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HomeMy WebLinkAboutCDN 2019-11-13 Item 2A - Resoluton - Appoint Sound Law Center as Hearing ExaminerCity of Tukwila Allan Ekberg, Mayor INFORMATIONAL MEMORANDUM TO: Community Development and Neighborhood Committee FROM: Jack Pace, Director Community Development BY: Minnie Dhaliwal, Deputy Director Community Development CC: Mayor Ekberg DATE: November 5, 2019 SUBJECT: Hearing Examiner for Tukwila ISSUE Appointment and approval of the Hearing Examiner for Tukwila. BACKGROUND The hearing examiner is a decision maker for land use matters such as variances, conditional use permits and preliminary plats. The hearing examiner also presides over other matters such as appeals of land use decisions, code enforcement matters, business license appeals, ethics complaints, commercial parking tax appeals and police forfeiture hearings. Tukwila has contracted with the City of Seattle for hearing examiner services since 2005. The City of Seattle has notified Tukwila that they are unable to continue providing these services under the interlocal agreement due to the City of Seattle's own workload. DISCUSSION The office of Hearing Examiner was established by Tukwila City Council in 1997. Per Tukwila Municipal Code Chapter 2.76, the Hearing Examiner shall be appointed by the Mayor and approved by the City Council. After receiving notification from the City of Seattle that they are unable to provide these services the Department of Community Development started searching for an alternate hearing examiner and selected Sound Law Center, LLC, as a potential consultant to provide hearing examiner services for Tukwila. Sound Law Center, LLC, has extensive experience in providing similar services to many other local cities. They currently serve over 30 jurisdictions in Western Washington, including: Burien, Des Moines, Issaquah, Kent, Shoreline. Additionally, they have multiple attorneys trained to perform land use hearings which can help avoid scheduling or conflict of interest issues. The fees charged by Sound Law Center LLC are similar to those charged by the Seattle's Hearing Examiner, and it is desirable to have one contract as opposed to multiple contracts with different hearing examiners. The contract with Sound Law Center, LLC is attached. The rules and procedures to follow when hearing matters shall be adopted administratively in coordination with review by the City Attorney and affected City departments. These rules shall supersede the City of Seattle Hearing Examiner's rules previously adopted by Tukwila City Council Resolution No. 1578. INFORMATIONAL MEMO Page 2 FINANCIAL IMPACT Hearing Examiner costs are either covered as permit application fees or treated as a pass through to the applicant. RECOMMENDATION The Council is being asked to adopt the resolution appointing Sound Law Center LLC as the City's Hearing Examiner and consider this item at the November 18, 2019, Regular Meeting consent agenda. ATTACHMENTS Contract with Sound Law Center LLC Resolution 2 lySCity . Tukwila �� R all Qf lvds 19-126 Contract Number: Council Approval N/A CONSULTANT AGREEMENT FOR HEARING EXAMINER SERVICES AVG 13 2019 GCiITli7liJilit�,� Development THIS AGREEMENT is entered into between the City of Tukwila, Washington, hereinafter referred to as "the City", and Sound Law Center, LLC hereinafter referred to as "the Consultant", in consideration of the mutual benefits, terms, and conditions hereinafter specified. 1. Project Designation. The Consultant is retained by the City to perform on -call Hearing Examiner services, 2. Scope of Services. The Consultant agrees to perform the services, identified on Exhibit "A" attached hereto, including the provision of all labor, materials, equipment and supplies. 3. Duration of Agreement; Time for Performance. This Agreement shall be in full force and effect for a period commencing upon execution and ending July 1, 2022, unless sooner terminated under the provisions hereinafter specified. At the expiration of the initial term of this Agreement, this Agreement shall be automatically extended for an additional six (6) month term, unless this Agreement is terminated by either party. 4. Payment. The Consultant shall be paid by the City for completed work and for services rendered under this Agreement as follows: A. The City shall pay Consultant as set forth in Exhibit A for the services described in this Agreement. B. Consultant shall submit a payment invoice to the City after such services have been performed, and the City shall make payment within thirty (30) days after the submittal of the approved invoice. Each invoice shall describe the tasks performed and a total of the hours involved in providing services. C. If the City objects to all or any portion of any invoice, it shall so notify Consultant of the same within five (5) days from the date of receipt and shall pay that portion of the invoice not in dispute. The parties shall immediately make every effort to settle the disputed portion of the invoice D. Payment as provided in this section shall be full compensation for work performed, services rendered, and for all materials, supplies, equipment and incidentals necessary to complete the work. E. The Consultant's records and accounts pertaining to this Agreement are to be kept available for inspection by representatives of the City and the state of Washington for a period of three (3) years after final payments. Copies shall be made available upon request. 