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HomeMy WebLinkAboutSILVER & WRIGHT, LLPINSURANCE NOT ON FILE N-2021-035 WORK MAY NOT PROCEED CLERK OF COUNCIL 0 i 20TE: AGREEMENT WITH SILVER & WRIGHT (S SSicuhltVid0Zu)(0)b�) TO PROVIDE ADMINISTRATIVE HEARING SERVICES THIS AGREEMENT is made and entered into on this 18th day of February, 2021, by and between Silver & Wright, LLP, a California limited liability partnership ("Contractor"), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California ("City"). RECITALS A. The City desires to retain a contractor having special skill and knowledge to serve as a neutral administrative hearing officer and provide on -call professional administrative hearing services for the City. B. Contractor represents that Contractor is able and willing to provide such services to the City. C. In undertaking the performance of this Agreement, Contractor represents that it is knowledgeable in its field and that any services performed by Contractor under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional in the field. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: SCOPE OF SERVICES Contractor shall provide on -call administrative hearing services at the direction of the Executive Director of the Planning and Building Agency. Contractor shall perform during the term of this Agreement, the tasks and obligations including all labor, materials, tools, equipment, and incidental customary work required to fully and adequately complete the on -call administrative hearing services. 2. COMPENSATION a. City agrees to pay, and Contractor agrees to accept as total payment for its services for City, the rates and charges identified in Exhibit B. The total amount to be expended during the term of this Agreement shall not exceed $5,000. b. Payment by City shall be made within forty-five (45) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City. Page 1 of 8 #69535v4 3. TERM This Agreement shall commence on the date first written above for a I -year term, unless terminated earlier in accordance with Section 14, below. The term of this Agreement may be extended for one additional year by a writing executed by the City Attorney and City Manager. 4. INDEPENDENT CONTRACTOR Contractor shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer -employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Contractor performs the services which are the subject matter of this Agreement; however, the services to be provided by Contractor shall be provided in a manner consistent with all applicable standards and regulations governing such services. Contractor shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 5. OWNERSHIP OF MATERIALS This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Contractor under this Agreement ("Documents & Data"). Contractor shall require all subcontractors to agree in writing that City is granted a non-exclusive and perpetual license for any Documents & Data the subcontractor prepares under this Agreement. Contractor represents and warrants that Contractor has the legal right to license any and all Documents & Data. Contractor makes no such representation and warranty in regard to Documents & Data which were provided to Contractor by the City. City shall not be limited in any way in its use of the Documents and Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at City's sole risk. 6. INSURANCE Prior to undertaking performance of work under this Agreement, Contractor shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. Contractor shall maintain commercial general liability insurance naming the City, its officers, employees, agents, volunteers and representatives as additional insured(s) and shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of Contractor's operations in the performance of this Agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to Page 2 of 8 #69535v4 bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of $1,000,000 per occurrence, with $2,000,000 in the aggregate. Such insurance shall (a) name the City, its officers, employees, agents, and representatives as additional insured(s); (b) be primary and not contributory with respect to insurance or self-insurance programs maintained by the City; and (c) contain standard separation of insureds provisions. b. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for owned, hired and non -owned automobiles. C. Worker's Compensation Insurance. In accordance with the provisions of Section 3700 of the Labor Code, Contractor, if Contractor has any employees, is required to be insured against liability for worker's compensation or to undertake self- insurance. Prior to commencing the performance of the work under this Agreement, Contractor agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. d. If Contractor is or employs a licensed professional such as an architect or engineer: Professional liability (errors and omissions) insurance, with a combined single limit of not less than $1,000,000 per claim with $2,000,000 in the aggregate. e. The following requirements apply to the insurance to be provided by Contractor pursuant to this section: i. Contractor shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. ii. Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved by the City. iii. Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City. iv. Where the amounts or coverage provided by the certificates of insurance provides coverage greater than those listed by this Agreement, the amounts provided by the certificates of insurance shall be incorporated by reference into the Agreement. V. Contractor shall supply City with a fully executed additional insured endorsement. f. If Contractor fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to forthwith terminate this Agreement. Such termination shall not affect Contractor's right to be paid for its time and materials expended prior to notification of termination. Contractor waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. Page 3 of 8 #69535v4 7. INDEMNIFICATION Contractor shall indemnify, release, defend and hold harmless City, its officers, agents, employees, and volunteers, against any claim, demand, suit, judgment, loss, liability or expense of any kind, including attorney's fees and administrative costs, to the extent arising from the willful misconduct or gross negligence of Contractor. This indemnification shall not extend to any claim related to Contractor's duties as a hearing officer in the interpretation or application of City's Codes or processes. City shall indemnify, release, defend and hold harmless Contractor, its attorneys, officers, agents and employees against any claim, demand, suit, judgment, loss or liability or expense of any kind, including attorney's fees and costs, to the extent arising from any challenge to the City's ordinances, procedures, laws, hearing determinations, or processes. 8. RECORDS Contractor shall keep records and invoices in connection with the work to be performed under this Agreement. Contractor shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures, and disbursements charged to the City for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Contractor under this Agreement. All such records and invoices shall be clearly identifiable. Contractor shall allow a representative of the City to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement during regular business hours. Contractor shall allow inspection of all work, data, documents, proceedings, and activities related to this Agreement for a period of three (3) years from the date of final payment to Contractor under this Agreement. 9. CONFIDENTIALITY If Contractor receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Contractor agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary and/or agent of the other party is covered by this Agreement. The foregoing obligations of non-use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Contractor disclosed in a publicly available source; (c) is in rightful possession of the Contractor without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Contractor without reference to information disclosed by the City. 10. CONFLICT OF INTEREST CLAUSE Contractor covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Page 4 of 8 #69535v4 Agreement. 11. NON-DISCRIMINATION Contractor shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, gender identity, gender expression, gender, medical conditions, genetic information, or military and veteran status, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, teaching, training, utilization, promotion, termination or other employment related activities or any services provided under this Agreement. Contractor affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 12. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Contractor, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Contractor. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Contractor or the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which is not embodied herein. 13. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Contractor, Contractor may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other Contractors retained by City. 14. TERMINATION This Agreement may be terminated by the City upon thirty (30) days written notice of termination. In such event, Contractor shall be entitled to receive and the City shall pay Contractor compensation for all services performed by Contractor prior to receipt of such notice of termination, subject to the following conditions: a. As a condition of such payment, the Executive Director may require Contractor to deliver to the City all work product(s) completed as of such date, and in such case such work product shall be the property of the City unless prohibited by law, and Contractor consents to the City's use thereof for such purposes as the City deems appropriate. Page 5 of 8 #69535v4 b. Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement. 15. WAIVER No waiver of breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this Agreement shall be effective unless it is in writing and signed by the party waiving the breach, failure, right or remedy. No waiver of any breach, failure or right, or remedy shall be deemed a waiver of any other breach, failure, right or remedy, whether or not similar, nor shall any waiver constitute a continuing waiver unless the writing so specifies. 16. JURISDICTION - VENUE This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 17. PROFESSIONAL LICENSES Contractor shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. Contractor shall notify the City immediately and in writing of its inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 18. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by fax or other telegraphic communication in the manner provided in this Section, to the following persons: To City: Clerk of the City Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 Fax: 714- 647-6956 Page 6 of 8 #69535v4 With courtesy copies to: Executive Director Planning & Building Agency City of Santa Ana 20 Civic Center Plaza (M-19) P.O. Box 1988 Santa Ana, California 92702 Fax:(714) 647-5897 To Contractor: Silver & Wright, LLP Attn: Curtis R. Wright, Esq. 3 Corporate Park, Ste. 100 Itvine, CA 92606 A patty may change its address by giving notice in writing to the other party. Thereafter, any communication shall be addressed and transmitted to the new address. If sent by mail, communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by fax, communication shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 19. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature herein below has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. The Agreement is the final and complete agreement and any prior or contemporaneous agreements between the parties is superseded by this Agreement. C. Except where any terms conflict, all Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. Page 7 of 8 #69535v4 N-2021-035 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: Daisy Gomez Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City By: Rya Ass. RECOMMENDED FOR APPROVAL: Minh Thai Executive Director Planning & Building Agency CITY OF SANTA ANA Kristine Ridge ow City Manager SILVER & WRIGHT LLP: Curtis R. Wright, Partner #69535v4 Page 8 of 8 EXHIBIT A SCOPE OF SERVICES EXHIBIT A SCOPE OF SERVICES S&W shall serve as a neutral administrative hearing officer for the City's administrative hearings as requested by the City. The administrative hearings may be in -person, virtual, or by written declaration as agreed by S&W, the City, and the parties. The City shall be responsible for scheduling, coordinating, hosting, and noticing the administrative hearings. S&W requests as much advance notice for hearings as possible, preferably at least 15 days. The City's main point of contact for scheduling hearings shall be Rene Farjeat at RFarjeat@SilverWrightLaw.com or 949-281-6542. S&W requests a Hearing Brief be provided by the City at least five days before the administrative hearings, explaining the matter history, the key facts, the relevant law, and the relief requested, and attaching the relevant evidence and a Proposed Decision. S&W requests that other parties to the hearing be encouraged to file their own Hearing Briefs containing the same information, evidence, and Proposed Decisions at least five days before the administrative hearing as well. S&W will review the briefs in advance of the hearing. At or after the hearing, S&W may request additional briefing from the parties as well. S&W may continue hearings as necessary in the interests of justice. Once all evidence is received, and the hearings and briefings are concluded, S&W will endeavor to issue a Decision within five to thirty days. The Decision will recite the relevant facts, explain the reasoning for the Decision, and shall uphold, modify, or deny the relief being sought by the City. — EXHIBIT A — SCOPE OF SERVICES EXHIBIT B COMPENSATION Fee Proposal including hourly rates if applicable EXHIBIT B COMPENSATION Compensation. S&W shall be compensated by the City for hearing officer related services at the rate of. $227 per hour for all associate attorney services; $243 per hour for partner services; and $139 per hour for all paralegal and law clerk services. S&W will keep track of all billing entries on a daily basis with accurate descriptions of the services provided. S&W will charge in increments of one tenth of an hour, rounded up to the nearest one tenth of an hour for each particular activity. S&W's rates may increase by up to five percent per year beginning January 1, 2022 to offset rising industry costs. Cost Reimbursement. The City shall reimburse S&W for all costs and expenses incurred by S&W in providing services under this Agreement, including court costs, process server fees, courier and messenger fees, postage expenses, property title research costs, legal research costs, discovery and depositions costs, printing and document reproduction costs at 100 per page for black and white and 500 per page for color, travel, automobile mileage at the prevailing IRS rate, litigation costs, and other costs necessary for services. Billine. S&W will submit monthly invoices to the City for the services provided under this Agreement. S&W's invoices will include a breakdown of all fees and costs with detailed itemized descriptions. The invoices shall be due and payable within 30 days of the invoice date. — EXHIBIT B — COMPENSATION