CC 2014-11-25 _08.d. Agreement Liebert Cassidy WhitmoreMEMORANDUM
TO: CITY COUNCIL
FROM: DEBBIE MALICOAT, DIRECTOR OF ADMINISTRATIVE SERVICES wt'-
SUBJECT: CONSIDERATION OF AMENDMENT NO. 2 TO CONSUL TANT
SERVICES AGREEMENT WITH LIEBERT CASSIDY WHITMORE
DATE: NOVEMBER 25, 2014
RECOMMENDATION:
It is recommended the City Council approve and authorize the Acting City Manager to
execute Amendment No. 2 to the Consultant Services Agreement with Liebert Cassidy
Whitmore for labor negotiations services.
IMPACT ON FINANCIAL AND PERSONNEL RESOURCES:
The proposed amendment will result in an additional cost of $2,145.60. It is anticipated
that there will be savings in the Administrative Services Department budget that will
offset this additional cost and no budget allocation will be required.
BACKGROUND:
On May 27, 2014 the Council approved Amendment No. 1 to the agreement with Liebert
Cassidy Whitmore (LCW) for labor negotiations services, increasing the contract to
$40,000. The meet and confer process has been completed with both the Arroyo
Grande Police Officers' Association and the Service Employees International Union
Local 620, with final costs totaling $42, 145.60.
ANALYSIS OF ISSUES:
Labor negotiations with the City's union representatives have been completed, with
multi-year agreements reached with all parties. The services of LCW provided the City
with the expertise necessary to effectively conduct these negotiations and comply with
all State laws. The hours necessary to conclude the negotiations exceeds the contract
amount. Therefore, an amendment is necessary to issue the final payment.
ALTERNATIVES:
The following alternatives are presented for the City Council's consideration:
-Approve staff recommendations;
-Do not approve staff recommendations;
-Modify staff recommendations and approve;
-Provide direction to staff.
Item 8.d. - Page 1
CITY COUNCIL
CONSIDERATION OF AMENDMENT NO. 2 TO CONSUL TANT SERVICES
AGREEMENT WITH LIEBERT CASSIDY WHITMORE
NOVEMBER 25, 2014
PAGE2
ADVANTAGES:
The second amendment to the Consultant Services Agreement will allow the City to pay
the consultant for all costs incurred.
DISADVANTAGES:
This amendment results in additional costs.
ENVIRONMENTAL REVIEW:
No environmental review is required for this item.
PUBLIC NOTIFICATION AND COMMENTS:
The Agenda was posted in front of City Hall on Thursday, November 20, 2014. The
Agenda and report were posted on the City's website on Friday, November 21. No
public comments were received.
Attachment:
1. Consultant Services Agreement dated February 15, 2014
Item 8.d. - Page 2
CONSULTANT SERVICES AGREEMENT
AMENDMENT NO. 2
This Second Amendment ("Second Amendment") to Consultant's Services Agreement ("CSA") by and
between the CITY OF ARROYO GRANDE (“City”) and LIEBERT CASSIDY WHITMORE (“Consultant”),
is made and entered into this _______ day of December 2014, based on the following facts:
WHEREAS, the parties entered into a CSA dated February 15, 2014 to perform labor negotiations
services; and
WHEREAS, the parties first amended the CSA May 27, 2014; and
WHEREAS, the parties desire to further modify the CSA as set forth herein.
NOW, THEREFORE, for valuable consideration the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follow:
1.The not to exceed total amount of charges set forth in Exhibit B of the original contract shall be
increased from forty thousand dollars ($40,000) to forty-two thousand one hundred forty-five dollars
and sixty cents ($42,145.60).
2.All other terms and conditions of the CSA, as amended, shall remain in full force and effect.
IN WITNESS WHEREOF, CITY and CONSULTANT have executed this Second Amendment the day and
year first above written.
LIEBERT CASSIDY WHITMORE
By: _________________________________
Shelline Bennett, Managing Partner
CITY OF ARROYO GRANDE
By: _________________________________
Acting City Manager
Attest:
By: ____________________________
Kelly Wetmore, City Clerk
Approved As To Form:
By: _____________________________
Timothy J. Carmel, City Attorney
ATTACHMENT 1
Item 8.d. - Page 3
CONSULTANT SERVICES AGREEMENT
· AMENDMENT N0.1
This First Ame!ldment ("Second Amendment") to Consultant's Services Agreement ("CSA") by and
between the CITY OF ARROYO GRANDE and LIEBERT CASSIDY WHITMORE, is made and entered
into this '2-1f 'j... day of April 2014, based on the following facts:
WHEREAS, the parties entered into a CSA dated February 15, 2014 to perform labor negotiations
services; and
WHEREAS, the parties desire to modify the CSA as set forth herein.
NOW, THEREFORE, for valuable consideration the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follow:
1. The not to exceed total amount of charges set forth in Exhibit B shall be increased
from twenty-five thousand dollars ($25,000) to forty thousand dollars ($40,000.00) .
. IN WITNESS WHEREOF, CITY and CONSULTANT have executed .this First Amendment the day and
year first above written.
LIEBERT CASSIDY-W"'ITMORE
~~~==~;;::::====:__~_
Shelline Bennett, Managing Partner
CITY OF ARROYO GRANDE
Attest:
Approved As To Form:
Item 8.d. - Page 4
AGREEMENT FOR CONSUL TANT SERVICES
THIS AGREEMENT is made and effective as of _U'/~v /.J> .-2014, between
Liebert Cassidy Whitmore. ("Consultant"), and the tiTYOF ARROYO GRANDE, a
Municipal Corporation ("City"). In consideration of the mutual covenants and conditions
set forth herein, the parties agree as follows:
1. TERM
This Agreement shall commence on February 15, 2014 and shall remain and
continue in effect until December 31, 2014, unless sooner terminated pursuant to the
provisions of this Agreement.
