HomeMy WebLinkAboutAgreement A-16-150 with Hawkins Delafield Wood LLP - Tran.pdf Agreement No. 16-150
FY 2016r2017 TRANS
Hawkins Aereement
1 AGREEMENT FOR SPECIALIZED LEGAL SERVICES
2 (BOND COUNSEL AND DISCLOSURE COUNSEL SERVICES FOR
3 FISCAL YEAR 2016-17 TAX AND REVENUE ANTICIPATION
4 NOTES AND TEETER FINANCING PLANS)
5
6 THIS AGREEMENT ("Agreement") is made and entered into this 5th day of
7 April , 2016, by and between the COUNTY OF FRESNO, a political subdivision of
8 the State of California, hereinafter referred to as "COUNTY," and the law firm of HAWKINS
9 DELAFIELD & WOOD, LLP, hereinafter referred to as "ATTORNEY."
10 WITNESSETH:
11 WHEREAS, COUNTY has the possible need to sell and issue Tax and Revenue
12 Anticipation Notes ("TRANs;" Govt. Code, §§ 53850 et seq.) for the fiscal year 2016-17
13 ("TRAN Financing Plan"); and
14 WHEREAS, COUNTY also has the possible need to publicly finance its Teeter Plan
15 (Rev. & Tax. Code, §§ 4701 et seq.) in the COUNTY for the fiscal year 2016-17 ("Teeter
16 Financing Plan"); and
17 WHEREAS, if COUNTY sells and issues the TRANS and finances its Teeter Plan,
18 COUNTY desires to have its Teeter Plan financed on a tax-exempt basis and combined with
19 the TRAN Financing Plan under a single issue of the TRANs; and
20 WHEREAS, all further references herein to the TRAN Financing Plan, and the sale and
21 issuance of the TRANS, shall apply to and include the financing of COUNTY's Teeter Plan;
22 and
23 WHEREAS, COUNTY wishes to engage the specialized legal services of a law firm to
24 serve both as bond counsel and as disclosure counsel who is expert in legal matters concerning
25 the foregoing transactions; and
26 WHEREAS, ATTORNEY represents that it is specially trained and experienced, and
27 that it possesses such expertise; and
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I WHEREAS, such specialized legal services are either not available or not expected to
2 be available in COUNTY's Office of the County Counsel.
3 NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions
4 herein described, the parties hereto agree as follows:
5 1. Engagement of Attorney: COUNTY hereby engages ATTORNEY as an
6 independent contractor through the services of the following key person(s): Arto C. Becker,
7 Esq., Russell A. Miller, Esq., Diane K. Quan, Esq., and Brian Organ, Esq., partners of
8 ATTORNEY; and such other partners of, and associate lawyers and staff members employed
9 by, ATTORNEY as ATTORNEY deems necessary, and who COUNTY's County Counsel
10 (-County Counsel"), or his or her designee, approves pursuant to paragraph 3 of this
1 I Agreement, except that the foregoing key persons may, from time to time, consult with such of
12 ATTORNEY's other lawyers on a "limited basis" (as hereinafter defined) as ATTORNEY
13 reasonably deems prudent and necessary under the circumstances. It is understood that
14 ATTORNEY may not replace any of the aforementioned key persons named above without the
15 prior, express, written approval of County Counsel, or his or her designee. In case of death,
16 illness or other incapacity of any of the foregoing key persons, ATTORNEY shall provide a
17 replacement of at least equal professional ability and experience as the key person replaced.
18 A. Scope of Bond Counsel Services: In its capacity as bond counsel,
19 ATTORNEY shall provide the following professional legal services in order to assist
20 COUNTY in selling and issuing TRANs:
21 (1) Legal review of the financing structure of the TRAN Financing
22 Plan.
23 (2) Consultation with COUNTY officials, County Counsel, or his or
24 her designee, lawyers in ATTORNEY's firm who are acting in their capacity as COUNTY's
25 disclosure counsel ("Disclosure Counsel"), and the municipal financial advisor selected by
26 COUNTY, concerning the timing, terms, and structure of the TRAN Financing plan.
27 (3) Preparation and review of, and advise COUNTY in connection
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I with, any and all documents, agreements, resolutions, instruments and certificates to be used
2 for the sale and issuance of the TRANS for the TRAN Financing Plan including, but not
3 limited to, the paying agent or fiscal agent agreement or certificate (if used), the TRANs, the
4 resolution(s) of COUNTY's Board of Supervisors (collectively, "COUNTY Board
5 Resolution") authorizing the sale and issuance of the TRANs under the TRAN Financing Plan,
6 setting forth the terms and conditions of the notes, their form, date, denominations, and
7 maturities, and providing for the establishment of a fund as security for the notes to ensure
8 compliance with applicable laws and regulations, the tax certificate, insurance policies, and
9 credit or liquidity facilities.
10 (4) Review, and advise COUNTY in connection with, the
I Preliminary Official Statement and the Official Statement for the TRAN Financing Plan,
12 prepared by Disclosure Counsel, describing the sale and issuance of the TRANS, and other
13 related documents, agreement, resolutions, instruments and certificates.
