HomeMy WebLinkAboutAgreement A-19-284 with Best, Best and Krieger LLP.pdfAgreement No . 19-284
1 AGREEMENT FOR SPECIALIZED LEGAL SERVICES
2 THIS AGREEMENT is made and entered into this 18th day of June, 2019 , by and
3 between the COUNTY OF FRESNO , a political subdivision of the State of Ca lifornia ,
4 hereinafter referred to as "COUNTY ," and Best , Best and Krieger, LLP , hereinafter
5 referred to as "ATTORNEY."
6 WITNESS ETH
7 WHEREAS , COUNTY is in the process of defending various claims against
8 COUNTY and Fresno County Board of Supervisors in Comunidades Unidas Por Un
9 Cambio v . County of Fresno, et al., (Fresno County Superior Court Case Number
10 18CECG04586); and
11 WHEREAS , COUNTY wishes to obtain specialized services , as authorized by
12 Government Code section 31000 , to represent COUNTY in the suit ; and
13 WHEREAS, ATTORNEY represents that it is specially trained and experienced ,
14 and the it possesses such expertise; and
15 WEHREAS, such specialized legal services are either not available or expected
16 not to be available in Fresno County 's Office of the County Counsel.
17 NOW THEREFORE , in consideration of the mutual covenants , terms , and
18 conditions herein described , the parties hereto agree as follows:
19 SECTION I
20 ENGAGEMENT OF ATTORNEY
21 COUNTY hereby engages ATTORNEY as an independent contractor through the
22 services of the following key person(s): Richard Egger , and such other partners of and
23 associate lawyers as set forth in Attachment A , as well as such other partners of and
24 associate lawyers and staff members employed by ATTORNEY as ATTORNEY deems
25 necessary , and which COUNTY 's County Counsel ("County Counsel "), or his designee ,
26 approves pursuant to paragraph 3 of this Agreement , except that the foregoing key
27 persons may , from time to time , consult with such of ATTORNEY's other lawyers on a
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“limited basis” (as hereinafter defined) as ATTORNEY reasonably deems prudent and
necessary under the circumstances. It is understood that ATTORNEY may not replace
any of the aforementioned key persons named above without the prior, express, written
approval of County Counsel, or his designee. In case of death, illness or other
incapacity of any of the foregoing key persons, ATTORNEY shall provide a replacement
of at least equal professional ability and experience as the key person replaced.
ATTORNEY shall perform specialized legal services in connection with the
defense of the COUNTY and Fresno County Board of Supervisors in the Comunidades
Unidas Por Un Cambio v. County of Fresno, et al. litigation. In addition, from time to
time, County counsel, or his designee, may request ATTORNEY to perform additional
specialized legal services in connection with this litigation on behalf of COUNTY. Upon
County Counsel’s, or his designee’s, written request to perform such services,
ATTORNEY shall perform such services pursuant to the terms and conditions of this
Agreement. Notwithstanding the foregoing provisions of this paragraph, in the event of
exigent circumstances, County Counsel may make such request orally, and County
Counsel and ATTORNEY shall within a reasonable time thereafter document such
request for services and acknowledgment thereof.
SECTION II
PERFORMANCE BY ATTORNEY
ATTORNEY agrees to timely perform all services provided for under this
Agreement. ATTORNEY agrees to avoid unnecessary duplicative efforts on the part of
ATTORNEY and ATTORNEY’s partners, associate lawyers, and staff members in
ATTORNEY’s performance of services for the COUNTY hereunder.
COUNTY shall not be obligated to compensate ATTORNEY for intra-office
conferences between or among ATTORNEY’s partners, associate lawyers, and staff
members, unless such intra-office conferences promote efficiency in the performance of
ATTORNEY’s work on a matter, or a reduction in the cost of compensation paid or
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reimbursement made for related, reasonable and necessary, out-of-pocket expenses to
ATTORNEY, or both. In the performance of the tasks identified in paragraph 1 under
this Agreement, ATTORNEY shall provide only those services that are necessary to
carry out such tasks in an efficient and effective manner.
III
COMPENSATION OF ATTORNEY
COUNTY shall be obligated to compensate ATTORNEY pursuant to the terms
and conditions of this Agreement only for the performance of those tasks, to the
reasonable satisfaction of COUNTY, which are related to the subject matter of this
Agreement. It is understood that COUNTY shall not be obligated to compensate
ATTORNEY for any work, services, or functions performed by ATTORNEYS: (i) in
seeking to obtain COUNTY’s business or negotiating with COUNTY to enter into this
Agreement or (ii) in providing COUNTY with documentation, explanations, or
justifications concerning the adequacy or accuracy of its invoices for the performance of
services under this Agreement and resolving same to the reasonable satisfaction of
COUNTY.
