Prosecution Services
Staff is seeking Council approval of a contract amendment with Kenyon Disend, PLLC in the
amount of $33,436 per month for City Attorney services. In addition, because Kenyon Disend will
no longer be sub -contracting out prosecution services, staff is seeking a contract with the Walls
Law Firm in the amount of $13,500 per month for a term ending December 31, 2018. The City
plans to issue an RFP for prosecution services for 2019-2020. The Kenyon Disend contract
amendment shows a cost reduction due to the removal of the prosecution service subcontract.
Committee members expressed support for the RFP process and indicated that cost should not
be the only factor evaluated in an effortto obtain high quality services. UNANIMOUS APPROVAL.
FORWARD TO AUGUST 20, 2018 REGULAR CONSENT AGENDA.
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