HomeMy WebLinkAboutP-24-093 Downey Brand LLP.pdf P-24-093
1 AGREEMENT FOR SPECIALIZED LEGAL SERVICES
2 Between the County of Fresno and Downey Brand, LLP
3
4 This Agreement for Specialized Legal Services ("Agreement") by and between the
5 COUNTY OF FRESNO ("County"), a political subdivision of the State of California, and the law
6 firm of Downey Brand, LLP ("Law Firm") is made this 10 day of January, 2024 ("Execution
7 Date"). County and Law Firm may be referred to herein collectively as the "Parties" and
8 individually as a "Party."
9 Recitals
10 A. On April 1, 2021, County engaged the Thomas Law Group ("TLG") as outside counsel
11 to provide specialized legal services to County in connection with California
12 Environmental Quality Act ("CEQA") matters related to the Kamm Avenue pistachio
13 processing plant, as more fully described in County Agreement No. P-21-129, which
14 agreement was amended in May of 2021. Collectively, County Agreement No.
15 P-21-129 and its above-referenced amendment are referred to herein as the
16 "Original Agreement." A true and correct copy of the Original Agreement is attached
17 hereto as Exhibit A, and is incorporated herein by this reference.
18 B. TLG provided services to the County under the Original Agreement, primarily through its
19 proprietor, Tina Tomas, Esq.
20 C. Under the terms of the Original Agreement, it terminated on December 31, 2023.
21 D. On January 1, 2023 ("Acquisition Date"), Law Firm acquired TLG, which has ceased to
22 exist as an independent entity following the merger. As part of the merger, Ms. Thomas
23 became of counsel with Law Firm, and other employees of TLG were hired by Law
24 Firm. Following the Acquisition Date, Law Firm, primarily through Ms. Thomas and other
25 former TLG attorneys, has performed work under the Original Agreement as successor-
26 in-interest to TLG.
27 E. Although Law Firm has billed County for the work performed by Law Firm, as
28 successor-in-interest, County has not been able to pay Law Firm, as County has no
Agreement for Specialized Legal Services (Downey)
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4058981.1
1 existing contractual relationship with Law Firm. The Original Agreement with TLG was
2 not assignable to Law Firm without the written authorization of the County's Purchasing
3 Agent, which did not occur prior to the expiration of the Original Agreement.
4 F. Outstanding invoices from Law Firm to County amount to $10,207.50.
5 G. Law Firm is ready, willing, and able to provide to County the legal services
6 contemplated by the Original Agreement.
7 H. The Parties believe it is necessary and desirable to formalize the relationship between
8 Law Firm and County to allow payment to Law Firm for services already rendered and
9 to permit Law Firm to continue advising the County on the ongoing Kamm Avenue
10 pistachio project.
11 Agreement
12 In consideration of the mutual covenants, terms, and conditions herein described, the
13 Parties hereto agree as follows:
14 1. Notwithstanding anything to the contrary in the Original Agreement, the Original
15 Agreement is incorporated herein as though its terms and conditions are fully set forth
16 below, and together with the terms and conditions set forth below, constitute the entire
17 agreement and understanding between Law Firm and County concerning the subject
18 matter hereof for the term hereof, and supersede all previous negotiations, proposals,
19 commitments, writings, advertisements, publications and understandings of any nature
20 whatsoever unless expressly included in and modified by this Agreement.
21 2. Law Firm agrees to be bound, upon the Acquisition Date and at all times continuing
22 thereafter, until the termination of this Agreement, by each and every term and condition
23 of the Original Agreement, as successor-in-interest to TLG.
24 3. Upon the Acquisition Date and at all times continuing thereafter until the termination of
25 this Agreement, Law Firm agrees to each and every term and condition of the Original
26 Agreement, in its entirety, and to perform each and every one of TLG's obligations and
27 duties under the Original Agreement, it its entirety, as though Law Firm was the
28 signatory party to the Original Agreement, in lieu of TLG.
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4058981.1
1 4. UNLESS THIS AGREEMENT IS AMENDED AS PROVIDED IN SECTION XI OF THE
2 ORIGINAL AGREEMENT, IN NO EVENT SHALL THE MAXIMUM AMOUNT PAID TO
3 ATTORNEY AS COMPENSATION FOR ATTORNEY'S SERVICES PERFORMED
4 HEREUNDER, UNDER THE ORIGINAL AGREEMENT, AND AS REIMBURSEMENT
5 OF RELATED REASONABLE AND NECESSARY, OUT-OF-POCKET EXPENSES
6 EXCEED TWO-HUNDRED THOUSAND DOLLARS ($200,000.00).
7 5. The term of this Agreement shall commence upon the Acquisition Date, and shall
8 continue in full force and effect through December 31, 2025. This Agreement shall
9 automatically renew, upon the same terms and conditions set forth herein, for two (2)
10 additional one (1) year terms, provided however, it may be terminated by either or both
11 of the Parties according to the terms and conditions of the Original Agreement.
12 6. Because this Agreement is effective retroactive to October 8, 2023, any services that
13 have been performed, and for which compensation or reimbursement of expenses has
14 been paid, prior to the execution of this Agreement are hereby approved and ratified by
15 the parties. Except as modified herein, the terms and conditions of the Original
16 Agreement are ratified and restated herein in full, and all remaining terms and
17 conditions contained in the Original Agreement, that are not modified herein, shall
18 remain in full force and effect during the term of this Agreement.
