14-C
TO: Honorable Mayor and Members of the City Council
ATTENTION: Jeffrey L. Stewart, City Manager
FROM: Travis Sais, Assistant to the City Manager
SUBJECT: Consideration and possible action to authorize the City Manager to execute Amendment No. 3 to Agreement File No. 746 with Richard Terzian, in a form approved by the City Attorney, to extend the term of hearing officer services.
DATE: August 28, 2023
EXECUTIVE SUMMARY
The City entered into an Agreement with Richard Terzian in May of 2017 for on-call hearing officer services. The original term of this Agreement concluded on September 1, 2019. Subsequently, the Agreement underwent two extensions, each spanning two years, effectively extending it through September 1, 2023. Mr. Terzian acts as the City’s third-party hearing officer for multiple departments and issues including the abatement of unlicensed cannabis facilities and administrative citations. The proposed amendment would extend the term of his agreement for an additional two years to allow for continued on-call hearing officer services.
RECOMMENDATION TO CITY COUNCIL
1) Authorize the City Manager to execute Amendment No. 3 to Agreement File No. 746; or
2) Alternatively, discuss and take other action related to this item.
FISCAL IMPACT
This is an on-call agreement with an hourly rate of $250.00 per hour, not to exceed a total of $25,000 (Account No. 010-42054-8000).
ATTACHMENTS
Amendment No. 3 to Agreement File No. 746...……….…………………………………….2 Agreement File No. 746………………………………………………………………………...4
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AMENDMENT NO. 3 TO
AGREEMENT FILE NO. 746 BETWEEN
THE CITY OF BELLFLOWER AND
RICHARD TERZIAN
FOR HEARING OFFICER SERVICES
THIS AMENDMENT No. 3 (“Amendment”) is made and entered into this 28th day of August, 2023, by and between the CITY OF BELLFLOWER, a general law city and municipal corporation (“CITY”), and Richard Terzian, an individual (“CONSULTANT”).
SECTION 1. Pursuant to Section 7 of Agreement File No. 746 (“Agreement”), extending the term of the agreement to read as follows:
“TERM: The term of this Agreement will be from September 1, 2023, to September 1, 2025, unless terminated earlier as set forth herein and provided that if CONSULTANT has commenced a hearing before the termination date, CONSULTANT may complete the hearing process, and the Agreement will subsequently terminate”
SECTION 2. Except as modified by this Amendment, all other terms and conditions of Agreement File No. 746 remain the same.
SECTION 3. ELECTRONIC SIGNATURES. This Amendment may be executed by the Parties on any number of separate counterparts, and all such counterparts so executed constitute one amendment binding on all the Parties notwithstanding that all the Parties are not signatories to the same counterpart. In accordance with Government Code §16.5, the Parties agree that this Amendment, amendments ancillary to this Amendment, and related documents to be entered into in connection with this Amendment will be considered signed when the signature of a party is delivered by electronic transmission. Such electronic signature will be treated in all respects as having the same effect as an original signature.
[SIGNATURES ON NEXT PAGE]
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City of Bellflower
Agreement File No. 746 - Amendment No. 3
Richard Terzian
IN WITNESS WHEREOF, the parties hereto have executed this contract the day and year first hereinabove written.
CITY OF BELLFLOWER CONSULTANT
_____________________________ ____________________________ Jeffrey L. Stewart, City Manager Richard Terzian
ATTEST:
_____________________________
Mayra Ochiqui, City Clerk
APPROVED AS TO FORM:
_____________________________
Karl H. Berger, City Attorney Taxpayer ID No. [On file with City]
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AGREEMENT FILE NO. 746
PROFESSIONAL SERVICES AGREEMENT
BETWEEN
THE CITY OF BELLFLOWER AND
RICHARD TERZIAN
FOR HEARING OFFICER SERVICES
THIS AGREEMENT is entered into this15th day of May, 2017, by and between the CITY OF BELLFLOWER, a municipal corporation and general law city ("CITY") and RICHARD TERZIAN, an individual ("CONSULTANT") The Parties agree as follows. 1 CONSIDERATION
A. Asp areal consideration, CONSULTANT agrees to perform the work listed in the SCOPE OF SERVICES, below,
As additional consideration, CONSULTANT and CITY agree to abide by the terms and conditions contained in this Agreement; C As additional consideration, CITY agrees to pay CONSULTANT an hourly rate of $250 00 per hour for CONSULTANT'S services.
2. SCOPE OF SERVICES.
A CONSULTANT wif l serve as the CITY's administrative hearing officer for municipal code violation, nuisance abatement and other administrative adjudication services at times mutually agreed upon by the CONSULTANT and City All decisions of the CONSULTANT will be issued in writing and contain findings of fact and conclusion(s) of law Decisions must be rendered within the time limits required by applicable laws
CONSULTANT will serve on an "as needed" basis and no minimum guarantee of work
C For the term of this Agreement, CONSULTANT is limited to onlyperformingthose services for the City that are listed in this Agreement
D CONSULTANT will, in a professional manner, furnish all of the labor, technical, administrative, professional and other personnel, all supplies and materials, equipment, printing, vehicles transportation, office space and facilities, and all tests, testing and analyses, calculation, and all other means whatsoever, except as herein otherwise expressly specified to be furnished by CITY, necessary or properto perform and complete the work and provide the
professional services required of CONSULTANT by this Agreement
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City of Bellflower
Agreement File No. 746
Richard Tertian
For a period of twelve calendar months beyond the conclusion of the term of this Agreement, the CONSULTANT cannot provide any services to, or accept any employment with, the City
F The CONSULTANT must voluntarily disqualify himself from any case in which CONSULTANT cannot accord a fair and impartial hearing or consideration.
The CONSULTANT must conduct the hearing and consider the evidence independently, and cannot be under the authority, direction or discretion of any officer or employee of CITY who has served as investigator, prosecutor, or advocate in the proceeding or its preadjudicative stage
3. PERFORMANCE STANDARDS. While performing this Agreement, CONSULTANT will use the appropriate generally accepted professional standards of practice existing at the time of performance utilized by persons engaged in providing similar services.
4 COMPENSATION AND PAYMENTS The City wilt compensate CONSULTANT for services rendered under the Agreement Total compensation under this Agreement will not exceed $25,000 For CITY to pay CONSULTANT as specified by this Agreement, CONSULTANT must submit a detailed invoice to CITY which lists the hours worked and hourly rate and reimbursable costs (all as set forth in Exhibit "A") and the tasks performed
5. NON -APPROPRIATION OF FUNDS Payments due and payable to CONSULTANT for current services are within the current budget and within an available, unexhausted and unencumbered appropriation of the CITY In the event the CITY has not appropriated sufficient funds for payment of CONSULTANT services beyond the current fiscal year, this Agreement will cover only those costs incurred up to the conclusion of the current fiscal year
6 FAMILIARITY WITH WORK
A. By executing this Agreement., CONSULTANT agrees that CONSULTANT has
Carefully investigated and considered the scope of services to be performed,
ii. Carefully considered how the services should be performed, and Understands the facilities difficulties, and restrictions attending performance of the services under this Agreement
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City of Bellflower
Agreement File No. 746
Richard Terzian
7. TERM. The term of this Agreement will be from September 1, 2017 to September 1, 2019 unless terminated earlier as set forth herein and provided that if CONSULTANT has commenced a hearing before the termination date, CONSULTANT may complete the hearing process, and the Agreement will subsequently terminate.
8. TIME FOR PERFORMANCE.
A. CONSULTANT will not perform any work under this Agreement until:
CONSULTANT furnishes proof of insurance as required under Section 22 of this Agreement; and
ii. CITY gives CONSULTANT a written notice to proceed.
B. Should CONSULTANT begin work on any phase in advance of receiving written authorization to proceed, any such professional services are at CONSULTANT's own risk.
9. CONSISTENCY. In interpreting this Agreement and resolving any ambiguities, the main body of this Agreement takes precedence over the attached Exhibit A; this Agreement supersedes any conflicting provisions.
10. TAXPAYER IDENTIFICATION NUMBER. CONSULTANT will provide CITY with a Taxpayer Identification Number prior to commencement of services.
11. PERMITS AND LICENSES. CONSULTANT, at its sole expense, will obtain and maintain during the term of this Agreement, all necessary permits, licenses, and certificates that may be required in connection with the performance of services under this Agreement.
12. WAIVER. CITY's review or acceptance of, or payment for, work product prepared by CONSULTANT under this Agreement will not be construed to operate as a waiver of any rights CITY may have under this Agreement or of any cause of action arising from CONSULTANT's performance. A waiver by CITY of any breach of any term, covenant, or condition contained in this Agreement will not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant, or condition contained in this Agreement, whether of the same or different character.
13. TERMINATION.
A. CITY shall not terminate this Agreement, except for cause. For the purposes of this Agreement, "cause" shall include: (1) failure or refusal to perform the services described in this Agreement; (2) any material violation of this Agreement; or (3) any change in the State or Federal law that makes the services of the CONSULTANT no longer necessary. The CITY is prohibited from terminating this Agreement based upon the results of the CONSULTANT'S decision. -6-
City of Bellflower
Agreement File No. 746
Richard Terzian
B CONSULTANT may terminate this Agreement with or without cause, upon providing written notice at least thirty days before the effective termination date, provided, however, that CONSULTANT agrees that CONSULTANT will not terminate the Agreement under this Paragraph during the pendency of any proceeding in which he is presiding as hearing officer
14. OWNERSHIP OF DOCUMENTS. All documents, data, studies, drawings, maps, models, photographs and reports prepared by CONSULTANT under this Agreement are C1TY'sroperty CONSULTANT may retain copies of said documents and materials as p
desired, but will deliver all original materials to CITY upon CITY's written notice. CITY agrees that use of CONSULTANT'S completed work product, for purposes other than identified in this Agreement, or use of incomplete work product, is at CITY's own risk.
15. PUBLICATION OF DOCUMENTS. Except as necessary for performance of service under this Agreement, no copies, sketches, or graphs of materials, including graphic art work, prepared pursuant to this Agreement, will be released by CONSULTANT to any other person or public CITY without CITY's prior written approval.
All press releases, including graphic display information to be published in newspapers or magazines, will be approved and distributed solely by CITY, unless otherwise provided by written agreement between the parties.
16 INDEMNIFICATION.
A. CONSULTANT agrees to the following:
Indemnification. CONSULTANT indemnifies and holds CITY harmless from and against any claim, action, damages, costs (including, without limitation, attorney's fees), injuries, or liability, arising from any negligent or wrongful act, error or omission by CONSULTANT in performing this Agreement except to the extent the CONSUL TANT has immunity for such negligent or wrongful acts as a hearing officer.
B For purposes of this section "CITY" includes CITY's officers, officials, employees, agents, representatives, and certified volunteers C It is expressly understood and agreed that the foregoing provisions will survive termination of this Agreement
D. The requirements as to the types and limits of insurance coverage to be maintained by CONSULTANT as required by Section 20, and any approval of said insurance by CITY are not intended to and will not in any manner limit or qualify the liabilities and obligations otherwise assumed by CONSULTANT pursuant to this Agreement including, without limitation to the provisions concerning indemnification
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City of Bellflower
Agreement File No. 746
Richard Tertian
17. ASSIGNABILITY This Agreement is for CONSULTANT'S professional services.
CONSULTANT'S attempts to assign the benefits or burdens of this Agreement without CITY's written approval are prohibited and will be null and void
18. INDEPENDENT CONTRACTOR. CITY and CONSULTANT agree that CONSULTANT will act as an independent contractor and will have control of all work and the manner in which is it performed CONSULTANT will be free to contract for similar service to be performed for other employers while under contract with CITY.
CONSULTANT is not an agent or employee of CITY and is not entitled to participate in any pension plan, insurance, bonus or similar benefits CITY provides for its employees.
19. AUDIT OF RECORDS. CONSULTANT will maintain full and accurate records with respect to all services and matters covered under this Agreement. CITY will have free access at all reasonable times to such records, and the right to examine and audit the same and to make transcript therefrom, and to inspect all program data, documents, proceedings and activities CONSULTANT will retain such financial and program service records for at least three (3) years after termination or final payment under this Agreement
20 INSURANCE
A Before commencing performance under this Agreement, and at all other times this Agreement is effective, CONSULTANT will procure and maintain the following types of insurance with coverage limits complying, at a minimum, with the limits set forth below hoof Insurance Limits
Professional Liability
Hearing Officer's Insurance
Including Professional Liability
and Personal Injury Coverage
and Defense Cost Coverage)
Automobile liability
1,000,000 in aggregate, $500,000 per
claim
300,000 in aggregate, $100,000 per
claim
500,000/accident, $2,000,000 excess
liability
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City of Bellflower
Agreement File No. 746
Richard Terzian
B, Professional liability coverage will have the same coverage and limits as the policy that was in effect during the term of this Agreement.
C CONSULTANT will furnish to CITY duly authenticated Certificates of Insurance evidencing maintenance of the insurance required under this Agreement and such other evidence of insurance or copies of policies as may be reasonably required by CITY from time to time.
Insurance must be placed with insurers with a current A.M. Best Company Rating equivalent to at least a Rating of "AVII." D Should CONSULTANT, for any reason, fail to obtain and maintain the insurance required by this Agreement, CITY may obtain such coverage at CONSULTANT's expense and deduct the cost of such insurance from payments due to CONSULTANT under this
Agreement or terminate pursuant to Section 13.
21 USE OF SUBCONTRACTORS. CONSULTANT must not use subcontractors to perform as CI -PCs hearing officer.
22. NOTICES. All communications to either party by the other party will be deemed made when received by such party at its respective name and address as follows If toCONSULTANT:
Richard Terzian
315 W Arden Avenue, Suite 28
Glendale CA 91203
If to CITY
City of Bellflower
Attn Jeffrey L Stewart, City Manager
16600 Civic Center Drive
Bellflower, CA 90706
Any such written communications by mail will be conclusively deemed to have been received by the addressee upon deposit thereof in the United States Mail, postage prepaid and properly addressed as noted above. In all other instances, notices will be deemed given at the time of actual delivery Changes may be made in the names or addresses of persons to whom notices are to be given by giving notice in the manner prescribed in this paragraph
23 CONFLICT OF INTEREST CONSULTANT will comply with all conflict of interest laws and regulations including, without limitation CITY's conflict of interest regulations
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City of Bellflower
Agreement File No. 746
Richard Terzian
24 SOLICITATION. CONSULTANT maintains and warrants that it has not employed nor companyretainedanyor person, other than CONSULTANT'S bona fide p Y
gemployee, to solicit or secure this Agreement Further, CONSULTANT warrants that it has not paid nor has it agreed to pay any company or person, other than CONSULTANT'Semployee, bona fide em to ee, any fee, commission, percentage, brokerage fee, consideration contingent upon or resultingeftorother
from the award or making of this
Agreement Should CONSULTANT breach or violate this warranty, CITY may rescind this Agreement without liability,
25 THIRD PARTY BENEFICIARIES This Agreement and every provision herein is generally for the exclusive benefit of CONSULTANT and CITY and not for the benefit of any other party. art . There will be no incidental or other beneficiaries of any of CONSULTANT'S or CITY's obligations under this Agreement 26INTERPRETATION. This Agreement was drafted in, and will be construed in accordance with the laws of the State of California, and exclusive venue for any action involving this agreement will be in Los Angeles County,
27. COMPLIANCE WITH LAW CONSULTANT agrees to comply with all federal, state, and local laws applicable to this Agreement
28. ENTIRE AGREEMENT. This Agreement sets forth the entire understanding of There are no other understandings, terms or otherparties agreements expressed
or implied, inureorwrittenThisAgreementwillbindand to the benefit of the parties to this Agreement and any subsequent successors and assigns 29 RULESES OF CONSTRUCTION. Each Party had the opportunity to independently Agreement with legal counsel Accordingly, this Agreement will be review this g g
construed simplysim l as a whole, and in accordance with its fair meaning, it will not be interpreted strictly for or against either Party
30 portionSEVERABILITY.If any of this Agreement is declared by a court of competent jurisdiction to be invalid or unenforceable, then such portion will be deemed modifiedd to the extent necessary in the opinion of the court to render such portion enforceable and as so modified, such portion and the balance of this Agreement will continue in full force and effect
31 AUTHORITY/MODIFICATION. The Parties represent and warrant that all necessary action has been taken by the Parties to authorize the undersigned to execute this Agreement and to engage in the actions described herein This Agreement may be modified bywritten amendment CITY's executive manager or designee may execute any such amendment on behalf of CITY
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City of Bellflower
Agreement File No. 746
Richard Terzian
32. ACCEPTANCE OF FACSIMILE SIGNATURES. The Parties agree that this Agreement, agreements ancillary to this Agreement, and related documents to be entered into in connection with this Agreement will be considered signed when the signature of a party is delivered by facsimile transmission. Such facsimile signature will be treated in all respects as having the same effect as an original signature, 33, CAPTIONS. The captions of the paragraphs of this Agreement are for convenience of reference only and will not affect the interpretation of this Agreement.
34. TIME IS OF ESSENCE. Time is of the essence for each and every provision of this Agreement.
35. FORCE MAJEURE. Should performance of this Agreement be prevented due to fire, flood, explosion, acts of terrorism, war, embargo, government action, civil or military authority, the natural elements, or other similar causes beyond the Parties' reasonable control, then the Agreement will immediately terminate without obligation of either party to the other.
36. STATEMENT OF EXPERIENCE. By executing this Agreement, CONSULTANT represents that it has demonstrated trustworthiness and possesses the quality, fitness and capacity to perform the Agreement in a manner satisfactory to CITY.
IN WITNESS WHEREOF the parties hereto have executed this Agreement the day and year first hereinabove written
1 CITY OF LFLOWER
11 X
Jeffr -,,f . Ste art,
City anager
ATTEST:
J ,
Mayr. Oi
City Clerk
APPR
Karl H. Berger,
City Attorney
CONSULTANT
Richard Terzian
Taxpayer ID No. (5 f
C„)Q.-e4frt...
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Exhibit A
COMPENSATION
Hearing Officer Services $250/hour
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