020-11 - Resolution - Interlocal Agreement with Kitsap County Prosecuting Attorney for Legal Service for TremontIntroduced by: Gregory A. Jacoby
Requested by: Gregory A. Jacoby
Drafted by: Gregory A. Jacoby
Introduced: July 26, 2011
Adopted: July 26, 2011
RESOLUTION NO. 020-11
A RESOLUfiON OF THE CITY OF PORT ORCHARD,
WASHINGTON, APPROVING AN INTERLOCAL AGREEMENT
BETWEEN THE CITY OF PORT ORCHARD AND THE KITSAP
COUNTY PROSECUTING ATTORNEY FOR LEGAL SERVICES
RELATING TO THE TREMONT STREET WIDENING PROJECT
WHEREAS, the City of Port Orchard is undertaking the Tremont Street
Widening Project (the "Project") to widen Tremont Street to provide four continuous
lanes between Port Orchard Boulevard and SR 16, replace two existing signalized
intersections with roundabouts, and construct curb, gutter, sidewalk and other
improvements; and
WHEREAS, in order to construct the Project, the City must acquire right-of-way
and/ or slope easements along Tremont Street from certain property owners, including
Mayor Lary Coppola and Councilmember Jim Colebank; and
WHEREAS, Mayor Coppola and Councilmember Colebank have agreed to
execute possession and use agreements whereby the City will pay them an amount equal
to the City's determination of appraised value, however, both property owners are
seeking additional total just compensation; and
WHEREAS, the City Attorney is appointed by the Mayor and confirmed by the
City Council and his duties include representing the City in condemnation lawsuits and
negotiations concerning an award of total just compensation; and
WHEREAS, in order to avoid any actual or appearance of conflict of interest
associated with the City's acquisition of right-of-way and/or slope easements from
Mayor Coppola and Councilmember Colebank, the City has requested and the Kitsap
County Prosecuting Attorney has agreed to represent the City in future legal proceedings
and negotiations regarding additional total just compensation, if any, to be paid to
Mayor Coppola and Councilmember Colebank; now, therefore;
THE CITY COUNCIL OF THE CITY OF PORT ORCHARD,
WASHINGTON, HEREBY RESOLVES AS FOLLOWS:
THAT: The Interlocal Agreement between the City of Port Orchard and
the Kitsap County Prosecuting Attorney for legal services relating to the
Tremont Street Widening Project is approved and the Mayor Pro Tern is
Resolution No. 020-11
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authorized to execute the Agreement, a copy of which is attached as
Exhibit A.
PASSED by the City Council of the City of Port Orchard, SIGNED by the Mayor Pro
Tern and attested by the Clerk in authentication of such passage this 26th day of July 2011.
AGREEMENT FOR LEGAL SERVICES
Contract No. 065-11
This agreement (this "Agreement") is entered into between the City of Port Orchard (the
"City") and the Kitsap County Prosecuting Attorney (the "Prosecutor") pursuant to .the provisions
of chapter 39.34 RCW (Interlocal Cooperation Act).
WHEREAS, the Interlocal Cooperation Act permits local governmental units to make the
most efficient use of their powers by enabling them to cooperate with other localities on a basis
of mutual advantage and thereby to provide services and facilities in a manner and pursuant to
forms of governmental organization that will accord best with geographic, economic, population
and other factors influencing the needs and development of local comtnunities; and
WHEREAS, the City and the Prosecutor wish to mutually cooperate for the purposes
described herein;
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the
parties agree as follows:
Section I
PURPOSE
The purpose of this Agreement is for the Prosecutor to provide legal services as needed to
advise, appear for, prosecute, and represent the City in condemnation proceedings under chapter
8.12 RCW.
Section II
TERM OF AGREEMENT
This Agreement is effective July 25, 2011. It shall have a term of one year and shall
expire on July 25, 2012 unless renewed in writing.
Section III
TERMINATION OF AGREEMENT
This Agreement may be terminated by either party, with or without cause, upon thirty
days advance written notice to the other party. If the contract is terminated, Prosecutor will be
entitled to payment for actual work perforn1ed, including partially completed items of work ..
