HomeMy WebLinkAboutAgreement A-24-096 with Hawkins Delafield Wood LLP TRANs.pdf Agreement No. 24-096
FY 2024-25 TRANs
1 AGREEMENT FOR SPECIALIZED LEGAL SERVICES
2 (BOND COUNSEL AND DISCLOSURE COUNSEL SERVICES FOR FISCAL YEAR
3 2024-25 TAX AND REVENUE ANTICIPATION NOTES)
4 THIS AGREEMENT ("Agreement") is made and entered into this 5th day of
5 March , 2024, by and between the COUNTY OF FRESNO, a political
6 subdivision of the State of California ("COUNTY") and the law firm of Hawkins Delafield
7 & Wood LLP ("ATTORNEY").
8 Recitals
9 A. COUNTY has the possible need to sell and issue Tax and Revenue
10 Anticipation Notes ("TRANs;" Govt. Code, §§ 53850 et seg.) for the fiscal year 2024-25
11 ("TRAN Financing Plan").
12 B. If COUNTY sells and issues the TRANs, COUNTY may do so on a tax-
13 exempt basis.
14 C. COUNTY wishes to engage the specialized legal services of a law firm to
15 serve both as bond counsel and as disclosure counsel who is expert in legal matters
16 concerning the issuance of TRANs.
17 D. ATTORNEY represents that it is specially trained and experienced, and
18 that it possesses such expertise.
19 E. Such specialized legal services are either not available or not expected to
20 be available in COUNTY's Office of the County Counsel.
21 The parties therefore agree as follows:
22 1. Engagement of Attorney: COUNTY hereby engages ATTORNEY as an
23 independent contractor through the services of the following key person(s): Diane K.
24 Quan and Brian Organ, partners of ATTORNEY; and such other partners of, and
25 associate lawyers and staff members employed by, ATTORNEY as ATTORNEY deems
26 necessary, and who COUNTY's County Counsel ("County Counsel"), or their designee,
27 approves pursuant to section 3 of this Agreement, except that the foregoing key persons
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1 may, from time to time, consult with such of ATTORNEY's other lawyers on a "limited
2 basis" (as defined below) as ATTORNEY reasonably deems prudent and necessary
3 under the circumstances. ATTORNEY may not replace any of the aforementioned key
4 persons named above without the prior, express, written approval of County Counsel,
5 or their designee. In case of death, illness or other incapacity, or departure of any of
6 the foregoing key persons, ATTORNEY shall provide a replacement of at least equal
7 professional ability and experience as the key person replaced.
8 A. Scope of Bond Counsel Services: In its capacity as bond counsel,
9 ATTORNEY shall provide the following professional legal services in order to assist
10 COUNTY in selling and issuing TRANs:
11 (1) Legal review of the financing structure of the TRAN
12 Financing Plan.
13 (2) Consultation with COUNTY officials, County Counsel, or
14 their designee, lawyers in ATTORNEY's firm who are acting in their capacity as
15 COUNTY's disclosure counsel ("Disclosure Counsel"), and the municipal financial
16 advisor selected by COUNTY, concerning the timing, terms, and structure of the TRAN
17 Financing Plan.
18 (3) Preparation and review of, and advise COUNTY in
19 connection with, any and all documents, agreements, resolutions, instruments and
20 certificates to be used for the sale and issuance of the TRANs for the TRAN Financing
21 Plan including, but not limited to, the paying agent or fiscal agent agreement or
22 certificate (if used), the TRANs, the resolution(s) of COUNTY's Board of Supervisors
23 (collectively, "COUNTY Board Resolution") authorizing the sale and issuance of the
24 TRANs under the TRAN Financing Plan, setting forth the terms and conditions of the
25 notes, their form, date, denominations, and maturities, and providing for the
26 establishment of a fund as security for the notes to ensure compliance with applicable
27 laws and regulations, the tax certificate, insurance policies, and credit or liquidity
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1 facilities.
2 (4) Review, and advise COUNTY in connection with, the
3 Preliminary Official Statement and the Official Statement for the TRAN Financing Plan,
4 prepared by Disclosure Counsel, describing the sale and issuance of the TRANs, and
5 other related documents, agreement, resolutions, instruments and certificates.
6 (5) Review, and advise COUNTY in connection with, any and
7 all documents, resolutions, instruments and certificates to be executed by COUNTY at
8 the closing of the TRAN Financing Plan, which are necessary for COUNTY to comply
9 with the continuing disclosure requirements under Securities and Exchange
10 Commission Rule 15c2-12, including, but not limited to the amendments thereto
11 (collectively, "SEC Continuing Disclosure Certificate").
12 (6) If a negotiated sale is used for the TRAN Financing Plan,
13 review, and advise COUNTY in connection with, the note purchase contract with the
14 underwriter ("Contract of Purchase") prepared by Disclosure Counsel for the TRAN
15 Financing Plan, and other related documents, agreements, resolutions, instruments and
16 certificates.
