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HomeMy WebLinkAboutContractAGREEMENT FOR CIVIL ASSET FORFEITURE LEGAL SERVICES THIS AGREEMENT, dated for reference purposes only as August 12, 2024, is by and between the City of Renton (the “City”), a Washington municipal corporation, and Kenyon Disend, PLLC (“Consultant”), a Washington professional limited liability company. The City and the Consultant are referred to collectively in this Agreement as the “Parties.” Once fully executed by the Parties, this Agreement is effective as of the last date signed by both parties. 1. Scope of Work: Consultant agrees to provide the City with the following services and work product (referred to hereafter as the “Work”): Exhibit Attached: See Exhibit A, which is incorporated herein by this reference, for a full description of the Work. The purpose of the Work is briefly summarized as: Legal services for the City to prosecute claims made in civil asset forfeiture cases for real and personal property seized by the Renton Police Department as part of its investigations, as assigned. Detailed Description of Work: N/A 2. Changes in Scope of Work: The City, without invalidating this Agreement, may order changes to the Work consisting of additions, deletions or modifications. Any such changes to the Work shall be ordered by the City in writing and the Compensation shall be equitably adjusted consistent with the method of compensation agreed to in Section 4. 3. Time of Performance: A. Schedule for Performance. Consultant shall promptly commence and diligently complete performance of the Work starting upon execution of this Agreement unless a separate schedule is agreed to in writing or specified in the Scopeof Work in Section 1 of this Agreement. B. Deadline for Completion of all Work. All Work shall be completed by no later than December 31, 2025 unless this date is extended by written amendment to this Agreement. 4. Compensation: PAGE 2 OF 12 A. Maximum Amount. Total compensation to Consultant for Work provided pursuant to this Agreement shall not exceed one hundred thousand dollars ($100,000), which amount shall include the rates specfied in Section 4.B and reimburseable costs allowed pursuant to Seciton 4.C, but such maximum amount does not include any applicable state and local sales taxesthat Consultant is required by law to collect from the City. B. Rate of Compensation. Compensation shall be paid for after all Work is actually performed as follows – applicable box checked: Rate(s), payment schedules, or amounts specified in Exhibit A, which is attached and incorporated herein. Hourly rates described as follows: N/A Fixed monthly rate described as follows: N/A Fixed rate for completion of all Work described as follows: N/A Other: N/A Consultant agrees that any hourly or flat rate charged by it for its Work shall remain locked at the negotiated rate(s) unless otherwise agreed to in writing. Except sales and use taxes required by state law to be collected by Consultant from the City, the Consultant shall be solely responsible for payment of any taxes imposed as a result of the performance and payment of this Agreement. C. Reimbursable Costs.The Rate of Compensation described in Section 4.B is established to cover all direct and indirect costs for the Consultant to perform the Work, without separate reimbursement except to the extent expressly agreed to therein. If the Rate of Compensation expressly contemplates the City paying Consultant reimbursable costs, Consultant will not incur such costs until after first giving the City’s contract administrator an opportunity to object to the costs being incurred. Such opportunity shall be provided by emailing the contract administrator details of the costs to be incurred with a reasonable opportunity to respond. D. Method of Payment. On a monthly or no less than quarterly basis during any quarter in which Work isperformed, the Consultant shall submit a voucher or invoice in a form approved by the City, including as may be applicable a description of what Work has been performed, the name of the personnel performing such Work, and any hourly labor charge rate for such personnel. The Consultant shall also submit a final bill upon completion of all Work. Payment shall be made by the City for Work performed within PAGE 3 OF 12 thirty (30) calendar days after receipt and approval by the appropriate City representative of the voucher or invoice. If the Consultant’s performance does not meet the requirements of this Agreement, the Consultant will correct or modify its performance to comply with the Agreement. The City may withhold payment for work that does not meet the requirements of this Agreement. E. Effect of Payment. Payment for any part of the Work shall not constitute a waiver by the City of any remedies it may have against the Consultant for failure of the Consultant to perform the Work or for any breach of this Agreement by the Consultant. F. Non-Appropriation of Funds. If sufficient funds are not appropriated or allocated for payment under this Agreement for any future fiscal period, the City shall not be obligated to make payments for Work or amounts incurred after the end of the current fiscal period, and this Agreement will terminate upon the completion of all remaining Work for which funds are allocated. No penalty or expense shall accrue to the City in the event this provision applies. 