2. SERVICES
Consultant shalJ perform the tasks described and comply with all terms and
provisions set forth in Exhibit "A", attached hereto and incorporated herein by this
reference.
3. PERFORMANCE
Consultant shall at all times faithfully, competently and to the best of his/her
ability, experience and talent, perform all tasks described herein. Consultant shall
employ, at a minimum generally accepted standards and practices utilized by persons
engaged in providing similar services as are required of Consultant hereunder in
meeting its obligations under this Agreement.
4. AGREEMENT ADMINISTRATION
City's City Manager shall represent City in all matters pertaining to the
administration of this Agreement. Shelline Bennett shall represent Consultant in all
matters pertaining to the administration of this Agreement.
5. PAYMENT
· The City agrees to pay the Consultant in accordance with the payment rates and
terms set forth in Exhibit "B", attached hereto and incorporated herein by this reference.
6. SUSPENSION OR TERMINATION OF AGREEMENT WITHOUT CAUSE
(a) The City may at any time, for any reason, with or without cause, suspend
or terminate this Agreement, or any portion hereof, by serving upon the Consultant at
least ten (10) days prior written notice. Upon receipt of said notice, the Consultant shall
immediately cease all work under this Agreement, unless the notice provides otherwise.
If the City suspends or terminates a portion of this Agreement such suspension or
termination shall not make void or invalidate the remainder of this Agreement.
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Item 8.d. - Page 5
(b) In the event this Agreement is terminated pursuant to this Section, the City
shall pay to Consultant the actual value of the work performed up to the time of
termination, provided that the work performed is of value to the City. Upon termination
of the Agreement pursuant to this Section, the Consultant will submit an invoice to the
City pursuant to Section 5.
7. TERMINATION ON OCCURRENCE OF STATED EVENTS
This Agreement shall terminate automatically on the occurrence of any of the
following events:
(a) Bankruptcy or insolvency of any party;
(b) Sale of Consultant's business; or
(c) Assignment of this Agreement by Consultant without the consent of City.
(d) End of the Agreement term specified in Section 1.
8. DEFAULT OF CONSULTANT
(a) The Consultant's failure to comply with the provisions of this Agreement
shall constitute a default. In the event that Consultant is in default for cause under the
terms of this Agreement, City shall have no obligation or duty to continue compensating
Consultant for any work performed after the date of default and can tenninate this
Agreement immediately by written notice to the Consultant. If such failure by the
Consultant to make progress in the performance of work hereunder arises out of causes
beyond the Consultant's control, and without fault or negligence of the Consultant, it
shall not be considered a default.
(b) If the City Manager or his/her delegate determines that the Consultant is in
default in the performance of any of the terms or conditions of this Agreement, he/she
shall cause to be served upon the Consultant a written notice of the default. The
Consultant shall have ten (10) days after service upon it of said notice in which to cure
the default by rendering a satisfactory performance. In the event that the Consultant
fails to cure its default within such period of time, the City shall have the right,
notwithstanding any other provision of this Agreement to terminate this Agreement
without further notice and without prejudice to any other remedy to which it may be
entitled at law, in equity or under this Agreement.
9. LAWS TO BE OBSERVED. Consultant shall:
(a) Procure all permits and licenses, pay all charges and fees, and give all
notices which may be necessary and incidental to the due and lawful prosecution of the
services to be performed by Consultant under this Agreement;
{b) Keep itself fully informed of all existing and proposed federal, state and
local laws, ordinances, regulations, orders, and decrees which may affect those
engaged or employed under this Agreement, any materials used in Consultant's
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Item 8.d. - Page 6
performance under this Agreement, or the conduct of the services under this
Agreement;
(c) At all times observe and comply with, and cause all of its employees to
observe and comply with all of said laws, ordinances, regulations, orders, and decrees
mentioned above;
(d) Immediately report to the City's Contract Manager in writing any
discrepancy or inconsistency it discovers in said laws, ordinances, regulations, orders,
and decrees mentioned above in relation to any plans, drawings, specifications, or
provisions of this Agreement.
(e) The City, and its officers, agents and employees, shall not be liable at law
or in equity occasioned by failure of the Consultant to comply with this Section.
10. OWNERSHIP OF DOCUMENTS
(a) Consultant shall maintain complete and accurate records with respect to
sales, costs, expenses, receipts, and other such information required by City that relate
to the performance of services under this Agreement. Consultant shall maintain
adequate records of services provided in sufficient detail to permit an evaluation of
services. All such records shall be maintained in accordance with generally accepted
accounting principles and shall be clearly identified and readily accessible. Consultant
shall provide free access to the representatives of City or its designees at reasonable
times to such books and records; shall give City the right to examine and audit said
books and records; shall permit City to make transcripts therefrom as necessary; and
shall allow inspection of all work, data, documents, proceedings, and activities related to
this Agreement. Such records, together with supporting documents, shall be maintained
for a period of three (3) years after receipt of final payment.
(b) Upon completion of, or in the event of termination or suspension of this
Agreement, all original documents, designs, drawings, maps, models, computer files,
surveys, notes, and other documents prepared in the course of providing the services to
be performed pursuant to this Agreement shall become the sole property of the City and
may be used, reused, or otherwise disposed of by the City without the permission of the
Consultant. With respect to computer files, Consultant shall make available to the City,
at the Consultant's office and upon reasonable written request by the City, the
necessary computer software and hardware for purposes of accessing, compiling,
transferring, and printing computer files.
