HomeMy WebLinkAboutP-20-533 Deferred Comp Legal Services Agreement with BBK - FINAL.pdf83354.00005\33927520.2
1
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
AGREEMENT FOR SPECIALIZED LEGAL SERVICES
THIS AGREEMENT (“Agreement”) is made and entered into this ________ day of
____________, 2021, by and between the COUNTY OF FRESNO, a political subdivision of the
State of California (“COUNTY”), and the law firm of BEST, BEST and KRIEGER, LLP
(“ATTORNEY”), whose address is 5955 Granite Lake Drive, Suite 120, Granite Bay, California
95746.
W I T N E S S E T H:
WHEREAS, the Deferred Compensation Management Council (“COUNCIL”), on
behalf of COUNTY, may, from time to time, have the need to seek the advice of outside counsel
in connection with any employee benefit matters concerning COUNTY’s deferred compensation
plan as may be requested; and
WHEREAS, COUNTY wishes to engage the specialized legal services of outside
counsel who is expert in legal matters concerning such issues; and
WHEREAS, ATTORNEY represents that it is specially trained and experienced, and that
it possesses such expertise; and
WHEREAS, such specialized legal services are either not available or expected not to be
available in COUNTY’s Office of the County Counsel.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions
herein described, the parties hereto agree as follows:
1. Employment of Attorney: ATTORNEY is retained to provide specialized legal
services to advise the COUNTY in connection with any employee benefit matters concerning
COUNTY’s deferred compensation plan as may be requested by the COUNTY.
A. Scope of Services: From time to time, COUNCIL may request
ATTORNEY to perform specialized legal services in connection with any employee benefit
matters concerning COUNTY’s deferred compensation plan. Upon COUNCIL’s written request
to perform such services, and ATTORNEY’s written acknowledgment that ATTORNEY will
83354.00005\33927520.2
2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
provide such services, ATTORNEY shall perform such services pursuant to the terms and
conditions of this Agreement. Notwithstanding the foregoing provisions of this subsection 1.A.,
in the event of exigent circumstances, COUNCIL may make such request orally, and COUNCIL
and ATTORNEY shall within a reasonable time thereafter document such request for services
and acknowledgment thereof.
B. Authorization to Proceed with Performing Services: ATTORNEY shall
commence performance of legal services upon receiving authorization to proceed with
performing services from the COUNCIL.
2. Performance by Attorney: ATTORNEY agrees to timely perform all services
provided under this Agreement. ATTORNEY agrees to avoid unnecessary duplicative efforts on
the part of ATTORNEY in providing such legal services.
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 and
services for COUNTY, or a reduction in the cost of compensation paid or reimbursement made
for related, reasonable and necessary, out-of-pocket expenses to ATTORNEY, or both.
In the performance of the tasks identified in section 1 under this Agreement,
ATTORNEY shall provide only those services which are necessary to carry out such tasks in an
efficient and effective manner.
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 as specified in Section 1 herein. It is understood that COUNTY shall not be
obligated to compensate ATTORNEY for any work, services, or functions performed by
ATTORNEY: (i) in seeking to obtain COUNTY’s business or negotiating with COUNTY to
enter into this Agreement or (ii) in providing COUNTY with documentation, explanations, or
justifications concerning the adequacy or accuracy of its invoices for the performance of services
83354.00005\33927520.2
3
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
under this Agreement and resolving same to the reasonable satisfaction of COUNTY.
COUNTY agrees to pay and ATTORNEY agrees to accept as full compensation for
performance of tasks under this Agreement the following sum per hour per person:
A. From October 6, 2020, through and including May 1, 2021:
a. Susan B. Neethling, Of Counsel $400.00
b. Janelle S. Rango, Pension Consultant $250.00
B. From May 2, 2021 through the remainder of the Agreement:
a. Susan B. Neethling, Of Counsel $450.00
b. Janelle S. Rango, Pension Consultant $275.00
ATTORNEY shall be reimbursed for related, reasonable, and necessary out-of-pocket
expenses, as follows: telephone charges, telephonic facsimile transmission charges, computer
research charges, courier charges, postage charges, printing and photographic reproduction
expenses, and all such directly-related expenses.
It is understood that ATTORNEY shall not be reimbursed for its secretarial or clerical
work (including overtime hours worked), or normal office operating expenses, with the
exception of those charges and expenses stated in the immediately preceding paragraph of this
Agreement. In addition, COUNTY shall not compensate ATTORNEY for work performed by
paralegals where such work ordinarily is performed by licensed attorneys, including legal
research and legal document drafting.
