HomeMy WebLinkAboutAGMT - Liebert Cassidy Whitmore (Audit and Legal Services) AUDIT AND LEGAL SERVICES AGREEMENT
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City of Seal Beach
211 - 8th Street
Seal Beach, CA 90740
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Liebert Cassidy Whitmore
6033 West Century Boulevard
Los Angeles, CA 90045
(310) 981-2000
This Audit and Legal Services Agreement("the Agreement") is made as of the 15th day
of September, 2014 (the "Effective Date"), by and between Liebert Cassidy Whitmore
("Attorney"), a California professional corporation, and the City of Seal Beach ("City"), a
California charter city, (collectively, "thc Parties").
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RECITALS
1. City desires to retain expert representation and consultative services to assist City
in compliance with the Fair Labor Standards Act("FLSA"); and
2. Attorney is specially experienced and qualified to perform the services desired by
the City and is willing to perform such services;
AGREEMENT
NOW, THEREFORE, City and Attorney, in consideration of the covenants contained
herein, mutually agree as follows:
1. Attorney shall perform for the City and audit consisting of a detailed review of the
City's compliance with all aspects of the FLSA designed to ensure total compliance with the
FLSA. Attorney shall perform the following tasks as part of the audit:
A. Review all written documentation relating to the City's FLSA compliance,
including the City's collective bargaining agreements, personnel rules, and payroll policies.
B. Conduct comprehensive interviews with City staff to identify possible
FLSA compliance issues.
C. Conduct comprehensive interviews with payroll personnel to assess the
• City's payroll, timekeeping, and record keeping practices.
D. Review job descriptions and actual job duties to evaluate which employees
are actually exempt from FLSA overtime requirements.
E. Provide a written report of Attorney's findings and recommendations that
identifies areas of non-compliance and suggests ways to reduce FLSA overtime liability.
2. Attorney's services shall not include implementation of any recommendations
made by Attorney as part of its audit, such as negotiation or re-drafting of memoranda of
understanding or representation in claims, grievances, or lawsuits relating to the FLSA issues.
3. Attorney shall perform all Services under this Agreement in accordance with the
standard of care generally exercised by like professionals under similar circumstances and in a
manner reasonably satisfactory to City.
4. In performing this Agreement, Attorney shall comply with all applicable
provisions of federal, state, and local law.
5. For Attorneys aforesaid services performed under this Agreement City shall pay
Attorney a professional fee at the following rates: The rates on this file will be as follows:
$245/hour for Associates and $325/hour for Partners. Attorney shall bill City in one-tenth (1/10)
of an hour increments for all services billed at these hourly rates. In no event will the City pay
more than $25,000 for services provided under this Agreement unless City authorizes such work
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in advance and in writing. Payment for additional work may require prior City Council
authorization.
6. City shall reimburse Attorney for actual expenses reasonably incurred in the
performance of the services under this Agreement for long distance telephone calls, court costs,
services of process, messengers, deliveries, postage and other similar services incidental to the
performance of this Agreement. However, before incurring any indebtedness which is of a
substantial nature or which is not an ordinary and usual expense, prior approval shall be obtained
from the City Attorney. City shall not reimburse or pay Attorney for word processing, document
preparation or clerical tasks. City shall reimburse Attorney for computerized research at
Attorney's actual costs. City and Attorney agree that Attorney shall be reimbursed not more than
Fifty Cents ($.50) per page for facsimile transmissions, with a maximum charge of Forty-Five
Dollars ($45.00) for any individual facsimile transmission, and Fifteen Cents (150) per page for
photocopies.
7. Attorney shall submit monthly statements for services rendered in duplicate
setting forth in detail a description of the nature of the services rendered and the hours required
for their rendition during the preceding month to City on or before the 20th of the following
month. Any expense over $250 shall include the appropriate documentation for that expense.
8. Attorney shall hold harmless, indemnify and defend the City and its officers,
employees, servants, agents, successors, and assigns (collectively "Indemnitees") from and
against any and all claims, demands, judgments, awards, liability, loss, cost, or expense,
including attorney's fees, or any damage whatsoever, including but not limited to death or injury
to any person and damage to any property, resulting from the misconduct, negligence, wrongful
acts or omissions of Attorney or any of its officers, employees, or agents in the performance of
• this Contract, except such damage as is caused by the sole negligence of Indemnitces.
Attorney's obligation to indemnify shall not be restricted to insurance proceeds, if any, received
by Attorney or lndemnitees. All duties of Attorney under this Section shall survive termination
of this Agreement.
9. Attorney shall obtain and maintain during the term of this Agreement:
A. General liability insurance with a combined single limit of not less than
Two Million Dollars ($2,000,000) with City named as an additional insured party.
B. Professional liability insurance with a minimum limit of liability of One
Million Dollars ($1,000,000) providing coverage for any damages or losses suffered by City as a
result of any error or omission or neglect by Attorney which arises out of any professional
services performed under this Agreement.
C. Workers compensation insurance coverage as may be required by law.
10. All insurance policies Attorney is required to maintain by this Agreement shall
contain the following provisions, or Attorney shall provide endorsements on forms supplied or
approved by the City to state: (1) coverage shall not be suspended, voided, reduced or canceled
except after 30 days prior written notice by certified mail, return receipt requested, has been
given to the City; (2) any failure to comply with reporting or other provisions of the policies,
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including breaches of warranties, shall not affect coverage provided to the City, its directors,
officials, officers, (3) coverage shall be primary insurance as respects the City, its directors,
officials, officers, employees, agents and volunteers, or if excess, shall stand in an unbroken
chain of coverage excess of the Attorney's scheduled underlying coverage and that any insurance
or self-insurance maintained by the City, its directors, officials, officers, employees, agents and
volunteers shall be excess of the Attorney's insurance and shall not be called upon to contribute
with it; (4) for general liability insurance, that the City, its directors, officials, officers,
employees, agents and volunteers shall be covered as additional insureds with respect to the
services or operations performed by or on behalf of the Attorney, including materials, parts or
equipment furnished in connection with such work; and (5) for automobile liability, that the City,
its directors, officials, officers, employees, agents and volunteers shall be covered as additional
insureds with respect to the ownership, operation, maintenance, use, loading or unloading of any
auto owned, leased, hired or borrowed by the Attorney or for which the Attorney is responsible.