17 (7) If a competitive sale is used for the TRAN Financing Plan,
18 review, and advise COUNTY in connection with:
19 (a) the Official Notice of Sale of the TRANs and Bid Form
20 prepared by bond counsel;
21 (b) the notice of intention to sell securities, prepared by
22 bond counsel, to be published in a publication selected by COUNTY's Auditor-
23 Controller/Treasurer-Tax Collector, as provided by Government Code § 53692;
24 (c) the bids submitted for the purchase of the TRANs;
25 and
26 (d) other related documents, agreements, resolutions,
27 instruments and certificates;
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1 (8) Provide comment to underwriter's counsel, if such counsel
2 is employed by an underwriter, and to Disclosure Counsel, concerning any and all
3 documents, agreements, instruments and resolutions referred to herein which are
4 prepared by Disclosure Counsel.
5 (9) As to those documents, agreements, resolutions,
6 instruments and certificates prepared by bond counsel, distribute necessary drafts and
7 revisions of same, receive comments from members of the financing team for the TRAN
8 Financing Plan and from other parties for such financing plan, and resolve same to the
9 satisfaction of County Counsel or their designee.
10 (10) Examination of proofs of the notes for the TRANs.
11 (11) Draft all closing documents, instruments and certificates in
12 connection with the TRAN Financing Plan.
13 (12) Render written unqualified opinions relating to the TRAN
14 Financing Plan, which shall be acceptable to County Counsel, or their designee, in form
15 and substance, to the following effect:
16 (a) that the TRANs have been duly authorized and
17 issued and constitute legally valid and binding obligations of COUNTY, enforceable in
18 accordance with their terms;
19 (b) that the TRANs and interest thereon are payable
20 solely from the taxes, income, revenues, cash receipts and other monies received by
21 COUNTY for its general fund for fiscal year ending June 30, 2024 ("Source of Payment
22 of the TRANs and Interest Thereon");
23 (c) that the Source of Payment of the TRANs and
24 Interest Thereon is lawfully available for the payment thereof;
25 (d) if COUNTY determines to issue the TRANs on a tax-
26 exempt basis, that the interest on the TRANs is excluded from "gross income"for federal
27 income tax purposes under Section 103 of the Internal Revenue Code of 1986;
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1 (e) if COUNTY determines to issue the TRANs on a tax-
2 exempt basis, that the interest on the TRANs is excluded from personal income taxes
3 of the State of California;
4 (f) that the Official Statement, to the extent that the
5 statements contained therein purport to summarize the provisions of the TRANs, the
6 COUNTY Board Resolution, and the governing law related thereto, is accurate and
7 complete in all material respects;
8 (g) that, based upon the information developed and
9 received in the provision of its services herein, no information has come to the attention
10 of bond counsel which would cause bond counsel to believe that the Official Statement,
11 as of the date of the Official Statement and as of the closing of the TRAN Financing
12 Plan, contains any untrue statements of material fact or omits to state any material fact
13 required to be stated therein or necessary to make the statements therein, in light of the
14 circumstances under which they were made, not misleading; and
15 (h) if a paying agent or fiscal agent agreement or
16 certificate is used, that the paying agent or fiscal agent agreement or certificate has
17 been duly authorized, executed and delivered by COUNTY, and constitutes a legally
18 valid and binding obligation of COUNTY, enforceable against COUNTY in accordance
19 with its terms.
20 All such opinions shall be addressed in a letter to COUNTY's Board
21 of Supervisors (which letter shall expressly state that COUNTY's Board of Supervisors
22 is the ATTORNEY's client), and be provided at the time of the delivery of and receipt
23 for payment of the TRANs. Any and all such opinions shall also be addressed to the
24 underwriter (if requested by the underwriter), as a reliance opinion, as hereinafter
25 provided, and be provided at the time of the delivery of and receipt for payment of the
26 TRANs.
27 If ATTORNEY provides a written opinion to any third party (e.g., an
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1 underwriter) whereby the third party is allowed to rely upon any opinion given by
2 ATTORNEY to COUNTY under this Agreement (a "reliance opinion"), such reliance
3 opinion shall (i) be provided in a letter, separate from the opinions given by ATTORNEY
4 to COUNTY herein, and (ii) expressly state substantially to the effect that no attorney-
5 client relationship exists or is created by reason of giving such opinion.
6 (13) Comment and advise COUNTY on issues that arise in the
7 course of the implementation of the TRAN Financing Plan.
8 (14) Attend meetings with either COUNTY staff, COUNTY Debt
9 Advisory Committee, or the Board of Supervisors, or all of them, upon request by the
10 County Counsel, or their designee.
11 (15) Attend meetings with rating agencies and COUNTY's
12 municipal financial advisor, upon request by County Counsel, or their designee.
13 (16) Handle closing and post-closing issues in connection with
14 the TRAN Financing Plan, and distribute any and all documents, agreements,
15 resolutions, instruments and certificates to appropriate persons or organizations.
16 (17) Perform such other similar services as County Counsel, or
17 their designee, may request.
18 B. Scope of Disclosure Counsel Services: In its capacity as
19 disclosure counsel, ATTORNEY shall provide the following professional legal services
20 in order to assist COUNTY in selling and issuing the TRANs:
21 (1) Consultation with COUNTY officials, County Counsel, or
22 their designee, lawyers in ATTORNEY's firm who are acting in their capacity as
23 COUNTY's bond counsel ("Bond Counsel"), and the municipal financial advisor selected
24 by COUNTY, concerning the timing, terms, and structure of the TRAN Financing Plan.
