Loading...
HomeMy WebLinkAbout4255 Resolution - Agreement for Legal Services - Kerr Ferguson Law, PLLCRESOLUTION NO. 4255 A RESOLUTION OF THE CITY OF PASCO, WASHINGTON, APPROVING THE AMENDED AGREEMENT FOR LEGAL SERVICES BETWEEN THE CITY OF PASCO, WASHINGTON, AND KERR FERGUSON LAW, PLLC. WHEREAS, pursuant to RCW 35A.13.090, the City shall make provisions 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; and WHEREAS, the City has by reasonable contractual arrangement, made such provision for its City Attorney to provide for such professional services; and WHEREAS, the City and Kerr Ferguson Law, PLLC, have negotiated a mutually agreeable personal services contract, which modifies the current agreement for personal services between the parties that has existed in its current form since 2007. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PASCO, WASHINGTON: That the City Manager is authorized to sign and execute the Amended Agreement for Legal Services between the City of Pasco, Washington, and Kerr Ferguson Law, PLLC, a copy of which is attached hereto and incorporated herein by reference as Exhibit A; and is hereby authorized to make minor substantive changes to said Agreement as needed and take all necessary steps required to accomplish this transaction; and Be It Further Resolved, that this Resolution shall take effect immediately. PASSED by the City Council of the City of Pasco, Washington this 19th day of September, 2022. Blanche Barajas Mayor ATTEST: Debra barham, CMC City Clerk Resolution — Agreement for Legal Services - 1 APPROVED AS TO FORM: Kerr Ferguson Law, PLLC City Attorneys CITY OF PASCO, WASHINGTON AMENDED AGREEMENT FOR LEGAL SERVICES The CITY OF PASCO, WASHINGTON, a Municipal Corporation, herein referred to as "Client", does hereby retain KERR FERGUSON LAW, PLLC, Attorneys at Law, located at 1950 Keene Road, Bldg. F100, Richland, Washington, herein referred to as "Attorney" for the purposes of providing contracted legal services and litigation legal services for actions commenced in the Washington State Courts or Federal Courts, as authorized by RCW 35A.13.090, and in consideration of the covenants provided herein, agree as follows: 1. Authorization of Attorney. Client does hereby retain and authorize the Attorney to act as an attorney and counselor as provided in RCW 2.44.010 which includes the authority to act on behalf of the Client and to: (a) bind the Client in any of the proceedings in an action or special proceeding by the attorney's agreement duly made; (b) to receive money, claimed by the Client in an action or special proceeding during the pendency thereof, or after judgment upon the payment thereof, and not otherwise, to discharge the same or acknowledge satisfaction of the judgment; and (c) to negotiate, represent and execute on behalf of the Client, correspondence, agreements, pleadings, negotiations and transactions. 2. Term. The term of this agreement shall be for twenty-four (24) months from the date of execution and shall automatically renew for additional twenty-four (24) month terms unless notice is given in writing by either party sixty (60) days prior to expiration. Either party may terminate this agreement for any reason upon one -hundred and eighty (180) days advance written notice. 3. Hourly Rates. It is agreed by and between the Client and the Attorney that the fee paid by Client shall be applied against the legal services actually performed for the Client by the Attorney, which services shall be charged at the following hourly rates: Base Municipal Legal Services Attorneys: $185.00 Paralegal/Legal Assistant: $ 90.00 Other attorneys within or associated with Kerr Ferguson Law, PLLC, having different rates, may be utilized upon prior approval by the City. 4. Interim Billings. Interim billings will be submitted to the Client monthly. All interim billings shall be due and payable upon receipt unless otherwise stated. A FINANCE CHARGE of one percent per month (1 % - 12% ANNUAL PERCENTAGE RATE) will be charged on the outstanding balance upon failure to pay a billing in full within thirty (30) days after date of billing. Failure to pay interim billings promptly will permit the Attorney, after notice to the Client, to terminate its representations of the Client and turn the matter overfor Amended Agreement for Legal Services - 1 collection. It is understood that if any billing is turned over for collection, interest will be charged at the rate of twelve percent (12%) per annum together with attorney's fees and costs incident to the collection of said billing. It is understood that the hourly time charges include but are not limited to: Court appearances; telephone conferences; office conferences; legal research; depositions; review of file materials and documents sent or received; preparation for trials, hearings and conferences; drafting or pleadings of instruments; and office memoranda and correspondence. 5. Out -of -Pocket Disbursements. The Client agrees to assume and pay for all out-of-pocket disbursements incurred in connection with this matter. These shall include filing fees, witness fees, travel, sheriffs and constable's fees, expenses of depositions, investigative expenses, and other incidental expenses. 6. Fee Dispute Resolution. In the event of a dispute between the Attorney and the Client regarding fees for legal services, the Attorney and the Client shall promptly meet in a good faith attempt to resolve the dispute. In the event the fee dispute is not resolved by agreement, arbitration shall be the exclusive means for resolution of the fee dispute. FEE ARBITRATION IS BINDING. The provisions of Chapter 7.04A of the Revised Code of Washington shall apply. BY AGREEING TO FEE ARBITRATION, BOTH PARTIES WAIVE THE RIGHT TO BRING OR DEFEND AN ACTION IN COURT. 7. Miscellaneous. Attorney makes no warranties regarding the successful termination of the cause of action. All expressions relative thereto are a matter of attorney's opinion only. In some cases, the Court awards attorney's fees to one party and orders the other party to pay the amount awarded; this being solely at the discretion of the court and cannot be relied on with certainty. Also, in some cases, if there is a settlement agreed to by both parties thereby avoiding a contested trial, the settlement contract may provide that one of the parties will contribute an agreed amount towards the other party's legal expenses. In the initial stages of a case, it is impossible to predict whether either of the above situations will materialize and, therefore, no representation is made in this that any contribution by the other party will be obtained toward the Client's legal expenses. In the event, however, that one of such contributions is obtained for the benefit of the Client, the amount in question will be credited against the Attorney's final bill to the Client if paid by the other party. However, if the other party has not paid the same, Client will still be responsible for said amount until paid by the other party. All fees and costs must be paid in full prior to the conclusion of the case. Communications between the Client and the Attorney are confidential and subject to the Attorneys -Client privilege. Open communication and full cooperation are necessaryfor the Attorney to provide effective legal services. Amended Agreement for Legal Services - 2 This Agreement constitutes the entire agreement between the parties, and no prior oral or written agreement shall be valid, and any modifications of this Agreement must be in writing signed by all parties. This Agreement shall be binding on the parties, and their heirs, successors and assigns. For the purpose of this Agreement, time is of the essence. Any waiver of, or failure to take action with respect to any breach of any term, covenant, or condition herein contained shall not be deemed to be a waiver of such term, covenant, or condition, or subsequent breach of the same, or any other term, covenant, or condition therein contained. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall nevertheless continue in full force without being impaired or invalidated in any way. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington. Each party signing this Agreement acknowledges that they participated in the drafting of this Agreement and, as such, this Agreement shall not be presumptively interpreted/construed in favor of nor against any particular party, but rather this Agreement shall be given an objectively fair and reasonable interpretation and construction in light of and in accordance with its express terms and provisions. 8. Recordkeeping. Attorney shall promptly furnish such information related to the Agreement as requested by Client. In accordance with RPC 1.16(d), upon termination or request by client, client shall be entitled to receive papers and property to which client is entitled contained within any requested case file(s). 9. Property and Confidential Information. Attorney shall not, without the prior written consent of Client, disclose to third parties any information received in connection with the services unless: A. The information is known to Attorney prior to receiving the same directly or indirectly in connection with the services; B. The information is in the public domain at the time of disclosure by Attorney; or C. The information is received by Attorney from a third party who does not have an obligation to keep the same confidential. Amended Agreement for Legal Services - 3 10. Relationship Between Client and Attorney. Attorney shall be at all times an independent contractor and not an agent or representative of Client with regard to performance of this Agreement, unless specifically authorized by the Client. The Attorney shall serve as City Attorney, which is intended to create attorney-client relationship. 11. Restrictions on Assignment, Subcontracting, Delegation. A. Attorney may need additional help, but may not (by contract, operation of law, or otherwise) delegate or subcontract or assign performance of the work to any other person or entity without the prior written consent of Client. Any such delegation or subcontracting without Client's prior written consent shall be voidable by the Client. B. No delegation or subcontracting of performance, with or without City's prior written consent, shall relieve Attorney of responsibility to perform the services in accordance with this Agreement. Attorney shall be fully responsible for the performance, acts and omissions of Attorney's employees, Attorney's subcontractors and any other person who performs or furnishes any services on behalf of the Attorney. 12. Performance and Execution. Attorney shall perform the services in a timely manner and in accordance with the standards of the profession. Attorney shall be properly licensed, equipped, organized, and financed to perform the work in accordance with this Agreement: A. Attorney must know and keep up to date with all Federal, State and local laws and ordinances applying to Pasco, and must keep codification current. B. Attorney must attend Council meetings as requested by City Council (Mondays, 7:00 p.m.), and special meetings with only 24 hours notice, etc., as reasonably available. C. Attorney must record and be responsible for follow-through of assignments at Council meetings, other meetings, or by phone/FAX/email, etc. Attorney must meet material submission deadlines of Thursday prior to Monday meetings, without reminders and without lengthy or multiple charges for reviewing agenda, asking again about assignments, briefing other associates assigned, etc. D. Attorney must be quickly available by phone; with reasonably fast response to emails, faxes, etc., including, for emergency situations only, after-hours and on weekends and holidays. E. Attorney must review most contracts and other materials within a day or two, or as otherwise arranged by the City. Amended Agreement for Legal Services - 4 F. Attorney must serve as a whole, both City Manager/Council on a daily administrative/executive basis and legislative basis. As needed on an administrative basis, clearance for staff contacting or receiving requests or doing any work, shall go through the City Manager, Department Directors, or his/her designees for avoidance of duplication and budget monitoring. On a legislative basis, Attorney will provide legal services for specific items at the request of a majority vote of entire Council. However, nothing in this section shall prohibit the City Manager or individual Councilmembers from contacting the City Attorney directly to obtain legal advice related to their executive or legislative roles. G. Works closely with and assures clarity and follow-through with Attorney's Paralegal/Legal Assistant and City Clerk on any and all legal paperwork details as needed. Properly coordinates and briefs any other associates with minimal duplication of fees for work already done prior to turnovers. H. Attorney must clear any calls or visits from citizens through City Manager or his/her designee for budgetary and duplication purposes before acting or before any charges can be accrued, except as otherwise required by the Rules of Professional Responsibility. Attorney may not represent citizens against the Client on matters previously handled while with Client. I. Assists City Manager or his/her designee, and Council as requested, in land use, planning, economic growth, and speedy administrative response to business and land development. J. Assists, advises, and trains staff on daily basis as necessary and requested. Assists staff on code enforcement, abatement, water delivery, wastewater, flood plain, annexation, easements, alleyways, and any other municipal legal matters. IN WITNESS WHEREOF, the parties have executed this Agreement at Pasco, Washington, the day and year last written below. DATED: CITY OF PASCO, WASHINGTON Dave Zabell City Manager Amended Agreement for Legal Services - 5 KERR FERGUSON LAW, PLLC Eric W. Ferguson City Attorney