COUNTY agrees to pay and ATTORNEY agrees to accept as full compensation
for performance of tasks under this Agreement the sums per hour per person as set
forth in Attachment A, attached hereto and incorporated herein by this reference.
In addition, ATTORNEY shall be reimbursed for reasonable and necessary out-
of-pocket expenses, as follows: telephone charges, telephonic facsimile transmission
charges, computer research charges, filing fees, courier charges, postage charges,
printing and photographic reproduction expenses, in-State travel, and all such directly
related expenses. It is understood that ATTORNEY shall not be reimbursed for its
secretarial or clerical services (including overtime hours worked), or normal office
operating expenses, with the exception of those charges and expenses stated above.
In addition, ATTORNEY shall not be reimbursed for such secretarial or clerical services
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performed or expenses incurred, regardless of whether such tasks are performed or
expenses are incurred by ATTORNEY’s partners, associate lawyers, or anyone else.
Furthermore, COUNTY shall not compensate ATTORNEY for work performed by
paralegals where such work ordinarily is performed by licensed attorneys, including
legal research and legal document drafting.
In no event shall the maximum amount paid to ATTORNEY as compensation for
ATTORNEY’s services performed under this Agreement exceed Two Hundred Seventy-
Five Thousand and No/100 Dollars ($275,000), unless the parties agree to expand the
scope of services through written amendment. ATTORNEY shall not be paid for any
services or costs above this limit without a written modification of this Agreement
executed by both parties. ATTORNEY shall notify COUNTY in writing when the amount
of accrued services under the agreement whether billed or unbilled reaches Two
Hundred Ten Thousand and No/100 Dollars ($210,000) in order to allow for adequate
time for any necessary amendment of this AGREEMENT. ATTORNEY acknowledges
that services performed in excess of any AGREEMENT lawfully approved by the Board
of Supervisors are performed at ATTORNEY’s own risk.
IV.
PAYMENT AND RECORD-KEEPING
Subject to paragraph 3 of this Agreement, payment of compensation for the
services provided under this Agreement and reimbursement for related, reasonable and
necessary out-of-pocket expenses incurred shall be made by COUNTY after
submission of an itemized invoice by ATTORNEY to the County Counsel no later than
the thirtieth (30th) day following the end of the month in which such services were
rendered or expenses incurred. All payments of compensation and reimbursement for
expenses incurred in connection therewith shall be made by COUNTY no later than
forty-five (45) days following the date that the COUNTY receives a properly completed
invoice requesting the payment for such services rendered and expenses incurred.
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All such invoices shall reflect accurately the tasks performed by ATTORNEY
under this Agreement. In addition, all such invoices shall have sufficient detail as may
be required by COUNTY, including, but not limited to:
A.The specific nature of each task performed as services under this
Agreement;
B.The name of the partner or associate lawyer performing each such task;
C.The number of hours worked by each such person for each such task;
D.The hourly rate per each such person performing each such task; and
E.The related, reasonable and necessary, out-of-pocket expenses incurred, as
provided for in paragraph 3 of this Agreement.
In addition, each invoice shall set forth a summary of hours worked by each
partner and associate lawyer for the applicable billing period. Each such invoice shall
set forth the product of such summary of hours worked by each person multiplied by
such person’s billing rate.
ATTORNEY shall prepare its invoices in an organized manner that facilitates an
efficient review of the services performed and the expenses incurred in order to provide
COUNTY with a clear and complete understanding of how much time was devoted to
specific tasks and projects, and the cost associated therewith.
ATTORNEY shall keep complete records of the services provided, together with
all related reasonable and necessary, out-of-pocket expenses. COUNTY and the
Fresno County Auditor-Controller/Treasurer-Tax Collector shall be given reasonable
access to all of these records for the purposes of audit of this Agreement. In addition,
ATTORNEY shall be subject to the examination and audit of such records by the
Auditor General for a period of three (3) years after final payment under this Agreement
(Gov. Code section 8546.7).
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V
TERM OF AGREEMENT
This Agreement is effective June 18, 2019 and shall continue in effect through
June 19, 2022, unless earlier terminated hereunder by either or both parties. Either
party may terminate this Agreement in writing at any time, either in whole or in part.
