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Home My WebLink AboutWHITE NELSON DIEHL EVANS LLP (2)-2014INSURANCE ON FILE N-2016-006-001 w4ORK MAY PROCEED UNTIL INSURANCE EXPIRES CLERK OF COUNCIL RASE: AMENDMENT TO CONSULTANT AGREEMENT ®; C,�:- � Swam RECITALS ScVfMr2r sQny) A. Whereas, on December 1, 2014, White Nelson Diehl Evans LLP, a limited liability partnership (hereinafter "Consultant"), 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 (hereinafter "City") entered into a Consultant Agreement ("Consultant Agreement') whereby Consultant would conduct a "lottery" process in connection with applications to operate Medical Marijuana Dispensaries within the City, and provide certain other consulting and forensic services; B. Consultant and the City wish to amend and clarify the Scope of Services under the Consultant Agreement, effective as of January 23, 2015; C. Section 11 of Consultant Agreement provides that the Consultant Agreement may be modified pursuant to a written instrument signed by the City and by an authorized representative of Consultant. AMENDMENTS TO CONSULTANT AGREEMENT 1. SCOPE OF SERVICES: In consideration of the mutual and respective promises, the parties agree to the following amendments to the Scope of Services: A. The City agrees to retain an outside naw firm (hereinafter "Law Firm") knowledgeable in Federal, California and applicable County laws, regulations, ordinances, case law and other legal summaries regarding the conduct of lotteries. Law Firm will provide Consultant with an opinion on or before January 31, 2015, that the random selection of applicants (lottery) to be conducted by Consultant on February 5, 2015 is allowed under all applicable Federal, California and county laws, regulations and ordinances and will provide such other written legal/ advice opinions and/or oral legal advice as is necessary at the request of Consultant. If it is determined that any process, procedure or other planned operation of the random selection process ("Lottery) is in violation of any Federal, California or County applicable laws, regulations or ordinances, then Consultant has the option to terminate this agreement or seek further legal counsel from the Law Finn. Also, the City will be responsible for all tune and charges of Law Firm, and Law Firm will invoice its time and charges directly to the City. City agrees to enter into a written agreement with Law. Firm no later than January 27, 2015. B. Consultant agrees to acquire a manually -operated drum and pre -numbered ping pong balls numbered from 1 to 1,000 no later than January 28, 2015. 1 N-2016-006-001 1. SCOPE OF SERVICES (CONTINUED): C. Pursuant to Measure BB, Section 18-617.01, the City's Director of Planning and Building (hereinafter "Director") or designee, has received, reviewed and approved applications for Medical Marijuana Dispensary locations through the cut-off date of January 15, 2015. Director or designee, agrees to prepare a numerical listing (the Master Listing) in both PDF and excel format of the approved applications with the following data for each approved application: • The Applicant's identifying number (Application Number or other mmnber assigned by the City) • The Primary Contact Person on the Application • The legal name of the Applicant (natural person, LLC, LLP, C Corp, S Corp, etc.) • The property address for which the Applicant has applied to operate a dispensary. City will provide the Master Listing to Consultant by January 27, 2015. Consultant will perform a "random sort" using computer software on the Master Listing to assign final identifying (lottery) numbers to each approved Applicant, and will then return the Master Listing to City by January 29, 2015. The Director or designee will confirm receipt of the final Master Listing and advise Consultant. Consultant will print 750 copies of the Master Listing to be distributed to attendees at the random selection process (Lottery) on February 5, 2015. D. Consultant agrees to prepare a PowerPoint presentation of the random selection process (Lottery) and forward to City by January 29, 2015. This presentation will ultimately be used on the day of the random selection process (Lottery) for explanatory purposes to the attendees. E. City agrees that on February 2, 2015 (as detailed below) and on February 5, 2015 (the day of the random selection process (Lottery)), the City will coordinate the Audio/Visual requirements in the City Council Chambers or alternate location as follows: • The City will snake available to Consultant an AN system, a laptop computer, a pull-down screen, and a projector for use by the Consrdtant. • The random selection process (Lottery) will be conducted using a large, manually -operated raffle drum, filled with pre -numbered ping pong balls. As each ball is selected, the City should provide the necessary equipment to project the ball number on the screen so that all participants can clearly see the number selected. Any necessary projection equipment must be acquired, installed and tested by January 30, 2015. F. A practice session will be held at the City Council Chambers or alternate location for White Nelson Diehl Evans LLP and City designated staff on February 2, 2015. 