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RESOLUTION NO.3 2 9 4
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AUBURN, KING
COUNTY, WASHINGTON, AUTHORIZING THE MAYOR AND CITY CLERK TO
EXECUTE AN AGREEMENT FOR PROFESSIONAL SERVICES BETWEEN THE
CITY OF AUBURN AND THOMAS D. MORTIMER, JR., ATTORNEY AT LAW,
FOR THE PURPOSE OF PROVIDING LEGAL SERVICES RELATING TO THE
CITY'S MUNICIPAL WATER RIGHTS.
WHEREAS, the City water utility is an enterprise fund that is in need of
professional services; and
WHEREAS, the determination and expansion of water rights is a function of
the water utility; and
WHEREAS, the City of Auburn recognizes that it is more cost effective to
contract with a third party to administer the program;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN,
WASHINGTON, IN A REGULAR MEETING DULY ASSEMBLED, HEREWITH
RESOLVES THAT:
Section 1. The Mayor and City Clerk of the City of Auburn, Washington are
herewith authorized to execute an Agreement for Professional Services between
the City of Auburn and THOMAS D. MORTIMER, JR., Attorney at Law, to provide
legal services relating to the City's municipal water rights. A copy of said
Agreement is attached hereto and denominated as Exhibit "A".
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Resolution No. 3294
December 11, 2000
Page 1
Section 2. The Mayor is hereby authorized to implement such
administrative procedures as may be necessary to carry out the directives of this
legislation.
DATED and signed this
ATTEST:
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Da . lie E. Daskam
City Clerk
A PROVED AS TO FORM:
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Michael J. Reynolds
City Attorney
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Resolution No. 3294
December 11, 2000
Page 2
/J '0 day of December 2000.
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CHARLES A. BOOTH "
Mayor
AGREEMENT FOR PROFESSIONAL SERVICES
AG-C-ll
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
with, Thomas D. Mortimer, Jr. an individual whose address is 1325 Fourth Avenue Seattle, W A
98101, hereinafter referred to as "CONSULTANT".
In consideration of the covenants and conditions ofthis Agreement, the parties hereby
agree as follows:
I. SCOPE OF WORK.
See attached Exhibit A.
2. TERM.
The term of the Agreement for Professional Services shall begin upon acceptance
the CITY and will expire as of December 31, 2001. The CONSULTANT shall be available on
an on-call basis to provide professional special legal advice and counsel to the CITY. Work task
orders shall include the number of days each assignment is to be completed from the date of the
approved individual work task order.
3. COMPENSATION.
The total amount of the Agreement is not to exceed $75,000.00. Compensation
shall be on the basis of the CONSULTANT hourly billing rates of$150.00 per hour (see Exhibit
B). Hourly Billing Rates include the total compensation paid to the CONSULTANT to cover
salaries, benefits, and overhead costs ofthe CONSULTANT. In addition to the Hourly Billing
Rate, the CITY will compensate the CONSULTANT for direct out of pocket expenses associated
with long distance phone, fax, cellular phone, travel, copying, and any other activities related to
this Agreement. Expenses are to be itemized and included in invoices. The CITY may request
documentation of expenses.
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Agreement for Professional Services AG~C-11
November 21, 2000
Page 1 of 11
The CONSULTANT shall be paid by the CITY for completed services rendered under
the approved individual work task orders for each assignment. Such payment shall be full
compensation for work performed or services rendered and for all labor, materials, supplies,
equipment and incidentals necessary to complete the work. The CONSULTANT shall submit an
itemized bill to the CITY prior to payment.
The CONSULTANT shall be paid by the CITY based upon fees included on each
individual approved work task order. These fees will be "NOT TO EXCEED" lump sum figures
based on hourly rates as shown on the attached Exhibit A for legal advice and counsel.
Compensation shall include all consultant expenses including, but not limited to, overhead, profit
and direct salary costs and shall not exceed that amount as shown on each approved individual
work task order under tþis contract. CONSULTANT shall not be paid for any work extending
beyond the ''NOT TO EXCEED" figure without prior written approval from the CITY.
