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2022-12-06 City Council - SP Agenda-3334Op E D o Agenda Edmonds City Council tnl. }nyo SPECIAL MEETING COUNCIL CHAMBERS 250 5TH AVE NORTH, EDMONDS, WA 98020 DECEMBER 6, 2022, 6:00 PM PERSONS WISHING TO JOIN THIS MEETING VIRTUALLY IN LIEU OF IN -PERSON ATTENDANCE FOR THE PURPOSE OF PROVIDING AUDIENCE COMMENTS CAN CLICK ON OR PASTE THE FOLLOWING ZOOM MEETING LINK INTO A WEB BROWSER USING A COMPUTER OR SMART PHONE: HTTPS://ZOOM. US/J/95798484261 OR COMMENT BY PHONE: US: +1 253 215 8782 WEBINAR ID: 957 9848 4261 THOSE COMMENTING USING A COMPUTER OR SMART PHONE ARE INSTRUCTED TO RAISE A VIRTUAL HAND TO BE RECOGNIZED. PERSONS WISHING TO PROVIDE AUDIENCE COMMENTS BY DIAL -UP PHONE ARE INSTRUCTED TO PRESS *9 TO RAISE A HAND. WHEN PROMPTED, PRESS *6 TO UNMUTE. WHEN YOUR COMMENTS ARE CONCLUDED, PLEASE LEAVE THE ZOOM MEETING AND OBSERVE THE REMAINDER OF THE MEETING ON THE COUNCIL MEETINGS WEB PAGE. REGULAR COUNCIL MEETINGS BEGINNING AT 7:00 PM ARE STREAMED LIVE ON THE COUNCIL MEETING WEBPAGE, COMCAST CHANNEL 21, AND ZIPLY CHANNEL 39. "WE ACKNOWLEDGE THE ORIGINAL INHABITANTS OF THIS PLACE, THE SDOHOBSH (SNOHOMISH) PEOPLE AND THEIR SUCCESSORS THE TULALIP TRIBES, WHO SINCE TIME IMMEMORIAL HAVE HUNTED, FISHED, GATHERED, AND TAKEN CARE OF THESE LANDS. WE RESPECT THEIR SOVEREIGNTY, THEIR RIGHT TO SELF-DETERMINATION, AND WE HONOR THEIR SACRED SPIRITUAL CONNECTION WITH THE LAND AND WATER. - CITY COUNCIL LAND ACKNOWLEDGMENT 1. CALL TO ORDER 2. ROLL CALL 3. APPROVAL OF THE AGENDA 4. AUDIENCE COMMENTS (3-MINUTE LIMIT PER PERSON) — LIMITED TO MATTERS LISTED UNDER COUNCIL BUSINESS ONLY 5. COUNCIL BUSINESS 1. City Attorney Contract Extension 2023 (40 min) 2. Resolution of Retaining Rights of Self -Determination of Land Use (5 min) ADJOURN Edmonds City Council Agenda December 6, 2022 Page 1 5.1 City Council Agenda Item Meeting Date: 12/6/2022 City Attorney Contract Extension 2023 Staff Lead: Council Department: City Council Preparer: Beckie Peterson Background/History The current contract between Lighthouse Law Group (Lighthouse) and the City of Edmonds is in the final year of the three-year term and expires on December 31, 2022. Council must take action to establish a one-year contract with Lighthouse commencing on January 1, 2023 to provide additional time for Council to consider options for legal representation and complete its due diligence in assessing the pricing and quality of Lighthouse's services relative to alternative providers. Recommendation Consider the updated contract draft developed by the Council work group, reflecting input provided by Council and the Madrona Law Group (Madrona), propose amendments as deemed appropriate and conduct a vote as to whether to approve the 2023 contract for the provision of city attorney services by Lighthouse. Narrative In 2019, Council approved the current contract with Lighthouse for legal representation for the City of Edmonds. At that time, Council concluded -based on direct input obtained from individual Councilmembers and members of the Administration -there was general satisfaction with the quality of the legal work being performed by Lighthouse. There was also general consensus by internal clients that the city is receiving good value for its investment via the flat rate billing structure by Lighthouse. For these reasons, a new three-year contract with Lighthouse was entered into by the city on December 31, 2019. Since the city has not requested bids for legal representation for the past two contract cycles with Lighthouse, it is prudent that this step be taken now to ensure the city is continuing to receive strong value. This 12-month extension will provide adequate time for Council to do its due diligence in determining the optimal course to obtain legal representation for the city. The Council work group will assemble information needed by Council to determine which of three options the best course for the city is: consider an alternative contract legal services provider, continue to contract with Lighthouse or to hire an in-house city attorney. NOTE: in conducting its due diligence work, the Council work group will collect and distribute information to assist full Council in making determinations as to the best course of action regarding how Edmonds obtains city attorney services and will make no recommendations or decisions in this regard as a sub -group. On November 22, 2022, Council was presented with information regarding two potential options for Packet Pg. 2 5.1 contracting with Lighthouse for 2023 city attorney services: one option was to continue with the "flat monthly rate" billing structure and the other was a monthly retainer/hourly rate contract structure, which is the more traditional contracted city attorney billing structure. After considering and discussing the information presented, Council voted for the work group to abandon the retainer/hourly rate option and proceed in finalizing the flat monthly rate version to bring to Council on December 6, 2022 for final review and a vote. Additionally, Council approved on November 22 the expenditure of up to $2500.00 for assistance by the Madrona Law Group for review of the final contract version prior to it being brought back to Council. See attached minutes from the November 22 Council meeting. On November 23, 2022, Council submitted a contract amendment to Madrona for an updated, independent legal review of the proposed 2023 Lighthouse contract. On November 29, 2022, Madrona provided Council the results of its review. Madrona's review found the contract language was consistent with Rules of Professional Conduct (RPC). However, the review suggested several enhancements, deletions and additions to the proposed contract language, which are incorporated into the updated contract draft. Attached are two versions of the proposed flat rate Lighthouse contract for 2023. The first version in markup format highlights all changes from the version presented to Council on November 22. The text in blue is changes suggested by Lighthouse and the text in red is changes suggested by Madrona. In all cases, Madrona has reviewed the changes suggested by Lighthouse. The second version is a "clean" copy of the same proposed flat rated contract with Lighthouse for ease of readability. Attachments: 2023 Ligthouse contract draft with markup of changes 2023 Lighthouse contract draft clean version E112222 city atty contract Draft Minutes Packet Pg. 3 5.1.a Proposed Lighthouse contract updated look back 7.5% increase AGREEMENT FOR CIVIL LEGAL SERVICES THIS AGREEMENT entered into between the City of Edmonds ("the City") and Lighthouse Law Group PLLC ("LIGHTHOUSE") effective January 1, 2023, is entered into in cons i eration of the terms and conditions set forth below, the parties agree as follows: 1. Services to be Provided. LIGHTHOUSE will serve as attorneys for the City on all civil legal matters assigned or referred to LIGHTHOUSE by the City during the term of this Agreement, and will perform all civil legal services for the City with the exception of litigation covered by the City's insurance pool, litigation defended under an accepted tender arrangement, and legal services related to the issuance of any municipal bond or similar security This is a nonexclusive agreement and the City at its sole discretion may engage *of al counsel regarding any service that is expected to be provided by LIGHTHOUSE. Examplh services expected to be provided by LIGHTHOUSE include, but are not limited to: 1.1 Preparing for and atten ' meetings of the City cil if applicable, as necessary or requested to do so; 1.2 Drafting ordinances, resolu ons, and deciV ' 1.3 Answering telephone calls from City elecals andstaff and providing general consultation on civil legal matters; 1.4 ending meetings with City st ncluding regular office hours if requested), the ayord/or Council MeinbersA civil legal matters; 1.5 AttendingWngs of oft li7rity boards and commissions, such as the Planning Board and Hearing'lWiner, when requested to do so; and 1.6 Negotiating with r parties other than in a litigation context, e.g., negotiating interlocal agree nts. Representing the City and its officials in litigation matters, provided, that in cases Representing the City and its officials have insurance coverage through WCIA or another insurer, LIGHTHOUSE will represent the City and its officials only until WCIA retained attorneys are actively handling the case or to the extent necessary to deal with non -covered claims or to provide consultation and coordination between the City and the WCIA retained attorneys; 1.8 Labor negotiation or arbitration; 1.9 Services related to local improvement districts; Packet Pg. 4 5.1.a Proposed Lighthouse contract updated look back 7.5% increase 1.10 Services related to taxation; 1.11 Services requiring expertise in CERCLA, MTCA, or other state or federal environmental cleanup laws; 1.12 Representing the City in administrative proceedings before another governmental unit (such as Boundary Review Board hearings, proceedings before the State Shoreline Hearings Board, or proceedings before the State Gro anagement Hearings Board); 1.13 Telecommunications services, including franchise leasing; and 1.14 Office hours at City Hall will be provided b)&LGfVHOU 2. Authorization for RPC 1.6(a) Purposes. The lawyers at LIGHTHOUSE shall be authorized to provide information to members of the public and/or the local media to facilitate a more informed public discourse related to the role of the city attdmey, the operation of the city, antor issues facing the city, particularly where the legality of city actions has been called into question, PROVIDED THAT, this permission to provide information does not apply to information communicated to the lawyers in confidence by duly authorized representatives of the client, AND FURTHER PROVIDED THAT, the lawyers will need to use their professional juc11%ent in determining when it would be appropriate to exercise this permission given the lawyers' other priorities and obligations to the city and the extent to which the information is li*,be�Ipfultothe public discourse. 3. Personnel Performing Services. Jeff Taraday wad attorney and shall have the primary responsibilit for attending City Council meetings and delegating work to other LIGHTHOUSE at eys as needed. Mr. Taraday may assign work to any attorney affiliated with LIGHTHOUSE sion of service by any non-L41-ITHOUSE attorney shall require prior approval by th ith notification provided to the Council of such assignment and approval. 4. Pa ent for Services. a. Except As provided in Section 4.b, below, during the year 2023, the City will pay LIGHTHOUSE for the services specified in Section 1 the sum of Fifty-eight Thousand 4 Dollars ($58,000.00) a month (the flat fee). Upon LIGHTHOUSE's receipt of all or any I ortion of the flat fed the funds are the property of LIGHTHOUSE and will not be placed in a trust account. This fee arrangement does not alter the City's right to terminate e client -lawyer relationship. b'Tf any of the Option Triggering Events described in Section 4.c, below, occur, LIGHTHOUSE shall have the option to convert the flat fee compensation arrangement described in Section 4.a, above, to an hourly compensation arrangement. If exercised by LIGHTHOUSE, this option will have the effect of applying the hourly rates deser-ibed-in Section 4.d, below to all of the work performed by LIGHTHOUSE, including work that was performed prior to the Option Triggering Event, subject to the retroactive billing cap described in Section 4.e, below. LIGHTHOUSE shall have the ability to exercise this option, if triggered, at any time after the Option Triggering Event occurs by sending written notice to the City of its decision to exercise the option. If the option is exercised, LIGHTHOUSE shall send the City invoices that reflect the additional hourly charges Packet Pg. 5 Proposed Lighthouse contract updated look back 7.5% increase owing after crediting the flat fee payments previously made by the City. Payments of the additional hourly charges shall be made by the City within 30 days of receipt of the invoice., exec€ those e*ems ^ie�t' ,4� ntesten�a and are retumed by the City with a written explanation of the cittestion or contest, within 9 .a.,. =s:4reeeipt of the invoice LIGHTHOUSE SE shall r-espond to stigh:qccgstio s or — „tests within n 15 days f fe eipt .f the City' s . , it4en expjq�gion. c. Any of the following shall constitute Option Triggering Events f r the purposes of triggering the option in Section 4.b, above: i. The City terminates or provides notice of an intent to terminate the Agreement with LIGHTHOUSE; ii. The City Council authorizes a contract with a firm other than LIGHTHOUSE to serve as City Attorney; o iii. The City hires an in-house Cit to y Section 7. Termination of the Agreement by LIG USE sha of constitute an tion Triggering Event. d. The hourly rates below shall apply to the hourly inv ices that will be paid by the City if LIGHTHOUSE exercises the option described in Section 4.b, above. • Jeff Taraday • Tom Brubaker • Mike Bradley • Sharon Cates • Patricia Taraday • Ange4"b" • Beth $354 $354 $354 OK $266 � 266 $266 IF $266 • any other LIGHTHOUSE attorney $266 I I e. If LIGHTHOUSE exercises the option described in Section 4.b, above, the total number of months that LIGHTHOUSE may convert retroactively to hourly billing is limited to not more than eight months, PROVIDED THAT retroactive billing shall not apply to any work performed prior toeary 1, 2023. 5. wards of Attorneys Fees. If the City prevails in a legal matter and the tribunal awards reaso Me attorneys fees to the City as the prevailing party, the hourly rates in Section 4.d, above shall Abe used as the basis for the of calculating and requesting such fee award. These rates shall also be used where the City is able to charge a third -party (e.g. a real estate developer) for work performed by LIGHTHOUSE. a. The ourly rates below will be used as a basis for the calculation and requesting of attorney's fees. • Jeff Taraday $354 • Tom Brubaker $354 • Mike Bradley $354 • Sharon Cates $266 Packet Pg. 6 5.1.a Proposed Lighthouse contract updated look back 7.5% increase • Patricia Taraday $266 • Angela Tinker $266 • Beth Ford $266 • any other LIGHTHOUSE attorney $266 Upon receipt of an attorneys' fee award, the City shall keep the entire award PROVIDED THAT in eases initiated by the G4y abatement actions, utility lien foreclosures, and other matters ;,,",causes of action for collection of a debt that are initiated by the City and where the amount to be recuperated by the City penalties or unpaid fees or debt is less than One Hundred Thousand Dollars, any attorneys' fee award shall be paid to LIGHTHOUSE. In the event LIGHTHOUSE exercises the option described in Section -34.b, any attorneys' fee awards provided to LIGHTHOUSE pursuant to this section shall be deducted from the remaining retroactive bill amounts due by the Cites 40M,10 6. The City will not be charged separately for normal clerical or secretarial work, t expense of which has been calculated into LIGHTHOUSF�' flat fee. In the event LIGHTHOUO exercises the option described in Section -34.b, invoices for retroactive billing shall not include normal clerical or secretarial work. Reimbursement will be made by the City for expenditures related to fees paid to a mediator, expert witness fees, court costs and fees, copying, postage, process service and courier costs. Other expenses shall be reimbur%&&hen authorized in advance b the City. 7. Billing. The City shall pay the am nt of the flat fee to LIG� HOUSE within five calendar days of the last day of the month for whiche legal services haY,e een rendered. It shall not be necessary for LIGHTHOUSE to send an invoice for the flat fee to be paid. For informational purposes-epAy, LIGHTHOUSE will send a detailed monthly description of the services rendered during the past month along with the amount t at those services would cost the City in the event those services4CCIDt ed on an hourly basis pur nt o Section 4.b, above. The City shall have fourteen days of the monthlv descri n of services to contest anv time entries LIGHTHOUSE shall hmdlLeven days to respond to the contest by providing additional information acceptthe considered final and described in If the Citv fails future invoices lion of the contest or to reject the response. If the City fails to tys of receiving the description of services, those time entries ;ted for the purposes of any future invoices provided under or reiect LIGHTHOUSE'S resnonse within seven days of under Section 4.b. If the Citv timel 4.c. If LIGHTHOUSE exercises the option in Section 4.b, above, then it shall invoice according to that section. 8. Term of Agreement. This Agreement shall commence on January 1, 2023 and shall remain in effect through December 31, 2023. The City may discharge LIGHTHOUSE at any time. LIGHTHOUSE may withdraw from representation of the City at any time, to the extent permitted by law and the Rules of Professional Conduct, upon 4 Packet Pg. 7 5.1.a Proposed Lighthouse contract updated look back 7.5% increase reason upon sixty (60) days written notice. In the event of termination, work in progress will be completed by LIGHTHOUSE if authorized by the City under terms acceptable to both parties. If completion of work in progress is not authorized or acceptable terms cannot be worked out, LIGHTHOUSE will submit all unfinished documents, reports, or other material to City and LIGHTHOUSE will be entitled to receive prorated payment for any and all satisfactory work completed prior to the effective date of termination. if the off etive da4e of to .,,.,inatio falls in the 9. Professional Liability Insurance. LIGHTHOUSE will maintain professional liability insurance throughout the duration of this Agreement in the mini m amount of $2,000,000. 10. Discrimination. LIGHTHOUSE agrees not to discr' ' at gainst any employee or applicant for employment or any other person in the performance is greement because of race, creed, color, national origin, marital status, sex, age, physic entalXnteontractor ory handicap, or other protected status, except where a bona fide occupational qualifixists. r 11. Independent Contractor. LIGHTHOUSE is an indepen with respect to the services to be provided under this Agreement. The City shall not be liable for, nor obligated to pay to LIGHTHOUSE, or any employee of LIGHTHOUSE, sick leave, vacation pay, overtime or any other benefit applicable to employees of the City, nor to pay or deduct affy social security, income tax, or other tax from the payments made to LIGHT -HOUSE which may arise as an incident of LIGHTHOUSE performing services for the City. The Cit all drbe obligated to pay industrial insurance for the services rendered by LIGHOUSE. 12. Ownership of Work Product. All opinions, data, materials, reports, memoranda, public records, and other uments developed by LIGHTHOUSE under this Agreement specifically for the City are the y of the City, shall be forwarded to the City at its request, and may be used by the City as e es fit. 13. Hold Harmless. HOUSE ag €es to indemnify, hold harmless, and defend the City, its elect,�d and appointed offic aployees and agents from and against any and all claims, ju ents or awards �f dama arising out of or resulting from the acts, errors or omissions of LIGHTHOUSE. The City agrees o indemnify, hold harmless, and defend LIGHTHOUSE, its members, employees, and appr ed sub -contractors (e.g. Special Counsel), from and against any and all claims, judgments or awards of damages, arising out of or resulting from the acts, errors or omissions of the City, its elected and appointed officials, employees and agents. To the extent necessary to fully fulfill these promises of indemnity, the parties waive their immunity under Title 51 RCW. � 14. Rules Of Professional Conduct. All services provided by LIGHTHOUSE under this Agreement will be performed in accordance with the Rules of Professional Conduct for attorneys established by the Washington Supreme Court. 15. Work for Other Clients. LIGHTHOUSE may provide other services for clients other than the City during the term of this Agreement, but will not do so where the same may constitute a conflict of interest as defined by the Rules of Professional Conduct unless the City, after full disclosure of Packet Pg. 8 5.1.a Proposed Lighthouse contract updated look back 7.5% increase the potential or actual conflict, consents in writing to the representation. Any potential conflicts shall be handled in accordance with the Rules of Professional Conduct referred to above. 16. Subcontracting or Assignment. LIGHTHOUSE may not assign or subcontract any portion of the services to be provided under this agreement without the express written consent of the City, PROVIDED THAT such consent shall not be unreasonably withheld, and FURTHER PROVIDED THAT by this Agreement, the City hereby consents to LIGHTHOUSE's subcontracting with the following Special Counsel: Mike Bradley, attorneys supervised by Mike Bradley, and/or the respective legal entities through which they perform their legal services. 17. Entire Agreement. This Agreement represents the entire in Lgr1a greement between the City and the LIGHTHOUSE, superseding all prior negotiations, representions or agreements, written or oral. This Agreement may be modified, amended, or added to, only by written instrument properly signed by both parties hereto. Date: Date: CITY OF EDMONDS LIGHTHOUSE LAW GROUP PLLC Mike Nelson Mayor ATTEST/AUTHENTICATED: Scott Passey City Clerk -ia Taraday ging ber I Packet Pg. 9 5.1.b Proposed Lighthouse contract updated look back 7.5% increase AGREEMENT FOR CIVIL LEGAL SERVICES THIS AGREEMENT entered into between the City of Edmonds ("the City") and Lighthouse Law Group PLLC ("LIGHTHOUSE") effective January 1, 2023, is entered into in cons i eration of the terms and conditions set forth below, the parties agree as follows: 1. Services to be Provided. LIGHTHOUSE will serve as attorneys for the City on all civil legal matters assigned or referred to LIGHTHOUSE by the City during the term of this Agreement, and will perform all civil legal services for the City with the exception of litigation covered by the City's insurance pool, litigation defended under an accepted tender arrangement, and legal services related to the issuance of any municipal bond or similar security. This is a nonexclusive agreement and the City at its sole discretion may engage of egal counsel regarding any service that is expected to be provided by LIGHTHOUSE. Example of such services expected to be provided by LIGHTHOUSE include, but are not limited to: 1.1 Preparing for and atten ' meetings of the City, cil if applicable, as necessary or requested to do so; 1.2 Drafting ordinances, resolu ons, and deciV ' 1.3 Answering telephone calls from City elecals andstaff and providing general consultation on civil legal matters; 1.4 ending meetings with City st ncluding regular office hours if requested), the ayord/or Council MeinbersA civil legal matters; 1.5 AttendingWngs of oft li7rity boards and commissions, such as the Planning Board and Hearing'lWiner, when requested to do so; and 1.6 Negotiating with r parties other than in a litigation context, e.g., negotiating interlocal agree nts. Representing the City and its officials in litigation matters, provided, that in cases Representing the City and its officials have insurance coverage through WCIA or another insurer, LIGHTHOUSE will represent the City and its officials only until WCIA retained attorneys are actively handling the case or to the extent necessary to deal with non -covered claims or to provide consultation and coordination between the City and the WCIA retained attorneys; 1.8 Labor negotiation or arbitration; 1.9 Services related to local improvement districts; Packet Pg. 10 5.1.b Proposed Lighthouse contract updated look back 7.5% increase 1.10 Services related to taxation; 1.11 Services requiring expertise in CERCLA, MTCA, or other state or federal environmental cleanup laws; 1.12 Representing the City in administrative proceedings before another governmental unit (such as Boundary Review Board hearings, proceedings before the State Shoreline Hearings Board, or proceedings before the State Gro anagement Hearings Board); 1.13 Telecommunications services, including franchise leasing; and 1.14 Office hours at City Hall will be provided b)&LGfVHOU 2. Authorization for RPC 1.6(a) Purposes. The lawyers at LIGHTHOUSE shall be authorized to provide information to members of the public and/or the local media to facilitate a more informed public discourse related to the role of the city attdrney, the operation of the city, antor issues facing the city, particularly where the legality of city actions has been called into question, PROVIDED THAT, this permission to provide information does not apply to information communicated to the lawyers in confidence by duly authorized representatives of the client, AND FURTHER PROVIDED THAT, the lawyers will need to use their professional juc11%ent in determining when it would be appropriate to exercise this permission given the lawyers' other priorities and obligations to the city and the extent to which the information is li*,be�Ipfultothe public discourse. 3. Personnel Performing Services. Jeff Taraday wad attorney and shall have the primary responsibilit for attending City Council meetings and delegating work to other LIGHTHOUSE at eys as needed. Mr. Taraday may assign work to any attorney affiliated with LIGHTHOUSE sion of service by any non-L4HTHOUSE attorney shall require prior approval by th ith notification provided to the Council of such assignment and approval. 4. Pa ent for Services. a. Except As provided in Section 3.b, below, during the year 2023, the City will pay LIGHTHOUSE for the services specified in Section 1 the sum of Fifty-eight Thousand Dollars ($58,000.00) a month (the flat fee). Upon LIGHTHOUSE's receipt of all or any portion of the flat fee,, the funds are the property of LIGHTHOUSE and will not be A%6� placed in a trust account. This fee arrangement does not alter the City's right to terminate the client -lawyer relationship. b. If any of the Option Triggering Events described in Section 4.c, below, occur, LIGHTHOUSE shall have the option to convert the flat fee compensation arrangement described in Section 4.a, above, to an hourly compensation arrangement. If exercised by LIQHTHOUSE, this option will have the effect of applying the hourly rates in Section 4.d, below to all of the work performed by LIGHTHOUSE, including work that was performed prior to the Option Triggering Event, subject to the retroactive billing cap described in Section 4.e, below. LIGHTHOUSE shall have the ability to exercise this option, if triggered, at any time after the Option Triggering Event occurs by sending written notice to the City of its decision to exercise the option. If the option is exercised, LIGHTHOUSE shall send the City invoices that reflect the additional hourly charges Packet Pg. 11 5.1.b Proposed Lighthouse contract updated look back 7.5% increase owing after crediting the flat fee payments previously made by the City. Payment of the additional hourly charges shall be made by the City within 30 days of receipt of the invoice. c. Any of the following shall constitute Option Triggering Events for the purposes of triggering the option in Section 4.b, above: i. The City terminates or provides notice of an intent to terminate the Agreement with LIGHTHOUSE; ii. The City Council authorizes a contract with a firm other that�LIGHTHOUSE to serve as City Attorney; or 4f iii. The City hires an in-house City Attorney. iv. The City rejects LIGHTHOUSE'S response tq an invoice contest as described in Section 7. Termination of the Agreement by LIGHTHO11 not constitute an Option Triggering Event. d. The hourly rates below shall apply to the hourly invo'ces that will be paid by ttfe City if LIGHTHOUSE exercises the option described in Sec 4.b, above. • Jeff Taraday $354 • Tom Brubaker $354 • Mike Bradley $354 • Sharon Cates $266 • Patricia Taraday $266 • Angela Tinker $266 • Beth Ford $266 • any other LIGHTHOUSE e. If LIGHTHOUSE exercises the op'Tion described in Section 4.b, above, the total number of months that LIGHTHOUSE may convert retroactively to hourly billing is limited to notnore than eight months, PROVIDED THAT retroactive billing shall not apply to any "formed prior to January 1, 2023. work per IF 5. Awards of Attorneys Fees. If the City prevails in a legal matter and the tribunal awards reasonable attorneys fees to the City jas the prevailing party, the hourly rates in Section 4.d, above shall be used as the 7 asis for calculating and requesting such fee award. These rates shall also be used where the City is able to charge a third -party (e.g. a real estate developer) for work performed by LIGHTHOUSE. a.�The hourlvAtes below will be used as a basis for the calculation and reauestinii of • Jeff Taraday $354 • Tom Brubaker $354 • Mike Bradley $354 • Sharon Cates $266 • Patricia Taraday $266 • Angela Tinker $266 • Beth Ford $266 • any other LIGHTHOUSE attorney $266 Packet Pg. 12 5.1.b Proposed Lighthouse contract updated look back 7.5% increase Upon receipt of an attorneys' fee award, the City shall keep the entire award PROVIDED THAT in abatement actions, utility lien foreclosures, and other causes of action for collection of a debt that are initiated by the City and where the amount to be recuperated by the City in penalties or unpaid fees or debt is less than One Hundred Thousand Dollars, any attorneys' fee award shall be paid to LIGHTHOUSE. In the event LIGHTHOUSE exercises the option described in Section 4.b, any attorneys' fee awards provided to LIGHTHOUSE pursuant to this sections all be deducted from the remaining retroactive bill amounts due by the City. 6. The City will not be charged separately for normal clerical or secretarial work, the expense of which has been calculated into LIGHTHOUSE's flat fee. In tlm event LIGHTHOUSE exercises the option described in Section 4.b, invoices for retroactive bill g shall not include normal clerical or secretarial work. Reimbursement will be made by the C' r expenditures related to fees paid to a mediator, expert witness fees, court costs and fees, cowffg, p stage, process service and courier costs. Other expenses shall be reimbursed when authoffed in allc ce by the CityYnfive 7. Billing. The City shall pay the amount of4he flat fee to LIGHTHOUSE wicalendar days of the last day of the month for which the legal services have been rendered. It shall not be necessary for LIGHTHOUSE to send an invoice for the flat fee to be paid. For informational purposes, LIGHTHOUSE will send a detailed monthly description of the services rendered during the past month along with the amount that those services would cost the City in the event those services are billed on an hourly basis pursuant to Section 4.b, above. The City shall have fourteen days from receipt of the monthly description of services to conte�St any time entries contained in that description of services that appear to be excessive. If any time efitries are contested, LIGHTHOUSE shall have seven days to respond to the contest by providing additional information to the City to justify the amount of ' e billed and/or by agreeing to convert some of the time from billable to nonbillable. The ' shall have Cseven days from receipt of LIGHTHOUSE'S response to accept the response as the f esolution of the contest or to reject the response. If the City fails to contest time entries wtnThin en days of receiving the description of services, those time entries shall be considered final and u ntested for thep`oses of any future invoices provided under Section 4.b. If the City fails to accept or r ect LIGHTHOUSE'S response within seven days of receipt, then LIGHTHOUSE'S responselall be considered the final resolution of the contest for the purposes of any future invoices provided under S-ftion 4.b. If the City timely rejects LIGHTHOUSE'S response, then any still unresolved time entries shall not be billable for the purposes of Section 4.b and the City's rejection shall be considered an Option Triggering Event as described in Section 4.c. If LIGHTHOUSE exercises the option in Section 4.b, above, then it shall invoice according to that section. 8. Term of Aaffnient. This Agreement shall commence on January 1, 2023 and shall remain in effect through December 31, 2023. The City may discharge LIGHTHOUSE at any time. LIGHTHOUSE may withdraw from representation of the City at any time, to the extent permitted by law and the Rules of Professional Conduct, upon sixty (60) days written notice. In the event of termination, work in progress will be completed by LIGHTHOUSE if authorized by the City under terms acceptable to both parties. If completion of work in progress is not authorized or acceptable terms cannot be worked out, LIGHTHOUSE will submit all unfinished documents, reports, or other material to City and LIGHTHOUSE will be entitled to receive prorated payment for any and all satisfactory work completed prior to the effective date of termination. 4 Packet Pg. 13 5.1.b Proposed Lighthouse contract updated look back 7.5% increase 9. Professional Liability Insurance. LIGHTHOUSE will maintain professional liability insurance throughout the duration of this Agreement in the minimum amount of $2,000,000. 10. Discrimination. LIGHTHOUSE agrees not to discriminate against any employee or applicant for employment or any other person in the performance of this Agreement because of race, creed, color, national origin, marital status, sex, age, physical, mental or sensory handicap, or other protected status, except where a bona fide occupational qualification exist 11. Independent Contractor. LIGHTHOUSE is an independent contractor with respect to the services to be provided under this Agreement. The City shall not be liable for, nor obligated to pay to LIGHTHOUSE, or any employee of LIGHTHOUSE, sick leave, vacation pay, overtime or any other benefit applicable to employees of the City, nor to pay or deduct any social security, income tax, or other tax from the payments made to LIGHTHOUS which may arise as an incident of LIGHTHOUSE performing services for the City. The C' a of be obligated to pay industrial insurance for the services rendered by LIGHTHOUS 12. Ownership of Work Product. All opinionedata, materials, reports, memora rapublic records, and other documents developed by LIGHTHOUSE under this Agreement specifically for the City are the property of the City, shall be forwarded to the City at its request, and may be used by the City as the City sees fit. 13. Hold Harmless. LIGHTHOUSE a ees to indemnify, hold less, and defend the City, its elected and appointed officials, employee d agents from and a cost any and all claims, judgments or awards of damages, arising o of or resulting from the acts, errors or omissions of LIGHTHOUSE. The City agrees to indemnify, hold harml%ss, and defend LIGHTHOUSE, its members, employees, and approved sub -contractors (e.g. Special Counsel), from and against any and all claims, judgments or awards of damages, arising out of or resulting from the acts, errors or omissions of th2City, its elected and appointed officials, employees and agents. To the extent necessary to fffly Nese promises of indemnity, the parties waive their immunity under Title 51 RCW. ft 14. Rules of Professional C duct. All services provided by LIGHTHOUSE under this Agreement will be performed ance with the Rules of Professional Conduct for attorneys JS established by the Washingtoleme Court. f 15. , Work for Other Clients. LIGHTHOUSE may provide other services for clients other than the City during the term of this Agreement, but will not do so where the same may constitute a conflict of interes fined by the Rules of Professional Conduct unless the City, after full disclosure of the potentia actual conflict, consents in writing to the representation. Any potential conflicts shall be handled in cordance with the Rules of Professional Conduct referred to above. 16. Subcontracting or Assignment. LIGHTHOUSE may not assign or subcontract any portion of the services to be provided under this agreement without the express written consent of the City, PROVIDED THAT such consent shall not be unreasonably withheld, and FURTHER PROVIDED THAT by this Agreement, the City hereby consents to LIGHTHOUSE's subcontracting with the following Special Counsel: Mike Bradley, attorneys supervised by Mike Bradley, and/or the respective legal entities through which they perform their legal services. Packet Pg. 14 5.1.b Proposed Lighthouse contract updated look back 7.5% increase 17. Entire Agreement. This Agreement represents the entire integrated agreement between the City and the LIGHTHOUSE, superseding all prior negotiations, representations or agreements, written or oral. This Agreement may be modified, amended, or added to, only by written instrument properly signed by both parties hereto. Date: Date: CITY OF EDMONDS LIGHTHOUSE LAW GROUAPLLC Mike Nelson Patricia Taraday Iff Packet Pg. 15 5.1.c Mayor Pro Tem Olson continued, she was hearing from the community that they were looking for mitigation, but she did not feel this mitigation would deliver anything that made them happy. In fact, the City needs to double down on the design standards and other amenities that will make a difference for each project. She was personally committed, felt staff was committed and heard a lot of care from the developer about delivering something that will be a real positive for the neighbors. She was happy for the communications that have occurred between staff, the neighbors and the developer and expected to get to a good place with the focus on design standards and changes to the code to require neighborhood meetings. She looked forward to moving those things forward at the first opportunity, maybe even before the new year. If she lived there, she wouldn't be excited at having a four story building across the street, but she didn't see a difference with a seven -story building; what someone sees when walking straight out their front door is what needs to be mitigated. Mr. Taraday pointed out the motion on the floor is to repeal the interim ordinance. The council packet does not include an ordinance to repeal the interim ordinance. Staff was following council direction to draft a resolution with findings of fact to continue the ordinance. He suggested to the extent the council wanted to vote on this motion, staff will interpret it as a preliminary motion to direct staff to bring back an ordinance to repeal the interim ordinance. Because this is a special meeting, final action cannot be taken on something that is not on the agenda. If this motion is approved, staff will bring back an ordinance on the consent agenda at the next council meeting to repeal the interim ordinance. Mayor Pro Tem Olson said she takes responsibility for putting forward the motion at last week's meeting directing staff to only provide a resolution with findings of fact in the packet. In hindsight that was a mistake and coupled with tonight being a special meeting, she created a difficult situation. UPON ROLL, MOTION CARRIED (4-3); COUNCILMEMBERS TEITZEL, TIBBOTT, PAINE AND MAYOR PRO TEM OLSON VOTING YES; COUNCILMEMBERS CHEN AND NAND AND COUNCIL PRESIDENT PRO TEM BUCKSHNIS VOTING NO. Mayor Pro Tem Olson declared a brief recess. 3. CITY ATTORNEY CONTRACT EXTENSION DISCUSSION Councilmember Teitzel explained on September 20, 2022, the council discussed forming a council work group to investigate issues around the city attorney contract; those issues included vetting the data presented on August 23 in the city attorney annual report. The work group verified the numbers reported were accurate in terms of the effective hourly rates for 2021 and 2022. The work group has worked through several options for council to deliberate on tonight regarding how to proceed with the contract. The goal is to share the information with council, deliberate and get direction from council about where to go from here. The work group is also asking for council approval of up to $2500 in additional spending from the council contingency fund for an independent legal review by Madrona Law Group of whatever contract the council agrees to pursue as well as an associated issue regarding public record requests about the contract. Councilmember Teitzel advised he will provide an overview of the project, Councilmember Paine will present the various options she has been working on with Lighthouse, and Councilmember Chen will present the revenue and expense effects of the various contract options. As context, he relayed the work group learned in March 2022, Lynnwood signed a city attorney contract with a Kenyon Disend; in that contract, the lead attorney Michael Kenyon charges $370/hour and junior attorneys charge $195- $3 1 0/hour. He suggested councilmembers keep those hourly rates in mind during tonight's discussion; they represent the market rate for contracted city attorney services. Edmonds City Council Draft Minutes November 22, 2022 Page 21 Packet Pg. 16 Councilmember Teitzel said one of the prime reasons for having a contract extension with Lighthouse for one year is to allow the council to do its due diligence. There are various schools of thought about how the City should obtain city attorney services; some believe that function should be brought in-house and be a direct report to the mayor, others want to consider another contractor, and others want to continue with Lighthouse. The work group will work through those issues and ensure all the data is brought to council so the best informed decision can be made with regard to how to proceed next year. He requested clear direction from council regarding which option to pursue and once that direction is provided, the work group will work with Madrona to refine that contract and bring it back for final approval on December 6. He also requested council approve funding of up to $2500 for an additional external legal review with Madrona Law Group. COUNCILMEMBER PAINE MOVED, SECONDED BY COUNCIL PRESIDENT PRO TEM BUCKSHNIS, TO APPROVE THE EXTENSION OF THE MADRONA CONTRACT FOR UP TO $2500. Councilmember Paine expressed support for the motion, advising the work group needs the outside advice. Councilmember Teitzel clarified the request is for up to $2500. Depending on the option council chooses, a complete legal review of the contact may not be needed as they already reviewed one version of the contract. There needs to be review of the public records requests that have been made recently due to legal overtones. He concluded the actual expense maybe less than $2500. COUNCILMEMBER CHEN MOVED, SECONDED BY COUNCIL PRESIDENT PRO TEM BUCKSHNIS, TO AMEND THE MOTION TO REQUEST THE $2500 COME OUT OF THE GENERAL FUND INSTEAD OF THE COUNCIL BUDGET. Council President Pro Tem Buckshnis asked why Councilmember Chen wanted it funded from the general fund when there are funds available in the council contingency fund. Councilmember Chen said the city attorney contract benefits the entire City and not just the council. Councilmember Paine commented this is very specific to council work and is directly related to the work group needing specific legal advice and there are adequate funds in the council contingency fund. UPON ROLL CALL, AMENDMENT FAILED (2-5), COUNCILMEMBERS TEITZEL AND CHEN VOTING YES; COUNCILMEMBERS TIBBOTT, PAINE AND NAND, COUNCIL PRESIDENT PRO TEM BUCKSHNIS AND MAYOR PRO TEM OLSON VOTING NO. Councilmember Paine restated the motion: APPROVE AN AMOUNT OF UP TO $2500 FOR THE EXTENSION OF THE MADRONA LAW GROUP CONTRACT. MOTION CARRIED UNANIMOUSLY. Councilmember Paine referred to Attachment B which includes a description of the two options that will be presented tonight and seven other scenarios that the work group or Mr. Taraday considered but they were discarded. She reviewed: Option 1: Flat fee contract • Includes 7.5% CPI-U increase from 2022 rates • Removes the need for city attorney attendance at council committee meetings as well as other board/commissions, unless requested Edmonds City Council Draft Minutes November 22, 2022 Page 22 Packet Pg. 17 No changes in available hours Adds language allowing Lighthouse Law Group to respond to community commentary from time to time, and within the bounds of Rules of Professional Conduct. Councilmember Paine invited City Attorney Jeff Taraday to speak to the last bullet. Mr. Taraday explained one of the roles the city attorney should play in the community is making sure decision makers are informed with regard to their choices and the laws surrounding their choices. He is noticing an increase in dialogue about City business in the community outside council chambers in a way that is not accurate. In the interest of a more informed civil discourse in the community, the city attorney can play a role with council permission in contributing to that conversation. He currently does not have that permission. RPC 1.6 states lawyers are not supposed to discuss the representation, a term that is pretty broad. He believed the community would benefit from having the council giving the city attorney permission from time to time to chime in when it could enhance the civil discourse; it would not be a duty and the city attorney would not have to answer every question they receive from a citizen. For example, during public comment tonight it was represented that the proposed contract violates the Rules for Professional Conduct. Although he disagreed with that assertion, but could not address it unless a councilmember asked whether the assertion was true or false. Councilmembers could do that at council meetings, but it takes up a lot of council meeting time. This would allow that to happen outside council meetings and get a more informed perspective out in the Edmonds community. Councilmember Paine advised the original Lighthouse contract included a 9% CPI-U increase; they are now agreeable to a 7.5% CPI-U increase. Councilmember Nand referred to Option A, Section 3, Payment for services, and asked if it was a bargained for term that the working group recommends the council agree to these triggering events in which if the City attempts to terminate the contract with Lighthouse, there is a surcharge. She asked how the work group arrived at that in Option A and whether it was a bargained for term that the council can continue to negotiate with Lighthouse. Councilmember Paine answered the lookback provision has been a part of the Lighthouse contract for the last three years. Because the City pays a flat fee, it allows Lighthouse go reassess their fees if the council decides to terminate the contract. It allows Lighthouse to recover fees in a more typical range. The lookback offers Lighthouse an opportunity to recoup unachieved income if the council decided to terminate the contract. Councilmember Nand relayed her concern that this is just a standard contract and the City has a bargained for agreement with Lighthouse where they agree to provide services and the City agrees to pay them X. If for whatever reason the council decides to terminate, such as hypothetically something unethical occurred, she did not see why in normal business practices the City should have to a pay a surcharge if the City agreed to pay the bargained for rate of $58,809/month. The risk that Lighthouse could have made more working for someone else should have been part of the risk that Lighthouse assumed in making the bargain with the City. She suggested trying to drive a better bargain for the City's taxpayers. Councilmember Paine answered that was Option B. The lookback section was added to the contract three years ago. The City is getting a very good deal; last year's functional rate was $185/hour, this year's rate is $175/hour which is unrealistically low and not even close to market rate. Option B looks at restricting some hours and getting closer to what other attorney's fees include and that option still includes somewhat of a lookback. The lookback was included because the work group felt there was little risk the contract would be retracted anytime during the coming year and she did not anticipate Lighthouse would do anything wildly unethical so the work group was comfortable with the lookback in Option A. It was also a non-negotiable with Lighthouse. Edmonds City Council Draft Minutes November 22, 2022 Page 23 Packet Pg. 18 5.1.c Councilmember Nand asked for confirmation of understanding that there has been an attempt to negotiate this term with Lighthouse, but for the 2023 contract, Lighthouse has informed the City that unless they are allowed to tack on this surcharge if the City decides to discontinue their services, they would choose not to enter into a contract for 2023. Mr. Taraday answered that was essentially correct. Edmonds is the only city he knows of in the State of Washington that contracts for municipal law services on a flat fee arrangement and Lighthouse only offers that in the context of a long term agreement. The City has already stated they plan to do an RFP in 2023, but that RFP tells Lighthouse it is not possible to see beyond 2023 whether Lighthouse will be the city attorney for a long period of time. The flat fee comes at such a deep discount to their market rates that it does not make sense to do that in what could be their final year of representing Edmonds. If the council wants the flat fee, they are willing to do that, but only with the lookback provision. If, after the RFP process, the council wants to retain Lighthouse on a four- year contract, they would go back to a flat fee without a lookback provision, but with the City's plans for an RFP, it doesn't make sense to do it this year. Council President Pro Tern Buckshnis recommended removing from Option A, "Adds language allowing Lighthouse Law Group to respond to community commentary from time to time, and within the bounds of Rules of Professional Conduct." She anticipated this would be a rabbit hole; she probably has more negative press than any councilmember, there are two sides to every story but she does not care to engage. She preferred to stay high, if someone says something inaccurate, a councilmember can ask the city attorney a question during a meeting and the city attorney can respond. She feared this would be very subjective, recalling she and the city attorney worked with citizens at the direction of council in the past. She feared adding that language to the contract would dilute Lighthouse's work and people will get into fisticuffs because people are not happy, are divisive and are armchair quarterbacks. The city attorney works for the City and provides advice. If there are questions, it can be handled via an op-ed on the city attorney's behalf. She feared it would go down a rabbit hole, recalling occasions when she has gone back and forth with citizens on budgetary questions 12-15 times. Mr. Taraday said he did not disagree with what Council President Pro Tern Buckshnis was saying in terms of the risk. It would not be his intention to get into a back and forth with citizens over points on which they did not see eye to eye. He assured Section 2 was not a deal breaker; he was okay if the council did not want to include it. He viewed it as something that would help the City due to the amount of misinformation in the community. This language would allow him for example to contact Teresa Whipple and inquire about printing a clarification on something. It would not be responding to attacks on the city attorney but attacks on the City about what the City has allegedly done incorrectly. He would love to be able to respond to some of those comments and explain that the City is actually doing things right. Council President Pro Tern Buckshnis commented there can be two accountants or two attorneys in a room that think differently. She wanted the city attorney to spend their hours on City business. There will always be someone who doesn't like what the City is doing. If something substantial is incorrect, a statement can be made by a councilmember or the mayor. She preferred to utilize the city attorney's hours effectively and efficiently and this would not be effective or efficient. COUNCIL PRESIDENT PRO TEM BUCKSHNIS MOVED, SECONDED BY COUNCILMEMBER CHEN, TO REMOVE SECTION 2. Councilmember Tibbott said he liked the provision and the way the city attorney described it makes a lot of sense. He would like to see how it works and if it is not a useful or efficient way for the city attorney to provide correction, it could be changed next time. He summarized it was worth trying. Councilmember Teitzel said he tends to agree with Council President Pro Tern Buckshnis. He was concerned it would open the door to pandora's box and result in a lot of issues to respond to. There may be other ways to address it. He was concerned if the council chose an hour by hour billing option, that Edmonds City Council Draft Minutes November 22, 2022 Page 24 Packet Pg. 19 time would be billable. The next option will include discussion about how the city attorney's time is used; the hours are quite high and that is caused by the City. The council will need to think careful about what they are asking the city attorney to do. He expressed support for the motion. Councilmember Chen had the same concern; 43,000 residents as well as people who live outside the city limits can make comments/attacks at council meetings. If the council approved adding that language, he could not imagine how many hours the city attorney would spend responding. For that reason, he will support the motion. Councilmember Nand said Mr. Taraday raises an interesting point in that as the city attorney, there may be times where it would be beneficial for him or another attorney at Lighthouse to address concerns from the public. The council's concern is that they perceive this as something that might happen on the basis of email which she felt would be inappropriate. If the city attorney wanted to have an agenda item to address a public concern he felt rose to a level of importance that it needed to be addressed at a public meeting, the city attorney should have that ability. However, she did not think it would be helpful or useful to the public for the city attorney to engage in one-to-one email communications with members of the public. Council President Pro Tern Buckshnis commented there have been problems in past and the council president delegates authority to a councilmember. The City has very good communication with the city attorney, if he has concerns, it can be addressed via the legislative or administrative branch. She summarized it was too subjective to include in the contract. Councilmember Paine said she can see both sides; she liked how Councilmember Tibbott framed it. Edmonds is a lively community and at times information is inaccurate and she wished an explanation could be inserted. She did not mind including the language in Option A, but not in Option B. Lighthouse can add an accounting line so the hours spent on that activity could be tracked. Mayor Pro Tern Olson said one of her overriding goals is building trust; to the extent this would be helpful, she would like to try it in the one year extension of the contract. She also liked the idea of a clarification/correction being an agenda item that goes through council and can be reflected in the media versus a back and forth email. UPON ROLL CALL, MOTION FAILED (3-4), COUNCILMEMBERS TEITZEL AND CHEN AND COUNCIL PRESIDENT PRO TEM BUCKSHNIS VOTING YES; COUNCILMEMBERS TIBBOTT, PAINE AND NAND AND MAYOR PRO TEM OLSON VOTING NO. Councilmember Paine reviewed: Option B — Retainer fee contract • Assumptions — the hourly rates are 95% of another long term client of Lighthouse; the hours allocated are 85% of the average of the past four years of Edmonds usage. • Hourly rates are divided into two classes; each rate class has a certain number of hours anticipated to meet the contract budget o $253/hour for class I and $336/hour for class 2 o Hours included in retainer: 2,998/year o Month payment toward retainer: $69,594 • Removes the need for city attorney attendance at council committee meetings as well as other board/commissions, unless requested • Includes language allowing Lighthouse Law Group to respond to community commentary from time to time, and within the bounds of Rules of Professional Conduct. Edmonds City Council Draft Minutes November 22, 2022 Page 25 Packet Pg. 20 5.1.c Councilmember Paine commented this option is closer to market rate. The council should talk about hours; the City has gotten used to an abundance of city attorney hours and would need to figure out how to dial that back. It will be reduced slightly by the city attorney not attending committee meetings. The council may want to try this to see what more of a market rate contract looks like; additional funds would need to be added to the 2023 budget. This options also includes somewhat of a lookback. Mr. Taraday advised there is no lookback in Option B. Councilmember Teitzel said there is no lookback; there are a certain number of hours included in the retainer amount and the hours are tabulated over the course of a year. If the City exceeds those hours, Lighthouse charges for the hours used in excess of the retainer. That is a not a lookback like the flat rate option. Councilmember Chen confirmed Councilmember Teitzel's comment that there is no lookback in Option B. The hours included in Option B are a total of 2,998 hours. If the City did not use all the allotted hours in a certain month, those hours would carry forward to a future month within the year. Mayor Pro Tern Olson asked Mr. Taraday to speak to a public comment that alleged one or both of the proposed contracts were illegal. Mr. Taraday recalled during public comment a speaker cited RPC 1.5(f) which states fees and expenses paid in advance of performance of services shall comply with Rule 1.15(a) subject to the following exceptions. One of those exceptions, (f)2, says a lawyer may charge a flat fee for specialized legal services. Lighthouse's contact specifically states the flat fee is paid on the last day that services are performed. This rule is not applicable to their contract, it applies to circumstances where the flat fee is paid in advance. This is an example of the type of information he would be able to provide if he had that permission. Councilmember Teitzel said if the council considered the retainer option, it would include approximately 3,000 hours. The run rate for attorney hours in 2022 will be about 3700 hours. Choosing the retainer option will require going on a pretty extensive city attorney hour diet in 2023, otherwise the City will be paying by the hour in addition to the retainer. He cautioned the council to keep in mind that the retainer model will require some discipline. He recalled Councilmember Chen saying the current model with Lighthouse is a buffet style, all you can eat and go back for seconds and thirds which is attractive, but that is not the real world in terms of the way contracts typically work. The options before council include the buffet option and a more real world retainer option. If the council chooses the retainer scale, the number of hours the city attorney is asked to work will need to be scaled back somehow, otherwise it will be very expensive. Mayor Pro Tern Olson said in looking at the remaining items on the agenda, it was unlikely the council will have time for the council budget discussion and still get home before midnight. The council agreed that that item would be postponed and staff could plan accordingly. Councilmember Paine relayed she asked Mayor Nelson if a reduction in hours would work for the administration and he said absolutely not. There is enough going on, some of it was in the legislative agenda as well as changes to policing, the code rewrite, etc. and those are things the council needs to keep in mind. Lawsuits can crop up at any moment and there is no idea how much time they will take. Council President Pro Tem Buckshnis said based on her knowledge of 10 years working with Lighthouse, Ebb Tide took a significant amount of time and lawsuit that has been concluded. She agreed the City needed to be more conscientious of the city attorney's time. Not having the city attorney attend committee meetings will reduce his hours by 8-9/month. She hoped to get back to a more even hourly working relationship with Lighthouse. She was in favor of Option A. To ensure the council was not operating under any misconceptions, Mr. Taraday advised Ebb Tide has appealed so the appeal will be ongoing in 2023. Edmonds City Council Draft Minutes November 22, 2022 Page 26 Packet Pg. 21 5.1.c Councilmember Chen relayed the financial impact of the two options. Option A: Flat rate with a lookback clause • The 7.5% CPI-U increase to the 2022 rate of $53,953 is $58,000 or $696,000/year • If the City disengaged with Lighthouse anytime in 2023, the lookback clause kicks in. o Worst case scenario would be if the council decided in December 2023 to disengage, the maximum lookback would be 8 months of legal services based on the average hours for four years for the 2 tiers of services ■ Tier 1: $266/hour, average hours is 1,624 for a total charge of $431,984 ■ Tier 2: $354/hour, average hours is 727 for a total charge of $257,358 ■ Added together is a total of $689,342 ■ Under that scenario, the City receives a refund for 8 months of the flat rate so the net maximum lookback is $225,342 Option B: Retainer • 85% of average historical hours requires cutting back 15% of the average hours used in prior years. • Lighthouse offered 5% discount from the rate they charge Maple Valley • Class 1: 2,071 hours/year at $253/hour = $523,963 • Class 2: 927 hours/year at $336/hour = $311,472 • Total charge under the retainer option = $835,435. • Comparing Option B to option A (not including the lookback), is a savings of approximately $140,000. • The $140,000 savings is less than the net lookback payment of $225,342. Councilmember Chen summarized the work group does not have a recommendation regarding the options, it is up to the council to decide. Councilmember Teitzel summarized the work group is asking council for clear direction regarding which of the two options they want to pursue and depending on that direction, they will take that option back to Madrona Law group to review it from an independent legal standpoint to ensure everything is proper. The contract will come back to council for a final vote on December 6. COUNCIL PRESIDENT PRO TEM BUCKSHNIS MOVED, SECONDED BY COUNCILMEMBER PAINE, TO APPROVE OPTION A. Councilmember Paine said she also likes Option A; it is what the City is accustomed to, it is a good option, and it has ease of use. Councilmember Chen commented even though Option A is appealing, the City still needs to be cautious about how much they eat at the buffet, it is not free. MOTION CARRIED UNANIMOUSLY. Mayor Pro Tern Olson asked Mr. Taraday to speak to Open Public Meetings Act (OPMA) requirements related to three councilmembers meeting outside a council meeting and the need to advertise the meeting. Mr. Taraday answered there is no requirement for less than a majority of the council to meet openly. It was his understanding they were meeting in a group no larger than three. The work group did not make a recommendation to council, but even if they had, committees are allowed to make recommendations to the council even if they have met privately. That is straight from San Juan County case that stated making a recommendation is not acting on behalf of the council and therefore is allowed to happen in private. This work group did not make a recommendation so it is less removed from the facts in the San Juan Edmonds City Council Draft Minutes November 22, 2022 Page 27 Packet Pg. 22 5.1.c County case. From what he knew of the work group, they were on solid ground from an OPMA standpoint. 4. 2023 COLA FOR NON -REPRESENTED EMPLOYEES HR Director Jessica Neill Hoyson advised this is the recommended COLA adjustment for non - represented employees and recommended benefit changes. She reviewed: • Personnel Policies - Chapter 5 Compensation o Annual Salary Adjustments ■ Personnel Policy 5.10 NON -REPRESENTED EMPLOYEES' ANNUAL SALARY ADJUSTMENTS - The Mayor will recommend the adjustment of salary schedule for non -represented employees to the City Council for approval as part of the budget process. • 2023 Wage Adjustments for Represented Groups o Currently the AFSCME, Teamsters, and EPOA Law Support collective bargaining agreements are not settled for 2023 ■ Given current contract language though it could be anticipated that these groups will receive a wage adjustment of 5.5% for 2023 o The EPOA Commissioned contract is settled for 2023 but as this is a represented group that has binding arbitration, taking this group's wage adjustments into consideration for the non - represented employees would not be appropriate. • 2022 Wage Adjustments o When considering the 2023 wage adjustment for non -represented employees, City Council should take into account the 2022 Wage Adjustments o In 2022 City Council approved the implementation of a market study for all City positions. This was the first time that the internal equity of positions was addressed in addition to the external compensation data. The intent is to ensure all positions of similar requirements are aligned internally. o Going forward, the City will want to address the issue of maintaining some consistency in the annual wage adjustment between all groups so as to maintain the internal equity. o EPOA Law Support received a wage adjustment of 3% in 2022. The City has since reopened that contract for wages to address the inflation rate and has provided an additional 2.5% wage adjustment. Total adjustment for 2022 will be 5.5% o The City is currently in bargaining with both the Teamsters and AFSCME for 2022 wages. ■ Given contract language it is most likely that both groups will receive a wage adjustment of 5.5% for 2022. o The non -reps received a wage adjustment of 3% in 2022. ■ This places the wages for non -represented positions 2.5% behind other employee groups for 2022 and are therefore entering 2023 with a deficit. 0 Other Data points o Using "comparator" organizations is often the standard in establishing compensation and has been used by Edmonds for both represented and non- represented employees o Using the Consumer Price Index for Urban wage earners in the Seattle/Tacoma/Bellevue area is also used as data point to establish compensation levels. • Com arator Organization proposed non -rep adjustments for 2023 city COLA Bothell No information Shoreline 7.76%(considering 9.5% wage adjustment SeaTac 5%(looking at other ways to provide staff with more money Olympia 4% Lacey Not yet established Edmonds City Council Draft Minutes November 22, 2022 Page 28 Packet Pg. 23 5.2 City Council Agenda Item Meeting Date: 12/6/2022 Resolution of Retaining Rights of Self -Determination of Land Use Staff Lead: Council Department: City Council Preparer: Beckie Peterson Background/History N/A Recommendation Accept and approve the Resolution as presented, and attach to the 2023 Legislative Agenda. Narrative Council wishes to express its official position in support of retaining local control of our zoning and building codes without modification by County or State legislation. Attachments: Resolution of Retaining Rights of Self -Determination Land Use Packet Pg. 24 5.2.a RESOLUTION NO. A RESOLUTION OF THE EDMONDS CITY COUNCIL IN SUPPORT OF RETAINING RIGHTS TO SELF- DETERMINATION AS IT PERTAINS TO LAND USE, ZONING, BUILDING CODES AND ORDINANCES AND TO URGE COUNTY AND STATE ELECTED OFFICIALS TO NOT TAKE THESE RIGHTS AWAY THROUGH LEGISLATIVE ACTION WHEREAS, Edmonds is a code city within the State of Washington as encoded by Title 35A RCW; and WHEREAS, code cities were created by the State Legislature in order to grant the greatest degree of local control to municipalities possible under the state constitution and general law; and WHEREAS, code cities are authorized to perform any function not specifically denied them in the State Constitution or by state law and may perform any function granted to any other city classification under Title 35 RCW; and WHEREAS, Edmonds' Comprehensive Plan recognizes and adheres to Growth Management Act (GMA) requirements and contains a wide variety of housing options in addition to specific sub -area plans and Edmonds is comfortably exceeding current and projected GMA targets for housing capacity; and WHEREAS, Edmonds has an engaged volunteer Planning Board of citizens to guide growth; and WHEREAS, in 2019, a 23-volunteer Citizens' Housing Commission met for 18 months and provided 15 recommendations to the City Council that included robust and flexible zoning and building codes to meet a changing environment; and WHEREAS, Edmonds has a land area of 8.9 square miles and has consistently met GMA growth targets with 2035 population projected to be 45,550; and WHEREAS, Edmonds is a waterfront community with a built -out city that has a unique topography with large watersheds and public spaces which limits our land capacity for new structures; and WHEREAS, our buildable lands report reflected 23 years of constant growth and current permitting projections are exceeding all prior forecasts; and WHEREAS, residents have clearly spoken that we value neighborhood character and are increasingly protective of watersheds, critical areas and our environment and; WHEREAS, a survey conducted by our Citizens' Housing Commission, showed 78% of respondents strongly desire to retain single family zoning as currently codified; now therefore, Packet Pg. 25 5.2.a THE CITY COUNCIL OF THE CITY OF EDMONDS, WASHINGTON, HEREBY RESOLVES AS FOLLOWS: Section 1. The Edmonds City Council adopts this resolution to express its official position in support of retaining local control of our zoning and building codes without modification by County or State legislation. Section 2. The Edmonds City Council opposes legislation, or other outside mandates, which changes or attempts to influence local zoning or building codes or any definitions associated with them. Section 3. The Edmonds City Council further resolves that, by its legislative policy, single family zoning will continue to be a component of our zoning codes. Section 4. The City of Edmonds accepts responsibility for our land use and zoning codes to be in compliance with all current federal, state and county laws. Section 5. The Edmonds City Council directs that copies of this Resolution shall be sent to our Snohomish County representatives, Governor Inslee, and our State representatives as a means of affirming our City's support of our right to self-determination of our land use, zoning and building codes and ordinances. Section 6. The Edmonds City Council reaffirms our commitment to our citizens to reject any intervention by County and State Legislators to dilute any of City Council's authority in all land use matters. RESOLVED this 6th day of December 2022. CITY OF EDMONDS MAYOR, MIKE NELSON ATTEST: CITY CLERK, SCOTT PASSEY FILED WITH THE CITY CLERK: PASSED BY THE CITY COUNCIL: RESOLUTION NO. Packet Pg. 26