14 (5) Review, and advise COUNTY in connection with, any and all
15 documents, resolutions, instruments and certificates to be executed by COUNTY at the closing
16 of the TRAN Financing Plan, which are necessary for COUNTY to comply with the
17 continuing disclosure requirements under Securities and Exchange Commission Rule 15e-212,
18 including, but not limited to the amendments thereto (collectively, "SEC Continuing
19 Disclosure Certificate").
20 (6) If a negotiated sale is used for the TRAN Financing Plan, review,
21 and advise COUNTY in connection with, the note purchase contract with the underwriter
22 ("Contract of Purchase") prepared by Disclosure Counsel for the TRAN Financing Plan, and
23 other related documents, agreements, resolutions, instruments and certificates.
24 (7) If a competitive sale is used for the TRAN Financing Plan,
25 review, and advise COUNTY in connection with:
26 (a) the Official Notice of Sale of the TRANs and Bid Form
27 prepared by bond counsel;
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1 (b) the notice of intention to sell securities, prepared by bond
2 counsel, to be published in a publication selected by COUNTY's Auditor-Controller/Treasurer-
3 Tax Collector, as provided by Government Code § 53692;
4 (c) the bids submitted for the purchase of the TRANs; and
5 (d) other related documents, agreements, resolutions,
6 instruments and certificates;
7 (8) Provide comment to underwriter's counsel, if such counsel is
8 employed by an underwriter, and to Disclosure Counsel, concerning any and all documents,
9 agreements, instruments and resolutions referred to herein which are prepared by Disclosure
10 Counsel.
11 (9) As to those documents, agreements, resolutions, instruments and
12 certificates prepared by bond counsel, distribute necessary drafts and revisions of same, receive
13 comments from members of the financing team for the TRAN Financing Plan and from other
14 parties for such financing plan, and resolve same to the satisfaction of County Counsel or his
15 or her designee.
16 (10) Examination of proofs of the notes for the TRANs.
17 (11) Draft all closing documents, instruments and certificates in
18 connection with the TRAN Financing Plan.
19 (12) Render written unqualified opinions relating to the TRAN
20 Financing Plan, which shall be acceptable to County Counsel, or his or her designee, in form
21 and substance, to the following effect:
22 (a) that the TRANs have been duly authorized and issued and
23 constitute legally valid and binding obligations of COUNTY, enforceable in accordance with
24 their terms,
25 (b) that the TRANs and interest thereon are payable solely
26 from the taxes, income, revenues, cash receipts and other monies received by COUNTY for its
27 general fund for fiscal year ending June 30, 2017 ("Source of Payment of the TRANS and
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1 Interest Thereon"):
2 (c) that the Source of Payment of the TRANs and Interest
3 Thereon is lawfully available for the payment thereof,
4 (d) that the interest on the TRANs is excluded from "gross
5 income" for federal income tax purposes under Section 103 of the Internal Revenue Code of
6 1986;
7 (e) that the interest on the TRANs is excluded from personal
8 income taxes of the State of California;
9 (f) that the Official Statement, to the extent that the
10 statements contained therein purport to summarize the provisions of the TRANs, the related
11 resolutions of COUNTY's Board of Supervisors, and the governing law related thereto, is
12 accurate and complete in all material respects;
13 (g) that, based upon the information developed and received
14 in the provision of its services herein, no information has come to the attention of bond counsel
15 which would cause bond counsel to believe that the Official Statement, as of the date of the
16 Official Statement and as of the closing of the TRAN Financing Plan, contains any untrue
17 statements of material fact or omits to state any material fact required to be stated therein or
18 necessary to make the statements therein, in light of the circumstances under which they were
19 made, not misleading; and
20 (h) if a paying agent or fiscal agent agreement or certificate
21 is used, that the paying agent or fiscal agent agreement or certificate has been duly authorized,
22 executed and delivered by COUNTY, and constitutes a legally valid and binding obligation of
23 COUNTY, enforceable against COUNTY in accordance with its terms.
24 All such opinions shall be addressed in a letter to COUNTY's Board of
25 Supervisors (which letter shall expressly state that COUNTY's Board of Supervisors is the
26 ATTORNEY's client), and be provided at the time of the delivery of and receipt for payment
27 of the TRANs. Any and all such opinions shall also be addressed to the underwriter (if
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1 requested by the underwriter), as a reliance opinion, as hereinafter provided, and be provided at
2 the time of the delivery of and receipt for payment of the TRANS.
3 If ATTORNEY provides a written opinion to any third party (e.g., an
4 underwriter) whereby the third party is allowed to rely upon any opinion given by
5 ATTORNEY to COUNTY herein (a `'reliance opinion"), such reliance opinion shall (i) be
6 provided in a letter, separate from the opinions given by ATTORNEY to COUNTY herein, and
7 (ii) expressly state substantially to the effect that no attorney-client relationship exists or is
8 created by reason of giving such opinion.
