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HomeMy WebLinkAbout23-142 - Olbrechts & Associates, PLLC - On-call Hearing Examiner ServicesCity of Tukwila Agreement Number: 23-142(a) Council Approval N/A 6200 Southcenter Boulevard, Tukwila WA 98188 CONTRACT FOR SERVICES Amendment # 1 Between the City of Tukwila and Olbrechts and Associates PLLC That portion of Contract No. 23-142 between the City of Tukwila and Olbrechts and Associates PLLC is hereby amended as follows: 3. Duration of Agreement: This Agreement shall be in full force and effect for a period commencing upon execution and ending December 31, 2025, unless sooner terminated under the provisions hereinafter specified. Exhibit B Billing Agreement The City agrees to pay Olbrechts & Associates, PLLC for services performed in accordance with the following hourly billing rates: • Hearing Examiner Services provided by Phil Olbrechts $220 per hour with a one hour minimum per day of in-person hearings (no minimum for virtual hearings). Emily Terrell or other alternates have a rate of $165. Subcontractor attorneys, if needed, would have a rate set at 90% of Mr. Olbrechts' rate. Other contract decision writers would be billed at up to $75 per hour. • One hour of travel would be assessed for in-person hearings (none for virtual) and IRS mileage from Tacoma. • Olbrechts and Associates PLLC shall be reimbursed for computer generated hearing transcription costs. Consultant currently uses Rev.com that charges 0.25/minute of hearing costs. Consultant shall acquire approval from City planning director for any increase in rates charged by Rev.com or other transcription service provider. All other provisions of the contract shall remain in full force and effect. Dated this 16 day of October, 2024 CITY OF TUKWILA CONTRACTOR: EDocuSigned by: &/o -t. Ci„ e,� D31DCOA7FAC1416... Nora Gierloff, DCD Director Page 1 of 1 DocuSigned by: PU n By: Printed Name: Phil Olbrechts Title: Manaaina Member City of Tukwila Contract Number: 23-142 Council Approval N/A •���( 6200 Southcenter Boulevard, Tukwila WA 98188 PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT is entered into between the City of Tukwila, Washington, hereinafter referred to as "the City", and Olbrechts and Associates, PLLC, 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 December 31, 2024, unless sooner terminated under the provisions hereinafter specified. 4. Payment. The Consultant shall be paid by the City for completed work and for services rendered under this Agreement as follows: A. Payment for the work provided by the Consultant shall be made as provided on Exhibit "B" attached hereto, provided that the total amount of payment to the Consultant shall not exceed $20,000 without express written modification of the Agreement signed by the City. B. The Consultant may submit vouchers to the City after such services have been performed. Such vouchers will be checked by the City within 30 days and, upon approval thereof, payment shall be made to the Consultant in the amount approved. C. 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. D. 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 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. The Consultant shall be permitted to retain copies, including reproducible copies, of drawings and specifications 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, drawings, specifications or other materials 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. Consistent with TMC Chapter 2.105 The City shall defend, indemnify and hold the Consultant, 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 City in performance of this Agreement, except for injuries and damages caused by the sole negligence of the Consultant. 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. 8. 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 Liability insurance with limits no less than $2,000,000 each occurrence, $2,000,000 general aggregate. Commercial General Liability insurance shall be at least as broad as ISO occurrence form CG 00 01 and shall cover liability arising from premises, operations, stop -gap independent contractors and personal injury and advertising injury. The City shall be named as an additional insured under the Consultant's Commercial General Liability insurance policy with respect to the work performed for the City using an additional insured endorsement at least as broad as ISO endorsement form CG 20 26. 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. Public Entity Full Availability of Contractor Limits. If the Contractor maintains higher insurance limits than the minimums shown above, the Public Entity shall be insured for the full available limits of Commercial General and Excess or Umbrella liability maintained by the Contractor, irrespective of whether such limits maintained by the Contractor are greater CA revised May 2020 Page 2 than those required by this Contract or whether any certificate of insurance furnished to the Public Entity evidences limits of liability lower than those maintained by the Contractor. C. Other Insurance Provision. 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. D. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best rating of not less than A:VII. E. 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 Contractor before commencement of the work. Upon request by the City, the Consultant shall furnish certified copies of all required insurance policies, including endorsements, required in this Agreement and evidence of all subcontractors' coverage. F. 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. G. 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. Contractor, 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, the presence of any disability, or any other protected class status under state or federal law, 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. CA revised May 2020 Page 3 14. Termination. A. The City reserves the right to terminate this Agreement at anytime by giving ten (10) days written notice to the Consultant. B. In the event of the death of a member, partner or officer of the Consultant, or any of its supervisory personnel assigned to the project, the surviving members of the Consultant hereby agree to complete the work under the terms of this Agreement, if requested to do so by the City. This section shall not be a bar to renegotiations of this Agreement between surviving members of the Consultant and the City, if the City so chooses. 15. Applicable Law; Venue; Attorney's 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. 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: Olbrechts & Associates 1883374 th Street NE Granite Falls, WA 98252 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. CA revised May 2020 Page 4 DATED this 16th day of August, 2023. CITY OF TUKWILA DocuSigned by: D31 DCOA7FAC1416... Nora Gierloff, DCD Director CONSULTANT: DocuSigned by: By:��,i(, nm" AF3FA7464D3C4D5... Printed Name: Phil Olbrechts Title: Managing Member CA revised May 2020 Page 5 EXHIBIT A SERVICES AGREEMENT The following forms the agreement between the City of Tukwila and Olbrechts & Associates, PLLC, for Hearing Examiner services. A. The hearing examiner services provided by Olbrechts & Associates, PLLC shall include those services and duties identified in the City's ordinances relating to the Hearing Examiner, and other responsibilities as may be agreed to between the City and the Hearing Examiner. Those services, duties and responsibilities include: • Preparing for land use, code enforcement, or seizure hearings by reviewing files and applicable laws; • If necessary conducting site visits to properties that are the topic of a land use hearing; • Conducting hearings on land use or code enforcement appeals; • Conducting hearings on Police seizure activities; and • Preparing a written decision including findings and conclusions on all applications and appeals heard within 10 working days. B. The Hearing Examiner shall also be available to present training sessions to the City Council and staff on land use law and procedures as well as to provide updates on the law affecting land use hearings if requested. C. Phil Olbrechts will serve as the primary Hearing Examiner, with Emily Terrell also available to serve if needed, as well as other alternates approved in advance by the City. D. Services may be provided virtually or in person at the City's request. E. The work of the Hearing Examiner will be scheduled by the staff of the City's Department of Community Development or Police Department. EXHIBIT B BILLING AGREEMENT The City agrees to pay Olbrechts & Associates, PLLC for services performed in accordance with the following hourly billing rates: • Hearing Examiner Services provided by Phil Olbrechts $215 per hour with a one hour minimum per day of in person hearings (no minimum for virtual hearings). • Emily Terrell or other alternates have a rate of $161 (75% of Mr. Olbrechts' rate). • Subcontractor attorneys, if needed, would have a rate set at 90% of Mr. Olbrechts' rate. Other contract decision writers would be billed at up to $75 per hour. • One hour of travel would be assessed for in-person hearings (none for virtual) and IRS mileage from Tacoma. • Creation of a transcript, if required for a contested hearing and/or recommendation to Council, will be charged at $1.50 per minute of hearing. An automated transcript if needed for the Hearing Examiner's own use will be charged at $0.25 per minute.