HomeMy WebLinkAbout2009-082
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
RESOLUTION NO. 2009-82
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL
SERVICES AGREEMENT BETWEEN THE LAW OFFICES OF JONES AND
MAYER, AND RETAINING GREGORY P. PALMER FOR HEARING OFFICER
ANDIOR ADMINISTRATIVE LAW OFFICER SERVICES.
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO AS FOLLOWS:
SECTION 1. The Mayor of the City of San Bernardino is hereby authorized and
directed to execute on behalf of said City, a Professional Services Agreernent between the Law
Offices of Jones and Mayer and the City of San Bernardillo, for hearing officer services and
administrative law officer services under the City's Municipal Code, a copy of which is
attached hereto marked Exhibit A and incorporated herein by reference as fully as though set
forth at length.
SECTION 2.
The authorization to execute the above-referenced agreement is
rescinded if the parties to the agreement fail to execute it witbill sixty (60) days of the passage
of this resolution.
III
III
/11
III
III
III
III
III
III
2009-82
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL
SERVICES AGREEMENT BETWEEN THE LAW OFFICES OF JONES AND
MAYER, AND RETAINING GREGORY P. PALMER FOR HEARING OFFICER
ANDIOR ADMINISTRATIVE LAW OFFICER SERVICES.
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor
joint
and Common Council of the City of San Bernardino at a regular meeting thereof, held on the
20th day of April
,2009, by the following vote, to wit:
Council Members:
AYES
NAYS
ABSTAIN ABSENT
ESTRADA
x
x
BAXTER
x
BRINKER
SHORETT
x
KELLEY
x
x
JOHNSON
MCCAMMACK
x
a~h:~
City Clerk
2009.
The foregoing resolution is hereby approved this. ~-1f_ day of April
~.
. .~
Pa . ck .I orris, Mayor
City of San Bernardino
Approved as to form:
JAMES F. PENMAN,
City
,
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2009-82
Exhibit A
Hearing Officer/Administrative Law Officer
SERVICES AGREEMENT
This Agreement is entered into this 20th day of April
, by and
between the Law Offices of Jones and Mayer ("CONSULTANT") and the City of San
Bernardino ("CITY" or San Bernardino.)
WITNESSETH:
WHEREAS, the Mayor and Common Council have determined that it is advantageous
and in the best interest of the City of San Bernardino to engage in a professional services
agreement with CONSULTANT to act as an independent Hearing Officer and/or
Administrative Law Officer; and
WHEREAS, CONSULT ANT possesses the professional skills and ability to provide
said services for the CITY; and
NOW, THEREFORE, the parties hereto agree as follows:
1. SCOPE OF SERVICES.
For the remuneration stipulated, the City of San Bernardino hereby engages the services
of CONSULTANT to designate Gregory P. Palmer to provide Hearing Officer services and/or
Administrative Law Officer services as seLforth by San Bernardino Municipal Code Chapters
8.30,9.92 and 9.93. No other person shall provide these services pursuant to this agreement.
2. COMPENSATION AND EXPENSES.
a. For the service delineated above, CITY shall pay the CONSULT ANT a rate of $190,00
per hour for preparation, conduct of hearings, and signing of orders. The hourly rate includes
overhead expenses such as telephone, photocopy, postage, mileage and related costs.
b. No other expenditures rnade by CONSULTANT shall be reirnbursed by CITY.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2009-82
Hearing Officer/Administrative Law Offieer
SERVICES AGREEMENT
c. Bills shall be submitted quarterly to the City Manager's Office, 300 N D Street, San
Bernardino, CA 9241S.
d. Support staff for hearings shall be provided by the City of San Bernardino. All hearings
shall be held ill the City at City HaIL
3. TERM; TERMINATION.
a. The term of this Agreement shall commence on May 1st, 2009, and terminate on April 30,
2012.
b. CITY may terminate this Agreement only upon CONSULTANT'S inability or refusal to
conduct hearings and render decisions or his failure to maintain his good standing and active
status with the State Bar of California. CITY shall have no other right to terminate this
Agreement. CONSULTANT may terminate this Agreement at any time by thirty (30) days
written notice.
