HomeMy WebLinkAboutGallegos, Dustin Agreement For Professional Services (Admin Hearing Officer - Temp) 3-25-24Page 1 of 10
AGREEMENT FOR PROFESSIONAL SERVICES
BETWEEN
CITY OF FRESNO
AND
DUSTIN GALLEGOS
(Administrative Hearing Officer - Temporary)
This services Agreement, (Agreement), effective March 25 2024, is between the City of
Fresno, a municipal corporation, (City), and Dustin Gallegos, an individual (Hearing
Officer).
PREFACE
This Agreement sets forth the terms and conditions under which Hearing Officer will
perform professional services as a temporary Hearing Officer pursuant to Fresno
Municipal Code Section 1-405(b), with the working title “Administrative Hearing Officer”.
RECITALS
WHEREAS, 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 federal, state and local laws, rules and regulations; and
WHEREAS, Hearing Officer is possessed of the required knowledge, skill, resources,
training, and expertise in the rendition of the services, and is fully competent, qualified,
authorized, and able to perform the services; 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 the 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. This Agreement shall be effective from the date first set forth above and
continuing on an as needed basis until terminated.
2. Scope of Work. Hearing Officer shall perform services as follows:
2.1. Hearing Officer will perform professional services as a temporary Hearing
Officer for the City of Fresno pursuant to Fresno Municipal Code Chapter 1,
Article 4 and California Vehicle Code Section 40215, as provided in this
Agreement.
2.2. Hearing Officer will perform services and conduct administrative hearings
related to code enforcement issues involving matters as available, including
when there is conflict of interest for the primary permanent Hearing Officer,
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or in situations where the primary permanent Hearing Officer is unable to
perform his or her duties.
2.3. Depending on the number of appeals for which Hearing Officer adjudicates,
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 will vary depending upon work available.
2.4. Hearing Officer's point of contact with City shall be the designated Assistant
City Manager, or other designee named by the City Manager.
2.5. Hearing Officer and City each acknowledge and agree Hearing Officer will
be a fair and impartial hearing officer; and 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 Hearing Officer.
2.6. Hearing Officer shall perform services, on a nonexclusive basis, as one of
the City Manager's appointed independent administrative ''temporary"
Hearing Officers pursuant to and subject to Chapter 1, Article 4 of the
Fresno Municipal Code, and California Vehicle Code section 40215.
2.7. Hearing Officer shall immediately notify the City Manager of: (i) any specific
matter coming before Hearing Officer for which Hearing Officer must recuse
himself/herself from hearing the matter because of a conflict of interest; and
(ii) any practical reason why Hearing Officer 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.
2.8. 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.
2.9. Hearing Officer shall provide fair and impartial hearings for appeals of City-
issued administrative citations, orders, decisions or determinations which
may involve violations of City's zoning or housing regulations; violations of
the City's code enforcement regulations; and public nuisance abatements
with respect to single and multi-family residential properties. Should the
primary permanent Hearing Officer have a conflict of interest, or be unable
to perform his or her duties, Hearing Officer may be requested to provide
fair and impartial hearings for appeals of City issued administrative citations,
orders, decisions or determinations involving the following matters:
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.
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2.10. 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.
2.11. Hearing Officer shall conduct administrative hearings in the facility
designated and provided by City.
2.12. The parties acknowledge and agree the Hearing Officer, in the performance
of this Agreement and the authority delegations provided for in this
Agreement, shall exercise independent judgment and shall not take
direction, directly or indirectly, in connection therewith from the primary
permanent Hearing 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.
3. Compensation. City shall pay Hearing Officer as follows:
3.1. Hearing Officer shall be paid on an hourly basis at a rate of $20 per hour;
or at the rate of $25 per hour if Hearing Officer is a qualified “certified law
student” pursuant to the California Rules of Court or has graduated from a
school of law.
3.2. Payment shall be earned for time reasonably spent providing the services
described in this Agreement, including time spent on legal research,
preparing for administrative hearings, conducting administrative hearings,
preparing and issuing decisions and orders, and communicating to City staff
or members of the public as necessary.
3.3. Such fee shall be payable monthly in arrears upon City’s receipt and
approval of Hearing Officer's certified written payment request and within
thirty business days thereof. Hearing Officer shall utilize the payment
certification and request form supplied by City.
3.4. Hearing Officer agrees, exclusive of cost reimbursement, Hearing Officer's
total payments for each City fiscal year (July 1 through June 30) of this
Agreement shall not exceed $50,000.
3.5. Hearing Officer agrees to provide substantiation and support for services,
fees, costs, and expenses upon the reasonable request of City for a period
of one year after final payment. Records of Hearing Officer’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 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
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paragraph shall survive termination of this Agreement.
3.6. City will make available in City Hall a suitable room for the conduct of
hearings. Hearing Officer will provide his or her own clerical support.
4. Termination.
4.1. This Agreement shall terminate without any liability of City to Hearing
Officer upon thirty 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, as requested, for
completing those hearings that have commenced and where evidence
has been presented prior to termination of this Agreement; and (ii) return
to City any and all unearned payments and all properties and materials in
the possession of Hearing Officer are owned by City. Subject to the terms
of this Agreement, Hearing Officer shall be paid compensation for 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.
4.3. Upon termination of the Agreement, City may: (i) exercise any right,
remedy (in contract, law or equity), or privilege which may be available
to it under 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.
4.4. 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.
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 may be brought against Hearing Officer
by reason of any such claim, City, upon notice from Hearing Officer, covenants to
resist or defend such action or proceeding through legal counsel chosen by City.
Hearing Officer agrees this Agreement shall in no way 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 agree
City shall establish and maintain at all times hereunder reasonable
reserves to "self insure" against liabilities provided for in this section.
5.2. This section shall survive termination of this Agreement.
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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
(attached). 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.
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 Manager 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 Code section 87100, et seq.) and the
regulations of the Fair Political Practices Commission concerning disclosure
and disqualification (California Code of Regulations section 18700, et seq.).
6.3. Hearing Officer represents and warrants as of the effective date hereof, he
or she represents 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.
6.5. This section shall survive termination of this Agreement.
7. Nondiscrimination. Hearing Officer shall not employ discriminatory practices in the
provision of services, employment of personnel, or in any other respect on the
basis of race, color, religious creed, religion, sex, gender, sexual preference,
gender identity, gender expression, national origin, ancestry, ethnicity, age, marital
status, genetic information, 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, religious creed, religion, sex, gender, sexual preference, gender
identity, gender expression, national origin, ancestry, ethnicity, age, marital
status, genetic information, 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 or 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
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and shall in no way be affected, impaired or invalidated, provided 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 City.
However, City shall retain the right to verify Hearing Officer is performing his or
her 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 his or her 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 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 common law, de facto, leased, or co-
employee rights or other theory. It is acknowledged during the term of
this Agreement, Hearing Officer may be providing services to others
unrelated to City or to this Agreement.
10. No Partnership or Joint Venture. This agreement does not evidence or create a
partnership or joint venture between Hearing Officer and City. Unless specifically
provided for herein, the Hearing Officer shall have no authority to bind City
absent City’s authorized express written consent. Except to the extent otherwise
provided in this Agreement, Hearing Officer shall bear his or her own costs and
expenses in fulfilling this Agreement.
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 shall be deemed served and effective upon delivery.
Service by mail shall be deemed to be sufficiently served and effective as
of 12:00:01 a.m., on the fourth calendar day following date of deposit in the
United States mail of such registered or certified mail, properly addressed
and postage paid.
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12. Non-Assignment. This Agreement is personal to Hearing Officer and there shall
be no assignment by Hearing Officer of any rights or obligations under this
Agreement.
13. Non-Solicitation. Hearing Officer represents and warrants he or she has not paid
or agreed to pay any compensation, contingent or otherwise, to solicit or procure
this Agreement or any rights or benefits hereunder.
14. Compliance with Law. In providing the services required under this Agreement,
Hearing Officer 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. 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. Attorneys’ 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 attorneys’ 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
shall inure to the benefit of, all parties, and each parties' respective heirs,
successors, assigns, transferees, agents, servants, employees and
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 interpretation or meaning of the provisions of this Agreement.
19.3. The parties acknowledge this Agreement in its final form is the result of the
combined efforts of the parties, and should any provision of this Agreement
be found to be ambiguous in any way, such ambiguity shall not be resolved
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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 any rights or interests in this Agreement
benefit or flow to the interest of any third parties.
20. Final Agreement. 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 City
and Hearing Officer.
21. Notices. Any notice required pursuant to this Agreement shall be deemed delivered
if given in writing, mailed with postage prepaid, addressed and
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directed as follows (or at such other address as the parties may from time to time
designate by written notice):
City: Hearing Officer:
City Manager Name: DUSTIN GALLEGOS
Fresno City Hall Address: 617 W. BULLARD
2600 Fresno St. Fresno, CA 93612
Fresno, CA 93721
Phone: (559) 621-7768 Phone: (559)304-6700
Fax: (559)621-7776 E-mail: dustingallegoslaw@gmail.com
IN WITNESS WHEREOF, the parties have executed this Agreement at Fresno,
California, the day and year first above written.
City: Hearing Officer:
________________________ __________________________
Georgeanne A. White DUSTIN GALLEGOS
City Manager
APPROVED AS TO FORM:
ANDREW JANZ
City Attorney
By: ______________________
Brandon M. Collet
Assistant City Attorney
ATTEST:
TODD STERMER, CMC
City Clerk
By: _____________________
Deputy
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3/25/2024
3/26/2024
3/26/2024
3/26/2024
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DISCLOSURE OF CONFLICT OF INTEREST
Administrative Hearing 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
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
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
connection with this Project?
* If the answer to any question is yes, please explain in full below.
Explanation:
Signature
Date
(Name)
(Company)
(Address)
Additional page(s) attached.
(City State Zip)
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X
617 W. BUllard Ave.
X
X
X
Clovis, CA 93612
X
X
N/A
Dias Hall Inc.
Dustin Gallegos
3/25/2024