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CITY OF SAN BERNARDINO - REQUEST FOR COUN~l
Dept: City Manager's Office
Subject: Resolution of the Mayor and
Common Council of the City of San
Bernardino authorizing the execution of a
Professional Services Agreement with the
Law Offices of Jones and Mayer, and
retaining Gregory P. Palmer for Hearing
Officer and/or Administrative Law Officer
services.
From: Lori Sassoon, Assistant City
Manager
Date: 4/1/2009
Council Meeting Date: 4/20/2009
Synopsis of Previous Council Action:
December 17th, 2007 - Council Adopts Resolution 2007-475 authorizing execution of a
Professional Services Agreement with William Holt for Hearing Officer and/or Administrative
Law Officer services
September 6th, 2006 - Council Adopts Resolution 2006-304 authorizing execution of a
Professional Services Agreement with Mandel E. Himelstein for Hearing Officer and/or
Administrative Law Officer services
November 7th, 2005- Council Adopts Resolution 2005-365 authorizing the execution of a
Professional Services Agreement with William Holt to provide hearing officer services.
Recommended motion:
w~
Adopt resolution.
Signature
Contact person: Catherine Pritchett, Management Analyst I
Supporting data attached: Staff report, resolution
Phone: 384-5122
Ward: All
FUNDING REQUIREMENTS:
Amount: Approximately $49,000 annually
Source: (Acct. No.) 001-092-5502
(Acct. Description) Non-departmental -
professional/contractual services
Finance:
Council Notes:
65'0 2C'oC;.RZ-
Agenda Item No. a
1.4. 2.O-D'
STAFF REPORT
Subiect:
Resolution of the Mayor and Common Council of the City of San Bernardino authorizing the
execution of a Professional Services Agreement with the Law Offices of Jones and Mayer, and
retaining Gregory P. Palmer for Hearing Officer and/or Administrative Law Officer services.
Back2round:
In 1991, the Council adopted Ordinance MC-807 which designated the City Manager or designee
as Hearing Officer for nuisance abatement proceedings at the city. In 1997, recognizing the
increasing amount of code compliance and animal control enforcement in the City, the Mayor and
Council approved the hiring of an independent Hearing Officer qualified to hear administrative
citation cases. In 2002, a California Supreme Court decision required the establishment of a
rotation of at least two hearing officers. Since that time, the City's Hearing Officers have heard
administrative citation cases two days per month for an average of four hours per day, as scheduled
by the Code Enforcement Department.
In April 2007, the Council added Chapter 9.93 to the SBMC establishing Administrative Civil
Penalties (ACP's) to be used as an additional tool to address violations to the Municipal Code.
ACP hearings are held by the Hearing Officer once per month for an average of four hours per day,
as scheduled by the City Attorney's Office.
Hearing Officer Himmelstein's contract expired in August of 2008. Since that time, the City's
remaining Hearing Officer, William Holt, has been conducting three hearings per month. At this
time it is necessary for the City to retain an additional hearing officer to allow for the required
rotation. Upon the execution of this Agreement, the new Hearing Officer will join the rotation of
administrative citation hearings. Mr. Holt, whose contract expires in November of this year, will
continue in the rotation, as well as continue his work with the Attorney's Office conducting ACP
hearings.
Staff is recommending that the City enter into a Professional Services Agreement with the Law
Officers of Jones and Mayer, retaining Mr. Gregory Palmer, a senior associate at the firm, to serve
as a hearing officer for the City. Mr. Palmer was one of two Hearing Officers considered for this
position. During an interview with City staff and a Supervisor from County Code Enforcement,
Mr. Palmer demonstrated extensive knowledge and a proficient background in municipal law, and
the administrative citation process.
The proposed Agreement is for a period of three years, from May 1,2009 to April 30,2012. Mr.
Palmer has agreed to an hourly rate of $190 per hour, which equal to the current compensation of
the other Hearing Officer. In addition, the $100.00 per hour drive time rate, which was included in
prior Hearing Officer Agreements, is not included in this proposal.
Financial Impact:
For FY 2008-2009, approximately $41,000 was originally budgeted for hearing officer services.
As the result of an increased number of administrative citations, as well as the addition of
administrative civil penalty hearings, the total cost for hearing officers has increased to
approximately $98,000. This increased amount was accounted for during the mid-year budget
review.
