HomeMy WebLinkAboutAgreement A-21-065 with Hawkins Delafield Wood LLP TRANs.pdf FY 2021-22 TRANs
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AGREEMENT FOR SPECIALIZED LEGAL SERVICES
(BOND COUNSEL AND DISCLOSURE COUNSEL SERVICES FOR FISCAL YEAR
2021-22 TAX AND REVENUE ANTICIPATION NOTES)
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 Hawkins Delafield
& Wood LLP (“ATTORNEY”).
Recitals
A.COUNTY has the possible need to sell and issue Tax and Revenue
Anticipation Notes (“TRANs;” Govt. Code, §§ 53850 et seq.) for the fiscal year 2021-22
(“TRAN Financing Plan”).
B.If COUNTY sells and issues the TRANs, COUNTY desires to do so on a
tax-exempt basis.
C.COUNTY wishes to engage the specialized legal services of a law firm to
serve both as bond counsel and as disclosure counsel who is expert in legal matters
concerning the issuance of TRANs.
D.ATTORNEY represents that it is specially trained and experienced, and
that it possesses such expertise.
E.Such specialized legal services are either not available or not expected to
be available in COUNTY’s Office of the County Counsel.
The parties therefore agree as follows:
1.Engagement of Attorney: COUNTY hereby engages ATTORNEY as an
independent contractor through the services of the following key person(s): Arto C.
Becker, Russell A. Miller, Diane K. Quan, and Brian Organ, partners of ATTORNEY;
and such other partners of, and associate lawyers and staff members employed by,
ATTORNEY as ATTORNEY deems necessary, and who COUNTY’s County Counsel
(“County Counsel”), or his or her designee, approves pursuant to section 3 of this
9th
March
Agreement No. 21-065
FY 2021-22 TRANs
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Agreement, except that the foregoing key persons may, from time to time, consult with
such of ATTORNEY’s other lawyers on a “limited basis” (as defined below) as
ATTORNEY reasonably deems prudent and necessary under the circumstances.
ATTORNEY may not replace any of the aforementioned key persons named above
without the prior, express, written approval of County Counsel, or his or her designee.
In case of death, illness or other incapacity, or departure of any of the foregoing key
persons, ATTORNEY shall provide a replacement of at least equal professional ability
and experience as the key person replaced.
A.Scope of Bond Counsel Services: In its capacity as bond counsel,
ATTORNEY shall provide the following professional legal services in order to assist
COUNTY in selling and issuing TRANs:
(1)Legal review of the financing structure of the TRAN
Financing Plan.
(2)Consultation with COUNTY officials, County Counsel, or his
or her designee, lawyers in ATTORNEY’s firm who are acting in their capacity as
COUNTY’s disclosure counsel (“Disclosure Counsel”), and the municipal financial
advisor selected by COUNTY, concerning the timing, terms, and structure of the TRAN
Financing plan.
(3)Preparation and review of, and advise COUNTY in
connection with, any and all documents, agreements, resolutions, instruments and
certificates to be used for the sale and issuance of the TRANs for the TRAN Financing
Plan including, but not limited to, the paying agent or fiscal agent agreement or
certificate (if used), the TRANs, the resolution(s) of COUNTY’s Board of Supervisors
(collectively, “COUNTY Board Resolution”) authorizing the sale and issuance of the
TRANs under the TRAN Financing Plan, setting forth the terms and conditions of the
notes, their form, date, denominations, and maturities, and providing for the
establishment of a fund as security for the notes to ensure compliance with applicable
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laws and regulations, the tax certificate, insurance policies, and credit or liquidity
facilities.
(4) Review, and advise COUNTY in connection with, the
Preliminary Official Statement and the Official Statement for the TRAN Financing Plan,
prepared by Disclosure Counsel, describing the sale and issuance of the TRANs, and
other related documents, agreement, resolutions, instruments and certificates.
