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HomeMy WebLinkAboutAgreement A-19-284 with Best Best and Krieger LLP (2).pdf Agreement No. 19-284 1 AGREEMENT FOR SPECIALIZED LEGAL SERVICES 2 THIS AGREEMENT is made and entered into this 18th day of June, 2019, by and 3 between the COUNTY OF FRESNO, a political subdivision of the State of California, 4 hereinafter referred to as "COUNTY," and Best, Best and Krieger, LLP, hereinafter 5 referred to as "ATTORNEY." 6 WITNESSETH 7 WHEREAS, COUNTY is in the process of defending various claims against 8 COUNTY and Fresno County Board of Supervisors in Comunidades Unidas Por Un 9 Cambio v. County of Fresno, et al., (Fresno County Superior Court Case Number 10 18CECG04586); and 11 WHEREAS, COUNTY wishes to obtain specialized services, as authorized by 12 Government Code section 31000, to represent COUNTY in the suit; and 13 WHEREAS, ATTORNEY represents that it is specially trained and experienced, 14 and the it possesses such expertise; and 15 WEHREAS, such specialized legal services are either not available or expected 16 not to be available in Fresno County's Office of the County Counsel. 17 NOW THEREFORE, in consideration of the mutual covenants, terms, and 18 conditions herein described, the parties hereto agree as follows: 19 SECTION 1 20 ENGAGEMENT OF ATTORNEY 21 COUNTY hereby engages ATTORNEY as an independent contractor through the 22 services of the following key person(s): Richard Egger, and such other partners of and 23 associate lawyers as set forth in Attachment A, as well as such other partners of and 24 associate lawyers and staff members employed by ATTORNEY as ATTORNEY deems 25 necessary, and which COUNTY's County Counsel ("County Counsel"), or his designee, 26 approves pursuant to paragraph 3 of this Agreement, except that the foregoing key 27 persons may, from time to time, consult with such of ATTORNEY's other lawyers on a 28 1 "limited basis" (as hereinafter defined) as ATTORNEY reasonably deems prudent and 2 necessary under the circumstances. It is understood that ATTORNEY may not replace 3 any of the aforementioned key persons named above without the prior, express, written 4 approval of County Counsel, or his designee. In case of death, illness or other 5 incapacity of any of the foregoing key persons, ATTORNEY shall provide a replacement 6 of at least equal professional ability and experience as the key person replaced. 7 ATTORNEY shall perform specialized legal services in connection with the 8 defense of the COUNTY and Fresno County Board of Supervisors in the Comunidades 9 Unidas Por Un Cambio v. County of Fresno, et al. litigation. In addition, from time to 10 time, County counsel, or his designee, may request ATTORNEY to perform additional 11 specialized legal services in connection with this litigation on behalf of COUNTY. Upon 12 County Counsel's, or his designee's, written request to perform such services, 13 ATTORNEY shall perform such services pursuant to the terms and conditions of this 14 Agreement. Notwithstanding the foregoing provisions of this paragraph, in the event of 15 exigent circumstances, County Counsel may make such request orally, and County 16 Counsel and ATTORNEY shall within a reasonable time thereafter document such 17 request for services and acknowledgment thereof. 18 SECTION II 19 PERFORMANCE BY ATTORNEY 20 ATTORNEY agrees to timely perform all services provided for under this 21 Agreement. ATTORNEY agrees to avoid unnecessary duplicative efforts on the part of 22 ATTORNEY and ATTORNEY's partners, associate lawyers, and staff members in 23 ATTORNEY's performance of services for the COUNTY hereunder. 24 COUNTY shall not be obligated to compensate ATTORNEY for intra-office 25 conferences between or among ATTORNEY's partners, associate lawyers, and staff 26 members, unless such intra-office conferences promote efficiency in the performance of 27 ATTORNEY's work on a matter, or a reduction in the cost of compensation paid or 28 -2- 1 reimbursement made for related, reasonable and necessary, out-of-pocket expenses to 2 ATTORNEY, or both. In the performance of the tasks identified in paragraph 1 under 3 this Agreement, ATTORNEY shall provide only those services that are necessary to 4 carry out such tasks in an efficient and effective manner. 