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CITY OF *
AGENDA BILL APPROVAL FORM
WASH WGTON
Agenda Subject: Resolution authorizing agreement for Hearing Date: October 4, 2010
Examiner Services wi#h Olbrechts and Associates, PLLC.
: Department: Planning and Attachments: Resolution No. 4651, Budget impact: None,
Development Dept 9-28-10 letter from Phil Olbrechts, continuation of required
and DraftAgreement services
Administrative Recommendation; Planning & Community Development Committee to recommend to
City Council the Approval of Resolution `No. 4651 authorizing agreement for Hearing Examiner 3erviees
wi4h Olbrechts and Associates, RLLC:
Background $ummary:
At the end of 2006 the city published _a request for proposals for hearing examiner services in the Daily
Joumal of Commerce,newspaper. In eaMy 2007 after evalua6ng several.proposals that were received
and conducting irrterviews, staff recommended Phil A. Olbrechts of Ogden Murphy Wallace, PLLC to
provide Hearing Examiner services_for the City. An agreement was executed as authorized by the .City
Council in Resolution No: 4159 approved on February 5, 2007. Phil A. Olbrechts of Ogden Murphy
Wallace, PLLC has continuously provided hearing examiner services to the city since 2007.
` On September 30, 2010 the city received letter notice thaf Mr. Olbrechts is departing the firm of Ogden
Murphy Wallace and operating,his ownfirm of Olbrechts and Associates, PLLC. The notice included a
contract amendment and assignment to transfer services from.Ogden Murphy Wallace, PLCC to
Olbrechts and Associates, PLLC that was acknowledged by Ogden Murphy Wallace, PLLC. The notice
indicated that Mr. Olbrechts will cont'in'ue:to be the lead hearing examiner for the City under the newfirm.
The City has been satisfied_with tPie hearing examiner services and wishes to continue with the services
of Mr. Olbrechts under the new firm and`:recommends authorizing a new agreement for hearing examiner
serVices with Mr: Olbrechts'and Olbrechts and Associates; PLLC rather than ame.nding/assigning the
previous agreement, as suggested by Mr. Olbrechts and Ogden Murphy Wallace, PLLC.
Reviewed by Council8 Committees: Reviewed by Departments & Divisions:
❑ Arts Commission COUNCIL COMMITTEES: ❑ Building ❑ M&O
❑ Airport ❑ Finance ❑ Cemetery p Mayor
❑ Hearing Examiner ❑ Municipal Serv. , ❑ Finanoe ❑ Parks
❑ Human Services ❑ Ptanning & CD ❑ Fire 0 Ptanning
❑ Park Board OPublic Works ' 0 Legal. _ , . ❑ Police
❑ Planning Comm. ❑ Other ❑ Public Works ❑ Human Resources
p Information Services
Action:
Committee Approval: ❑Yes []No
Council Approval: ❑Yes ONo Catl for Publ'ic Hearing /
RefeRed to Until
Tabled UnUI ! /
Councilmember:. Norman Staff: Sn de[
Meetin Date: October'1'1, 2010 Item Number
AUBURN * MORE THAN YDU 1MAGINED
RESOLUTION NO. 4 6 51
A RESOLUTION OF' THE CITY COUNCIL OF THE
CITY OF AUBURN, WASHINGTON, AUTHORIZING
THE MAYOR AND CITY CLERK TO EXECUTE AN
- AGREEMENT BETWEEN THE .CIN OF AUBURN
AND PHIL A. OLBRECHTS AND OLBRECHTS AND
ASSOCIATES, PLLC FOR HEARING EXAMINER
SERVICES
WHEREAS, Aubum City Code (ACC) Section 18.66.030 provides forthe
creation of the Office of the Hearing Examiner; and
WHEREAS, . ACC Section 18.66.040 provides for the Mayor's
appointment of the Hearing Examiner subject to confirmafion by the Aubum City
Council; and
WHEREAS, from time to time it is desirable and appropriate to solicit
qualifications from interested parties to serve as the City's Hearing Examiner;
and
WHEREAS, within the past few years, the City of Auburn did make a
Request for Proposals for :Hearing Examiner services, and out of that process, the City selected Phil A. Olbrechts of Ogden Murphy Wallace, PLLC as hearing
examiner for the City; and
Resolution No. 4651
October4, 2010
Page 1 of 3
WHEREAS, based on a change in the relationship between Phil A.
Olbrechts and Ogden Murphy Wallace, PLLC, and the City's inferest in
continuing to use the services of Phil A. Olbrechts as Hearing Examiner, it is appropriate to have a new Agreement approved 'with Phil A. Olbrechts and his
firm, Olbrechts and Associates, PLLC for Hearing Examiner services.
NOW, THEREFORE, THE CITY COUNCIL.-OF THE CITY OF AUBURN,
KINGCOUNTY, WASHINGTON, HEREBY RESOLVES as follows:
Section 1. The Mayor of the City of Auburn and the Aubum_City Clerk are hereby authorized to execute an Agreement between the City of Auburn
and Phil A. Olbrechts and Olbrechts and Associates, PLLC for Hearing
Examiner Services; which agreement shall be in substantial conformity with the
Agreement a copy of which ;is attached hereto, macked as Exhibit "A° and
incorporated herein by this reference.
Section 2. The Mayor is hereby authorized to implement such
administrative procedures as may be necessary to carry out the directives of
this legislation, including ferminating the prior Agreement with Ogden Murphy
Wallace, PLLG in light of the new Agreemenf wifh Phil A. Olbrechts and
Olbrechts and Associates, PLLC for Hearing Examiner services.
Section 3. This resolution shall be in full force and effect upon
passage and signatures hereon.
Resolution No. 4651
Octo6er 4, 2010
Page 2 of'3
Dated and Signed this day of , 2010. CITY OF AUBURN
PETER B. LEWIS
MAYOR
ATTEST:
Danielle E. Daskam, City 'Clerk ~
APPROVED AS TO FORM:
Daniel B. Heid, City Attorney,
. ,
- - -
Resolution No. 4651
Octo6er 4, 2010
Page'3 of 3
~,EC~:I!!LU ~:'s
.06DEN
VW&P'C'~ 201 0 SEP 30 P~1 3 Q9
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Phil A. Olbrechts
206447. 2251
polbrechts@onnvlativ. com
September 28, 2010
Mayor Peter B. Lewis
City of Auburn
25 West Main Street
Auburn, WA 98001-4998
Re: Hearing Examiner Contracts
Dear Mayor Lewis: ;
;
In these tough economic times businesses and government have had to "think differently" and
I'm no exception. In order to reduce costs and stay competitive in the hearing examiner field, I
will have to change my business structure and leave Ogden Murphy ;
Wallace, PLLC ("OMW") to operate my own firm effective November 1, 2010. You won't i
notice any significant change in service, except a probable reduction in charges and the use of
senior attorneys instead of associates for back up. 1 have what I hope you will find to be a minor ~
contract amendrnent and assignment to your current hearing examiner services agreement -vvith ~
OMW. I am requesting that the City assign OMW's interest in this contract to Olbrechts and ~
. Associates, PLLC ("OA"). OA wuuld replace OMW and be subject to the same terms and ~
provisions that currently apply to OMW. As with your current contract with OMW, I would do ~
the vast majority of your hearings as Hearing Examiner. ;
i
I
Enclosed with this letter is a short assignment and assumption agreement, already signed by .
myself and OMW. This agreement transfers the existing contracE dated February 20, 2007
between the City of Auburn (the "City") and OMW (the "Existing Gontract") from OMW to OA.
I also propose the following clarifications/modifications to the Existing Contract: 1. Subject to the Assignment and Assumption Agreement and except as modified below, the !
terms and conditions of the Existing Contract shall remain in plaee between OA and the City.
All back-up examiners below may only conduct a hearing with the prior permission of City staff. ,
2. Phil Olbrechts shall remain the lead hearing examiner.
C 00 FD
,
Estabiished 1902
A►vtember of the International Lav+rlers Network with independent member law firms worldwide
ibUl FiRh Avenue, 5uite 2100 • Seattle, WA 9$101 •1686 • 206.4477000 • fax: 2Q6.447.0215 • Web: wrvw.omwlaev.corn
(PA0824827.DOC;1199916.001 t 1 l1)
Hearing Examiner Contract Letier
September 28, 2010
Page 2
3. Millie Judge shall serve as a back-up to Phil Olbrechts. Ms.;Judge currently serves as the
hearing examiner for Snohomish County. She formerly, headed xhe land use division of the
Snohomish County Prosecuting Attorney's Office and also worked as an associate at OMW. Ms.