(5) Review, and advise COUNTY in connection with, any and
all documents, resolutions, instruments and certificates to be executed by COUNTY at
the closing of the TRAN Financing Plan, which are necessary for COUNTY to comply
with the continuing disclosure requirements under Securities and Exchange
Commission Rule 15c-212, including, but not limited to the amendments thereto
(collectively, “SEC Continuing Disclosure Certificate”).
(6) If a negotiated sale is used for the TRAN Financing Plan,
review, and advise COUNTY in connection with, the note purchase contract with the
underwriter (“Contract of Purchase”) prepared by Disclosure Counsel for the TRAN
Financing Plan, and other related documents, agreements, resolutions, instruments and
certificates.
(7) If a competitive sale is used for the TRAN Financing Plan,
review, and advise COUNTY in connection with:
(a) the Official Notice of Sale of the TRANs and Bid Form
prepared by bond counsel;
(b) the notice of intention to sell securities, prepared by
bond counsel, to be published in a publication selected by COUNTY’s Auditor-
Controller/Treasurer-Tax Collector, as provided by Government Code § 53692;
(c) the bids submitted for the purchase of the TRANs;
and
(d) other related documents, agreements, resolutions,
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instruments and certificates;
(8)Provide comment to underwriter’s counsel, if such counsel
is employed by an underwriter, and to Disclosure Counsel, concerning any and all
documents, agreements, instruments and resolutions referred to herein which are
prepared by Disclosure Counsel.
(9)As to those documents, agreements, resolutions,
instruments and certificates prepared by bond counsel, distribute necessary drafts and
revisions of same, receive comments from members of the financing team for the TRAN
Financing Plan and from other parties for such financing plan, and resolve same to the
satisfaction of County Counsel or his or her designee.
(10)Examination of proofs of the notes for the TRANs.
(11)Draft all closing documents, instruments and certificates in
connection with the TRAN Financing Plan.
(12)Render written unqualified opinions relating to the TRAN
Financing Plan, which shall be acceptable to County Counsel, or his or her designee,
in form and substance, to the following effect:
(a)that the TRANs have been duly authorized and
issued and constitute legally valid and binding obligations of COUNTY, enforceable in
accordance with their terms;
(b)that the TRANs and interest thereon are payable
solely from the taxes, income, revenues, cash receipts and other monies received by
COUNTY for its general fund for fiscal year ending June 30, 2022 (“Source of Payment
of the TRANs and Interest Thereon”);
(c)that the Source of Payment of the TRANs and
Interest Thereon is lawfully available for the payment thereof;
(d)that the interest on the TRANs is excluded from
“gross income” for federal income tax purposes under Section 103 of the Internal
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Revenue Code of 1986;
(e)that the interest on the TRANs is excluded from
personal income taxes of the State of California;
(f)that the Official Statement, to the extent that the
statements contained therein purport to summarize the provisions of the TRANs, the
COUNTY Board Resolution, and the governing law related thereto, is accurate and
complete in all material respects;
(g)that, based upon the information developed and
received in the provision of its services herein, no information has come to the attention
of bond counsel which would cause bond counsel to believe that the Official Statement,
as of the date of the Official Statement and as of the closing of the TRAN Financing
Plan, contains any untrue statements of material fact or omits to state any material fact
required to be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; and
(h)if a paying agent or fiscal agent agreement or
certificate is used, that the paying agent or fiscal agent agreement or certificate has
been duly authorized, executed and delivered by COUNTY, and constitutes a legally
valid and binding obligation of COUNTY, enforceable against COUNTY in accordance
with its terms.
All such opinions shall be addressed in a letter to COUNTY’s Board
of Supervisors (which letter shall expressly state that COUNTY’s Board of Supervisors
is the ATTORNEY’s client), and be provided at the time of the delivery of and receipt
for payment of the TRANs. Any and all such opinions shall also be addressed to the
underwriter (if requested by the underwriter), as a reliance opinion, as hereinafter
provided, and be provided at the time of the delivery of and receipt for payment of the
TRANs.
