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07/06/2021 ITEM NO. 6 - CONSIDERATION OF LEGAL SERVICES AGREEMENT WITH LIEBERT CASSIDY WHITMORE FOR LABOR RELATIONS AND EMPLOYMENT MATTERSAGENDA ITEM NO. 6 WEST" ON DATE: July 6, 2021 TO: Mayor and City Council FROM: David Carmany City Manager AGENDA STAFF REPORT City of West Covina I Office of the City Manager SUBJECT: CONSIDERATION OF LEGAL SERVICES AGREEMENT WITH LIEBERT CASSIDY WHITMORE FOR LABOR RELATIONS AND EMPLOYMENT MATTERS RECOMMENDATION: It is recommended that the City Council take the following actions: 1. Authorize the City Manager to negotiate and execute an agreement with Liebert Cassidy Whitmore for labor and employment relations services; and 2. Approve, by a majority vote of the Council, waiving bidding requirements for legal services with Liebert Cassidy Whitmore due to ongoing labor negotiations, updating Personnel Rules and personnel matters that require investigations, as allowed by West Covina Municipal Code Section 2-330(b). The City of West Covina has nine bargaining units, with seven Memorandums of Understanding expiring June 30, 2021. Bargaining laws require that the parties negotiate in good faith overall issues properly within the scope of bargaining. Such bargaining in good faith following known basic principles is critical to negotiating a successful contract. Collective bargaining is a continuous process in which representatives of government employers (management) meet with employee representatives (the union) to jointly establish the terms and conditions of employment for members of a bargaining unit. Decision -making authority is shared by the parties, who sign a legal and binding contract. In a "meet and confer", union and management representatives meet to discuss terms and conditions of employment, but only management has final decision -making authority. Preparation is the key to effective bargaining. Documents should be drafted carefully and thoroughly. This report concerns one important member of the management bargaining team, the labor attorney. DISCUSSION: The City of West Covina has utilized the professional legal services of Liebert Cassidy Whitmore continuously since May 2019 to provide legal services and representation in employment relation matters, labor negotiations, investigations, and administrative and court proceedings. Liebert Cassidy Whitmore has the experience to assist the City with all aspects of employment consulting and representation, which changes the dynamic of the negotiations and employment matters. Section 2-330(b) of the West Covina Municipal Code provides that the City Council may, by majority vote of its entire membership, dispense with bidding and other purchasing procedures in any individual instance upon finding that it would be impracticable, useless or uneconomical in such instance to follow such procedures and that the public welfare would be promoted by dispensing with the same. Staff believes it would be impractical to follow bidding procedures for these specialized legal services, as Liebert Cassidy Whitmore has the experience and expertise desired in connection with employment and labor relations matters, particularly the ongoing labor negotiations. Staff also believes the public welfare would be promoted by dispensing with such requirements for these services. Therefore, staff is requesting that the Council waive bidding requirements in connection with this procurement. LEGAL REVIEW: The City Attorney's Office has reviewed and approved the agreement as to form. OPTIONS: The City Council has the following options: 1. Approve staffs recommendation; or 2. Provide alternative direction. Prepared by: Helen Tran, Director of Human Resources/Risk Management Department Fiscal Impact FISCAL IMPACT: The current range of hourly rates for Attorney time is from Two Hundred Ten to Three Hundred Seventy Dollars ($210.00 - $370.00), Two Hundred Thirty Dollars ($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. Billed hours will be funded from the General Fund account number 110.14.1410.6111. Attachments Attachment No. 1 - Agreement with Liebert Cassidy Whitmore CITY Achieve Fiscal Sustainability and Financial Stability COUNCIL GOALS & OBJECTIVES: ATTACHMENT NO. 1 AGREEMENT FOR SPECIAL SERVICES PROVIDED BY LIEBERT CASSIDY WHITMORE FOR THE CITY OF WEST COVINA This Agreement is entered into between the law firm of LIEBERT CASSIDY WHITMORE, a Professional Corporation ("Attorney'), and the CITY OF WEST COVINA, a Municipal Corporation ("City'). 1. Conditions This Agreement w>71 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 negotiations and in administrative and court proceedings, as requested by City or otherwise required by law. 3. Fees, Costs, Expenses City agrees to pay Attorney the sums Milled monthly for time spent by Attorney in providing the services, including reasonable travel time. The current range of hourly rates for Attorney time is from Two Hundred Ten to Three Hundred Eighty Dollars ($210.00 - $380.00). See Schedule I for a full Fee Schedule. Attorney reviews its hourly rates on an annual basis and, if appropriate, adjusts them effective July 1. Attorney will provide the City with written notification of any adjustment in the range of rates. Attorney bills its time in minimum units of one- tenth of an hour. For Litigation Matters See Schedule II attached for a description ofAttorney's Litigation and E- Discovery Management. Other Expenses City agrees to reimburse Attorney for necessary costs and expenses incurred by Attorney on behalf of City. Attorney bills photocopying charges at Fifteen Cents ($0.15) per page. See Schedule I attached. 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. 4. Insurance 4.1. 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. The firm shall also carry insurance in amounts no less than $2 million general liability coverage, and $5 million error and omissions coverage. 4.2. Other Insurance Provisions. The insurance policies are to contain, or be endorsed to contain, the following provisions: (a) Primary Coverage: For any claims related to this Agreement, Attorney's insurance coverage shall be primary coverage at least as broad as ISO CG 20 0104 13 as respects the City, its officers, officials, employees, or volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, or volunteers shall be excess of the Attorney's insurance and shall not contribute with A. (b) Notice of Cancellation: Each insurance policy required above shall provide that coverage shall not be canceled, except with the notice to the City. (c) Waiver of Subrogation: Attorney hereby grants to City a waiver of any right to subrogation which any insurer of Attorney may acquire against the City by virtue of the 2 9691660.1 LC001-009 payment of any loss under such insurance. Attorney 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 has received a waiver of subrogation endorsement from the insurer. (d) Deductibles and Self -Insured Retentions: Deductibles and self -insured retentions must be declared to and approved by the City. The City may require the Attorney to purchase coverage with a lower retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention The policy language shall provide, or be endorsed to provide, that the deductible or self -insured retention may be satisfied by either the named or insured or City. (e) Acceptability of Insurers: Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A -:VI, unless otherwise acceptable to the City. (0 Verification of Coverage: Attorney shall fiunish the City with original certificates and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause. All certificates and endorsements are to be received and approved by the City before work corrnrlences. However, failure to obtain the required documents prior to the work beginning shall not waive the Attorney's obligation to provide them The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time. (g) Subcontractors: Attorney shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Attorney shall ensure that City is an additional insured on insurance required from subcontractors. Notwithstanding the foregoing, Attorney shall not subcontract any work under this Agreement without the City's prior written consent. 3 9691660.1 L0001-009 4.3. Certificates of Insurance. Attorney shall provide to City certificates of insuranc e showing the insurance coverages and required endorsements described above, in a form and content approved by City, prior to perfoming any services under this Agreement. 4.4. Non -limiting. Nothing in this Section 4 shall be construed as limiting in any way the indemnification provision contained in this Agreement. 5. Arbitration of Professional Liability or Other Claims Disputes. If a dispute between City and Attorney arises over fees 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 attorneys' 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 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. 4 9691660.1 LC001-009 6. Idle 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 8 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 fwther obligation to retain the file and may, at our discretion, destroy it without further notice to City. At any point daring the seven (7) year period, City may request delivery of the file. 7. Assh ment This Agreement is not assignable without the written consent of City. 8. 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. 9. Authori The signatory 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. 10. Indemnification and Hold Harmless Attorney agrees to defend, indemnify, hold free and harmless the City, its elected and appointed officials, officers, agents and employees, at Attorney's sole expense, from and against any and all claims, demands, actions, suits or other legal proceedings brought against the City, its elected and appointed officials, officers, agents and employees arising out of the negligence or willful misconduct with respect to negotiations, or failure to bargain s 9691660.1 LCo01-009 in good faith. The defense obligation provided for hereunder shall apply without any advance showing of negligence or wrongdoing by the Attorney. Notwithstanding the foregoing, the Attorney shall not be liable for the defense or indemnification of the City for claims, actions, complaints or suits arising out of the sole active negligence or willful misconduct of the City. Nothing in this section 10 shall be interpreted to reduce Attorney's liability from the amount of liability otherwise applicable absent this section 10. 11. Term This Agreement is effective May 30, 2021-May 29, 2026, and may be modified by mutual Agreement of the parties. This Agreement shall beterminable by the City providing written notice. Attorney may terminate the Agreement upon thirty (30) days written notice. HEBERT CASSIDY WHITMORE, CITY OF WEST COVINA, A Professional Corporation A Municipal Corporation Lo N Title: 6 9691660.1 LC001-009 Lo Name: Title: Date: 1 2. SCHEDULE I — FEES & COSTS Hourly Rates (As of Agreement Effective Date) Partners $380.00 Senior Counsel $325.00 Associates $210.00 - $305.00 Labor Relations/HR Consultant $250.00 Paralegals $135.00 E- Discovery Specialists $135.00 Law Clerks $135.00 - $175.00 COSTS 1. Photocopies $0.15 per copy 9691660.1 LC001-009 SCHEDULE H LCW LITIGATION and &DISCOVERY MANAGEMENT LCW is committed to using state-of-the-art technology to efficiently manage and harness electronically -stored information (' ESI') in compliance with Federal and State law requirements. LCW partners with an outside managed services provider to provide Relativity, the industry leading e-discovery software, for this purpose. The cost for each matter will depend on the volume and format of the data. For non-complex data up to 50 gigabytes, LCW charges a monthly fee of $375 on all active litigation matters for data management, including data validation and security, ingestion, de -duplication, culling and streamlining, and creation of Relativity fields for expedited review. For data of 50 gigabytes and over and for complex data requiring specialized services (e.g., payroll data, spreadsheets with underlying formulas, video, advanced searches, etc.), additional charges are incurred and are passed through to the client. For such charges, we w1ll provide an itemized bill from our managed services provider and obtain client approval prior to incurring the charges. Litigation Case Staffing LCW has organized its litigation practice to meet the challenges oftoday's complex litigation cases. We employ a dedicated Litigation Manager — a non -billing attorney litigator — whose responsibility is to monitor all litigation cases to ensure quality, efficiency, and adherence to client and firm litigation guidelines. Each litigation case is staffed with a Partner, an Associate (or Associates, as required and as approved by the Client), a Paralegal and an E-Discovery Specialist. Our E-Discovery Specialists have extensive experience in the efficient management of electronic data through every stage of the e-discovery life cycle, and they strategize with attorneys and clients on effective ESI protocols. This makes the document review process more efficient and enables our attorneys to target the most relevant data to meet litigation objectives. Working with our e- discovery managed services provider, we are able to provide state-of-the-art data processing and hosting services at below -market rates. a 9691660.1 LC001-009