5. Ownership and Use of Documents. All documents, drawings, specifications and other materials, including electronic stored information, (collectively, "Documents") produced by the Consultant in connection with the services rendered under this Agreement shall be the property of the City whether the project for which they are made is executed or not. Within thirty (30) days of rendering a decision in any matter, Consultant shall remit all Documents to the City. The Consultant shall be permitted to retain copies, including reproducible copies, of Documents for information, reference and use in connection with the Consultant's endeavors. The Consultant shall not be responsible for any use of the said Documents by the City on any project other than the project specified in this Agreement. 6. Compliance with laws. The Consultant shall, in performing the services contemplated by this Agreement, faithfully observe and comply with all federal, state, and local laws, ordinances and regulations, applicable to the services rendered under this Agreement. 7. Indemnification. The Consultant shall defend, indemnify and hold the City, its officers, officials, employees and volunteers harmless from any and all claims, injuries, damages, losses or suits including attorney fees, arising out of or resulting from the 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. Should a court of competent jurisdiction determine that this Agreement is subject to RCW 4,24.115, then, 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, employees, and volunteers, the Consultant's liability 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. 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. Consultant's maintenance of insurance as required by the agreement shall not be construed to limit the liability of the Consultant to the coverage provided by such insurance, or otherwise limit the City's recourse to any remedy available at law or in equity. A. Minimum Amounts and Scope of Insurance. Consultant shall obtain insurance of the types and with the limits described below: 1. Automobile Liability insurance with a minimum combined single limit for bodily injury and property damage of $1,000,000 per accident. Automobile Liability insurance shall cover 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. Commercial General Liabil� insurance wit'rn lit -nits no less than $1,000,000 each occurrence, $2,000,000 general aggregate. Commercial General Liability 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 with limits no less than $1,000,000 per claim and $1,000,000 policy aggregate limit. Professional Liability insurance shall be appropriate to the Consultant's profession. B. Other Insurance Provision. The Consultant's Automobile Liability and Commercial General Liability insurance policies are to contain or be endorsed to contain that they Page 2 S1 shall be primary insurance with respect to 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 be contributed or combined with it. C. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best rating of not less than A: VII. D. Verification of Coverage. 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. Certificates of coverage and endorsements as required by this section shall be delivered to the City within fifteen (15) days of execution of this Agreement. E. Notice of Cancellation. The Consultant shall provide the City with written notice of any policy cancellation, within two business days of their receipt of such notice. F. Failure to Maintain Insurance. Failure on the part of the Consultant to maintain the insurance as required shall constitute a material breach of contract, upon which the City may, after giving five business days' notice to the Consultant to correct the breach, immediately terminate the contract or, at its discretion, procure or renew such insurance and pay any and all premiums in connection therewith, with any sums so expended to be repaid to the City on demand, or at the sole discretion of the City, offset against funds due the Consultant from the City. 9. Independent Contractor. The Consultant and the City agree that the Consultant is an independent contractor with respect to the services provided pursuant to this Agreement. Nothing in this Agreement shall be considered to create the relationship of employer and employee between the parties hereto. Neither the Consultant nor any employee of the Consultant shall be entitled to any benefits accorded City employees by virtue of the services provided under this Agreement. The City shall not be responsible for withholding or otherwise deducting federal income tax or social security or for contributing to the state industrial insurance program, otherwise assuming the duties of an employer with respect to the Consultant, or any employee of the Consultant. 