9 (13) Comment and advise COUNTY on issues that arise in the course
10 of the implementation of the TRAN Financing Plan.
11 (14) Attend meetings with either COUNTY staff, COUNTY Debt
12 Advisory Committee, or the Board of Supervisors, or all of them, upon request by the County
13 Counsel, or his or her designee.
14 (15) Attend meetings with rating agencies and COUNTY's municipal
15 financial advisor, upon request by County Counsel, or his or her designee.
16 (16) Handle closing and post-closing issues in connection with the
17 TRAN Financing Plan, and distribute any and all documents, agreements, resolutions,
18 instruments and certificates to appropriate persons or organizations.
19 (17) Perform such other similar services as County Counsel, or his or
20 her designee, may request.
21 B. Scope of Disclosure Counsel Services: In its capacity as disclosure
22 counsel, ATTORNEY shall provide the following professional legal services in order to assist
23 COUNTY in selling and issuing the TRANs:
24 (1) Consultation with COUNTY officials, County Counsel, or his or
25 her designee, lawyers in ATTORNEY's firm who are acting in their capacity as COUNTY's
26 bond counsel ("Bond Counsel"), and the municipal financial advisor selected by COUNTY,
27 concerning the timing, terms, and structure of the TRAN Financing Plan.
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1 (2) Review of, and advise COUNTY in connection with, any and all
2 documents, agreements, resolutions, instruments and certificates to be used for the sale and
3 issuance of the TRANS for the TRAN Financing Plan including, but not limited to, the paying
4 agent or fiscal agent agreement or certificate (if used), the TRANs, the COUNTY Board
5 Resolution, the tax certificate, insurance policies, and credit or liquidity facilities.
6 (3) Preparation and review of, and advise COUNTY in connection
7 with, the Preliminary Official Statement and the Official Statement for the TRAN Financing
8 Plan describing the sale and issuance of the TRANs, and other related documents, agreements,
9 resolutions, instruments and certificates.
10 (4) Preparation and review of, and advise COUNTY in connection
11 with, any and all documents, agreements, instruments and resolutions to be executed by
12 COUNTY at the closing of the TRAN Financing Plan, including, but not limited to, the SEC
13 Continuing Disclosure Certificate.
14 (5) Perform due diligence necessary to prepare COUNTY's
15 Preliminary Official Statement, Official Statement, SEC Continuing Disclosure Certificate, and
16 any other disclosure documents for the TRAN Financing Plan, in order to ensure that such
17 financing plan is in compliance with the applicable securities laws and regulations, including,
18 but not limited to Securities and Exchange Commission Rule 10b-5 and Rule 15c2-12,
19 including but not limited to the amendments thereto.
20 (6) If a negotiated sale is used for the TRAN Financing Plan,
21 preparation and review of, and advise COUNTY in connection with, the Contract of Purchase
22 with the underwriter, for the TRAN Financing Plan, and other related documents, agreements,
23 resolutions and certificates.
24 (7) Provide comment to underwriter's counsel, if such counsel is
25 employed by an underwriter, and to Bond Counsel, concerning any and all documents,
26 agreements, instruments and resolutions referred to herein which are prepared by Bond
27 Counsel.
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1 (8) As to those documents, agreements, resolutions, instruments and
2 certificates prepared by disclosure counsel, distribute necessary drafts and revisions of same,
3 receive comments from members of the financing team for the TRAN Financing Plan and from
4 other parties for such financing plan, and resolve same to the satisfaction of County Counsel or
5 his or her designee.
6 (9) Render unqualified written opinions relating to the TRAN
7 Financing Plan, which shall be acceptable to County Counsel, or his or her designee, in form
8 and substance, to the following effect:
9 (a) that the Official Statement for the TRAN Financing Plan,
10 to the extent that the statements contained therein purport to summarize the underlying
ll information referred to therein (including, but not limited to, the instruments, resolutions,
12 transactions, agreements, and records, and the laws and regulations governing same, in
13 connection with the TRANs and the related resolutions of COUNTY's Board of Supervisors) is
14 accurate and complete in all material respects, assuming the accuracy and completeness and
15 fairness of the statements contained in such underlying information;
16 (b) if a negotiated sale is used, that the Contract of Purchase
17 has been duly authorized, executed, and delivered by COUNTY, and that it constitutes a
18 legally valid and binding obligation of COUNTY, enforceable against COUNTY in accordance
19 with its terms;
20 (c) that, based upon the information developed and received
21 in the provision of its services herein, no information has come to the attention of disclosure
22 counsel which would cause disclosure counsel to believe that the Official Statement for the
23 TRAN Financing plan, as of the date of such Official Statement and as of the closing of such
24 financing plan, contains any untrue statements of material fact or omits to state any material
25 fact required to be stated therein or necessary to make the statements therein, in light of the
26 circumstances under which they were made, not misleading.
27 (d) that the TRANs are exempt from the registration
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1 requirements of the Securities Act of 1933, as amended; and
2 (e) that the COUNTY Board Resolution is exempt from
3 qualification under the Trust Indenture Act of 1939, as amended.