5. Notices and Contract Administration: Any notice required under this Agreement (e.g. notices of termination or insurance cancellation) shall be in writing, delivered by personal service or certified mail, with return receipt requested, to the Required Notice Contact(s) identified below. Required notices shall include a copy of the Agreement, the City’s CAG number assigned to the Agreement, and clearly identify the parties and the date referenced in the first paragraph of this Agreement. A copy of the required notice shall also be provided to all email addresses identified for both parties in this Section, including those listed as required notice contact and contract project manager. Required notices shall be deemed received upon the date of personal delivery, the date the USPS confirms delivery, or the date courtesy emailed notice is acknowledged as received by the required notice email contact address, whichever occurs first. If a Party first makes reasonable attempts to deliver a required notice by one of the alternative delivery methods without a successful confirmed delivery, the required notice will be deemed received three (3) days after it is mailed by regular first-class mail and emailed to all below-listed email addresses along with the last known email address used by the receiving party to communicate regarding the contract. Communication regarding contract administration that does not include a notice required by this Agreement may be done through the party’s Project Managers using the contact information provided below. PAGE 4 OF 12 CITY OF RENTON Required Notice Contact: City Clerk Attn: Formal Contract Notice 1055 South Grady Way Renton, WA 98057 Cityclerk@rentonwa.gov legaladmin@rentonwa.gov CONSULTANT Required Notice Contact: Alexandra Kenyon 11 Front Street South Issaquah, WA 98027-3820 Phone: (425) 392-7090 Alexandra@kenyondisend.com Communication regarding contract administration that does not include a required notice may be done through the party’s Project Managers using the contact information provided below. Contract Project Manager: Contract Project Manager: Jon Schuldt, Police Chief jschuldt@rentonwa.gov 425-430-7555 Alexandra Kenyon Phone: (425) 392-7090 Alexandra@kenyondisend.com 6. Termination: A. The City reserves the right to terminate this Agreement at any time, with or without cause by giving ten(10) calendar days’ notice to the Consultant in writing. In the event of such termination or suspension, all finished or unfinished documents, data, studies, worksheets, models and reports, or other material prepared by the Consultant pursuant to this Agreement shall be submitted to the City, if any are required as part of the Work. B. In the event this Agreement is terminated by the City prior to completion of all Work, the Consultant shall be entitled to payment for all Work performed in accordance with this Agreement, less all payments previously made. If the Agreement is terminated by the City after partial performance of Work for which the agreed compensation is a fixed fee, the City shall pay the Consultant an equitable share of the fixed fee. This provision shall not prevent the City from seeking any legal remedies it may have for the violation or nonperformance of any of the provisions of this Agreement. Amounts owing to the City by Consultant pursuant to the terms of this Agreement shall be deducted from the final payment due the Consultant. No payment shall be made by the City for any expenses incurred or work done following the effective date of termination unless authorized in writing by the City. 7. Right To Use Work Product:Consultant will perform all Work identified in this Agreement in a professional and workmanlike manner and in accordance with all reasonable and PAGE 5 OF 12 professional standards and laws for the type of work provided in Washington state. Compliance with professional standards includes, as applicable, performing the Work in compliance with applicable City standards or guidelines (e.g. design criteria and Standard Plans for Road, Bridge and Municipal Construction). Professional engineers shall certify engineering plans, specifications, plats, and reports, as applicable, pursuant to RCW 18.43.070. All final work product created for and delivered to the City pursuant to this Agreement shall be the original work of the Consultant and free from any intellectual property encumbrance which would restrict the City from using the work product. Consultant grants to the City a non-exclusive, perpetual right and license to use, reproduce, distribute, adapt, modify, and display all final work product produced pursuant to this Agreement. The City’s or other’s adaptation, modification or use of the final work products other than for the purposes of this Agreement shall be without liability to the Consultant. The provisions of this section shall survive the expiration or termination of this Agreement. 8. Record Maintenance: The Consultant shall maintain accounts and records, which properly reflect all direct and indirect costs expended and Work provided in the performance of this Agreement and retain such records for as long as may be required by applicable Washington State records retention laws, but in any event no less than six (6) years after the termination of this Agreement. The Consultant agrees to provide access to and copies of any records related to this Agreement as required by the City to audit expenditures and charges and/or to comply with the Washington State Public Records Act (Chapter 42.56 RCW). The provisions of this section shall survive the expiration or termination of this Agreement. 