11. INDEMNIFICATION
(a) Indemnification for Professional Liability. When the law establishes a
professional standard of care for Consultant's Services, to the fullest extent permitted by
law, Consultant shall indemnify, protect, defend and hold harmless City and any and all
of its officials, employees and agents ("Indemnified Partiesn) from and against any and
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Item 8.d. - Page 7
all losses, liabilities, damages, costs and expenses, including attorney's fees and costs
to the extent same are caused in whole or in part by any negligent or wrongful act, error
or omission of Consultant, its officers, agents, employees or subcontractors (or any
entity or individual that Consultant shall bear the legal liability thereof) in the
performance of professional services under this agreement.
(b) · fndemnffication for Other Than Professional Liability. Other than in the
performance of professional services and to the full extent permitted by law, Consultant
shall indemnify, defend and hold harmless City, and any and all of its employees,
officials and agents from and against any liability (including liability for claims, suits,
actions, arbitration proceedings, administrative proceedings, regulatory proceedings,
losses, expenses or costs of any kind, whether actual, alleged or threatened, including
attorneys fees and costs, court costs, interest, defense costs, and expert witness fees),
where the same arise out of, are a consequence of, or are in any way attributable to, in
whole or in part, the performance of this Agreement by Consultant or by any individual
or entity for which Consultant is legally liable, including but not limited to officers,
agents, employees or subcontractors of Consultant.
(c} General Indemnification Provisions. Consultant agrees to obtain executed
indemnity agreements with provisions identical to those set forth here in this section
from each and every subcontractor or any other person or entity involved by, for, with or
on behalf of Consultant in the performance of this agreement. In the event Consultant
fails to obtain such indemnity obligations from others as required here, Consultant
agrees to be fully responsible according to the terms of this section. Failure of City to
monitor compliance with these requirements imposes no additional obligations on City
and will in no way act as a waiver of any rights hereunder. This obligation to indemnify
and defend City as set forth here is binding on the successors, assigns or heirs of
Consultant and shall survive the termination of this agreement or this section.
12. INSURANCE
Consultant shall maintain prior to the beginning of and for the duration of this
Agreement insurance coverage as specified in Exhibit "C" attached hereto and
incorporated herein as though set forth in full.
13. INDEPENDENT CONSUL TANT
(a} Consultant is and shall at all times remain as to the City a wholly
independent Consultant. The personnel performing the services under this Agreement
on behalf of Consultant shall at all times be under Consultant's exclusive direction and
control. Neither City nor any of its officers, employees, or agents shall have control over
the conduct of Consultant or any of Consultant's officers, employees, or agents, except
as set forth in this Agreement. Consultant shall not at any time or in any manner
represent that it or any of its officers, employees, or agents are in any manner officers,
employees, or agents of the City. Consultant shall not incur or have the power to incur
any debt, obligation, or liability whatever against City, or bind City in any manner.
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Item 8.d. - Page 8
(b) No employee benefits shall be available to Consultant in connection with
performance of this Agreement. Except for the fees paid to Consultant as provided in
the Agreement, City shall not pay salaries, wages, or other compensation to Consultant
for performing services hereunder for City. City shall not be liable for compensation or
indemnification to Consultant for injury or sickness arising out of performing services
hereunder.
14. UNDUE INFLUENCE
Consultant declares and warrants that no undue influence or pressure was or is
used against or in concert with any officer or employee of the City of Arroyo Grande in
connection with the award, terms or implementation of this Agreement, including any
method of coercion, confidential financial arrangement, or financial inducement. No
officer or employee of the City of Arroyo Grande will receive compensation, directly or
indirectly, from Consultant, or from any officer, employee or agent of Consultant, in
connection with the award of this Agreement or any work to be conducted as a result of
this Agreement. Violation of this Section shall be a material breach of this Agreement
entitling the City to any and all remedies at law or in equity.
15. NO BENEFIT TO ARISE TO LOCAL EMPLOYEES
No member, officer, or employee of City, or their designees or agents, and no
public official who exercises authority over or responsibilities with respect to the project
during his/her tenure or for one year thereafter, shall have any interest, direct or indirect,
in any agreement or sub-agreement, or the proceeds thereof, for work to be performed
in connection with the project performed under this Agreement.
16. RELEASE OF INFORMATION/CONFLICTS OF INTEREST
(a) All information gained by Consultant in performance of this Agreement shall
be considered confidential and shall not be released by Consultant without City's prior
written authorization. Consultant, its officers, employees, agents, or subcontractors,
shall not without written authorization from the City Manager or unless requested by the
City Attorney, voluntarily provide declarations, letters of support, testimony at
depositions, response to interrogatories, or other information concerning the work
performed under this Agreement or relating to any project or property located within the
City. Response to a subpoena or court order shall not be considered "voluntary"
provided Consultant gives City notice of such court order or subpoena.
(b) Consultant shall promptly notify City should Consultant, its officers,
employees, agents, or subContractors be served with any summons, complaint,
subpoena, notice of deposition, request for documents, interrogatories, request for
admissions, or other discovery request, court order, or subpoena from any person or
party regarding this Agreement and the work performed thereunder or with respect to
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Item 8.d. - Page 9
any project or property located within the City. City retains the right, but has no
obligation, to represent Consultant and/or be present at any deposition, hearing, or
similar proceeding. Consultant agrees to cooperate fully with City and to provide the
opportunity to review any response to discovery requests provided by Consultant.
However, City's right to review any such response does not imply or mean the right by
City to control, direct, or rewrite said response.
17. NOTICES
Any notice which either party may desire to give to the other party under this
Agreement must be in writing and may be given either by {i) personal service, {ii)
delivery by a reputable document delivery service, such as but not limited to, Federal
Express, which provides a receipt showing date and time of delivery, or (iii) mailing in
the United States Mail, certified mail, postage prepaid, return receipt requested,
addressed to the address of the party as set forth below or at any other address as that
party may later designate by notice:
To City:
To Consultant:
18. ASSIGNMENT
City of Arroyo Grande
Steven Adams
300 E. Branch Street
Arroyo Grande, CA 93420
Shelline Bennett
5250 North Palm Avenue, Suite 310
Fresno, California 93704
The Consultant shall not assign the performance of this Agreement, nor any part
thereof, without the prior written consent of the City.
19. GOVERNING LAW
The City and Consultant understand and agree that the laws of the State of
California shall govern the rights, obligations, duties, and liabilities of the parties to this
Agreement and also govern the interpretation of this Agreement. Any litigation
concerning this Agreement shall take place in the superior or federal district court with
jurisdiction over the City of Arroyo Grande.
20. ENTIRE AGREEMENT
This Agreement contains the entire understanding between the parties relating to
the obligations of the parties described in this Agreement. All prior or contemporaneous
agreements, understandings, representations, and statements, or written, are merged
into this Agreement and shall be of no further force or effect. Each party is entering into
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this Agreement based solely upon the representations set forth herein and upon each
party's own independent investigation of any and all facts such party deems material.
21. TIME
City and Consultant agree that time is of the essence in this Agreement.
22. CONTENTS OF REQUEST FOR PROPOSAL AND PROPOSAL
Consultant is bound by the contents of the proposal submitted by the Consultant,
Exhibit UC", attached hereto and incorporated herein by this reference.
23. CONSTRUCTION
The parties agree that each has had an opportunity to have their counsel review
this Agreement and that any rule of construction to the effect that ambiguities are to be
resolved against the drafting party shall not apply in the interpretation.of this Agreement
or any amendments or exhibits thereto. The captions of the sections are for
convenience and reference only, and are not intended to be construed to define or limit
the provisions to which they relate.
24. AMENDMENTS
Amendments to this Agreement shall be in writing and shall be made only with
the mutual written consent of all of the parties to this Agreement.
25. AUTHORITY TO EXECUTE THIS AGREEMENT
The person or persons executing this Agreement on behalf of Consultant
warrants and represents that he/she has the authority to execute this Agreement on
behalf of the Consultant and has the authority to bind Consultant to the performance of
its obligations hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed the day and year first above written.
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CITY OF ARROYO GRANDE
By:£~~ .
steven Adams, City Manager
Approved As To Form:
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EXHIBIT A
SCOPE OF WORK
The principal function of the chief labor negotiator will be to conduct labor negotiations
with the official representatives of the Arroyo Grande Police Officers' Association and
Service Employees International Union Local 620 Arroyo Grande Chapter. Services to
be performed include, but may not be limited to, the following:
1. Strategic planning meetings with designated City staff.
2. Discuss negotiations, set parameters, and obtain authority and direction from the
City Council or designee.
3. Assist with the preparation of Memorandum of Understanding proposals and
language.
4. Conduct Labor Negotiations and side bar meetings.
5. Attendance in person or by telephone conference call at City Council closed
session meetings for Labor Negotiator updates as requested.
6. Provide legal consultation and/or representation regarding any legal matters that
may arise out of the labor negotiation process.
7. Represent the City in mediation, fact finding or other processes that may be
involved with the labor negotiation process.
8. Collaboration in other labor relations matters areas as requested by the City
Manager.
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Item 8.d. - Page 13
EXHIBITS
PAYMENT SCHEDULE
Consultant shall invoice the City monthly for actual time worked at an hourly rate as
follows:
Shelline Bennett
Che Johnson
$300 (increasing to $325 on 7 /1 /14)
$215 (increasing to $235 on 7/1/14)
Other charges include the following:
$.25 per page for outgoing faxes
Travel time (outside the retainer) charged at the hourly rate, for the time it takes to travel
to/from the home office of the negotiator to the client or the time it takes to/from the
negotiator's residence to the client, whichever is less.
Total charges shall not exceed a total amount of twenty-five thousand dollars
($25,000.00).
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Item 8.d. - Page 14
EXHIBITC
INSURANCE REQUIREMENTS
Prior to the beginning of and throughout the duration of the Worl<, Consultant will
maintain insurance in conformance with the requirements set forth below. Consultant
will use existing coverage to comply with these requirements. If that existing coverage
does not meet the requirements set forth here, Consultant agrees to amend,
supplement or endorse the existing coverage to do so. Consultant acknowledges that
the insurance coverage and policy limits set forth in this section constitute the minimum
amount of coverage required. Any insurance proceeds available to City in excess of the
limits and coverage required in this agreement and which is applicable to a given loss,
will be available to City.
Consultant shall provide the following types and amounts of insurance:
Commercial General Liability Insurance using Insurance Services Office "Commercial
General Liabilityn policy from CG 00 01 or the exact equivalent. Defense costs must be
paid in addition to limits. There shall be no cross liability exclusion for claims or suits by
one insured against another. Limits are subject to review but in no event less than
$1,000,000 per occurrence.
