HomeMy WebLinkAboutFlores, Micheal D. - Agreement for Services - 07.01.23DocuSign Envelope ID: 8177AD1 3-08F6-447D-897D-B63CD1 803718
AGREEMENT FOR SERVICES
BETWEEN
CITY OF FRESNO
AND
MICHAEL D. FLORES
(Administrative Hearing Officer)
This Services Agreement, (Agreement), effective July 1, 2023, is entered between the
CITY OF FRESNO, a municipal corporation, (City), and MICHAEL D. FLORES, an
individual and a resident of Fresno, California, (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 — Scope of Work, below
and Exhibit A attached hereto and incorporated herein (collectively the Services).
RECITALS
WHEREAS, the City is itself unable to provide the Services; and
WHEREAS, the 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, the 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, the Provider provides
independent contractor, possessed of and
means of accomplishing said Services; and
such Services on a contract basis, as an
exercising the complete right to control the
WHEREAS, Section 4-107 of the Fresno Municipal Code and Administrative Order
No. 6-19 provide certain guidelines for selection of service providers.
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 June 30, 2024. This Agreement shall renew automatically
from year to year unless earlier terminated as set forth herein.
2. Scope of Work. Provider shall perform the Services described in Exhibit A.
2.1. Provider acknowledges and agrees that any Services he provides to City
shall be on a non-exclusive basis.
2.2. 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
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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.
2.3. 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.
3. Compensation. City shall pay Provider as follows:
3.1. Pursuant to Fresno Municipal Code Section 1-405(a), Provider shall be paid
a monthly rate of $10,000, inclusive of reimbursement for costs.
3.2. Such fee shall be payable monthly in arrears upon City's receipt and
approval of Provider's written invoice and within thirty (30) business days
thereof. Provider shall utilize the payment certification and request form
supplied by the City.
3.3. 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 one (1) year 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. In 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.
3.4. 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. Provider is obligated to provide adequate and competent clerical
support.
4. Termination. Remedies and Force Majeure.
4.1. This Agreement shall terminate without any liability of City to Provider upon
thirty days (30) business days prior written notice by City to Provider or by
Provider to City.
4.2. Immediately upon any termination 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 City 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
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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. 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.
4.4. 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.
4.5. 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 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 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 of California. City will not afford
Provider 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.
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6. Conflict of Interest. Prior to City's execution of this Agreement, Provider shall
complete a City of Fresno Conflict of Interest 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
immediately notify City in writing of any change to the information provided by
Provider on Exhibit B.
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 City's.
6.4. In 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 be separate and independent from the citation, collection or
processing function.
6.5. This section 6 shall survive expiration or termination of this Agreement.
7. 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 condition, or physical 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 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
and shall in no way be affected, impaired or invalidated, provided that such
invalidity, voiding or unenforceability of such covenant, condition or provision does
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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. Provider 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 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. In addition, together with his other obligations under this
Agreement, Provider shall be solely responsible for all matters relating 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 common law, de facto,
leased, or co- employee rights or other theory. It is acknowledged that
during the term of this Agreement, Provider may be providing services to
others unrelated to City or to this Agreement.
10. Partnership/Joint 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 to the extent otherwise 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 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 Provider and there shall be no
assignment by Provider of his rights or obligations under this Agreement without
the prior written approval of City.
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13. Non -Solicitation. Provider represents and warrants that he has 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,
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. 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
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 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
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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 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, and supersedes all prior
agreements between City and Provider. This Agreement may be modified only by
written instrument duly authorized and executed by both City and Provider.
21. Recycling Program. In 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 City of Fresno, Provider at its sole cost and expense shall:
21.1 Immediately 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 City's Solid Waste Management Division and by calling City of Fresno
Recycling Hotline at (559) 621-1111.
21.2 Immediately contact City's Solid Waste Management Division at
(559) 621-1452 and schedule a free waste audit, and cooperate with such
Division in their conduct of the audit for each office and facility.
21.3 Cooperate with and demonstrate to the satisfaction of City's Solid Waste
Management Division the establishment of the recycling program in
paragraph (21.1) above and the ongoing maintenance thereof.
22. 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: PROVIDER:
City of Fresno Michael D. Flores
Attention: Georgeanne A. White, 8839 N. Cedar Ave., PMB #201
City Manager Fresno CA 93720
Fresno, CA 93721-3601 Phone: (559) 260-5914
Phone: 559-621-7780 E-mail: mdflores comcast.net
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 OF FRESNO,
a municipal corporation
DocuSigned by:
8/6/2023
�-Ge*rgGanne A. White
City Manager
APPROVED AS TO FORM:
ANDREW JANZ
City Attorney
DocuSigned by:
By:
8/4/2023
�PirarWeq*AlQaCollet Date
Supervising Deputy City Attorney
ATTEST:
TODD STERMER, CMC
City Clerk
DocuSigned by:
By: U6uy'
8/7/2023
6CA1388820964E3..
Deputy
Attachments:
MICHAEL D. FLORES,
an individual
DocuSigned by:
By Iln 8/4/2023
WichaefoD. Flores
1. Exhibit A — Scope of Services
2. Exhibit B — Conflict of Interest Disclosure Form
BMC:prn [300967]
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EXHIBIT A
SCOPE OF SERVICES
Agreement for Services between City of Fresno and Michael D. Flores
Administrative Hearing Officer
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
§40215, 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 assigned, Provider 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 Provider. The assignments to Provider will be on a case by case basis. There's
is no minimum number of cases or hours guaranteed to Provider.
2. Provider's point of contact with the City shall be City Manager, Georgeanne A. White,
or other designee named by the City Manager.
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 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.
5. 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.
6. Provider 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, 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.
7. 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.
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8. Provider shall conduct hearings in the facility designated and provided by City.
9. Provider shall keep an accounting of his time and submit to City Manager's Office
on a monthly basis for the purpose of accounting and cost allocation to City
Departments.
10. Provider shall provide general oversight and mentorship to student Hearing Officers.
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EXHIBIT B
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
❑El
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
❑
0
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 Project?
* If the
answer to any question is yes, please explain in full below.
Explanation:
❑ Additional page(s) attached.
UncuSigned by:
B5®gnaWre
Michael D. Flores
(Name)
8839 N. Cedar Ave.. PMB #201
(Address)
Fresno CA 93720
(City State Zip)
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