HomeMy Public PortalAbout2014.09.11 White, Peterson, Gigray, Rossman, Nye & Nichols Agreement for City AttorneyAGREEMENT FOR CITY ATTORNEY / CIVIL LEGAL SERVICES
THIS AGREEMENT FOR CITY ATTORNEY / CIVIL LEGAL SERVICES (hereinafter
referred to as "Agreement") is made this I I day of 5e_p-f-t ►tit o-ev,, 2014, between the
CITY OF McCALL, a municipal corporation organized and existing by virtue of the laws of the
State of Idaho (hereinafter referred to as "City"), and WHITE PETERSON, GIGRAY,
ROSSMAN & NICHOLS, P.A., an Idaho professional association (hereinafter referred to as
"White Peterson").
RECITALS:
Whereas, William F. Nichols and the firm, White Peterson, have faithfully rendered
service to the City of McCall as attorneys for the City since August 1, 2005; and
Whereas, the City desires to continue its professional relationship with said attorneys for
another fiscal year; and
Whereas, said attorneys desire to continue to provide civil legal services to the City.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein, and intending to be legally bound thereby, City and White Peterson covenant and agree
as follows:
1. INCORPORATION OF RECITALS. The parties agree that the foregoing
Recitals are contractual and binding and are incorporated herein as if set forth in full.
2. DEFINITIONS. In additional to any other definitions set forth in this Agreement,
for all purposes of this Agreement the following terms are defined and interpreted as herein
provided for, unless the clear context of the presentation of the same requires otherwise:
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CIVIL LEGAL SERVICES - 1
2.1 "Additional Legal Services" means and refers to representing the City in
litigation, including arbitration, brought on behalf of, or against, the city which is not covered
under the City's insurance policy or policies; representing the City in prosecuting or defending
claims (before litigation is filed) not covered by the City's insurance policy or policies;
representing the City in collective bargaining matters; drafting recommendations, findings, or
orders for development application decisions (planning and zoning matters); personnel
investigations and subsequent hearings; judicial confirmations and bond proceedings; formation
of local improvement districts for infrastructure construction; development of impact fee
ordinance and related matters; construction bidding disputes; attendance at special City Council
meetings when requested by the Mayor or City Manager; services designated as additional legal
services in the Request for Proposals issued by the City in 2005 and any other matter not
included in the definition of "Retainer Legal Services" below.
2.2 "Retainer Legal Services" shall include attendance of the City Attorney
(or if unavailable, another White Peterson attorney as designated by the City Attorney) at two (2)
meetings of the City Council per month, with a minimum of twenty-four (24) per year;
preparation and revision of City ordinances (excluding major revisions/adoptions of City Code),
resolutions, drafting and review of contracts and agreements concerning the City, and all other
related legal work of the City; review of recommendations, findings, or orders for development
application decisions prepared by City; routine telephone and personal conferences with City
employees and officials including the City Manager and City Council members; subject to
approval by the Mayor and Council, participation in Association of Idaho Cities Legislative
Council matters, including participation in drafting legislation and testimony before the
legislature if requested by AIC; respond to all citizen inquiries regarding City ordinances other
AGREEMENT FOR CITY ATTORNEY /
CIVIL LEGAL SERVICES - 2
than those pertaining to criminal matters; participation in telephone and office conferences with
builders or developers regarding pending development projects at the request of the City Council
and/or City staff; review, comment, and drafting assistance concerning proposed City policies,
including human resources policies; participation and assistance in City's efforts to set a budget
for the City's civil legal services for the next fiscal year; and all other legal services as set forth
in the Proposal submitted by White Peterson in 2005, excluding legal services specifically
identified in the Request for Proposals issued by the City as being provided outside the monthly
retainer.
2.3 "City Attorney" means and refers to William F. Nichols.
2.4 "Fiscal Year" means and refers to City's fiscal year, now beginning
October 1 and ending September 30 of each calendar year, as provided by State law and this
definition shall be considered automatically amended in the event of an amendment of the
provisions of Idaho law relative to theestablishment of the fiscal year for City.
3. SERVICES PROVIDED BY WHITE PETERSON. Pursuant to the terms of this
Agreement, White Peterson is hereby appointed by the City to perform all Retainer Legal
Services for the City and such other Additional Legal Services as requested by the City.
4. PAYMENT FOR SERVICES. City agrees to pay White Peterson for services
rendered pursuant to the terms of this Agreement as follows:
4.1 As compensation for all Retainer Legal Services, including all out-of-
pocket expenses incurred by White Peterson in performing the Retainer Legal Services, City
shall pay White Peterson the sum of Five Thousand Six Hundred and no/100 Dollars ($5,600.00)
per month.
AGREEMENT FOR CITY ATTORNEY /
CIVIL LEGAL SERVICES - 3
4.1.1 Payment for Retainer Legal Services shall be due monthly in
advance on or before the 20th day of each month. Although the parties acknowledge that the
Retainer Legal Services are provided on a flat -fee basis, White Peterson agrees to maintain
accurate monthly time records of all Retainer Legal Services provided by its attorneys (itemized
by date, attorney performing services) and to provide the same to City on a monthly basis.
4.2 Compensation for Additional Legal Services performed by White Peterson
at the request of the City shall be paid at the rate of One Hundred Seventy -Five and no/100
Dollars ($175.00) per hour for services performed by White Peterson's shareholder attorneys,
One Hundred Twenty -Five and no/100 Dollars ($125.00) per hour for associate attorneys, and
Seventy -Five and no/100 Dollars ($75.00) per hour for legal assistants or paralegals (who are
performing services which would otherwise require the services of an attorney at higher hourly
rates).
4.2.1 City shall also reimburse White Peterson for actual out-of-pocket
expenses (such as filing fees, postage, etc.) incurred by White Peterson in the performance of the
Additional Legal Services as authorized by City.
4.2.2 White Peterson shall provide the City with a monthly itemized
invoice of all Additional Legal Services performed (including all out-of-pocket expenses).
Provided the invoice is received by the 5th day of the month, the City shall remit payment to
White Peterson by the first business day of the following month.
5. TERM. The term of this Agreement shall commence October 1, 2014, and shall
continue until the end of the City's Fiscal Year, September 30, 2015, subject to renewal or
extension as set forth in this Agreement.
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CIVIL LEGAL SERVICES - 4
6. REPRESENTATIONS AND WARRANTIES OF WHITE PETERSON. White
Peterson represents and warrants to City as follows:
6.1 Authority. White Peterson has the right, power, legal capacity and
authority to enter into and perform its obligations under this Agreement.
6.2 No Prohibition to Performance. There are no judgments, liens, actions, or
proceedings existing or pending against White Peterson which would materially affect White
Peterson's ability to enter into or perform under this Agreement.
6.3 Corporate Status. White Peterson is a professional service corporation
duly organized, validly existing, and in good standing under the laws of the State of Idaho and
has all necessary corporate powers to enter into this Agreement.
6.4 Nichols Designated Primary Attorney. White Peterson acknowledges that
William F. Nichols is designated as the attorney shareholder with primary responsibility for
providing legal services to the City pursuant to this Agreement.
6.5 Performance of Services. White Peterson agrees to perform all of the
services and work set forth in this Agreement in a timely, efficient, and professional manner in
accordance with the terms of this Agreement and in compliance with existing laws, ordinances,
rules, or regulations of any applicable regulatory authority or governmental body. Not less than
once per year, White Peterson shall provide a Client Survey form to the City Manager, each
Council member, and each Department Director as a means of gauging performance under this
agreement. The completed survey forms shall be delivered to the City Clerk who will furnish a
copy of the same to White Peterson. The completed survey forms shall constitute proprietary
information belonging to White Peterson and shall not be subject to public records requests. A
summary of the totality of the survey forms will be prepared by White Peterson and when
AGREEMENT FOR CITY ATTORNEY /
CIVIL LEGAL SERVICES - 5
accepted by the City shall constitute a public record subject to disclosure. The purpose of the
survey will be to assess White Peterson's performance and identify any areas which need
correction or improvement.
As part of this agreement, in order to achieve prompt service to the City, all attorneys at
White Peterson who are asked by City staff to perform services, if the request does not contain a
requested response time, shall then inquire of the staff regarding deadlines for response or if
necessary negotiate a reasonable time for response if different from the staff requested deadline.
