HomeMy WebLinkAboutAgreement A-15-103 with TRANs.pdfAGREEMENT NO. 15-103
FY 2015-2016 TRANs
Hawkins Agreement
1
2
3
4
5
AGREEMENT FOR SPECIALIZED LEGAL SERVICES
(BOND COUNSEL AND DISCLOSURE COUNSEL SERVICES FOR
FISCAL YEAR 2015-16 TAX AND REVENUE ANTICIPATION
NOTES AND TEETER FINANCING PLANS)
6 THIS AGREEMENT ("Agreement") is made and entered into this 24th day of
7 -=Mc=.a,_,rc:!.!.h __ , 2015, by anq between the COUNTY OF FRESNO, a political subdivision of
8 the State of California, herei~after referred to as "COUNTY," and the law firm of HAWKINS
I
9 DELAFIELD & WOOD, LLP, hereinafter referred to as "ATTORNEY."
I
10 WITNESSETH:
11 WHEREAS, COUN~Y has the possible need to sell and issue Tax and Revenue
12 Anticipation Notes ("TRANs;" Govt. Code, §§ 53850 et seq.) for the fiscal year 2015-16
I
!
13 ("TRAN Financing Plan"); aryd
I
14 WHEREAS, COUNTY also has the possible need to publicly finance its Teeter Plan
15 (Rev. & Tax. Code, §§ 470~ et seq.) in the COUNTY for the fiscal year 2015-16 ("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, shal~ apply to and include the financing of COUNTY's Teeter Plan;
22 and
23 WHEREAS, COUNT,Y 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, A TTOR.NEY represents that it is specially train~d and experienced, and
27 that it possesses such expertise; and
1
FY 2015-2016 TRANs
Hawkins Agreement
1 WHEREAS, such specialized legal services are either not available or not expected to
2 be available in COUNTY's Office ofthe County Counsel.
3 NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions
4 herein described, the parties hereto agree as follows:
5 I. 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., and Diane K. Quan, Esq., partners of ATTORNEY; and Nnanna
8 F. Ogbu, Esq., and Brian Organ, Esq., associate lawyers employed by ATTORNEY; and such
9 other partners of, and associate lawyers and staff members employed by, ATTORNEY as
10 ATTORNEY deems necessary, and who COUNTY's County Counsel ("County Counsel"), or
11 his or her designee, approves pursuant to paragraph 3 of this Agreement, except that the
12 foregoing key persons may, from time to time, consult with such of ATTORNEY's other
13 lawyers on a "limited basis" (as hereinafter defined) as ATTORNEY reasonably deems
14 prudent and necessary under the circumstances. It is understood that ATTORNEY may not
15 replace any of the aforementioned key persons named above without the prior, express, written
16 approval of County Counsel, or his or her designee. In case of death, illness or other
17 incapacity of any of the foregoing key persons, ATTORNEY shall provide a replacement of at
18 least equal professional ability and experience as the key person replaced.
19 A. Scope of Bond Counsel Services: In its capacity as bond counsel,
20 ATTORNEY shall provide the following professional legal services in order to assist
21 COUNTY in selling and issuing TRANs:
22 (1) Legal review of the financing structure of the TRAN Financing
23 Plan.
24 (2) 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 disclosure counsel ("Disclosure Counsel"), and the municipal financial advisor selected by
27 COUNTY, concerning the timing, terms, and structure of the TRAN Financing plan.
2
1 (3)
FY 2015-2016 TRANs
Hawkins Agreement
Preparation and review of, and advise COUNTY in connection
2 with, any and all documents, agreements, resolutions, instruments and certificates to be used
3 for the sale and issuance of the TRANs for the TRAN Financing Plan including, but not
4 limited to, the paying agent or fiscal agent agreement or certificate (if used), the TRANs, the
5 resolution(s) of COUNTY's Board of Supervisors (collectively, "COUNTY Board
6 Resolution") authorizing the sale and issuance of the TRANs under the TRAN Financing Plan,
7 setting forth the terms and conditions of the notes, their form, date, denominations, and
8 maturities, and providing for the establishment of a fund as security for the notes to ensure
9 compliance with applicable laws and regulations, the tax certificate, insurance policies, and
10 credit or liquidity facilities.
11 (4) Review, and advise COUNTY in connection with, the
12 Preliminary Official Statement and the Official Statement for the TRAN Financing Plan,
13 prepared by Disclosure Counsel, describing the sale and issuance of the TRANs, and other
14 related documents, agreement, resolutions, instruments and certificates.
15 (5) Review, and advise COUNTY in connection with, any and all
16 documents, resolutions, instruments and certificates to be executed by COUNTY at the closing
1 7 of the TRAN Financing Plan, which are necessary for COUNTY to comply with the
18 continuing disclosure requirements under Securities and Exchange Commissions Rule 15c-
19 212, including, but not limited to the amendments thereto (collectively, "SEC Continuing
20 Disclosure Certificate").
21 (6) If a negotiated sale is used for the TRAN Financing Plan, review,
22 and advise COUNTY in connection with, the note purchase contract with the underwriter
23 ("Contract of Purchase") prepared by Disclosure Counsel for the TRAN Financing Plan, and
24 other related documents, agreements, resolutions, instruments and certificates.