9. Public Records Compliance: To the full extent the City determines necessary to comply with the Washington State Public Records Act, Consultant shall make a due diligent search of all records in its possession or control relating to this Agreement and the Work, including, but not limited to, e-mail, correspondence, notes, saved telephone messages, recordings, photos, or drawings and provide them to the City for production. In the event Consultant believes said records need to be protected from disclosure, it may, at Consultant’s own expense, seek judicial protection. Consultant shall indemnify, defend, and hold harmless the City for all costs, including attorneys’ fees, attendant to any claim or litigation related to a Public Records Act request for which Consultant has responsive records and for which Consultant has withheld records or information contained therein, or not provided them to the City in a timely manner. Consultant shall produce for distribution any and all records responsive to the Public Records Act request in a timely manner, unless those records are protected by court order. The provisions of this section shall survive the expiration or termination of this Agreement. 10. Independent Contractor Relationship: PAGE 6 OF 12 A. The Consultant is retained by the City only for the purposes and to the extent set forth in this Agreement. The nature of the relationship between the Consultant and the City during the period of the Work shall be that of an independent contractor, not employee. The Consultant, not the City, shall have the power to control and direct the details, manner or means of Work. Specifically, but not by means of limitation, the Consultant shall have no obligation to work any particular hours or particular schedule, unless otherwise indicated in the Scope of Work or where scheduling of attendance or performance is mutually arranged due to the nature of the Work. Consultant shall retain the right to designate the means of performing the Work covered by this agreement, and the Consultant shall be entitled to employ other workers at such compensation and such other conditions as it may deem proper, provided, however, that any contract so made by the Consultant is to be paid by it alone, and that employing such workers, it is acting individually and not as an agent for the City. B. The City shall not be responsible for withholding or otherwise deducting federal income tax or Social Security or contributing to the State Industrial Insurance Program, providing insurance benefits, provide training, tools, or materials, or otherwise assuming the duties of an employer with respect to Consultant or any employee of the Consultant. C. If the Consultant is a sole proprietorship or if this Agreement is with an individual, the Consultant agrees to notify the City and complete any required form if the Consultant retired under a State of Washington retirement system and agrees to indemnify any losses the City may sustain through the Consultant’s failure to do so. D. In the event special training, licensing, or certification is required for Consultant to provide Work he/she will acquire or maintain such at his/her own expense and, if Consultant employs, sub-contracts, or otherwise assigns the responsibility to perform the Work, said employee/sub-contractor/assignee will acquire and or maintain such training, licensing, or certification. E. This is a non-exclusive agreement and Consultant is free to provide services to other entities, so long as there is no interruption or interference with the provision of Work called for in this Agreement. 11. Hold Harmless: The Consultant agrees to release, indemnify, defend, and hold harmless the City, elected officials, employees, officers, representatives, and volunteers from any and all claims, demands, actions, suits, causes of action, arbitrations, mediations, proceedings, judgments, awards, injuries, damages, liabilities, taxes, losses, fines, fees, penalties, expenses, attorney’s or attorneys’ fees, costs, and/or litigation expenses to or by any and all persons or entities, arising from, resulting from, or related to the negligent PAGE 7 OF 12 acts, errors or omissions of the Consultant in its performance of this Agreement or a breach of this Agreement by Consultant, except for that portion of the claims caused by the City’s sole negligence. Should a court of competent jurisdiction determine that this agreement is subject to RCW 4.24.115, (Validity of agreement to indemnify against liability for negligence relative to construction, alteration, improvement, etc., of structure or improvement attached to real estate…) then, in the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of the Consultant and the City, its officers, officials, employees and volunteers, Consultant’s liability shall be only to the extent of Consultant’s negligence. It is further specifically and expressly understood that the indemnification provided in this Agreement constitute Consultant’s waiver of immunity under the Industrial Insurance Act, RCW Title 51, solely for the purposes of this indemnification. The Parties have mutually negotiated and agreed to this waiver. The provisions of this section shall survive the expiration or termination of this Agreement. 12. Gifts and Conflicts: The City’s Code of Ethics and Washington State law prohibit City employees from soliciting, accepting, or receiving any gift, gratuity or favor from any person, firm or corporation involved in a contract or transaction. To ensure compliance with the City’s Code of Ethics and state law, the Consultant shall not give a gift of any kind to City employees or officials. Consultant also confirms that Consultant does not have a business interest or a close family relationship with any City officer or employee who was, is, or will be involved in selecting the Consultant, negotiating or administering this Agreement, or evaluating the Consultant’s performance of the Work. 13. City of Renton Business License: Unless exempted by the Renton Municipal Code, Consultant shall obtain a City of Renton Business License prior to performing any Work and maintain the business license in good standing throughout the term of this agreement with the City. Information regarding acquiring a city business license can be found at: https://www.rentonwa.gov/Tax Information regarding State business licensing requirements can be found at: https://dor.wa.gov/doing-business/register-my-business 14. Insurance: Consultant shall secure and maintain: A. Commercial general liability insurance in the minimum amounts of $1,000,000 for each occurrence/$2,000,000 aggregate for the Term of this Agreement. PAGE 8 OF 12 B. In the event that Work delivered pursuant to this Agreement either directly or indirectly involve or require Professional Services, Professional Liability, Errors and Omissions coverage shall be provided with minimum limits of $1,000,000 per occurrence. If the coverage is based on claims made, rather than occurrence, Consultant shall maintain tail or equivalent coverage for three years after Work is complete. "Professional Services", for the purpose of this section, shall mean any Work provided by a licensed professional or Work that requires a professional standard of care. C. Workers’ compensation coverage, as required by the Industrial Insurance laws of the State of Washington, shall also be secured. D. Commercial Automobile Liability for owned, leased, hired or non-owned, leased, hired or non-owned, with minimum limits of $1,000,000 per occurrence combined single limit, if there will be any use of Consultant’s vehicles on the City’s Premises by or on behalf of the City, beyond normal commutes. E. Consultant shall name the City as an Additional Insured on its commercial general liability policy on a non-contributory primary basis. The City’s insurance policies shall not be a source for payment of any Consultant liability, nor shall the maintenance of any insurance required by this Agreement be construed to limit the liability of Consultant to the coverage provided by such insurance or otherwise limit the City’s recourse to any remedy available at law or in equity. F. Subject to the City’s review and acceptance, a certificate of insurance showing the proper endorsements, shall be delivered to the City before performing the Work. G. Consultant shall provide the City with written notice of any policy cancellation, within two (2) business days of their receipt of such notice. 15. Delays: Consultant is not responsible for delays caused by factors beyond the Consultant’s reasonable control. When such delays beyond the Consultant’s reasonable controloccur, the City agrees the Consultant is not responsible for damages, nor shall the Consultant be deemed to be in default of the Agreement. 16. Assignment: Neither the City nor the Consultant shall assign, transfer or encumber any rights, duties or interests accruing from this Agreement without a signed amendment to this Agreement. 17. Merger, Acquisition, or Name Change:If Consultant is merged with, acquired by another entity, or has a name change, such party shall provide written notice to the City PAGE 9 OF 12 within 20 days of the effective date of such merger, acquisition, or name change. The surviving or acquiring entity shall assume all rights and obligations of such party under this Agreement, unless otherwise agreed by the Parties in a signed amendment to this Agreement. The new or renamed entity will promptly sign an amendment upon request by the City to document its assumption of all obligations under this Agreement. 18. Discrimination Prohibited: Except to the extent permitted by a bona fide occupational qualification, the Consultant agrees as follows: A. Consultant, and Consultant’s agents, employees, representatives, and volunteers with regard to the Work performed or to be performed under this Agreement, shall not discriminate on the basis of race, color, sex, religion, nationality, creed, marital status, sexual orientation or preference, age (except minimum age and retirement provisions), honorably discharged veteran or military status, or the presence of any sensory, mental or physical handicap, unless based upon a bona fide occupational qualification in relationship to hiring and employment, in employment or application for employment, the administration of the delivery of Work or any other benefits under this Agreement, or procurement of materials or supplies. B. The Consultant will take affirmative stepsto ensure that applicants are employed and that employees are treated during employment without regard to their race, creed, color, national origin, sex, age, sexual orientation, physical, sensory or mental handicaps, or marital status. Such action shall include, but not be limited to the following employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation and selection for training. C. If the Consultant fails to comply with any of this Agreement’s non-discrimination provisions, the City shall have the right, at its option, to cancel the Agreement in whole or in part. D. The Consultant is responsible to be aware of and in compliance with all federal, state and local laws and regulations that may affect the satisfactory completion of the project, which includes but is not limited to fair labor laws, worker's compensation, and Title VI of the Federal Civil Rights Act of 1964, and will comply with City of Renton Council Resolution No. 4085. 