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.
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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
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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
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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.
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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
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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.
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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:
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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.
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CITY OF PASCO, WASHINGTON
Dave blell, 6yMaffager
ATTEST:
Ml@:jk
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3, 30"
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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.