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HomeMy WebLinkAbout2021-09-23 - Jeffers, Danielson, Sonn and Aylward, P.S., JDSA - General Agreements / General Service Agreements PROFESSIONAL SERVICES AGREEMENT Page 1 of 5 4BC8154 CITY OF EAST WENATCHEE PROFESSIONAL SERVICES AGREEMENT THIS PROFESSIONAL SERVICES AGREEMENT (the “Agreement”), by and between the City of East Wenatchee, a municipality of the State of Washington (“City”), and Jeffers, Danielson, Sonn and Aylward, P.S., a Washington professional services corporation (“JDSA”), individually referred to as “Party” and collectively as the “Parties,” is effective on the last date as signed by the Parties below. RECITALS A. The East Wenatchee Municipal Code (the “Code”) Sec. 2.16.010 states that “[t]he mayor shall appoint a qualified attorney under the laws of the state, who shall hold office at the pleasure of the mayor.” B. RCW 35A.12.020 provides that “[p]rovision shall be made for obtaining legal counsel for the city, either by appointment of a city attorney on a full -time or part-time basis, or by any reasonable contractual arrangement for such professional services. The authority, duties and qualifications of all appointive officers shall be prescribed by charter or ordinance, consistent with the provisions of this title, and any amendments thereto, and the compensation of appointive officers shall be prescribed by ordinance[.]” C. Consistent with the aforementioned statute and code sections, as well as the additional terms and provisions of Title 35A RCW and the Code, the Parties, by way of this Agreement, desire to set forth contractual arrangements and obligations whereby JDSA will provide city attorney services, as deemed necessary or desirable by the Mayor and City Council. D. JDSA anticipates the partners of the firm assigned to such work will include Robert Siderius, Stephanie Stauffer, and H. Lee Lewis. Associates, other partners or paralegals will provide services when deemed in the best interest of the City. NOW, THEREFORE, in consideration of the mutual promises contained herein and other valuable consideration, the Parties hereby promise, covenant and agree as follows: 1. Scope/Nature of Duties. JDSA shall, on an as needed basis, provide city attorney services to the City as directed by Mayor. Said duties at a minimum shall include general civil advising, including contract review and employment law or personnel legal assistance. There is no minimum number of hours guaranteed to JDSA under this Agreement. 2. Performance. JDSA shall comply with all federal, state, and county laws and regulations pertaining to the operations of the City in the performance of its duties, and shall perform all work on behalf of the City in a professional, diligent manner consistent with current standards in the trade or profession. JDSA attorneys and staff are not employees of the City, nor any department thereof, and shall not be subject to any provisions of the personnel policies thereof. JDSA is an “independent contractor,” as defined under federal and state law. PROFESSIONAL SERVICES AGREEMENT Page 2 of 5 4BC8154 3. Term. JDSA shall provide legal services under this Agreement until terminated in accordance with Section 4 below. There is no guaranteed length of this Agreement. JDSA is an “at will” service provider and appointment may be withdrawn or terminated as provided herein. 4. Termination. a. With 30 Days’ Notice. JDSA shall have the right to terminate this Agreement for any reason, with our without cause, upon the giving of thirty (30) days written notice to the City by delivering notice of such termination to the City or by mailing a copy of the same by certified mail, return receipt requested, addressed to the Mayor. All right to unearned compensation ceases on the date stated in the notice of termination. b. Immediate Termination. The Mayor may immediately terminate and withdraw the Mayor’s appointment of JDSA and terminate this Agreement without cause, at any time, on written notice of such immediate withdrawal and termination given to JDSA. All right to unearned compensation ceases on the date stated in the notice of termination. 5. Compensation. JDSA shall be compensated per hour for professional services rendered pursuant to this Agreement. In 2021, the applicable attorney rates are as follows: $315/hour for work performed by Robert Siderius and $295/hour for work performed by Stephanie Stauffer and H. Lee Lewis. Paralegals with the firm bill approximately $100/hour. Consistent with industry practice, hourly rates are adjusted on an annual basis. JDSA attorneys and staff charge for their time in .10 hourly increments. JDSA shall submit billing statements on a monthly basis. The City shall have forty-five (45) days to object in writing to billing statements submitted by JDSA. JDSA shall timely pay all federal, state and local income, self-employment, business and occupation taxes, which may accrue and become due as a result of compensation under this Agreement. 6. Indemnification. JDSA shall and does hereby covenant and agree to indemnify and hold the City, its agents, officers, and employees , harmless from any claims, losses, damages, liabilities, judgments, settlements, and costs (including reasonable attorneys’ fees) arising out JDSA’s negligent errors, acts or omissions; provided, however, this indemnification shall not extend to cover the portion of such claims, losses, damages, liabilities, judgments, settlements, and costs resulting solely from the City’s own negligence, willful misconduct, or fraud. 7. Insurance. a. Required Policies. JDSA shall obtain and keep in force during the terms of the Agreement, or as otherwise required, the following insurance with companies or through sources approved by the Washington State Insurance Commissioner pursuant to Title 48 RCW. i. Worker’s compensation and employer’s liability insurance as required by the State. PROFESSIONAL SERVICES AGREEMENT Page 3 of 5 4BC8154 ii. Commercial general liability and property damage insurance in an aggregate amount not less than two million dollars ($2,000,000) for bodily injury, including death and property damage. iii. Professional Liability Insurance for two million dollars ($2,000,000) minimum per claim. b. All insurance shall stipulate that the insurance afforded by the policies shall be primary insurance and that any insurance, self -insured retention, deductibles, or risk retention trusts maintained or participated in by the Parties shall be excess and not contributory to insurance required. JDSA shall furnish the City with verification of insurance required by the Agreement upon request. The City reserves the right to require complete, certified copies of all required insurance policies at any time. c. No cancellation of the foregoing policies shall be effective without thirty (30) days prior notice to the City. d. The City reserves the right to withhold compensation to JDSA until full compliance with this section is achieved. This remedy is not exclusive, and the City may take such other action as is available to it under other provisions of this Agreement, or otherwise in law. 8. Nondiscrimination. JDSA shall not discriminate against any employee or applicant for employment because of race, creed, color, sex, sexual orientation, age, national origin, marital status, or physical or other handicap. JDSA shall take affirmative action to ensure that said individuals are treated without regard to their race, creed, color, sex, sexual orientation, age, national origin, marital status, disability, and honorably discharged veteran/military status. 9. Representations and Warranties. JDSA represents and warrants (i) that JDSA has no obligations, legal or otherwise, inconsistent with the terms of this Agreement or with JDSA’s undertaking of this relationship with the City, (ii) that the performance of the services called for by this Agreement do not and will not violate any applicable law, rule or regulation or any proprietary or other right of any third party, (iii) that JDSA will not use in the performance of its responsibilities under this Agreement any confidential information of any other person or entity and (iv) that JDSA has not entered into or will enter into any agreement (whether oral or written) in conflict with this Agreement. 10. Attorney's Fees. Should either Party herein, or any successor or assign of either Party herein, resort to litigation to enforce this Agreement, the Parties shall each be liable for their attorneys' fees and costs in such litigation regardless of which party prevails. 11. Access to and Ownership of Records and Work Product. The City shall have access to any records of JDSA created or maintained in any medium related to performance of the services specified herein. Title to or ownership of any and all documents or records in any medium received by JDSA from the City in the course of performance of the services specified herein shall remain PROFESSIONAL SERVICES AGREEMENT Page 4 of 5 4BC8154 with the City. The City shall have title to or ownership of JDSA’ work product, in any medium, related to performances of the services specified herein. 12. Assignment. JDSA shall not assign its rights or obligations hereunder without prior written consent of the City. 13. Property Rights. The City shall have and acquire all rights, title, and interest to and in all work product conceived or developed by JDSA during the term of this Agreement and related in any way to the activities or business of the City. JDSA shall not have, nor claim to have, any right, title or interest in any such work product regardless of any contributions by JDSA. 14. Entire Agreement. This Agreement constitutes the full and complete understanding and agreement of the Parties. Except as to future compensation adjustments which shall be agreed upon in writing, this Agreement supersedes all prior understandings and agreements, oral or in writing, and cannot be changed or terminated orally (except as otherwise herein provided) and may be modified only by a written agreement signed by both Parties. 15. Invalid Provisions. The invalidity or unenforceability of any particular term or provision of this Agreement shall not affect the validity or enforceability of any other term or provision and this Agreement shall be construed in all respects as if such invalid or unenforceable term or provision was omitted. 16. Construction/Jurisdiction/Venue. This Agreement shall be construed according to the laws of the State of Washington. In the event of an y legal action arising pursuant to this Agreement, jurisdiction and venue shall be proper only in Douglas County, Washington. 17. Waiver/Non-Waiver. The waiver by either Party of any alleged or actual breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent or continuing breach. Waiver of any of the provisions of this Agreement may only be accomplished by reducing the same to writing and shall be effective only when signed by both Parties. 18. Interpretation. Paragraph headings/titles are for the convenience of the Parties only and shall not be used in interpreting or construing any portion of this Agreement. The singular may include the plural or vice versa, and the masculine, feminine or neuter may include any one or all of the other genders where the context so requires. 19. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. [Signature Page Follows]