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HomeMy WebLinkAbout2018-0531 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. 2018-53 RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO, CALIFORNIA, AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND GRAVES & KING LLP FOR HEARING OFFICER SERVICES BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. That the City Manager is hereby authorized and directed to execute on behalf of the City of San Bernardino, an Agreement between Graves & King LLP and the City of San Bernardino, for hearing officer and administrative law officer services under the San Bernardino Municipal Code. A copy of the Agreement 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 The authorization to execute the above -referenced Agreement is hereby rescinded if both parties fail to execute it within sixty (60) days of the passage of this Resolution. 1 2 3 4 5 6 e 5 10 11 12 13 14 15 16 17 is 19 20 21 22 23 24 25 26 27 26 RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO, CALIFORNIA, AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND GRAVES & KING LLP FOR HEARING OFFICER SERVICES I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and City Council of the City of San Bernardino at a Joint Regular Meeting thereof, held on the 7t' day of March 2018, by the following vote, to wit: Council Members: AYES NAYS MARQUEZ BARRIOS VALDIVIA x CS SHORETT .Y NICKEL k RICHARD MULVIHILL! ABSTAIN ABSENT Georgeann Wnna, CMC, ity Clerk The foregoing Resolution is hereby approved this 7h day of March 2018. R. Carey Davis Mayor City of San Bernardino Approved as to form: Gary D. Saenz, City Attorney By. 2 HEARING OFFICER SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND GRAVES AND KING LLP This Hearing Officer Services Agreement (the "Agreement") is entered into this 15th day of March, 2018 ("EFFECTIVE DATE"), BY AND BETWEEN: AND, the City of San Bernardino, a Charter City organized under the laws of the State of California, with an address of 290 N. "D" Street, San Bernardino, California (the "CITY"); Graves & King LLP, a law firm in the State of California with an address of 3610 Fourteenth Street, Second Floor in Riverside, California (the "HEARING OFFICER") (individually CITY or HEARING OFFICER may be referred to as a "PARTY" and collectively CITY and HEARING OFFICER may be referred to as the "PARTIES"). WITNESSETH: WHEREAS, the Mayor and City Council of CITY have determined that it is advantageous and in the best interest of the CITY to contract for Hearing Officer Services; and, WHEREAS, CITY and HEARING OFFICER desire to contract for Hearing Officer Services and desire to set forth their rights, duties, and liabilities in connection with their performance; and, WHEREAS, HEARING OFFICER is a law firm experienced in municipal law and presiding over administrative hearings, and is qualified and willing to conduct fair and impartial hearings on behalf of CITY. NOW, THEREFORE, for and in consideration of the mutual covenants and conditions contained herein, the PARTIES hereby agree as follows: 1. SCOPE OF SERVICES. The HEARING OFFICER shall perform the duties of the Administrative Hearing Officer as described in the San Bernardino Municipal Code, including acting as a hearing officer to conduct evidentiary hearings, preparing findings, and preparing final decisions on behalf of CITY for Administrative Civil Penalties, Administrative Citations, Nuisance Abatement, and other hearings as necessary. The HEARING OFFICER shall voluntarily disqualify himself from any case in which the HEARING OFFICER cannot accord a fair and impartial hearing or consideration. The HEARING OFFICER's authority to hear and consider the matters before the HEARING OFFICER shall be limited only to those matters within the HEARING OFFICER'S subject matter jurisdiction. The HEARING OFFICER shall conduct the hearings and consider the evidence independently, and shall not be under the authority, director, or discretion of any HEARING OFFICER SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND GRAVES & KING LLP Page 1 of 8 officer or employee of CITY who has served as an investigator, prosecutor, or advocate in the proceeding or its preadjudicative stage. The HEARING OFFICER shall perform all services provided pursuant to this Agreement in a professional, timely, and ethical manner. The HEARING OFFICER agrees to hold hearings once per week in the City Council chambers. The hearings shall be held on days that City Hall is open to the public and at times specified by CITY, unless changed by mutual agreement of the PARTIES. The HEARING OFFICER will be available for a full day of hearings on days scheduled for a hearing. 2. COMPENSATION AND EXPENSES. 2.1 Compensation. CITY agrees to pay, and HEARING OFFICER agrees to accept, as full compensation for the HEARING OFFICER's services, compensation at the rate of One Hundred Ninety Five Dollars ($195.00) per hour until such time as the Agreement terminates. In no event shall the CITY pay more than Six Hundred Thousand Dollars ($600,000.00) under this Agreement without further written authorization from the Mayor and City Council. 2.2 No other expenditures made by HEARING OFFICER shall be reimbursed by the CITY. The hourly rate includes overhead expenses such as telephone, copy, postage, mileage, and related costs. 2.3 HEARING OFFICER shall submit, per hearing, monthly, or quarterly, an itemized invoice, which details the hours worked and any supporting documentation. 