085-23 - Resolution - Appointing Hearing ExaminerDocuSign Envelope ID: C4EC2F23-80FA-490A-9D07-7E8B4166294F
RESOLUTION NO. 085-23
A RESOLUTION OF THE CITY OF PORT ORCHARD, WASHINGTON, APPOINTING
HEARING EXAMINER PER PORT ORCHARD MUNICIPAL CODE SECTION 2.08.110,
AND AUTHORIZING MAYOR TO EXECUTE PROFESSIONAL SERVICES
AGREEMENT.
WHEREAS, the City utilizes a Hearing Examiner to perform administrative and
professional work of a quasi-judicial nature which involves conducting public hearings on behalf
of the City Council on applications of the City's land use regulatory codes and a wide variety of
other disputes arising out of City determinations or actions; and
WHEREAS, pursuant to Port Orchard Municipal Code Section 2.08.110, the City may
utilize the service Hearing Examiners through professional service agreements, provided the
appointment must be confirmed by the City Council; and
WHEREAS, the City currently utilizes Sound Law Center for Hearing Examiner services,
and desires to appoint an additional Hearing Examiner due to the volume of work and the
needs of the City; and
WHEREAS, consistent with the City's procurement policies, the City identified Phil
Olbrechts of Olbrechts & Associates, PLLC, as a qualified professional to serve as a Hearing
Examiner for the City, and the Mayor recommends his appointment as a Hearing Examiner;
and
WHEREAS, the City Council finds it is in the best interests of the City to confirm the
Mayor's appointment of Phil Olbrechts of Olbrechts & Associates, PLLC as a Hearing Examiner
for the City of Port Orchard to eet the needs of the City; Now, Therefore,
THE CITY COUNCIL OF THE CITY OF PORT ORCHARD, WASHINGTON, HEREBY RESOLVES
AS FOLLOWS:
THAT: It is the intent of the Port Orchard City Council that the recitals set forth above
are hereby adopted and incorporated as findings in support of this Resolution.
THAT: The City Council confirms the Mayor's appointment of Phil Olbrechts of
Olbrechts & Associates, PLLC as a Hearing Examiner for the City of Port Orchard,
pursuant to POMC 2.08.110, and authorizes the Mayor to execute a professional
services agreement with Phil Olbrechts of Olbrechts & Associates, PLLC as attached
hereto at Exhibit A and in a form acceptable to the City Attorney.
THAT: The Resolution shall take full force and effect upon passage and signatures
hereon.
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Resolution No. 085-23
Page 2 of 2
PASSED by the City Council of the City of Port Orchard, SIGNED by the Mayor and
attested by the City Clerk in authentication of such passage on this 8th day of August 2023.
DocuSigned by:
Brandy Wallace, MMC, City Clerk
DocuSigned by:
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Robert Putaansuu, Mayor
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PROFESSIONAL SERVICES AGREEMENT
for
CONSULTANT SERVICES
Contract No. 072-23
THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and
entered into this 8th day of August, 2023, by and between the City of Port Orchard ("City") and
Olbrechts & Associates, PLLC, organized under the laws of the state of Washington
("Consultant").
RECITALS:
WHEREAS, the City maintains the role of Hearing Examiner to oversee code enforcement
appeals and certain land use decision making; and
WHEREAS, the City desires to contract for the services of Hearing Examiner to provide
additional coverage to meet the volume of work;
WHEREAS, Consultant has the qualifications to serve as Hearing Examiner for the City;
NOW, THEREFORE, the Parties hereby agree as follows:
AGREEMENT:
1. Scope of Work. The Consultant shall perform all work and provide all materials described
in the Scope of Work set out in Exhibit A attached hereto and incorporated herein by this
reference. Such work shall be performed using facilities, equipment and staff provided by
Consultant, unless otherwise agreed to as part of this agreement, and shall be performed in
accordance with all applicable federal, state and local laws, ordinances and regulations. The
Consultant shall exercise reasonable care and judgment in the performance of work pursuant to
this Agreement. The Consultant shall make minor changes, amendments or revisions in the detail
of the work as may be required by the City, such work not to constitute Extra Work under this
Agreement.
2. Ownership of Work Product. Documents, presentations and any other work product
produced by the Consultant in performance of work under this Agreement shall be tendered to the
City upon completion of the work, and all such product shall become and remain the property of
the City and may be used by the City without restriction; provided, that any such use by the City
not directly related to the particular purposes for which the work product was produced shall be
without any liability whatsoever to the Consultant.
3. Payment. The Consultant shall be paid by the City for completed work and services
rendered under this Agreement pursuant to the rates and charges set out in Exhibit A, attached
hereto and incorporated herein by this reference, with a total not -to -exceed cap of $140,000 for the
teen of this Agreement. Such payment shall be full compensation for work performed or services
rendered and for all labor, materials, supplies, equipment, and incidentals necessary to complete
the work. All billings for compensation for work performed under this Agreement shall list actual
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time and dates during which the work was performed and the compensation shall be figured using
the rates set out in Exhibit B.
