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HomeMy WebLinkAbout06-19-2018 Agenda Item 07 - Liebert Cassidy Whitmore Contract, 2018-2019Meeting Date: 6/19/2018 FROM: Monica Irons, Director of Human Resources PREPARED BY: Elizabeth Turbow, Human Resources Administrative Assistant SUBJECT: CONTRACT WITH LIEBERT CASSIDY WHITMORE RECOMMENDATIONS 1. Authorize the City Manager to execute a contract with Liebert Cassidy Whitmore (LCW) to provide specialized employment and labor relations legal services to the City of San Luis Obispo for a term of five years. 2. Approve an amount not to exceed $84,800 in fiscal year 2018-19 (Attachment A). 3. Authorize the City Manager to annually approve a contract amount as included in the annual budget appropriation. Background LCW is a full-service labor, employment, and education law firm specializing in public sector employment law. The firm has provided employment and labor relations legal services to the City since 2005 following a request for proposals for labor relations services. LCW is also on the City Attorney’s on-call attorney list for the categories of Labor Employment, Pension and Benefits Programs as a result of a Request for Qualifications issued by the City Attorney’s office in 2014. LCW has provided excellent support in the critical and evolving area of labor relations, negotiations, and employment law during the past several years. Due to their expertise they supplement staff in the Human Resources and City Attorney departments, including representing the City in the role of chief negotiator during several labor negotiations. As staff completes fiscal year 2017-18 and plans for fiscal year 2018-19, it is apparent there are several ongoing and anticipated labor relations matters that will require specialized knowledge and services. These include: 1) continuing to advise the City Council for its role in the labor negotiations with represented labor groups (the San Luis Obispo Firefighters Association, Local 3523, the San Luis Obispo Police Officers Association, the San Luis Obispo Police Staff Officers Association, and the San Luis Obispo City Employees Association), 2) providing chief negotiator and/or advisory services for negotiations with these labor groups, 3) concluding an internal review of the Federal Labor Standards Act (FLSA) compliance, 4) representing the City in grievance hearings if needed, 5) advising staff on disciplinary matters as needed. Packet Pg. 77 Item 7 FISCAL IMPACT Sufficient funds are included in the Human Resources Consultant Services line item of the 2018- 19 Supplemental Budget as indicated in the chart below. In addition, given that it is difficult to predict legal costs for potential grievances, litigation defense, disciplinary matters, and/or personnel investigations, staff requests carrying forward exist ing unexpended funds that were encumbered in 2017-18. Item Account Number Amount 2018-19 Budget for LCW 100.30100.7227 $42,400 Budget remaining from 2017-18 100.30100.7227 $42,400* Total Budget $84,800 Total Amount of the Contract Not to exceed $84,800 Remaining Balance $0 *May use some of this amount before end of 17-18 fiscal year. Will request carry over remaining balance at that time. ALTERNATIVES 1) Direct staff to issue an RFP for legal services instead contracting with LCW.This is not advised given the long-standing relationship with LCW and excellent service they have provided. 2)Do not approve the additional funding for LCW. This is not recommended as legal demands are difficult to predict and the funds are available for this purpose. Attachments: a - LCW 2018-19 Contract Packet Pg. 78 Item 7 8112054.1 LC001-009 AGREEMENT FOR SPECIAL SERVICES This Agreement is entered into between the law firm of LIEBERT CASSIDY WHITMORE, a Professional Corporation (“Attorney”), and the CITY OF SAN LUIS OBISPO, a Municipal Corporation (“City”). 1. Conditions This Agreement will not take effect, and Attorney will have no obligation to provide services, until City returns a properly signed and executed copy of this Agreement. 2.Attorney’s Services Attorney agrees to provide City with consulting, representational and legal services pertaining to employment relations matters, including representation in administrative and City proceedings, as requested by City or otherwise required by law. 3. Fees, Costs, Expenses City agrees to pay Attorney the sums billed monthly for time spent by Attorney in providing the services, including reasonable travel time, not exceed $84,800 unless mutually agreed upon by the parties. The range of hourly rates for Attorney time is from Two Hundred and Ten to Three Hundred Seventy Dollars ($210.00 - $350.00), One Hundred Ninety-Five Dollars to Two Hundred and Thirty Dollars ($195.00 - $230.00) for time of Labor Relations/HR Consultant and from Eighty to One Hundred Seventy Dollars ($80.00 - $170.00) for time of paraprofessional and litigation support staff. Attorney reviews its hourly rates on an annual basis and, if appropriate, adjusts Packet Pg. 79 Item 7 8112054.1 LC001-009 them effective July 1. Attorneys and paraprofessional staff bill their time in minimum units of one-tenth of an hour. City agrees to reimburse Attorney for necessary costs (including travel expenses) incurred by Attorney on behalf of City. Attorney bills photocopying charges at Fifteen Cents ($.15) per page and facsimile charges at Twenty-Five Cents ($0.25) per page. A Public Agency Fee and Cost Schedule is attached to this Agreement and is incorporated herein by reference. Payment by City against monthly billings is due upon receipt of statements, and is considered delinquent if payment is not received within thirty (30) days of the date of the invoice. The California Business & Professions Code requires us to inform you whether we maintain errors and omissions insurance coverage applicable to the services to be rendered to you. We hereby confirm that the firm does maintain such insurance coverage. 4. Arbitration of Professional Liability or Other Claims Disputes. If a dispute between City and Attorney arises over fee s charged for services, the controversy will be submitted to binding arbitration in accordance with the rules of the California State Bar Fee Arbitration Program, set forth in California Business and Professions Code, sections 6200 through 6206. The arbitrator or arbitration panel shall have the authority to award to the prevailing party attorne ys’ fees, costs and interest incurred. Any arbitration award may be served by mail upon either side and personal service shall not be required. If a dispute arises between City and Attorney over any other aspect of the attorney-client relationship, including, without limitation, a claim for breach of professional duty, that dispute will also be resolved by arbitration. It is understood that Packet Pg. 80 Item 7 8112054.1 LC001-009 any dispute as to any alleged breach of professional duty (that is, as to whether any legal services rendered under this agreement were allegedly unnecessary, unauthorized, omitted entirely, or were improperly, negligently or incompetently rendered) will be determined by submission to arbitration as provided by California law, and not by a lawsuit or resort to court process except as California law provides for judicial review of arbitration proceedings. Both parties to this agreement, by entering into it, are giving up their constitutional right to have any such dispute decided in a court of law before a jury, and instead are accepting the use of arbitration. Each party is to bear its own attorney’s fees and costs. 