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SR 03-22-2022 3D City Council Report City Council Meeting: March 22, 2022 Agenda Item: 3.D 1 of 3 To: Mayor and City Council From: Joseph Lawrence, Interim City Attorney, City Attorney's Office, Administration Subject: Approval of First Modification of Lawyer-Client Retainer Agreement for Liebert Cassidy Whitmore for Personnel Related Legal Services Recommended Action Staff recommends that the City Council authorize the City Manager to negotiate and execute a first modification to Contract No. 10461 (CCS) with Liebert Cassidy Whitmore (LCW), a California-based law firm, to extend the term of the agreement for one year and increase the compensation by $300,000, for personnel-related legal services for the entire city, managed by the City Attorney’s Office. This modification will result in an amended agreement providing for a six-year contract with a new total estimated amount not to exceed $2,175,000, with future year funding contingent on Council budget approval. Summary The City uses the services of outside, specialized legal counsel for assistance with employment and labor relations advice, litigation, and training, including but not limited to labor negotiations, ever-changing COVID-19 employment laws and regulations, employee disciplinary matters, Personnel Board hearings and other administrative proceedings, and personnel policies. Staff recommends that the City modify its agreement with Liebert Cassidy Whitmore (“LCW”) as the City is about to begin labor negotiations with most bargaining units in the City. Modifying the contract now will allow the City to maintain needed continuity and help the City to ensure that labor negotiations are not disrupted or negatively impacted by changing outside legal counsel during negotiations. 3.D Packet Pg. 294 2 of 3 Discussion In October 2016, the City issued a Request for Proposals (RFP) for labor and employment services for a government entity. Nine law firms submitted proposals. The proposals were reviewed, and three law firms were interviewed. The interviews were conducted by the City Attorney’s Office and Human Resources. As a result, staff recommended, and Council approved, an agreement with LCW as the City’s outside labor and employment legal counsel. The City entered into a five-year contract not to exceed $1,875,000 beginning on August 3, 2017, and ending June 30, 2022. Through December 2021, the City has spent approximately $1,200,000, for an average over four and a half years of about $266,500 per year. Funds are charged to appropriate departments as services are rendered. Given LCW’s institutional knowledge, upcoming labor negotiations, and pending litigation, the City Attorney’s Office believes that it would be more prudent, cost- effective, and efficient to extend LCW’s contract for an additional year rather than initiating a new procurement process and entering into a new agreement with a new law firm at this time. Therefore, staff recommends approving a first modification to extend the existing contract for an additional one year ending June 30, 2023. During FY 2022- 2023, the City Attorney’s Office will conduct another RFP process for outside legal counsel to begin July 1, 2023. LCW has not increased billing rates to the City for the last two years. Under the first modification, the rates would increase approximately 6-7%, which remain below LCW’s current rates and are significantly lower than the majority of law firms that specialize in public sector labor and employment law. The increase in fiscal authority is due to pending and anticipated personnel proceedings and labor negotiations through June 30, 2023. Past Council Actions 05/23/2017 (Attachment A) Staff Report Requesting Authorization of LCW agreement following RFP process 3.D Packet Pg. 295 3 of 3 08/03/2017 (Attachment B) LCW Contract Financial Impacts and Budget Actions Staff seeks authority to increase the amount of the agreement with LCW by $300,000 for a total not to exceed of $2,175,000. These funds will be encumbered as needed and are charged to the appropriate departments as the services are rendered. Department budgets currently include funding for this work. Contract Modification Request: LCW Agreement # Current Authorized Amount Modified Request Amount FY 2022-23 Budget Dept/Account # Total Revised Contract Amount 10461 $1,875,000 $300,000 Various $2,175,000 TOTAL $2,175,000 Prepared By: Bradley Michaud, Legal Operations Coordinator Approved Forwarded to Council Attachments: A. ExA-LCW 2017 Staff Report B. ExB-LCW 2017 Contract C. ExC-LCW First Modification D. ExD-Oaks Initiative Disclosure Form E. ExE-Living Wage Ordinance Certification 3.D Packet Pg. 296 City Council Report City Council Meeting: May 23, 2017 Agenda Item: 3.G 1 of 3 To: Mayor and City Council From: Joseph Lawrence, Interim City Attorney, City Attorney's Office Subject: Lawyer-Client Retainer Agreement for Outside Labor and Employment Counsel Recommended Action 1. Award RFP Number 93 to Liebert, Cassidy and Whitmore, a California professional corporation (“LCW”), for Outside Labor and Employment Counsel services; and 2. Authorize the City Manager to negotiate and execute a Lawyer-Client Retainer Agreement (“Agreement”) with LCW for outside labor and employment counsel services in an amount not to exceed $1,875,000, for a five-year term. Executive Summary The City, through the City Attorney’s Office and the Human Resources Department, uses the services of outside, specialized legal counsel for assistance with labor and employment matters, including, but not limited to, employee disciplinary matters, training, Personnel Board hearings, litigation, and advice and counsel on specific employment-related matters. Staff recommends that City Council approve a Lawyer- Client Retainer Agreement with Liebert Cassidy Whitmore for such services in an amount not to exceed $1,875,000 over five years. Background The City Attorney’s Office and the Human Resources Department use the services of outside labor and employment counsel to provide representational, litigation, advisory, training and other employment law and labor relations services in the areas of 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. After a competitive process undertaken in 2012, the City Council previously awarded a contract to LCW for outside labor and employment counsel services. The term of the current contract is ending on June 30, 2017. Discussion The proposed contract will have a five-year term commencing on July 1, 2017. The City will have the ability to terminate the Agreement at any time during the five-year term by giving LCW thirty days’ written notice. Services will be requested, as needed, by both 3.D.a Packet Pg. 297 Attachment: ExA-LCW 2017 Staff Report (5002 : Legal Services - LCW) 2 of 3 the City Attorney’s Office and the Human Resources Department. The Human Resources Department will coordinate training workshops to be conducted by outside legal counsel, and the City Attorney’s Office will monitor legal work undertaken. Outside legal counsel will provide legal advice and consultation, written legal opinions, and attendance at hearings or other meetings, as needed. Vendor/Consultant Selection On October 25, 2016, the City issued a Request for Proposals (RFP) for labor and employment services from outside law firms. The RFP was posted on the City’s online bidding site, and notices were advertised in the Santa Monica Daily Press in accordance with City Charter and Municipal Code provisions. In addition, four law firms specializing in practice areas for government agencies were contacted and informed about the RFP. Nine law firms submitted proposals by the deadline of November 11, 2016. The proposals were evaluated based on the criteria in SMMC 2.24.073, and specific criteria, including experience of attorneys in the practice areas needed, client reference list and stability of client representation, case references, law firm billing rates, cost of all additional services, and adhering to RFP instructions. Representatives from the City Attorney's Office and Human Resources conducted interviews with the top three ranked firms to evaluate qualifications and experience of the proposed law firms. Staff recommends LCW, located in Los Angeles, California, as the best qualified firm. LCW practices exclusively in public sector labor and employment law and has extensive experience providing labor and employment services to multiple public entities throughout California with regard to employee disciplinary matters, workplace investigations, Personnel Board Hearings, litigation, labor law-related training, and preparation of legal reports. LCW’s rates are competitive with other law firms and LCW has the best depth of services and experience suited for the City’s needs. Financial Impacts and Budget Actions The contract amount to be awarded to LCW 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. 3.D.a Packet Pg. 298 Attachment: ExA-LCW 2017 Staff Report (5002 : Legal Services - LCW) 3 of 3 Prepared By: Diana Burger, Office Administrator Approved Forwarded to Council Attachments: A. Oaks Form 2017 3.D.a Packet Pg. 299 Attachment: ExA-LCW 2017 Staff Report (5002 : Legal Services - LCW) 3.D.b Packet Pg. 300 Attachment: ExB-LCW 2017 Contract (5002 : Legal Services - LCW) 3.D.b Packet Pg. 301 Attachment: ExB-LCW 2017 Contract (5002 : Legal Services - LCW) 3.D.b Packet Pg. 302 Attachment: ExB-LCW 2017 Contract (5002 : Legal Services - LCW) 3.D.b Packet Pg. 303 Attachment: ExB-LCW 2017 Contract (5002 : Legal Services - LCW) 3.D.b Packet Pg. 304 Attachment: ExB-LCW 2017 Contract (5002 : Legal Services - LCW) 3.D.b Packet Pg. 305 Attachment: ExB-LCW 2017 Contract (5002 : Legal Services - LCW) 3.D.b Packet Pg. 306 Attachment: ExB-LCW 2017 Contract (5002 : Legal Services - LCW) 3.D.b Packet Pg. 307 Attachment: ExB-LCW 2017 Contract (5002 : Legal Services - LCW) 3.D.b Packet Pg. 308 Attachment: ExB-LCW 2017 Contract (5002 : Legal Services - LCW) 3.D.b Packet Pg. 309 Attachment: ExB-LCW 2017 Contract (5002 : Legal Services - LCW) 3.D.b Packet Pg. 310 Attachment: ExB-LCW 2017 Contract (5002 : Legal Services - LCW) 3.D.b Packet Pg. 311 Attachment: ExB-LCW 2017 Contract (5002 : Legal Services - LCW) 1 FIRST MODIFICATION OF AGREEMENT NO. 10461 (CCS) This First Modification of Lawyer-Client Retainer Agreement Number 10461 (CCS) (“First Modification”), entered into as of _________________ (“Execution Date”), by and between the City of Santa Monica, a municipal corporation (“City”), and Liebert Cassidy Whitmore (LCW) is made with reference to the following: RECITALS A. On or about August 3, 2017, the City and LCW entered into Lawyer-Retainer Cli- ent Agreement Number 10461 (CCS) for specialized legal services in employment and labor law (“Original Agreement”). B. The City and LCW desire to modify the Original Agreement to extend the agree- ment term for one additional year and increase the total compensation. TERMS AND CONDITIONS Now, therefore, the undersigned parties do hereby mutually agree to modify the Origi- nal Agreement as follows: 1. Section 1 of the Original Agreement entitled “Term” shall be deleted in its entirety and replaced with the following paragraph: Term. This Agreement begins on July 1, 2017, and terminates on June 30, 2023, unless terminated earlier as set forth in the Original Agree- ment or extended by the parties in writing. 2. Section 4 of the Original Agreement entitled “Compensation” shall be deleted in its entirety and replaced with the following paragraph: Compensation. The City will compensate the Firm for the Services per- formed in an amount not to exceed $2,175,000, in six years, as set forth in Exhibit B-1. 3. All references in the Original Agreement to Exhibit B shall be deleted and re- placed with Exhibit B-1. 4. Exhibit B-1 is attached hereto and incorporated herein by this reference. 5. Execution in Counterparts. This First Modification may be executed in counter- parts with the same effect as if both parties hereto had executed the same docu- ment. All counterparts shall be construed together and shall constitute a single modification. Any signature to this First Modification transmitted electronically through DocuSign or PDF shall be deemed an original signature and be binding upon the parties hereto (it being agreed that such electronic signature shall have the same force and effect as an original signature). 6. Except as expressly modified by this First Modification, all other terms and condi- tions of the Original Agreement shall be and remain in full force and effect. IN WITNESS WHEREOF, the parties have executed this First Modification as of the 3.D.c Packet Pg. 312 Attachment: ExC-LCW First Modification (5002 : Legal Services - LCW) 2 date and year first written above. ATTEST: ______________________________ DENISE ANDERSON-WARREN City Clerk APPROVED AS TO FORM: ______________________________ LANE DILG City Attorney CITY OF SANTA MONICA, a municipal corporation By: ______________________________ RICK COLE City Manager ABC Corporation #VENDOR By: _______________________________ 3.D.c Packet Pg. 313 Attachment: ExC-LCW First Modification (5002 : Legal Services - LCW) 3 EXHIBIT B-1 BUDGET The range of hourly rates for Attorney time is: 1. $270 to $350 per hour for attorney staff for Years 1 and 2, with a $5 increase for each following year in Years 3 through 5. $270 to $380 per hour for attorney staff for Year 6. 2. $75 to $125 per hour for services provided by paraprofessional staff in Years 1 and 2, with a $5 increase for each following year in Years 3 through 5. $75 to $135 per hour for services provided by paraprofessional staff in Year 6. 3. Telephone consultation, court litigation, and administrative proceedings and at- tendance at the meetings will be billed at the attorney’s hourly rate. 4. Travel time will be at the attorney’s hourly rate. 5. The Firm agrees to the CAO Billing Guidelines attached hereto and incorporated herein by reference. With the exception of the travel provision, in the event of any conflict between the CAO Billing Guidelines and the billing terms set forth above, the CAO Billing Guidelines shall take precedence. The contract amount to the Firm is not to exceed $2,175,000 over a six-year period. These funds will be encumbered as needed and are charged to the appropriate depart- ments as services are rendered. 3.D.c Packet Pg. 314 Attachment: ExC-LCW First Modification (5002 : Legal Services - LCW) Office of the City Attorney City Hall 1685 Main Street, Room 310 Santa Monica, California 90401 Joseph Lawrence Interim City Attorney Billing Guidelines The City is a public entity, and the City Attorney’s Office is committed to providing the most cost- effective legal representation. The following are our billing guidelines:  Administrative or clerical work: Administrative, secretarial, clerical, librarian, and accounting tasks should not be billed. This includes bill preparation/modification, proofreading, word pro- cessing, conflicts checking, calendaring, scanning, imaging, file creation, docketing, organizing files, bates stamping, converting data, database management, copying and data-input.  Block billing: Block billing is prohibited. Each billing entry should have a single task or activity and time associated with it.  Costs and expenses: Costs and expenses should be submitted at their actual amounts and not with any supplementary markup. This is especially true for subscription services, if allowed, and experts. Interest and late charges should not be charged. Expenses over the amount of $2,500 incurred in the course of litigation, e.g. mediation and expert witness expenses, may with ad- vance written consent from the City be billed directly to the City.  Depositions, meetings, and court hearings: Absent preapproval, only one attorney should bill for depositions, meetings and court hearings.  Electronic billing: Firms shall submit invoices via pdf to CAO.Billing@smgov.net.  First-year associates, summer associates, and law clerks: First-year associates, summer associates, and law clerks are assumed to be in training, and their work should not be billed.  Meals: Meals, snacks, and beverages should not be billed to file.  Overtime: Staff overtime is considered the cost of doing business and should not be billed.  Personnel turnover: All additions or changes to the legal team shall be approved in writing by the Interim City Attorney, or Division Chief. Time spent “getting up to speed” for a legal profes- sional due to staff turnover or vacation is not reimbursable.  Research fees: Subscription services such as Westlaw should not be billed as they are the cost of doing business. With rare exceptions, only associates should bill for research. Per the Santa Monica Municipal Code and pursuant to the attached forms, firms selected will be required to obtain a City of Santa Monica Business License (see https://finance.smgov.net/doing- business/business-license), complete a W-9 form, meet City insurance requirements, meet City Liv- ing Wage requirements, and complete a City Oaks Initiative form. Required documents for your contract: W-9 and Business Licens 3.D.c Packet Pg. 315 Attachment: ExC-LCW First Modification (5002 : Legal Services - LCW) 3.D.d Packet Pg. 316 Attachment: ExD-Oaks Initiative Disclosure Form (5002 : Legal Services - LCW) 3.D.e Packet Pg. 317 Attachment: ExE-Living Wage Ordinance Certification (5002 : Legal Services - LCW) 3.D.e Packet Pg. 318 Attachment: ExE-Living Wage Ordinance Certification (5002 : Legal Services - LCW)