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RESOLUTION NO.3 8 7 4
A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF AUBURN, WASHINGTON, AUTHORIZING
THE MAYOR AND CITY CLERK TO EXECUTE A
TECHNICAL SERVICES AGREEMENT BETWEEN
THE CITY OF AUBURN AND WARREN BARBER
AND FONTES, P.S. TO PROCURE TEMPORARY
PROSECUTING ATTORNEY SERVICES
WHEREAS, the City of Auburn is engaged in various municipal
functions, including prosecution of criminal cases; and
WHEREAS, typically, prosecution services are provided by in-house
employee prosecutors; and
WHEREAS, there are times when additional services, in addition to
those that can be provided by in-house employee prosecutors, are needed; and
WHEREAS, the City has a need to contract for additional prosecutor
services due to current workload needs and the leave status of one of the City
prosecutors; and
WHEREAS, in order to provide for such services, it is appropriate that
the City enter into to contracts with other agencies or entities; and
WHEREAS, the City has negotiated a contract with the law firm of
Warren Barber and Fontes, P.S. for to provide for such services at a cost that is
acceptable to the City.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN,
WASHINGTON, HEREBY RESOLVES AS FOLLOWS:
-------------------------------
Resolution No. 3874
July 12, 2005
Page 1
Section 1. That the Mayor and the City Clerk are authorized to
execute an agreement in substantial conformity with the Agreement attached
hereto, marked as Exhibit "A" and incorporated herein by this reference.
Section 2. That the Mayor is authorized to implement such
administrative procedures as may be necessary to carry out the directives of
this legislation.
Section 3. That this Resolution shall take effect and be in full force
upon passage and signatures hereon.
Dated and Signed this ¡gf:t day of ~
CITY OF AUBURN
(~~
~TER B. LEWIS
MAYOR
,2005.
ATTEST:
æ,~
Da . lie E. Daskam,
City Clerk
-~-----------------------------
Resolution No. 3874
July 12, 2005
Page 2
CITY OF AUBURN AGREEMENT
FOR TEMPORARY AGENCY SERVICES
THIS AGREEMENT made and entered into on this .;:<dÞ day of JlA.1 '
200 G , by and between the City of Auburn, a municipal corporation of the State of ashington,
hereinafter referred to as "City" and _the law firm of Warren Barber & Fontes,
P.S. , hereinafter referred to as the "Service Provider."
WITNESSETH:
WHEREAS, the City is engaged in providing various municipal services to its
community, and is occasionally in need of services of individuals, employees or firms on a
temporary basis for such services; and,
WHEREAS, the City desires to retain the Service Provider to provide temporary
employment services in connection therewith; and,
WHEREAS, the Service Provider is qualified and able to provide such services, and is
willing and agreeable to provide such services upon the terms and conditions herein contained.
NOW, THEREFORE, the parties hereto agree as follows:
1. Scope of Services.
The Service Provider agrees to perform in a good and professional manner the tasks
described on Exhibit "A" attached hereto and incorporated herein by this reference. (The
tasks described on Exhibit "A" shall be individually referred to as a "task," and
collectively referred to as the "services. ") The Service Provider shall perform the
services as an independent contractor and shall not be deemed, by virtue of this
Agreement and the performance thereof, to have entered into any partnership, joint
venture, employment or other relationship with the City.
2. Additional Services.
From time to time hereafter, the parties hereto may agree to the performance by the
Service Provider of additional services with respect to related work or projects. Any such
agreement( s) shall be set forth in writing and shall be executed by the respective parties
prior to the Service Provider's performance of the services there under, except as may be
provided to the contrary in Section 3 of this Agreement. Upon proper completion and
execution of an addendum (agreement for additional services), such addendum shall be
incorporated into this Agreement and shall have the same force and effect as if the terms
of such addendum were a part of this Agreement as originally executed. The
performance of services pursuant to an addendum shall be subject to the terms and
conditions of this Agreement except where the addendum provides to the contrary, in
which case the terms and conditions of any such addendum shall control. In all other
respects, any addendum shall supplement and be construed in accordance with the terms
and conditions of this Agreement.
Page lof9
3. Performance of Additional Services Prior to Execution of an Addendum.
The parties hereby agree that situations may arise in which services other than those
described on Exhibit "A" are desired by the City and the time period for the completion
of such services makes the execution of addendum impractical prior to the
commencement of the Service Provider's performance of the requested services. The
Service Provider hereby agrees that it shall perform such services upon the oral request of
an authorized representative of the City pending execution of an addendum, at a rate of
compensation to be agreed to in connection therewith. The City's request for additional
services shall not include a request that the Service Provider provide more than one
attorney/prosecutor to the City. The invoice procedure for any such additional services
shall be as described in Section 7 of this Agreement.
4. Service Provider's Representations.
The Service Provider hereby represents and warrants that he has all necessary licenses
and certifications to perform the services provided for herein, and is qualified to perform
such services.
5. Citv's Responsibilities.
The City shall do the following in a timely manner so as not to delay the services of the
Service Provider;
a. Designate in writing a person to act as the City's representative with respect to the
services. The City's designee shall have complete authority to transmit
instructions, receive information, interpret and define the City's policies and
decisions with respect to the services.
b. When applicable, the City shall provide a work place for temporary employees
provided by the Service Provider and maintain the work place in accordance with
applicable health and working standards, and shall notify the Service Provider
immediately of any and all employee injuries and provide reimbursement to the
Service Provider for out-of-pocket costs incurred as a result of performing City
business such as mileage at the rate set forth in Exhibit "B" attached hereto, and other
out-of-pocket costs at the normal City rates.-
c. The City agrees to provide the Service Provider's attorney/prosecutor with a morning
and afternoon break, fifteen (IS) minutes in length, and one (I) hour for lunch.
6. Compensation.
As compensation for the Service Provider's performance of the services provided for
herein, the City shall pay the Service Provider the fees and costs specified on Exhibit "B"
attached hereto and made a part hereof (or as specified in an addendum). The Service
Provider shall submit to the City an invoice or statement of time spent on tasks included
in the scope of work provided herein, and the City shall process the invoice or statement
in the next billing/claim cycle following receipt of the invoice or statement, and shall
remit payment to the Service Provider thereafter in the normal course, subject to any
conditions or provisions in this Agreement or addendum.
Page 2 of9
7. Time for Performance and Term of Agreement.
The Term of this Agreement shall commence on the date hereof or on the ) [JI""::' day
of <fr .let(/¡ , 200!5 , and continue thereafter on an ongoing basis for a
period of ninety&90) days..
8. Records Inspection and Audit.
All compensation payments shall be subject to the adjustments for any amounts found
upon audit or otherwise to have been improperly invoiced, and all records and books of
accounts pertaining to any work performed under this Agreement shall be subject to
inspection and audit by the City for a period of up to three (3) years from the final
payment for work performed under this Agreement.
9. Continuation of Performance.
In the event that any dispute or conflict arises between the parties while this Contract is in
effect, the Service Provider agrees that, notwithstanding such dispute or conflict, the
Service Provider shall continue to make a good faith effort to cooperate and continue
work toward successful completion of assigned duties and responsibilities.
10. Administration of Agreement.
This Agreement shall be administered by Mark Barber , on behalf of the Service
Provider, 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:
Citv of Auburn
Auburn City Hall
25 West Main
Auburn, WA 98001-4998
(253) 931-3000
FAX (253) 931-3053
Service Provider
Warren Barber & Fontes, P.S.
100 S. 2nd Street
P.O. Box 626
Renton, W A 98057
425-255-8678
FAX 425-255-9789
11. Notices.
All notices or communications permitted or required to be given under this Agreement
shall be in writing and shall be deemed to have been dilly given if delivered in person or
deposited in the United States mail, postage prepaid, for mailing by certified mail, return
receipt requested, and addressed, if to a party of this Agreement, to the P.O. Box for the
party set forth in paragraph 10 above, or if to a person not a party to this Agreement, to
the address designated by a party to this Agreement in the foregoing manner.
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.
Page 3 of9
12. Insurance.
The Service Provider shall be responsible for maintaining, during the term of this
Agreement and at its sole cost and expense, the types of insurance coverages and in the
amounts described below. The Service Provider shall furnish evidence, satisfactory to
the City, of all such policies. During the term hereof, the Service Provider shall take out
and maintain in full force and effect the following insurance policies:
a. Comprehensive public liability insurance, including automobile and property damage,
insuring the City and the Service Provider against loss or liability for damages for
personal injury, death or property damage arising out of or in connection with the
performance by the Service Provider of its obligations hereunder, with minimum
liability limits of $1,000,000.00 combined single limit for personal injury, death or
property damage in anyone occurrence.
b. Such workmen's compensation and other similar insurance as may be required by
law.
c. Professional liability insurance with minimum liability limits of $1 ,000,000.
13. Indemnification.
a. The Service Provider shall indemnify and hold harmless the City and its officers,
agents and employees, or any ofthem, from any and all claims, actions, suits, liability,
loss, costs, expenses, and damages of any nature whatsoever, arising out of the negligent
acts, errors or omissions of the Service Provider, its officers, agents, or employees
relating to or arising out of the performance of this Agreement. If a final judgment is
rendered against the City, its officers, agents, employees or jointly against the City and
the Service Provider or the Service Provider's officers, agents or employees, the Service
Provider shall satisfy the same to the extent that such judgment was due to the Service
Provider's negligent acts, errors or omissions.
b. The City agrees to indemnify and hold harmless the Service Provider, its officers,
agents and employees, or any of them, from any and all claims, actions, suits, liability,
loss, costs, expenses, and damages of any nature whatsoever, arising out of the negligent
acts, errors or omissions of the City, its officers, agents, or employees relating to or
arising out ofthe performance of this Agreement. If a final judgment is rendered
against the Service Provider, its officers, agents, employees or jointly against the Service
Provider and the City or the City's officers, agents or employees, the City shall satisfy the
same to the extent that such judgment was due to the City's negligent acts, errors or
omissions.
c. The parties to this Agreement hereby mutually agree that, as an indemnitee, they
shall:
(i) Cooperate with any insurer in the investigation, settlement or defense of any
suit or claim;
(ii) Immediately send to any insurer copies of any demands, notices, claims,
summonses, complaints or legal papers received in connection with any suit or
claim;
(iii) Notify any and all insurers whose coverage is available to them of the claim
or suit;
Page 4 of9
(iv) Cooperate with any and all insurers with respect to coordinating other
applicable insurance available to any party to this Agreement as an indemnitee;
(v) Provide the insurer(s) with written authorization to: (I) obtain records
and other information related to the claim or suit; and to (2) conduct and control
the defense of the party to this Agreement, as an indemnitee, in such claim or
suit.
14. Assignment.
Neither party to this Agreement shall assign any right or obligation herennder in whole or
in part, without the prior written consent of the other party hereto. No assignment or
transfer of any interest under this Agreement shall be deemed to release the assignor from
any liability or obligation under this Agreement, or to cause any such liability or
obligation to be reduced to a secondary liability or obligation.
15. Amendment. Modification or Waiver.
No amendment, modification or waiver of any condition, provlSlon or term of this
Agreement shall be valid or of any effect unless made in writing, signed by the party or
parties to be bound, or such party's or parties' duly authorized representative(s) and
specifying with particularity the nature and extent of such amendment, modification or
waiver. Any waiver by any party of any default of the other party shall not effect or
impair any right arising from any subsequent default.
Nothing herein shall limit the remedies or rights of the parties hereto nnder and pursuant
to this Agreement.
16. Termination and Suspension.
The City shall have the right to terminate this agreement at any time.
If this Agreement is terminated by the City , the Service Provider shall be compensated
for services performed prior to termination in accordance with the rate of compensation
provided in Exhibit "B" attached hereto.
17. Parties in Interest.
This Agreement shall be binding upon, and the benefits and obligations provided for
herein shall inure to and bind, the parties hereto and their respective successors and
assigns, provided that this section shall not be deemed to permit any transfer or
assignment otherwise prohibited by this Agreement. This Agreement is for the exclusive
benefit of the parties hereto and it does not create a contractual relationship with or exist
for the benefit of any third party, including contractors, sub-contractors and their sureties.
Page 5 of9
18. Costs to Prevailing Partv.
In the event of such litigation or other legal action, to enforce any rights, responsibilities
or obligations under this Agreement, the prevailing parties shall be entitled to receive its
reasonable costs and attorney's fees.
