HomeMy WebLinkAboutContract CAG-20-068
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AGREEMENT FOR LEGAL SERVICES REGARDING
TELECOMMUNICATIONS
THIS AGREEMENT, dated S I i (2.0 , is by and between the City of Renton (the "City"), a
Washington municipal corpor do , and Ogden Murphy Wallace ("Consultant"), PLLC. 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 legal advice and representation to the City
relating to technical review and proposed revisions of small cell regulations for FCC
compliance, on-call telecommunication services, other general telecommunications
related legal advice, and development of master use and franchise agreements as
specified in Exhibit A, which is attached and incorporated herein and may hereinafter be
referred to as the "Work."
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 rates set forth in Exhibit A or as otherwise mutually
agreed by the Parties.
3. Time of Performance: Consultant shall commence performance of the Agreement
pursuant to the schedule(s) set forth in Exhibit A. All Work shall be performed by no later
than December 31, 2020.
4. Compensation:
A. Amount. Total compensation to Consultant for Work provided pursuant to this
Agreement shall not exceed $20,000, plus any applicable state and local sales taxes.
Compensation shall be paid based upon Work actually performed according to the
rate(s) or amounts specified in Exhibit A.The 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 or provided in Exhibit A. Except as specifically provided
herein, the Consultant shall be solely responsible for payment of any taxes imposed
as a result of the performance and payment of this Agreement.
B. Method of Payment. On a monthly or no less than quarterly basis during any quarter
in which Work is performed,the Consultant shall submit a voucher or invoice in a form
specified by the City, including 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 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.
C. 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.
D. 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. 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,the Consultant shall be entitled
to payment for all hours worked to the effective date of termination, 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 and such charges due to the City 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 advance in writing by the City.
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6. Warranties And Right To Use Work Product: Consultant represents and warrants that
Consultant will perform all Work identified in this Agreement in a professional and
workmanlike manner and in accordance with all reasonable and professional standards
and laws. 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. Consultant further represents and warrants that 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.
7. 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
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.
8. 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.
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9. Independent Contractor Relationship:
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, 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.
10. 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
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
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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.
11. 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.
12. City of Renton Business License: The 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:
http://www.rentonwa.gov/cros/One.aspx?portal ld=7922741&pageld=9824882
Information regarding State business licensing requirements can be found at:
http://dor.wa.gov/doing-business/register-my-business
13. 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.
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. "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.
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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.
14. Delays: Consultant is not responsible for delays caused by factors beyond the
Consultant's reasonable control. When such delays beyond the Consultant's reasonable
control occur,the City agrees the Consultant is not responsible for damages, nor shall the
Consultant be deemed to be in default of the Agreement.
15. Successors and Assigns: Neither the City nor the Consultant shall assign, transfer or
encumber any rights, duties or interests accruing from this Agreement without the
written consent of the other.
16. Notices: Any notice required under this Agreement will be in writing, addressed to the
appropriate party at the address which appears below (as modified in writing from time
to time by such party), and given personally, by registered or certified mail, return receipt
requested, by facsimile or by nationally recognized overnight courier service.Time period
for notices shall be deemed to have commenced upon the date of receipt, EXCEPT
facsimile delivery will be deemed to have commenced on the first business day following
transmission. Email and telephone may be used for purposes of administering the
Agreement, but should not be used to give any formal notice required by the Agreement.
CITY OF RENTON CONSULTANT
Justin Johnson, Asst Dev Engineering Mgr Elana Zana, Attorney
1055 South Grady Way 901 Fifth Avenue South, Suite 3500
Renton, WA 98057 Seattle, WA 98164
Phone: (425) 430-7291 Phone: (206) 442-1308
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jtjohnson@rentonwa.gov ezana@omwlaw.com
Fax: (425) 430-7300 Fax: (206) 447-0215
17. 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 action to insure 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 Number 4085.
18. Miscellaneous: The parties hereby acknowledge:
A. The City is not responsible to train or provide training for Consultant.
B. Consultant will not be reimbursed for job related expenses except to the extent
specifically agreed within the attached exhibits.
C. Consultant shall furnish all tools and/or materials necessary to perform the Work
except to the extent specifically agreed within the attached exhibits.
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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 his/her Work to
other entities, so long as there is no interruption or interference with the provision of
Work called for in this Agreement.
F. Consultant is responsible for his/her own insurance, including, but not limited to
health insurance.
G. Consultant is responsible for his/her own Worker's Compensation coverage as well as
that for any persons employed by the Consultant.
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.
B. General Administration and Management. The City's project manager is Justin
Johnson. In providing Work, Consultant shall coordinate with the City's contract
manager or his/her designee.
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.
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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.
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.
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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.
IN WITNESS WHEREOF, the Parties have voluntarily entered into this Agreement as of the date
last signed by the Parties below.
CITY OF RENTON i CONSULTANT
By:C%Z )'• By: ~' -- •--
C. E. "Chip"Vincent Elana Za
CED Administrator Attorney
3 13 1 2 0 2Q 3 l << 1 )0.a-p
Date Date
Approved as to Legal Form
By:—,..yGe-e I
Shane Moloney
Renton City Attorney
Contract Template Updated 03/12/2019
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EXHIBIT A
1. Master Use Agreements for Verizon and AT&T, using the City of Redmond template as a
starting point
Drafting revisions to the Redmond Template based on City only
feedback: $1,000-$2,500
Negotiation of Master Use Agreement: $1,500-$5,000 (sorry for the large
variance, it will depend on AT&T and Verizon)
2. Updates to Renton's codes to meet the FCC Orders
This really varies by the scope of the project and whether I am attending City
Council meetings, Planning Commission meetings, etc. or if I am just making a
first round edit to the code with feedback from your office/carriers?
Assuming only edits based on your feedback and carrier comments: $2,500-
$5,000
3. Recommendations on fees for leasing conduit, and fiber
I am happy to work with the City on this, but I do not have a basis on which to
make this estimate. I am only aware of one city that is currently leasing fiber,
and I am not sure they have a good basis for their lease figure (yet, working on
the fiber lease now). As for conduit, I am working on a conduit lease right now
for another City, but they are coming up with the fee amount on their own. I am
happy to help you with the lease documents and surveys, but I cannot at this
point give you a recommendation.
4. Development of a separate franchise with AT&T for a macro-facility in the right-of-way
that was annexed into the City of Renton.
Believe it or not this is actually quite a common issue with AT&T. You are the
third City I am aware of this occurring due to an annexation issue. What I have
done in the past is actually merged it into the SWF franchise. If you don't want
to do that, we can draft a separate agreement with many of the same terms.
Cost Estimate: $1,000-$3,000.
As we discussed over the phone, my rates have increased since our last engagement a few
years ago. The billing rates for my time (and other member time) is $385/hour and for
associates $275/hour.
Flana Zana Attorney
Ogden Murphy Wallace P.L.L.C.
901 Fifth Avenue, Suite 3500 Seattle,WA 98164
phone: 206.442.1308 fax: 206.447.0215