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ADMINISTRATIVE HEARING OFFICER SERVICES AGREEMENT
BETWEEN NASTICH LAW APC AND THE CITY OF SANTA ANA
THIS AGREEMENT is made and entered into on this 15 th day of October, 2024 by and between Nastich Law, a Professional Corporation, (“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. On April 18, 2024, the City issued Request for Proposals No. 24-052 (“RFP”), by which it sought contractors to provide as-needed administrative hearing officer services for various Agencies of the City of Santa Ana. The scope of work included administrative hearing officer services. This may include preparation for hearings as scheduled by City staff, reviewing case documentation submitted with appeals, performing legal research, conducting hearings, and preparing written decisions.
B. Contractor submitted a responsive proposal that was among those selected by the City.
Contractor represents that it is able and willing to provide the services described in the scope of work that was included in the RFP and attached as Exhibit A.
C. Contractor was selected as one of five (5) vendors which qualified for this engagement.
Only those contractors approved by the City Council shall be eligible to be engaged by the City for these services.
D. 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 firm 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:
1. SCOPE OF SERVICES
On an as-needed basis, and at the sole discretion of the City, Contractors shall perform the services that are described in Exhibit A, attached and incorporated by reference as though fully set forth herein. Contractor’s proposal is incorporated by reference as though fully set forth herein.
When the need for services arise, City may initiate services through use of written correspondence, executed by authorized City staff and the Contractor. Work by the Contractor may not proceed absent a previously engage d or fully executed consultant agreement and authorizing correspondence for a specific assignment. The Treasury & Customer Service Manager or their designee will maintain the directory of authorized staff who will be permitted to issue assignments to the Contractor. Contractor is prohibited from accepting assignments from City staff who are not authorized and work undertaken without explicit approval will not be due compensation.
2. COMPENSATION
EXHIBIT 2
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a. City neither warrants nor guarantees any minimum or maximum compensation to Contractor under this Agreement. Contractor shall be paid only for actual approved services performed under this Agreement at the rates and charges identified in Exhibit B – Compensation. Contractor is one of five (5) contractors selected to provide administrative hearing officer services on an as -needed basis under RFP No. 24 -052.
The total compensation for services provided by all Contractors selected under RFP No. 24-052 is a collective amount not to exceed $1,970,000 during the term of the Agreement, including any extension periods.
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. City and Contractor agree that all payments due and owing under this Agreement shall be made through Automated Clearing House (ACH) transfers. Contractor agrees to execute the City’s standard ACH Vendor Payment Authorization and provide requ ired documentation. Upon verification of the data provided, the City will be authorized to deposit payments directly into Contractor’s account(s) with financial institutions.
Payment need not be made for work which fails to meet the standards of perfor mance set forth in the Recitals which may reasonably be expected by City.
3. TERM
This Agreement shall commence on the date first written above for a three (3) year term with the option for the City to grant up to a one 2-year renewal, exercisable by a writing by the City Manager and the City Attorney, unless terminated earli er in accordance with Section 1 5, below.
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 whi ch 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 doc uments 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
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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 sub contractor prepares under this Agreement.
Contractor represents an d 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
Contractor shall procure and maintain and shall require any subcontractors to obtain and maintain insurance as described below for the entire Term of this Agreement against claims for injuries to persons or damage to property which may arise from or in connection with services, products and materials supplied to City. Total cost of such insurance shall be borne by Contractor.
MINIMUM SCOPE OF INSURANCE
Coverage shall be at least as broad as:
1. Commercial General Liability (CGL): Insurance Services Office Form CG -00-01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $1,000,000 per occurrence and $2,000,000 aggregate. Required policy limits can be met with primary and umbrella/excess insurance policies.
2. Automobile Liability: Insurance Services Office Form CA 00 01 covering Code 1 (any auto), with limits no less than $1,000,000 combined single limits.
3. Workers’ Compensation: as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than $1,000,000 per accident, policy or employee, for bodily injury or disease.
4. Professional Liability Insurance: with limits no less than $1,000,000 per occurrence or claim, and $2,000,000 aggregate.
If Contractor maintains broader coverage and/or higher limits than the minimum requirements for each line of coverage shown above, City requires and shall be entitled to the broader coverage and/or the higher limits maintained by Contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to City.
Other Insurance Provisions
The above required insurance policies are to contain or be endorsed to contain the following provisions
1. City, its City Council, its officers, officials, employees, agents, and volunteers are to be covered as additional insureds, under Contractor’s CGL, and Automobile Liability policies, with respect to any liability arising out of work or operations performed by or
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on behalf of the Instructor including materials, parts, equipment, and personnel furnished in connection with such work or operations.
2. Contractor’s Insurance company(ies) agrees to waive all rights of subrogation again st City, its City Council, its officers, officials, employees, agents, and volunteers for losses paid under the terms of any policy which arise from work performed by Contractor under this Agreement.
3. For any claims related to this contract, Contractor’s in surance coverage shall be primary and any insurance maintained by City, its City Council, its officers, officials, employees, agents, or volunteers shall not contribute with it.
4. A severability of interest provision must apply for all the additional insureds, ensuring that Contractor’s insurance shall apply separately to each insured against whom a claim is made or suit is brought, except with respect to the insurer’s limits of liability.
5. Insurance policies required herein shall provide that coverage shall n ot be canceled, suspended, voided, reduced in coverage or in limits, non -renewed by the carrier, or materially changed except after thirty (30) days prior written notice has been given to City. Ten (10) days prior written notice shall be provided to City for policy cancellation or non-renewal due to non-payment of premium.
6. Certificate Holder on each Evidence of Insurance certificate shall be: City of Santa Ana, Attention: Executive Director, Finance and Management Services , 20 Civic Center Plaza M-17, Santa Ana, CA 92701. The name and location of project must be included in the Description of Operations section of each certificate.
Self-Insured Retentions
Self-insured retentions must be declared to and approved by the City. The City may require the Contractor to purchase coverage with a lower retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention.
Acceptability of Insurers
Insurance is to be placed with insurers authorized to conduct business in the State of California with a current A.M. Best rating of no less than A:VII, unless otherwise acceptable to City.
Verification of Coverage
Contractor shall furnish City with original Certificates of Insur ance including all required amendatory endorsements (or copies of the applicable policy language effecting coverage required by this clause) and a copy of the Declarations and Endorsement Page of the CGL policy listing all policy endorsements before work begins. However, failure to obtain the required documents prior to the work beginning shall not waive Contractor’s obligation to provide them.
City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time.
Special Risks or Circumstances
City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.
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7. INDEMNIFICATION
Contractor agrees to defend, and shall indemnify and hold harmless the City, its officers, agents, employees, contractors, special counsel, and representatives from liability: (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including death, and claims for property damage, whic h may arise from the negligent operations of the Contractor, its subcontractors, agents, employees, or other persons acting on its behalf which relates to the services described in section 1 of this Agreement; and (2) from any claim that personal injury, damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising from this Agreement. This indemnity and hold harmless agreement applies to all claims for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason of the events referred to in this Section or by reason of the terms of, or effects, arising from this Agreement. The Contractor further agrees to indemnify, hold harmless, and pay all costs for the defense of the City, including fees and costs for special counsel to be selected by the City, regarding any action by a third party challenging the validity of this Agreement, or asserting that personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises by reason of the terms of, or effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. Notwithstanding the foregoing, to the extent Contractor’s services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Contractor.
8. INTELLECTUAL PROPERTY INDEMNIFICATION
Contractor shall defend and indemnify the City, its officers, agents, representatives, and employees against any and all liability, including cost s, for infringement of any United States’ letters patent, trademark, or copyright infringement, including costs, contained in the work product or documents provided by Contractor to the City pursuant to this Agreement.
9. 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.
10. CONFIDENTIALITY
If Contractor receives from the City information which due to the nature of such
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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 pro tect 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 or ally, 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.
11. 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 Agreement.
12. 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.
13. 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.
14. ASSIGNMENT
Inasmuch as this Agreement is intended to secure the specialized services of Contractor,
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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.
15. 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 C ity unless prohibited by law, and Contractor consents to the City's use thereof for such purposes as the City deems appropriate.
b. Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement.
16. 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.
17. 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.
18. 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.
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19. 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:
City Clerk
City of Santa Ana
20 Civic Center Plaza (M-30)
P.O. Box 1988
Santa Ana, CA 92702-1988
Fax: 714- 647-6956
With courtesy copies to:
Executive Director
Finance & Management Services Agency
City of Santa Ana
20 Civic Center Plaza (M-15)
P.O. Box 1988
Santa Ana, California 92702
To Contractor:
A party 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.
20. MISCELLANEOUS PROVISIONS
a. Each undersigned represents and warrants that its signature herein below has the Summer L. Nastich
Principal
Nastich Law, a Professional Corporation
2341 Derby Street
Berkeley, CA 94705
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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. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written.
ATTEST: CITY OF SANTA ANA
Jennifer L. Hall Alvaro Nuñez
City Clerk City Manager
APPROVED AS TO FORM:
SONIA R. CARVALHO NASTICH LAW:
City Attorney
By:
Andrea Garcia-Miller
Assistant City Attorney (title)
Tax ID#
RECOMMENDED FOR APPROVAL:
Kathryn Downs
Executive Director
Finance & Management Services Agency
Summer L. Nastich
Principal
Kathryn Downs (Oct 7, 2024 16:53 PDT)
EXHIBIT A
SCOPE OF SERVICES
Services performed by Contractor shall include, but are not limited to the following:
A. GENERAL REQUIREMENTS
1. Prepare for hearings as scheduled by City staff, including notification of the hearing type, date, time, and location to appellant.
2. Review case documentation submitted with appeals, and identifying and communicating potential concerns to the City.
3. Perform legal research, and interpret complex statutes, policies, and procedural guidelines.
4. Instruct participants in hearing of their rights and applicable hearing procedures.
5. Conduct hearings in a fair, impartial, courteous, and professional manner.
6. Hear testimony and evidence from parties regarding the issues.
7. Prepare written decisions, which set forth the legal and evidentiary basis for the decision, and adopt findings as required by the particular provisions of the Santa Ana Municipal Code (SAMC).
8. Perform all other services as outlined in the resulting agreement for services upon award.
9. Hearing Officers will confirm the absence of conflicts before undertaking any new matters for the City. Hearing Officers will inform and seek the consent of the City before representing another client in any matter directly averse to the City (e.g., transactions, negotiations, proceedings, or other representations involving specific parties).
10. Hearing Officer will be required to provide Hearing Officer Services upon acceptance of assignments.
11. Hearing preparation could include, but is not limited to, reading the file materials and familiarization with SAMC provisions at issue, hearing materials, and rules of evidence.
12. Virtual Hearings: City will provide virtual meeting link to all parties. The dates and times of said hearings shall be designated by the City, but normally will be conducted during the City’s Regular Business Hours.
a. The City’s Regular Business Hours, excluding City holidays, are:
• Monday through Thursday from 7:30 AM to 5:30 PM; and
• Alternate Fridays from 8:00 AM to 5:00 PM
13. In-Person Hearings: City will provide hearing rooms, use of copiers, documents, materia ls, and equipment necessary for carrying out hearings. Locations and times of said hearings shall be designated by the City, but normally will be conducted during Regular Business Hours of the City. a. Hearings held in person will be held at Santa Ana City Ha ll, 20 Civic Center Plaza, Santa Ana, CA 92701.
14. All hearings shall be conducted in English and, if necessary, with the assistance of foreign language translator as provided by applicants/contesting parties or the City.
15. City staff will coordinate the record ing of hearings, if applicable. Assistance may be requested from the Hearing Officer during recording sessions.
B. REPORTS AND DELIVERABLES
1. Hearing Officers shall be required to submit a typed Statement of Decision for each hearing conducted within the st atutorily required time following the closing of the hearing record in a format approved by the City. The decision shall include findings, conclusions, and provide judicial
review information.
2. Hearing Officers shall provide a detailed invoice for services rendered each month, including the case number, hearing date, time incurred, and hourly rate.
C. SERVICE AREAS AND APPLICABLE SANTA ANA MUNICIPAL CODE (SAMC) Contractor indicated they are able and willing to conduct administrative hearings in relation to the following subject areas. In the event Contractor is no longer able to provide services for a particular subject area, they will advise the City in writing no less than thirty (30) days prior to cessation of service for that area.
1. Code Enforcement: SAMC § 1-18.1
2. Environmental Sanitation Violations: SAMC § 1-18.2 and SAMC § 1-21
3. Buildings and Structures: SAMC Chapter 8 (Various Subsections)
4. Rent Stabilization and Just Cause Eviction Ordinance: SAMC § 8-3145(f) (Per Ordinance No.
NS-3052)
5. Refuse Violations: SAMC Chapter 16 (Various Subsections)
6. Public Safety Sensitive Business Establishments: SAMC § 18-90 through 18-105; SAMC § 22-1 through 22-16
7. Non-Regulatory Business License Tax: SAMC § 21-41
8. Cannabis Business License Tax: SAMC § 21-41
9. Hotel Visitors Tax: SAMC § 35-133
10. Utility Users Tax for Electric, Gas & Telecommunications: SAMC § 35-173
EXHIBIT B
COMPENSATION
Contractor acknowledges and accept that the City will not provide reimbursement for travel -related expenses, mileage, parking, lodging, meals, incidental fees, insurance, freight/shipping and handling/delivery, and any other business expenses, supplies and materials related to p roviding services as specified herein. Any additional costs will not be considered or reimbursed by the City. Such costs have been incorporated into Contractor’s cost proposal fee structure. Billable hours shall be round ed to the nearest quarter hour. Hearing Officers shall provide a detailed invoice for services rendered after each hearing, including the case number, hearing date, time incurred, and hourly rate. Invoices shall be paid by City within forty-five (45) days of submission.
A. Rate for hearings conducted virtually, billed at quarter hour increments. • $250 per hour
B. Rate for hearings conducted at Santa Ana City Hall, billed at quarter hour increments. • $250 per hour
C. Rate for hearing preparation and document review, billed at quarter hour increments. • $250 per hour
D. Rate for hearing closeouts and preparing written determinations, billed at quarter hour increments.
• $250 per hour
E. Charge for No-Show Applicants.
• No charge
F. Cancellation Rate.
• No charge
G. Initial Orientation & Subsequent Trainings Hourly Rate. • No charge
H. Additional Fees and Charges
• Extraordinary costs, such as printing costs in excess of $50.00 or hearing room rentals will be passed through with no markup, following prior approval from the City
Exhibit 2 (14) (1)
Final Audit Report 2024-10-07
Created: 2024-10-07
By: Kristin Andrade ([email protected])
Status: Signed
Transaction ID: CBJCHBCAABAAEtxp5L5sH3AyFGMd0I0FAjLoX-KjKyuo "Exhibit 2 (14) (1)" History
Document created by Kristin Andrade ([email protected]) 2024-10-07 - 11:52:38 PM GMT
Document emailed to Kathryn Downs ([email protected]) for signature 2024-10-07 - 11:52:57 PM GMT
Email viewed by Kathryn Downs ([email protected])
2024-10-07 - 11:53:32 PM GMT
Document e-signed by Kathryn Downs ([email protected]) Signature Date: 2024-10-07 - 11:53:47 PM GMT - Time Source: server Agreement completed.
2024-10-07 - 11:53:47 PM GMT