However, if ATTORNEY elects to terminate this Agreement, COUNTY’s rights under
any pending matter which may arise from ATTORNEY’s services hereunder shall not be
prejudiced due to such termination as required by the Rules of Professional Conduct of
the State Bar of California. Subject to paragraph 3 of this Agreement, ATTORNEY shall
be paid for all services performed to the date of termination of this Agreement, which
are done to the reasonable satisfaction of COUNTY.
VI
INDEPENDENT CONTRACTOR
In performance of the work, duties and obligations assumed by ATTORNEY
under this Agreement, it is mutually understood and agreed that ATTORNEY, including
any and all of ATTORNEY’s officers, agents, and employees will at all times be acting
and performing as an independent contractor, and shall act in an independent capacity
and not as an officer, agent, servant, employee, joint venture, partner, or associate of
COUNTY. Furthermore, COUNTY shall have no right to control, supervise, or direct the
manner or method by which ATTORNEY shall perform its obligations under this
Agreement. However, COUNTY shall retain the right to administer this Agreement so
as to verify that ATTORNEY is performing its obligations in accordance with the terms
and conditions hereof. ATTORNEY and COUNTY shall comply with all applicable
provisions of law and the rules and regulations, if any, of governmental authorities
having jurisdiction over matters of the subject hereof.
Because of its status as an independent contractor, ATTORNEY shall have
absolutely no right to employment rights and benefits available to COUNTY employees.
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ATTORNEY shall be solely liable and responsible for providing to, or on behalf of, its
employees all legally-required employee benefits. In addition, ATTORNEY shall be
solely responsible and save COUNTY harmless from all matters related to payment of
ATTORNEY’s employees, including compliance with social security, withholding, and all
other regulations governing such matters. It is acknowledged that during the term of
this Agreement, ATTORNEY may be providing services to others unrelated to COUNTY
or to this Agreement.
VII
HOLD HARMLESS
ATTORNEY shall hold COUNTY, its officers, agents, and employees harmless
and indemnify and defend COUNTY, its officers, agents and employees against
payment of any and all costs and expenses (to include legal fees and court costs),
claims, suits, losses, damages and liability occurring or resulting to COUNTY in
connection with the negligent performance, or negligent failure to perform, by
ATTORNEY, its officers, agents, or employees under this Agreement, and from any and
all costs and expenses (including attorney’s fees and costs), damages, liabilities,
claims, and losses occurring or resulting to any person, firm, or corporation who may be
injured or damaged by the performance, or failure to perform, of ATTORNEY, its
officers, agents, or employees under this Agreement. COUNTY’s receipt of any
insurance certificates required herein does not in any way relieve the ATTORNEY from
its obligations under this paragraph 7 of this Agreement.
VIII
INSURANCE
Without limiting COUNTY’s rights under paragraph 7 of this Agreement, or
against any third parties, ATTORNEY, at its sole expense, shall maintain in full force
and effect the following insurance policies throughout the entire term of this Agreement:
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A. Professional Liability Insurance with limits of not less than One Million
Dollars ($1,000,000) per occurrence, Three Million Dollars ($3,000,000) annual
aggregate;
B. Comprehensive General Liability Insurance with limits of not less than
One Million Dollars ($1,000,000) per occurrence and an annual aggregate of Four
Million Dollars ($4,000,000). This policy shall be issued on a per occurrence basis.
COUNTY may require specific coverages including completed operations, products
liability, contractual liability, Explosion-Collapse-Underground, fire legal liability or any
other liability insurance deemed necessary because of the nature of this Agreement;
C. Comprehensive Automobile Liability Insurance for hired and non-
owned vehicles with limits of not less than One Million Dollars ($1,000,000) per accident
for bodily injury and for property damages. Coverage should include any auto used in
connection with this Agreement; and
D. A policy of workers compensation insurance as may be required by the
California Labor Code.
ATTORNEY shall obtain endorsements to the Commercial General Liability
insurance naming the County of Fresno, its officers, agents, and employees, individually
and collectively, as additional insured, but only insofar as the operations under this
Agreement are concerned. Such coverage for additional insured 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 insurance
provided under ATTORNEY’s policies herein. This insurance shall not be cancelled or
changed without a minimum of thirty (30) days advance written notice given to
COUNTY.