4. INDEMNITY.
Vendor agrees to and shall indemnify and hold the City, its elected officials, employees,
agents or representatives, free and harmless from all claims, actions, damages and liabilities of
any kind and nature arising frorn bodily i~ury, including death, or property damage, based or
asserted upon any actual or alleged act or omission of Vendor, its employees, agents, or
subcontractors, relating to or in any way connected with the accomplishment of the work or
performance of services under this Agreement, unless the bodily injury or property damage was
actually caused by the sole negligence of the City, its elected officials, employees, agents or
representatives. As part of the foregoing indemnity, Vendor agrees to protect and defend at its
own expense, including attorney's fees, the City, its elected officials, employees, agents or
representatives from any and all legal actions based upon such actual or alleged acts or
ornissions. Vendor hereby waives any and all rights to any types of express or implied
2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2009-82
Hearing Officer/Administrative Law Officer
SERVICES AGREEMENT
indemnity against the City, its elected officials, employees, agents or representatives, with
respect to third party claims against the Vendor relating to or in any way connected with the
accomplishment of the work or performance of services under this Agreement.
S. INSURANCE.
While not restricting or limiting the foregoing, during the term of this Agreement,
VENDOR shall maintain in effect policies of comprehensive public, general and automobile
liability insurance, in the amount of $1,000,000.00 combined single limit, and statutory
worker's compensation coverage, and shall file copies of said policies with the CITY's Risk
Manager prior to undertaking any work under this Agreement. CITY shall be set forth as an
additional named insured in each poliey of insurance provided hereunder. The Certiticate of
Insurance furnished to the CITY shall require the insurer to notify CITY at least 30 days prior
to any change in or termination of the policy
6. NON-DISCRIMINATION.
In the performance of this Agreement and in the hiring and recruitment of
employees, VENDOR shall not engage in, nor permit its officers, employees or agents to
engage in, discrimination in employment of persons because of their race, religion, color,
national origin, ancestry, age, mental or physical disability, medical condition, marital status,
sexual gender or sexual orientation, or any other status protected by law.
7. INDEPENDENT CONTRACTOR.
The Parties intend that the relationship between them created under the Agreement is
that of an independent contractor only. The Consultant shall perform each element of the work
set forth in the Scope of Services as an independent contractor and shall not be considered an
employee of the Agency. This Agreement is by and between the Consultant and the Agency,
and is not intended, and shall not be construed, to create the relationship of agent, servant,
3
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2009-82
Hearing Officer/Administrative Law Offieer
SERVICES AGREEMENT
employee, partnership, joint venture, or association, between the Agency and the Consultant.
The Agency is interested only in the results obtained under the Agreement; unless otherwise
indicated and under unusual circumstances, the manner and means of performing the services
are subject to the Consultant's sole control. The Consultant shall have no right or authority to
find or commit the Agency, unless specifically authorized in writing by the Interim Executive
Director in each specific instance. The Consultant shall not be entitled to any benefits,
including, without lirnitation, worker's compensation, disability insurance, vacation or sick
pay. The Consultant shall be responsible for providing at its expense, and in its name,
disability, worker's compensation or other insurance.
The Consultant assumes full and sole responsibility for, and shall therefore pay, any and
all federal and state income taxes, Social Security, estimated taxes, unemployment taxes, and
any other taxes incurred as result of the compensation set forth herein. The Consultant agrees
further to provide the Agency with provide the Agency with proof of payment upon reasonable
demand. The Consultant holds the Agency harmless from and against any and all claims,
demands, losses, costs, fees, liabilities, taxes, penalties, damages or injuries suffered by the
Agellcy (including, but not limited to, attorney fees and court costs, whether or not litigation is
commenced) arising out ofthe failure of the Consultant to comply with this provision. Further,
this right indemnification shall apply to any and all claims, demands, losses, costs, fees,
liabilities, taxes, penalties, damages and injuries suffered by the Agency as a result of the
classification of the Consultant as independent contractor under this Agreement.
8. BUSINESS REGISTRATION CERTIFICATE AND OTHER REQUIREMENTS.
CONSULTANT warrants that it possess or shall obtain, and maintain a business
registration certificate pursuant to Chapter 5 of the Municipal Code, and any other license,
4
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2009-82
Hearing Officer/Administrative Law Officer
SERVICES AGREEMENT
1
2
3
4
5
permits, qualifications, insurance and approval of whatever nature that are legally required of
consultant to practice it's profession.
