HomeMy WebLinkAboutP-23-614 Agreement Brian C Leighton Law Office.pdf P-23-614
1 AGREEMENT FOR SPECIAL LEGAL SERVICES — APPEAL
2 This Agreement for Special Legal Services —Appeal ("Agreement") is made and
3 entered into this loth day of November, 2023, by and between the COUNTY OF
4 FRESNO, a political subdivision of the State of California ("COUNTY"), and, LAW
5 OFFICES OF BRIAN C. LEIGHTON ("ATTORNEY").
6 Recitals
7 A. COUNTY needs special legal services to prepare, file, and maintain an
8 appeal, in the Fifth District Court of Appeal, of the anticipated judgment of dismissal,
9 after the trial court sustained the County's demurrer with leave to amend, in County of
10 Fresno v. State of California, et al., Fresno County Superior Court, case number
11 23CECG01368 ("Action"), according to the terms of this Agreement.
12 B. COUNTY wishes to obtain special legal services, as authorized by
13 Government Code section 31000, to represent County in the Action.
14 C. ATTORNEY represents that it is specially trained and experienced, and
15 that it possesses such expertise and professional competence necessary to provide
16 special legal services under this Agreement.
17 D. Such special legal services are either not available or expected not to be
18 available in the COUNTY's Office of the County Counsel.
19 The parties therefore agree as follows:
20 1. Engagement of Attorney: COUNTY hereby engages ATTORNEY as an
21 independent contractor through the services of the following key person(s): Brian Clay
22 Leighton, and such other partners of and associate lawyers and staff members
23 employed by ATTORNEY as ATTORNEY deems necessary, and which COUNTY's
24 County Counsel ("County Counsel"), or his designee, approves pursuant to section 2 of
25 this AGREEMENT, except that the foregoing key persons may, from time to time,
26 consult with such of ATTORNEY's other lawyers on a "limited basis" (as hereinafter
27 defined) as ATTORNEY reasonably deems prudent and necessary under the
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1 circumstances. It is understood that ATTORNEY may not replace any of the
2 aforementioned key persons named above without the prior, express, written approval
3 of County Counsel, or his designee. In case of death, illness or other incapacity of any
4 of the foregoing key persons, ATTORNEY shall provide a replacement of at least equal
5 professional ability and experience as the key person replaced.
6 ATTORNEY may not represent any other parties to the Action in the Action, or in
7 connection with the subject matter of the Action, regardless of whether their interests
8 are aligned with those of the COUNTY.
9 2. Scope of Work: ATTORNEY shall perform special legal services to
10 represent COUNTY in the Action. ATTORNEY shall represent COUNTY in the Action
11 for services up to the maximum compensation payable under section 4 of this
12 Agreement, and in any case through the first phase of the Action. Upon mutual
13 agreement, for example if there is no motion attacking the any pleading, the parties may
14 amend this Agreement, as provided in section 11 of this Agreement, to increase the
15 maximum compensation payable under section 4 of this Agreement.
16 The parties expressly acknowledge that: if the Action is pending (a) when all
17 services up to the maximum compensation payable under section 4 of this Agreement,
18 including as this Agreement may be amended, or (b) when ATTORNEY may otherwise
19 wish to withdraw; then ATTORNEY is bound by California Rules of Professional
20 Conduct, rule 1.16(d), to take reasonable steps to avoid reasonably foreseeable
21 prejudice to the rights of the COUNTY, including giving the COUNTY sufficient notice to
22 permit the COUNTY to retain other counsel, and complying with the requirements of
23 rule 1.16(e).
24 In addition, from time to time, County counsel, or his designee, may request
25 ATTORNEY to perform additional special legal services on behalf of COUNTY in
26 connection with the Action. Upon County Counsel's, or his designee's, written request to
27 perform such services, ATTORNEY shall perform such services pursuant to the terms
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1 and conditions of this Agreement. Notwithstanding the foregoing provisions of this
2 section 2, in the event of exigent circumstances, County Counsel may make such
3 request orally, and County Counsel and ATTORNEY shall within a reasonable time
4 thereafter document such request for services and acknowledgment thereof.
