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HomeMy WebLinkAboutC-4156 - PSA for Hearing Examiner ServicesZ PROFESSIONAL SERVICES AGREEMENT WITH CHARLES S. VOSE FOR HEARING EXAMINER SERVICES THIS AGREEMENT is made and entered into as of this 1 st day of March, 2009, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City "), and CHARLES S. VOSE, an individual, whose address is 5450 Windward Ave., Long Beach, California 90814 ( "Consultant "), and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City desires to engage Consultant to provide hearing examiner services on such use permits that the Newport Beach Municipal Code requires or permits to be approved, disapproved or conditionally approved by a hearing officer, reasonable accommodations that the Newport Beach Municipal Code requires or permits to be approved, disapproved or conditionally approved by a hearing officer, and such other hearings on administrative matters, citations, appeals and penalties as are assigned by the Revenue Manager ( "Project'). C. Council Policy F -26 requires City Council to approve the hiring of Hearing Officers who may hear and consider actions under Title 20. City Council approved the hiring of Consultant on April 8, 2008. D. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. E. The principal member of Consultant for purposes of the Project shall be Charles S. Vose. F. City solicited and received a proposal from Consultant, reviewed and evaluated the previous experience and expertise of Consultant, and now desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM A. Term Limit. The term of this Agreement shall commence on the above written date, and shall terminate on the 28th day of February, 2014, unless terminated earlier as set forth herein. Consultant has no expectation of future retention by City after the expiration of this Agreement. B. Blackout Period. Upon termination of this Agreement, City shall not retain Consultant for any further professional services for a period of at least one (1) year from the above date of termination. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit "A" and incorporated herein by reference. City may elect to delete certain tasks of the Scope of Services at its sole discretion. 3. TIME OF PERFORMANCE Time is of the essence in the performance of services under this Agreement and the services shall be performed to completion in a diligent and timely manner. The failure by Consultant to perform the services in a diligent and timely manner may result in termination of this Agreement by City. Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the services to be provided for the Project, each party hereby agrees to provide notice to the other party so that all delays can be addressed. 3.1 Consultant shall submit all requests for extensions of time in writing to the Project Administrator not later than ten (10) calendar days after the start of the condition that purportedly caused the delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by telephone, fax, hand - delivery or mail. 4. COMPENSATION TO CONSULTANT City shall pay Consultant for the services in accordance with the provisions of this Section and as stated in Exhibit "B ", attached and incorporated herein by reference. In no event shall the total amount exceed Fifty Thousand and 001100 Dollars ($50,000.00) without City's prior written approval. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. Consultant shall submit monthly invoices to City reflecting the number of administrative hearings conducted during the preceding month. The monthly invoice shall reflect the name or number of the case(s) and number of hours spent on the matter(s). Consultant's bills shall include the name of the hearing 2 examiner and the date the services were performed. City shall pay Consultant no later than thirty (30) days after approval of the monthly invoice by City staff. City makes no representations or guarantees of the scope or number of assignments, hearings, administrative appeals, or other matters to be assigned to Consultant under this Agreement. 5. ADMINISTRATION This Agreement will be administered by the Revenue Division. Glen Everroad shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. 6. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of its responsibilities under this Agreement, City agrees to, where applicable: A. Provide access to, and upon request of Consultant, one copy of all existing relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays in Consultant's work schedule; B. Provide the hearing schedules and audio tapes; C. Designate and provide a location for the hearings to be conducted and for the hearing materials to be deposited at the conclusion of the hearings; and D. Provide parking for the hearing examiner during the time hearings are scheduled. 7. STANDARD OF CARE All of the services shall be performed by Consultant. Consultant represents that he is qualified to perform the services required by this Agreement, and that he will perform all services in a manner commensurate with community professional standards. Consultant represents and warrants to City that he has or shall obtain all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of Consultant to practice his profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 3 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 8. HOLD HARMLESS Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents and employees (collectively, the "Indemnified Parties ") from and against any and all claims, damages, suits, losses, liabilities, costs and expenses (including, without limitation, attorney's fees and court costs) (individually, a Claim; collectively, "Claims "), regardless of the merit and /or outcome of any such Claim, arising from or in any manner related to any intentional, reckless, negligent or otherwise wrongful acts, error or omissions of Consultant or any person employed by Consultant in the performance of the services required under this Agreement. Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the actions of the City, erroneous information provided to Consultant by City and suits for damages regarding decisions made in good faith through the hearing process by the hearing examiner. Nothing in this indemnity provision shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 9. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the means of performing the work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the services. 10. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or 11. 12. interest in the work to be performed. City agrees to cooperate with the Consultant on the Project. PROGRESS Consultant is responsible for keeping the Project Administrator and /or his duly authorized designee informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of work. Consultant shall obtain, provide and maintain at his own expense during the term of this Agreement, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. A. Certificates of Insurance. Consultant shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. D. Coverage Reguirements. Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his employees in accordance with the laws of the State of California. In addition, Consultant shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employers Liability Insurance in accordance with the laws of the State of California for all of the subcontractors employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (10 calendar days written notice of non- payment of premium) prior to such change. The insurer shall agree 5 to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Consultant for City. ii. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than One Million and no /100 Dollars ($1,000,000.00) combined single limit for each occurrence. iii. Professional Errors and Omissions Insurance. Consultant shall maintain professional errors and omissions insurance, which covers the services to be performed in connection with this Agreement in the minimum amount of One Million and 001100 Dollars ($1,000,000.00). E. Endorsements. Each automobile liability insurance policy shall be endorsed with the following specific language: L The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Consultant. ii. Any failure to comply with reporting provisions of the policy shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. iii. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) calendar days (10 calendar days written notice of non - payment of premium) written notice has been received by City. F. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Consultant's performance under this Agreement. G. Additional Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. In the event the City's Risk Manager determines that additional insurance is required during the course of the Agreement to insure the City against demonstrated risks, Consultant shall provide such additional and reasonable insurance upon terms and conditions that are mutually 13. 14. 15. agreeable to all parties to continuing any performance under this Agreement. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the services to be provided under this Agreement shall not be assigned, transferred, contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venture or syndicate member or cotenant if Consultant is a partnership or joint- venture or syndicate or cotenancy, which shall result in changing the control of Consultant. Control means fifty percent (50 %) or more of the voting power or twenty -five percent (25 %) or more of the assets of the corporation, partnership or joint - venture. SUBCONTRACTING The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience and competence of Consultant. Assignments of any or all rights, duties or obligations of the Consultant under this Agreement will be permitted only with the express written consent of City. Consultant shall not subcontract any portion of the work to be performed under this Agreement without the prior written authorization of City. OWNERSHIP OF DOCUMENTS Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents "), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents to City upon prior written request. Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Consultant will be at City's sole risk and Consultant. Further, any and all liability arising out of Consultant's deliverables under this Agreement by City or Consultant is waived against Consultant and City assumes f such changes unless City has given Consultant prior notice from Consultant written consent for such changes. without liability to changes made to persons other than fu 7 responsibility for and has received 16. CONFIDENTIALITY All Documents not subject to production under the California Public Records Act, including drafts, notes and evidence and documents submitted to Consultant that result from the services in this Agreement, shall be kept confidential unless City authorizes in writing the release of information. 17. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Consultant shall allow inspection of all work, data, Documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 18. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 19. CONFLICTS OF INTEREST Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act "), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 20. NOTICES All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing to City by Consultant and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first -class mail, E addressed as hereinafter provided. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Attention: Glen Everroad Revenue Division Manager Revenue Division City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92663 Phone: 949 - 644 -3131 Fax: 949 - 644 -3073 E -Mail: everroad @city.newport- beach.ca.us All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Attention: Charles S. Vose 5450 Windward Avenue Long Beach, California 92663 Phone: 562 - 494 -7891 E -Mail: caseyvose @yahoo.com 21. TERMINATION In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. In the event of termination under this Section, City shall pay Consultant for services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. Notwithstanding the above provisions, Consultant shall have the right, at its sole discretion, and without cause, to terminate the Agreement upon providing ninety (90) days notice. 22. COMPLIANCE WITH ALL LAWS E Consultant shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Consultant shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 23. WAIVER A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 24. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 25. CONFLICTS OR INCONSISTENCIES In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 26. INTERPRETATION The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 27. AMENDMENTS This Agreement may be modified or amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney. 28. SEVERABILITY If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 10 29. CONTROLLING LAW AND VENUE The laws of the State of California shall govem this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 30. EQUAL OPPORTUNITY EMPLOYMENT Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. [SIGNATURE PAGES FOLLOW] 11 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPRO ED AS TO FORM: Assistant City Attorney For the City of Newport Beach ATTEST: By: (A6..X Leilani Brown City Clerk Attachments: CITY OF NEWPORT BEACH, A Municipal Corporation By: � . Homer Bluda Its: �---' City M nager 01 CONSULTANT: By:�V.-odeA Charles Vose' c�`�P Lr FPR Exhibit "A" — Scope of Services Exhibit "B" — Schedule of Billing Rates 12 Exhibit "A" SCOPE OF SERVICES Consultant shall: 1. Consider and approve, conditionally approve, or deny Use Permits under Newport Beach Municipal Code Section 20.91A; 2. Consider and approve, conditionally approve, or deny requests for Reasonable Accommodation under Newport Beach Municipal Code Section 20.98; 3. Consider and approve, conditionally approve, or deny requests for abatement time period extensions under Newport Beach Municipal Code Section 20.62; and 4. Conduct hearings on such other matters as are assigned by the Revenue Manager. The hearings shall be held in accordance with applicable California and municipal law recognizing the Consultant's obligation to provide independently reasoned decisions. The adjudication may include hearings in person, by written declaration, and /or by telephone. Hearings shall be conducted on the days, during the hours and at the location designated by the City and mutually agreeable to Consultant and City. All hearings shall be audio -taped on equipment provided by City. Consultant shall submit written decisions for each hearing in a format designated or agreed to by the City. If required, Consultant shall provide a computer generated disposition, with justification, which can be transferred to the City or other entity designated by the City, via e-mail, removable media or as mutually agreed upon by the parties. Consultant shall be responsible for supplying the computer system needed for the disposition and its delivery. 13 Exhibit "B" SCHEDULE OF BILLING RATES City shall pay Consultant $225 /hour, rounded to the nearest 10 minutes. Time will include file review prior to the hearing, conduct of the hearing, and researching and writing the decision. Consultant is responsible for all travel and phone expenses. If needed, copies of any documents shall be made at City Hall. 14