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12/10/2019 06H Gary Cuillier as Hearing Examiner & Patrick Spurgin as Examiner Pro-Tem - Professional Service Agreement 1 a\'4\lyy bxk ik 1 • 1-,V, PPPPPP+Pd s' lii it tYlltYlA.\ta. BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. 6.H. For Meeting of: December 10, 2019 ITEM TITLE: 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,AI CP, Community Development Director Joseph Calhoun, Planning Manager(509) 575-6042 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 Patrick 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. They will also provide the City Council with formal recommendations, interpretations and decisions pertaining to specific land use issues. The Professional Service Agreements provide for an hourly rate of$155 to the Examiner and the Examiner Pro-Tem. This rate is an increase from the current contract and which had been in effect since 2011. The attached contracts are four year renewals with expiration dates of December 31, 2023. ITEM BUDGETED: Yes STRATEGIC PRIORITY: Neighborhood and Community Building APPROVED FOR SUBMITTAL BY THE CITY MANAGER RECOMMENDATION: Adopt resolution. ATTACHMENTS: Description Upload Date Type D resolution 11/ /2019 esolution D earin xa iner contract_( aillier 11/25/2019 retract Flearin xa iner Pro-terry contract_P pur in 11/25/ 019 retract 2 RESOLUTION NO. R-2019- A RESOLUTION authorizing the City Manager of the City of Yakima to execute contract agreements with Gary Cuillier for Hearing Examiner's Services and Patrick Spurgin for Hearing Examiner Pro-Tem Services 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 Patrick 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 Patrick 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 Patrick 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 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 effective beginning on January 1, 2020 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, 2020 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 "Professional Services Contract for City of Yakima Hearing Examiner Pro Tem" with Patrick Spurgin, acting as the Hearing Examiner and Hearing Examiner Pro-Tem respectively, to provide professional Hearing Examiner services to 3 the City of Yakima beginning from January 1, 2020 and in accordance with City Ordinances and State statutes. ADOPTED BY THE CITY COUNCIL this 10th day of December, 2019. Kathy Coffey, Mayor ATTEST: City Clerk 4 , PROFESSIONAL SERVICES CONTRACT � FOR � CITY OF YAKIMA HEARING EXAMINER � PARTIES: � The parties to this contract are the CITY OF Y/\K|K8A, 129 N. Second Street. Yakima, : Washington 98901 ("City" hanain). and GARY M. CU|LL|ER, Attorney at LGvv. 314 N. Second � Street, `yaNrna. Washington 98901 (^CuiUier" or"Examiner" herein). RECITALS: 1' City of Yakima utilizes g Hearing Examiner for land use matters occurring throughout the City. 2' In order to encourage consistency in land use dmcieione, and because of CuiUier'o experience with land use nnottaro in the City of Yakima, the City wishes to contract with CuiUiar an Hearing Examiner. AGREEMENT: 1' Engagement of Hearing Examiner. The City hereby hires CuiUier. and CuiUier agrees to serve. an Hearing Examiner for the purposes set forth in the Cihx'a various ordinances and land use regulations. Unless terminated pursuant to paragraph 13, the term of the engagement of the Hearing Examiner shall be for four (4) years. 2' Character and Extent of Services. C}ui||ier shall perform the een/ioee of Hearing Examiner for the City as required in the City'a ordinanceo, as well as other duties as may be assigned by the Coda Administration or Planning Manager from time to time. 3' Pro Tern Hearing Examiner. It is contemplated that the City Council will appoint a Pro Tern Hearing Examiner to serve in the event of absence or inability of the Hearing Examiner to act. 4' Case Assignment. The Community Development Oirector, or his/her designaa, ahm|| assign cases. While it is contemplated that the Hearing Examiner will hear the majority of 000eo. the Community Development Director mhm|| assure that the Pro Tern Examiner is assigned o sufficient number and variety of cases to maintain the knowledge, expertise and skills necessary for effective performance of Hearing Examiner dudes. 5' Additional Duties. The Examiner ghm|| coordinate with the Pro Tern Hearing Examiner when appropriate 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) xvmrbin8 days after the hearing conclusion. 6' Liaison. The Community Development C)inaotmr or his/her nepreaantadva, shall serve as the City'm liaison with the Examiner. yuoFEos|umAL 3E&nlCu3 Comrmxc1' - Hearing uxamine/ l n � � ` 7. Independent Contract. The relationship of the Examiner to the City is that of an independent contractor rendering professional services. The Examiner ehGU have no authority ' to execute contracts or to make oonnnnitnnenta on behalf ofthe Citv, 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 Fifty Five Oo||an9 ($155.00) per hour. 8'1 In addition to hourly compensation, the Examiner shall be reimbursed for direct non- salary expenses such as out-of-town trava|, training cmato, specialized reference nnmteria|o, and planning related memberships. To be eligible for reimbursement, the Code Administration or 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 nandered, including all |abor, nmaterim|8, supp|ieo, equipnnent, and necessary incidentals. 9. ItemizedStatements. By the 5 mday 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 on attachment itemizing services rendered for administrative mnGtter8, a second attachment itemizing services rendered for substantive nnmtterm, and a third attachment itemizing out of pocket expenses. 10' ��t ���h�d�U�. Payments shall be made on the 20m of the month for ' - -^' statements m by day Cf the same month. 11' Facilities to be Furnished by Hearing Examiner. The Examiner ehmU furnish and maintain an office. equipment, |ibnary, 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 roonno, recording equipnmant, and related supplies. 