If ATTORNEY provides a written opinion to any third party (e.g., an
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underwriter) whereby the third party is allowed to rely upon any opinion given by
ATTORNEY to COUNTY under this Agreement (a “reliance opinion”), such reliance
opinion shall (i) be provided in a letter, separate from the opinions given by ATTORNEY
to COUNTY herein, and (ii) expressly state substantially to the effect that no attorney-
client relationship exists or is created by reason of giving such opinion.
(13)Comment and advise COUNTY on issues that arise in the
course of the implementation of the TRAN Financing Plan.
(14)Attend meetings with either COUNTY staff, COUNTY Debt
Advisory Committee, or the Board of Supervisors, or all of them, upon request by the
County Counsel, or his or her designee.
(15)Attend meetings with rating agencies and COUNTY’s
municipal financial advisor, upon request by County Counsel, or his or her designee.
(16)Handle closing and post-closing issues in connection with
the TRAN Financing Plan, and distribute any and all documents, agreements,
resolutions, instruments and certificates to appropriate persons or organizations.
(17)Perform such other similar services as County Counsel, or
his or her designee, may request.
B.Scope of Disclosure Counsel Services: In its capacity as
disclosure counsel, ATTORNEY shall provide the following professional legal services
in order to assist COUNTY in selling and issuing the TRANs:
(1)Consultation with COUNTY officials, County Counsel, or his
or her designee, lawyers in ATTORNEY’s firm who are acting in their capacity as
COUNTY’s bond counsel (“Bond Counsel”), and the municipal financial advisor selected
by COUNTY, concerning the timing, terms, and structure of the TRAN Financing Plan.
(2)Review of, and advise COUNTY in connection with, any and
all documents, agreements, resolutions, instruments and certificates to be used for the
sale and issuance of the TRANs for the TRAN Financing Plan including, but not limited
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to, the paying agent or fiscal agent agreement or certificate (if used), the TRANs, the
COUNTY Board Resolution, the tax certificate, insurance policies, and credit or liquidity
facilities.
(3) Preparation and review of, and advise COUNTY in
connection with, the Preliminary Official Statement and the Official Statement for the
TRAN Financing Plan describing the sale and issuance of the TRANs, and other related
documents, agreements, resolutions, instruments and certificates.
(4) Preparation and review of, and advise COUNTY in
connection with, any and all documents, agreements, instruments and resolutions to be
executed by COUNTY at the closing of the TRAN Financing Plan, including, but not
limited to, the SEC Continuing Disclosure Certificate.
(5) Perform due diligence necessary to prepare COUNTY’s
Preliminary Official Statement, Official Statement, SEC Continuing Disclosure
Certificate, and any other disclosure documents for the TRAN Financing Plan, in order
to ensure that such financing plan is in compliance with the applicable securities laws
and regulations, including, but not limited to Securities and Exchange Commission Rule
10b-5 and Rule 15c2-12, as amended.
(6) If a negotiated sale is used for the TRAN Financing Plan,
preparation and review of, and advise COUNTY in connection with, the Contract of
Purchase with the underwriter, for the TRAN Financing Plan, and other related
documents, agreements, resolutions and certificates.
(7) Provide comment to underwriter’s counsel, if such counsel
is employed by an underwriter, and to Bond Counsel, concerning any and all
documents, agreements, instruments and resolutions referred to herein which are
prepared by Bond Counsel.
(8) As to those documents, agreements, resolutions,
instruments and certificates prepared by disclosure counsel, distribute necessary drafts
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and revisions of same, receive comments from members of the financing team for the
TRAN Financing Plan and from other parties for such financing plan, and resolve same
to the satisfaction of County Counsel or his or her designee.