4 All such opinions shall be addressed in a letter to COUNTY's Board of
5 Supervisors (which letter shall expressly state that COUNTY's Board of Supervisors is the
6 ATTORNEY's client), and be provided at the time of the delivery of and receipt for payment
7 of the TRANs. Any and all such opinions shall also be addressed to the underwriter (if
8 requested by the underwriter), as a reliance opinion, as hereinafter provided, and be provided at
9 the time of the delivery of and receipt for payment of the TRANs.
10 If ATTORNEY provides a reliance opinion to any third party (e.g., an
11 underwriter) whereby the third party is allowed to rely upon any opinion given by
12 ATTORNEY to COUNTY herein, such reliance opinion shall (i) be provided in a letter,
13 separate from the opinions given by ATTORNEY to COUNTY herein, and (ii) expressly state
14 in the text of such reliance opinion substantially to the effect that no attorney-client
15 relationship exists or is created by reason of giving such opinion.
16 (10) Assist COUNTY, and its municipal financial advisor, in
17 corresponding with the printer of the Preliminary Official Statement and Official Statement in
18 order to facilitate a prompt and efficient printing of same.
19 (11) Render advice, as requested by COUNTY's Auditor-Controller/
20 Treasurer-Tax Collector, or her designee, or by County Counsel, or his or her designee, to
21 COUNTY, and its municipal financial advisor, regarding the marketing and sale of the
22 TRANs.
23 (12) Comment and advise COUNTY on issues that arise in the course
24 of the implementation of the TRAN Financing Plan.
25 (13) Attend meetings with COUNTY staff, COUNTY's Debt
26 Advisory Committee, or COUNTY's Board of Supervisors, or all of them, upon request by the
27 County Counsel, or his or her designee.
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1 (14) Handle closing and post-closing issues in connection with the
2 TRAN Financing Plan, and distribute any and all documents, agreements, resolutions,
3 instruments and certificates to appropriate persons or organizations.
4 (15) Perform such other similar services as County Counsel, or his or
5 her designee, may request.
6 C. Authorization to Proceed With Work: ATTORNEY shall commence
7 performance of services upon receiving authorization to proceed with work from County
8 Counsel, or his or her designee.
9 2. Performance by Attorney: ATTORNEY agrees to timely perform all services
10 provided under this Agreement. ATTORNEY agrees to avoid unnecessary duplicative efforts
1 1 on the part of ATTORNEY and ATTORNEY's partners, associate lawyers, and staff members
12 in ATTORNEY's performance of services for COUNTY hereunder.
13 COUNTY shall not be obligated to compensate ATTORNEY for intra-office
14 conferences between or among ATTORNEY's partners, associate lawyers, and staff members,
15 unless such intra-office conferences promote efficiency in the performance of ATTORNEY's
16 work on a matter, or a reduction in the cost of compensation paid or reimbursement made for
17 related, reasonable and necessary, out-of-pocket expenses to ATTORNEY, or both.
18 In the performance of the tasks identified in paragraph 1 under this Agreement,
19 ATTORNEY shall provide only those services which are necessary to carry out such tasks in
20 an efficient and effective manner.
21 ATTORNEY shall provide lawyers who possess the following qualities and skills:
22 A. the lawyer possesses a high level of professional ethics and personal
23 integrity, and exercises good judgment;
24 B. the lawyer has experience and expertise in the particular municipal
25 finance matter for which he or she is providing services;
26 C. the lawyer has exceptional technical legal skills;
27 D. the lawyer vigorously represents COUNTY so that COUNTY's
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1 best interests are served;
2 E. the lawyer efficiently and timely completes assigned tasks;
3 F. the lawyer is reasonably available when County Counsel, or his or her
4 designee, needs to consult with the lawyer on short notice;
5 G. the lawyer anticipates potential problems and advises County Counsel
6 regarding same;
7 H. the lawyer explains complex municipal finance concepts to County
8 Counsel, or his or her designee, so that County Counsel, or his or her designee, has a clear and
9 complete understanding of the relevant issues and facts of a matter; and
10 I. the lawyer cooperates with County Counsel, or his or her designee, and
11 other members of the financing team, including amicably resolving disputes, if any, among
12 financing team members to the satisfaction of County Counsel, or his or her designee.
13 3. Compensation of ATTORNEY: COUNTY shall be obligated to compensate
14 ATTORNEY pursuant to the terms and conditions of this Agreement only for the performance
15 of those tasks, to the reasonable satisfaction of COUNTY, which are related to the subject
16 matter of this Agreement. It is understood that COUNTY shall not be obligated to compensate
17 ATTORNEY for any work, services, or functions performed by ATTORNEY: (1) in seeking to
18 obtain COUNTY's business or negotiating with COUNTY to enter into this Agreement or (ii)
19 in providing COUNTY with documentation, explanations, or justifications concerning the
20 adequacy or accuracy of its invoices for the performance of services under this Agreement and
21 resolving same to the reasonable satisfaction of COUNTY.