Within Thirty (30) days from the date ATTORNEY signs and executes this
Agreement, ATTORNEY shall provide certificates of insurance and endorsement as
stated above for all of the foregoing policies, as required herein, to the County of
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Fresno, County Counsel’s Office, Attn: Joan Cuadros, 2220 Tulare Street, Suite 500,
Fresno, California, 93721, stating that such insurance coverage has been obtained and
are in full force; that the COUNTY, its officers, agents and employees will not be
responsible for any premiums on the policies; that for such worker’s compensation
insurance the ATTORNEY has waived its right to recover from the COUNTY, its
officers, agents, and employees any amounts paid under the insurance policy and that
waiver does not invalidate the insurance policy; that such Commercial General Liability
insurance names the COUNTY, is officers, agents and employees, individually and
collectively, as additional insured, but only insofar as the operations under this
Agreement are concerned; that such coverage for additional insured 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
insurance provided under ATTORNEY’s policies herein, and that this insurance shall
not be cancelled or changed without a minimum of thirty (30) days advance, written
notice given to COUNTY.
In the event ATTORNEY fails to keep in effect at all times insurance coverage as
herein provided, the COUNTY may, in addition to other remedies it may have, suspend
or terminate this Agreement upon the occurrence of such event.
All policies shall be issued by admitted insurers licensed to do business in the
State of California, and such insurance shall be purchased from companies possessing
a current A.M. Best, Inc. rating of A FSC VII or better.
In addition to its obligations set forth hereinabove, ATTORNEY agrees that it
shall maintain, at its sole expense, in full force and effect for a period of three (3) years
following the termination of this Agreement a policy of professional liability insurance
with limits of coverage of not less than One Million Dollars ($1,000,000) per occurrence;
provided, however, in the event that ATTORNEY does not maintain such policy of
insurance for such entire three (3) year period, ATTORNEY shall maintain, at its sole
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expense, in full force and effect extended claims reporting coverage insurance in lieu
thereof in the amount of not less than One Million and No/100 Dollars ($1,000,000.00).
IX
AGREEMENT IS BINDING UPON SUCCESSORS
This Agreement shall be binding upon COUNTY and ATTORNEY and their
successors, executors, administrators, legal representatives and assigns with respect to
all the covenants and conditions set forth herein.
X
ASSIGNMENT AND SUBCONTRACTING
Notwithstanding anything stated to the contrary in paragraph 9 of this Agreement,
neither party hereto shall assign, transfer, or sub-contract this Agreement nor its rights
or duties hereunder without the written consent of the other.
XI
AMENDMENTS
This Agreement may only be amended in writing signed by the parties hereto.
XII
CONFLICT OF INTEREST
ATTORNEY promises, covenants, and warrants that, after having performed a
reasonable investigation, the performance of its services and representation to
COUNTY under this Agreement do not result in a conflict of interest as that term is used
in the Rules of Professional Conduct of the State Bar of California. In the event a
conflict of interest occurs, ATTORNEY will request COUNTY’s Board of Supervisors to
waive such conflict of interest on a case-by-case basis.
XIII
FURTHER ASSURANCES BY ATTORNEY
ATTORNEY represents that it has read and is familiar with Government Code
section 1090 et seq. and 87100 et seq. ATTORNEY promises, covenants, and
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warrants that, after having performed a reasonable investigation, the performance of its
services under this Agreement shall not result in or cause a violation by it of
Government Code section 1090 et seq. and 87100 et seq.
XIV
COMPLIANCE WITH LAWS
ATTORNEY shall comply with all federal, state, and local laws and regulations
applicable to the performance of its obligations under this Agreement.
XV
AUDITS AND INSPECTIONS
ATTORNEY shall at any time during business hours, and as often as the
COUNTY may deem necessary, make available to the COUNTY for examination all of
its records and data with respect to the matters covered by this Agreement.
ATTORNEY shall, upon request by the COUNTY, permit the COUNTY to audit and
inspect all of such records and date necessary to ensure ATTORNEY’s compliance with
the terms of this Agreement.
If this agreement exceeds ten thousand dollars ($10,000), ATTORNEY shall be
subject to the examination and audit of the Auditor General for a period of three (3)
years after final payment under contract (Government Code Section 8546.7).
XVI
NOTICES
The persons and their addresses having authority to give and receive notices
under this Agreement include the following:
COUNTY ATTORNEY
Daniel C. Cederborg Richard Egger
County Counsel Best, Best, & Krieger, LLP
Fresno County Counsel’s Office 655 W. Broadway
2220 Tulare Street, Suite 500 15th Floor
Fresno, CA 93720 San Diego, CA 92101
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All notices between the COUNTY and ATTORNEY provided for or permitted under this
Agreement must be in writing and delivered either by personal service, by first-class
United States mail, by an overnight commercial courier service, or by telephonic
facsimile transmission. A notice delivered by personal service is effective upon service
to the recipient. A notice delivered by first-class United States mail is effective three
COUNTY business days after deposit in the United States mail, postage prepaid,
addressed to the recipient. A notice delivered by an overnight commercial courier
service is effective one COUNTY business day after deposit with the overnight
commercial courier service, delivery fees prepaid, with delivery instructions given for
next day delivery, addressed to the recipient. A notice delivered by telephonic facsimile
is effective when transmission to the recipient is completed (but, if such transmission is
completed outside of COUNTY business hours, then such delivery shall be deemed to
be effective at the next beginning of an COUNTY business day), provided that the
sender maintains a machine record of the completed transmission. For all claims
arising out of or related to this Agreement, nothing in this section establishes, waives, or
modifies any claims presentation requirements or procedures provided by laws,
including but not limited to the Government Claims Act (Division 3.6 of Title 1 of the
Government Code, beginning with section 810).
XVII
VENUE AND GOVERNING LAW
The parties agree that, for purposes of venue, performance under this
Agreement is to be in Fresno County, California. The rights and obligations of the
parties and all interpretations and performance of this Agreement shall be governed in
all respects by the laws of the State of California.
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XVIII
DISCLOSURE OF SELF-DEALING TRANSACTIONS
This provision is only applicable if ATTORNEY is operating as a corporation (a
for-profit or non-profit corporation) or if during the term of this Agreement, ATTORNEY
changes its status to operate as a corporation.
Members of ATTORNEY’s Board of Directors shall disclose any self-dealing
transactions that they are a party to while ATTORNEY is providing goods or performing
services under this Agreement. A self-dealing transaction shall mean a transaction to
which ATTORNEY is a party and in which one or more of its directors has a material
financial interest. Members of the Board of Directors shall disclose any self-dealing
transactions that they are a party to by completing and signing a Self-Dealing
Transaction Disclosure Form, attached hereto as Attachment B and by this reference
incorporated herein, and submitting it to COUNTY prior to commencing with the self-
dealing transaction or immediately thereafter.
XIXI
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 of the parties.
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1 IN WITNESS WHEREOF , the parties hereto have executed this Agreement as of
2 the day and year first hereinabove written .
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Best , Best and Krieger , LLP
By
a_L~
Richard Egger,
Partner
For Accounting Use Only:
Org : 2540
Account No.: 7295
Fund : 0001
Subclass: 10000
COUNTY OF FRESNO
Nathan Magsig , Chairman
of the Board of Supervisors of the
County of Fresno
ATTEST:
Bernice E . Seidel
Clerk of the Board of Supervisors
County of Fresno , State of California
By : AoMco ~sbo:p
Deputy
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Attachment A
Page 1 of 2
Attachment A
SCHEDULE OF RATES
BEST, BEST , AND KRIEGER LLP
COST PROPOSAL
Richard Egger
Todd Leishman (Of Counsel)
Megan Garibaldi (Partner)
Associates
$375 per hour
$290 per hour
$280 per hour
$275 per hour
PARALEGALS
Paralegals Providing Litigation Support $188 per hour
Attachment A
Page 2 of 2
MATERIALS AND MISCELLANEOUS
Photocopies
Computer-assisted legal research
Faxes
Mileage
Messenger Services
Other Cost
$.25 per page
Actual Costs
$.50 per page plus L/D charges
IRS approved rate for out of town travel
Actual Cost
Direct pass-through without surcharge
ATTACHMENT B
SELF-DEALING TRANSACTION DISCLOSURE FORM
In order to conduct business with the County of Fresno (“County”), members of a contractor’s board
of directors (“County Contractor”), must disclose any self-dealing transactions that they are a party
to while providing goods, performing services, or both for the County. A self-dealing transaction is
defined below:
“A self-dealing transaction means a transaction to which the corporation is a party and in which one
or more of its directors has a material financial interest”
The definition above will be utilized for purposes of completing this disclosure form.
INSTRUCTIONS
(1) Enter board member’s name, job title (if applicable), and date this disclosure is being made.
(2) Enter the board member’s company/agency name and address.
(3) Describe in detail the nature of the self-dealing transaction that is being disclosed to the
County. At a minimum, include a description of the following:
a. The name of the agency/company with which the corporation has the transaction;
and
b. The nature of the material financial interest in the Corporation’s transaction that
the board member has.
(4) Describe in detail why the self-dealing transaction is appropriate based on applicable
provisions of the Corporations Code.
(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)
(4) Explain why this self-dealing transaction is consistent with the requirements of Corporations Code 5233 (a)
(5) Authorized Signature
Signature: Date: