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AGREEMENT WITH MICHAEL H. ROUSH
FOR PROFESSIONAL
HEARING OFFICER SERVICES
This Agreement, made and entered into this day of ____________________, by and between the CITY OF SAN MATEO, a municipal corporation existing under the laws of the State of California (“CITY”), and MICHAEL H. ROUSH, an individual (“CONTRACTOR”), whose address is 5571 Corte Sierra, Pleasanton, CA 94566.
RECITALS:
A. CITY desires certain professional hearing officer services hereinafter described.
B. CITY desires to engage CONTRACTOR to provide these professional hearing officer services by reason of his qualifications and experience for performing such services and CONTRACTOR has offered to provide the required services on the terms and in the manner set forth herein.
NOW, THEREFORE, IT IS AGREED as follows:
SECTION 1 - SCOPE OF SERVICES
The scope of services to be performed by CONTRACTOR under this Agreement is as described in Exhibit A to this Agreement, attached and incorporated by reference.
SECTION 2 - DUTIES OF CONTRACTOR
CONTRACTOR shall be responsible for the professional quality, technical accuracy and coordination of all work furnished by CONTRACTOR under this Agreement. CONTRACTOR shall, without additional compensation, correct or revise any errors or deficiencies in its work.
CONTRACTOR represents that it is qualified to furnish the services described under this Agreement.
CONTRACTOR shall be responsible for employing or engaging all persons necessary to perform the services of CONTRACTOR.
CONTRACTOR agrees to comply with the City’s minimum wage ordinance as codified in Municipal Code Chapter 5.92, which differs from the state minimum wage and includes a Consumer Price Index escalator.
SECTION 3 - DUTIES OF CITY
CITY shall provide pertinent information regarding its requirements for the project.
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CITY shall examine documents submitted by CONTRACTOR and shall render decisions pertaining thereto promptly, to avoid unreasonable delay in the progress of CONTRACTOR's work.
SECTION 4 - TERM
The services to be performed under this Agreement shall commence upon full execution of this agreement and be completed five years from the execution date.
SECTION 5 - PAYMENT
Payment shall be made by CITY only for services rendered and upon submission of a payment request upon completion and CITY approval of the work performed. In consideration for the full performance of the services set forth in Exhibit A, CITY agrees to pay CONTRACTOR a fee in an amount not to exceed $300,000, pursuant to rates stated in Exhibit B to this Agreement, attached and incorporated by reference.
SECTION 6 - TERMINATION
Without limitation to such rights or remedies as CITY shall otherwise have by law, CITY shall have the right to terminate this Agreement or suspend CONTRACTOR’s work for any reason, upon ten (10) days' written notice to CONTRACTOR. CONTRACTOR agrees to cease all work under this Agreement upon receipt of said written notice.
Upon termination and upon CITY's payment of the amount required to be paid, documents become the property of CITY, and CONTRACTOR shall transfer them to CITY upon request without additional compensation.
SECTION 7 - OWNERSHIP OF DOCUMENTS
All documents prepared by CONTRACTOR in the performance of this Agreement, although instruments of professional service, are and shall be the property of CITY, whether the project for which they are made is executed or not.
SECTION 8 - CONFIDENTIALITY
All reports and documents prepared by CONTRACTOR in connection with the performance of this Agreement are confidential until released by CITY to the public. CONTRACTOR shall not make any such documents or information available to any individual or organization not employed by CONTRACTOR or CITY without the written consent of CITY before any such release.
SECTION 9 - INTEREST OF CONTRACTOR
CONTRACTOR covenants that it presently has no interest, and shall not acquire any interest, direct or indirect, financial or otherwise, which would conflict in any manner or degree with the performance of the services under this Agreement.
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SECTION 10 - CONTRACTOR'S STATUS
It is expressly agreed that in the performance of the professional hearing officer services required under this Agreement, CONTRACTOR shall at all times be considered an independent contractor as defined in Labor Code Section 3353, under control of the CITY as to the result of the work but not the means by which the result is accomplished. Nothing herein shall be construed to make CONTRACTOR an agent or employee of CITY while providing services under this Agreement.
SECTION 11 - INDEMNITY
CONTRACTOR agrees to hold harmless and indemnify CITY, its elected and appointed officials, employees, and agents from and against any and all claims, loss, liability, damage, and expense arising out of CONTRACTOR’s performance of this Agreement, except those claims arising out of CITY’s sole negligence or willful misconduct. CONTRACTOR agrees to defend City, its elected and appointed officials, employees, and agents against any such claims. The CONTRACTOR’S duty to indemnify shall survive expiration or early termination of this Agreement.
SECTION 12 - INSURANCE
CONTRACTOR shall procure and maintain for the duration of the Agreement and three years thereafter the insurance specified in Exhibit C to this Agreement.
SECTION 13 - NON-ASSIGNABILITY
Both parties hereto recognize that this Agreement is for the personal services of CONTRACTOR and cannot be transferred, assigned, or subcontracted by CONTRACTOR without the prior written consent of CITY.
SECTION 14 - RELIANCE UPON PROFESSIONAL
SKILL OF CONTRACTOR
It is mutually understood and agreed by and between the parties hereto that CONTRACTOR is skilled in the professional calling necessary to perform the work agreed to be done under this Agreement and that CITY relies upon the skill of CONTRACTOR to do and perform the work in the most skillful manner, and CONTRACTOR agrees to thus perform the work. The acceptance of CONTRACTOR's work by CITY does not operate as a release of CONTRACTOR from said obligation.
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SECTION 15 - WAIVERS
The waiver by either party of any breach or violation of any term, covenant, or condition of this Agreement or of any provisions of any ordinance or law shall not be deemed to be a waiver of such term, covenant, condition, ordinance or law or of any subsequent breach or violation of the same or of any other term, condition, ordinance, or law. The subsequent acceptance by either party of any fee or other money which may become due hereunder shall not be deemed to be a waiver of any preceding breach or violation by the other party of any term, covenant, or condition of this Agreement or of any applicable law or ordinance.
SECTION 16 - SEVERABILITY
If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect.
SECTION 17 - COSTS AND ATTORNEY FEES
Attorney fees in total amount not exceeding $5000, shall be recoverable as costs (by the filing of a cost bill) by the prevailing party in any action or actions to enforce the provisions of this Agreement. The above $5000 limit is the total of attorney fees recoverable whether in the trial court, appellate court, or otherwise, and regardless of the number of attorneys, trials, appeals, or actions. It is the intent of this Agreement that neither party shall have to pay the other more than $5000 for attorney fees arising out of an action, or actions to enforce the provisions of this Agreement.
SECTION 18 - NON-DISCRIMINATION
CONTRACTOR warrants that it is an Equal Opportunity Employer and shall comply with applicable regulations governing equal employment opportunity. CONTRACTOR shall not discriminate in the employment of any person because of race, color, national origin, ancestry, physical handicap, medical condition, marital status, sex, or age, unless based upon a bona fide occupational qualification pursuant to the California Fair Employment and Housing Act.
SECTION 19 - MEDIATION
Should any dispute arise out of this Agreement, any party may request that it be submitted to mediation. The parties shall meet in mediation within 30 days of a request. The mediator shall be agreed to by the mediating parties; in the absence of an agreement, the parties shall each submit one name from mediators listed by either the American Arbitration Association, the State Mediation and Conciliation Service, or other agreed-upon service. The mediator shall be selected by a blind draw.
The cost of mediation shall be borne equally by the parties. Neither party shall be deemed the prevailing party. No party shall be permitted to file a legal action without first meeting in mediation and making a good faith attempt to reach a mediated settlement. The mediation process, once commenced by a meeting with the mediator, shall last until agreement is reached by the parties but not more than 60 days, unless the maximum time is extended by the parties.
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SECTION 20 - LITIGATION
CONTRACTOR shall testify at CITY'S request if litigation is brought against CITY in connection with CONTRACTOR's services under this Agreement. Unless the action is brought by CONTRACTOR, or is based upon CONTRACTOR's wrongdoing, CITY shall compensate CONTRACTOR for preparation for testimony, testimony, and travel at CONTRACTOR's standard hourly rates at the time of actual testimony.
SECTION 21 - NOTICES
All notices hereunder shall be given in writing and mailed, postage prepaid, addressed as follows:
To CITY: Assistant City Manager
City of San Mateo
330 W. 20th Avenue
San Mateo, CA 94403
To CONTRACTOR: Michael H. Roush
5571 Corte Sierra
Pleasanton, CA 94566
925-876-7525
SECTION 22 - AGREEMENT CONTAINS ALL
UNDERSTANDINGS; AMENDMENT
This document represents the entire and integrated agreement between CITY and CONTRACTOR and supersedes all prior negotiations, representations, and agreements, either written or oral.
This document may be amended only by written instrument, signed by both CITY and CONTRACTOR.
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SECTION 23 - AUTHORITY TO ENTER INTO AGREEMENT
CONTRACTOR has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and to bind each respective party.
SECTION 24 - GOVERNING LAW AND VENUE
This Agreement shall be governed by the laws of the State of California and, in the event of litigation, venue will be in the County of San Mateo.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, CITY OF SAN MATEO and MICHAEL H. ROUSH have executed this Agreement the day and year first above written.
CITY OF SAN MATEO CONTRACTOR
Alex Khojikian
City Manager
Date Michael H. Roush Date
APPROVED AS TO FORM
Linh P. Nguyen
Assistant City Attorney
Date
Attachments:
Exhibit A: Scope of Services
Exhibit B: Fee Rates
Exhibit C: Insurance Requirements
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EXHIBIT A
SCOPE OF SERVICES
•Contractor shall serve as a Hearing Officer for the City of San Mateo (“City”) and will provide professional services, including all work necessary for the effective handling of the City’s administrative hearings.
•The Hearing Officer conducts the public hearing, receives testimony and other evidence from all parties regarding the issues, and makes a written decision based on findings. •The time frame for conducting hearings and issuing a decision is specified in the San Mateo Municipal Code, but generally a decision is issued within ten (10) days of the conclusion of the hearing.
•Findings and decisions are prepared by the Hearing Officer and issued to the involved parties. The number of hearings is expected to be few at the beginning of the assignment, and growing as the need expands.
•The hearings may be virtual or in person at the discretion of the City. •The hearings are varied and may cover tenant relocation, health and safety, building and technical codes, San Mateo Municipal Code violations, and other matters as required by the San Mateo Municipal Code.
•The Hearing Officer may impose penalties, award enforcement costs, and/or issue corrective/abatement orders as authorized by the San Mateo Municipal Code. •Hearing preparation may include review of the hearing and file materials, consultation with administrative staff, and knowledge of relevant City and State Code provisions. •Additional services such as issuing findings of facts, making recommendations, or making decisions in miscellaneous matters may also be included. •The City shall provide at its sole expense a hearing room, use of copying equipment, case file packets, and documents.
•The City will also provide the necessary clerical support for the Hearing Officer to conduct City business.
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EXHIBIT B
FEE RATES
$300 per hour for hearing officer services.
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EXHIBIT C
INSURANCE REQUIREMENTS
MINIMUM SCOPE OF INSURANCE
Coverage shall be at least as broad as:
1.Commercial General Liability (CGL): Insurance Services Office (ISO) Form CG 00 01 12 07 covering CGL on an “occurrence” basis, including products-completed operations, personal & advertising injury, with limits no less than $1,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.
2.Automobile Liability: ISO Form Number CA 00 01 covering any auto (Code 1), or if CONTRACTOR has no owned autos, hired, (Code 8) and non-owned autos (Code 9), with limit no less than $1,000,000 per accident for bodily injury and property damage.
3.Workers’ Compensation: as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease. However, a Workers Compensation policy shall not be required if CONTRACTOR is a sole proprietor with no employees.
4.Professional Liability (Errors and Omissions): Insurance appropriate to the CONTRACTOR’s profession, with limit no less than $1,000,000 per occurrence or claim, $2,000,000 aggregate If the CONTRACTOR maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the CONTRACTOR.
Other Insurance Provisions
The insurance policies are to contain, or be endorsed to contain, the following provisions:
Additional Insured Status
The City, its elected and appointed officials, employees, and agents are to be covered as insureds on the auto policy for liability arising out of automobiles owned, leased, hired or borrowed by or on behalf of the CONTRACTOR; and on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the CONTRACTOR including materials, parts or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the CONTRACTOR’s insurance (at least as broad as ISO Form CG 20 10, 11 85 or both CG 20 10 and CG 20 37 forms if later revisions used).
Primary Coverage
For any claims related to this contract, the CONTRACTOR’s insurance coverage shall be primary insurance as respects the City, its elected and appointed officials, employees, and agents. Any insurance or self-insurance maintained by the City, its elected and appointed officials, employees, or agents shall be excess of the CONTRACTOR’s insurance and shall not contribute with it.
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Notice of Cancellation
Each insurance policy required above shall provide that coverage shall not be canceled, except after thirty (30) days’ prior written notice (10 days for non-payment) has been given to the City.
Waiver of Subrogation
CONTRACTOR hereby grants to City a waiver of any right to subrogation which any insurer of said CONTRACTOR may acquire against the City by virtue of the payment of any loss under such insurance.
CONTRACTOR agrees to obtain any endorsement that may be necessary to effect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer.
Deductibles and Self-Insured Retentions
Any deductibles or self-insured retentions must be declared to and approved by the City. The City may require the CONTRACTOR to purchase coverage with a lower deductible or retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention.
Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A:VII, unless otherwise acceptable to the City.
Verification of Coverage
CONTRACTOR shall furnish the City with original certificates and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause. All certificates and endorsements are to be received and approved by the City before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the CONTRACTOR’s obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time.