Acceptance of final payment by the Consultant shall constitute a release of all claims, related to
payment under this Agreement, which the Consultant may have against the City unless such claims
are specifically reserved in writing and transmitted to the City by the Consultant prior to
acceptance of final payment. Final payment shall not, however, be a bar to any claims that the City
may have against the Consultant or to any remedies the City may pursue with respect to such
claims.
The Consultant and its sub consultants shall keep available for inspection, by the City, for a period
of three years after final payment, the cost records and accounts pertaining to this Agreement and
all items related to, or bearing upon, such records. If any litigation, claim or audit is started before
the expiration of the three-year retention period, the records shall be retained until all litigation,
claims or audit findings involving the records have been resolved. The three-year retention period
shall commence when the Consultant receives final payment.
4. Changes in Work. The Consultant shall make all revisions and changes in the work
completed under the specified scope of work as are necessary to correct errors, when required to
do so by the City, without additional compensation.
5. Extra Work. The City may desire to have the Consultant perform work or render services
in addition to or other than work provided for by the expressed intent of the Scope of Work. Such
work will be considered Extra Work and will be specified in a written supplement which will set
forth the nature and scope thereof. Work under a supplement shall not proceed until authorized in
writing by the City. Any dispute as to whether work is Extra Work or work already covered by
this Agreement shall be resolved before the work is undertaken. Performance of the work by the
Consultant prior to resolution of any such dispute shall waive any claim by the Consultant for
compensation as Extra Work.
6. Employment. Any and all employees of Consultant, while engaged in the performance of
any work or services required by the Consultant under this Agreement, shall be considered
employees of the Consultant only and not of the City, and any and all claims that may or might
arise under the Workman's Compensation Act on behalf of said employees, while so engaged; any
and all taxes arising out of Consultant's or Consultant's employees' work under this Agreement;
and any and all claims made by a third party as a consequence of any acts, errors, or omissions on
the part of the Consultant's employees, while so engaged, shall be the sole obligation and
responsibility of the Consultant, except as provided in Section 12 of this agreement. The
Consultant's relation to the City shall at all times be as an independent contractor.
7. Nondiscrimination and Legal Compliance. Consultant agrees not to discriminate against
any client, employee or applicant for employment or for services because of race, creed, color,
national origin, marital status, gender, age or handicap except for a bona fide occupational
qualification with regard to, but not limited to, the following: employment upgrading; demotion
or transfer; recruitment or any recruitment advertising; layoff or termination; rates of pay or other
forms of compensation; selection for training; and rendition of services. The consultant represents
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and warrants that it is in compliance with and agrees that it will remain in compliance with the
provisions of the Immigration Reform and Control Act of 1986, including but not limited to the
provisions of the Act prohibiting the hiring and continued employment of unauthorized aliens and
requiring verification and record keeping with respect to the status of each of its employees'
eligibility for employment. The consultant shall include a provision substantially the same as this
section in any and all contracts with sub consultants performing work required of the contractor
under this contract. The consultant agrees to indemnify and hold the City harmless from any and
all liability, including liability for interest and penalties, the City may incur as a result of
the consultant failing to comply with any provisions of the Immigration Reform and Control Act
of 1986. Consultant understands and agrees that if it violates this section, this Agreement may be
terminated by the City, and that Consultant shall be barred from performing any services for the
City in the future unless and until a showing is made satisfactory to the City that discriminatory
practices have terminated and that recurrence of such action is unlikely.
8. Term. This Agreement shall become effective upon the day of its execution by both parties,
and shall terminate after one (1) year of the effective date of this Agreement, provided the
Agreement may be extended for three (3), one (1) year additional terms without additional action
by the City Council.
9. Termination by City. The City may terminate this Agreement at any time upon not less
than ten (10) days written notice to Consultant, subject to the City's obligation to pay Consultant
in accordance with subsections A and B below.
A. In the event this Agreement is terminated by the City other than for fault on the part of the
Consultant, a final payment shall be made to the Consultant for actual cost of work
complete at the time of termination of the Agreement. In addition, the Consultant shall be
paid on the same basis as above for any authorized Extra Work completed. No payment
shall be made for any work completed after ten (10) days following receipt by the
Consultant of the termination notice. If the accumulated payment(s) made to the Consultant
prior to the termination notice exceeds the total amount that would be due as set forth in
this subsection, then no final payment shall be due and the Consultant shall immediately
reimburse the City for any excess paid.
B. In the event the services of the Consultant are terminated by the City for fault on the part
of the Consultant, subsection A of this section shall not apply. In such event the amount to
be paid shall be determined by the City with consideration given to the actual costs incurred
by the Consultant in performing the work to the date of termination, the amount of work
originally required which was satisfactorily completed to date of termination, whether that
work is in a form or of a type which is usable by the City at the time of termination, the
cost to the City of employing another person or firm to complete the work required and the
time which may be required to do so, and other factors which affect the value to the City
of the work performed at the time of termination. Under no circumstances shall payment
made under this subsection exceed the amount which would have been made if subsection
A of this section applied.
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C. In the event this Agreement is terminated prior to completion of the work, the original
copies of all work products prepared by the Consultant prior to termination shall become
the property of the City for its use without restriction; provided, that any such use by the
City not directly related to the particular purposes for which the work product was
produced shall be without any liability whatsoever to the Consultant.
10. Termination by Consultant. Consultant may terminate this Agreement only in response
to material breach of this Agreement by the City, or upon completion of the work set out in the
Scope of Work and any Extra Work agreed upon by the parties.
11. Applicable Law; Venue. The law of the State of Washington shall apply in interpreting
this Agreement. Venue for any lawsuit arising out of this Agreement shall be in the Superior Court
of the State of Washington, in and for Kitsap County.
12. Indemnif"ication / Hold Harmless
Consultant shall indemnify and hold the City, its officers, officials,, and employees harmless from
any and all claims, injuries, damages, losses or suits including reasonable attorney fees arising out
of or resulting from the negligent acts, errors or omissions of the Consultant in performance of this
Agreement, except for injuries and damages caused by the sole negligence of the City. 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,
and employees, the Consultant's liability, including the duty and cost to defend, hereunder shall
be only to the extent of the Consultant's negligence. It is further specifically and expressly
understood that the indemnification provided herein constitutes the Consultant's waiver of
immunity under Industrial Insurance, Title 51 RCW, solely for the purposes of this
indemnification. This waiver has been mutually negotiated by the parties. The provisions of this
section shall survive the expiration or termination of this Agreement.
13. Insurance
The Consultant 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 Consultant, its agents, representatives, or
employees.
A. Minimum Scope of Insurance
Consultant shall obtain insurance of the types described below:
1. Automobile Liability insurance covering all owned non -owned, hired and leased vehicles
(as applicable). 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 contractual liability coverage. The Consultant affirms that each of its
Independent Contractors serving the City will maintain appropriate individual automobile
insurance coverage throughout the course of the contract term between the Parties. Both Parties
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acknowledge that the work the Consultant performs under this contract does not involve
driving or the operation of a vehicle on behalf of, or for, the City..
2. Commercial General LiabiliiV insurance shall be written on ISO occurrence form CG 00 01
and shall cover liability arising from premises, operations, independent contractors and
personal injury and advertising injury. The City shall be named as an insured under the
Consultant's Commercial General Liability insurance policy with respect to the work
performed for the City.
3. Workers' Compensation coverage as required by the Industrial Insurance laws of the State
of Washington.
4. Professional Liability insurance appropriate to the Consultant's profession.
B. Minimum Amounts of Insurance
Consultant 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. Commercial General Liability insurance shall be written with limits no less than $1,000,000
each occurrence, $2,000,000 general aggregate.
3. 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
1. In the event the insurance required hereunder is cancelled for any reason, the Consultant
shall provide the City with notice of cancellation and failure to maintain adequate coverage
may be grounds for immediate termination of this Agreement.
2. The insurance policies are to contain, or be endorsed to contain, the following provisions
for Commercial General Liability insurance: the Consultant'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 Consultant's insurance and shall not
contribute with it.
D. Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best rating of not less than ANII.
E. Verification of Coverage
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Consultant 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 Consultant before commencement of the work.
14. Subletting or Assigning. The Consultant shall not sublet or assign any of the work covered
by this Agreement without the express written consent of the City.
15. Entire Agreement. This Agreement represents the entire Agreement between the
parties. No change, termination or attempted waiver of any of the provisions of the Agreement
shall be binding on any party unless executed in writing by authorized representatives of each
party. The agreement shall not be modified, supplemented or otherwise affected by the course of
dealing between the parties.
16. Waiver. Failure by any party to this Agreement to enforce any provision of this Agreement
or to declare a breach shall not constitute a waiver thereof, nor shall it impair any party's right to
demand strict performance of that or any other provision of this Agreement any time thereafter.
17. Severability. If any provision of this Agreement or its application is held invalid, the
remainder of the Agreement or the application of the remainder of the Agreement shall not be
affected.
18. Execution and Acceptance. This Agreement may be executed in several counterparts,
each of which shall be deemed to be an original having identical legal effect. The Consultant
hereby ratifies and adopts all statements, representations, warranties, covenants, and agreements
contained in the supporting materials submitted by the Consultant, and does hereby accept the
Agreement and agrees to all of the terms and conditions thereof.
19. Employment of State Retirees. The City is a "DRS-covered employer" which is an
organization that employs one or more members of any retirement system administered by the
Washington State Department of Retirement Systems (DRS). Pursuant to RCW 41.50.139(1) and
WAC 415-02-325(1), the City is required to elicit on a written form if any of the Contractor's
employees providing services to the City retired using the 2008 Early Retirement Factors (ERFs),
or if the Contractor is owned by an individual who retired using the 2008 ERFs, and whether the
nature of the service and compensation would result in a retirement benefit being suspended.
Failure to make this determination exposes the City to significant liability for pension
overpayments. As a result, before commencing work under this Agreement, Contractor shall
determine whether any of its employees providing services to the City or any of the Contractor's
owners retired using the 2008 ERFs, and shall immediately notify the City and shall promptly
complete the form provided by the City after this notification is made. This notification to DRS
could impact the payment of retirement benefits to employees and owners of Contractor.
Contractor shall indemnify, defend, and hold harmless the City from any and all claims, damages,
or other liability, including attorneys' fees and costs, relating to a claim by DRS of a pension
overpayment caused by or resulting from Contractor's failure to comply with the terms of this
provision. This provision shall survive termination of this Agreement.
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20. Written Notice. All communications regarding this Agreement shall be sent to the parties at
the addresses listed below, unless notified to the contrary. Any written notice hereunder shall
become effective as of the date of mailing by registered or certified mail, and shall be deemed
sufficiently given if sent to the addressee at the address stated in this Agreement or such other
address as may be hereafter specified in writing.
Notices should be sent to:
Appellate Hearing Examiner:
Olbrechts & Associates, PLLC
Attn. Phil Olbrechts
720 N. l Ot" St. A 4297
Renton, WA 98057
City of Port Orchard:
City Clerk
City of Port Orchard
216 Prospect Street
Port Orchard, WA 98366
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
CITY OF PORT ORCHARD
❑acu8igm 6y:
By: ZQ
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Rob Putaansuu, Mayor
Attachments:
Exhibit A: Scope of Work
Exhibit B: Rates
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LIZ
CONSULTANT
Phil Olbrechts, Managing Attorney
Olbrechts & Associates, PLLC
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EXHIBIT A
SCOPE OF WORK
1. General
Hearing Examiner
The Consultant is the appointed as a Hearing Examiner for the City of Port Orchard. As such,
the Consultant's work and duties shall be guided by Chapter 2.76 and Title 20 of the Port
Orchard Municipal Code (POMC).
Rules
The Consultant will utilized adopted rules for hearing examiner hearings, which provide for the
cross-examination of witnesses, and procedural matters related to the duties of the Consultant
consistent with Chapter 2.76 POMC and Title 20 POMC. The Consultant may, but is not
required to, make suggested revisions to the hearing examiner rules.
Hearings
Hearings may be held in -person or virtually as mutually agreed to by the City and the
Consultant. The Consultant shall provide adequate technology and equipment required for
successful audio and video connection capabilities. The Consultant shall set hearings promptly
as required. The Consultant shall timely issue written work -product (e.g., findings, decisions,
etc.) as required by the POMC and applicable state laws.
Electronic Documents
The Consultant shall have adequate technology and equipment to receive large volumes of
records in digital format. No paper copies of permit files, hearing records, staff reports, or
submitted exhibits will be provided to the Consultant by the City.
2. Alternative Coverage.
In the event of a conflict or disqualification, scheduling difficulties, or in any situation in which
the use of Consultant Phil Olbrechts is required, Mr. Olbrechts must inform the Community
Development Director Nick Bond of such need. Mr. Olbrechts shall inform Mr. Bond as soon
as reasonably possible in advance of any hearing in which an absence may occur. Mr. Bond
retains the right to select a Pro Tem, and/or request that the hearing be rescheduled to a time
that would allow Mr. Olbrechts' attendance. Alternatively, Mr. Bond may decide to authorize
the use of another Hearing Examiner Pro Tern by separate contract.
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EXHIBIT B
RATES
The hourly rate is for the Hearing Examiner Pro Tern Mr. Olbrechts is $190 per hour with a one hour
minimum per day of in person hearings (no minimum time for virtual hearings). If Ms. Terrell is used
to assist Mr. Olbrechts in writing decisions, her time shall be billed at $142.50 per hour. Subcontractor
attorneys, if ever needed, would have a rate set at 90% of Mr. Olbrechts' rate ($185/hour). The City
will reimburse for hearing transcription costs. The Appellate Examiner currently uses Rev.com, which
charges $1.50/minute of hearing. One hour of travel may be assessed for in -person hearings (none for
virtual) and IRS mileage from Tacoma.
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