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HomeMy WebLinkAboutFinnegan, Matthew J. 2015-12-16eelic moo. )5/10-/`-1(0 AGREEMENT FOR ADMINISTRATIVE HEARING OFFICER SERVICES This Agreement is made and entered into this 1(7' day of December, 2015, by and between the CITY OF UKIAH (hereinafter "CITY "), and Matthew J. Finnegan, Attorney at Law (SB# 209682)(hereinafter "CONTRACTOR "). RECITALS WHEREAS, Various provisions of the Ukiah City Code provide for administrative hearings for, including, but not limited to, abatement of abandoned vehicles, abatement of public nuisance condition on private property, business licensing, arbitration under City's mobile home rent control ordinance and impounding animals; and WHEREAS, Matthew J. Finnegan ( "Contractor ") represents that he is qualified and competent to provide the services of Administrative Hearing Officer for administrative hearings. AGREEMENT NOW, THEREFORE, the parties hereby agree as follows: 1. DESIGNATED REPRESENTATIVES. A. CITY. The City Manager or his /her designee shall be the representative of the CITY for all purposes under this Agreement. B. CONTRACTOR. Matthew J. Finnegan is the authorized representative for Contractor. 2. DUTIES OF CONTRACTOR. CONTRACTOR shall perform the duties and /or provide services as described in Exhibit "A" attached hereto and incorporated herein. 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, and access to all City ordinances, resolutions, and other City materials required in the conduct of administrative hearings. The Ukiah City Code is available on -line at 1 www.codepublishing.com/ca/ukiah/. 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 $225 dollars. In addition, if CONTRACTOR is required to travel other than within the City of Ukiah or from Contractor's home or office to a hearing location. CITY shall pay for travel time at the same $225/hr. rate. CITY also agrees to reimburse CONTRACTOR for mailing costs related to CONTRACTOR's duties as a hearing officer. Payment will be made upon receipt by City Manager /Attorney of itemized invoices submitted by CONTRACTOR. 5. TERM OF AGREEMENT. The term of this Agreement shall be from December 1 Le , 2015 to November 30, 2016, inclusive, subject to the provisions of Section 6 of this Agreement. 6. TERMINATION. A. Discretionary. CONTRACTOR OR CITY may terminate this Agreement without cause upon thirty (30) days written notice mailed or personally delivered to the other party. B. 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. C. 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 this Agreement, shall be delivered to CITY as soon as possible, but not later than thirty (30) days after termination. 7. 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. 8. 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 2 with CITY or its agent in any such audit or inspection. 9. 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. 10. 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. 11. 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. 12. 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. 13. 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: City Manager City of Ukiah 300 Seminary Avenue Ukiah, CA 95482 3 PHONE: (707) 463 -6262 FAX: (707) 462 -6068 CONTRACTOR: Matthew J. Finnegan Attorney at Law SB #209682 PO Box 1426 116 South State St. Ukiah CA 95482 14. INDEPENDENT CONTRACTOR. PHONE: (707) 462 -1524 FAX: ( 707) 468 -1609 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. 15. INDEMNIFICATION. 15.1 Insurance Liability. Without limiting Contractor's obligations arising under Paragraph 6.2 Contractor shall not begin work under this Agreement until he procures and maintains for the full period of time allowed by law, surviving the termination of this Agreement insurance against claims for injuries to persons or damages to property, which may arise from or in connection with its performance under this Agreement. A. Minimum Scope of Insurance Coverage shall be at least as broad as: 1. Insurance Services Office ( "ISO) Commercial General Liability Coverage Form No. CG 20 10 10 01 and Commercial General Liability Coverage — Completed Operations Form No. CG 20 37 10 01. 2. ISO Form No. CA 0001 (Ed. 1/87) covering Automobile Liability, Code 1 "any auto" or Code 8, 9 if no owned autos and endorsement CA 0025. 3. Worker's Compensation Insurance as required by the Labor Code of the State of California and Employers Liability Insurance, if Contractor has any employees. 4. Malpractice insurance as provided in the Lawyers Professional Liability Policy Declarations, attached hereto as Exhibit B. B. Minimum Limits of Insurance 4 Contractor shall maintain limits no less than: 1. General Liability: $1,000,000 combined single limit per occurrence for bodily injury, personal injury and property damage including operations, products and completed operations. If Commercial General Liability Insurance or other form with a general aggregate limit is used, the general aggregate limit shall apply separately to the work performed under this Agreement, or the aggregate limit shall be twice the prescribed per occurrence limit. 2. Automobile Liability: $300,000 combined single limit per accident for bodily injury and property damage. 3. Worker's Compensation and Employers Liability: Worker's compensation limits as required by the Labor Code of the State of California and Employers Liability limits of $1,000,000 per accident. 4. Errors and Omissions liability: $250,000 per occurrence. C. Deductibles and Self - Insured Retentions Any deductibles or self - insured retentions must be declared to and approved by the City. At the option of the City, either the insurer shall reduce or eliminate such deductibles or self - insured retentions as respects to the City, its officers, officials, employees and volunteers; or the Contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. D. Other Insurance Provisions The policies are to contain, or be endorsed to contain, the following provisions: 1. General Liability and Automobile Liability Coverages a. The City, it officers, officials, employees and volunteers are to be covered as additional insureds as respects; liability arising out of activities performed by or on behalf of the Contractor, products and completed operations of the Contractor, premises owned, occupied or used by the Contractor, or automobiles owned, hired or borrowed by the Contractor for the full period of time allowed by law, surviving the termination of this Agreement. The coverage shall contain no special limitations on the scope -of- protection 5 afforded to the City, its officers, officials, employees or volunteers. b. The Contractor's insurance coverage shall be primary insurance as respects to the City, its officers, officials, employees and volunteers. Any insurance or self - insurance maintained by the City, its officers, officials, employees or volunteers shall be in excess of the Contractor's insurance and shall not contribute with it. c. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the City, its officers, officials, employees or volunteers. d. The Contractor's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. 2. Worker's Compensation and Employers Liability Coverage The insurer shall agree to waive all rights of subrogation against the City, its officers, officials, employees and volunteers for losses arising from Contractor's performance of the work, pursuant to this Agreement. 3. Professional Liability Coverage If written on a claims -made basis, the retroactivity date shall be the effective date of this Agreement. The policy period shall extend from the Effective Date to a date which is one year from the termination of this Agreement. 4. All Coverages Each Insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City. E. Acceptability of Insurers Insurance is to be placed with admitted California insurers with an A.M. Best's rating of no less than A- for financial strength, AA for long -term credit rating and AMB -1 for short-term credit rating. 6 F. Verification of Coverage Contractor shall furnish the City with Certificates of Insurance and with original Endorsements effecting coverage required by this Agreement. The Certificates and Endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. The Certificates and Endorsements are to be on forms provided or approved by the City. All Certificates and Endorsements are to be received and approved by the City before Contractor begins the work of this Agreement. The City reserves the right to require complete, certified copies of all required insurance policies, at any time. If Contractor fails to provide the coverages required herein, the City shall have the right, but not the obligation, to purchase any or all of them. In that event, after notice to Contractor that City has paid the premium, the cost of insurance may be deducted from the compensation otherwise due the contractor under the terms of this Contract. G. Subcontractors Contractor shall include all sub - contractors or sub - Contractors as insured under its policies or shall furnish separate certificates and endorsements for each sub- contractor or sub - Contractor. All coverage for sub - contractors or sub - Contractors shall be subject to all insurance requirements set forth in this Paragraph 15.1. 15.2 Indemnification. Notwithstanding the foregoing insurance requirements, and in addition thereto, Contractor agrees, for the full period of time allowed by law, surviving the termination of this Agreement, to indemnify the City for any claim, cost or liability caused by any negligent act or omission or the willful misconduct of Contractor and its agents in the performance of services under this contract, but this indemnity does not apply to liability for damages for death or bodily injury to persons, injury to property, or other loss, arising from the sole negligence, willful misconduct or defects in design by the City, or arising from the active negligence of the City. "Indemnify," as used herein includes paying the expenses of defending against a claim and the payment of any settlement or judgment arising out of the claim. Defense costs include all costs associated with defending the claim, including, but not limited to, the fees of attorneys, investigators, Contractors, experts and expert witnesses, and litigation expenses. References in this paragraph to City or Contractor, include their officers, employees, agents, and subcontractors. 16. ENTIRE AGREEMENT -- AMENDMENTS. 7 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 this 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 the CONTRACTOR and the CITY. E. If any conflicts arise between the terms and conditions of this Agreement, and the terms and conditions of the attached exhibits or the documents expressly incorporated by reference, the terms and conditions of this Agreement shall control. 17. SET -OFF AGAINST DEBTS. CONTRACTOR agrees that CITY may deduct from any payment due to CONTRACTOR under this Agreement, any monies which CONTRACTOR owes CITY under any ordinance, agreement, contract or resolution for any unpaid taxes, fees, licenses, assessments, unpaid checks or other amounts. 18. 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. 19. CITY BUSINESS LICENSE / OTHER TAXES. CONTRACTOR shall obtain and maintain during the duration of this Agreement, a CITY business license as required by the Ukiah Municipal Code. CONTRACTOR shall pay any and all state and federal taxes and any other applicable taxes. CONTRACTOR's taxpayer 8 identification number is 27- 3423159, and CONTRACTOR certifies under penalty of perjury that said taxpayer identification number is correct. 20. APPLICABLE LAW. The laws of the State of California shall govern this Agreement. 21. STATEMENT OF ECONOMIC INTERESTS If CITY determines that CONTRACTOR must file a Statement of Economic Interests form as required by the CITY Conflict of Interest Code. CONTRACTOR shall file a Form 700 - Statement of Economic Interests with the City Clerk's office and CONTRACTOR shall file an Assuming Office Statement within thirty (30) days of execution of this contract, annual statements on or before April 1 of each year and a Leaving Office Statement within thirty (30) days after termination of CONTRACTOR'S contract or any extensions thereto. IN WITNESS WHEREOF, the parties have executed this Agreement as of the day, month and year first above written. CITY OF UKIAH APPROVED AS TO FORM: 9 CONTRACTOR Matthew J. Finnegan Attachment "A" HEARING OFFICER SERVICES 1. Pre - Administrative Hearing Duties. A. In consultation with CONTRACTOR the Planning and Community Development and other City departments will schedule administrative hearings as required in the administration of the City ordinances and state laws that authorize or require the City to offer or conduct administrative hearings requiring the use of a Hearing Officer. In consultation with CONTRACTOR, City staff will schedule the specific day and time upon which each administrative hearing will occur. B. At least Ten (10) days prior to the scheduled day of the administrative hearing, staff shall mail to CONTRACTOR a copy of pertinent documents with respect to the hearing. C. Prior to the day of the administrative hearing on a contested matter, CONTRACTOR shall review pertinent documents, and shall research if necessary, all relevant CITY rules, regulations, ordinances, and /or policies governing the subject matter of the hearing. 2. Administrative Hearing Duties. A. CONTRACTOR shall conduct the administrative hearings and make determinations in accordance with the Ukiah Municipal Code, any applicable requirements of state law, and any adopted by the CITY and the CITY's Code enforcement procedures , as applicable, as well as other CITY codes that may apply. B. CONTRACTOR shall conduct each administrative hearing in a professional manner and be respectful, courteous, patient and responsive to all parties. 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. The time required by applicable law not to exceed within forty -five (45) days of an administrative hearing, CONTRACTOR shall complete and mail to the parties to the hearing, including any appellant and City representatives a written Decision containing the information required by the Ukiah Municipal Code, applicable Code enforcement procedures Manual, and case law governing administrative hearings. C. CONTRACTOR shall mail to the City Manager or his/her designee, a copy of 10 the Decision together with a Proof of Service on the parties, at the same time as the Decision is mailed to the parties. D. 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 City Manager at the time his or her decision is submitted in final form. 4. General Duties. A. CONTRACTOR shall be available to work up to ten (10) hours per month, as determined by the CITY to be necessary based on need. CITY shall determine on what days of the month, and at what times of the day, between 8:00 a.m. and 5:00 p.m., administrative hearings shall be scheduled and conducted. B. CONTRACTOR shall conduct the administrative hearing described in this Agreement at the location determined by the CITY. C. CONTRACTOR shall maintain all records in the manner determined by the CITY. D. CONTRACTOR shall perform any other tasks required to effectively implement the CITY's Administrative Hearings. 11