HomeMy WebLinkAboutR-2008-013 Hearing Examiner and Pro Tem ContractRESOLUTION NO. R-2008-13
A RESOLUTION authorizing the City Manager of the City of Yakima to execute a
Hearing Examiner's Professional Service Contract Renewal for
Gary Cuillier and a Hearing Examiner Pro -Tem Professional Service
Contract Renewal for Pat Spurgin in order to continue these
necessary professional services on behalf of the City.
WHEREAS, the City of Yakima's Department of Community and Economic
Development receives land use applications that staff and professional review; and
WHEREAS, the City of Yakima Code Administration and 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 acting Hearing Examiner, and Pat Spurgin, as the
acting Hearing Examiner Pro -Tem, have agreed to continue to provide the necessary
professional expertise to the City's Code Administration and 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 acting Hearing Examiner, and Pat Spurgin, as the
acting 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 acting Hearing Examiner and Pat Spurgin,
as the acting Hearing Examiner Pro -Tem, shall be compensated for the services
specified within the Professional Services Contracts attached hereto and
(jc)res/Hearing Examiner & Pro -Tem
Hearing Examiner Renewal
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incorporated herein by this reference from the City of Yakima's General Fund
Professional Service account number 020-313-0000-55860-410; 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 professionalservices
specified therein, 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 Code Administration
and Planning Division in accordance with City Ordinances and State statutes.
ADOPTED BY THE CITY COUNCIL this 15th day of January, 2008.
(jc)res/Hearing Examiner & Pro -Tem
Hearing Examiner Renewal
2
Da d Edler, ayor
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 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
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
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, 2008 and
terminate December 31, 2011 unless prior to said date it is renewed
for an additional period on terms agreeable to the City and the
Examiner.
EXECUTED this /844" day of January, 2008
ATTEST:
By:
Debbie Moore
City Clerk
CITY OF .• IMA
By:
At A,'
gave dler, Mayor
Yakima City Council
EXECUTED this ,22, ^4 day of January, 2008
HEARING EXAMINER
By:
CITY CONTRAC r No:,eQQe"13
RESOLUTION NO: 2 13
Gary M. Cuillier
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. 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. 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 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 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 Pro -Tem 1
cases to 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 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.
5. Liaison. The Code Administration and Planning Manager,
or his 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 Code Administration and Planning Manager 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 itemizing 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 the 5th 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 commence January 1, 2008 and
terminate December 31, 2011, 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 January, 2008
ATTEST:
By:
Debbie Morre
City Clerk
CITY OF AKIMA
By:
ave Edler, Mayor
Yakima City Council
EXECUTED this day of January, 2008
CITY CONTRAC r N0M00_1
174
RESOLUTION NO: ,24t9S -13
PROFESSIONAL SERVICES CONTRACT -
Hearing Examiner Pro -Tem 4
ITEM TITLE:
BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT
Item No 469 t3
For Meeting of January 15, 2008
Consideration of a resolution authorizing the execution of contracts with
Gary Cuillier as the City of Yakima's Hearing Examiner and Patrick Spurgin
as the Examiner Pro -Tern
SUBMITTED BY: William R. Cook, Director of Community and Economic
Development Department
CONTACT PERSON/TELEPHONE: Doug Maples, Code Administration and Planning
Manager (509) 575-6121
SUMMARY EXPLANATION.
The City Council appointed Gary Cuillier, Hearing Examiner, and Pat Spurgin, Hearing
Examiner Pro Tern, to a four-year contract in 2003 at the recommendation of the Council
Joint Hearing Examiner Committee. The Hearing Examiner and Hearing Examiner Pro -
Tern contracts expired December 31, 2007. The Hearing Examiner has requested a 7.7%
increase to his hourly rate The increase would provide approximately 329 hours of
Hearing Examiner services based on the approved 2008 budget of $45,000.
Staff recommends a four (4) year contract renewal based upon the timely professional
processing of each and every case by the Hearing Examiner and the Hearing Examiner
Pro -Tern over the previous contract period. All written decisions were returned within the
ten day deadline established in the contract.
Each decision provided a clear, reasoned, fact based decision that is important to the City,
the applicant and the community as a whole
Resolution X Ordinance Other (Specify)
Contracts X Mail to (name and address):
Phone.
Funding Source General Fund (0
APPROVED FOR SUBMITTAL:
�S `k
City nager
STAFF RECOMMENDATION: Authorize a renewal of the contracts with Gary Cuillier as
Hearing Examiner and Patrick Spurgin as Examiner Pro Tern for an additional four-year
period
BOARD/COMMISSION RECOMMENDATION• The Council Hearing Examiner Committee has
reviewed the proposed contracts and hourly rate increase and recommends approval
COUNCIL ACTION: Resolution adopted. R-2008-13