22 COUNTY agrees to pay and ATTORNEY agrees to accept as full compensation for
23 performance of tasks under this Agreement the following sum per hour per person:
24 Partners:
25 Arto C. Becker $550
26 Russell A. Miller $550
27 Diane K. Quan $518
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1 Brian Organ $362
2 The foregoing lawyers may, from time to time, consult with such of ATTORNEY's
3 other lawyers on a "limited basis" as ATTORNEY reasonably deems prudent and necessary
4 under the circumstances, and ATTORNEY may also, upon the written approval of County
5 Counsel, or his or her designee, provide additional partners of, or associate lawyers employed
6 by its firm to perform significant services under this Agreement, provided that such additional
7 persons who are consulted or who provide significant services are compensated by COUNTY
8 for performance of tasks under this Agreement at a rate not to exceed each such person's
9 customary billing rate per hour for local governmental entities. Notwithstanding anything
10 stated to the contrary in this paragraph, the term "limited basis," as provided herein shall mean
11 fifteen (15) hours or less worked by ATTORNEY's lawyers, collectively, other than the
12 lawyers identified above, per month or fraction thereof.
13 In addition, ATTORNEY shall be reimbursed for reasonable, and necessary out-of-
14 pocket expenses, as follows: telephone charges, telephonic facsimile transmission charges,
15 computer research charges, filing fees, courier charges, postage charges, printing and
16 photographic reproduction expenses, in-State travel, and all such directly-related expenses.
17 It is understood that ATTORNEY shall not be reimbursed for its secretarial or clerical
18 services (including overtime hours worked), or normal office operating expenses, with the
19 exception of those charges and expenses stated in the immediately preceding paragraph of this
20 Agreement. In addition, ATTORNEY shall not be reimbursed for such services performed or
21 expenses incurred, regardless of whether such tasks are performed or expenses are incurred by
22 ATTORNEY's partners, associate lawyers, or anyone else. Under no circumstances shall
23 COUNTY compensate ATTORNEY for secretarial or clerical work performed by paralegals.
24 Furthermore, COUNTY shall not compensate ATTORNEY for work performed by paralegals
25 where such work ordinarily is performed by licensed attorneys, including legal research and
26 legal document drafting.
27 It is understood that COUNTY may abandon the TRAN Financing Plan, at any time,
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1 without any reason.
2 Notwithstanding anything else stated to the contrary in this Agreement, the closing of
3 the TRAN Financing Plan and COUNTY's receipt of the funds from the issuance of the
4 TRANs under such financing plan shall be a condition precedent to COUNTY's obligation to
5 compensate ATTORNEY for such services performed under financing plan, and to
6 COUNTY's obligation to reimburse ATTORNEY for related reasonable and necessary out-of-
7 pocket expenses incurred in connection with such financing plan.
8 IN NO EVENT SHALL THE MAXIMUM AMOUNT PAID TO ATTORNEY AS
9 COMPENSATION FOR ATTORNEY'S SERVICES PERFORMED EXCEED S35,000
10 UNDER THIS AGREEMENT. IN NO EVENT SHALL THE MAXIMUM AMOUNT
1 1 PAID TO ATTORNEY AS REIMBURSEMENT OF RELATED, REASONABLE AND
12 NECESSARY OUT-OF-POCKET EXPENSES EXCEED S4,000 UNDER THIS
13 AGREEMENT.
14 4. Payment and Record-keeping: Subject to paragraph 3 of this Agreement,
15 payment of compensation for the services provided in connection with the TRAN Financing
16 Plan and reimbursement for related, reasonable and necessary, out-of-pocket expenses incurred
17 shall be made by COUNTY after submission of an itemized invoice by ATTORNEY to
18 County Counsel no later than the fifteenth (15th) day following the closing of such financing
19 plan. All payments of compensation and reimbursement for expenses incurred in connection
20 therewith shall be made by COUNTY no later than forty-five (45) days following the date that
21 COUNTY receives a properly completed invoice requesting the payment for such services
22 rendered and expenses incurred.
23 All such invoices shall reflect accurately the tasks performed by ATTORNEY under
24 this Agreement. In addition, all such invoices shall have sufficient detail as may be required by
25 COUNTY's Auditor-Controller/Treasurer-Tax Collector, including, but not limited to:
26 A. The specific nature of each task performed as services under this
27 Agreement;
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1 B. The name of the person performing each such task;
2 C. The number of hours worked by each such person for each such task;
3 D. The hourly rate per each such person performing each such task; and
4 E. The related, reasonable and necessary, out-of-pocket expenses incurred,
5 as provided for in paragraph 3 of this Agreement.
6 In addition to the requirements of this paragraph 4 of this Agreement, each invoice
7 shall set forth a summary of hours worked by each partner and associate lawyer, and paralegal,
8 for the applicable billing period. Furthermore, each such invoice shall set forth the product of
9 such summary of hours worked by each person multiplied by such person's billing rate, as set
10 forth herein (e.g., Mr. Becker's total hours worked = 10 hours; Mr. Becker's hourly billing rate
1 1 is $548; 10 hours x Mr. Becker's billing rate of$548 per hour= $5,480).
