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Home My WebLink About01-17-2006 ITEM V-C-2ACITY OF - Ulf WASHINGTON AGENDA BILL APPROVAL FORM Agenda Subject: Date: Consultant Agreement No. AG -C-267 January 4, 2006 Department: Attachments: 1 Budget Impact: Public Works $ 0 Administrative Recommendation: City Council grant permission to enter into Agreement for Professional Services No. AG -C-267 with Eglick Kiker Whited for legal representation related to the Cascade Water Alliance (CWA) and the Puget Sound Energy (PSE) water right applications from the Lake Tapps Project. Background Summary: Eglick Kiker Whited will be continuing to provide legal services relating to the PSE water right: applications for the Lake Tapps project, which PSE is under contract to sell to CWA for municipal water supply. The work includes an appeal of the water rights issued by the Department of Ecology (DOE) before the Pollution Control Hearings Board, litigation in Superior Court relating to the Determination of INon- Significance issued by CWA for their Transmission and Supply Plan, and related advice and representation in other forums as may arise, including the King County Water Supply planning process. The City has spent over $375,000 for related services to date. The not -to -exceed amount for Agreement No. AG -C-267 with Eglick Kiker Whited is $150,000, which is budgeted in the Water Fund for 2006, under professional services. W0117-1 A3.16.9 Reviewed by Council & Committees: Reviewed by Departments & Divisions: ❑ Arts Commission COUNCIL COMMITTEES: ❑ Building ❑ M&O ❑ Airport [IFinance ❑ Cemetery ❑ Mayor ElHearing Examiner C] Municipal Serv. ❑ Finance ❑ Parks ❑ Human Services ❑ Planning & CD ❑ Fire ❑ Planning ❑ Park Board ®Public Works ® Legal ❑ Police ❑ Planning Comm. ❑ Other ® Public Works ❑ Human Resources Action: Committee Approval: ❑Yes ❑No Council Approval: ❑Yes []No Call for Public Hearing Referred to Until Tabled Until Councilmember: Wagner Staff: Dowd Meeting Date: January 17, 2006 Item Number: V.C.2 AUBURN * MORE THAN YOU IMAGINED AGREEMENT FOR PROFESSIONAL SERVICES AG -C-267 THIS AGREEMENT made and entered into by and between the CITY OF AUBURN, a Municipal Corporation in King County, Washington, hereinafter referred to as "CITY" and Eglick Kiker Whited, PLLC, whose address is 2025 1St Ave Ste 450, Seattle WA 98121, hereinafter referred to as "CONTRACT ATTORNEY." In consideration of the covenants and conditions of this Agreement, the parties hereby agree as follows: 1. SCOPE OF WORK. The CONTRACT ATTORNEY shall provide to the CITY legal advice and representation concerning the Cascade Water Alliance and Puget Sound Energy's proposed use of Lake Tapps as a water supply source, including litigation in Superior Court, before the Pollution Control Hearings Board, and related advice and representation in other forums as may arise. The CONTRACT ATTORNEY shall keep the CITY informed of progress and developments, respond to the CITY'S inquiries, and provide to the City copies of documents and correspondence bearing on the case. The CONTRACT ATTORNEY does not guarantee the outcome of this matter. The CITY shall fully and accurately disclose all facts and documents that may be relevant to the matter as requested by the CONTRACT ATTORNEY. The CITY shall make staff reasonably available to attend meetings, discovery proceedings and conferences, hearings, and other proceedings. Agreement for Professional Services AG -C-267 December 13, 2005 Page 1 of 12 2. . TERM. The CONTRACT ATTORNEY shall not begin any work under this Agreement until authorized in writing by the CITY. All work under this Agreement shall be completed by December 31, 2006. The established completion time shall not be extended because of any delays attributable to the CONTRACT ATTORNEY, but may be extended by the CITY in the event of a delay attributable to the CITY, or because of unavoidable delays; caused by an act of GOD or governmental actions or other conditions beyond the control of the CONTRACT ATTORNEY. A prior supplemental Agreement issued by the CITY is required to extend the established completion time. 3. COMPENSATION. The CONTRACT ATTORNEY shall be compensated for the work rendered under the approved Scope of Work on a time and material basis, not to exceed $150,000. Hourly rates shall be as identified in Exhibit A, which is attached hereto and by this reference made a part of this agreement. The CONTRACT ATTORNEY shall not undertake any work or otherwise financially obligate the CITY in excess of said not - to -exceed amount without a duly authorized Amendment issued by the City.. Such payment shall be full compensation for work performed or services rendered for all labor, materials, supplies, equipment, and incidentals necessary to complete the work. The CONTRACT ATTORNEY shall submit an itemized invoice to the CITY prior to payment, in