HomeMy WebLinkAboutContreras, Melanie Agreement For Professional Services (Admin Hearing Ofcr - Temp)10-25-24 Ljuuuz,1 11 GI IVCIVyt:1Ll.l,u-tuzJu CJ-Or CVWU I V-^i 11 U 1 uou
AGREEMENT FOR PROFESSIONAL SERVICES
BETWEEN
CIYT OF FRESNO
AND
MELANIE CONTRERAS
(Administrative Hearing Officer-Temporary)
This Services Agreement ("Agreement") effective October 25, 2024, is entered between
the City of Fresno, a municipal corporation, hereinafter called "the City," and MELANIE
CONTRERAS ("Hearing Officer"), a resident of Clovis, California.
PREFACE
This Agreement sets forth the terms and conditions under which Hearing Officer will
perform professional services as a temporary Hearing Officer and includes appointment
by City's Chief Administrative Officer as more completely set forth in Section 2- Scope of
Services, below and Exhibit 1 attached hereto and incorporated herein (collectively, "the
Services").
RECITALS
WHEREAS, the City desires to obtain the Services from Hearing Officer, and Hearing
Officer desires to provide the Services to City, on a non-exclusive basis and in full
compliance with controlling federal, state, and local laws, rules and regulations; and
WHEREAS, Hearing Officer is possessed of the required knowledge, skills, resources,
training, and expertise in the rendition of the Services, and is fully competent, qualified,
authorized, and able to perform the Services, holding any and all required licenses,
permits and/or approvals; and
WHEREAS, Hearing Officer provides such Services on a contract basis, as an
independent contractor, possessed of and exercising the complete right to control the
means of accomplishing said Services; and
WHEREAS, Sections 1-405 and 4-107 of the Fresno Municipal Code and Administrative
Order No. 6-19, provide guidelines for selection of service providers, including those of a
temporary hearing officer.
NOW THEREFORE, in consideration of the above recitals, which recitals are contractual
in nature, the mutual promises herein contained, and for other good and valuable
consideration hereby acknowledged, the parties agree as follows:
TERMS AND CONDITIONS
1. Term. The term of this Agreement shall be one year, effective from the date first
set forth above, until October 25, 2025. This Agreement shall renew automatically from
year to year unless earlier terminated as set forth herein.
2. Scope of Services. Hearing Officer shall perform the Services described in
Exhibit 1.
2.1. Hearing Officer acknowledges and agrees that any Services they provide
to the City shall be on a non-exclusive basis.
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2.2. Hearing Officer shall perform the Services when there is a conflict of interest
for the primary permanent Hearing Officer, and/or in situations where the primary
permanent Hearing Officer is unable to perform their duties.
2.3. Hearing Officer shall sit as the trier of fact and shall rule on questions of law
and admissibility of evidence. Hearing Officer shall demonstrate the objectivity necessary
to conduct a fair and impartial review.
2.4. Hearing Officer shall be responsible for performance of all aspects of
conducting the administrative hearings, including but not limited to, correspondence with
appellants and respondents, scheduling of hearings, preparation and preservation of the
hearing record and the rendering of a decision in each matter, all in accordance with and
subject to controlling law and the time frames provided therein.
2.5. The parties acknowledge and agree that the Hearing Officer, in their
performance of this Agreement and the authority delegations provided for in this
Agreement and Exhibit 1 hereto, shall exercise their independent judgment and shall not
take direction, directly or indirectly, in connection therewith from the Chief Administrative
Officer, the Mayor, the City Council (or any member thereof), or any other person.
Decisions and dispositions of the Hearing Officer shall have the full force and effect
provided by law
2.6. Hearing Officer represents and warrants that they are qualified to act as an
administrative hearing officer for purposes of California Vehicle Code Sections 40200 et
seq., meeting all experience, training, and current requirements thereunder.
2.7. Hearing Officer shall obey all federal, state, and local laws and regulations.
2.8. Hearing Officer shall closely adhere to rules of civility and professionalism.
2.9. Hearing Officer shall maintain high ethical standards.
3. Compensation. City Shall pay Hearing Officer as follows:
3.1. Hearing Officer shall be paid on an hourly basis at a rate of$25.00 per hour;
or at the rate of $30.00 per hour, if Hearing Officer is a qualified "certified law student"
pursuant to the California Rules of Court or has obtained Juris Doctorate degree from a
school of law.
3.2. Hearing Officer agrees, Hearing Officer's total payment for each City fiscal
year (July 1 through June 30) of this Agreement shall not exceed $50,000.
3.3. Payment shall be earned for time reasonably spent providing the Services,
including time spent on legal research, preparing for administrative hearings, conducting
administrative hearings, preparing and issuing decisions and orders, and communicating
with City staff, attorney(s), appellant(s), or members of the public as necessary.
3.4. Such payment shall be payable monthly in arrears upon City's receipt and
approval of Hearing officer's written invoice and within thirty (30) business days thereof.
Hearing Officer shall utilize the payment certification and request form supplied by the
City.
3.5. Hearing Officer agrees to provide any substantiation and support for
Services, fees, costs, and expenses upon the reasonable request of the City for a period
of one (1) year after final payment. Records of Hearing Officer's expenses pertaining to
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the Services shall be kept on a generally recognized accounting basis and shall be
available to City or its authorized representatives upon request during regular business
hours throughout the life of this Agreement and for a period of three (3) years after final
payment or, if longer, for any period required by law. In addition, all books, documents,
papers, and records of Hearing Officer pertaining to the Services shall be available for
the purpose of making audits, examinations, excerpts, and transcriptions for the same
period of time. This paragraph shall survive expiration or termination of this Agreement.
3.6. Hearing Officer shall provide the number of hours of Services reasonably
necessary to adequately perform the Services of a temporary Hearing Officer for the
cases adjudicated by the Hearing Officer. There is no minimum number of cases or hours
guaranteed to Hearing Officer. Hearings available to Hearing Officer vary depending upon
work available.
3.7. City will make available in its City Hall a suitable room and equipment for
the Hearing Officer's preparation for hearings and for the conduct of hearings. Hearing
Officer is obligated to provide adequate and competent clerical support.
4. Termination. Remedies and Force Ma'eure.
4.1. This Agreement shall terminate without any liability of City to Hearing Officer
upon thirty (30) days written notice by City to Hearing Officer or by Hearing Officer to City.
4.2. Immediately upon any termination of this Agreement, Hearing Officer shall
(i) immediately stop all work hereunder, except for completing those hearings that have
commenced and where evidence has been presented prior to termination or expiration of
this Agreement; (ii) immediately cause any and all of its subcontractors of cease work,
except for completing those hearings that have commenced and where evidence has
been presented prior to termination or expiration of this Agreement; and (iii) return to City
any and all unearned payments and all properties and materials in the possession of
Hearing Officer that are owned by City. Subject to the terms of this Agreement, Hearing
Officer shall be paid compensation for satisfactory rendition of services prior to the
effective date of termination. Hearing Officer shall not be paid for any work or services
performed, or costs incurred, which reasonably could have been avoided. Hearing Officer
shall complete those hearings that have commenced and where evidence has been
presented prior to termination or expiration of this Agreement, and subject to the terms of
this Agreement, Hearing Officer shall be paid compensation for satisfactory rendition of
such services.
4.3. Upon any termination or expiration of the Agreement, City may (i) exercise
any right, remedy (in contract, law or equity), or privilege which may be available to it
under applicable laws of the State or California or any other applicable law; (ii) proceed
by appropriate court action to enforce the terms of the Agreement; and/or (iii) recover all
direct, indirect, consequential, economic and incidental damages for the breach of the
Agreement.
4.4. Hearing Officer shall provide City with adequate written assurances of future
performance, upon City's Chief Administrative Officer's request, in the event Hearing
Officer fails to comply with any terms or conditions of this Agreement.
4.5. Hearing Officer shall be liable for default unless nonperformance is caused
by an occurrence beyond the reasonable control of Hearing Officer and without its fault
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or negligence, such as: acts of God or the public enemy; acts of City in its contractual
capacity; fires; floods; epidemics; quarantine restrictions; strikes; unusually severe
weather; and delays of common carriers. Hearing Officer shall notify City's Chief
Administrative Officer in writing as soon as it is reasonably possible after the
commencement of any excusable delay, setting forth the full particulars in connection
therewith, and shall remedy such occurrence with all reasonable dispatch, and shall
promptly give written notice to City's Chief Administrative Officer of the cessation of such
occurrence.
5. Indemnity. Except to the extent of California statutory tort immunities afforded City
as a governmental agency, City agrees to indemnify, defend and save Hearing Officer
harmless against and from any and all claims made by or on behalf of any persons, firms,
or corporations for loss, damages, or injury proximately caused by, or alleged to be
proximately caused by, the parties' pursuit of this Agreement, and in any case any action
or proceeding through legal counsel chosen by City. Hearing Officer agrees that this
Agreement shall in no away act to abrogate or waive any immunity of City available under
the Tort Claims Act of the State of California. City will not afford Hearing Officer any
greater rights of defense or indemnity than California law requires City to extend to its
employees.
5.1. Without limiting City's obligations under Section 5 above, the parties
acknowledge and agree that City shall establish and maintain at all times hereunder
reasonable reserves to "self-insure" against liabilities provided for in this Section 5.
5.2. This Section 5 will survive expiration or termination of this Agreement.
6. Conflict of Interest. Prior to City's execution of this Agreement, Hearing Officer
shall complete a City of Fresno Conflict of Interest Disclosure Statement. Said Statement
is attached hereto as Exhibit 2 and incorporated herein by reference. During the term of
this Agreement, Hearing Officer shall have the obligation and duty to immediately notify
City in writing of any change to the information provided by Hearing Officer concerning
conflicts on Exhibit 2.
6.1. Hearing Officer shall not employ or retain the services of any person while
such person either is employed by City or is a member of any City commission, board,
committee, or similar City body. This requirement may be waived in writing by the City's
Administrative Officer if no actual or potential conflict is involved.
6.2. Hearing Officer shall comply with all applicable laws, rules, regulations, and
professional canons/requirements governing avoidance of impermissible client conflicts,
including without limitation the requirements of the California Political Reform Act
(Government Codes Section 87100, et. seq.) and the regulations of the Fair Political
Practices Commission concerning disclosure and disqualification (2 California Code of
Regulations Section 18700, et. seq.).
6.3. Hearing Officer represents and warrants as of the effective date hereof, they
represent no client whose interests are adverse to City.
6.4. In performing the Services to be provided hereunder, Hearing Officer shall
not be employed, managed or controlled by a person whose primary duties are parking
enforcement, parking citation, processing, collection or issuance. Hearing Officer shall be
separate and independent from the citation, collection or processing function.
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6.5. This Section 6 shall survive expiration or termination of this Agreement.
7. Nondiscrimination. Hearing Officer shall not employ discriminatory practices in
the provision of services, employment of personnel, or in another respect on the basis of
race, color, creed, religion, sex, sexual preference, national origin, ancestry, ethnicity,
age, marital status, status as a disabled veteran or veteran of the Vietnam era, medical
condition, or physical or mental disability. During the performance of this Agreement,
Hearing Officer will comply with all laws and regulations, as applicable. Specifically, no
person in the United States shall, on the grounds of race, color, creed, religion, sex,
sexual preference, national origin, ancestry, ethnicity, age, marital status, status as a
disabled veteran or veteran of the Vietnam era, medical condition, or physical or mental
disability be excluded from participation in, be denied the benefits of, or be subject to
discrimination under any program or activity made possible by resulting from this
Agreement.
8. Invalid Provisions. The provisions of this Agreement are severable. In the event
any term, covenant, condition or provision of the Agreement, or the application thereof to
any person, entity, or circumstance, shall to any extent be held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remainder of the terms, covenants,
conditions or provisions of this Agreement, or the application thereof to any person, entity,
or circumstance, shall remain in full force and effect and shall in no way be affected,
impaired or invalidated, provided that such invalidity, voiding or unenforceability of such
covenant, condition or provision does not materially prejudice either party in its respective
rights and obligations contained in the then remaining valid covenants, conditions or
provisions of this Agreement.
9. Independent Contractor. Hearing Officer is and throughout this Agreement shall
be an independent contractor and not an employee, partner or agent of the City. However,
City shall retain the right to verify Hearing Officer is performing their respective obligations
in accordance with the terms hereof.
9.1. Because of the status as an independent contractor, Hearing Officer shall
have absolutely no right to employment rights and benefits available to City employees.
Hearing Officer shall be solely liable and responsible for all payroll and tax withholding
and for providing to, or on behalf of, its employees all employee benefits including, without
limitation, health, welfare and retirement benefits. In addition, together with their other
obligations under this Agreement, Hearing Officer shall be solely responsible for all
matters relating to employment and tax withholding for and payment of Hearing Officer's
employees, including, without limitation: (i) compliance with Social Security and
unemployment insurance withholding, payment of works compensation benefits, and all
other laws and regulations governing matters of employee withholding, taxes and
payment; and (ii) any claim of right or interest in City employment benefits, entitlements,
programs and/or funds offered employees of City whether arising by reason of any
common law, de facto, leased, or co- employee rights or other theory. It is acknowledged
that during the term of this Agreement, Hearing Officer may be providing services to
others unrelated to City or to this Agreement.
10. Partnership/Joint Venture. This Agreement does not evidence or create a
partnership orjoint venture between Hearing Officer and City. Unless specifically provided
for herein, the Hearing Officer shall have no authority to bind the City absent City's
express written consent. Except to the extent otherwise provided in this Agreement,
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Hearing Officer shall bear their own costs/expenses in pursuit hereof.
11. Notices. Any notice required or intended to be given to either party under the terms
of this Agreement shall be in writing and shall be deemed to be duly given if delivered
personally or deposited into the United States mail, by registered or certified mail, return
receipt requested with postage prepaid, addressed to the party to which notice is to be
given at the party's address set forth on the signature page of this Agreement or at such
other address as the parties may from time to time designate by written notice.
11.1. Personal service, as aforesaid, shall be deemed served and effective upon
delivery thereof. Service by mail, as aforesaid, shall be deemed to be sufficiently served
and effective as of 12:00:01 A.M., on the fourth (4th) calendar day following date of
deposit in the United States mail of such registered or certified mail, properly addressed
and postage prepaid.
12. Non-Assignment. This Agreement is personal to Hearing Officer and there shall
be no assignment by Hearing Officer of their rights or obligations under this Agreement
without the prior written approval of City.
13. Non-Solicitation. Hearing Officer represents and warrants that they have not paid
or agreed to pay any compensation, contingent or otherwise, to solicit or procure this
Agreement or any rights/benefits hereunder.
14. Compliance with Law. In providing the services required under this Agreement,
Hearing Officer shall at all times comply with all applicable regulations promulgated by
federal, state, regional, or local administrative and regulatory agencies, now in force and
as they may be enacted, issued, or amended during the term of this Agreement.
15. Governing Law and Venue. This Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the State of California. Venue for purposes
of the filing of any case, controversy or proceeding regarding the enforcement or
interpretation of this Agreement and any rights and duties hereunder shall be Fresno
County, California.
16. Attorney's Fees. If either party is required to commence any proceeding or legal
action to enforce any term, covenant or condition of this Agreement, the prevailing party
in such proceeding or action shall be entitled to recover from the other party its reasonable
attorney's fees and legal expenses in addition to any other relief to which such party may
be entitled.
17. Waiver. The waiver by either party of a breach by the other of any provision of this
Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach
of either the same or a different provision of this Agreement. No provisions of this
Agreement may be waived unless in writing and signed by all parties to this Agreement.
Waiver of any one provision herein shall not be deemed to be a waiver of any other
provision herein.
18. Cumulative Remedies. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies at law or in
equity.
19. General Provisions.
19.1. Once this Agreement is signed by all parties, it shall be binding upon, and
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shall inure to the benefit of, all parties, and each parties' respective heirs, successors,
assigns, transferees, agents, servants, employees and representative.
19.2. The section headings in this Agreement are for convenience and reference
only and shall not be construed or held in any way to explain, modify or add to the
interpretation or meaning of the provisions of this Agreement.
19.3. The parties acknowledge that this Agreement in its final form is the result of
the combined efforts of the parties and that, should any provision of this Agreement be
found to be ambiguous in any way, such ambiguity shall not be resolved by construing
this Agreement in favor of or against either party, but rather by construing the terms in
accordance with their generally accepted meaning.
19.4. In the event of any conflict between the body of this Agreement and any
exhibit or attachment hereto, the terms and conditions of the body of this Agreement shall
control and take precedence over the terms and conditions expressed within the exhibit
or attachment. Furthermore, any terms or conditions contained within any exhibit or
attachment hereto which purport to modify the allocation of risk between the parties,
provided for within the body of this Agreement, shall be null and void.
19.5. The rights, interests, duties and obligations defined within this Agreement
are intended for the specific parties hereto as identified in the preamble of this Agreement.
Notwithstanding anything stated to the contrary in this Agreement, it is not intended that
any rights or interests in this Agreement benefit or flow to the interest of any third parties.
20. Final Acireement. This Agreement and any documents, instruments and materials
referenced and incorporated herein represents the entire agreement between the parties
with respect to the subject matter hereof, and supersedes all prior agreements between
City and Hearing Officer. This Agreement may be modified only by written instrument duly
authorized and executed by both City and Hearing Officer.
21. Any notice required pursuant to this Agreement shall be deemed delivered if given
in writing, mailed with postage prepaid, addressed and directed as follows (or at such
other address as the parties may from time to time designate by written notice):
CITY: HEARING OFFICER:
City of Fresno Name: Melanie Contreras
Attention: Georgeanna A. White, City Address: 5732 S. Eunice Avenue
Manager Fresno, CA 93706
2600 Fresno Street Phone: 559-349-6758
Fresno, CA 93721-3601 E-mail:
Phone: 559-621-7780 melaniecontreras85@hotmail.com
Fax: 559-621-7776
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IN WITNESS WHEREOF, the parties have executed this Agreement at Fresno,
California, the day and year first above written.
City: Hearing Officer:
DocuSigned by: FSigned by:
* �. 11/8/2024 11/8/2024
G eorgeanne . White Melanie on reras
City Manager
ATTEST:
TODD STERMER, CMC
City Clerk
.DocuSigned by:
By: I �" q6Lkr 11/8/2024
❑eputy'
APPROVED AS TO FORM.
ANDREW JANZ
City Attorney
Signedby:
By: l
11/8/2024
Mao Eee,
Senior Deputy City Attorney
Exhibits: 1 — Hearing Officer Guidelines
2 — Disclosure of Conflict of Interest
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EXHIBIT 1 TO AGREEMENT FOR SERVICES
SCOPE OF SERVICES
I. PURPOSE
These guidelines are intended to communicate the general framework of the relationship
between the City and Hearing Officer. Each Hearing Officer selected to do work for the
City will be provided with a copy of these guidelines as part of the Agreement for
Professional Services.
II. GENERAL GUIDELINES
Hearing Officer shall perform services as the Administrative Hearing Officer for the City
of Fresno pursuant to and subject to Fresno Municipal Code Chapter 1, Article 4 and
California Vehicle Code Section 40215, as provided in this Agreement and in accordance
with the following additional requirements and descriptions:
A. Professionalism and Ethics
Hearing Officer must obey all federal, state, and local laws and regulations.
Hearing Officer must closely adhere to rules of civility and professionalism. Additionally,
avoid personalizing appeal proceedings or using pejorative terms and tactics. It is
expected that all work done on its behalf will be conducted to the highest ethical standards
of the profession. If it is suspected that such standards have been or may be
compromised, members of the City Manager's Office and Hearing Officer are expected
to promptly advise the City Manager and/or designee.
B. Case Load
Depending on the number of appeals for which Hearing Officer is assigned,
Hearing Officer shall provide the number of hours of services reasonably necessary to
adequately perform the services of an Administrative Hearing Officer for the cases
assigned to the Hearing Officer. This will be assessed on a case-by-case basis. There is
no minimum number of cases or hours guaranteed to the Hearing Officer.
C. Point of Contact
The City Manager's Office appoints Hearing Officer based on Hearing Officer's
representations regarding expertise, competence and availability. The Hearing Officer's
point of contact with the City of Fresno shall be the City Manager, Georgeanne A. White,
or other designee named by the City Manager.
D. Conduct of Hearing
1. Hearing Officer shall conduct a fair and impartial hearing.
2. Hearing Officer shall sit as the trier of fact and shall rule on questions of
law and admissibility of evidence. Hearing Officer shall demonstrate the objectivity
necessary to conduct a fair and impartial review.
3. Hearing Officer and City each acknowledge and agree that Hearing Officer
will be a fair and impartial hearing officer; and that City, except for purposes of submitting
Page 1 of 2
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evidence and testimony as part of the hearing proceeding, will not in any manner
influence, directly or indirectly, decisions made or to be made by Hearing Officer.
4. Hearing Officer shall provide fair and impartial hearings for appeals of City-
issued administrative citations, orders, decisions or determinations which may involve
violation of City's zoning or housing regulations; violations of the City's code enforcement
regulations; and public nuisance abatement with respect to single and multi-family
residential properties, business permit denials, suspensions and revocations, such as
taxicab or massage business permits; violations, or denials of City regulatory permits,
such as for card rooms, funeral processions or dance halls; and miscellaneous other
matters such as dangerous animal determinations, parking citations, debarment of
bidders, and certain appeals in the competitive procurement processes of the City.
5. Hearing Officer shall be responsible for performance of all aspects of
conducting the administrative hearings, including related correspondence with appellants
and respondents, scheduling of hearings, preparation and preservation of the hearing
record and the rendering of a decision in each matter, all in accordance with and subject
to controlling law and the time frames provided therein.
6. Hearing Officer shall conduct hearings in the facility designated and
provided by City.
E. Conflicts Prohibited
1. Conflict of Interest
The avoidance of any conflict of interests is a fundamental aspect of Hearing
Officer's responsibility. Hearing Officer shall immediately notify the City Manager of (i)
any specific matter coming before Hearing Officer for which Hearing Officer must recuse
themself from hearing the matter because of a conflict of interest, and (ii) any practical
reason by Hearing Officer is unable to serve. Under such circumstances, the City
Manager may appoint a different temporary hearing officer to hear the respective
administrative hearing(s) or have the matter assigned to another permanent hearing
officer.
2. Warranty
In undertaking the work, Hearing Officer represents and warrants that rendering
the services in the Agreement for Services does not constitute a conflict of interest. If
during the progress of the hearing/appeal process a conflict or the appearance of a
conflict arises, Hearing Officer is expected to promptly notify the City Manager.
III. TIME ACCOUNTING
The Hearing Officer must monitor the time incurred in each matter/case. Hearing Officer
shall keep an accounting of their time and submit to the City Manager's Office on a
monthly basis for the purpose of accounting and cost allocation to City Departments.
Page 2 of 2
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EXHIBIT 2 TO AGREEMENT FOR SERVICES
DISCLOSURE OF CONFLICT OF INTEREST
Administrative Hearin2 Officer
YES* NO
1 Are you currently in litigation with the City of Fresno or any of ❑
its agents?
2 Do you represent any firm, organization or person who is in ❑ ❑'�
litigation with the City of Fresno?
3 Do you currently represent or perform work for any clients who ❑
do business with the City of Fresno?
4 Are you or any of your principals, managers or professionals,
owners or investors in a business which does business with ❑ ❑x
the City of Fresno, or in a business which is in litigation with
the City of Fresno?
5 Are you or any of your principals, managers or professionals,
related by blood or marriage to any City of Fresno employee ❑ Ox
who has any significant role in the subject matter of this
service?
6 Do you or any of your subcontractors have, or expect to have,
any interest, direct or indirect, in any other contract in ❑ ❑x
connection with this service?
* If the answer to any question is yes, please explain in full below.
Signed by:
Q�44—,(
Explanation:
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N/A
11/8/2024
Date
Melanie Contreras
(Name)
N/A
(Company)
5732 S. Eunice Avenue
(Address)
Fresno, CA 93706
u Additional page(s) attached.
(City, State, Zip)