Loading...
Resolution No. 2012-151RESOLUTION NO. 2012-151 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VERNON APPROVING AND AUTHORIZING THE EXECUTION OF AN AMENDMENT TO THE AGREEMENT BY AND BETWEEN THE CITY OF VERNON AND HON. DEBRA WONG YANG (RET.) FOR SERVICES AS HEARING OFFICER FOR AN ELECTION CONTEST WHEREAS, on July 23, 2012, the City Council of the City of Vernon adopted Resolution No. 2012-145 approving an Agreement with Hon. Debra Wong Yang (Ret.) ("Yang") to serve as the Neutral Hearing Officer; and WHEREAS, by memo dated August 1, 2012, the City Administrator has recommended that the Agreement be amended to modify certain provisions of the agreement; and WHEREAS, the City desires to amend the Agreement to modify and clarify the parties' relationship and obligations respecting Yang serving as the Neutral Hearing Officer. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF VERNON AS FOLLOWS: SECTION 1: The City Council of the City of Vernon hereby finds and determines that the recitals contained hereinabove are true and correct. SECTION 2: The City Council of the City of Vernon hereby approves the Amendment with Yang, in substantially the same form as the copy which is attached hereto as Exhibit A. SECTION 3: The City Council of the City of. Vernon hereby authorizes the Mayor or Mayor Pro-Tem to execute said Amendment for, and on behalf of, the City of Vernon and the City Clerk, or Deputy City Clerk, is hereby authorized to attest thereto. SECTION 4: The City Council of the City of Vernon hereby instructs the City Administrator, or his designee, to take whatever actions are deemed necessary or desirable for the purpose of implementing and carrying out the purposes of this Resolution and the transactions herein approved or authorized, including but not limited to, any nonsubstantive changes to the Agreement attached herein. SECTION 5: The City Council of the City of Vernon hereby directs the City Clerk, or the City Clerk's designee, to give a fully executed Amendment to Yang. SECTION 6: The City Clerk of the City of Vernon shall certify to the passage, approval and adoption of this resolution, and the City Clerk of the City of Vernon shall cause this resolution and the City Clerk's certification to be entered in the File of Resolutions of the Council of this City. APPROVED AND ADOPTED this 7th day of August, 2012. Name: William J. Davis Title:1ax / Mayor Pro-Tem - 2 - STATE OF CALIFORNIA ) ) ss COUNTY OF LO,S ANGELES ) I, Willard G. Yamaguchi, City Clerk of the City of Vernon, do hereby certify that the foregoing Resolution, being Resolution No. 2012-151, was duly passed, approved and adopted by the City Council of the City of Vernon at a regular meeting of the City Council duly held on Tuesday, August 7, 2012, and thereafter was duly signed by the Mayor or Mayor Pro-Tem of the City of Vernon. Executed this day of August, 201.2, at Vernon, California. (SEAL) - 3 - EXHIBIT A AGREEMENT BETWEEN THE CITY OF VERNON AND HEARING OFFICER DEBRA WONG YANG FOR SERVICES AS HEARING OFFICER FOR ELECTION CONTEST Hearing Officer: Responsible Principal for City: Notice Information — Hearing Officer: Notice Information - City: Commencement Date: Termination Date: (Rev. 11-31-12) COVER PAGE Debra Wong Yang Mark Whitworth, City Administrator Debra Wong Yang Gibson Dunn 333 South Grand Avenue Los Angeles, CA 90071-3197 Phone: 213.229.7000 Facsimile: 213.229.7520 City of Vernon 4305 Santa Fe Avenue Vernon, CA 90058 Attention: Mark Whitworth, City Administrator Telephone: (323) 583-8811 ext. 398 Facsimile: (323) 826-1408 July 18, 2012 August 31, 2012, unless extended pursuant to Section 1 Consideration: Total not to exceed $150,000.00 AGREEMENT BETWEEN THE CITY OF VERNON AND HEARING OFFICER DEBRA WONG YANG FOR SERVICES AS HEARING OFFICER FOR ELECTION CONTEST THIS AGREEMENT is made and entered into as of July 19, 2012 ("Effective Date"), by and between the City of Vernon, a California charter City and California municipal corporation ("City"), and Debra Wong Yang ("Hearing Officer") on behalf of Gibson, Dunn & Crutcher LLP ("Gibson Dunn'). City and Hearing Officer are collectively referred to herein as the "Parties." RECITALS A. City desires to have the Hearing Officer, pursuant to City of Vernon Charter Section 3.4, City of Vernon Ordinance No. 1197, City of Vernon Resolution No. 2012-116, City of Vernon Resolution No. 2012-123 and City of Vernon Resolution No. 2012-123 conduct and preside over an election contest hearing relating to the June 5, 2012, election in the City of Vernon. B. Hearing Officer represents she is qualified and capable of furnishing the labor, qualifications, and expertise necessary to perform such Services in accordance with the terms and conditions set forth in this Agreement. NOW, THEREFORE, the Parties agree as follows: Section 1. Term and Time of Performance. (a) This Agreement shall commence upon the Commencement Date listed on the Cover Page, and shall remain and continue in effect through the Termination Date listed on the Cover Page, unless sooner terminated pursuant to the provisions of this Agreement. City may renew this Agreement on a month -to -month basis at its discretion. Section 2. Performance. (a) Hearing Officer shall perform the Services and tasks described and set forth in Section 6 herein below ("Services"). Additional services must be mutually agreed upon in writing signed by both Parties prior to performance of those additional services. (b) Hearing Officer shall at all times faithfully, competently and to the best of her ability, experience, and talent, perform all Services under this Agreement in accordance with the standard of care and skill ordinarily exercised by members of the profession currently practicing in the same locality as the City under similar circumstances and in a manner reasonably satisfactory to City. Hearing Officer shall at all times comply with the highest ethical standards when performing Services for the City. (c) Hearing Officer shall keep itself informed of all local, state, and federal ordinances, resolutions, laws and regulations ("applicable law", herein, which in any manner affect those employed by her or in any way affect the performance of her Services pursuant to this Agreement. Hearing Officer shall at all times observe and comply with all such ordinances, laws and regulations. (d) Hearing Officer will not be compensated for any work ,performed not specified herein unless City authorizes such work in advance and in writing. Section 3. Compensation. (a) City agrees to compensate Hearing Officer, and Hearing Officer agrees to accept in full satisfaction for the Services required by this Agreement, including fees and expenses, a sum not to exceed the Consideration set forth on the Cover Page, for the period set forth on the Cover Page and more particularly described as follows: i. Hearing Officer shall be compensated at a rate of $990.00 per hour, plus reasonable expenses, to perform all Services described herein. Rachel N. Perahia, an associate attorney who shall assist the Hearing Officer in performing the Services, will perform such Services at a rate of $515.00 per hour. (b) Hearing Officer shall invoice City monthly for Services provided under this Agreement. Invoices shall include the period for which Services were provided, the dates of such Services, a description of the Services provided, and an itemization of expenses incurred for that billing period. Each invoice shall include copies of timesheets and other supporting documents as City may require. (c) Payment of each invoice shall be made by City within thirty (30) days following receipt of each invoice as to all non -disputed fees. If City disputes any of Hearing Officer's fees, it shall give written notice to Hearing Officer within thirty (30) days of receipt of the disputed invoices. Any amounts in dispute shall be withheld until resolution. (d) Change in the scope of services, duties, obligations, durations or total compensation, shall be by written authorization only by the City. Section 4. Responsible Principals. (a) The Responsible Principal set forth on the Cover Page shall be principally responsible for Hearing Officer's obligations under this Agreement and shall serve as principal liaison between City and Hearing Officer. (b) City's Responsible Principal shall be the City Administrator or his designee who shall administer the terms of the Agreement on behalf of City. Section 5. Personnel. (a) Hearing.Officer shall have all the necessary knowledge, expertise, skill, professional licenses, certificates, training, and other qualifications required by this Agreement or other applicable law. Hearing Officer shall provide City with said licenses and certificates at the request of City. Section 6. Hearing Officer's Duties and Representations ("Services"). Hearing Officer represents, covenants and agrees as follows: (a) She has the skill, experience and knowledge to fulfill the specific duties of a Hearing Officer, as required and set forth in Ordinance No. 1197, Resolution No. 2012-116, and Resolution No.2012-123, which are attached hereto and incorporated herein as Exhibits A, B and C, respectively. (b) She will fulfill the specific duties of a Hearing Officer, as required and set forth in Ordinance No. 1197, Resolution No. 2012-116, and Resolution No. 2012-123, which are attached hereto and incorporated herein as Exhibits A, B and C, respectively. (c) There are no obligations, commitments, or impediments of any kind that will limit or prevent timely performance of the Services. (d) Hearing Officer presently has no interest and shall not have any interest, direct or indirect, which would conflict in any manner with the performance of the Services contemplated by this Agreement. No person having any such interest shall be employed by Hearing Officer on this matter. Hearing Officer further agrees to, at all times pertinent, abide by the Conflict of Interest Guidelines adopted by the City of Vernon in Resolution No. 2012-123 (attached hereto and incorporated herein as Exhibit C). (e) There is no litigation pending against Hearing Officer and Hearing Officer is not the subject of any criminal investigation or proceeding, and Hearing Officer has never been convicted of a felony. Section 7. Independent Hearing Officer. (a) Hearing Officer is and shall at all times remain, as to City, wholly independent. The personnel performing the Services under this Agreement on behalf of Hearing Officer shall at all times be under Hearing Officer's exclusive direction and control. Neither City nor any of its officers, officials, employees, agents, or volunteers shall have control over the conduct of Hearing Officer or any of Hearing Officer's officers, employees, associates or agents except as set forth in this Agreement. Hearing Officer shall not at any time or in any manner represent that she is in any manner an officer, official, employee, agent, or volunteer of City. Hearing Officer shall not incur or have the power to incur any debt, obligation or liability whatsoever against City, or bind City in any manner. (b) No employee benefits shall be available to Hearing Officer or her associates, officers, employees, or agents in connection with the performance of this Agreement. Except for Consideration paid to Hearing Officer as provided in the Agreement, City shall not pay salaries, wages, or other compensation to Hearing Officer for performing Services hereunder for the City. City shall not be liable for compensation or indemnification to Hearing Officer or its officers, employees, or agents for injury or sickness arising out of performing Services hereunder. (c) Hearing Officer agrees to pay and be responsible for paying all Federal, State and local taxes for compensation received by Hearing Officer from City while performing services for City. (d) The scope of this Agreement does not confer "consultant" status on the Hearing Officer or her associates, officers, employees, or agents; therefore, Hearing Officer is not subject to the public disclosure requirements as a "public official" under the City's conflict of interest code. Only consultants who 1) actually make specified types of government decisions, or 2) who serve as agency staff and in that capacity perform all or substantially all the same duties as a staff member are considered "public officials." 11 Section 8. Termination. (a) Termination Right. City may, at any time, for any reason or for no reason, with or without cause, terminate this Agreement, by serving upon the Hearing Officer at least five (5) calendar days prior written notice. Upon receipt of such notice, Hearing Officer shall immediately cease all work under this Agreement, unless the notice provides otherwise. (b) In the event of termination or cancellation of this Agreement by City, due to no fault or failure of performance by Hearing Officer, Hearing Officer shall be paid based on the percentage of work satisfactorily performed at the time of termination. In no event shall Hearing Officer be entitled to receive more than the amount that would be paid to Hearing Officer for the full performance of the Services required by this Agreement as set forth on the Cover Page to this Agreement. Hearing Officer shall have no other claim against City by reason of such termination, including any claim for compensation. (c) Actions Subsequent to Termination. In the event of termination of this Agreement, Hearing Officer shall deliver all Confidential Information, as defined in Section 13 below, to City within thirty (30) days after the termination of this Agreement. Hearing Officer shall also take all such other action as City reasonably requires and shall cooperate with City to effectuate an orderly and systematic termination of Hearing Officer's duties and activities hereunder. (d) All of the terms and conditions in the Agreement related to payment, indemnification, dispute resolution and waiver shall survive termination of this Agreement. (e) The Hearing Officer and Gibson Dunn also has the right to withdraw from this Agreement if the City fails to honor the terms of this Agreement, the City fails to make payment of any statements in a timely manner, the City fails to cooperate on a material matter, or any fact or circumstance occurs that would render Gibson Dunn's continuing relationship unlawful or unethical. If Gibson Dunn elects to withdraw, the City will take all steps necessary to free Gibson Dunn of any obligation to perform further services, including the execution of any documents necessary to complete withdrawal. Notwithstanding such termination, the City will remain obligated to pay Gibson Dunn for all services provided and to reimburse Gibson Dunn for all costs and expenses paid. or incurred on the City's behalf. Section 9. Limitation of City's Liability. (a) City's liability on any kind of claim for any loss or damage arising out of, in connection with, or resulting from this Agreement, shall in no case exceed the amount that would be paid to Hearing Officer for the full performance of the Services required by this Agreement as set forth on the Cover Page to this Agreement. In no event shall City be liable for anticipated profits or for incidental, consequential or punitive damages. City shall not be liable for penalties of any description. (b) The City agrees that Gibson Dunn shall not have any liability to the City in connection with this Agreement except for liability for losses, claims, damages, liabilities or expenses incurred by the City that result from professional malpractice, gross negligence or willful misconduct. (c) Gibson Dunn is a California registered limited liability partnership. As a result, with certain possible limited exceptions, none of which may be applicable, the partners of Gibson Dunn are not liable or accountable, directly or indirectly, including by way of indemnification, contribution, assessment, or otherwise, for debts, obligations, or liabilities of or chargeable to Gibson Dunn or another partner in the firm, whether arising in tort, contract, or otherwise, that are incurred, created, or assumed by the firm, by reason of being a partner or acting in the conduct of the business or activities of the firm. (d) The provisions of this Section are in addition to any rights that we may have at common law or otherwise, including but not limited to any right of contribution. Section 10. Records and Inspections. Hearing Officer shall maintain full and accurate records with respect to all matters covered under this Agreement for Records Retention Period. The records shall be maintained in such a fashion as to facilitate preparation of a record of proceedings in the event of judicial proceedings relative to the election contest. City shall have access, without charge, during normal business hours to such records, and the right to examine, audit, and take full possession of the same, and to make copies and transcripts therefrom, and to inspect all documents, proceedings and activities. Section 11. Default. Hearing Officer's failure to comply with the provisions of this Agreement shall constitute a default. In the event that Hearing Officer is in default under the terms of this Agreement, City shall have no obligation or duty to continue compensating Hearing Officer for any work performed after the date of default and can terminate this Agreement immediately by written notice to Hearing Officer. , Section 12. Indemnification. Hearing Officer and the City each agree to defend, indemnify, protect and hold harmless each other, its officers, officials, employees, agents, and volunteers from and against any and all claims, suits, demands, actions, losses, damages, judgments, settlements, penalties, fines, defensive costs or expenses, including without limitation, interest, attorneys' fees and expert witness fees, or liability of any kind or nature arising out of or attributable to the negligent acts or omissions or willful misconduct of Hearing Officer, or the City which in any way arise out of, result from, or are in any way related to the performance or non-performance of this Agreement, excepting only liability arising out of the sole negligence or willful misconduct of each other, their officers, officials, employees, agents, or volunteers. THE PROVISIONS OF THIS SECTION SHALL NOT TERMINATE OR EXPIRE, SHALL SURVIVE THE EXPIRATION OR EARLIER TERMINATION OF THIS AGREEMENT The obligations in this section are in addition to Contractor's duty to provide insurance and shall not be limited by any limitation on the amount or type of insurance coverage carried by Contractor. Section 13. Insurance. Hearing Officer, through Gibson Dunn, maintains and shall continue to maintain for the term of this agreement as reflected on the Cover Page, and any extension thereof, a commercial general liability policy (bodily injury and property damage), a worker's compensation/employer's liability policy; and business automobile liability insurance policy with respect to employees and vehicles assigned to the performance of work under this Agreement. Hearing Officer, through Gibson Dunn, shall maintain in full force and effect professional liability insurance in amounts not less than two million dollars ($2,000,000) per occurrence/aggregate. N. Section 14. Assignment and Subcontracting. Except for the assistance of an Associate Attorney, Hearing Officer shall not assign or attempt to assign any portion of this Agreement, or subcontract any required performance hereunder, without the prior written approval of City. Any assignment or subcontract made in violation of this section is invalid and void. Section 15. Arbitration and Venue. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, shall be determined by arbitration in Los Angeles, California. The arbitration shall be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures. The arbitrator shall be a retired judge. All decisions of the arbitrator shall be in writing, and the arbitrator shall provide written reasons for their decision. The arbitration decision shall be final and binding on the Parties. Judgment on the award may be entered in any court having jurisdiction pursuant to this Agreement. This clause shall not preclude Parties from seeking provisional remedies in aid of arbitration from a court having jurisdiction pursuant to this Agreement. The exclusive jurisdiction and venue under this Agreement shall be the Superior Court of California, Los Angeles County. Section 16. Attorneys Fees. In the event a dispute, claim or litigation arises regarding this Agreement, the prevailing party shall be entitled to reimbursement for reasonable attorneys fees and actual costs, which may be set by the arbitrators or the court in the same action or in a separate action brought for that purpose, in addition to any other relief which is obtained. Section 17. Governing Law. This Agreement shall be interpreted and enforced according to, and the Parties rights and obligations governed by, the domestic law of the State of California, without regard to its laws regarding choice of applicable law. Section 18. Entire Agreement and Modifications. This Agreement, including attachments incorporated herein by reference, represents the entire integrated agreement and understanding between the Parties, and supersedes all prior or contemporaneous negotiations, representations, agreements, understandings and statements, written or oral. This Agreement may only be modified in writing and signed by both Parties. Section 19. Waiver. The waiver by either party of a breach or default by the other party shall not be deemed a waiver of any different or later breach whether of the same or other covenant or condition; nor shall any delay or omission by either party to exercise any right it may have hereunder operate as a waiver of any breach or default of such a right. The failure of either party to this Agreement to exercise any of its rights under this Agreement does not constitute a breach thereof and shall not be deemed to be a waiver of such rights or a waiver of any subsequent breach. 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. Section 20. Force Maieure. Neither party shall be considered in default of any of its obligations under this Agreement when a failure of performance shall be due to an uncontrollable force. The term "uncontrollable force" shall mean flood, earthquake, storm, fire, lightning, epidemic, war, riot, civil disturbance or disobedience, federal, state, or municipal action, statute, ordinance, or regulation, embargoes of the United States Government or any other government, which by exercise of due diligence such party could not reasonably have been expected to avoid and by exercise of due diligence has been unable to overcome. Either party rendered unable to fulfill any of its obligations under this Agreement by reason of an uncontrollable force shall give written notice within five (5) business days of such fact to the other party and shall exercise due diligence to remove such inability with all reasonable dispatch. Section 21. Notices. All notices, approvals, consents and other communications between the Parties shall be in writing, and shall be sent by certified mail (return receipt requested) or other delivery service which provides evidence of delivery, using the address set forth on the Cover Page under "Notice Information - City" or "Notice Information — Vendor," as appropriate, or at such other address as may be furnished by either party to the other in writing. Mailed notices will be deemed communicated as of the day of receipt. Section 22. Cover Page and Exhibits. The Cover Page and all documents referenced as exhibits in this Agreement are hereby incorporated in this Agreement. In the event of any material discrepancy between the express provisions of this Agreement and the provisions of any document incorporated herein by reference, the provisions of this Agreement shall prevail. Section 23. Headings. Headings used in this Agreement are for convenience and ease of reference only and shall not affect the interpretation of the Agreement. Section 24. Survival of Terms. All of the terms and conditions in this Agreement related to payment, confidentiality, indemnification, dispute resolution and waiver shall survive termination of this Agreement. Section 25. Severability. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be valid under applicable law. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions shall nevertheless continue in full force and effect, and shall in no way be affected, impaired or invalidated. Section 26. Authority to Execute This Agreement. The person or persons executing this Agreement on behalf of Hearing Officer warrants and represents that he or she has the authority to execute this Agreement on behalf of Hearing Officer and has the authority to bind Hearing Officer to the performance of its obligations under this Agreement. [Signatures Begin on Next Page]. IN WITNESS WHEREOF, the Parties have signed this Agreement as of the date stated in the introductory clause. City of Vernon, a California charter City HEARING OFFICER, Debra Wong Yang. on and California municipal corporation behalf of Gibson, Dunn & Crutcher LLP By: By: aalwee; � William Davis, Name: Debra Wong Yang Mayor Pro Tern Title: Partner ATTEST: Willard G. Yamaguchi, City Clerk F.w=Z91FAZvaEel 'o]ZITJI Willard G. Yamaguchi, Chief Deputy City Attorney 0 EXHIBIT A ORDINANCE NO. 1197 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF VERNON AMENDING CHAPTER 2, ARTICLE XII OF THE VERNON CITY CODE ESTABLISHING PROCEDURES FOR.ELECTION CONTESTS whereas, the provisions of Chapter 2 of the City Charter of the City of Vernon state, that: ."The city shall have full power and authority to adopt, make, exercise and enforce all legislation, laws, and regulations and to take all actions in respect to. municipal affairs, without limitation, which may lawfully be adopted, made, exercised, taken or enforced under the Constitution of the State of California subject.only.to such limitations as may be provided by this Charter"; and Whereas Chapter.3.4 of the City Charter of the City of Vernon provides that "the'city council shall be the final judge of election results and the qualifications of its members"; and Whereas Chapter 5.3 of the City Charter of the City of Vernon.provides, in part: "The city councilis authorized to adopt by ordinance procedures governing municipal elections°; and Whereas Chapter 4.3 of the City Charter of the City of Vernon provides that, "[aln ordinance calling or otherwise relating to an electionsc shall take effect upon.adoption, and that such an ordinance may be introduced and adopted at. one and the same regular or special meeting; and Whereas Chapter 4.4 of the City.Charter of the City of Vernon provides: "An ordinance declared by the city council to be necessary as an emergency measure for the immediate preservation of the public peace, health, or safety, and 1 containing a statement of the reasons for its urgency, may be adopted in the manner provided by this Charter except that such emergency ordinance.alay be introduced and adopted at one and the same regular or special meeting,'and shall take.effect immediately"; and Whereas, on June 18, 2012, an election. contest of the June 5, 2012 Special Municipal Election was filed with, the City Council of the City of.Vernon invoking its jurisdiction pursuant to Chapter 3.4 of the City Charter of the City of Vernon; Whereas, the City Council of the City of Vernon has determined that the enactment of an ordinance establishing procedures for election contests filed pursuant to Chapter"3.4 of the City Charter of the City of Vernon is within the power and authority conferred on the City of Vernon.by virtue of its Charter and the Constitution of the State of California; and Whereas, the City Council of the City of Vernon has determined that the enactment of an ordinance establishing procedures for elections contests filed pursuant to Chapter 3.4 of the City Charter of the City of Vernon is in the best interests of the residents of the City of Vernon as well as the, thousands of employees who work in the City of Vernon. THE CITY COUNCIL OF THE CITY .OF VERNON HEREBY ORDAINS: Section 1: The foregoing recitals are all true and correct. Section 2: The title of Article XII of Chapter 2 of the Vernon Municipal Code is hereby amended to read as follows: CITY COUNCIL ELECTION CONTESTS. E Section 3: Article XII of Chapter 2 of the Vernon Municipal Code is hereby amended to provide as follows: ARTICLE XII CITY COUNCIL ELECTION CONTESTS TABLE OF CONTENTS Section 2.90. Exercise of Jurisdiction by the City Council Section 2.90-1. Declaration of Election Section 2.90-2. Certificate of Election and Oath of Office Section 2.90-3. Time for Filing Election Contest Section 2.90-4. Grounds for Election Contest Section'2.90-5. Procedures for Election Contest Section 2.90-6. Statement of the Reasons for Urgency Section 2.90. Exercise of Jurisdiction by the City Council The City Council shall exercise its jurisdiction under Chapter 3.4 of the City Charter of the City of Vernon over election contests in accordance with the procedures set forth in this article. section 2.90-1. Declaration of Election m Notwithstanding any provision of law, 'including .California Elections Code 5 10263, 9 12064 and 9 15400, as they now exist or may hereafter be amended, the City Council of the City of Vernon shall not'declare the.results of an election or install any person 3 in office as a member of the City Council of the City of Vernon, if an election contest'has been filed with the City Council pursuant to Chapter 3.4 of the Charter of the City of Vernon and this article. The issuance of a Declaration of Election shall not prevent the filing of an election contest pursuant to,Chapter 3.4 of the Charter of the City of Vernon and this article. section 2.9b-2. Certificate of Election and Oath of Office. Notwithstanding any provision of law, including California Elections Code § 10265 and § 15401, as they now exist or may hereafter be amended, the elections official of the.City of Vernon shall not sign or deliver to any person a certificate of election or administer an oath of office as prescribed in the California Constitution if an election contest has. been filed with the City Council pursuant to Chapter 3.4 of the Charter of the City of Vernon and this article. The delivery of a certificate of election and administration of an bath of office shall not prevent'.the filing of an election contest pursuant to Chapter 3.4 of the Charter of the City of Vernon and this article. Section 2.90-3. Time for. Filing Election Contest An electox (as defined in the California Elections Code) of the City of Vernon. shall file the statement of contest within 10 days of the certification of the result of the election by the body or elections official canvassing the returns thereof. For a` consolidated election, the 10 days shall run from the date the County elections official conducting the election prepares the certified statement of the results pursuant to the California Elections Code. A statement of contest filed prematurely shall be deemed filed within 10 days ofcertification as set forth above. 4 Section 2.90-4. Grounds for Election Contest (a) Any elector (as defined in the California Elections Code) of the City of Vernon may contest any election held therein for any of the following causes: 1. That the precinct board or.any member thereof was guilty of malconduct. 2. That the defendant who has been declared elected to an office was not, at the time of the election, eligible to that office. 3. That the defendant has given to any elector or member of a . precinct board.ariy bribe or reward; or has offered any bribe or reward for the purpose of procuring his or her election, or has committed any other offense against the elective franchise defined in Division 18 (commencing with Section 18000) of the California Elections Code. 4. That illegal votes were cast, including, without limitation, votes by person(s) who were not eligible to vote in City of Vernon Elections. 5. That eligible voters who attempted to vote in accordance with the laws of the state were denied their right'to vote. 6. That the precinct board in conducting the election or in canvassing the returns, made errors sufficient to change the result of the election'as to any person. 7. That there was an error in the vote -counting programs or summation of ballot counts. (b) Definitions.. 5 "Defendant" means that person whose election -is -contested or those. persons receiving an equal and highest number of votes, other than the.elector filing the contest, where the body canvassing the returns declares that no one person has received the highest number of votes for the contested office. . "Precinct board" means the board appointed by the elections official to serve at a single precinct or a consolidated precinct. "Precinct board," when used in relation to proceedings taking place after the polls have closed, likewise includes any substitutive canvassing and counting board that may have been appointed to take the place of the board theretofore serving. Section.2.90-5. Procedures for Election Contest The City Council of the City of Vernon may adopt.by resolution additional procedures for election contests which shall provide for fair, transparent, and expedited adjudication consistent with due process and equal protection of the law. Section 2.90-6. Statement of the Reasons for Urgency On June 18, 2012, an election contest of the June 5, 2012 Special Municipal Election in the City of Vernon was filed with the City Council of the City of Vernon invoking its jurisdiction pursuant to Chapter 3.4of the City Charter of the.City of Vernon. The City of Vernon has not enacted an ordinance establishing procedures for. election contests. Such an ordinance is necessary for the immediate preservation of the public peace, health, and safety in order to, consistent with fairness and due process, 1) give full and expeditious effect to the will .of Vernon's qualified voters as expressed in the June 5, 2012 Special Municipal Election, 2) provide certainty to the residents of the City of Vernon about the results of the June 5, 6 2012 Special Municipal Election and seat the legitimately elected candidate at the earliest possible time, 3). avoid disruption of city government by prolonged uncertainty about who was legitimately'elected at the June 5, 2012 Special Municipal Election, 4) avoid disruption of city business with third .parties by prolonged uncertainty about who was legitimately elected at the June 5, 20.12 Special'Municipal Election,.5)'avoid Vernon residents and businesses losing confidence in the integrity of City of Vernon elections caused by prolonged uncertainty about who was legitimately elected at the June 5, 2012 Special Municipal Election, 6) remove .expeditiously any cloud of impropriety from the electoral process for the June 5, 2012 Special Municipal Election in the City of Vernon, 7) provide for the expeditious adjudication of the pending election contest consistent with due process and equal protection of the law, 8) authorize procedures to ensure fairness, transparency, and integrity in the adjudication of City Council election contests, and 9) instill confidence in City of Vernon residents about.the integrity of the City's electoral process so that city residents will vote in.city elections and run for.city office. Section 4: Severability. If any part of this Ordinance is held tc be invalid for any reason, such decision shall not affect the validity of the remaining portion of this Ordinance, and this City Council hereby declares that it would have passed the remainder of this Ordinance if such invalid portion thereof had been deleted. Section 5: Book of Ordinances. The City Clerk shall attest and certify to the adoption of this Ordinance and shall cause this Ordinance and the City Clerk's certification to be entered in the Book of Ordinances of the Council of this City. The City Clerk shall cause this ordinance to be published or posted as'required by law. 7 SECTION 6: Effective Date. In accordance with Chapter 4.3 and Chapter 4.4 of the Charter of the City of Vernon; this ordinance shall take effect immediately upon its adoption. APPROVED AND ADOPTED this 27th day of June 2012 Name: r— William J. Davis Title: Y / Mayor Pro-Tem M STATE OF CALIFORNIA ) ) ss COUNTY OF LOS ANGELES ) .' I, WILLARD G. YAMAGUCHI, City Clerk of the City.of Vernon, do hereby certify that the foregoing Ordinance, being Ordinance No. 1197, was duly passed and regularly introduced at a special meeting of the City Council of the City of Vernon, held in the City of Vernon on Wednesday, June 27, 2012, and adopted at that meeting by the following vote: AYES: Councilmembers: Mayor Pro-Tem.Davis, McCormick, Ybarra NOES: Councilmembers: None ABSENT: Councilmembers: Maisano And thereafter was duly signed by the Mayor or Mayor Pro-Tem of the City of Vernon. Executed this A day of July, ,*12, at Verson, CalifoXnia City (SEAL) L EXHIBIT B RESOLUTION NO. 2012'-116 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VERNON ADOPTING RULES AND PROCEDURES TO GOVERN ELECTION CONTESTS FILED WITH'THE CITY COUNCIL PURSUANT TO VERNON CITY CHARTER SECTION 3.4 WHEREAS; the provisions of Chapter 2 of the City Charter of the City of Vernon state that: ".'The city shall have full power and authority to adopt, make, exercise and enforce all legislation, laws, -and regulations and to take all actions in respect to municipal affairs, without limitation, which may lawfully be adopted, made, exercised, taken or enforced under the Constitution of the State of California subject only to such limitations as may be provided by.this Charter"; and WHEREAS, Chapter 3.4 of the City Charter of the City of Vernon provides that "the city council shall be the final judge of election .results and the qualifications of its members"; and WHEREAS, on June 18, 2012, an election contest of the June 5, 2012 Special Municipal Election was filed with the City Council of the City of Vernon invoking its jurisdiction pursuant to Chapter 3.4 of the City Charter of the City of Vernon; and WHEREAS, on June 27, 2012, the City Council of the City of Vernon adopted Ordinance No. 1197 establishing procedures for election contests filed pursuant to Chapter 3.4 of the City Charter of the City of Vernon (codified as Article XII of Chapter 2 of the Vernon Municipal Code); and WHEREAS, Section 2.90-5.of the Vernon Municipal Code provides that, "The City Council of the City of Vernon may adopt by resolution additional procedures for election contests which shall provide for fair, transparent, and expedited adjudicatiori consistent with due process and - 1 - equal protection of the law;" and WHEREAS, the City Council of the City of Vernon has determined that the enactment of additional procedures for election contests filed pursuant to Chapter 3.4 of the City Charter, which provide for fair, transparent, and expedited adjudication consistent with due process and equal protection of the law is in the best.interests of the residents Of the City of Vernon as well as the thousands of employees who work in the City of Vernon. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF VERNON AS,FOLLOWS: SECTION 1: The City Council of the City of Vernon hereby finds and determines that the recitals contained hereinabove are true and correct. SECTION 2: General Provisions. (a) The election contest provisions of this Resolution shall apply to all election contests filed with, and determined by, the City Council of the City of.Vernon pursuant to City Charter Chapter 3.4 and Ordinance No. 1197. These provisions shall apply to contests concerning the election of candidates for city office, as well -as municipal ballot measure elections insofar as they can be made applicable.. (b) When used in this Resolution, "'contestant" means any elector in the City of Vernon initiating an election contest with the City Council. "Defendant" means that person whose election is contested or those persons receiving an equal and highest number of votes, other than the contestant, where the body canvassing the returns declares that no one person has received the highest number of votes for the contested office. - 2 - (c) When used in this Resolution,. "precinct, board" means the board appointed by the elections official to serve at a single precinct or a consolidated precinct including a special counting or canvassing board pursuant to California Elections code Section 15102. ."Precinct board," when used in relation to proceedings taking place after the, polls have closed, likewise includes any substitutive canvassing and counting board that may have been appointed to take the place of the board theretofore serving. (d) When used in this Resolution, "City Council" means the City Council of the City of Vernon. (e) No irregularity or improper conduct in.the proceedings of the precinct board members, or any of them, or of the elections official is malconduct that avoids an election, unless the irregularity or improper conduct is such as to procure the defendant to be.declared.either elected or one of those receiving an equal and highest number of votes where no one person has received the highest number of votes..' (£) An election shall not be set aside on account. of illegal votes, unless it appears that a number of.illegal votes has been given to the person whose right to the office is contested or who has been certified as having tied for first place, which, if taken from him or her, would reduce the number of his or her legal votes below the number of votes given to,some other.person for the same office, after deducting therefrom the illegal votes which may be shown to have been given to that other person.' (g) An election shall not be set aside on account of eligible voters being denied the right to vote, unless it appears that a sufficient number of voters were denied the right to vote as to change the result as to whom was. elected or received an equal and highest - 3 - number of votes where no one person has received the highest number of votes. (h) A City Council member who is a contestant or defendant in an election contest before the City Council may not in any way participate in the deliberation, decision -making or administration of the election contest. (i) A party to an election contest may agree in writing to service of documents, notices and other papers by email or, facsimile. (j) When service on a party is required in connection with an election contest, an affidavit or declaration of service shall be filed with the City Clerk and retained in the record of the contest proceedings. SECTION 3: Grounds for Election Contest. Any elector (as defined in the California Elections Code) of the City of Vernon may contest any election held therein for any of the following causes: (a) That the precinct board or any member thereof or the elections official was guilty of malconduct. (b) That the defendant who has been declared elected to an office was not, at the time of the election, eligible to that office. (c) That the defendant has given to any elector or member of a precinct board any bribe'or reward, or has offered any bribe or reward for the purpose of procuring his election, or has committed any other offense against the elective franchise defined in Division 18 (commencing with Section 18000) of the California Elections Code. - 4 - (d) That illegal votes were cast, including, without limitation, votes by person(s) who were not eligible to vote in City of Vernon elections. (e) That eligible voters -who attempted to vote in accordance with the laws of the state were denied their right to vote (f) That the precinct board or the elections official in conducting the election or in canvassing the returns, made errors sufficient to change the result of the election as to any person who has been determined to elected, or to have received an equal and highest number of Votes where no one person has received the highest number of votes. (g) That there was an.error in the vote -counting programs or summation of ballot counts. SECTION 4: Form and Timing of Contest Statement. (a) When an elector of the City.of Vernon contests any election pursuant to City Charter section 3.4 and Ordinance No. 1197, he or she shall file with the City Clerk a written statement setting forth specifically: (1) The name of the contestant and that he or she is an elector of the City of Vernon. (2) The name of the defendant. (3) The office or measure. (4) The date of the election. (5) The particular grounds of contest and the subsection of Section 2 of this Resolution under which the statement is filed. (6) The date of the certification of the result of the election by the body or elections official canvassing the - 5 - returns thereof. (b) The contestant shall file the statement of contest within ten days of the certification of the result of the election by the body or elections official canvassing the.returns thereof. For a consolidated election, the ten days shall run from the date the County elections official conducting the election executes the certified statement of the results pursuant to the California Elections Code. A statement of contest filed prematurely shall -be deemed filed within ten days of certification as set forth above, (c) A statement of the grounds of contest shall not be rejected, nor the proceedings dismissed, for want of form, if the grounds of contest are alleged with such certainty as will advise the defendant of the particular proceeding or cause.for which the election is contested. (d) when the reception of illegal votes is alleged as a cause of contest, it is sufficient to state generally that in one or more specified voting precincts illegal votes were given to the defendant, which, if taken from him or her, will reduce the number of his or her, legal votes below the .number of legal votes given to some other person for. the same office'. (e) when irregularity or improper conduct in the proceedings of the precinct board members, or any of them, or'of the elections official is alleged as a cause of contest, the contest statement shall state the specific nature of the mistake, error, misconduct, -or other cause of contest. SECTION 5: City Clerk's Duties Upon Filing of Statement of Contest. When the contest statement is filed with the City Clerk, the City Clerk shall serve on the defendant a copy of the contest statement, - 6 - along with a complete copy of this Resolution and Ordinance No. 1197. Service shall be by personal delivery to the defendant or, if the defendant cannot be found, by leaving a copy at the place of residence named in his or her affidavit of voter registration. The City Clerk shall prepare an affidavit or declaration of service and retain same in the record of the contest proceedings. The City Clerk shall also provide a copy of the contest statement to each member of the City Council, the City Attorney, and the City Administrator. SECTION 6: Defendant Shall File Answer. (a) Within five days of the date of service of a copy of the contest statement pursuant to Section 4 above, the defendant shall file an answer and may file a cross -contest statement with the City Clerk. All of the provisions of this Resolution, including without limitation, Sections 3 and 4 hereof, shall apply to a contest statement filed by the defendant. (b) No special appearance or demurrer may be taken. All objections shall be contained in the answer., Any appearance whatever of the defendant or any request to the City Clerk,. the City Council or the hearing officer by the defendant or his or .her attorney shall be entered as a general appearance in the contest. (c) If the defendant does not appear, the hearing officer shall note his default, and shall proceed to hear the contest as provided in this Resolution with all convenient speed, and the City Council shall issue its decision thereon. SECTION 7: Appointment of Neutral Hearing Officer. (a) The election contest hearing provided for in Section B of this Resolution shall be conducted by a neutral hearing officer appointed by majority vote of the City Council members present. The - 7 - hearing officer shall be (1) a member of the State Bar of California for a minimum of fifteen years and (2).a former member of the federal or state judiciary or a former federal or state public prosecutor. The hearing officer shall be entitled to payment by the City for his or her services, including reasonable expenses.. The hearing officer shall not be an officer or employee of the city and shall not have any other relationship with the.city. (b) Within seven days of the filing of a contest statement the City Council shall meet to appoint a hearing officer. (c) Upon appointment by the City Council, the hearing officer shall deliver to the City Clerk a statement disclosing any actual or possible conflicts of interest with the parties to the election contest, other. matters which could reasonably be,perceived as affecting the hearing officer's ability to be impartial, and such other matters as may be required by the City, The City Clerk promptly shall serve a copy of the disclosure statement on the parties to the election contest or on their designated counsel of record. (d) A party may challenge the continued service of the hearing officer for cause. If, however, a challenge is raised more than five days after service of the disclosure statement required in subsection (c), the burden is on the challenger to show that the challenge is based upon information that was not previously available to the parties. The City Council, upon the advice of the City Attorney, shall make the final determination of any challenge. Such determination shall take into account the materiality of the facts and any prejudice to the parties to the election contest. The decision will be final. (e) No party to the election contest or* any member of the City Council shall have any ex parte communication with the hearing officer. SECTION 8: Hearing By Neutral Hearing officer. (a) The hearing officer shall, promptly upon expiration of the five-day time period for filing challenges to his or her appointment, or promptly upon the City Councils determination overruling a challenge, designate the time and place of hearing, which time shall be not less than ten nor more than 20 days from the date of the designation setting time and place of.the hearing. (b) The hearing officer shall immediately issue and'serve a notice for the defendant and contestant to appear at the time and place specified. The notice shall be served upon the parties or their designated counsel of record. if a party is not represented by counsel, service upon the party shall be by personal delivery or, if the party cannot be found, by leaving a copy at the place of residence named in his or her affidavit of voter registration. (c) At the request of. any party made not less than five days prior to the hearing, and pursuant to California Government Code section 37104, et seq. or any other applicable legal authority,. the City Council shall issue subpoenas for witnesses to appear and testify .at the hearing. (d) Testimony shall not be received of any illegal votes, unless the contestant or cross -contestant serves on the defendant or cross - defendant, at least three days before the hearing, a written list.of the number of illegal votes, and by whom given, which he or she intends to prove. No testimony may be received of any illegal votes except those that are specified in the list. •If such a list is contained in the contest statement, no further service shall be required'. (e) The hearing shall proceed at the time and place designated, to determine. the contested 'election, and the hearing officer shall have all the powers necessary to the determination thereof. It may adjourn from day to day until the hearing is ended. The hearing shall be held before a certified court reporter. (f) In the hearing and determination of election contests, the. hearing officer shall be governed by the rules of law and evidence governing the determination of questions of law and fact, so far as the same may be applicable. The hearing officer may recommend that the . City Council dismiss the proceedings if the contest statement is insufficient, or for want of prosecution. .(g) In all contests where it appears .from the contest statements filed that a recount is necessary for the proper determination of the contest, the ballots shall be opened and a recount taken at a noticed public meeting, of the votes cast for the various candidates. The notice shall be served on the parties or their designated counsel of record. The recount shall include a tabulation of all names written upon a ballot and which are subject to canvass pursuant to Chapter 7 (commencing with Section 15350) of Division 15 of the California Elections Code. (h) The hearing officer shall continue in session to hear and determine all issues arising in.the contested election. After hearing the proofs and arguments of the parties, and within ten days after the submission of the contest for decision, the hearing officer shall file his or her written findings of fact and conclusions of law with the City Clerk. If it appears that a person other than the defendant has the highest number of legal votes, the hearing officer shall find that person elected. The written findings shall determine each issue raised by the parties in the contest, pronounce a recommendation that the City Counc'i'l either confirm or annul the certification of the result of the - 10 - election by the body or elections official Canvassing the returns thereof, and specifically state the name of the person who was found -to be elected and the reasons therefor. (i) The City Clerk shall promptly serve a copy of the written findings and recommendation of the hearing officer upon .the parties or their designated counsel of record. SECTION 9: .Final Determination by city Council. (a) At a duly noticed City Council meeting held not less than 5 days after the hearing officer files the written findings and recommendation with the City Clerk, the City Council shall convene in a regular or special meeting. At the public City Council meeting, the City Council may, by a majority vote of the membership of the City. Council, reject the hearing officer's recommendation. If there is not a majority vote of the membership of the City Council to reject the recommendation of the hearing officer, the recommendation shall become the decision of the City Council. If the City Council decides to reject the hearing officer's recommendation, it must expressly state in writing its reason(s) for doing so. The parties shall have an opportunity to address the city Council about the hearing officer's findings and recommendation, or any aspect of the proceedings at the meeting before the City Council makes its decision. The City Council may review the record or any portion of the record of the proceedings. prior to making its decision. (b) ,The .City Council shall forthwithdeclare elected the person receiving the highest number of legal votes in the contested election pursuant to subdivision (a), above, and install the newly elected' officer as a member of the City Council. (c) The person declared elected by the City Council is entitled to a certificate of election. If a certificate has not already been issued to him or her, the City Clerk shall immediately make out and deliver to that person a certificate of election signed by him.or her. The City Clerk shall also administer to each person elected the oath of office prescribed in the California Constitution. (d) If an elections official has issued any certificate for the. same office to any other person than the one declared elected by the City Council, or if the Council finds a tie vote, the certificate is annulled by the City Councils decision in the election contest. (e) Whenever an election is annulled or set aside by the decision of the City Council, the commission of office, if any has issued, is void and the office is vacant. SECTION 10: The City Clerk of the City of Vernon shall certify to the passage, approval and adoption of this resolution, and the City Clerk of the City of Vernon shall cause this resolution and the City Clerk's certification to be entered in the File of Resolutions of the Council of this City. APPROVED AND ADOPTED this 10t" day of July, 2012 � A Name: Willi m J. Davis Title:44aytlj�'/ Mayor Pro-Tem.. - 12 - STATE OF CALIFORNIA ) ) ss COUNTY OF LOS ANGELES ) I, Willard G. Yamaguchi, City:Clerk of the City of Vernon, do hereby certify that the .foregoing Resolution, being Resolution No. 2012-116, was duly passed, approved and adopted by the City Council of the City of Vernon at a special meeting of the City Council duly held on Tuesday, July 10, 2012, and thereafter was duly signed by'the Mayor or Mayor Pro-Tem of the City of Vernon. Executed this fi day of July, 2012, at Vernon, California. 4illgar G. a ch City Clerk (SEAL) - 13 - 0 EXHIBIT C RESOLUTION NO. 2012-123 A RESOLUTION OF THE CITY.COUNCIL OF THE CITY OF VERNON ADOPTING CONFLICT OF INTEREST GUIDELINES AND. DISCLOSURE FORM FOR NEUTRAL HEARING OFFICERS FOR ELECTION CONTESTS FILED WITH THE CITY COUNCIL PURSUANT TO VERNON CITY CHARTER SECTION 3.4 WHEREAS, the provisions of Chapter 2 of the City Charter of the City of Vernon state that: "The city shall have full power and authority to adopt, make, exercise and enforce all legislation, laws, and regulations and to take all actions in respect to municipal affairs, without limitation, which may lawfully be adopted, made, exercised, taken or enforced under the Constitution of the State of California subject only to such limitations as may be provided by this Charter"; and WHEREAS, Chapter 3.4 of the City Charter of the City of Vernon provides that "the city council shall be the final judge of election results and the qualifications of its members"; and WHEREAS, on June 18, 2012, an election contest of the June 5, 2012 Special Municipal Election. was filed with the City Council of the City of Vernon invoking its jurisdiction pursuant to Chapter 3.4 of the City Charter of the City of Vernon; and WHEREAS, on June 27, 2012, the City Council of the City of Vernon adopted Ordinance No. 1197 establishing procedures for election contests filed pursuant to Chapter 3.4 of the City Charter of the City of Vernon (codified as Article XII of Chapter 2 of the Vernon Municipal Code).; and WHEREAS, Section 2.90-5 of the Vernon Municipal Code provides that, "The City Council of the City of Vernon may adopt by resolution additional procedures for election contests which shall provide for fair, c transparent, and expedited adjudication consistent with due process and equal protection of the law;" and WHEREAS, on July 10, 2012, the City Council of the City of Vernon adopted Resolution No. 2012-116, establishing additional procedures for election contests filed pursuant to Chapter 3.4 of the City Charter in order to provide for fair, transparent, and expedited adjudication consistent with due process and equal protection of the law; and WHEREAS, Section 7(a) of Resolution No. 2012-116 states that the hearing on an election contest "shall be conducted by a neutral hearing officer appointed by majority vote of the City Council members present. The hearing officer shall be (1) a member of the.State Bar 'of California for a minimum of fifteen years and (2) a former member of the federal or state judiciary or a former federal or state public prosecutor. The hearing officer shall be .entitled to payment by the City for his or her services, including reasonable expenses. The hearing officer shall not be an officer or employee of the city and shall not have any other relationship with the city"; and WHEREAS, Section 7(c) of Resolution No. 2012-116 states: Upon appointment by the City Council, the hearing officer shall deliver to the City Clerk a statement disclosing any actual or possible conflicts of interest with the parties to the election contest, other matters which could reasonably be perceived as affecting the hearing officer's ability to be impartial, and such other matters as may be required by the City. The City Clerk promptly shall serve a copy of the disclosure statement on the parties to the election contest or on their designated counsel of record" and WHEREAS, Section 7(d) of Resolution No. 2012-116 states: "A party may challenge the continued service of the hearing officer for cause. If, however, a challenge is raised more than five days after service of the - 2 - disclosure statement required in subsection (c), the burden is on the challenger to show that then challenge is based upon information that was not available to the parties. The City Council, upon the advice of the City Attorney shall make the final determination of any challenge. Such determination shall take into account.the materiality of the fats and any prejudice to the parties to the election contest. The decision will be final"; and WHEREAS, on July 11, 2012 the election contest filed on June 18, 2012 was re -filed in the form prescribed by Resolution No. 2012-116; and WHEREAS, the City Council of the City of Vernon desires to ensure a fair, transparent, and expedited adjudication of election contests filed with the City Council pursuant to Chapter 3.4 of the City Charter, the City Council of the City of Vernon has determined to adopt a guidelines and required disclosures concerning the neutrality of hearing officers for election contests. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF VERNON AS FOLLOWS: SECTION 1: The City Council of the City of Vernon hereby finds and determines that the recitals contained hereinabove are true and correct. SECTION 2: The City Council of the City of Vernon hereby adopts the attached Conflict of Interest Guidelines and Disclosure Form for Neutral Hearing Officers attached hereto as Exhibit A and incorporated herein by this reference. - 3 - SECTION 3: The City Clerk of the City of Vernon shall certify to the passage, approval and adoption of this resolution, and the City Clerk of the City of Vernon shall cause this resolution and the City Clerk's certification to be entered in the File of Resolutions of the Council of this City. APPROVED AND ADOPTED this 17th day of July, 2012. Name: William J. Davis Title: Ma / Mayor Pro-Tem STATE OF CALIFORNIA ) ) ss COUNTY OF LOS ANGELES ) I, Willard G. Yamaguchi, City Clerk of the City of Vernon, do hereby certify that the foregoing Resolution, being Resolution No. 2012-123, was duly passed, approved and adopted by the City Council of the City of Vernon at a regular meeting of the City Council duly held on Tuesday, July 17, 2012, and thereafter was duly signed by the Mayor or Mayor Pro-Tem of the City of Vernon. Executed this 0 day of July, 2012, at Vernon, California. (SEAL) k - 5 - EXHIBIT A Exhibit A Conflict of Interest Guidelines and Disclosure Form for Neutral Hearing Officers THE HEARING OFFICER MUST ENSURE THAT HE OR SHE HAS NO KNOWN CONFLICT OF INTEREST REGARDING THE ELECTION CONTEST, AND SHOULD ENDEAVOR TO AVOID ANY APPEARANCE OF A CONFLICT OF INTEREST. Pursuant to Resolution No. 2012-1.16, section 7(c) the hearing officer must promptly disclose, or cause to be disclosed any and all actual or potential conflict of interest or relationship or other information, of which the hearing officer is aware, that reasonably could lead a party to the election contest ("Party" or "Parties") to question the hearing officer's impartiality. Thehearing officer should accept appointment to hear an election contest only where the hearing officer believes it can be undertaken without an actual or apparent conflict of interest. Section 7(c) of the resolution provides: Upon appointment by the City Council, the hearing officer shall deliver to the City Clerk a statement disclosing any actual or possible conflicts of interest with the parties to the election contest, other matters which could reasonably be perceived as affecting the hearing officer's ability to be impartial, and such other matters as may be required by the City. The City Clerk promptly shall serve a copy of the disclosure statement on the parties to the election contest or on their designated counsel of record. Upon full disclosure, a Party or the Parties may waive an actual or potential conflict of interest. If the conflict of interest casts serious doubt on the integrity of the process, the hearing officer should withdraw, notwithstanding receipt of a full waiver. The hearing officer's disclosure obligations continue throughout the course of the election contest and require the hearing officer to disclose, at any stage of the election contest, any such interest or relationship that may arise, or that is recalled or discovered. Disclosure must be made to all Parties. . The hearing officer should remain impartial throughout the course of the election contest. Impartiality means freedom from favoritism either by word or action. The hearing officer should be aware of and avoid the potential for bias based on the Parties' backgrounds, personal attributes or conduct during the hearing, or based on the hearing officer's pre-existing knowledge of or opinion about the merits of the dispute being arbitrated. A hearing officer should not have a social or professional relationship with a Party or counsel to a Party to an election contest. If the hearing officer becomes incapable of maintaining impartiality, the hearing officer should withdraw. The hearing officer should perform duties diligently and conclude the hearing as Exhibit A to RESOLUTION ADOPTING CONFLICT OF INTEREST GUIDELINES AND DISCLOSURE FORM FOR NEUTRAL HEARING OFFICERS FOR ELECTION CONTESTS FILED WITH THE CITY COUNCIL PURSUANT TO VERNON CITY CHARTER SECTION 3.4 promptly as the circumstances reasonably permit. The hearing officer should be courteous to the Parties, to their representatives and to the witnesses, and should encourage similar conduct by all participants in the proceedings., The hearing officer should make all reasonable efforts to prevent the Parties, their representatives, or other participants from engaging in delaying tactics, harassment of Parties or other participants, or other abuse or disruption of the process. Section 7(e) of Resolution No. 2oi2-i16 provides: No party to the election contest or any member of the City Council shall have any ex parte communication with the hearing officer. The hearing officer should not discuss an election contest with any Party in the absence of every other Party, except that if a Party fails to appear at a hearing after having been given due notice, the hearing officer may discuss the case with any Party who is present. Whenever the hearing officer receives a written communication concerning the election contest from one Party that has not already been sent to each Party, the hearing officer should do so. As used in the Minimum Required Disclosures 5, 6, 7, 8, g & io, below, "you" includes members of your immediate family (husband, children, mother, father,and siblings), your current employer, and current business partners. MINIMUM REQUIRED DISCLOSURES 1. Have you been a member of the State Bar of California for a minimum of 15 years? ❑ Yes. ❑ No 2. Are you currently or have you ever been a member of the federal or state judiciary? ❑ Yes. Please state the court and your tenure. ❑ No Are you or have you ever been a federal or state public prosecutor? ❑ Yes. Please state the jurisdiction and your tenure. ❑ No 4. Please state your employment for the io years immediately preceding your appointment as hearing officer. Use a separate sheet of paper if necessary. Exhibit A to RESOLUTION ADOPTING CONFLICT OF INTEREST GUIDELINES AND DISCLOSURE FORM FOR NEUTRAL HEARING OFFICERS FOR ELECTION CONTESTS FILED WITH THE CITY COUNCIL PURSUANT TO VERNON CITY CHARTER SECTION 3.4 5. Do you have any actual or potential conflict of interest or relationship, or other information, of which you are aware, that reasonably could lead a party to the election contest to question your impartiality? ❑ Yes. If so, please describe in detail on a separate page. ❑ No Do you have any existing relationship or dealings, besides being nominated for appointment as a hearing officer for the election contest, with the City of Vernon or its elected officials, employees or administrative officers? ❑ Yes. If so, please describe in detail on a separate page. ❑ No 7. Have you had any relationship or dealings with the City of Vernon or its elected officials, employees or administrative officers, within the ten (io) years immediately preceding your nomination for appointment as a hearing officer? ❑ Yes. If so, please describe in detail on a separate page. ❑ No 8. Do you now, or have you at any time, had any relationship or dealings with the parties to the election contest? ❑ Yes. If so, please describe in detail on a separate page. ❑ No g. Do you now, or have you at anytime, had any relationship or dealings with the counsel of record for the parties to the election contest? ❑ Yes. If so, please describe in detail on a separate page. ❑ No io. Do you now, or have you at any time, had any relationship or dealings with the voters whose eligibility to vote in City of Vernon elections is challenged in the election contest? ❑ Yes. If so, please describe in detail on a separate page. ❑ No Exhibit A to RESOLUTION ADOPTING CONFLICT OF INTEREST GUIDELINES AND DISCLOSURE FORM FOR NEUTRAL HEARING OFFICERS FOR ELECTION CONTESTS FILED WITH THE CITY COUNCIL PURSUANT TO VERNON CITY CHARTER SECTION 3.4 OFFICE OF THE CITY CLERIC 4305 Santa Fe Avenue, Vernon. California 90058 Telephone (323) 511 August 13, 2012 The Honorable Debra Wong Yang Gibson Dunn 333 South Grand Avenue Los Angeles, CA 90071-3197 Re: Amendment to Hearing Officer Agreement Dear Hearing Officer Yang: Transmitted herewith is a copy of the fully executed amendment as referenced above, approved by City Council through Resolution No. 2012-151 on August 7, 2012. If you have any questions regarding this matter, please call Kristen Enomoto at (323) 583-8811 ext. 398. Very truly yours, (� Deb rah R. Juarez Records Management Assistant c: Kristen Enomoto Mark Whitworth Purchasing Department Resolution No. 2012-151, 2012-145 Agreement File No. 12-077 E.xclres vdy Indwtiia! AGREEMENT BETWEEN THE CITY OF VERNON AND HEARING OFFICER DEBRA WONG YANG FOR SERVICES AS HEARING OFFICER FOR ELECTION CONTEST Hearing Officer: Responsible Principal for City: Notice Information — Hearing Officer: Notice Information - City: Commencement Date: Termination Date: (Rev. 11-31-12) COVER PAGE Debra Wong Yang Mark Whitworth, City Administrator Debra Wong Yang Gibson Dunn 333 South Grand Avenue Los Angeles, CA 90071-3197 Phone: 213.229.7000 Facsimile: 213.229.7520 City of Vernon 4305 Santa Fe Avenue Vernon, CA 90058 Attention: Mark Whitworth, City Administrator Telephone: (323) 583-8811 ext. 398 Facsimile: (323) 826-1408 July 18, 2012 August 31, 2012, unless extended pursuant to Section 1 Consideration: Total not to exceed $150,000.00 AGREEMENT BETWEEN THE CITY OF VERNON AND HEARING OFFICER DEBRA WONG YANG FOR SERVICES AS HEARING OFFICER FOR ELECTION CONTEST THIS AGREEMENT is made and entered into as of July 19, 2012 ("Effective Date"), by and between the City of Vernon, a California charter City and California municipal corporation ("City"), and Debra Wong Yang ("Hearing Officer') on behalf of Gibson, Dunn & Crutcher LLP ("Gibson Dunn"). City and Hearing Officer are collectively referred to herein as the "Parties." RECITALS A. City desires to have the Hearing Officer, pursuant to City of Vernon Charter Section 3.4, City of Vernon Ordinance No. 1197, City of Vernon Resolution No. 2012-116, City of Vernon Resolution No. 2012-123 and City of Vernon Resolution No. 2012-123 conduct and preside over an election contest hearing relating to the June 5, 2012, election in the City of Vernon. B. Hearing Officer represents she is qualified and capable of furnishing the labor, qualifications, and expertise necessary to perform such Services in accordance with the terms and conditions set forth in this Agreement. NOW, THEREFORE, the Parties agree as follows: Section 1. Term and Time of Performance. (a) This Agreement shall commence upon the Commencement Date listed on the Cover Page, and shall remain and continue in effect through the Termination Date listed on the Cover Page, unless sooner terminated pursuant to the provisions of this Agreement. City may renew this Agreement on a month -to -month basis at its discretion. Section 2. Performance. (a) Hearing Officer shall perform the Services and tasks described and set forth in Section 6 herein below ("Services"). Additional services must be mutually agreed upon in writing signed by both Parties prior to performance of those additional services. (b) Hearing Officer shall at all times faithfully, competently and to the best of her ability, experience, and talent, perform all Services under this Agreement in accordance with the standard of care and skill ordinarily exercised by members of the profession currently practicing in the same locality as the City under similar circumstances and in a manner reasonably satisfactory to City. Hearing Officer shall at all times comply with the highest ethical standards when performing Services for the City. (c) Hearing Officer shall keep itself informed of all local, state, and federal ordinances, resolutions, laws and regulations ("applicable law", herein, which in any manner affect those employed by her or in any way affect the performance of her Services pursuant to this Agreement. Hearing Officer shall at all times observe and comply with all such ordinances, laws and regulations. (d) Hearing Officer will not be compensated for any work performed not specified herein unless City authorizes such work in advance and in writing. 2 Section 3. Compensation. (a) City agrees to compensate Hearing Officer, and Hearing Officer agrees to accept in full satisfaction for the Services required by this Agreement, including fees and expenses, a sum not to exceed the Consideration set forth on the Cover Page, for the period set forth on the Cover Page and more particularly described as follows: i. Hearing Officer shall be compensated at a rate of $990.00 per hour, plus reasonable expenses, to perform all Services described herein. Rachel N. Perahia, an associate attorney who shall assist the Hearing Officer in performing the Services, will perform such Services at a rate of $515.00 per hour. (b) Hearing Officer shall invoice City monthly for Services provided under this Agreement. Invoices shall include the period for which Services were provided, the dates of such Services, a description of the Services provided, and an itemization of expenses incurred for that billing period. Each invoice shall include copies of timesheets and other supporting documents as City may require. (c) Payment of each invoice shall be made by City within thirty (30) days following receipt of each invoice as to all non -disputed fees. If City disputes any of Hearing Officer's fees, it shall give written notice to Hearing Officer within thirty (30) days of receipt of the disputed invoices. Any amounts in dispute shall be withheld until resolution. (d) Change in the scope of services, duties, obligations, durations or total compensation, shall be by written authorization only by the City. Section 4. Responsible Principals. (a) The Responsible Principal set forth on the Cover Page shall be principally responsible for Hearing Officer's obligations under this Agreement and shall serve as principal liaison between City and Hearing Officer. (b) City's Responsible Principal shall be the City Administrator or his designee who shall administer the terms of the Agreement on behalf of City. Section 5. Personnel. (a) Hearing Officer shall have all the necessary knowledge, expertise, skill, professional licenses, certificates, training, and other qualifications required by this Agreement or other applicable law. Hearing Officer shall provide City with said licenses and certificates at the request of City. Section 6. Hearina Officer's Duties and Representations ("Services"). Hearing Officer represents, covenants and agrees as follows: (a) She has the skill, experience and knowledge to fulfill the specific duties of a Hearing Officer, as required and set forth in Ordinance No. 1197, Resolution No. 2012-116, and Resolution No.2012-123, which are attached hereto and incorporated herein as Exhibits A, B and C, respectively. (b) She will fulfill the specific duties of a Hearing Officer, as required and set forth in Ordinance No. 1197, Resolution No. 2012-116, and Resolution No. 2012-123, which are attached hereto and incorporated herein as Exhibits A, B and C, respectively. (c) There are no obligations, commitments, or impediments of any kind that will limit or prevent timely performance of the Services. (d) Hearing Officer presently has no interest and shall not have any interest, direct or indirect, which would conflict in any manner with the performance of the Services contemplated by this Agreement. No person having any such interest shall be employed by Hearing Officer on this matter. Hearing Officer further agrees to, at all times pertinent, abide by the Conflict of Interest Guidelines adopted by the City of Vernon in Resolution No. 2012-123 (attached hereto and incorporated herein as Exhibit C). (e) There is no litigation pending against Hearing Officer and Hearing Officer is not the subject of any criminal investigation or proceeding, and Hearing Officer has never been convicted of a felony. Section 7. Independent Hearing Officer (a) Hearing Officer is and shall at all times remain, as to City, wholly independent. The personnel performing the Services under this Agreement on behalf of Hearing Officer shall at all times be under Hearing Officer's exclusive direction and control. Neither City nor, any of its officers, officials, employees, agents, or volunteers shall have control over the conduct of Hearing Officer or any of Hearing Officer's officers, employees, associates or agents except as set forth in this Agreement. Hearing Officer shall not at any time or in any manner represent that she is in any manner an officer, official, employee, agent, or volunteer of City. Hearing Officer shall not incur or have the power to incur any debt, obligation or liability whatsoever against City, or bind City in any manner. (b) No employee benefits shall be available to Hearing Officer or her associates, officers, employees, or agents in connection with the performance of this Agreement. Except for Consideration paid to Hearing Officer as provided in the Agreement, City shall not pay salaries, wages, or other compensation to Hearing Officer for performing Services hereunder for the City. City shall not be liable for compensation or indemnification to Hearing Officer or its officers, employees, or agents for injury or sickness arising out of performing Services hereunder. (c) Hearing Officer agrees to pay and be responsible for paying all Federal, State and local taxes for compensation received by Hearing Officer from City while performing services for City. (d) The scope of this Agreement does not confer "consultant" status on the Hearing Officer or her associates, officers, employees, or agents; therefore, Hearing Officer is not subject to the public disclosure requirements as a "public official" under the City's conflict of interest code. Only consultants who 1) actually make specified types of government decisions, or 2) who serve as agency staff and in that capacity perform all or substantially all the same duties as a staff member are considered "public officials." 0 Section 8. Termination. (a) Termination Right. City may, at any time, for any reason or for no reason, with or without cause, terminate this Agreement, by serving upon the Hearing Officer at least five (5) calendar days prior written notice. Upon receipt of such notice, Hearing Officer shall immediately cease all work under this Agreement, unless the notice provides otherwise. (b) In the event of termination or cancellation of this Agreement by City, due to no fault or failure of performance by Hearing Officer, Hearing Officer shall be paid based on the percentage of work satisfactorily performed at the time of termination. In no event shall Hearing Officer be entitled to receive more than the amount that would be paid. to Hearing Officer for the full performance of the Services required by this Agreement as set forth on the Cover Page to this Agreement. Hearing Officer shall have no other claim against City by reason of such termination, including any claim for compensation. (c) Actions Subsequent to Termination. In the event of termination of this Agreement, Hearing Officer shall deliver all Confidential Information, as defined in Section 13 below, to City within thirty (30) days after the termination of this Agreement. Hearing Officer shall also take all such other action as City reasonably requires and shall cooperate with City to effectuate an orderly and systematic termination of Hearing Officer's duties and activities hereunder. (d) All of the terms and conditions in the Agreement related to payment, indemnification, dispute resolution and waiver shall survive termination of this Agreement. (e) The Hearing Officer and Gibson Dunn also has the right to withdraw from this Agreement if the City fails to honor the terms of this Agreement, the City fails to make payment of any statements in a timely manner, the City fails to cooperate on a material matter, or any fact or circumstance occurs that would render Gibson Dunn's continuing relationship unlawful or unethical. If Gibson Dunn elects to withdraw, the City will take all steps necessary to free Gibson Dunn of any obligation to perform further services, including the execution of any documents necessary to complete withdrawal. Notwithstanding such termination, the City will remain obligated to pay Gibson Dunn for all services provided and to reimburse Gibson Dunn for all costs and expenses paid or incurred on the City's behalf. Section 9. Limitation of City's Liability. (a) City's liability on any kind of claim for any loss or damage arising out of, in connection with, or resulting from this Agreement, shall in no case exceed the amount that would be paid to Hearing Officer for the full performance of the Services required by this Agreement as set forth on the Cover Page to this Agreement. In no event shall City be liable for anticipated profits or for incidental, consequential or punitive damages. City shall not be liable for penalties of any description. (b) The City agrees that Gibson Dunn shall not have any liability to the City in connection with this Agreement except for liability for losses, claims, damages, liabilities or expenses incurred by the City that result from professional malpractice, gross negligence or willful misconduct. (c) Gibson Dunn is a California registered limited liability partnership. As a result, with certain possible limited exceptions, none of which may be applicable, the partners of Gibson Dunn are not liable or accountable, directly or indirectly, including by way of indemnification, contribution, assessment, or otherwise, for debts, obligations, or liabilities of or chargeable to Gibson Dunn or another partner in the firm, whether arising in tort, contract, or otherwise, that are incurred, created, or assumed by the firm, by reason of being a partner or acting in the conduct of the business or activities of the firm. (d) The provisions of this Section are in addition to any rights that we may have at common law or otherwise, including but not limited to any right of contribution. Section 10. Records and Inspections. Hearing Officer shall maintain full and accurate records with respect to all matters covered under this Agreement for Records Retention Period. The records shall be maintained in such a fashion as to facilitate preparation of a record of proceedings in the event of judicial proceedings relative to the election contest. City shall have access, without charge, during normal business hours to such records, and the right to examine, audit, and take full possession of the same, and to make copies and transcripts therefrom, and to inspect all documents, proceedings and activities. Section 11. Default. Hearing Officer's failure to comply with the provisions of this Agreement shall constitute a default. In the event that Hearing Officer is in default under the terms of this Agreement, City shall have no obligation or duty to continue compensating Hearing Officer for any work performed after the date of default and can terminate this Agreement immediately by written notice to Hearing Officer. Section 12. Indemnification. Hearing Officer and the City each agree to defend, indemnify, protect and hold harmless each other, its officers, officials, employees, agents, and volunteers from and against any and all claims, suits, demands, actions, losses, damages, judgments, settlements, penalties, fines, defensive costs or expenses, including without limitation, interest, attorneys' fees and expert witness fees, or liability of any kind or nature arising out of or attributable to the negligent acts or omissions or willful misconduct of Hearing Officer, or the City which in any way arise out of, result from, or are in any way related to the performance or non-performance of this Agreement, excepting only liability arising out of the sole negligence or willful misconduct of each other, their officers, officials, employees, agents, or volunteers. THE PROVISIONS OF THIS SECTION SHALL NOT TERMINATE OR EXPIRE, SHALL SURVIVE THE EXPIRATION OR EARLIER TERMINATION OF THIS AGREEMENT The obligations in this section are in addition to Contractor's duty to provide insurance and shall not be limited by any limitation on the amount or type of insurance coverage carried by Contractor. Section 13. Insurance. Hearing Officer, through Gibson Dunn, maintains and shall continue to maintain for the term of this agreement as reflected on the Cover Page, and any extension thereof, a commercial general liability policy (bodily injury and property damage), a worker's compensation/employer's liability policy; and business automobile liability insurance policy with respect to employees and vehicles assigned to the performance of work under this Agreement. Hearing Officer, through Gibson Dunn, shall maintain in full force and effect professional liability insurance in amounts not less than two million dollars ($2,000,000) per occurrence/aggregate. Section 14. Assignment and Subcontracting. Except for the assistance of an Associate Attorney, Hearing Officer shall not assign or attempt to assign any portion of this Agreement, or subcontract any required performance hereunder, without the prior written approval of City. Any assignment or subcontract made in violation of this section is invalid and void. Section 15. Arbitration and Venue. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, shall be determined by arbitration in Los Angeles, California. The arbitration shall be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures. The arbitrator shall be a retired judge. All decisions of the arbitrator shall be in writing, and the arbitrator shall provide written reasons for their decision. The arbitration decision shall be final and binding on the Parties. Judgment on the award may be entered in any court having jurisdiction pursuant to this Agreement. This clause shall not preclude Parties from seeking provisional remedies in aid of arbitration from a court having jurisdiction pursuant to this Agreement. The exclusive jurisdiction and venue under this Agreement shall be the Superior Court of California, Los Angeles County. Section 16. Attorneys Fees. In the event .a dispute, claim or litigation arises regarding this Agreement, the prevailing party shall be entitled to reimbursement for reasonable attorneys fees and actual costs, which may be set by the arbitrators or the court in the same action or in a separate action brought for that purpose, in addition to any other relief which is obtained. Section 17. Governing Law. This Agreement shall be interpreted and enforced according to, and the Parties rights and obligations governed by, the domestic law of the State of California, without regard to its laws regarding choice of applicable law. Section 18. Entire Agreement and Modifications. This Agreement, including attachments incorporated herein by reference, represents the entire integrated agreement and understanding between the Parties, and supersedes all prior or contemporaneous negotiations, representations, agreements, understandings and statements, written or oral. This Agreement may only be modified in writing and signed by both Parties. Section 19. Waiver. The waiver by either party of a breach or default by the other party shall not be deemed a waiver of any different or later breach whether of the same or other covenant or condition; nor shall any delay or omission by either party to exercise any right it may have hereunder operate as a waiver of any breach or default of such a right. The failure of either party to this Agreement to exercise any of its rights under this Agreement does not constitute a breach thereof and shall not be deemed to be a waiver of such rights or a waiver of any subsequent breach. 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. Section 20. Force Maieure. Neither party shall be considered in default of any of its obligations under this Agreement when a failure of performance shall be due to an uncontrollable force. The term "uncontrollable force" shall mean flood, earthquake, storm, fire, lightning, epidemic, war, riot, civil disturbance or disobedience, federal, state, or municipal action, statute, ordinance, or regulation, embargoes of the United States Government or any other government, which by exercise of due diligence such party could not reasonably have been expected to avoid and by exercise of due diligence has been unable to overcome. Either party rendered unable to fulfill any of its obligations under this Agreement by reason of an 7 uncontrollable force shall give written notice within five (5) business days of such fact to the other party and shall exercise due diligence to remove such inability with all reasonable dispatch. Section 21. Notices. All notices, approvals, consents and other communications between the Parties shall be in writing, and shall be sent by certified mail (return receipt requested) or other delivery service which provides evidence of delivery, using the address set forth on the Cover Page under "Notice Information - City" or "Notice Information — Vendor," as appropriate, or at such other address as may be furnished by either party to the other in writing. Mailed notices will be deemed communicated as of the day of receipt. Section 22. Cover Page and Exhibits. The Cover Page and all documents referenced as exhibits in this Agreement are hereby incorporated in this Agreement. In the event of any material discrepancy between the express provisions of this Agreement and the provisions of any document incorporated herein by reference, the provisions of this Agreement shall prevail. Section 23. Headings. Headings used in this Agreement are for convenience and ease of reference only and shall not affect the interpretation of the Agreement. Section 24. Survival of Terms. All of the terms and conditions in this Agreement related to payment, confidentiality, indemnification, dispute resolution and waiver shall survive termination of this Agreement. Section 25. Severability. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be valid under applicable law. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions shall nevertheless continue in full force and effect, and shall in noway be affected, impaired or invalidated. Section 26. Authority to Execute This Agreement. The person or persons executing this Agreement on behalf of Hearing Officer warrants and represents that he or she has the authority to execute this Agreement on behalf of Hearing Officer and has the authority to bind Hearing Officer to the performance of its obligations under this Agreement. [Signatures Begin on Next Page]. 8 IN WITNESS WHEREOF, the Parties have signed this Agreement as of the date stated in the introductory clause. City of Vernon, a California charter City HEARING OFFICER, Debra Wong Yang. on and California municipal corporation behalf of Gibson, Dunn & Crutcher LLP By ' By: q�IX7p`%/ William Davis, Name: Debra Wong Yang Mayor Pro Tem Title:. Partner 2 EXHIBIT A ORDINANCE NO. 1197 AN ORDINANCE OF THE CITY,COUNCIL Off' THE CITY OF VERNON AMENDING CHAPTER 2, ARTICLE XII OF THE VERNON CITY CODE ESTABLISHING _PROCEDURES FOR ELECTION CONTESTS Whereas, the provisions of Chapter 2 of the City Charter of the City of Vernon state that: "The city shall have full power and authority to adopt, make, exercise and enforce all legislation, laws, and regulations and to take all actions in respect to. municipal affairs, without limitation, which may lawfully be adopted, made, exercised, taken or enforced under the Constitution of the State of California subject.only.to such limitations as may be provided by this Charter and Whereas Chapter.3.4 of the City Charter of the City of Vernon provides that "the 'city council shall be the final judge of election results and the qualifications of its members,,; and Whereas Chapter 5.3 of the City Charter of the City of Vernon.provides, in part: "The city councilis authorized to adopt by ordinance procedures governing municipal electionsn; and Whereas Chapter 4.3 of the City Charter of the City of Vernon provides that, "[a]n ordinance calling or otherwise . relating to an election" shall take effect upon.adoption, and that such an ordinance may be introduced and adopted at, one.and the same regular or special meeting; and Whereas Chapter 4.4 of the City.Charter of the City of Vernon provides: "An ordinance declared by the city council to be necessary as an emergency measure for the immediate preservation of the public peace, health, or safety, and 1 containing a statement of the reasons for its urgency, may be adopted in the manner provided by this Charter except that such emergency ordinance.may be introduced and adopted at one and the same regular or special meeting,'and shall take.effect immediately"; and Whereas, on June 18, 2012, an election contest of the June 5, 2012 Special Municipal Election was filed with,the City Council of the City of.Vernon invoking its jurisdiction pursuant to Chapter 3.4 of the City Charter of the City of Vernon; Whereas, the City Council of the City of Vernon has determined that the enactment of an ordinance establishing procedures for election contests filed pursuant to Chapter"3.4 of the City Charter of the City of Vernon is within the power and authority conferred on the City of Vernon.by virtue of its Charter and the Constitution of the State of California; and Whereas, the City Council of.the City of, Vernon has determined that the enactment of an ordinance establishing procedures for elections contests filed pursuant to Chapter 3.4 of the City Charter of the City of Vernon is in the best interests of the residents of the City of Vernon as well as the. thousands of employees who work in the City of Vernon, THE CITY COUNCIL OF THE CITY OF VERNON HEREBY ORDAINS: Section 1: The. foregoing recitals are all true and correct. Section 2: .The title of Article XII of Chapter 2 of the Vernon Municipal Code is hereby amended to read as follows: CITY COUNCIL ELECTION CONTESTS. 2 Section 3: Article XII of Chapter 2 of the Vernon Municipal Code is hereby amended to provide as follows: ARTICLE XII CITY COUNCIL ELECTION CONTESTS TABLE OF CONTENTS Section 2.90. Exercise of Jurisdiction by the City Council Section 2.90-1. Declaration of Election Section 2.90-2. Certificate of Election and Oath of Office Section 2.90-3. Time for Filing Election Contest Section j.90-4. Grounds for Election Contest Section'2.90-5. Procedures for Election Contest Section 2.90-6. Statement of the Reasons for urgency Section 2.90. Exercise of Jurisdiction by the City Council The City Council shall exercise its jurisdiction under Chapter 3.4 of the City Charter of the City of Vernon over election contests in accordance with the procedures set forth in this article. Section 2.90-1. Declaration of Election Notwithstanding any provision of law, 'including California Elections Code 5'10263, § 12064 and § 15400, as they now exist or may hereafter be amended, the City Council of the City of Vernon shall not'declare the -results of an election or install any person 3 in office as a member of the City Council of the City of Vernon, if an election contest has been filed with the City Council pursuant to Chapter 3.4 of the Charter of the City of Vernon and this article. The issuance of a Declaration of Election shall not prevent the filing of an election contest pursuant to•Chapter 3.4 of the Charter of the City of Vernon and this article. Section 2.9U-2. Certificate of Election and Oath of Office_ Notwithstanding any provision of law, including California Elections Code § 10265 and § 15401, as they now exist or may hereafter be amended, the elections official of the.City of Vernon shall not sign or deliver to any person a certificate of election or administer an oath of office as prescribed in the California Constitution if an election contest has. been filed with the City Council pursuant to Chapter 3.4 of the Charter of the City of Vernon and this article. The delivery of a certificate of election and administration of an oath of office shall not prevent.the filing of an election contest pursuant to Chapter 3.4 of the Charter of the City of Vernon and this article. section 2.90-3. Time for Filing Election Contest An elector (as defined in the California Elections Code) of the City of Vernon.shall file the statement of contest within 10 days of the certification of the result of the election by the body or elections official canvassing the returns thereof. For a` consolidated election,. the. 10 days shall run from the date the . County elections official conducting the election prepares the certified statement of the results pursuant to the California Elections Code. A statement of contest filed prematurely shall be deemed filed within 10 days of certification as set forth above. 1 4 Section 2.90-4'. Grounds for Election Contest (a) Any elector (as defined in the California Elections Code) of the City of Vernon may contest any election held therein for any of the following causes: 1. That the precinct board or.any member thereof was guilty of malconduct. 2. That -the defendant who has been declared elected to an office was not, at the time of the election, eligible to that office. 3. That the defendant has given to any elector or member of a . precinct board -any bribe or reward, or has offered any bribe or reward for the purpose of procuring his or her election, or has committed any other offense against the elective franchise defined in Division 18 (commencing with Section 18000) of the California Elections Code. 4. That illegal votes were cast, including, without limitation, votes by persons) who were not eligible to vote in City of Vernon Elections. 5. That eligible voters who attempted to vote in accordance with the laws.of the state were denied their right'to vote. 6. That the precinct board in conducting the election or in canvassing the returns, made .errors sufficient to change the result of the election as to any person. 7. That there was an error in the vote -counting programs or summation of ballot counts. (b) Definitions.. 5 "Defendant" means that person whose election is contested or those. persons receiving an equal and highest number of votes, other than the.elector filing the contest, where the body canvassing the returns declares that no one person has received the highest number of votes for the contested office. . "Precinct board° means the board appointed by the elections official to serve at a single precinct or a consolidated precinct. "Precinct board," when used in relation to proceedings taking place after the polls have closed, likewise includes any substitutive canvassing and counting board that may have been appointed to take the place of the board theretofore serving. section.2.90-5. Procedures for Election contest The City Council of the City of Vernon may adopt.by resolution additional procedures for election contests which shall provide for fair, transparent, and expedited adjudication consistent with due process and equal protection of the law. Section 2.90-6. statement of the Reasons for Urgency On June 18, 2012, an, election contest of the June 5, 2012 Special Municipal Election in the City of Vernon was filed with the City Council of the City of Vernon invoking its jurisdiction pursuant to Chapter 3.4of the City Charter of the. City of. Vernon.. The City of Vernon has not enacted an ordinance establishing procedures for election contests. Such an ordinance is necessary for the immediate preservation of the public peace, health, and safety in order to, consistent with fairness and due process, 1) give full.and expeditious effect to the will.of Vernon's qualified voters as expressed in the June 5, 2012 Special Municipal Election, 2) provide certainty to the residents of the City of Vernon about the results of the June 5, 2 2012 special Municipal Election and seat the legitimately elected candidate at the earliest possible time, 3'1 avoid disruption of city government by prolonged uncertainty about who was legitimately'elected at the June 5, 2012 Special Municipal Election, 4) avoid disruption of city business with third parties by prolonged uncertainty about who was legitimately elected at the June 5, 2012 Special'Municipal Election,.5) avoid Vernon residents and businesses losing confidence in the integrity of City of Vernon elections caused by prolonged uncertainty about who was legitimately elected at the June 5, 2012 Special Municipal Election, 6) remove .expeditiously any cloud of impropriety from the electoral process for the June 5, 2012 Special Municipal Election in the City of Vernon, 7) provide for the expeditious adjudication of the pending election contest consistent with due process and equal protection of the law, 8) authorize procedures to ensure fairness, transparency, and integrity in the adjudication of City Council election contests, and 9) instill confidence in City of Vernon residents about the integrity of the City's electoral process so that city residents will vote in -city elections and run for .city office. Section 4: Severability. if any part of this Ordinance is held to be invalid for any reason, such decision shall not affect the validity of the remAining portion of this Ordinance, and this City Council hereby declares that it would have passed the remainder of this Ordinance if such invalid portion thereof had been deleted. Section 5: Book of Ordinances. The City Clerk shall attest and certify to the adoption of this ordinance and shall cause this Ordinance and the City Clerk's certification to be entered in the Book of Ordinances of the Council of this City. The City Clerk shall cause this ordinance to be published or posted as required by law. 7 SECTION 6: Effective Date. in accordance with Chapter 4.3 and Chapter 4.4 of the Charter of the City of Vernon, this ordinance shall take effect immediately upon its adoption. APPROVED AND ADOPTED this 27th day of June 2012 Name: William J. Davis Title: 'fftfi;? / Mayor Pro-Tem 9 STATE OF CALIFORNIA ) ) ss COUNTY OF LOS ANGELES ) . I, WILLARD G. YAMAGUCHI, City Clerk of the City.of Vernon, do hereby certify that the foregoing Ordinance, being Ordinance No. 1197, was duly passed and regularly introduced at a special meeting of the City Council of the City of Vernon, held in the City of Vernon on Wednesday, June 27, 2012, and adopted at that meeting by the following vote: AYES: Councilmembers: Mayor Pro-Tem.Davis, McCormick, Ybarra NOES: Councilmembers: None ABSENT: Councilmembers: Maisano And thereafter was duly signed by the Mayor.or Mayor Pro-Tem of the City of Vernon. Executed this L day of July, ,412, at Velrpon, Cali City (SEAL) 7 EXHIBIT B RESOLUTION NO. 2011-116 A RESOLUTION OF THE CITY COUNCIL OF THE CITY .OF VERNON ADOPTING RULES AND PROCEDURES TO GOVERN ELECTION CONTESTS FILED WITH THE CITY COUNCIL PURSUANT TO VERNON CITY CHARTER SECTION 3.4 WHEREAS, the provisions of Chapter 2 of the City Charter of the City of Vernon state that: '"The city shall have full power and authority to adopt, make, exercise and enforce all legislation, laws, and regulations and to take all actions in respect to municipal affairs, without limitation, whichmay lawfully be adopted, made, exercised, taken or enforced under the Constitution of the State of California subject only to such limitations as may be provided by.this Charter"; and WHEREAS, Chapter 3.4 of the City Charter of the City of Vernon provides that "the city council shall be the final judge of election .results and the qualifications of its members"; and WHEREAS, on June 18, 2012, an election contest of the June 5, 2012 Special Municipal Election was fined with the City Council of the City of Vernon invoking its jurisdiction pursuant to Chapter 3.4 of the City Charter of the 'City of Vernon; and WHEREAS, on June 27, 2012, the City Council of.the City of Vernon adopted Ordinance No. 1197 establishing procedures for election contests filed pursuant to Chapter 3.4 of the City Charter of the City of Vernon (codified as Article XII of Chapter 2 of the Vernon Municipal Code); and WHEREAS, Section 2.90-5.of the Vernon Municipal Code provides' that, "The City Council of the City of Vernon may adopt by resolution additional procedures for election contests which shall provide for fair, transparent, and expedited adjudication consistent with due process and - 1 - equal protection of the law;" and WHEREAS, the City Council of the City of Vernon has determined that the enactment of additional procedures for election contests filed pursuant to Chapter 3.4 of .the City Charter, which provide for fair, transparent, and expedited adjudication consistent with due process and equal protection of the law is in the best.interests of the residents of the City of Vernon as well as the thousands of employees who work in the City of Vernon. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF VERNON AS,FOLLOWS: SECTION 1: The City Council of the City of Vernon hereby finds and determines that the recitals contained hereinabove are true and correct. SECTION 2: General Provisions. (a) The election contest provisions of this Resolution shall apply to all election contests filed with, and determined by, the City Council of the City of.Vernon pursuant to City Charter Chapter 3.4 and Ordinance No. 1197. These provisions shall apply to contests concerning the election of candidates for city office, as well -as municipal ballot measure elections insofar as they can be made applicable. (b) When used in this Resolution, "'contestant" means any elector in the City of Vernon initiating -an election contest with the City Council. "Defendant" means that person whose election is contested or those persons receiving an equal and highest number of votes, other than the contestant, where the body canvassing the returns declares that no one person has received the highest number of votes for the contested office. 2 - (c) When used in this Resolution,. "precinct board" means the board appointed by the elections official to serve at a single precinct or a consolidated precinct including a special counting or canvassing board pursuant to California Elections Code Section 15102. . "Precinct board," when used in relation to proceedings taking place after the, polls have closed, likewise includes any substitutive canvassing and counting board that may have been appointed to take the place of the board theretofore serving. (d) When used in this Resolution, "City Council" means the City Council of the City of Vernon. (e) No irregularity or improper conduct in.the proceedings of the precinct board members, or any of them, or of the elections official is malconduct that avoids an election, unless the irregularity or improper conduct is such as to procure the defendant to be.declared.either elected or one of those receiving an equal and highest number of votes where no one person has received the highest number of votes. (f) An election shall not be set aside on account of illegal votes, unless it appears that a number of illegal votes has been given to the person whose right to the office is contested or who has been certified as having tied for first place, which, if taken from him or her, would reduce the number of his or her legal votes below the number of votes given to -some other.person for the same office, after deducting therefrom the illegal votes which may be shown to have been given to that other person.' (g) An election shall not be set aside on account of eligible voters being denied the right to vote, unless it appears that a sufficient number of voters were denied the right to vote as to change the result as to whom was. elected or received an equal and highest 3 - number of votes where no one person has received the highest number of votes. (h) A City Council member who is a contestant or defendant in an election contest before the City Council may not in any way participate in the deliberation, decision -making or administration of the election contest. W A party to an election contest may agree in.writing to service of documents, notices and other papers by email or. facsimile. (7) when service on a party is required in connection with an election contest, an affidavit or declaration of service shall be filed with the City Clerk and retained in the record of the contest proceedings. SECTION 3: Grounds for Election contest. Any elector (as defined in the California Elections Code) of the City of Vernon may contest any election held therein for any of the following causes: (a) That the precinct board or any member thereof or the elections official was guilty of malconduct. (b) That the defendant who has been declared elected to an office was not, at the time of the election, eligible to that office. (c) That the defendant has given to any elector or member of a precinct board any bribe'or reward, or has offered any bribe or reward for the purpose of procuring his election, or has committed any other'offense against the elective franchise defined in Division 18 (commencing with Section 18000) of the California Elections Code. �t (d) That illegal votes were cast, including, without limitation, votes by person(s) who were not eligible to vote in City of Vernon elections. (e) That eligible voters who attempted to vote in accordance with the laws of the state were denied their right to vote (f) That the precinct board or the elections official in conducting the election or in canvassing the returns, made errors sufficient to change the result of the election as to any person who has been determined to elected, or to have received an equal and highest number of votes where no one person has received the highest number of votes. (g) That there was an.error in the vote -counting programs or summation of ballot counts. SECTION 4: Form and Timing of Contest Statement. (a) When an elector of the City.of Vernon contests any election pursuant to City Charter section 3.4 and Ordinance No. 1197, he or she shall file with the City Clerk a written statement setting forth specifically: (1) The name of the contestant and that he or she is an elector of the City of Vernon. (2) The name of the defendant. (3) The office or measure. (4) The date of the election. (5) The particular grounds of contest and the subsection of Section 2 of this Resolution under which the statement is filed. (6) The date of the certification of the result of the election by the body or, elections official canvassing the - 5 - returns thereof. (b) The contestant shall file the statement of contest within ten days of the certification of the result of the election by the body or elections official canvassing the.retutns thereof. For a consolidated election, the ten days shall run from the date the County elections official conducting the election executes the certified statement of the results pursuant to the California Elections Code. A statement of contest filed.prema.turely shall - be deemed filed within ten days of certification as set forth above. (c) A statement of the grounds of contest shall not be rejected, nor the proceedings dismissed, for want of form, if the grounds of contest are alleged with such certainty as will advise the defendant of the particular proceeding or cause.for which the election is contested. (d) When the reception of illegal votes is alleged as a cause of contest, it is sufficient to state generally that in one or more specified voting precincts illegal votes were given to the defendant, which, if taken from him or her, will reduce the number of his or her legal votes below the number of legal votes given to some other person forr the same office'. (e) When irregularity or improper conduct in the proceedings of the precinct board members, or any of them, or of the elections official is alleged as a cause of contest, the contest statement shall state the specific nature of the mistake, error, misconduct, -or other, cause of contest. SECTION 5: City Clerk's Duties Upon riling of Statement of Contest. When the contest statement is filed with the City Clerk, the City Clerk shall serve on the defendant a copy of the contest.statement, - 6 - along with a complete copy of this Resolution and Ordinance No. 1197. Service shall be by personal delivery to the defendant or, if the defendant cannot be found, by leaving a copy at the place of residence named in his or her affidavit of voter registration. The City Clerk shall prepare an affidavit or declaration of service and retain same in the record of the contest proceedings. The City Clerk shall also provide a copy of the .contest statement to each member of the City Council, the City Attorney, and the City Administrator. SECTION 6: Defendant Shall File Answer. (a) Within five days of the date of service of a copy of the contest statement pursuant to Section 4 above, the defendant shall file an answer and may file a cross -contest statement with the City Clerk. Ali of the provisions of this Resolution, including without limitation, Sections 3 and 4 hereof, shall apply to a contest statement filed by the defendant. (b) No special appearance or demurrer may be taken. All objections shall be contained in the answer.. Any appearance whatever of the defendant or any request to the City Clerk,. the City Council or the hearing officer by the defendant or his or.her attorney shall be entered as a general appearance in the contest. (c) If the defendant does not appear, the hearing officer shall note his default, and shall proceed to hear the contest as provided in this Resolution with all convenient speed, and the City Council shall issue its decision thereon. SECTION 7: Appointment of Neutral Hearing Officer. (a) The election contest hearing provided for in Section 8 of this Resolution shall be conducted by a neutral hearing officer appointed by majority vote of the City Council members present. The - 7 - hearing officer shall be (1) a member of the State Bar of California for a minimum of fifteen years and (2),a former member of the federal or state judiciary or a former federal or state public prosecutor. The hearing officer shall be entitled to payment by the City for his or her services, includingreasonable expenses. The hearing officer shall not be an officer or employee of the city and shall, not have any other relationship with the city. (b) within seven days of the filing of a contest statement the City Council shall meet to appoint a hearing officer. (c) Upon appointment by the City Council, the hearing officer shall deliver to the City Clerk a statement disclosing any actual or possible conflicts of interest with the parties to the election contest, other matters which could reasonably be,perceived as affecting the hearing officer's ability to.be impartial, and such other matters as may be required by the City. The City Clerk promptly shall serve a copy of the disclosure statement on the parties to the election contest or on their designated counsel of record. (d) A party may challenge the continued service of the hearing officer fbr cause, If, however, a challenge is raised more than five days after service of the disclosure statement required in subsection (c), the burden is on the challenger to show that the challenge is based upon information that was not previously available to the parties. The City Council, upon the advice of the City Attorney, shall make the final determination of any challenge. Such determination shall take into account the materiality of the facts and any prejudice to the parties to the election contest. The decision will be final. (e) No party to the election contest or'any member of the City Council shall have any ex parte communication with the hearing officer. SECTION 8: Hearing By Neutral Hearing officer. (a) The hearing officer shall, promptly upon expiration of the five-day time period for filing challenges to his or her appointment, or promptly upon the City Council's determination overruling a challenge, designate the time and place of hearing, which time shall be not less than ten nor more than 20 days from the date of the designation setting time and place of the hearing. (b) The hearing officer shall immediately issue and'serve a notice for the defendant and contestant to appear at the time and place specified. The notice shall be served upon the parties or their designated counsel of record. If a party is not represented by counsel, service upon the party shall be by personal delivery or, if the party cannot be found, by leaving a copy at the place of residence named in his or her affidavit of voter registration. (c) At the request of. any party made not less than five days prior to the hearing, and pursuant to California Government Code section 37104, et seq. or any other applicable legal authority,. the City Council shall issue subpoenas for witnesses to appear and testify .at the hearing. (d) Testimony shall not be received of any illegal votes, unless the contestant or cross -contestant serves on the defendant or -cross - defendant, at least three days before the hearing, a written list.of the number of illegal votes, and by whom given, which he or she intends to prove. No testimony may be received of any illegal votes except those that are specified in the list. -if such a list is contained in the contest statement, no further service shall be required'. (e) . The. hearing shall proceed at the time and place -designated, to determine. the contested 'election, and the hearing officer shall have all the powers necessary to the determination thereof. It may adjourn from day to day until the hearing is ended. The hearing shall be held before a certified court reporter. (f) In the hearing and determination of election contests, the hearing officer shall be governed by the rules of law and evidence governing the determination_ of questions of law and fact, so far as the same may be applicable. The hearing officer may recommend that the City Council dismiss the proceedings if the contest statement is insufficient, or for want of prosecution. (g) In all contests where it appears .from the contest statements filed that a recount is necessary for the proper determination of the contest, the ballots shall be opened and a recount taken at a noticed public meeting, of the votes cast for the various candidates. The notice shall be served on the parties or their designated counsel of record. The recount shall include a tabulation of all names written upon a ballot and which are subject to canvass pursuant to Chapter 7 (commencing with Section 15350) of Division 15 of the California Elections Code. (h) The hearing officer shall continue in session to hear and determine all issues arising in.the contested election. After hearing the proofs and arguments of the parties, and within ten days after the submission of the contest for decision, the hearing officer shall file his or her written findings of fact and conclusions of law with the City Clerk: If it appears that a person other than the defendant has the highest number of legal votes, the hearing officer shall find that person elected. The written findings shall determine each issue raised by the parties in the contest, pronounce a recommendation that the City Council either confirm or annul the certification of the result of the - 10 - election by the body or elections official canvassing the returns thereof, and specifically state the name of the person who was found -to be elected and the reasons therefor. (i) The City Clerk shall promptly serve a copy of the written findings and recommendation of the hearing officer upon the parties or their designated counsel of record SECTION 9: .Final Determination by City Council. (a) At a duly noticed City Council meeting held not less than 5 days after the hearing officer files the written findings and recommendation with the City Clerk, the City Council shall convene in a regular or special meeting, At the public City Council meeting, the City Council may, by a majority vote of the membership of the City. Council, reject the. hearing officer's recommendation. If there is not a majority vote of the membership of the City Council to reject the recommendation of the hearing officer, the recommendation shall become the decision of the City Council. If the City Council decides to reject the hearing officer's recommendation, it must expressly state in writing its reason(s) for doing so. The parties shall have an opportunity to address the City Council about the hearing officer's findings and recommendation, or any aspect of the proceedings at the meeting before the City Council makes its decision. The City Council may review the record or any portion of the record of the proceedings prior to making its decision. (b) ,The .City Council shall forthwith. declare elected the person receiving the highest number of legal votes in the contested election pursuant to subdivision (a), above, and install the newly elected' officer as a member of the City Council. (c) The person declared elected by the City Council is entitled to a certificate of election. If a certificate has not already been issued to him or her, the City Clerk shall immediately make out and deliver to that person a certificate of election signed by him.or her. The City Clerk shall also administer to each person elected the oath of office prescribed in the California Constitution. (d) If an elections official has issued any certificate for the. same office to any other person than the one declared elected by the City Council, or if the Council finds a tie vote, the certificate is annulled by the City Council's decision in the election contest. (e) whenever an election is annulled or set -aside by the decision of the City Council, the commission of office, if any has issued, is void and the office is vacant. SECTION 10: The City Clerk of the City of Vernon shall certify to the passage, approval and adoption of this resolution, and the City Clerk of the City of Vernon shall cause this resolution and the City Clerk's certification to be entered in the File of Resolutions of the Council of this City. APPROVED AND ADOPTED this 10' day of July, 2012 r i Name: Willi m J. Davis Title:-Ma9ge/ Mayor Pro-Tem.. - 12 - STATE OF CALIFORNIA ) ) ss COUNTY OF LOS ANGELES ) I, Willard G. Yamaguchi, City:Clerk of the City of Vernon, do hereby certify that the .foregoing Resolution, being Resolution No. 2012-116, was duly passed, approved and adopted by the City Council of the City of Vernon at a special meeting of the City Council duly held on Tuesday, July 10, 2012, and thereafter was duly signed by the Mayor or Mayor Pro-Tem of the City of Vernon. Executed this day of July, 2012, at Vernon, California. 64 z illar G. .lay ag7 ch City Clerk (SEAL) 0 - 13 - EXHIBIT C RESOLUTION NO. 2012-123 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VERNON ADOPTING CONFLICT OF INTEREST GUIDELINES AND DISCLOSURE FORM FOR NEUTRAL HEARING OFFICERS FOR ELECTION CONTESTS FILED WITH THE CITY COUNCIL PURSUANT TO VERNON CITY CHARTER SECTION 3.4 WHEREAS, the provisions of Chapter 2 of the City Charter of the City of Vernon state that: "The city shall have full power and authority to adopt, make, exercise and enforce all legislation, laws, and regulations and to take all actions in respect to municipal affairs, without limitation, which may lawfully be adopted, made, exercised, taken or enforced under the Constitution of the State of California subject only to such limitations as may be provided by this Charter"; and WHEREAS, Chapter 3.4 of the City Charter of the City of Vernon provides that "the city council shall be the final judge. of election results and the qualifications of its members"; and WHEREAS, on June 18, 2012, an election contest of the June 5, 2012 Special Municipal Election. was filed with the City Council of the.City of Vernon invoking its jurisdiction pursuant to Chapter 3.4 of the City Charter of the City of Vernon; and WHEREAS, on June 27, 2012, the City Council of the City of Vernon adopted Ordinance No. 1197 establishing procedures for election contests filed pursuant to Chapter 3.4 of the City Charter of the City of Vernon (codified as Article XII of Chapter 2 of the Vernon Municipal Code),; and WHEREAS, Section 2.90-5 of the Vernon Municipal Code provides that, "The City Council of the City of Vernon may adopt by resolution additional procedures for election contests which shall provide for fair, transparent, and expedited adjudication consistent with due process and equal protection of the law;" and WHEREAS, on July 10, 2012, the City Council of the City of Vernon adopted Resolution No. 2012-116, establishing additional procedures for election contests filed pursuant to Chapter 3.4 of the City Charter in order to provide for fair, transparent, and expedited adjudication consistent with due process and equal protection of the law; and WHEREAS, Section 7(a) of Resolution No. 2012-116 states that the hearing on an election contest "shall be conducted by a neutral hearing officer appointed by majority vote of the City Council members present. The hearing officer shall be (1) a member of the.State Bar'of California for a minimum of fifteen years and (2) a former member of the federal or state judiciary or a former federal or state public prosecutor. The hearing officer shall be.entitled to payment by the City for his or her services, including reasonable expenses. The, hearing officer shall not be an officer or employee of the city and shall not have any other .relationship with the city"; and WHEREAS, Section 7(c) of Resolution No. 2012-116 states: Upon appointment by the City Council, the hearing officer shall deliver to the City Clerk a statement disclosing any actual or possible conflicts of interest with the parties to the election contest, other matters which could reasonably be perceived as affecting the hearing officer's ability -to be impartial, and such other matters as may be required by the City. The City Clerk promptly shall serve a copy of the disclosure statement on the parties to the election contest or on their designated counsel of record" and WHEREAS, Section 7(d) of Resolution No. 2012-116 states: "A party may challenge the continued service of the hearing officer for cause. If, however, a challenge is raised more than five days after service of the - 2 - 0 disclosure statement required in subsection (c), the burden is on the challenger to show that then challenge is based upon information that was not available to the parties. The City Council, upon the advice of the City Attorney shall make the final determination of any challenge. Such determination shall take into account the materiality of the fats and any prejudice to the parties to the election contest. The decision will be final"; and WHEREAS, on July 11, 2012 the election contest filed on June 18, 2012 was re -filed in the form prescribed by Resolution No. 2012-116; and WHEREAS, the City Council of the City of Vernon desires to ensure a fair, transparent, and expedited adjudication of election contests filed with the City Council pursuant to Chapter 3.4 of the City Charter, the City Council of the City of Vernon has determined to adopt a guidelines and required disclosures concerning the neutrality of hearing officers for election contests. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF VERNON AS FOLLOWS: SECTION 1: The City Council of the City of Vernon hereby finds and determines that the recitals contained hereinabove are true and correct. SECTION 2: The City Council of the City of Vernon hereby adopts the attached Conflict of Interest Guidelines and Disclosure Form for Neutral Hearing Officers attached hereto as Exhibit A and incorporated herein by this reference. - 3 - e SECTION 3: The City Clerk of.the City of Vernon shall certify to the passage, approval and adoption of this resolution, and the City Clerk of the City of Vernon shall cause this resolution and the City Clerk's certification to be entered in the File of Resolutions of the Council of this City. APPROVED AND ADOPTED this 17t" day of July, 2012. t "dam Name: William J. Davis Title: M %/ Mayor Pro-Tem STATE OF CALIFORNIA ) ) ss COUNTY OF LOS ANGELES ) I, Willard G. Yamaguchi, City Clerk of the City of Vernon, do hereby certify that the foregoing Resolution, being Resolution No. 2012-123, was duly passed, approved and adopted by the City Council of the City of Vernon at a regular meeting of the City Council duly held on Tuesday, July 17, 2012, and thereafter was duly signed by the Mayor or Mayor Pro-Tem of the City of Vernon.. Executed this 0 day of July, 2012, at Vernon, California. (SEAL) k - 5 - EXHIBIT A Exhibit A Conflict of Interest Guidelines and Disclosure Form for Neutral Hearing Officers THE HEARING OFFICER MUST ENSURE THAT HE OR SHE HAS NO KNOWN CONFLICT OF INTEREST REGARDING THE ELECTION CONTEST, AND SHOULD ENDEAVOR TO AVOID ANY APPEARANCE OF A CONFLICT OF INTEREST. Pursuant to Resolution No. 2oi2-n6, section 7(c) the hearing officer must promptly disclose, or cause to be disclosed any and all actual or potential conflict of interest or relationship or other information, of which the hearing officer is aware, that reasonably could lead a party to the election contest ("Party" or "Parties") to question the hearing officer's impartiality. The hearing officer should accept appointment to hear an election contest only where the hearing officer believes it can be undertaken without an actual or apparent conflict of interest. Section 7(c) of the resolution provides: Upon appointment by the City Council, the hearing officer shall deliver to the City Clerk a statement disclosing any actual or possible conflicts of interest with the parties to the election contest, other matters which could reasonably be perceived as affecting the hearing officer's ability to be impartial, and such other matters as may be required by the City. The City Clerk promptly shall serve a copy of the disclosure statement on the parties to the election contest or on their designated counsel of record. Upon full disclosure, a Party or the Parties may waive an actual or potential conflict of interest. If the conflict of interest casts serious doubt on the integrity of the process, the hearing officer should withdraw, notwithstanding receipt of a full waiver. The hearing officer's disclosure obligations continue throughout the course of the election contest and require the hearing officer to disclose, at any stage of the election contest, any such interest or relationship that may arise, or that is recalled or discovered. Disclosure must be made to all Parties. . The hearing officer should remain impartial throughout the course of the election contest. Impartiality means freedom from favoritism either by word or action. The hearing officer should be aware of and avoid the potential for bias based on the Parties' backgrounds, personal attributes or conduct during the hearing, or based on the hearing officer's pre-existing knowledge of or opinion about the merits of the dispute being arbitrated. A hearing officer should not have a social or professional relationship with a Party or counsel to a Party to an election contest. If the hearing officer becomes incapable of maintaining impartiality, the hearing officer should withdraw. The hearing officer should perform duties diligently and conclude the hearing as Exhibit A to RESOLUTION ADOPTING CONFLICT OF INTEREST GUIDELINES AND DISCLOSURE FORM FOR NEUTRAL HEARING OFFICERS FOR ELECTION CONTESTS FILED WITH THE CITY COUNCIL PURSUANT TO VERNON CITY CHARTER SECTION 3.4 promptly as the circumstances reasonably permit. The hearing officer should be courteous to the Parties, to their representatives and to the witnesses, and should encourage similar conduct by all participants in the proceedings. The hearing officer should make all reasonable. efforts to prevent the Parties, their representatives, or other participants from engaging in delaying tactics, harassment of Parties or other. participants, or other abuse or disruption of the process. Section 7(e) of Resolution No. 2o12-ii6 provides: No party to the election contest or any member of the City Council shall have any ex parte communication with the hearing officer. The hearing officer should not discuss an election contest with any Party in the absence of every other Party, except that if a Party fails to appear at a hearing after having been given due notice, the hearing officer may discuss the case with any Party who is present. Whenever the hearing officer receives a written communication concerning the election contest from one Party that has not already been sent to each Party, the hearing officer should do so. As used in the Minimum Required Disclosures 5, 6, 9, 8, g & io, below, "you" includes members of your immediate family (husband, children, mother, father, and siblings), your current employer, and current business partners. MINIMUM REQUIRED DISCLOSURES i. Have you been a member of the State Bar of California for a minimum of 15 years? ❑ Yes. ❑ No 2. Are you currently or have you ever been a member of the federal or state judiciary? ❑ Yes. Please state the court and your tenure. ❑ No 3. Are you or have you ever been a federal or state public prosecutor? ❑ Yes. Please state the jurisdiction and your tenure. ❑ No 4. Please state your employment for the io years immediately preceding your appointment as hearing officer. Use a separate sheet of paper if necessary. Exhibit A to RESOLUTION ADOPTING CONFLICT OF INTEREST GUIDELINES AND DISCLOSURE FORM FOR NEUTRAL HEARING OFFICERS FOR ELECTION CONTESTS FILED WITH THE CITY COUNCIL PURSUANT TO VERNON CITY CHARTER SECTION 3.4 5. Do you have any actual or potential conflict of interest or relationship, or other information, of which you are aware, that reasonably could lead a party to the election contest to question your impartiality? ❑ Yes. If so, please describe in detail on a separate page. ❑ No 6. Do you have any existing relationship or dealings, besides being nominated for appointment as a hearing officer for the election contest, with the City of Vernon or its elected officials, employees or administrative officers? ❑ Yes. If so, please describe in detail on a separate page. ❑ No Have you had any relationship or dealings with the City of Vernon or its elected officials, employees or administrative officers, within the ten (io) years immediately preceding your nomination for appointment as a hearing officer? ❑ Yes. If so, please describe in detail on a separate page. ❑ No 8. Do you now, or have you at any time, had any relationship or dealings with the parties to the election contest? ❑ Yes. If so, please describe in detail on a separate page. ❑ No Do you now, or have you at any time, had any relationship or dealings with the counsel of record for the parties to the election contest? ❑ Yes. If so, please describe in detail on a separate page. ❑ No io. Do you now, or have you at any time, had any relationship or dealings with the voters whose eligibility to vote in City of Vernon elections is challenged in the election contest? ❑ Yes. If so, please describe in detail on a separate page. ❑ No Exhibit A to RESOLUTION ADOPTING CONFLICT OF INTEREST GUIDELINES AND DISCLOSURE FORM FOR NEUTRAL HEARING OFFICERS FOR ELECTION CONTESTS FILED WITH THE CITY COUNCIL PURSUANT TO VERNON CITY CHARTER SECTION 3.4 CITYCLERWSOFFICE STAFF REPORT CITY ADMINISTRATION DATE: TO: FROM: RE: Background August 1, 2012 Honorable City Council e Amendments to Hearing Officer Agreement Mark C. Whitworth, City Administrator On July 23, 2012, the City Council approved a Resolution Approving An Agreement With Hearing Officer Debra Wong Yang For Services As Hearing Officer For An Election Contest. Because Hearing Officer Yang was traveling at the time, she was unable to review the contract prior to Council approval. The approved Agreement was sent to Ms. Yang for signature on July 24, 2012. Ms Yang requested some technical amendments and amendments to certain collateral provisions of the Agreement, listed below. Ms. Yang has signed the Agreement as amended, which will become the Agreement With Hearing Officer Debra Wong Yang For Services As Hearing Officer For An Election Contest if the amended Agreement is approved by the City Council. The duties of the Hearing Officer, the Term of the Agreement, and the compensation to the Hearing Officer under the Agreement are not changed. Contract Amendments 1. Technical amendments to the introductory paragraph and Sections 3 & 6(d), and renumbering of former Sections 22-27, and a technical amendment to the signature block for Ms. Yang's signature. 2. An amendment to add Section 8 (e) specifying the grounds upon which the Hearing Officer would have the right to withdraw from the Agreement. 3. An amendment to add Section 9 (b) — (d) specifying the scope of the Hearing Officer's liability to the City. 4. An amendment to Section 12 to provide for mutual indemnification against losses from negligent acts or omissions, or willful misconduct related to the performance or non- performance of the Agreement 5. An amendment to Section 13 to streamline the proof of insurance requirement of the Hearing Officer. 6. An amendment to eliminate former Section 21 regarding liability to third parties, which was an artifact from the template form used to prepare the Agreement with Hearing Officer Debra Wong Yang that should not have appeared in the original of the Agreement. The elimination of this section caused the renumbering mentioned in #1, above. Recommendation It is recommended that the City Council approve the amendments to the Agreement With Hearing Officer Debra Wong Yang For Services As Hearing Officer For An Election Contest.