a form similar to that as shown in Exhibit B, which is attached hereto and by this reference made a part of this Agreement. The CONTRACT ATTORNEY shall be paid by the CITY for direct non -salary cost, per attached Exhibit A. The billing for non -salary cost, directly identifiable with the project, shall be submitted as an itemized listing of charges supported by copies of the Agreement for Professional Services AG -C-267 December 13, 2005 Page 2 of 12 original bills, invoices, expense accounts, and miscellaneous supporting data retained by the CONTRACT ATTORNEY. Copies of the original supporting documents shall be supplied to the City upon request. All above charges must be necessary for the services provided under this Agreement. In the event services are required beyond those specified in the Scope of Work, and not included in the compensation listed in this Agreement, a contract modification shall be negotiated and approved by the CITY prior to any effort being expended on such services. It is further acknowledged that the specific contract amount does not include charges by expert witnesses and other consultants who may be retained to participate in these matters and who will be subject to separate contracts approved by the CITY. 4. RESPONSIBILITY OF CONTRACT ATTORNEY. The CONTRACT ATTORNEY shall be responsible for the professional quality, technical accuracy, timely completion and the coordination of all studies, analysis, designs, drawings, specifications, reports and other services performed by the CONTRACT ATTORNEY under this Agreement. The CONTRACT ATTORNEY shall, without additional compensation, correct or revise any errors, omissions or other deficiencies in its plans, designs, drawings, specifications, reports and other services required. The CONTRACT ATTORNEY shall perform its services to conform to generally -accepted professional legal standards and the requirements of the CITY. Any approval by the CITY under this Agreement shall not in any way relieve the CONTRACT ATTORNEY of responsibility for the technical accuracy and adequacy of its services. Except as otherwise provided herein, neither the CITY'S review, approval or acceptance of, nor payment for, any of the services shall be construed to operate as Agreement for Professional Services AG -C-267 December 13, 2005 Page 3 of 12 a waiver of any rights under this Agreement or of any cause of action arising out of the performance of this Agreement to the full extent of the law. 5. INDEMNIFICATION/HOLD HARMLESS. The CONTRACT ATTORNEY shall defend, indemnify and hold the CITY, its officers, officials, volunteers, and employees harmless from and shall process and defend at its own expense any and all claims, injuries, damages, losses, or suits, including attorney fees or equity arising in whole or in part from the acts, errors or omissions of the CONTRACT ATTORNEY in performance of this Agreement, or the CONTRACT ATTORNEY'S negligence or breach of any of its obligations under this Agreement; provided that nothing herein shall require the CONTRACT ATTORNEY to indemnify the CITY against and hold harmless the CITY from claims, demands or suits based solely upon the sole negligence of the CITY, its officers, officials, volunteers, and employees, and provided further that if the claims or suits are caused by or result from the concurrent negligence of (a) the CONTRACT ATTORNEY'S agents or employees and (b) the CITY, its officers, officials, volunteers, or employees, this indemnity provision with respect to (1) claims or suits based upon such negligence, (2) the costs to the CITY of defending such claims and suits, etc., shall be valid and enforceable only to the extent of the CONTRACT ATTORNEY'S negligence or the negligence of the CONTRACT ATTORNEY'S agents or employees. The provisions of this section shall survive the expiration or termination of this Agreement. 6. INDEPENDENT CONTRACTOR/ASSIGNMENT The parties agree and understand that the CONTRACT ATTORNEY is an independent contractor and not the agent or employee of the CITY and that no liability shall attach to the CITY by reason of entering into this Agreement except as otherwise Agreement for Professional Services AG -C-267 December 13, 2005 Page 4 of 12 provided herein. The parties agree that this Agreement may not be assigned in whole or in part without the written consent of the CITY. 7. INSURANCE. CONTRACT ATTORNEY shall procure and maintain for the duration of this 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 CONTRACT ATTORNEY, its agents, representatives, or employees. CONTRACT ATTORNEY shall obtain insurance of the types and in the amounts described below: 1. Automobile Liability insurance covering all owned, non -owned, hired and leased vehicles, with a minimum combined single limit for bodily injury and property damage of $1,000,000 per accident. 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. 2. Commercial General Liability insurance shall be written on ISO occurrence form CG 00 01 and shall cover liability arising from premises, operations, independent contractors, and personal injury and advertising injury, with limits no less than $1,000,000 each occurrence, $2,000,000 general aggregate. The CITY, its officers, employees and agents shall be named as an insured under the CONTRACT ATTORNEY'S Commercial General Liability insurance policy with respect to the work performed for the CITY. 3. Worker's Compensation coverage as required by the Industrial Insurance laws of the State of Washington. Agreement for Professional Services AG -C-267 December 13, 2005 Page 5 of 12 4. Professional Liability insurance appropriate to the CONTRACT ATTORNEY'S profession, with limits no less than $1,000,000 per claim and $1,000,000 policy aggregate limit. The insurance policies are to contain, or be endorsed to contain, the following provisions for Automobile Liability, Professional Liability, and Commercial G3eneral Liability insurance: The general liability coverage shall also provide that the CITY, its officers, employees and agents are to be covered as additional insured as respects: Liability arising out of the services or responsibilities performed by or under obligation of the CONTRACT ATTORNEY under the terms of this Agreement, by the CONTRACT ATTORNEY, its employees, agents and subcontractors. The CONTRACT ATTORNEY'S insurance coverage shall be primary insurance as respects the CITY, its officials, employees and agents. Any insurance, self insurance, or insurance pool coverage maintained by the CITY, its officials, employees or agents shall be excess of the CONTRACT ATTORNEY'S insurance and shall not contribute with it. Each insurance policy required by this section of the Agreement shall be endorsed to state that coverage shall not be suspended, voided, or cancelled by either party except after thirty (30) days prior written notice has been given to the CITY by certified mail, return receipt requested. All insurance shall be obtained from an insurance company authorized to do business in the State of Washington. Insurance is to be placed with insurers with a current A.M. Best rating of not less than A;VII. The CONTRACT ATTORNEY shall furnish the City with original certificates of insurance and a copy of the amendatory endorsements, including but not necessarily limited to the additional insured endorsement, evidencing the insurance coverage Agreement for Professional Services AG -C-267 December 13, 2005 Page 6 of 12 required by this section within 14 days of the execution of this Agreement. The CITY reserves the right to require that complete, certified copies of all required insurance policies be submitted to the CITY at any time. The CITY will pay no progress payments under Section 3 until the CONTRACT ATTORNEY has fully complied with this section. 8. NONDISCRIMINATION. The CONTRACT ATTORNEY may not discriminate regarding any services or activities to which this Agreement may apply directly or through contractual, hiring, or other arrangements on the grounds of race, color, creed, religion, national origin, sex, age, or where there is the presence of any sensory, mental or physical handicap. 9. OWNERSHIP OF RECORDS AND DOCUMENTS. The CONTRACT ATTORNEY agrees that any and all drawings, computer discs, documents, records, books, specifications, reports, estimates, summaries and such other information and materials as the CONTRACT ATTORNEY may have accumulated, prepared or obtained as part of providing services under the terms of this Agreement by the CONTRACT ATTORNEY, shall belong to and shall remain the property of the CITY OF AUBURN. In addition, the CONTRACT ATTORNEY agrees to maintain all books and records relating to its operation and concerning this Agreement for a period of six (6) years following the date that this Agreement is expired or otherwise terminated. The CONTRACT ATTORNEY further agrees that the CITY may inspect any and all documents held by the CONTRACT ATTORNEY and relating to this Agreement upon good cause at any reasonable time within the six (6) year period. The CONTRACT ATTORNEY also agrees to provide to the CITY, at the CITY'S request, the originals of all drawings, documents, and items specified in this Section and information compiled in providing services to the CITY under the terms of this Agreement. Agreement for Professional Services AG -C-267 December 13, 2005 Page 7 of 12 10. CERTIFICATION REGARDING DEBARMENT SUSPENSION. AND OTHER RESPONSIBILITY MATTERS -PRIMARY COVERED TRANSACTIONS. The prospective primary participant certifies to the best of its knowledge and belief, that it and its principals: (a) Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions by any federal department or agency; (b) Have not within a three-year period preceding this proposal been convicted of or had a civil judgment rendered against them for commission or fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (federal, state, or local) transaction or contract under a public transaction; violation of federal or state antitrust statues or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property; (c) Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (federal, state, or local) with commission of any of the offenses enumerated in paragraph "(b)" of this certification; and (d) Have not within a three-year period preceding this application/proposal had one or more public transactions (federal, state, or local) terminated for cause or default. Where the prospective primary participant is unable to certify to any of the statements in this certification, such prospective participant shall attach an explanation to this proposal. Agreement for Professional Services AG -C-267 December 13, 2005 Page 8 of 12 11. TERMINATION OF AGREEMENT. This Agreement may be terminated by either party upon twenty (20) days written notice to the other party, and based upon any cause. In the event of termination due to the fault of other(s) than the CONTRACT ATTORNEY, the CONTRACT ATTORNEY shall be paid by the CITY for services performed to the date of termination. Upon receipt of a termination notice under the above paragraph, the CONTRACT ATTORNEY shall (1) promptly discontinue all services affected as directed by the written notice, and (2) deliver to the CITY all data, drawings, specifications, reports, estimates, summaries, and such other information and materials as the CONTRACT ATTORNEY may have accumulated, prepared or obtained in performing this Agreement, whether completed or in process. 12. GENERAL PROVISIONS. 12.1. This Agreement shall be governed by the laws, regulations and ordinances of the City of Auburn, the State of Washington, King County, and where applicable, Federal laws. 12.2. All claims, disputes and other matters in question arising out of, or relating to, this Agreement or the breach hereof, except with respect to claims which have been waived, will be decided by a court of competent jurisdiction in King County, Washington. Pending final decision of a dispute hereunder, the CONTRACT ATTORNEY and the CITY shall proceed diligently with the performance of the services and obligations herein. Agreement for Professional Services AG -C-267 December 13, 2005 Page 9 of 12 12.3. In the event that any dispute or conflict arises between the parties while this Agreement is in effect, the CONTRACT ATTORNEY agrees that, notwithstanding such dispute or conflict, the CONTRACT ATTORNEY shall continue to make a good faith effort to cooperate and continue work toward successful completion of assigned duties and responsibilities. 12.4. The CITY and the CONTRACT ATTORNEY respectively bind themselves, their partners, successors, assigns, and legal representatives to the other party to this Agreement with respect to all covenants to this Agreement. 12.5. This Agreement represents the entire and integrated Agreement between the CITY and the CONTRACT ATTORNEY and supersedes all prior negotiations, representations or agreements either oral or written. This Agreement may be amended only by written instrument signed by both the CITY and the CONTRACT ATTORNEY. 12.6. Should it become necessary to enforce any term or obligation of this Agreement, then all costs of enforcement including reasonable attorneys fees and expenses and court costs shall be paid to the substantially prevailing party,. 12.7. The CONTRACT ATTORNEY agrees to comply with all local, state and federal laws applicable to its performance as of the date of this Agreement. 12.8. If any provision of this Agreement is invalid or unenforceable, the remaining provisions shall remain in force and effect. Agreement for Professional Services AG -C-267 December 13, 2005 Page 10 of 12 12.9. This Agreement shall be administered by Peter Eglick on behalf of the CONTRACT ATTORNEY, and by the Mayor of the CITY, or designee, on behalf of the CITY. Any written notices required by the terms of this Agreement shall be served on or mailed to the following addresses: City of Auburn Attn: Dan Heid, City Attorney 25 W Main Street Auburn WA 98001 Phone: 253.931.3054 Fax: 253. 931.4007 E-mail: dheid@auburnwa.gov Eglick Kiker Whited Attn: Peter Eglick 2025 1 st Ave Ste 450 Seattle WA 98121 Phone: 206.441.1069 Fax: 206.441.1089 E-mail: eglick@ek�ivlaw.com 12.10. All notices or communications permitted or required to be given under this Agreement shall be in writing and shall be delivered in person or deposited in the United States mail, postage prepaid. Any such delivery shall be deemed to have been duly given if mailed by certified mail, return receipt requested, and addressed to the address for the party set forth in 12.9 or if to such other person designated by a party to receive such notice. It is provided, however, that mailing such notices or communications by certified mail, return receipt requested is an option, not a requirement, unless specifically demanded or otherwise agreed. Any party may change his, her, or its address by giving notice in writing, stating his, her, or its new address, to any other party, all pursuant to the procedure set forth in this section of the Agreement. 