(9) Render unqualified written opinions relating to the TRAN
Financing Plan, which shall be acceptable to County Counsel, or his or her designee,
in form and substance, to the following effect:
(a) that the Official Statement for the TRAN Financing
Plan, to the extent that the statements contained therein purport to summarize the
underlying information referred to therein (including, but not limited to, the instruments,
resolutions, transactions, agreements, and records, and the laws and regulations
governing same, in connection with the TRANs and the COUNTY Board Resolution) is
accurate and complete in all material respects, assuming the accuracy and
completeness and fairness of the statements contained in such underlying information;
(b) if a negotiated sale is used, that the Contract of
Purchase has been duly authorized, executed, and delivered by COUNTY, and that it
constitutes a legally valid and binding obligation of COUNTY, enforceable against
COUNTY in accordance with its terms;
(c) that, based upon the information developed and
received in the provision of its services under this Agreement, no information has come
to the attention of disclosure counsel which would cause disclosure counsel to believe
that the Official Statement for the TRAN Financing plan, as of the date of such Official
Statement and as of the closing of such financing plan, contains any untrue statements
of material fact or omits to state any material fact required to be stated or necessary to
make such statements, in light of the circumstances under which they were made, not
misleading.
(d) that the TRANs are exempt from the registration
requirements of the Securities Act of 1933, as amended; and
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(e)that the COUNTY Board Resolution is exempt from
qualification under the Trust Indenture Act of 1939, as amended.
All such opinions shall be addressed in a letter to COUNTY’s Board
of Supervisors (which letter shall expressly state that COUNTY’s Board of Supervisors
is the ATTORNEY’s client), and be provided at the time of the delivery of and receipt
for payment of the TRANs. Any and all such opinions shall also be addressed to the
underwriter (if requested by the underwriter), as a reliance opinion, as hereinafter
provided, and be provided at the time of the delivery of and receipt for payment of the
TRANs.
If ATTORNEY provides a reliance opinion to any third party (e.g.,
an underwriter) whereby the third party is allowed to rely upon any opinion given by
ATTORNEY to COUNTY under this Agreement, such reliance opinion shall (i) be
provided in a letter, separate from the opinions given by ATTORNEY to COUNTY
herein, and (ii) expressly state in the text of such reliance opinion substantially to the
effect that no attorney-client relationship exists or is created by reason of giving such
opinion.
(10)Assist COUNTY, and its municipal financial advisor, in
corresponding with the printer of the Preliminary Official Statement and Official
Statement in order to facilitate a prompt and efficient printing of same.
(11)Render advice, as requested by COUNTY’s Auditor-
Controller/Treasurer-Tax Collector, or her designee, or by County Counsel, or his or her
designee, to COUNTY, and its municipal financial advisor, regarding the marketing and
sale of the TRANs.
(12)Comment and advise COUNTY on issues that arise in the
course of the implementation of the TRAN Financing Plan.
(13)Attend meetings with COUNTY staff, COUNTY’s Debt
Advisory Committee, or COUNTY’s Board of Supervisors, or all of them, upon request
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by the County Counsel, or his or her designee.
(14)Handle closing and post-closing issues in connection with
the TRAN Financing Plan, and distribute any and all documents, agreements,
resolutions, instruments and certificates to appropriate persons or organizations.
(15)Perform such other similar services as County Counsel, or
his or her designee, may request.
C.Authorization to Proceed With Work: ATTORNEY shall commence
performance of services upon receiving authorization to proceed with work from County
Counsel, or his or her designee.
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 and ATTORNEY’s partners, associate
lawyers, and staff members in ATTORNEY’s performance of services for COUNTY
under 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 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 that are necessary to carry out such tasks
in an efficient and effective manner.
