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HomeMy WebLinkAboutSusan E. Drummond - Hearing Examiner AgreementPROFESSIONAL SERVICES AGREEMENT (Pasco Hearing Examiner Services) THIS AGREEMENT is made and entered into between the City of Pasco, a Washington Municipal Corporation, hereinafter referred to as "City", and the Law Offices of Susan Elizabeth Drummond, PLLC, hereinafter referred to as "Consultant." RECITALS WHEREAS, the City desires to have certain services and/or tasks performed as set forth below requiring specialized skills, training, equipment, and other supportive capabilities; and WHEREAS, the Consultant represents that it is qualified and possesses sufficient skills, experience, equipment, and necessary capabilities, including: technical and professional expertise, when required, to perform the services and/or tasks as set forth in this Agreement upon which the City is relying. NOW, THEREFORE, in consideration of the mutual covenants, and performances contained herein, the parties agree as follows: 1. Scone of Services. The Consultant shall perform such services and accomplish such tasks, including the furnishing of all labor, materials, facilities and equipment necessary for full performance thereof, as identified and designated as Consultant's Responsibilities throughout this Agreement, and as more particularly described in Scope of Services detailed in Exhibit A, attached hereto and incorporated herein. 2. Term. This Agreement shall begin on May 1, 2019. 3. Com enation and Pa went. 3.1 Payment for services provided hereunder shall be made following the performance of such services. Such payment shall be full compensation for work performed or services rendered, and for all labor, materials, supplies, equipment, and incidentals necessary to complete the Project. 3.2 No payment shall be made for any services rendered by the Consultant except for services identified and set forth in this Agreement except as may be authorized by a written supplemental agreement approved by the City. 3.3 The City shall pay the Consultant for work performed under this Agreement upon timely submitted invoices detailing work performed and expenses for which reimbursement is sought. The City shall approve all invoices before payment is issued. Payment shall occur within thirty (30) days of receipt and approval of an invoice. Professional Services Agreement - Hearing Examiner Page 1 of 9 3.4 The City shall pay the Consultant for all work performed and expenses incurred under this Agreement, as follows. XX Hourly (Single Rate): $175 per hour plus expenses incurred as provided under this Agreement. See attached Scope of Services. 4. Reports and Inspections. 4.1 The Consultant at such times and in such forms as the City may require, shall furnish to the City such statements, records, studies, surveys, reports, data, and information as the City may request pertaining to matters covered by this Agreement. 4.2 The Consultant shall during normal business hours, and upon appointment, and as often as the City or the Washington State Auditor may reasonably deem necessary, make available for examination all of its records and data with respect to all matters covered, directly or indirectly, by this Agreement and shall permit the City, or its designated authorized representative to audit and inspect other data relating to all matters covered by this Agreement. The City shall receive a copy of all audit reports made by the agency or firm as to the Consultant's activities. The City may, at its discretion, conduct an audit at its expense, using its own or outside auditors, of the Consultant's activities which relate, directly or indirectly, to this Agreement. Consultant shall be provided a copy of such reports. 4.3 The Consultant, during the term of this Agreement, shall obtain all permits and registration documents necessary for the performance of its work and for the execution of services at its own expense, and shall maintain its validity. Upon request, the Consultant shall deliver to the City copies of these licenses, registration documents, and permits or proof of their issuance or renewal. 4.4 Consultant shall maintain books, records and documents, which sufficiently and properly reflect all direct and indirect costs related to the performance of this Agreement, and shall maintain such accounting procedures and practices as may be necessary to assure proper accounting of all funds paid pursuant to this Agreement. These records shall be subject, at all reasonable times, to inspection, review, or audit as provided above. 4.5 The Consultant shall retain all books, records, documents or other material relevant to this Agreement for three (3) years after its expiration. Consultant agrees that the City, or its designee, shall have full access and right to examine any of said materials at all reasonable times during this period. 5. Contract Termination-, Forwarding of Work Product. 5.1 In the event of Consultant's default, or in the event that this Agreement is terminated prior to its completion, the work product of the Consultant, along with Professional Services Agreement - Hearing Examiner Page 2 of 9 a summary of the services performed to date of default or termination, shall be forwarded to the City, and tender of the work product and summary shall be a prerequisite to final payment under this Agreement. The summary of services provided shall be prepared at no additional cost, if the Agreement is terminated through default by the Consultant. If the Agreement is terminated through convenience by the City, the City agrees to pay Consultant for the preparation of the summary of services provided. 6. Public Records. 6.1 Consultant acknowledges that the City is an agency subject to Chapter 42.56 RCW "Public Records Act." 6.2 If the Consultant becomes a custodian of public records of the City (which this Agreement does not contemplate and is outside the Scope of Services) and request for such records is received by the City, the Consultant shall respond to the request by the City for such records within five (5) business days by either providing the records, or by identifying in writing the additional time necessary to provide the records with a description of the reasons why additional time is needed. Such additional time shall not exceed twenty (20) business days unless extraordinary good cause is shown. 6.3 In the event the City receives a public records request for protected work product of the Consultant within its possession, the City shall, prior to the release of any protected work product or as a result of a public records request or subpoena, provide Consultant at least ten (10) business days prior written notice of the pending release and to reasonably cooperate with any legal action which may be initiated by the Consultant to enjoin or otherwise prevent such release. 7. Independent Contractor Relationship. 7.1 The parties intend that an independent contractor relationship is created by this Agreement. The City is interested primarily in the results to be achieved; subject to the Scope of Services and the specific requirements of this Agreement, the implementation of services will lie solely with the discretion of the Consultant. No agent, employee, officer or representative of the Consultant shall be deemed to be an employee, agent, officer, or representative of the City for any purpose, and the employees of the Consultant are not entitled to any of the benefits or privileges the City provides for its employees. The Consultant will be solely and entirely responsible for its acts and for the acts of its agents, employees, officers, subcontractors or representatives during the performance of this Agreement. 7.2 In the performance of the services provided in this Agreement, Consultant is an independent contractor with full authority to control and direct the performance of the details of the work, however, the results of the work contemplated herein must Professional Services Agreement - Hearing Examiner Page 3 of 9 meet the approval of the City and shall be subject to the City's general rights of inspection and review to secure the satisfactory completion thereof_ 7.3 The Consultant shall comply with all State and Federal laws including, but not limited to: 7.3.1 The definition requirements of RCW 50.04.140 (Employment Security). 7.3.2 RCW 51.08.195 (Industrial Insurance). 7.3.3 Obtain a City of Pasco business license, if required. 7.4 The City may, at its sole but reasonable discretion, require the Consultant to remove any employee, agent or servant from employment on this Project who, in the City's sole but reasonable discretion, may be detrimental to the City's interest. 8. Indemnification. 8.1 The Consultant shall defend, indemnify, and hold harmless the City, its officers, officials, agents, employees, and volunteers from any and all claims and causes of action, including, but not limited to, actions of law or administrative proceedings for all injuries to persons or damages to property, and all losses, damages, demands, suits, judgments, including attorney fees, arising out of, or as a result of, or in connection with the work performed under this Agreement, but only to the extent such damages/injuries are caused or occasioned by reason of errors, negligent acts or omissions of the Consultant or its subcontractors in the performance of this Agreement, and except for injuries and damages caused by the sole negligence of the City, its officers, employees, agents, and volunteers. This section shall not apply to allegations stemming from any act, error, or omission of CONTRACTOR in making a recommendation or a decision on an application or appeal or other matter as the Hearing Examiner. 8.2 The City shall defend, indemnify, and hold harmless the Consultant, its officers, officials, agents, employees, and volunteers from any and all claims and causes of action, including, but not limited to, actions of law or administrative proceedings for all injuries to persons or damages to property, and all losses, damages, demands, suits, judgments, including attorney fees, arising out of, or as a result of, or in connection with the work performed under this Agreement, but only to the extent such damages/injuries are caused or occasioned by reason of errors, negligent acts or omissions of the City or its subcontractors in the performance of this Agreement, and except for injuries and damages caused by the sole negligence of the Consultant, its officers, employees, agents and volunteers. 8.3 It is further agreed 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. Professional Services Agreement - Hearing Examiner Page 4 of 9 8.4 No liability shall attach to the City by reason of entering into this Agreement except as expressly provided herein. 8.5 This waiver has been mutually negotiated by the parties, and the provisions of this section shall survive the expiration or termination of this Agreement. 9. 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, employees, or subcontractors. 9.1 9.2 Minimum Scope of Insurance. Consultant shall obtain insurance of the types described below: 9.1.1 Automobile Liability insurance covering 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. 9.1.2 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 additional insured under the Consultant's Commercial General Liability insurance policy with respect to the work performed for the City. 9.1.3 Workers' Compensation coverage as required by the Industrial Insurance laws of the State of Washington. 9.1.4 Professional Liability insurance appropriate to the Consultant's profession. Minimum Amounts of Insurance. Consultant shall maintain the following insurance limits: 9.2.1 Automobile Liability insurance with a minimum combined single limit for bodily injury and property damage of $1,000,000 per accident. Aggregate coverage amount may be met through umbrella insurance. 9.2.2 Commercial General Liability insurance shall be written with limits no less than: ® $1,000,000 each occurrence; ❑ $2,000,000 general aggregate; or ❑ $ each occurrence; and $ general aggregate Professional Services Agreement - Hearing Examiner Page 5 of 9 9.2.3 Professional Liability insurance shall be written with limits no less than: ® $1,000,000 per claim; ❑ $1,000,000 policy aggregate limit; or ❑ $ per claim; and $ per policy aggregate limit 9.3 Other Insurance Provisions. : 9.3.1 The Consultant's insurance coverage shall be primary insurance as respects 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 contribute with it. 9.3.2 The Consultant's insurance shall not be cancelled by either parry, except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City. 9.4 Accer>tabilit} of Insurers. Insurance is to be placed with insurers with a current A.M. Best rating of not less than A:VII. 9.5 Verification of Covera - e. Consultant shall furnish the City with certificates and a copy of endorsements, including but not necessarily limited to the additional insured endorsement, evidencing the insurance requirements of the Consultant before commencement of the work. 10. Nondiscrimination. In the performance of this Agreement, the Consultant will not discriminate against any employee or applicant for employment on the grounds of race, creed, color, national origin, sex, marital status, age or the presence of any sensory, mental or physical handicap; provided that the prohibition against discrimination in employment because of handicap shall not apply if the particular disability prevents the proper performance of the particular worker involved. The Consultant shall ensure that applicants are employed, and that employees are treated during employment in the performance of this Agreement without discrimination because of their race, creed, color, national origin, sex, marital status, age or the presence of any sensory, mental or physical handicap. Consultant shall take such action with respect to this Agreement as may be required to ensure full compliance with local, State and Federal laws prohibiting discrimination in employment. 11. Covenant Against Contingent Fees. The Consultant warrants that it has not employed nor retained any company, firm, or person, other than a bona fide employee working exclusively for the Consultant, to solicit or secure this Agreement; and that it has not paid or agreed to pay any company, person or firm, other than a bona fide employee working exclusively for the Consultant, any fee, commission, percentage, brokerage fee, gift, or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, the City shall have the right to terminate this Agreement. Professional Services Agreement - Hearing Examiner Page 6 of 9 12. AssiLniaent and Subcontracting. 12.1 The City has awarded this Agreement to the Consultant due to its unique qualifications to perform these services. The Consultant shall not assign (or subcontract other than as specifically identified in Exhibit A) its performance under this Agreement or any portions of this Agreement without the prior written consent of the City, which consent must be sought at least thirty (30) days prior to the date of any proposed assignment. 12.2 Any work or services assigned or subcontracted hereunder shall be subject to each provision of this Agreement including Section 6, Public Records; Section 10, Nondiscrimination; proper bidding procedures where applicable; and all local, State and Federal statutes, ordinances and guidelines. 12.3 Any technical or professional service subcontract not listed in this Agreement, must have prior written approval by the City. 13. Termination. 13.1 Termination for Convenience. Either party may terminate this Agreement for any reason upon giving the other party no less than thirty ( 30) business days written notice in advance of the effective date of such termination. 13.2 Termination for Cause. If the Consultant fails to perform in the manner called for in this Agreement, or if the Consultant fails to comply with any other provisions of this Agreement and fails to correct such noncompliance within five (5) business days of written notice thereof, the City may terminate this Agreement for cause. Termination shall be effected by serving a notice of termination on the Consultant setting forth the manner in which the Consultant is in default. The Consultant will only be paid for services and expenses complying with the terms of this Agreement, incurred prior to termination. 14. General Provisions. 14.1 For the purpose of this Agreement, time is of the essence. 14.2 Notice. Notice provided for in this Agreement shall be sent by - 14.2.1 Personal service upon the Project Administrators. 14.2.2 Certified mail to the physical address of the parties, or by electronic transmission to the e-mail addresses designated for the parties below. 14.3 The Project Administrator for the purpose of this Agreement shall be: Professional Services Agreement - Hearing Examiner Page 7 of 9 14.3.1 For the City- Rick White, or his designee Director, Community and Economic Development, City of Pasco 525 North 3rd Avenue Pasco, WA 99301 whiter(a) asco-wa. Lov 14.3.2 For the Consultant: Susan Drummond Law Offices of Susan Elizabeth Drummond, PLLC 5400 Carillon Point, Bldg. 5000, Ste. 476 Kirkland, WA 98033 susan@susandrummond.com 15. Dispute Resolution. 15.1 This Agreement has been and shall be construed as having been made and entered into and delivered within the State of Washington and it is agreed by each party hereto that this Agreement shall be governed by the laws of the State of Washington. 15.2 In the event of a dispute regarding the enforcement, breach, default, or interpretation of this Agreement, the Project Administrators, or their designees, shall first meet in a good faith effort to resolve such dispute. In the event the dispute cannot be resolved by agreement of the parties, said dispute shall be resolved by arbitration pursuant to RCW 7.04A, as amended, with both parties waiving the right of a jury trial upon trial de novo, with venue placed in Pasco, Franklin County, Washington. The substantially prevailing party shall be entitled to its reasonable attorney fees and costs as additional award and judgment against the other, but not in an amount exceeding $25,000 Arbitration costs shall be equally split between the parties. 16. Nonwaiver. 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 similar event or other provision of this Agreement. 17. Intq,,nation. This Agreement between the parties consists in its entirety of this document and any exhibits, schedules or attachments verified by initials as a part of Exhibit A. Any modification of this Agreement or change order affecting this Agreement shall be in writing and signed by both parties. 18. Authorization. By signature below, each party warrants that they are authorized and empowered to execute this Agreement binding the City and the Consultant respectively. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. Professional Services Agreement - Hearing Examiner Page 8 of 9 CITY OF PASCO, WASHINGTON Dave blell, 6yMaffager ATTEST: Ml@:jk _�M/ MA, 3, 30" r APPROVED AS TO FORM: City Attorney CONSULTANT Law Offices of Susan E1 zabeth Drummond, PLLC Susan Drummond Professional Services Agreement - Hearing Examiner Page 9 of 9 SCOPE OF SERVICES EXHtBIT A 1. All duties of the Consultant shall be performed pursuant to the direction of the Project Administrator or his or her designee, in compliance with applicable Chapters of the Pasco Municipal Code and the Hearing Examiner Rules of Procedure. 2. The Consultant shall assist in the implementation and improvement of a hearing examiner system for the City, and such assistance shall include but is not limited to monitoring and consulting on possible updates to the Rules of Procedure of the Office of Hearing Examiner that comply with Pasco Municipal Code Chapter 2 and all applicable law. 3. Consultant shall, at the City's request, conduct hearings, render decisions and perform all necessary related acts in order to fulfill the duties set forth below in Pasco Municipal Code Chapter 2, as currently in effect or as hereafter amended. Such related acts include, but are not limited to, receiving and examining all information presented to it, conducting all necessary public hearings, preparing and adopting written Findings of Fact and Conclusions of Law and Decisions, when legally required or when otherwise appropriate. Such decisions shall be rendered within the time period allowed by Pasco Municipal Code Chapters 2; 4; 21 and 25 as currently in effect or as hereafter amended. The Consultant shall not be responsible for the conduct of hearings related to vehicle impounds, criminal seizure and forfeiture and the determination of dangerous or potentially dangerous animals. 4. Consultant shall regularly hold hearings on dates as frequently as needed to review and decide upon applications in a timely manner. Unless special notification is given otherwise, hearings will be held in the City of Pasco Council Chambers in Pasco, Washington. Consultant may schedule special meetings and continued meetings, as deemed necessary and with concurrence of the City. 5. Consultant will work independently and without direct supervision. Consultant will remain fully knowledgeable of City zoning code and all other City codes, regulations, ordinances, resolutions and policies affecting the areas of concern related to Consultant's duties. 6. Consultant shall perform its duties under the Contract to the City's satisfaction, including, but not limited to, conducting orderly and impartial hearings, creating a professional and courteous environment for applicants, citizens and staff; and timely preparing decisions based on sound reasoning and all applicable law. When deemed appropriate and under the circumstances allowed by law, the Consultant may, as a part of any land use hearing, conduct an unescorted view of the subject property and shall report on the record the date, time and general location of the view. 7. Consultant shall provide all office space and equipment necessary to perform its obligations under this Contract and shall maintain an active e-mail address for electronic communications and transfer of information. 8. Consultant shall annually report in writing to the City by December 31' of each year regarding the decisions rendered during the year and state any recommendations for changing or improving the City's hearing examiner system. COMPENSATION For the performance of services under this Contract, the City agrees to compensate the Consultant as follows: IIearing Examiners Services at the hourly rate of $175 per hour. Travel Expenses at $500 per trip. Routine costs, such as copying, phone, electronic legal research, and legal assistant support are not invoiced. The fee structure will remain in effect during the contract term.