HomeMy WebLinkAboutC36410 - Admin Rvw Hearing Svcs for Parking Citations CITY OF PALM DESERT CONTRACT NO. C36410
DEPARTMENT OF COMMUNITY DEVELOPMENT
STAFF REPORT
REQUEST: AUTHORIZATION FOR THE CITY MANAGER TO ENTER INTO
AN AGREEMENT WITH MR. WALLACE V. BAKER TO
CONDUCT ADMINISTRATIVE REVIEW HEARING SERVICES
FOR CONTESTED PARKING CITATIONS, ANIMAL CONTROL
HEARINGS AND ADMINISTRATIVE CITATION HEARINGS
WITHIN THE JURISDICTION OF THE CITY OF PALM DESERT.
SUBMITTED BY: Pedro Rodriguez, Code Compliance Supervisor
APPLICANT: Wallace V. Baker
9 Lake Como Court
Rancho Mirage, California 92270
DATE: September 28, 2017
CONTENTS: Exhibit A. Resignation letter of Mr. James R. Butzbach
Exhibit B. Bid Proposal from Wallace V. Baker
Exhibit C. Contract No. C36410 Hearing Examiner
Recommendation
By Minute Motion:
1. Accept the letter of resignation from Mr. James R. Butzbach.
2. Authorize the City Manager to enter into an agreement with Mr.
Wallace V. Baker to conduct administrative review hearings
services for contested parking citations, animal control hearings
and administrative citation hearings within the jurisdiction of the
City of Palm Desert.
Executive Summary
Approval of staff's request will approve an agreement with Mr. Wallace V. Baker to
provide Hearing Officer services to the City for contested parking citations, animal
control hearings and administrative citations.
Background
On June 14, 2017, Mr. James R. Butzbach tendered his resignation to the City as
Hearing Examiner for parking citations, animal control hearings and administrative
Staff Report CONTRACT NO. C36410
Hearing Examiner Contract with Wallace V. Baker
Page 2
September 28, 2017
citations (Exhibit A). With sadness and regret, staff accepted Mr. Butzbach's resignation,
thanking him for his five years of dedicated service as a Hearing Examiner for the
community.
On July 7, 2017, and July 12, 2017, the City Clerk published a notice inviting proposals
for a Hearing Examiner. The invitation was closed July 26, 2017, with a total of two
sealed bids submitted.
After consideration of all bids submitted, staff made a recommendation to accept Mr.
Wallace V. Baker's bid for Hearing Examiner (Exhibit B). Mr. Baker will make himself
available each month to adjudicate parking citations, administrative citations and to
conduct hearings related to animal control issues.
Mr. Baker will charge forty-eight dollars ($48) per hour, per case, to include written
declarations on parking citations; in-person hearings on parking citations; animal control
hearings, administrative citation hearings, and preparation of the written findings and
determination orders on contested cases.
Staff believes Mr. Baker's impressive background in community service will assure a fair
and balanced approach to hearing parking citations, animal control cases and
administrative citations. The Code Compliance Supervisor will work closely with Mr.
Baker to assure all procedures and processes are followed in a timely manner.
Fiscal Analysis
Funds for Hearing Officer expenses are available in the FY17/18 Community
Development (4470) operating budget. Expenses incurred can vary year-to-year and in
the prior two fiscal years, the City has spent $1,310 (FY16/17), and $1,927 (FY15/16)
respectively.
Submitted By: Department Head:
e
Pedro Rodriguez, Ryan Stendell,
Code Compliance Supe isor Director of Community Development
Reviewed: Approval:
Ja et oore, LauriAylaian,
,
Dir ctor of Finance City Manager
ADMINISTRATIVE HEARING SERVICES
77-725 MARLOWE COURT
PALM DESERT,CALIFORNIA 92211
JAMES R.BUTZBACH
HEARING EXAMINER
June 14, 2017
Mr. Pedro Rodriguez, Supervising Manager
City of Palm Desert
Code Compliance Department
73510 Fred Waring Drive
Palm Desert, Calif° 60
Dear Mr. R ngu •
This le er is to inform you that effective September 1, 2017 I will no longer provide Administrative
Hearing services for the City of Palm Desert. I have been providing contract services for the City since
2011 hearing parking citation adjudication cases as well appeals of administrative citations for violations
of the City's municipal code.
I will be moving soon to the State of Colorado where I am being considered for a federal appointed
position.