ATTORNEY shall provide lawyers who possess the following qualities and skills:
A.the lawyer possesses a high level of professional ethics and
personal integrity, and exercises good judgment;
B.the lawyer has experience and expertise in the particular municipal
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finance matter for which he or she is providing services;
C.the lawyer has exceptional technical legal skills;
D.the lawyer vigorously represents COUNTY so that
COUNTY’s best interests are served;
E.the lawyer efficiently and timely completes assigned tasks;
F.the lawyer is reasonably available when County Counsel, or his or
her designee, needs to consult with the lawyer on short notice;
G.the lawyer anticipates potential problems and advises County
Counsel regarding same;
H.the lawyer explains complex municipal finance concepts to County
Counsel, or his or her designee, so that County Counsel, or his or her designee, has a
clear and complete understanding of the relevant issues and facts of a matter; and
I.the lawyer cooperates with County Counsel, or his or her designee,
and other members of the financing team, including amicably resolving disputes, if any,
among financing team members to the satisfaction of County Counsel, or his or her
designee.
3.Compensation of ATTORNEY: COUNTY shall compensate ATTORNEY
pursuant to the terms and conditions of this Agreement only for the performance of
those tasks, to the reasonable satisfaction of COUNTY, that relate to the subject matter
of this Agreement. 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 under this Agreement and resolving same to the reasonable satisfaction of
COUNTY.
COUNTY agrees to pay and ATTORNEY agrees to accept as full compensation
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for performance of tasks under this Agreement the following sum per hour per person:
Partners:
Arto C. Becker $575
Russell A. Miller $575
Diane K. Quan $540
Brian Organ $540
Associates: $350
The foregoing lawyers may, from time to time, consult with such of ATTORNEY’s
other lawyers 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 partners of, or
associate lawyers employed by its firm to perform significant services under this
Agreement, provided that such additional persons who are consulted or who provide
significant services are compensated by COUNTY for performance of tasks 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 to the contrary in this
section, the term “limited basis” means fifteen (15) hours or less worked by
ATTORNEY’s lawyers, collectively, other than the lawyers identified above, per month
or fraction thereof.
In addition, ATTORNEY shall be reimbursed for reasonable, and necessary out-
of-pocket expenses, as follows: telephone charges, telephonic facsimile transmission
charges, computer research charges, publication costs, filing fees, courier charges,
postage charges, printing and photographic reproduction expenses, in-State travel, and
all such directly-related expenses. ATTORNEY shall also be reimbursed for the actual
and reasonable cost of publications and reports obtained for the financing and the
preparation of bound or compact disc transcripts.
It is understood that ATTORNEY shall not be reimbursed for its secretarial or
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clerical services (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, ATTORNEY shall not be
reimbursed for such services performed or expenses incurred, regardless of whether
such tasks are performed or expenses are incurred by ATTORNEY’s partners,
associate lawyers, or anyone else. Upon approval by the County Counsel, ATTORNEY
may use paralegals to perform services under 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 where such work ordinarily is performed by licensed attorneys,
including legal research and legal document drafting.
It is understood that COUNTY may abandon the TRAN Financing Plan, at any
time, without any reason.
Notwithstanding anything else stated to the contrary in this Agreement, the
closing of the TRAN Financing Plan and COUNTY’s receipt of the funds from the
issuance of the TRANs under such financing plan shall be a condition precedent to
COUNTY’s obligation to compensate ATTORNEY for such services performed under
financing plan, and to COUNTY’s obligation to reimburse ATTORNEY for related
reasonable and necessary out-of-pocket expenses incurred in connection with such
financing plan. It is understood that such condition precedent to COUNTY’s obligations
stated in this section is solely for COUNTY’s benefit.
IN NO EVENT SHALL THE MAXIMUM AMOUNT PAID TO ATTORNEY AS
COMPENSATION FOR ATTORNEY'S SERVICES PERFORMED EXCEED $45,000
UNDER THIS AGREEMENT. IN NO EVENT SHALL THE MAXIMUM AMOUNT PAID
TO ATTORNEY AS REIMBURSEMENT OF RELATED, REASONABLE AND
NECESSARY OUT-OF-POCKET EXPENSES EXCEED $1,500 UNDER THIS
AGREEMENT, PLUS THE ACTUAL AND REASONABLE COST OF PUBLICATIONS
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AND REPORTS OBTAINED FOR THE FINANCING AND THE PREPARATION OF
BOUND OR COMPACT DISC TRANSCRIPTS.