In no event shall the maximum amount paid to ATTORNEY as compensation for
ATTORNEY’s services performed under this Agreement exceed $30,000.00. ATTORNEY shall
not be paid for any services or costs above this limit without written modification of this
Agreement executed by both parties.
4. Payment and Record-keeping: Subject to section 3 of this Agreement, 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 the Office of the County Counsel,
83354.00005\33927520.2
4
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
Rebekah A. Eropkin, Deputy County Counsel, 2220 Tulare Street, Fifth Floor, Fresno, CA
93721, no later than the thirtieth (30th) day following the end of the month in which such services
were rendered or expenses incurred. All payments of compensation and reimbursement for
expenses incurred in connection therewith 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 such 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, including, but not limited to:
A. The specific nature of each task performed as services under this
Agreement;
B. The name of the lawyer or consultant performing each such task;
C. The number of hours worked by each such person for each such task;
D. The hourly rate per each such person performing each such task; and
E. The related, reasonable, and necessary out-of-pocket expenses incurred,
as provided for in section 3 of this Agreement.
In addition to the requirements of this section 4 of this Agreement, each invoice shall set
forth a summary of hours worked by each lawyer and consultant for the applicable billing period.
Each such invoice shall set forth the product of such summary of hours worked by each person
multiplied by such person’s billing rate.
ATTORNEY shall prepare its invoices in an organized manner that facilitates an efficient
review of the services 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 projects,
and the associated cost.
ATTORNEY shall keep complete records of the services provided, as described in this
section 4 of this Agreement, together with all related, reasonable, and necessary out-of-pocket
expenses applicable to the work and services provided under this Agreement. COUNTY, and
83354.00005\33927520.2
5
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
COUNTY’s Auditor-Controller/Treasurer-Tax Collector, or his or her duly authorized
representatives, shall be given reasonable access to all of these records for the purposes of audit
of this Agreement.
In addition, ATTORNEY shall be subject to the examination and audit of such records
by the California State Auditor General for a period of three (3) years after final payment under
this Agreement if the total expenditure of public funds exceeds the statutory amount provided in
Government Code section 8546.7.
5. Term of Agreement: This Agreement shall be effective October 6, 2020 and shall
continue in full force and effect for a term of three (3) years, unless earlier terminated hereunder
by either or both parties. Either party may terminate this Agreement at any time, either in whole
or in part upon giving a minimum of thirty (30) calendar days advance, written notice to the
party at the address for notices to the party provided in Section 16 of this Agreement. However,
if ATTORNEY elects to terminate this Agreement, COUNTY’s rights under any pending matter
which may arise from ATTORNEY’s services hereunder shall not be prejudiced due to such
termination as required by the Rules of Professional Conduct of the State Bar of California.
Subject to section 3 of this Agreement, ATTORNEY shall be paid for all services performed to
the date of termination of this Agreement, which are done to the reasonable satisfaction of
COUNTY.
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 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 venture, 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.
83354.00005\33927520.2
6
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
ATTORNEY and COUNTY shall comply with all applicable provisions of law and the rules and
regulations, if any, of governmental authorities having jurisdiction 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 providing to, or on behalf of, its employees all legally -
required employee benefits. In addition, ATTORNEY shall be solely responsible and hold
COUNTY harmless from all matters related to payment of ATTORNEY’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 others unrelated to COUNTY or to this Agreement.
7. Hold Harmless: ATTORNEY shall hold COUNTY, its officers, agents, and
employees harmless and indemnify and defend COUNTY, its officers, agents, and employees
against payment of any and all costs and expenses, claims, suits, losses, damages, and liability
arising from or arising out of any actual or alleged negligent or wrongful acts or omissions of
ATTORNEY, including its partners, officers, agents, and employees, in performing or failing to
perform the services provided herein. COUNTY’s receipt of any insurance certificates required
herein does not in any way relieve the ATTORNEY from its obligations under this section 7 of
this Agreement.