12' Ownership of Documents. The record developed before the Exanniner, including the Examiner's decision or reoommendation, ehm|| be the property of the City. The Examiner's work pnzduct, consisting of noteo, reoearoh, and preliminary drafte, shall be the property of the Examiner. 13' Right to Terminate Contract. The Hearing Examiner may be removed by the City Council pursuant to `yK8C 1.43.040. For purposes of this paragraph, "cause" shall ino|ude, but not be limited to, a determination by the City Council that the Examiner is not giving due consideration to proper procedure Or in not conducting hearings in a prudent manner, giving due regard to the appearance of fairness doctrine. |axva regarding conflicts of intereat, and/or other |axvs, pronedunoo, and regulations dealing with the subject matter under consideration. The City or the Examiner may terminate this contract for cause or without cause upon giving the City ninety (SD) days written notice. The Hearing Examiner shall continue work on any pending rnattera, and the City shall pay for such vvork, even if it occurs after the 90 day period. PROFESSIONAL SexvrCn3 CONTRACT - Hearing Examiner 2 6 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. 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, 2020 and shall terminate December 31, 2023 unless prior to said date it is renewed for an additional period on terms agreeable to the City and the Examiner. EXECUTED this day of December, 2019 CITY OF YAKIMA By: Alex Meyerhoff, Interim City Manager ATTEST: By: Sonya Claar-Tee City Clerk EXECUTED this "4" day of December, 2019 HEARING EXAMINER By: or Gary M. Cuillier PROFESSIONAL SERVICES CONTRACT - Hearing Examiner 3 7 Gary . Cuillier ATTORNEY AT LAW 314 N. SECOND STREET YAKIMA,WASHINGTON 98901 (509)575-1800 FAX: (509)452-4601 November 21, 2019 Rosalinda Ibarra Yakima City Planning Division 129 North 2nd Street Yakima, WA 98901 Re: Professional Services Contract for City of Yakima Hearing Examiner Dear Rosalinda, Enclosed please find my signed Hearing Examiner renewal contract postdated for the first working day of the month stated. Again, please relay my thanks to those who will be recommending it to the City Council. Yours very truly, v:1 : GARY CUILLIER GMC: krr Enclosure 8 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 Tern" 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 Tern. AGREEMENT: 1. Engagement of Hearing Examiner Pro Tem. It is contemplated that the City Council will appoint a Pro Tern Hearing Examiner to serve in the event of absence or inability of the Hearing Examiner to act. The City hereby hires Spurgin, and Spurgin agrees to serve, as Hearing Examiner Pro Tern 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 Tern for the City as required in the City's ordinances, as well as other duties as may be assigned by the Code Administration or Planning Manager from time to time. 3. Case Assignment. The Community Development Director, or his/her designee, shall assign cases to the Pro Tern. While it is contemplated that the Hearing Examiner will hear the majority of cases, the Community Development Director shall assure that the Pro Tern is assigned a sufficient number and variety of cases to maintain the knowledge, expertise and skills necessary for effective performance of Hearing Examiner duties. 4. Additional Duties. The Pro Tern 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 corning before the Pro Tern 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 Tern 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 Tern. PROFESSIONAL SERVICES CONTRACT - Hearing Examiner Pro-Tem 1 9 6. Independent Contract. The relationship of the Pro Tern to the City is that of an independent contractor rendering professional services. The Pro Tern 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 Tern. 7. Professional Fees. The Pro Tern shall be paid by the City for professional services rendered under this contract at the rate of One Hundred Fifty Five Dollars ($155.00) per hour. 7.1 In addition to hourly compensation, the Pro Tern 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 5'h day of each month the Pro Tern 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. 9. Payment Schedule. Payments shall be made on the 20'h of the month for statements received by the 5'h day of the same month. 10. Facilities to be Furnished by Pro Tem. The Pro Tern 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 hearing record developed before the Pro Tern, including without limitation staff reports, hearing exhibits, public comment documentation and the Pro Tem's decision or recommendation, shall be the property of the City. The Pro Tern shall cooperate by providing any and all responsive documents not otherwise exempt (as determined by the City) if requested by a Public Records Act request. All records associated with this contract shall be retained in compliance with the Washington State Secretary of State records retention schedule. 12. Removal and Right to Terminate Contract. The Hearing Examiner may be removed by the City Council pursuant to YMC 1.43.040. For purposes of this paragraph, "cause" shall include, but not be limited to, a determination by the City Council that the Pro Tern 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 City or the Pro Tern may terminate this contract for cause or without cause upon giving the City ninety (90) days written notice. The Pro Tern shall continue work on any pending matters, and the City shall pay for such work, even if it occurs after the 90 day period. PROFESSIONAL SERVICES CONTRACT - Hearing Examiner Pro-Tem 2 10 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 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, 2020 and shall terminate on December 31, 2023, unless prior to said date it is renewed for an additional period on terms agreeable to the City and the Pro Tem. EXECUTED this_day of December, 2019 CITY OF YAKIMA By: Alex Meyerhoff, Interim City Manager ATTEST: By: Sonya Claar-Tee City Clerk EXECUTED this day of December, 2019 EXAMINER PRO-TEM By: Patrick Spurgin PROFESSIONAL SERVICES CONTRACT - Hearing Examiner Pro-Tem 3