Business Auto Coverage on ISO Business Auto Coverage from CA 00 01 including
symbol 1 (Any Auto) or the exact equivalent. Limits are subject to review, but in no
event to be less than $1,000,000 per accident. If Consultant owns no vehicles, this
requirement may be satisfied by a non-owned auto endorsement to the general liability
policy described above. If Consultant or Consultant's employees will use personal autos
in any way on this project, Consultant shall provide evidence of personal auto liability
coverage for each such person.
Professional Liability or Errors and Omissions Insurance as appropriate shall be written
on a policy form coverage specifically designated to protect against acts, errors or
omissions of the Consultant and "Covered Professional Servicesn as designated in the
policy must specifically include work performed under this agreement. The policy limit
shall be no less than $1,000,000 per claim and in the aggregate. The policy must "pay
on behalf or the insured and must include a provision establishing the insurer's duty to
defend. The policy retroactive date shall be on or before the effective date of this
agreement.
Insurance procured pursuant to these requirements shall be written by insurer that are
admitted carriers in the state California and with an AM. Bests rating of A-or better and
· a minimum financial size VII.
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Item 8.d. - Page 15
General conditions pertaining to prov1s1on of insurance coverage by Consultant.
Consultant and City agree to the following with respect to insurance provided by
Consultant:
1. Consultant agrees to have its insurer endorse the third party general
liability coverage required herein to include as additional insureds City, its officials
employees and agents, using standard ISO endorsement No. CG 2010 with an edition
prior to 1992. Consultant also agrees to require all Consultants, and subcontractors to
do likewise.
2. No liability insurance coverage provided to comply with this Agreement
shall prohibit Consultant, or Consultant's employees, or agents, from waiving the right of
subrogation prior to a loss. Consultant agrees to waive subrogation rights against City
regardless of the applicability of any insurance proceeds, and to require all Consultants
and subcontractors to do likewise.
3. All insurance coverage and limits provided by Consultant and available or
applicable to this agreement are intended to apply to the full extent of the policies.
Nothing contained in this Agreement or any other agreement relating to the City or its
operations limits the application of such insurance coverage.
4. None of the coverages required herein will be in compliance with these
requirements if they include any limiting endorsement of any kind that has not been first
submitted to City and approved of in writing.
5. No liability policy shall contain any provision or definition that would serve
to eliminate so-called uthird party action over" claims, including any exclusion for bodily
injury to an employee of the insured or of any Consultant or subcontractor.
6. All coverage types and limits required are subject to approval, modification
and additional requirements by the City, as the need arises. Consultant shall not make
any reductions in scope of coverage {e.g. elimination of contractual liability or reduction
of discovery period) that may affect City's protection without City's prior written consent.
7. Proof of compliance with these insurance requirements, consisting of
certificates of insurance evidencing all of the coverages required and an additional
insured endorsement to Consultant's general liability policy, shall be delivered to City at
or prior to the execution of this Agreement. In the event such proof of any insurance is
not delivered as required, or in the event such insurance is canceled at any time and no
replacement coverage is provided, City has the right, but not the duty, to obtain any
insurance it deems necessary to protect its interests under this or any other agreement
and to pay the premium. Any premium so paid by City shall be charged to and promptly
paid by Consultant or deducted from sums due Consultant, at City option.
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8. Certificate{s) are to reflect that the insurer will provide 30 days notice to
City of any cancellation of coverage. Consultant agrees to require its insurer to modify
such certificates to delete any exculpatory wording stating that failure of the insurer to
mail written notice of cancellation imposes no obligation, or that any party will
uendeavor" (as opposed to being required) to comply with the requirements of the
certificate.
9. It is acknowledged by the parties of this agreement that all insurance
coverage required to be provided by Consultant or any subcontractor, is intended to
apply first and on a primary, noncontributing basis in relation to any other insurance or
self insurance available to City.
10. Consultant agrees to ensure that subcontractors, and any other party
involved with the project who is brought onto or involved in the project by Consultant,
provide the same minimum insurance coverage required of Consultant. Consultant
agrees to monitor and review all such coverage and assumes all responsibility for
ensuring that such coverage is provided in conformity with the requirements of this
section. Consultant agrees that upon request, all agreements with subcontractors and
others engaged in the project will be submitted to City for review.
11. Consultant agrees not to self-insure or to use any self-insured retentions
or deductibles on any portion of the insurance required herein and further agrees that it
will not allow any Consultant, subcontractor, Architect, Engineer or other entity or
person in any way involved in the performance of work on the project contemplated by
this agreement to self-insure its obligations to City. If Consultant's existing coverage
includes a deductible or self-insured retention, the deductible or self-insured retention
must be declared to, the City. At the time the City shall review options with the
·Consultant, which may include reduction or elimination of the deductible or self-insured
retention, substitution of other coverage, or other solutions.
12. The City reserves the right at any time during the term of the contract to
change the amounts and types of insurance required by giving the Consultant ninety
(90) days advance written notice of such change. If such change results in substantial
additional cost to the Consultant, the City will negotiate additional compensation
proportional to the increase benefit to City.
13. For purposes of applying insurance coverage only, this Agreement will be
deemed to have been executed immediately upon any party hereto taking any steps
that can be deemed to be in furtherance of or towards performance of this Agreement.
14. Consultant acknowledges and agrees that any actual or alleged failure on
the part of City to inform Consultant of non-compliance with any insurance requirements
in no way imposes any additional obligations on City nor does It waive any rights
hereunder in this or any other regard.
