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HomeMy WebLinkAbout25G - AGMT LEGAL COUNSEL SVCSREQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MAY 21, 2019 TITLE: APPROVE FIRST AMENDMENT TO AGREEMENT WITH LIEBERT CASSIDY WHITMORE (A-2019-039) INCREASING CONTRACT COST BY $10,000; AGGREGATE COST IS $120,000 (STRATEGIC PLAN NO. 7; 4, 6, & 7) CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 151 Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER —CITY MANAGER RECOMMENDED ACTION Authorize the City Manager and Clerk of the Council to execute a first amendment to the agreement entered into on March 5, 2019 between the City of Santa Ana and Liebert Cassidy Whitmore (LCW) for special legal counsel services for labor contract negotiation assistance and legal consultation services. This first amendment reflects a change in the Liebert Cassidy Whitmore (LCW) Partner hourly billing rate from $350 per hour to $370 per hour effective July 1, 2019, and adds $10,000 to the not to exceed amount of the agreement (A-2019-039) for a total aggregate amount of $120,000 to cover the costs associated with the increased rates; subject to non -substantive changes approved by the City Manager and City Attorney. The General Fund will pay for the additional $10,000. DISCUSSION Pursuant to Agreement No. 2019-039, the Human Resources Department entered into a special legal counsel services Agreement with LCW for labor contract negotiation assistance and legal consultation services on March 5, 2019 in the amount of $110,000 and covered the period of January 1, 2019 through December 31, 2019. On March 21, 2019, LCW informed the City that their Partner hourly billing rate will be increasing from $350 per hour to $370 per hour effective July 1, 2019. An amendment to the original agreement is necessary to document the correct hourly billing rate effective July 1, 2019. The additional $10,000 will help cover the cost of the increased hourly billing rate through the end of the Agreement. This amendment will ensure that LCW will be able to continue to serve as the City's chief negotiator and provide labor relations continuity with the union groups. 25G-1 Liebert Cassidy Whitmore Amendment May 21, 2019 Page 2 The City of Santa Ana has contracted with LCW in the past to assist and advise on various personnel and labor law matters. Based on the ongoing working relationship between the City and this firm, staff is recommending continued utilization of the firm's services. LCW has extensive experience working with public sector clientele throughout the state and has a staff of over 40 partners and associates in their Los Angeles office. STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's effort to meet Goal #7 — Team Santa Ana, Objective #4, Establish employee compensation that attracts and retains a highly qualified workforce, objective #6, Provide a positive workplace environment that supports the health of its employees and celebrates its success, and objective #7 Develop a culture of motivated and innovative leaders in the organization. FISCAL IMPACT Funds will be budgeted and made available in the Human Resources Department Contract Services — Professional account (No. 01109050-62300). The total aggregate amount is $120,000 which includgs the $10,000.00 that will be budgeted for FY 2019-20. APPROVED AS TO FUNDS AND ACCOUNTS: Z:�J O -V xz�- " Steven V. P m Kathryn Downs, CPA Executive Director Executive Director Human Resources Department Finance and Management Services Agency Exhibits: 1. Agreement for Legal Services with Liebert Cassidy Whitmore (A-2019-039) 2. First Amendment to Agreement for Legal Services with Liebert Cassidy Whitmore 25G-2 INSURANCE NOT ON FILE WORK MAY NOT PROCEED CLERK OF COUNCIL ig f , DATE: 0S a—`� THIS AGREEMENT is made and entered into this 5th day of March, 2019, by and between Liebert Cassidy Whitmore, a Professional Law Corporation ('Attomeys") 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"), APR 11 2019 LEGAL SERVICES AGREEMENT WITH LIEBERT CASSIDY WHITMORE A-2019-039 EXHIBIT 1 RECITALS A. The City desires to employ Attorneys to assist the City in its labor negotiations. Legal services will include but are not limited to providing legal advice, drafting of Memorandums of Understanding, researching legal issues, attending labor negotiation meetings, and providing negotiation services to the City. B. Attorneys represent that they are licensed to practice law in the State of California, have special experience and knowledge in the fields of employment and labor law matters, in particular public agency labor negotiations and desire to undertake said services. 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 Attorneys will assist and advise the Executive Director of Human Resources Department in transactional and negotiation services related to the City's tabor negotiations with any and all City labor organizations when and as requested by the Executive Director of Human Resources. Attorneys accept said retention and agree to perform, in a timely and efficient manner all such services as may be requested by the City. Attorneys shall confinn their acceptance of work requested by the City in writing by e-mail or letter, 2. COMPENSATION a. City shall compensate Attorneys based on actual amount of time spent in performing the services including for reasonable travel time. Partners will be billed at the rate of $350 an hour. Time will be billed in 1/1011' of an hour increments. Attorneys will submit a monthly statement, specifying the services performed, dates and number of hours and itemization of expenses related thereto. b. The total sum to be expended under this Agreement shall not exceed $110,000 during the term of this Agreement. Up to $,10;'9,00 -,of the funds will be used to pay outstanding invoices from the previous agreement between the parties for legal services for labor negotiations set forth in City Agreement # 2017-357 dated December 19, 2017. 25G-3 C. . City agrees to reimburse Attorneys for out-of-pocket expenses, including but not limited to, copying costs, service of process, and mail services authorized by the Executive Director of Human Resources in connection with the performance of duties under this Agreement. In-house printing, copying, and reproduction charges will be reimbursed at the rate of 20 cents per page. Any costs in excess of $5,000 requires the approval of the Executive Director of Human Resources prior to incurring the expense. All expenses must have supporting documentation submitted with the invoice. d. 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 the City. 3. CONTROL OF LEGAL MATTERS Attorneys agree that each and every matter or proceeding in which they undertake to assist the City, as aforesaid, shall be and remain under, and subject to the control and direction of said City at all stages, and that they shall at all times keep the Executive Director of Human Resources and the City Attorney informed of all matters pertaining thereto. City will keep Attorneys informed of all significant developments in matters related to any representation undertaken by Attorneys. Attorneys further agree, if and when their employment hereunder is terminated by City, as hereinafter specified, they shall return to the Executive Director of Human Resources and/or the City Attorney any and all files then in their possession concerning each and every matter or proceeding in which they represented the City pursuant to this Agreement. 4. TERM This Agreement shall commence on January 1, 2019 and terminate on December 31, 2019, unless terminated earlier pursuant to Section 13, below. The term of this Agreement may be extended upon a writing executed by the City Manager and the City Attorney for up to one (1) year. 5. INDEPENDENT CONTRACTOR Attorneys shall, during the entire term of this Agreement, be construed to be independent contractors and not an employee of the City. This Agreement is not intended nor shall it he 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 Attorneys perform the services which are the subject matter of this Agreement; however, the services to be provided by Attorneys shall be provided in a manner consistent with all applicable standards and regulations governing such services, Attorneys shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to its employees and shall be responsible for all applicable withholding taxes. 25G-4 6. INSURANCE Prior to undertaking performance of work under this Agreement, Attorneys shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. Attorneys shall maintain commercial general liability insurance which 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 Attorneys' 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 bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of $1,000,000 per occurrence and $2,000,000 in the aggregate. Such insurance shall (a) name the City, its officers, employees, agents, volunteers and representatives as additional insured(s); and (b) be primary and not contributory with respect to insurance or self-insurance programs maintained by the City. b. Worker's Compensation Insurance. In accordance with California State law, Attorneys, if Attorneys have any employees, are 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, Attorneys agree to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. C. Professional Liability, Attorneys shall provide to the City Attorney proof of Professional Liability (errors and omissions) insurance, with a combined single limit of not less than $1,000,000 per claim, and maintain such insurance throughout the term of this Agreement. If Attorneys fail or refuse to produce and maintain the insurance required by this section, or fail or refuse 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 Attorneys' right to be paid for its time and materials expended prior to notification of termination. d. The following requirements apply to the insurance to be provided by Attorneys pursuant to this section: (i) Attorneys shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved in form by the City. (ii) 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. 25G-5 e, If Attorneys fail or refuse to produce or maintain the insurance required by this section or fail or refuse 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 terminate this Agreement. Such termination shall not affect Attorneys' rights to be paid for its time and materials expended prior to notification of termination. Attorneys waive the right to receive compensation and agree to indemnify the City for any work performed prior to approval of insurance by the City. INDEMNIFICATION Attorneys agree to and shall indemnify and hold harmless the City, its officers, agents, employees, and representatives from liability for personal injury, malpractice, damages, restitution, judicial or equitable relief to the extent caused by Attorneys' negligent or wrongful performance or conduct related to this Agreement. B. CONFIDENTIALITY All information and documents shared with Attorneys, as well as all work performed by Attorneys in connection with this Agreement, should be treated as strictly confidential. Moreover, all communications between Attorneys and City shall be treated as protected by the attorney-client privilege and the attorney work product doctrine. Accordingly, information received by Attorneys from City should be kept in a secure place, and no information about this work may be disclosed to any third party without City's prior written approval. Attorneys shall provide materials directly to the Executive Director of Human Resources and the City Attorney, or selected members of his/her offices, as directed by the City Attorney and the Executive Director of Human Resources. All such information and any written product in connection with Attorneys' retention under this Agreement, shall be marked as "PRIVILEGED AND CONFIDENTIAL / ATTORNEY -WORK PRODUCT" and shall be the property of the City, and shall be returned/provided to the City with all copies upon the request of the City Attorney or Executive Director of Human Resources. Confidential information disclosed to either party by any subsidiary and/or agent of the otherparty 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 Attorneys, disclosed in a publicly available source; (c) is in rightful possession of the Attorneys without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Attorneys without reference to information disclosed by the City. 9. CONFLICT OF INTEREST CLAUSE Attorneys covenant that it presently has no interest and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement or which would constitute a violation of the Rules of Professional Conduct. 