19 7. Notwithstanding anything to the in the Original Agreement, beginning on the date of
20 Execution Date of this Agreement, Law Firm's address for receiving written notice shall
21 be as follows:
22 Downey Brand, LLP
621 Capitol Mall, 18t" Floor
23 Sacramento, CA 95814
24 8. Law Firm shall assign only competent personnel to perform services pursuant to this
25 Agreement. In the event that County, in its sole discretion, at any time during the term of
26 this Agreement, desires the reassignment of any such persons, Law Firm shall,
27 immediately upon receiving written notice from County of such desire of County,
28
Agreement for Specialized Legal Services (Downey)
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4058981.1
1 reassign any such persons. Notwithstanding anything to the contrary in the Original
2 Agreement, Law Firm designates Tina Thomas, Esq. as the primary contact.
3 9. Each Party represents and warrants to the other Party that such Party is duly authorized
4 and empowered to execute, enter into, and perform its obligations set forth in this
5 Agreement, and that the individual signing this Agreement on behalf of such Party has
6 been duly authorized to execute this Agreement on behalf of such Party, and will, by
7 signing this Agreement on such Party's behalf, legally bind such Party to the terms,
8 covenants, and conditions of this Agreement. Each Party further represents and
9 warrants to the other Party that no other person or entity is required to give its approval
10 or consent to this Agreement in order for such Party to authorize, enter into, and
11 perform its obligations under this Agreement, or that if such approval or consent to this
12 Agreement is required, that such approval or consent has been obtained.
13 10. This Agreement may be executed in two or more counterparts, each of which shall be
14 deemed to be an original, and all of which taken together shall constitute one and the
15 same instrument.
16 11. The Parties agree that this Agreement may be executed by electronic signature as
17 provided in this section.
18 a. An "electronic signature" means any symbol or process intended by an
19 individual signing this Agreement to represent their signature, including but
20 not limited to (1) a digital signature; (2) a faxed version of an original
21 handwritten signature; or (3) an electronically scanned and transmitted (for
22 example by PDF document) version of an original handwritten signature.
23 b. Each electronic signature affixed or attached to this Agreement (1) is deemed
24 equivalent to a valid original handwritten signature of the person signing this
25 Agreement for all purposes, including but not limited to evidentiary proof in
26 any administrative or judicial proceeding, and (2) has the same force and
27 effect as the valid original handwritten signature of that person.
28
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4058981.1
1 c. The provisions of this section satisfy the requirements of Civil Code section
2 1633.5, subdivision (b), in the Uniform Electronic Transaction Act (Civil Code,
3 Division 3, Part 2, Title 2.5, beginning with section 1633.1).
4 d. Each Party using a digital signature represents that it has undertaken and
5 satisfied the requirements of Government Code section 16.5, subdivision (a),
6 paragraphs (1) through (5), and agrees that each other Party may rely upon
7 that representation.
8 e. This Agreement is not conditioned upon the Parties conducting the
9 transactions under it by electronic means and either Party may sign this
10 Agreement with an original handwritten signature.
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12 (Signature page follows.)
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Agreement for Specialized Legal Services (Downey)
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4058981.1
1 The Parties are signing this Agreement on the date stated in the introductory clause.
2
3 DOWNEY BRAND, LLP COUNTY OF FRESNO
4
5 Manuel M. M.Vilanova
signed by Manuel
M.Vilanova
6 y y Vilanova D:53:1 -08'0 '
B B 13:5319-08'00'
Tina Thomas, Manuel Vilanova,
7 Of Counsel ISD Deputy Director
8
9 Reviewed as to legal form and
recommended for approval:
10
DANIEL C. CEDERBORG
11 County Counsel
12
13 Byi� u ��
County Counsel
14
15
16
17
18
19
20
21 For Accounting Use Only:
22 Org: 43600200
Account No.: 7295
23 Requisition No.:
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Agreement for Specialized Legal Services (Downey)
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4058981.1
P-24-093
ATTACHMENT A
P-24-093 Attachment A
P-21-129
1 AGREEMENT FOR SPECIALIZED LEGAL SERVICES
2 THIS AGREEMENT is made effective April 1, 2021, by and between the
3 COUNTY OF FRESNO, a political subdivision of the State of California, hereinafter
4 referred to as "COUNTY," and Thomas Law Group, hereinafter referred to as
5 "ATTORNEY."
6 WITNESSETH
7 WHEREAS, COUNTY has need of expert legal advice and services in
8 representing the County of Fresno in CEQA matters related to the Kamm Avenue
9 pistachio processing plant here in the County of Fresno, including assisting with CEQA
10 compliance such as response to comments, compilation of FEIR and potentially
11 hearings before Planning Commission and City Council; and
12 WHEREAS, COUNTY wishes to obtain specialized services, as authorized by
13 Government Code section 31000, to represent the County of Fresno in this matter; and
14 WHEREAS, ATTORNEY represents that it is specially trained and experienced,
15 and the it possesses such expertise; and
16 WEHREAS, such specialized legal services are either not available or expected
17 not to be available in Fresno County's Office of the County Counsel.