4. RESPONSIBILITY OF CONSULTANT.
The CONSULTANT shall be responsible for the professional quality, technical accuracy,
timely completion and the coordination of all taskings and other services performed by the
CONSULTANT under this Agreement. The CONSULTANT shall, without additional
compensation, correct or revise any errors, omissions or other deficiencies in its work. The
CONSULTANT shall perform its services to conform to generally accepted professional (legal
standards) and the program the requirements of the CITY.
Any approval by the CITY under this Agreement shall not in any way relieve the
CONSULTANT 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 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.
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Agreement for Professional Services AG-C~11
November 21, 2000
Page 2 of 11
5. INDEMNIFICATlONIHOLD HARMLESS.
The CONSULTANT shall indemnify and hold the CITY and its officers and employees
harmless from and shall process and defend at its own expense all claims, demands, or suits at
law or equity arising in whole or in part from the CONSULTANT'S negligence or breach of any
of its obligations under this Agreement; provided that nothing herein shall require the
CONSULTANT to indemnify the CITY against and hold harmless the CITY from claims,
demands or suits based solely upon the conduct of the CITY, their agents, officers and
employees and provided further that if the claims or suits are caused by or result from the
concurrent negligence of (a) the CONSULTANT'S agents or employees and (b) the CITY, their
agents, officers and 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 CONSULTANT'S negligence or the negligence of
the CONSULTANT'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 CONSULTANT 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 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.
CONSULTANT shall procure and maintain for the duration of this Agreement
professional liability coverage in the minimum liability limits of ONE MILLION DOLLARS
($1,000,000) per claim and ONE MILLION DOLLARS ($1,000,000) aggregate.
The professional liability coverage shall provide that the CONSULTANT'S insurance
coverage shall be primary insurance as respects the CITY, its officials, employees and agents.
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Agreement for Professional Services AG-C-11
November 21, 2000
Page 3 of 11
Any insurance or self insurance maintained by the CITY, its officials, employees or agents shall
be excess to the CONSULTANT'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 canceled except when 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. The
CONSULTANT agrees to provide copies of the certificates of insurance to the CITY specifying
the coverage 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 CONSULTANT has fully complied with this section.
8. NONDISCRIMINATION.
The CONSULTANT 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 ofrace, 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 CONSULTANT agrees that any and all drawings, computer discs, documents,
records, books, specifications, reports, estimates, summaries and such other information and
materials as the CONSULTANT may have accumulated, prepared or obtained as part of
providing services under the terms of this Agreement by the CONSULTANT, shall belong to and
shall remain the property of the CITY OF AUBURN. In addition, the CONSULTANT 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 CONSULTANT further agrees that the CITY may inspect any and all documents held by the
CONSULTANT and relating to this Agreement upon good cause at any reasonable time within
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Agreement for Professional Services AG-C-11
November 21, 2000
Page 4 of 11
the six (6) year period. The CONSULTANT 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.
Reuse by the CITY of any of the drawings, computer discs, documents, records, books,
specifications, reports, estimates, summaries and such other information and materials on
extensions of this project or any other project without the written permission of the
CONSULTANT shall be at the CITY'S sole risk.
10. 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 CONSULTANT, the CONSULTANT 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 CONSULTANT
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 CONSULTANT may have accumulated, prepared or
obtained in performing this Agreement, whether completed or in process.
11. GENERAL PROVISIONS.
11.1. 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.
11.2. 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 CONSULTANT and the CITY shall proceed diligently with
the performance of the services and obligations herein.
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Agreement for Professional Services AG-C-11
November 21, 2000
Page 5 of 11
11.3. The CITY and the CONSULTANT 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.
11.4. This Agreement represents the entire and integrated Agreement between the CITY
and the CONSULTANT 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 CONSULTANT.
11.5. 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.