5 III 6 COMPENSATION OF ATTORNEY 7 COUNTY shall be obligated to compensate ATTORNEY pursuant to the terms 8 and conditions of this Agreement only for the performance of those tasks, to the 9 reasonable satisfaction of COUNTY, which are related to the subject matter of this 10 Agreement. It is understood that COUNTY shall not be obligated to compensate 11 ATTORNEY for any work, services, or functions performed by ATTORNEYS: (i) in 12 seeking to obtain COUNTY's business or negotiating with COUNTY to enter into this 13 Agreement or (ii) in providing COUNTY with documentation, explanations, or 14 justifications concerning the adequacy or accuracy of its invoices for the performance of 15 services under this Agreement and resolving same to the reasonable satisfaction of 16 COUNTY. 17 COUNTY agrees to pay and ATTORNEY agrees to accept as full compensation 18 for performance of tasks under this Agreement the sums per hour per person as set 19 forth in Attachment A, attached hereto and incorporated herein by this reference. 20 In addition, ATTORNEY shall be reimbursed for reasonable and necessary out- 21 of-pocket expenses, as follows: telephone charges, telephonic facsimile transmission 22 charges, computer research charges, filing fees, courier charges, postage charges, 23 printing and photographic reproduction expenses, in-State travel, and all such directly 24 related expenses. It is understood that ATTORNEY shall not be reimbursed for its 25 secretarial or clerical services (including overtime hours worked), or normal office 26 operating expenses, with the exception of those charges and expenses stated above. 27 In addition, ATTORNEY shall not be reimbursed for such secretarial or clerical services 28 -3- 1 performed or expenses incurred, regardless of whether such tasks are performed or 2 expenses are incurred by ATTORNEY's partners, associate lawyers, or anyone else. 3 Furthermore, COUNTY shall not compensate ATTORNEY for work performed by 4 paralegals where such work ordinarily is performed by licensed attorneys, including 5 legal research and legal document drafting. 6 In no event shall the maximum amount paid to ATTORNEY as compensation for 7 ATTORNEY's services performed under this Agreement exceed Two Hundred Seventy- 8 Five Thousand and No/100 Dollars ($275,000), unless the parties agree to expand the 9 scope of services through written amendment. ATTORNEY shall not be paid for any 10 services or costs above this limit without a written modification of this Agreement 11 executed by both parties. ATTORNEY shall notify COUNTY in writing when the amount 12 of accrued services under the agreement whether billed or unbilled reaches Two 13 Hundred Ten Thousand and No/100 Dollars ($210,000) in order to allow for adequate 14 time for any necessary amendment of this AGREEMENT. ATTORNEY acknowledges 15 that services performed in excess of any AGREEMENT lawfully approved by the Board 16 of Supervisors are performed at ATTORNEY's own risk. 17 IV. 18 PAYMENT AND RECORD-KEEPING 19 Subject to paragraph 3 of this Agreement, payment of compensation for the 20 services provided under this Agreement and reimbursement for related, reasonable and 21 necessary out-of-pocket expenses incurred shall be made by COUNTY after 22 submission of an itemized invoice by ATTORNEY to the County Counsel no later than 23 the thirtieth (30t") day following the end of the month in which such services were 24 rendered or expenses incurred. All payments of compensation and reimbursement for 25 expenses incurred in connection therewith shall be made by COUNTY no later than 26 forty-five (45) days following the date that the COUNTY receives a properly completed 27 invoice requesting the payment for such services rendered and expenses incurred. 28 -4- 1 All such invoices shall reflect accurately the tasks performed by ATTORNEY 2 under this Agreement. In addition, all such invoices shall have sufficient detail as may 3 be required by COUNTY, including, but not limited to: 4 A. The specific nature of each task performed as services under this 5 Agreement; 6 B. The name of the partner or associate lawyer performing each such task; 7 C. The number of hours worked by each such person for each such task; 8 D. The hourly rate per each such person performing each such task; and 9 E. The related, reasonable and necessary, out-of-pocket expenses incurred, as 10 provided for in paragraph 3 of this Agreement. 