AGREEMENT TO PROVIDE
ADMINISTRATIVE HEARING OFFICER SERVICES
WITH [NAME OF VENDOR]
AGREEMENT NUMBER _________
This Agreement to Provide Administrative Hearing Officer Services ("Agreement") is made by and between the City of Santa Rosa (hereinafter "City"), and Name of Vendor, type of organization (ie. State, a non-profit corporation, a corporation, a limited liability company), (hereinafter "Contractor") on ____________________________. For purposes of this Agreement, City and Contractor shall be collectively referred to as "the Parties."
RECITALS
Chapters 1-30 of the Santa Rosa City Code provide that administrative hearings are to be heard by an administrative hearing officer (hereinafter "Hearing Officer").
City desires to secure Hearing Officer services to conduct administrative hearings.
Contractor possesses the necessary qualifications and is fully qualified to provide Hearing Officer services for City.
The Parties have negotiated upon the terms pursuant to which Consultant will provide such services and have reduced such terms to writing.
AGREEMENT
NOW, WHEREFORE, the Parties agree as follows:
General Provisions
The recitals set forth above are true and correct and are material representations that the Parties reasonably relied on when entering into this Agreement.
Duties
Unless disqualified by reason of a conflict of interest, as defined in Section 3, Contractor agrees to serve as a Hearing Officer for City pursuant to the Assignment Selection procedure set forth in Section 10.
Conflicts of Interest
Contractor (including Contractor's employees, agents and subcontractors) shall not maintain or acquire any direct or indirect interest that conflicts with the performance of this Agreement. Contractor shall not undertake any work that is in conflict with Contractor's role as a Hearing Officer. Conflict includes, but is not limited to, representing any party in any administrative or judicial proceeding relating to any abatement matter or violation of City or State Code which is, has been, or may be the subject of a City Administrative Proceeding.
Additionally, prior to agreeing to act as a Hearing Officer in any case, Contractor shall perform an internal conflict check to ensure that no conflict of interest with any of the parties to the action exists and shall promptly disclose any such conflicts. Contractor further shall not make or participate in a decision made by the City if it is reasonably foreseeable that the decision may have a material effect on Contractor's economic interest. Should Contractor acquire a conflicting interest following the execution of this Agreement, Contractor shall immediately apprise the City of the same, upon which, Contractor is precluded from hearing the matter in which the conflict exists.
Contractor Ethics
Contractor has not provided or promised to provide any gift or other consideration, directly or indirectly, to any officer, employee or agent of City to obtain City's approval of this Agreement. Contractor shall not, at any time, have any financial interest in this Agreement or any matter heard under this Agreement other than the compensation to be paid to Contractor under Section 8, Compensation. In the event the work and/or services to be performed under this Agreement relate to a matter under consideration by or on file with the City, (I) Contractor shall not possess or maintain any business relationship with any person or entity that Contractor knows to have a personal stake in said matter, (ii) other than performing his or her work and/or services to City under this Agreement, Contractor shall not advocate either for or against any person or entity that has a personal stake in said matter, and (iii) In the event that Contractor has acquired any such business relationship with any person or entity and has a personal stake in said matter, Contractor shall immediately notify City.
Contractor Representations
The City has relied upon the professional ability and training of Contractor as a material inducement to enter into this Agreement. Contractor hereby agrees that all work will be performed in accordance with generally accepted professional practices and standards applicable to Hearing Officers, as well as the requirements of applicable federal, state, and local laws.
Contractor possesses the necessary qualifications to provide Hearing Officer services for the City, including, but not limited to those found in Municipal Code section 1-30.080, and is a currently licensed attorney in good standing with the California State Bar, and has been practicing law as a licensed member of the State Bar of California for a minimum of five years, with no prior or pending disciplinary matters and/or criminal convictions involving fraud, bribery, embezzlement, theft, moral turpitude or similar conduct, and has not been debarred by the federal government, State of California, any state or territory government in the United States of America and its territories and possessions, or any local government.
Hearing Procedures
Pre-Administrative Hearing Duties
The Planning and Economic Development Department and other City departments (hereinafter "Department") will set, from time-to-time, regularly scheduled monthly or bi monthly administrative hearings. Consistent with the general days and times of the week and mutually agreed upon by Contractor and by City, City staff will schedule the specific day and time upon which each administrative hearing will occur.
At least six (6) days prior to the scheduled day of the administrative hearing, staff shall mail or transmit electronically to Contractor a copy of pertinent documents with respect to the hearing.
Contractor shall appropriately prepare for the hearing including, but not limited to, preparation of relevant technology related requirements or software, review of pertinent documents, and conduct research, if necessary, on all relevant City rules, regulations, ordinances, and/or policies governing the subject matter of the hearing.
Administrative Hearing Duties
Contractor shall conduct the administrative hearings and make determinations in accordance with the Santa Rosa City Code, inclusive of Chapter 1-30 and the City's Code Enforcement Procedures Manual, as applicable, as well as other City codes that may apply. All decisions related to the hearings shall be based on the facts and the law.
Contractor shall conduct each administrative hearing in a professional manner and be respectful, courteous, patient and responsive to all parties.
Contractor shall conduct the hearing at the location determined by the City, either in person or virtually within the State of California.
Contractor shall comply with all City policies and procedures including completion and compliance with any training requirements.
If the Contractor appears remotely to the hearing, Contractor must maintain a sufficient and consistent internet connection and must troubleshoot electronic issues, if applicable. The City will only provide support for City-issued devices.
Post-Administrative Hearing Duties
Contractor shall conduct any additional research necessary to fully and properly adjudicate any issues not resolved on the day of the administrative hearing.
Within forty-five (45) days of an administrative hearing, Contractor shall complete and mail to the Responsible Party a written Decision containing the information specified in the Santa Rosa City Municipal Code, inclusive of Chapter 1-30, and the Code Enforcement Procedures Manual, as applicable.
Contractor shall mail to the Department 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.
Contractor shall endeavor to reach his or her decision within ten (10) days of the administrative hearing and in no event shall exceed 45 days. Contractor shall return all exhibits and materials submitted at the hearing to the Department.
Records
The written documents and records prepared by the Contractor in connection with the performance of his or her duties under this Agreement, shall be the sole property of the City.
Upon reasonable notice, Contractor shall make available to City, or its agents, for inspection and audit, all documents and records maintained by contractor in connection with the performance of his or her duties under this Agreement. Contractor shall fully cooperate with City or its agent in any such audit or inspection.
Contractor shall return to City all evidence submitted at the hearing within thirty (30) days of the rendering of Contractor's written decision in the matter.
Notices
Except as otherwise provided in this Agreement, any notice, submittal or communication required or permitted to be served on a party, shall be in writing and may be served by personal delivery to the person or the office of the person identified below. Service may also be made by mail, by placing first-class postage, and addressed as indicated below, and depositing in the United States mail to:
City Representative:
Lacey Chaffin, Administrative Analyst
City Hall
100 Santa Rosa Avenue
Room 3
Santa Rosa, CA 95404 Phone: (707)543-4649
[email protected]
Compensation
Contractor:
In consideration of the performance by. Contractor of all the services set forth in this Agreement, City agrees to compensate Contractor at an hourly rate of $351.77 per hour, with a five percent (5%) increase annually commencing on January 1st. Hearing Officers will be compensated for up to two hours of travel time, to and from the hearing site, as well as a minimum of one and one-half hours for each noticed hearing.
Notwithstanding any other provision in this Agreement to the contrary, the total maximum compensation to be paid for the satisfactory accomplishment and completion of all services to be performed hereunder shall in no event exceed the sum of Fifty Thousand Dollars ($50,000.00).
Indemnity
Contractor shall, to the fullest extent permitted by law, indemnify, protect, defend and hold harmless City, and its employees, officials and agents ("Indemnified Parties") from all claims, demands, costs or liability (including liability for claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, losses, expenses or costs of any kind, interest, defense costs, and expert witness fees), that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of Contractor, its officers, employees, or agents, in said performance of professional services under this Agreement, excepting only liability arising from the sole negligence, active negligence or intentional misconduct of City.
The existence or acceptance by City of any of the insurance policies or coverages described in this Agreement shall not affect or limit any of City’s rights under this Section 4, nor shall the limits of such insurance limit the liability of Contractor hereunder. This Section 4 shall not apply to any intellectual property claims, actions, lawsuits or other proceedings subject to the provisions of Section 17(b), below. The provisions of this Section 4 shall survive any expiration or termination of this Agreement.
Insurance
During the performance of this Agreement, Contractor is required to maintain any and all insurance policies or coverages regarding Contractor’s own liability. City shall not provide insurance coverage to Contractor.
Independent Contractor
The parties intend that Contractor, in performing the services specified herein, shall act as an independent contractor and shall control the work and the manner in which it is performed. Contractor has the right to perform services for others during the Term. Contractor is not to be considered an agent or employee of City and is not entitled to participate in any pension plan, insurance, bonus, or similar benefits the City provides its employees. Contractor is not the City agent and shall have no authority to bind the City to any obligation whatsoever. In the event of termination of this Agreement, Contractor has no recourse or right of appeal under rules, regulations, ordinances, or laws applicable to employees of the City. Additionally, Contractor agrees to file tax returns and pay all applicable taxes on amounts. paid pursuant to this Agreement Assignments
The Hearing Officer shall be available to work up to ten (10) hours per month but may work less, or not at all, in any given month. The City does guarantee any number of hearings or a set amount of work hours. Contractor is not the only Hearing Officer providing administrative hearing officer services to City. The process for designating a Hearing Officer to each matter shall be as follows:
City shall rotate sequentially through a list of all individuals under contract to provide Hearing Officer services. The list shall be organized alphabetically, such that the first call to the first Hearing Officer for the first hearing shall be placed to the individual under contract whose last name begins with the letter "A" or the closest letter thereto. After an officer completes an assigned hearing, the next officer in line receives the following hearing, and so on, with the order looping continuously. If no hearings are assigned during a given month, the next hearing will be assigned to the last Hearing Officer who appeared in the order list, ensuring continuity in the sequence.
If an officer next in line is unavailable, the hearing will be assigned to the next available officer on the list. The list will continue sequentially meaning the unavailable officer’s next opportunity to participate is consistent with the order of the alphabetical list.
Aside from the location, name of parties, type of hearing scheduled, the time required to conduct the hearing, as estimated by City staff, and discussions regarding other similar procedural issues, Contractor shall not request, nor shall the City employee reveal, any of the facts alleged to have occurred in the matter or engage in any ex parte discussion of the nature of the alleged violation(s) to the individuals called.
The City maintains the right to adjust assignments, at its own discretion, to ensure hearings proceed in a fair and timely manner.
Term of Agreement
The term of this Agreement shall be for a period of seven (7) years, commencing on the date it is made above ("Term"), and shall continue in full force and effect unless terminated pursuant to the provisions of Section 12 below. If not sooner terminated, this Agreement shall automatically expire at the end of the Term, may not be renewed or extended, and no new agreement may be entered into between the Parties.
Termination
By Contractor Contractor may terminate this Agreement without cause upon thirty (30) days written notice to City, provided Contractor has no pending matters. Notice shall be in writing and deemed given as of the date of personal delivery, or if mailed, upon the date of deposit with the United States Postal Service. City shall pay all compensation due to Contractor for services rendered prior to the date of termination.
By City City may terminate this Agreement for cause unrelated to the outcome of any hearing, upon thirty (30) days written notice to Contractor. This Agreement may not be terminated by City based in any way on the outcome of any case decided by Contractor in the role of hearing officer. City shall pay all compensation due to Contractor for services rendered prior to the date of termination. In no event shall Contractor be entitled to lost profits as a result of termination of this Agreement by City.
Return of Documents Upon expiration or termination of this Agreement, 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 his or her duties under this Agreement, shall be delivered to the City as soon as possible, but no later than thirty (30) days after expiration or termination.
Compliance with All Laws
In the conduct of hearings and performance of services hereunder, Contractor shall observe and follow all applicable federal, state and local laws, rules, ordinances, codes and regulations. Contractor shall not discriminate in any way against any person on the basis of age, sex, race, color, religion, ancestry, national origin, marital status, medical condition pregnancy, sexual orientation, gender identity, genetic information, physical or mental disability, military or veteran status or any other prohibited basis in connection with or related to the performance of services under this Agreement.
Applicable Law; Venue
This Agreement shall be governed, construed and enforced in accordance with the laws of the State of California. Venue of any litigation arising out of or connected with this Agreement shall lie exclusively in the state trial court in Sonoma County in the State of California, and the parties consent to jurisdiction over their persons and over the subject matter of any such litigation in such court, and consent to service of process issued by such court.
Assignability
City and Contractor 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.
City Business License/Other Tax
Contractor shall obtain and maintain during the duration of this Agreement, a City business license as required by the Santa Rosa City Code. Contractor shall pay any and all state and federal taxes and any other applicable taxes.
Statement of Economic Interest
City has determined that Contractor must file a Statement of Economic Interests under disclosure category A as required by City's Conflict of Interest Code. Contractor shall file a Form 700 - Statement of Economic Interests with the City Clerk's office. Contractor shall file an Assuming Office Statement within thirty (30) days of execution of this Agreement, annual statements on or before April 1 of each year and a Leaving Office Statement within thirty (30) days after termination or expiration of this Agreement.
Entire Agreement and Severability
This Agreement contains the entire understanding and agreement between the Parties with respect to the matters referred to herein. No other representations, covenants, undertakings or other prior or contemporaneous agreements, oral or written, respecting such matters, which are not specifically incorporated herein, shall be deemed in any way to exist or bind any of the Parties hereto.
If any term of this Agreement is held by a court of competent jurisdiction to be in valid or unenforceable, the Agreement shall be construed as not containing that term, and the remainder of the Agreement shall remain in full force and effect.
Merger
This writing is intended both as the final expression of the agreement between the parties hereto with respect to the included terms and as a complete and exclusive statement of the terms of the Agreement, pursuant to Code of Civil Procedure Section 1856. Any modification, amendment or waiver of this Agreement must be in writing and signed by the Parties hereto. The Parties shall execute and perform all further acts that may be reasonably necessary to effectuate the provisions of this Agreement.
Construction
This Agreement shall not be construed against the Party preparing it but shall be construed as if both Parties jointly prepared this Agreement and any uncertainty and ambiguity shall not be interpreted against any one Party.
No Waiver
The waiver by City of any breach of any term or promise contained in this Agreement shall not be deemed to be a waiver of such term or provision or any subsequent breach of the same or any other term or promise contained in this Agreement.
No Third-Party Beneficiaries
There are no third-party beneficiaries to this Agreement and the Parties do not intend for this Agreement to benefit any third parties.
Time of the Essence
Time is and shall be of the essence of this Agreement and every provision hereof.
Captions
The captions in this Agreement are solely for convenience or reference. They are not a part of this Agreement and shall have no effect on its construction or interpretation.
Authority
Consultant hereby represents and warrants to City that (a) Consultant possesses a J.D. Degree, (b) is an active member of the California State Bar in good standing, and (c) has all requisite power and authority and the legal right to consummate the transactions contemplated in this Agreement.
Executed as of the day and year first above stated.
CONTRACTOR:
By: _______________________
Print Name: ________________
Title: ______________________
City of Santa Rosa Business Tax
Certificate No.
___________________________
CITY OF SANTA ROSA
a Municipal Corporation
By: _______________________
Print Name: ________________
Title: ______________________
APPROVED AS TO FORM:
Office of the City Attorney
Exhibit A