18 NOW THEREFORE, in consideration of the mutual covenants, terms, and
19 conditions herein described, the parties hereto agree as follows:
20 SECTION 1
21 ENGAGEMENT OF ATTORNEY
22 COUNTY hereby engages ATTORNEY as an independent contractor through the
23 services of the following key person(s): Tina A. Thomas, and such other partners of
24 and associate lawyers as set forth in Attachment A, as well as such other partners of
25 and associate lawyers and staff members employed by ATTORNEY as ATTORNEY
26 deems necessary, and which COUNTY's County Counsel ("County Counsel"), or his
27 designee, approves pursuant to paragraph 3 of this Agreement, except that the
28
P-24-093 Attachment A
P-21-129
1 foregoing key persons may, from time to time, consult with such of ATTORNEY's other
2 lawyers on a "limited basis" (as hereinafter defined) as ATTORNEY reasonably deems
3 prudent and necessary under the circumstances. It is understood that ATTORNEY may
4 not replace any of the aforementioned key persons named above without the prior,
5 express, written approval of County Counsel, or his designee. In case of death, illness
6 or other incapacity of any of the foregoing key persons, ATTORNEY shall provide a
7 replacement of at least equal professional ability and experience as the key person
8 replaced.
9 ATTORNEY shall perform specialized legal services in connection with CEQA
10 matters related to the Kamm Avenue pistachio processing plant here in the County of
11 Fresno, including assisting with CEQA compliance such as response to comments,
12 compilation of FEIR and potentially hearings before Planning Commission and City
13 Council. In addition, from time to time, County counsel, or his designee, may request
14 ATTORNEY to perform additional specialized legal services on behalf of COUNTY.
15 Upon County Counsel's, or his designee's, written request to perform such services,
16 ATTORNEY shall perform such services pursuant to the terms and conditions of this
17 Agreement. Notwithstanding the foregoing provisions of this paragraph, in the event of
18 exigent circumstances, County Counsel may make such request orally, and County
19 Counsel and ATTORNEY shall within a reasonable time thereafter document such
20 request for services and acknowledgment thereof.
21 SECTION II
22 PERFORMANCE BY ATTORNEY
23 ATTORNEY agrees to timely perform all services provided for under this
24 Agreement. ATTORNEY agrees to avoid unnecessary duplicative efforts on the part of
25 ATTORNEY and ATTORNEY's partners, associate lawyers, and staff members in
26 ATTORNEY's performance of services for the COUNTY hereunder.
27
28
-2-
P-24-093 Attachment A
P-21-129
1 COUNTY shall not be obligated to compensate ATTORNEY for intra-office
2 conferences between or among ATTORNEY's partners, associate lawyers, and staff
3 members, unless such intra-office conferences promote efficiency in the performance of
4 ATTORNEY's work on a matter, or a reduction in the cost of compensation paid or
5 reimbursement made for related, reasonable and necessary, out-of-pocket expenses to
6 ATTORNEY, or both. In the performance of the tasks identified in paragraph 1 under
7 this Agreement, ATTORNEY shall provide only those services that are necessary to
8 carry out such tasks in an efficient and effective manner.
9 III
10 COMPENSATION OF ATTORNEY
11 COUNTY shall be obligated to compensate ATTORNEY pursuant to the terms
12 and conditions of this Agreement only for the performance of those tasks, to the
13 reasonable satisfaction of COUNTY, which are related to the subject matter of this
14 Agreement. It is understood that COUNTY shall not be obligated to compensate
15 ATTORNEY for any work, services, or functions performed by ATTORNEYS: (i) in
16 seeking to obtain COUNTY's business or negotiating with COUNTY to enter into this
17 Agreement or (ii) in providing COUNTY with documentation, explanations, or
18 justifications concerning the adequacy or accuracy of its invoices for the performance of
19 services under this Agreement and resolving same to the reasonable satisfaction of
20 COUNTY.
21 COUNTY agrees to pay and ATTORNEY agrees to accept as full compensation
22 for performance of tasks under this Agreement the sums per hour per person as set
23 forth in Attachment A, attached hereto and incorporated herein by this reference.
24 In addition, ATTORNEY shall be reimbursed for reasonable and necessary out-
25 of-pocket expenses, as follows: telephone charges, telephonic facsimile transmission
26 charges, computer research charges, filing fees, courier charges, postage charges,
27 printing and photographic reproduction expenses, in-State travel, and all such directly
28
-3-
P-24-093 Attachment A
P-21-129
1 related expenses. It is understood that ATTORNEY shall not be reimbursed for its
2 secretarial or clerical services (including overtime hours worked), or normal office
3 operating expenses, with the exception of those charges and expenses stated above.
4 In addition, ATTORNEY shall not be reimbursed for such secretarial or clerical services
5 performed or expenses incurred, regardless of whether such tasks are performed or
6 expenses are incurred by ATTORNEY's partners, associate lawyers, or anyone else.
7 Furthermore, COUNTY shall not compensate ATTORNEY for work performed by
8 paralegals where such work ordinarily is performed by licensed attorneys, including
9 legal research and legal document drafting.
10 In no event shall the maximum amount paid to ATTORNEY as compensation for
11 ATTORNEY's services performed under this Agreement exceed Seven-Fifty Thousand
12 and No/100 Dollars ($75,000.00), unless the parties agree to expand the scope of
13 services through written amendment. ATTORNEY shall not be paid for any services or
14 costs above this limit without a written modification of this Agreement executed by both
15 parties.
16 IV.
17 PAYMENT AND RECORD-KEEPING
18 Subject to paragraph 3 of this Agreement, payment of compensation for the
19 services provided under this Agreement and reimbursement for related, reasonable and
20 necessary out-of-pocket expenses incurred shall be made by COUNTY after
21 submission of an itemized invoice by ATTORNEY to the County Counsel no later than
22 the thirtieth (30t") day following the end of the month in which such services were
23 rendered or expenses incurred. All payments of compensation and reimbursement for
24 expenses incurred in connection therewith shall be made by COUNTY no later than
25 forty-five (45) days following the date that the COUNTY receives a properly completed
26 invoice requesting the payment for such services rendered and expenses incurred.
27
28
-4-
P-24-093 Attachment A
P-21-129
1 All such invoices shall reflect accurately the tasks performed by ATTORNEY
2 under this Agreement. In addition, all such invoices shall have sufficient detail as may
3 be required by COUNTY, including, but not limited to:
4 A. The specific nature of each task performed as services under this
5 Agreement;
6 B. The name of the partner or associate lawyer performing each such task;
7 C. The number of hours worked by each such person for each such task;
8 D. The hourly rate per each such person performing each such task; and
9 E. The related, reasonable and necessary, out-of-pocket expenses incurred, as
10 provided for in paragraph 3 of this Agreement.
11 In addition, each invoice shall set forth a summary of hours worked by each
12 partner and associate lawyer for the applicable billing period. Each such invoice shall
13 set forth the product of such summary of hours worked by each person multiplied by
14 such person's billing rate.
15 ATTORNEY shall prepare its invoices in an organized manner that facilitates an
16 efficient review of the services performed and the expenses incurred in order to provide
17 COUNTY with a clear and complete understanding of how much time was devoted to
18 specific tasks and projects, and the cost associated therewith.
19 ATTORNEY shall keep complete records of the services provided, together with
20 all related reasonable and necessary, out-of-pocket expenses. COUNTY and the
21 Fresno County Auditor-Controller/Treasurer-Tax Collector shall be given reasonable
22 access to all of these records for the purposes of audit of this Agreement. In addition,
23 ATTORNEY shall be subject to the examination and audit of such records by the
24 Auditor General for a period of three (3) years after final payment under this Agreement
25 (Gov. Code section 8546.7).
26
27
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P-24-093 Attachment A
P-21-129
1 V
2 TERM OF AGREEMENT
3 This Agreement is effective April 1, 2021 and shall continue in effect through
4 December 31, 2023, unless earlier terminated hereunder by either or both parties.
5 Either party may terminate this Agreement in writing at any time, either in whole or in
6 part. However, if ATTORNEY elects to terminate this Agreement, COUNTY's rights
7 under any pending matter which may arise from ATTORNEY's services hereunder shall
8 not be prejudiced due to such termination as required by the Rules of Professional
9 Conduct of the State Bar of California. Subject to paragraph 3 of this Agreement,
10 ATTORNEY shall be paid for all services performed to the date of termination of this
11 Agreement, which are done to the reasonable satisfaction of COUNTY.
12 VI
13 INDEPENDENT CONTRACTOR
14 In performance of the work, duties and obligations assumed by ATTORNEY
15 under this Agreement, it is mutually understood and agreed that ATTORNEY, including
16 any and all of ATTORNEY's officers, agents, and employees will at all times be acting
17 and performing as an independent contractor, and shall act in an independent capacity
18 and not as an officer, agent, servant, employee, joint venture, partner, or associate of
19 COUNTY. Furthermore, COUNTY shall have no right to control, supervise, or direct the
20 manner or method by which ATTORNEY shall perform its obligations under this
21 Agreement. However, COUNTY shall retain the right to administer this Agreement so
22 as to verify that ATTORNEY is performing its obligations in accordance with the terms
23 and conditions hereof. ATTORNEY and COUNTY shall comply with all applicable
24 provisions of law and the rules and regulations, if any, of governmental authorities
25 having jurisdiction over matters of the subject hereof.
26 Because of its status as an independent contractor, ATTORNEY shall have
27 absolutely no right to employment rights and benefits available to COUNTY employees.
28
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P-24-093 Attachment A
P-21-129
1 ATTORNEY shall be solely liable and responsible for providing to, or on behalf of, its
2 employees all legally-required employee benefits. In addition, ATTORNEY shall be
3 solely responsible and save COUNTY harmless from all matters related to payment of
4 ATTORNEY's employees, including compliance with social security, withholding, and all
5 other regulations governing such matters. It is acknowledged that during the term of
6 this Agreement, ATTORNEY may be providing services to others unrelated to COUNTY
7 or to this Agreement.
8 VII
9 HOLD HARMLESS
10 ATTORNEY shall hold COUNTY, its officers, agents, and employees harmless
11 and indemnify and defend COUNTY, its officers, agents and employees against
12 payment of any and all costs and expenses (to include legal fees and court costs),
13 claims, suits, losses, damages and liability occurring or resulting to COUNTY in
14 connection with the performance, or failure to perform, by ATTORNEY, its officers,
15 agents, or employees under this Agreement, and from any and all costs and expenses
16 (including attorney's fees and costs), damages, liabilities, claims, and losses occurring
17 or resulting to any person, firm, or corporation who may be injured or damaged by the
18 performance, or failure to perform, of ATTORNEY, its officers, agents, or employees
19 under this Agreement. COUNTY's receipt of any insurance certificates required herein
20 does not in any way relieve the ATTORNEY from its obligations under this paragraph 7
21 of this Agreement.
