030-09 - Sound Law Center, LLC - ContractCITY OF PORT ORCHARD PROFESSIONAL SERVICES AGREEMENT
THIS Agreement is made effective as of the f4day of March, 2008, by and between
CITY OF PORT ORCHARD,
216 Prospect Street
Port Orchard, WA 98366
Contact: Michelle Merlino
and
WASHINGTON ("CITY")
Phone: 360-876-4407
Sound Law Center, LLC ("Contractor")
Ted Hunter, Managing Partner
4500 Ninth Avenue NE, Suite 300
Seattle, WA 98105
Contact: Ted Hunter, Attorney
Tax Id No.: 91-1493984
Phone:206-628-0700
for professional services in connection with the following:
Fax:360-895-9029
Fax:206-829-2401
Provision of professional services for the performance of the duties of Hearing Examiner for the City of
Port Orchard as described in the Port Orchard Municipal Code (POMC), Chapter 2.76.
TERMS AND CONDITIONS
1. Services by Contractor
A. Contractor shall perform the services and fulfill those duties of the office of the Hearing
Examiner, for the City of Port Orchard as ordained in POMC 2.76, and by any other
Municipal Code as now or hereafter amended or enacted. POMC 2.76 is incorporated by
reference as if fully set forth herein. Those services, duties, and responsibilities include
reviewing information provided by City staff and applicable laws in preparation for the
hearing; 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 City's Code grants Hearing Examiner 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. Contractor shall be responsible for providing a final written decision in each matter
to the City for distribution. The date by which the final decision shall be issued will be that
as set forth in the City's Code.
B. Hearing dates shall be assigned to individual member
available basis, unless othe
Contractor with notice of any
the scheduled hearing.
wise agreed between the
given hearing date no less
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of Contractor on a rotating, as -
parties. The City shall provide
than twenty-one (21) days prior to
2.
3.
4.
C. The City shall be responsible for the following services and duties of the office of the
Hearing Examiner: 1) providing a public hearing room sufficient to accommodate Contractor,
City Staff, applicants/respondents, attorneys, and members of 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 Hearing
Examiner final decisions and orders to the parties of record and any interested party who
requested a copy of the decision. The City shall be the keeper of the official record in each
matter and shall provide the Hearing Examiner with a working copy of said record. The City
shall provide to Contractor copies of recordings of the public hearing.
D. Contractor shall provide all support personnel and equipment necessary to perform the
services required by this Agreement except as set forth in paragraph I.C. above.
Term
The term of this Agreement shall commence on April 1, 2008 and end on March 31, 2009 if not
sooner terminated in the manner as provided in Section 6 of this Professional Services
Agreement.
Compensation
A. Contractor shall provide Hearing Examiner services, as required under POMC Chapter 2.76,
at a rate detailed in Attachment A to this Contract. This hourly rate shall not apply to
services performed by any staff of Contractor except as explicitly described in this
Agreement.
B. The hourly rate described in paragraph 3.A shall be inclusive of all of the duties of the
appointed Hearing Examiner, which shall include: 1) 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 charge
performed by staff other than t
costs associated with provision
printing, copying, or mailing.
Payment
d
for any other costs including but not limited to: work
he attorneys of Contractor appointed as Hearing Examiner,
of legal research services from providers such as Westlaw,
A. Contractor shall maintain time and expense records and provide them to the City monthly,
along with monthly invoices in a format acceptable to the City for work performed to the date
of the invoice.
B. All invoices shall be paid by the City within forty-five (45) days of receipt of a proper
invoice.
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C. 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.
D. If the services rendered do not meet the requirements of the Agreement, Contractor will
correct or modify the work to comply with the Agreement. City may withhold payment for
such work until the work meets the requirements of the Agreement.
5. Discrimination and Compliance with Laws
A. 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. Contractor shall comply with all federal, state, and local laws and ordinances applicable to
the work to be done under this Agreement.
C. 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 City, in whole or in part, and
may result in ineligibility for further work for City.
6. Termination of Agreement
A. 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, Contractor shall complete all pending work and
shall submit to the City all finished work and all documents, reports, or other material related
to work pursuant to this Agreement within 30 days. Contractor shall be entitled to
compensation for any work completed prior to the date of termination, consistent with
Section 3 above.