4. Payment and Record-keeping: Subject to section 3 of this Agreement,
payment of compensation for the services provided in connection with the TRAN
Financing Plan 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 Counsel no later than the fifteenth (15th) day following the
closing of such financing plan. All payments of compensation and reimbursement for
related, reasonable and necessary out-of-pocket expenses incurred 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. COUNTY shall remit any payment to ATTORNEY’s address
specified in the invoice for payment.
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’s Auditor-Controller/Treasurer-Tax Collector, including, but not
limited to:
A. The specific nature of each task performed as services under this
Agreement;
B. The name of the person 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
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shall set forth a summary of hours worked by each partner and associate lawyer, and
paralegal (if compensable under section 3 of this Agreement), for the applicable billing
period. Furthermore, each such invoice shall set forth the product of such summary of
hours worked by each person multiplied by such person’s billing rate, as set forth herein
(e.g., Mr. Becker’s total hours worked = 10 hours; Mr. Becker’s hourly billing rate is
$575; 10 hours x Mr. Becker’s billing rate of $575 per hour = $5,750).
In preparing invoices, ATTORNEY shall segregate each task performed on a
daily basis. If requested by County Counsel, or his or her designee, ATTORNEY shall
not combine unrelated tasks as a single entry in lieu of setting forth the hours of work
performed by a partner, associate lawyer, or paralegal on each specific task.
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 provided under this Agreement.
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 Auditor General for a period of three (3) years after final payment under
this Agreement (Gov. Code, § 8546.7).
5.Term of Agreement: This Agreement shall be effective as of the date that
it is executed by both 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. However, if ATTORNEY elects to
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terminate this Agreement, COUNTY’s rights under section 3 of this Agreement shall not
be affected, and 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.
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 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, 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 save 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. Both parties acknowledge 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
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employees harmless and indemnify and defend COUNTY, its officers, agents, and
employees against payment of any and all costs and expenses (including attorney’s
fees and court cost), 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.
The provisions of this section 7 shall survive the termination 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 throughout the entire term of this
Agreement:
A.Professional liability insurance with limits of not less than Ten
Million Dollars ($10,000,000) per covered event.
B.Comprehensive general liability insurance with limits of coverage
of not less than Two Million Dollars ($2,000,000) per occurrence and an annual
aggregate of Four Million Dollars ($4,000,000). This policy must be issued on a per
occurrence basis. ATTORNEY shall obtain an endorsement to this policy naming the
County of Fresno, its officers, agents, employees, and volunteers, individually and
collectively, as additional insureds, but only insofar as the operations under this
Agreement are concerned. Such coverage for additional insureds will apply as primary
insurance and any other insurance, or self-insurance, maintained by the COUNTY is
excess only and not contributing with insurance provided under ATTORNEY’s policy.
C.Automobile liability insurance coverage with limits of not less than
One Million Dollars ($1,000,000.00) per occurrence for bodily injury and for property
damages. Coverage must include any auto used in connection with this Agreement.
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C.Workers compensation insurance as required by the California
Labor Code.
Additional Insurance Requirements
Within 30 days after ATTORNEY signs this Agreement, ATTORNEY shall
deliver, or cause its broker or producer to deliver, to the County Counsel’s Office, at
2281 Tulare Street, Suite 304, Fresno, California 93721, or
CountyCounselMailbox@fresnocountyca.gov, copies of insurance policies as produced
by the broker or producer, and certificates of insurance and endorsements for all of the
coverages required under this Agreement.
(i)All insurance certificates must state that: (1) the insurance coverage has
been obtained and is in full force; (2) COUNTY, its officers, agents,
employees, and volunteers are not responsible for any premiums on the
policy; and (3) ATTORNEY has waived its right to recover from COUNTY,
its officers, agents, employees, and volunteers any amounts paid under
any insurance policy required by this Agreement and that waiver does not
invalidate the insurance policy.
(ii)The comprehensive general liability insurance certificate must also state
that: (1) COUNTY, its officers, agents, employees, and volunteers,
individually and collectively, are additional insureds insofar as the
operations under this Agreement are concerned; (2) the coverage shall
apply as primary insurance and any other insurance, or self-insurance,
maintained by COUNTY shall be excess only and not contributing with
insurance provided under ATTORNEY’s policy.
(iii)The automobile liability insurance certificate must state that the policy
covers any auto used in connection with this Agreement.
All such insurance policies shall be issued by insurers who have at least have an
A.M. Best, Inc. rating of A:VII or greater (except for the Professional Liability Insurance
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policy, which shall be issued by an insurer who has at least a Standard & Poor’s and
Fitch’s rating of AA- because the specialized carrier is fulfilling a need in a specialty
market) and shall be acceptable to COUNTY’s Department of Human Resources, Risk
Management Division.
For each insurance policy required under this Agreement, ATTORNEY shall
provide to COUNTY, or ensure that the policy requires the insurer to provide to
COUNTY, written notice of any cancellation or change in the policy as required in this
paragraph. For cancellation of the policy for nonpayment of premium, ATTORNEY shall,
or shall cause the insurer to, provide written notice to COUNTY not less than 10 days
in advance of cancellation. For cancellation of the policy for any other reason, and for
any other change to the policy, ATTORNEY shall, or shall cause the insurer to, provide
written notice to COUNTY not less than 30 days in advance of cancellation or change.
COUNTY in its sole discretion may determine that the failure of ATTORNEY or its
insurer to timely provide a written notice required by this paragraph is a breach of this
Agreement.
If ATTORNEY has or obtains insurance with broader coverage, higher limits, or
both, than what is required under this Agreement, then COUNTY requires and is entitled
to the broader coverage, higher limits, or both. To that end, ATTORNEY shall deliver,
or cause its broker or producer to deliver, to COUNTY’s Risk Manager copies of
insurance policies that have such broader coverage, higher limits, or both, as produced
by the broker or producer, and certificates of insurance and endorsements for all of the
coverages that have such broader coverage, higher limits, or both, as required under
this Agreement.
ATTORNEY waives its right to recover from the County, its officers, agents,
employees, and volunteers any amounts paid under the policy of worker’s
compensation insurance required by this Agreement. ATTORNEY is solely responsible
to obtain any policy endorsement that may be necessary to accomplish that waiver, but
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ATTORNEY’s waiver of subrogation under this paragraph is effective whether or not
ATTORNEY obtains such an endorsement.
If ATTORNEY fails to keep in effect at all times any insurance coverage required
under this Agreement, COUNTY may, in addition to any other remedies it may have,
suspend or terminate this Agreement upon the occurrence of that failure, or purchase
such insurance coverage, and charge the cost of that coverage to ATTORNEY.
COUNTY may offset such charges against any amounts owed by COUNTY to
ATTORNEY under this Agreement.
In addition to its obligations set forth above, ATTORNEY agrees that it 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 Ten Million and No/100 Dollars ($10,000,000.00)
per covered event; provided, however, in the event that ATTORNEY does not maintain
such policy of insurance for such entire three (3) year period, 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 Ten Million and No/100 Dollars
($10,000,000.00).
If any of the insurance policies required to be maintained under this section 8 of
this Agreement have a self-insured retention, such self-insured retentions shall be
funded by ATTORNEY and approved by COUNTY’s Department of Human Resources,
Risk Management Division.
The provisions of this section 8 shall survive the termination of this Agreement.
9.Agreement is Binding Upon Successors: This Agreement shall be binding
upon COUNTY and ATTORNEY and their respective successors, executors,
administrators, legal representatives, and assigns with respect to all the covenants and
conditions set forth herein.