12 In preparing invoices, ATTORNEY shall segregate each task performed on a daily
13 basis. If requested by County Counsel, or his or her designee, ATTORNEY shall not combine
14 unrelated tasks as a single entry in lieu of setting forth the hours of work performed by a
15 partner, associate lawyer, or paralegal on each specific task.
16 ATTORNEY shall prepare its invoices in an organized manner that facilitates an
17 efficient review of the services performed and the expenses incurred in order to provide
18 COUNTY with a clear and complete understanding of how much time was devoted to specific
19 tasks and projects, and the cost associated therewith.
20 ATTORNEY shall keep complete records of the services provided, as described in this
21 paragraph 4 of this Agreement, together with all related reasonable and necessary, out-of-
22 pocket expenses applicable to the work provided under this Agreement. COUNTY's Auditor-
23 Controller/ Treasurer-Tax Collector, or his or her duly authorized representatives, shall be
24 given reasonable access to all of these records for the purposes of audit of this Agreement.
25 In addition, ATTORNEY shall be subject to the examination and audit of such records
26 by the Auditor General for a period of three (3) years after final payment under this Agreement
27 (Gov. Code, § 8546.7).
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1 5. Term of Agreement: This Agreement shall be effective as of the date that it is
2 executed by both parties. This Agreement shall continue in full force and effect unless and
3 until it is terminated by either or both parties. Either party may terminate this Agreement at any
4 time, either in whole or in part. However, if ATTORNEY elects to terminate this Agreement,
5 COUNTY's rights under any pending matter which may arise from ATTORNEY's services
6 hereunder shall not be prejudiced due to such termination as required by the Rules of
7 Professional Conduct of the State Bar of California. Subject to paragraph 3 of this Agreement,
8 ATTORNEY shall be paid for all services performed to the date of termination of this
9 Agreement, which are done to the reasonable satisfaction of COUNTY.
10 6. Independent Contractor: In performance of the work, duties and obligations
11 assumed by ATTORNEY under this Agreement, it is mutually understood and agreed that
12 ATTORNEY, including any and all of ATTORNEY's officers, agents, and employees will at
13 all times be acting and performing as an independent contractor, and shall act in an
14 independent capacity and not as an officer, agent, servant, employee,joint venturer, partner, or
15 associate of COUNTY. Furthermore, COUNTY shall have no right to control or supervise or
16 direct the manner or method by which ATTORNEY shall perform its obligations under this
17 Agreement. However, COUNTY shall retain the right to administer this Agreement so as to
18 verify that ATTORNEY is performing its obligations in accordance with the terms and
19 conditions hereof. ATTORNEY and COUNTY shall comply with all applicable provisions of
20 law and the rules and regulations, if any, of governmental authorities having jurisdiction over
21 matters of the subject hereof.
22 Because of its status as an independent contractor, ATTORNEY shall have absolutely
23 no right to employment rights and benefits available to COUNTY employees. ATTORNEY
24 shall be solely liable and responsible for providing to, or on behalf of, its employees all legally-
25 required employee benefits. In addition, ATTORNEY shall be solely responsible and save
26 COUNTY harmless from all matters related to payment of ATTORNEY's employees,
27 including compliance with social security, withholding, and all other regulations governing
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1 such matters. It is acknowledged that during the term of this Agreement, ATTORNEY may be
2 providing services to others unrelated to COUNTY or to this Agreement.
3 7. Hold Harmless: ATTORNEY shall hold COUNTY, its officers, agents, and
4 employees harmless and indemnify and defend COUNTY, its officers, agents, and employees
5 against payment of any and all costs and expenses (including attorney's fees and court cost),
6 claims, suits, losses, damages, and liability arising from or arising out of any actual or alleged
7 negligent or wrongful acts or omissions of ATTORNEY, including its partners, officers,
8 agents, and employees, in performing or failing to perform the services provided herein.
9 COUNTY's receipt of any insurance certificates required herein does not in any way relieve
10 the ATTORNEY from its obligations under this paragraph 7 of this Agreement.
11 The provisions of this paragraph 7 shall survive the termination of this Agreement.
12 8. Insurance: Without limiting COUNTY's rights under paragraph 7 of this
13 Agreement, or against any third parties, ATTORNEY, at its sole expense, shall maintain in full
14 force and effect the following insurance policies throughout the entire term of this Agreement:
15 A. A policy of professional liability insurance with limits of coverage of not
16 less than Ten Million and No/100 Dollars ($10,000,000.00) per covered event;
17 B. A policy of comprehensive general liability insurance with limits of
18 coverage of not less than One Million and No/100 Dollars ($1,000,000.00) per occurrence. The
19 policy of comprehensive general liability shall be written on a per occurrence basis. (Such
20 insurance shall include automobile insurance coverage, provided however, if ATTORNEY
21 maintains comprehensive general liability insurance that does not cover a loss in connection
22 with an automobile, ATTORNEY shall also obtain and maintain automobile liability insurance
23 coverage with limits of coverage of not less than One Hundred Thousand and No/100 Dollars
24 ($100,000.00) per person and Three Hundred Thousand and No/100 Dollars ($300,000.00) per
25 occurrence and shall be written to cover all vehicles or owned and non-owned vehicles); and
26 C. A policy of workers compensation insurance as is required by the
27 California Labor Code, providing full statutory coverage.
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1 All such insurance policies shall be issued by insurers who have at least an A.M. Best
2 rating of A, FSC VII (except for the Professional Liability Insurance policy, which shall be
3 issued by an insurer who has at least a Standard & Poor's and Fitch's rating of AA- because
4 the specialized carrier is fulfilling a need in a specialty market) and shall be acceptable to
5 COUNTY's Personnel Services Manager, Risk Management Division. In addition, the
6 comprehensive general liability insurance policy (and the automobile liability insurance policy,
7 if such policy is at any time maintained separately from the comprehensive general liability
8 insurance policy) shall name COUNTY, its officers, agents, and employees, individually and
9 collectively, as additional insureds, but only insofar as the operations under this Agreement are
10 concerned. Such coverage for additional insureds shall apply as primary insurance and any
I other insurance, or self-insurance, maintained by COUNTY, its officers, agents, and
12 employees, shall be excess only and not contributing with such insurance provided under
13 ATTORNEY's policies herein. This insurance shall not be canceled, reduced, or changed
14 without a minimum of thirty (30) calendar days advance, written notice given to County
15 Counsel (at the address for notices to County Counsel provided herein) and to COUNTY's
16 Personnel Services Manager, Risk Management Division at the following address:
17 Personnel Services Manager, Risk Management Division
COUNTY OF FRESNO
18 2220 Tulare Street, 16th Floor
19 Fresno, CA 93721
20 ATTORNEY shall provide to County Counsel a certificate of insurance for all the
21 foregoing policies and an endorsement to ATTORNEY's comprehensive general liability
22 insurance policy (and, to ATTORNEY's automobile liability insurance policy, if such policy is
23 at any time maintained separately from the comprehensive general liability insurance policy)
24 naming COUNTY as an additional insured, as stated above, which are acceptable to
25 COUNTY's Personnel Services Manager, Risk Management Division, evidencing proof of
26 such insurance coverages required herein prior to performing any services under this
27 Agreement.
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Hawkins Agreement
1 In addition to its obligations set forth hereinabove, ATTORNEY agrees that it shall
2 maintain, at its sole expense, in full force and effect for a period of three (3) years following
3 the termination of this Agreement a policy of professional liability insurance with limits of
4 coverage of not less than Ten Million and No/100 Dollars ($10,000,000.00) per claim;
5 provided, however, in the event that ATTORNEY does not maintain such policy of insurance
6 for such entire three (3) year period, ATTORNEY shall maintain, at its sole expense, in full
7 force and effect extended claims reporting coverage insurance in lieu thereof in the amount of
8 not less than Ten Million and No/100 Dollars ($10,000,000.00).
9 If either the professional liability or comprehensive general liability insurance policies
10 (or, the automobile liability insurance policy, if such policy is at any time maintained
11 separately from the comprehensive general liability insurance policy) required to be
12 maintained pursuant to this paragraph 8 of this Agreement, or both (or all of them, as the case
13 may be), have a self-insured retention, such self-insured retentions shall be funded by
14 ATTORNEY and approved by COUNTY's Personnel Services Manager, Risk Management
15 Division.
16 The provisions of this paragraph 8 shall survive the termination of this Agreement.
17 9. Agreement is Binding Upon Successors: This Agreement shall be binding upon
18 COUNTY and ATTORNEY and their successors, executors, administrators, legal
19 representatives, and assigns with respect to all the covenants and conditions set forth herein.
20 10. Assignment and Subcontracting: Notwithstanding anything stated to the
21 contrary in paragraph 9 of this Agreement, neither party hereto shall assign, transfer, or sub-
22 contract this Agreement nor its rights or duties hereunder without the written consent of the
23 other.
24 11. Amendments: This Agreement may only be amended in writing signed by the
25 parties hereto.
26 12. Conflict of Interest: ATTORNEY promises, covenants, and warrants that, after
27 having performed a reasonable investigation, the performance of its services and representation
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FY 2016r2017 TRANS
Hawkins Agreement
1 to COUNTY under this Agreement do not result in a "conflict of interest" as that term is used
2 in the Rules of Professional Conduct of the State Bar of California. In the event a "conflict of
3 interest" occurs, ATTORNEY will request COUNTY's Board of Supervisors to waive such
4 "conflict of interest" on a case-by-case basis.