D. 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.
Contractor shall use its best efforts to minimize the compensation payable under this
Agreement in the event of such termination consistent with their ethical and professional
obligations. If the Agreement is terminated for default, 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 Contractor. Contractor shall bear any extra
expenses incurred by the City in completing the work, including all increased costs for
completing the work, and all damage sustained, or which may be sustained by the City by
reason of such default.
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Standard of Care
Contractor represents and warrants that it 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 will 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 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 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 express written consent of the City.
9. Indemnification/Hold Harmless
The parties hereto shall indemnify, 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, each party 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
Hearing Examiner shall, in addition to indemnifying and holding the City harmless from any
liability, indemnify 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
Hearing Examiner to indemnify, defend, or pay the costs of defending, any decision of the
Hearing Examiner that may be appealed under the Land Use Petition Act or otherwise.
10. Insurance
Contractor 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 Contractor, its agents, representatives, or employees.
A. Minimum Scope of Insurance
Contractor shall obtain insurance of the types described below:
1. Automobile Liability insurance covering all owned, non -owned, hired and leased
vehicles. 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.
2. Workers' Compensation coverage as required by the Industrial Insurance laws of the
State of Washington.
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B. Minimum Amounts of Insurance
Contractor 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.
C. Other Insurance Provisions
The insurance policies are to contain, or be endorsed to contain, the following provisions for
Automobile Liability insurance:
1. 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 Contractor's insurance and shall not contribute with it.
2. Contractor's insurance shall be endorsed to state that coverage shall not be cancelled
by either party, except after thirty (30) days prior written notice by certified mail,
return receipt requested, has been given to the City.
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
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 Contractor before commencement of the work.
11. Assigning or Subcontracting
A. Contractor shall not assign, transfer, subcontract or encumber any rights, duties, or
interests accruing from this Agreement without the express prior written consent of the
City, which consent may be withheld at the sole discretion of the City.
B. In the event that Contractor is unable to handle a particular matter due to a conflict of
interest or a potential violation of the Appearance of Fairness, Contractor shall
immediately notify the Director of Community Development and return all case
materials/documents to the City. In such event, the city manager will appoint an
examiner pro tem to conduct the hearing.
12. Independent Contractor
Contractor is and shall be at all times during the term of this Agreement an independent
Contractor. Both parties recognize the quasi-judicial nature of the Office of Hearing Examiner. It
is agreed by and between the parties that this Agreement shall not constitute nor create an
employer -employee relationship. 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 Contractor, while engaged in the performance of any work or services required
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13.
14.
15.
by Contractor under this Agreement, shall be considered an employee of Contractor only and not
of the City.
Freedom from Influence.
Contractor shall be free of any supervision or other influence from City officials and employees
with respect to any decision or recommendation made by Contractor on a specific case, issue, or
permit.
Disputes.
A. Mediation. Any dispute arising out of this Agreement will 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 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 15 days later than one party provides written notice to the other of
the nature of the dispute and the desire for mediation. All costs of mediation, if any, will be
split equally between the parties 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 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 attorney's fees
from the other party.
Notice
Any notices required to be given by the City to Contractor or by Contractor to the City shall be in
writing and delivered to the parties at the following addresses:
City Clerk Ted HunterSound Law Center, LLC
216 Prospect Street 4500 Ninth Avenue NE, Suite 300
Port Orchard, WA 98366 Seattle, WA 98105
Phone: 206-628-0700
Phone:360-876-4407 Fax: 206-829-2401
Fax: 360-895-9029
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16. Extent of Agreement/Modification
This Agreement, together with attachments or addenda, represents the entire and integrated
Agreement between the parties hereto and supersedes all prior negotiations, representations, or
agreements, either written or oral. This Agreement may be amended, modified or added to only
by written instrument properly signed by both parties.
CITY OF PORT ORCHARD Sound Law Center
M
Date:
ATTEST:
By:
Michelle Merlino, City Clerk
By:
Ted Hunter, Attorney At Law
Date: 3 f Z olo %
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