HomeMy WebLinkAbout2023 Liebert Cassidy Whitmore Agmt.pdf P-23-381 Liebert Cassidy Whitmore
1 AGREEMENT FOR SPECIALIZED LEGAL SERVICES
2
3 THIS AGREEMENT("Agreement") is made and entered into by and between the
4 FRESNO COUNTY IN-HOME SUPPORTIVE SERVICES PUBLIC AUTHORITY hereinafter
5 referred to as "AUTHORITY", a corporate public body, and the law firm of LIEBERT CASSIDY
6 WHITMORE, a professional law corporation, whose address is 5250 N. Palm Avenue Suite 310,
7 Fresno CA 93704, hereinafter referred to as "ATTORNEY."
8 WITNESSETH:
9 WHEREAS, AUTHORITY serves as the employer of record for care providers of in-
10 home supportive services for purposes of the Meyers-Milias-Brown Act; and
11 WHEREAS, AUTHORITY has a need to obtain advice and representation in connection
12 with labor negotiations and, pursuant to Welfare & Institutions Code section 12300 et seq. has
13 the power to contract; and
14 WHEREAS, AUTHORITY wishes to engage the specialized legal services of counsel
15 who is expert in legal matters concerning such issues; and
16 WHEREAS, ATTORNEY represents that it is specially trained and experienced, and that
17 it possesses such expertise; and
18 WHEREAS, such specialized legal services are either not available or expected not to
19 be available in Fresno County's Office of the County Counsel.
20 NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions
21 herein described, the parties hereto agree as follows
22 1. Employment of Attorney: AUTHORITY hereby hires ATTORNEY as an
23 independent contractor through the services of the following key person(s): Shelline Bennett,
24 Che Johnson, and Michael Youril, and such other partners of and associate lawyers and staff
25 members employed by ATTORNEY as ATTORNEY deems necessary, and which COUNTY's
26 County Counsel, or his or her designee, approves pursuant to paragraph 3 of this Agreement,
27 except that the foregoing key persons may, from time to time, consult with such of
28
P-23-381 Liebert Cassidy Whitmore
1 ATTORNEY's other lawyers on .a "limited basis" (as hereinafter defined) as ATTORNEY
2 reasonably deems prudent and necessary under the circumstances. It is understood that
3 ATTORNEY may not replace any of the aforementioned key persons named above without the
4 prior, express, written approval of County Counsel, or his or her designee. In case of death,
5 illness or other incapacity of any of the foregoing key persons, ATTORNEY shall provide a
6 replacement of at least equal professional ability and experience as the key person replaced.
7 ATTORNEY shall perform specialized legal services in connection with labor
8 negotiations with providers of in-home supportive services on behalf of the AUTHORITY. In
9 addition, from time to time, County Counsel, or his or her designee, may request ATTORNEY to
10 perform additional specialized legal services in connection with these labor negotiations on
11 behalf of AUTHORITY. Upon County Counsel's, or his or her designee's, written request to
12 perform such services, and ATTORNEY's written acknowledgment that ATTORNEY will provide
13 such services, ATTORNEY shall perform such services pursuant to the terms and conditions of
14 this Agreement. Notwithstanding the foregoing provisions of this paragraph, in the event of
15 exigent circumstances, County Counsel may make such request orally, and County Counsel
16 and ATTORNEY shall within a reasonable time thereafter document such request for services
17 and acknowledgment thereof.
18 2. Performance by Attorney: ATTORNEY agrees to timely perform all services
19 provided for under this Agreement. ATTORNEY agrees to avoid unnecessary duplicative effort
20 on the part of ATTORNEY and ATTORNEY's partners, associate lawyers, and staff members in
21 ATTORNEY's performance of services for the AUTHORITY hereunder.
22 AUTHORITY shall not be obligated to compensate ATTORNEY for intra-office
23 conferences between or among ATTORNEY's partners, associate lawyers, and staff members,
24 unless such intra-office conferences promote efficiency in the performance of ATTORNEY's
25 work on a matter, or a reduction in the cost of compensation paid or reimbursement made for
26 related, reasonable and necessary, out-of-pocket expenses to ATTORNEY, or both. In the
27 performance of the tasks identified in paragraph 1 under this Agreement, ATTORNEY shall
28
-2-
P-23-381 Liebert Cassidy Whitmore
1 provide only those services which are necessary to carry out such tasks in an efficient and
2 effective manner.
3 3. Compensation of ATTORNEY: AUTHORITY shall be obligated to compensate
4 ATTORNEY pursuant to the terms and conditions of this Agreement only for the performance of
5 those tasks, to the reasonable satisfaction of AUTHORITY, which are related to the subject
6 matter of this Agreement. It is understood that AUTHORITY shall not be obligated to
7 compensate ATTORNEY for any work, services, or functions performed by ATTORNEYS: (i) in
8 seeking to obtain AUTHORITY's business or negotiating with AUTHORITY to enter into this
9 Agreement or(ii) in providing AUTHORITY with documentation, explanations, or justifications
10 concerning the adequacy or accuracy of its invoices for the performance of services under this
11 Agreement and resolving same to the reasonable satisfaction of AUTHORITY.
12 AUTHORITY agrees to pay and ATTORNEY agrees to accept as full compensation for
13 performance of tasks under this Agreement the following sum per hour per person:
14 August 2023—June 2024 July 2024-June 2025
15 Partners: $400/hour $420/hour
16 Senior Counsel: $350/hour $370/hour
17 Associates: $230-325/hour $240-335/hour
18 Paraprofessionals/Litigation Support: $140-180/hour $140-180/hour
19 In addition, ATTORNEY shall be reimbursed for reasonable, and necessary out-of-
20 pocket expenses, as follows: telephone charges, telephonic facsimile transmission charges,
21 computer research charges, filing fees, courier charges, postage charges, printing and
22 photographic reproduction expenses, in-State travel, and all such directly related expenses. It i
23 understood that ATTORNEY shall not be reimbursed for its secretarial or clerical services
24 (including overtime hours worked), or normal office operating expenses, with the exception of
25 those charges and expenses stated above. In addition, ATTORNEY shall not be reimbursed for
26 such secretarial or clerical services performed or expenses incurred, regardless of whether such
27 tasks are performed or expenses are incurred by ATTORNEY's partners, associate lawyers, or
28
-3-
P-23-381 Liebert Cassidy Whitmore
1 anyone else. Furthermore, AUTHORITY shall not compensate ATTORNEY for work performed
2 by paralegals where such work ordinarily is performed by licensed attorneys, including legal
3 research and legal document drafting.
4 In no event shall services performed and/or fees paid under this Agreement be in excess
5 of Sixty-Five Thousand and No/100 Dollars ($65,000).
6 4. Payment and Record-keeping. Subject to section 3 of this Agreement, payment
7 of compensation for the services provided under this Agreement and reimbursement for related,
8 reasonable and necessary out-of-pocket expenses incurred shall be made by AUTHORITY after
9 submission of an itemized invoice by ATTORNEY to the County Counsel no later than the
10 thirtieth (301h) day following the end of the month in which such services were rendered or
11 expenses incurred. All payments of compensation and reimbursement for expenses incurred in
12 connection therewith shall be made by AUTHORITY no later than forty-five (45) days following
13 the date that the AUTHORITY receives a properly completed invoice requesting the payment for
14 such services rendered and expenses incurred.
15 All such invoices shall reflect accurately the tasks performed by ATTORNEY under this
16 Agreement. In addition, all such invoices shall have sufficient detail as may be required by
17 AUTHORITY, including, but not limited to:
18 A. The specific nature of each task performed as services under this Agreement;
19 B. The name of the partner or associate lawyer performing each such task;
20 C. The number of hours worked by each such person for each such task;
21 D. The hourly rate per each such person performing each such task; and
22 E. The related, reasonable and necessary, out-of-pocket expenses incurred, as
23 provided for in paragraph 3 of this Agreement.
24 In addition, each invoice shall set forth a summary of hours worked by each partner and
25 associate lawyer for the applicable billing period. Each such invoice shall set forth the product
26 of such summary of hours worked by each person multiplied by such person's billing rate.
27
28
-4-
P-23-381 Liebert Cassidy Whitmore
1 ATTORNEY shall prepare its invoices in an organized manner that facilitates an efficient
2 review of the services performed and the expenses incurred in order to provide AUTHORITY
3 with a clear and complete understanding of how much time was devoted to specific tasks and
4 projects, and the cost associated therewith.
5 ATTORNEY shall keep complete records of the services provided, together with all
6 related reasonable and necessary, out-of-pocket expenses. AUTHORITY, and the Fresno
7 County Auditor-Controller/Treasurer-Tax Collector shall be given reasonable access to all of
8 these records for the purposes of audit of this Agreement. In addition, ATTORNEY shall be
9 subject to the examination and audit of such records by the Auditor General for a period of three
10 (3) years after final payment under this Agreement(Gov. Code section 8546.7).
11 5. Term of Agreement: The term of this Agreement shall be effective as of August
12 1, 2023 and will continue in effect ending on June 30, 2025. Either party may terminate this
13 Agreement at any time, either in whole or in part. However, if ATTORNEY elects to terminate
14 this Agreement, AUTHORITY's rights under any pending matter which may arise from
15 ATTORNEY's services hereunder shall not be prejudiced due to such termination as required b
16 the Rules of Professional Conduct of the State Bar of California. Subject to paragraph 3 of this
17 Agreement, ATTORNEY shall be paid for all services performed to the date of termination of
18 this Agreement, which are done to the reasonable satisfaction of AUTHORITY.
19 6. Independent Contractor: In performance of the work, duties and obligations
20 assumed by ATTORNEY under this Agreement, it is mutually understood and agreed that
21 ATTORNEY, including any and all of ATTORNEY's officers, agents, and employees will at all
22 times be acting and performing as an independent contractor, and shall act in an independent
23 capacity and not as an officer, agent, servant, employee,joint venture, partner, or associate of
24 AUTHORITY. Furthermore, AUTHORITY shall have no right to control or supervise or direct the
25 manner or method by which ATTORNEY shall perform its obligations under this Agreement.
26 However, AUTHORITY shall retain the right to administer this Agreement so as to verify that
27 ATTORNEY is performing its obligations in accordance with the terms and conditions hereof.
28
-5-
P-23-381 Liebert Cassidy Whitmore
1 ATTORNEY and AUTHORITY shall comply with all applicable provisions of law and the rules
2 and regulations, if any, of governmental authorities having jurisdiction over matters of the
3 subject hereof.
4 Because of its status as an independent contractor, ATTORNEY shall have absolutely
5 no right to employment rights and benefits available to AUTHORITY employees. ATTORNEY
6 shall be solely liable and responsible for providing to, or on behalf of, its employees all legally-
7 required employee benefits. In addition, ATTORNEY shall be solely responsible and save
8 COUNTY harmless from all matters related to payment of ATTORNEY's employees, including
9 compliance with social security, withholding, and all other regulations governing such matters. I
10 is acknowledged that during the term of this Agreement, ATTORNEY may be providing services
11 to others unrelated to AUTHORITY or to this Agreement.
12 7. Hold Harmless: ATTORNEY shall hold AUTHORITY, its officers, agents, and
13 employees harmless and indemnify and defend AUTHORITY, its officer, agents and employees
14 against payment of any and all costs and expenses, claims, suits, losses, damages and liability
15 arising form or arising out of any actual negligent or wrongful acts or omissions of ATTORNEY,
16 including its partners, officers, agents and employees, in performing or failing to perform the
17 services provided herein. AUTHORITY's receipt of any insurance certificates required herein
18 does not in any way relieve the ATTORNEY from its obligations under this paragraph 7 of this
19 Agreement.
20 8. Insurance: Without limiting AUTHORITY's rights under paragraph 7 of this
21 Agreement, or against any third parties, ATTORNEY, at its sole expense, shall maintain in full
22 force and effect the following insurance policies throughout the entire term of this Agreement:
23 A. A policy of professional liability insurance with limits of coverage of not less
24 than One Million and No./100 Dollars ($1,000,000.00) per covered event, and an annual
25 aggregate of Three Million and No/100 Dollars ($3,000,000.00);
26 B. A policy of comprehensive general liability insurance with limits of coverage o
27 not less than Two Million and No/100 Dollars ($2,000,000.00) per occurrence and an annual
28
-6-
P-23-381 Liebert Cassidy Whitmore
1 aggregate of Four Million and No/100 Dollars ($4,000,000). (Such insurance shall include
2 automobile insurance coverage, provided however, if ATTORNEY maintains comprehensive
3 general liability insurance that does not cover a loss in connection with an automobile,
4 ATTORNEY shall also obtain and maintain automobile liability insurance coverage with limits of
5 coverage of not less than One Million and No/100 Dollars ($1,00,000.00) per occurrence for
