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CA Administrative Order Hearing Officer Svcs 2015AGREEMENT FOR ADMINISTRATIVE ORDER HEARING OFFICER SERVICES This Agreement is made and entered into this 1 st day of September 2015 by and between the CITY OF SAN RAFAEL (hereafter "CITY") and THE UNIVERSITY OF THE PACIFIC (hereafter '`CONTRACTOR"). RECITALS WHEREAS, Chapter 1.46 of the San Rafael Municipal Code provides that a hearing on a Notice and Order may be heard by an Administrative Hearing Officer; WHEREAS, CONTRACTOR has presented evidence to CITY that he is qualified and competent to provide the services of Administrative Hearing Officer for hearings involving Notices and Orders under Chapter 1.46 of the San Rafael Municipal Code. AGREEMENT NOW, THEREFORE, the parties hereby agree as follows: DESIGNATED REPRESENTATIVES. A. CITY. The City Attorney shall be the representative of the CITY for all purposes under this Agreement. B. CONTRACTOR. Andrew Walker, Director, Institute for Administrative Justice, University of the Pacific McGeorge School of Law, is the authorized representative for CONTRACTOR. 2. DUTIES OF CONTRACTOR. CONTRACTOR shall perform the duties and/or provide hearing officer services as described in Exhibit "A" attached hereto and incorporated herein. CONTRACTOR's appointment by CITY is and will not be based or contingent upon any expectation of favorable outcomes or decisions in any hearings and it is understood that CONTRACTOR shall act independently in a fair, unbiased, and appropriate mariner in deciding all such matters in which he participates. DUTIES OF CITY. In addition to compensating CONTRACTOR as provided in Section 4 below, the CITY shall furnish a suitable place at which hearings conducted by CONTRACTOR shall be held. t4 — 3 — (DC)o C. Page 1 4. COMPENSATION. In consideration of the performance by CONTRACTOR of all the services set forth in this Agreement, CITY agrees to compensate CONTRACTOR at the hourly rate of two hundred twenty ($220.00) dollars and in a total amount not to exceed 20,000 dollars during the term of flus Agreement. hi addition, CITY agrees to compensate CONTRACTOR for up to two (2) hours preparation/travel time for each noticed hearing unless CITY cancels such hearing date and notifies CONTRACTOR of such cancellation at least ninety-six (96) hours prior to the scheduled commencement time for such hearing. CITY may give notice to CONTRACTOR of such cancellation by telephone or by facsimile transmission or email. TERM OF AGREEMENT. The term of this Agreement shall be for two (2) years commencing on September 1, 2015, and ending on August 31, 2017, inclusive, subject to the provisions of Section 6 of this Agreement. Upon mutual agreement of the parties, the term of this Agreement shall be extended for an additional period of one year. 6. TERMINATION. A. Discretionary. Either party may terminate this Agreement without cause upon sixty (60) days written notice mailed or personally delivered to the other party. B. Cause. Either party may terminate this Agreement for cause upon fifteen (15) days written notice mailed or personally delivered to the other party, and the notified party's failure to cure or correct the cause of the termination, to the reasonable satisfaction of the party giving such notice, within such fifteen (15) day time period. C. Effect of Termination. Upon receipt of notice of termination, neither party shall incur additional obligations under any provision of this Agreement without the prior written consent of the other. D. Return of Documents. Upon tennination, any and all CITY docuinents or materials provided to CONTRACTOR and any and all of CONTRACTOR's documents and materials prepared for or relating to the performance of its duties tinder this Agreement, shall be delivered to CITY as soon as possible, but not later than thirty (30) days after termination. DISPUTE RESOLUTION; LEGAL FEES AND COSTS; FORUM FOR LEGAL ACTION. Any claim or dispute between or among CITY and CONTRACTOR that arises from this agreement or the appointment referred to herein shall be resolved by confidential, binding arbitration in Sacramento before a single neutral arbitrator to be selected by mutual agreement of the parties. Any arbitration shall be conducted by reference to the AAA rules for commercial arbitration, and in accordance with California law. The prevailing party shall be entitled to an Page 2 award of reasonable attorney's fees and expenses including expert fees, and costs of collection following any award. OWNERSHIP OF DOCUMENTS. The written documents and materials prepared by the CONTRACTOR in connection with the performance of its duties under this Agreement, shall be the sole property of CITY. 9. INSPECTION AND AUDIT. Upon reasonable notice, CONTRACTOR shall make available to CITY, or its agent, for inspection and audit, all documents and materials maintained by CONTRACTOR in connection with its performance of its duties under this Agreement. CONTRACTOR shall fully cooperate with CITY or its agent in any such audit or inspection. 10. ASSIGNABILITY. The parties agree that they shall not assign or transfer any interest in this Agreement nor the performance of any of their respective obligations heretmder, without the prior written consent of the other party, and any attempt to so assign this Agreement or any rights, duties or obligations arising hereunder shall be void and of no effect. 11. INDEMNIFICATION. CONTRACTOR shall indemnify, release, defend and hold hannless CITY, its officers, agents, employees, and volunteers, against any claim, demand, suit, judgment, loss, liability or expense of any kind, including attorney's fees and administrative costs, to the extent arising fi-om the willful misconduct or gross negligence of CONTRACTOR. This indemnification shall not extend to any claim related to CONTRACTOR's duties as a hearing officer in the interpretation or application of CITY's Municipal Code or Code Enforcement Procedures Manual. CITY shall indemnify, release, defend and hold harmless CONTRACTOR, its officers, agents, employees, and volunteers, against any claim, demand, suit, judgment, loss, liability or expense of any kind, including attorney's fees and administrative costs, to the extent arising from the willful misconduct or gross negligence of CITY. 12. NONDISCRIMINATION. CONTRACTOR shall not discriminate, in any way, against any person on the basis of age, sex, race, color, religion, ancestry, national origin or disability in connection with or related to the performance of its duties and obligations under this Agreement. 13. COMPLIANCE WITH ALL LAWS. CONTRACTOR shall observe and comply with all applicable federal, state and local laws, ordinances, codes and regulations, in the performance of its duties and obligations tinder this Page 3 Agreement. CONTRACTOR shall perform all services wider this Agreement in accordance with these laws, ordinances, codes and regulations. CONTRACTOR shall release, defend, indemnify and hold harmless CITY, its officers, agents and employees from any and all damages, liabilities, penalties, fines and all other consequences fiom any noncompliance or violation of any laws, ordinances, codes or regulations. 14. NO THIRD PARTY BENEFICIARIES. CITY and CONTRACTOR do not intend, by any provision of this Agreement, to create in any third party, any benefit or right owed by one party, under the terms and conditions of this Agreement, to the other party. 15. NOTICES. Except as otherwise provided herein, all notices and other communications required or permitted to be given wider this Agreement, including any notice of change of address, shall be in writing and given by personal delivery, or deposited with the United States Postal Service, postage prepaid, addressed to the parties intended to be notified. Notice shall be deemed given as of the date of personal delivery, or if mailed, upon the date of deposit with the United States Postal Service. Notice shall be given as follows: CITY: Robert F. Epstein, City Attorney PHONE: (415) 485-3080 City Attorney's Office FAX: (415) 485-3109 1400 Fifth Avenue San Rafael, CA 94901 EMAIL: citv.attornev a.citvofsaruafael.ore CONTRACTOR: Andrew Walker, Director PHONE: (916) 739-7049 Institute for Administrative Justice FAX: (916) 739-7051 University of the Pacific, McGeorge School of Law 3200 Fifth Avenue Sacramento CA 95817 EMAIL: awalker@pacific.edu 16. INDEPENDENT CONTRACTOR. For the purposes, and for the duration, of this Agreement, CONTRACTOR, its officers, agents and employees shall act in the capacity of an Independent Contractor, and not as employees of the CITY. CONTRACTOR and CITY expressly intend and agree that the status of CONTRACTOR, its officers, agents and employees be that of an Independent Contractor and not that of an employee of CITY. Page 4 17. ENTIRE AGREEMENT — AMENDMENTS. A. The terns and conditions of this Agreement, all exhibits attached, and all documents expressly incorporated by reference, represent the entire Agreement of the parties with respect to the subject matter of this Agreement. B. This written Agreement shall supersede any and all prior agreements, oral or written, regarding the subject matter between the CONTRACTOR and the CITY. C. No other agreement, promise or statement, written or oral, relating to the subject matter of this Agreement, shall be valid or binding, except by way of a written amendment to this Agreement. D. The teens and conditions of this Agreement shall not be altered or modified except by a written amendment to this Agreement signed by CONTRACTOR and CITY. E. If any conflicts arise between the terms and conditions of this Agreement, and the terms and conditions of the attached exhibits or the documents expressly incorporated by reference, the terms and conditions of this Agreement shall control. 18. SET-OFF AGAINST DEBTS. CONTRACTOR agrees that CITY may deduct from any payment due to CONTRACTOR under this Agreement, any monies which CONTRACTOR owes CITY under any ordinance, agreement, contract or resolution for any unpaid taxes, fees, licenses, assessments, unpaid checks or other amounts. 19. WAIVERS. The waiver by either party of any breach or violation of any term, covenant or condition of this Agreement, or of any ordinance, law or regulation, shall not be deemed to be a waiver of any other term, covenant, condition, ordinance, law or regulation, or of any subsequent breach or violation of the same or other term, covenant, condition, ordinance, law or regulation. The subsequent acceptance by either party of any fee, performance, or other consideration which may become due or owing under this Agreement, shall not be deemed to be a waiver of any preceding breach or violation by the other party of any term, condition, covenant of this Agreement or any applicable law, ordinance or regulation. 20. COSTS AND ATTORNEY'S FEES. The prevailing party in any action brought to enforce the terms and conditions of this Agreement, or arising out of the performance of this Agreement, may recover its reasonable costs (including claims administration) and attorney's fees expended in connection with such action. Page 5 21. CITY BUSINESS LICENSE / OTHER TAXES. CONTRACTOR shall obtain and maintain during the duration of this Agreement, a CITY business license as required by the San Rafael Municipal Code. CONTRACTOR shall pay any and all state and federal taxes and any other applicable taxes. CITY shall not be required to pay for any work performed under this Agreement, until CONTRACTOR has provided CITY with a completed Internal Revenue Service Form W-9 (Request for Taxpayer Identification Number and Certification). 22. APPLICABLE LAW. The laws of the State of California shall govern this Agreement. IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year written below. CITY OF SA FAEL THE UNIVERSITY OF THE PACIFIC SC UTZ, City Mand e Bhaskar Jasti, Associate Provost UNIVER � ITY F THE PACIFIC - ►r Date Date ATTEST: tLSMCEc • }?puPue . ESTHER C. BEIRNE, City Clerk Date APPROVED AS TO FORM: ROBERT F. PSTEIN, City Attorney Date / Page 6 EXHIBIT "A" HEARING OFFICER SERVICES 1. Pre -Administrative Hearinv Duties. A. The City Attorney will set, from time -to -time, the regularly scheduled monthly or bi-monthly time(s) for administrative hearings on Notices and Orders. Consistent with the general days and tunes of the week set by the City Attorney, the City's Code Enforcement Officials will schedule the specific day and time upon which each administrative hearing will occur, and will notify the Contractor at least fifteen (15) days prior to the hearing(s) which Contractor will be required to conduct the hearing. B. At least six (6) days prior to the scheduled day of the administrative hearing, the Code Enforcement Official shall mail to Contractor a copy of the staff report with respect to the Notice and Order. C. Prior to the day of the administrative hearing on a contested administrative citation, Contractor shall review the staff report(s), and shall research if necessary, all relevant City riles, regulations, ordinances, and/or policies governing the subject matter of the hearing. 2. Administrative Hearing Duties. A. Contractor shall conduct the administrative hearings and make determinations regarding the Notice and Order in accordance with Chapter 1.46 of the San Rafael Municipal Code. B. Contractor shall conduct each administrative hearing in a professional manner and be respectful, courteous, patient and responsive to all Contestants. 3. Post -Administrative Hearing Duties. A. Contractor shall conduct any additional research necessary to fully and properly adjudicate any issues not resolved on the day of the administrative hearing. B. Within thirty (30) days of an administrative hearing, Contractor shall complete and mail to the Responsible Party a written Decision containing the information specified in Chapter 1.46 of the San Rafael Municipal Code. C. Contractor shall mail to the City Clerk and City Attorney a copy of the Decision together with a Proof of Service on the Responsible Party, at the same time as the Decision is mailed to the Responsible Party. Page 7 D. Contractor shall return all exhibits and materials submitted at the hearing to the City Attorney within fifteen (15) days of the administrative hearing. 4. General Duties. A. Contractor shall be available to work up to ten (10) hours per month, as determined by the City Attorney to be necessary based on need. B. Contractor shall conduct the administrative hearing described in this Agreement in the City Council chambers at City Hall, 1400 Fifth Avenue, San Rafael, or at such other location as determined by the City Attorney. C. Contractor shall maintain all records with respect to the administrative hearings as required by San Rafael Municipal Code Chapter 1.46 and as may be determined by the City Attorney from time to time. D. Contractor shall perform any other tasks required to effectively implement the City's Administrative Order Program. Page 8 PROFESSIONAL SERVICES AGREEMENT/CONTRACT COMPLETION CHECKLIST AND ROUTING SLIP Below is the process for getting your professional services agreements/contracts finalized and executed. Please attach this "Completion Checklist and Routing Slip" to the front of your contract as you circulate it for review and signatures. Please use this form for all professional services agreements/contracts (not just those requiring City Council approval). This process should occur in the order presented below. Step Responsible Description Completion Department Date 1 City Attorney Review, revise, and comment on draft ,&- I agreement. A I 2 Contracting Department Forward final agreement to contractor for their signature. Obtain at least two signed originals from contractor. 3 Contracting Department Agendize contractor -signed agreement for Council approval, if Council approval /�necessary AJA (as defined by City Attorney/City Ordinance*). 4 City Attorney Review and approve form of agreement; bonds, and insurance certificates and endorsements. 5 City Manager / Mayor / or Agreement executed by Council authorized _ 9/1 Department Head official. 6 City Clerk City Clerk attests signatures, retains original agreement and forwards copies to the contracting department. To be completed by Contracting Department: Project Manager: Project Name: Agendized for City Council Meeting of (if necessary): t f� If you have questions on this process, please contact the City Attorney's Office at 485-3080. * Council approval is required if contract is over $20,000 on a cumulative basis.