HomeMy WebLinkAboutP-22-015 Agreement w CIS.pdfCONTRACT INFORMATION SHEET
DATE: 1/5/2022
Contract No.: P-22-015 Vendor Number: 0000272330
Contract Title: Specialized Legal Service Name/Address: Best Best & Krieger LLP
WIIN & the Financing 18101 Von Karman Ave Ste 10000
Of Water Contracts Irvine CA 92612
Contract Period: 1/4/22 – 12/31/2023 Contact: Jeffrey Dunn
Using Agencies: County Counsel
Email: Jeffrey.dunn@bbklaw.com
Terms: Net 45
Total Contract Amt.: $100,000.00
Buyer Name: Heather Stevens
Requisition No: 0710220023 Org: 9174
Supersedes:
X NEW RENEWAL AMENDMENT
X TICK DATE 10/31/23 REFERENCE (RFQ# / RFP#)
DESCRIPTION: Specialized legal services to advise on subjects related to Water Infrastructure Improvements for the Nation Act (WIIN
Act) and the financing of water contracts.
SPECIAL INSTRUCTIONS: Approx 2 years
DISTRIBUTION: Completed By: Date: Completed By: Date
DEPARTMENT: County Counsel
REQUISITIONER: Janelle Kelley
Rev 1/3/2017
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AGREEMENT FOR SPECIALIZED LEGAL SERVICES
THIS AGREEMENT (“Agreement”) is made and entered into this ________ day of
____________, 2022, 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,
whose address is 18101 Von Karman Avenue, Suite 1000, Irvine, CA 92612, hereinafter referred
to as “ATTORNEY”.
RECITALS:
COUNTY on behalf of County Service Area 34, wishes to engage the specialized legal
services of outside counsel who is expert in legal matters concerning such issues; and
ATTORNEY has held itself out as having the necessary legal expertise and experience
to provide COUNTY with specialized legal services to complete represents that it is specially
trained and experienced, and that it possesses such expertise; and
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 and Legal Services: ATTORNEY is retained to provide
specialized legal services to advise and represent the COUNTY with respect to litigation matters
including but not limited to a validation action. ATTORNEY’s specialized legal services shall
consist of the services as stated below.
A. ATTORNEY shall advise and represent the COUNTY with respect to litigation
matters including but not limited to a validation action involving financing of a water contract
between the COUNTY, its County Service Area 34 and the United States Bureau of
Reclamation.
B. Other advice and litigation services as agreed upon by the parties.
2. Performance by Attorney: ATTORNEY agrees to timely perform the legal
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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 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 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
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 sums per hour per person:
Jeffrey Dunn (Partner) $350 an hour
Glen Price (Partner) $325 an hour
Christopher Pisano (Partner) $325 an hour
Daniel Richards (Associate) $275 an hour
Tyler Anthony (Associate) $275 an hour
Paralegals Marnie Prock and Tammy Ingram $180 an hour
Litigation IT support staff $180 an hour
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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 services (including overtime hours worked), or normal
office operating expenses, with the exception of those charges and expenses stated above. 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 One Hundred Thousand and
No/100 Dollars ($100,000). ATTORNEY shall not be paid for any services or costs above this
limit without written modification of this Agreement executed by both parties.
Whenever ATTORNEY accrues fees, costs eligible for reimbursement or expenses in an
amount in excess of 80% of the total maximum amount provided for compensation in this
Agreement or any successor amended agreement, whether such fees, costs or expenses have been
billed to COUNTY or not, ATTORNEY shall notify COUNTY in writing of this fact in order
to allow the parties sufficient time to arrange for the amendment of this Agreement or any
successor amended agreement to raise the maximum limit on compensation as the parties may
agree. ATTORNEY acknowledges that as a California public entity, COUNTY may only pay
amounts that have been legally authorized by a valid contract or payment process. Law Firm
further acknowledges that any amendment of this engagement letter that would provide for
compensation in excess of two hundred thousand dollars ($200,000.00) legally requires approval
of the COUNTY Board of Supervisors. ATTORNEY further acknowledges that any fees, costs
or expenses accrued in excess of the maximum amount provided for in this Agreement or any
successor or amended agreement are incurred and accrued at the sole responsibility and risk of
the ATTORNEY and are not legally payable by COUNTY.
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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 County Counsel 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.
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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
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 is effective on the date executed by the
parties hereto, and shall continue in full force and effect through December 31, 2023. 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.
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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 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 under section 8 of this
Agreement, or against 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. A policy of professional liability insurance with limits of coverage of not
less than One Million and No/100 Dollars ($1,000,000.00) per covered event, Two Million and
No/100 Dollars ($2,000,000.00) in the annual aggregate;
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B. A policy of comprehensive general liability insurance with limits of
coverage of not less than One Million and No/100 Dollars ($1,000,000.00) per occurrence.
(Such insurance shall include automobile insurance coverage, provided however, if
ATTORNEY maintains comprehensive general liability insurance that does not cover a 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 Hundred Thousand and No/100
Dollars ($100,000.00) per person and Three Hundred Thousand and No/100 Dollars
($300,000.00) per occurrence and shall be written to cover all vehicles or owned and non-owned
vehicles); and
C. A policy of workers compensation insurance as is required by the
California Labor Code, providing full statutory coverage.
All such insurance policies shall be issued by insurers who at least have a current A.M.
Best, Inc. rating of A:VII, and shall be acceptable to COUNTY. In addition, the comprehensive
general liability insurance policy (and, the automobile liability insurance policy, if such policy
is at any time maintained separately from the comprehensive general liability insurance policy)
shall name COUNTY, its officers, agents, and employees, individually and collectively, as
additional insureds, but only insofar as the operations under this Agreement are concerned. Such
coverage for additional insureds 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 such insurance provided under ATTORNEY’s policies herein.
This insurance shall not be canceled, reduced, or changed without a minimum of thirty (30)
calendar days advance, written notice given to County Counsel (at the address for notices to
County Counsel provided herein).
ATTORNEY shall provide to County Counsel a certificate of insurance for all the
foregoing policies and an endorsement to ATTORNEY’s comprehensive general liability
insurance policy (and, to ATTORNEY’s automobile liability insurance policy, if such policy is
at any time maintained separately from the comprehensive general liability insurance policy)
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naming COUNTY as an additional insured, as stated above, which are acceptable to COUNTY,
evidencing proof of such insurance coverages required herein prior to performing any services
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 One Million and No/100 Dollars ($1,000,000.00) per claim; 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 One Million and
No/100 Dollars ($1,000,000.00).
If either the professional liability or comprehensive general liability insurance policies
(or, the automobile liability insurance policy, if such policy is at any time maintained separately
from the comprehensive general liability insurance policy) required to be maintained pursuant
to this section 8 of this Agreement, or both (or all of them, as the case may be), have a self-
insured retention, such self-insured retentions shall be funded by ATTORNEY and approved by
COUNTY.
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: 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. ATTORNEY acknowledges that any amended agreement that increases the total
amount paid for specialized legal services, costs and expenses on the subject matter of this
Agreement above Two Hundred Thousand Dollars ($200,000.00) must be formally approved by
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the COUNTY Board of Supervisors.
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” 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.
13. 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.
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:
COUNTY ATTORNEY
Daniel C. Cederborg Jeffrey V. Dunn
County Counsel Best Best & Krieger LLP
COUNTY OF FRESNO 18101 Von Karman Avenue
2220 Tulare Street, Suite 1000
Suite 500 Irvine, CA 92612
Fresno, CA 93721
Any and all notices between COUNTY and ATTORNEY provided for or permitted
under this Agreement or by law shall 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 modifications or changes of this Agreement.
16. Venue and Governing Law: The parties agree that, for purposes of venue,
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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 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.
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 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.
19. 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;
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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, 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.
[SIGNATURE PAGE FOLLOWS]
Purchasing Agreement #P-22-015
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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_______________________________________
JEFFREY V. DUNN
REVIEWED AND RECOMMENDED FOR
APPROVAL:
By______________________________________
JANELLE KELLY,
ASSISTANT COUNTY COUNSEL
APPROVED AS TO LEGAL FORM:
DANIEL C. CEDERBORG,
COUNTY COUNSEL
By______________________________________
Deputy
For Accounting Use Only:
ORG: 9174
FUND: 0830
ACCOUNT: 7295
SUBCLASS: 16000
COUNTY OF FRESNO
By____________________________
Gary Cornuelle,
Purchasing Manager
Purchasing Agreement #P-22-015
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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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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:
21466.00002\34614862.1
Purchasing Agreement #P-22-015