2 N-2015-006-001 1. SCOPE OF SERVICES (CONTINUED): G. The following procedures will be followed by Consultant in conducting the random selection process (Lottery) on February 5, 2015: • The Council Chambers or alternate location, will be opened to Consultant at least two hours in advance of the random selection process (Lottery). The manually - operated drum will be installed upon entry. • The random selection process (Lottery) will be conducted under the supervision of Mr. William S. Morgan, CPA, ("Morgan") and other staff from White Nelson Diehl Evans LLP ("WNDE"). Mr, Morgan and other WNDE staff will load each pre -numbered balls into the manually operated drum. • Prior to the start of the random ball selection, Morgan will discuss the random selection process (Lottery) via a PowerPoint presentation to all attendees. • WNDE staff will monitor and operate the manually -operated drum at all times. • As each pre -numbered ball is selected, one City official and one WNDE staff will make a written record of the selection on the Master Listing. • Once Morgan or WNDE staff provides the Director or designee with the identifying (lottery) number associated with the selected ball, the Director or designee will be given time to assess the coordinates of the property and determine if the Applicant selected must be placed on a waiting list for the subject property. H. At the conclusion of the random selection process (Lottery) the WNDE staff and City Officials will compare the results. The results of the random selection process (Lottery) will be posted by no later than 12:00 PM on February 6, 2015 on the City's website. I. On or before February 12, 2015, Consultant will publish a report on the results of the random selection process (Lottery) which will include: • A description of the various procedures used both before and dieing the random selection process (Lottery) to assure a truly random selection of Applicants. • Conclusions that the random selection process (Lottery) was conducted in a fair, independent, and objective manner. Emphasis will be placed on the fact that no City of Santa Arra employee or elected official provided any guidance or direction on how to conduct the random selection process (Lottery). 7. INDEMNIFICATION: The existing hidemnification clause in the Consultant Agreement will remain unchanged. A new second paragraph will be added pursuant to this amendment as follows: R3 7. INDEMNIFICATION (CONTINUED): All parties understand that litigation could result in connection with the random selection process (Lottery). If any party files a legal action against the City in connection with the random selection process (Lottery) (including Applicants, federal or state regulatory agencies or other parties), and/or if Consultant is named as a Defendant or party to that action against the City, or any other separate legal action solely against Consultant, then City agrees to hold Consultant harmless with respect to such actions. All of Consultant's reasonable legal fees and costs associated with the litigation will be paid by the City, including but not limited to: • Attorney's fees • Document production costs (salaries and out-of-pocket costs) • Cost to prepare for and attend depositions • Cost to prepare for and testify at trial • Other costs associated with the litigation, such as meetings with attorneys, meeting with City officials, etc. • Court costs • A settlement amount, judgment, and/or any imposed penalties. The City will be invoiced by the Consultant based on the hourly rates listed on Exhibit A of the Consultant Agreement in relation to any resulting litigation following the random selection process (Lottery). MARIA D.IIUIZAR Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attogy By:_ Sandra City Attorney CIT S ANA C�Aq 4MS DAVID CAVAZOS City Manager CONSULTANT: E 9%,Y4 WILLIAM S. MORGAN Principal Tax ID# 33-0686301 Wbite Nelson Diebl Evans LLP Certified Public Accountants & Consultants E SIGNATURES: ATTEST: MARIA D. HUIZAR. Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney Sandra Schwarzmann Senior Assistant City Attorney RECOMMENDED FOR APPROVAL: VINCENT FREGOSO Interim Executive Director Planning & Building Agency N-2015-006-001 CITY OF SANTA ANA DAVID CAVAZOS City Manager WILLIAMS. MOR AN Principal Tax ID# 33-0686301 White Nelson Diehl Evans LLP Certified Public Accountants & Consultants N-2016-006-001 RECOMMENDED FOR APPROVAL: VINCENT FRESO terim Executive Inireetor Planning & Building Agency