9.
NOTICES.
Any notice to be given pursuant to this Agreement shall be deposited with the United
6 States Postal Service, postage prepaid and addressed as follows:
TO THE CITY:
City Manager's Office
300 North "D" Street
San Bernardino, CA 92418
Phone: (909) 384-5122
Facsimile: (909) 384-5138
TO THE CONSULTANT:
Gregory p, Palrner
Law Offices of Jones & Mayer
3777 N. Harbor Blvd.
Fullerton, CA 92835
Phone: (714) 446-1400
10. ATTORNEYS' FEES
In the event that litigation is brought by any party in connection with this agreement, the
prevailing party shall be entitled to recover frorn the opposing party all costs and expenses,
including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of
its rights or remedies hereunder or the enforcement of any of the terms, conditions or
provisions hereof. The costs, salary and expenses of the City Attorney and members of his
office in enforcing this Agreement on behalf of the City shall be considered as "attorneys' fees"
for the purposes of this paragraph.
11. ASSIGNMENT
CONSULTANT shall not voluntarily or by operation of law assign, transfer, sublet or
encumber all or any part of the CONSULTANT's interest in this Agreement without CITY's
prior written consent. Any attempted assignment, transfer, subletting or encumbrance shall be
5
2009-82
Hearing Offieer/Administrative Law Officer
SERVICES AGREEMENT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
void and shall constitute a breach of this Agreement and cause for the termination of this
Agreement. Regardless of CITY's consent, no subletting or assignment shall release
CONSULTANT of CONSULTANT's obligation to perform all other obligations to be
performed by CONSULTANT hereunder for the term of this agreement.
12. VENUE
The parties hereto agree that all actions or proceedings arising in connection with this
Agreement shall be tried and litigated either in the State courts located in the County of San
Bernardino, State of California or the U.S. District Court for the Central District of California,
Riverside Division. The aforementioned choice of venue is intended by the parties to be the
mandatory and not permissive in nature.
13. GOVERNING LAW
This Agreement shall be governed by the laws of the State of California.
14. SUCCESSORS AND ASSIGNS
This Agreement shall be binding on and inure to the benefit of the parties to this
Agreement and their respective heirs, representatives, successors, and assigns.
15. HEADINGS
The subject headings of the sections of this Agreement are included for the purposes of
convenience only and shall not affect the construction or the interpretation of any of its
provIsIOns.
16. SEVERABILITY.
If any provision of this Agreement is determined by a court of competent jurisdiction to
be invalid or unenforceable for any reason, such determination shall not affect the validity or
enforceability of the remaining terms and provisions hereof or of the offending provision in any
6
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2009-82
Hearing Officer/Administrative Law Officer
SERVICES AGREEMENT
other circumstance, and the remaining provisions of this Agreement shall remain in full force
and effect.
17. REMEDIES; WAIVER.
All remedies available to either party for one or more breaches by the other party are
and shall be deemed cumulative and may be exercised separately or concurrently without
waiver of any other remedies. The failure of either party to act in the event of a breach of this
Agreement by the other shall not be deerned a waiver of such breach or a waiver of future
breaches, unless such waiver shall be in writing and signed by the party against whom
enforcement is sought.
18. ENTIRE AGREEMENT; MODIFICATION
This Agreement constitutes the entire agreement and the understanding between the
parties, and supercedes any prior agreements and understandings relating to the subject manner
of this Agreernent. This Agreement may be modified or amended only by a written instrum-~nt
executed by all parties to this Agreement.
III
III
III
7
.
.
2009-82
Hearing Officer/Administrative Law Officer
SERVICES AGREEMENT
1
2 IN WITNESS THEREOF, the parties hereto have executed this Agreement on the day
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
and date first above written.
CONS~
By:
" Gregory Palmer,
Law Offices of Jones & Mayer
Date: N,4-t.( .J wet
,
::~y OF r;; ~O
Lori Sassoon
Acting City Manager
Date: (~02-7: .;;t() 9'
Approved as to Form:
JAMES F. PENMAN
City Attorney
,~
8