25 (7) If a competitive sale is used for the TRAN Financing Plan,
26 review, and advise COUNTY in connection with:
27 (a) the Official Notice of Sale of the TRANs and Bid Form
3
FY 2015-2016 TRANs
Hawkins Agreement
1 prepared by bond counsel;
2 (b) the notice of intention to sell securities, prepared by bond
3 counsel, to be published in a publication selected by COUNTY's Auditor-Controller/Treasurer-
4 Tax Collector, as provided by Government Code § 53692;
5
6
(c)
(d)
the bids submitted for the purchase of the TRANs; and
other related documents, agreements, resolutions,
7 instruments and certificates;
8 (8) Provide comment to underwriter's counsel, if such counsel is
9 employed by an underwriter, and to Disclosure Counsel, concerning any and all documents,
10 agreements, instruments and resolutions referred to herein which are prep~red by Disclosure
11 Counsel.
12 (9) As to those documents, agreements, resolutions, instruments and
13 certificates prepared by bond counsel, distribute necessary drafts and revisions of same, receive
14 comments from members of the financing team for the TRAN Financing Plan and from other
15 parties for such financing plan, and resolve same to the satisfaction of County Counsel or his
16 or her designee.
17
18
(10) Examination of proofs ofthe notes for the TRANs.
( 11) Draft all closing documents, instruments and certificates in
19 connection with the TRAN Financing Plan.
20 (12) Render written unqualified opinions relating to the TRAN
21 Financing Plan, which shall be acceptable to County Counsel, or his or her designee, in form
22 and substance, to the following effect:
23 (a) that the TRANs have been duly authorized and issued and
24 constitute legally valid and binding obligations of COUNTY, enforceable in accordance with
25 their terms;
26 (b) that the TRANs and interest thereon are payable solely
27 from the taxes, income, revenues, cash receipts and other monies received by COUNTY for its
4
FY 2015-2016 TRANs
Hawkins Agreement
general fund for fiscal year ending June 30, 2016 ("Source of Payment of the TRANs and
2 Interest Thereon");
3 (c) that the Source of Payment of the TRANs and Interest
4 Thereon is lawfully available for the payment thereof;
5 (d) that the interest on the TRANs is excluded from "gross
6 income" for federal income tax purposes under Section 103 of the Internal Revenue Code of
7 1986;
8 (e) that the interest on the TRANs is excluded from personal
9 income taxes of the State of California;
10 (f) that the Official Statement, to the extent that the
11 statements contained therein purport to summarize the provisions of the TRANs, the related
12 resolutions of COUNTY's Board of Supervisors, and the governing law related thereto, is
13 accurate and complete in all material respects;
14 (g) that, based upon the information developed and received
15 in the provision of its services herein, no information has come to the attention of bond counsel
16 which would cause bond counsel to believe that the Official Statement, as of the date of the
17 Official Statement and as of the closing of the TRAN Financing Plan, contains any untrue
18 statements of material fact or omits to state any material fact required to be stated therein or
19 necessary to make the statements therein, in light of the circumstances under which they were
20 made, not misleading; and
21 (h) if a paying agent or fiscal agent agreement or certificate
22 is used, that the paying agent or fiscal agent agreement or certificate has been duly authorized,
23 executed and delivered by COUNTY, and constitutes a legally valid and binding obligation of
24 COUNTY, enforceable against COUNTY in accordance with its terms.
25 All such opinions shall be addressed in a letter to COUNTY's Board of
26 Supervisors (which letter shall expressly state that COUNTY's Board of Supervisors is the
27 ATTORNEY's client), and be provided at the time of the delivery of and receipt for payment
5
FY 2015-2016 TRANs
Hawkins Agreement
1 of the TRANs. Any and all such opinions shall also be addressed to the underwriter (if
2 requested by the underwriter), as a reliance opinion, as hereinafter provided, and be provided at
3 the time of the delivery of and receipt for payment of the TRANs.
4 If ATTORNEY provides a written opinion to any third party (e.g., an
5 underwriter) whereby the third party is allowed to rely upon any opinion given by
6 ATTORNEY to COUNTY herein (a "reliance opinion"), such reliance opinion shall (i) be
7 provided in a letter, separate from the opinions given by ATTORNEY to COUNTY herein, and
8 (ii) expressly state substantially to the effect that no attorney-client relationship exists or is
9 created by reason of giving such opinion.
10 (13) Comment and advise COUNTY on issues that arise in the course
11 of the implementation of the TRAN Financing Plan.
12 (14) Attend meetings with either COUNTY staff, COUNTY Debt
13 Advisory Committee, or the Board of Supervisors, or all of them, upon request by the County
14 Counsel, or his or her designee.
15 (15) Attend meetings with rating agencies and COUNTY's municipal
16 financial advisor, upon request by County Counsel, or his or her designee.