10.Assignment and Subcontracting: Notwithstanding anything stated to the
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contrary in section 9 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.
12. 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.”
ATTORNEY further promises, covenants, and warrants that it will keep reasonably
informed of its services to the COUNTY and other clients to ensure that the performance
of its services and representation to COUNTY under this Agreement will not result in a
“conflict of interest.” 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. For purposes of this paragraph 12, the phrase “conflict of interest” has the same
meaning as in the California Rules of Professional Conduct.
13. Further Assurances by ATTORNEY: ATTORNEY represents that it has
read and is familiar with Government Code §§ 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 §§ 1090 et seq. and §§ 87100
et seq.
14. 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.
15. Notices: The persons and their addresses having authority to give and
receive notices under this Agreement include the following:
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COUNTY ATTORNEY
County Counsel Arto C. Becker
COUNTY OF FRESNO Hawkins Delafield & Wood LLP
2220 Tulare Street, 333 South Grand Avenue
5th Floor Los Angeles, CA 90071
Fresno, CA 93721
Any and all notices between COUNTY and ATTORNEY provided for or
permitted under this Agreement must be in writing and delivered either by personal
service, by first-class United States mail, or by an overnight commercial courier
service,. A notice delivered by personal service is effective upon service to the
recipient. A notice delivered by first-class United States mail is effective three (3)
COUNTY business days after deposit in the United States mail, postage prepaid,
addressed to the recipient. A notice delivered by an overnight commercial courier
service is effective one (1) COUNTY business day after deposit with the overnight
commercial courier service, delivery fees prepaid, with delivery instructions given for
next day delivery, addressed to the recipient. For all claims arising out of or related to
this Agreement, nothing in this section establishes, waives, or modifies any claims
presentation requirements or procedures provided by law, including but not limited to
the Government Claims Act (Division 3.6 of Title 1 of the Government Code,
beginning with section 810).
16.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.
17.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
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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 (Exhibit A) and submitting it to COUNTY prior to
commencing with the self-dealing transaction or immediately thereafter.
18. 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 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.
19. Counterparts: This Agreement may be executed in one or more
counterparts, each of which when executed shall be deemed to be an original, and such
counterparts shall together constitute one and the same instrument.
20. Electronic Signatures: The parties agree that this Agreement may be
executed by electronic signature as provided in this section. An “electronic signature”
means any symbol or process intended by an individual signing this Agreement to
represent their signature, including but not limited to (1) a digital signature; (2) a faxed
version of an original handwritten signature; or (3) an electronically scanned and
transmitted (for example by PDF document) of a handwritten signature. Each electronic
signature affixed or attached to this Agreement (1) is deemed equivalent to a valid
original handwritten signature of the person signing this Agreement for all purposes,
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FY 2021 -22 TRANS
including but not limited to evidentiary proof in any administrative or judicial proceeding ,
and (2) has the same force and effect as the valid original handwritten signature of that
person . The provisions of this section satisfy the requirements of Civil Code section
1633.5, subdivision (b }, in the Uniform Electronic Transaction Act (Civil Code, Division
3, Part 2, Title 2.5, beginning with section 1633.1 ). Each party using a digital signature
represents that it has undertaken and satisfied the requirements of Government Code
section 16.5, subdivision (a), paragraphs (1) through (5), and agrees that each other
party may rely upon that representation. This Agreement is not conditioned upon the
parties conducting the transactions under it by electronic means and either party may
sign this Agreement with an original handwritten signature.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
::WK;;:LA~~~LLP ::UNT4R~
Arto C. Becker Steverandau, Chairman of the
Partner Board of Supervisors of the
County of Fresno
ATTEST:
BERNICE E. SEIDEL
Clerk of the Board of Supervisors
County of Fresno, State of California
23 ORG : 2540
FUND : 0001
24 ACCOUNT : 7295
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SUBCLASS : 10000
TRANs Agre ement FY 202 1-22
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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).
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(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: