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HomeMy WebLinkAbout1/24/2018 - STAFF REPORTS - 1.V. IN �91% M sp4 iy W .� . CITY COUNCIL STAFF REPORT RA 0 cq[1F01t DATE: January 24, 2018 CONSENT CALENDAR SUBJECT: ENGAGEMENT OF LEGAL COUNSEL, LIEBERT CASSIDY WHITMORE FROM: David H. Ready, City Manager BY: Edward Z. Kotkin, City Attorney SUMMARY The City Attorney proposes to engage the services of a highly specialized municipal labor and employment law firm with a history and relationship with the City of Palm Springs. The City Attorney anticipates that Liebert Cassidy Whitmore will provide a wide variety of transactional and litigation services to the City of Palm Springs. RECOMMENDATION: 1) Approve Agreement No. , a Professional Services Agreement with Liebert Cassidy Whitmore APC, a California professional corporation, in a form substantially similar to that published with this staff report, subject to minor modification, within the reasonable discretion of the City Attorney (ATTACHMENT A); 2) Authorize the City Manager to execute all necessary documents STAFF ANALYSIS: In May 2017, the City of Palm Springs established the Office of the City Attorney as an in-house department to lead and coordinate in the direction and provision of all legal services to the City. The City Attorney has determined that it would be in the City's interest to establish a special counsel relationship with the law firm of Liebert Cassidy Whitmore. The City has a strong relationship with Peter Brown, a partner in the firm. Mr. Brown has served the City as its labor negotiations attorney for nearly a decade, and Liebert Cassidy Whitmore has provided excellent services in litigation (personally observed by the City Attorney) and with respect to the following areas: FLSA, CALPERS, and ACA. The City's Director of Human Resources concurs in the City Attorney's selection of this firm to provide municipal labor and employment legal services. Mr. Brown will serve as the liaison for services rendered by Liebert Cassidy Whitmore, working with the City Attorney as necessary. Mr. ITEM NO. .1 -V- City Council Staff Report January 24, 2018 -- Page 2 ENGAGEMENT OF SPECIAL LEGAL COUNSEL, LIEBERT CASSIDY WHITMORE Brown's impressive on-line biography can be reviewed at the following URL: https://www.lcwlegal.com/our-people/peter-brown. The firm has agreed to provide services at the following rates: Negotiations (Peter Brown): $350.00/hour, Partners: $325.00/hour, Senior Associate Attorneys: $275.00/hour, Junior Associate Attorneys (up to four [4] years): $250.00/hour, Paralegals: $135.00/ hour. The City Attorney has reviewed the agreement proposed for execution, and discussed its specific terms with Mr. Brown. Absent Council direction to the contrary, the City Attorney anticipates that the agreement will be signed as presented here, but requests authority for minor modifications. ALTERNATIVES: Reject the proposed professional services agreements. CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA) DETERMINATION: The proposed agreement is not a "project" for purposes of the California Environmental Quality Act (CEQA), as that term is defined by CEQA guidelines (Guidelines) section 15378. Engagement of lawyers is an organizational or administrative activity by the City of Palm Springs in furtherance of its police power, and will not result in a direct or indirect physical change in the environment, per section 15378(b)(5) of the Guidelines. FISCAL IMPACT: Sufficient funding is budgeted and available in contractual legal services, Account No. 001-1200-43220. Edward Z. Kotkin, David H. Ready, Esq., Ph.D City Attorney City Manager Attachments: A. Professional Services Agreement 02 ATTACHMENT A 03 PROFESSIONAL SERVICES AGREEMENT THIS PROFESSIONAL SERVICES AGREEMENT (the "Agreement") is made and entered into as of this day of January, 2018, by and between the CITY OF PALM SPRINGS, a California charter city and municipal law corporation ("City"), and LIEBERT CASSIDY WHITMORE, APC, a California professional corporation, a California professional corporation (hereinafter "Firm"). RECITALS A. The City of Palm Springs, pursuant to its authority under the City Charter and all applicable law, acting by and through the City Manager, desires to contract with Firm to provide legal services for the City, on an on-going basis, as may be requested or required by the City Attorney or City Council, including without limitation labor negotiations, and transactional or litigation services arising from and related to labor and employment matters. B. Firm is qualified to, and desires to perform the foregoing professional services as necessary for the support of the City Attorney and the City Council. C. City and Firm wish to provide for the terms and conditions of retaining and employing Firm to provide legal services as set forth herein. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties agree as follows: AGREEMENT 1. Retention of Firm, Identification of Individual Legal Counsel City hereby retains and employs Firm to provide legal services as may be requested or required in support of the City Attorney or the City Council. However, City and Firm understand and agree that Peter Brown will serve as Firm's liaison to the City Attorney regarding all services hereunder. Services hereunder shall include but are not necessarily limited to labor negotiations, and transactional or litigation services arising from and related to labor and employment matters. 2. Independent Contractor. Firm and any attorneys or other persons employed by Firm,shall at all times be considered an independent contractor and not an employee of the City and not entitled to any benefits of the City's employees. Except to the extent provided herein, the City and its employees shall not have any control over the conduct of Firm. 3. Fees, Costs, and Expenses. 