19. Applicable Law.
This Agreement and the rights of the parties hereunder shall be governed by and
interpreted in accordance with the laws of the State of Washington and venue for any
action hereunder shall be in of the county in Washington State in which the property or
project is located, and if not site specific, then in King County, Washington; provided,
however, that it is agreed and understood that any applicable statute of limitation shall
commence no later than the substantial completion by the Service Provider of the
services.
20. Captions. Headings and Titles.
All captions, headings or titles in the paragraphs or sections of this Agreement are
inserted for convenience of reference only and shall not constitute a part of this
Agreement or act as a limitation of the scope of the particular paragraph or sections to
which they apply. As used herein, where appropriate, the singu1ar shall include the plural
and vice versa and masculine, feminine and neuter expressions shall be interchangeable.
Interpretation or construction of this Agreement shall not be affected by any
determination as to who is the drafter of this Agreement, this Agreement having been
drafted by mutual agreement of the parties.
21. Severable Provisions.
Each provision of this Agreement is intended to be severable. If any provision hereof is
illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect
the validity of the remainder of this Agreement.
22. Entire Agreement.
This Agreement contains the entire understanding of the parties hereto in respect to the
transactions contemplated hereby and supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
23. Counterparts.
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.
Page 60f9
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
effective the day and year first set forth above.
SERVICE PROVIDER
,,,
~
~
Pete B. Lewis, Mayor
Name: Mark Barber
Title: Secretary-Treasurer of Warren Barber
& Fontes, P.S.
f;;¡¿¡Jd1/'Jrv IfL/Ítùrd1rJ
Brenda Heineman, Director of HR/Risk Mgmt.
"
.¡y~~ ~~/~
Danielle Daskam City Clerk
Attest:
Name:
Title:
'0 "----.
Page 7 of9
EXHIBIT "A"
The Service Provider shall provide temporary employment services to the City of Auburn
for one attorney, dilly licensed to practice law in the State of Washington, to serve as a
prosecutor in Auburn Municipal Court. The Service Provider shall designate an attorney with
experience in municipal court prosecution to provide prosecution services under this Agreement.
The tasks to be performed by the prosecutor shall be as follows:
I. Preparation and appearance on the municipal court readiness calendar;
2. Preparation and attendance at pre-trial hearing/motions;
3. Attendance at in-custody arraignments;
4. Preparation and appearance at arraignments and review hearings;
5. Preparation and conduct of jury trials;
6. Charging decisions;
7. Preparation and conduct of bench trials and motions; and
8. Directing clerks' compliance with discovery requests.
The City of Auburn and the Service Provider agree that the temporary prosecution services under
this Agreement shall not include legal research, preparation, or appearance for or related
to RALJ appeals to the King County Superior Court or any other appellate court.
It IS further agreed between the City of Auburn and the Service Provider that the Service
Provider is not required to provide an attorney/prosecutor to the City of Auburn for the
time period September 5, 2005 through September 9, 2005. However, in the event that
the Service Provider is able to provide a prosecutor for the aforesaid time period to the
City of Auburn, then the Service Provider shall notify the City of Auburn of the
availability of an attorney/prosecutor for said week. This paragraph shall modify the
terms of Paragraph 7 ofthis Agreement.
The Service Provider and the City of Auburn further agree that the Service Provider shall
designate and provide one attorney/prosecutor and one back-up attorney/prosecutor for training
purposes, which shall consist of two half-day (four-hour) sessions. The training shall include
time at the office of the Auburn City Attorney and/or Auburn Municipal Court.
EXHIBIT "B"
The City of Auburn shall pay to the Service Provider the sum of $12,320.00 per month as
compensation for the Service Provider's performance of the legal services set forth in Exhibit
"A" hereto. The Service Provider shall also be reimbursed by the City of Auburn for any
mileage expenses incurred at the rate of$0.405 (40.5 cents) per mile, based upon a minimum of
30 miles per day for round-trip travel between the Service Provider's location in Renton,
Washington and the City of Auburn.
Page 8 of9
The Service Provider shall submit an invoice to the City of Auburn on or about the lOth
day of each month during the term of this Agreement, which invoice shall separately designate
the fees and mileage expenses. The City of Auburn agrees that it shall pay to the Service
Provider the amount of the invoice, so that the payment shall be received by the Service Provider
no later than the end of the month in which the invoice was received by the City of Auburn.
Page 90f9