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RESOLUTION NO. 3 6 8 7
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF AUBURN, WASHINGTON, AUTHORIZING THE
MAYOR AND CITY CLERK TO EXECUTE A
CONTRACT WITH DRISCOLL AND HUNTER FOR
HEARING EXAMINER SERVICES
WHEREAS, Auburn City Code (ACC) Section 18.66.030 provides for the creation
of the Office of the Hearing Examiner; and
WHEREAS, ACC Section 18.66.040 provides for the Mayor's appointment of the
Hearing Examiner subject to confirmation by the Auburn City Council; and
WHEREAS, from time to time it is desirable and appropriate to solicit
qualifications from interested parties to serve as the City's Hearing Examiner; and,
WHEREAS, a Request of Proposal for Hearing Examiner services was issued
and a selection process was completed;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN,
WASHINGTON, HEREBY RESOLVES as follows:
Section 1. That the Mayor and the City Clerk are authorized to execute an
agreement in substantial conformity with the Agreement attached hereto, marked as
Exhibit "A" and incorporated herein by this reference.
Section 2. That the Mayor is authorized to implement such administrative
procedures as may be necessary to carry out the directives of this legislation.
Section 3. That this Resolution shall take effect and be in full force upon
passage and signatures hereon.
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Resolution 3687
February 11, 2004
Page 1
Dated and Signed this F7i:!1- day of ~h ,2004.
CITY OF AUBURN
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PETER B. LEWIS --:?
MAYOR
ATTEST:
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Danielle E. Daskam,
City Clerk
APPROVED AS TO FORM:
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Resolution 3687
February 11, 2004
Page 2
EXHIBIT "A"
PROFESSIONAL SERVICES AGREEMENT
FOR HEARINGS EXAMINER
FOR CITY OF AUBURN
THIS AGREEMENT, entered into this 1 st day of February March 2004 by and
between the City of Auburn (City), a municipal corporation under the laws of the State of
Washington, and the firm of Driscoll & Hunter (Hearings Examiner), Suite 607, 101 Yesler
Way, Seattle, Washington 98104:
WIT N E SSE T H:
WHEREAS, among the responsibilities with which the City is charges are matters
for which quasi-judicial hearings are occasionally needed; and
WHEREAS, in order to address these matters, it is advantageous for the City to
provide for the services of person(s) or firm(s) to perform the hearings examiner functions
for the City; and
WHEREAS, the Hearings Examiner has extensive experience in providing such
hearings examiner services, and is qualified to provide such services for the City; and
WHEREAS, after investigating and reviewing the proposals of persons and firms
interested in providing such services, it was determined to be in the best interests of the
City to negotiate an agreement with the Hearings Examiner for such services.
NOW, THEREFORE, the City and the Hearings Examiner mutually agree as
follows:
The duties of the Hearings Examiner shall be:
1. (a) To conduct land use, code enforcement hearings and business/regulatory
license revocation hearings for the City. Included in this duty shall be the review
of materials provided by the City staff prior to hearing; research of legal issues
anticipated at the hearing; holding pre-hearing conferences on certain cases;
the conduct of hearings, including issuances of oaths; description of the land
use Hearings Examiner system to those in attendance at the hearing; the
receipt of testimony and evidence at the public hearing; creating a clear and
understandable record of the proceedings; and making decisions on post
hearing motions. Hearings shall be held not more than twice per month, every
month unless a sooner hearing date is required to meet the requirements of the
Professional Services Agreement
For Hearings Examiner Services
Exhibit "A," Res. No. 3687
February 11 2004
Page 1 of 7
Auburn Municipal Code. Those hearing days in excess of two per month shall
be considered extraordinary hearings.
(b) To draft Findings of Fact and Conclusions of Law to support decisions or
recommendations made for each case.
(c) To draft and periodically upgrade Rules of Procedure of Hearings Examiner for
use in the City. Conduct a "You be the judge" session for the Council and
Planning Commission to help insure coordination between those bodies.