5 3. Performance by Attorney: ATTORNEY agrees to timely perform all
6 services provided for under this Agreement. ATTORNEY agrees to avoid unnecessary
7 duplicative efforts on the part of ATTORNEY and ATTORNEY's partners, associate
8 lawyers, and staff members in ATTORNEY's performance of services for the COUNTY
9 hereunder.
10 COUNTY shall not be obligated to compensate ATTORNEY for intra-office
11 conferences between or among ATTORNEY's partners, associate lawyers, and staff
12 members, unless such intra-office conferences promote efficiency in the performance of
13 ATTORNEY's work on a matter, or a reduction in the cost of compensation paid or
14 reimbursement made for related, reasonable and necessary, out-of-pocket expenses to
15 ATTORNEY, or both. In the performance of the tasks identified in sections 1 and 2
16 under this Agreement, ATTORNEY shall provide only those services that are necessary
17 to carry out such tasks in an efficient and effective manner.
18 4. Compensation of Attorney: COUNTY shall compensate ATTORNEY
19 pursuant to the terms and conditions of this Agreement only for the performance of
20 special legal services to represent COUNTY in the Action, to the reasonable satisfaction
21 of COUNTY. It is understood that COUNTY is not obligated to compensate ATTORNEY
22 for any work, services, or functions performed by ATTORNEY: (i) in seeking to obtain
23 COUNTY's business or negotiating with COUNTY to enter into this Agreement or (ii) in
24 providing COUNTY with documentation, explanations, or justifications concerning the
25 adequacy or accuracy of its invoices for the performance of services under this
26 Agreement and resolving same to the reasonable satisfaction of COUNTY.
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1 COUNTY agrees to pay and ATTORNEY agrees to accept as full compensation
2 for performance of special legal services under this Agreement at the rate of$275 per
3 hour for services performed by licensed attorney.
4 In addition, ATTORNEY shall be reimbursed for the reasonable and necessary
5 out-of-pocket expenses, subject to the maximum compensation payable under this
6 Agreement. ATTORNEY shall not be reimbursed for normal office operating expenses,
7 with the exception of those charges and expenses stated above. In addition,
8 ATTORNEY shall not be reimbursed for such secretarial or clerical services performed
9 or expenses incurred, regardless of whether such tasks are performed or expenses are
10 incurred by ATTORNEY's partners, associate lawyers, or anyone else. Furthermore,
11 COUNTY shall not compensate ATTORNEY for work performed by paralegals where
12 such work ordinarily is performed by licensed attorneys, including legal research and
13 legal document drafting.
14 In no event shall the maximum amount paid to ATTORNEY as compensation for
15 ATTORNEY's services performed under this Agreement, and for ATTORNEY's
16 reasonable and necessary out-of-pocket expenses, exceed Twenty Thousand and
17 No/100 Dollars ($20,000), unless the parties agree to expand the scope of services
18 through written amendment. ATTORNEY shall not be paid for any services or costs
19 above this limit without a written modification of this Agreement executed by both
20 parties. Payment will not be made for any services performed or expenses incurred
21 prior to the effective date of this Agreement.
22 5. Payment and Recordkeeping: Subject to section 4 of this Agreement,
23 payment of compensation for the services provided under this Agreement and
24 reimbursement for reasonable and necessary out-of-pocket expenses shall be made by
25 COUNTY after submission of an itemized invoice by ATTORNEY to the County Counsel
26 no later than the thirtieth (30th) day following the end of the month in which such
27 services were rendered or expenses incurred. All payments of compensation and
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1 reimbursement for expenses incurred in connection therewith shall be made by
2 COUNTY no later than forty-five (45) days following the date that the COUNTY receives
3 a properly completed invoice requesting the payment for such services rendered and
4 expenses incurred.
5 All such invoices shall reflect accurately the tasks performed by ATTORNEY
6 under this Agreement. In addition, all such invoices shall have sufficient detail as may
7 be required by COUNTY, including, but not limited to:
8 A. The specific nature of each task performed as services under this
9 Agreement;
10 B. The name of the partner or associate lawyer performing each such task;
11 C. The number of hours worked by each such person for each such task;
12 D. The hourly rate per each such person performing each such task; and
13 E. The related, reasonable and necessary, out-of-pocket expenses incurred, as
14 provided for in section 4 of this Agreement.
15 In addition, each invoice shall set forth a summary of hours worked by each
16 partner and associate lawyer for the applicable billing period. Each such invoice shall
17 set forth the product of such summary of hours worked by each person multiplied by
18 such person's billing rate.
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
22 specific tasks and projects, and the cost associated therewith.
23 ATTORNEY shall keep complete records of the services provided, together with
24 all related reasonable and necessary, out-of-pocket expenses compensable under this
25 Agreement. COUNTY and the Fresno County Auditor-Controller/Treasurer-Tax
26 Collector shall be given reasonable access to all of these records for the purposes of
27 audit of this Agreement. In addition, ATTORNEY shall be subject to the examination
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1 and audit of such records by the Auditor General for a period of three (3) years after
2 final payment under this Agreement (Government Code section 8546.7).
3 6. Term of Agreement: This Agreement is effective as of March 14, 2023,
4 and shall continue in effect through the pendency of the Action, unless earlier
5 terminated hereunder by either or both parties. Either party may terminate this
6 Agreement in writing at any time, either in whole or in part. However, if ATTORNEY
7 elects to terminate this Agreement, COUNTY's rights under any pending matter which
8 may arise from ATTORNEY's services hereunder shall not be prejudiced due to such
9 termination as required by the Rules of Professional Conduct of the State Bar of
10 California. Subject to section 4 of this Agreement, ATTORNEY shall be paid for all
11 services performed to the date of termination of this Agreement, which are done to the
12 reasonable satisfaction of COUNTY.
13 7. Independent Contractor: In performance of the work, duties and
14 obligations assumed by ATTORNEY under this Agreement, it is mutually understood
15 and agreed that ATTORNEY, including any and all of ATTORNEY's officers, agents,
16 and employees will at all times be acting and performing as an independent contractor,
17 and shall act in an independent capacity and not as an officer, agent, servant,
18 employee, joint venture, partner, or associate of COUNTY. Furthermore, COUNTY shall
19 have no right to control, supervise, or direct the manner or method by which
20 ATTORNEY shall perform its obligations under this Agreement. However, COUNTY
21 shall retain the right to administer this Agreement so as to verify that ATTORNEY is
22 performing its obligations in accordance with the terms and conditions hereof.
23 ATTORNEY and COUNTY shall comply with all applicable provisions of law and the
24 rules and regulations, if any, of governmental authorities having jurisdiction over matters
25 of the subject hereof.
26 Because of its status as an independent contractor, ATTORNEY shall have
27 absolutely no right to employment rights and benefits available to COUNTY employees.
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1 ATTORNEY shall be solely liable and responsible for providing to, or on behalf of, its
2 employees all legally-required employee benefits. In addition, ATTORNEY shall be
3 solely responsible and save COUNTY harmless from all matters related to payment of
4 ATTORNEY's employees, including compliance with social security, withholding, and all
5 other regulations governing such matters. It is acknowledged that during the term of this
6 Agreement, ATTORNEY may be providing services to others unrelated to COUNTY or
7 to this Agreement.
8 8. Hold Harmless: ATTORNEY shall hold COUNTY, its officers, agents, and
9 employees harmless and indemnify and defend COUNTY, its officers, agents and
10 employees against payment of any and all costs and expenses (to include legal fees
11 and court costs), claims, suits, losses, damages and liability occurring or resulting to
12 COUNTY in connection with the performance, or failure to perform, by ATTORNEY, its
13 officers, agents, or employees under this Agreement, and from any and all costs and
14 expenses (including attorney's fees and costs), damages, liabilities, claims, and losses
15 occurring or resulting to any person, firm, or corporation who may be injured or
16 damaged by the performance, or failure to perform, of ATTORNEY, its officers, agents,
17 or employees under this Agreement. COUNTY's receipt of any insurance certificates
18 required herein does not in any way relieve the ATTORNEY from its obligations under
19 this section 8 of this Agreement.
20 9. Agreement is Binding on Successors: This Agreement shall be binding
21 upon COUNTY and ATTORNEY and their successors, executors, administrators, legal
22 representatives and assigns with respect to all the covenants and conditions set forth
23 herein.
24 10. Assignment and Subcontracting: Notwithstanding anything stated to the
25 contrary in section 9 of this Agreement, neither party hereto shall assign, transfer, or
26 sub-contract this Agreement nor its rights or duties hereunder without the written
27 consent of the other.
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1 11. Amendments: This Agreement may only be amended in writing signed by
2 the parties hereto.
3 12. Conflict of Interest: ATTORNEY promises, covenants, and warrants that,
4 after having performed a reasonable investigation, the performance of its services and
5 representation to COUNTY under this Agreement do not result in a conflict of interest as
6 that term is used in the Rules of Professional Conduct of the State Bar of California. In
7 the event a conflict of interest occurs, ATTORNEY will request COUNTY's Board of
8 Supervisors to waive such conflict of interest on a case-by-case basis.
9 13. Further Assurances bV Attorney: ATTORNEY represents that it has read
10 and is familiar with Government Code section 1090 et seq. and 87100 et seq.
11 ATTORNEY promises, covenants, and warrants that, after having performed a
12 reasonable investigation, the performance of its services under this Agreement shall not
13 result in or cause a violation by it of Government Code section 1090 et seq. and 87100
14 et seq.
15 14. Compliance with Laws: ATTORNEY shall comply with all federal, state,
16 and local laws and regulations applicable to the performance of its obligations under this
17 Agreement.
18 15. Audits and Inspections: ATTORNEY shall at any time during business
19 hours, and as often as the COUNTY may deem necessary, make available to the
20 COUNTY for examination all of its records and data with respect to the matters covered
21 by this Agreement. ATTORNEY shall, upon request by the COUNTY, permit the
22 COUNTY to audit and inspect all of such records and date necessary to ensure
23 ATTORNEY's compliance with the terms of this Agreement.
24 16. Notices: The persons and their addresses having authority to give and
25 receive notices under this Agreement include the following:
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1 COUNTY ATTORNEY
2 Daniel C. Cederborg Brian C. Leighton
County Counsel Law Offices of Brian C. Leighton
3 Fresno County Counsel's Office P.O. Box 1323
4 2220 Tulare Street, Suite 500 Clovis, CA 93613-1323
Fresno, CA 93721
5 For courier or overnight service:
6 Brian C. Leighton
2221 Jordan Avenue
7 Clovis CA 93611
8 All notices between the COUNTY and ATTORNEY provided for or permitted under this
9 Agreement must be in writing and delivered either by personal service, by first-class
10 United States mail, by an overnight commercial courier service, or by telephonic
11 facsimile transmission. A notice delivered by personal service is effective upon service
12 to the recipient. A notice delivered by first-class United States mail is effective three
13 COUNTY business days after deposit in the United States mail, postage prepaid,
14 addressed to the recipient. A notice delivered by an overnight commercial courier
15 service is effective one COUNTY business day after deposit with the overnight
16 commercial courier service, delivery fees prepaid, with delivery instructions given for
17 next day delivery, addressed to the recipient. A notice delivered by telephonic facsimile
18 is effective when transmission to the recipient is completed (but, if such transmission is
19 completed outside of COUNTY business hours, then such delivery shall be deemed to
20 be effective at the next beginning of a COUNTY business day), provided that the sender
21 maintains a machine record of the completed transmission. For all claims arising out of
22 or related to this Agreement, nothing in this section 16 establishes, waives, or modifies
23 any claims presentation requirements or procedures provided by laws, including but not
24 limited to the Government Claims Act (Division 3.6 of Title 1 of the Government Code,
25 beginning with section 810).
26 17. Venue and Governing Law: The parties agree that, for purposes of venue,
27 performance under this Agreement is to be in Fresno County, California. The rights and
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1 obligations of the parties and all interpretations and performance of this Agreement shall
2 be governed in all respects by the laws of the State of California.
3 18. Disclosure of Self-Dealing Transactions: This provision is only applicable if
4 ATTORNEY is operating as a corporation (a for-profit or non-profit corporation) or if
5 during the term of this Agreement, ATTORNEY changes its status to operate as a
6 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
10 which ATTORNEY is a party and in which one or more of its directors has a material
11 financial interest. Members of the Board of Directors shall disclose any self-dealing
12 transactions that they are a party to by completing and signing a Self-Dealing
13 Transaction Disclosure Form, attached hereto as Attachment B and by this reference
14 incorporated herein, and submitting it to COUNTY prior to commencing with the self-
15 dealing transaction or immediately thereafter.
16 19. Entire Agreement: This Agreement constitutes the entire agreement
17 between COUNTY and ATTORNEY with respect to the special legal services to be
18 provided herein and supersedes any previous agreement concerning the subject matter
19 hereof, negotiations, proposals, commitments, writings, or understandings of any nature
20 whatsoever unless expressly included in this Agreement. If any part of this Agreement is
21 found violative of any law or is found to be otherwise legally defective, ATTORNEY and
22 COUNTY shall use their best efforts to replace that part of this Agreement with legal
23 terms and conditions most readily approximating the original intent of the parties.
24 20. Counterparts: This Agreement may be executed in one or more
25 counterparts, each of which when executed shall be deemed to be an original, and such
26 counterparts shall together constitute one and the same instrument.
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1 21. Electronic Signatures: The parties agree that this Agreement may be
2 executed by electronic signature as provided in this section. An "electronic signature"
3 means any symbol or process intended by an individual signing this Agreement to
4 represent their signature, including but not limited to (1) a digital signature; (2) a faxed
5 version of an original handwritten signature; or (3) an electronically scanned and
6 transmitted (for example by PDF document) version of a handwritten signature. Each
7 electronic signature affixed or attached to this Agreement (1) is deemed equivalent to a
8 valid original handwritten signature of the person signing this Agreement for all
9 purposes, including but not limited to evidentiary proof in any administrative or judicial
10 proceeding, and (2) has the same force and effect as the valid original handwritten
11 signature of that person. The provisions of this section satisfy the requirements of Civil
12 Code section 1633.5, subdivision (b), in the Uniform Electronic Transaction Act (Civil
13 Code, Division 3, Part 2, Title 2.5, beginning with section 1633.1). Each party using a
14 digital signature represents that it has undertaken and satisfied the requirements of
15 Government Code section 16.5, subdivision (a), paragraphs (1) through (5), and agrees
16 that each other party may rely upon that representation. This Agreement is not
17 conditioned upon the parties conducting the transactions under it by electronic means
18 and either party may sign this Agreement with an original handwritten signature.
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1 IN WITNESS WHEREOF, the parties hereto have executed this
2 Agreement as of the day and year first hereinabove written.
3 LAW OFFICES OF COUNTY OF FRESNO
BRIAN C. LEIGHTON
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5
By - c• By
7 Manuel Vilanova
Brian C. Leighton,
8 Partner Purchasing Agent
9 The County of Fresno
10
11 For Accounting Use Only:
12 Org: 2 10 Da iel C. Cederborg
Account No.: 7295 ounty Counsel, County of Fresno
13 Requisition No.:
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