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HomeMy WebLinkAbout001077 Original Contract City of Port Angeles Record # 001077 PROFESSIONAL SERVICES CONTRACT between CITY OF PORT ANGELES and LANE POWELL,PC This contract is entered into by and between the City of Port Angeles,a municipal corporation of the State of Washington (hereinafter referred to as City), and Lane Powell, PC (hereinafter referred to as Contractor). In consideration of the covenants and promises set forth herein, the parties hereto agree as follows: 1. Purpose and Scope of Services. The City requires the legal expertise and experience which Contractor is able to provide to Assist the City in connection with issues arising from the Elwha Dam Removal as recited in the attached Representation/Scope of Work letter dated May 31, 2016 from Lane Powell. In performing services under this Contract,the Contractor shall perform in accordance with generally accepted professional practices. 2. Duration of Contract. The parties intend that this Contract shall be effective from and after June 1, 2016, and shall terminate upon completion of the services to be provided by the Contractor or amended/extended by mutual agreement of the Parties. Either party, upon ten (10) days' notice to the other party, may terminate this Contract in whole or in part when either party deems it to be in their best interest. In such event, Contractor shall be compensated and the City shall be liable only for payment of services already rendered under this Contract prior to effective date of termination. 3. Compensation & Payment. a. Compensation. Contractor shall be entitled to compensation based on hours actually devoted to performance of this Agreement for the first two phases of services and at the rates set forth in Lane Powell's May 31, 20I6 letter to the City Attorney but not to exceed $150,000 attached to this contract and incorporated by this reference. b. Pa ent. Contractor shall submit invoices to the City monthly, with documentation supporting and detailing work performed on behalf of the City. C. The City shall review Contractor's invoices and pay the invoice within 30 days of receipt. i Invoices not paid within thirty (30) days shall accrue interest at a rate of nine percent (9%) annum or three-quarters of a percent (0.75%) per month. If any invoice remains unpaid for more than sixty(60) days, Contractor may, consistent with their ethical obligations, cease performing legal services for the City until satisfactory arrangements are made to pay Contractor. If the delinquency continues, the Contractor may withdraw from representing the City, pursue collection of the account, and recover the costs of collection, including reasonable attorneys' fees from the City. If the City objects to all or any portion of any invoice, it shall notify Contractor of the same within thirty(30) days from the date of receipt of said invoice and shall pay that portion of the invoice not in dispute. The parties shall immediately make every effort to settle the dispute and the disputed portion of the invoice. 4. Expenses. Expenses incurred by the Contractor on behalf of the City in the course of performance of this Contract by the Contractor must be approved by the City in advance. Reimbursement for travel expenses will be limited to the terms and amounts the City pays for travel reimbursement to its employees. Expenses shall be itemized on invoices submitted by Contractor to the City. Invoices for the fees and expenses of third party professionals or service providers (such as consulting experts, local counsel and court reporters) will generally be billed directly to the City or forwarded to the City for direct payment,unless other arrangements are agreed upon. To the extent necessary and appropriate to the work assigned to the Contractor, City shall provide, at its expense, access to City files and documents necessary to accomplish the work assigned to the Contractor. 5. Relationship of Parties. Contractor shall act as an independent contractor and not as an employee, agent, or officer of the City. The Contractor shall not be authorized to bind the City to any position, contract, or agreement. Contractor shall assume full responsibility of all federal, state, and local taxes and contributions imposed or required, including,but not limited to,unemployment insurance, Social Security, and income tax withholding and shall not be entitled to the benefits provided by the City to its employees. 6. Assignment. Contractor shall not assign or delegate any of the work covered by this Contract without the express written consent of the City. The City shall not assign this Agreement or any portion thereof to any other person or entity without the express written consent of the Contractor. 2 Nothing contained in this Contract shall be construed to create a right in any third party whomsoever, and nothing herein shall inure to the benefit of any third party. There are no third party beneficiaries of this Contract entitled to rely on any work performed or reports prepared by Contractor hereunder for any purpose. The City shall indemnify and hold Contractor harmless against any liability for any loss arising out of or relating to reliance by any third party on any work performed or reports issued hereunder. Contractor will not direct, supervise, or lay out the health and safety measures of the City, Contractor,or any Subcontractor. 7. Hold Harmless and Indemnification. The Contractor shall defend, indemnify and hold harmless the City, and its respective officers, officials, employees, deputies, and agents from and against any and all claims, actions, suits, liability, loss, expenses, damages and judgments of any nature whatsoever, including costs and attorney's fees in the defense thereof, for injury, sickness, disability or death to persons or damage to property or business, caused by or arising out of Contractor's and its respective employees, agents, volunteers, and/or subcontractors, negligent acts, errors or omissions in providing services under the terms of the contract. Provided, however, that the Contractor's obligation hereunder shall not extend to injury, sickness, death or damage caused by or arising out of the sole negligence of the City, its officers, officials, employees, deputies, and/or agents. Provided further, that in the event of concurrent negligence of both parties, the Contractor's obligations hereunder shall apply only to the percentage of fault attributable to the Contractor,its employees, agents,volunteers, and/or subcontractors. S. Insurance The CONTRACTOR shall procure and maintain for the duration of the 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 CONTRACTOR, its agents, representatives,employees or subcontractors. No Limitation. CONTRACTOR'S maintenance of insurance as required by the agreement shall not be construed to limit the liability of the CONTRACTOR to the coverage provided by such insurance,or otherwise limit the CITY'S recourse to any remedy available at law or in equity. A. Minimum Scope of Insurance Contractor shall obtain insurance of the types described below: I.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 3 contractual liability coverage;and, 2. Workers' Compensation coverage as required by the Industrial Insurances laws of the State of Washington; and 3. Professional Liability insurance appropriate to the Contractor's profession. B. Minimum Amounts of Insurance Contractor 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. 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 Provisions The insurance policies are to contain, or be endorsed to contain,the following provisions for Automobile Liability and Professional Liability: 1. The Contractor's insurance coverage shall be primary insurance as respect the City. Any insurance, self-insurance,or insurance pool coverage maintained by the City shall be excess of the Contractor's insurance and shall not contribute with it. 2. The Contractor's insurance shall be endorsed to state that coverage shall not be cancelled,suspended or materially changed by either party, except after thirty (3 0) days prior written notice by certified mail, return receipt requested,has been given to the City. 3. Any payment of deductible or self-insured retention shall be the sole responsibility of the CONTRACTOR. 4. The CONTRACTOR'S insurance shall contain a clause stating that coverage shall apply separately to each insured against whom claim is made or suit is brought, except with respects to the limits of the insurer's liability. D. Acceptability of Insurers Insurance is to be placed with insurers with a current A.M. Best rating of not less than A:VII. 4 E. Verification of Coverage Contractor shall furnish the City with original certificates and a copy of the amendatory endorsements, including but not necessarily limited to the additional insured endorsement, evidencing the insurance requirements of the Contractor before commencement of the work. 9. Ownership of Data and Documents. All writings, programs, data, public records or other materials prepared by the Contractor and/or its Contractors or subcontractors, in connection with the performance of this agreement shall be the sole and absolute property of the City and constitute "work made for hire" as that phrase is used in federal and/or state intellectual property laws. City shall have the right to the use of all data, recommendations, proposals, reports, design criteria, and similar information provided to it by Contractor ("Information" herein); provided, however, that the information shall not be used or relied upon by any party other than the City, save and except as may be required by the design and licensing requirements of the project for which the Information is provided or action of the courts; further, such use shall be limited to the particular site and project for which the Information is provided. 10. Waiver. No officer, employee, agent or otherwise of the City has the power, right, or authority to waive any of the conditions or provisions of this contract. No waiver of any breach of this contract shall be held to be a waiver of any other or subsequent breach. All remedies afforded to in this contract or at law shall be taken and construed as cumulative, that is, in addition to every other remedy provided herein or by law. Failure of the City to enforce at any time any of the provisions of this contract or to require at any time performance of any provision of the contract herein shall in no way be construed to be a waiver of such provision, or in any way affect the validity of this contract or any part thereof, or the right of the City to hereinafter enforce each and every such provision IN WITNESS WHEREOF, the parties hereto have executed this contract to be effective as of the date and year indicated below. Date: J(Ae)q i) f Date: CITY OF PORT ANGELES CONTRACTOR: LANE POWELL, PC By ! �. By Dan McKeen,City Manager SMiI!/ 5 ATTEST: LAPPOVEDASETOFRM: VOOK tcw JJLitef Veneklasen, City Clerk William E. Bloor, City Attorney 6 LN LANE POWELL ATTORNEYS & COUNSELORS GRANT S.DEGoINGER 206,223.7390 deggingerg@lanepowell.com May 31,2016 VIA ELECTRONIC MAIL William E.Bloor City Attorney City of Part Angeles 321 E Fifth Street PO Box 1150 Port Angeles, WA 98362-021'7 Re: Representation of the City of Port Angeles Dear Bill: We thank you for the opportunity to provide you with a proposed scope of work and fee schedule for our services in connection with the issues involving the ongoing impacts to the City's water supply system following the removal of the Elwha River dams. We anticipate a multi-phase structure for our work. The first phase will involve(1)analysis of potential legal claims,remedies and options available to the City;and(2)assisting the City in negotiations with the National Park Service, other agencies or organizations with a role in fulfilling the obligations to the City under the Elwha River Ecosystem and Fisheries Restoration Act ("EREFRA"), the 2004 Memorandum of Understanding and any other agreements. The second phase will involve the selection of appropriate options,including the preparation of claims and/or the commencement of other proceedings. Each phase and the tasks included therein are subject to any modifications, additions and/or refinements recommended at the discretion of the city manager and/or the city attorney. We have discussed the members of our primary team for this assignment. A multi-disciplinary set of issues is presented and our team meets that need with attorneys who have expertise in litigation involving the federal government, as well as in complex construction and environmental matters. We have provided the city with significant discounts from our standard hourly rates. The standard hourly rate for Grant Degginger, Harold Malkin and Stanton Beck is$585 and we are offering to reduce it to$485. The standard rate for Andrew Gabel is$420 and we are offering to reduce it to $365. The standard rate for Carson Cooper is$345 and we are offering to reduce it to $300. Julie Nicoll's standard rate is $375 and we are offering to reduce to$325. The standard rate for Aaron Brecher is$295 and we are offering to reduce it www.lanepowell.com A PROFESSIONAL CORPORATION LAW OFFICES T.208,223.7000 1420 FIFTH AVENUE,SUITE 4200 ANCHORAGE,AK.PORTLAND,OR F.200.223.7107 P.O.BOX 91302 SEATTLE,WA.LONDON,ENGLAND SEATTLE,WASHINGTON 98111.9402 William E. Bloor May 31,2016 Page 2 to$275. Finally,we propose that the first two phases of work will be completed at an amount not to exceed$150,000. We look forward to working with you and the City's team in successfully resolving these challenging issues. Very truly yours, LANE POWELL Pc Grant S.Degginger GSD:d1h 999999.0040/6682484.1