Agenda Item 16
CITY OF YUCAIPA
AGENDA REPORT
TO: Honorable Mayor and City Council
FROM: Jennifer Crawford, Assistant City Manager/Rent Administrator) FOR: City Council Meeting of June 26, 2023
SUBJECT: Approval of a Professional Services Agreement with Jones Inlayer Law for Hearing Officer Services
RECOMMENDATION:
That the City Council authorize the City Manager to execute a two-year Professional Services Agreement with Jones Mayer Law to provide Hearing Officer Services under the City's Mobilehome Rent Stabilization Ordinance and Administrative Rules.
DISCUSSION:
On March 13, 2023, the City Council directed the issuance of a Request for Proposals seeking Mobilehome Rent Stabilization hearing officer services in place of the Mobilehome Rent Review Commission processes and approved the elimination of the appeal process. Council direction was based on the ongoing, recurring issues of finding, filling, and maintaining the five -member commission with qualified candidates that could understand the complexity of the documents associated with the special rent adjustment applications.
On April 17, 2023, the City issued a Request for Proposals (RFP) for hearing officer services. The RFP was posted on the City website and was published on the league attorney forum. The City received two proposals in response to the RFP by the May 16, 2023, deadline. Staff has evaluated the proposals and is recommending Jones Mayer Law based on their experience serving as administrative hearing officers for municipalities tbxoughout the state, proposal content in response to the RFP and fees.
FISCAL IMPACT:
No fiscal impact beyond the previously Adopted Budget.
Attachment: Professional Services Agreement
Approved by:
147
ATTACHMENT'' I
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Cfr 1 Y OF
PROFESSIONAL SERVICES AGREEMENT
BY AND BETWEEN
THE CITY OF YUCAIPA
A CALIFORNIA MUNICIPAL CORPORATION
AND
BONES MAYER, DBA OF RICHARD D. ,BONES,
A PROFESSIONAL LAW CORPORATION
149
00093262. t
PROFESSIONAL SERVICES AGREEMENT
FOR HEARING OFFICER SERVICES - MOBILEHOME RENT STABILIZATION BFTwPEN THE CITY OF YUCAIPA AND JONE5 MAYER LAw
THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and entered into this 3rd day of July 2023 ("Effective Date"), by and between the CITY OF YUCAIPA ("City"), a California Municipal Corporation and Jones Mayer, a Professional Law Corporation ("Hearing Officer"). For the purposes of this Agreement City and Hearing Officer are sometimes hereinafter referred to as "Party" and hereinafter collectively referred to as the "Parties."
RECITALS
1. City has sought by issuance request for proposals/qualifications for the performance of hearing officer services under the City's Mobilehome Rent Stabilization Ordinance defined and described particularly in Section 2, "Scope of Services and Schedule of Performance" of this Agreement.
2. Hearing Officer was selected by City to perform those services.
3. Hearing Officer was selected by City on the basis of Hearing Officer's demonstrated competence and the professional qualifications necessary for the satisfactory performance of the services required.
4. Pursuant to the Yucaipa Municipal Code, City has authority to enter into this Agreement and the City Manager has authority to execute this Agreement. 5, The Parties desire to formalize the selection of Hearing Officer for performance of those services defined and described particularly in Section 2 "Scope of Services" of this Agreement and desire that the terms of that performance be as particularly defined and described herein.
OPERATIVE PROVISIONS
NOW, THEREFORE, for and in consideration of the mutual promises and covenants made by the Parties and contained herein and other consideration, the value and adequacy of which are hereby acknowledged, the Parties agree as follows:
SECTION 1. TERM OF AGREEMENT
(a) Subject to the provisions of Section 21 "Termination of Agreement" of this Agreement, the Term of this Agreement is through June 2025, commencing on Effective Date, unless otherwise extended by written agreement of the Parties. 00091740.2 Page 11 150
(b) The City Manager may, in his or her sole discretion, unilaterally exercise an option to extend the Agreement on a month -to -month basis following expiration on the same terms and conditions, including compensation as set forth in Section 4 "Compensation." (c) Hearing Officer acknowledges that the Agreement term may extend over multiple City fiscal years, and that work and compensation under this Agreement is contingent on the City Council appropriating funding for and authorizing such work and compensation for those fiscal years. This Agreement may be terminated by the City Manager at the end of a fiscal year when sufficient funding is not appropriated and authorized for the subsequent fiscal year. City is not obligated to pay Hearing Officer for any amounts not duly appropriated and authorized by City Council.
SECTION 2. SCOPE OF SERVICES
Subject to this Agreement, all addendums and exhibits attached and incorporated hereto, Hearing Officer agrees to perform the services and tasks set forth in Exhibit "A," "Scope of Services" (hereinafter, the "Services"), and the City agrees to retain and does hereby retain Hearing Officer for the Services.
SECTION 3. ADDITIONAL SERVICES
Hearing Officer shall not be compensated for any work rendered in connection with its performance of this Agreement that are in addition to or outside of the Services unless such additional services are authorized in advance and in writing in accordance with Section 25 "Administration and Implementation" or Section 27 "Amendment" of this Agreement. If and when such additional work is authorized, such additional work shall be deemed to be part of the Services
SECTION 4. COMPENSATION
(a) Subject to any limitations set forth in this Agreement, City agrees to pay Hearing Officer the amounts specified in Exhibit "B" "Compensation" and made a part of this Agreement by this reference. The rates and charges outlined in Exhibit "B" shall be valid through June 2025. The total compensation, including reimbursement for actual expenses, shall not exceed 550,000 per fiscal year, unless additional compensation is approved in writing in accordance with Section 25 "Administration and Implementation" or Section 27 "Amendment" of this Agreement.
(b) The City agrees to pay by the hour at the Hearing Officer's prevailing rate for all time spent on Hearing Officer related services. Hearing Officer billing rate shall be $240,00 per hour. 00091740.2 Page 12 151
Hearing Officer shall not bill time for travel to or from the City. (c) Payment to Hearing Officer for work performed pursuant to this Agreement shall not be deemed to waive any defects in work performed by Hearing Officer. (d) If this Agreement is extended pursuant to Section 1 "Term of Agreement," rates specified in Exhibit "B" "Compensation" rates will be adjusted based upon the Consumer Price Index (CPI) increase for the prior year utilizing the Riverside -San Bernardino -Ontario, All Urban Consumers. The annual CPI rate increase will be capped at 5%.
SECTION 5. METHOD OF PAYMENT AND INVOICING
(a) Payment shall be made in accordance with City's usual accounting procedures upon receipt and approval of an itemized invoice setting forth the services performed. The invoices shall be delivered to City at the address set forth in Section 23, "Notices" hereof.
Under no circumstances shall the total amount paid to Hearing Officer under this Agreement exceed the City Manager's authority under the Yucaipa Municipal Code without approval by the City Council.
(b) Hearing Officer must obtain the consent of the City Attorney before incurring costs in excess of $240.00 or retaining outside investigators, consultants, or expert witnesses.
Requests for consent for extraordinary costs must be made in writing and include (1) a brief description of costs, including their purpose, (2) an estimate of the total costs to be incurred, and (3) a not -to -exceed figure. Any requests for increases in approved amounts of costs must be made in writing and include (1) the amount requested, (2) a summary of prior adjustments, and (3) an explanation of the need for the increase. (c) Hearing Officer shall at any time prior to the fifteenth (15th) of any month, submit to City a complete and accurate written itemized invoice for services performed and/or goods provided. The invoice must be in a format approved by City. In order to receive payment, Hearing Officer shall submit to City an itemized invoice, on a monthly basis, for services performed pursuant to this Agreement. Each itemized invoice shall identify at the top of the first page, the Maximum Amount, the services rendered during the billing period, the amount due for the statement invoice and the total amount previously invoiced, if any, for which reimbursement is sought in the statement invoice. The invoice shall detail charges by the following categories: labor (by sub -category), travel, materials, equipment, supplies, and sub consultant contracts. Sub consultant charges shall be detailed by the following categories: labor, travel, materials, equipment and supplies. If the compensation set forth in Section 4(a) and Exhibit "B" include payment of labor on an hourly basis (as opposed to labor and materials being paid as a lump sum), the labor category in each invoice shall include detailed descriptions of tasks performed and the 00091740.2 Page 13 152
amount of time incurred for or allocated to that task. City shall independently review each invoice submitted by the Hearing Officer to determine whether the work performed, and expenses incurred are in compliance with the provisions of this Agreement. In the event that no charges or expenses are disputed, the invoice shall be approved and paid according to the terms set forth in subsection (c). In the event any charges or expenses are disputed by the City, the original invoice shall be returned by City to Hearing Officer for correction and resubmission.
(d) Except as to any charges for work performed or expenses incurred by Hearing Officer which are disputed by City, City will use its best efforts to cause Hearing Officer to be paid within forty-five (45) days of receipt of Hearing Officer's correct and undisputed invoice. (e) The Parties estimate that the performance of this Agreement will not exceed the Not to Exceed Amount. Hearing Officer shall notify the City in writing whenever it has reason to believe that the costs the Hearing Officer expects to incur under this Agreement in the following sixty (60) days, when added to all costs previously incurred, will exceed eighty percent (SO%) of the Maximum Amount specified herein. As part of the notification, the Hearing Officer shall provide the City with a revised estimate of the total cost of performing this Agreement.
SECTION 6. INSPECTION AND FINAL ACCEPTANCE
City may inspect and accept or reject any of Hearing Officer's work under this Agreement, either during performance or when completed. City shall rejector finally accept Hearing Officer's work within five (5) business days after submitted to City. City shall reject work by a timely written explanation, otherwise Hearing Officer's work shall be deemed to have been accepted. City's acceptance shall be conclusive as to such work except with respect to latent defects, fraud and such gross mistakes as amount to fraud. Acceptance of any of Hearing Officer's work by City shall not constitute a waiver of any of the provisions of this Agreement including, but not limited to, Section 17 "Indemnification" and Section 18 "Insurance." SECTION 7. OWNERSHIP OF DopJMENTS
All original maps, models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer files, files and other documents prepared, developed or discovered by Hearing Officer in the course of providing the Services pursuant to this Agreement shall become the sole property of City and may be used, reused or otherwise disposed of by Citywithout the permission of the Hearing Officer. Upon completion, expiration or termination of this Agreement, Hearing Officer shall turn over to City all such original maps, models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer files, files and other documents. 00091740.2 Page 14 153
If and to the extent that City utilizes for any purpose not related to this Agreement any maps, models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer files, files or other documents prepared, developed or discovered by Hearing Officer in the course of providing the Services pursuant to this Agreement, Hearing Officer's guarantees and warranties in Section 11 "Standard of Performance" of this Agreement shall not extend to such use of the maps, models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer files, files or other documents.
SECTION 8. INTELLECTUAL PROPERTY RIGHTS Ass IGNMENT
For no additional compensation, Hearing Officer hereby assigns to City all of Hearing Officer's rights, title, and interest in and to the content of all deliverable materials created by Hearing Officer or its employees, agents, or sub consultants, including copyrights, in connection with the Services performed under this Agreement. Hearing Officer shall promptly execute and deliver, and shall cause its employees, agents, and sub consultants to promptly execute and deliver, upon request by the City or any of its successors or assigns at any time and without further compensation of any kind, any power of attorney, assignment, application for copyright, patent, trademark or other intellectual property right protection, or other papers or instruments which may be necessary or desirable to fully secure, perfect or otherwise protect to or for the City, its successors and assigns, all right, title and interest in and to the content of the deliverable materials. For purposes of this section deliverable materials includes all works, tangible or not, created under this Agreement including, without limitation, documents, material, data, reports, manuals, specifications, artwork, drawings, sketches, computer programs and databases, schematics, photographs, video and audiovisual recordings, sound recordings, marks, logos, graphic designs, notes, website, domain names, inventions, processes, formulas matters and combinations thereof, and all forms of intellectual property. The provisions of this paragraph are binding on the successors, assigns and heirs of Hearing Officer and shall survive the termination of Hearing Officer's Services under this Agreement.
SECTION 9. HEARING, OFFICER's Bnox5 ANo Rpcmms
(a) Hearing Officer shall maintain any and all documents and records demonstrating or relating to Hearing Officer's performance of the Services. Hearing Officer shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, or other documents or records evidencing or relating to work, services, expenditures and disbursements charged to City pursuant to this Agreement. Any and all such documents or records shall be maintained in accordance with generally accepted accounting principles and shall be sufficiently complete and detailed so as to permit an accurate evaluation of the Services provided by Hearing Officer pursuant to this Agreement. Any and all such documents or records shall be maintained for three (3) years from the date 00091740,2 Page 15 154
of execution of this Agreement and to the extent required by laws relating to audits of public agencies and their expenditures.
(b) Any and all records or documents required to be maintained pursuant to this section shall be made available for inspection, audit and copying, at any time during regular business hours, upon request by City or its designated representative. Copies of such documents or records shall be provided directly to the City for inspection, audit and copying when it is practical to do so; otherwise, unless an alternative is mutually agreed upon, such documents and records shall be made available at Hearing Officer's address indicated for receipt of notices, "Section 23," of this Agreement.
(c) Where City has reason to believe that any of the documents or records required to be maintained pursuant to this section may be lost or discarded due to dissolution or termination of Hearing Officer's business, City may, by written request, require that custody of such documents or records be given to the City, Access to such documents and records shall be granted to City, as well as to its successors in interest and authorized representatives.
SECTION 10. INDEPENDENT CONTRACTOR
(a) Hearing Officer is and shall at all times remain a wholly independent contractor and not an officer, employee or agent of City. Hearing Officer shall have no authority to bind City in any manner, nor to incur any obligation, debt or liability of any kind on behalf of or against City, whether by contract or otherwise, unless such authority is expressly conferred under this Agreement or is otherwise expressly conferred in writing by City. (b) The personnel performing the Services under this Agreement on behalf of Hearing Officer shall at all times be under Hearing Officer's exclusive direction and control. Neither City, nor any elected or appointed boards, officers, officials, employees or agents of City, shall have control over the conduct of Hearing Officer or any of Hearing Officer's officers, employees, sub consultants or agents except as set forth in this Agreement. Hearing Officer shall not at any time or in any manner represent that Hearing Officer or any of Hearing Officer's officers, employees, or agents are in any manner officials, officers, employees or agents of City.
(c) Neither Hearing Officer, nor any of Hearing Officer's officers, employees or agents, shall obtain any rights to retirement, health care or any other benefits which may otherwise accrue to City's employees. Hearing Officer expressly waives any claim Hearing Officer may have to any such rights.
00091740.2 Page 16 155
SECTION 11. STANDARD OF PERFORMANCE
Hearing Officer represents and warrants that it has the qualifications, experience and facilities necessary to properly perform the Services required under this Agreement in a thorough, competent and professional manner. Hearing Officer shall at all times faithfully, competently and to the best of its ability, experience and talent, perform all Services. In meeting its obligations under this Agreement, Hearing Officer shall employ, at a minimum, generally accepted standards and practices utilized by persons engaged in providing services similar to the Services required of Hearing Officer under this Agreement, and shall use such skill, prudence, and diligence as other members of Hearing Officer's profession commonly possess and exercise. In addition to the general standards of performance set forth this section, additional specific standards of performance and performance criteria may be set forth in Exhibit "A" "Scope of Services" that shall also be applicable to Hearing Officer's work under this Agreement. Where there is a conflict between a general and a specific standard of performance or performance criteria, the specific standard or criteria shall prevail over the general.
SECTION 12. COMPLIANCE WITH APPLICABLE LAWS; PERMITS AND LICENSES Hearing Officer shall keep itself informed of and comply with all applicable federal, state and local laws, statutes, codes, ordinances, regulations and rules in effect during the term of this Agreement. Hearing Officer shall at all times observe and comply with all such laws, ordinances and regulations, and shall be solely responsible for any failure to comply with all applicable laws, ordinances and regulations. Hearing Officer represents and warrants that Hearing Officer has obtained or shall promptly obtain all necessary licenses to perform the Services set forth in this Agreement and that such licenses are in good standing. Hearing Officer further represents and warrants that the services provided herein shall conform to all ordinances, policies and practices of the City. Neither City, nor any elected or appointed boards, officers, officials, employees or agents of City, shall be liable, at law or in equity, as a result of any failure of Hearing Officer to comply with this section.
SECTION 13. PREVAILING WAGE LAws
Hearing Officer is aware of the requirements of California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., ("Prevailing Wage Laws"), which require the payment of prevailing wage rates and the performance of other requirements on certain "public works" and "maintenance" projects. To the extent applicable, Hearing Officer shall defend, indemnify, and hold the City, its elected officials, officers, employees, and agents free and harmless form any claim or liability arising out of any failure or alleged failure of Hearing Officer to comply with the Prevailing Wage Laws. 00091740,2 Page 17 156
SECTION 14. NONDISCRIMINATION
Hearing Officer and subconsultants shall not unlawfully discriminate, harass, or allow harassment against any person because of sex, sexual orientation, gender, gender identity, gender expression, reproductive health decision -making, race, color, religious creed, marital status, ancestry, national origin, medical condition, genetic information, age, disability (mental and physical), or military or veteran status in connection with or related to the performance of this Agreement. Hearing Officer and subconsultants shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code, § 12900 et seq.) and the applicable regulations promulgated thereunder (Cal. Code of Regs, tit. 2, § 7285.0 et seq.). The applicable regulations of the Fair Fmployment and Housing Commission implementing Government Code, § 12990 (a)- (f), are incorporated into this Agreement by reference and made a part hereof as set for in full (Cal. Code of Regs, tit. 2, § 7285,0, et seq.). Hearing Officer shall include the non-discrimination and compliance provisions of this section in all subcontracts to perform work under this Agreement.
SECTION 15. CONFLICTS OF INTEREST
(a) Hearing Officer covenants that neither it, nor any officer or principal of its firm, has or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of City or which would in any way hinder Hearing Officer's performance of the Services. Hearing Officer further covenants that in the performance of this Agreement, no person having any such interest shall be employed by it as an officer, employee, agent or subcontractor without the express written consent of the City Manager. Hearing Officer agrees to at all times avoid conflicts of interest or the appearance of any conflicts of interest with the interests of City in the performance of this Agreement.
(b) City understands and acknowledges that Hearing Officer is, as of the date of execution of this Agreement, independently involved in the performance of non -related services for other governmental agencies and private parties. Hearing Officer is unaware of any stated position of City relative to such projects. Any future position of City on such projects shall not be considered a conflict of interest for purposes of this section. (c) City understands and acknowledges that Hearing Officer will, perform non -related services for other governmental agencies and private parties following the completion of the Services under this Agreement. Any such future service shall not be considered a conflict of interest for purposes of this section.
00091740.2 ]Page 18 157
SEc71ON 16. CONHOENT1AL INFORMATiON; RELEASE OF INFORMATION (a) All information gained or work product produced by Hearing Officer in performance of this Agreement shall be considered confidential, unless such information is in the public domain or already known to Hearing Officer. Hearing Officer shall not release or disclose any such information or work product to persons or entities other than City without prior written authorization from the City Manager, except as may be required by law. (b) Hearing Officer, its officers, employees, agents or sub consultants, shall not, without prior written authorization from the City Manager or unless requested by the City Attorney of City, voluntarily provide declarations, letters of support, testimony at depositions, response to interrogatories or other information concerning the work performed under this Agreement. Response to a subpoena or court order shall not be considered "voluntary" provided Hearing Officer gives City notice of such court order or subpoena. (c) If Hearing Officer, or any officer, employee, agent or sub consultant of Hearing Officer, provides any information or work product in violation of this Agreement, then City shall have the right to reimbursement and indemnity from Hearing Officer for any damages., costs and fees, including attorney's fees, caused by or incurred as a result of Hearing Officer's conduct.
(d) Hearing Officer shall promptly notify City should Hearing Officer, its officers, employees, agents or sub consultants be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admissions or other discovery request, court order or subpoena from any party regarding this Agreement and the work performed thereunder. City retains the right, but has no obligation, to represent Hearing Officer or be present at any deposition, hearing or similar proceeding. Hearing Officer agrees to cooperate fully with City and to provide City with the opportunity to review any response to discovery requests provided by Hearing Officer. However, this right to review any such response does not imply or mean the right by City to control, direct, or rewrite said response.
SECTION 17. INRFMNIFICATION
(a) To the fullest extent permitted by law, Hearing Officer shall indemnify, protect, defend (with legal counsel reasonably acceptable to City) and hold harmless City and any and all of its elected and appointed officials, officers, employees, representatives and agents ("Indemnified Parties") from and against any and all claims, actions and proceedings (whether at law or equity, administrative or judicial), demands, orders, judgments, losses, injuries (including, without limitation, injury to or death of an employee of Hearing Officer 00091740.2 Page 19 158
or sub consultants), liabilities of every kind (including, without limitation, incidental and consequential damages, court costs, and litigation expenses, and fees of expert consultants or expert witnesses incurred in connection therewith and cost of investigation), damages, costs and expenses, including attorney's fees and costs, (collectively "Claims") that arise out of, pertain to, or relate to, directly or indirectly, in whole or in part, performance of Services by Hearing Officer, its officers, agents, employees, representatives, sub consultants, anyone directly or indirectly employed by any of them, or anyone that they control. Hearing Officer's duty to indemnify, protect, defend and hold harmless Indemnified Parties, shall not include any Claims arising from the sole negligence or willful misconduct of the Indemnified Parties. (b) Hearing Officer agrees to obtain executed indemnity agreements with provisions identical to those set forth here in this section from each and every sub consultant, subcontractor or any other person or entity involved by, for, with or on behalf of Hearing Officer in the performance of this Agreement naming the Indemnified Parties as additional indemnitees. In the event Hearing Officer fails to obtain such indemnity obligations from others as required here, Hearing Officer agrees to be fully responsible according to the terms of this section. Failure of City to monitor compliance with these requirements imposes no additional obligations on City and will in no way act as a waiver of any rights hereunder. This obligation to indemnify and defend City as set forth herein is binding on the successors, assigns or heirs of Hearing Officer and shall survive the termination of this Agreement and this section.
SECTION 18. INSURANCE
Hearing Officer agrees to obtain and maintain in full force and effect during the Term of this Agreement the insurance policies set forth in Exhibit "C" "Insurance" and made a part of this Agreement. All insurance policies shall be subject to approval by City as to form and content.
These requirements are subject to amendment or waiver if so approved in writing by the City Manager. Hearing Officer agrees to provide City with copies of required policies upon request.
SECTION 19. ASSIGNMENT
The expertise and experience of Hearing Officer are material considerations for this Agreement. City has an interest in the qualifications and capability of the persons and entities who will fulfill the duties and obligations imposed upon Hearing Officer under this Agreement.
In recognition of that interest, Hearing Officer shall not assign or transfer this Agreement or any portion of this Agreement or the performance of any of Hearing Officer's duties or obligations under this Agreement without the prior written consent of the City, which may be given in the sole and absolute discretion of the City Manager. Any attempted assignment shall be ineffective, 00091740.2 Page 110 159
null and void, and shall constitute a material breach of this Agreement entitling City to any and all remedies at law or in equity, including termination of this Agreement pursuant to Section 21 "Termination of Agreement." City acknowledges, however, that Hearing Officer, in the performance of its duties pursuant to this Agreement, may utilize sub consultants.
If in the performance of its duties Hearing Officer utilizes sub consultants or subcontractors, Hearing Officer covenants that subcontracts, if any, shall contain a provision making sub consultants or subcontractors subject to all provisions stipulated in this Agreement, including without limitation, the insurance obligations set forth in Section 18 "Insurance." The Hearing Officer acknowledges and agrees that the City is an intended beneficiary of any work performedby any sub consultant or subcontractor for the purposes of establishing a duty of care between any sub consultant or subcontractor and the City.
SECTION 20. CONTINUITY OF PERSONNEL
Hearing Officer shall make every reasonable effort to maintain the stability and continuity of Hearing Officer's staff and subcontractors / sub consultants, if any, assigned to perform the Services. Hearing Officer shall notify City of any changes in Hearing Officer's staff and subcontractors/sub consultants, if any, assigned to perform the Services prior to and during any such performance.
SECTION 21. TERMINATION OF AGREEMENT
(a) City may terminate this Agreement, with or without cause, at any time by giving written notice of termination to Hearing Officer. In the event such notice is given, Hearing Officer shall cease immediately all work in progress.
(b) Hearing Officer may terminate this Agreement for cause at anytime upon thirty (30) days written notice of termination to City.
(c) If either Hearing Officer or City fail to perform any material obligation under this Agreement, then, in addition to any other remedies, either Hearing Officer, or City may terminate this Agreement immediately upon written notice. (d) Upon termination of this Agreement by either Hearing Officer or City, all property belonging exclusively to City which is in Hearing Officer's possession shall be returned to City. Hearing Officer shall furnish to City a final invoice for work performed and expenses incurred by Hearing Officer, prepared as set forth in Section 5 "Method of Payment and Invoicing" of this Agreement. This final invoice shall be reviewed and paid in the same manner as set forth in Section 5 "Method of Payment and Invoicing" of this Agreement. 00091740.2 Page I 11 160
(e) Upon written notice, City may suspend all or any portion of Hearing Officer's performance under this Agreement at its sole option and for its convenience for a reasonable period of time not to exceed six (6) months. City will pay to Hearing Officer a sum equivalent to the reasonable value of the services satisfactorily provided up to the date of suspension. City may rescind the suspension prior to or at six (6) months by providing Hearing Officer with written notice of the rescission, at which time Hearing Officer would be required to resume performance in compliance with the terms and provisions of this Agreement.
Hearing Officer will be entitled to an extension of time to complete performance under this Agreement equal to the length of the suspension unless otherwise agreed to in writing by the Parties.
SECTION 22. EXCUSABLE DELAYS
Neither Party shall be liable for damages, including liquidated damages, if any, caused by delay in performance or failure to perform due to causes beyond the control of either Party. Such causes include, but are not limited to, acts of God, acts of the public enemy, acts of federal, state or local governments, acts of City, court orders, fires, floods, epidemics, strikes, embargoes, and unusually severe weather. The term and price of this Agreement shall be equitably adjusted for any delays due to such causes.
SECTION 23. NOTICES.
All notices required or permitted to be given under this Agreement shall be in writing and shall be personally delivered, or sent by certified mail, postage prepaid and return receipt requested, addressed as follows:
To City: City of Yucaipa
Attn: City Manager
34272 Yucaipa Boulevard
Yucaipa, CA 92399
To Hearing Officer: Jones Mayer Law
Attn: Richard D. Jones
3777 North Harbor Blvd.
Fullerton, CA 92835
Notice shall be deemed effective on the date personally delivered or, if mailed, three (3) days after deposit of the same in the custody of the United States Postal Service. 00091740.2 Page 112
161
SECTION 24. AUTHORITY TO EXECUTE.
The person or persons executing this Agreement on behalf of Hearing Officer represents and warrants that he/she/they has/have the authority to so execute this Agreement and to bind Hearing Officer to the performance of its obligations hereunder.
SECTION 25. Ar]MINISTRATION AND IMPLEMENTATION.
This Agreement shall he administered and executed by the City Manager or his or her designated representative. The City Manager shall have the authority to issue interpretations and to make amendments to this Agreement, including amendments that commit additional funds, consistent with Section 27 "Amendment" and the City Manager's contracting authority under the Yucaipa Municipal Code.
SECTION 26. BINDING EFFECT.
This Agreement shall be binding upon the heirs, executors, administrators, successors and assigns of the Parties.
SECTION 27. AMENDMENT.
No amendment to or modification of this Agreement shall be valid unless made in writing and approved by Hearing Officer and by City. The City Manager shall have the authority to approve any amendment to this Agreement if the total compensation under this Agreement, as amended, would not exceed the City Manager's contracting authority under the Yucaipa Municipal Code. All other amendments shall be approved by the City Council. The Parties agree that the requirement for written modifications cannot be waived and that any attempted waiver shall be void.
SECTION 28. WAIVER.
Waiver by any Party to this Agreement of any term, condition, or covenant of this Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by any Party of any breach of the provisions of this Agreement shall not constitute a waiver of any other provision nor a waiver of any subsequent breach or violation of any provision of this Agreement, Acceptance by City of any work or services by Hearing Officer shall not constitute a waiver of any of the provisions of this Agreement.
0004174o.2 Page 113 162
SECTION 29. LAW TO GOVERN, VENUE.
This Agreement shall be interpreted, construed and governed according to the laws of the State of California. In the event of litigation between the Parties, venue in state trial courts shall lie exclusively in the County of San Bernardino, California. In the event of litigation in a U.S. District Court, venue shall lie exclusively in the Central District of California, in Riverside.
SECTION 30. ATTORNEY'S FEES, COSTS AND ExPENSES.
In the event litigation or other proceeding is required to enforce or interpret any provision of this Agreement, the prevailing Party in such litigation or other proceeding shall be entitled to an award of reasonable attorney's fees, costs and expenses, in addition to any other relief to which it may be entitled.
SECTION 31. ENTIRE AGREEMENT.
This Agreement, including the attached exhibits and addendums, along with any amendments thereto, is the entire, complete, final and exclusive expression of the Parties with respect to the matters addressed therein and supersedes all other agreements or understandings, whether oral or written, or entered into between Hearing Officer and City prior to the execution of this Agreement. No statements, representations or other agreements, whether oral or written, made by any Party which are not embodied herein shall be valid and binding.
SECTION 32. SEVERABILITY.
If any term, condition or covenant of this Agreement is declared or determined by any court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions of this Agreement shall not be affected thereby and the Agreement shall be read and construed without the invalid, void or unenforceable provision(s).
SECTION 33. INCORPORATION AND CONFLICTING TERMS.
(a) The following documents are incorporated and made part of this Agreement by this reference:
00091740.2 Page 114
163
1. All exhibits and addendums
2. All amendments
3, Hearing Officer's proposal, if any
4. Any laws, regulations, requirements, or restrictions, applicable to the funding source used by City to pay Hearing Officer for any portion of work done under Agreement ("Funding Restrictions")
(b) The documents listed above shall be referred to collectively as the "Agreement Documents." The Agreement Documents are intended to be complementary, and a requirement in one Document is effective as if it appeared in all the Documents. In the event of a conflict between any of the Agreement Documents, the Documents shall be given effect in the following order: Funding Restrictions, Amendments (most recent first), this Agreement, Insurance requirements, exhibits and addendums, and Hearing Officer's proposal. Where the requirements of one Document are more stringent then another the more stringent shall govern.
SECTION 34. TIME or ESSENCE.
Time is of the essence for each and every provision ❑f this Agreement. [SIGNATURE PAGE FOLLOWS]
00091740.2 Page 115 164
PROFESSIONAL SERVICEs AGREEMENT
FOR HEARING OFFICER SERVICES- MOBILEHOME RENT STABILIZATION
BETWEEN THE CITY OF YUCAIPA AND BONES MAYER LAW
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date and year first -above written.
CITY OF YUCAIPA
By:
Chris Mann, City Manager
ATTEST:
CITY CLERK
By:
APPROVED AS TO FORM:
CITY ATTORNEY
By:
Jones Mayer Law
Ry:
Richard D, Jones, President
00091740.2 165
Signature Page
EXHIBIT "A"
SCOPE OF SERVICES
Hearing Officer will be expected to conduct hearings and prepare written decisions based thereon under the Ordinance and related regulations in a professional, efficient, economical, and effective manner.
Hearing Officers services may include:
• Coordinating hearing scheduling with City and Mobilehome Rent Stabilization staff; • Reviewing case documentation;
• Conducting hearings, hearing testimony and evidence from parties regarding factual issues;
• Preparing a written determination making a decision, which sets forth the legal and evidentiary basis forthe decision, in addition to conducting legal research as appropriate; and
• Performingall other work necessary forthe effective handlingof the City's administrative hearings under the Ordinance and related regulations.
Hearing Officer will confirm the absence of conflicts before undertaking any new matters for the City. Additionally, consent from the City will be required before representing another client in any matter directly adverse to the City (e.g., transactions, negotiations, proceedings, or other representations involving specific parties).
All hearings will be conducted in English and with the assistance of foreign language interpreters provided on an as -needed basis. The number of hearings each year varies.
Hearing Officer shall provide a detailed invoice for services rendered each month, including the case number, hearing date, time incurred, and hourly rate. The City will provide hearing rooms (physical or virtual), use of copy equipment, documents, materials, and equipment necessary for carrying out hearings.
The locations and times of said hearings will be designated by the City. Ordinarily, hearings will be conducted in person Monday through Thursday between the hours of 5:00 a.m. and 10:00 p.m. at Yucaipa City Hall located at 34272 Yucaipa Boulevard, Yucaipa, CA 92399. Once a hearing is accepted, the Hearing Officer will be required to provide hearing officer services. 00091740.2
F-xhihit A — Scope of Services 166
Page I I
EXHIBIT "B"
COMPENSATION
Per submitted Proposal dated May 12, 2023:
Billing rate for the performance of the work as the Mobilehome Rent Stabilization Hearing Officer shall be two hundred forty dollars ($240.00) per hour.
Firm shall not bill for fax, word processing, or small reproduction matters (under 100 pages).
The firm will charge the client for actual necessary costs incurred for all of the following, including but not limited to: court filing fees, attorney services (includes service of process fees, arbitrators, and mediators), messenger services, Lexis-Nexis research, overnight/express mail service, mileage, parking fees, travel expenses, if applicable, including meals, hotel, air travel and car rentals, actual costs for large reproduction projects if performed by an outside service, or $0.10 per page (b/w) and $0.20 per page (color) if performed in house, and any other expense not listed above which becomes necessary to the successful resolution of a client matter.
There is no minimum number of hours or hearings. Billable hours shall be rounded to the nearest 10 minutes. Billable time will include the review of the materials in preparation for the hearing, the hearings and the preparation of the hearing order(s).
The firm shall provide a detailed invoice for services rendered after each hearing, including the case number, hearing date, time incurred and hourly rate. Invoices shall be paid by City within thirty (30) days of submission.
The firm requests 24 hours of notice for cancellations. If the firm is unable to receive 24 hours of notice for cancellations of all of the hearings, the firm requests a seven -hundred -dollar ($700.00) rate for the canceled hearings. Please note: there will only be a cancellation fee if all of the scheduled hearings are canceled on a particular day.
Proposed rates shall remain firm through the first two years of the contract between the City and Jones Mayer. After that, firm requests annual rate adjustments based upon the Consumer Price Index increase for the prior year utilizing the standard Consumer Price Index (CPI) "All Urban Consumers" for Riverside -San Bernardino -Ontario. The annual CPI rate increase would be capped at 5%.
00091740.2
Exhibit B — Compensation 167
Page I 1
EXHIBIT "C"
INSURANCE
(A) INSURANCE REQUIREMENTS. Hearing Officer shall provide and maintain insurance, acceptable to the City, in full force and effect throughout the Term of this Agreement, against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Services by Hearing Officer, its agents, representatives or employees. Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A:VII. Hearing Officer shall provide the following scope and limits of insurance:
1. MINIMUM SCOPE OF INSURANCE. Hearing Officer shall maintain the following types and limits of insurance.
2. MINIMUM LIMITS OF INSURANCE.
GENERAL LIABILITY INSURANCE. Hearing Officer shall maintain commercial general liability insurance with coverage at least as broad as Insurance Services Office form CG 00 01, in an amount not less than $1,000,000 per occurrence, $2,000,000 general aggregate, for bodily injury, personal injury, and property damage. The policy must include contractual liability that has not been amended.
Any endorsement restricting standard ISO "insured contract" language will not be accepted.
AUTOM0131LE LIA131LITY INSURANCE. Hearing Officer shall maintain automobile liability insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of the Hearing Officer arising out of or in connection with Services to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident.
PROFESSIONAL LIABILITY (ERRORS & OMISSIONS) INSURANCE. Hearing Officer shall maintain professional liability insurance that Lavers the Services to be performed in connection with this Agreement, in the minimum amount of $1,000,000 per claim and in the aggregate, Any policy inception date, continuity date, or retroactive date must be before the effective date of this Agreement and Hearing Officer agrees to maintain continuous coverage through a period no less than three (3) years after completion of the services required by this Agreement.
WORKERS' COMPENSATION INSURANCE. Hearing Officer shall maintain Workers' Compensation Insurance (Statutory Limits) and Employer's Liability Insurance (with limits of at least $1,000,000 per accident or disease). Hearing Officer shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees and volunteers.
UMBRELLA OR EXCESS LIABILITY INSURANCE. (Optional depending on limits required]. As an option to meet the limits of insurance required by this Agreement, Hearing Officer may obtain and 00093262.1
Exhibit C — Insurance 168
Page j 1
maintain an umbrella or excess liability insurance policy with limits that will provide bodily injury, personal injury and property damage liability coverage at least as broad as the primary coverages set forth above, including commercial general liability, automobile liability, and employer's liability. Such policy or policies shall include the following terms and conditions:
+ A drop -down feature requiring the policy to respond if any primary insurance that would otherwise have applied proves to be uncollectible in whole or in part for any reason;
+ Pay on behalf of wording as opposed to reimbursement; • Concurrency of effective dates with primary policies; • Policies shall "follow form" to the underlying primary policies; and * insureds under primary policies shall also be insureds under the umbrella or excess policies.
(B) OTHER PROVISIONs. Each insurance policy required by this Agreement shall be endorsed and state the coverage shall not be suspended, voided, cancelled by the insurer or either Party to this Agreement, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to City. (C) OTHER REQUIREMENTS. Hearing Officer agrees to deposit with City, at or before the effective date of this Agreement, certificates of insurance necessary to satisfy City that the insurance provisions of this contract have been complied with. The City Attorney may require that Hearing Officer furnish City with copies of original endorsements effecting coverage required by this Section. The certificates and endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. City reserves the right to inspect complete, certified copies of all required insurance policies, at any time.
1. Upon request from the City, Hearing Officer shall furnish certificates and endorsements from each subcontractor identical to those Hearing Officer provides.
2. Any deductibles or self -insured retentions must be declared to and approved by City. At the option of City, either the insurer shall reduce or eliminate such deductibles or self -insured retentions as respects City or its respective elected or appointed officers, officials, employees and volunteers or the Hearing Officer shall procure a bond guaranteeing payment of losses and related investigations, claim administration, defense expenses and claims.
3. The procuring of such required policy or policies of insurance shall not be construed to limit Hearing Officer's liability hereunder nor to fulfill the indemnification provisions and requirements of this Agreement. 00093262.1
Exhibit C — Insurance 169
4. Coverage provided by Hearing Officer shall be primary and any insurance or self-insurance procured or maintained by City shall not be required to contribute with it. The limits of insurance required herein may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of City before the City's own insurance or self-insurance shall be called upon to protect it as a named insured.
5. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Hearing Officer or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Hearing Officer hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its sub consultants.
6. General liability policies shall provide or be endorsed to provide that City and its officers, officials, employees, and agents, and volunteers shall be additional insureds under such policies. This provision shall also apply to any excess/umbrella liability policies.
000932G2A
Exhibit C — Insurance 170