HomeMy WebLinkAboutR-2016-123 Hearing Examiner Contracts with Gary Cuillier and Pat SpurginRESOLUTION NO. R-2016-123
A RESOLUTION authorizing the City Manager of the City of Yakima to execute a Hearing
Examiner's Professional Service Contract for Gary Cuillier and a
Hearing Examiner Pro -Tem Professional Service Contract for Pat
Spurgin to have retroactive effect beginning January 1, 2016, in order
to provide for these necessary professional services on behalf of the
City
WHEREAS, the City of Yakima's Department of Community Development receives
land use applications that staff and professionals review; and
WHEREAS, the City of Yakima Planning Division provides staff recommendations for
applications regarding development projects and land use review within the City of Yakima
that must be reviewed by the City's appointed Hearing Examiner for consistency and
compliance with all of the adopted development regulations and comprehensive plan policies;
and
WHEREAS, the City's development regulations often require that public hearings on
land use and development applications be conducted and, in some instances, that additional
professional review be provided by a technically experienced land use attorney appointed by
the City Council as the Hearing Examiner; and
WHEREAS, Gary Cuillier, as the Hearing Examiner, and Pat Spurgin, as the Hearing
Examiner Pro -Tem, have agreed to continue to provide the necessary professional expertise
to the City's Planning Division to conduct public hearings and assist the City with required
technical review on land use matters and to provide the City Council with formal
recommendations, interpretations and decisions pertaining to specific land use issues; and
WHEREAS, Gary Cuillier, as the Hearing Examiner, and Pat Spurgin, as the Hearing
Examiner Pro -Tem, agree to continue providing these professional services in accordance
with the City of Yakima's Municipal Codes and the laws of Washington; and
WHEREAS, Gary Cuillier, as the Hearing Examiner and Pat Spurgin, as the Hearing
Examiner Pro -Tem, shall be compensated for the services specified within the Professional
Services Contracts attached hereto and incorporated herein by this reference from the City of
Yakima's General Fund Professional Service account number 001-213-4100; and
WHEREAS, the contracts for the Hearing Examiner and Hearing Examiner Pro -Tem
inadvertently expired on December 31, 2015 and it was only recently discovered that they had
not been timely renewed; and
WHEREAS, the City and the Hearing Examiner and the Hearing Examiner Pro -Tem
would like the contracts for the professionals services subject to the attached Agreements to
be retroactively effective beginning on January 1, 2016 in order to acknowledge the continuing
provision of professional services since that date and to the present; and
WHEREAS, the City Council deems it to be in the best interest of the City to authorize
execution of the attached Contracts to provide the professional services specified therein
beginning January 1, 2016 and continuing in accordance with the attached Agreements, 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 "Hearing Examiner's Professional Service
Contract Renewal" with Gary Cuillier and the attached and incorporated "Hearing
Examiner Pro -Tem Professional Service Contract" with Pat Spurgin, acting as the
Hearing Examiner and Hearing Examiner Pro -Tem respectively, to provide
professional Hearing Examiner services to the City of Yakima beginning from January
1, 2016 and in accordance with City Ordinances and State statutes
ADOPTED BY THE CITY COUNCIL this 18th day of October, 2016.
PROFESSIONAL SERVICES CONTRACT
FOR
CITY OF YAKIMA HEARING EXAMINER
PARTIES:
The parties to this contract are the CITY OF YAKIMA, 129 N.
Second Street, Yakima, Washington 98901 ("City" herein), and GARY
M. CUILLIER, Attorney at Law, 314 N. Second Street, Yakima,
Washington 98901 ("Cuillier" or "Examiner" herein).
RECITALS:
1. City of Yakima utilizes a Hearing Examiner for land use
matters occurring throughout the City.
2. In order to encourage consistency in land use
decisions, and because of Cuillier's experience with land use
matters in the City of Yakima, the City wishes to contract with
Cuillier as Hearing Examiner.
AGREEMENT:
1. Engagement of Hearing Examiner. The City hereby hires
Cuillier, and Cuillier agrees to serve, as Hearing Examiner for
the purposes set forth in the City's various ordinances and land
use regulations.
2. Character and Extent of Services. Cuillier shall
perform the services of Hearing Examiner for the City as required
in the City's ordinances, as well as other duties as may be
assigned by the Code Administration and Planning Manager from
time to time.
3. Pro Tem Hearing Examiner. It is contemplated that the
City Council will appoint a Pro Tem Hearing Examiner to serve in
the event of absence or inability of the Hearing Examiner to act.
4. Case Assignment. The Community Development Director,
or his/her designee, shall assign cases. While it is
contemplated that the Hearing Examiner will hear the majority of
PROFESSIONAL SERVICES CONTRACT -
Hearing Examiner 1
cases, the Community Development Director shall assure that the
Pro Tem Examiner is assigned a sufficient number and variety of
cases to maintain the knowledge, expertise and skills necessary
for effective performance of Hearing Examiner duties.
5. Additional Duties. The Examiner shall coordinate with
the Pro Tem Hearing Examiner in order to insure 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
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 Community Development Director or his/her
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 Forty Dollars ($140.00) per hour.
8.1 In addition to hourly compensation, the Examiner shall
be reimbursed for direct non -salary expenses such as out-of-town
travel, training costs, specialized reference materials, and
planning related memberships. To be eligible for reimbursement,
the Code Administration and Planning Manager shall approve
training, reference materials and memberships prior to purchase.
8.2 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. There
shall be an attachment itemizing services rendered for
PROFESSIONAL SERVICES CONTRACT -
Hearing Examiner 2
administrative matters, a second attachment itemizing services
rendered for substantive matters, and a third attachment
itemizing out of pocket expenses.
10. Payment Schedule. Payments shall be made on the 20th
of the month for statements received by the 5th 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 he 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 his duties herein.
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.
PROFESSIONAL SERVICES CONTRACT -
Hearing Examiner 3
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 he 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 be deemed to have commenced
on January 1, 2016 and shall terminate December 31, 2019 unless
prior to said date it is renewed for an additional period on
terms agreeable to the City and the Examiner.
EXECUTED this /q 'day of October, 2016
ATTEST:
B
CITY OF YAKIMA
By:
Sonya Cil ar-Tee
City Clerk
EXECUTED this
re, City Manager
CITY CONTRACT NO: 0 v, 6 / 9/
RESOLUTION NO: .2o[f`12.3
r
14.61 {
11 r > `4 iii
1 r ` f r
1 1 +4 day o ;�Q
,`ctobr;? 2016
HEARING EXAMINER
By: M,
Gary M .CCuillier
PROFESSIONAL SERVICES CONTRACT -
Hearing Examiner 4
PROFESSIONAL SERVICES CONTRACT
FOR
CITY OF YAKIMA HEARING EXAMINER PRO TEM
PARTIES:
The parties to this contract are the CITY OF YAKIMA, 129 N.
Second Street, Yakima, Washington 98901 ("City" herein), and
PATRICK SPURGIN, Attorney at Law, 411 N. Second Street, Yakima,
Washington 98901 ("Spurgin" or "Pro Tem" herein).
RECITALS:
1. City of Yakima utilizes a Hearing Examiner for land use
matters occurring throughout the City.
2. In order to encourage consistency in land use decisions,
and because of Spurgin's experience with land use matters in the
City of Yakima, the City wishes to contract with Spurgin as Hearing
Examiner Pro Tem.
AGREEMENT:
1. Engagement of
contemplated that the City
Examiner to serve in the
Hearing Examiner to act.
Spurgin agrees to serve,
purposes set forth in the
regulations.
Hearing Examiner Pro Tem. It is
Council will appoint a Pro Tem Hearing
event of absence or inability of the
The City hereby hires Spurgin, and
as Hearing Examiner Pro Tem for the
City's various ordinances and land use
2. Character and Extent of Services. Spurgin shall perform
the services of Hearing Examiner Pro Tem for the unincorporated
area of City as required in the City's ordinances, as well as other
duties as may be assigned by the Code Administration and Planning
Manager from time to time.
3. Case Assignment. The Community Development Director,
or his/her designee, shall assign cases to the Pro Tem. While it
is contemplated that the Hearing Examiner will hear the majority of
cases, the Community Development Director shall assure that the
Pro Tem is assigned a sufficient number and variety of cases to
PROFESSIONAL SERVICES CONTRACT -
Hearing Examiner Pro -Tem 1
maintain the knowledge, expertise and skills necessary for
effective performance of Hearing Examiner duties.
4. Additional Duties. The Pro Tem shall coordinate with
the Hearing Examiner in order to insure consistency of analysis and
efficient decision-making. The Pro Tem's duty to determine matters
efficiently shall include the duty to issue written findings and
conclusions for all matters coming before the Pro Tem 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 Pro Tem's failure to comply with this duty will result in
deduction from compensatiaz otherwise due the Pro Tem in the amount
of $100.00 for each day of delay beyond ten (10) working days after
the hearing conclusion.
5. Liaison. The Community Development Director, or
his/her representative, shall serve as the City's liaison with the
Pro Tem.
6. Independent Contract. The relationship of the Pro Tem
to the City is that of an independent contractor rendering
professional services. The Pro Tem 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 Pro Tem.
7. Professional Fees. The Pro Tem shall be paid by the
City for professional services rendered under this contract at the
rate of One Hundred Thirty Dollars ($130.00) per hour.