2.4 Support staff for hearings shall be provided by CITY. All hearings shall be held in the City Council chambers. 3. TERM; TERMINATION. The term of this Agreement shall be from the EFFECTIVE DATE until March 15, 2021, inclusive. This Agreement may be terminated at any time upon thirty (30) days written notice by either PARTY. The terms of this Agreement shall remain in force unless mutually amended in writing. At the conclusion of the term of this Agreement, HEARING OFFICER shall not be eligible to be retained or employed by the City in any capacity for a period of twelve (12) months. 4. INDEMNITY. HEARING OFFICER 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, HEARING OFFICER SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND GRAVES & KING LLP Page 2 of 8 based or asserted upon any actual or alleged act or omission of HEARING OFFICER, 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, HEARING OFFICER 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. HEARING OFFICER hereby waives any and all rights to any types of express or implied indemnity against the CITY, its elected officials, employees, agents or representatives, with respect to third party claims against the HEARING OFFICER relating to or in any way connected with the accomplishment of the work or performance of services under this Agreement. 5. INSURANCE. 5.1 Minimum Scope and Limits of Insurance. HEARING OFFICER shall obtain and maintain during the life of this Agreement all of the following insurance coverage: (a) Comprehensive general liability, including premises -operations, products/completed operations, broad form property damage, blanket contractual liability, personal injury with a policy limit of not less than One Million Dollars ($1,000,000.00), combined singles limits, per occurrence and aggregate. (b) Automobile liability for owned vehicles, hired, and non -owned vehicles, with a policy limit of not less than One Million Dollars ($1,000,000.00), combined single limits, per occurrence and aggregate. (c) Worker's compensation insurance as required by the State of California. 5.2 Endorsements. The comprehensive general liability insurance policy shall contain or be endorsed to contain the following provisions: (a) Additional insureds: "The City of San Bernardino and its elected and appointed boards, officers, agents, and employees are additional insureds with respect to this subject project and contract with City." (b) Notice: "Said policy shall not terminate, nor shall it be cancelled, nor the coverage reduced, until thirty (30) days after written notice is given to City." (c) Other insurance: "Any other insurance maintained by the City of San Bernardino shall be excess and not contributing with the insurance provided by this policy." HEARING OFFICER SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND GRAVES & KING LLP Page 3 of 8 5.3 Certificates of Insurance. HEARING OFFICER shall provide to CITY certificates of insurance showing the insurance coverages and required endorsements described above, in a form and content approved by CITY, prior to performing any services under this Agreement. 5.4 Non-limitink. Nothing in this Section shall be construed as limiting in any way, the indemnification provision contained within this Agreement, or the extent to which HEARING OFFICER may be held responsible for payments of damages to persons or property. 6. NON-DISCRIMINATION. In the performance of this Agreement and in the hiring and recruitment of employees, HEARING OFFICER 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. HEARING OFFICER shall perform work tasks provided by this Agreement, but for all intents and purposes HEARING OFFICER shall be an independent contractor and not an agent or employee of the CITY. HEARING OFFICER shall secure, at its expense, and be responsible for any and all payment of Income Tax, Social Security, State Disability Insurance Compensation, Unemployment Compensation, and other payroll deductions for HEARING OFFICER and its officers, agents, and employees, and all business license, if any are required, in connection with the services to be performed hereunder. 8. BUSINESS REGISTRATION CERTIFICATE AND OTHER REQUIREMENTS. HEARING OFFICER warrants that it possesses or shall obtain prior to execution of this Agreement, and maintain, a business registration certificate pursuant to Chapter 5 of the Municipal Code, and any other licenses, permits, qualifications, insurance and approval of whatever nature that are legally required of HEARING OFFICER to practice its business or profession. 9. NOTICES. Any notices, documents, correspondence, or other communication concerning this Agreement or the services provided hereunder may be provided by personal delivery or U.S. Mail. If personally delivered the notice shall be deemed delivered at the time of the personal delivery. If sent by U.S. Mail the notice shall be deemed delivered forty-eight (48) hours after deposit in the U.S. Mail as reflected by the official U.S. postmark. HEARING OFFICER SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND GRAVES & KING LLP Page 4 of 8 TO THE CITY: City of San Bernardino 290 N. "D" Street, 3rd Floor San Bernardino, CA 92418 Telephone: (909) 384-5122 Attention: City Manager's Office TO THE HEARING OFFICER: Harvey W. Wimer III J.E. Holmes III Graves & King LLP P.O. Box 1548 3610 Fourteenth Street, 2nd Floor Riverside, CA 92501 Phone: (951) 680-0100 Either PARTY may change the address for delivery of notices by sending notice of the change to the other PARTY in conformity with this Section. 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 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/her office in enforcing this Agreement on behalf of the CITY shall be considered as "attorneys' fees" for the purposes of this paragraph. 11. ASSIGNMENT. HEARING OFFICER shall not voluntarily or by operation of law assign, transfer, sublet or encumber all or any part of the HEARING OFFICER's interest in this Agreement without CITY's prior written consent. Any attempted assignment, transfer, subletting or encumbrance shall be 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 HEARING OFFICER of HEARING OFFICER's obligation to perform all other obligations to be performed by HEARING OFFICER 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 Superior Court of the State of California for the County of San Bernardino or the United States District Court for the Central District of California, Riverside Division. The aforementioned choice of venue is intended by the parties to be mandatory and not permissive in nature. 13. GOVERNING LAW. This Agreement shall be governed and construed under the laws of the State of California without giving effect to that body of laws pertaining to conflict of laws. HEARING OFFICER SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND GRAVES & KING LLP Page 5 of 8 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 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 delay or failure of either PARTY to require performance or compliance of the other of any of its obligations under this Agreement shall in no way be deemed a waiver of those rights to require such performance or compliance. No waiver of any provision of this Agreement shall be effective unless made in writing and signed by a duly authorized representative of the PARTY against whom it is sought. The waiver of any right or remedy with respect to any occurrence or event shall not be deemed a waiver of such right or remedy with respect to any future occurrences or events and shall not be deemed a continuing waiver. 18. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and the understanding between the PARTIES, and supersedes any prior agreements and understandings relating to the subject matter of this Agreement. 19. COUNTERPARTS. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of which, taken together, shall constitute one and the same agreement. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a ".pdf' format data file, such signature shall create a valid and binding obligation of the PARTY HEARING OFFICER SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND GRAVES & KING LLP Page 6 of 8 executing (or on whose behalf such signature is execute) with the same force and effect as if such facsimile or ".pdf'signature page were an original thereof. 20. AMENDMENT. No amendment to this Agreement will be effective unless it is in writing and signed by both PARTIES. 21. CORPORATE AUTHORITY. Each person executing this Agreement on behalf of the PARTIES hereto warrant that they are duly authorized to execute this Agreement on behalf of said PARTIES and that by doing so, the PARTIES hereto are formally bound to the provisions of this Agreement. 22. COMPLIANCE WITH LAW HEARING OFFICER agrees to abide by all federal, state, and local laws, ordinances and regulations. 23. FORCE MAJEURE. A PARTY shall not be liable for any failure or delay in the performance of this Agreement for the period that such failure or delay is due to causes beyond its reasonable control, including but not limited to acts of God, war, strikes or labor disputes, embargoes, governmental orders or any other force maj eure event. 24. RESPONSIBILITY FOR ERRORS. HEARING OFFICER shall be responsible for its work and results under this Agreement. HEARING OFFICER, when requested by CITY, shall furnish clarification and/or explanation as may be required by CITY's representative, regarding any services rendered under this Agreement at no additional cost to CITY. In the event that an error or omission attributable to HEARING OFFICER occurs, then HEARING OFFICER shall, at no cost to CITY, provide all necessary services to rectify and correct the matter to the sole satisfaction of CITY and to participate in any meeting required with regard to the correction. 25. ORDER OF PRECEDENCE. In the event of any inconsistency or conflict in this Agreement and any of the attached Exhibits or Attachments, the terms set forth in this Agreement shall prevail. 26. CONSTRUCTION. The PARTIES have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises with respect to this Agreement, this Agreement shall be construed as if drafted jointly by the PARTIES and in accordance with HEARING OFFICER SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND GRAVES & KING LLP Page 7 of 8 its fair meaning. There shall be no presumption or burden of proof favoring or disfavoring any Party by virtue of authorship of any of the provisions of this Agreement. IN WITNESS THEREOF, the parties hereto have executed this Agreement on the day and date set forth below. Dated: WL ft , 2018 Dated —0) , 2018 Graves King LLP By. Its: N MAuKAr PJ 99D& CITY OF SAN BERNARDINO By: Andrea M. Miller, City Manager APPROVED AS TO FORM: Gary D. Saenz, City Attorney Byc:�:�kj EST: Georgeann ULn a, CMC, &1ty Clerk HEARING OFFICER SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND GRAVES & KING LLP Page 8 of 8