070-19 - Tim Drury - ContractCITY OF PORT ORCHARD PROFESSIONAL SERVICES AGREEMENT
ABATEMENT HEARING OFFICER
THIS AGREEMENT ("Agreement") is made effective as of the 27 day of September 2019, by
and between the City of Port Orchard, a municipal corporation organized under the laws of the State of
Washington, whose address is:
CITY OF PORT ORCHARD
216 Prospect Street
Port Orchard, Washington 98366
(hereinafter the "CITY")
Contact: Mayor Robert Putaansuu
and
Phone: 360.876.4407 Fax: 360.895.9029
TIM DRURY
P.O. Box 1836
Port Orchard, WA 98366
(hereinafter the "CONTRACTOR")
Phone: 360 876-4715
for professional services in connection with the following:
Provision of professional services for the performance of the duties of Abatement Hearing Officer
for the City of Port Orchard.
TER]T{S AND CONDITIONS
1. Services by Contractor
A. The Contractor shall perform the services and fulfill those duties of the office of the
Abatement Hearing Officer for the City of Port Orchard as ordained in POMC 2.82, and by any other
section of the Port Orchard Municipal Code as now or hereafter amended or enacted. These services,
duties, and responsibilities include reviewing information provided by City staff and applicable laws in
preparation for abatement hearings; holding pre-hearing conferences and issuing pre-hearing orders on
individual cases as necessary for the clarification of issues to be addressed at the hearing; conducting
hearings on all matters to which the Abatement Hearing Officer is granted jurisdiction; receiving
testimony and documentary evidence; preparing final written decisions, including findings of fact and
conclusions of law for each case heard; and issuing decisions on post-hearing motions. The Contractor
shall be responsible for providing a final written decision in each matter to the City for distribution.
B. The City may from time to time require changes or modifications in the services to be
performed by the Contractor. Such changes, including any decrease or increase in the amount of
compensation, shall be agreed to by the parties and incorporated in written amendments to this
Agreement.
C. The City shall be responsible for the following: I ) providing a public hearing room
sufficient to accommodate the Contractor, City staff, applicants/respondents, attorneys, and members of
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the public wishing to attend; 2) providing recording equipment adequate to establish a verbatim recording
of each public hearing; 3) providing a staff person to accept exhibits, operate recording equipment during
hearings, and maintain custody of the official record in each matter; 4) providing telephone conferencing
for pre- and post-hearing conferences as needed; 5) publishing legal notice of hearings pursuant to the
provisions set forth in the City's Code; and 6) distributing Abatement Hearing Officer final decisions and
orders to the parties of record and any interested pafty who requested a copy of the decision. The City
shall be the keeper of the official record in each matter and shall provide the Abatement Hearing Officer
with a working copy of said record. The City shall provide to the Contractor copies of recordings of the
public hearings.
D. The Contractor shall provide all support personnel and equipment necessary to perform the
services required by this Agreement, except as set fofth in paragraph l.C. above.
2. Term
The term of this Agreement shall commence on September 27,2019 ("Commencement Date") and shall
terminate on December 3l , 2020, unless extended or terminated in writing as provided herein.
Additionally, the City resewes the right to offer two (2) one-year extensions piio. to contract
expiration to retain the Contractor,s services.
3. Compensation
A. The Contractor shall provide Abatement Hearing Officer services at a flatrate of $500.00per hearing. The Contractor shall also be paid a one time flat fee of $500.00 for the development of
necessary abatement appeal hearing policies and procedures.
B. The flat rate described in Section 3.A., above, shall be inclusive of all of the duties of the
Abatement Hearing Officer, which shall include: I ) advance review of documents; 2) pre-hearing
conferences, as appropriate; 3) site visits, as appropriate; 4) conducting hearings; and 5) drafting written
decisions, including the time necessary for appropriate legal research.
C. The City shall not be charged for any other costs, including but not limited to: work
performed by any staff of the Contractor; costs associated with provision of legal research services from
providers such as Westlaw; printing; copyingl or ma ling.
4. Paymen
A. The Contractor shall submit invoices in a format acceptable to the City at the conclusion
of each appeal and shall maintain a record of appeal hearings held and provide them to the City quarterly.
B. AII invoices shall be paid by City warrant within sixty (60) days of receipt of a proper
invoice. If the City objects to all or any portion of any invoice, it shall so notifu the Contractor of the
same within fifteen (15) days from the date of receipt and shall pay that portion of the invoice not in
dispute, and the pafties shall immediately make every effon to settle the disputed portion.
C. The Contractor shall keep cost records and accounts pertaining to this Agreement
available for inspection by City representatives for three (3) years after final payment unless a longer
period is required by a third-party agreement. Copies shall be made available on request.
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D. On the effective date of this Agreement (or shortly thereafter), the Contractor shall
comply with all federal and state laws applicable to independent contractors, including, but not limited to,
the maintenance of a separate set of books and records that reflect all items of income and expenses of the
Contractor's business, pursuant to Revised Code of Washington (RCW) 51.08.195, as required by law, to
show that the services performed by the Contractor under this Agreement shall not give rise to an
employer-employee relationship between the parties, which is subject to Title 5l RCW, Industrial
Insurance.
