HomeMy WebLinkAboutJohnson, Edward J Admin Hearing Officer/olztlts
AGREEMENT FOR SERVICES
BETWEEN
CITY OF FRESNO
AND
EDWARD J. JOHNSON
(Admi nistrative Hearing Officer)
This Services Agreement, (hereinafter referred to as the "Agreement"), effective November 1,
2013 is entered between the CITY OF FRESNO, a municipal corporation, (hereinafter referred
to as "C|TY"), and Edward J. Johnson, an individual and a resident of Mariposa, California,
(hereinafter referred to as "PROVIDER').
PREFACE
This Agreement sets forth the terms and conditions under which PROVIDER shall perform
services as Administrative Hearing Officer and includes an appointment by CITY's Chief
Administrative Officer as more completely set forth in section 2 below and Exhibit A attached
hereto and incorporated herein (hereinafter collectively referred to as the "services").
RECITALS
WHEREAS, the CITY is itself unable to provide the Services; and
WHEREAS, CITY desires to obtain the Services from PROVIDER, and PROVIDER
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, PROVIDER is possessed of unique and superior knowledge, skill,
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, PROVIDER 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, Section 4-107 of the Fresno Municipal Code and Administrative
order No. 6-19 provide certain guidelines for selection of service providers.
NOW ÏHEREFORE, 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. q This Agreement shall be effective from the date first set forth above and continuing
through October 31,2016, subjectto such termination rights as are provided below. Thé
City's Chief Administrative Officer shall twice have the prerogative to extend this Agreement
for an additional one-year period upon written notification from the Chief Administrative
Officerto PROVIDER.
2. Scooe of Work. PROVIDER shall perform the Services described in Exhibit A.
2.1 Depending on the number of appeals for which PROVIDER is responsible, PROVIDER
shall provide at least eight (8) days of Services per month, at eight (B) hours per day, for
each month hereunder. Subject to the foregoing, PROVIDER'S daily schedule and
hours worked under this Agreement on a given day shall generally be subject to
PROVIDER'S discretion and Exhibit A.
2.2 PROVIDER acknowledges and agrees that any Services he provides to CITY shall be
on a non-exclusive basis.
2.3 The parties acknowledge and agree that the PROVIDER, in his performance of this
Agreement and the authority delegations provided for in this Agreement and Exhibit A
hereto, shall exercise his 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 PROVIDER shall have the full force and effect provided by law.
2.4 PROVIDER represents and warrants that he is qualified to act as an administrative
hearing officer for purposes of Cal. Vehicle Code $$ 40200 et seq., meeting all
experience, training, and current requirements thereunder.
Compensation. CITY shall pay PROVIDER as follows:
3.1 On a flat rate basis according to PROVIDER'S fee schedule described in Exhibit B
attached hereto and incorporated herein, compensating PROVIDER upon satisfactory
rendition of each incidence of Services provided hereunder.l
3.2 Such fee shall be payable monthly in arrears upon CITY'S receipt and approval of
PROVIDER'S certified written payment request and within thirty (30) business days
thereof. PROVIDER shall utilize the payment certification and request form supplied by
the CITY.
3.3 PROVIDER agrees that, exclusive of cost reimbursement, PROVIDER'S total payments
hereunder for each year of this Agreement shall not in any event exceed the sum of
One Hundred Thousand and 00/100 dollars ($100,000.00).
3.4 PROVIDER agrees to provide any substantiation and support for Services, fees, costs,
and expenses upon the reasonable request of the CITY for a period of three (3) years
after final payment. Records of PROVIDER'S expenses pertaining to 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. ln addition, all books, documents, papers, and records
of PROVIDER 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.
3.5 CITY will make available in its City Hall a suitable room for the conduct of hearings. ln
addition, CITY will provide PROVIDER with a parking permit for the City Hall South
parking lot. CITY will provide a private office in its City Hall for related business and
1 Sub¡ect to any required Cal. Rev. & Tax Code S 18662 nonresident withholding.
4.
reasonably necessary office equipment and supplies, including a computer, appropriate
software, printer, audio recorder. PROVIDER is obligated to provide adequate and
competent clerical support.
Termination. Remedies and Force Maieure.
4.1 CITY may not terminate this Agreement without cause unrelated to the outcomes of
hearings. This Agreement shall terminate without any liability of CITY to PROVIDER
upon the earlier of: (i) PROVIDER's filing for protection under the federal bankruptcy
laws, or any bankruptcy petition or petition for receiver commenced by a third party
against PROVIDER; (ii)ten (10) business days prior written notice with cause by CITY to
PROVIDER; (iii) CITY's non-appropriation of funds sufficient to meet its obligations
hereunder during any CITY fiscal year of this Agreement, or insufficient funding lor the
Services; or (iv) expiration of this Agreement.
4.2lmmediately upon any termination or expiration of this Agreement, PROVIDER 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 to 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
C]T] any and all unearned payments and all properties and materials in the possession
of PROVIDER that are owned by CITY. Subject to the terms of this Agreement,
PROVIDER shall be paid compensation for satisfactory rendition of services prior to the
effective date of termination. PROVIDER shall not be paid for any work or Services
performed, or costs incurred, which reasonably could have been avoided. PROVIDER
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, PROVIDER shall be paid compensation for satisfactory rendition of
such services. The requirements of the preceding sentence shall survive expiration or
termination of this Agreement.
4.3|n the event of termination due to the failure of PROVIDER to satisfactorily render
services in accordance with the terms of this Agreement, CITY may withhold an amount
that would othenryise be payable as an offset to, but not in excess of, CITY's damages
caused by such failure. ln no event shall any payment by CITY pursuant to [fr¡s
Agreement constitute a waiver by CITY of any breach of this Agreement which may then
exist on the part of PROVIDER, nor shall such payment impair or prejudice any remedy
available to CITY with respect to the breach.
4.4 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 of 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.
4.5 PROVIDER shall provide CITY with adequate written assurances of future performance,
upon CITY's Chief Administrative Officer's request, in the event PROVIDER fails to
comply with any terms or conditions of this Agreement.
5.
4.6 PROVIDER shall be liable for default unless nonperformance is caused by an
occurrence beyond the reasonable control of PROVIDER and without its fault 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. PROVIDER shall notify ClTi'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 shallpromptly give written notice to CITY's Chief Administrative Officer of the cessation of
such occurrence.
lndemnitv. Except to the extent of California statutory tort immunities afforded ClTy
as a governmental agency, CITY agrees to indemnify, defend and save PROVIDER
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
that may be brought against PROVIDER by reason of any such claim, CITY, upon notice
from PROVIDER, covenants to resist or defend such action or proceeding through legal
counsel chosen by CITY. PROVIDER agrees that this Agreement shall in no way act to
abrogate or waive any immunity of CITY available under the Tort Claims Act of the State ofCalifornia. Under no circumstances will CITY afford PROVIDER any greater rights of
defense or indemnity than California law requires CITY to extend to its emplóyees.
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.
Conflict of lnterest. Prior to CITY'S execution of this Agreement, PROVIDER shall completea City of Fresno Conflict of lnterest Disclosure Statement. Said Statement is attached
hereto as Exhibit C and incorporated herein by reference. During the term of this
Agreement, PROVIDER shall have the obligation and duty to immediatety notify ClTy in
writing of any change to the information provided by pRoVIDER on Exhibit G.
6.1 PROVIDER 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 Chief
Administrative officer if no actual or potential conflict is involved.
6.2 PROVIDER 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 PROVIDER represents and warrants that as of the effective date hereof, he represents
no client whose interests are adverse to the ClTy's.
6.
7.
6.41n performing the Services to be provided hereunder, PROVIDER shall not be employed,
managed or controlled by a person whose primary duties are parking enforcement,
parking citation, processing, collection or issuance. PROVIDER shall bé separate and
independent from the citation, collection or processing function.
6.5 This section 6 shall survive expiration or termination of this Agreement.
Nondiscrimination. PROVIDER shall not employ discriminatory practices in the provision of
services, employment of personnel, or in any other 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 cındition, orphysical or mental disability. During the performance of this Agreement, PROVIDER 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 theVietnam 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 or resulting from this Agreement.
lnvalid Provisions. The provisions of this Agreement are severable. ln 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 jurisdiciion to be
invalid, void or unenforceable, the remainder of the terms, covenantð, conditions orprovisions 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, impáired
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.
!¡cþpe¡çþnl Contractor. PROVIDER is and throughout this Agreement shall be an
independent contractor and not an employee, partner or agent of the CITY. However, ClTy
shall retain the right to verify that PROVIDER is performing his respective obligations in
accordance with the terms hereof.
9.1 Because of his status as an independent contractor, PROVIDER shall have absolutely
no right to employment rights and benefits available to CITY employees. PROVIDER
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. ln addition, together with his other obligations
under this Agreement, PROVIDER shall be solely responsible for all matters relãting to
employment and tax withholding for and payment of PROVIDER's employees, including,
without limitation, (i) compliance with Social Security and unemployment insurance
withholding, payment of workers 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 comhon law, de
facto, leased, or co- employee rights or other theory. lt is acknowledþed that during the
term of this Agreement, PROVIDER may be providing services to others unrelatèd to
CITY or to this Agreement.
L
9.
10. PartnershipiJoint Venture. This agreement does not evidence a partnership or joint venture
between PROVIDER and CITY. Unless specifically provided for herein, the PROVIDER
shall have no authority to bind the CITY absent CITY'S express written consent. Except tothe extent othenruise provided in this Agreement, PROVIDER shall bear his own
costs/expenses in pursuit hereof.
11. Notices. Any notice required or intended to be given to either party underthe 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 12:00:014M, on the fourth (4th)calendar day following dateof deposit in
the United States mail of such registered or certified mail, properly addressed and
postage prepaid.
12. Non-Assiqnment. This Agreement is personal to PROVIDER and there shall be no
assignment by PROVIDER of his rights or obligations under this Agreement without the prior
written approval of CITY.
13. Non-Solicitation. PROVIDER represents and warrants that he has not paid or agreed to pay
any compensation, contingent or othenryise, to solicit or procure this Agreement or any
rights/benefi ts hereunder.
14. Compliance with Law. ln providing the services required under this Agreement, PROVIDER
shall at all times comply with all applicable laws of the United States, the State of California
and CITY, and 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.Governinq 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.
l6.Attornev's Fees. lf 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.
1 9. General Provisions.
19.1 Once this Agreement is signed by all parties, it shall be binding upon, and shall inure
to the benefit of, all parties, and each parties' respective heirs, successors, assigns,
tra n sferees, agents, serva nts, employees a nd representatives.
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 interpreiation
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 iñ
accordance with their generally accepted meaning.
19.4 ln 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 thä
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 intendedfor 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 Aqreement. 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. This Agreement may be modified only by written
instrument duly authorized and executed by both clry and pRovrDER.
21 Regvclinq Prooram. ln the event PROVIDER maintains an office or operates a facility(ies),
or is required herein to maintain or operate same, within the incorporated limits of the'Ciiy
of Fresno, PROVIDER at its sole cost and expense shall:
(¡) lmmediately establish and maintain a viable and ongoing recycling program,
approved by CITY's Solid Waste Management Division, for each office and
facility. Literature describing CITY recycling programs is available from ClTy's
Solid Waste Management Division and by calling City of Fresno Recycling
Hotline at (559) 621-1111.
(ii) lmmediately contact CITY's Solid Waste Management Division at
(559)621-1452and schedule a free waste audit, and cooperate with such
Division in their conduct of the audit for each office and facility.
Cooperate with and demonstrate to the satisfaction of CITY's Solid Waste
Management Division the establishment of the recycling program in
paragraph (i) above and the ongoing maintenance thereof.
lN WITNESS WHEREOF, the parties have executed this Agreement at Fresno, California, the
day and year first above written.
CITY OF FRESNO,
a municipal corporation
(¡ i)
B
City Manager
ATTEST:
WONNE SPENCE
City Clerk
By: ///,? Ò// ð
APROVED AS TO FORM:
DOUGLAS T. SLOAN
CITY:
City of Fresno
Attention Bruce Rudd
Fresno, CA 93721-3601
Fax: 559-621-7776
Phone: 559-621-7780
Attachments:
Js".ó,zal3
PROVIDER:
Edward J. Johnson
5622 Heddon Ct.
Mariposa, CA 95338-9765
Phone: 559-760-7659
Fax:
1. Exhibit A - Scope of Services
2. Exhibit B - Fee Schedule
3. Exhibit C - Conflict of lnterest Disclosure Form
Edward J. Johnson,
an individual
Deputy
EXHIBIT A
SCOPE OF SERVICES
Agreement for Services between Gity of Fresno and Edward J. Johnson
Administrative Hearinq Officer
PROJECT TITLE
PROVIDER shall perform services as the Administrative Officer for the City of Fresno pursuant
to and subject to Fresno Municipal Code Chapter 1, Article 4 and Vehicle Code 940215, as
provided in this Agreement and in accordance with the following additional requirements and
descriptions:
1. Depending on the number of appeals for which PROVIDER is responsible, PROVIDER shall
provide at least eight (B), eight (8) hour days of Services in each month hereunder, prorated
for portions of any month. Subject to the foregoing, PROVIDER'S daily schedule and hours
worked under this Agreement on a given day shall generally be subject to PROVIDER'S
discretion and without limitation PROVIDER may pro-rate a day's work over more than one
calendar day.
2. PROVIDER'S point of contact with the CITY shall be Assistant CiÇ Manager, Renena Smith.
3. PROVIDER and CITY each acknowledge and agree that PROVIDER will be a fair and
impartial hearing officer; and that CITY, except for purposes of submitting evidence and
testimony as part of the hearing proceeds, will not in any manner influence, directly or
indirectly, decisions made or to be made by PROVIDER.
4. PROVIDER shall perform services, on a nonexclusive basis, as one of the City Manager's
appointed independent administrative "Permanent" Hearing Officers pursuant to and subject
to Chapter 1, Article 4 of the Fresno Municipal Code, and California Vehicle Code
Section 40215.
5. PROVIDER shall immediately notify the City Manager of (i) any specific matter coming
before PROVIDER for which PROVIDER must recuse himself/herself from hearing the
matter because of a conflict of interest, and (ii) any practical reason why PROVIDER is
unable to serve. Under such circumstances, the City Manager may appoint a temporary
hearing officer to hear the respective administrative hearing(s) or have the matter assigned
to another permanent hearing officer.
6. PROVIDER shall sit as the trier of fact and shall rule on questions of law and admissibility of
evidence. PROVIDER shall demonstrate the objectivity necessary to conduct a fair and
impartial review.
7. PROVIDER shall provide fair and impartial hearings for appeals of C|TY-issued
administrative citations, orders, decisions or determinations which may involve violations of
CITY's zoning or housing regulations; public nuisance abatements; 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 CITY.
Page 1 of2
8.PROVIDER 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.
PROVIDER shall conduct hearings in the facility designated and provided by CITY.
Page2 of2
EXHIBIT B
FEE SCHEDULE FOR SERVICES
Agreement for Services between City of Fresno and Edward J. Johnson
Administrative Hearino Officer
PROJECT TITLE
,Administrative Hearing Officer Services:At the rate of Eight Thousand Three Hundred
Twenty and 00/100 Dollars ($8,320.00) per month
for at least eight (8), eight (8) hour days of Services
rendered per month, but in no case exceeding One
Hundred Thousand Dollars and 00/100 ($100,000)
per year.
Up to Two Thousand Dollars ($2OOO¡ per year in
reimbursement for reasonable costs incurred, such
as: any required licensure; mileage in connection
with site visits; and expenses in connection with
attendance at one meeting of the California Public
Parking Association annual meeting per year.
Provided, however, that all such costs, expenses
and reimbursables shall not exceed any applicable
CITY rates.
Costs, Expenses and Reimbursables:
Exclusive of costs, expenses and reimbursables, total compensation payable to PROVIDER for
each year under this Agreement shall not in any event exceed One Hundred Thousand Dollars
($100,000.00).
Page 1 ofl
EXHIBIT C
DISCLOSURE OF CONFLICT OF INTEREST
Administrative Hearino Officer
PROJECT TITLE
(name)
YES*NO
,|Are you currently in litigation with the City of Fresno or any of its
agents?
il X
2 Do you represent any firm, organization or person who is in
litigation with the City of Fresno?
tr K
3 Do you currently represent or perform work for any clients who do
business with the City of Fresno?
tr X.
4 Are you or any of your principals, managers or professionals,
owners or investors in a business which does business with the
City of Fresno, or in a business which is in litigation with the City of
Fresno?
!F
5 Are you or any of your principals, managers or professionals,
related by blood or marriage to any City of Fresno employee who
has any significant role in the subject matter of this service?tr K
6 Do you or any of your subcontractors have, or expect to have, any
interest, direct or indirect, in any other contract in connection with
this Project?tr K* lf the answer to any question is yes, please explain in full below. ¡1 À r /\
Explanation:
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n Additional page(s) attached.
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