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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 Page 2 of2 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 Page 1 of6 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. Page 2 of6 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: Page 3 of6 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 Page 4 of6 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 ~ Dated this ~ of-----"~=-----~t-j-+-------' 201 \ ,,,,, ........ ,,~ ,\~ORT QJ~ \)~ ······1~~ .,.,-:~ .... 0 .. P01tt4j.~ §i3:~CJ ,; ~ :'sEAL~ = : . ' . : -..... .,. -~ •v~~ •!flti -:..~·. ... .. ~.l -?~··. ~~ ~-·~~ .. -,~oF· ••••• "",'\~ ,,,, WAS.~·'''' ,,,,,,,. .. ,,,,,, KITSAP COUNTY PROSECUTING ATTORNEY RUSSE~GE Page 5 of6 Dated this -;}5~ of __ ____..,)o.__·_~------,1,_____--' 2011. KITSAP COUNTY BOARD COMMISSIONERS ~~ CHARLOTTE GARRIDO, Chair /;vY !$~~ Clerk of the Board . ' l Page 6 of6