7.1 In addition to hourly compensation, the Pro Tem shall be
reimbursed for direct non -salary expenses such as out-of-town
travel, training costs, specialized reference materials, and
planning related memberships. To be eligible for reimbursement,
the Community Development Director shall approve training,
reference materials and memberships prior to purchase.
7.2 The payment provided in this section shall be full
compensation for services rendered, including all labor, materials,
supplies, equipment, and necessary incidentals.
8. Itemized Statements. By the 5th day of each month the
Pro Tem will provide to the City an itemized statement for services
and expenses incurred during the previous month. There shall be an
attachment itemizing services rendered for administrative matters,
a second attachment itemizing services rendered for substantive
matters, and a third attachment tiemizing out of pocket expenses.
PROFESSIONAL SERVICES CONTRACT -
Hearing Examiner Pro -Tem 2
9. Payment Schedule. Payments shall be made on the 20th of
the month for statements received by thetS day of the same month.
10. Facilities to be Furnished by Pro Tem. The Pro Tem
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.
11. Ownership of Documents. The record developed before the
Pro Tem, including the Pro Tem's decision or recommendation, shall
be the property of the City. The Pro Tem's work product,
consisting of notes, research, and preliminary drafts, shall be the
property of the Pro Tem.
12. 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 Pro Tem 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 Pro Tem may terminate this contract for cause or
without cause upon giving the City ninety (90) days written notice.
13. No Personal Liability. The City shall defend, indemnify
and hold harmless the Pro Tem from all liability, loss or damage,
including costs of defense he may suffer as a result of claims,
demands, actions, damages, costs or judgments which result from the
activities to be performed by the Pro Tem pursuant to this
Agreement. This defense and indemnity agreement does not apply to
claims arising from bad faith or malicious performance by the Pro
Tem of his duties herein.
14. Non -Assignment. This contract is personal to the Pro
Tem and is not assignable by the Pro Tem to any other individual.
15. Amendment. This contract can only be amended by the
written agreement of both parties.
16. 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 Pro Tem shall take appropriate
steps to assure compliance.
17. Interest of Pro Tem. The Pro Tem covenants that he
presently has no interest and shall not acquire an interest, direct
PROFESSIONAL SERVICES CONTRACT -
Hearing Examiner Pro -Tem 3
or indirect, in any property, which is the subject of a proceeding
before the Pro Tem, which would conflict in any manner or degree
with the performance of his services hereunder.
18. Term. This contract shall be deemed to have commenced
January 1, 2016 and shall terminate, on December 31, 2019, unless
prior to said date it is renewed for an additional period on terms
agreeable to the City and the Pro Tem.
EXECUTED this /G day ofOctober, 2016
ATTEST:
By
LL
CITY OF YAKIMA
By:
Cli
_„„f;ccs. sly
1(01
Sonya aar-Tee ).,
City Clerk
EXECUTED this
re, City Manager
CITY CONTRACT NO.�/ / ��
RESOLUTION NO e at,/ / 2 3
day ofOctober, 2016
EX L INER
By:
PROFESSIONAL SERVICES CONTRACT -
Hearing Examiner Pro -Tem 4
Pat ick Spurgin
ITEM TITLE:
BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDASTATEMENT
Item No. 6.H.
For Meeting of: October 18, 2016
Resolution authorizing professional service contracts with Gary
Cuillier as the City of Yakima Hearing Examiner and Patrick Spurgin
as the Examiner Pro -Tem
SUBMITTED BY: Joan Davenport, AICP, Community Development Director
Jeff Peters, Supervising Planner
SUMMARY EXPLANATION:
The City of Yakima has used the Hearing Examiner system since 1987 for the purpose of
conducting public hearings on certain land use and development applications. Gary Cuillier and
Pat Spurgin have agreed to continue to provide the necessary professional expertise to the City's
Planning Division to conduct public hearings and assist the City with required technical review on
land use matters and to provide the City Council with formal recommendations, interpretations
and decisions pertaining to specific land use issues. The Professional Service Agreement
provides for an hourly rate of $140 to the Examiner and $130 to the Examiner Pro -Tem. This rate
has not been changed from the existing contract and has been in effect since 2011.
It was recently discovered that the previous contracts for the Hearing Examiner and Hearing
Examiner Pro -Tem inadvertently expired on December 31, 2015. The attached contracts are four
year renewals with retroactive effective dates and expiration dates of December 31, 2019.
ITEM BUDGETED:
Yes
STRATEGIC PRIORITY: Neighborhood and Community Building
APPROVED FOR
SUBMITTAL:
STAFF RECOMMENDATION:
Adopt resolution.
BOARD/COMMITTEE RECOMMENDATION:
ATTACHMENTS:
Description Upload Date
O Resolution HEandProTemContractRenewal 9/28/2016
O Contract HECuillier 9/28/2016
O Contract_ProTemSpurgin 9/28/2016
Type
Resolution
Contract
Contract