HomeMy WebLinkAbout25A - AGMT WITH LIEBERT CASSIDY WHITMOREREQUEST FOR
COUNCIL ACTION
CITY COUNCIL MEETING DATE:
FEBRUARY 18, 2020
TITLE:
APPROVE AGREEMENTS WITH
LIEBERT CASSIDY WHITMORE FOR
SPECIAL LEGAL COUNSEL SERVICES
AND CONSORTIUM EMPLOYEE TRAINING
SERVICES ($220,000)
/s/Kristine Ridge
CITY MANAGER
CLERK OF COUNCIL USE ONLY:
APPROVED
❑ As Recommended
❑ As Amended
❑ Ordinance on 1 s' Reading
❑ Ordinance on 2ntl Reading
❑ Implementing Resolution
❑ Set Public Hearing For
CONTINUED TO
FILE NUMBER
RECOMMENDED ACTION
1. Authorize the City Manager to execute an agreement with Liebert Cassidy Whitmore for
special legal counsel services for labor contract negotiation assistance and legal consultation
services for the period of January 1, 2020 through June 30, 2022 in the amount of
$200,000.00 subject to non -substantive changes approved by the City Manager and City
Attorney.
2. Authorize the City Manager to execute an agreement with Liebert Cassidy Whitmore for
expert training and consultation services for a one-year period beginning January 1, 2020
through December 31, 2020, with three one-year renewal options, for a total contract amount
not -to -exceed $20,000, subject to non -substantive changes approved by the City Manager
and City Attorney.
DISCUSSION
The Human Resources Department is proposing to enter into a special legal counsel services
agreement with Liebert Cassidy Whitmore (LCW) for labor contract negotiation assistance. The
labor contracts with the Part -Time Civil Service Employees International Union and Part Time Non -
Civil Service Employees International Union have expired and are currently in labor negotiations
with the legal assistance of LCW. Labor contracts for the Santa Ana Police Officers Association
and Santa Ana Police Management Associate are set to expire on June 30, 2021. Labor contracts
for the Confidential Association of the City of Santa Ana, Santa Ana Management Association, and
Full Time Service Employees International Union are set to expire on June 30, 2022. Labor
negotiations can begin at least six months before labor contracts expire and often continue past
the labor contract expiration dates. This agreement with LCW will provide a chief negotiator for
these required labor processes and will provide labor relations continuity with the various
bargaining groups.
In addition, the Executive Director of Human Resources is requesting a renewal of the membership
in a legal consortium with LCW covering the time period of January 1, 2020 through December 31,
25A-1
Liebert Cassidy Whitmore Agreement
February 18, 2020
Page 2
2023. This consortium is composed of approximately 48 agencies in the Orange County area that
have the same needs and have agreed to enter into identical agreements. Members of the
consortium receive expert training and consulting services from LCW in the areas of workforce
management and employee relations.
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 the 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
#5, Create a culture of innovation and efficiency within the organization, 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 are budgeted and available in the following account for the specified year:
Fiscal
Accounting
Fund
Accounting Unit,
Amount
Year
Unit -Account #
Description
Account Description
FY 19-20
01109050-
General Fund
HR Department Contract
$55,000
62300
Services — Professional
Funds will be budgeted and made available in the following account for the specified years of the
three annual renewal periods if the renewals are exercised:
Fiscal
Accounting
Fund
Accounting Unit,
Amount
Year
Unit -Account #
Description
Account Description
FY 20-21
01109050-
General Fund
HR Department Contract
$80,000
62300
Services — Professional
FY 21-22
01109050-
General Fund
HR Department Contract
$80,000
62300
Services — Professional
FY 22-23
01109050-
General Fund
HR Department Contract
$5,000
62300
Services — Professional
25A-2
Liebert Cassidy Whitmore Agreement
February 18, 2020
Page 3
G1»CZUT/: I.FT" rU11]01I y9►1.LWO16111►r�yl
Steven V. Pham Kathryn Downs, CPA
Executive Director Executive Director
Human Resources Department Finance and Management Services Agency
Exhibits: 1. Legal Services Agreement with Liebert Cassidy Whitmore
2. Agreement for Special Services with Liebert Cassidy Whitmore
25A-3
EXHIBIT 7
LEGAL SERVICES AGREEMENT WITH
LIEBERT CASSIDY WHITMORE
This AGREEMENT, made and entered into this 18th day of February, 2020, by and between
Liebert Cassidy Whitmore, a Professional Law Corporation ("Attorneys"), and the City of
Santa Ana, a charter city and municipal corporation duly organized and existing under the
constitution and laws of the State of California ("City").
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:
SCOPE OF SERVICES
Attorneys will assist and advise the Executive Director of Human Resources Department and
the City Attorney in transactional and negotiation services related to the City's labor 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 confirm 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
$390 an hour. Time will be billed in 1/10th 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 $200,000 during
the term of this Agreement. City agrees to compensate Attorneys for any work
performed after January 1, 2020, up to the effective date listed above.
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
N22595vt 25i4-4
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.
C!I Y DR4 I
This Agreement shall commence on February 4, 2020 and terminate on June 30, 2022. unless
terminated earlier pursuant to Section 13, below.
5. INDEPENDENT CONTRACTORS
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 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 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.
6. INSURANCE
Prior to undertaking performance of work under this Agreement, Consultant shall maintain
and shall require its subcontractors, if any, to obtain and maintain insurance as described below:
a. Commercial General Liability Insurance. Consultant 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,
#22595v1 5
25A-5
including death resulting therefrom and damage to property, resulting from any act
or occurrence arising out of Consultant'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
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, Consultant, if Consultant 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, Consultant agrees to obtain and maintain any employer's liability
insurance with limits not less than $1,000,000 per accident.
d. 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 Consultant
pursuant to this section:
i. Consultant 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. Consultant shall supply City with a fully executed additional insured
endorsement.
#22595v1 2 �A-6
f. If Consultant 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 Consultant's right to be paid for its time and materials expended prior to
notification of termination. Consultant waives the right to receive compensation
and agrees to indemnify the City for any work performed prior to approval of
insurance by the City.
9. 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.
10. 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 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 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.
11. 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.
12. 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
#22595vt 25i4-7
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 Council
City of Santa Ana
20 Civic Center Plaza (M-30)
P.O. Box 1988
Santa Ana, California 92702-1988
Facsimile (714) 647-6956
Courtesy Copy: Executive Director Human Resources
City of Santa Ana
20 Civic Center Plaza
P.O. Box 1988
Santa Ana, California 92702-1988
Facsimile (714) 647-6930
And: City Attorney
City of Santa Ana
20 Civic Center Plaza (M-29)
Santa Ana, California 92702-1988
To Attorneys: Liebert Cassidy Whitmore
6033 W. Century Blvd., 5th Floor
Los Angeles, CA 90045
Attention: Peter brown, Esq.
A party may change its address by giving notice in writing to the other party. Thereafter,
any notice, tender, demand, delivery, or other 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.
13. EXCLUSIVITY AND AMENDMENT
This Agreement represents the complete and exclusive statement between the City and
Attorneys, 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 Attorneys. 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 Attorneys or the City. Each
party to this Agreement acknowledges that no representations, inducements, promises or
u22595vt 25A-8
agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any
parties, which are not embodied herein.
14. 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 of this
Agreement performed by City personnel or by other Attorneys retained by City.
15. TERMINATION
This Agreement may be terminated by the City with thirty (30) days written notice of
termination to the Consultant.
a. Asa conditions 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 meet the standards of performance
specified in the Recital of this Agreement.
16. NON-DISCRIMINATION
Attorneys 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. Attorneys affirm that it is an equal opportunity employer and shall comply with all
applicable federal, state and local laws and regulations.
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. 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 terms of this Agreement, and shall
#22595vt 254-9
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 tact, held by the signatory or is withdrawn.
19. COUNTERPARTS; SIGNATURES
This Agreement may be executed in counterparts, secured via facsimile transmission or
otherwise, each of which shall be deemed to be an original. Photocopies of any executed
counterpart shall have the same force and effect as an original. City further acknowledges that it
has read and received a copy the full text Section 6148 of the California Business and Professions
Code prior to signing this Agreement.
20. NO GUARANTEES
City understands and acknowledges that there are certain risks and uncertainties in the
pursuit of any matter for which Attorneys have been retained, that law is not an exact science, that
Attorneys have made no representations or guarantees of success regarding the conclusion of any
particular matter, and that all expressions relative thereto are matters of Attorneys' opinion
only. In other words, Attorneys make no representations or guarantees of success regarding any
matter.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year
first above written.
