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
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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