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Item 8.d. - Page 17
15. Consultant will renew the required coverage annually as long as City, or
its employees or agents face an exposure from operations of any type pursuant to this
agreement. This obligation applies whether or not the agreement is canceled or
terminated for any reason. Termination of this obligation is not effective until City
executes a written statement to that effect.
16. Consultant shall provide proof that policies of insurance required herein
expiring during the term of this Agreement have been renewed or replaced with other
policies providing at least the same coverage. Proof that such coverage has been
ordered shall be submitted prior to expiration. A coverage binder or letter from
Consultant's insurance agent to this effect is acceptable. A certificate of insurance
and/or additional insured endorsement as required in these specifications applicable to
the renewing or new coverage must be provided to City within five days of the expiration
of the coverages.
17. The provisions of any workers' compensation or similar act will not limit
the obligations of Consultant under this agreement. Consultant expressly agrees not to
use any statutory immunity defenses under such laws with respect to City, its
employees, officials and agents. -
18. Requirements of specific coverage features or limits contained in this
section are not intended as limitations on coverage, limits or other requirements nor as
a waiver of any coverage normally provided by any given policy. Specific reference to a
given coverage feature is for purposes of clarification only as it pertains to a given issue,
and is not intended by any party or insured to be limiting or all-inclusive.
19. These insurance requirements are intended to be separate and distinct
from any other provision in this agreement and are intended by the parties here to be
interpreted as such.
20. The requirements in this Section supersede all other sections and
provisions of this Agreement to the extent that any other section or provision conflicts
with or impairs the provisions of this Section.
21. Consultant agrees to be responsible for ensuring that no contract used by
any party involved in any way with the project reserves the right to charge City or
Consultant for the cost of additional insurance coverage required by this agreement.
Any such provisions are to be deleted with reference to City. It is not the intent of City to
reimburse any third party for the cost of complying with these requirements. There shall
be no recourse against City for payment of premiums or other amounts with respect
thereto.
22. Consultant agrees to provide immediate notice to City of any claim or loss
against Consultant arising out of the work performed under this agreement. City
assumes no obligation or liability by such notice, but has the right (but not the duty) to
monitor the handling of any such claim or claims if they are likely to involve City.
Page 14
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EXHIBITD
PROPOSAL
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•«• LIEBERT UsSlDY WHITMORE
January 17, 2014
VIA EMAIL: sadams@arroyogrande.org
Steve Adams
City Manager
City of Arroyo Grande
300 East Branch Street
Arroyo Grande, CA 93420
RE: Liebert Cassilly Whitmore Negotiation Services
Dear Mr. Adams,
5250 Nami PAIM AVENUE, Sllm310
FR~ C<U.!foloaA 93'JlH
T:S59.256.7800 F:559M9.635
Richard forwarded your email to me. I would be happy to assist the City with
your labor negotiations. Enclosed below is a brief summary of our work.
Statement of Qualifications
Liebert Cassidy Whitmore provides responsive and highly competent legal
advice, representation, litigation services, negotiations end training to public entities
throughout California. Our competitive advantage over other firms is that we focus our
practice on public sector labor relations and employment law and are committed to
providing high quality, cost effective and practical solutions for the challenges faced by
California's public agencies. One particular area of expertise is our labor relations
representation services in all fonns of collective bargaining end impasse resolution
processes, such as mediation, factfinding and interest arbitration. Our attorneys are well-
versed at handling multiple bargaining tables and are experienced in utilization of
different bargaining techniques in order to successfully conclude negotiations.
Members of our firm have negotiated literally hundreds of memoranda of
understanding with all varieties of general end safety employee groups including:
AFSCME, IBEW, IUOE, SEIU, CLOCEA, Teamsters, and various police, fire and
general employee associations. We have negotiated virtually every issue within the
scope of bargaining, including such issues as: wages, hours, health and retirement
benefits, leaves and discipline.
We believe that our experienced and practical approach to negotiations, as well as
our problem-solving orientation, results in a smoother and more expeditious negotiating
process, fewer sustainable grievances or unfair labor practice charges, and ultimately, a
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more cost-effective method of collective bargaining.
In addition to conducting negotiations for public employers, we continually worlc
with public agencies that employ staff to do their own negotiations. This arrangement has
involved all aspects of consultation and related services, including preparation of initial
bargaining proposals, reviewing counter·proposals, providing training and advice
concerning negotiating strategies, representation through impasse procedures and giving
general advice when particular problems arise.
Liebert ~idy Whitmore has offices in San Francisco, Los Angeles, Fresno and
San Diego and has been in existence since 1980. We have 78 attorneys and three
paralegals. Our Finn Resume detailing our labor and employment practice is attached.
Subject Matter Expertise
LCW negotiators have expertise in the following key subject areas:
Retirement Benefits-The firm's negotiators are trained in the implementation of
the laws and regulations pertaining to public employee retirement plans, including the
Public Employee Retirement System ("PERS''), the County 1937 Retirement Act, end
local agency retirement laws, as well as on retiree health benefit issues. In particular,
LCW negotiators are well versed on the details of the new Public Employees Pension
Reform Act of2013 ("PEPRA'') and how the new law impacts agency obligations at the
bargaining table regarding retirement formulas, employer-employee pension
conbibutions and rules on reportable compensation. In addition, our negotiators
regularly provide advice end counsel on how to negotiate pension contract amendments,
disability retirement procedures end obligations, service credit, GASB issues, unfunded
liability issues, retiree health benefits and vested rights issues.
Impasse Resolution -LCW negotiators have been directly involved in hundreds
of impasse resolution proceedings, including mediation, fact.finding and interest
arbitrations. Related to this area. our firm bas conducted numerous trainings and
briefings on the new fact-finding requirements imposed by AB 646 for agencies subject
to the Meyers-Milias-Brown Act, and our negotiators have handled a fair number of
actual fact-findings under the new law. In addition, our labor negotiations practice group
has developed strategic plans for navigating the laws and regulations on impasse
resolution procedmes, including unilateral implementation of the agency's last, best and
final offer.
Fair Labor Standards Act -LCW has a thriving practice advising public
agencies on compliance with the Fair Labor Standards Act ("FLSA") and our negotiators
have particular expertise addressing FLSA issues at the bargaining table. This includes
knowledge on the extent to which FLSA issues are subject to negotiation, identification
of higher overtime benefits provided by the labor agreement, overtime exemption
challenges and regular rate of pay issues.
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Unfair Labor Practices· Members of the finn have many years of experience
representing our clients in all phases of proceedings before the Public Employment
Relations Board (uPERB''), from consultation and responses to unfair labor practice
charges through PERB hearings and court appeals. This experience is utiliz.ed by the
firm's negotiators to identify bargaining practices and positions that could compromise
the agency's position before PERB. And, if our clients are charged with an unfair labor
practice, LCW is able to provide the full range of representational services in defending
the charge before PERB.
Municipal Bankruptcy-LCW negotiators have been involved in negotiations
with public agencies in, or contemplating, municipal bankruptcy. This includes working
with agencies to develop creative labor relations solutions and alternatives to avoid
bankruptcy as well as advice and counsel on the impact on labor relations matters in the
event an agency files for bankruptcy protection. Our aim in this area is to promote a
disciplined and cautious approach, with the goal to avoid bankruptcy, even in times of
fiscal distress.
Proposed Staff
Our negotiators are all highly skilled, experienced and effective. They are also
creative, practical and excel in effective communications (written and oral presentations,
listening skills). They have negotiated with both safety and miscellaneous employees
bargaining units. They work hard to reach an agreement while also preparing to be in the
best position in the event of impasse. fact-finding or unilateral implementation. ,
We recognize that having the right fit between client and negotiator is an
important component of successful negotiations. One of the distinguishing
characteristics of our firm is that we have a variety of personalities and styles from which
our clients can choose to find the right person for their negotiating needs. I am enclosing
both my resume as well as that of Fresno Associate Che Johnson. We invite you to
interview either of us, either in person or via telephone, at no cost to the City.
Ourresumes are included for your reference.
Our Approach to Negotiations:
Our approach to negotiations will be guided by the philosophy, goals and
objectives of our clients, the financial situation in which our client finds itself, as well as
a number of other factors. In general however, our approach includes the following:
• We work with end for the City Manager and his designated staff, and through him
with the City Council. We provide professional advice to assist the City in
determining its policy goals and objectives, which then become our goals and
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objectives; we see our job as applying our best efforts and skills to achieving
them.
• We believe in carefully organizing for negotiations, with goals and objectives
kept well in mind. The negotiating process, we believe, consists of definable
stages, from preparatory activities to the preHminary bargaining phases, ''bard
bargaining,,, and finally to agreement or impasse procedure. Each stage of the
process requires an organized approach in order to maximize the chances of
attaining bargaining objectives.
• Where we reasonably anticipate adversarial bargaining, concession bargaining,
factfindinglbinding arbitration, unilateral implementation, or other particularly
challenging bargaining issues, we work closely with our clients to ensure they are
best prepared and positioned for a successful outcome when agreements cannot be
reached. We stress that preparation for an impasse hearing process must occur
throughout all stages of bargaining where factfinding or binding interest
arbitration is required.
• We assist our clients in identifying and obtaining practical solutions to the
financial difficulties public agencies are experiencing.
• Our philosophy is not one of''union busting," but rather one of using a
professional approach that seeks to achieve and maintain professional
relationships, notwithstanding the adversarial aspects of the process. We attempt
to contribute positively to the long-standing labor relationship between our clients
and their employee organizations; however, we are experienced with and prepared
to respond to the hard-line approach and tactics used by certain employee
organiz.ations.
• We assist our clients in protecting and maximizing their management rights and
the discretion to set standards of service and retain the prerogative to direct,
assi~ evaluate, hire, fire and reorganize.
• We see the conclusion of negotiations as a framework. for establishing a
constructive employer-employee, organization-employee relations structure,
which requires management training and ongoing involvement with agency
management on our part.
Services Provided
The services offered by our LCW negotiators are generally as follows, subject to
the particular preferences in any agency which can and do bring about modifications to
our role:
• Meet with City staff and elected officials prior to commencement of
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ICM L1EBERT CAss1ov WHITMORE
negotiations in order to best understand (and perhaps formulate) the goals
and objectives of the City in addressing the potential bargaining issues,
and to be made aware of the financial/political limitations upon reaching
those goals and objectives.
• Provide leadership in formulating the strategies which will be employed in
meeting the goals and objectives at the bargaining table. (This may
include asking that various City negotiation team members or resource
personnel prepare budget presentations, detailed cost/revenue analyses or
other financial data which may be discussed during negotiations).
• Administer andlor oversee classification and compensation studies to
gather the data necessary to fonnulate and present the agency's bargaining
objectives and proposals.
• Review and analyze all pertinent charter provisions, ordinances, rules and
regulations, and existing memoranda of understanding, in order to verify
their impact upon the goals and objectives that are being pursued.
• Act as principal spokesperson and strategist during the bargaining process.
• Participate in closed sessions to provide guidance to and receive direction
from elected officials.
• Represent the City at impasse proceedings (including preparation and
representation through the impasse process, preparation of press releases,
supervising media relations, meeting with elected officials, and making
those appearances provided for by the City employee relations ordinance,
as requested by the City).
Members of the firm have handled multiple concurrent negotiations. In fact, most
of our negotiation work involves multiple units. We typically attempt to schedule
meetings with various units back to back as to reduce travel time. We also work
carefully with agency staff to ensure that negotiations with multiple units are coordinated
to be consistent where necessary but different, where differing issues so require.
Rate and Service Structure
Invoices are payable upon receipt and due within 30 days. Pricing offered on a
t.i.me-and-materials basis would be based on the standard hourly rates listed below:
Shelline Bennett ......... $300-increasing to $325 on July 1
Che Johnson ............... $215 -increasing to $235 on July 1
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114W LIEBERT CASSIDY WHITMORE
Expenses
We do not charge for secretarial time, telephone charges or photocopying (unless
copying is done at the request of the client, in which case it is charged at fifteen cents
($.15) per page). We charge $.25 per page for outgoing faxes. There is no charge for
incoming faxes. Travel time (outside the retainer) is charged at the hourly rate, for the
time it takes to travel to/from the home office of the negotiator to the client or the time it
takes to/from the negotiator's residence to the client, whichever is less.
We recognize that your purpose is to serve the needs of the community and so our
goal is to help you achieve this mission. We are most rewarded when we have the
opportunity to collaborate with our clients to create solutions that make them successful.
We offer the City a broad range of experienced labor relations services including
negotiations, training, advice and representation. We bring both historical and current
experience worlcing with public entities to aid the City. We also offer a range of rates to
fit the City's budget. Finally we offer our commitment to the City to provide it with
superior service, timely and efficient work product and professional people with whom to
work. In short we would welcome the opportunity to work with you on these
negotiations.
For more information about our firm, please visit our website at
www.lcwlegal.com. lfwe can answer additional questions, please contact me at 559.
256-7800 or sbennett@lcwlegal.com.
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Sincerely,
Shelline Bennett
Managing Partner, Fresno Office
Los Angeles I San Fraru:ism I Pra;no I San Diego
www.Jcwlegal.c:om
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Shelline Bennett
Partner
Fresno
sbennett@lcwlegal.com
Tel: 559.256.7800
Fax: 559.449.4535
Shelline Bennett has represented management in labor and employment-law matters for 17 years. She has
worked with both private and public employers, including cities, counties, special districts, housing authorities,
and community colleges. She has an extensive litigation background in both federal and state courts.
Shelline's practice also includes representation in disciplinary appeals, administrative hearings, arbitrations,
mediations, investigations, and labor relations and negotiations, including serving as lead negotiator at
bargaining tables. She advises and counsels in all labor and employment-law matters, including the meet end
confer process, wage and hour issues, disability and leave issues, and due process and disciplinary matters.
Shelline represents employera not only in court but before the Department of Fair Employment and Housing, the
Equal Employment Opportunity Commission, the Labor Commissioner, the Workers' Compensation Appeals
Board, the Califomia Unemployment Insurance Appeals Board, arbitrators, and Personnel and Civil Service
Commissions.
1.$ Managing Partner of the Fresno office, Shelline brings her extensive legal and management expertise to the
numerous trainings and workshops she presents on topics Including discrimination, harassment, retaliation,
wage and hour, managing performance through evaluations. medical leave. dlsclpllne, hiring, firing, legal
updates, Brown Act, ethics, and prevention of litigation. Shelllne was recognized as a Northam Celifomia Super
Lawyer in the years 2004, 2006, 2008, 2009 and 2010. Shelllne was also chosen as Fresno Magazine's
Employment and Labor Super Lawyer in 2009.
Shelline hes served as the Chair, Vice Chair, and Secretary/Treasurer for the litlgatlon Section of the Federal
Bar Association.
Prior to joining Liebert Cassidy Whitmore, Shelline was a Managing Shareholder for a large national labor and
employment law flnn and managed their Central Valley office.
Education
JD, University of California, Hastings College of Law
BA, California State University, Fresno
Legal Expertise
Employment Law
Labor Relations and Negotiation Services
Litigation Services
Retirement
@2014 Uebert Cassidy Whitmore. All rights reserved. 1
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llIL~~I LIEBERT CASSIDY WHITMORE
,• -· . -• L; ..
Che I. Johnson
Associate
Fresno
cjohnson@lcwlegal.com
Tel: 559.256.7805
Fax: 559.449.4535
Che Johnson counsels and represents clients In all aspects of labor relations and employment law including
wage and hour, employee discipline, and daims of disaimlnation and harassment Che has extensive
experience in handling all aspects of pre-trial litigation, including deposition and discovery, law and motion
matters and trial preparation. He has also represented dients in arbitration, mediation, before the State
Personnel Board, and before the Public Employment Relations Board.
Che's experience includes employment related litigation, including federal and state litigation and administrative
proceedings. Prior to joining LCW, Che worked with a national full-service firm where he represented employers
in employment litigation matters. Che has represented various State agencies and departments in labor and
employment matters arising under the Ralph C. Dills Act. Che has also worked In the General Counsers Office
for the Public Employment Relations Board as a Board Agent.
Education
JD, University of the Pacific, McGeorge School of Law
BA, University Of California, Berkeley
Legal Expertise
Class Action Litigation
Employment Law
Labor Relations and Negotiation Services
Litigation Services
@ 2014 Liebert Cassidy Whitmore. All rights reserved. 1
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