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CA Hearing Officer Services; University of the PacificAGREEMENT FOR HEARING OFFICER SERVICES This Agreement for Hearing Officer Services is made and entered into this 3151 day of October, 2016, by and between the CITY OF SAN RAFAEL (hereafter "CITY") and THE UNIVERSITY OF THE PACIFIC (hereafter "CONTRACTOR"). RECITALS WHEREAS, CITY has an Agreement for Administrative Order Hearing Officer Services with CONTRACTOR, dated September 1, 2015, for hearings on notices and orders as provided under San Rafael Municipal Code Chapter 1.46, pursuant to which CONTRACTOR has performed hearing officer services for CITY; and WHEREAS, CITY also has the need for hearing officer services in connection with hearings on proposed revocation or suspension of certified massage establishment certificates or massage establishment operator permits under San Rafael Municipal Code Chapter 10.90, and the San Rafael Police Chief has elected to appoint CONTRACTOR for such purposes pursuant to San Rafael Municipal Code Section 10.90.030; and WHEREAS, CONTRACTOR has presented evidence to CITY that CONTRACTOR is qualified and competent to provide the required hearing officer services; AGREEMENT NOW, THEREFORE, the parties hereby agree as follows: 1. DESIGNATED REPRESENTATIVES. A. CITY. The City Attorney shall be the representative of the CITY for all purposes under this Agreement. B. CONTRACTOR. Dr. James Uchizono is the authorized representative for CONTRACTOR. 2. DUTIES OF CONTRACTOR. CONTRACTOR shall perform the duties and/or provide hearing officer services for (1) hearings on the proposed revocation or suspension of certified massage establishment certificates or massage establishment operator permits under San Rafael Municipal Code Chapter 10.90, and (2) hearings on notice and orders under San Rafael Municipal Code Chapter 1.46, as more particularly 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 j4_3, &. 6,6' C decisions in any hearings and it is understood that CONTRACTOR shall act independently in a fair, unbiased, and appropriate manner in deciding all such matters in which he participates. 3. 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. 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 dollars ($220.00), and in a total amount not to exceed twenty thousand dollars ($20,000.00) dollars during the term of tlus Agreement. In addition, CITY agrees to compensate CONTRACTOR for up to two (2) hours preparation 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. 5. TERM OF AGREEMENT. The term of this Agreement shall be for two (2) years commencing on November 1, 2016, and ending on October 31, 2018, 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. The Agreement for Administrative Order Hearing Officer Services, dated September 1, 2015, between the CITY and CONTRACTOR shall be superseded by this Agreement. 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 termination, any and all CITY documents 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 under tlus Agreement, shall be 2 delivered to CITY as soon as possible, but not later than thirty (30) days after termination. 7. 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 award of reasonable attorney's fees and expenses including expert fees, and costs of collection following any award. 8. 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 hereunder, 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 harmless 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 from 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 under this Agreement. CONTRACTOR shall perform all services under 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 from 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 under 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: city.attomev a,citvofsanrafael.ora 4 CONTRACTOR: James Uchizono University of the Pacific Research and Graduate Studies 3601 Pacific Ave Stockton, CA 95211 Administrative Contact Andrew Walker, Director Institute for Administrative Justice University of the Pacific, McGeorge School of Law 3200 Fifth Avenue Sacramento, CA 95817 Email: awalker@pacific.edu 16. INDEPENDENT CONTRACTOR. Phone: 916.739.7049 FAX: 916.739.7051 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. 17. ENTIRE AGREEMENT — AMENDMENTS. A. The terms 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 tlus Agreement. D. The terms 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 terns and conditions of this Agreement shall control. 18. SET-OFF AGAINST DEBTS. CONTRACTOR agrees that CITY may deduct from any payment due to 5 CONTRACTOR under this Agreement, any monies which CONTRACTOR owes CITY wider 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 terns 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. 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. 6 IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year written below. CITY OF SAN RAFAEL JIM CH TZ, City Manager Date: l I - Ll— I � ATTEST: '0' z.4 ESTHER C. BEIRNE, City Clerk APPROVED AS TO FORM: ROBERT F. EPSTEIN, Cit Attort 7 THE UNIVERSITY OF THE PACIFIC James chizono, Associate Provost Date: ( ° IZ7I 16 EXHIBIT "A" NOTICE AND ORDER HEARING OFFICER SERVICES 1. Pre -Administrative Hearing 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 times 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 rules, regulations, ordinances, and/or policies governing the subject matter of the hearing. 2. Administrative Hearina 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. 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. Ip CONTRACT ROUTING FORM INSTRUCTIONS: Use this cover sheet to circulate all contracts for review and approval in the order shown below. TO BE COMPLETED BY INITIATING DEPARTMENT PROJECT MANAGER: Contracting Department: City Attorney Project Manager: Rob Epstein Extension: 3080 Contractor Name: University of the Pacific -Institute for Administrative Justice Contractor's Contact: Lynette McPherson Contact's Email: Imcpherson@pacific.edu ❑ FPPC: Check if Contractor/Consultant must file Form 700 Step RESPONSIBLE DESCRIPTION COMPLETED REVIEWER DEPARTMENT DATE Check/Initial 1 Project Manager a. Email PINS Introductory Notice to Contractor N/A Click here to b. Email contract (in Word) & attachments to City enter a date. Atty c/o Laraine.Gittens@cityofsanrafael.org 2 City Attorney a. Review, revise, and comment on draft agreement 10/21/2016 and return to Project Manager N/A ® ETD b. Confirm insurance requirements, create Job on PINS, send PINS insurance notice to contractor 3 Project Manager Forward three,( -3'j originals of final agreement to 10/24/2016 contractor for their signature 4 Project Manager When necessary, * contractor -signed agreement ® N/A agendized for Council approval ETD *PSA > $20,000; or Purchase > $35,000; or Or Public Works Contract > $125,000 Click here to Date of Council approval enter a date PRINT CONTINUE ROUTING PROCESS WITH HARD COPY 5 Project Manager Forward signed original agreements to City 10/31/16 LKG Attorney with printed copy of this routing form 6 City Attorney Review and approve hard copy of signed agreement 7 City Attorney Review and approve insurance in PINS, and bonds N/A (for Public Works Contracts) 8 City Manager/ Mayor Agreement executed by Council authorized official Ir, 1 ?ag 9 City Clerk Attest signatures, retains original agreement and forwards copies to Project Manager l (�Zr-16 ��