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HomeMy WebLinkAbout3874 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