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HomeMy WebLinkAbout12 ADMIN HEARING OFFICER (PARKING CITATIONS) 06-03-96 LAW OFFICES OF WOODRUFF, SPRADLIN & SMAR'I A PROFESSIONAL CORPORATION MEMORANDUM NO. 12 6-3-96 · TO: Honorable Mayor and Members of the City Council City of Tustin FROM: City Attorney DATE: May 29, 1996 RE: Contract with Administrative Hearing Officer to Review · Contested Parking Citations RECOMMENDATION: Approve the Professional Services Agreement, as amended, between the City of Tustin and Gary I. Kusunoki, and authorize the City Manager to sign the Agreement. BACKGROUND: In January of 1996, the City Council approved a Professional Services Agreement between the City of Tustin and Gary I. Kusunoki, for administrative hearing officer services in connection with the City's parking citations. A recent amendment to the Vehicle Code, requires that the administrative hearing on contested parking citations be provided by a trained "examiner" or hearing officer who is "not employed, managed or controlled by a person whose primary duties are parking enforcement, parking citation processing, collection, or issuance." While in the past, such administrative hearings were provided by the same service that processes the City's parking citations, the recent amendment to the law has made it impossible to continue that practice. Unfortunately, very few persons currently provide administrative hearing services for parking citations, and the City's options are limited. Mr. Kusunoki was previously employed by the firm Tustin employs to handle parking citation processing. The Agreement approved in January required the contractor to defend and indemnify the City in the event of the contractor's negligence. This is a standard provision in all of the City's Professional Services Agreements. Unfortunately, Mr. Kusunoki does not believe that he can enter into the Agreement with this provision, since he believes it would require him to obtain special insurance that would not make this contract worthwhile. Because of the special circumstances applicable to this Agreement, i.e., there is a small risk of litigation and of damages being assessed against the City, we are recommending that all of the provisions relating to contractual indemnification be stricken from the Agreement. This still leaves the parties, both Mr. Kusunoki, and the City with their rights under the law to cross- complain against one another, if a lawsuit is commenced. For example, if the City believes Honorable Mayor and Members of the City Council May 29, 1996 Page 2 that Mr. Kusunoki was negligent in some regard, then in the event that the City is sued, the City would be able to cross-complain against Mr. Kusunoki. All that the City is giving up is its contractual right to require Mr. Kusunoki to defend and indemnify the City. However, as stated above, the risks to the City are Iow, both the risk of being drawn into such litigation, and the risk that such litigation would lead to significant damages. LOiS E. JEFFI~'?~' 1,/ (J Enclosure Professional Services Agreement, as amended cc: William A. Huston, City Manager W.D. Franks, Chief of Police Captain Steve Foster, Tustin Police Department 1100-(X)012 30310_1 PROFESSIONAL SERVICES AGREEMENT See pages 3-4 and page 6 for changes THIS AGREEMENT is made and entered into this~ day of , 19 , by and between the CITY OF TUSTIN, a municipal corporation (hereinafter referred to as "City") and Gary I. Kusunoki, an independent contractor (hereinafter referred to as "Contractor"). WITNESSETH: WHEREAS, City desires to employ Contractor to furnish the necessary services for providing on-Site administrative hearings for individuals wishing to contest parking citations. issued by the City; and WHEREAS, Contractor is qualified and has agreed to provide the necessary services. NOW, THEREFORE, in consideration of the mutual covenants, conditions, representations and warranties contained herein, the parties hereby agree as follows: Section 1: Term of Contract. This Agreement will become effective on the date stated above and will continue in effect for a period of one (1) year from said date. The Agreement shall be renewed automatically every year unless either party gives the other at least sixty (60) days written notice of its intent to terminate this Agreement. Section 2: Obligations of Contractor. A. Hearing Procedures 1. Contractor shall conduct administrative hearings ("hearings") for individuals wishing to contest parking citations. At the option of the contesting individuals, Contractor shall conduct hearings either on site (in person) or in writing. 2. Contractor shall audiotape each hearing. 3. Hearings shall be conducted in accordance with the provisions of California Vehicle Code Section 40215 and any other applicable state law, and City's Administrative Adjudication Guidelines Manual attached hereto as Exhibit "A" and incorporated herein by this reference. 4. Contractor shall produce a written decision following each hearing, on a form supplied by City, determining whether or not a violation has been committed. Contractor shall promptly send the decision to the contesting individual by first-class mail, with a copy sent to City. PROFESSIONAL SERVICES AGREEMENT Page 2 5. For hearings requested to be in person, Contractor shall conduct the hearing on City's premises during City's regular business hours and at a date and time mutually agreed upon by both Contractor and City. Contractor shall send written notice informing the contesting individual of the day, date and time of the in-person hearing. B. Contractor shall provide such worker's compensation insurance as is necessary to fully protect Contractor and its employees under California Worker's Compensation Insurance and Safety Laws, to relieve City from all responsibility under said laws in connection with the performance of this Agreement, and upon execution of this Agreement, to file with City a certificate of said insurance. Section 3: Obligations of City. A. City shall supply Contractor with all necessary information pertaining to the parking citation being contested, including but not limited to: 1. Citation number. 2. Vehicle license number. 3. Date and time issued. 4. Vehicle make and color. 5. Last four VIN numbers, if available. 6. Month and year of expiration of registration. 7. Location of violation. . Code section violated and brief description (e.g. CVC 22507.8, Handicapped Parking). 9. Name and address of vehicle owner or responsible party. 10. Amount of fine. B. City shall furnish space on City's premises for use by Contractor while performing the above described services. 1100-00028 22484_1 PROFESSIONAL SERVICES AGREEMENT Page 3 C. City agrees to comply with all reasonable requests of Contractor and provide all documents and forms reasonably necessary to the performance of Contractor's duties under this Agreement. D.~ City shall store hearing tapes for 180 days after the hearing and shall perform any required transcription of those tapes. Section 4: Compensation and Payment. A. City shall pay Contractor Ten ($10.00) dollars per hearing, whether written or in-person. Any additional services above and beyond the scope of work indicated above which are requested, in writing, by City, shall be compensated at the rate of Forty ($40.00) dollars per hour plus expenses. B. Unless otherwise specified, Contractor is solely responsible for all travel expenses related to hearings. Any travel for additional work requested in writing by City will be billed at Thirty ($.30) cents per mile. C. Unless otherwise specified, Contractor is solely responsible for all postage expenses related to hearings. D. At the end of each month, Contractor shall submit to City a detailed statement of services rendered. E. invoice. City shall pay Contractor within thirty (30) days after receiving monthly 1100-00028 22484_1 PROFESSIONAL SERVICES AGREEMENT Page 4 Section ~: Miscellaneous Provisions. A. At all times during the term of this Agreement, Contractor shall perform the services hereunder as an independent contractor and under no circumstances or conditions shall Contractor or any of his agents, servants and employees, be considered an employee or agent of the City. B. Contractor may, at his own expense, employ such assistants as Contractor deems necessary to perform the services required of Contractor under this Agreement. Said assistants or employees shall be under the sole control, direction and supervision of Contractor. C. Contractor certifies that there shall be no discrimination against any employee who is employed in the work covered by this Agreement, or against any application for such employment, because of race, religion, color, sex or national origin including, but not limited to employment, upgrading, demotion or transfer, recruitment, or recruitment advertising, lay-off or termination, rate of pay or other forms of compensation, and selection for training, including apprenticeship. 1100-00028 22484_1 PROFESSIONAL SERVICES AGREEMENT Page 5 D. Any notices to be given hereunder by either party to the other may be effected either by personal delivery in writing or by mail, registered or certified, postage prepaid with return receipt requested sent to: TO CITY: City of Tustin 300 Centennial Way Tustin, CA 92680 Attention: City Clerk TO CONTRACTOR: Gary Kusunoki 8 Holly Hill Lane Laguna Hills, CA 92653 Each party may change the address by written notice in accordance with this paragraph. Notices delivered personally will be deemed communicated as of actual receipt; mailed notice will be deemed communicated as of three (3) days after mailing. E. This Agreement supersedes any and all agreements, either oral or written, between the parties hereto with respect to the rendering of services by Contractor for City. Each party to this Agreement acknowledges that no representations, inducements, promises, or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein. Any modification of the Agreement will be effective only if it is in writing signed by both parties. F. Neither this Agreement nor any duties or obligations under this Agreement may be assigned by either party without prior written consent of the other party. G. If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way. H. Any controversy or claim arising out of or relating to this Agreement or the breach thereof shall be settled by arbitration in accordance with the rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The parties agree to be bound by the decision rendered by the arbitrator. I. This Agreement will be governed by and construed in accordance with the laws of the State of California. 1100-00028 224~4_1 PROFESSIONAL SERVICES AGREEMENT Page 6 Section ~: Termination. Notwithstanding any other provision of this Agreement, either party hereto may terminate this Agreement at any time by giving sixty (60) days written notice to the other party, or earlier upon agreement by both City and Contractor. IN WITNESS WHEREOF, this Agreement was executed by the parties on the day and year first above written. CITY OF TUSTIN, a municipal corporation By GARY KUSUNOKI By (Signature) ATTEST: (Name Printed/Title) Pamela Stoker, City Clerk APPROVED AS TO FORM: Lois E. Jeffrey, City Attorney 1100-0(X)28 22484_1