8. Insurance
Without limiting COUNTY’s rights to obtain indemnification from ATTORNEY or any
third parties, ATTORNEY, at its sole expense, shall maintain in full force and effect the
following insurance policies or a program of self-insurance, including but not limited to, an
insurance pooling arrangement of Joint Powers Agreement (JPA) throughout the term of this
Agreement:
A. Commercial General Liability
Commercial General Liability Insurance with limits of not less than Two Million Dollars
83354.00005\33927520.2
7
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
($2,000,000.00) per occurrence and an annual aggregate of Four Million Dollars
($4,000,000.00). This policy shall be issued on a per occurrence basis. COUNTY may require
specific coverages including completed operations, products liability, contractual liability,
Explosion-Collapse-Underground, fire legal liability or any other liability insurance deemed
necessary because of the nature of this contract.
B. Automobile Liability
Comprehensive Automobile Liability Insurance with limits of not less than One Million
Dollars ($1,000,000.00) per accident for bodily injury and for property damages. Coverage
should include any auto used in connection with this Agreement.
C. Professional Liability
If ATTORNEY employs licensed professional staff, (e.g., Ph.D., R.N., L.C.S.W.,
M.F.C.C.) in providing services, Professional Liability Insurance with limits of not less than One
Million Dollars ($1,000,000.00) per occurrence, Three Million Dollars ($3,000,000.00) annual
aggregate.
D. Worker's Compensation
A policy of Worker's Compensation insurance as may be required by the California Labor
Code.
Additional Requirements Relating to Insurance
ATTORNEY shall obtain endorsements to the Commercial General Liability insurance
naming the County of Fresno, its officers, agents, and employees, individually and collectively,
as additional insured, but only insofar as the operations under this Agreement are con cerned.
Such coverage for additional insured shall apply as primary insurance and any other insurance,
or self-insurance, maintained by COUNTY, its officers, agents and employees shall be in excess
only and not contributing with insurance provided under ATTORNEY’s policies herein. This
insurance shall not be cancelled or changed without a minimum of thirty (30) days advance
written notice given to COUNTY.
ATTORNEY hereby waives its right to recover from COUNTY, its officers, agents, and
83354.00005\33927520.2
8
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
employees any amounts paid by the policy of worker’s compensation insurance required by this
Agreement. ATTORNEY is solely responsible to obtain any endorsement to such policy that
may be necessary to accomplish such waiver of subrogation, but ATTORNEY’s waiver of
subrogation under this paragraph is effective whether or not ATTORNEY obtains such an
endorsement.
Within thirty (30) days from the date ATTORNEY signs and executes this Agreement,
ATTORNEY shall provide certificates of insurance and endorsement as stated above for all of
the foregoing policies, as required herein, to the County of Fresno, (Name and Address of the
official who will administer this contract), stating that such insurance coverage have been
obtained and are in full force; that the County of Fresno, its officers, agents and employees will
not be responsible for any premiums on the policies; that such Commercial General Liability
insurance names the County of Fresno, its officers, agents and employees, individually and
collectively, as additional insured, but only insofar as the operations under this Agreement are
concerned; that such coverage for additional insured shall apply as primary insurance and any
other insurance, or self-insurance, maintained by COUNTY, its officers, agents and employees,
shall be excess only and not contributing with insurance provided under ATTORNEY's policies
herein; and that this insurance shall not be cancelled or changed without a minimum of thirty
(30) days advance, written notice given to COUNTY.
In the event ATTORNEY fails to keep in effect at all times insurance coverage as herein
provided, the COUNTY may, in addition to other remedies it may have, suspend or terminate
this Agreement upon the occurrence of such event.
All policies shall be issued by admitted insurers licensed to do business in the State of
California, and such insurance shall be purchased from companies possessing a current A.M.
Best, Inc. rating of A FSC VII or better.
9. Agreement is Binding Upon Successors: This Agreement shall be binding upon
COUNTY and ATTORNEY and their successors, executors, administrators, legal
representatives, and assigns with respect to all the covenants and conditions set forth herein.
83354.00005\33927520.2
9
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
10. Assignment and Subcontracting: Notwithstanding anything stated to the contrary
in section 10 of this Agreement, neither party hereto shall assign, transfer, or sub-contract this
Agreement nor its rights or duties hereunder without the written consent of the other.
11. Amendments: This Agreement may only be amended in writing signed by the
parties hereto.
13. 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. In the event a “conflict of
interest” occurs, ATTORNEY will request COUNTY’s Board of Supervisors to waive such
“conflict of interest” on a case-by-case basis.
14. Further Assurances by ATTORNEY: ATTORNEY represents that it has read and
is familiar with Government Code sections 1090 et seq. and 87100 et seq. ATTORNEY
promises, covenants, and warrants that, after having performed a reasonable investigation, the
performance of its services under this Agreement shall not result in or cause a violation by it of
Government Code sections 1090 et seq. and 87100 et seq.
15. Compliance With Laws: ATTORNEY shall comply with all federal, state, and
local laws and regulations applicable to the performance of its obligations under this Agreement.
16. Notices: The persons and their addresses having authority to give and receive
notices under this Agreement include the following:
COUNTY ATTORNEY
Hollis Magill Susan B. Neethling
Interim Director of Human Resources Best Best & Krieger, LLP
COUNTY OF FRESNO 5955 Granite Lake Drive
2220 Tulare Street, Suite 120
16th Floor Granite Bay, CA 92101
Fresno, CA 93721
Any and all notices between COUNTY and ATTORNEY provided for or permitted
under this Agreement must be in writing and shall be deemed duly served when personally
83354.00005\33927520.2
10
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
delivered to one of the parties, or in lieu of such personal service, when deposited in the United
States mail, postage prepaid, addressed to such party. Any notices to be given or provided for
under this Agreement are not modifications or changes of this Agreement.
17. Venue and Governing Law: The parties agree that, for purposes of venue,
performance under this Agreement is to be in Fresno County, California. 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.
18. Disclosure of Self-Dealing Transactions: This provision is only applicable if
ATTORNEY is operating as a corporation (a for-profit or non-profit corporation) or if during
the term of this Agreement, ATTORNEY changes its status to operate as a corporation.
Members of ATTORNEY’s Board of Directors shall disclose any self-dealing
transactions that they are a party to while ATTORNEY is providing goods or performing
services under this Agreement. A self-dealing transaction shall mean a transaction to which the
ATTORNEY is a party and in which one or more of its directors has a material financial interest.
Members of the Board of Directors shall disclose any self-dealing transactions that they are a
party to by completing and signing a Self-Dealing Transaction Disclosure Form, attached hereto
as Exhibit A and by this reference incorporated herein, and submitting it to COUNTY prior to
commencing with the self-dealing transaction or immediately thereafter.
19. Entire Agreement: This Agreement constitutes the entire agreement between
COUNTY and ATTORNEY with respect to the specialized legal services to be provided herein
and supersedes any previous agreement and/or assignment concerning the subject matter hereof,
negotiations, proposals, commitments, writings, or understandings of any nature whatsoever
unless expressly included in this Agreement.
If any part of this Agreement is found to violate any law or is found to be otherwise
legally defective, ATTORNEY 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.
83354.00005\33927520.2
11
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
[SIGNATURE PAGE FOLLOWS]
83354.00005\33927520.2
12
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the day and year first above written.
Best Best & Krieger, LLP
By_______________________________
Susan B. Neethling
For Accounting Use Only:
ORG: 89250200
FUND: 1060
ACCOUNT: 7295
SUBCLASS: 10000
COUNTY OF FRESNO
By_______________________________
Gary Cornuelle,
Purchasing Manager
83354.00005\33927520.2
A-1
EXHIBIT A
SELF-DEALING TRANSACTION DISCLOSURE FORM
In order to conduct business with the County of Fresno (“County”), members of a contractor’s board
of directors (“County Contractor”), must disclose any self -dealing transactions that they are a party
to while providing goods, performing services, or both for the County. A self-dealing transaction is
defined below:
“A self-dealing transaction means a transaction to which the corporation is a party and in which one
or more of its directors has a material financial interest”
The definition above will be utilized for purposes of completing this disclosure form.
INSTRUCTIONS
(1) Enter board member’s name, job title (if applicable), and date this disclosure is being made.
(2) Enter the board member’s company/agency name and address.
(3) Describe in detail the nature of the self-dealing transaction that is being disclosed to the
County. At a minimum, include a description of the following:
a. The name of the agency/company with which the corporation has the transaction;
and
b. The nature of the material financial interest in the Corporation’s transaction that
the board member has.
(4) Describe in detail why the self -dealing transaction is appropriate based on applicable
provisions of the Corporations Code.
(5) Form must be signed by the board member that is involved in the self -dealing transaction
described in Sections (3) and (4).
83354.00005\33927520.2
A-2
(1) Company Board Member Information:
Name: Date:
Job Title:
(2) Company/Agency Name and Address:
(3) Disclosure (Please describe the nature of the self-dealing transaction you are a party to)
(4) Explain why this self-dealing transaction is consistent with the requirements of Corporations Code 5233 (a)
(5) Authorized Signature
Signature: Date: