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HomeMy Public PortalAbout2007.11.20 White Peterson Agreement for City Attorney/City Legal ServicesAGREEMENT FOR CITY ATTORNEY / CIVIL LEGAL SERVICES THIS AGREEMENT FOR CITY ATTORNEY / CIVIL LEGAL SERVICES (hereinafter referred to as "Agreement") is made this .?044" day of NoUQ.w.10e.r , 2007, 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, P.A., an Idaho professional association (hereinafter referred to as "White Peterson"). RECITALS: Whereas, William F. Nichols and the firm, White Peterson, P.A., 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: 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 AGREEMENT FOR CITY ATTORNEY / CIVIL LEGAL SERVICES - 1 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 all 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 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 AGREEMENT FOR CITY ATTORNEY / CIVIL LEGAL SERVICES - 2 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 in 2005 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 the establishment 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 perfouun 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. 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 AGREEMENT FOR CITY ATTORNEY / CIVIL LEGAL SERVICES - 3 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 Fifty and no/100 Dollars ($150.00) per hour for services performed by White Peterson's shareholder attorneys, One Hundred and no/100 Dollars ($100.00) 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, 2007, and shall continue until the end of the City's next Fiscal Year, September 30, 2008, subject to renewal or extension as set forth in this Agreement. 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. AGREEMENT FOR CITY ATTORNEY / CIVIL LEGAL SERVICES - 4 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. 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) Workman'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 AGREEMENT FOR CITY ATTORNEY / CIVIL LEGAL SERVICES - 5 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. 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 tell is 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. AGREEMENT FOR CITY ATTORNEY / CIVIL LEGAL SERVICES - 6 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: Lindley Kirkpatrick, City Manager City of McCall 216 East Park McCall, ID 83638 Notice to White Peterson: William F. Nichols, Esq. White Peterson, 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 AGREEMENT FOR CITY ATTORNEY / CIVIL LEGAL SERVICES - 7 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. 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. IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written. CITY: CITY OF McCALL By: William A. Robertson, Mayor AGREEMENT FOR CITY ATTORNEY / CIVIL LEGAL SERVICES - 8 ATTEST: .4, City Clerk K sd)u`hli WHITE PETERSON: WHIT Todd A. Rossman, Managing Director AGREEMENT FOR CITY ATTORNEY / CIVIL LEGAL SERVICES - 9