3.1 City agrees to pay Firm at the rates set forth in Exhibit"A,"which is attached hereto and is incorporated herein by reference. Od 1 3.2 City agrees to pay out-of-pocket costs and expenses associated with Firm's work pursuant to Exhibit "A." 4. Statements/Task-Billing. Firm shall prepare and present to City detailed monthly statements for professional and other services rendered to City for the month preceding the statement, indicating each task performed by Firm. City shall pay the statements within thirty (30) days of receipt of the same. Firm shall update City, upon request, regarding the status of Firm's billings. 5. Insurance and Indemnification. 5.1. Firm shall carry Professional Liability/Errors and Omissions insurances in an amount not less than one million dollars ($1,000,000.00) per occurrence and ($2,000,000.00) in aggregate. All insurance coverage shall be provided by an insurance company with a rating of A-, VII or greater in the latest edition of Best's Insurance Guide and authorized to do business in the State of California. Such policies shall not be canceled or materially changed absent thirty (30) days' prior written notice to the City. With respect to Professional Liability/Errors and Omissions insurance, Firm agrees to maintain such insurance for at least three (3) years after termination of this Agreement as long as such insurance is reasonably available on the market. 5.2. Firm agrees to indemnify, defend and hold harmless, the City, its City Council, officers, agents and employees from and against and claim, demands, damages, injury or judgment which arises out the negligent performance or willful misconduct of Firm in performing under this Agreement. 6. Term and Termination. The term of this Agreement shall continue until terminated by either party. Firm shall serve under the terms of this Agreement at the pleasure of City, and by a majority vote of the City Council, City hereby reserves the right to terminate this Agreement upon ten (10) days written notice to Firm for any reason or to require substitute attorney personnel. In the event that Firm's services are terminated, all unpaid charges shall be due and payable to Firm for work actually performed up to the time of termination and for any other work Firm completes at the direction of the City. Firm may terminate this Agreement with or without cause upon ninety (90) days written notice to the City. 7. Notice. Any notices required by this Agreement shall be given by personal service or by delivery of such notice by first-class mail, postage prepaid. Such notices shall be addressed to each party at the address listed below. Either party may change the information in such notice upon written notice as provided herein. 05 2 City: Firm: City of Palm Springs Liebert Cassidy Whitmore 3200 E. Tahquitz Canyon Way 6033 W. Century Blvd., 5th Floor Palm Springs, CA 92263-2743 Los Angeles, CA 90045 Attn: City Attorney Attn: Peter Brown, Partner Phone: 760.323.8205 Phone: (310) 981-2000 8. City Officers and Employees; Non-Discrimination. 8.2 No officer or employee of the City shall be personally liable to the Firm, or any successor-in-interest, in the event of any default or breach by the City or for any amount which may become due to Firm or to its successor, or for breach of any obligation of the terms of this Agreement. 8.2 Firm acknowledges that no officer or employee of the City has or shall have any direct or indirect financial interest in this Agreement nor shall Firm enter into any agreement of any kind with any such officer or employee during the term of this Agreement and for one year thereafter. Firm warrants that Firm has not paid or given, and will not pay or give, any third party any money or other consideration in exchange for obtaining this Agreement. 8.3 In connection with its performance under this Agreement, Firm shall not discriminate against any employee or applicant for employment because of actual or perceived race, religion, color, sex, age, marital status, ancestry, national origin (i.e., place of origin, immigration status, cultural or linguistic characteristics, or ethnicity), sexual orientation, gender identity,gender expression, physical or mental disability, or medical condition (each a "prohibited basis"). Firm shall ensure that applicants are employed, and that employees are treated during their employment, without regard to any prohibited basis. As a condition precedent to City's lawful capacity to enter this Agreement, Firm shall certify that its actions and omissions hereunder shall not incorporate any discrimination arising from or related to any prohibited basis in any Firm activity, including but not limited to the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship; and further,that Firm is in full compliance with the provisions of Palm Springs Municipal Code Section 7.09.040, including without limitation the provision of benefits, relating to non-discrimination in city contracting. 9. Conflicts of Interest. Firm represents that it presently has no interest and shall not acquire any interest, direct or indirect, in any legal representation which is in conflict with the legal services to be provided the City under this Agreement. Firm represents that no City employee or official has a material financial interest in Firm. During the term of this Agreement and/or as a result of being awarded this contract, Firm shall not offer, encourage or accept any financial interest in Firm's business from any City employee or official. 10. Files. All legal files of Firm pertaining to the City shall be and remain the property of City. Firm shall control the physical location of such legal files in a secure and accessible location during the term of this Agreement and be entitled to retain copies of such files, at Firm's expense, 46 3 upon termination of this Agreement. City agree that the Firm may, in its discretion, maintain all or part of the City's client file in electronic format.The Firm may store part or all of City documents using secure cloud storage services. If so, the Firm will apply all reasonable methods to maintain the confidentiality of City files, just as it does for City's non-digital information. City data will be password protected and encrypted using currently available technology. The City may obtain information from its files by written request to the Firm. 11. Modifications to the Agreement. Unless otherwise provided for in this Agreement, modifications relating to the nature, extent or duration of Firm's professional services to be rendered hereunder shall require the written approval of the parties. Any such written approval shall be deemed to be a supplement to this Agreement and shall specify any changes in the Scope of Services and the agreed-upon billing rate to be charged by Firm and paid by the City. 12. Assignment and Delegation. This Agreement contemplates the personal professional services of Firm and it shall not be assigned or delegated without the prior written consent of the City. Firm shall supervise delegated work, except where precluded from doing so by virtue of a conflict of interest and where otherwise agreed to by the parties hereto. 13. Legal Construction. 13.1 This Agreement is made and entered into in the State of California and shall, in all respects, be interpreted, enforced and governed under the laws of the State of California. 13.2 This Agreement shall be construed without regard to the identity of the persons who drafted its various provisions. Each and every provision of this Agreement shall be construed as though each of the parties participated equally in the drafting of same, and any rule of construction that a document is to be construed against the drafting party shall not be applicable to this Agreement. 13.3 The article and section, captions and headings herein have been inserted for convenience only, and shall not be considered or referred to in resolving questions of interpretation or construction. 13.4 Whenever in this Agreement the context may so require, the masculine gender shall be deemed to refer to and include the feminine and neuter, and the singular shall refer to and include the plural. 15. Entire Agreement. This Agreement contains the entire agreement and understanding of the parties with respect to the subject matter hereof, and contains all covenants and agreements between the parties with respect to such matter. 07 4 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date indicated in the preamble to this Agreement and represent that they are authorized to bind their respective parties. ATTEST: CITY OF PALM SPRINGS By: By: Anthony Mejia, David H. Ready, City Clerk City Manager APPROVED AS TO FORM: By: Edward Z. Kotkin City Attorney LIEBERT CASSIDY WHITMORE By: Signature Printed Name �8 5 EXHIBIT "A" LIBERT CASSIDY WHITMORE Rates and Billing Practices 1. Rates: Effective January 1, 2018,the hourly rates for legal personnel on this matter areas follows: Negotiations (Peter Brown) $ 350.00/hour Partners $ 325.00/hour Senior Associate Attorneys $ 275.00/hour Junior Associate Attorneys (up to four [41 years) $ 250.00/hour Paralegals $ 135.00/hour Billing Practices:Time is charged in minimum units of one-tenth (. 1) of an hour. The time charged will include the time spent on telephone calls relating to City's matter, including calls with City, witnesses, opposing counsel, court personnel, state filing agencies, vendors, and other necessary telephone calls. The legal personnel assigned to City's matter may confer among themselves about the matter, as required and appropriate. When they do confer, each person will charge for the time expended, as long as the work done is reasonably necessary and not duplicative. Likewise, if more than one of the legal personnel attends a meeting, court hearing, or other proceeding, each will charge for the time spent, as long as the attendance is required and appropriate. Firm will charge for waiting time in court and elsewhere and for travel time, both local and out of town. 2. Costs and Other Charges: (a) Firm may incur various costs and expenses in performing legal services under this Agreement. City agrees to pay for all costs, disbursements, and expenses in addition to the hourly fees.The costs and expenses commonly include, service of process charges,filing fees, court and deposition reporters'fees, jury fees, notary fees, deposition costs, long distance telephone charges, messenger and other delivery fees, postage, photocopying and other reproduction costs, travel costs including parking, mileage, transportation, meals and hotel costs, investigation expenses, consultants' fees, expert witness, professional, mediator, arbitrator and/or special master fees, and other similar items. Except for the items listed below, all costs and expenses will be charged at Firm's cost. • In-office photocopying: $0.10/page • Mileage: Per IRS Mileage Rates, currently$0.545/mile (b) Out of town travel. Client agrees to pay transportation, meals, lodging and all other costs of any necessary out-of-town travel by Firm's personnel. (c) Experts, Consultants and Investigators. To aid in the preparation or presentation of City's matter, it may become necessary to hire expert witnesses, consultants or investigators. City agrees to pay such fees and charges. Firm will select any expert witnesses,consultants or investigators to be hired, and City will be informed of and have the opportunity to consent to persons chosen and their charges. (d) Other Fees. City understands that if any matter proceeds to court action or arbitration, City may be required to pay fees and/or costs to other parties in the action. Any such payment will be entirely the responsibility of City. 09