22 VIII
23 INSURANCE
24 Without limiting COUNTY's rights under paragraph 7 of this Agreement, or
25 against any third parties, ATTORNEY, at its sole expense, shall maintain in full force
26 and effect the following insurance policies throughout the entire term of this Agreement:
27
28
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P-24-093 Attachment A
P-21-129
1 A. Professional Liability Insurance with limits of not less than One Million
2 Dollars ($1,000,000) per occurrence, Three Million Dollars ($3,000,000) annual
3 aggregate;
4 B. Comprehensive General Liability Insurance with limits of not less than
5 Two Million Dollars ($2,000,000) per occurrence and an annual aggregate of Four
6 Million Dollars ($4,000,000). This policy shall be issued on a per occurrence basis.
7 COUNTY may require specific coverages including completed operations, products
8 liability, contractual liability, Explosion-Collapse-Underground, fire legal liability or any
9 other liability insurance deemed necessary because of the nature of this Agreement;
10 C. Comprehensive Automobile Liability Insurance with limits of not less
11 than One Million Dollars ($1,000,000) per accident for bodily injury and for property
12 damages. Coverage should include any auto used in connection with this Agreement;
13 and
14 D. A policy of workers compensation insurance as may be required by the
15 California Labor Code.
16 ATTORNEY shall obtain endorsements to the Commercial General Liability
17 insurance naming the County of Fresno, its officers, agents, and employees, individually
18 and collectively, as additional insured, but only insofar as the operations under this
19 Agreement are concerned. Such coverage for additional insured shall apply as primary
20 insurance and any other insurance, or self-insurance, maintained by COUNTY, its
21 officers, agents and employees shall be excess only and not contributing with insurance
22 provided under ATTORNEY's policies herein. This insurance shall not be cancelled or
23 changed without a minimum of thirty (30) days advance written notice given to
24 COUNTY.
25 Within Thirty (30) days from the date ATTORNEY signs and executes this
26 Agreement, ATTORNEY shall provide certificates of insurance and endorsement as
27 stated above for all of the foregoing policies, as required herein, to the County of
28
-8-
P-24-093 Attachment A
P-21-129
1 Fresno, County Counsel's Office, Attn: Alma R. Navarro, 2220 Tulare Street, Suite 500,
2 Fresno, California, 93721, stating that such insurance coverage has been obtained and
3 are in full force; that the COUNTY, its officers, agents and employees will not be
4 responsible for any premiums on the policies; that for such worker's compensation
5 insurance the ATTORNEY has waived its right to recover from the COUNTY, its
6 officers, agents, and employees any amounts paid under the insurance policy and that
7 waiver does not invalidate the insurance policy; that such Commercial General Liability
8 insurance names the COUNTY, is officers, agents and employees, individually and
9 collectively, as additional insured, but only insofar as the operations under this
10 Agreement are concerned; that such coverage for additional insured shall apply as
11 primary insurance and any other insurance, or self-insurance, maintained by COUNTY,
12 its officers, agents and employees, shall be excess only and not contributing with
13 insurance provided under ATTORNEY's policies herein, and that this insurance shall
14 not be cancelled or changed without a minimum of thirty (30) days advance, written
15 notice given to COUNTY.
16 In the event ATTORNEY fails to keep in effect at all times insurance coverage as
17 herein provided, the COUNTY may, in addition to other remedies it may have, suspend
18 or terminate this Agreement upon the occurrence of such event.
19 All policies shall be issued by admitted insurers licensed to do business in the
20 State of California, and such insurance shall be purchased from companies possessing
21 a current A.M. Best, Inc. rating of A FSC VII or better.
22 In addition to its obligations set forth hereinabove, ATTORNEY agrees that it
23 shall maintain, at its sole expense, in full force and effect for a period of three (3) years
24 following the termination of this Agreement a policy of professional liability insurance
25 with limits of coverage of not less than One Million Dollars ($1 ,000,000) per occurrence;
26 provided, however, in the event that ATTORNEY does not maintain such policy of
27 insurance for such entire three (3) year period, ATTORNEY shall maintain, at its sole
28
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P-24-093 Attachment A
P-21-129
1 expense, in full force and effect extended claims reporting coverage insurance in lieu
2 thereof in the amount of not less than One Million and No/100 Dollars ($1,000,000.00).
3 IX
4 AGREEMENT IS BINDING UPON SUCCESSORS
5 This Agreement shall be binding upon COUNTY and ATTORNEY and their
6 successors, executors, administrators, legal representatives and assigns with respect to
7 all the covenants and conditions set forth herein.
8 X
9 ASSIGNMENT AND SUBCONTRACTING
10 Notwithstanding anything stated to the contrary in paragraph 9 of this Agreement,
11 neither party hereto shall assign, transfer, or sub-contract this Agreement nor its rights
12 or duties hereunder without the written consent of the other.
13 XI
14 AMENDMENTS
15 This Agreement may only be amended in writing signed by the parties hereto.
16 XII
17 CONFLICT OF INTEREST
18 ATTORNEY promises, covenants, and warrants that, after having performed a
19 reasonable investigation, the performance of its services and representation to
20 COUNTY under this Agreement do not result in a conflict of interest as that term is used
21 in the Rules of Professional Conduct of the State Bar of California. In the event a
22 conflict of interest occurs, ATTORNEY will request COUNTY's Board of Supervisors to
23 waive such conflict of interest on a case-by-case basis. ATTORNEY also
24 acknowledges that the services provided under this Agreement are provided to
25 employees and officers of the County of Fresno in their official capacity and that such
26 employees and officers of the COUNTY are being provided the cost of the defense of
27 the professional responsibility charges filed at the California State Bar at the discretion
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P-24-093 Attachment A
P-21-129
1 of the COUNTY and only so long as the actions or omissions of such officers and
2 employees were taken within the course and scope of their official duties. ATTORNEY
3 agrees to inform the COUNTY and any COUNTY employees or officers provided
4 services under this agreement if facts are discovered that take said actions or omission
5 outside of the scope of the officers or employees official duties. If such facts result in
6 the COUNTY terminating the provision of a defense under this Agreement to such
7 officers or employees, the COUNTY and ATTORNEY will meet and confer on all
8 matters related termination of the provision of a defense by the COUNTY including but
9 not limited to reasonable steps to maintain any attorney client privilege or attorney work
10 product privilege of the represented officers or employees or the COUNTY with respect
11 to any work performed under this Agreement.
12 XIII
13 FURTHER ASSURANCES BY ATTORNEY
14 ATTORNEY represents that it has read and is familiar with Government Code
15 section 1090 et seq. and 87100 et seq. ATTORNEY promises, covenants, and
16 warrants that, after having performed a reasonable investigation, the performance of its
17 services under this Agreement shall not result in or cause a violation by it of
18 Government Code section 1090 et seq. and 87100 et seq.
19 XIV
20 COMPLIANCE WITH LAWS
21 ATTORNEY shall comply with all federal, state, and local laws and regulations
22 applicable to the performance of its obligations under this Agreement.
23 XV
24 AUDITS AND INSPECTIONS
25 ATTORNEY shall at any time during business hours, and as often as the
26 COUNTY may deem necessary, make available to the COUNTY for examination all of
27 its records and data with respect to the matters covered by this Agreement.
28
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P-24-093 Attachment A
P-21-129
1 ATTORNEY shall, upon request by the COUNTY, permit the COUNTY to audit and
2 inspect all of such records and date necessary to ensure ATTORNEY's compliance with
3 the terms of this Agreement.
4 If this agreement exceeds ten thousand dollars ($10,000), ATTORNEY shall be
5 subject to the examination and audit of the Auditor General for a period of three (3)
6 years after final payment under contract (Government Code Section 8546.7).
7 XVI
8 NOTICES
9 The persons and their addresses having authority to give and receive notices
10 under this Agreement include the following:
11 COUNTY ATTORNEY
12 Daniel C. Cederborg Tina A. Thomas
13 County Counsel Thomas Law Group
Fresno County Counsel's Office 455 Capitol Mall, Suite 801
14 2220 Tulare Street, Suite 500 Sacramento, CA 94814
Fresno, CA 93721 Telephone: (916) 287-9292
15
All notices between the COUNTY and ATTORNEY provided for or permitted under this
16
Agreement must be in writing and delivered either by personal service, by first-class
17
United States mail, by an overnight commercial courier service, or by telephonic
18
facsimile transmission. A notice delivered by personal service is effective upon service
19
to the recipient. A notice delivered by first-class United States mail is effective three
20
COUNTY business days after deposit in the United States mail, postage prepaid,
21
addressed to the recipient. A notice delivered by an overnight commercial courier
22
service is effective one COUNTY business day after deposit with the overnight
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commercial courier service, delivery fees prepaid, with delivery instructions given for
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next day delivery, addressed to the recipient. A notice delivered by telephonic facsimile
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is effective when transmission to the recipient is completed (but, if such transmission is
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completed outside of COUNTY business hours, then such delivery shall be deemed to
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be effective at the next beginning of an COUNTY business day), provided that the
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P-24-093 Attachment A
P-21-129
1 sender maintains a machine record of the completed transmission. For all claims
2 arising out of or related to this Agreement, nothing in this section establishes, waives, or
3 modifies any claims presentation requirements or procedures provided by laws,
4 including but not limited to the Government Claims Act (Division 3.6 of Title 1 of the
5 Government Code, beginning with section 810).
6 XVI I
7 VENUE AND GOVERNING LAW
8 The parties agree that, for purposes of venue, performance under this
9 Agreement is to be in Fresno County, California. The rights and obligations of the
10 parties and all interpretations and performance of this Agreement shall be governed in
11 all respects by the laws of the State of California.
12 XVIII
13 DISCLOSURE OF SELF-DEALING TRANSACTIONS
14 This provision is only applicable if ATTORNEY is operating as a corporation (a
15 for-profit or non-profit corporation) or if during the term of this Agreement, ATTORNEY
16 changes its status to operate as a corporation.
17 Members of ATTORNEY's Board of Directors shall disclose any self-dealing
18 transactions that they are a party to while ATTORNEY is providing goods or performing
19 services under this Agreement. A self-dealing transaction shall mean a transaction to
20 which ATTORNEY is a party and in which one or more of its directors has a material
21 financial interest. Members of the Board of Directors shall disclose any self-dealing
22 transactions that they are a party to by completing and signing a Self-Dealing
23 Transaction Disclosure Form, attached hereto as Attachment B and by this reference
24 incorporated herein, and submitting it to COUNTY prior to commencing with the self-
25 dealing transaction or immediately thereafter.