The actual cost to the City each year depends upon the actual number of hearings held.
Recommendation:
Adopt Resolution.
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
Dept: City Manager's Office
Subject: Resolution of the Mayor and
Common Council of the City of San
Bernardino authorizing the execution of a
Professional Services Agreement with the
Law Offices of Jones and Mayer, and
retaining Gregory P. Palmer for Hearing
Officer and/or Administrative Law Officer
services.
From: Lori Sassoon, Assistant City
Manager
Date: 4/1/2009
Council Meeting Date: 4/20/2009
Synopsis of Previous Council Action:
December 1th, 2007 - Council Adopts Resolution 2007-475 authorizing execution of a
Professional Services Agreement with William Holt for Hearing Officer and/or Administrative
Law Officer services
September 6th, 2006 - Council Adopts Resolution 2006-304 authorizing execution of a
Professional Services Agreement with Mandel E. Himelstein for Hearing Officer and/or
Administrative Law Officer services
Adopt resolution.
November 7th, 2005- Council Adopts Resolution 2005-365 authorizing the execution of a
Professional Services Agreement with Wim:>m Hnlt to orovide hearing officer services.
./
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tf3wJ\ kOO
Recommended motion:
Contact person: Catherine Pritchett
384-5122
Supporting data attached: Staff re
All
FUNDING REQUIREMENTS:
An
action.
Source: (Accl. No.) 001-092-o0UL
(Acel. Description) Non-departmental -
professional/contractual services
Finance:
Council Notes:
Agenda Item No. 4f '0
STAFF REPORT
Subiect:
Resolution of the Mayor and Common Council of the City of San Bernardino authorizing the
execution of a Professional Services Agreement with the Law Offices of Jones and Mayer, and
retaining Gregory P. Palmer for Hearing Officer and/or Administrative Law Officer services.
Backeround:
In 1991, the Council adopted Ordinance MC-807 which designated the City Manager or designee
as Hearing Officer for nuisance abatement proceedings at the city. In 1997, recognizing the
increasing amount of code compliance and animal control enforcement in the City, the Mayor and
Council approved the hiring of an independent Hearing Officer qualified to hear administrative
citation cases. In 2002, a California Supreme Court decision required the establishment of a
rotation of at least two hearing officers for administrative citation hearings. Since that time, the
City's Hearing Officers have heard administrative citation cases biweekly. In April 2007, the
Council added Chapter 9.93 to the SBMC establishing Administrative Civil Penalties (ACPs) to be
used as an additional tool to address violations to the Municipal Code. ACP hearings are heard
once per month.
Typically, hearing officers consider appeals by property owners and other individuals concerning
code enforcement and animal control matters. The Hearing Officer has the authority to determine
fines, set tirnelines for completion of certain property maintenance work, and/or make other
determinations regarding each case heard. The Hearing Officer may also act as the Administrative
Law Officer, hearing cases for citations issued under the administrative citation process.
,.
To be in compliance with the Supreme Court ruling, it is necessary for the City to retain two
hearing officers to allow for the required rotation of the administrative citation hearings. Hearing
Officer Himmelstein's contract expired in August of 2008. Since that time, the City's remaining
Hearing Officer, William Holt, has been conducting all of the administrative citation hearings as
well as one ACP hearing each month. Upon approval of this agreement, the two hearing officers
will rotate the biweekly administrative citations hearings. Mr. Holt will continue conducting the
ACP hearings.
Staff is recommending that the City enter into a Professional Services Agreement with the Law
Offices of Jones and Mayer, retaining Mr. Gregory Palmer, a senior associate at the firm, to serve
as a hearing officer for the City. Mr. Palmer was one of two attorneys considered for this position.
During an interview with City staff and a Supervisor from County Code Enforcement, Mr. Palmer
demonstrated extensive knowledge and a proficient background in municipal law, and the
administrative citation process.
The proposed Agreement is for a period of three years, from May 1,2009 to April 30,2012. Mr.
Palmer has agreed to an hourly rate of $190 per hour, which is equal to the current compensation
of the other Hearing Officer. In addition, the $100.00 per hour drive time rate, which was included
in prior Hearing Officer Agreements, is not included in this proposal
Financial Impact:
During FY 08/09, $57,900 has been spent on hearing officer services. It is anticipated that an
additional $20,000 will be needed to cover costs for the remainder of this fiscal year. The funds
have already been budgeted in the General Government, non-departmental division account for
professional/contractual services.