6 bodily injury and for property damages; and
7 C. A policy of workers compensation insurance as is required by the California
8 Labor Code, providing full statutory coverage.
9 All such insurance policies shall be issued by insurers who at least have an A.M. Best
10 rating of no less than A: VII, and shall be acceptable to AUTHORITY. In addition, the
11 comprehensive general liability insurance policy (and, the automobile liability insurance policy, if
12 such policy is at any time maintained separately from the comprehensive general liability
13 insurance policy) shall name the AUTHORITY, its officers, agents, and employees, individually
14 and collectively, as additional insureds, but only insofar as the operations under this Agreement
15 are concerned. Such coverage for additional insureds shall apply as primary insurance and any
16 other insurance, or self-insurance, maintained by the AUTHORITY, its officers, agents, and
17 employees, shall be excess only and not contributing with such insurance provided under
18 ATTORNEY's policies herein. This insurance shall not be canceled, reduced, or changed
19 without a minimum of thirty (30) calendar days advance, written notice given to County Counsel
20 (at the address for notices to County Counsel provided herein) and the AUTHORITY at the
21 following address: Executive Director, IHSS Public Authority, P.O. Box 1912, Fresno,
22 California, 93718-1912.
23 ATTORNEY shall provide to County Counsel and the AUTHORITY a certificate of
24 insurance for all the foregoing policies and an endorsement to ATTORNEY's comprehensive
25 general liability insurance policy (and, to the automobile liability insurance policy, if such policy
26 is at any time maintained separately from the comprehensive general liability insurance policy)
27 naming AUTHORITY as an additional insured, as stated above, which are acceptable to
28
-7-
P-23-381 Liebert Cassidy Whitmore
1 AUTHORITY, evidencing proof of such insurance coverages required herein prior to performing
2 any services under this Agreement.
3 In addition to its obligations set forth hereinabove, ATTORNEY agrees that it shall
4 maintain, at its sole expense, in full force and effect for a period of three (3) years following the
5 termination of this Agreement a policy of professional liability insurance with limits of coverage
6 of not less than One Million and No/100 Dollars ($1,000,000.00) per claim; provided, however,
7 in the event that ATTORNEY does not maintain such policy of insurance for such entire three
8 (3) year period, ATTORNEY shall maintain, at its sole expense, in full force and effect extended
9 claims reporting coverage insurance in lieu thereof in the amount of not less than One Million
10 and No/100 Dollars ($1,000,000.00).
11 If either the professional liability or comprehensive general liability insurance policies (or,
12 the automobile liability insurance policy, if such policy is at any time maintained separately from
13 the comprehensive general liability insurance policy) required to be maintained pursuant to this
14 paragraph 8, or both (or all of them, as the case may be), have a self-insured retention, such
15 self-insured retentions shall be funded by ATTORNEY and approved by AUTHORITY.
16 9. Agreement is Binding Upon Successors: This Agreement shall be binding upon
17 AUTHORITY and ATTORNEY and their successors, executors, administrators, legal
18 representatives and assigns with respect to all the covenants and conditions set forth herein.
19 10. Assignment and Subcontracting: Notwithstanding anything stated to the contrary
20 in paragraph 9 of this Agreement, neither party hereto shall assign, transfer, or sub-contract this
21 Agreement nor its rights or duties hereunder without the written consent of the other.
22 11. Amendments: This Agreement may only be amended in writing signed by the
23 parties hereto.
24 12. Conflict of Interest: ATTORNEY promises, covenants, and warrants that, after
25 having performed a reasonable investigation, the performance of its services and representation
26 to AUTHORITY under this Agreement do not result in a conflict of interest as that term is used in
27 the Rules of Professional Conduct of the State Bar of California. In the event a conflict of
28
-8-
P-23-381 Liebert Cassidy Whitmore
1 interest occurs, ATTORNEY will request AUTHORITY's Board of Directors to waive such
2 conflict of interest on a case-by-case basis.
3 13. Further Assurances by ATTORNEY: ATTORNEY represents that it has read and
4 is familiar with Government Code section 1090 et seq. and 87100 et seq. ATTORNEY
5 promises, covenants, and warrants that, after having performed a reasonable investigation, the
6 performance of its services under this Agreement shall not result in or cause a violation by it of
7 Government Code section 1090 et seq and 87100 et seq.
8 14. Compliance With Laws: ATTORNEY shall comply with all federal, state, and
9 local laws and regulations applicable to the performance of its obligations under this Agreement.
10 15. Notices: The persons and their addresses having authority to give and receive
11 notices under this Agreement include the following:
12 AUTHORITY ATTORNEY
13 Executive Director Shelline Bennett
IHSS Public Authority Liebert, Cassidy & Whitmore
14 P.O. Box 1912 5250 N. Palm Ave., Suite 310
Fresno, CA 93718-1912 Fresno, CA 93704
15
Any and all notices between the AUTHORITY and ATTORNEY provided for or permitted under
16
this Agreement or by law shall be in writing and shall be deemed duly served when personally
17
delivered to one of the parties, or in lieu of such personal service, when deposited in the United
18
States mail, postage prepaid, addressed to such party. Any notices to be given or provided for
19
under this Agreement are not modifications or changes of this Agreement.
20
16. Venue and Governing Law: The parties agree that, for purposes of venue,
21
performance under this Agreement is to be in Fresno County, California. The rights and
22
obligations of the parties and all interpretations and performance of this Agreement shall be
23
governed in all respects by the laws of the State of California.
24
17. Legal Status of AUTHORITY: The AUTHORITY is an independent legal entity,
25
separate and apart from the County of Fresno. The AUTHORITY has no power to bind the
26
County of Fresno to any contractual or legal obligations. Nor may the obligees of the
27
28
-9-
P-23-381 Liebert Cassidy Whitmore
1 AUTHORITY seek recourse against the County of Fresno for any financial or legal obligation of
2 the AUTHORITY.
3 18. Electronic Signature: The parties agree that this Agreement may be executed by
4 electronic signature as provided in this section. An "electronic signature" means any symbol or
5 process intended by an individual signing this Agreement to represent their signature, including
6 by not limited to (1) a digital signature; (2) a faxed version of an original handwritten signature;
7 or (3) an electronically scanned and transmitted (for example by PDF document) of a
8 handwritten signature. Each electronic signature affixed or attached to this Agreement(1) is
9 deemed equivalent to a valid original handwritten signature of the person signing this
10 Agreement for all purposes, including but not limited to evidentiary proof in any administrative or
11 judicial proceeding, and (2) has the same force and effect as the valid original handwritten
12 signature of that person. The provisions of this section satisfy the requirements of Civil Code
13 section 1633.5, subdivision (b), in the Uniform Electronic Transaction Act(Civil Code, Division 3,
14 Part 2, Title 2.5, beginning with section 1633.1). Each party using a digital signature represents
15 that it has undertaken and satisfied the requirements of Government Code section 16.5,
16 subdivision (a), paragraphs (1) through (5), and agrees that each other party may rely upon that
17 representation. This Agreement is not conditioned upon the parties conducting the transactions
18 under it by electronic means and either party may sign this Agreement with an original
19 handwritten signature.
20 19. Entire Agreement: This Agreement constitutes the entire agreement between
21 AUTHORITY and ATTORNEY with respect to the specialized legal services to be provided
22 herein and supersedes any previous agreement concerning the subject matter hereof,
23 negotiations, proposals, commitments, writings, or understandings of any nature whatsoever
24 unless expressly included in this Agreement. If any part of this Agreement is found violative of
25 any law or is found to be otherwise legally defective, ATTORNEY and AUTHORITY shall use
26 their best efforts to replace that part of this Agreement with legal terms and conditions most
27 readily approximating the original intent of the parties.
28
-10-
P-23-381 Liebert Cassidy Whitmore
1 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
2 executed effective August 1, 2023.
3
4 LIEBERT CASSIDY WHITMORE, a professional law corporation
5 i
6
7 Shelline Bennett, Partner
8 FRESNO COUNTY IN-HOME SUPPORTIVE SERVICES, PUBLIC AUTHORITY
9 Gary Digitally signed by Gary
Cornuelle
02
10ByCornuelle 14:22:53-07'0.0'11 Gary Cornuelle,
Purchasing Manager
12
13
14
15
16
Fund/Subclass: 0001/10000
17 Organization: 5611
Acct/Program: 7295
18
19
20
21
22
23
24
25
26
27
28
-11-