Contract No. 10461 (CCS)
LAWYER-CLIENT RETAINER AGREEMENT
This Lawyer Client Retainer Agreement ("Agreement"), entered into this Sad day reference to the following:
RECITALS:
A. The City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of the City.
B. The Firm is qualified to do business, and is doing business, in the State of California.
The Firm represents it has the background, knowledge, experience and expertise necessary to provide the services set forth in this Contract.
C. The City and the Firm desire to enter into an agreement for the Firm to provide contractual services to the City as set forth herein, upon the terms and conditions set forth below.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows:
TERMS AND CONDITIONS
1. Terra, This Agreement begins on July 1, 2017 and terminates on June 30, 2022, unless sooner terminated in accordance with Section 14.
2. The Firm Services. The Firm will perform all of the services ("Services") described in Exhibit A, Scope of Services. The Firm will complete the Services in accordance with Exhibit B, Budget.
3. City Services. The City agrees to:
3.1 Make available to the Firm any currently existing documents, data or information required for the performance of the Services.
3.2 Designate a representative authorized to act on behalf of City.
Promptly examine and render findings on all documents submitted for staff review by the Firm.
4. Compensation. The City will compensate the Firm for the Services performed in an amount not to exceed $1,875,000 in five years, as set forth in Exhibit B.
5. Invoices. The firm will invoice the City for the Services in accordance with Exhibit B and the City will pay any undisputed amount within 30 days of receipt.
6. Notices. All notices, demands, requests or approvals to be given under this Agreement, must be in writing and will be deemed served when delivered personally, . 1-
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by email, or on the third business day after deposit in the United States mail, postage prepaid, registered or certified, addressed as follows:
6.1 All notices, demands, requests or approvals to the City:
City Attorney's Office
City of Santa Monica
1685 Main Street, Third Floor
Santa Monica, California 90401
Attention: Diana T. Burger
Re: Contract No. 10461
6.2 All notices, demands, requests or approvals to the Firm:
Liebert Cassidy Whitmore
6033 West Century Blvd., 5'" Floor
Los Angeles, CA 90045
Attention: J. Scott Tiedeman
Re: Contract No. 10461
7. Independent Parties. Both parties to this Agreement will be acting in an independent capacity and not as agents, employees, partners, or joint venturers of one another.
Neither the City nor its officers or employees will have any control over the conduct of the Firm or any of the firm's agents, employees, or subconsultants, except as otherwise provided in this Agreement.
B. Integrated Contract. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties. Any preliminary negotiations and agreements of any kind or nature are merged into this Agreement. No oral agreement or implied covenant may be held to vary the provisions of this Agreement.
This Agreement may be modified only by written agreement signed by City and the Firm, and approved as to form by the City Attorney.
9. Insurance. Prior to commencing work, the Firin must procure, maintain and pay for insurance against claims for injuries to persons or damage to property that may arise from or in connection with the performance of the Services by the Firin or the Firm's agents, representatives, employees or subconsultants for the duration of this Agreement. The Firn must obtain insurance that, at a minimum, meets the requirements for insurance set forth in Exhibit C, Insurance Requirements and Verifications.
10. Defense and Indemnification. Firm shall indemnify, defend, and hold harmless City ncluding but not limited to members of its City Council, boards and commission fficers, agents and employccs) against any or all loss, damages, liability, claims, suit costs, expenses, and judgments, whatsoever, including reasonable attorney's fees, arising ftom the negligent or willful acts, errors or omissions of Firm or Firm's - 2-
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officers, agents, employees or sub-Firms, in the performance of services, activities or work conducted pursuant to this Agreement.
Prohibition Against Transfers..
11.1 The Firm may not assign, hypothecate, or transfer this Agreement or any interest therein directly or indirectly, by operation of law or otherwise without the prior written consent of City. Any attempt to do so without the City's consent will be null and void, and any assignee, hypothecatee or transferee acquires no right or interest by reason of such attempted assignment, hypothecation or transfer.
11.2 The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of the Firm or of any general partner or joint venturer or syndicate member of the Firm, if a partnership or joint venture or syndicate exists, which results in changing the control of the Firm, will be construed as an assignment of this Agreement. Control means 50% or more of the voting power of the corporation.
11. Permits and Licenses. The Firin, at its sole expense, must obtain and maintain during the tern of this Agreement all required business and professional permits, licenses and certificates.
12. Waiver, A waiver of any breach of this Agreement may not be deemed a waiver of any subsequent breach of the same or any other term, covenant, or condition of this Agreement.
13. Default and Termination.
14.1 If the Firm fails or refuses to perform any of the provisions of this Agreement, and if the default is not cured within a period of five days after the City's writter notice of default specifying the nature of the default, City may immediatel rerminate this Agreement by written notice to the Firm.
14.2 The City has the option, at its sole discretion and without cause, of terminating this Agrooment by giving ten days' written notice to the Firm. Upon termination of this Agreement, City will pay the Firm any compensation earned and unpaid up to the effective date of terminațion.
14. Compliance with Law. The Firm must comply with all laws of the State of California and the United States, and all ordinances, rules and regulations enacted or issued by City.