It has been my pleasure being associated with the City of Palm Desert since 2001 what with serving on
the City's Public Safety Commission during that time and as the independent Hearing Examiner the past
six-years. I wish to thank you personally and the members of your team of professionals for the support
and assistance over the years.
My w Irmest personal regards,
Jamli R. utzbach
( )
' )
1
Wallace V. Baker
9 Lake Como Court
Rancho Mirage, CA 92270
Home Phone: (760) 699-7006
Cell Phone: (951)202-5391
E-Mail: ihllamas@twc.com
July 20,2017
Employment Interest—City of Palm Desert, CA
Position: Hearing Examiner for Non-Moving Parking Citations.Administrative
Citations and Animal Control Hearings.
I have been a resident of Riverside County for 40 years. In 2004, I retired after serving
thirty years on the California Highway Patrol. I began as a patrol officer in 1973,
promoting to sergeant then lieutenant during my career and performed such
administrative assignments as state audit team member, executive officer, field operations
officer and Area Commander. I also have an extensive range of investigative experience
ranging from conducting complex criminal, administrative and personnel investigations
to overseeing and providing managerial review of investigations of a highly sensitive and
comprehensive nature. I also worked with many local, county, state and federal
government entities in a wide range of executive capacities.
Upon my retirement from the California Highway Patrol, I worked two years as a retired
annuitant with the California Air Resources Board as an Air Pollution Specialist. This
assignment consisted of performing commercial vehicle pollution record audits and
associated administrative follow-up to ensure compliance with state regulations.
Overview of California Highway Patrol Service:
• I attained following Peace Officer Standards Training Certificates (P.O.S.T.):
Management, Supervisory, Advanced, Intermediate and Basic
• Supervisor of California Highway Patrol canine team pilot program.
• Acting Area Commander at three southern California CHP Commands
• CHP Academy Associate Instructor: Area Resource Evaluation and Audit Process
• CHP Headquarters Asset Forfeiture Evaluation and Audit Team
• CHP Inland Division Area Management Evaluation Team
2
• Executive Officer: Responsible for local CHP budget preparation and
management of fiscal operations. Facility maintenance and fleet acquisition.
• Field Operations Officer: Responsible for training and deployment needs and
handling personnel matters related to CHP command personnel.
• Managed vehicle storage/impound and asset forfeiture hearings.
• Conducted personnel investigations involving both uniformed and civilian
employees.
• Served as Emergency Command System Logistics Commander during Los
Angeles Riot in 1992.
• Interagency task force member on Emergency Responder policies and procedures
and other local community public safety concerns. Also, involved in public safety
meetings and discussions with legislators and other public officials.
• Served as an Instructor for California Highway Patrol personnel relating to culture
awareness training.
Other Information:
• I belong to the Alpaca and Llama Show Association and International Llama
Registry—Show Division(International show organizations). Over the past ten
years, I have been a llama and alpaca show judge throughout the United States in
both show associations. In addition, I have served on the board of directors of
many llama industry organizations.
• I was a founding member and presiding board of director of Animal Solutions
Konnection(ASK) Foundation- a non-profit 501 c (3) Corporation established to
support Riverside County Department of Animal Services in serving the needs of
animals and the mission of Riverside County Department of Animal Services.
• I have conducted Llama information presentations for Department of Riverside
Animal Services relating to livestock emergency preparedness and evacuation
procedures in the event of emergency incidents.
• I was founding member of the, San Gabriel Rangers, a U.S. Forest Service
Volunteer Equestrian/Llama Unit.
• I am a former civilian dog trainer.
• During military service, I was a U.S. Air Force sergeant and canine handler,
serving in Viet Nam.
CONTRACT NO. C36410
BUSINESS CONTRACT FOR HEARING EXAMINER
CITY OF PALM DESERT
PROFESSIONAL SERVICES AGREEMENT
1. PARTIES AND DATE
This Agreement is made and entered into this day of , 20 , by
and between the City of Palm Desert, a municipal corporation, organized under the laws of
the State of California, with its principal place of business at 73-510 Fred Waring Drive,
Palm Desert, California, 92260 ("City") and WALLACE V. BAKER, HEARING
EXAMINER; with its principal place of business at 9 COMO LAKE COURT, RANCHO
MIRAGE, CA 92270 ("Hearing Examiner"). City and Hearing Examiner are sometimes
individually referred to herein as "Party" and collectively as "Parties."
2. RECITALS
2.1 Hearing Examiner.
Hearing Examiner desires to perform and assume responsibility for the provision of
certain professional Hearing Examiner services required by the City on the terms and
conditions set forth in this Agreement. Hearing Examiner represents that he is qualified
and experienced in providing professional Hearing Examiner services to the City of Palm
Desert.
2.2 Project.
City desires to engage Hearing Examiner to render such professional Hearing
Examiner services for the Adjudication of parking citations, administrative citation and
animal control hearings and appeals and to prepare written declarations for parking
citations; in-person hearings for parking citations; administrative citations and animal
control hearings, and to prepare the written findings and determination orders on
contested cases. ("Project") as set forth in this Agreement.
3. TERMS.
3.1 Scope of Services and Term.
3.1.1 General Scope of Services. Hearing Examiner promises and agrees
to furnish to the City all labor, materials, tools, equipment, services, and incidental and
customary work necessary to fully and adequately supply the professional Hearing
Examiner services necessary for the Project ("Services"). The Services are more
particularly described in Exhibit "A" attached hereto and incorporated herein by reference.
All Services shall be subject to, and performed in accordance with, this Agreement, the
exhibits attached hereto and incorporated herein by reference, and all applicable local,
state and federal laws, rules and regulations.
1
CONTRACT NO. C36410
3.1.2 Term. The term of this Agreement shall be for the term of one (1) year
from the date of execution. This contract shall be automatically renewed from year-to-year,
unless, the City, or the Hearing examiner, gives the other party ninety- (90) days' written
notice of intent to terminate on the termination dated. Notwithstanding the foregoing, the
City may terminate this contract with or without cause, upon ninety- (90) day's written
notice delivered by certified mail at the address designated herein for notice. Hearing
Examiner shall complete the Services within the term of this Agreement, and shall meet
any other established schedules and deadlines.
3.2 Responsibilities of Hearing Examiner.
3.2.1 Independent Hearing Examiner; Control and Payment of Substitute
Hearing Examiner. The Services shall be performed by Hearing Examiner or under its
supervision. Hearing Examiner will determine the means, methods and details of
performing the Services subject to the requirements of this Agreement. City retains
Hearing Examiner on an independent contractor basis and not as an employee. Hearing
Examiner retains the right to perform similar or different services for others during the term
of this Agreement. Any additional personnel performing the Services under this
Agreement on behalf of Hearing Examiner shall also not be employees of City and shall at
all times be under Hearing Examiner's exclusive direction and control. Neither City, nor
any of its officials, officers, directors, employees or agents shall have control over the
conduct of Hearing Examiner or any of Hearing Examiner's officers, employees, or agents,
except as set forth in this Agreement. Hearing Examiner shall pay all wages, salaries, and
other amounts due such personnel in connection with their performance of Services under
this Agreement and as required by law. Hearing Examiner shall be responsible for all
reports and obligations respecting such additional personnel, including, but not limited to:
social security taxes, income tax withholding, unemployment insurance, disability
insurance, and if applicable, workers' compensation insurance (Statutory Limits) and
Employer's Liability Insurance (with limits of at least $1,000,000). Hearing Examiner shall
submit to City, along with the certificate of insurance, a Waiver of Subrogation
endorsement in favor of the City of Palm Desert, its officers, agents, employees and
volunteers.
3.2.2 Schedule of Services. Hearing Examiner shall perform the Services
expeditiously, within the term of this Agreement, and in accordance with the Schedule of
Services set forth in Exhibit "B" attached hereto and incorporated herein by reference.
Hearing Examiner represents that it has the professional and technical personnel required
to perform the Services in conformance with such conditions. In order to facilitate Hearing
Examiner's conformance with the Schedule, City shall respond to Hearing Examiner's
submittals in a timely manner. Upon request of City, Hearing Examiner shall provide a
more detailed schedule of anticipated performance to meet the Schedule of Services.
3.2.3 Substitution of Personnel. Hearing Examiner has agreed to conduct
administrative review hearings for parking citations, administrative citation and animal
control hearings. Hearing Examiner has agreed to prepare written declarations on parking
citations; in-person hearings on parking citations; animal control hearings, administrative
citation hearings and to prepare the written findings and determination orders on
contested cases. Hearing Examiner shall provide a qualified substitute Hearing Examiner
upon written approval of City in the event that Hearing Examiner is unable to perform
2
CONTRACT NO. C36410
hearings due to an excused absence. If City and Hearing Examiner cannot agree as to the
substitution of Hearing Examiner, City shall be entitled to terminate this Agreement for
cause. As discussed below, any personnel who fail or refuse to perform the Services in a
manner acceptable to the City, or who are determined by the City to be uncooperative,
incompetent, a threat to the adequate or timely completion of the Project or a threat to the
safety of persons or property, shall be promptly removed from the Project by the Hearing
Examiner at the request of the City. The Substitute Hearing Examiner for performance of
this Agreement is/are as follows: Maryan Baker.
3.2.4 City's Representative. The City hereby designates the Code
Compliance Supervisor, or his/her designee, to act as its representative in all matters
pertaining to the administration and performance of this Agreement ("City's
Representative"). Hearing Examiner shall not accept direction or orders from any person
other than the City Manager, City's Representative or his/her designee. City's
Representative shall have the power to act on behalf of the City for review and approval of
all products submitted by Hearing Examiner, but not the authority to enlarge the Scope of
Work or change the total compensation due to Hearing Examiner under this Agreement.
The City Manager shall be authorized to act on City's behalf and to execute all necessary
documents, which increase the Scope of Work or change the Consultant's total
compensation, subject to the provisions contained in Section 3.3 of this Agreement.
3.2.5 Coordination of Services. Hearing Examiner agrees to work closely
with City staff in the performance of Services and shall be available to City's staff, as
needed.
3.2.6 Standard of Care; Performance of Hearing Examiner. Hearing
Examiner shall perform all Services under this Agreement in a skillful and competent
manner, consistent with the standards generally recognized by professionals in the same
discipline in the State of California. Hearing Examiner represents and maintains that it is
skilled in the professional calling necessary to perform the Services. Hearing Examiner
warrants that substitute Hearing Examiner shall have sufficient skill and experience to
perform the Services assigned to them. Finally, Hearing Examiner represents that it, its
substitute Hearing Examiner have all qualifications and approvals of whatever nature that
are required to perform the Services, and that such qualifications and approvals shall be
maintained throughout the term of this Agreement. As provided for in the indemnification
provisions of this Agreement, Hearing Examiner shall perform, at its own cost and
expense and without reimbursement from the City, any services necessary to correct
errors or omissions which are caused by the Hearing Examiner's failure to comply with the
standard of care provided for herein. Any substitute Hearing Examiner of the Hearing
Examiner who is determined by the City to be uncooperative, incompetent, a threat to the
adequate or timely completion of the Project, a threat to the safety of persons or property,
or any employee who fails or refuses to perform the Services in a manner acceptable to
the City, shall be promptly removed from the Project by the Hearing Examiner and shall
not be assigned to perform any of the Services or to work on the Project.
3.2.7 Laws and Regulations. Hearing Examiner shall keep itself fully
informed of and in compliance with all local, state and federal laws, rules and regulations
in any manner affecting the performance of the Project or the Services, including all
Cal/OSHA requirements, and shall give all notices required by law. Hearing Examiner
3
CONTRACT NO. C36410
shall be liable for all violations of such laws and regulations in connection with Services. If
Hearing Examiner performs any work knowing it to be contrary to such laws, rules and
regulations, Hearing Examiner shall be solely responsible for all costs arising therefrom.
Hearing Examiner shall defend, indemnify and hold City, its officials, directors, officers,
employees, agents, and volunteers free and harmless, pursuant to the indemnification
provisions of this Agreement, from any claim or liability arising out of any failure or alleged
failure to comply with such laws, rules or regulations.
3.3 Fees and Payments.
3.3.1 Compensation. Hearing Examiner shall receive compensation,
including authorized reimbursements, for all Services rendered under this Agreement at
the rates set forth in Exhibit "C" attached hereto and incorporated herein by reference.
The total compensation shall not exceed Forty-eight dollars per hour ($48) without
authorization of the City Council or City Manager. Extra Work may be authorized, as
described below, and if authorized, will be compensated at the rates and manner set forth
in this Agreement.
3.3.2 Payment of Compensation. Hearing Examiner shall submit to City an
invoice, which indicates work completed and hours of Services rendered by Hearing
Examiner. The invoice shall describe the amount of Services provided, as appropriate,
through the date of the invoice. City shall, within 30 days of receiving such invoice, review
the invoice and pay all non-disputed and approved charges thereon. If the City disputes
any of Hearing Examiner's fees, the City shall give written notice to Hearing Examiner
within thirty- (30) days of receipt of an invoice of any disputed fees set forth therein.
3.3.3 Reimbursement for Expenses. Hearing Examiner shall not be
reimbursed for any expenses unless authorized in writing by City.
3.3.4 Extra Work. At any time during the term of this Agreement, City may
request that Hearing Examiner perform Extra Work. As used herein, "Extra Work" means
any work, which is determined by City to be necessary for the proper completion of the
Project, but which the Parties did not reasonably anticipate would be necessary at the
execution of this Agreement. Hearing Examiner shall not perform, nor be compensated
for, Extra Work without authorization from the City Council or City Manager, as applicable,
per the Palm Desert Municipal Code. Extra Work when approved shall be compensated
pursuant to Section 3.3.1 at a rate not to exceed forty-eight dollars ($48) per hour.
3.3.5 Rate Increases. In the event that this Agreement is renewed pursuant
to Section 3.1.2, the rate set forth in Exhibit "C" may be adjusted upon request and
approval by the City Council or City Manager as set forth in Exhibit "C."
3.4 General Provisions.
3.4.1 Termination of Agreement.
3.4.1.1 Grounds for Termination. City may, by written notice to
Hearing Examiner, terminate the whole or any part of this Agreement at any time and
without cause by giving written notice to Hearing Examiner of such termination, and
4
CONTRACT NO. C36410
specifying the effective date thereof, ninety- (90) days before the effective date of such
termination. Upon termination, Hearing Examiner shall be compensated only for those
services, which have been adequately rendered to City, and Hearing Examiner shall be
entitled to no further compensation. Hearing Examiner may not terminate this Agreement
except for cause.
3.4.1.2 Effect of Termination. If this Agreement is terminated as
provided herein, City may require Hearing Examiner to provide all finished or unfinished
Documents and Data and other information of any kind prepared by Hearing Examiner in
connection with the performance of Services under this Agreement. Hearing Examiner
shall be required to provide such document and other information within fifteen (15) days
of the request.
3.4.1.3 Additional Services. In the event this Agreement is
terminated in whole or in part as provided herein, City may procure, upon such terms and
in such manner as it may determine appropriate, services similar to those terminated.
3.4.2 Delivery of Notices. All notices permitted or required under this
Agreement shall be given to the respective parties at the following address, or at such
other address as the respective parties may provide in writing for this purpose:
Hearing Examiner: Wallace V. Baker
9 Como Lake Court
Rancho Mirage, CA 92270
ATTN: Wallace V. Baker
City: City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, CA 92260
ATTN: Pedro Rodriguez
Code Compliance Supervisor
Such notice shall be deemed made when personally delivered or when mailed,
forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and
addressed to the party at its applicable address. Actual notice shall be deemed adequate
notice on the date actual notice occurred, regardless of the method of service.
3.4.3 Ownership of Materials and Confidentiality.
3.4.3.1 Documents & Data; Licensing of Intellectual Property. This
Agreement creates a non-exclusive and perpetual license for City to copy, use, modify,
reuse, or sublicense any and all copyrights, designs, and other intellectual property
embodied in plans, specifications, studies, drawings, estimates, and other documents or
works of authorship fixed in any tangible medium of expression, including but not limited
to, physical drawings and data magnetically or otherwise recorded on computer diskettes,
which are prepared or caused to be prepared by Hearing Examiner under this Agreement
("Documents & Data"). Hearing Examiner shall require all substitute Hearing Examiners to
agree in writing that City is granted a non-exclusive and perpetual license for any
Documents & Data the substitute Hearing Examiner prepares under this Agreement.
Hearing Examiner represents and warrants that Hearing Examiner has the legal right to
5
CONTRACT NO. C36410
license any and all Documents & Data. Hearing Examiner makes no such representation
and warranty in regard to Documents & Data, which were prepared by design
professionals other than Hearing Examiner or provided to Hearing Examiner by the City.
City shall not be limited in any way in its use of the Documents & Data at any time,
provided that any such use not within the purposes intended by this Agreement shall be at
City's sole risk.
3.4.3.2 Confidentiality. All ideas, memoranda, specifications,
plans, procedures, drawings, descriptions, computer program data, input record data,
written information, and other Documents & Data either created by or provided to Hearing
Examiner in connection with the performance of this Agreement shall be held confidential
by Hearing Examiner. Such materials shall not, without the prior written consent of City, be
used by Hearing Examiner for any purposes other than the performance of the Services.
Nor shall such materials be disclosed to any person or entity not connected with the
performance of the Services or the Project. Nothing furnished to Hearing Examiner, which
is otherwise known to Hearing Examiner or is generally known, or has become known, to
the related industry shall be deemed confidential. Hearing Examiner shall not use City's
name or insignia, photographs of the Project, or any publicity pertaining to the Services or
the Project in any magazine, trade paper, newspaper, television or radio production or
other similar medium without the prior written consent of City.
3.4.4 Cooperation; Further Acts. The Parties shall fully cooperate with one
another, and shall take any additional acts or sign any additional documents as may be
necessary, appropriate, or convenient to attain the purposes of this Agreement.
3.4.5 Attorney's Fees. If either party commences an action against the other
party, either legal, administrative or otherwise, arising out of or in connection with this
Agreement, the prevailing party in such litigation shall be entitled to have and recover from
the losing party reasonable attorney's fees and all other costs of such action.
3.4.6 Indemnification.
3.4.6.1 Scope of Indemnity. To the fullest extent permitted by
law, Hearing Examiner shall defend, indemnify and hold the City, its directors, officials,
officers, employees, volunteers and agents free and harmless from any and all claims,
demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in
law or equity, to property or persons, including wrongful death, in any manner arising out
of, pertaining to, or incident to any alleged acts, errors or omissions, or willful misconduct
of Hearing Examiner, its officials, officers, employees, subcontractors, consultants or
agents in connection with the performance of the Hearing Examiner's Services, the Project
or this Agreement, including without limitation the payment of all consequential damages,
expert witness fees and attorneys fees and other related costs and expenses.
Notwithstanding the foregoing, to the extent Hearing Examiner's Services are subject to
Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by
Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to the
negligence, recklessness, or willful misconduct of the Hearing Examiner.
6
CONTRACT NO. C36410
3.4.7 Entire Agreement. This Agreement contains the entire Agreement of
the parties with respect to the subject matter hereof, and supersedes all prior negotiations,
understandings or agreements. This Agreement may only be modified in writing signed by
both parties.
3.4.8 Governing Law. This Agreement shall be governed by the laws of the
State of California. Venue shall be in Riverside County.
3.4.9 Time of Essence. Time is of the essence for each and every provision
of this Agreement.
3.4.10 City's Right to Employ Other Hearing Examiner. City reserves right to
employ other Hearing Examiner in connection with this Project.
3.4.11 Successors and Assigns. This Agreement shall be binding on the
successors and assigns of the parties.
3.4.12 Assignment or Transfer. Hearing Examiner shall not assign,
hypothecate, or transfer, either directly or by operation of law, this Agreement or any
interest herein without the prior written consent of the City. Any attempt to do so shall be
null and void, and any assignees, hypothecates or transferees shall acquire no right or
interest by reason of such attempted assignment, hypothecation or transfer.
3.4.13 Construction; References; Captions. Since the Parties or their agents
have participated fully in the preparation of this Agreement, the language of this
Agreement shall be construed simply, according to its fair meaning, and not strictly for or
against any Party. Any term referencing time, days or period for performance shall be
deemed calendar days and not work days. All references to Hearing Examiner include all
personnel, employees, agents, and substitute Hearing Examiner of Hearing Examiner,
except as otherwise specified in this Agreement. All references to City include its elected
officials, officers, employees, agents, and volunteers except as otherwise specified in this
Agreement. The captions of the various articles and paragraphs are for convenience and
ease of reference only, and do not define, limit, augment, or describe the scope, content,
or intent of this Agreement.
3.4.14 Amendment; Modification. No supplement, modification, or
amendment of this Agreement shall be binding unless executed in writing and signed by
both Parties.
3.4.15 Waiver. No waiver of any default shall constitute a waiver of any other
default or breach, whether of the same or other covenant or condition. No waiver, benefit,
privilege, or service voluntarily given or performed by a Party shall give the other Party any
contractual rights by custom, estoppel, or otherwise.
3.4.16 No Third-Party Beneficiaries. There are no intended third party
beneficiaries of any right or obligation assumed by the Parties.
CONTRACT NO. C36410
3.4.17 Invalidity; Severability. If any portion of this Agreement is declared
invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the
remaining provisions shall continue in full force and effect.
3.4.18 Prohibited Interests. Hearing Examiner maintains and warrants that it
has not employed nor retained any company or person, other than a bona fide employee
working solely for Hearing Examiner, to solicit or secure this Agreement. Further, Hearing
Examiner warrants that it has not paid nor has it agreed to pay any company or person,
other than a bona fide employee working solely for Hearing Examiner, any fee,
commission, percentage, brokerage fee, gift or other consideration contingent upon or
resulting from the award or making of this Agreement. For breach or violation of this
warranty, City shall have the right to rescind this Agreement without liability. For the term
of this Agreement, no member, officer or employee of City, during the term of his or her
service with City, shall have any direct interest in this Agreement, or obtain any present or
anticipated material benefit arising therefrom.
3.4.19 Equal Opportunity Employment. Hearing Examiner represents that it
is an equal opportunity employer and it shall not discriminate against any substitute
Hearing Examiner, employee or applicant for employment because of race, religion, color,
national origin, handicap, ancestry, sex, or age. Such non-discrimination shall include, but
not be limited to, all activities related to initial employment, upgrading, demotion, transfer,
recruitment or recruitment advertising, layoff or termination.
3.4.20 Labor Certification. By its signature hereunder, Hearing Examiner
certifies that it is aware of the provisions of Section 3700 of the California Labor Code
which require every employer to be insured against liability for Worker's Compensation, or
to undertake self-insurance in accordance with the provisions of that Code and agrees to
comply with such provisions before commencing the performance of the Services.
3.4.21 Authority to Enter Agreement. Hearing Examiner has all requisite
power and authority to conduct its business and to execute, deliver, and perform the
Agreement. Each Party warrants that the individuals who have signed this Agreement
have the legal power, right, and authority to make this Agreement and bind each
respective Party.
3.4.22 Counterparts. This Agreement may be signed in counterparts, each
of which shall constitute an original.
3.5 Subcontracting.
3.5.1 Prior Approval Required. Hearing Examiner shall not subcontract any
portion of the work required by this Agreement, except as expressly stated herein, without
prior written approval of City. Subcontracts, if any, shall contain a provision making them
subject to all provisions stipulated in this Agreement.
8
CONTRACT NO. C36410
IN WITNESS WHEREOF, the parties hereto have executed this Agreement and
made it effective as of the date indicated below.
Executed this day of 2017.
AN INDIVIDUAL
CITY OF PALM DESERT Wallace V. Baker
By: By:
Mayor or City Manager Wallace V. Baker
ATTEST: APPROVED AS TO FORM:
By: By:
Rachelle D. Klassen Best Best & Krieger LLP
City Clerk City Attorney
9
CONTRACT NO. C36410
EXHIBIT "A"
SCOPE OF SERVICES
A. WHEREAS, the City desires to comply with the enacted requirements of
California State Assembly Bill No. 408 by designating a "Hearing Examiner"
to conduct administrative review hearings for contested parking citations,
animal control hearings, and administrative citation hearings.
B. WHEREAS, it is in the best interest of the City that this contract be executed
in order to assure the orderly and uniform hearing of contested parking
citations, animal control hearings, and administrative citation hearings.
C. WHEREAS, the Hearing Examiner has agreed to conduct administrative
review hearings for contested parking citations, animal control hearings, and
administrative citation hearings on behalf of the City.
NOW, THEREFORE, in consideration of the mutual promises, agreements,
and covenants contained herein, and for other good and valuable
consideration, the parties agree as follows:
1. Hearing Examiner Rights and Authority. The City grants to the Hearing
Examiner the right and authority to hear and dispose of all contested
cases involving violations of the California Vehicle Code and the Municipal
Codes of the City relating to parking violations and animal control hearings
within the jurisdiction of the City.
2. Alternate Hearing Examiner. The Hearing Examiner shall provide an
alternate to conduct hearings in the event that the Hearing Examiner is
unable to attend due to an excused absence.
3. Hearing Performance. The Hearing Examiner agrees to hear and
dispose of all contested cases involving violations of the California Vehicle
Code and the Municipal Codes of the City relating to parking violations,
animal control hearings, and administrative citation hearings, which occur
within the jurisdiction of the City. Such hearings will be conducted in
person or by correspondence at the request of the contesting party. The
Hearing Examiner agrees that he/she will use his/her best efforts to insure
that the administrative review hearings are conducted in a fair, impartial
and professional manner. The Hearing Examiner shall conduct the
hearings in accordance with the written procedures provided by the City.
The Hearing Examiner shall notify the contesting party of his or her
decision at the conclusion of the hearing or by first class mail within thirty
(30) days of the hearing.
CONTRACT NO. C36410
EXHIBIT "B"
SCHEDULE OF SERVICES
1. Hearing Schedules. The Hearing Examiner agrees to conduct the
administrative review hearings held at the City of Palm Desert Civic
Center, 73-510 Fred Waring Drive, Palm Desert, California.
2. Time of Hearings. The hearings will be scheduled as needed to comply
with the time requirements outlined in the Palm Desert Municipal Code
pursuant to the timeframes outlined in each code section in reference to
appeals and requests for hearings.
CONTRACT NO. C36410
EXHIBIT "C"
COMPENSATION
1. Hearing Examiner will charge forty-eight dollars ($48) per hour, per case to
include written declarations on parking citations; in-person hearings on
parking citations; animal control hearings, administrative citation hearings
and to prepare the written findings and determination orders on contested
cases.
2. In the event that this Agreement is renewed pursuant to Section 3.1.2, the
rates set forth above may be adjusted upon request and approval by the City
Council or City Manager.
CONTRACT NO. C364iO
.."111111
Declaration Regarding California Workers' Compensation
LEGAL OR DBA NAME:
You are required to complete this form because you have not filed a certificate regarding workers'
compensation insurance with the City of Palm Desert. California law requires all employers to carry
workers' compensation insurance, even if they have only one employee. If you are the sole owner
and you have no employees you may not be required to carry workers' compensation insurance. It is
your responsibility to comply with the law. If you do not know whether you are required to carry
workers' compensation insurance, find out by contacting the California Department of Industrial
Relations ("DIR"). Information is also available on the DIR's website at http://www.dir.ca.gov. You
should also consult with your attorney, insurance agent or broker, or carrier regarding the specifics
of your situation and your options. If you are subject to the Workers' Compensation Laws of
California, you must promptly file a certificate of Workers' Compensation Insurance with the City of
Palm Desert. If you have a certificate of self-insurance from the DIR, you must file that certificate
with the City of Palm Desert. When completing this form, remember that the term "employee"
includes clerical persons as well as any other persons employed by your company including drivers.
ACKNOWLEDGEMENT
(Initial) California Labor Code § 3700 requires employers to carry workers' compensation
insurance or to obtain a certificate from the Director of Industrial Relations demonstrating that the
employer is self-insured. California Labor Code § 3700.5 makes it a criminal offense for an employer
to fail to secure compensation as required by the workers' compensation provisions of the Labor
Code. Violation of Labor Code § 3700 is punishable by a fine of up to $10,000 and/or imprisonment
for up to one year.
(Initial) California Labor Code § 3710.1 provides that where an employer fails to provide
compensation required under § 3700, the Director of the Department of Industrial Relations shall
issue a stop order, prohibiting the employer from using employee labor until such time as the
employer complies with the provisions of § 3700. Labor Code § 3710.2 makes it a criminal offense
to disregard such stop orders.
(Initial) I acknowledge that if evidence is found that contradicts this declaration, the City of
Palm Desert will promptly notify all relevant state agencies to ensure full insurance compliance
required by Workers' Compensation Laws of California.
DECLARATION REGARDING WORKERS' COMPENSATION COVERAGE
(Initial) I understand that California Labor Code § 3700 et seq. requires employers to
provide workers' compensation insurance coverage for any employees of my business. I hereby
warrant that this business is exempt from the California Labor Code provisions regarding workers'
compensation insurance because it has no employees.
(Initial) I agree to hold the City of Palm Desert and its officers, officials, employees, and
agents harmless for loss or liability which may arise from the failure of the above-mentioned
business to comply with the laws of the State of California regarding workers' compensation
insurance.
(Initial) If I hire employees in the future, I will immediately notify the City of Palm Desert's
Risk Manager and provide a certified Workers' Compensation certificate to the City.
CONTRACT NO. C36410.
?PI •
s. Declaration Regarding California Workers' Compensation
CERTIFICATION
I (we) certify (or declare) under penalty of perjury, under the laws of the State of California, that I
(we) have read and understood the above stated requirements regarding Workers' Compensation
and that I (we) am (are) in compliance. I (we) certify (or declare) that the forgoing is true and correct.
Executed this day of , 201_ at , California.
Signature of Applicant
Print name of Applicant
Signature Owner, Officer, Director, or Partnership