25 (2) Review of, and advise COUNTY in connection with, any and
26 all documents, agreements, resolutions, instruments and certificates to be used for the
27 sale and issuance of the TRANs for the TRAN Financing Plan including, but not limited
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1 to, the paying agent or fiscal agent agreement or certificate (if used), the TRANs, the
2 COUNTY Board Resolution, the tax certificate, insurance policies, and credit or liquidity
3 facilities.
4 (3) Preparation and review of, and advise COUNTY in
5 connection with, the Preliminary Official Statement and the Official Statement for the
6 TRAN Financing Plan describing the sale and issuance of the TRANs, and other related
7 documents, agreements, resolutions, instruments and certificates.
8 (4) Preparation and review of, and advise COUNTY in
9 connection with, any and all documents, agreements, instruments and resolutions to be
10 executed by COUNTY at the closing of the TRAN Financing Plan, including, but not
11 limited to, the SEC Continuing Disclosure Certificate.
12 (5) Perform due diligence necessary to prepare COUNTY's
13 Preliminary Official Statement, Official Statement, SEC Continuing Disclosure
14 Certificate, and any other disclosure documents for the TRAN Financing Plan, in order
15 to ensure that such financing plan is in compliance with the applicable securities laws
16 and regulations, including, but not limited to Securities and Exchange Commission Rule
17 10b-5 and Rule 15c2-12, as amended.
18 (6) If a negotiated sale is used for the TRAN Financing Plan,
19 preparation and review of, and advise COUNTY in connection with, the Contract of
20 Purchase with the underwriter, for the TRAN Financing Plan, and other related
21 documents, agreements, resolutions and certificates.
22 (7) Provide comment to underwriter's counsel, if such counsel
23 is employed by an underwriter, and to Bond Counsel, concerning any and all
24 documents, agreements, instruments and resolutions referred to herein which are
25 prepared by Bond Counsel.
26 (8) As to those documents, agreements, resolutions,
27 instruments and certificates prepared by disclosure counsel, distribute necessary drafts
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1 and revisions of same, receive comments from members of the financing team for the
2 TRAN Financing Plan and from other parties for such financing plan, and resolve same
3 to the satisfaction of County Counsel or their designee.
4 (9) Render unqualified written opinions relating to the TRAN
5 Financing Plan, which shall be acceptable to County Counsel, or their designee, in form
6 and substance, to the following effect:
7 (a) that the Official Statement for the TRAN Financing
8 Plan, to the extent that the statements contained therein purport to summarize the
9 underlying information referred to therein (including, but not limited to, the instruments,
10 resolutions, transactions, agreements, and records, and the laws and regulations
11 governing same, in connection with the TRANs and the COUNTY Board Resolution) is
12 accurate and complete in all material respects, assuming the accuracy and
13 completeness and fairness of the statements contained in such underlying information;
14 (b) if a negotiated sale is used, that the Contract of
15 Purchase has been duly authorized, executed, and delivered by COUNTY, and that it
16 constitutes a legally valid and binding obligation of COUNTY, enforceable against
17 COUNTY in accordance with its terms;
18 (c) that, based upon the information developed and
19 received in the provision of its services under this Agreement, no information has come
20 to the attention of disclosure counsel which would cause disclosure counsel to believe
21 that the Official Statement for the TRAN Financing plan, as of the date of such Official
22 Statement and as of the closing of such financing plan, contains any untrue statements
23 of material fact or omits to state any material fact required to be stated or necessary to
24 make such statements, in light of the circumstances under which they were made, not
25 misleading.
26 (d) that the TRANs are exempt from the registration
27 requirements of the Securities Act of 1933, as amended; and
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1 (e) that the COUNTY Board Resolution is exempt from
2 qualification under the Trust Indenture Act of 1939, as amended.
3 All such opinions shall be addressed in a letter to COUNTY's Board
4 of Supervisors (which letter shall expressly state that COUNTY's Board of Supervisors
5 is the ATTORNEY's client), and be provided at the time of the delivery of and receipt
6 for payment of the TRANs. Any and all such opinions shall also be addressed to the
7 underwriter (if requested by the underwriter), as a reliance opinion, as hereinafter
8 provided, and be provided at the time of the delivery of and receipt for payment of the
9 TRANs.
10 If ATTORNEY provides a reliance opinion to any third party (e.g.,
11 an underwriter) whereby the third party is allowed to rely upon any opinion given by
12 ATTORNEY to COUNTY under this Agreement, such reliance opinion shall (i) be
13 provided in a letter, separate from the opinions given by ATTORNEY to COUNTY
14 herein, and (ii) expressly state in the text of such reliance opinion substantially to the
15 effect that no attorney-client relationship exists or is created by reason of giving such
16 opinion.
17 (10) Assist COUNTY, and its municipal financial advisor, in
18 corresponding with the printer of the Preliminary Official Statement and Official
19 Statement in order to facilitate a prompt and efficient printing of same.
20 (11) Render advice, as requested by COUNTY's Auditor-
21 Controller/Treasurer-Tax Collector, or her designee, or by County Counsel, or their
22 designee, to COUNTY, and its municipal financial advisor, regarding the marketing and
23 sale of the TRANs.
24 (12) Comment and advise COUNTY on issues that arise in the
25 course of the implementation of the TRAN Financing Plan.
26 (13) Attend meetings with COUNTY staff, COUNTY's Debt
27 Advisory Committee, or COUNTY's Board of Supervisors, or all of them, upon request
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1 by the County Counsel, or their designee.
