HomeMy WebLinkAbout09 - Title 20 Hearing Officer ServicesCITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item No. 9
September 28, 2010
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Evelyn Tseng, Revenue Manager
949 - 644 -3141 or etseng(cDnewportbeachca.gov
SUBJECT: HEARING OFFICER SERVICES RELATING TO TITLE 20 HEARINGS
ISSUE:
Authorize the City Manager to contract with Hon. John C. Woolley to conduct
administrative service hearings related to Title 20 issues.
RECOMMENDED ACTION:
Approve the City Manager's recommendation to contract with Hon. John C. Woolley
(retired) to conduct administrative hearings on Title 20 matters.
BACKGROUND:
In April, 2010, and again in May, 2010, the City published a Request for Proposals
( "RFP ") for Hearing Officer Services. The RFP was published twice to obtain a pool of
applicants for the hearing officer positions whose background and experience met the
requirements of Council Policy F -26 (Hearing Officers) for hearing officers presiding
over Title 20 matters. To expand the pool of qualified applicants, staff also contacted
JAMS, a private alternative dispute resolution provider.
Council Policy F -26 directs that the City Council approve the hiring of hearing officers
that preside over hearings held under Title 20. Pursuant to Newport Beach Municipal
Code (NBMC) Chapters 20.91A and 20.98, hearing officers hear and approve,
conditionally approve or deny group residential use permit applications and applications
for reasonable accommodation for disabled groups or individuals, as well as use
permits for other conditional uses in residential districts. Hearing officers also preside
over requests for extension of abatement periods for nonconforming uses in residential
districts, under NBMC Chapter 20.62.
The RFP responses were reviewed by the Office of the City Attorney, Planning staff,
Revenue Division staff and Assistant City Manager Dana Smith. The consensus of staff
was to obtain the services of the Hon. John C. Woolley, one of the candidates
recommended by JAMS. Staff continues to interview additional candidates to retain a
Hearing Officer
September28, 2010
Page 2
pool of several hearing officers who can hear Title 20 matters on a rotating basis as
needed.
Staff's recommendation is based upon Judge Woolley's professional background, which
meets the qualifications required by F -26, and by Judge Woolley's familiarity with
municipal law and land use issues. Judge Woolley's biography is attached.
Fiscal Issues. Retention of hearing officers for Title 20 matters is primarily a
qualifications -based selection process, rather than a process in which the lowest bidder
is necessarily selected. Staff negotiated a $350 /hour rate for Judge Woolley's services
through JAMS, which represents a substantial discount from JAMS' customary rates.
Environmental Review:
The City Council's approval of this item does not require an environmental review.
Public Notice:
The agenda item has been noticed according to the Brown Act (72 hours in advance of
the meeting at which the City Council considers the item).
Funding Availability:
Title 20 hearing officer fees will be charged against fee revenue within the General
Fund.
Prepared & Submitted by:
Ev yle Tseng, Revenue Manager
Attachments:
A —Council Policy F -26
B — Resume /CV information
C — Contract for Hearing Officer Services
HEARING OFFICERS
PURPOSE
ATTACHMENT A
F -26
To establish the City Council's policy regarding the qualifications, backgrounds, and
experience of City - appointed Hearing Officers.
POLICY
It is the policy of the City Council of the City of Newport Beach that Hearing Officers
shall be used as independent, third party decision- makers outside of City staff and
appointed commissions. This Policy sets forth the roles of Hearing Officers, their
qualifications, and relationship to the City government.
A. Hiring of Hearing Officers
Pursuant to §1.08.055 of the Newport Beach Municipal Code (NBMC), the City
Council, the City Manager, or certain boards or commissions can designate
Hearing Officers to hear and consider appeals. Generally, these Hearing Officers
shall be hired under the authority of the City Manager. However, for Hearing
Officers hearing and considering actions under Title 20, the City Council shall
approve the hiring of the Hearing Officers.
B. Roles of Hearing Officers
Hearing Officers can serve the community to conduct any hearing or appeal
pursuant to NBMC §1.08.055 or can serve as code administrators. Respective
roles shall be as follows:
1. To hear any appeals authorized by NBMC §1.08.055 plus appeals of
California Vehicle Code citations.
2. As a Code Administrator of these aspects of Title 20:
a. To consider and approve, conditionally approve, or deny Use
Permits under Chapter 20.91A.
b. To consider and approve, conditionally approve, or deny requests
for Reasonable Accommodation under Chapter 20.98.
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F -26
C. To consider and approve, conditionally approve, or deny requests
for abatement time period extensions under Chapter 20.62.
C. Qualifications of Hearing Officers
The City Council shall select Hearing Officers based on the following
qualifications. A hearing officer shall:
1. For appeals authorized by NBMC §1.08.055:
a. Have a demonstrated familiarity with municipal codes, applicable
case laws, and California State Law.
b. Have at least three (3) years' experience either as a Hearing Officer
for another municipality, a judge, or as a practicing attorney
familiar with municipal law;
C. If applicable, be a member of the California State Bar in good
standing, or having retired from the Bar in good standing, and
d. Have no conflict of interest or ethical barrier regarding the specific
case that the Officer will hear,
2. For decisions associated with Title 20:
a. Have a demonstrated familiarity with municipal codes (especially
land use and zoning), applicable case laws, and California and
Federal law (including fair housing laws).
b. Have at least ten (10) years' experience either as a Hearing Officer
for another municipality, a judge, or as an attorney practicing in the
area of municipal law, especially land use planning;
C. Be a member of the California State Bar in good standing, or having
retired from the Bar in good standing; and
d. Have no conflict of interest or ethical barrier regarding the specific
case that the Officer will hear. Each candidate's potential conflicts
of interests shall be reviewed and an opinion offered by qualified
legal counsel prior to employment as a Hearing Officer.
2
Adopted - January 22, 2008
F -26
Q
From 9497601419 Page: 212 Date: 7/3012010 3:22:31 PM ATTACHMENT
Response of John C. Woolley to
CITY OF NEWPORT BEACH REQUEST FOR PROPOSALS
Hearing Officer Services
July 30, 2010
To: Evelyn Tseng
City of Newport Beach
From: Hon. John C. Woolley, [Rct.]
Orange County Superior Court, 1982 — 2003
• In accordance with City Council Policy F -26 "hearing Officers" I submit
the following background information to support this application and my CV
delivered to the City by JAMS while I was on vacation.
Demonstrated familiarity with municipal codes Deputy City Prosecutor,
City of Garden Grove [Willard Pool, City Arty.], 1963 — 1964.
[Trial attorney, Parker Stanbury McGee et al., insurance defense trial attorney ,
1964 — 19651.
Assistant City Attorney, City of Garden Grove f Willard Pool, City Attorney ],
1985 —1992, Contract.
Advised City Council and Planning Commission re: Government/Municipal
Law, Obligation of General Law City, prosecuted Administrative Law Hearings
re: employee rule breaches, Zoning violations, CUP applications and violations,
Fair Housing [group homes] and civil actions filed against the City.
Ten years experience: Admitted to the Practice of Law January 1963 -- 2010.
California State Bar 433718.
California Superior Court Judge, Orange County, December 1982 — .February
2010_ Inactive in Calif. Bar Association during 20 years of service as a trial judge
as required by law. Reinstated to active status upon retirement from the Court.
Conflict of Interest or ethical barriers: I do not believe I have any interest
conflicts and will execute disclosure statements when appropriate to do so.
Roles of Hearing Officers: I believe I am familiar with the roles of hearing
officers to hear appeals pursuant to CVC citations, Municipal Code and Title
20.91 A, 20.98 and 20.62 matters.
Hon. John C Woolley, Judge Retired
This fax was received by FAX -CNB on Line 2 from 9497601419
JAMS Arbitration, Mediation, and ADR Services I Mediators /Arbitrators I Neutrals I Hon.... Page 1 of 2
T: 714- 939 -1300
F: 714 - 939 -8710
When Experience
and Integrity Count
"Judge Woolley's
conditioning as a
marathon runner
emphasizes his
tenacious spirit and
drive to never give
up on a case until
resolution is
reached."
"Judge Woolley is
bright, articulate, and
an excellent
communicator who is
willing to work hard
until the case is
resolved."
Case Manager
Derek Scott
JAMS
500 N. State College
Blvd.
14th Floor
Orange, CA 92868
714- 937 -8256 Phone
714- 939 -8710 Fax
Email:
dscott @jamsadreom
10 JAMS IO
THE RESOLUTION EXPERTS`
Hon. John C. Woolley (Rot.)
Hon. John C. Woolley (Ret.) has more than 20 years of experience as a judge of the
California Superior Court County of Orange where he presided over numerous civil trials
and participated in hundreds of complex settlement conferences. Judge Woolley
believes in the philosophy that striving to come up with the simplest possible explanation
for a problem or disagreement greatly enhances the possibility of the parties reaching a
settlement in a fair and cost - effective manner. He has been described as "one of the
State's most esteemed trial judges..." [Gertner v. Sup. Ct. (1993) C.A.4th 927, 933].
ADR Experience and Qualifications
• Judge Woolley has handled numerous multi -party, complex civil disputes, including
construction defect, landslide, water contamination, environmental and toxic torts,
eminent domain, probate, trust/estate /custody /spousal disputes, class actions,
employment, sexual harassment/discrimination, professional malpractice, wrongful
death /bodily injury, bad faith first-party insurance claims, breach of contract, real
estate, banking, municipal law, and zoning and code enforcement issues. He uses
a focused analytical approach to problem solving.
Representative Matters
• Multiple unit construction defect cases involving all trades and phases of
construction
• Class and representative actions, including unfair competition, price - fixing, landlord -
tenant security deposits, and consumer products
• Voters' initiative constitutionality case, Marblehead v. City of San Clemente (1991)
226 C.A.3rd 1504
• Complex business matters, including shareholders derivative actions,
partnership /corporate dissolution, and franchise /license agreements, and
accounting issues
• Municipal law, zoning, and building code violations; homeowners association
disputes
• First party bad faith cases involving general and punitive damages, Gourley v. St.
Farm (1990) 53 C.3rd 121
• Employment punitive damage claims involving allegations of "despicable" conduct
• Eminent domain /inverse condemnation involving highway construction, improper
reservoir maintenance, and "blight" removal for community improvements
• Highly emotional family disputes involving partnership /business dissolution, estate
distribution, and child custody matters
Honors, Memberships, and Professional Activities
• President: Warren J. Ferguson Inn of Court A.I.C., 2000 -2001; California Law
Librarians and Trustees, 1994.1996; California Judges Association, 1989 -1990;
West Orange County Bar Association, 1979 -1980; Orange County Bar Association
(President Elect), 1982, when appointed to the Superior Court
• Judge of the Year: Constitutional Rights Foundation, 1997; Orange County Family
Law Bar, 1985; West Orange County Bar Association, 1984
• FINRA (Formerly NASD) arbitrator (claims of investors against securities dealers)
Background and Education
• Judge, California Superior Court, Orange County, 1982 -2003
• Judge, Appellate Department, 1986 -1988 and 1995 -1996
• Author: Cromwell V. Cumming (1998) 65 C.A.4th Supp. 10
• Justice Pro Tem, California Court of Appeal Fourth District Third Division, 1984
• Supervising Judge of four different trial panels: civil, trial court reduction, probate,
and family law, 1984 -1994
• Attorney, Law Offices of John C. Woolley, P.C., 1965 -1982
http: / /www.jamsadr.com/woolley/ 09/03/2010
JAMS Arbitration, Mediation, and ADR Services I Mediators /Arbitrators I Neutrals I Hon.... Page 2 of 2
• Assistant City Attorney (Contract), 1965 -1970; Deputy City Prosecutor, 1963 -1964
• Attorney, Parker, Stanhury, et al., 1964 -1965
• J.D., University of Southern California School of Law, 1962
• B.S., California State University at Long Beach, 1959
http: / /www.jamsadr.com/woolley/ 09/03/2010
ATTACHMENT C
PROFESSIONAL SERVICES AGREEMENT WITH
JOHN C. WOOLLEY FOR HEARING EXAMINER SERVICES
THIS AGREEMENT is made and entered into as of this _ day of , 2010, by
and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City "), and
JOHN C. WOOLLEY, an individual, whose address is 17 Monaco, Newport Beach,
California ( "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. Consultant possesses the skill, experience, ability, background, certification and
knowledge to provide the services described in this Agreement.
D. The principal member of Consultant for purposes of the Project shall be John C.
Woolley.
E. 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 30th day of September, 2015, unless
terminated earlier as set forth herein. Consultant has no expectation of future
retention by City after the expiration of this Agreement.
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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 paid to Consultant under this
Agreement exceed Fifty Thousand and 00/100 Dollars ($50,000) 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 (if any) during the preceding month. The
monthly invoice shall reflect the name or number of the case(s) and number of
F,
Final, 9 -16 -10
hours spent on the matter(s). Consultant's bills shall include the name of the
hearing 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. Evelyn Tseng
shall be the Project Administrator and shall have the authority to act for City
under this Agreement. The Project Administrator or her 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
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maintain a City of Newport Beach business license during the term of this
Agreement.
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.
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Final, 9 -16 -10
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
interest in the work to be performed. City agrees to cooperate with the
Consultant on the Project.
11. 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.
12. 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 Requirements.
i. 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
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subcontractor to similarly maintain Workers' Compensation
Insurance and Employer's Liability Insurance in accordance with
the laws of the State of California for all of the subcontractor's
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
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 no1100 Dollars ($1,000,000.00)
combined single limit for each occurrence.
E. Endorsements. Each automobile liability insurance policy shall be
endorsed with the following specific language:
i. 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.
E 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
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City against demonstrated risks, Consultant shall provide such additional
and reasonable insurance upon terms and conditions that are mutually
agreeable to all parties to continuing any performance under this
Agreement.
13. 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.
14. 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.
15. 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 without liability to
Consultant. Further, any and all liability arising out of changes made to
Consultant's deliverables under this Agreement by City or persons other than
Consultant is waived against Consultant and City assumes full responsibility for
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such changes unless City has given Consultant prior notice and has received
from Consultant written consent for such changes.
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
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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,
addressed as hereinafter provided. All notices, demands, requests or approvals
from Consultant to City shall be addressed to City at:
Attention: Evelyn Tseng
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: etseng @city.newport- beach.ca.us
All notices, demands, requests or approvals from City to Consultant shall be
addressed to Consultant at:
Attention:
John C. Woolley
17 Monaco
Newport Beach, California 92660
Phone: 949 - 760 -1419
Fax:
E -Mail:
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
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Final, 9 -16-10
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
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
IU
1.9ma s W3BIIIt,
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.
29. CONTROLLING LAW AND VENUE
The laws of the State of California shall govern 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]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on
the day and year first written above.
APPROVED AS TO FORM:
Leonie Mulvihill
Assistant City Attorney
For the City of Newport Beach
ATTEST:
M
Leilani Brown
City Clerk
CITY OF NEWPORT BEACH,
A Municipal Corporation
By:
Dave Kiff
City Manager
CONSULTANT:
in
John C. Woolley
Attachments: Exhibit "A" — Scope of Services
Exhibit "B" — Schedule of Billing Rates
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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.
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Exhibit "B"
SCHEDULE OF BILLING RATES
City shall pay Consultant $350 /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.
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