11.6. The CONSULTANT agrees to comply with all local, state and federal laws
applicable to its performance as of the date of this Agreement.
11.7. If any provision of this Agreement is invalid or unenforceable, the remaining
provisions shall remain in force and effect.
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Agreement for ProfessionaL Services AG-C-11
November 21, 2000
Page 6 of 11
CITY OF AUBURN
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Charles A. Booth, Mayor
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Date
ATTEST:
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D lie E. Daskam, City Clerk
APPROVED AS TO FORM:
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Michael J. Reynolds, City Attorney
Thomas D. Mortimer, Jr.
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Title: ~'-""'z.r - A.~':::J
Address: 1325 Fourth Avenue
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Address: Seattle. W A 9810 I
Phone: 206.447.9036
Fax #: 206.447.9105
Federal Tax ID #
REF. H:\FORMS\FE054 (R 7/99)
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Agreement for Professional Services AG-C-11
November 21, 2000
Page 7 of 11
EXHIBIT A
SCOPE OF WORK
(WORK TASK ORDER AGREEMENT)
Each item of work under this Agreement will be provided by task assignment. Each assignment
will be individually negotiated with the CONSULTANT. The amount established for each
assignment will be the maximum amount payable for that assignment unless modified in writing
by the CITY. The CITY is not obligated to assign any specific number oftasks to the
CONSULTANT, and the CITY'S and CONSULTANT'S obligations hereunder are limited to
tasks assigned in writing. Task assignments may include, but are not limited to the following
types of work:
The scope of work covered by this Agreement is generally described as legal advice and counsel
relating to municipal water supply and water rights.
Potential tasks in this Agreement may include, but are not limited to the following:
I. Work in a collaborative an advisory capacity to Auburn's water utility on matters relating to
the strategic planning, protection, development, and management of Auburn's water rights
and municipal water supply system;
2. Represent Auburn's water utility's interests in negotiations, discussions, and/or permitting
processes involving the Department of Ecology, Department of Health and other appropriate
state and federal agencies on matter pertaining to the regulation, protection, beneficial use,
distribution, and development of Auburn's existing water permits, certificates and claims.
3. Advise and assist Auburn's water utility in the development and implementation of
appropriate legal, regulatory, legislative, and/or negotiation processes designed to secure new
primary water rights, supplemental water rights, and water right changes sufficient to meet
future demand as determined by its most recently adopted Comprehensive Water System
Plan and Growth management plan, and/or demands identified by neighboring water systems
or municipalities which lack available, developable supplies. This may include assisting in
the development and negotiation of:
(i) applications for water rights: including primary rights; supplemental rights; water right
changes/transfers; interties; and service area expansions necessary to meet water supply demands
within and without the service area boundaries of Auburn's water utility;
4. Advise and assist Auburn's water utility in development of agreements and/or negotiation
processes with the Muckleshoot Indian Tribe (MIT) which shall enable Auburn's water
utility to:
· build a long term cooperative, trust-based, and mutually beneficial relationship with the MIT;
· respond to MIT interests relative to on-reservation supply, ground water quality, and habitat
protection;
· protect, develop, and secure changes to its existing rights, claims, and certificates with MIT
cooperation;
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Agreement for Professional Services AG-C-11
November 21, 2000
Page 8 of 11
. secure new primary and supplemental water rights, changes, intertie approvals, and/or other
regulatory actions necessary to meet future local and regional projected water demands;
. collaborate in the development of water resource data, studies, and analysis which may be
used to: (a) prepare a basin assessment to be used by Ecology for the purpose of making
10cal/WRIA-based water right and resource management decisions; (b) support existing
water rights, new water right applications, and/or changes applications, interties, artificial
recharge, and other resource management options, and (c) determine appropriate resource
protection standards, mitigation practices, and monitoring approaches.
5. Advise and represent as directed, Auburn's water resource interests within any central Puget
Sound basin planning process. Services may include monitoring basin planning efforts,
active representation, policy analysis, strategic planning, and coordination with other local
governments.
6. Advise and assist Auburn's water utility on Endangered Species Act issues directly
impacting water utility operations.
7. Perform other tasks relating to other issue (non-water utility) items. This contract may serve
as the basis for CONSULTANT performing tasks for other CITY departments, as
appropriately authorized and funded from the requesting other CITY department. In such
instances, task direction shall come from said other CITY department and related reports and
briefings shall be directed to said other CITY department.
Work that would exceed the authorized budget amount for a specific task will require additional
written authorization from CITY prior to being performed.
Primary CITY contact for this Agreement is Christine Engler, Public Works Director. All the
material and work products prepared under this Agreement and to be delivered to CITY shall be
addressed to Christine Engler, Public Works Director, except when working on task as directed
and funded by other CITY departments.
Task assignments made by the CITY shall be issued in writing by a Formal Task Assignment
Document similar in format to page 3 of this exhibit.
An assignment shall be come effective when a Formal Task Assignment Document is signed by
the CONSULTANT and the CITY, except that emergency actions requiring a 24-hour or less
response can be handled by an oral authorization. Such oral authorization shall be followed up
with a Formal Task Assignment Document within four working days, and any billing rates
agreed to orally (for individuals, subconsultants, or organizations whose rates are not previously
established in the Agreement) shall be provisional and subject to final negotiation and acceptance
by the CITY.
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Agreement for Professional Services AG-C-11
November 21, 2000
Page 9 of 11
Date:
ANNUAL CONTRACTS TASK ASSIGNMENT DOCUMENT
AGREEMENT #:
TASK #:
CONSULTANT:
PROJECT #:
The general provisions and clauses of Agreement referenèed above shall be in full force and
effect for this Task Assignment.
Location of Project:
Maximum Amount Payable Per Task Assignment:
Completion Date:
Description of Work:
(Note attachments and give brief description)
Agency Project Manager:
Signature:
Date:
Oral Authorization Date:
See Letter Dated:
Consultant Signature:
Date:
If over $5,000 the Section Manager (Design, Traffic, Utilities) must sign here:
Signature:
Date:
Cc: Engineering Aide
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Agreement for Professional Services AG-C-11
November 21, 2000
Page 10 of 11
EXHIBIT B
LAW OFFICES
THOMAS D. MolITlMER, JR.
940 PUGET SOUND PLAZA
J 325 FOURTH AVENUE
SEATTLE. WASHINGTON 98101
PHONE: (206) 447~9036
FAX: (206) 4..7·9105
October 18, 2000
Ms. Christine Engler
Public Works Director
City of Auburn
25 W. Main
Auburn, WA 98001- 4998
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OCT 1 9 2000
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Dear Christine:
I am writing to infonn you that I will be changing my legal services fee structure
beginning in January, 2001 for both existing and new clients.
As of January 1,2001, I will be charging a new billable rate of$150.00 an hour
for all legal services rendered to the City of Auburn (Auburn). This rate represents a
$15.00 increase ITom the $135.00 an hour rate which I have charged for the past two
years. I will continue to base my present mileage charge on the most current IRS
guidelines.. The new fee structure is extremely competitive given my areas of expertise
and complexity of client projects. It also reflects increased overhead costs my practice is
incurring, particularly in the areas of clerical, outside support, and
administrative/overhead costs. New clients will be billed at a rate of$175.00 an hour.
It is my intention to maintain the overhead management efforts that have kept my
rates low and should continue to offer Auburn a highly competitive rate structure in the
coming years. AJ1y further increase in rates or charges after 2001 or beyonµ will occur
only after consultation with you and other clients. Please let me know if you have any
comments or questions regarding the fee structure discussed above.
In closing, it has been my privilege and pleasure to work for Auburn and I look
forward to serving you in the future. I wish you and your new staff much success in
2001.
Sincerely,
\:t:~ D. Mortimer Jr.
Attorney at Law
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Agreement for Professional Services AG-C-11
November 21, 2000
Page 11 of 11