10. 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 25G-6 first class or certified mail, postage prepaid, or sent by facsimile 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, California 92702.1988 Facsimile (714) 647-6956 Copies to: Executive Director Hmnan Resources City of Santa Ana 20 Civic Center Plaza P.O. Box 1988 Santa Ana, California 92702-1988 Facsimile (714) 647-6930 City Attorney City of Santa Ana 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, California 92702-1988 Facsimile (714) 647-6515 To Consultant: Liebert Cassidy Whitmore 6033 W. Century Blvd., 5"' Floor Los Angeles, CA 90045 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 facsimile, 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. 11. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Attorneys regarding the subject matter herein, 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 and will serve to fully supersede existing Agreement. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Attorneys. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent 25G-7 with, or in addition to, that terms or conditions hereof, shall not bind or obligate Attorneys nor 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 are not embodied herein. 12. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Attorneys, Attorneys 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 consultants retained by City. 13. TERMINATION This Agreement may be terminated by the City with thirty (30) days written notice of termination to the Consultant. a. As a condition of such payment, the City may require Attorneys to deliver to the City all the work product completed as of such date, and in such case such work product shall be the property of the City unless prohibited by law, and Attorneys consent to the City's use thereof for such purposes as the City deems appropriate. b. Payment need not be made for work that fails to mect the standard of performance specified in the Recitals of this Agreement. 14. NON-DISCRIMINATION Attorneys shall not discriminate because of race, color, creed, relation, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities or any activities under this Agreement. Attorneys affirm that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 15. JURISDICITON -VENUE 11iis 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. 25G-8 16. PROFESSIONAL LICENSES Attorneys 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. Attorneys shall notify the City immediately and in writing of the inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 17, MISCELLANEOUS PROVISIONS 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 tenns 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. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year fust above written, 'U k`T_¢'� 1 O APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By, � Q4�.`lfA.� k . i LV1A Laura A. Rossini Senior Assistgnt City Attorney STEVEN V 1 fUAM, Extoutive Director Human Resources CITY OF SANTA ANA STEVEN MENDOZA �— Acting City Manager 25G-9 CASSIDY WHITMORE, PLC avtacpi.1)I V) vn 25G-10 EXHIBIT 2 FIRST AMENDMENT TO AGREEMENT FOR LEGAL SERVICES WITH LIEBERT CASSIDY WHITMORE THIS FIRST AMENDMENT to the above -referenced agreement is entered into May 21, 2019 by and between Liebert Cassidy Whitmore, a Professional Law Corporation (hereinafter "Attorneys"), 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"). RECITALS A. The parties entered into Agreement #2019-039 dated March 5, 2019 ("Agreement"), by which Consultant agreed to provide City with assistance with labor negotiations including providing legal advice, drafting of Memorandum of Understanding, researching legal issues, attending labor negotiation meetings and providing negotiation services to the City. B. Attorneys have advised that their hourly billing rates were raised and effective July 1, 2019, they will be implementing those rates. As a result, the parties agree to amend the current Agreement for legal services to reflect Attorneys' new rates effective July 1, 2019 and to add $10,000 to the not to exceed amount of the Agreement to cover the costs associated with the increased rates. Now, therefore, in consideration of the mutual and respective promises, and subject to the terms and conditions of said Agreement, except as herein modified, the parties agree as follows: 1. Section 2a, Compensation, is amended to change the hourly billing rate for Partners from $350 an hour to $370 an hour effective July 1, 2019. 2. Section 2b, Compensation, is amended to increase the not to exceed amount of the Agreement from " $1`10,bb td'$120,000 3. ExcepP as hereinabove modified, all terms and conditions of said Agreement shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this First Amendment to the Agreement on the date and year first written above. ATTEST: CITY OF SANTA ANA NORMA MITRE Acting Clerk of the Council [Signatures continue on the next page] KRISTINE RIDGE City Manager 25G-11 APPROVED AS TO FORNI SONIA R. CARVALHO City Attorney By:1Ct9�2rlll a Laura A. Rossini Senior Assistant City Attorney FOR APPROVAL: Executive DirVtor of Human Resources 25G-12 CASSIDY WHITMORE, APLC (Name) (Title)