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HomeMy WebLinkAbout051214_ca03Consent Agenda JEFFERSON COUNTY BOARD OF COUNTY COMMISSIONERS AGENDA REQUEST TO: Board of County Commissioners Philip Morley, County Administrator FROM: Carl Smith, Director, DCD Stacie Hoskins, Planning Manager, DCD DATE: May 12, 2014 SUBJECT: Hearing Examiner Contract STATEMENT OF ISSUE: The BOCC is requested to approve the contract with Stephen Causseaux from McCarthy & Causseaux of Tacoma, WA for Hearing Examiner services in 2014 through 2019. Per Jefferson County Code (JCC) 18.05.080 the office of the Hearing Examiner is created and established. The Hearing Examiner exercises the authority designated in 18.40 JCC to conduct land use hearings on such matters as conditional use permits, variances and road vacations. ANALYSIS /STRATEGIC GOALS The Hearing Examiner conducts quasi- judicial hearings on land use applications. The Examiner prepares written findings of facts and conclusions of law based on local, state and federal laws. The Examiner is the decision maker for Jefferson County on those applications outlined in JCC 18.40. These cases require thorough knowledge of all legal requirements, including an understanding of due process, procedures, and court decisions. FISCAL IMPACT /COST- BENEFIT ANALYSIS: The Hearing Examiner is part of the County Administrator budget. The 2014 adopted budget includes this item for expenditure by Jefferson County. RECOMMENDATION: The Department of Community Development recommends the BOCC approve this contract amendment. RE-WEWED BY: P ip Morley,i (?o ty Admin' rator 57%t1 Date CONTRACT FOR PROFESSIONAL SERVICES This Contract for Professional Services (the Contract) is entered into by Jefferson County, a municipal corporation, having its principal offices at 621 Sheridan Port Townsend, Washington, 98368 (the County) and Stephen K. Causseaux, Jr., having his principal offices at 902 South 10`h Street, Tacoma, WA 98405 (the Contractor). SECTION 1. EFFECTIVE DATE OF CONTRACT The Contract will become effective on May 1, 2014, and terminate on April 30, 2019. In no event will this Contract be effective beyond April 30, 2019. This Contract will not become effective until it is approved and executed by the Jefferson County Board of Commissioners. SECTION 2. SERVICES TO BE PROVIDED 2.1 A description of the services to be performed by the Contractor is set forth in Exhibit A: Description of Services, which is attached to the Contract and incorporated by this reference. 2.2 The Contractor agrees to provide its own labor and materials. Unless otherwise provided for in the Contract, no material, or labor will be furnished by the County. 2.3 The Contractor will perform the work specified in the Contract according to standard industry practices and in conformity with state law. 2.4 The Contractor will complete its work in a timely manner and in accordance with the schedule agreed to by the parties. 2.5 The Contractor will confer with the County from time to time during the progress of the work. The Contractor will prepare and present status reports and other information that may be pertinent and necessary, or as may be requested by the County. SECTION 3. CONTRACT REPRESENTATIVES 3.1 The County and the Contractor will each have a contract representative. A party may change its representative upon providing written notice to the other party. The parties' representatives are as follows: County's Contract Supervisor Philip Morley, County Administrator PO Box 1220 Port Townsend, WA 98368 Jefferson County Hearing Examiner Contract Page 2 Contractor's Contract Representative Stephen K. Causseaux, Jr. 902 S. 10`h Street Tacoma, WA 98405 SECTION 4. COMPENSATION 4.1 A description of the compensation to be paid to the Contractor is set forth in Exhibit B: Compensation, which is attached to the Contract and incorporated by this reference. 4.2 The total amount payable under the Contract by the County to the Contractor in no event will exceed $35,000 per year. 4.3 Unless otherwise provided in the Contract, the Contractor may submit an invoice to the County Administrator once a month for payment of work actually completed to date. Subject to the other provisions of the Contract, then County generally will pay such an invoice within 30 days of receiving it. 4.4 The Contractor will be paid only for work expressly authorized in the Contract. 4.5 The Contractor will not be entitled to payment for any services that were performed prior to the effective date of the Contract or after its termination, unless a provision of the Contract expressly provides otherwise. 4.6 If the Contractor fails to perform any substantial obligation and the failure has not been cured within 10 days following notice from the County, the County may, in its sole discretion and upon written notice to the Contractor, withhold all monies due the Contractor, without penalty, until such failure to perform is cured. SECTION 5. AMENDMENTS AND CHANGES IN WORK 5.1 In the event of any errors or omissions by the Contractor in the performance of any work required under the Contract, the Contractor will make all necessary corrections without additional compensation. All work submitted by the Contractor will be certified by the Contractor and checked by the Contractor for errors and omissions. The Contractor will continue to be responsible for the accuracy of work even after the work is accepted by the County. 5.2 In order to be effective, any Contract renewal, amendment or modification must be in writing, be signed by both parties and be attached to the Contract. Work under a renewal, Jefferson County Hearing Examiner Contract Page 3 an amendment or a modification may not commence until the renewal, amendment or modification has been approved by the County and has become effective. SECTION 6. HOLD HARMLESS AND INDEMNIFICATION 6.1 The Contractor will hold harmless, indemnify and defend the County, its officers, officials, employees and agents, from and against any and all claims, actions, suits, liability, loss, expenses, damages and judgments of any nature whatsoever, including reasonable costs and attorneys' fees in defense thereof, for injury, sickness, disability or death to persons or damage to property or business, caused by or arising out of the Contractor's acts, errors or omissions in the performance of the Contract. Provided, however, that the Contractor's obligation under this provision will not extend to injury, sickness, disability, death or damage caused by or arising out of the sole negligence of the County, its officers, officials, employees or agents. 6.2 With regard to any claim against the County, its officers, officials, employees and agents by any employee of the Contractor, subcontractor, anyone directly or indirectly employed by any of them, or anyone for whose acts any of them maybe liable, the indemnification obligation under this Section will not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for the Contractor or subcontractor under workers' compensation acts, disability benefit acts or other employee benefit acts. It is clearly agreed and understood by the parties to the Contract that the Contractor expressly waives any immunity the Contractor might have had under such laws. By executing the contract the Contractor acknowledges that the foregoing waiver has been mutually negotiated by the parties and that the provisions of this Section will be incorporated, as relevant, into any contract the Contractor makes with any subcontractor or agent performing work under the Contract. 6.3 The Contractor's obligations under these provisions include, but are not limited to, investigating, adjusting and defending all claims alleging loss from action, error or omission, or breach of any common law, statutory or other delegated duty by the Contractor, the Contractor's employees, agents or subcontractors. SECTION 7. INSURANCE 7.1 Professional Legal Liability. The Contractor, if it is a licensed professional, will maintain professional legal liability or professional errors and omissions coverage appropriate to the Contractor's profession. The coverage will have a limit of not less than $1 million per occurrence. The coverage will apply to liability for a professional error, act or omission arising out of the Contractor's services under the Contract. The coverage will not exclude bodily injury or property damage. The coverage will not exclude hazards related to the work rendered as part of the Contract. Jefferson County Hearing Examiner Contract Page 4 7.2 Workers' Compensation and Employer Liability. The Contractor will maintain workers' compensation insurance as required by Title 51, Revised Code of Washington, and will provide evidence of coverage to the Jefferson County Risk Management Division. If the Contract is for over $50,000, then the Contractor will also maintain employer liability coverage with a limit of not less than $1 million. 7.3 Commercial General Liability. The Contractor will maintain commercial general liability for bodily injury, personal injury and property damage, subject to a limit of not less than $1 million per occurrence. The general aggregate limit will apply separately to the Contract and be no less than $2 million. The Contractor will provide commercial general liability coverage that does not exclude any activity to be performed in fulfillment of the Contract. Specialized forms specific to the industry of the Contractor will be deemed equivalent provided coverage is no more restrictive than would be provided under a standard commercial general liability policy, including contractual liability coverage. 7.4 Automobile Liability. The Contractor will maintain automobile liability insurance as follows (check ONE of the following options): ❑ The Contract will maintain commercial automobile liability insurance with a limit of not less than $1 million each accident combined bodily injury and property damage. The aggregate limit will be at least $2 million. Coverage will include 4owned, hired and non -owned automobiles. The Contractor will maintain automobile liability insurance or equivalent form with a limit of not less than $250,000 each accident combined bodily injury and property damage. The aggregate limit will be at least $500,000. If a personal lines automobile liability policy is used to meet this requirement, it must include a business rider and must cover each vehicle to be used in the performance of the Contract and the certificates of insurance must evidence that these conditions have been met. If the Contractor will use non -owned vehicles in performance of the Contract, the coverage will include owned, hired, and non -owned automobiles. 7.5 Miscellaneous Insurance Provisions. A. Any liability insurance the Contractor is required to obtain and maintain pursuant to this Agreement will be primary with respect to any insurance or self - insurance programs of which the County (deemed to include its elected and appointed officers, officials, employees, volunteers and agents) is a member or participant. The third party liability coverage provided to the County by its membership in a joint self - insurance liability program shall be non - contributory to any liability Jefferson County Hearing Examiner Contract Page 5 insurance the Contractor is required to obtain and maintain pursuant to this Agreement. B. The County, its departments, elected and appointed officials, employees, agents and volunteers shall be named as additional insureds by way of endorsement on the policies of liability insurance the Contractor is required to obtain and maintain pursuant to this Agreement. This provision may be waived for the insurance required under Section 7.1 of this Agreement. Contractor shall, for each such required insurance policy, provide a Certificate of Insurance, with true and complete copies of all endorsements attached, evidencing all required coverages, limits, deductibles and/or self - insured retentions and evidencing the County's status as an additional insured. C. When such coverage is required, the Contractor's commercial general liability insurance and automobile liability insurance will contain no specific limitations on the scope of protection afforded to the County as an additional insured. D. Any failure to comply with reporting provisions of the policies will not affect coverage provided to the County, its officers, officials, employees and agents. E. The Contractor's insurance will apply separately to each insured against whom claim is made or suit is brought, subject to the limits of the insurer's liability. F. The Contractor will include all subcontractors as insurers under its policies or will furnish separate certificates and endorsements for each subcontractor. All coverage for subcontractors will be subject to all of the requirements stated in these provisions. G. The insurance limits mandated for any insurance coverage required by the Contract are not intended to be an indication of exposure, nor are they limitations on indemnification. H. The Contractor will maintain all required policies in force from the time services commence until services are completed. Certificates, policies and endorsements scheduled to expire before completion of services will be renewed before expiration. If the Contractor's liability coverage is written as a claims -made policy, then the Contractor must evidence the purchase of an extended - reporting period or "tail" coverage for a three year period after completion of the services. I. Contractor's non - compliance with the terms and conditions imposed upon it by Section 7 of this Contract shall be grounds for the County to withhold compensation otherwise due and owing to the Contractor. Jefferson County Hearing Examiner Contract Page 6 7.6 Verification of Coverage and Acceptability of Insurers. A. The Contractor will place insurance with insurers licensed to do business in the State of Washington and having A.M. Best company ratings of no less than A- VII, with the exception that excess and umbrella coverage used to meet the requirements for limits of liability or gaps in coverage need not be placed with insurers or reinsurers licensed in the State of Washington. B. The Contractor will furnish the County with properly executed certificates of insurance or a signed policy endorsement which will clearly evidence all insurance required in this Section within 10 days after the effective date of the Contract. The certificate(s) will, at a minimum, list limits of liability and coverage. The certificates(s) will provide that the underlying insurance contract may not be canceled, or allowed to expire, except on 30 -days' prior written notice to the County of cancellation or changes must be amended so as not to negate the intent of this provision. D. Certificates of insurance will show the certificate holder as Jefferson County and indicate "care of the appropriate County's contract representative, per Section 3.1 of this contract. The address of the certificate holder will be shown as the current address of the appropriate County office or department. E. The Contractor will request that the Washington State Department of Labor and Industries Workers Compensation Representative send written verification to the Jefferson County that the Contractor is currently paying workers' compensation. F. Written notice of cancellation or change will be made to the County at the following address: Jefferson County Administrator PO Box 1220 Port Townsend, WA 98368 G. The Contractor or its broker will provide a copy of all insurance policies specified in the Contract upon request of the Jefferson County Risk Manager. SECTION 8. TERMINATION 8.1 The County may terminate the Contract in whole or in part whenever the County determines, in its sole discretion that such termination is in the best interests of the County. The County may terminate the Contract upon giving the Contractor 10 -days' written notice. In that event the County will pay the Contractor for all costs incurred by the Contractor in performing the Contract up to the date of such notice, subject to the other provisions of the Contract. Jefferson County Hearing Examiner Contract Page 7 8.2 If funding for the underlying project or matter is withdrawn, reduced or limited in any way after the Contract is signed or becomes effective, the County may immediately terminate the Contract notwithstanding any other termination provision in the Contract. Termination under this provision will be effective upon the date specified in the written notice of termination sent by County to the Contractor. No costs incurred after the effective date of the termination will be paid. 8.3 If the Contractor breaches any of its obligations under the Contract, and fails to cure the breach within 10 days of written notice to do so by the County, the County may terminate the Contract. In that event, the County will pay the Contractor only for the costs of services accepted by the County. Upon such termination, the County, at its discretion, may obtain performance of the work elsewhere, and the Contractor will bear all costs and expenses incurred by the County in completing the work and all damages sustained by the County by reason of the Contractor's breach. SECTION 9. ASSIGNMENT, DELEGATION AND SUBCONTRACTING 9.1 The Contractor will perform under the Contract using only its bona fide employees or agents, and the obligations and duties of the Contractor under the Contract will not be assigned, delegated or subcontracted to any other person or firm without the prior express written consent of the County. 9.2 The Contractor warrants that it has not paid, nor has it agreed to pay, any company, person, partnership or firm, other than a bona fide employee working exclusively for Contractor, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of the Contract. SECTION 10. INDEPENDENT CONTRACTOR 10.1 The Contractor's services will be fumished by the Contractor as an independent contractor and not as an agent, an employee or a servant of the County. The Contractor specifically has the right to direct and control Contractor's own activities in providing the agreed services in accordance with the specifications set out in the Contract. The Contractor shall perform the contracted work. Any designee shall have prior County approval to substitute for the contracted representative 10.2 The Contractor acknowledges that the entire compensation for the Contract is set forth in the compensation provisions of the Contract and the Contractor is not entitled to any County benefits, including, but not limited to: vacation pay; holiday pay; sick leave pay; medical, dental or other insurance benefits; fringe benefits; or any other rights or privileges afforded to Jefferson County employees. Jefferson County Hearing Examiner Contract Page 8 10.3 The Contractor will have and maintain complete responsibility and control over all of its subcontractors, employees, agents and representatives. No subcontractor, employee, agent or representative of the Contractor will be or be deemed to be, or act or purport to act, as an employee, agent or representative of the County. SECTION 11. NONDISCRIMINATION The Contractor, its assignees, delegates or subcontractors will not discriminate against any person in performance of any of its obligations under the Contract on the basis of race, color, creed, religion, national origin, age, sex, marital status, veteran status or the presence of any disability. SECTION 12. OWNERSHIP OF MATERIALS/WORKS PRODUCED 12.1 All reports, drawings, plans, specifications, all forms of electronic media, and data and documents produced in the performance of the work under the Contract will be "works for hire" as defined by the U.S. Copyright Act of 1976 and will be owned by the County. Ownership includes the right to copyright, patent, and register, and the ability to transfer these rights. 12.2 An electronic copy of all word processing documents will be submitted to the County upon request or at the end of the job using the word processing program and version specified by the County. SECTION 13. PATENT /COPYRIGHT INFRINGEMENT 13.1 The Contractor will hold harmless, indemnify and defend the County, its officers, officials, employees and agents, from and against any claimed action, cause or demand brought against the County, where such action is based on the claim that information supplied by the Contractor or subcontractor infringes any patent or copyright. The Contractor will be notified promptly in writing by the County of any notice of such claim. SECTION 14. DISPUTES 14.1 Differences, disputes and disagreements between the Contractor and the County arising under or out of the Contract will be brought to the attention of the County at the earliest possible time so that the matter may be settled or other appropriate action promptly taken. Any dispute relating to the quality or acceptability of performance or compensation due the Contractor will be decided by the County Administrator. All rulings, orders, instructions and decisions of the County Administrator will be final and conclusive. SECTION 15. CONFIDENTIALITY 15.1 The Contractor, its employees, subcontractors and their employees will maintain the confidentiality of all information provided by the County or acquired by the Contractor in Jefferson County Hearing Examiner Contract Page 4 performance of the Contract, except upon the prior express written consent of the County or upon an order entered by a court of competent jurisdiction. The Contractor will promptly give the County Administrator written notice of any judicial proceeding seeking disclosure of such information, as well as any contacts by citizens, proponents or interested parties as to matters before the contractor. The County is a political subdivision of the State of Washington and as such is subject to Ch. 42.56 RCW, the Public Records Act, which requires disclosure of non - exempt documents and records to a person or entity that requests such documents or records. SECTION 16. CHOICE OF LAW, JURISDICTION AND VENUE 16.1 The Contract will be construed as having been made and delivered within the State of Washington, and it is agreed by each party that the Contract will be governed by the laws of the State of Washington, both as to its interpretation and performance. 16.2 Any action of law, suit in equity or other judicial proceeding arising under or out of the Contract may be instituted and maintained only in a court of competent jurisdiction. SECTION 17. MISCELLANEOUS 17.1 No Waiver. The parties agree that the excuse or forgiveness of performance, or waiver of any provisions of the Contract, does not constitute a waiver of such provision or future performance, or prejudice the right of the waiving party to enforce any of the provisions of the Contract at a later time. 17.2 Tax Payments. The Contractor will pay all applicable federal, state and local taxes, fees (including licensing fees) and other amounts. 17.3 Personnel Removal. The Contractor agrees to remove immediately any of its subcontractors, employees, agents or representatives from assignment to perform services under the Contract upon receipt of a written request to do so from the County Administrator. 17.4 Legal Compliance. The Contractor and its subcontractors, employees, agents and representatives will comply with all applicable federal, state and local laws, rules and regulations in their performance under the Contract. The Contractor shall be entitled to seek legal advice from the Jefferson County Prosecuting Attorney or his or her designee to the extent that the Prosecuting Attorney or his or her designee can provide such legal advice in a manner consistent with the applicable rules governing a lawyer's conduct. 17.5 Records Inspection and Retention. The County may, at reasonable times, inspect the books and records of the Contractor relating to the performance of the Contract. The Contractor will retain for audit purposes all Contract - related records for at least six years after termination of the Contract. Jefferson County Hearing Examiner Contract Page 10 17.6 Successors and Assigns. The County, to the extent permitted by law, and the Contractor each bind themselves, their partners, successors, executors, administrators and assigns to the other party to the Contract and to the partners, successors, administrators and assigns of such other party in respect to all covenants to the Contract. 17.7 Severability. If a court of competent jurisdiction holds any provision of the Contract to be illegal, invalid or unenforceable, in whole or in part, the validity of the remaining provisions will not be affected, and the parties' rights and obligations will be construed and enforced as if the Contract did not contain the particular provision held to be invalid. If any provision of the Contract conflicts with any statutory provision of the State of Washington, the provision will be deemed inoperative to the extent of the conflict or modified to conform to statutory requirements. 17.8 Entire Agreement. The parties acknowledge that the Contract is the complete expression of their agreement regarding the subject matter of the contract. Any oral or written representations or understandings not incorporated in the Contract are specifically excluded. 17.9 Notices. Any notices will be effective if personally served upon the other party or if mailed by registered or certified mail, return receipt requested, to the addresses set out in the contract representative's provision of the Contract. Notice may also be given by facsimile with the original to follow by regular mail. Notice will be deemed to be given three days following the date of mailing, or immediately if personally served. For service by facsimile, service will be effective at the beginning of the next working day. IN WITNESS WHEREOF: Jefferson County and the Contractor have signed this contract on the date noted: JEFFERSON COUNTY John Austin, Chairman Date: Attest/Authenticated: Carolyn Avery, Deputy Clerk of the Board Date: CONWepnhenK. aJ. Date: 30 wt Approved as to Form Only: 0,44 &7-� David Alvarez, Deputy Prosecuting Attorney Date: — 1 Jefferson County Hearing Examiner Contract EXHIBIT A: DESCRIPTION OF SERVICES Page 11 The Hearing Examiner shall conduct administrative and quasi - judicial hearings on appeals of departmental decisions, a variety of land use or building permits within the jurisdiction of Jefferson County. The Examiner shall render decisions on such matters or provide recommendations to the Jefferson County Board of Commissioners consistent with JCC Title 15, 17, 18 and any development agreements executed previously or in the future by the County through Ch. 36.708 RCW. The Hearing Examiner is an independent contractor and not an employee of Jefferson County. Regular public hearings will be scheduled on the second and fourth Fridays of each month. Additional hearings may be scheduled as necessary. An average of approximately three cases is scheduled per hearing. The Hearing Examiner's other duties shall include: • Administrative responsibility over deputy or pro - tempore Hearing examiners. • Production of a written annual report, which shall contain a summary of decisions rendered within the Hearing Examiner system. • Recommendations for improving the Hearing Examiner system. • Development of rules governing the conduct within the Hearing Examiner system in consultations with The Jefferson County Prosecuting Attorney's Office and Department of Community Development. • Other observations and recommendations pertaining to land use policy or legislation. Pursuant to JCC Title 18 and resolution of the BoCC on Hearing Examiner Rules of Procedure (Ord. No. 01- 0203 -03) now codified at JCC §18.05.085, the examiner is required to: • Visit each site prior to rendering a decision or recommendation, unless the County informs the Contractor otherwise, i.e., that a site visit is either not required or not desired by the parties involved. • Render decisions or recommendations within 14 days of the close of the record on each matter. A copy of which must be sent to Jefferson County Community Development in both hard copy and Microsoft Word format. Jefferson County Hearing Examiner Contract EXHIBIT B: COMPENSATION Page 12 Contractor will be paid an hourly rate of $120.00 for examiners and $50.00 for secretarial plus miscellaneous expenses for travel, ferry, parking, etc. and is not to exceed $35,000 per year for the period of May 1, 2014 to April 30, 2019. This annual amount may be exceeded with prior approval of the County Administrator.