(d) To stay current on all land use legislation in Washington and all Washington
Appellate Court decisions regarding land use and procedural issues.
(e) To have a regular conference on at least a quarterly basis, with the Planning
Director and staff to inform them of the changes in land use law in Washington.
(f) To meet yearly with the City Council to discuss the state of the Hearings
Examiner system and recommend changes to it, if needed, and to provide
training in decision-making processes to help reduce liability exposure.
(g) To provide annual statistical data on the cases heard by the Hearings Examiner
office.
(h) To be available for extraordinary hearings (which include multi-day hearings and
those days of hearings that exceed two per month) when scheduled by the City.
2. Compensation for the Hearings Examiner for tasks 1 (a) through 1 (g) shall be at a
fixed monthly rate of Four Thousand Dollars ($4,000) each month, pro-rated daily if less
than one month is served.
Compensation for task 1 (h) shall be at an hourly rate agreed to by and between the
parties.
3. The Hearings Examiner shall provide its own secretarial services. The City shall
provide the room for the hearings and equipment, including working recording
equipment. The City shall be responsible for all notice of public hearings and for
distribution of final decisions.
4. The City shall be the keeper of the official record. The City shall provide the
Hearings Examiner copies of all exhibits and make available copies of tapes of
testimony, if requested. The City shall be responsible for all notice of public
hearings and for distribution of final decisions. The Hearings Examiner shall submit
a written decision to the City and to the applicant, appellant and/or other party(ies)
of interest within not more than'ten (10) days after the conclusion of the hearing,
unless additional time is needed by the Hearings Examiner to complete the written
Professional Services Agreement
For Hearings Examiner Services
Exhibit "A," Res. No. 3687
February 11, 2004
Page 2 of 7
decision, in which case the Hearings Examiner shall advise the City and the
applicant, appellant and/or other party(ies) of interest of the need for additional time
within said ten (10) day period. For the purposes hereof, parties of interest shall
include any person(s) who have a tangible property rights and/or ownership interest
in the subject matter of the hearing. Persons not constituting parties of interest
may be able to obtain a copy of the written decision, however such copy shall be
obtainable from the City through the public records request process. It shall not be
the obligation or responsibility of the Hearings Examiner to such copy(ies).
5. The Hearings Examiner shall invoice to the City on a monthly basis a statement for
compensation as provided herein. Payment of services shall be within 30 days of
said statement.
6. The services of the Hearings Examiner are to commence pursuant to this
Agreement on March 1, 2004 and be re-negotiated within one year following this
date at the request of either party. Following the end of the one-year term, the
Agreement shall automatically renew on a year-to-year basis unless re-negotiated,
or unless otherwise terminated as herein provided.
7. The Hearings Examiner or the City may terminate this Agreement before the
expiration date by giving a 60-day written notice of termination for cause. In the
event of termination, matters pending shall be completed and compensated
pursuant this Agreement.
8. The Hearings Examiner shall procure and maintain for the duration of this
Agreement, insurance against claims for injuries to persons or damage to property
which may arise from or in connection with the performance of the work hereunder
by the Hearings Examiner, their agents, representatives, employees or
subcontractors. All insurance shall be placed with insurer(s) with a Best's insurance
rating of not less than "A-."
The insurance policies obtained by the Hearings Examiner shall provide coverage
of not less than the following amounts:
(a) Automobile Liability insurance with limits not less than $1,000,000 combined
single limit per accident for bodily injury and property damage.
(b) Commercial General Liability insurance written on an occurrence basis with
limits no less than $1,000,000 combined single limit per occurrence and
$2,000,000 aggregate for personal injury, bodily injury and property damage.
(c) ,",:,rotes'sional-: 1;«0<$ & OlT)issiqns ;¡¡:;s!Jf"ncê¿~_ han
$1,000,000 cbmbined single lir"itper i"fiden!. r?Þ.. 1:.~ ~
Professional Services Agreement ~
For Hearings Examiner Services
ExhibitlOA," Res. No. 3687
February 11, 2004
Page 3 of 7
The Hearings Examiner shall provide to the City certified copies of such current
policies. Failure of the Hearings Examiner to so provide certified copies of such
current policies shall constitute a breach of this Agreement.
The Hearings Examiner's insurance shall contain a clause stating that coverage
shall apply separately to each insured against whom claim is made or suit is
brought, except with respects to the limits of the insurer's liability.
Any payment of deductible or self-insured retention shall be the sole responsibility
of the Hearings Examiner.
The Hearings Examiner's insurance shall be primary insurance with respect to the
City and the City shall be given not less than thirty (30) days prior written notice of
any cancellation, suspension or material change in coverage, which notice
requirement shall be included as a written term of any such policies.
9. The Hearings Examiner is an independent contractor for the performance of
services under this Agreement. The City shall not be liable for, nor obligated to pay
to the Hearings Examiner, or any employee of the Hearings Examiner, sick leave,
vacation pay, overtime or any other benefit applicable to employees of the City, nor
to payor deduct any social security, income tax, or other tax from the payments
made to the Hearings Examiner which may arise as an incident of the Hearings
Examiner performing services for the City. The City shall not be obligated to pay
industrial insurance for the services rendered by the Examiner Pro Tem. The
Examiner Pro Tem will be solely responsible for the payment of any and all
applicable taxes related to the services provided under this Agreement.
10. The Hearings Examiner shall be disqualified from presiding over any hearing in
which the Hearings Examiner has or may fairly appear to have an actual or
potential interest in the outcome of the proceeding. The Hearings Examiner shall
make a determination of those proceedings in which the Hearings Examiner should
be disqualified after consultation with the City Attorney, based on Washington State
law. The Hearings Examiner shall not disqualify itself from more than five (5)
hearings in any calendar year. In those proceedings in which the Hearings
Examiner is disqualified from hearing any matter otherwise covered under this
Agreement, the City shall obtain a pro tempore Hearings Examiner at the City's
expense.
11. The Hearings Examiner shall be free of any supervision or other influence from the
Mayor or any other official or employee with respect to any decision or
recommendation made by the Hearings Examiner on a specific case, issue or
permit.
12. In the event that any dispute or conflict arises between the parties while this
Contract is in effect, the Hearings Examiner agrees that, notwithstanding such
Professional Services Agreement
For Hearings Examiner Services
Exhibit "A," Res. No. 3687
February 11, 2004
Page 4 of 7
dispute or conflict, the Hearings Examiner shall continue to make a good faith effort
to cooperate and continue work toward successful completion of assigned duties
and responsibilities.
13. This Agreement shall be administered by '~c.( /Ittvt tç, r ,
on behalf of the Hearings Examiner, and by the Mayor of the City, or designee, on
behalf of the City. Any written notices required by the terms of this Agreement shall
be served on or mailed to the following addresses:
City of Auburn
Auburn City Hall
25 West Main
Auburn, WA 98001-4998
Phone (253) 931-3000
FAX (253) 931-3053
Hearings Examiner
Driscoll & Hunter
Suite 607, 101 Yesler Way
Seattle, Washington 98104
14. All notices or communications permitted or required to be given under this
Agreement shall be in writing and shall be deemed to have been duly given if
delivered in person or deposited in the United States mail, postage prepaid, for
mailing by certified mail, return receipt requested, and addressed, if to a party of
this Agreement, to the address for the party set forth above, or if to a person not a
party to this Agreement, to the address designated by a party to this Agreement in
the foregoing manner.
Any party may change his, her or its address by giving notice in writing, stating his,
her or its new address, to any other party, all pursuant to the procedure set forth in
this section of the Agreement.
15. Neither party to this Agreement shall assign any right or obligation hereunder in
whole or in part, without the prior written consent of the other party hereto. No
assignment or transfer of any interest under this Agreement shall be deemed to
release the assignor from any liability or obligation under this Agreement, or to
cause any such liability or obligation to be reduced to a secondary liability or
obligation.
16. No amendment, modification or waiver of any condition, provision or term of this
Agreement shall be valid or of any effect unless made in writing, signed by the
party or parties to be bound, or such party's or parties' duly authorized
representative(s) and specifying with particularity the nature and extent of such
amendment, modification or waiver. Any waiver by any party of any default of the
other party shall not effect or impair any right arising from any subsequent default.
Nothing herein shall limit the remedies or rights of the parties hereto under and
pursuant to this Agreement.
Professional Services Agreement
For Hearings Examiner Services
Exhibit "A," Res. No. 3687
February 11, 2004
Page 5 of 7
17. In addition to the termination provisions set forth herein above, either party may
terminate this Agreement upon written notice to the other party if the other party
fails substantially to perform in accordance with the terms of this Agreement
through no fault of the party terminating the Agreement.
The City may terminate this Agreement upon not less than ninety (90) days written
notice to the Hearings Examiner if the services provided for herein are no longer
needed from the Hearings Examiner, if funds are not appropriated for this
Agreement by the City Council in its budget process.
If this Agreement is terminated through no fault of the Hearings Examiner, the
Hearings Examiner shall be compensated for services performed prior to
termination in accordance with the rate of compensation provided herein.
18. This Agreement shall be binding upon, and the benefits and obligations provided
for herein shall inure to and bind, the parties hereto and their respective successors
and assigns, provided that this section shall not be deemed to permit any transfer
or assignment otherwise prohibited by this Agreement. This Agreement is for the
exclusive benefit of the parties hereto and it does not create a contractual
relationship with or exist for the benefit of any third party, including contractors,
sub-contractors and their sureties.
19. In the event of such litigation or other legal action, to enforce any rights,
responsibilities or obligations under this Agreement, the prevailing parties shall be
entitled to receive its reasonable costs and attorney's fees.
20. This Agreement and the rights of the parties hereunder shall be governed by the
interpreted in accordance with the laws of the State of Washington and venue for
any action hereunder shall be in of the county in Washington State in which the
property or project is located, and if not site specific, then in King County,
Washington; provided, however, that it is agreed and understood that any
applicable statute of limitation shall commence no later than the substantial
completion by the Hearings Examiner of the services.
21. All captions, headings or titles in the paragraphs or sections of this Agreement are
inserted for convenience of reference only and shall not constitute a part of this
Agreement or act as a limitation of the scope of the particular paragraph or sections
to which they apply. As used herein, where appropriate, the singular shall include
the plural and vice versa and masculine, feminine and neuter expressions shall be
interchangeable. Interpretation or construction of this Agreement shall not be
affected by any determination as to who is the drafter of this Agreement, this
Agreement having been drafted by mutual agreement of the parties.
Professional Services Agreement
For Hearings Examiner Services
Exhibit "A," Res. No. 3687
February 11, 2004
Page 6 of 7
22. Each provision of this Agreement is intended to be severable. If any provision
hereof is illegal or invalid for any reason whatsoever, such illegality or invalidity
shall not affect the validity of the remainder of this Agreement.
23. This Agreement contains the entire understanding of the parties hereto in respect
to the transactions contemplated hereby and supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
24. This Agreement may be executed in multiple counterparts, each of which shall be
one and the same Agreement and shall become effective when one or more
counterparts have been signed by each of the parties and delivered to the other
party.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed effective the day and year first set forth above.
CI
HEARINGS EXAMINER
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Attest:
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Danielle E. Daskam City Clerk
Name:
Title:
Professional Services Agreement
For Hearings Examiner Services
Exhibit "A," Res. No. 3687
February 11, 2004
Page 7 of 7