HomeMy WebLinkAboutR-2003-157 Gary Cullier & Pat Spurgin Agreements (Hearing Examiner)RESOLUTION NO. R 2003 -157
A RESOLUTION authorizing and directing the City Manager of the City of Yakima to
execute professional service agreements with Gary Cuillier and Pat
Spurgin to act as hearing examiner and hearing examiner pro tem
with regard to land use matters occurring throughout the City of
Yakima.
WHEREAS, the City of Yakima requires the services of a hearing examiner and a
hearing examiner pro tem to consider and address land use matters occurring throughout
the City; and
WHEREAS, Gary Cuillier and Pat Spurgin have the experience and expertise
necessary to provide said services and are willing to do so in accordance with the terms and
conditions of the attached professional services agreements; and
WHEREAS, the City Council deems it to be in the best interest of the City of Yakima
to enter into said agreements with Gary Cuillier and Pat Spurgin to act as hearing examiners
in land use matters, 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 agreements with Gary Cuillier
and Pat Spurgin to act as hearing examiner and hearing examiner pro tem with regard to
land use matters throughout the City of Yakima.
ADOPTED BY THE CITY COUNCIL this 16 day of December, 2003.
ATTEST:
City Clerk
(lk)res-ced-hearing examiner contracts-dec 02 -pm
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 Code Administration and Planning
Manager, or his designee, shall assign cases. While it is
contemplated that the Hearing Examiner will hear the majority of
cases, the Code Administration and Planning Manager shall assure
that the Pro Tem Examiner is assigned a sufficient number and
PROFESSIONAL SERVICES CONTRACT -
Hearing Examiner 1
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 Code Administration and Planning Manager,
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 Thirty Dollars ($130.00) 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
administrative matters, a second attachment itemizing services
rendered for substantive matters, and a third attachment itemizing
out of pocket expenses.
PROFESSIONAL SERVICES CONTRACT -
Hearing Examiner 2
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.
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.
PROFESSIONAL SERVICES CONTRACT -
Hearing Examiner 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.
19. Term. This contract shall commence January 1, 2004 and
terminate December 31, 2007, unless prior to said date it is
renewed for an additional period on terms agreeable to the City and
the Pro Tem.
EXECUTED this WI -day of December, 2003
y.-,�
Karen Roberts
City Clerk
EXECUTED this
CIT OF YAKIMA
By : -��� 1
Richard A, Zai Jr.
City Manager
.circ CONTRACT Nu: o?DD - D
RESOLUTION NO: o?OD3 /qS�
47-1"
day.of December, 2003
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 Hearing Examiner Pro Tem. The City hereby
hires Spurgin, and Spurgin agrees to serve, as Hearing Examiner Pro
Tem for the purposes set forth in the City's various ordinances and
land use regulations.
2. Character and Extent of Services. Spurgin shall perform
the services of Hearing Examiner Pro Tem for the J4P,incorporated
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. 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 Code Administration and Planning
Manager, or his designee, shall assign cases to the Pro Tem. While
it is contemplated that the Hearing Examiner will hear the majority
of cases, the Code Administration and Planning Manager shall assure
that the Pro Tem is assigned a sufficient number and variety of
PROFESSIONAL SERVICES CONTRACT -
Hearing Examiner 1
cases to maintain the knowledge, expertise and skills necessary for
effective performance of Hearing Examiner duties.
5. 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 compensation 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.
6. Liaison. The Code Administration and Planning Manager,
or his representative, shall serve as the City's liaison with the
Pro Tem.
7. 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.
8. Professional Fees. The Pro Tem 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.
8.1 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 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
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 itemizing out of pocket expenses.
PROFESSIONAL SERVICES CONTRACT -
Hearing Examiner 2
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 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.
12. 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.
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 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.
14. 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.
15. Non -Assignment. This contract is personal to the Pro
Tem and is not assignable by the Pro Tem 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 Pro Tem shall take appropriate
steps to assure compliance.
18. 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 3
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 commence January 1, 2004 and
terminate December 31, 2007 unless prior to said date it is renewed
for an additional period on terms agreeable to the City and the
Examiner.
EXECUTED this b day of December, 2003
44Aal—v'' ,�
Karen Roberts
City Clerk
CITY OF YAKIMA
By-a.,�,�`77\
Richard A. Zais, Jr.
City Manager
EXECUTED this A3 raL day of December, 2003
CITY CONTRACT NO:� /D6
RESOLUTION NO: .1.-410,33 - 57
HEARI EXAMINER'
By: �+-•-� �., . C�,...L,�:
Gary M. Cuillier
PROFESSIONAL SERVICES CONTRACT -
Hearing Examiner 4
BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT
Item No.*1 C
For Meeting of December 16, 2003
ITEM TITLE: Consideration of Resolution Authorizing Contract Renewal to 1)
Gary Cuillier as the City of Yakima's Hearing Examiner and 2)
Patrick Spurgin as the Examiner Pro Tem.
SUBMITTED BY:
1
am R. Cook, Director of Community and Economic
Development Department
CONTACT PERSON/TELEPHONE: Doug Maples, Code Administration and Planning
Manager (509) 575-6121
SUMMARY EXPLANATION:
Last December 17, 2002 the City Council appointed Gary Cuillier, Hearing
Examiner and Pat Spurgin, Hearing Examiner Pro Tem for a one-year contract at
the recommendation of the Joint Hearing Examiner Committee (comprised of
Councilmen Sims and Barnett and Commissioners Gamache and Palacios).
The Joint Hearing Examiner Committee indicated to review the contractual
language for both positions after the first year. This is a four (4) year contract
resulting from the excellent job done. Neither Hearing Examiner's exceeded the
10 -day decision time period required in the contract.
Staff felt each decision made this last year was well thought out and provided
reason along with supporting justification for the decision.
Resolution X Ordinance Other (Specify)
Contracts X Mail to (name and address):
Phone:
Funding Source General Fund (0 1)
APPROVED FOR SUBMITTAL:
City Manager
STAFF RECOMMENDATION:The City Council renews the contracts with Gary Cuillier
as Hearing Examiner and Patrick Spurgin as Examiner Pro Tem for a four-year period.
BOARD/COMMISSION RECOMMENDATION:
COUNCIL ACTION: Resolution adopted. RESOLUTION NO. R-2003-157