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HomeMy WebLinkAbout08-City Manager .- , 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. ./ ~'p~/7L0-t-U7cuy~ ?iJ ~<--7~ d-c~J:r d(oC itd m~ {tL-t~r 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. 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. 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. III III III III III III i// III III 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 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. 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 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. 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 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 2 Hearing Officer/Administrative Law Officer SERVICES AGREEMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 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 15 6. 16 17 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 18 19 20 21 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. 22 7. 23 24 25 26 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 27 28 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 Hearing Officer/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 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, 4 1 2 3 4 5 6 7 8 9 10 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: 12 13 14 15 10. ATTORNEYS' FEES 16 17 18 19 20 21 22 23 24 25 26 27 28 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 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 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. 23 16. 24 25 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 26 27 28 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 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. III III III 7 Hearing Officer/Administrative Law Officer SERVICES AGREEMENT 1 2 3 4 5 6 By: 7 8 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 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CITY OF SAN BERNARDINO Date: By: Mark Weinberg, Interim City Manager Approved as to Form: JA!vlES F. PENMAN City Attorney By: 8 1 2 3 4 5 6 7 8 9 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 11 12 13 14 15 16 17 18 19 20 21 22 23 24 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 25 overhead expenses such as telephone. photocopy. postage. mileage and related costs. 26 27 28 b. No other expenditures made by C01\SlTL TA".'T shall be reimbursed 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 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 :2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 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. 22 7. 23 24 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 25 26 27 28 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. - -' 9 10 11 12 13 14 Hearing Officer/Administrative Law Officer SERVICES AGREEMENT 1 2 3 4 5 6 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 15 further to provide the Agency with provi de the Agency with proof of payment upon reasonable 16 17 18 19 20 21 22 23 24 25 26 27 28 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. 4 1 2 3 4 5 6 7 8 9 10 Hearing Officer/Administrative Law Officer SERVICES AGREEMENT 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: 12 13 14 15 10. ATTOR,\,EYS' FEES 16 17 18 19 20 21 22 23 24 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 25 CONSUL TANT shall not voluntarily or by operation of law assign, transfer. sublet or 26 27 28 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 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Hearing Officer/Administrative Law Officer SERVICES AGREEMEI\'T 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. 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. 23 16. 24 25 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 26 27 28 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 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 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. . III /1/ III 7 Hearing Officer/Administrative Law Officer SERVICES AGREEMENT 1 2 3 4 5 6 By: 7 8 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 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CITY OF SAN BERL'IARDINO Date: By: Mark Weinberg, Interim City Manager Approved as to Form: JAMES F. PENMAN City Attorney .~ 8