2 (14) Handle closing and post-closing issues in connection with
3 the TRAN Financing Plan, and distribute any and all documents, agreements,
4 resolutions, instruments and certificates to appropriate persons or organizations.
5 (15) Perform such other similar services as County Counsel, or
6 their designee, may request.
7 C. Authorization to Proceed with Work: ATTORNEY shall commence
8 performance of services upon receiving authorization to proceed with work from the
9 County Counsel, or their designee.
10 2. Performance by Attorney: ATTORNEY agrees to timely perform all
11 services provided under this Agreement. ATTORNEY agrees to avoid unnecessary
12 duplicative efforts on the part of ATTORNEY and ATTORNEY's partners, associate
13 lawyers, and staff members in ATTORNEY's performance of services for COUNTY
14 under this Agreement.
15 COUNTY shall not be obligated to compensate ATTORNEY for intra-office
16 conferences between or among ATTORNEY's partners, associate lawyers, and staff
17 members, unless such intra-office conferences promote efficiency in the performance
18 of ATTORNEY's work on a matter, or a reduction in the cost of compensation paid or
19 reimbursement made for related, reasonable and necessary, out-of-pocket expenses to
20 ATTORNEY, or both.
21 In the performance of the tasks identified in section 1 under this Agreement,
22 ATTORNEY shall provide only those services that are necessary to carry out such tasks
23 in an efficient and effective manner.
24 ATTORNEY shall provide lawyers who possess the following qualities and skills:
25 A. the lawyer possesses a high level of professional ethics and
26 personal integrity, and exercises good judgment;
27 B. the lawyer has experience and expertise in the particular municipal
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1 finance matter for which he or she is providing services;
2 C. the lawyer has exceptional technical legal skills;
3 D. the lawyer vigorously represents COUNTY so that
4 COUNTY's best interests are served;
5 E. the lawyer efficiently and timely completes assigned tasks;
6 F. the lawyer is reasonably available when County Counsel, or their
7 designee, needs to consult with the lawyer on short notice;
8 G. the lawyer anticipates potential problems and advises County
9 Counsel regarding same;
10 H. the lawyer explains complex municipal finance concepts to County
11 Counsel, or their designee, so that County Counsel, or their designee, has a clear and
12 complete understanding of the relevant issues and facts of a matter; and
13 I. the lawyer cooperates with County Counsel, or their designee, and
14 other members of the financing team, including amicably resolving disputes, if any,
15 among financing team members to the satisfaction of County Counsel, or their
16 designee.
17 3. Compensation of ATTORNEY: COUNTY shall compensate ATTORNEY
18 pursuant to the terms and conditions of this Agreement only for the performance of
19 those tasks, to the reasonable satisfaction of COUNTY, that relate to the subject matter
20 of this Agreement. It is understood that COUNTY shall not be obligated to compensate
21 ATTORNEY for any work, services, or functions performed by ATTORNEY: (i) in
22 seeking to obtain COUNTY's business or negotiating with COUNTY to enter into this
23 Agreement or (ii) in providing COUNTY with documentation, explanations, or
24 justifications concerning the adequacy or accuracy of its invoices for the performance
25 of services under this Agreement and resolving same to the reasonable satisfaction of
26 COUNTY.
27 COUNTY agrees to pay and ATTORNEY agrees to accept as full compensation
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1 for performance of tasks under this Agreement the following sum per hour per person:
2 Partners:
3 Diane K. Quan $575
4 Brian Organ $540
5 Associates: $350
6 The foregoing lawyers may, from time to time, consult with such of ATTORNEY's
7 other lawyers on a "limited basis" as ATTORNEY reasonably deems prudent and
8 necessary under the circumstances, and ATTORNEY may also, upon the written
9 approval of County Counsel, or their designee, provide additional partners of, or
10 associate lawyers employed by its firm to perform significant services under this
11 Agreement, provided that such additional persons who are consulted or who provide
12 significant services are compensated by COUNTY for performance of tasks under this
13 Agreement at a rate not to exceed each such person's customary billing rate per hour
14 for local governmental entities. Notwithstanding anything stated to the contrary in this
15 section, the term "limited basis" means fifteen (15) hours or less worked by each of
16 ATTORNEY's lawyers, other than the lawyers identified above, per month or fraction
17 thereof.
18 In addition, ATTORNEY shall be reimbursed for reasonable, and necessary out-
19 of-pocket expenses, as follows: telephone charges, telephonic facsimile transmission
20 charges, computer research charges, publication costs, filing fees, courier charges,
21 postage charges, printing and photographic reproduction expenses, in-State travel, and
22 all such directly-related expenses. ATTORNEY shall also be reimbursed for the actual
23 and reasonable cost of publications and reports obtained for the financing and the
24 preparation of transcripts on physical media, either printed or digital, if any.
25 It is understood that ATTORNEY shall not be reimbursed for its secretarial or
26 clerical services (including overtime hours worked), or normal office operating
27 expenses, with the exception of those charges and expenses stated in the immediately
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1 preceding paragraph of this Agreement. In addition, ATTORNEY shall not be
2 reimbursed for such services performed or expenses incurred, regardless of whether
3 such tasks are performed or expenses are incurred by ATTORNEY's partners,
4 associate lawyers, or anyone else. Upon approval by the County Counsel or their
5 designee, ATTORNEY may use paralegals to perform services under this Agreement.
6 Under no circumstances shall COUNTY compensate ATTORNEY for secretarial or
7 clerical work performed by paralegals. Furthermore, COUNTY shall not compensate
8 ATTORNEY for work performed by paralegals where such work ordinarily is performed
9 by licensed attorneys, including legal research and legal document drafting.
10 It is understood that COUNTY may abandon the TRAN Financing Plan, at any
11 time, without any reason.
12 Notwithstanding anything else stated to the contrary in this Agreement, the
13 closing of the TRAN Financing Plan and COUNTY's receipt of the funds from the
14 issuance of the TRANs under such financing plan shall be a condition precedent to
15 COUNTY's obligation to compensate ATTORNEY for such services performed under
16 financing plan, and to COUNTY's obligation to reimburse ATTORNEY for related
17 reasonable and necessary out-of-pocket expenses incurred in connection with such
18 financing plan. It is understood that such condition precedent to COUNTY's obligations
19 stated in this section is solely for COUNTY's benefit.
20 IN NO EVENT SHALL THE MAXIMUM AMOUNT PAID TO ATTORNEY AS
21 COMPENSATION FOR ATTORNEY'S SERVICES PERFORMED EXCEED $40,000
22 UNDER THIS AGREEMENT. IN NO EVENT SHALL THE MAXIMUM AMOUNT PAID
23 TO ATTORNEY AS REIMBURSEMENT OF RELATED, REASONABLE AND
24 NECESSARY OUT-OF-POCKET EXPENSES EXCEED $1,500 UNDER THIS
25 AGREEMENT, PLUS THE ACTUAL AND REASONABLE COST OF PUBLICATIONS
26 AND REPORTS OBTAINED FOR THE FINANCING AND THE PREPARATION OF
27 BOUND OR COMPACT DISC TRANSCRIPTS.
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1 4. Payment and Record-keeping: Subject to section 3 of this Agreement,
2 payment of compensation for the services provided in connection with the TRAN
3 Financing Plan and reimbursement for related, reasonable and necessary out-of-pocket
4 expenses incurred shall be made by COUNTY after submission of an itemized invoice
5 by ATTORNEY to County Counsel no later than the fifteenth (15th) day following the
6 closing of such financing plan. All payments of compensation and reimbursement for
7 related, reasonable and necessary out-of-pocket expenses incurred shall be made by
8 COUNTY no later than forty-five (45) days following the date that COUNTY receives a
9 properly completed invoice requesting the payment for such services rendered and
10 expenses incurred. COUNTY shall remit any payment to ATTORNEY's address
11 specified in the invoice for payment.
12 All such invoices shall reflect accurately the tasks performed by ATTORNEY
13 under this Agreement. In addition, all such invoices shall have sufficient detail as may
14 be required by COUNTY's Auditor-Controller/Treasurer-Tax Collector, including, but not
15 limited to:
16 A. The specific nature of each task performed as services under this
17 Agreement;
18 B. The name of the person performing each such task;
19 C. The number of hours worked by each such person for each such
20 task;
21 D. The hourly rate per each such person performing each such task;
22 and
23 E. The related, reasonable and necessary, out-of-pocket expenses
24 incurred, as provided for in section 3 of this Agreement.
25 In addition to the requirements of this section 4 of this Agreement, each invoice
26 shall set forth a summary of hours worked by each partner and associate lawyer, and
27 paralegal (if compensable under section 3 of this Agreement), for the applicable billing
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1 period. Furthermore, each such invoice shall set forth the product of such summary of
2 hours worked by each person multiplied by such person's billing rate, as set forth herein
3 (e.g., Ms. Quan's total hours worked = 10 hours; Ms. Quan's hourly billing rate is $575;
4 10 hours x Ms. Quan's billing rate of $575 per hour = $5,750).
5 In preparing invoices, ATTORNEY shall segregate each task performed on a
6 daily basis. If requested by County Counsel, or their designee, ATTORNEY shall not
7 combine unrelated tasks as a single entry in lieu of setting forth the hours of work
8 performed by a partner, associate lawyer, or paralegal on each specific task.
9 ATTORNEY shall prepare its invoices in an organized manner that facilitates an
10 efficient review of the services performed and the expenses incurred in order to provide
11 COUNTY with a clear and complete understanding of how much time was devoted to
12 specific tasks and projects, and the associated cost.
13 ATTORNEY shall keep complete records of the services provided, as described
14 in this section 4 of this Agreement, together with all related reasonable and necessary,
15 out-of-pocket expenses applicable to the work provided under this Agreement.
16 COUNTY's Auditor-Controller/Treasurer-Tax Collector, or their duly authorized
17 representatives, shall be given reasonable access to all of these records for the
18 purposes of audit of this Agreement.
19 In addition, ATTORNEY shall be subject to the examination and audit of such
20 records by the Auditor General for a period of three (3) years after final payment under
21 this Agreement (Gov. Code, § 8546.7).
22 5. Term of Agreement: This Agreement shall be effective as of the date that
23 it is executed by both parties. This Agreement shall continue in full force and effect
24 unless and until it is terminated by either or both parties. Either party may terminate this
25 Agreement at any time, either in whole or in part. However, if ATTORNEY elects to
26 terminate this Agreement, COUNTY's rights under section 3 of this Agreement shall not
27 be affected, and COUNTY's rights under any pending matter which may arise from
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1 ATTORNEY's services hereunder shall not be prejudiced due to such termination as
2 required by the Rules of Professional Conduct of the State Bar of California.