5 13. Further Assurances by ATTORNEY: ATTORNEY represents that it has read
6 and is familiar with Government Code §§ 1090 et seq. and §§ 87100 et seq.. ATTORNEY
7 promises, covenants, and warrants that, after having performed a reasonable investigation, the
8 performance of its services under this Agreement shall not result in or cause a violation by it of
9 Government Code §§ 1090 et seg. and §§ 87100 et seq.
10 14. Compliance With Laws: ATTORNEY shall comply with all federal, state, and
11 local laws and regulations applicable to the performance of its obligations under this
12 Agreement.
13 15. Notices: The persons and their addresses having authority to give and receive
14 notices under this Agreement include the following:
15 COUNTY ATTORNEY
16 County Counsel Arto C. Becker, Esq.
COUNTY OF FRESNO Hawkins Delafield & Wood, LLP
17 2220 Tulare Street, Wells Fargo Center
5th Floor 333 South Grand Avenue, Suite 3650
18 Fresno, CA 93721 Los Angeles, CA 90071
19 Any and all notices between COUNTY and ATTORNEY provided for or permitted
20 under this Agreement must be in writing and delivered either by personal service, by first-class
21 United States mail, by an overnight commercial courier service, or by telephonic facsimile
22 transmission. A notice delivered by personal service is effective upon service to the recipient.
23 A notice delivered by first-class United States mail is effective three COUNTY business days
24 after deposit in the United States mail, postage prepaid, addressed to the recipient. A notice
25 delivered by an overnight commercial courier service is effective one COUNTY business day
26 after deposit with the overnight commercial courier service, delivery fees prepaid, with
27 delivery instructions given for next day delivery, addressed to the recipient. A notice delivered
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FY 201 Cr2017 TRANS
Hawkins Agreement
1 by telephonic facsimile is effective when transmission to the recipient is completed (but, if
2 such transmission is completed outside of COUNTY business hours, then such delivery shall
3 be deemed to be effective at the next beginning of a COUNTY business day), provided that the
4 sender maintains a machine record of the completed transmission. For all claims arising out of
5 or related to this Agreement, nothing in this section establishes, waives, or modifies any claims
6 presentation requirements or procedures provided by law, including but not limited to the
7 Government Claims Act (Division 3.6 of Title 1 of the Government Code, beginning with
8 section 810).
9 16. Venue and Governing Law: The parties agree that for purposes of venue,
10 performance under this Agreement is to be in Fresno County, California. The rights and
11 obligations of the parties and all interpretations and performance of this Agreement shall be
12 governed in all respects by the laws of the State of California.
13 17. Disclosure of Self-Dealing Transactions: This provision is only applicable if
14 ATTORNEY is operating as a corporation (a for-profit or non-profit corporation) or if during
15 the term of this Agreement, ATTORNEY changes its status to operate as a corporation.
16 Members of ATTORNEY's Board of Directors shall disclose any self-dealing
17 transactions that they are a party to while ATTORNEY is providing goods or performing
18 services under this Agreement. A self-dealing transaction shall mean a transaction to which
19 the ATTORNEY is a party and in which one or more of its directors has a material financial
20 interest. Members of the Board of Directors shall disclose any self-dealing transactions that
21 they are a party to by completing and signing a Self-Dealing Transaction Disclosure Form
22 (Exhibit A) and submitting it to COUNTY prior to commencing with the self-dealing
23 transaction or immediately thereafter.
24 18. Entire Agreement: This Agreement constitutes the entire agreement between
25 COUNTY and ATTORNEY with respect to the specialized legal services to be provided
26 herein and supersedes any previous agreement concerning the subject matter hereof,
27
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Hawkins Agreement
1 negotiations, proposals, commitments, writings, or understandings of any nature whatsoever
2 unless expressly included in this Agreement.
3 If any part of this Agreement is found violative of any law or is found to be otherwise
4 legally defective, ATTORNEY and COUNTY shall use their best efforts to replace that part of
5 this Agreement with legal terms and conditions most readily approximating the original intent
6 of the parties.
7 [SIGNATURE PAGES FOLLOW]
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1 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
2 executed as of the day and year first above written.
3
ATTORNEY:
4
HAWKINS Da AFIELD & WOOD, LLP
5 B C
6 y
Arto C. Becker, Esq.
Partner
7
8 COUNTY:
9 COUNTY OF FRESNO,
a political subdivision of the State of California
10
11 By
Ernest Buddy Mendes, C air
12 Board of Supervisors
13
14
ATTEST:
'
BERNICE E. SEIDEL, Clerk
15 Board of Supervisors
16
17 By
Deputy
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25 HI
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Hawkins Agreement
1 REVIEWED AND RECOMMENDED
FOR APPROVAL:
2
3 '� C /'(a
Daniel C. Cederborg
4 County Counsel
5
APPROVED AS TO ACCOUNTING FORM:
6 VICKI CROW, C.P.A.,
AUDITOR-CONTROLLER/TREASURER-
7 TAX COLLECTOR
8
By -
9 -ejrufy
10
APPROVED AS TO LEGAL FORM:
I I DANIEL C. CEDERBORG, COUNTY COUNSEL
12
By
y Deputy
14
ORG: 0710
15 FUND: 0001
ACCOUNT: 7295
16 SUBCLASS: 10000
17 Hawkins TRANS Agreement FY 2016-2017
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I Iawkms Aareement
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.
(S) 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:
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