17 (16) Handle closing and post-closing issues in connection with the
18 TRAN Financing Plan, and distribute any and all documents, agreements, resolutions,
19 instruments and certificates to appropriate persons or organizations.
20 (17) Perform such other similar services as County Counsel, or his or
21 her designee, may request.
22 B. Scope of Disclosure Counsel Services: In its capacity as disclosure
23 counsel, ATTORNEY shall provide the following professional legal services in order to assist
24 COUNTY in selling and issuing the TRANs:
25 (1) Consultation with COUNTY officials, County Counsel, or his or
26 her designee, lawyers in ATTORNEY's firm who are acting in their capacity as COUNTY's
27 bond counsel ("Bond Counsel"), and the municipal financial advisor selected by COUNTY,
6
FY 2015-2016 TRANs
Hawkins Agreement
1 concerning the timing, terms, and structure of the TRAN Financing Plan.
2 (2) Review of, and advise COUNTY in connection with, any and all
3 documents, agreements, resolutions, instruments and certificates to be used for the sale and
4 issuance of the TRANs for the TRAN Financing Plan including, but not limited to, the paying
5 agent or fiscal agent agreement or certificate (if used), the TRANs, the COUNTY Board
6 Resolution, the tax certificate, insurance policies, and credit or liquidity facilities.
7 (3) Preparation and review of, and advise COUNTY in connection
8 with, the Preliminary Official Statement and the Official Statement for the TRAN Financing
9 Plan describing the sale and issuance of the TRANs, and other related documents, agreements,
10 resolutions, instruments and certificates.
11 (4) Preparation and review of, and advise COUNTY in connection
12 with, any and all documents, agreements, instruments and resolutions to be executed by
13 COUNTY at the closing of the TRAN Financing Plan, including, but not limited to, the SEC
14 Continuing Disclosure Certificate.
15 (5) Perform due diligence necessary to prepare COUNTY's
16 Preliminary Official Statement, Official Statement, SEC Continuing Disclosure Certificate, and
17 any other disclosure documents for the TRAN Financing Plan, in order to ensure that such
18 financing plan is in compliance with the applicable securities laws and regulations, including,
19 but not limited to Securities and Exchange Commission Rule 1 Ob-5 and Rule 15c2-12,
20 including but not limited to the amendments thereto.
21 (6) If a negotiated sale is used for the TRAN Financing Plan,
22 preparation and review of, and advise COUNTY in connection with, the Contract of Purchase
23 with the underwriter, for the TRAN Financing Plan, and other related documents, agreements,
24 resolutions and certificates.
25 (7) Provide comment to underwriter's counsel, if such counsel is
26 employed by an underwriter, and to Bond Counsel, concerning any and all documents,
27 agreements, instruments and resolutions referred to herein which are prepared by Bond
7
Counsel.
2 (8)
FY 2015-2016 TRANs
Hawkins Agreement
As to those documents, agreements, resolutions, instruments and
3 certificates prepared by disclosure counsel, distribute necessary drafts and revisions of same,
4 receive comments from members of the financing team for the TRAN Financing Plan and from
5 other parties for such financing plan, and resolve same to the satisfaction of County Counsel or
6 his or her designee.
7 (9) Render unqualified written opm10ns relating to the TRAN
8 Financing Plan, which shall be acceptable to County Counsel, or his or her designee, in form
9 and substance, to the following effect:
10 (a) that the Official Statement for the TRAN Financing Plan,
11 to the extent that the statements contained therein purport to summarize the underlying
12 information referred to therein (including, but not limited to, the instruments, resolutions,
13 transactions, agreements, and records, and the laws and regulations governing same, in
14 connection with the TRANs and the related resolutions of COUNTY's Board of Supervisors) is
15 accurate and complete in all material respects, assuming the accuracy and completeness and
16 fairness of the statements contained in such underlying information;
17 (b) if a negotiated sale is used, that the Contract of Purchase
18 has been duly authorized, executed, and delivered by COUNTY, and that it constitutes a
19 legally valid and binding obligation of COUNTY, enforceable against COUNTY in accordance
20 with its terms;
21 (c) that, based upon the information developed and received
22 in the provision of its services herein, no information has come to the attention of disclosure
23 counsel which would cause disclosure counsel to believe that the Official Statement for the
24 TRAN Financing plan, as of the date of such Official Statement and as of the closing of such
25 financing plan, contains any untrue statements of material fact or omits to state any material
26 fact required to be stated therein or necessary to make the statements therein, in light of the
2 7 circumstances under which they were made, not misleading.
8
FY 2015-2016 TRANs
Hawkins Agreement
(d) that the TRANs are exempt from the registration
2 requirements ofthe Securities Act of I933, as amended; and
3 (e) that the COUNTY Board Resolution 1s exempt from
4 qualification under the Trust Indenture Act of I939, as amended.
5 All such opinions shall be addressed in a letter to COUNTY's Board of
6 Supervisors (which letter shall expressly state that COUNTY's Board of Supervisors is the
7 ATTORNEY's client), and be provided at the time of the delivery of and receipt for payment
8 of the TRANs. Any and all such opinions shall also be addressed to the underwriter (if
9 requested by the underwriter), as a reliance opinion, as hereinafter provided, and be provided at
10 the time of the delivery of and receipt for payment of the TRANs.