19. Other Provisions: A. Approval Authority. Each individual executing this Agreement on behalf of the City and Consultant represents and warrants that such individuals are duly authorized to execute and deliver this Agreement on behalf of the City or Consultant. PAGE 10 OF 12 B. Certification Regarding Federal Debarment and Suspension Status.Consultant affirms that neither it nor its principals nor its subcontractors and their principals: (1) are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from the award of contracts by any federal department or agency; (2) have within a 3-year period preceding any partially or wholly federally funded contract been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (federal, state, or local) contract or subcontract; been in violation of federal or state antitrust statutes, or been convicted of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property; or otherwise criminally or civilly charged by a governmental entity (federal, state, or local) with commission of any of the offenses enumerated in (2) above; and, (3) have within a 3-year period preceding an award of any partially or wholly federally funded contract, had one or more contracts terminated for cause or default by any federal or state agency. Consultant further promises that if it or its principals in the future are debarred or suspended from eligibility of award by the federal government that it shall within 3 days notify the City of such change in status. C. Amendment and Modification. This Agreement may be amended only by an instrument in writing, duly executed by both Parties. D. Conflicts. In the event of any inconsistencies between Consultant proposals and this Agreement, the terms of this Agreement shall prevail. Any exhibits/attachments to this Agreement are incorporated by reference only to the extent of the purpose for which they are referenced within this Agreement. To the extent a Consultant prepared exhibit conflicts with the terms in the body of this Agreement or contains terms that are extraneous to the purpose for which it is referenced, the terms in the body of this Agreement shall prevail and the extraneous terms shall not be incorporated herein. E. Governing Law. This Agreement shall be made in and shall be governed by and interpreted in accordance with the laws of the State of Washington and the City of Renton. Consultant and all of the Consultant’s employees shall perform the Work in accordance with all applicable federal, state, county and city laws, codes and ordinances. F. Joint Drafting Effort. This Agreement shall be considered for all purposes as prepared by the joint efforts of the Parties and shall not be construed against one party or the other as a result of the preparation, substitution, submission or other event of negotiation, drafting or execution. PAGE 11 OF 12 G. Jurisdiction and Venue. Any lawsuit or legal action brought by any party to enforce or interpret this Agreement or any of its terms or covenants shall be brought in the King County Superior Court for the State of Washington at the Maleng Regional Justice Center in Kent, King County, Washington, or its replacement or successor. Consultant hereby expressly consents to the personal and exclusive jurisdiction and venue of such court even if Consultant is a foreign corporation not registered with the State of Washington. H. Severability. A court of competent jurisdiction’s determination that any provision or part of this Agreement is illegal or unenforceable shall not cancel or invalidate the remainder of this Agreement, which shall remain in full force and effect. I. Sole and Entire Agreement. This Agreement contains the entire agreement of the Parties and any representations or understandings, whether oral or written, not incorporated are excluded. J. Time is of the Essence. Time is of the essence of this Agreement and each and all of its provisions in which performance is a factor. Adherence to completion dates set forth in the description of the Work is essential to the Consultant’s performance of this Agreement. K. Third-Party Beneficiaries. Nothing in this Agreement is intended to, nor shall be construed to give any rights or benefits in the Agreement to anyone other than the Parties, and all duties and responsibilities undertaken pursuant to this Agreement will be for the sole and exclusive benefit of the Parties and no one else. L. Binding Effect. The Parties each bind themselves, their partners, successors, assigns, and legal representatives to the other party to this Agreement, and to the partners, successors, assigns, and legal representatives of such other party with respect to all covenants of the Agreement. M. Waivers. All waivers shall be in writing and signed by the waiving party. Either party’s failure to enforce any provision of this Agreement shall not be a waiver and shall not prevent either the City or Consultant from enforcing that provision or any other provision of this Agreement in the future. Waiver of breach of any provision of this Agreement shall not be deemed to be a waiver of any prior or subsequent breach unless it is expressly waived in writing. N. Counterparts. The Parties may execute this Agreement in any number of counterparts, each of which shall constitute an original, and all of which will together constitute this one Agreement. PAGE 12 OF 12 IN WITNESS WHEREOF, the Parties have voluntarily entered into this Agreement as of the date last signed by the Parties below. CITY OF RENTON By:_____________________________ CONSULTANT By:____________________________ Armondo Pavone Mayor Alexandra Kenyon Kenyon Disend, PLLC _____________________________ Date _____________________________ Date Attest _____________________________ Jason A. Seth City Clerk Approved as to Legal Form By: __________________________ Alex Tuttle Senior Assistant City Attorney Contract Template Updated 5/21/2021 OOTCA contract no. 3150