Section IV
·COMPENSATION
The services rendered by the Prosecutor under this Agreement shall be paid for at the true
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and full value in accordance with RCW 43.09.210. For year 2011, the City will compensate the
Prosecutor for the services performed by the Prosecuting Attorney and Deputy Prosecuting
Attorneys under this Agreement at the hourly rate of$115.00, and $92.00 per hour for paralegal
services. The compensation shall be reviewed during Kitsap County's budget process and
adjusted as necessary for year 2012. Said hourly rate includes overhead support. The City shall
be responsible for all incidental costs associated with its representation, including, but not lin1ited
to, mileage and travel costs, court costs, copy fees, courier fees, fees for real property appraisals,
expert witnesses, title reports, etcetera.
Section V
BILLING AND PAYMENT
The Prosecuting Attorney's Office shall submit quarterly invoices to the City, to the
attention of Patti Kirkpatrick, City Clerk. Invoices will describe the services performed by each
atton1ey, detail the number of hours worked, and list the fees and costs incurred during that
month. The City shall pay the Prosecuting Attorney at the hourly rates set forth in Section IV.
The City will make payment within thirty (30) days following receipt of billing. Upon request,
the City is entitled to review the time sheets of attorneys anytime during, or for one year after, the
tenn of the contract.
Section VI
CONFLICTS
Prior to execution of this Agreement, the Prosecutor and City have taken necessary and
appropriate investigations to determine that for the purposes described in Section I of this
Agreement no actual and potential conflicts exist under the Rules of Professional Conduct.
Kitsap County Prosecuting Attorney's Office shall observe the Rules of Professional Conduct
and inform the City if potential conflicts of interest arise. The City recognizes that the
Prosecutor's Office may from time to time represent the County in matters concerning the
County that may also include the City. In such cases, if a conflict arises, the City understands
and agrees that the Prosecuting Attorney must represent the County even though they may from
time to time be adverse to the City. In the event of such a conflict, when possible, the
Prosecutor's Office shall attempt to assign different attorneys to represent the County and the
City and to create an "ethical wall" to screen each attorney from the work product of the other. If
a conflict of interest arises during the term of this Agreement which, in accordance with the
Rules of Professional Conduct governing attorneys in Washington State, either has not been
waived by both the City and the County following full disclosure, or cannot be waived despite
full disclosure, the Prosecutor agrees to work with the City to secure appropriate representation
and provide for a smooth transition to alternative counsel. The City expressly waives any and all
objections it tnight assert to the Prosecutor's representation of the County. This provision shall
survive the termination of this Agreement.
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Section VII
INSURANCE AND HOLD HARMLESS
A. Insurance
Prior to and during the performance of the work covered by this Agreement, the
Prosecutor shall provide the Risk Manager for the City with evidence that it has obtained and
maintains in full force and effect during the term of this Agreement a policy of professional
liability insurance, and/or enors and omissions insurance, providing coverage of at least
$1,000,000 for professional liability or enors and omissions in connection with the work to be
performed by the Prosecutor under this Agreement. The Prosecutor shall furnish a certificate of
insurance to the City for review by the City's Risk Manager. The City's Risk Manager shall be
provided 30 days' written notice of any cancellation of such professional liability insurance.
B. Indemnification
Each party agrees to defend and indetnnify the other party and its elected and appointed
officials, officers, employees and agents against all claims, losses, damages, suits and expenses,
including reasonable attorneys' fees and costs, to the extent they arise out of the negligence or
willful misconduct of the indemnitor or its elected or appointed officials, officers, employees and
agents in connection with this Agreement. The indemnitor's duty to defend and indemnify
extends to claims by the elected or appointed officials, officers, employees or agents of the
indemnitor or of any contractor or subcontractor of indemnitor. The indemnitor waives its
imtnunity under Title 51 (Industrial Insurance) of the Revised Code of Washington solely for the
purposes of this provision and acknowledges that this waiver was mutually negotiated. This
provision shall survive the termination of this Agreement.
Section VIII
GENERAL PROVISIONS
A. Integration. This Agreement constitutes the entire agreement between the parties.
No other understandings or representations, oral or written, regarding the subject matter of this
Agreement will be deemed to exist or bind the parties.