5. Hold Harmless and Indemnification Attorney agrees to indemnify, protect and hold City and its agents, officers and employees harmless from and against any and all claims asserted or liability established for damages or injuries to any person or property, including injury to the Attorney’s employees, agents or officers that arise from or are connected with or are caused or claimed to be caused by the negligent acts or omissions of Attorney, and its agents, officers or employees, in performing the work or services herein, and all expenses of invest igating and defending against same; provided, however, that the Attorney’s duty to indemnify and hold harmless shall not include any claims or liability arising from the established sole negligence or willful misconduct of the City, its agents, officers or employees. 6. Insurance Attorney shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property which may arise from or in Packet Pg. 81 Item 7 8112054.1 LC001-009 connection with the performance of the work hereunder by the At torney, its agents, representatives, employees or subcontractors. Minimum Scope of Insurance. Coverage shall be at least as broad as: 1. Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001). 2. Insurance Services Office form number CA 0001 (Ed. 1/87) covering Automobile Liability, code 1 (any auto). 3. Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance. 4. Errors and Omissions Liability insurance as appropriate to the attorney’s profession. Minimum Limits of Insurance. Contractor shall maintain limits no less than: 1. General Liability: $1,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. 2. Automobile Liability: $1,000,000 per accident for bodily injury and property damage. 3. Employer's Liability: $1,000,000 per accident for bodily injury or disease. 4. Errors and Omissions Liability: $1,000,000 per occurrence. Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by City. City may review options with Attorney, which may Packet Pg. 82 Item 7 8112054.1 LC001-009 include reduction or elimination of the deductible ($50,000) or self-insured retention, substitution of other coverage, or other solutions. Other Insurance Provisions. The general liability and automobile liability policies are to contain, or be endorsed to contain, the following provisions: 1. The City, its officers, officials, employees, and agents are to be covered as additional insureds as respects: liability arising out of activities performed by or on behalf of the Attorney; products and completed operations of th e Attorney; premises owned, occupied or used by the Attorney; or automobiles owned, leased, hired or borrowed by the Attorney. The coverage shall contain no special limitations on the scope of protection afforded to the City, its officers, official, employees, or agents. 2. For any claims related to this project, the Attorney’s insurance coverage shall be primary insurance as respects the City, its officers, officials, employees, agents and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, agents or volunteers shall be excess of the Attorney’s insurance and shall not contribute with it. 3.The Attorney’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. 4. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits except after 30 (thirty) days' prior written notice has been given to the City. Packet Pg. 83 Item 7 8112054.1 LC001-009 Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A:VII. Verification of Coverage. Attorney shall furnish the City with a certificate of insurance showing maintenance of the required insurance coverage. Original endorsements effecting general liability required by this clause must also be provided. The endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All endorsements are to be received and approved by the City before work commences. 7. File Retention After our services conclude, Attorney will, upon City’s request, deliver the file for the matter to City, along with any funds or property of City’s in our possession. If City requests the file for the matter, Attorney will retain a copy of the file at the City’s expense. If City does not request the file for this matter, we will retain it for a period of seven (7) years after this matter is closed. If City does not request delivery of the file for this matter before the end of the seven (7) year period, we will have no further obligation to retain the file and may, at our discretion, destroy it without further notice to City. At any point during the seven (7) year period, City may request delivery of the file. Attorney will endeavor to timely inform City prior to destruction of files in order that City may elect to have them shipped to City at its expense. 8. Assignment This Agreement is not assignable without the written consent of City. 9. Independent Contractor It is understood and agreed that Attorney, while engaged in performing the terms of this Agreement, is an independent contractor and not an employee of City. Packet Pg. 84 Item 7 8112054.1 LC001-009 10. Authority The signators to this Agreement represent that they hold the positions set forth below their signatures, and that they are authorized to execute this Agreement on behalf of their respective parties and to bind their respective parties hereto. 11. Term This Agreement is effective July 1, 2018 to June 30, 2019, and may be modified by mutual agreement of the parties. This agreement shall be terminable by either party upon thirty (30) days written notice. LIEBERT CASSIDY WHITMORE CITY OF SAN LUIS OBISPO A Professional Corporation A Municipal Corporation By __________________________ By_______________________ J. Scott Tiedemann Title: Managing Partner Title: Date _________________________ Date _____________________ APPROVED AS TO FORM By ______________________ Title: Date _____________________ I. PUBLIC AGENCY FEE SCHEDULE Hourly Rates (As of Agreement Effective Date) Partners $370.00 Senior Counsel $320.00 Packet Pg. 85 Item 7 8112054.1 LC001-009 Associates $210.00 - $300.00 Labor Relations/Human Resources Consultant $195.00 - $230.00 Paraprofessionals & Litigation Support $80.00 - $170.00 II. COST SCHEDULE Photocopies $0.15 per copy Facsimile Transmittal $0.25 per page Packet Pg. 86 Item 7