White Peterson shall strive to meet the agreed upon deadlines and if unforeseen circumstances
interfere with completion of the assigned task, the affected staff member shall be contacted in
advance of the deadline with the circumstances and an anticipated date for completion.
6.6 Non -Exclusive Agreement. White Peterson acknowledges that this
Agreement shall not be interpreted to limit the City's authority to retain the services of outside
legal counsel to perform any legal services, whether as a result of the City's need for special
expertise or otherwise.
7. INSURANCE. For the purposes of this Agreement, White Peterson shall carry
the following types of insurance in at least the per occurrence limits specified below:
Coverage Limits of Liability
Professional Liability (errors and omissions)
Worker's Compensation
Employer's Liability
General Liability (bodily injury and/or
property damage)
$2,000,000.00
Statutory limits
$2,000,000.00
$2,000,000.00
8. POSSIBLE EXTENSION OF TERM OF AGREEMENT. The parties may
mutually agree to renew or extend the term of this Agreement; however, any such renewal or
extension must be in writing.
AGREEMENT FOR CITY ATTORNEY /
CIVIL LEGAL SERVICES - 6
9. TERMINATION. This Agreement may be terminated upon mutual agreement of
the parties. City shall also have the right to remove White Peterson's appointment as City's
attorneys in the manner as set forth in Idaho Code § 50-206 and terminate this Agreement, with
or without cause, at any time, which termination shall be effective upon service of written notice
to White Peterson in the manner as set forth herein. In the event of a termination, City shall
remain responsible to pay White Peterson for all services provided through the date of
termination pursuant to the terms of this Agreement.
10. GENERAL PROVISIONS.
10.1 Attorney Fees. If any action or proceeding is instituted to enforce or
construe any provision of this Agreement, the prevailing party in such action or proceeding shall
be entitled to recover from any party or parties against whom a judgment is entered, all
reasonable attorney fees and costs incurred by the prevailing party in connection with such action
or proceeding in addition to such other relief to which such prevailing party is entitled.
10.2 Binding Effect. This Agreement shall be binding upon the heirs, estates,
personal representatives, successors, and assigns of the parties.
10.3 Choice of Law. This Agreement will be interpreted in accordance with
the laws and statutes of the State of Idaho.
10.4 Notices. Any notice under this Agreement shall be in writing and shall be
treated as duly delivered if the same is personally delivered or deposited in the United States
mail, certified, return receipt requested, postage prepaid, and properly addressed as follows:
Notice to City:
City Manager
City of McCall
216 East Park
McCall, ID 83638
AGREEMENT FOR CITY ATTORNEY /
CIVIL LEGAL SERVICES - 7
Notice to White Peterson:
William F. Nichols, Esq.
White, Peterson, Gigray, Rossman & Nichols, P.A.
5700 East Franklin Road, Suite 200
Nampa, ID 83687-7901
10.5 Paragraph Headings. The paragraph headings of this Agreement are for
clarity in reading and not intended to limit or expand the contents of the respective paragraphs.
10.6 Partial Invalidity. Whenever possible, each provision of this Agreement
shall be interpreted in such a way as to be effective and valid under applicable law. If a
provision of this Agreement is prohibited by, or invalid under applicable law, it shall be
ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder
of such provision or the remaining provisions of this Agreement.
10.7 Further Assurances. The parties each for themselves do further covenant
to the others to execute any and all other documents necessary to effect the transfers
contemplated by this Agreement.
10.8 Time. Time is declared to be of the essence to this Agreement.
10.9 Waiver. The rights and remedies of the parties to this Agreement are
cumulative and not alternative. Neither the failure nor any delay by any party in exercising any
right, power, or privilege under this Agreement or the documents referenced in this Agreement
will operate as a waiver of such right, power, or privilege, and no single or partial exercise of any
such right, power, or privilege will preclude any other or further exercise of such right, power, or
privilege or the exercise of any other right, power, or privilege.
10.10 No Assignment by White Peterson. White Peterson shall not sell, assign,
or transfer all or any portion of its interest in this Agreement at any time.
AGREEMENT FOR CITY ATTORNEY /
CIVIL LEGAL SERVICES - 8
10.11 Handwritten Provisions. Handwritten provisions inserted in this
Agreement, and initialed by the parties in ink, shall control all typewritten provisions in conflict
therewith.
10.12 Entire Agreement. This Agreement supersedes all prior agreements
between the parties with respect to its subject matter, and constitutes (along with the other
documents referred to in this Agreement) a complete and exclusive statement of the terms of the
agreement between the parties with respect to its subject matter.
10.13 Execution and Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original agreement, but all of which shall
be considered one instrument.
10.14 Amendments. This Agreement may not be amended, modified, altered or
changed in any respect whatsoever, except by further agreement in writing duly executed by the
parties.
AGREEMENT FOR CITY ATTORNEY /
CIVIL LEGAL SERVICES - 9
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first above written.
CITY:
ATTEST:
CITY OF McCALL
BessieJo agner, C. Clerk
WHITE PETERSON: WHITE, PETERSON, GIGRAY,
ROSSMAN & NICHOLS, P.A.
By:
Terrencc hite, managing Director
AGREEMENT FOR CITY ATTORNEY /
CIVIL LEGAL SERVICES - 10
WHITE PETERSON
Wm. F. GIGRAY, III
MATrimw A. 70HNsoN
WILLIAM F. Maims
CHRISroeHER S. NYE
BRIAN T. O'BANNON*
ATTORNEYS AT LAW
WHITE, PETERSON, GIGRAY, ROSSMAN, NYE & NICHOLS, P.A.
CANYON PARK AT THE IDAHO CENTER
5700 E. FRANKLIN RD., SUITE 200
NAMPA, IDAHO 83687-7901
TEL (208) 466-9272
FAX (208) 466- 405
EMAIL: wfn@whitepeterson.com
September 5, 2013
Mr. Gene Drabinski
City of McCall
216 E. Park Street
McCall, Idaho 83638
Re: Contract for 2013-14
Dear Gene:
PHILIP A. PETERSON
Wauam L. PDNKONEY
TODD A. ROSSMAN
DAVIS F. VANDERVELDE **
TERRENCE R. WHITE •s•
• Also admitted in OR
'• Also admitted in NV
s.r Also admitted in WA
Accompanying this letter are duplicate originals for a new legal services contract for the
next fiscal year. There are no changes in the agreement but if the continuing trend of imbalance
sustains itself through next April I will want to discuss with you possible changes to the contract.
The following information is by calendar year, rather than fiscal year. If you want us to
recast the information by fiscal years we can do so.
Calendar Year If Billed Hourly Retainer
2008 $73,200 $67,200
2009 $81,300 $67,200
2010 $93,700 $67,200
2011 $86,600 $67,200
2012 $94,100 $67,200
The hourly numbers are based on what the billings would have been if we had billed by
the hour outside the retainer but under the contract. Those hourly rates represent a discount of
about 17% from our normal hourly rates. For 2012 if these hours had been billed at our firm's
standard rates for these timekeepers the total would have been approximately $105,000. As you
can see, the last four calendar years .have seen a pretty big increase in work done under the
retainer. I think part of that was my effort to do as much as possible under the retainer in
recognition of the tight budget times the City encountered during the dramatic downturn in the
local economy. There were also some staff issues that contributed to some of that extra work_
For calendar year 2013 on the retainer accounts, if the numbers through July continue on the
Mr. Gene Drabinski
September 5, 2013
Page 2
same trend through the end of the year, the services will come in over $100,000 if the work had
been billed at the contract's reduced hourly rates.
This contract leaves the retainer at the existing monthly flat fee for the upcoming fiscal
year. I have set a review in April next year to see where we are but wanted you to know that if
that review shows the same disparity, I will likely need to ask for an increase in the 2014-15
budget, and perhaps an adjustment to what services are inside the retainer. I hope you know that
I enjoy representing the City of McCall and working with you and the rest of the staff. McCall is
an outstanding community and the work the City does to help keep it that way is something that I
admire.
If you need anything else from me, let me know.
Very truly yours,
Enc.
W:\Work1M\McCall, City of21684\Admin-Retainer serviccsUar Gene Ihabinski re Retainer for 2013-14 2013 09 05.doc