II If ATTORNEY provides a reliance opinion to any third party (e.g., an
I2 underwriter) whereby the third party is allowed to rely upon any opinion given by
I3 ATTORNEY to COUNTY herein, such reliance opinion shall (i) be provided in a letter,
14 separate from the opinions given by ATTORNEY to COUNTY herein, and (ii) expressly state
15 in the text of such reliance opinion substantially to the effect that no attorney-client
I6 relationship exists or is created by reason of giving such opinion.
I7 (I 0) Assist COUNTY, and its municipal financial advisor, in
I8 corresponding with the printer of the Preliminary Official Statement and Official Statement in
19 order to facilitate a prompt and efficient printing of same.
20 (II) Render advice, as requested by COUNTY's Auditor-Controller/
2I Treasurer-Tax Collector, or her designee, or by County Counsel, or his or her designee, to
22 COUNTY, and its municipal financial advisor, regarding the marketing and sale of the
23 TRANs.
24 (12) Comment and advise COUNTY on issues that arise in the course
25 ofthe implementation ofthe TRAN Financing Plan.
26 (I3) Attend meetings with COUNTY staff, COUNTY's Debt
27 Advisory Committee, or COUNTY's Board of Supervisors, or all ofthem, upon request by the
9
1 County Counsel, or his or her designee.
FY 2015-2016 TRANs
Hawkins Agreement
2 (14) Handle closing and post-closing issues in connection with the
3 TRAN Financing Plan, and distribute any and all documents, agreements, resolutions,
4 instruments and certificates to appropriate persons or organizations.
5 (15) Perform such other similar services as County Counsel, or his or
6 her designee, may request.
7 c. Authorization to Proceed With Work: ATTORNEY shall commence
8 performance of services upon receiving authorization to proceed with work from County
9 Counsel, or his or her designee.
10 2. Performance by Attorney: ATTORNEY agrees to timely perform all services
11 provided under this Agreement. ATTORNEY agrees to avoid unnecessary duplicative efforts
12 on the part of ATTORNEY and ATTORNEY's partners, associate lawyers, and staff members
13 in ATTORNEY's performance of services for COUNTY hereunder.
14 COUNTY shall not be obligated to compensate ATTORNEY for intra-office
15 conferences between or among ATTORNEY's partners, associate lawyers, and staff members,
16 unless such intra-office conferences promote efficiency in the performance of ATTORNEY's
17 work on a matter, or a reduction in the cost of compensation paid or reimbursement made for
18 related, reasonable and necessary, out-of-pocket expenses to ATTORNEY, or both.
19 In the performance of the tasks identified in paragraph I under this Agreement,
20 ATTORNEY shall provide only those services which are necessary to carry out such tasks in
21 an efficient and effective manner.
22 ATTORNEY shall provide lawyers who possess the following qualities and skills:
23 A. the lawyer possesses a high level of professional ethics and personal
24 integrity, and exercises good judgment;
25 B. the lawyer has experience and expertise m the particular municipal
26 finance matter for which he or she is providing services;
27 c. the lawyer has exceptional technical legal skills;
10
1 D.
FY 2015-2016 TRANs
Hawkins Agreement
the lawyer vigorously represents COUNTY so that COUNTY's
2 best interests are served;
3
4
E.
F.
the lawyer efficiently and timely completes assigned tasks;
the lawyer is reasonably available when County Counsel, or his or her
5 designee, needs to consult with the lawyer on short notice;
6 G. the lawyer anticipates potential problems and advises County Counsel
7 regarding same;
8 H. the lawyer explains complex municipal finance concepts to County
9 Counsel, or his or her designee, so that County Counsel, or his or her designee, has a clear and
10 complete understanding of the relevant issues and facts of a matter; and
11 I. the lawyer cooperates with County Counsel, or his or her designee, and
12 other members of the financing team, including amicably resolving disputes, if any, among
13 financing team members to the satisfaction of County Counsel, or his or her designee.
14 3. Compensation of ATTORNEY: COUNTY shall be obligated to compensate
15 ATTORNEY pursuant to the terms and conditions of this Agreement only for the performance
16 of those tasks, to the reasonable satisfaction of COUNTY, which are related to the subject
17 matter of this Agreement. It is understood that COUNTY shall not be obligated to compensate
18 ATTORNEY for any work, services, or functions performed by ATTORNEY: (i) in seeking to
19 obtain COUNTY's business or negotiating with COUNTY to enter into this Agreement or (ii)
20 in providing COUNTY with documentation, explanations, or justifications concerning the
21 adequacy or accuracy of its invoices for the performance of services under this Agreement and
22 resolving same to the reasonable satisfaction of COUNTY.
23 COUNTY agrees to pay and ATTORNEY agrees to accept as full compensation for
24 performance of tasks under this Agreement the following sum per hour per person:
25 Partners:
26
27
Arto C. Becker
Russell A. Miller
$548
$543
11
1
2
3
4
Diane K. Quan
Associate Lawyers:
Brian Organ
Nnanna F. Ogbu
$496
$329
$329
FY 2015-2016 TRANs
Hawkins Agreement
5 The foregoing lawyers may, from time to time, consult with such of ATTORNEY's
6 other lawyers on a "limited basis" as ATTORNEY reasonably deems prudent and necessary
7 under the circumstances, and ATTORNEY may also, upon the written approval of County
8 Counsel, or his or her designee, provide additional partners of, or associate lawyers employed
9 by its firm to perform significant services under this Agreement, provided that such additional
10 persons who are consulted or who provide significant services are compensated by COUNTY
11 for performance of tasks under this Agreement at a rate not to exceed each such person's
12 customary billing rate per hour for local governmental entities. Notwithstanding anything
13 stated to the contrary in this paragraph, the term "limited basis," as provided herein shall mean
14 fifteen (15) hours or less worked by ATTORNEY's lawyers, collectively, other than the
15 lawyers identified above, per month or fraction thereof.
16 In addition, ATTORNEY shall be reimbursed for reasonable, and necessary out-of-
17 pocket expenses, as follows: telephone charges, telephonic facsimile transmission charges,
18 computer research charges, filing fees, courier charges, postage charges, printing and
19 photographic reproduction expenses, in-State travel, and all such directly-related expenses.
20 It is understood that ATTORNEY shall not be reimbursed for its secretarial or clerical
21 services (including overtime hours worked), or normal office operating expenses, with the
22 exception of those charges and expenses stated in the immediately preceding paragraph of this
23 Agreement. In addition, ATTORNEY shall not be reimbursed for such services performed or
24 expenses incurred, regardless of whether such tasks are performed or expenses are incurred by
25 ATTORNEY's partners, associate lawyers, or anyone else. Under no circumstances shall
26 COUNTY compensate ATTORNEY for secretarial or clerical work performed by paralegals.
27 Furthermore, COUNTY shall not compensate ATTORNEY for work performed by paralegals
12
FY 2015-2016 TRANs
Hawkins Agreement
1 where such work ordinarily is performed by licensed attorneys, including legal research and
2 legal document drafting.
3 It is understood that COUNTY may abandon the TRAN Financing Plan, at any time,
4 without any reason.
5 Notwithstanding anything else stated to the contrary in this Agreement, the closing of
6 the TRAN Financing Plan and COUNTY's receipt of the funds from the issuance of the
7 TRANs under such financing plan shall be a condition precedent to COUNTY's obligation to
'8 compensate ATTORNEY for such services performed under financing plan, and to
9 COUNTY's obligation to reimburse ATTORNEY for related reasonable and necessary out-of-
10 pocket expenses incurred in connection with such financing plan.
11 IN NO EVENT SHALL THE MAXIMUM AMOUNT PAID TO ATTORNEY AS
12 COMPENSATION FOR ATTORNEY'S SERVICES PERFORMED EXCEED $35,000
13 UNDER THIS AGREEMENT. IN NO EVENT SHALL THE MAXIMUM AMOUNT
14 PAID TO ATTORNEY AS REIMBURSEMENT OF RELATED, REASONABLE AND
15 NECESSARY OUT-OF-POCKET EXPENSES EXCEED $4,000 UNDER THIS
16 AGREEMENT.
17 4. Payment and Record-keeping: Subject to paragraph 3 of this Agreement,
18 payment of compensation for the services provided in connection with the TRAN Financing
19 Plan and reimbursement for related, reasonable and necessary, out-of-pocket expenses incurred
20 shall be made by COUNTY after submission of an itemized invoice by ATTORNEY to
21 County Counsel no later than the fifteenth (15th) day following the closing of such financing
22 plan. All payments of compensation and reimbursement for expenses incurred in connection
23 therewith shall be made by COUNTY no later than forty-five (45) days following the date that
24 COUNTY receives a properly completed invoice requesting the payment for such services
25 rendered and expenses incurred.
26 All such invoices shall reflect accurately the tasks performed by ATTORNEY under
27 this Agreement. In addition, all such invoices shall have sufficient detail as may be required by
13
FY 2015-2016 TRANs
Hawkins Agreement
COUNTY's Auditor-Controller/Treasurer-Tax Collector, including, but not limited to:
2
3 Agreement;
4
5
6
7
A.
B.
c.
D.
E.
The specific nature of each task performed as services under this
The name of the person performing each such task;
The number of hours worked by each such person for each such task;
The hourly rate per each such person performing each such task; and
The related, reasonable and necessary, out-of-pocket expenses incurred,
8 as provided for in paragraph 3 of this Agreement.
9 In addition to the requirements of this paragraph 4 of this Agreement, each invoice
10 shall set forth a summary of hours worked by each partner and associate lawyer, and paralegal,
11 for the applicable billing period. Furthermore, each such invoice shall set forth the product of
12 such summary of hours worked by each person multiplied by such person's billing rate, as set
13 forth herein (e.g., Mr. Becker's total hours worked = I 0 hours; Mr. Becker's hourly billing rate
14 is $548; I 0 hours x Mr. Becker's billing rate of $548 per hour= $5,480).
15 In preparing invoices, ATTORNEY shall segregate each task performed on a daily
16 basis. If requested by County Counsel, or his or her designee, ATTORNEY shall not combine
1 7 unrelated tasks as a single entry in lieu of setting forth the hours of work performed by a
18 partner, associate lawyer, or paralegal on each specific task.
19 ATTORNEY shall prepare its invoices in an organized manner that facilitates an
20 efficient review of the services performed and the expenses incurred in order to provide
21 COUNTY with a clear and complete understanding of how much time was devoted to specific
22 tasks and projects, and the cost associated therewith.
23 ATTORNEY shall keep complete records of the services provided, as described in this
24 paragraph 4 of this Agreement, together with all related reasonable and necessary, out-of-
25 pocket expenses applicable to the work provided under this Agreement. COUNTY's Auditor-
26 Controller/ Treasurer-Tax Collector, or his or her duly authorized representatives, shall be
27 given reasonable access to all of these records for the purposes of audit of this Agreement.
14
FY 2015-2016 TRANs
Hawkins Agreement
1 In addition, ATTORNEY shall be subject to the examination and audit of such records
2 by the Auditor General for a period of three (3) years after final payment under this Agreement
3 (Gov. Code, § 8546.7).
4 5. Term of Agreement: This Agreement shall be effective as of the date that it is
5 executed by both parties. This Agreement shall continue in full force and effect unless and
6 until it is terminated by either or both parties. Either party may terminate this Agreement at any
7 time, either in whole or in part. However, if ATTORNEY elects to terminate this Agreement,
8 COUNTY's rights under any pending matter which may arise from ATTORNEY's services
9 hereunder shall not be prejudiced due to such termination as required by the Rules of
10 Professional Conduct of the State Bar of California. Subject to paragraph 3 of this Agreement,
11 ATTORNEY shall be paid for all services performed to the date of termination of this
12 Agreement, which are done to the reasonable satisfaction of COUNTY.
13 6. Independent Contractor: In performance of the work, duties and obligations
14 assumed by ATTORNEY under this Agreement, it is mutually understood and agreed that
15 ATTORNEY, including any and all of ATTORNEY's officers, agents, and employees will at
16 all times be acting and performing as an independent contractor, and shall act in an
17 independent capacity and not as an officer, agent, servant, employee, joint venturer, partner, or
18 associate of COUNTY. Furthermore, COUNTY shall have no right to control or supervise or
19 direct the manner or method by which ATTORNEY shall perform its obligations under this
20 Agreement. However, COUNTY shall retain the right to administer this Agreement so as to
21 verify that ATTORNEY is performing its obligations in accordance with the terms and
22 conditions hereof. ATTORNEY and COUNTY shall comply with all applicable provisions of
23 law and the rules and regulations, if any, of governmental authorities having jurisdiction over
24 matters of the subject hereof.
25 Because of its status as an independent contractor, ATTORNEY shall have absolutely
26 no right to employment rights and benefits available to COUNTY employees. ATTORNEY
27 shall be solely liable and responsible for providing to, or on behalf of, its employees all legally-
15
FY 2015-2016 TRANs
Hawkins Agreement
1 required employee benefits. In addition, ATTORNEY shall be solely responsible and save
2 COUNTY harmless from all matters related to payment of ATTORNEY's employees,
3 including compliance with social security, withholding, and all other regulations governing
4 such matters. It is acknowledged that during the term of this Agreement, ATTORNEY may be
5 providing services to others unrelated to COUNTY or to this Agreement.
6 7. Hold Harmless: ATTORNEY shall hold COUNTY, its officers, agents, and
7 employees harmless and indemnify and defend COUNTY, its officers, agents, and employees
8 against payment of any and all costs and expenses (including attorney's fees and court cost),
9 claims, suits, losses, damages, and liability arising from or arising out of any actual or alleged
10 negligent or wrongful acts or omissions of ATTORNEY, including its partners, officers,
11 agents, and employees, in performing or failing to perform the services provided herein.
12 COUNTY's receipt of any insurance certificates required herein does not in any way relieve
13 the ATTORNEY from its obligations under this paragraph 7 of this Agreement.
14 The provisions of this paragraph 7 shall survive the termination of this Agreement.
15 8. Insurance: Without limiting COUNTY's rights under paragraph 7 of this
16 Agreement, or against any third parties, ATTORNEY, at its sole expense, shall maintain in full
17 force and effect the following insurance policies throughout the entire term of this Agreement:
18 A. A policy of professional liability insurance with limits of coverage of not
19 less than Ten Million and Noll 00 Dollars ($1 0,000,000.00) per covered event;
20 B. A policy of comprehensive general liability insurance with limits of
21 coverage of not less than One Million and Noll 00 Dollars ($1 ,000,000.00) per occurrence. The
22 policy of comprehensive general liability shall be written on a per occurrence basis. (Such
23 insurance shall include automobile insurance coverage, provided however, if ATTORNEY
24 maintains comprehensive general liability insurance that does not cover a loss in connection
25 with an automobile, ATTORNEY shall also obtain and maintain automobile liability insurance
26 coverage with limits of coverage of not less than One Hundred Thousand and N o/1 00 Dollars
27 ($100,000.00) per person and Three Hundred Thousand and NollOO Dollars ($300,000.00) per
16
FY 2015-2016 TRANs
Hawkins Agreement
1 occurrence and shall be written to cover all vehicles or owned and non-owned vehicles); and
2 C. A policy of workers compensation insurance as is required by the
3 California Labor Code, providing full statutory coverage.
4 All such insurance policies shall be issued by insurers who have at least an A.M. Best
5 rating of A, FSC VII (except for the Professional Liability Insurance policy, which shall be
6 issued by an insurer who has at least a Standard & Poor's and Fitch's rating of AA-because
7 the specialized carrier is fulfilling a need in a specialty market) and shall be acceptable to
8 COUNTY's Personnel Services Manager, Risk Management Division. In addition, the
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
comprehensive general1iability insurance policy (and the automobile liability insurance policy,
if such policy is at any time maintained separately from the comprehensive general liability
insurance policy) shall name COUNTY, its officers, agents, and employees, individually and
collectively, as additional insureds, but only insofar as the operations under this Agreement are
concerned. Such coverage for additional insureds shall apply as primary insurance and any
other insurance, or self-insurance, maintained by COUNTY, its officers, agents, and
employees, shall be excess only and not contributing with such insurance provided under
ATTORNEY's policies herein. This insurance shall not be canceled, reduced, or changed
without a minimum of thirty (30) calendar days advance, written notice given to County
Counsel (at the address for notices to County Counsel provided herein) and to COUNTY's
Personnel Services Manager, Risk Management Division at the following address:
Personnel Services Manager, Risk Management Division
COUNTY OF FRESNO
2220 Tulare Street, 16th Floor
Fresno, CA 93721
ATTORNEY shall provide to County Counsel a certificate of insurance for all the
foregoing policies and an endorsement to ATTORNEY's comprehensive general liability
insurance policy (and, to ATTORNEY's automobile liability insurance policy, if such policy is
at any time maintained separately from the comprehensive general liability insurance policy)
naming COUNTY as an additional insured, as stated above, which are acceptable to
17
FY 2015-2016 TRANs
Hawkins Agreement
1 COUNTY's Personnel Services Manager, Risk Management Division, evidencing proof of
2 such insurance coverages required herein prior to performing any services under this
3 Agreeml!nt.
4 In addition to its obligations set forth hereinabove, ATTORNEY agrees that it shall
5 maintain, at its sole expense, in full force and effect for a period of three (3) years following
6 the termination of this Agreement a policy of professional liability insurance with limits of
7 coverage of not less than Ten Million and Noll 00 Dollars ($1 0,000,000.00) per claim;
8 provided, however, in the event that ATTORNEY does not maintain such policy of insurance
9 for such entire three (3) year period, ATTORNEY shall maintain, at its sole expense, in full
1 0 force and effect extended claims reporting coverage insurance in lieu thereof in the amount of
11 not less than Ten Million and Noll 00 Dollars ($1 0,000,000.00).
12 If either the professional liability or comprehensive general liability insurance policies
13 (or, the automobile liability insurance policy, if such policy is at any time maintained
14 separately from the comprehensive general liability insurance policy) required to be
15 maintained pursuant to this paragraph 8 of this Agreement, or both (or all of them, as the case
16 may be), have a self-insured retention, such self-insured retentions shall be funded by
17 ATTORNEY and approved by COUNTY's Personnel Services Manager, Risk Management
18 Division.
19 The provisions of this paragraph 8 shall survive the termination of this Agreement.
20 9. Agreement is Binding Upon Successors: This Agreement shall be binding upon
21 COUNTY and ATTORNEY and their successors, executors, administrators, legal
22 representatives, and assigns with respect to all the covenants and conditions set forth herein.
23 10. Assignment and Subcontracting: Notwithstanding anything stated to the
24 contrary in paragraph 9 of this Agreement, neither party hereto shall assign, transfer, or sub-
25 contract this Agreement nor its rights or duties hereunder without the written consent of the
26 other.
27 11. Amendments: This Agreement may only be amended in writing signed by the
18
FY 2015-2016 TRANs
Hawkins Agreement
1 parties hereto.
2 12. Conflict of Interest: ATTORNEY promises, covenants, and warrants that, after
3 having performed a reasonable investigation, the performance of its services and representation
4 to COUNTY under this Agreement do not result in a "conflict of interest" as that term is used
5 in the Rules of Professional Conduct of the State Bar of California. In the event a "conflict of
6 interest" occurs, ATTORNEY will request COUNTY's Board of Supervisors to waive such
7 "conflict of interest" on a case-by-case basis.
8 13. Further Assurances by ATTORNEY: ATTORNEY represents that it has read
9 and is familiar with Government Code §§ 1090 et seq. and §§ 87100 et seq .. ATTORNEY
10 promises, covenants, and warrants that, after having performed a reasonable investigation, the
11 performance of its services under this Agreement shall not result in or cause a violation by it of
12 Government Code§§ 1090 et seq. and§§ 87100 et seq.
13 14. Compliance With Laws: ATTORNEY shall comply with all federal, state, and
14 local laws and regulations applicable to the performance of its obligations under this
15 Agreement.
16 15. Notices: The persons and their addresses having authority to give and receive
17 notices under this Agreement include the following:
18
19
20
21
COUNTY
County Counsel
COUNTY OF FRESNO
2220 Tulare Street,
5th Floor
Fresno, CA 93721
ATTORNEY
Arto C. Becker, Esq.
Hawkins Delafield & Wood, LLP
Wells Fargo Center
333 South Grand Avenue, Suite 3650
Los Angeles, CA 90071
22 Any and all notices between COUNTY and ATTORNEY provided for or permitted
23 under this Agreement or by law shall be in writing and shall be deemed duly served when
24 personally delivered to one of the parties, or in lieu of such personal service, when deposited in
25 the United States Mail, postage prepaid, addressed to such party. Any notices to be given or
26 provided for under this Agreement are not modifications or changes of this Agreement.
27 16. Venue and Governing Law: The parties agree that for purposes of venue,
19
FY 2015-2016 TRANs
Hawkins Agreement
1 performance under this Agreement is to be in Fresno County, California. The rights and
2 obligations of the parties and all interpretations and performance of this Agreement shall be
3 governed in all respects by the laws ofthe State of California.
4 17. Disclosure of Self-Dealing Transactions: This provision is only applicable if
5 ATTORNEY is operating as a corporation (a for-profit or non-profit corporation) or if during
6 the term of this Agreement, ATTORNEY changes its status to operate as a corporation.
7 Members of ATTORNEY's Board of Directors shall disclose any self-dealing
8 transactions that they are a party to while ATTORNEY is providing goods or performing
9 services under this Agreement. A self-dealing transaction shall mean a transaction to which
10 the ATTORNEY is a party and in which one or more of its directors has a material financial
11 interest. Members of the Board of Directors shall disclose any self-dealing transactions that
12 they are a party to by completing and signing a Self-Dealing Transaction Disclosure Form
13 (Exhibit A) and submitting it to COUNTY prior to commencing with the self-dealing
14 transaction or immediately thereafter.
15
16
17
18
19
20
21
22
23
24
25
26
27
18. Entire Agreement: This Agreement constitutes the entire agreement between
COUNTY and ATTORNEY with respect to the specialized legal services to be provided
herein and supersedes any previous agreement concerning the subject matter hereof,
negotiations, proposals, commitments, writings, or understandings of any nature whatsoever
unless expressly included in this Agreement.
If any part of this Agreement is found violative of any law or is found to be otherwise
legally defective, ATTORNEY and COUNTY shall use their best efforts to replace that part of
this Agreement with legal terms and conditions most readily approximating the original intent
ofthe parties.
[SIGNATURE PAGES FOLLOW]
20
FY 2015-2016 TRANs
Hawkins Agreement
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
4
5
6
7
8
9
10
11
12
13
14
15
16
ATTORNEY:
HAWKINS DELAFIELD & WOOD, LLP
By~L-~
Arto C. Becker, Esq.
Partner
COUNTY:
COUNTY OF FRESNO,
a political subdivision of the State of California
By MmJva.
Deborah A. Poochigian, Chai
Board of Supervisors
ATTEST:
BERNICE E. SEIDEL, Clerk
Board of Supervisors
.. , . . ::'-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
REVIEWED AND RECOMMENDED
FOR APPROVAL:
Byg~c~~-
Daniel C. Cederberg • }("'
County Counsel t/
APPROVED AS TO ACCOUNTING FORM:
VICKI CROW, C.P.A.,
AUDITOR-CONTROLLER/TREASURER-
TAX COLLECTOR
By ~,.-!L/...__
D_eputy G
APPROVED AS TO LEGAL FORM:
DANIEL C. CEDERBORG, COUNTY COUNSEL
By~#(
Deputy
ORG:
FUND:
ACCOUNT:
0710
0001
7295
SUBCLASS: 10000
Hawkins TRANs Agreement FY 2015-2016
22
FY 2015-2016 TRANs
Hawkins Agreement
SELF-DEAUNG TRANSACTION DISCLOSURE FORM
Exhibit A
Page 1 of2
In order to conduct business with the County of Fresno (hereinafter referred to as "County"),
members of a contractor's board of directors (hereinafter referred to as "County Contractor"), must
disclose any self-dealing transactions that they are a party to while providing goods, performing
services, or both for the County. A self-dealing transaction is defined below:
"A self-dealing transaction 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)
Exhibit A
Page 2 of2
(4} Explain why this self-dealing transaction is consistent with the requirements of Corporations Code 5233 (a)
(5} Authorized Signature
Signature: I Date:
I