15. Discrimination. The Firm may not discriminate in the provision of services hereunder because of race, color, religion, national origin, ancestry, sex, age, sexual orientation, marital status, AIDS or disability.
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16. Nuisance. The Firm may not inaintain, commit, or permit the maintenance or commission of any nuisance in connection with the performance of services under this Agreement.
17. Records.
18.1 The Firm must maintain complete and accurate records with respect to costs, expenses, receipts and other such information required by the City for any services provided where compensation is on the basis of hourly rates, subconsultant costs, or other direct costs. The Firm must kcep the records. ogether with supporting documents, separate from other documents and records and maintain them for a period of three years after receipt of final payment.
18.2 The Firm must maintain records in sufficient detail to permit an evaluation of the Services and in accordance with generally accepted accounting principles.
The Firm must clearly identify all records and make them readily accessible to the City. At the City's request, the Firm must provide records in an electronic format and, if necessary, access to any proprietary software to view such electronic records.
18.3 The Firm must allow the City to have free access to the Firm's books and records and to inspect all work, data, documents, proceedings and activities related to this Agreement. The City has the right to examine or audit the Firm's Iccords, and the Firm agrees to cooperate with any examination or audit of its records. If a City audit discloses an error of 5% or more in information reported by the Firm, the Firm agrees to pay the cost of the City's audit computed on the basis of four times the direct payroll of the audit staff completing the audit and audit report.
18. Work Product, Reports,
19.1 Any work product prepared or caused to be prepared by the Firmn or any subconsultant for this Agreement will be the exclusive property of City, No work product given to or prepared by the Firm or any subconsultant pursuant to this Agreement may be made available to any individual or organization by the Firm without prior written approval by City.
19.2 At the City's request, the Firm must furnish reports concerning the status of the Services.
19. Standard of Care. The Firm agrees to provide all Services, including services performed by any subconsultant, in a manner consistent with the level of care and skill ordinarily exercised by members of the Firm's profession currently practicing in the same locality under similar conditions.
20. Subconsultants.
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21.1 If the Firm proposes to have any subconsultant perform any part of the Services, the Firm must sübmit a request for approval in writing, describing the scope of work to be subcontracted, the name of the proposed subconsultant, and the total price or hourly rates used in preparing an estimated cost for the subconsultant's services. The City, in its sole discretion, may grant or deny the request.
21.2 The Firm will be responsible for the quality of any subconsultant's work. Every subcontract or agreement of any kind entered into between the Firm and any subconsultant (or between any subconsultant and others) must contain the following provision:
This agreement is consistent with all terms and conditions of the Agreement No: 10461(CCS) entered into between the City of Santa Monica and the Firm on
21. Governing Law, The laws of the State of California, without regard to any choice of law provisions, will govern this Agreement.
22. Venue and Jurisdiction. The City and the Firm agree that the Services will take place in Los Angeles County. Any litigation arising out of this Agreement may only be brought in either the United States District Court, Central District of California, or the Superior Court of California, County of Los Angeles, West District, as appropriate. The parties agree that venue exists in either court, and each party expressly waives any right to transfer to another venue. The parties further agree that either court will have personal jurisdiction over the parties to this Agreement.
23. Survival of Provisions and Obligations, Any provision of this Agreement, which by its nature must be exercised after termination of this Agreement, will survive termination and remain effective for a reasonable time. Any obligation that accrued prior to termination of this Agreement will survive termination of this Agreement. -5-
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24. Exhibits. The following exhibits are incorporated by reference into this Contract as though fully set forth herein.
Exhibit A Scope of Services
Exhibit B Budget
Exhibir C Insurance Requirements
In witness whereof, the parties have caused this Agreement to be executed the day and year first above written.
ATTEST:
Acruse diderm Maru
DENISE ANDERSON-WARREN
City Clerk
APPROVED AS TO FORM:
JOSEPH LAWRENCE
Interim City Auorney
LIEBERT CASSIDY WHITMORE
By:
Name: _
Title:
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Jsnuary 2017
Exhibit A
Scope of Services
The firm shall provide legal representation to the City for litigation, advisory, training, and other employment law and labor relations services. Some examples of the areas of the law and services are: Harassment and Discrimination, Wage and Hour, Disability and Leave Laws (e.g., FMLA/CFRA), Public Safety (Police/Fire), Retirement, Workplace Investigations, Personnel Policies, Administrative Hearings, and Labor Relations and Negotiations.
Services will be requested, as-needed, by the Human Resources Department and/or City Attorney's Office. The need for services may fluctuate from time to time depending upon the demands of the City.
The Firm shall, when requested by the City make itself available to the City to provide representational, litigation, advisory, training, and other employment relations services.
The Firm shall make available attorneys to consult by telephone, email, or in-person with City representatives. The Firm will dedicate attorneys and staff necessary to provide services including Attorneys, Paralegals/Support Staff, Investigators, and Administrative Support Professionals.
Exhibit B
Budget
The range of hourly rates for Attorney time is:
1. Two Hundred and Seventy Dollars to Three Hundred and Fifty Dollars ($270.00-$350.00) per hour for attorney staff for Years 1 and 2. With a Five Dollar ($5.00) increase for each following year.