ATTEST:
Daisy Got��jjez
Clerk of the Council
FORIAPPROVAL:
Steven PhAA
Executive ffireetor. Human Resources
APPROVED AS TO FORM:
SONIA R. CARVALHO
City Attorney
By:
Laura A. Rossini
Senior Assistant City Attorney
#3Z595vI
CITY OF SANTA ANA
Kristine Ridge
City ManageX
DY WHITMORE, PLC
SLRpfr 1 f ea-e t," aoi ✓1
25A-10
EXHIBIT 2
AGREEMENT FOR SPECIAL SERVICES
This Agreement is entered into between the City of Santa Ana, A Municipal Corporation, hereinafter referred
to as "Agency," and the law firm of LIEBERT CASSIDY WHITMORE, A Professional Corporation, hereinafter
referred to as "Attorney."
WHEREAS Agency has the need to secure expert training and consulting services to assist Agency in its
workforce management and employee relations; and
WHEREAS Agency has determined that no less than forty-eight (48) public agencies in the Orange County
area have the same need and have agreed to enter into identical agreements with Attorney; and
WFMREAS Attorney is specially experienced and qualified to perform the special services desired by the
Agency and is willing to perform such services;
NOW, THEREFORE, Agency and Attorney agree as follows:
Attorney's Services:
During the year beginning January 1, 2020, Attorney will provide the following services to Agency (and the
other aforesaid public agencies):
Six (6) days of group training workshops covering such employment relations subjects as management rights
and obligations, negotiation strategies, employment discrimination and affirmative action, employment
relations from the perspective of elected officials, performance evaluation (administering evaluations),
grievance and discipline administration for supervisors and managers, planning for and responding to
concerted job actions, current court, administrative and legislative developments in personnel administration
and employment relations, etc., with the specific subjects covered and lengths of individual workshop
presentations to be determined by Agency and the other said local agencies.
It is expressly understood that the material used during these presentations, including written handouts and.
projected power points are provided solely for the contracted workshops. This agreement warrants there will be
no future use of Liebert Cassidy Whitmore material in other trainings or formats without the expressed written
permission of Liebert Cassidy Whitmore. Any such use will constitute a violation of this agreement and
copyright provisions.
2. Availability of Attorney for Agency to consult by telephone. Consortium calls cover questions that the attorney
can answer quickly with little research. They do not include the review of documents, in depth research, written
responses (like an opinion letter) or advice on on -going legal matters. The caller will be informed if the question
exceeds the scope of consortium calls. Should the caller request, the attorney can assist on items that fall outside
the service, but these matters will be billed at the attorney's hourly rate. (See additional services section.)
3. Providing of a monthly newsletter covering employment relations developments.
4. Annual Access to Premium Liebert Library Services,
Fee:
Attorney will provide these special services to Agency for a fee of Four Thousand Four Hundred Thirty Five
Dollars ($4,435.00) payable in one payment prior to February 1, 2020. The fee, if paid after February 1, 2020 will be
$4,535.00.
9147694,1 ER020-013
25A-11
Said fee will cover Attorney's time in providing said training and consultative services and the development
and printing of written materials provided to attendees at the training programs.
Professional Liability Insurance:
Attorney shall maintain professional liability insurance with limits not less than one million dollars per
occurrence throughout the duration of the contract.
Independent Contractor:
It is understood and agreed that Attorney is and shall remain an independent contractor under this Agreement.
Term:
The term of this Agreement is twelve (12) months commencing January 1, 2020. The Agreement may be
renewed annually, by the written consent of the parties, for three consecutive years with a fee not to exceed $20,000.
Condition Precedent:
It is understood and agreed that the parties' aforesaid rights and obligations are contingent on no less than
forty-eight (48) local agency employers entering into a substantially identical Agreement with Attorney on or about
January 1, 2020.
LIEBERT CASSLDY WIRTMORE
A Professional Corporation
CITY OF SANTA ANA
A Municipal Corporation
W
ame: Krisine Ridge
Date: 0 3l Title: City Manager
Date:
[Signatures continue on the next page]
ATTEST:
91476943 ER020-013
25A-12
DAISY GOMEZ
Clerk of the Council
APPROVED AS TO FORM:
SONIA R. CARVALHO
City Attorney
0
Laura A. Rossini
Senior Assistant City
Attorney
RECOMMENDED FOR
APPROVAL:
STEVEN V. PHAM
Executive Director of Human
Resources
[Signature page-Liebert Cassidy
Whitmore Consortium
Agreement]
9147694.1 ER020-013
25A-13