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Home My WebLink About11/15/2011 15 Hearing Examiner Contract - Park Exclusion Appeals BUSINESS OF THE CITY COUNCIL • YAKIMA, WASHINGTON AGENDA STATEMENT Item No. S For Meeting of: November 15, 2011 ITEM TITLE: A Resolution authorizing and directing the City Manager of the City of Yakima to execute a Professional Services Contract to secure a Hearing Examiner to preside over park exclusion appeals. • SUBMITTED BY: Chris Waarvick, Public Works Director Cynthia Martinez, Senior Assistant City Attorney CONTACT PERSON/TELEPHONE: Cynthia I. Martinez, 575 -6033 SUMMARY EXPLANATION: This resolution would authorize the City Manager to execute the attached Professional Services Contract to secure a hearing examiner to preside over park exclusion appeals. The Hearing Examiner is a neutral party hired to hear appeals from those individuals who have been excluded from City Parks as described in Yakima Municipal Code Chapter 13.16. Ms. Lacy Westfall Heinz is an attorney with an office in the City of Yakima. She is familiar with the probable cause standard and is currently serving as the Transit Hearing • Examiner. Ms. Westfall Heinz is willing to act as the City of Yakima Transit Hearing Examiner. If approved the contracted services would commence immediately to allow the full implementation of the park exclusion procedure as adopted by City Council at the October 4, 2011 regular business meeting. Resolution X Ordinance Other (Specify) Contract X Mail to (name and address) Phone Funding Source Risk na•eme 1 Approval for Submittal: AIM ./JMEr „., City Manager STAFF RECOMMENDATION: Adopt Resolution. COMMITTEE /BOARD RECOMMENDATION: • The full Council has given staff direction to implement the previously passed Park Exclusion Ordinance. COUNCIL ACTION: • • RESOLUTION NO. R -2011- A RESOLUTION: Authorizing and directing the City Manager of the City of Yakima to execute a Professional Services Contract to secure a Hearing Examiner to preside over park exclusion appeals. WHEREAS, the Yakima City Council has approved an ordinance allowing the Parks Director and City of Yakima Police to exclude individuals from city parks when there is probably cause to believe the person has committed an infraction or crime within a city park; and WHEREAS, an excluded individual has the opportunity to request the decision to exclude be reviewed by a neutral Hearing Examiner; and WHEREAS, Lacy Westfall Heinz, is an attorney doing business in the City of Yakima, currently serves as the Transit Hearing Examiner and is knowledgeable regarding the due process of law and the probable cause standard; and WHEREAS, the Yakima City Council finds it in the best interest of the City of Yakima to enter into this Professional Services Contract with Lacy Westfall Heinz; now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The City Manager of the City of Yakima is hereby authorized and directed to execute the attached and incorporated "Professional Services Contract" between the City of Yakima and Lacy Westfall Heinz to provide Hearing Examiner services for park exclusion appeals as described in Chapter 13.16 of the City of Yakima Municipal Code. ADOPTED BY THE CITY COUNCIL this 15th day of November, 2011. Micah Cawley, Mayor ATTEST: • Debbie Kloster, City Clerk Cim/resolution/park hearing examiner PROFESSIONAL SERVICES CONTRACT FOR EXCLUSION FROM PARKS HEARING EXAMINER PARTIES: The parties to this contract are the CITY OF YAKIMA, a municipal corporation, located at 129 N. Second Street, Yakima, Washington 98901 ( "City" herein), and LACY WESTFALL HEINZ, Attorney at Law, located at 302 N. Third Street, Suite 203, Yakima, Washington 98901 ( "Westfall Heinz" or "Examiner" herein). RECITALS: 1. City of Yakima has established an appeals process for exclusions from parks matters as referenced in Chapter 13.16 of the City of Yakima Municipal Code. 2. Lacy Westfall Heinz, an Attorney doing business in the City of Yakima, has the legal experience to serve as the Hearings Examiner for City of Yakima parks exclusion appeals. AGREEMENT: 1. Engagement of Hearing Examiner. The City hereby appoints Westfall Heinz, and Westfall Heinz agrees to serve, as the Hearings Examiner for City of Yakima park exclusion appeals. 2. Character and Extent of Services. Westfall Heinz shall be an appointed Hearing Examiner for the City of Yakima as described in Chapter 13.16 of the City of Yakima Municipal Code. 3. Pro Tem Hearing Examiner. It is contemplated that the Public Works Director will appoint an alternate Hearings Examiner to serve in the event of absence or inability of Westfall Heinz to act. 4. Case Assignment. The Public Works Director, or his designee, shall assign cases. While it is contemplated that Westfall Heinz will hear the majority of cases, the Public Works Director shall assure that an alternate is assigned a sufficient number and variety of cases to maintain the skills necessary for effective performance of Hearing Examiner. 5. Additional Duties. The Examiner shall coordinate with the alternate designee to ensure consistency of analysis and efficient decision - making. The Examiner's duty to determine matters efficiently shall include the duty to issue written findings and conclusions for all matters coming before the Examiner within ten (10) working days of the conclusion of the hearing on each matter unless a longer period is agreed to in writing by the applicant. The Examiner's failure to comply with this duty will result in deduction from compensation otherwise PROFESSIONAL SERVICES CONTRACT - Hearing Examiner 1 due the Examiner in the amount of $100.00 for each day of delay beyond ten (10) working days • after the hearing conclusion. 6. Liaison. The Public Works Director, or his representative, shall serve as the City's liaison with the Examiner. 7. Independent Contract. The relationship of the Examiner to the City is that of an independent contractor rendering professional services. The Examiner shall have no authority to execute contracts or to make commitments on behalf of the City, except as authorized herein or by City ordinances, and nothing contained herein shall be deemed to create the relationship of employer and employee or principal and agent between the City and the Examiner. 8. Professional Fees. The Examiner shall be paid by the City for professional services rendered under this contract at the rate of One Hundred Twenty Dollars ($120.00) per hour. The payment provided in this section shall be full compensation for services rendered, including all labor, materials, supplies, equipment, and necessary incidentals. 9. Itemized Statements. By the 5th day of each month the Examiner will provide to the City an itemized statement for services and expenses incurred during the previous month. 10. Payment Schedule. Payments shall be made on the 20 of the month for statements received by the 5 day of the same month. 11. Facilities to be Furnished by Hearing Examiner. The Examiner shall furnish and maintain an office, equipment, library, and clerical staff suitable and adequate for performing the services to be rendered pursuant to this contract. The City shall provide at its expense hearing rooms, recording equipment, and related supplies. 12. Ownership of Documents. The record developed before the Examiner, including the Examiner's decision or recommendation, shall be the property of the City. The Examiner's work product, consisting of notes, research, and preliminary drafts, shall be the property of the Examiner. 13. Right to Terminate Contract. This contract may be terminated by the City for cause. For purposes of this paragraph, "cause" shall include, but not be limited to, a determination by the City Council that the Examiner is not giving due consideration to proper procedure or is not conducting hearings in a prudent manner, giving due regard to the appearance of fairness doctrine, laws regarding conflicts of interest, and /or other laws, procedures, and regulations dealing with the subject matter under consideration. The Examiner may terminate this contract for cause or without cause upon giving the City ninety (90) days written notice. 14. No Personal Liability. The City shall defend, indemnify and hold harmless the Examiner from all liability, loss or damage, including costs of defense she may suffer as a result of claims, demands, actions, damages, costs or judgments which result from the activities to be performed by the Examiner pursuant to this Agreement. This defense and indemnity agreement does not apply to claims arising from bad faith or malicious performance by the Examiner of her duties herein. • PROFESSIONAL SERVICES CONTRACT - Hearing Examiner 2 15. Non - Assignment. This contract is personal to the Examiner and is not assignable by the Examiner to any other individual. 16. .Amendment. This contract can only be amended by the written agreement of both parties. 17. Interest of Public Officials. No member of the governing body of the City and no officer, employee, or agent of the City shall have any personal financial interest, direct or indirect, in this contract. The Examiner shall take appropriate steps to assure compliance. 18. Interest of Hearing Examiner. The Examiner covenants that she presently has no interest and shall not acquire an interest, direct or indirect, in any property, which is the subject of a proceeding before the Examiner, which would conflict in any manner or degree With the performance of his services hereunder. 19. Term. This contract shall commence November 15, 2011 and terminate . December 31, 2013 unless prior to said date it is renewed for an additional period on terms agreeable to the City and the Examiner. EXECUTED this 15th day of November, 2011. CITY OF YAKIMA By: Donald B. Cooper Yakima City Manager ATTEST: By: Debbie Kloster City Clerk EXECUTED this 15 day of November, 2011. HEARING EXAMINER By Lacy Westfall Hein Attorney at Law • PROFESSIONAL SERVICES CONTRACT - Hearing Examiner 3