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HomeMy WebLinkAbout327731 2 3 Agreement No. 18-032 AGREEMENT FOR SPECIALIZED LEGAL SERVICES THIS AGREEMENT (the "Agreement") is made and entered into this 23rd day of · 4 January, 2018, by and between the COUNTY OF FRESNO, a political subdivision of 5 the State of California (the "COUNTY"), and the law firm of McCORMICK BARSTOW 6 LLP, a limited liability partnership, hereinafter referred to as "ATTORNEY." 7 8 WITNESSETH: WHEREAS, COUNTY wishes to obtain specialized services, as authorized by 9 Government Code, section 31000, to provide specialized legal advice and 10 representation regarding complaints made to the California State Bar against the 11 Fresno County District Attorney ("District Attorney") and individual employees of the 12 District Attorney's Office; and 13 WHEREAS, COUNTY wishes to engage the specialized legal services of counsel 14 who is expert in legal matters concerning such issues; and 15 WHEREAS, ATTORNEY represents that it is specially trained and experienced, 16 and that it possesses such expertise; and 17 WHEREAS, such specialized legal services are either not available or expected 18 not to be available in Fresno .County's Office of the County Counsel. 19 NOW, THEREFORE, in consideration of the mutual covenants, terms, and 20 conditions herein described, the parties hereto agree as follows 21 1. Employment of Attorney: COUNTY hereby hires ATTORNEY as an 22 independent contractor through the services of the following key person(s): Marshall C. 23 Whitney, Mandy Jeffcoach, and such other partners of and associate lawyers and staff 24 members employed by ATTORNEY as ATT9RNEY deems necessary and which the . 25 COUNTY approves pursuant to paragraph 3 of this Agreement, except that the 26 foregoing key persons may, from time to time, consult with such of ATTORNEY's other 27 lawyers on a "limited basis" (as hereinafter defined) as ATTORNEY reasonably deems 28 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 28 prudent and necessary under the circumstances.Itis understood that ATTORNEY may not replace any of the aforementioned key persons named above without the prior, express,written approval of County Counsel,or his designee.In case of death,illness or other incapacity 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. ATTORNEY shall provide specialized legal advice and representation to employees of the Fresno County District Attorney's Office regarding complaints made to the California State Bar against the District Attorney and employees of the District Attorney's Office. Upon COUNTY'S written request to perform such services,and ATTORNEY'S written acknowledgment that ATTORNEY will provide such services, ATTORNEY shall perform such services pursuant to the terms and conditions of this Agreement.Notwithstanding the foregoing provisions of this paragraph,in the event of exigent circumstances,COUNTY COUNSEL may make such request orally,and COUNTY and ATTORNEY shall within a reasonable time thereafter document such request for services and acknowledgment thereof. 2.Performance bv Attorney:ATTORNEY agrees to timely perform all services provided for under this Agreement.ATTORNEY agrees to avoid unnecessary duplicative efforts on the part of ATTORNEY and ATTORNEY'S partners,associate lawyers,and staff members inATTORNEY'S performance of services for the COUNTY hereunder. 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. -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 28 In the performance of the tasks identified in paragraph 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.It is understood that COUNTY shall not be obligated to compensate ATTORNEY for any work,services,or functions performed by ATTORNEYS:(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 for performance of tasks under this Agreement the following sum per hour per person: Marshall C.Whitney:$300 per hour Mandy Jeffcoach:$250 per hour 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,filing fees,courier charges,postage charges, printing and photographic reproduction expenses,in-State travel,and all such directly- related expenses.It is understood that ATTORNEY shall not be reimbursed for its secretarial or clerical services (including overtime hours worked),or normal office operating expenses,with the exception of those charges and expenses stated above. In addition,ATTORNEY shall not be reimbursed for such secretarial or clerical 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. -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 28 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. In no event shall the maximum amount paid to ATTORNEY as compensation for ATTORNEY'S services performed exceed One Hundred Thousand and No/100 Dollars ($100,000)under this Agreement.ATTORNEYshall not be paid for any services or costs above this limit without a written modification of this Agreement executed by both parties.ATTORNEY shall notify COUNTY in writing when the value of its accrued services,whether billed or not yet billed to the COUNTY,has reached the amount of Thirty-five Thousand and No/100 Dollars ($35,000). 4.Pavment and Record-keeping:Subject to paragraph 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 COUNTY no later than the thirtieth (30^*^)day following the end ofthe month inwhich 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 the 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 partner or associate lawyer performing each such task; -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 28 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 Incun-ed,as provided for in paragraph 3 of this Agreement. In addition,each invoice shall set forth a summary of hours workedby each partner and associate lawyer for the applicable billing period.Each such invoice shall set forth the productofsuch summary ofhoursworkedby each person multiplied by such person's billing rate. ATTORNEY shall prepare itsInvoicesinan organized manner that facilitatesan efficient review ofthe services perfomied and the expenses incurred inorderto provide COUNTY with a clear and complete understanding ofhowmuchtimewas devoted to specific tasks and projects,and the cost associated therewith. ATTORNEY shall keep complete records ofthe services provided,together with allrelated reasonable and necessary,out-of-pocket expenses.COUNTY,and the Fresno County Auditor-Controller/Treasurer-Tax Collector shallbe given reasonable access to allof these records for the purposes of audit of this Agreement. Inaddition, ATTORNEY shall be subject to the examination and audit ofsuch records bythe Auditor General for a period of three (3)years after final payment under this Agreement (Gov.Code,section 8546.7). 5.Temi of Agreement:This Agreement shall be effective December 11, 2017 and will terminate on December 31,2019.Eitherpartymayterminate this Agreement at any time,either inwhole or in part, by givingwritten notice to the other party. However, if ATTORNEY elects to temiinate 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 ofthe State Barof California.Subject to paragraph 3 ofthis Agreement, -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 28 ATTORNEY shall be paid for all services performed to the date ofterminationofthis Agreement,which are done to the reasonable satisfaction of COUNTY. 6.Independent Contractor:In performance of the work,duties and obligations assumed by ATTORNEY underthisAgreement, itis mutually understood and agreed that ATTORNEY,including any and allof 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, sen/ant, employee,joint venture,partner,or associate of COUNTY.Furthennore,COUNTY shall have no rightto control or supervise ordirectthe manner or method by which ATTORNEY shall perform its obligations underthisAgreement.However,COUNTY shall retain the right to administer this Agreement so as to verify that ATTORNEY is perfonning its obligations in accordance with the terms and conditions hereof. ATTORNEY and COUNTY shall comply with allapplicable provisionsoflawand the rulesand regulations,ifany, of governmental authorities having jurisdiction over matters of the subject hereof. Because of its status as an independent contractor,ATTORNEYshall have absolutely no right to employmentrightsand benefitsavailableto COUNTY employees. ATTORNEY shall be solely liableand responsible for providing to, or on behalf of,its employees alllegally-required employee benefits. Inaddition,ATTORNEY shall be solely responsible and save COUNTY hamriless fromall matters related to payment of ATTORNEY'S employees,including compliance with social security,withholding,and all other regulations governingsuch matters. ItIsacknowledged that duringthe 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 hamiless and Indemnify and defend COUNT,Itsofficers,agents and employees against payment of any and all costs and expenses,claims, suits,losses. -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 28 damages and liability arising formor arising out ofany actual negligentor wrongful acts or omissions of ATTORNEY,includingits partners,officers,agents and employees,in perfonning or failing to perform the services provided herein.COUNTY'S receipt ofany insurance certificates required herein does not inany way relieve the ATTORNEY from itsobligations under this paragraph 7 ofthis Agreement. 8. Insurance: Without limiting COUNTY'S rights under paragraph 7 ofthis Agreement, or against any third parties,ATTORNEY,at itssole expense,shall maintain in full force and effectthe following insurance policiesthroughoutthe entire term ofthis Agreement: A. A policyof professional liability insurance withlimitsof coverage of not less than One Million Dollars ($1,000,000.00)per covered event, Two Million Dollars ($2,000,000.00)inthe annual aggregate; B. A policyof comprehensive general liability insurance with limits of coverage of not less than One Million Dollars ($1,000,000.00)per occunrence. [Such insurance shall include automobile insurancecoverage,provided however,if ATTORNEY maintains comprehensivegeneral liability Insurancethat does notcovera loss in connection with an automobile,ATTORNEY shall also obtain and maintain automobile liability insurance coverage with limits of coverage of not less than One ••C'.. Hundred Thousand Dollars ($100,000.00)per person and Three Hundred Thousand Dollars ($300,000.00)per occurrence];and C. A policyof workers compensation insurance as is required by the CaliforniaLabor Code,providing full statutory coverage. All such insurance policies shall be issued by insurers who at least have an A.M. Best rating of B+ FSC VIII,and shall be acceptable to COUNTY.Inaddition,the comprehensive general liability insurance policy (and,the automobile liability insurance policy,ifsuch policy is at any time maintained separately fromthe comprehensive general liability insurance policy)shall name the COUNTY,its officers,agents,and -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 28 employees,individually and collectively,as additional insureds,but onlyinsofar as the operations underthisAgreement are concemed.Such coverage for additional insureds shall apply as primary insurance and any other insurance,or self-insurance, maintained bythe COUNTY,its officers,agents,and employees,shall be excess onlyand not contributingwith such insurance provided under ATTORNEY'S policies herein. This insurance shall not be canceled,reduced, or changed withouta minimum ofthirty(30) calendar days advance written noticegivento CountyCounsel at the address specified in Section 15.Notices. ATTORNEYshall provide to County Counsel a certificate of insurance for all the foregoing policiesand an endorsement to ATTORNEY'S comprehensive general liability insurance policy (and,tothe automobile liability insurance policy,ifsuch policy is at any time maintained separately from the comprehensivegeneral liability insurance policy) naming COUNTY as an additional insured,as stated above,which are acceptable to COUNTY,evidencing proofofsuch Insurance coverages required herein priorto performing any services under this Agreement. Inaddition to its obligations set forth hereinabove,ATTORNEY agrees that it shall maintain,at itssole expense,in full force and effectfora periodofthree (3)years following the temriination ofthis Agreement a policy ofprofessional liability insurance with limits of coverage of not less than One Million Dollars($1,000,000.00) per claim; provided,however,in the event that ATTORNEY does not maintain such policyof 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 inthe amount of not less than One Million Dollars($1,000,000.00). If either the professional liability or comprehensive general liability insurance policies (or,the automobile liability insurance policy,if such policyis at any time maintained separately from the comprehensive general liability insurance policy) required to be maintained pursuant to this paragraph 8, or both (or all ofthem,as the -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 28 case may be),have a seif-insured retention,such self-insured retentions shall be funded by ATTORNEY and approved by AUTHORITY. 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. 10.Assignment and Subcontracting:Notwithstandinganything stated to the contrary in paragraph 9 ofthis Agreement, neither party hereto shall assign, transfer, or sub-contract this Agreement nor its rights or duties hereunder withoutthe written consent of the other. 11• Amendments: ThisAgreement may onlybe amended in writing signed by the parties hereto. 12.Conflictof Interest:ATTORNEY promises,covenants,and warrants that, after having performeda reasonable investigation,the perfomriance of itsservices and representation to COUNTY under this Agreement do not result in a conflictof interest as that temri is used in the Rules of Professional Conduct of the State Bar of Callfomia.In the event a conflict ofinterest occurs,ATTORNEY will request COUNTY'S Boardof Supervisors to waivesuch conflict ofintereston a case-by-case basis. 13.Further Assurances bv ATTORNEY:ATTORNEY represents that it has read and is familiar with Government Code, section 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 itof Govemment Code,section 1090 et seq and 87100 et seq. 14. Compliance With Laws:ATTORNEY shall comply with allfederal, state, and local laws and regulations applicable to the performance ofits obligationsunder this Agreement. -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 28 15.Notices: The persons and their addresses having authority to give and receive notices under this Agreement include the following: COUNTY ATTORNEY Daniel C.Cederborg County Counsel 2220 Tulare S.,Suite 500 Fresno,CA 93721 Marshall C.Whitney McComnick Barstow LLP 7647 North Fresno Street Fresno,CA 93729-8912 Any and all notices between the COUNTYand ATTORNEYprovided for or pennitted under this Agreement or by lawshall be in writing and shall be deemed duly served when personally 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 modificationsor changes of this Agreement. 16.Venue and Govemina Law:The parties agree that, for purposes of venue, perfonnance under this Agreement is to be in Fresno County,California.The rights and obligations of the parties and all interpretations and performance ofthis Agreement shall be governed in ail respects by the laws of the State of California. 17.Disclosure of Self-Dealing Transactions:This provision Isonly applicable if ATTORNEY Is operating as a corporation (a for-profit or non-profitcorporation) 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 ATTORNEYis providing goods or performing services under this Agreement.A self-dealing transaction shall mean a transaction to which ATTORNEY is a party and inwhich 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 Fonn,attached hereto as ExhibitA and by this reference -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 28 Incorporated herein, and submitting Itto COUNTY priorto commencing withthe 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 concerningthe subject matter hereof, negotiations,proposals,commitments,writings,or understandings of any nature whatsoever unless expressly included In thisAgreement. Ifany part ofthis Agreement isfound violative ofany lawor isfoundto be otherwise legally defective,ATTORNEY and COUNTY shall use their best effortsto replace that part ofthisAgreement with legal tenns and conditions most readily approximating the original intentofthe parties. -11- 1 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of COUNTY OF FRESNO .hairmari of the Boarci.' of menm;,OH,l.;ai.,the County of Fresno ATTEST: Bernice E. Seidel Clerk to the Board of Supervisors County of Fresno , State of Californ ia By : Suso.tn t¼sb0:p Deputy Exhibit A SELF-DEAUNG TRANSACTION DISCLOSURE FORM In order to conduct business with the County of Fresno (hereinafter referred to as "County"), members of a contractor's board of directors (hereinafter referred to as "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 nneans a transaction to which the corporation is a party and in which one or more of its directors has a materialfinancial 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). Exhibit A (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: