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HomeMy WebLinkAboutR-2024-011 Resolution authorizing professional service contracts with Gary Cuillier as the City of Yakima Hearing Examiner and Patrick Spurgin as the Examiner Pro-Tem RESOLUTION NO. R-2024-011 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 professional services subject to the attached Agreements to effective beginning on January 2, 2024 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 2, 2024 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 1 Hearing Examiner Pro-Tem respectively, to provide professional Hearing Examiner services to the City of Yakima beginning from January 2, 2024 and in accordance with City Ordinances and State statutes. ADOPTED BY THE CITY COUNCIL this 2nd day of January, 2024. • /9 Patricia Byers, ay or ATTEST: _,(p,KIMAI � . S • ,• 1 - VALLIA ki)-h-14 ----//'# i i SEAL 1 1 osalinda Ibarra, City Clerk VIi,` \SHiNG�O�.. 2 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. 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. 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 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 Director, or his/her designee, shall assign cases. While it is contemplated that the Hearing Examiner will hear the majority of 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 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. 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 PROFESSIONAL SERVICES CONTRACT - Hearing Examiner 1 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 Sixty Five Dollars ($165.00) per hour. 8.1 In addition to hourly compensation, in the event that the Community Development Director requests the Examiner to undertake out-of-town travel, training activities, acquisition of specialized reference materials, and participation or membership in planning related organizations, the Examiner shall be reimbursed for direct non-salary expenses incurred for such out-of-town travel, training costs, costs for specialized reference materials, and planning related membership participation or membership fees. 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. 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. 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 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 City or the Examiner may terminate this contract for cause or without cause upon giving the City ninety (90) days written notice. The Hearing Examiner shall continue to work on any pending matters, and the City shall pay for such work, even if it occurs after the 90-day period. 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 PROFESSIONAL SERVICES CONTRACT - Hearing Examiner 2 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, 2024 and shall terminate December 31, 2027 unless prior to said date it is renewed for an additional period on terms agreeable to the City and the Examiner. J EXECUTED this day of 9sse erg-2023 CITY IMA By: Bob Harrison, Interim City Manager ATTEST: C� CITY CONTRACT NO RESOLUTION NO. I By: �: II ! ./ :/ 1 Il i i ,�.=,�p,KIMq her, Rosalinda Ibarra 141, City Clerk SEAL • EXECUTED this day of D- HEARING EXAMINER By: R'\ . Gary M. CuillieF PROFESSIONAL SERVICES CONTRACT - Hearing Examiner 3 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 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 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 Tem 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 coming 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. 5. Liaison. The Community Development Director, or his/her representative, shall serve as the City's liaison with the Pro Tern. 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 PROFESSIONAL SERVICES CONTRACT- Hearing Examiner Pro-Tern 1 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 Tern shall be paid by the City for professional services rendered under this contract at the rate of One Hundred Sixty Five Dollars ($165.00) per hour. 7.1 In addition to hourly compensation, in the event that the Community Development Director requests the Pro Tern to undertake out-of-town travel, training activities, acquisition of specialized reference materials, and participation or membership in planning related organizations, the Pro Tem shall be reimbursed for direct non-salary expenses incurred for such out-of-town travel, training costs, costs for specialized reference materials, and planning related membership participation or membership fees. 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 5ch 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. 9. Payment Schedule. Payments shall be made on the 20th 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 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 hearing record developed before the Pro Tem, 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 Tem's work product, consisting of notes, research, and preliminary drafts, shall be the property of the Pro Tern. 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 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 City or the Pro Tem may terminate this contract for cause or without cause upon giving the City ninety (90) days written notice. The Pro Tem shall continue to work on any pending matters, and the City shall pay for such work, even if it occurs after the 90-day period. 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 PROFESSIONAL SERVICES CONTRACT- Hearing Examiner Pro-Tem 2 the Pro Tern pursuant to this Agreement. This defense and indemnity agreement does not apply to claims arising from bad faith or malicious performance by the Pro Tern of his duties herein. 14. Non-Assignment. This contract is personal to the Pro Tern and is not assignable by the Pro Tern 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 Tern 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 Tern, 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, 2024, and shall terminate on December 31, 2027, unless prior to said date it is renewed for an additional period on terms agreeable to the City and the Pro Tern. day of EXECUTED this I�Ls1 a?1-1' CITY Qf=YAr;KIMA r By: Bob Harrison, Interim City Manager ATTEST: ONTRACT NO_ Y MA? N NO: 1't. of By: Ro alinda Ibarra SEAL City Clerk EXECUTED this 18th day of Dee m er 2023. E INER P - By: Pat Spurgin PROFESSIONAL SERVICES CONTRACT- Hearing Examiner Pro-Tern 3 1 0*:ems BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. 8.P. For Meeting of: January 2, 2024 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,AICP, 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$165 to the Examiner and the Examiner Pro-Tem. This rate is an increase from the current contract and which had been in effect since 2019. The attached contracts are four year renewals with expiration dates of December 31, 2027. ITEM BUDGETED: Yes STRATEGIC PRIORITY: Neighborhood and Community Building APPROVED FOR SUBMITTAL BY THE CITY MANAGER RECOMMENDATION: Adopt Resolution. ATTACHMENTS: Description Upload Date Type ▪ Resolution 12/18/2023 ❑ Hearing Examiner Contract 12/18/2023 ❑ Hearing Examiner Pro Tem Contract 12/18/2023