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HomeMy WebLinkAbout12/06/2011 04J Hearing Examiner Contract with Gary Cullier; Examiner Pro-Tem Contract with Patrick Spurgin • • • n1 BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT -� Item No. q ,J, For Meeting of: December 6, 2011 ITEM TITLE: Resolution authorizing contracts with Gary Cullier as the City of Yakima Hearing Examiner and Patrick Spurgin as the Examiner Pro -Tem. SUBMITTED BY: Michael Morales, Assistant City Manager CONTACT Joan Davenport, Planning Manager (576 -6417) PERSON/TELEPHONE: - . 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 applications. The 4 -year professional service contracts with Gary Cullier as the City of Yakima Hearing Examiner and Patrick Spurgin as the Examiner Pro -Tem expires at the end of calendar year 2011. The attached contracts are 4 -year renewals of the exisitng contracts with both parties, subject to the same • terms and conditions. The new contract would extend from 2012 to the end of 2015. Resolution X Ordinance Other (specify) Contract: X Mail to: Contract Term: 2012 through 2015 Amount: Expiration Date: Insurance Required? No Funding Source: . Phone: APPROVED FOR City Manager SUBMITTAL: • �!� STAFF RECOMMENDATION: Adopt the resolution that authorizes the City Manager to execute the contracts. BOARD /COMMISSION RECOMMENDATION: ATTACHMENTS: Click to download ❑ Resolution authorizing City Manager to sign contracts with Hearing Examiner and Examiner Pro -Tem ❑ Contract for Hearing Examiner ❑ Contract with Examiner Pro -Tem • RESOLUTION NO. R -2011- 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 incorporated herein by this (jc)res/Hearing Examiner & Pro -Tem 1 Hearing Examiner Renewal 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 professional services 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 6 day of December, 2011. • Micah Cawley, Mayor ATTEST: City Clerk 111 (jc)res/Hearing Examiner & Pro -Tem 2 Hearing Examiner Renewal • 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 /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 Code Administration and Planning Manager 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 Code Administration and Planning Manager, 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 5 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 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 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 commence January 1, 2012 and terminate December 31, 2015 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, 2011 CITY OF YAKIMA By: • Donald B. Cooper, City Manager ATTEST: By: Debbie Moore City Clerk • EXECUTED this day of December, 2011 HEARING EXAMINER By: 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 /her 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 PROFESSIONAL SERVICES CONTRACT - Hearing Examiner Pro -Tem 1 variety of 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 /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 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 5 th 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. r PROFESSIONAL SERVICES CONTRACT - Hearing Examiner Pro -Tem 2 9. Payment Schedule. Payments shall be made on the 20 of the month for statements received by the 5 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. 1111 The Pro Tem may terminate this contract for cause or w ithout 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, 2012 and terminate December 31, 2015, 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, 2011 CITY OF YAKIMA By: Donald B. Cooper, City Manager ATTEST: By: Debbie Morre City Clerk EXECUTED this day of December, 2011 • EXAMINER PRO -TEM By: Patrick Spurgin PROFESSIONAL SERVICES CONTRACT - Hearing Examiner Pro -Tem 4