26 XIXI
27 ENTIRE AGREEMENT
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P-24-093 Attachment A
P-21-129
1 This Agreement constitutes the entire agreement between COUNTY and
2 ATTORNEY with respect to the specialized legal services to be provided herein and
3 supersedes any previous agreement concerning the subject matter hereof, negotiations,
4 proposals, commitments, writings, or understandings of any nature whatsoever unless
5 expressly included in this Agreement. If any part of this Agreement is found violative of
6 any law or is found to be otherwise legally defective, ATTORNEY and COUNTY shall
7 use their best efforts to replace that part of this Agreement with legal terms and
8 conditions most readily approximating the original intent of the parties.
9 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
10 the day and year first hereinabove written.
11 Thomas Law Group COUNTY OF FRESNO
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14 By_ 'i/ Al
Tina A. Thomas; Gary Cornuelle,
15 Partner Purchasing Agent
16 The County of Fresno
17
18 For Accounting Use Only:
19
Org: 43600200 Daniel C. Cederborg
20 Account No.: 7295 County Cou �I, County of
Fresno
Requisition No: 0710210010
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P-24-093 Attachment A
P-21-129
ATTACHMENT A
TINA A. THOMAS $600.00 Per hour
RATE FOR ASSOCIATES:
AMY R. HIGUERA $475.00 Per Hour
CHRISTOPHER BUTCHER $475.00 Per Hour
ANNE BAPTISTE $400.00 Per Hour
JOHANNA E. KRAMER $275.00 Per Hour
SAMUEL BACAL-GRAVES $275.00 Per Hour
RATE FOR OF COUNSEL:
NICHOLAS AVDIS $475.00 Per Hour
ERIC E. REYNOLDS $475.00 Per Hour
COSTS
SECRTARTY TIME $100.00 Per Hour
LAW CLERK $200.00 Per Hour
RESEARCH TIME
COPIES $.25 PER PAGE
MILEAGE $.44.5 PER MILE (FOR TRIPS OUTSIDE OF
SACRAMENTO COUNTY)
FACSIMILE $1.00 PER FACSIMILE
DELIVER/PICK UP $25.00 PER DELIVERY IN THE CITY OF
SACRAMENTO, $30.00 IN THE COUNTY OF
SACRAMENTO, AND $40.00 OUTSIDE THE
COUNTY OF SACRAMENTO
LEGAL RESEARCH AS CHARGED
(ELECTRONIC DATABASE)
DOCUMENT RETRIEVAL AS CHARGED
FROM STORAGE
Macros Must Be Enabled -- Please Re-open and Enable P-21-129
[0 Email Me]
� r
Suspension of Competition Acquisition Request Double click!
F'RES�
1. Fully describe the product(s)and/or service(s) being requested.
Thomas Law Group shall perform specialized legal services on behalf of the Coutny of Fresno.
2. Identify the selected vendor and contact person; include the address, phone number and e-mail address for each.
Tina A. Thomas, Thomas Law Group, Attorney At Law, 455 Capitol Mall,Suite 801, Sacramento, CA 95814
Phone: (916) 287-9292, Email: tthomas@thomaslaw.com
3. What is the total cost of the acquisition? If an agreement, state the total cost of the initial term and the amounts for
potential renewal terms.
Not to exceed $75,000
4. Identify the unique qualities and/or capabilities of the service(s) and/or product(s)that qualify this as a Suspension of
Competition acquisition.
The selection of legal counsel for the County is the responsibility of County Counsel and requires assessment of the
particular expertise possessed by each firm in the manner not conduive to a competitive bidding in most
circumstances.
5. Identify from Administrative Policy#34 what circumstances constitute a Suspension of Competition.
❑ In an emergency when goods or services are immediately necessary for the preservation of the public health,welfare,or safety,or for the
protection of County property.
❑When the contract is with a federal,state,or local governmental agency.
❑When the department head,with the concurrence of the Purchasing Agent,finds that the cost of preparing and administering a competitive
bidding process in a particular case will equal or exceed the estimated contract amount or$2,500 whichever is more.
❑When a contract provides only for payment of per diem and travel expenses and there is to be no payment for services rendered.
®When obtaining the services of expert witnesses for litigation or special counsel to assist the County.
❑When in unusual or extraordinary circumstances,the Board of Supervisors or the Purchasing AgenUPurchasing Manager determines that
the best interests of the County would be served by not securing competitive bids or issuing a request for proposal.
6. Explain why the unique qualities and/or capabilities described above are essential to your department.
Thomas Law Group has specialized legal experties not available, nor expected to be available in County's Office of
County Counsel.
7. Provide a comprehensive explanation of the research done to verify that the recommended vendor is the only vendor
with the unique qualities and/or capabilities stated above. Include a list of all other vendors contacted, what they were
asked, and their responses.
Thomas Law Group and the specfic partner attorney Tina A. Thomas possesses the necessary knowledge and legal
expertise and will represent the County of Fresno in CEQA matters related to the Kamm Avenue pistachio
processing plant here in the County of Fresno, including assisting with CEQA compliance such as response to
comments, compilation of FEIR and potentially hearings before Planning Commission and Board of Supervisors .
Their fee schedule is consistent with other outside counsel retained by the County for various legal services.
dcederborg 4/20/2021 11:50:20 AM County Counsel [a Sign] Double click!
Requested By: Title
I approve this request to suspend competition for the service(s) and/or product(s) identified herein.
dcederborg 4/20/2021 11:50:23 AM [a Sign] Double click!
Department Head Signature
gcornuelle 4/21/2021 10:02:22 AM [a Sign] Double click!
Purchasing Manager Signature
E-PD-048 (02-2013)
P-21-129
1.1 Electronic Signatures. The parties agree that this Agreement may be executed by
electronic signature as provided in this section.
(A) An "electronic signature" means any symbol or process intended by an individual signing
this Agreement to represent their signature, including but not limited to (1) a digital signature; (2)
a faxed version of an original handwritten signature; or(3) an electronically scanned and
transmitted (for example by PDF document)of a handwritten signature.
(B) Each electronic signature affixed or attached to this Agreement(1) is deemed equivalent
to a valid original handwritten signature of the person signing this Agreement for all purposes,
including but not limited to evidentiary proof in any administrative or judicial proceeding, and (2)
has the same force and effect as the valid original handwritten signature of that person.
(C)The provisions of this section satisfy the requirements of Civil Code section 1633.5,
subdivision (b), in the Uniform Electronic Transaction Act(Civil Code, Division 3, Part 2, Title 2.5,
beginning with section 1633.1).
(D) Each party using a digital signature represents that it has undertaken and satisfied the
requirements of Government Code section 16.5, subdivision (a), paragraphs (1)through (5), and
agrees that each other party may rely upon that representation.
(E) This Agreement is not conditioned upon the parties conducting the transactions under it
by electronic means and either party may sign this Agreement with an original handwritten
signature.
P-21-129
AMENDMENT ONE (1)
1 AMENDMENT NO. 1 TO
2 AGREEMENT FOR SPECIALIZED LEGAL SERVICES
3 This Amendment No. 1 to Agreement for Specialized Legal Services ("Amendment 1")
4 amends that certain Agreement for Specialized Legal Services, dated April 1, 2021, County of
5 Fresno agreement number P-21-129 ("Agreement"), is made by and between the COUNTY OF
6 FRESNO ("County"), a political subdivision of the State of California, and Thomas Law Group
7 ("Attorney"). County and Attorney may be referred to herein collectively as the "Parties" and
8 individually as a "Party."
9 WITNESSETH
10 WHEREAS, The Agreement became effective on April 1, 2021 between the Parties; and
11 WHEREAS, under the Agreement, Attorney is to provide specialized legal services to
12 County in connection with California Environmental Quality Act ("CEQA") matters related to the
13 Kamm Avenue pistachio processing plant, as more fully described in the Agreement; and
14 WHEREAS, Attorney has been engaged in providing such specialized legal services to
15 County; and
16 WHEREAS, the Parties recognize the need for additiona► specialized legal services.
17 NOW THEREFORE, in consideration of the mutual covenants, terms, and conditions
18 herein described, the Parties hereto agree as follows:
19 1. The maximum amount payable to Attorney stated the Agreement on page 4, lines 10
20 through 15, is amended to read as follows:
21 In no event shall the maximum amount paid to ATTORNEY as
22 compensation for ATTORNEY's services performed under this Agreement
23 exceed Two Hundred Thousand and No/100 Dollars ($200,000.00),
24 unless the parties agree to expand the scope of services through written
25 amendment. ATTORNEY shall not be paid for any services or costs above
26 this limit without a written modification of this Agreement executed by both
27 parties.
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P-21-129
AMENDMENT ONE (1)
1 2. Upon the execution of this Amendment 1 by both the County and Attorney, the
2 Agreement and this Amendment 1 shall together constitute the Agreement.
3 3. Unless expressly modified by the terms of this Amendment 1, all terms of the
4 Agreement remain in full force and effect.
5 4. Each Party represents and warrants to the other Party that such Party is duly authorized
6 and empowered to execute, enter into, and perform its obligations set forth in this
7 Amendment 1, and that the individual signing this Amendment 1 on behalf of such Party
8 has been duly authorized to execute this Amendment 1 on behalf of such Party, and
9 will, by signing this Amendment 1 on such Party's behalf, legally bind such Party to the
10 terms, covenants, and conditions of this Amendment 1. Each Party further represents
11 and warrants to the other Party that no other person or entity is required to give its
12 approval or consent to this Amendment 1 in order for such Party to authorize, enter into,
13 and perform its obligations under this Amendment 1, or that if such approval or consent
14 to this Amendment 1 is required, that such approval or consent has been obtained.
15 5. This Amendment 1 may be executed in two or more counterparts, each of which shall
16 be deemed to be an original, and all of which taken together shall constitute one and the
17 same instrument.
18 (Signature page follows.)
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P-21-129
AMENDMENT ONE (1)
1 IN WITNESS WHEREOF, the Parties hereto have executed this Amendment 1.
2 THOMAS LAW GROUP COUNTY OF FRESNO
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5 � 5/28/2021
Tina A. Thomas, Date Gary Cornuelle, Date
6 Partner Purchasing Agent
7
8 For Accounting Use Only: �� L / r�-
9 Org: 43600200
Account No.: 7295 Daniel C. Cederborg, T,, fte10 Requisition No: 0710210010 County Counsel
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