032-22 - Holmes Weddle & Barcott - ContractCITY OF PORT ORCHARD
CONTRACT FOR PROFESSIONAL SERVICES
Contract No. 032-22
This Agreement is entered into by and between the City of Port Orchard, a Washington
municipal corporation ("City"), and Holmes Weddle & Barcott ("Consultant") whose principal
office is located at 3101 Western Ave., Suite 500, Seattle, Washington 98121.
WHEREAS, the City has determined the need to have certain services performed for the
residents of the City of Port Orchard, requiring specific legal expertise, and
WHEREAS, the City desires to have the Consultant perform such services pursuant to certain
terms and conditions,
NOW THEREFORE, in consideration of the mutual benefits and conditions hereinafter
contained, the parties hereto agree as follows:
1. Scope and Schedule of Services to be Performed by Consultant. The Consultant
shall perform those services described in Exhibit "A" of this Agreement. In performing such
services, the Consultant shall at all times comply with all Federal, State, and local laws and
regulations applicable to the performance of such services, including but not limited to all
applicable regulations governing the COVID-19 public health emergency and response thereto.
The Consultant shall perform the services diligently and completely and in accordance with
professional standards of conduct and performance. The Consultant shall request and obtain prior
written approval from the City if the scope or schedule is to be modified in any way.
2. Compensation and Method of Payment. The Consultant shall request payment for
work performed
The City shall pay Consultant [Check applicable method of payment]:
X According to the rates set forth in Exhibit "A," not to exceed $50,000 for the
duration of the Agreement without written authorization from the City. Hourly rates may be
adjusted on an annual basis by the Consultant with written advance notice to the City. The adjusted
rates will serve as an addendum to this Agreement and does not require additional approval of the
City Council, provided the City Council reserves the right of appropriation.
The Consultant shall complete and return to the City Exhibit "B," federal tax Form W-9,
prior to or along with the first billing invoice. The City shall pay the Consultant for services
rendered within ten (10) days after City Council voucher approval.
3. Duration of Agreement. This Agreement shall commence upon mutual execution
and shall terminate on December 31, 2023 ("Termination Date'), unless terminated sooner by
either Party as provided herein, provided the City shall have the right to extend the Agreement
beyond the Termination Date for an additional two (2) years by written notice to the Consultant in
advance of the Termination Date. Time is of the essence of this agreement in each and all of its
provisions in which performance is required.
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4. Ownership and Use of Documents. Any records, files, documents, drawings,
specifications, data or information, regardless of form or format, and all other materials produced
by the Consultant and submitted to the City in connection with the services provided to the City,
shall be the property of the City, whether the project for which they were created is executed or
not.
5. Independent Consultant. The Consultant and the City agree that the Consultant is
an independent Consultant with respect to the services provided pursuant to this Agreement. The
Consultant will be solely responsible for its acts and for the acts of its agents, employees,
subconsultants or representatives during the performance of this Agreement. Nothing in this
Agreement shall be considered to create the relationship of employer and employee between the
parties. Neither Consultant nor any employee of Consultant shall be entitled to any benefits
accorded City employees by virtue of the services provided under this Agreement. The City shall
not be responsible for withholding or otherwise deducting federal income tax or social security or
contributing to the State Industrial Insurance Program, or otherwise assuming the duties of an
employer with respect to the Consultant, or any employee of the Consultant.
6. Indemnification.
A. Consultant shall protect, defend, indemnify and hold harmless the City, its
officers, officials, employees, agents and volunteers from any and all costs, claims, injuries,
damages, suits, losses or liabilities of any nature, including attorneys' fees, arising out of or in
connection with the acts, errors or omissions of the Consultant, its officers, employees and agents
in performing this Agreement.
B. Should a court of competent jurisdiction determine that this Agreement is subject
to RCW 4.24.115, then, in the event of liability for damages arising out of bodily injury to persons
or damages to property caused by or resulting from the concurrent negligence of the Consultant
and the City, its officers, officials, employees, and volunteers, the Consultant's liability, including
the duty and cost to defend, hereunder shall be only to the extent of the Consultant's negligence.
IT IS FURTHER SPECIFICALLY AND EXPRESSLY UNDERSTOOD THAT THE
INDEMNIFICATION PROVIDED HEREIN CONSTITUTES THE CONSULTANT'S WAIVER
OF IMMUNITY UNDER INDUSTRIAL INSURANCE, TITLE 51 RCW, SOLELY FOR THE
PURPOSES OF THIS INDEMNIFICATION. THIS WAIVER HAS BEEN MUTUALLY
NEGOTIATED BY THE PARTIES.
C. The provisions of this section shall survive the expiration or termination of this
Agreement.
7. Insurance. The Consultant 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 Consultant, its agents,
representatives, or employees.
A. Minimum Scope of Insurance. Consultant shall obtain insurance of the types
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described below:
1. Automobile Liability insurance covering all owned, non -
owned, hired and leased vehicles. 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 Consultants and personal injury and
advertising injury. The City shall be named as an additional insured under
the Consultant's Commercial General Liability insurance policy with
respect to the work performed for the City.
3. Workers' Compensation coverage as required by the
Industrial Insurance laws of the State of Washington.
4. Professional Liability insurance appropriate to the
Consultant's profession.
B. Minimum Amounts of Insurance. Consultant shall maintain the following
insurance limits:
1. Automobile Liability insurance with a minimum combined
single limit for bodily injury and property damage of $1,000,000 per
accident.
2. Commercial General Liability insurance shall be written
with limits no less than $1,000,000 each occurrence, $2,000,000 general
aggregate.
3. Professional Liability insurance shall be written with limits
no less than $1,000,000 per claim and $1,000,000 policy aggregate limit.
C. Other Insurance Provision. The insurance policies are to contain, or be endorsed
to contain, the following provisions for Automobile Liability, Professional Liability, and
Commercial General Liability insurance (as applicable to each line of coverage):
1. The Consultant's insurance coverage shall be primary insurance as
respects the City. Any insurance, self-insurance or insurance pool coverage
maintained by the City shall be in excess of the Consultant's insurance and shall
not contribute with it.
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2. The Consultant shall provide thirty (30) days written notice by
certified mail, return receipt requested, to the City prior to the cancellation or
alteration of coverage.
3. The City will not waive its right to subrogation against the
Consultant. The Consultant's insurance shall be endorsed to waive the right of
subrogation against the City, or any self-insurance, or insurance pool coverage
maintained by the City.
4. If coverage is written on a "claims made" basis, then a minimum of
a three (3) year extended reporting period shall be included with the claims made
policy, and proof of this extended reporting period provided by the City.
D. Acceptability of Insurers. Insurance is to be placed with insurers with a
current A.M. Best rating of not less than A:VII.
E. Verification of Coverage. The Consultant shall furnish the City with original
certificates for all policies and a copy of the amendatory endorsements, including but not
necessarily limited to, the additional insured endorsement for Automobile Liability and
Commercial General Liability, evidencing the insurance requirements of the Consultant before
commencement of the work.
8. Record Keeping and Reporting.
A. The Consultant shall maintain accounts and records, including personnel,
property, financial and programmatic records which sufficiently and properly reflect all direct and
indirect costs of any nature expended and services performed pursuant to this Agreement. The
Consultant shall also maintain other such records as may be deemed necessary by the City to ensure
proper accounting of all funds contributed by the City to the performance of this Agreement.
B. The foregoing records shall be maintained for a period of seven (7) years
after the termination of this Agreement unless permission to destroy them is granted by the Office
of the Archivist in accordance with RCW Chapter 40.14 and by the City.
9. Audits and Inspections. The records and documents with respect to all matters
covered by this Agreement shall be subject at all times to inspection, review or audit by the City
during the performance of this Agreement.
10. Termination. This Agreement may at any time be terminated as follows:
A. The City reserves the right to terminate or suspend this Agreement at any
time, with or without cause.
B. In the event of termination or suspension, all finished or unfinished
documents, data, studies, worksheets, models, reports or other materials prepared by the
Consultant pursuant to this Agreement shall promptly be submitted to the City.
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C. In the event this Agreement is terminated or suspended, the Consultant shall
be entitled to payment for all services performed and reimbursable expenses incurred to the date
of termination.
D. This Agreement may be canceled immediately if the Consultant's insurance
coverage is canceled for any reason, or if the Consultant is unable to perform the services called
for by this Agreement.
E. The Consultant reserves the right to terminate this Agreement on thirty (30)
days prior written notice.
F. This provision shall not prevent the City from seeking any legal remedies it
may otherwise have for the violation or nonperformance of any provisions of this Agreement.
11. Business License. The Consultant shall obtain a City of Port Orchard business
license before commencing work under this Agreement.
12. Discrimination Prohibited. The Consultant shall not discriminate against any
employee, applicant for employment, or any person seeking the services of the Consultant under
this Agreement, on the basis of race, color, religion, creed, sex, sexual orientation, age, national
origin, marital status, presence of any sensory, mental or physical disability, or other circumstance
prohibited by federal, State or local law or ordinance, except for a bona fide occupational
qualification.
13. Assignment and Subcontract. The Consultant shall not assign or subcontract any
portion of the services contemplated by this Agreement without the written consent of the City.
14. Conflict of Interest. The Consultant represents to the City that it has no conflict of
interest in performing any of the services set forth in Exhibit "A." In the event that the Consultant
is asked to perform services for a project with which it may have a conflict, Consultant will
immediately disclose such conflict to the City.
15. Confidentiality. All information regarding the City obtained by the Consultant in
performance of this Agreement shall be considered confidential. Breach of confidentiality by the
Consultant shall be grounds for immediate termination.
16. Employment of State Retirees. The City is a "DRS-covered employer" which is an
organization that employs one or more members of any retirement system administered by the
Washington State Department of Retirement Systems (DRS). Pursuant to RCW 41.50.139(1) and
WAC 415-02-325(1), the City is required to elicit on a written form if any of Consultant's
employees providing services to the City retired using the 2008 Early Retirement Factors (ERFs),
or if the Consultant is owned by an individual who retired using the 2008 ERFs, and whether the
nature of the service and compensation would result in a retirement benefit being suspended.
Failure to make this determination exposes the City to significant liability for pension
overpayments. As a result, before commencing work under this Agreement, Consultant shall
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determine whether any of its employees providing services to the City or its owners retired using
the 2008 ERFs, and shall immediately notify the City using the form attached hereto as Exhibit
"C". This notification to DRS could impact the payment of retirement benefits to the employee or
owners of Consultant. Consultant shall indemnify, defend, and hold harmless the City from any
and all claims, damages, or other liability, including attorneys' fees and costs, relating to a claim
by DRS of a pension overpayment caused by or resulting from Consultant's failure to comply with
the terms of this provision. This provision shall survive the termination of this Agreement.
17. Non -appropriation of Funds. If sufficient funds are not appropriated or allocated
for payment under this Agreement for any future fiscal period, the City will so notify the
Consultant and shall not be obligated to make payments for services or amounts incurred after the
end of the current fiscal period. This Agreement will terminate upon the completion of all
remaining services for which funds are allocated. No penalty or expense shall accrue to the City
in the event that the terms of the provisions are effectuated.
18. Entire Agreement. This Agreement contains the entire agreement between the
parties, and no other agreements, oral or otherwise, regarding the subject matter of this Agreement
shall be deemed to exist or bind either of the parties. If there is a conflict between the terms and
conditions of this Agreement and the attached exhibits, then the terms and conditions of this
Agreement shall prevail over the exhibits. Either party may request changes to the
Agreement. Changes which are mutually agreed upon shall be incorporated by written
amendments to this Agreement.
19. Notices. Notices to the City shall be sent to the following address:
City of Port Orchard
Debbie Lund
Human Resources Manager
216 Prospect Street
Port Orchard, WA 98366
Notices to the Consultant shall be sent to the following address:
Holmes Weddle & Barcott
c/o Ann Silvernale
3101 Western Ave., Suite 500
Seattle, WA 98121
ASilvemale@hwb-law.com
20. Applicable Law; Venue; Attorney's Fees. This Agreement shall be governed by
and construed in accordance with the laws of the State of Washington. In the event any suit,
arbitration, or other proceeding instituted to enforce any term of this Agreement, the parties
specifically understand and agree that venue shall be exclusively in Kitsap County, Washington.
The prevailing party in any such action shall be entitled to its attorney's fees and costs of suit,
which shall be fixed by the judge hearing the case, and such fee shall be included in the judgment.
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21. Severability. Any provision or part of this Agreement held to be void or
unenforceable under any law or regulation shall be deemed stricken, and all remaining provisions
shall continue to be valid and binding upon the City and the Consultant, who agree that the
Agreement shall be reformed to replace such stricken provision or part with a valid and enforceable
provision that comes as close as reasonably possible to expressing the intent of the stricken
provision.
IN WITNESS WHEREOF, the parties have executed this Agreement on this 12 day of
January 12, 2022.
CITY OF PORT ORCHARD, WASHINGTON HOLMES WEDDLE & BARCOTT
By:
Robert Putaansuu, Mayor
ATTESPAUTH I ATE:
By: _ 7fi/1
Br nd Rinearson, MMC, City Clerk
APPROVED AS TO FORM:
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Charlotte A. Arc ql�+ ++r'V"Attorney
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By.
Ann Silvernale
Title: Attorney At Law for HWB
>3V: /6 � a4 LEA
Authorized Agent of Law firm
EXHIBIT A
Scope of Work
Legal Services for L&I Proceeding
At the request of the City, the Consultant shall represent the City in all aspects pertaining
to the administrative proceeding(s) regarding the Washington Department of Labor and
Industries, Claim # BF77180, pertaining to John Robinson, filed on July 27, 2020.
RATES FOR An n Si Ivern ale a nd ]a nn i ne Myers of Holmes Meddle a nd Barcott, PS
Ann SilvernaIe,Athorney $275 per hour
Jan nin a Mye rsr Atharney - $ 250 pe r hou r
Han nah Weaver, Attorney - $175 pe r hou r
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