11. All insurance policies Attorney is required to maintain by this Agreement shall
contain standard separation of insureds provisions and shall not contain any special limitations
on the scope of protection afforded to the City, its directors, officials, officers, employees,
agents, and volunteers.
12. Any deductibles or self-insured retentions from the insurance policies Attorney is
required to maintain by this Agreement shall be declared to and approved by the City. Attorney
guarantees that, at the option of the City, either: (1) the insurer shall reduce or eliminate such
deductibles or self-insured retentions as respects the City, its directors, officials, officers,
employees, agents, and volunteers; or (2) the Attorney shall procure a bond guaranteeing
payment of losses and related investigation costs, claims and administrative and defense
expenses.
13. All insurance policies Attorney is required to maintain by this Agreement shall (1)
provide a minimum thirty (30) days written notice of modification or cancellation, and (2) be
maintained in full force and effect throughout the term of this Agreement.
14. This term of this Agreement shall commence as of the Effective Date and shall
continue until terminated as provided by this Agreement. City may terminate this Agreement at
any time. In the event of such termination, Attorney shall be paid for all services rendered to
City as of the date of termination, plus reimbursement for reasonable out of pocket expenses
previously incurred.
15. This Agreement is a personal service agreement for the services of Attorney and
may not be assigned by Attorney. This Agreement may not be amended without the written
agreement of both parties hereto.
16. It is understood that the relationship of Attorney to City is that of an independent
contractor. All services provided pursuant to this Agreement shall be performed by Attorney or
under its supervision. Attorney will determine the means, methods, and details of performing the
services. Any additional personnel performing services under this Agreement on behalf of
Attorney shall also not be employees of City and shall at all times be under Attorney's exclusive
direction and control. Attorney shall pay all wages, salaries, and other amounts due such
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personnel in connection with their performance of services under this Agreement and as required
by law. Attorney shall be responsible for all reports and obligations respecting such additional
personnel, including, but not limited to: social security taxes, income tax withholding,
unemployment insurance, disability insurance, and workers' compensation insurance.
17. Attorney shall indemnify and hold harmless City and its elected officials, officers,
employees, servants, designated volunteers, and agents serving as independent contractors in the
role of City officials, from any and all liability, damages, claims, costs and expenses of any
nature to the extent arising from Attorney's personnel practices. City shall have the right to
offset against the amount of any fees due to Attorney under this Agreement any amount due to
City from Attorney as a result of Attorney's failure to promptly pay to City any reimbursement
or indemnification arising under this Section.
18. Attorney agrees not to accept any employment during the term of this Agreement
by any other person, firm or corporation which employment may create a conflict of interest with
the interests of City.
19. Attorney shall, at its own costs and expense, provide all facilities and equipment
which may be required for performance of services required by this Agreement.
20. In the performance of this Agreement, Attorney shall comply with all applicable
provisions of the California Fair Employment and Housing Act (California Government Code
Sections 12900 et seq.) and the applicable equal employment provisions of the Civil Rights Act
of 1964 (42 U.S.C. 2203 - 217), whichever is more restrictive.
21. This Agreement represents the entire and integrated Agreement between City and
Attorney and supersedes any and all prior negotiations, representations or agreement, either
written or oral. This Agreement may be amended only by written instrument signed by both City
and Attorney.
22. All notices permitted or required under this Agreement shall be deemed made
when personally delivered or when mailed 48 hours after deposit in the United States Mail, first
class postage prepaid and addressed to the party at the following addresses:
City of Seal Beach Liebert Cassidy Whitmore
211 8th Street 6033 West Century Boulevard
Seal Beach, California 90740 Los Angeles, California 90045
Attn: City Manager Attn: Scott Tiedemann
Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of
the method of service.
23. The City Manager is the City's representative for purposes of this Agreement.
24. James E. Oldendorph, Jr. is the Attorney's primary representative for purposes of
this Agreement.
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25. No third party shall be deemed to have any rights hereunder against either party as
a result of this Agreement.
26. No waiver of any default shall constitute a waiver of any other default or breach,
whether of the same or other covenant or condition. No waiver, benefit, privilege, or service
voluntarily given or performed by a party shall give the other party any contractual rights by
custom, estoppel, or otherwise.
27. If either party commences any legal, administrative, or other action against the
other party arising out of or in connection with this Agreement, the prevailing party in such
action shall be entitled to have and recover from the losing party all of its attorneys' fees and
other costs incurred in connection therewith.
28. The person executing this Agreement on behalf of Attorney warrants that he or
she is duly authorized to execute this Agreement on behalf of said Party and that by his or her
execution, the Attorney is formally bound to the provisions of this Agreement.
IN WITNESS WHEREOF, the Parties hereto, through their respective authorized
representatives have executed this Agreement as of the date and year first above written\
CITY OF SEAL BEACH LIEBERT iA .SIDY WHITMORE
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By: �d ' �'u L By: — �.�
El R. Ingram, City irk, 'o Tiedemann, Managing Partner
Attest:
BY: a 4/u' A-/L/,.
im'a Devine, C y Clerk
Approved as to form:
By: As
SteJFlower, ity Attorney
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