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HomeMy WebLinkAboutP-21-100 Legal Services - Peck vs. Dept. of Housing and Urban Development - Signed 003.pdfAGREEMENT FOR SPECIALIZED LEGAL SERVICES TIDS AOREEMENT(the "Agreement") is entered into this April 8, 2021 by and between the COUNTYOF FRESNO, a political subdivision of the State of California (hereinafter "COUNTY11) and PORTER SCOTI, a California professional law corporation (hereinafter II A TIORNEY"). }VITNESSETH WHEREAS, COUNTY has the need for special counsel to represent COUNTY in Gregory Peck et al. v. Department of Housing and Urban Development et al., Utah District Court Case No. 2:20-CV -00321. WHEREAS, COUNTY wishes to engage the specialized legal services of counsel who is expert in legal matters concerning the subject of such litigation; and WHEREAS, A TIORNEY represents that it is specially trained and experienced, and that it possesses such expertise; and WHEREAS, such specialized legal expertise is not available, nor expected to be available, in COUN'IYS Office of the County Counsel. NOW, 1HEREFORE, in consideration of the mutual covenants, terms,and conditions herein contai ned, the parties hereto agree as follows: 1.Engagement of ATTORNEY:COUNTY hereby engages ATTORNEY as an independent contractor through theservices of the following keypersons: John R. Whitefleet, Carl Fessenden, Ka van Jeppson and such other members of, and associate attorneys and staff employed by said firm as A ITORNEY deems necessary, and County Counsel, or his designee, approves pursuant to paragraph 3 of this Agreement, except that the foregoing key persons may, from time to time, consult with such of A TIORNEY'S other lawyers on a "limited basis" (as hereinafter defined) as A TIORNEY reasonably deems prudent and necessary under the circumstances. It is understood that A ITORNEY may not replace any of the aforementioned key persons named above without the prior, express, written approval of County Counsel, or his designee. A.Scope of Servicg A TIORNEY shall advise and represent the County in.Gregory Peck et al. v. Department of Housing and Urban Development et al., Utah District Court Case No. 2:20-CV-00321 pursuant to the terms and conditions of this Agreement. B.Authorization to Proceed with Work:A TIORNEY shall promptly commence performance of services upon receiving authorization to proceed with work from the County Counsel, or his designee. C.Pro Hae Vice Admission to UtahA TIORNEY will engage Local Counsel in Utah for pro hac vice admission to the Federal Court for District of Utah and will bill us for his services. Agreement for Specialized Legal Services between Porter Scott and the County of Fresno P-21-100 2. Performance bv ATTORNEY; ATTORNEY agrees to timely perform all services provided under this Agreement. ATTORNEY agrees to avoid unnecessary duplicative efforts on the part of ATTORNEY and ATTORNEY'S partners, associate lawyers, and staff members in ATTORNEY'S performance of Services for the COUNTY hereunder. In the performance of the tasks under this Agreement, ATTORNEY shall provide only those services to which are necessary to carry out such tasks in an efficient and effective manner. ATTORNEY shall have the principal responsibility forthe litigation in Utah. 3. Compensation of ATTORNEY; COUNTY shall be obligated to compensate ATTORNEY pursuant to the terms and conditions of this Agreement only for the performance of those tasks, to the reasonable satisfaction of COUNTY, which are related to the subject matter of this Agreement. COUNTY shall not be obligated to compensate ATTORNEY for intra-office conferences between or among ATTORNEY'S partners, associate lawyers, and staff members, unless such intra-office conferences promote efficiency in the performance of ATTORNEY'S work on a matter, or a reduction in the cost of compensation paid to ATTORNEY. COUNTY shall not be obligated to compensate ATTORNEY for any work, services, or functions performed by ATTORNEY: (1) in seeking to obtain COUNTY'S business or negotiating with COUNTY to enter into this Agreement; or (2) in providing COUNTY with documentation, explanation, or Justifications concerning the adequacy or accuracy of its invoices for the performance of services under this Agreement and resolving same to the reasonable satisfaction ofCOUNTY. COUNTY agrees to pay and ATTORNEY agrees to accept as full compensation for performance or services under this Agreement at the following rate: Partners at a rate of a $225.00 per hour; Associates at a rate of $210.00 per hour; and Local Counsel in Utah at a rate of $370.00 per hour, expense of which to be included in the final costs. In no event shall the total compensation paid to ATTORNEY exceed $75,000.00. ATTORNEY may, from time to time, consult with such of ATTORNEY'S other lawyers, if any, on a limited basis as ATTORNEY reasonably deems prudent and necessary under the circumstances, and ATTORNEY may also, upon the written approval of County Counsel, or his or her designee, provide additional members of, or associate lawyers employed by its firm, if any, to perform significant work under this Agreement, provided that such additional person who are consulted or who provide work are compensation by COUNTY for performance of asks under this Agreement at a rate not to exceed each such person's customary billing rate per hour for local governmental entities. Notwithstanding anything stated in the contrary in this paragraph, the term "limited basis," as provided herein shall mean (15) hours or less worked per month or fraction thereof. In addition, ATTORNEY shall be reimbursed for reasonable and necessary out- of-pocket expenses directly related to the Services as follows: courier charges, postage charges, printing and reprographic reproduction expenses; in-State travel and out of State travel to Utah; expert consultants, including, but not limited to local counsel in Utah in pro hac vice; and all such directly related expenses. It is understood that ATTORNEY shall not be reimbursed for any secretarial or clerical services (including overtime hours worked), or normal office operating expenses, vidth the exception of those charges and Agreement for Specialized Legal Services between Porter Scott and the County of Fresno expenses stated in the immediately preceding sentence of this Agreement. Under no circumstances shall COUNTY compensate ATTORNEY for secretarial or clerical work performed by paralegals. Furthermore, COUNTY shall not compensate ATTORNEY for work performed by paralegals ^^ere such work ordinarily is performed by licensed attorneys, including legal research and legal document drafting. 4. Payment and Record-Keeping; Subject to paragraph 3 hereof, payment of compensation for the Services provided under this Agreement and reimbursement for related, reasonable, and necessary out-of- pocket expenses incurred shall be made by COUNTY after submission of an itemized invoice by ATTORNEY to COUNTY no later than the thirtieth (30th) day following the end of the month in which the final and satisfactory delivery of such Services was completed. All paymentsof compensation and reimbursement for expenses incurred in connection herewith shall be made by COUNTY no later than forty-five (45) days following the date that COUNTY receives a properly completed invoice requesting the payment for such Services rendered and expenses incurred. All of ATTORNEY'S invoices shall reflect accurately the tasks performed by ATTORNEY under this Agreement. In addition, all such invoices shall have sufficient detail as may be required by COUNTY'S Auditor-ControllernVeasurer-Tax Collector. In addition to the requirements of this paragraph 4, each invoice shall set forth a summary of hours worked by each member, associate lawyer and staff, if any, for the applicable billing period. In preparing its invoices, ATTORNEY shall document tasks performed on a daily basis. If requested by the COUNTY, or COUNTY'S designee, ATTORNEY shall not combine unrelated tasks as a single entry in lieu of setting forth the hours of work performed on each specific task. ATTORNEY shall prepare its invoices in an organized manner that facilitates an efficient review of the work performed and the expenses incurred in order to provide COUNTY with a clear and complete understanding of how much time was devoted to specific tasks, and the fees and cost associated therewith. ATTORNEY shall keep complete records of the Services provided, as described in this paragraph 4, together with all related, reasonable, and necessary, out-of-pocket expenses applicable to the work provided under this Agreement. COlWTY's Auditor- Control ler/Treasurer-Tax Collector, or his or her duly authorized representative, shall be given reasonable access to all of these records for the purposes of an audit of this Agreement. In addition, ATTORNEY shall be subject to the examination and audit of such records by the Auditor General for a period of (3) years after final payment under this Agreement (Gov. Code section 8546.7). 5. Term of Agreement This agreement shall be effective upon execution by all parties. This agreement shall continue in full force and effect unless and until it is terminated by either or both parties. Either party may terminate this Agreement at any time, either in whole or in part, by providing >vritten notice of such termination to the other party. However, if ATTTDRNEY elects to terminate this Agreement, COUNTY'S rights under any pending matter which may arise from ATTORNEY'S Services hereunder shall not be prejudiced Agreement for Specialized Legal Services between Porter Scott and the County of Fresno due to such termination as required by the Rules of Professional Conduct of the State Bar of California. ATTORNEY shall be paid for all Services performed pursuant to this Agreement up to the date of such termination. 6. Independent Contractor: In performance of the work, duties, and obligations assumed by ATTORNEY under this Agreement, it is mutually understood and agreed that ATTORNEY, including any and all of ATTORNEY'S officers, agents, and employees, if any, will at all times be acting and performing as an independent contractor, and shall act in an independent capacity and not as an officer, agent, servant, employee, joint venturer, partner, or associate of COUNTY. Furthermore, COUNTY shall have no right to control or supervise or direct the manner or method by which ATTORNEY shall perform its obligations under this Agreement. However, COUNTY shall retain the right to administer this Agreement so as to verify that ATTORNEY is performing its obligations in accordance with the terms and conditions hereof. ATTORNEY and COUNTY shall comply with all applicable provisions of law and the rules and regulations, if any, ofgovernmental authorities havingjurisdiction over matters of the subject hereof. Because of its status as an independent contractor, ATTORNEY shall have absolutely no right to employment rights and benefits available to COUNTY employees. ATTORNEY shall be solely liable and responsible for providingto, or on behalf of, its employees, if any, all legally required employee benefits. In addition, ATTORNEY shall be solely responsible and save COUNTY harmless from all matters related to payment of ATTORl^Y's employees, including compliance with social security, withholding, and all other regulations governing such matters. It is acknowledged that during the term of this Agreement, ATTORNEY may be providing services to other unrelated to COUNTY or to this Agreement. 7. Insurance; Without limiting County's rights herein, or against any third parties, ATTORNEY, at its sole expense, shall maintain in full force and effect the following insurance policies throu^out the entire term of this Agreement: A. A policy of professional liability insurance with limits of coverage of not less than One Million Dollars ($1,000,000,000) per claim made, with a Three Million Dollars ($3,000,000.00) policy aggregate; B. A policy of general liability insurance with limits of coverage of not less than One Million and No/100s Dollars ($1,000,000.00) per occurrence. ATTORNEY shall maintain automobile liability insurance with limits of coverage of not less than One Hundred Thousand and No/100s Dollars ($100,000.00) per person and Three Hundred Thousand and No/lOOs Dollars ($300,000.00) per occurrence; and C. A policy of workers compensation insurance as is required by the California Labor Code, providing full statutory coverage. All such insurance policies shall be issued by insurers who have an A.M. Best rating acceptable to COUNTY'S Personnel Services Manager, Risk Management Division. In addition to its obligations set forth hereinabove, ATTORNEY agrees that is shall maintain, at its sole expense, in full force and effect for a period of three (3) years following the termination of this Agreement a policy of professional liability insurance with limits of coverage of not less than One Million Dollars ($1,000,000.00) per claim made, with a Three Million Dollars ($3,000,000,000) policy aggregate; provided. Agreement for Specialized Legal Services between Porter Scott and the County of Fresno however, in the event that ATTORNEY shall maintain, at its sole expense, in full force and effect extended claims reporting coverage insurance in lieu thereof in the amount of not less than One Million Dollars ($1,000,000,000) per claim made, with a Three Million Dollars ($3,000,000.00) policy aggregate. 8. Agreement is Binding Upon Successors; This agreement shall be binding upon COUNTY and ATTORNEY and theirsuccessors, executors, administrators, legal representatives, and assigns ^Mth respect to all the covenants and conditions set forth herein. 9. Assignment and Subcontractors: Notwithstanding anything stated to the contrary in paragraph 8 hereof, neither party shall assign, transfer, or sub-contract this Agreement not its rights or duties hereunder without the written consent of the other. 10. Amendments; This Agreement may only be amended in writing signed by the parties hereto. 11. Conflict of Interest; ATTORNEY promises, covenants, and warrants that after having performed a reasonable investigation, the performance of its services and representation to COUNTY under this Agreement do not result in a "conflict of interest" as that term is used in the Rules of Professional Conduct of the State Bar of California. ATTORNEY represents other defendants in this same litigation and thus, requires a waiver from the COUNTY'S Board of Supervisors. In the event a "conflict of interest" occurs, ATTORNEY wall request COUNTY'S Board of Supervisors to waive such "conflict of interest" on a case-by-case basis. 12. Further Assurances bv ATTORNEY; ATTOIWEY represents that it has read and is familiarwith Government Code sections 1090etseq. and 87100 etseq. Further, ATTORNEY promises, covenants, and warrants that, after having performed reasonable investigation, the performance of its services under this Agreement shall not result in or cause violation by it of Government Code sections 1090 et seq. and 87100 et seq. 13. Compliance with Laws: ATTORNEY shall comply with all federal, state, and local laws and regulations applicable to the performance of its obi igations under this Agreement. 14. Notices: The persons and their addresses having authority to give and receive notices under this Agreement include the following: COUNTY ATTORNEY Fresno County Counsel's Office Porter Scott, a Professional Corporation 2220 Tulare Avenue, Suite 500 John R. Whitefleet Fresno, California 93721 350 University Avenue, Suite #200 Sacramento, CA 95825 15. Venue and Governing Law; The parties agree that, for purposes of venue, performance under this Agreement is to be in the State of California and in the State of Utah. The rights and obligations of the parties and all interpretations and performance of this Agreement shall be governed in all respects by the laws of the State of California. 16. Entire Agreement; This Agreement constitutes the entire agreement between COUNTY and ATTORNEY with respect to the Services to be provided herein and supersedes and previous agreement concerning the subject matter hereof, as well as supersedes any negotiations, proposals, commitments, writings, or understandings of any Agreement for Specialized Legal Services between Porter Scott and the County of Fresno nature whatsoever unless expressly included in this Agreement. If any part of this Agreement is found violative of any law or is found to be otherwise legally defective, A TIORNEY and COUNTY shall use their best efforts to replace that part of this Agreement with legal terms and conditions most readily approximating the original intent of the parties. IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed as of the day and year first above written: ATTORNEY: COUNTY OF FRESNO Porter Scott, a Professional Corporation By� � � f-M1, M 6l;OUL B y ____________ _ Gary E. Cornuelle, Purchasing Manager REVIEWED & RECOMMENDED FOR APPROVAL q DANIEL C. CEDERBORG, County Couns FOR ACCOUNTING USE ONLY: ORG: FUND: ACCOUNT: SUBCLASS: 6 Agreement for Specialized Legal Services between Porter Scott and the County of Fresno 8925 0100 7295 10000