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HomeMy WebLinkAboutITEM VIII-B-3 A TYOFUBURN AGENDA BILL APPROVAL FORM WASHINGTON Agenda Subject: Resolution authorizing agreement for Hearing Date: October 12, 2010 Examiner Services with Olbrechts and Associates, PLLC. Department: Planning and Attachments: Resolution No. 4651 Budget Impact: None, Development Dept. with draft agreement as Exhibit A & continuation of required 9-28-10 letter from Phil A. Olbrechts services Administrative Recommendation: City Council adopt Resolution No. 4651. Background Summary: At the end of 2006 the city published a request for proposals for hearing examiner services in the Daily Journal of Commerce newspaper. In early 2007 after evaluating several proposals that were received and conducting interviews, 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 that Mr. Olbrechts is departing the firm of Ogden Murphy Wallace and operating his own firm of Olbrechts and Associates, PLLC. The notice included a contract amendment and assignment to transfer services from Ogden Murphy Wallace, PLLC to Olbrechts and Associates, PLLC that was acknowledged by Ogden Murphy Wallace, PLLC. The notice indicated that Mr. Olbrechts will continue to be the lead hearing examiner for the City under the new firm. The City has been satisfied with the 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 amending/assigning the previous agreement, as suggested by Mr. Olbrechts and Ogden Murphy Wallace, PLLC. The Resolution and Agreement were considered the Planning and Community Development Committee of the City Council at its October 11, 2010 meeting and the committee recommended approval to the City Council. L1018-1 A4.5.2, A3.16.7 Reviewed by Council & Committees: Reviewed by Departments & Divisions: ❑ Arts Commission COUNCIL COMMITTEES: ❑ Building ❑ M&O ❑ Airport ❑ Finance ❑ Cemetery ❑ Mayor ❑ Hearing Examiner ❑ Municipal Serv. ❑ Finance ❑ Parks ❑ Human Services ® Planning & CD ❑ Fire ® Planning ❑ Park Board []Public Works ® Legal ❑ Police ❑ Planning Comm. ❑ Other ❑ Public Works ❑ Human Resources ❑ Information Services Action: Committee Approval: ®Yes ❑No Council Approval: ❑Yes ❑No Call for Public Hearing Referred to Until Tabled Until Councilmember: Norman Staff: Snyder Meeting Date: October 18, 2010 Item Number: VIII.13.3 AUBURN* MORE THAN YOU IMAGINED RESOLUTION NO.4 6 5 1 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF AUBURN AND PHIL A. OLBRECHTS AND OLBRECHTS AND ASSOCIATES, PLLC FOR HEARING EXAMINER SERVICES WHEREAS, Auburn City Code (ACC) Section 18.66.030 provides for the 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 confirmation by the Auburn 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 WHEREAS, based on a change in the relationship between Phil A. Olbrechts and Ogden Murphy Wallace, PLLC, and the City's interest in continuing to use the services of Phil A. Olbrechts as Hearing Examiner, it is Resolution No. 4651 October 4, 2010 Page 1 of 3 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, KING COUNTY, WASHINGTON, HEREBY RESOLVES as follows: Section 1. The Mayor of the City of Auburn and the Auburn 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, marked 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 terminating the prior Agreement with Ogden Murphy Wallace, PLLC in light of the new Agreement with 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 October 4, 2010 Page 2 of 3 Dated and Signed this day of 12010. CITY OF AUBURN PETER B. LEWIS MAYOR ATTEST: Danielle E. Daskam, City Clerk APPROVED AS TO FORM: Daniel B. Hei , City Attorney Resolution No. 4651 October 4, 2010 Page 3 of 3 AGREEMENT FOR PERSONAL SERVICES RELATED TO THE POSITION OF HEARING EXAMINER 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 related to land use permitting actions, generally once per month or more/less frequently as determined necessary by Auburn. As the Hearing Examiner, the Contractor shall receive and examine all admissible evidence regarding cases to be heard; perform on-site inspections of properties; conduct public hearings; and submit written Findings, Conclusions, Recommendations, and Decisions within the time limits and as specified 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 matters 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 fairness 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 suitable format and at least two original 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. III. Auburn shall provide the following: (1) 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 provide 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 also prepare a formal list 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 HUNDRED FORTY DOLLARS ($140.00) per hour. The Contractor shall charge a flat one hour for travel time. Subsequent changes to the hourly rate schedule shall be negotiated 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 hearing, 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 shall 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 taxes 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 7th day of the month a statement that details charges for each individual case considered. Payment by Auburn 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 all services performed shall be made and performed pursuant to this contract, by the Contractor as an independent contractor. VI. This agreement may be terminated by either party 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 1St 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 longer extension of time is agreed upon between both parties. Hearing Examiner Contract - 3 This agreement may be amended at anytime 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 I Peter B. Lewis; Mayor. _ , . Hearing Examiner Contract - 4 DEN U1PE 2010 sEP 30 Pn os ALSACE r It N,r,Y1 AT A N Phil A. Olbrechts 206417.2251 pol brechts@onrrvlaw. C0111 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 notice any significant change in service, except a probable reduction in charges and the use of senior attorneys instead of associates for back up. I have what I hope you will find to be a minor contract amendment and assignment to your current hearing examiner services agreement with OIvtW. I am requesting that the City assign OMW's interest in this contract to Olbrechts and Associates, PLLC ("OA"). OA would replace OMW and be subject to the same terms and provisions that currently apply to UMW. As with your current contract with OMW, I would do the vast majority of your hearings as Hearing Examiner. Enclosed with this letter is a short assignment and assumption agreement, already signed by myself and OMW. This agreement transfers the existing contract dated February 20, 2007 between the City of Auburn (the "City") and OMW (the "Existing Contract") 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 place 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 1 L1018-1C co) h Established 1902 A Nlembcr of the International Lawyers Network with independent member law firms viorldwide air "u(1~Avenl.v2. Wife 2100 • Seattle,VVA98101-1686 206.41177000 Fax: 206.4,170215 - Vfeb vvwv).ornwl,r, min { PA0824827.D0C;1\99910.0011 1 1\ Hearing Examiner Contract Letter 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 the 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. 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 private individuals in land use issues. Ms. Orrico will subcontract with OA as needed to provide back-up services. Her subcontract will be subject to all the terms and conditions of 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 to subcontract with law students and other qualified individuals to write testimony summaries and assist in the preparation of draft decisions. OA will maintain the current charge structure for this service: around $35/hour for most of these services with a maximum of $65/hour. The amount charged to the City would be 10% above that paid to the decision writer and would also include any required taxes or other expenses incurred in compensating the writer. The use of these writers has enabled me to significantly reduce charges to my clients. The writers never write a final decision. i 8. All invoice payments and contract notices should be sent to: Olbrechts and Associates, PLLC 18833 N.E. 74`x' St. Granite Falls, WA 98252 9. These amendments/clarifications to the Existing 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 modifications set forth above, please sign both the enclosed Assignment and Assumption (PA0824827.DOC;R99910.0011111 ) 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 PAO/nkr Enclosure cc: James E. Haney, OMW Municipal Dept. Chair Jeff Dixon, Principal Plaruler, Auburn Planning & Development Department CITY OF AUBURN The City has reviewed and accepts and agrees to the above modifications to the Existing Agreement. Date: By: Its: {PA03211327.DOC;1\99910.0011 I1\ f ASSIGNMENT AND ASSUMPTION AGREEMENT THIS ASSIGNMENT AND ASSUMPTION AGREEMENT ("Assignment") by and between the City of Auburn, a Washington municipal corporation ("City"), Ogden Murphy Wallace, PLLC, a Washington professional limited liability company ("OMW"), and Olbrects and Associates, PLLC, a Washington professional limited liability company ("OA"), is dated and effective this November 1, 2010 (the "Effective Date"). RECITALS li OMW and City are parties to that certain agreement for services dated February 20, 2007, (the "Existing Agreement"). Phil 01brects is currently a member attorney at OMW but is leaving to establish his own practice, OA, as of the Effective Date. City currently receives the services of 01brects pursuant to the Existing Agreement. OMW, OA and City desire to have OMW assign the Existing Agreement to OA, for OA to assume all 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. NOW, THEREFORE, in consideration of the mutual promises and obligations set forth below, the parties hereby agree as follows: i ASSIGNMENT 1. Assignment by OMW. OMW hereby transfers and assigns all of its right, title and interest, and obligations tinder the Existing Agreement to OA. 2. Assumption by OA. OA hereby accepts the assignment of the Existing Agreement, and assumes all responsibility and liability for all of OMW's obligations and responsibilities thereunder. I 3. City's Consent to Assignment. City hereby consents to OMW's assignment of its rights, title; interest, and obligations tinder the Existing Agreement to OA. City releases OMW from any obligations or liabilities under the Existing Agreement arising from conduct after the Effective Date. 5. Recitals. The recitals set forth above are hereby incorporated into this Assignment. II ASSIGNMENT AGREEMENT - I (PA0824337.DOC;1\99910.001111\ )9/27/10 In WITNESS WHEREOF, the parties have duly executed and delivered this Assignment as of dates below. OA: OMW: Olbrects and Associates, PLLC Ogde Murphy Wallace, PLLC By: Phil A. Olbrects By: James E. Haney Its: Member/Manager Date: Date: CITY: i I CITY OF AUBURN , By: Its: Date: ASSIGNMENT AGREEMENT - 2 {PA0824337.DOC;1\99910.001111\ }9/27/10