E. If the services rendered do not meet the requirements of the Agreement, the Contractor
will correct or modif, the work to comply with the Agreement. The City may withhold payment for such
work until the work meets the requirements of the Agreement.
5. Discrimination and Comp iance with Laws
A. The Contractor agrees not to discriminate against any employee or applicant for
employment or any other person in the performance of this Agreement because of race, creed, color,
national origin, marital status, sex, age, disability, or other circumstance prohibited by federal, state, or
local law or ordinance, except for a bona fide occupational qualification.
B. The contractor shall comply with all federal, state, and local laws and ordinances
applicable to the work to be done under this Agreement.
C. The Contractor shall also comply with the Washington State Bar Rules of Professional
Conduct for Attorneys.
D. Violation of this Paragraph 5 shall be a material breach of this Agreement and grounds
for cancellation, termination, or suspension of the Agreement by the City, in whole or in part, a-nd may
result in ineligibility for further work for the City.
6. Termination of Agreement
A. The Contractor shall serve at the will of the Mayor and may be removed from the
position upon written notice, with or without cause.
B. Either party may terminate this Agreement with 30 days' written notice to the other party.
C. Upon notice of termination by either party, the Contractor shall complete all pending
work and shall submit to the City all finished work and all documents, reports, or other material related towork pursuant to this Agreement within thirty (30) days. The Contractor shall be entitled to
compensation for any work completed prior to the date of termination, consistent with Section 3, above.
D. The Contractor shall not in any event be entitled to any reallocation of cost, profit or
overhead and shall not be entitled to anticipated profit on work not performed because of termination.
The Contractor shall use his best efforts to minimize the compensation payable under this Agreement in
the event of such termination, consistent with his ethical and professional obligations. If the Agreement is
terminated for default, the Contractor shall not be entitled to receive any further payments under the
Agreement until all pending work has been fully completed. Any extra cost or damage to the City
resulting from such default(s) shall be deducted from any money due or coming due to the Contractor.
The Contractor shall bear any extra expenses incurred by the City in completing the work, including all
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increased costs for completing the work, and all damage sustained, or which may be sustained by the City
by reason of such default.
7. Standard of Care
The Contractor represents and warrants that he has the requisite training, skill and experience necessary to
provide the services under this Agreement and is appropriately accredited and licensed by all applicable
agencies and governmental entities. Services provided by Contractor under this Agreement shall be
performed in a manner consistent with that degree of care and skill ordinarily exercised by members of
the same profession currently practicing in similar circumstances.
8. Ownership of Work Product
All final decisions, orders, and other documents issued by the Contractor pursuant to this Agreement, all
exhibits submitted into the record, and all official recordings shall be the property of the City. All such
documents, exhibits, and recordings shall be forwarded to the City upon request and may be used by the
City as it sees fit. The City agrees that if the documents, exhibits, and recordings are used for purposes
other than those intended in this Agreement, the City does so at its sole risk and agrees to hold the
Contractor harmless for such use. All services performed under this Agreement shall be conducted solely
for the benefit of the City and shall not be used for any other purpose without the express written consent
of the City.
9. Indemnification/flold Harmless
The parties hereto shall indemnifu, defend, and hold harmless the other party, including their respective
agents and employees, from and against any and all liability, including without limit attorneys' fees and
costs, arising from each party's negligence or willful misconduct under this Agreement; provided,
however, that each parly shall be liable only for that percentage of total damages that corresponds to its
percentage of total negligence or fault. In the event that the City shall elect to defend itself against any
claim or suit arising from such injury, death, or damage, the Abatement Hearing Officer shall, in addition
to indemnifoing and holding the City harmless from any liability, indemnifo the City for any and all
expenses incurred by the City in defending such claim or suit, including reasonable attorneys' fees.
Nothing in this section is intended to require the Abatement Hearing Officer to indemniry, defend, or pay
the costs of defending, any decision of the Abatement Hearing Officer that may be appealed to the
Superior Couft.
10. Insurance
The Contractor shall procure and maintain for the duration of this Agreement, insurance against claims
for injuries to persons or damage to property that may arise from or in connection with the performance of
the work hereunder by the Contractor, his agents, representatives, or employees.
A. Minimum Scope of [nsurance
The Contractor shall obtain insurance of the types described below:
l. Automobile Liabilitv insurance covering all owned, non-owned, hired and leased
vehicles. Coverage shall be written on Insurance Servi0l or a substitute form providing equivalent Iiability
policy shall be endorsed to provide contractual liability
ces Office (ISO) form CA 00
coverage. If necessary, the
coverage.
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2. Workers' Compensation coverage as required by the Industrial Insurance laws of the
State of Washington.
B. Minimum Amounts of Insurance
Consultant shall maintain the following insurance limits:
A bile LiabiliW insurance with a minim um combined single limit for bodily
lnJ ury and property damage of $ I ,000,000 per accident.
C. Other Insurance Provisions
The insurance policies are to contain, or be endorsed to contain, the following provisions for
Automobile Liability insurance:
l. The Contractor'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 Contractor's insurance and shall not contribute with it.
2. The Contractor's insurance shall be endorsed to state that coverage shall not be
cancelled by either party, except after thirty (30) days' prior *ritten notice by
certified mail, return receipt requested, has been given to the City.
D. Acceptability of [nsurers
Insurance is to be placed with insurers with a current A.M. Best rating of not less than A:VII.
E. Verification of Coverage
The Contractor 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 Contractor before commencement of the work.
11. Assigning or Subcontracting
A. The Contractor shall not assign, transfer, subcontract or encumber any rights, duties, or
interests accruing from this Agreement without the express prior written consent of thi City, which
consent may be withheld in the sole discretion of the City.
B. In the event that the Contractor is unable to handle a particular matter due to a conflict of
interest or a potential violation of the Appearance of Fairness, the Contractor shall immediately notifr the
Director of Community Development and return all case materials/documents to the City. In such event,
the Mayor shall appoint an Abatement Hearing Officer pro tem to conduct the hearing in accordance with
POMC 2.82.020.
12. Independent Contractor
The contractor is and shall be at all times during the term of thi s Agreement an independent contractor. Both
is agreed by andparties recognize the quasi-judicial nature of the office of Abatement
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between the parties that this Agreement shall not constitute nor create an employer-employee relationship.
The Contractor shall be responsible for all obligations relating to federal income tax, self-employment, and
other typically employer-paid taxes and contributions. Any employee of the Contractor, while engaged in the
performance of any work or services required by the Contractor under this Agreement, shall be considered an
employee of the Contractor only and not of the City.
13. Freedom from Influence
The Contractor shall be free of any supervision or other influence from City officials and employees with
respect to any decision or recommendation made by the Contractor on a specific case.
14. Disputes
A. Any dispute arising out of this Agreement shall be submitted to mediation before a
neutral third party. If the parties cannot mutually agree upon a mediator, they will ask the presiding judge
of the Kitsap County Superior Court to appoint one. The parties will attempt in good faith to resolve their
dispute through mediation. The parties will participate in mediation no more than fifteen (15) days later
than one party provides written notice to the other of the nature of the dispute and the desire for
mediation, unless otherwise agreed in writing by the parties. AII costs of mediaiion, if any, will be split
equally between the pafties and each party will bear its own attorney fees.
B. Notwithstanding anything to the contrary in the foregoing, in the event a good faith
attempt at mediation is not successful, any party may apply to the Kitsap County Superior Court for
appropriate relief, including enforcement of this Agreement. Any action for claims arising out of or
relating to this Agreement shall be governed by the laws of the State of Washington. Venue shall be in
Kitsap County Superior Court. The substantially prevailing party in any court action will be entitled to
recover its reasonable costs and attorneys' fees from the other parry.
15. Notice
Any notices required to be given by the City to the Contractor or by the Contractor to the City shall be in
writing and delivered to the parties at the following addresses:
CITY OF PORT ORCHARD
Robert Putaansuu
Mayor
216 Prospect Street
Port Orchard, WA 98366
Phone: (360) 876-4715
Phone: 360.876.4407
Fax: 360.895.9029
16. General Provisions
A. Non-waiver of Breach. The failure of either party to insist upon strict performance of any
of the covenants and agreements contained herein, or to exercise any option herein contained in one or
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more instances, shall not be construed to be a waiver or relinquishment of said covenants, agreements, or
options, and the same shall be in full force and effect.
B. Modification. No waiver , alteration, modification of any of the provisions of this
Agreement shall be binding unless in writing and signed by a duly authorized representative of the City
and the Contractor.
C. Severabilitv.The provisions of this Agreement are declared to be severable. If any
provision of this Agreement is for any reason held by a court of competent jurisdiction to be invalid or
unconstitutional, such invalidity or unconstitutionality shall not affect the validity or constitutionality of
any other provision.
D. Entire Agreement. The written provisions of this Agreement, together with any
attachments, shall supersede all prior verbal statements of any officer or other representative of the City,
and such statements shall not be effective or be construed as entering into or formin g a part of or altering
in any manner whatsoever, the Agreement or the Agreement documents. The entire agreement between
the parties with respect to the subject matter hereunder is contained in this Agreement and any
attachments hereto, which may or may not have been dated prior to the execution of this Agreement. AII
of the above documents are hereby made apart of this Agreement and form the Agreement document as
fully as if the same were set forth herein. Should any language in any of the attachments to this
Agreement, if any, conflict with any language contained in this Agreement, then this Agreement shall
prevail.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year set
forth above.
CITY OF PORT ORCHARD,
WASHINGTON
By:
Robert suu, Mayor
ATTE,ST:
By:
B ran lnearson,C
City Clerk
APPROVED AS TO FORM:
By:
Cates, City
CONTRACTOR
Tim Drury
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