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RES-2008-126Officer; and RESOLUTION NO. 2008 -126 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ANAHEIM TERMINATING THE EXISTING AGREEMENT WITH VICTOR J. KALETA, APPOINTING MICHAEL H. MILLER AS THE NEW CITY HEARING OFFICER PURSUANT TO SECTION 1.12.110 OF THE ANAHEIM MUNICIPAL CODE, AND APPROVING AN AGREEMENT FOR HEARING OFFICER SERVICES WITH MICHAEL H. MILLER WHEREAS, the City Council, by its Ordinance No. 5866, and in order to conform previously existing language in the Anaheim Municipal Code relating to selection of a hearing officer with the requirements set forth by the California Supreme Court in Haas v. County of San Bernardino (2002) 27 Cal. 4th 1017, has created the office of City Hearing Officer to hear prescribed matters, thereby ensuring that the appointment does not create the possibility that favorable decisions will be rewarded; and WHEREAS, Ordinance No. 5866 provides that the City Hearing Officer shall be appointed by Resolution of the City Council; and WHEREAS, the City Council, by resolution, previously appointed Victor J. Kaleta as the City Hearing Officer for a period of five years, which term was due to expire on September 2, 2008; and WHEREAS, by letter dated June 30, 2008, Mr. Kaleta requested early termination of his agreement; and WHEREAS, it is now necessary to replace Mr. Kaleta with a new City Hearing WHEREAS, Michael H. Miller is an attorney experienced in both municipal law and presiding over administrative hearings, and is qualified to conduct fair and impartial hearings on behalf of the City; and WHEREAS, it is the intent of the City Council to appoint Mr. Miller as the City Hearing Officer for a period of three years, without the possibility for renewal of the contract, to accomplish the following major objectives: 1. To ensure that the appointment of City Hearing Officer does not create the possibility that favorable decisions will be rewarded. 2. To hear all matters to be conducted by the City Hearing Officer pursuant to the provisions of Ordinance No. 5866. 3. To conduct fair, timely and impartial hearings. NOW, THEREFORE, BE IT RESOLVED that the City Council hereby agrees to terminate the existing agreement by and between the City and Victor J. Kaleta, which termination shall be effective upon adoption of this resolution; and 1 BE IT FURTHER RESOLVED that based on the foregoing, and in order to accomplish its objectives, the City Council hereby appoints Michael H. Miller to serve as the City Hearing Officer pursuant to the Agreement for Hearing Officer Services attached hereto as Exhibit "A" and incorporated herein by this reference (hereinafter "Agreement for Hearing Officer Services and BE IT FURTHER RESOLVED that said Agreement for Hearing Officer Services be, and the same is hereby, approved, and the City Attorney is hereby authorized and directed to execute said agreement for and on behalf of the City and to administer said agreement and the terms thereof on behalf of the City. THE FOREGOING RESOLUTION is approved and adopted by the City Council of the City of Anaheim this 1 5th day of July 2008, by the following roll call vote: AYES: Mayor Pringle, Council Members Hernandez, Sidhu, Galloway, Kring NOES: NONE AB SENT: NONE ABSTAIN: NONE ATTEST: CITY C ERK OF THE CITY OF ANAHEIM 69682.1 MAYOR OF THE CITY OF ANAHEIM 2 w z W o Q {V cs O N Q ce co CD N a 9 Z ci W u 0� o 1 LT, 44 S Q LL W V a to IL o I1 O N 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A N D AGREEMENT FOR HEARING OFFICER SERVICES THIS AGREEMENT, dated solely for purposes of identification this day of 2008, is made and entered into by and between the CITY OF ANAHEIM, a municipal corporation, hereinafter referred to as "ANAHEIM," MICHAEL H. MILLER, ESQ., hereinafter referred to as "HEARING OFFICER WITNESSETH: WHEREAS, in order to conform to the California Supreme Court decision in Haas v. County of San Bernardino, (2002) 27 Ca1.4th 1017, the City Council adopted Ordinance No. 5866 revising numerous sections of the Anaheim Municipal Code relating to the referral of matters to hearing officers and further created the position of City Hearing Officer, appointed by resolution of the City Council, to hear prescribed matters arising during a designated period of time without the possibility of extension or renewal of the appointment; and WHEREAS, HEARING OFFICER is an attorney experienced in both municipal law and presiding over administrative hearings, and is qualified and willing to conduct fair and impartial hearings on behalf of ANAHEIM in accordance with Ordinance 5866, the Council resolution authorizing his appointment and the terms and conditions set forth herein. NOW, THEREFORE, FOR AND IN CONSIDERATION OF THE PROMISES, COVENANTS, AND CONDITIONS HEREIN CONTAINED, AND THE RECITALS SET FORTH ABOVE, IT IS AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1. SCOPE OF SERVICES The HEARING OFFICER shall perform the services of the City Hearing Officer as established by City Council Ordinance No. 5866 and set forth in the Anaheim Municipal Code, which services shall include the following: A. Act as a hearing officer to conduct evidentiary hearings and either prepare fmdings and recommendations to the City Council or, in specified circumstances, make final decisions on behalf of ANAHEIM with regard to certain types of due process hearings as established by Ordinance 5866 and provisions of the Anaheim Municipal Code, including, but not limited to, hearings relating to Sex Oriented Businesses, appeals of decisions to terminate a use or variance, and transient occupancy tax matters where the amount in dispute exceeds Fifty Thousand Dollars ($50,000.00). B. The HEARING OFFICER shall voluntarily disqualify himself from any case in w which he cannot accord a fair and impartial hearing or consideration. C. The HEARING OFFICER's authority to hear and consider the matter before him shall be limited to only those matters within the HEARING OFFICER =s subject matter jurisdiction. D. The HEARING OFFICER shall conduct the hearing and consider the evidence independently, and shall not be under the authority, direction or discretion of any officer or employee of ANAHEIM who has served as investigator, prosecutor, or advocate in the proceeding or its preadjudicative stage. E. The HEARING OFFICER shall perform all services provided pursuant to this Agreement in a professional, timely and ethical manner 2. TERM This Agreement is contingent upon the adoption of a resolution of the City Council pursuant to Ordinance No. 5866 authorizing the appointment of HEARING OFFICER. The term of this Agreement shall be for three (3) years, unless terminated sooner pursuant to 21 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 22 Paragraph 7; provided, however, that if HEARING OFFICER has commenced a hearing prior to the termination date, HEARING OFFICER may complete the hearing process, and the Agreement shall terminate upon the completion of said process. This Agreement shall not, under any circumstances, be extended or renewed. 3. COMPENSATION A. ANAHEIM agrees to pay, and the HEARING OFFICER agrees to accept, as full compensation for the HEARING OFFICER's services, compensation at the rate of One Hundred Fifty Dollars ($150.00) per hour for the period of July 15, 2008 through July 14, 2009, One Hundred Sixty -Five Dollars ($165.00) per hour for period of July 15, 2009 through July 14, 2010, and One Hundred Seventy -Five Dollars per hour for the period of July 15, 2010 through July 14, 2011, or until such time as the Agreement terminates as set forth in Paragraph 2 above. Travel time to and from hearings shall not be billed to ANAHEIM. B. ANAHEIM also agrees to reimburse HEARING OFFICER for the following out of- pocket expenses only: travel, long distance telephone, printing, and postage /delivery charges. Mileage will be reimbursed at the IRS allowable rate in effect at the time of the request for reimbursement. C. HEARING OFFICER shall submit, at the conclusion of each matter handled by HEARING OFFICER, an itemized invoice to ANAHEIM which identifies the matter handled by HEARING OFFICER, the hours worked, and the applicable hourly rate. An itemization of reimbursable expenses claimed by HEARING OFFICER, and any supporting documentation therefore, shall be included in the invoice. D. ANAHEIM agrees to pay HEARING OFFICER for work performed and expenses incurred within thirty (30) days after submission of a statement from HEARING OFFICER describing such work and expenses. 4. AMENDMENT This Agreement may be amended only by written agreement between the parties. W z <WO �wn 0 L Li X Z V LL o 0 V vi u_ LL 0 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 5. COMPLIANCE WITH APPLICABLE LAWS In the performance of this agreement, the HEARING OFFICER agrees to abide by and conform to all applicable laws of the United States, the State of California, and the Charter, ordinances, and policies of ANAHEIM. 6. CAPACITY AS INDEPENDENT CONTRACTOR The HEARING OFFICER shall perform his obligations under this agreement as an independent contractor and not as an employee of ANAHEIM. 7. TERMINATION Either party may terminate this Agreement upon sixty (60) days written notice to the other party, provided, however, that HEARING OFFICER agrees that he will not exercise his right to terminate the Agreement under this Paragraph during the pendency of any proceeding in which he is presiding as the City's Hearing Officer. 8. NOTICES Notices and communication concerning this Agreement shall be sent to the following addresses: ANAHEIM City of Anaheim Attention: City Clerk 200 S. Anaheim Boulevard Anaheim, CA 92805 Either party may, by notice to the other party, change the address specified above. Service of notice or communication shall be complete when received at the designated address. 9. ENTIRE AGREEMENT This writing constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes all prior oral or written representations or written agreements which may have been entered into between the parties. No modification or revision to this Agreement shall be of any force or effect, unless the same is in writing and executed by the parties hereto. 10. EFFECTIVE DATE The effective date of this Agreement shall be July 15, 2008. LAW FIRM Michael H. Miller, Esq. 3615 Amesbury Road Los Angeles, CA 90027 1 2 3 4 5 6 7 8 9 10 11 w 12 z x km'' 13 aw o N a O9 14 N 2 Z 51 U i' WLL �og=�� 15 w 16 N II LL c?,, 0 17 18 19 20 21 22 23 24 25 26 27 28 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the dates hereinafter respectively set forth. DATE OF EXECUTION: ATTEST: DATE OF EXECUTION: APPROVED AS TO FORM: JACK L. WHITE, CITY ATTORNEY By Cristina L. Talley Sr. Assistant City Attorney 69664.1 69703 (word) CITY OF ANAHEIM, a municipal corporation By Mayor City Clerk "ANAHEIM" MICHAEL H. MILLER, ESQ. "HEARING OFFICER" 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28