LEGAL SERVICES AGREEMENT
WITH LIEBERT CASSIDY WHITMORE
THIS AGREEMENT is made and entered into this 21st day of November, 2023, by and between Liebert Cassidy Whitmore, a Professional Law Corporation ("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 ("City").
RECITALS
The City desires to employ Attorneys to assist the City in providing labor negotiations and labor relations and with defending the City before administrative boards on labor matters. Legal services will include but are not limited to providing legal advice, drafting of labor relations documents, researching legal issues, attending labor negotiation meetings, providing negotiation services to the City, representing the City before administrative boards regarding labor matters, and drafting legal pleadings.
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 proceedings before the California Public Employment Relations Board and other administrative boards 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 City in transactional and negotiation services related to the City's labor negotiations with any and all City labor organizations and/or representing the City before administrative boards when and as requested by the City. 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.
COMPENSATION
a. FEES City agrees to compensate Attorneys, and Attorneys agree to accept from City, as and for payment in full for all services for the foregoing Actions, compensation at the rates set forth in the attached fee schedule in Exhibit A. Time will be billed in 1/10th of an hour increments. During the term of this Agreement, the total amount authorized for services pursuant to this Agreement is three hundred thousand dollars and no cents ($300,000.00). This amount includes compensation for services provided since July 1, 2023.
REIMBURSEMENT FOR COSTS City agrees to reimburse Attorneys for out-of- pocket expenses, including but not limited to, mileage, copying costs, service of process, mail services, and any relevant services authorized by the City Attorney in connection with the performance of duties under this Agreement. Copying charges will be reimbursed at the rate of 10 cents per page. Any costs in excess of $5,000 require approval of the City Attorney prior to incurring the expense. All expenses must have supporting documentation submitted with the invoice.
METHOD OF PAYMENT Attorneys shall submit a monthly statement specifying the services performed, dates and number of hours, and an itemization of expenses related thereto with supporting documentation (i.e. receipts, invoices, copy of check, etc.).
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 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 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 November 21, 2023 and terminate on December 31, 2026, 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 one (1) additional 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 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.
2 6. INSURANCE
a. Attorneys shall provide to the City proof of 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:
i. Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an "occurrence" basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $1,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit. ii. Automobile Liability: Insurance Services Office Form Number CA 0001 covering, Code 1 (any auto), or if Instructor has no owned autos, Code 8 (hired) and 9 (non-owned), with limits no less than $1,000,000 per accident for bodily injury and property damage.
ili. Workers' Compensation: as required by the State of California, with Statutory Limits, and Employer's Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease. iv. Professional Liability (errors and omissions) insurance: with a combined single limit of not less than $2,000,000 per claim, and maintain such insurance throughout the term of this Agreement.
If the Attorneys maintains broader coverage and/or higher limits than the minimums shown above, the City of Santa Ana requires and shall be entitled to the broader coverage and/or the higher limits maintained by the Attorneys. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City of Santa Ana. c. Other Insurance Provisions - The insurance policies are to contain, or be endorsed to contain, the following provisions:
i. Additional Insured Status- The City of Santa Ana, its officers, officials, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the Attorneys including materials, parts, or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the Attorney's insurance (at least as broad as ISO Form CG 20 10 11 85 or if not available, through the addition of both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 if a later edition is used).
ii. Primary Coverage- For any claims related to this contract, the Attorney's insurance coverage shall be primary coverage at least as broad as ISO CG 3 20 01 04 13 as respects the City of Santa Ana, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the City of Santa Ana, its officers, officials, employees, or volunteers shall be excess of the Attorney's insurance and shall not contribute with it. ill. Notice of Cancellation- Certificate of Insurance shall provide thirty (30) day prior written notice of cancellation in a form approved by the City. d. Waiver of Subrogation- Attorneys hereby grants to City of Santa Ana a waiver of any right to subrogation, which any insurer of said Investigators may acquire against the Entity by virtue of the payment of any loss under such insurance.
Attorneys agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the Entity has received a waiver of subrogation endorsement from the insurer. e. 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 Attorney's right to be paid for its time and materials expended prior to notification of termination.
7. 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.
8. 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 City Attorney, or selected members of his/her office, as directed by the City Attorney. 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. 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.
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 first class or certified mail, postage prepaid, or sent by facsimile or other electronic communication in the manner provided in this Section, to the following persons:
To City: City Clerk
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 Human Resources Agency
City of Santa Ana
20 Civic Center Plaza (M-24)
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 Attorneys: Attention: J. Scott Tiedemann, Managing Partner Liebert Cassidy Whitmore, APC
6033 W. Century Blvd., 5'h 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 5 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 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 that 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 City at any time. In such event, Attorneys shall be entitled to receive and the City shall pay Attorneys compensation for all services performed by Attorneys prior to receipt of such notice of termination. As a condition of such payment, Attorneys shall deliver to the City all files and records generated under this Agreement as of such date.
Attorneys may terminate this agreement, subject to their obligation to provide written reasonable notice of at least thirty (30) days to arrange alternative representation. In such case, City agrees to secure new counsel as quickly as possible and to cooperate fully in the substitution of the new counsel as counsel of record in in the Actions.
14. NON-DISCRIMINATION
Attorneys shall not discriminate because of race, color, creed, relation, sex, marital status, sexual orientation, age, national origin, ancestry, disability or any other protected class pursuant to federal or state 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
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.
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 terms 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.
18. COUNTERPARTS; SIGNATURES
This Agreement may be executed in counterparts, secured via facsimile transmission, email, 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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written.
ATTEST: CITY OF SANTA ANA
Jennifer Hall Steven Mendoza
City Clerk Acting City Manager
7 APPROVED AS TO FORM:
Sonia R. Carvalho
City Attorney
Laura A. Rossini
Laura A. Rossini
Chief Assistant City Attorney
RECOMMENDED FOR APPROVAL: LIEBERT CASSIDY WHITMORE, APC Ramon Figueroa By: J. Scott Tiedmann
Acting Executive Director Managing Partner
Human Resources
Exhibit A
LIEBERT CASSIDY WHITMORE
FEE SCHEDULE
Partners $425.00
Senior Counsel $355.00
Associates $260.00 - $335.00
Labor Relations/Human Resources Consultant $270.00
Paralegals $145.00
E-Discovery Specialists $145.00
Law Clerks $145.00 - $185.00