10. Covenant Against Contingent Fees. The Consultant warrants that he has not employed or retained any company or person, other than a bonafide employee working solely for the Consultant, to solicit or secure this contract, and that he has not paid or agreed to pay any company or person, other than a bonafide employee working solely for the Consultant, any fee, commission, percentage, brokerage fee, gifts, or any other consideration contingent upon or resulting from the award or making of this contract. For breach or violation of this warrant, the City shall have the right to annul this contract without liability, or in its discretion to deduct from the contract price or consideration, or otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift, or contingent fee. 11. Discrimination Prohibited. The Consultant, with regard to the work performed by it under this Agreement, will not discriminate on the grounds of race, religion, creed, color, national origin, age, veteran status, sex, sexual orientation, gender identity, marital status, political affiliation or the presence of any disability in the selection and retention of employees or procurement of materials or supplies. 12. Assignment. The Consultant shall not sublet or assign any of the services covered by this Agreement without the express written consent of the City. 13. Non -Waiver. Waiver by the City of any provision of this Agreement or any time limitation provided for in this Agreement shall not constitute a waiver of any other provision. Page 3 0. 14. Termination.The City shall have the option to terminate this Agreement at any time, with or without cause. Termination shall be effective after thirty (30) days upon delivery of written notice to the Consultant. The Consultant shall have the option to terminate this Agreement after sixty (60) days upon delivery of written notice to the City, unless the City determines the Consultant can be released from the contract prior to sixty days. In the event of termination, the City shall only be responsible to pay for all services satisfactorily performed by Consultant to the effective date of termination. The Director of Community Development shall make the final determination about what services have been satisfactorily performed which decision shall be final, binding and conclusive. 15. Applicable Law; Venue; Attorneys Fees. This Agreement shall be subject to, and the Consultant shall at all times comply with, all applicable federal, state and local laws, regulations, and rules, including the provisions of the City of Tukwila Municipal Code and ordinances of the City of Tukwila. In the event any suit, arbitration, or other proceeding is instituted to enforce any term of this Agreement, the parties specifically understand and agree that venue shall be properly laid in King County, Washington. The prevailing party in any such action shall be entitled to its attorney's fees and costs of suit. Venue for any action arising from or related to this Agreement shall be exclusively in King County Superior Court. 16. Severability and Survival. If any term, condition or provision of this Agreement is declared void or unenforceable or limited in its application or effect, such event shall not affect any other provisions hereof and all other provisions shall remain fully enforceable, The provisions of this Agreement, which by their sense and context are reasonably intended to survive the completion, expiration or cancellation of this Agreement, shall survive termination of this Agreement. 17. Notices. All communications regarding this Agreement shall be sent to the parties at the addresses listed below. 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 to the City of Tukwila shall be sent to the following address: City Clerk City of Tukwila 6200 Southcenter Boulevard Tukwila, WA 98188 Notices to Consultant shall be sent to the following address: Sound Law Center, LLC Andrew Reeves, Managing Attorney 4500 9th Ave, NE Suite 300 Seattle, WA 98105 18. Entire Agreement; Modification. This Agreement, together with attachments or addenda, represents the entire and integrated Agreement between the City and the Consultant and supersedes all prior negotiations, representations, or agreements written or oral. No amendment or modification of this Agreement shall be of any force or effect unless it is in writing and signed by the parties. 19. Non -Waiver of Breach. The failure of the City to insist upon strict performance of any of the covenants and agreements contained herein, or to exercise any option herein conferred in one or more Page 4 instances shall not be construed to be. a waiver or relinquishment of said covenants, agreements or options, and the same shall be and remain in full force and effect. DATED this CITY OF TUKWILA Allan Ekberg, Mayor Attest/Authenticated: City Clerk, Christy O'Flaherty day of 20 CONSULTANT By: Printed Name: Title: U Approved as to Form: Officeofthe City Attorney A I tWKAA) T-SaMi!1 *Izlql Page 5 rA EXHIBIT A SERVICES AGREEMENT This conforms to the agreement between the City of Tukwila and Sound Law Center, LLC, for Hearing Examiner services. A. The services provided by Sound Law Center, LLC will consist of the following: The Hearing Examiner shall provide those services and fulfill those duties as identified in the City's ordinances relating to the Hearing Examiner, and carry out such other responsibilities as may be agreed to between the City and the Hearing Examiner. Those services, duties and responsibilities include preparing Rules of Procedure; preparing for land use hearings by reviewing files and applicable laws; conducting site views of properties that are the topic of a land use hearing; conducting hearing on appeals; and preparing a written decision including findings and conclusions on all applications and appeals heard. The Hearing Examiner shall also be available to present to the City Council and staff training sessions on land use law and procedures as well as to provide updates on the law affecting land use hearings if requested. Andrew Reeves will serve as the primary Hearing Examiner, with Ted Hunter and Lee Raaen also available to serve if needed, as well as other members of SLC approved by the City. B. The work of the Hearing Examiner will be scheduled by the staff of the City's Department of Community and Economic Development. C. The City agrees to pay Sound Law Center, LLC for services performed in accordance with the following hourly billing rates; Hearing Examiner Services -$175 per hour The hourly rate is the sole and total compensation to be paid to the Consultant for those services described in Section A of the Services Agreement (Exhibit A). Sound Law Center does not assess additional charge for mileage, travel time, copies, or other direct costs or other expenses incurred by SLC when providing services. Page 6 Rl A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, REPEALING RESOLUTION NO. 1578; APPOINTING SOUND LAW CENTER, LLC, AS THE CITY'S HEARING EXAMINER PURSUANT TO TUKWILA MUNICIPAL CODE CHAPTER 2.76 TO PRESIDE OVER HEARINGS RELATED TO LAND USE, CODE ENFORCEMENT, POLICE FORFEITURES, AND OTHER MATTERS AS SPECIFIED IN THE TUKWILA MUNICIPAL CODE. WHEREAS, on May 5, 1997, the City Council passed Ordinance No. 1796, establishing the office of Hearing Examiner; and WHEREAS, the City of Tukwila uses the Hearing Examiner for presiding over matters such as land use hearings under Tukwila Municipal Code (TMC) Titles 17, 18, 19 and 21; code enforcement appeals under TMC Chapter 8.45; police forfeiture hearings under TMC Title 8; ethics complaints under TMC Chapter 2.95; commercial parking tax appeals under TMC Chapter 3.48; and business license appeals under TMC Chapter 5.04; and WHEREAS, the City of Tukwila contracts for the services of Hearing Examiner; and WHEREAS, the City of Tukwila has contracted with the City of Seattle's Hearing Examiner since 2005, and the City of Seattle has notified Tukwila they are unable to continue providing these services due to the City of Seattle's own workload; and WHEREAS, pursuant to TMC Section 2.76.010, "...Hearing Examiner shall mean any person appointed by the Mayor, and approved by the City Council, for the purpose of presiding over appeals and other matters..."; and WHEREAS, pursuant to TMC Section 2.76.020, "The Hearing Examiner shall have the powers and duties assigned to that office by ordinance"; and WHEREAS, the Department of Community Development selected Sound Law Center, LLC, as a potential consultant to provide hearing examiner services, as the firm has extensive experience in providing similar services to many other local cities, has multiple staff members to assist, the fees charged are similar to what Tukwila paid Seattle's Hearing Examiner, and it is desirable to have one contract as opposed to multiple contracts with different hearing examiners; and WALegislative Develop me nt\Hea ring Examiner —Sound Law Center 10-31-19 MD:bjs Review and analysis by Barbara Saxton Page 1 of 2 0 WHEREAS, Sound Law Center, LLC, has entered into a contract with the City of Tukwila to provide services as a Hearing Examiner for the City of Tukwila; and WHEREAS, the City Council wishes to designate Sound Law Center, LLC, as Hearing Examiner for the City of Tukwila; and WHEREAS, to allow for efficient and effective operations, the City Council desires to authorize Sound Law Center, LLC, to administratively adopt rules of procedure to follow when hearing matters on behalf of Tukwila in coordination with review by the City Attorney and affected City departments; and such rules of procedure shall supersede the City of Seattle Hearing Examiner's rules previously adopted by Tukwila City Council Resolution No. 1578; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, HEREBY RESOLVES AS FOLLOWS: Section 1. Resolution 1578 Repealed. The City Council hereby repeals Resolution No. 1578 in its entirety. Section 2. Appointment of Hearing Examiner. The City Council of the City of Tukwila, Washington, hereby appoints Sound Law Center, LLC, as the office of the City's Hearing Examiner to preside over land use, code enforcement, police forfeitures, and other matters as specified in the Tukwila Municipal Code. The Hearing Examiner is authorized to administratively adopt rules of procedure in coordination with review by City departments. PASSED BY THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, at a Regular Meeting thereof this day of , 2019. ATTEST/AUTHENTICATED: Christy O'Flaherty, MMC, City Clerk APPROVED AS TO FORM BY: Rachel B. Turpin, City Attorney Kathy Hougardy, Council President Filed with the City Clerk:_ Passed by the City Council: Resolution Number: W:\Legislative Development\Hearing Examiner —Sound Law Center 10-31-19 MD:bjs Review and analysis by Barbara Saxton IN Page 2 of 2