B. Amendments. Except as provided in Section IV (relating to changes in
compensation), this Agreement may be modified or an1ended only by a writing duly executed by
authorized representatives of both parties.
C. Representatives and Notices. The coordinating contact representative for the
Prosecuting Attorney's Office will be the Civil Division Chief. The coordinating contact for the
City is Mayor Pro Tern John Clausen, who shall have full authority to request service hereunder.
Any notices required or permitted to be given under this Agreement shall be in writing and
addressed as follows:
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City:
Mayor Pro Tern John Clauson
City of Port Orchard
216 Prospect Street
Port Orchard, W A 98366
Prosecutor:
Jacquelyn M. Aufderheide
Chief Civil Deputy Prosecutor
614 Division Street, MS-35A
Port Orchard, W A 98366:
D. Files. All files and other documents maintained by the Prosecutor shall be the
files of the City and accessible by the City through its City Attorney or other duly authorized
representative during normal business hours. At the request of the City, any and all files
maintained by the Prosecutor shall be tendered to the City.
E. Independent Contractor. The Prosecuting Attorney's services shall be furnished
as an independent contractor and nothing in or arising from this Agreement shall be construed to
create a relationship of employer-employee or master-servant. Prosecutor waives any claim in
the nature of a tax, charge, cost or employee benefit which would attach if Prosecutor or
assistant(s) were held to be employees of the City.
F. Non-Discrimination. Each party agrees not to discriminate against any employee
or applicant for employment or any other person in the performance of this Agreement because
of race, creed, color, national origin, tnarital status, sex, age, disability, sexual orientation, or
other circumstance prohibited by federal, state, or local law or ordinance, except for a bona fide
occupational qualification. Each party shall comply with all federal, state and local laws and
ordinances applicable to the work to be done under this Agreement. Violation of this section
shall be a material breach of this Agreement and grounds for cancellation, termination or
suspension, in whole or in part.
G. Governing Law; Venue. This Agreement shall be construed and interpreted in
accordance with the laws of the State of Washington. In the event of a dispute, such dispute shall
be litigated only in the Superior Court ofKitsap County, Washington.
H. Severability. The invalidity or unenforceability of any provision in this
Agreement shall not affect the validity or enforceability of any other provisions that can be given
effect without the offending provision.
I. No Waiver. Failure to insist upon strict compliance with any terms, covenants or
conditions of this Agreement shall not be deemed a waiver of such, nor shall any waiver or
relinquishment of such right or power at any time be taken to be a waiver of any other breach.
J. Administration. This Agreement will be jointly administered by the City and the
Prosecutor. This Agreement does not create any separate legal or administrative entity.
K. Financing; Budget. This Agreement does not contemplate joint financing of the
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activities within its scope, nor does it contemplate a joint budget.
L. Property Acquisition and Disposition. This Agree1nent does not conten1plate the
joint acquisition of property by the parties. At termination, each party will remain the sole owner
of its ovyn property.
M. Non-Exclusive ~greement. The City n1ay obtain services from persons or entities
in addition to Kitsap County P_tosecuti t\g Attorney's Office. The Kitsap County Prosecuting
Attorney's Office may provide legal services to Kitsap County and other entities as required and
allowed under state law. ~ · ·.
N. Binding Effect. The covenants and conditions contained in this contract are
binding on the parties, their assigns, subcontractors and legal representatives.
0. Disputes. In the event that a dispute arises under this Agreement, it will be
resolved in the following manner: the City and the Prosecutor will each individually appoint one
me1nber to a Dispute Board and jointly appoint a third member. The Dispute Board will evaluate
the dispute and make a determination of the dispute. The determination of the Dispute Board
will be final and binding on the parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as
of the date stated above.
Dated thi ~ day of_J4-=--=----~-------' 201 )
ARD
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KITSAP COUNTY PROSECUTING ATTORNEY
RUSSE~GE
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Dated this -;}5~ of __ ____..,)o.__·_~------,1,_____--' 2011.
KITSAP COUNTY BOARD COMMISSIONERS
~~
CHARLOTTE GARRIDO, Chair
/;vY !$~~
Clerk of the Board
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