Judge will subcontract with OA as needed to provide back-up services. Her subcontract will
subject to all the terms and conditions of the OA contract with the City. ;
I
4. Scott Snyder, a member (similar to partner in partnerships) of OMW, shall serve as
another back-up to Phil Olbrechts. Mr. Snyder has over thirty years experience as a municipal
attorney. He has also served as the managing member of, OMW. Mr. Snyder will subcontract
with OA as needed to provide back-up services. His subcontract will be subject to all the terms
and conditions of the OA contract with the City.
5. Vicki Orrico will also be available for back-up Examiner services and assist in the
writing of decisions. Ms. Orrico has been practicing law since 1986 and is a former of counsel to
the municipal department of OMW. Ms. Orrico has served As A. pro tem Hearing Examiner and
has extensive experience in representing municipalities and priYate individuals in land use'issues.
_ Ms. Orrico will subcontract with OA as needed to provide back-up services.. Her subcantract ;
will be subject to all the terms and conditions af the OA contract with the City.
6. Ms. Judge, Mr. Snyder and Ms. Orrico will be charged at the member rate under the
Existing Agreement.
7. OA will also continue ta subcontract with law students and other qualified individuals to
write testimony summaries and assist in the preparation of draft decisions. OA %vill maintain the ;
~current charge structure for this service: around $35fhaur for mQSt of these services with a ~
maximum of $65/hour. The amount charged to the City would 6e 100/o above that paid to the ;
decisivn writer and wauid also iaclude` any required taxes or other expenses incurred in
compensatuig the writer. The use of these writers has enabled me to significantly reduce charges
to my clients. The writers never write a final decision.
8. All invoice payments and contract notices should be sent to:
~ Olbrechts and Associates, PLLC 18833 N.E. 74`h St.
Granite Falls, WA 98252
r
9.. These amendments/clarifications to the Esisting Agreement shall be effective on ~
November 1, 2010.
Thank you in advance for understanding this transition and assisting me in facilitating it. If you
are agreeable to having OMW assign the Existing Agreement to me, as well as to the minor
cnodifications set forth above, please sign both the enclosed Assignment and Assumption
{PA0824827.a0c;1kM10.001 i i R} ~
Hearing Examiner Contract Letter
September 28, 2010
Page 3
Agreement, as well as the copy of this letter, and return both in the enclosed selF addressed,
postage prepaid envelope. As always, should you have any questions, please do not hesitate to
contract me at your convenience. I look forward to continue to provide the City with high
quality, efficient services.
Sincerely, ;
~
OGDEN MURPHY WALLACE, P.L.L.C. ~
~ Phil A. Olbrechts I
j
PAO/nkr
Enclosure
~
i
cc: James E. Haney, OMW Municipal Dept. Chair '
Jeff Dixaii,. Principal Planner, Auburn Planning & Development Departrnent ~
CITY OF AUBURN
The City has reviewed and accepts and agrees to the above modifications to the Existing i
Agreement. !
~
. ~
Date: ~
By: ~
i
Its: '
{PA0824827.DOC;1U9910.001 l I l\ }
~
ASSIGNIVIENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREi EM.Ef NT ("Assignment'l by and ~
between the City of Auburn, a Washington municipal 'corporation {"City'), Ogden Murphy
WaIlace, PLLC, a Washington professional limited liability company ("OMW"), and Olbrects
and Associates, PLLC, a Washington professional Iimited iiability company ("OA"), is dated and
, effective this November 1, 24I0. (the "Effective Date"}.
RECITALS
OMW and City.are parties to that certain agreement for services dated February 20, 2007,
(the "Existing Agreement"). Phil Olbrects is currantly a member attorney at OMW but is leaving ?
to establish hzs own practice, OA, as of the Effective Date: City currently receives the services
of Olbrects pursuant to the Existing Agreement. OMW, OA and City desire to have OMW j
assign the Existing Agreement to QA, for OA to assume alI rights and obligations under the ~
Existing Agreement, and the City to consent to the assignment and assumption of the Existing
Agreement from OMW to OA.
,
i
NOW, THEREFORE, in consideration of the mutual prorriises and obligations set forth ~
below, the parties hereby agree as.follows: ~
ASSIGNMENT
1. Assignment bv.OMW. OMW hereby transfers and assigns all of its right, title and
interest, and obligations under the EAsting Agreement to OA. ~
2. Assumption'bv OA. OA hereby accepts the assignment of the Existing Agreement, and '
assumes all responsibility and liability for all of OMW's obligations and responsihilities I
thereunder.
3. Cifv's Consent to Assigamenf. City hereby consenfs to OMW's assignment of its
rights, title; interest, and obligations under the Existing Agreement to OA. City releases OMW
from any obligations or tiabilities under the Existing Agreement arising from conduct after the ,
Effective Date.
;
5, Recitnls. The recitals set forth above are herehy incorporated into this Assignment. ~
~
ASSIGNNIENT AGREENIENT - 1
(PA0824337.DQC;1\99910.00I i l ll )9/27/10 -
,
In WIINESS WHEREOF, the parties have duly executed and delivered this Assignment !
~
as of dates below. '
OA: OMtiV:
Olbrects and Associates, PLLC Ogde Murphy Wallace, PLLC
~ i
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By: Phil A. Olbrects By: James E:;Haney
Its: Member/Manager ' .
Date: Date•
CITY:
CITY OF AUBURN
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By:
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Date: .
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ASSIGNIVIENT AGREEMENT - 2
{PA0824337.DOC;1\99910.001 ;111\ }927/10
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AGREEMENT FOR PERSONAL SERVICES RELATED TO THE POSITION OF
HEARING EX:AMINER FOR THE CITY OF AUBURN
AN AGREEMENT between the City of Auburn, hereinafter referred to as "Auburn," and
Phil A. Olbrechts and Olbrechts and Associates, P.L.L.C., hereinafter referred to as
"Contractor";
NOW, THEREFORE, in consideration of the mutual promises and covenants herein
made, each party agrees as follows:
I.
The Contractor agrees to perform the following professional services for Auburn:
- ' (1) To act in the capacity of Hearing Examiner for Auburn;
(2) To hear, and act. as authorized by the Auburn :City Code, hearings. relafed to
land use ;permitting.actions, generally once per month or more/less frequeritly
as determined necessary by Auburn. As the Hearing Examiner, the Contractor
shall receive and examirie all admissible evidence regarding cases to be heard;
perform on-site in"spections of properties; conduct public hearings; and submit
written Findings, Conclusions, Recommendations, and Decisions within the
time limits and as specif ed by the Auburn City Code;
• (3)' To conduct otHer public hearings not related to land use or code enforcement
actions, as provided for in Auburn City Code;
(4) To meet with the Auburn City Council or subcommittee thereof, as requested -
by the Council, to discuss matters pertinent to the conduct and practices of the .
Hearing Examiner; and
(5) To meet with the Auburn staff, or review material provided, and discuss or
comment on matteis pertinent to the Auburn land use permit process,
requirements or enforcement, as requested by the Director of the City of
Auburn Planning & Development Department as consistent with the
appearance . of fairaess doctrine, conflicts of ' interest, professional ,
responsibility and other applicable law.
II.
In order to appropriately accomplish the duties specified in Section; I above, it is
agreed the Contractor at his own expense shall do and provide the following:
(1) Office and office equipment; (2) Insurance to cover errors and omissions and liability in the amounts of
$1,000,000.00 and $1,000,000.00 respectively, and naming the City_.of
Auburn as insured; Hearing Examiner Contract - 1
(3) An electronic copy, as PDF/Adobe Acrobat documents or in another
suita.ble format and at least two origirial reports" of Findings, Conclusions
and Decisions or Recommendations for each hearing by delivering the
same to the Auburn Planning & Development Department within the time
constraints imposed by law; and
(4) Provide a written summary of testimony received at each hearing, ascribed
to the individual providing said testimony:
' IIL
Auburn shall provide the following:
(I) Written staff reports to the Hearing Examiner both electronic and hard ~
copies, as well as, maps and such other exhibits as required; shall be
responsible for the scheduling of all the hearings for: the Hearing
Examiner; shall piovide notice of hearings and decisions as required by
law; shall make all the required copies of said decisions. and
correspondence, and mail to all parties of record; shall keep and maintain
all official files and records of the hearings; and do all other tasks
necessary to administratively process said materials; and
(2) Auburn shall furnish a hearing room and recording equipment; shall
schedule all necessary meetings before the Auburn City Council or
subcommittee thereof; shall provide an amplification system when
necessary; and shall provide a stafF person who shall be present at hearings
to operate the recording equipment, accept additional exhibits submitted' at
the hearing, and assist in the orderly conduct of the hearing. Auburn shall
alsoprepare a formaTiist of exhibits received prior to the hearing for the
final written Hearing Examiner decision or recommendation.
IV.
Payment for services shall' be as follows:
(1) Auburn agrees to pay Contractor on an hourly basis at the rate of ONE
HZJNDRED. FORTY DOLLARS ($140.00) per hour. The Contractor
shall chazge a flat one hour for travel time. Subsequent changes to the
hourly rate schedule shall be negofiated between the parties at least 45
days prior to the end of each calendar year;
(2) Auburn agrees to pay for mileage at the current rate allowed by the
Internal Revenue Service and to pay for the direct cost of related
administrative expenses, including long distance telephone calls and copy ,
charges;
Hearing Examiner Contract - 2
(3) Phil Olbrechts shall be the lead attorney from Contractor to provide
Hearing Examiner services and shall be responsible for supervising all
others who provide service through Contractor under this,Agreement. In
case Phil Olbrechts cannot conduct a hearing due to reasonable cause, he
may designate another attorney from Contractor to conduct the heazing,
which designation shall be subject to the approval of Auburn. Phil
Olbrechts may also assign the writing of decisions on an as needed basis
to other attorneys from Contractor. He may also employ the services of
other independent contractors to write decisions provided that Contractor
shall be fully responsible for the content of Contractor's decisions,
supervision of the Contractor, and invoicing and (1) Contractor shalt add
on no more than 10% in administrative fees to costs of independent writer
plus applicable taxes; and (2) costs of independent writer including the
fees and tatces set forth above shall not. exceed 75% of the hourly rate of
Contractor. The intent of using independent writers 'is to substantially
reduce the cost of Hearing Examiner services to the City of Auburn.
_ Auburn may direct Contractor to reduce or cease the use of independent
writers at any time if cost savings are not accomplished or for any reason
Auburn deems appropriate; and _
(4) Contractor shall invoice to Auburn on a monthly basis to be received by
the City of Auburn no later than 7`' day of the month a statement that .
. details charges for each individual case considered. Payment by Auburri
for services rendered shall be made in the normal course on the next
available voucher processing run.
V
Contractor shall furnish services as an independent contractor and nothing herein
shall be construed to create a relationship of employer-employee between the
Contractor or his staff and Auburn. Similarly, the relationship of the Contractor to
the Hearing Examiner is that of independent contractor. All payments made
hereunder and ali services performed shall be made and performed pursuant to this
contract; by the Contractor as an independent contractor.
VI.
This ageement may be terminated by either parfy upon 30 days written notice
without cause. Auburn may immediately remove the Contractor for cause. The
Examiner shall immediately notify Auburn of any change in professional status.
VII.
The term of this agreement shall begin on the 0 day of November, 2010, and shall
continue in full force and effect for one year. After one year, the agreement shall
remain in effect on a month=to-month basis until terminated under the provisions of
Section VI above, unless a l"onger "extension of time is agreed upon between both
parties.
. Hearing Examiner Contract - 3
This agreement may be amended at any time after the initial one year term, subject to
_ the mutual agreement of'both parties.
DATED this day of , 2010.
Olbrechts and Associates, P.L.L.C., by
Phil A. Olbrechts
City of Auburn, by
Peter B. Lewis, Mayor
He,aring Examiner Contract - 4