11 In addition, each invoice shall set forth a summary of hours worked by each 12 partner and associate lawyer for the applicable billing period. Each such invoice shall 13 set forth the product of such summary of hours worked by each person multiplied by 14 such person's billing rate. 15 ATTORNEY shall prepare its invoices in an organized manner that facilitates an 16 efficient review of the services performed and the expenses incurred in order to provide 17 COUNTY with a clear and complete understanding of how much time was devoted to 18 specific tasks and projects, and the cost associated therewith. 19 ATTORNEY shall keep complete records of the services provided, together with 20 all related reasonable and necessary, out-of-pocket expenses. COUNTY and the 21 Fresno County Auditor-Controller/Treasurer-Tax Collector shall be given reasonable 22 access to all of these records for the purposes of audit of this Agreement. In addition, 23 ATTORNEY shall be subject to the examination and audit of such records by the 24 Auditor General for a period of three (3) years after final payment under this Agreement 25 (Gov. Code section 8546.7). 26 27 28 -5- 1 V 2 TERM OF AGREEMENT 3 This Agreement is effective June 18, 2019 and shall continue in effect through 4 June 19, 2022, unless earlier terminated hereunder by either or both parties. Either 5 party may terminate this Agreement in writing at any time, either in whole or in part. 6 However, if ATTORNEY elects to terminate this Agreement, COUNTY's rights under 7 any pending matter which may arise from ATTORNEY's services hereunder shall not be 8 prejudiced due to such termination as required by the Rules of Professional Conduct of 9 the State Bar of California. Subject to paragraph 3 of this Agreement, ATTORNEY shall 10 be paid for all services performed to the date of termination of this Agreement, which 11 are done to the reasonable satisfaction of COUNTY. 12 VI 13 INDEPENDENT CONTRACTOR 14 In performance of the work, duties and obligations assumed by ATTORNEY 15 under this Agreement, it is mutually understood and agreed that ATTORNEY, including 16 any and all of ATTORNEY's officers, agents, and employees will at all times be acting 17 and performing as an independent contractor, and shall act in an independent capacity 18 and not as an officer, agent, servant, employee, joint venture, partner, or associate of 19 COUNTY. Furthermore, COUNTY shall have no right to control, supervise, or direct the 20 manner or method by which ATTORNEY shall perform its obligations under this 21 Agreement. However, COUNTY shall retain the right to administer this Agreement so 22 as to verify that ATTORNEY is performing its obligations in accordance with the terms 23 and conditions hereof. ATTORNEY and COUNTY shall comply with all applicable 24 provisions of law and the rules and regulations, if any, of governmental authorities 25 having jurisdiction over matters of the subject hereof. 26 Because of its status as an independent contractor, ATTORNEY shall have 27 absolutely no right to employment rights and benefits available to COUNTY employees. 28 -6- 1 ATTORNEY shall be solely liable and responsible for providing to, or on behalf of, its 2 employees all legally-required employee benefits. In addition, ATTORNEY shall be 3 solely responsible and save COUNTY harmless from all matters related to payment of 4 ATTORNEY's employees, including compliance with social security, withholding, and all 5 other regulations governing such matters. It is acknowledged that during the term of 6 this Agreement, ATTORNEY may be providing services to others unrelated to COUNTY 7 or to this Agreement. 8 VII 9 HOLD HARMLESS 10 ATTORNEY shall hold COUNTY, its officers, agents, and employees harmless 11 and indemnify and defend COUNTY, its officers, agents and employees against 12 payment of any and all costs and expenses (to include legal fees and court costs), 13 claims, suits, losses, damages and liability occurring or resulting to COUNTY in 14 connection with the negligent performance, or negligent failure to perform, by 15 ATTORNEY, its officers, agents, or employees under this Agreement, and from any and 16 all costs and expenses (including attorney's fees and costs), damages, liabilities, 17 claims, and losses occurring or resulting to any person, firm, or corporation who may be 18 injured or damaged by the performance, or failure to perform, of ATTORNEY, its 19 officers, agents, or employees under this Agreement. COUNTY's receipt of any 20 insurance certificates required herein does not in any way relieve the ATTORNEY from 21 its obligations under this paragraph 7 of this Agreement. 22 VIII 23 INSURANCE 24 Without limiting COUNTY's rights under paragraph 7 of this Agreement, or 25 against any third parties, ATTORNEY, at its sole expense, shall maintain in full force 26 and effect the following insurance policies throughout the entire term of this Agreement: 27 28 -7- 1 A. Professional Liability Insurance with limits of not less than One Million 2 Dollars ($1,000,000) per occurrence, Three Million Dollars ($3,000,000) annual 3 aggregate; 4 B. Comprehensive General Liability Insurance with limits of not less than 5 One Million Dollars ($1,000,000) per occurrence and an annual aggregate of Four 6 Million Dollars ($4,000,000). This policy shall be issued on a per occurrence basis. 7 COUNTY may require specific coverages including completed operations, products 8 liability, contractual liability, Explosion-Collapse-Underground, fire legal liability or any 9 other liability insurance deemed necessary because of the nature of this Agreement; 10 C. Comprehensive Automobile Liability Insurance for hired and non- 11 owned vehicles with limits of not less than One Million Dollars ($1,000,000) per accident 12 for bodily injury and for property damages. Coverage should include any auto used in 13 connection with this Agreement; and 14 D. A policy of workers compensation insurance as may be required by the 15 California Labor Code. 16 ATTORNEY shall obtain endorsements to the Commercial General Liability 17 insurance naming the County of Fresno, its officers, agents, and employees, individually 18 and collectively, as additional insured, but only insofar as the operations under this 19 Agreement are concerned. Such coverage for additional insured shall apply as primary 20 insurance and any other insurance, or self-insurance, maintained by COUNTY, its 21 officers, agents and employees shall be excess only and not contributing with insurance 22 provided under ATTORNEY's policies herein. This insurance shall not be cancelled or 23 changed without a minimum of thirty (30) days advance written notice given to 24 COUNTY. 25 Within Thirty (30) days from the date ATTORNEY signs and executes this 26 Agreement, ATTORNEY shall provide certificates of insurance and endorsement as 27 stated above for all of the foregoing policies, as required herein, to the County of 28 -8- 1 Fresno, County Counsel's Office, Attn: Joan Cuadros, 2220 Tulare Street, Suite 500, 2 Fresno, California, 93721, stating that such insurance coverage has been obtained and 3 are in full force; that the COUNTY, its officers, agents and employees will not be 4 responsible for any premiums on the policies; that for such worker's compensation 5 insurance the ATTORNEY has waived its right to recover from the COUNTY, its 6 officers, agents, and employees any amounts paid under the insurance policy and that 7 waiver does not invalidate the insurance policy; that such Commercial General Liability 8 insurance names the COUNTY, is officers, agents and employees, individually and 9 collectively, as additional insured, but only insofar as the operations under this 10 Agreement are concerned; that such coverage for additional insured shall apply as 11 primary insurance and any other insurance, or self-insurance, maintained by COUNTY, 12 its officers, agents and employees, shall be excess only and not contributing with 13 insurance provided under ATTORNEY's policies herein, and that this insurance shall 14 not be cancelled or changed without a minimum of thirty (30) days advance, written 15 notice given to COUNTY. 16 In the event ATTORNEY fails to keep in effect at all times insurance coverage as 17 herein provided, the COUNTY may, in addition to other remedies it may have, suspend 18 or terminate this Agreement upon the occurrence of such event. 19 All policies shall be issued by admitted insurers licensed to do business in the 20 State of California, and such insurance shall be purchased from companies possessing 21 a current A.M. Best, Inc. rating of A FSC VII or better. 22 In addition to its obligations set forth hereinabove, ATTORNEY agrees that it 23 shall maintain, at its sole expense, in full force and effect for a period of three (3) years 24 following the termination of this Agreement a policy of professional liability insurance 25 with limits of coverage of not less than One Million Dollars ($1,000,000) per occurrence; 26 provided, however, in the event that ATTORNEY does not maintain such policy of 27 insurance for such entire three (3) year period, ATTORNEY shall maintain, at its sole 28 -9- 1 expense, in full force and effect extended claims reporting coverage insurance in lieu 2 thereof in the amount of not less than One Million and No/100 Dollars ($1,000,000.00). 3 IX 4 AGREEMENT IS BINDING UPON SUCCESSORS 5 This Agreement shall be binding upon COUNTY and ATTORNEY and their 6 successors, executors, administrators, legal representatives and assigns with respect to 7 all the covenants and conditions set forth herein. 8 X 9 ASSIGNMENT AND SUBCONTRACTING 10 Notwithstanding anything stated to the contrary in paragraph 9 of this Agreement, 11 neither party hereto shall assign, transfer, or sub-contract this Agreement nor its rights 12 or duties hereunder without the written consent of the other. 13 XI 14 AMENDMENTS 15 This Agreement may only be amended in writing signed by the parties hereto. 16 XII 17 CONFLICT OF INTEREST 18 ATTORNEY promises, covenants, and warrants that, after having performed a 19 reasonable investigation, the performance of its services and representation to 20 COUNTY under this Agreement do not result in a conflict of interest as that term is used 21 in the Rules of Professional Conduct of the State Bar of California. In the event a 22 conflict of interest occurs, ATTORNEY will request COUNTY's Board of Supervisors to 23 waive such conflict of interest on a case-by-case basis. 24 XIII 25 FURTHER ASSURANCES BY ATTORNEY 26 ATTORNEY represents that it has read and is familiar with Government Code 27 section 1090 et seq. and 87100 et seq. ATTORNEY promises, covenants, and 28 -10- 1 warrants that, after having performed a reasonable investigation, the performance of its 2 services under this Agreement shall not result in or cause a violation by it of 3 Government Code section 1090 et seq. and 87100 et seq. 4 XIV 5 COMPLIANCE WITH LAWS 6 ATTORNEY shall comply with all federal, state, and local laws and regulations 7 applicable to the performance of its obligations under this Agreement. 8 XV 9 AUDITS AND INSPECTIONS 10 ATTORNEY shall at any time during business hours, and as often as the 11 COUNTY may deem necessary, make available to the COUNTY for examination all of 12 its records and data with respect to the matters covered by this Agreement. 13 ATTORNEY shall, upon request by the COUNTY, permit the COUNTY to audit and 14 inspect all of such records and date necessary to ensure ATTORNEY's compliance with 15 the terms of this Agreement. 16 If this agreement exceeds ten thousand dollars ($10,000), ATTORNEY shall be 17 subject to the examination and audit of the Auditor General for a period of three (3) 18 years after final payment under contract (Government Code Section 8546.7). 19 XV I 20 NOTICES 21 The persons and their addresses having authority to give and receive notices 22 under this Agreement include the following: 23 COUNTY ATTORNEY 24 Daniel C. Cederborg Richard Egger 25 County Counsel Best, Best, & Krieger, LLP Fresno County Counsel's Office 655 W. Broadway 26 2220 Tulare Street, Suite 500 15t" Floor Fresno, CA 93720 San Diego, CA 92101 27 28 -11- 1 All notices between the COUNTY and ATTORNEY provided for or permitted under this 2 Agreement must be in writing and delivered either by personal service, by first-class 3 United States mail, by an overnight commercial courier service, or by telephonic 4 facsimile transmission. A notice delivered by personal service is effective upon service 5 to the recipient. A notice delivered by first-class United States mail is effective three 6 COUNTY business days after deposit in the United States mail, postage prepaid, 7 addressed to the recipient. A notice delivered by an overnight commercial courier 8 service is effective one COUNTY business day after deposit with the overnight 9 commercial courier service, delivery fees prepaid, with delivery instructions given for 10 next day delivery, addressed to the recipient. A notice delivered by telephonic facsimile 11 is effective when transmission to the recipient is completed (but, if such transmission is 12 completed outside of COUNTY business hours, then such delivery shall be deemed to 13 be effective at the next beginning of an COUNTY business day), provided that the 14 sender maintains a machine record of the completed transmission. For all claims 15 arising out of or related to this Agreement, nothing in this section establishes, waives, or 16 modifies any claims presentation requirements or procedures provided by laws, 17 including but not limited to the Government Claims Act (Division 3.6 of Title 1 of the 18 Government Code, beginning with section 810). 19 XVII 20 VENUE AND GOVERNING LAW 21 The parties agree that, for purposes of venue, performance under this 22 Agreement is to be in Fresno County, California. The rights and obligations of the 23 parties and all interpretations and performance of this Agreement shall be governed in 24 all respects by the laws of the State of California. 25 26 27 28 -12- 1 XVIII 2 DISCLOSURE OF SELF-DEALING TRANSACTIONS 3 This provision is only applicable if ATTORNEY is operating as a corporation (a 4 for-profit or non-profit corporation) or if during the term of this Agreement, ATTORNEY 5 changes its status to operate as a corporation. 6 Members of ATTORNEY's Board of Directors shall disclose any self-dealing 7 transactions that they are a party to while ATTORNEY is providing goods or performing 8 services under this Agreement. A self-dealing transaction shall mean a transaction to 9 which ATTORNEY is a party and in which one or more of its directors has a material 10 financial interest. Members of the Board of Directors shall disclose any self-dealing 11 transactions that they are a party to by completing and signing a Self-Dealing 12 Transaction Disclosure Form, attached hereto as Attachment B and by this reference 13 incorporated herein, and submitting it to COUNTY prior to commencing with the self- 14 dealing transaction or immediately thereafter. 15 XIXI 16 ENTIRE AGREEMENT 17 This Agreement constitutes the entire agreement between COUNTY and 18 ATTORNEY with respect to the specialized legal services to be provided herein and 19 supersedes any previous agreement concerning the subject matter hereof, negotiations, 20 proposals, commitments, writings, or understandings of any nature whatsoever unless 21 expressly included in this Agreement. If any part of this Agreement is found violative of 22 any law or is found to be otherwise legally defective, ATTORNEY and COUNTY shall 23 use their best efforts to replace that part of this Agreement with legal terms and 24 conditions most readily approximating the original intent of the parties. 25 26 27 28 -13- 1 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of 2 the day and year first hereinabove written. 3 Best, Best and Krieger, LLP COUNTY OF FRESNO 4 5 By , 6 Richard Egger, Nathan Magsig, Chairman Partner of the Board of Supervisors of the 7 County of Fresno 8 9 ATTEST: For Accounting Use Only: Bernice E. Seidel 10 Clerk of the Board of Supervisors Org: 2540 County of Fresno, State of California 11 Account No.: 7295 Fund: 0001 Lpp 12 Subclass: 10000 By: _ C,�,,_S,p,,,r, s )� Deputy 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -14- Attachment A Page 1 of 2 Attachment A SCHEDULE OF RATES BEST, BEST, AND KRIEGER LLP COST PROPOSAL Richard Egger $375 per hour Todd Leishman (Of Counsel) $290 per hour Megan Garibaldi (Partner) $280 per hour Associates $275 per hour PARALEGALS Paralegals Providing Litigation Support $188 per hour Attachment A Page 2of2 MATERIALS AND MISCELLANEOUS Photocopies $.25 per page Computer-assisted legal research Actual Costs Faxes $.50 per page plus L/D charges Mileage IRS approved rate for out of town travel Messenger Services Actual Cost Other Cost Direct pass-through without surcharge ATTACHMENT B 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). (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: