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058-08 - Resolution - Contract with Gregory A Jacoby of McGavick Graves for City AttorneyRESOLUTION NO. 058-08 A RESOLUTION OF THE CTIY OF PORT ORCHARD, WASHINGTON, AUTHORIZING THE MAYOR TO EXECUTE A CONTRACT FOR LEGAL SERVICES WITH GREGORY A. JACOBY OF MCGAVICK GRAVES, P.S. FOR THE OFFICE OF CTIY ATTORNEY EFFECTIVE JANUARY 1, 2009. WHEREAS, Gregory A. Jacoby of McGavick Graves, P.S. has served as City Attorney for the City of Port Orchard since 2007; and WHEREAS, Gregory A. Jacoby of McGavick Graves, P.S. is licensed to practice law in the state of Washington, has served as Assistant City Attorney from 2003 through 2007, is familiar with the legal issues facing the City of Port Orchard, and has nearly 20 years of general legal experience; now, therefore THE CITY COUNCIL OF THE CITY OF PORT ORCHARD, WASHINGTON, HEREBY RESOLVES AS FOLLOWS: SECTION 1: The City Council authorizes the Mayor to execute a contract (Exhibit A incorporated herein by reference) for Legal Services with Gregory A. Jacoby of McGavick Graves, P.S. for the office of City Attorney, effective January 1, 2009. PASSED by the City Council of the City of Port Orchard, SIGNED by the Mayor and attested by the Clerk in authentication of such passage this 9th day of December 2008. CONTRACT FOR LEGAL SERVICES COOl-09 1. Date and Parties. This Agreement, for reference purposes only, is dated the~ day of December, 2008 and is entered into by and between the City of Port Orchard, herein referred to as the "City", and Gregory A. Jacoby and McGavick Graves P.S., herein collectively referred to as "Law Firm". 2. General Recitals. Gregory A. Jacoby currently holds the Office of City Attorney for the City of Port Orchard. The Law Firm currently provides legal services to the City. 3. Purpose. The purpose of this agreement is to provide the terms and conditions under which the Law Firm will provide legal services to the City. 4. Term. The term of this Agreement shall be from January 1, 2009 until December 31, 2011. The City may extend the Agreement Term for successive two (2) year terms upon contract terms agreeable to the parties. a. Either party may terminate the contract without cause upon 180 days written notice. 5. Scope of Work. The Law Firm shall serve as the City's legal advisor on all matters, under the direction of the City Attorney. Gregory A. Jacoby will continue to hold the office of City Attorney. He may designate such other attorneys at the Law Firm as Assistant City Attorneys as is necessary to carry out the duties and responsibility of that office. The Law Firm shall provide all legal services needed by the City, except for legal services provided by Bond Counsel, legal services provided by the City Prosecutor, and those legal services needed on matters for which the Law Firm's representation would be prohibited as a matter of law, or under the Washington State Supreme Court Code of Professional Responsibility. It is anticipated that the Law Firm shall continue to provide the same level of service it has historically provided. As an illustration, and not as a limitation upon the scope of work, the Law Firm will perform the following duties: a. Provide legal advice to the Mayor, Department Directors, City Council, and all City Boards and Commissions regarding all legal matters relating to the performance of their duties. b. Attend and provide legal representation to the City at all City Council business meetings, unless excused from attendance by the Mayor; c. Represent the City in all litigation and administrative hearings, except on matters for which the City Prosecutor or the City's insurance carrier is Contract for Legal Services Page 1 of 5 providing representation. In the event the City encounters litigation or administrative hearing in which the Law Firm does not have an attorney who specializes in that area of law, the City may elect to retain specialized counsel for that matter. The Law Firm may be requested to advise and/or participate in those matters as the Mayor may determine is necessary to protect the City's interests. d. Prepare and/or review ordinances, resolutions, contracts and other documents as necessary to represent and protect the City's interest, and advise the City with regards thereto. e. Provide training and updates on legal issues on an as needed or requested basis. f. Advise the Mayor, Council, Boards and Commissions on procedural matters and processes. g. Provide legal guidance and advice to the Council and Mayor on governmental issues impacting the City. h. Prepare written legal opinions as requested by the Mayor or Council. i. Represent the City in labor negotiations and Public Employment Relations Commission (P.E.R.C.) matters. 6. Compensation. The compensation shall be based upon the concept that there will be a known and predictable charge for legal services. The City wants to pay a fair price for quality legal service, while being a wise steward of taxpayer money. The parties will work cooperatively with each other to achieve these goals. With these goals in mind, the rate and method of compensation shall be as follows: a. Retainer. Except as provided in paragraph (e) below, during the term of the Agreement the Law Firm shall bill the City $8,250.00 (the "base retainer amount") on a monthly basis for those legal services not included in paragraphs (b) and (c) below (the "retainer legal services"). The base retainer amount shall apply to the first fifty (50) hours of attorney time on retainer legal services at an hourly rate of $165. Retainer legal services in excess of 50 hours in a month shall be billed at the hourly rate of $170.00. In the event the City uses fewer than fifty (50) retainer legal service hours in a month, the balance shall be carried forward into subsequent months and the levels at which higher hourly rates apply shall be adjusted accordingly; provided, no retainer legal service hours shall be carried beyond the termination date of the Agreement. By way of example, if in Month #1, the City used 40 retainer legal service hours, then in Month #2, the base retainer amount would apply to the first 60 hours and Contract for Legal Services Page 2 of 5 the higher hourly rate would not take affect until 60 hours of legal services had been performed. Retainer legal services include but are not limited to such things as attending council meetings; drafting and reviewing contracts; drafting and reviewing ordinances and resolutions; answering telephone calls; responding to written requests for legal opinions under the routing number system; attending meetings with staff and city council committees, boards, and commissions as requested; negotiating with third parties other than in a litigation context; and land sale/purchase transactions. Attorney travel time between Tacoma and Port Orchard shall not count as retainer legal service hours. b. Litigation I Special Projects. All litigation, labor arbitration or mediation, administrative hearings and processes, other than before the City Council or Hearing Examiner, and special projects shall be at the rate of $180.00 per hour or the attorney's normal hourly rate, whichever is less. Paralegals will be billed at $80.00 per hour. Any Law Firm attorney or legal intern working on litigation or a special project that has a normal hourly billing rate lower than that amount shall be billed at the lower rate. Special projects are defined as projects that do not occur in the regular course of routine City business and require expertise in a specified area of law and for which the Mayor has given written permission to proceed. Examples of special projects would be collective bargaining and labor negotiations; telecommunication ordinances; land transactions when the Law Firm provides escrow services; comprehensive re-writes of City Codes and Regulations, and other similar extraordinary matters. The Mayor and the Law Firm may mutually agree to a flat fee rate in lieu of an hourly rate for special projects. c. Reimbursable Fees. Any matters for which the cost of legal services will be reimbursed to the City (e.g., Local Improvement Districts) shall be charged at the normal hourly rate charged by the law firm employee performing the services. The City will be provided with the normal hourly rates for all Law Firm personnel upon request. d. Reimbursable Costs. The City will reimburse the Law Firm for all out of pocket costs associated with performing the services required by this agreement. For illustrative purposes reimbursable costs are travel expenses outside the Seattle- Tacoma-Port Orchard area on business authorized by the Mayor, copying expenses for large copying jobs where an outside copy company is used, Westlaw computerized research, filing fees, deposition fees, and such other out of pocket expenditures as authorized by the Mayor. e. COLA. The rates set forth above shall not be increased except as authorized in this section. On January 1, 2010 and each year thereafter the base retainer amount and all hourly rates referenced in this section 6 shall be adjusted by the Contract for Legal Services Page 3 of 5 percentage increase in the salaries of City Department Directors attributable to a cost of living adjustment. 7. Support Staff and Equipment. The Law Firm shall provide all support personnel and equipment necessary to perform the services required by this Agreement. 8. Indemnity and Hold Harmless. The Law Firm agrees to indemnify and hold the City harmless from any and all claims and damages, including legal fees and other expenses that may arise as a result of the negligent actions of the Law Firm and/or any of its employees, shareholders or agents. 9. Insurance. The Law Firm shall maintain in full force the following insurance policies: a. Professional Liability/Errors and Omissions Insurance in an amount of not less that $5,000,000 per occurrence; b. Commercial General Liability Insurance, including property damage in an amount not less than $1 ,000,000 per occurrence and $2,000,000 in aggregate; c. Automobile Bodily Injury and Property Damage Insurance in an amount not less that $1,000,000 per occurrence; and d. Umbrella Liability Insurance with limits of not less than $5,000,000. The City reserves the right to require higher limits if determined to be reasonably necessary in order to adequately protect the City's interests. Requiring the above insurance is not a limitation on the responsibility and liability of the Law Firm for the full extent of any damages that the City may sustain as a result of the negligent acts of the Law Firm, its employees, shareholders, and agents. 10. Notice. a. Any notices required to be sent to the City regarding this agreement shall be in writing and delivered or mailed to the following: Lary Coppola, Mayor City of Port Orchard 216 Prospect Street Port Orchard, WA 98366 Telephone: (360) 876-4407 Fax: (360) 895-9029 Contract for Legal Services Page 4 of 5 b. Any notices required to be sent to the City regarding service delivery shall be sent to the City Clerk at the following address: Patti Kirkpatrick, City Clerk City of Port Orchard 216 Prospect Street Port Orchard, WA 98366 E-mail: pkirkpatrick@ci.port-orchard.wa.us Telephone: (360) 876-4407 Fax: (360) 895-9029 c. Any notice required to be sent to the Law Firm regarding this agreement or service thereunder shall be sent to the following address: Gregory A. Jacoby McGavick Graves P.S. 1102 Broadway, Suite 500 Tacoma, Washington 98402 e-mail: gaj@mcgavick.com Telephone: (253) 627-1181 Fax: (253) 627-2247 11. Entire Agreement. This Agreement incorporates the entire Agreement between the parties with regards to legal work to be performed on behalf of the City, and the rates to be charged therefor. CITY OF PORT ORCHARD Contract for Legal Services Page 5 of 5 McGAVICK GRAVES, P.S.