No additional funds are required by this action.
Recommendation:
Adopt Resolution.
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RESOLUTION NO.
CC~~y
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 BER.I\IARDINO 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 Agreement between the Law
Offices of Jones and Mayer and the City of San Bernardino. for hearing officer ser\ices 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 within sixty (60) days of the passage
of this resolution.
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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
AND/OR ADMINISTRATIVE LAW OFFICER SERVICES.
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor
and Common Council of the City of San Bernardino at a
meeting thereof, held on the
_ day of
. 2009. by the following vote. to wit:
Council Members:
AYES
NAYS
ABSTAIN
ABSENT
ESTRADA
BAXTER
BRINKER
SHORETT
KELLEY
JOHNSON
MCCAMMACK
City Clerk
day of
The foregoing resolution is hereby approved this
2009.
Patrick J. Morris. Mayor
City of San Bernardino
Approved as to form:
JAMES F. PENMAN.
City.
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Exhibit A
Hearing Officer/Administrative Law Officer
SERVICES AGREEMEl\'T
This Agreement is entered into this
day of _
. 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, CONSULTANT 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 set forth by San Bernardino Municipal Code Sections
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 CONSULTANT 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 made by CONSULTANT shall be reimbursed by CITY.
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Hearing Officer/Administrative Law Officer
SERVICES AGREEMENT
c. Bills shall be submitted quarterly to the City Manager's Office. 300 N D Street. San
Bernardino. CA 92418.
d. Support staff for hearings shall be provided by the City of San Bernardino. All hearings
shall be held in the City at City Hall.
3.
TERM; TERMINATION.
a. The term of this Agreement shall commence on May I st. 2009. and terminate on April 30.
2012.
b. CITY may terminate this Agreement only upon CONSULTANTS 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 from bodily injury. 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
omissions. Vendor hereby waives any and all rights to any types of express or implied
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Hearing Officer/Administrative Law Officer
SERVICES AGREEMENT
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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.
5. 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 policy of insurance provided hereunder. The Certificate 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
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NON-DISCRIMINA nON.
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 tc
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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.
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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
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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.
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Hearing Officer/Administrative Law Officer
SERVICES AGREEMENT
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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 limitation. 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
Agency (including, but not limited to, attorney fees and court costs, whether or not litigation is
commenced) arising out of the 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,
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Hearing Officer/Administrative Law Officer
SERVICES AGREEMENT
permits. qualifications. insurance and approval of whatever nature that are legally required of
consultant to practice if s profession.
9. NOTICES.
Any notice to be given pursuant to this Agreement shall be deposited with the United
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
Gregory P. Palmer
Law Offices of Jones & Mayer
3777 N. Harbor Blvd.
Fullerton. CA 92835
Phone: (714) 446-1400
11 TO THE CONSULTANT:
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10. ATTORNEYS' FEES
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In the event that litigation is brought by any party in connection with this agreement. the
prevailing party shall be entitled to recover from 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
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Hearing Officer/Administrative Law Officer
SERVICES AGREEMENT
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 Centra] 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
convemence only and shall not affect the construction or the interpretation of any of its
proVISIOns.
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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
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enforceability of the remaining terms and provisions hereof or of the offending provision in any
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Hearing OfficerlAdministrative 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 deemed a waiver of such breach or a waiver of future
breaches. unless such waiver shall be in v\Titing 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 Agreement. This Agreement may be modified or amended only by a wTitten instrum~nt
executed by all parties to this Agreement.
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Hearing Officer/Administrative Law Officer
SERVICES AGREEMENT
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IN WITNESS THEREOF, the parties hereto have executed this Agreement on the day
and date first above \\Titten.
CONSUL TANT
Date:
Gregory Palmer,
Law Offices of Jones & Mayer
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CITY OF SAN BERNARDINO
Date:
By:
Mark Weinberg,
Interim City Manager
Approved as to Form:
JA!vlES F. PENMAN
City Attorney
By:
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Hearing Officer/Administrative Law Officer
SERVICES AGREEME~T
This Agreement is entered into this
day of
. by and
between the Law Offices of Jones and Mayer ("CO?\SCL T-",;'\T') and the City of San
Bernardino ("CITY' or San Bernardino.)
\VIT1'IESSETH:
WHEREAS, the Mayor and Cornmon Council have determined that it is advantageous
and in the best interest of the City of San Bernardino to engage in a professional services
10 agreement with CO,,-,SlTL TANT to act as an independent Hearing Officer and/Or
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Administrative Law Officer: and
WHEREAS, CO,,-,SULTA,,-,T 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 C01\Sl'L TANT to designate Gregory P. Palmer to pro\'ide Hearing Officer services and/or
Administrative Law Officer services as set forth by San Bernardino Municipal Code Sections
9.92 and 9.93. No other person shall provide these services pursuant to this agreement.
2. COMPENSATI01'l A...'\D EXPENSES.
a. For the service delineated above, CITY shall pay the CO,,-,SUL TA".'T a rate of $190.00
per hour for preparation. conduct of hearings. and signing of orders. The hourly rate includes
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overhead expenses such as telephone. photocopy. postage. mileage and related costs.
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b. No other expenditures made by C01\SlTL TA".'T shall be reimbursed by CITY.
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Hearing Officer/Administrative Law Officer
SERVICES AGREEMENT
c. Bills shall be submitted quarterly to the City Manager's Office. 300 N 0 Street San
Bernardino. CA 92418.
d. Support staff for hearings shall be provided by the City of San Bernardino. All hearings
shall be held in the City at City Hall.
3. TERM; TERMINATION.
a. The term of this Agreement shall commence on May I st. 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 anv time bv thirty (30) davs
..... ........ . .
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 from bodily injury. 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
omissions. Vendor hereby waives any and all rights to any types of express or implied
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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.
5.
INSURANCE.
While not restricting or limiting the foregoing. during the term of this Agreement.
VE:-':DOR 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 policy of insurance provided hereunder. The Certificate 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.
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INDEPENDEl\'T COl\TRACTOR.
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
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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. ser,am.
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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 seT\'ices
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 wTiting by the Interim Executive
7 Director in each specific instance. The Consultant shall not be entitled to any benefits.
8 including. without limitation. 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
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further to provide the Agency with provi de the Agency with proof of payment upon reasonable
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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
Agency (including, but not limited to. attorney fees and court costs, whether or not litigation is
commenced) arising out of the 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 REGISTRUIO'\ CERTIFICATE A'\D OTHER REQUIREMPiTS.
CO"iSUL T ANT 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.
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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
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
Gregory P. Palmer
Law Offices of Jones & Mayer
3777 N. Harbor Blvd.
Fullerton. CA 92835
Phone: (714) 446-1400
11 TO THE CONSULTANT:
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10. ATTOR,\,EYS' FEES
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In the event that litigation is brought by any party in connection with this agreement. the
prevailing party shall be entitled to recover from 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 ternlS, conditions or
pro\'isions 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
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CONSUL TANT shall not voluntarily or by operation of law assign, transfer. sublet or
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encumber all or any part of the CONSULTANT's interest in this Agreement without CITY's
prior \\Titten consent. Any attempted assignment, transfer, subletting or encumbrance shall be
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void and shall constitute a breach of this Agreement and cause for the termination of this
Agreement. Regardless of CITY's consent. no sublening or assignment shall release
CO"JSULTANT of CONSULTANTs obligation to perform all other obligations to be
performed by CONSUL TANT 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.
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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
convemence only and shall not affect the construction or the interpretation of any of its
provisions.
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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 \'alidity or
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enforceability of the remaining terms and provisions hereof or of the offending provision in any
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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 deemed a waiver of such breach or a waiver of future
breaches. unless such waiver shall be in wTiting 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 Agreement. This Agreement may be modified or amended only by a written instrument
executed by all parties to this Agreement. .
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IN WITNESS THEREOF. the parties hereto have executed this Agreement on the day
and date first above \vritten.
CONSULTANT
Date:
Gregory Palmer,
Law Offices of Jones & Mayer
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CITY OF SAN BERL'IARDINO
Date:
By:
Mark Weinberg,
Interim City Manager
Approved as to Form:
JAMES F. PENMAN
City Attorney
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