12.11. This Agreement may be executed in multiple counterparts, each of which shall be one and the same Agreement and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other party. Agreement for Professional Services AG -C-267 December 13, 2005 Page 11 of 12 CITY OF AUBURN Peter B Lewis, Mayor Date ATTEST: Danielle E. Daskam, City Clerk EGLICK KIKER BY: Title: Federal ax ID Agreement for Professional Services AG -C-267 December 13, 2005 Page 12 of 12 20-3068969 EXHIBIT A FEE SCHEDULE CHARGES: Charges for employees are determined by the hourly rates listed below and include all costs for direct salary, overhead and profit. Charges for reimbursable direct non - salary expenses are specified below. Personnel Labor Rates Labor Category Hourly Rate Labor Category Hourly Rate Peter Eglick, Attorney $225.00 Rachel Bright, Paralegal $75.00 Josh Whited $185.00 Expense Rates Expense Category Billing Rate Mileage $0.445/mile Outside Services or Subcontractors Cost Outside Copies, Materials and Supplies Cost Filing Fees Cost Delivery/Messenger Services Cost Long Distance Telephone Charges Cost Exhibit A Agreement No. AG -C-267 Page 1 of 1 EXHIBIT B CONTRACT ATTORNEY INVOICES CONTRACT ATTORNEY invoices should contain the following information: • On CONTRACT ATTORNEY letterhead. • A cover letter stating the status of each task. This should include items completed, percent completed during the billing period and completion along with funding status. • Internal invoice number and/or sequential numeric number (i.e.: progress payment # 10). • Invoice date. • Period of time invoice covers. • CONTRACT ATTORNEY Agreement # (i.e.: AG -C-115). • Project number(s) listed (i.e.: PR562). • City's project manager listed: City Attorney • The hour(s) per person broken down by task(s) (attach timesheets, spreadsheet detailing timesheets, or some other form of proof) along with type of work done (i.e.: design, right-of-way, or construction) or task order number. • Previous and remaining base contract amounts left in total contract — total authorized amount (bottom line figure). Add amendments to this base contract amount for total authorized amount. • Status of Management Reserve Fund (MRF) (i.e.: a certain task) until we can get an amendment in place. • For grant/special funded projects there might be other special information needed, reference the LAG manual. Exhibit B Agreement No. AG -C-267 Page 1 of 2 City of Auburn 25 West Main Auburn WA 98001 Attn: Scott Nutter (Project Engineer) Agency Agreement #: AG -C-010 SAMPLE INVOICE Invoice #: 5222 Progress Payment #: 2 Invoice Date: February 10, 2002 Project Name: Thomas Nelson Farm Project #: PR562 Engineering Services performed during the period of: January 2002 SAMPLE ENGINEERING, INC. Personnel Hours Hourly Rate Amount Amount Mike Jones, Principal in Charge 1 $ 125.00 $ 125.00 Carla Maker, Architect 5 $ 72.00 $ 360.00 Joe Smith, Word Processing 10 $ 48.00 $ 480.00 CONTRACT ATTORNEY Personnel Subtotal 1,000.00 Moving Company, Moving CONTRACT ATTORNEY $ 965.00 Expenses see attached documentation Char es Multiplier Amount Amount Mileage $0.405/mile 20 miles x1.1 $ 8.91 Communications $ 30.00 x1.1 $ 33.00 Printing $ 29.00 x1.1 $ 31.90 CONTRACT ATTORNEY Expenses Subtotal 1,000.00 Moving Company, Moving CONTRACT ATTORNEY $ 73.81 CONTRACT ATTORNEY Total: SUB CONTRACT ATTORNEYS (see attached documentation) $1,038.81 SubCONTRACT ATTORNEY Hours Hourly Rate Amount ABC Environmental, Inc., Civil Engineer 10 $ 100.00 $ 1,000.00 Electrical Consulting, Electrical Engineer 5 $ 100.00 25% 500.00 Mechanical Solutions, Mechanical Engineer 10 $ 100.00 MRF 1,000.00 Moving Company, Moving CONTRACT ATTORNEY 2 $ 50.00 $ 1,025.00 100.00 SubCONTRACT ATTORNEY Subtotal $ 19,576.19 $ 2,600.00 Subtotal x 1.1 Multiplier Is 2,860.00 SubCONTRACT ATTORNEY Total: -------------------------------------- ------------------------- TOTAL DUE THIS INVOICE CONTRACT BREAKDOWN $ 2,860.00 $ ;3,898.81 Task Amount Authorized Prior Invoiced This Invoice Total Invoiced To Date % Expended % Com leted Amount Remaining Original Contract $22,000.00 $ 1,025.00 $ 2,898.81 $ 3,923.81 17.8% 25% $ 18,076.19 MRF* 2,500.00 0.00 1,000.00 1,000.00 40% 45% 1,500.00 TOTAL $ 24,500.00 $ 1,025.00 $ 3,898.81 1 $ 4,923.81 $ 19,576.19 Note: MRF=Management Reserve Fund * Received a written authorization of MRF on 1/10/01 for Mechanical Engineer task in they amount of $2,000.00. Exhibit B Agreement No. AG -C-267 Page 2 of 2