2. Seventy Five Dollars to One Hundred Twenty Five Dollars ($75.00-$125.00) per hour for services provided by paraprofessional staff in Years1 and 2. With a Five Dollar ($5.00) increase for each following year.
3. Telephone consultation, court litigation and administrative proceedings and attendance at the meetings will be billed at the attorney's hourly rate.
4. Travel time will be at the attorney's hourly rate.
5. No charge for secretarial or word processing time or telephone charges.
Outgoing faxes will be billed at $.25 per page. Copies are $.15 per page. Postage and deliveries will be at rate.
The contract amount to the Firm is not to exceed $1,875,000 over a five year period.
These funds will be encumbered as needed and are charged to the appropriate departments as services are rendered.
Exhibit C
Insurance Requirements
Professional Services Agreement Insurance Requirements - With Protessional Liability
Consultant shall procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the work hereunder by the Consultant, its agents, representatives, employees or subcontractors,
Minimum Scope/Limits of Insurance
Coverage shall be at least as broad as:
1. 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 and advertising injury, with limits of 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 or the general aggregate limit shall be twice the required occurrence limit.
2. Automobile Liability: Insurance Services Office Form CA 00 01 covering Code 1 (any auto), or if the Consultant has no owned autos, Code 8 (hired) and Code 9 (non- owned), with limits of no less than $1,000,000 per accident for bodily injury and property damage.
3. Workers' Compensation: Workers' Compensation insurance as required by the State of California, with Statutory Limits and Employers' Liability Insurance with limits of no less than $1,000,000 per accident for bodily injury or disease (see footnote #1).
4. Protestina sabies ouran eroin 2o he Consulate polest with e footnote #2).
If the Consultant maintains higher limits than the minimums shown above, the City of Santa Monica requires and shall be entitled to coverage for the higher limits maintained by the Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City of Santa Monica.
Other Insurance Provisions
1. The policies are to contain, or be endorsed to contain, the following provisions:
a. Additional Insured Status (CGL): The City of Santa Monica, 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 Consultant 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 Consultant's insurance at least as broad as Insurance Services Office Form CG 20 10 11 85. b. Primary Coverage: (CGL, Auto, and Professional Liability): For any claims related to this contract, the Consultant's insurance shall be primary as respects the City of Santa Monica, its officers, officials, employees and volunteers. Any insurance or self insurance maintained by the City of Santa Monica, its officers, officials, employees or volunteers shall be in excess of the Consultant's insurance and shall not contribute with it.
c. Notice of Cancellation (all policies): Each insurance policy required herein shall state that coverage shall not be cancelled except after notice has been given to the City of Santa Monica.
d. Waiver of Subrogation (all policies): Consultant hereby grants to the City of Santa Monica a waiver of any right of subrogation which any insurer of said Consultant may acquire against the City of Santa Monica by virtue of payment of any loss.
Consultant 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 City of Santa Monica has received a waiver of subrogation endorsement from the insurer.
Deductibles and Self-Insured Retentions
Any deductibles or self insured retentions must be declared to and approved by the City of Santa Monica. The City of Santa Monica may require the Consultant to purchase coverage with a lower deductible or retention or provide satisfactory proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention.
Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best rating of no less than A: VII, unless otherwise acceptable to the City of Santa Monica.
Claims Made Policies
1. If the Professional Liability policy provides "claims made" coverage:
• The Retroactive Date must be shown, and must be before the date of this Agreement or the start of work.
b. The insurance must be maintained and evidence of insurance must be provided for at least 5 years after completion of work.
c. If the policy is cancelled or not renewed, and not replaced with another "claims made" policy form with a Retroactive Date prior to the effective Agreement date, the Consultant must purchase "extended reporting" coverage for a minimum of 5 years after completion of work.
Verification of Coverage
Consultant shall furnish the City of Santa Monica with original certificates and amendatory endorsements or copies of the applicable policy language providing thi insurance coverage required herein. All certificates and endorsements are to be receives and approved by the City of Santa Monica before work commences. However, failure to obtain required documents prior to the work beginning shall not waive the Consultant' obligation to provide them. The City of Santa Monica reserves the right to require complete, certified copies of all required insurance policies, including the endorsements required herein, at any time.
Failure to Maintain Insurance Coverage
If Consultant, for any reason, fails to maintain insurance coverage which is required pursuant to this Agreement, the same shall be deemed a material breach of contract. The further notice to the Consultant, the City may deduct from sums due to the Consultant Subcontractors
Consultant shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein. All exceptions must be approved in writing by the Risk Manager.
Footnotes
#1: Workers' Compensation insurance coverage is not required if the Consultant does not have employees. The Consultant must, however, execute the City's Workers' Compensation Coverage Exemption Declaration Form.
#2: Professional Liability insurance is required if the Consultant is providing a professional service regulated by the State (e.g., insurance agents, doctors, lawyers, architects, engineers, certified public accountants, etc.). However, some Consultants, such as software designers, claims administrators, or human resources professionals, should also carry Professional Liability insurance. Contact Risk