3 6. Independent Contractor: In performance of the work, duties and
4 obligations assumed by ATTORNEY under this Agreement, it is mutually understood
5 and agreed that ATTORNEY, including any and all of ATTORNEY's officers, agents,
6 and employees will at all times be acting and performing as an independent contractor,
7 and shall act in an independent capacity and not as an officer, agent, servant, employee,
8 joint venturer, partner, or associate of COUNTY. Furthermore, COUNTY shall have no
9 right to control or supervise or direct the manner or method by which ATTORNEY shall
10 perform its obligations under this Agreement. However, COUNTY shall retain the right
11 to administer this Agreement so as to verify that ATTORNEY is performing its
12 obligations in accordance with the terms and conditions hereof. ATTORNEY and
13 COUNTY shall comply with all applicable provisions of law and the rules and
14 regulations, if any, of governmental authorities having jurisdiction over matters of the
15 subject hereof.
16 Because of its status as an independent contractor, ATTORNEY shall have
17 absolutely no right to employment rights and benefits available to COUNTY employees.
18 ATTORNEY shall be solely liable and responsible for providing to, or on behalf of, its
19 employees all legally-required employee benefits. In addition, ATTORNEY shall be
20 solely responsible and save COUNTY harmless from all matters related to payment of
21 ATTORNEY's employees, including compliance with social security, withholding, and
22 all other regulations governing such matters. Both parties acknowledge that during the
23 term of this Agreement, ATTORNEY may be providing services to others unrelated to
24 COUNTY or to this Agreement.
25 7. Hold Harmless: ATTORNEY shall hold COUNTY, its officers, agents, and
26 employees harmless and indemnify and defend COUNTY, its officers, agents, and
27 employees against payment of any and all costs and expenses (including attorney's
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1 fees and court cost), claims, suits, losses, damages, and liability arising from or arising
2 out of any actual or alleged negligent or wrongful acts or omissions of ATTORNEY,
3 including its partners, officers, agents, and employees, in performing or failing to
4 perform the services provided herein. COUNTY's receipt of any insurance certificates
5 required herein does not in any way relieve the ATTORNEY from its obligations under
6 this section 7 of this Agreement.
7 The provisions of this section 7 shall survive the termination of this Agreement.
8 8. Insurance: Without limiting COUNTY's rights to obtain indemnification
9 from ATTORNEY or any third parties, ATTORNEY, at its sole expense, shall maintain
10 in full force and effect the following insurance policies throughout the entire term of this
11 Agreement:
12 A. Professional liability insurance with limits of not less than Ten
13 Million Dollars ($10,000,000) per covered event.
14 B. Comprehensive general liability insurance with limits of coverage
15 of not less than Two Million Dollars ($2,000,000) per occurrence and an annual
16 aggregate of Four Million Dollars ($4,000,000). This policy must be issued on a per
17 occurrence basis. ATTORNEY shall obtain an endorsement to this policy naming the
18 County of Fresno, its officers, agents, employees, and volunteers, individually and
19 collectively, as additional insureds, but only insofar as the operations under this
20 Agreement are concerned. Such coverage for additional insureds will apply as primary
21 insurance and any other insurance, or self-insurance, maintained by the COUNTY is
22 excess only and not contributing with insurance provided under ATTORNEY's policy.
23 C. Automobile liability insurance coverage with limits of not less than
24 One Million Dollars ($1 ,000,000.00) per occurrence for bodily injury and for property
25 damages. Coverage must include any auto used in connection with this Agreement.
26 C. Workers compensation insurance as required by the laws of the
27 State of California with statutory limits.
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1 Additional Insurance Requirements
2 Within 30 days after ATTORNEY signs this Agreement, and at any time during
3 the term of this Agreement as requested by the County Counsel, ATTORNEY shall
4 deliver, or cause its broker or producer to deliver, to the County Counsel's Office, at
5 2281 Tulare Street, Suite 304, Fresno, California 93721, or
6 CountyCounselMailbox@fresnocountyca.gov, copies of insurance policies as produced
7 by the broker or producer, and certificates of insurance and endorsements for all of the
8 coverages required under this Agreement.
9 (i) Each insurance certificate must state that: (1) the insurance coverage has
10 been obtained and is in full force; (2) COUNTY, its officers, agents,
11 employees, and volunteers are not responsible for any premiums on the
12 policy; and (3) ATTORNEY has waived its right to recover from COUNTY,
13 its officers, agents, employees, and volunteers any amounts paid under
14 any insurance policy required by this Agreement and that waiver does not
15 invalidate the insurance policy.
16 (ii) The comprehensive general liability insurance certificate must also state
17 that: (1) the County of Fresno, its officers, agents, employees, and
18 volunteers, individually and collectively, are additional insureds insofar as
19 the operations under this Agreement are concerned; (2) the coverage
20 shall apply as primary insurance and any other insurance, or self-
21 insurance, maintained by COUNTY shall be excess only and not
22 contributing with insurance provided under ATTORNEY's policy.
23 (iii) The automobile liability insurance certificate must state that the policy
24 covers any auto used in connection with this Agreement.
25 All such insurance policies shall be issued by insurers who have at least have an
26 A.M. Best, Inc. rating of A:VII or greater (except for the Professional Liability Insurance
27 policy, which shall be issued by an insurer who has at least a Standard & Poor's and
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FY 2024-25 TRANs
1 Fitch's rating of AA- because the specialized carrier is fulfilling a need in a specialty
2 market) and shall be acceptable to COUNTY's Department of Human Resources, Risk
3 Management Division.
4 For each insurance policy required under this Agreement, ATTORNEY shall
5 provide to COUNTY, or ensure that the policy requires the insurer to provide to
6 COUNTY, written notice of any cancellation or change in the policy as required in this
7 paragraph. For cancellation of the policy for nonpayment of premium, ATTORNEY shall,
8 or shall cause the insurer to, provide written notice to COUNTY not less than 10 days
9 in advance of cancellation. For cancellation of the policy for any other reason, and for
10 any other change to the policy, ATTORNEY shall, or shall cause the insurer to, provide
11 written notice to COUNTY not less than 30 days in advance of cancellation or change.
12 COUNTY in its sole discretion may determine that the failure of ATTORNEY or its
13 insurer to timely provide a written notice required by this paragraph is a breach of this
14 Agreement.
15 If ATTORNEY has or obtains insurance with broader coverage, higher limits, or
16 both, than what is required under this Agreement, then COUNTY requires and is entitled
17 to the broader coverage, higher limits, or both. To that end, ATTORNEY shall deliver,
18 or cause its broker or producer to deliver, to COUNTY's Risk Manager copies of
19 insurance policies that have such broader coverage, higher limits, or both, as produced
20 by the broker or producer, and certificates of insurance and endorsements for all of the
21 coverages that have such broader coverage, higher limits, or both, as required under
22 this Agreement.
23 ATTORNEY waives its right to recover from the County, its officers, agents,
24 employees, and volunteers any amounts paid under the policy of worker's
25 compensation insurance required by this Agreement. ATTORNEY is solely responsible
26 to obtain any policy endorsement that may be necessary to accomplish that waiver, but
27 ATTORNEY's waiver of subrogation under this paragraph is effective whether or not
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1 ATTORNEY obtains such an endorsement.
2 If ATTORNEY fails to keep in effect at all times any insurance coverage required
3 under this Agreement, COUNTY may, in addition to any other remedies it may have,
4 suspend or terminate this Agreement upon the occurrence of that failure, or purchase
5 such insurance coverage, and charge the cost of that coverage to ATTORNEY.
6 COUNTY may offset such charges against any amounts owed by COUNTY to
7 ATTORNEY under this Agreement.
8 In addition to its obligations set forth above, ATTORNEY agrees that it shall
9 maintain, at its sole expense, in full force and effect for a period of three (3) years
10 following the termination of this Agreement a policy of professional liability insurance
11 with limits of coverage of not less than Ten Million Dollars ($10,000,000) per covered
12 event; provided, however, in the event that ATTORNEY does not maintain such policy
13 of insurance for such entire three (3) year period, ATTORNEY shall maintain, at its sole
14 expense, in full force and effect extended claims reporting coverage insurance in lieu
15 thereof in the amount of not less than Ten Million Dollars ($10,000,000).
16 If any of the insurance policies required to be maintained under this section 8 of
17 this Agreement have a self-insured retention, such self-insured retentions shall be
18 funded by ATTORNEY and approved by COUNTY's Department of Human Resources,
19 Risk Management Division.
20 The provisions of this section 8 shall survive the termination of this Agreement.
21 9. Agreement is Binding Upon Successors: This Agreement shall be binding
22 upon COUNTY and ATTORNEY and their respective successors, executors,
23 administrators, legal representatives, and assigns with respect to all the covenants and
24 conditions set forth herein.
25 10. Assignment and Subcontracting: Notwithstanding anything stated to the
26 contrary in section 9 of this Agreement, neither party hereto shall assign, transfer, or
27 sub-contract this Agreement nor its rights or duties hereunder without the written
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1 consent of the other.
2 11. Amendments: This Agreement may only be amended in writing signed by
3 the parties hereto.
4 12. Conflict of Interest: ATTORNEY promises, covenants, and warrants that,
5 after having performed a reasonable investigation, the performance of its services and
6 representation to COUNTY under this Agreement do not result in a "conflict of interest."
7 ATTORNEY further promises, covenants, and warrants that it will keep reasonably
8 informed of its services to the COUNTY and other clients to ensure that the performance
9 of its services and representation to COUNTY under this Agreement will not result in a
10 "conflict of interest." In the event a "conflict of interest" occurs, ATTORNEY will request
11 COUNTY's Board of Supervisors to waive such "conflict of interest" on a case-by-case
12 basis. For purposes of this paragraph 12, the phrase "conflict of interest" has the same
13 meaning as in the California Rules of Professional Conduct.
14 13. Further Assurances by ATTORNEY: ATTORNEY represents that it has
15 read and is familiar with Government Code §§ 1090 et seq. and §§ 87100 et seq.
16 ATTORNEY promises, covenants, and warrants that, after having performed a
17 reasonable investigation, the performance of its services under this Agreement shall not
18 result in or cause a violation by it of Government Code §§ 1090 et seq. and §§ 87100
19 et seq.
20 14. Compliance With Laws: ATTORNEY shall comply with all federal, state,
21 and local laws and regulations applicable to the performance of its obligations under
22 this Agreement.
23 15. Notices: The persons and their addresses having authority to give and
24 receive notices under this Agreement include the following:
25 COUNTY ATTORNEY
26 County Counsel Diane K. Quan
COUNTY OF FRESNO Hawkins Delafield & Wood LLP
27 2220 Tulare Street, 300 South Grand Avenue
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FY 2024-25 TRANs
5th Floor Los Angeles, CA 90071
1 Fresno, CA 93721
2 Any and all notices between COUNTY and ATTORNEY provided for or
3 permitted under this Agreement must be in writing and delivered either by personal
4 service, by first-class United States mail, or by an overnight commercial courier
5 service. A notice delivered by personal service is effective upon service to the
6 recipient. A notice delivered by first-class United States mail is effective three (3)
7 COUNTY business days after deposit in the United States mail, postage prepaid,
8 addressed to the recipient. A notice delivered by an overnight commercial courier
9 service is effective one (1) COUNTY business day after deposit with the overnight
10 commercial courier service, delivery fees prepaid, with delivery instructions given for
11 next day delivery, addressed to the recipient. For all claims arising out of or related to
12 this Agreement, nothing in this section establishes, waives, or modifies any claims
13 presentation requirements or procedures provided by law, including but not limited to
14 the Government Claims Act (Division 3.6 of Title 1 of the Government Code,
15 beginning with section 810).
16 16. Venue and Governing Law: The parties agree that for purposes of venue,
17 performance under this Agreement is to be in Fresno County, California. The rights and
18 obligations of the parties and all interpretations and performance of this Agreement shall
19 be governed in all respects by the laws of the State of California.
20 17. Disclosure of Self-Dealing Transactions: This provision is only applicable
21 if ATTORNEY is operating as a corporation (a for-profit or non-profit corporation) or if
22 during the term of this Agreement, ATTORNEY changes its status to operate as a
23 corporation. Members of ATTORNEY's Board of Directors shall disclose any self-
24 dealing transactions that they are a party to while ATTORNEY is providing goods or
25 performing services under this Agreement. A self-dealing transaction shall mean a
26 transaction to which the ATTORNEY is a party and in which one or more of its directors
27 has a material financial interest. Members of the Board of Directors shall disclose any
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FY 2024-25 TRANs
1 self-dealing transactions that they are a party to by completing and signing a Self-
2 Dealing Transaction Disclosure Form (Exhibit A) and submitting it to COUNTY prior to
3 commencing with the self-dealing transaction or immediately thereafter.
4 18. Entire Agreement: This Agreement constitutes the entire agreement
5 between COUNTY and ATTORNEY with respect to the specialized legal services to be
6 provided herein and supersedes any previous agreement concerning the subject matter
7 hereof, negotiations, proposals, commitments, writings, or understandings of any nature
8 whatsoever unless expressly included in this Agreement.
9 If any part of this Agreement is found to violate any law or is found to be otherwise
10 legally defective, ATTORNEY and COUNTY shall use their best efforts to replace that
11 part of this Agreement with legal terms and conditions most readily approximating the
12 original intent of the parties.
13 19. Counterparts: This Agreement may be executed in one or more
14 counterparts, each of which when executed shall be deemed to be an original, and such
15 counterparts shall together constitute one and the same instrument.
16 20. Electronic Signatures: The parties agree that this Agreement may be
17 executed by electronic signature as provided in this section. An "electronic signature"
18 means any symbol or process intended by an individual signing this Agreement to
19 represent their signature, including but not limited to (1) a digital signature; (2) a faxed
20 version of an original handwritten signature; or (3) an electronically scanned and
21 transmitted (for example by PDF document) version of an original handwritten
22 signature. Each electronic signature affixed or attached to this Agreement (1) is deemed
23 equivalent to a valid original handwritten signature of the person signing this Agreement
24 for all purposes, including but not limited to evidentiary proof in any administrative or
25 judicial proceeding, and (2) has the same force and effect as the valid original
26 handwritten signature of that person. The provisions of this section satisfy the
27
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FY 2024-25 TRANs
1 requirements of Civil Code section 1633.5, subdivision (b), in the Uniform Electronic
2 Transaction Act (Civil Code, Division 3, Part 2, Title 2.5, beginning with section 1633.1).
3 Each party using a digital signature represents that it has undertaken and satisfied the
4 requirements of Government Code section 16.5, subdivision (a), paragraphs (1)through
5 (5), and agrees that each other party may rely upon that representation. This Agreement
6 is not conditioned upon the parties conducting the transactions under it by electronic
7 means and either party may sign this Agreement with an original handwritten signature.
8 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
9 executed as of the day and year first above written.
10 HAWKINS DELAFIELD & WOOD LLP COUNTY OF FRESNO
11
12 'ane K. Quan Nathan Magsig, Chairman of the
Partner Board of Supervisors of the
13 County of Fresno
14
15 ATTEST:
16 BERNICE E. SEIDEL
Clerk of the Board of Supervisors
17 County of Fresno, State of California
18
By N A , A&-
19 Deputy
20 ORG: 2540
FUND: 0001
21 ACCOUNT: 7295
SUBCLASS: 10000
22
TRANs Agreement FY 2024-25
23
24
25
26
27
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FY 2024-25 TRANs
EXHIBIT A
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).
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(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:
A-2