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Agreement No . 20-118
FY 2020 -21 TRANs
AGREEMENT FOR SPECIALIZED LEGAL SERVICES
(BOND COUNSEL AND DISCLOSURE COUNSEL SERVICES FOR FISCAL YEAR
2020-21 TAX AND REVENUE ANTICIPATION NOTES)
THIS AGREEMENT ("Agreement") is made and entered into this 24th day of
~M=a~r=ch~--' 2020, by and between the COUNTY OF FRESNO, a political subdivision of the
6 State of California ("COUNTY") and the law firm of Hawkins Delafield & Wood LLP
7 ("ATTORNEY").
8 Recitals
9 A. COUNTY has the possible need to sell and issue Tax and Revenue Anticipation
10 Notes ("TRANs;" Govt. Code,§§ 53850 et seq.) for the fiscal year 2020-21 ("TRAN Financing
11 Plan").
12 B . If COUNTY sells and issues the TRANs, COUNTY desires to do so on a tax-
13 exempt basis.
14 C. COUNTY wishes to engage the specialized legal services of a law firm to serve
15 both as bond counsel and as disclosure counsel who is expert in legal matters concerning the
16 issuance ofTRANs.
17 D. ATTORNEY represents that it is specially trained and experienced, and that it
18 possesses such expertise .
19 E. Such specialized legal services are either not available or not expected to be
20 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): Arto C. Becker,
24 Russell A. Miller, Diane K . Quan, and Brian Organ, partners of ATTORNEY; and such other
25 partners of, and associate lawyers and staff members employed by , ATTORNEY as
26 ATTORNEY deems necessary , and who COUNTY 's County Counsel ("County Counsel "), or
27 his or her designee , approves pursuant to section 3 of this Agreement, except that the foregoing
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key persons may, from time to time, consult with such of ATTORNEY’s other lawyers on a
“limited basis” (as defined below) as ATTORNEY reasonably deems prudent and necessary
under the circumstances. ATTORNEY may not replace any of the aforementioned key persons
named above without the prior, express, written approval of County Counsel, or his or her
designee. In case of death, illness or other incapacity, or departure 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.
A. Scope of Bond Counsel Services: In its capacity as bond counsel,
ATTORNEY shall provide the following professional legal services in order to assist COUNTY
in selling and issuing TRANs:
(1) Legal review of the financing structure of the TRAN Financing
Plan.
(2) Consultation with COUNTY officials, County Counsel, or his or
her designee, lawyers in ATTORNEY’s firm who are acting in their capacity as COUNTY’s
disclosure counsel (“Disclosure Counsel”), and the municipal financial advisor selected by
COUNTY, concerning the timing, terms, and structure of the TRAN Financing plan.
(3) Preparation and review of, and advise COUNTY in connection
with, any and all documents, agreements, resolutions, instruments and certificates to be used for
the sale and issuance of the TRANs for the TRAN Financing Plan including, but not limited to,
the paying agent or fiscal agent agreement or certificate (if used), the TRANs, the resolution(s)
of COUNTY’s Board of Supervisors (collectively, “COUNTY Board Resolution”) authorizing
the sale and issuance of the TRANs under the TRAN Financing Plan, setting forth the terms and
conditions of the notes, their form, date, denominations, and maturities, and providing for the
establishment of a fund as security for the notes to ensure compliance with applicable laws and
regulations, the tax certificate, insurance policies, and credit or liquidity facilities.
(4) Review, and advise COUNTY in connection with, the Preliminary
Official Statement and the Official Statement for the TRAN Financing Plan, prepared by
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Disclosure Counsel, describing the sale and issuance of the TRANs, and other related
documents, agreement, resolutions, instruments and certificates.
(5) Review, and advise COUNTY in connection with, any and all
documents, resolutions, instruments and certificates to be executed by COUNTY at the closing
of the TRAN Financing Plan, which are necessary for COUNTY to comply with the continuing
disclosure requirements under Securities and Exchange Commission Rule 15c-212, including,
but not limited to the amendments thereto (collectively, “SEC Continuing Disclosure
Certificate”).
(6) If a negotiated sale is used for the TRAN Financing Plan, review,
and advise COUNTY in connection with, the note purchase contract with the underwriter
(“Contract of Purchase”) prepared by Disclosure Counsel for the TRAN Financing Plan, and
other related documents, agreements, resolutions, instruments and certificates.
(7) If a competitive sale is used for the TRAN Financing Plan, review,
and advise COUNTY in connection with:
(a) the Official Notice of Sale of the TRANs and Bid Form
prepared by bond counsel;
(b) the notice of intention to sell securities, prepared by bond
counsel, to be published in a publication selected by COUNTY’s Auditor-Controller/Treasurer-
Tax Collector, as provided by Government Code § 53692;
(c) the bids submitted for the purchase of the TRANs; and
(d) other related documents, agreements, resolutions,
instruments and certificates;
(8) Provide comment to underwriter’s counsel, if such counsel is
employed by an underwriter, and to Disclosure Counsel, concerning any and all documents,
agreements, instruments and resolutions referred to herein which are prepared by Disclosure
Counsel.
(9) As to those documents, agreements, resolutions, instruments and
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certificates prepared by bond counsel, distribute necessary drafts and revisions of same, receive
comments from members of the financing team for the TRAN Financing Plan and from other
parties for such financing plan, and resolve same to the satisfaction of County Counsel or his or
her designee.
(10) Examination of proofs of the notes for the TRANs.
(11) Draft all closing documents, instruments and certificates in
connection with the TRAN Financing Plan.
(12) Render written unqualified opinions relating to the TRAN
Financing Plan, which shall be acceptable to County Counsel, or his or her designee, in form and
substance, to the following effect:
(a) that the TRANs have been duly authorized and issued and
constitute legally valid and binding obligations of COUNTY, enforceable in accordance with
their terms;
(b) that the TRANs and interest thereon are payable solely
from the taxes, income, revenues, cash receipts and other monies received by COUNTY for its
general fund for fiscal year ending June 30, 2021 (“Source of Payment of the TRANs and Interest
Thereon”);
(c) that the Source of Payment of the TRANs and Interest
Thereon is lawfully available for the payment thereof;
(d) that the interest on the TRANs is excluded from “gross
income” for federal income tax purposes under Section 103 of the Internal Revenue Code of
1986;
(e) that the interest on the TRANs is excluded from personal
income taxes of the State of California;
(f) that the Official Statement, to the extent that the statements
contained therein purport to summarize the provisions of the TRANs, the COUNTY Board
Resolution, and the governing law related thereto, is accurate and complete in all material
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respects;
(g) that, based upon the information developed and received
in the provision of its services herein, no information has come to the attention of bond counsel
which would cause bond counsel to believe that the Official Statement, as of the date of the
Official Statement and as of the closing of the TRAN Financing Plan, contains any untrue
statements of material fact or omits to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under which they were
made, not misleading; and
(h) if a paying agent or fiscal agent agreement or certificate is
used, that the paying agent or fiscal agent agreement or certificate has been duly authorized,
executed and delivered by COUNTY, and constitutes a legally valid and binding obligation of
COUNTY, enforceable against COUNTY in accordance with its terms.
All such opinions shall be addressed in a letter to COUNTY’s Board of
Supervisors (which letter shall expressly state that COUNTY’s Board of Supervisors is the
ATTORNEY’s client), and be provided at the time of the delivery of and receipt for payment of
the TRANs. Any and all such opinions shall also be addressed to the underwriter (if requested
by the underwriter), as a reliance opinion, as hereinafter provided, and be provided at the time
of the delivery of and receipt for payment of the TRANs.
If ATTORNEY provides a written opinion to any third party (e.g., an
underwriter) whereby the third party is allowed to rely upon any opinion given by ATTORNEY
to COUNTY under this Agreement (a “reliance opinion”), such reliance opinion shall (i) be
provided in a letter, separate from the opinions given by ATTORNEY to COUNTY herein, and
(ii) expressly state substantially to the effect that no attorney-client relationship exists or is
created by reason of giving such opinion.
(13) Comment and advise COUNTY on issues that arise in the course
of the implementation of the TRAN Financing Plan.
(14) Attend meetings with either COUNTY staff, COUNTY Debt
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Advisory Committee, or the Board of Supervisors, or all of them, upon request by the County
Counsel, or his or her designee.
(15) Attend meetings with rating agencies and COUNTY’s municipal
financial advisor, upon request by County Counsel, or his or her designee.
(16) Handle closing and post-closing issues in connection with the
TRAN Financing Plan, and distribute any and all documents, agreements, resolutions,
instruments and certificates to appropriate persons or organizations.
(17) Perform such other similar services as County Counsel, or his or
her designee, may request.
B. Scope of Disclosure Counsel Services: In its capacity as disclosure
counsel, ATTORNEY shall provide the following professional legal services in order to assist
COUNTY in selling and issuing the TRANs:
(1) Consultation with COUNTY officials, County Counsel, or his or
her designee, lawyers in ATTORNEY’s firm who are acting in their capacity as COUNTY’s
bond counsel (“Bond Counsel”), and the municipal financial advisor selected by COUNTY,
concerning the timing, terms, and structure of the TRAN Financing Plan.
(2) Review of, and advise COUNTY in connection with, any and all
documents, agreements, resolutions, instruments and certificates to be used for the sale and
issuance of the TRANs for the TRAN Financing Plan including, but not limited to, the paying
agent or fiscal agent agreement or certificate (if used), the TRANs, the COUNTY Board
Resolution, the tax certificate, insurance policies, and credit or liquidity facilities.
(3) Preparation and review of, and advise COUNTY in connection
with, the Preliminary Official Statement and the Official Statement for the TRAN Financing
Plan describing the sale and issuance of the TRANs, and other related documents, agreements,
resolutions, instruments and certificates.
(4) Preparation and review of, and advise COUNTY in connection
with, any and all documents, agreements, instruments and resolutions to be executed by
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COUNTY at the closing of the TRAN Financing Plan, including, but not limited to, the SEC
Continuing Disclosure Certificate.
(5) Perform due diligence necessary to prepare COUNTY’s
Preliminary Official Statement, Official Statement, SEC Continuing Disclosure Certificate, and
any other disclosure documents for the TRAN Financing Plan, in order to ensure that such
financing plan is in compliance with the applicable securities laws and regulations, including,
but not limited to Securities and Exchange Commission Rule 10b-5 and Rule 15c2-12, as
amended.
(6) If a negotiated sale is used for the TRAN Financing Plan,
preparation and review of, and advise COUNTY in connection with, the Contract of Purchase
with the underwriter, for the TRAN Financing Plan, and other related documents, agreements,
resolutions and certificates.
(7) Provide comment to underwriter’s counsel, if such counsel is
employed by an underwriter, and to Bond Counsel, concerning any and all documents,
agreements, instruments and resolutions referred to herein which are prepared by Bond Counsel.
(8) As to those documents, agreements, resolutions, instruments and
certificates prepared by disclosure counsel, distribute necessary drafts and revisions of same,
receive comments from members of the financing team for the TRAN Financing Plan and from
other parties for such financing plan, and resolve same to the satisfaction of County Counsel or
his or her designee.
(9) Render unqualified written opinions relating to the TRAN
Financing Plan, which shall be acceptable to County Counsel, or his or her designee, in form and
substance, to the following effect:
(a) that the Official Statement for the TRAN Financing Plan,
to the extent that the statements contained therein purport to summarize the underlying
information referred to therein (including, but not limited to, the instruments, resolutions,
transactions, agreements, and records, and the laws and regulations governing same, in
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connection with the TRANs and the COUNTY Board Resolution) is accurate and complete in
all material respects, assuming the accuracy and completeness and fairness of the statements
contained in such underlying information;
(b) if a negotiated sale is used, that the Contract of Purchase
has been duly authorized, executed, and delivered by COUNTY, and that it constitutes a legally
valid and binding obligation of COUNTY, enforceable against COUNTY in accordance with its
terms;
(c) that, based upon the information developed and received
in the provision of its services under this Agreement, no information has come to the attention
of disclosure counsel which would cause disclosure counsel to believe that the Official Statement
for the TRAN Financing plan, as of the date of such Official Statement and as of the closing of
such financing plan, contains any untrue statements of material fact or omits to state any material
fact required to be stated or necessary to make such statements, in light of the circumstances
under which they were made, not misleading.
(d) that the TRANs are exempt from the registration
requirements of the Securities Act of 1933, as amended; and
(e) that the COUNTY Board Resolution is exempt from
qualification under the Trust Indenture Act of 1939, as amended.
All such opinions shall be addressed in a letter to COUNTY’s Board of
Supervisors (which letter shall expressly state that COUNTY’s Board of Supervisors is the
ATTORNEY’s client), and be provided at the time of the delivery of and receipt for payment of
the TRANs. Any and all such opinions shall also be addressed to the underwriter (if requested
by the underwriter), as a reliance opinion, as hereinafter provided, and be provided at the time
of the delivery of and receipt for payment of the TRANs.
If ATTORNEY provides a reliance opinion to any third party (e.g., an
underwriter) whereby the third party is allowed to rely upon any opinion given by ATTORNEY
to COUNTY under this Agreement, such reliance opinion shall (i) be provided in a letter,
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separate from the opinions given by ATTORNEY to COUNTY herein, and (ii) expressly state
in the text of such reliance opinion substantially to the effect that no attorney-client relationship
exists or is created by reason of giving such opinion.
(10) Assist COUNTY, and its municipal financial advisor, in
corresponding with the printer of the Preliminary Official Statement and Official Statement in
order to facilitate a prompt and efficient printing of same.
(11) Render advice, as requested by COUNTY’s Auditor-Controller/
Treasurer-Tax Collector, or her designee, or by County Counsel, or his or her designee, to
COUNTY, and its municipal financial advisor, regarding the marketing and sale of the TRANs.
(12) Comment and advise COUNTY on issues that arise in the course
of the implementation of the TRAN Financing Plan.
(13) Attend meetings with COUNTY staff, COUNTY’s Debt Advisory
Committee, or COUNTY’s Board of Supervisors, or all of them, upon request by the County
Counsel, or his or her designee.
(14) Handle closing and post-closing issues in connection with the
TRAN Financing Plan, and distribute any and all documents, agreements, resolutions,
instruments and certificates to appropriate persons or organizations.
(15) Perform such other similar services as County Counsel, or his or
her designee, may request.
C. Authorization to Proceed With Work: ATTORNEY shall commence
performance of services upon receiving authorization to proceed with work from County
Counsel, or his or her designee.
2. Performance by Attorney: ATTORNEY agrees to timely perform all services
provided 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 COUNTY under this Agreement.
COUNTY shall not be obligated to compensate ATTORNEY for intra-office conferences
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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 reimbursement made for related,
reasonable and necessary, out-of-pocket expenses to ATTORNEY, or both.
In the performance of the tasks identified in section 1 under this Agreement,
ATTORNEY shall provide only those services that are necessary to carry out such tasks in an
efficient and effective manner.
ATTORNEY shall provide lawyers who possess the following qualities and skills:
A. the lawyer possesses a high level of professional ethics and personal
integrity, and exercises good judgment;
B. the lawyer has experience and expertise in the particular municipal
finance matter for which he or she is providing services;
C. the lawyer has exceptional technical legal skills;
D. the lawyer vigorously represents COUNTY so that COUNTY’s
best interests are served;
E. the lawyer efficiently and timely completes assigned tasks;
F. the lawyer is reasonably available when County Counsel, or his or her
designee, needs to consult with the lawyer on short notice;
G. the lawyer anticipates potential problems and advises County Counsel
regarding same;
H. the lawyer explains complex municipal finance concepts to County
Counsel, or his or her designee, so that County Counsel, or his or her designee, has a clear and
complete understanding of the relevant issues and facts of a matter; and
I. the lawyer cooperates with County Counsel, or his or her designee, and
other members of the financing team, including amicably resolving disputes, if any, among
financing team members to the satisfaction of County Counsel, or his or her designee.
3. Compensation of ATTORNEY: COUNTY shall compensate ATTORNEY
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pursuant to the terms and conditions of this Agreement only for the performance of those tasks,
to the reasonable satisfaction of COUNTY, that relate 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 ATTORNEY: (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 following sum per hour per person:
Partners:
Arto C. Becker $575
Russell A. Miller $575
Diane K. Quan $540
Brian Organ $540
Associates: $350
The foregoing lawyers may, from time to time, consult with such of ATTORNEY’s other
lawyers on a “limited basis” as ATTORNEY reasonably deems prudent and necessary under the
circumstances, and ATTORNEY may also, upon the written approval of County Counsel, or his
or her designee, provide additional partners of, or associate lawyers employed by its firm to
perform significant services under this Agreement, provided that such additional persons who
are consulted or who provide significant services are compensated by COUNTY for performance
of tasks under this Agreement at a rate not to exceed each such person’s customary billing rate
per hour for local governmental entities. Notwithstanding anything stated to the contrary in this
section, the term “limited basis” means fifteen (15) hours or less worked by ATTORNEY’s
lawyers, collectively, other than the lawyers identified above, per month or fraction thereof.
In addition, ATTORNEY shall be reimbursed for reasonable, and necessary out-of-
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pocket expenses, as follows: telephone charges, telephonic facsimile transmission charges,
computer research charges, publication costs, filing fees, courier charges, postage charges,
printing and photographic reproduction expenses, in-State travel, and all such directly-related
expenses. ATTORNEY shall also be reimbursed for the actual and reasonable cost of
publications and reports obtained for the financing and the preparation of bound or compact disc
transcripts.
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 in the immediately preceding paragraph of this
Agreement. In addition, ATTORNEY shall not be reimbursed for such services performed or
expenses incurred, regardless of whether such tasks are performed or expenses are incurred by
ATTORNEY’s partners, associate lawyers, or anyone else. Upon approval by the County
Counsel, ATTORNEY may use paralegals to perform services under this Agreement. Under no
circumstances shall COUNTY compensate ATTORNEY for secretarial or clerical work
performed by paralegals. 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.
It is understood that COUNTY may abandon the TRAN Financing Plan, at any time,
without any reason.
Notwithstanding anything else stated to the contrary in this Agreement, the closing of the
TRAN Financing Plan and COUNTY’s receipt of the funds from the issuance of the TRANs
under such financing plan shall be a condition precedent to COUNTY’s obligation to
compensate ATTORNEY for such services performed under financing plan, and to COUNTY’s
obligation to reimburse ATTORNEY for related reasonable and necessary out-of-pocket
expenses incurred in connection with such financing plan. It is understood that such condition
precedent to COUNTY’s obligations stated in this section is solely for COUNTY’s benefit.
IN NO EVENT SHALL THE MAXIMUM AMOUNT PAID TO ATTORNEY AS
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COMPENSATION FOR ATTORNEY'S SERVICES PERFORMED EXCEED $38,000
UNDER THIS AGREEMENT. IN NO EVENT SHALL THE MAXIMUM AMOUNT
PAID TO ATTORNEY AS REIMBURSEMENT OF RELATED, REASONABLE AND
NECESSARY OUT-OF-POCKET EXPENSES EXCEED $1,500 UNDER THIS
AGREEMENT, PLUS THE ACTUAL AND REASONABLE COST OF PUBLICATIONS
AND REPORTS OBTAINED FOR THE FINANCING AND THE PREPARATION OF
BOUND OR COMPACT DISC TRANSCRIPTS.
4. Payment and Record-keeping: Subject to section 3 of this Agreement, payment
of compensation for the services provided in connection with the TRAN Financing Plan 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 County Counsel
no later than the fifteenth (15th) day following the closing of such financing plan. All payments
of compensation and reimbursement for related, reasonable and necessary out-of-pocket
expenses incurred shall be made by COUNTY no later than forty-five (45) days following the
date that COUNTY receives a properly completed invoice requesting the payment for such
services rendered and expenses incurred. COUNTY shall remit any payment to ATTORNEY’s
address specified in the invoice for payment.
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’s Auditor-Controller/Treasurer-Tax Collector, including, but not limited to:
A. The specific nature of each task performed as services under this
Agreement;
B. The name of the person 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 section 3 of this Agreement.
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In addition to the requirements of this section 4 of this Agreement, each invoice shall set
forth a summary of hours worked by each partner and associate lawyer, and paralegal (if
compensable under section 3 of this Agreement), for the applicable billing period. Furthermore,
each such invoice shall set forth the product of such summary of hours worked by each person
multiplied by such person’s billing rate, as set forth herein (e.g., Mr. Becker’s total hours worked
= 10 hours; Mr. Becker’s hourly billing rate is $575; 10 hours x Mr. Becker’s billing rate of $575
per hour = $5,750).
In preparing invoices, ATTORNEY shall segregate each task performed on a daily basis.
If requested by County Counsel, or his or her designee, ATTORNEY shall not combine unrelated
tasks as a single entry in lieu of setting forth the hours of work performed by a partner, associate
lawyer, or paralegal on each specific task.
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 associated cost.
ATTORNEY shall keep complete records of the services provided, as described in this
section 4 of this Agreement, together with all related reasonable and necessary, out-of-pocket
expenses applicable to the work provided under this Agreement. COUNTY’s Auditor-
Controller/Treasurer-Tax Collector, or his or her duly authorized representatives, 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, § 8546.7).
5. Term of Agreement: This Agreement shall be effective as of the date that it is
executed by both parties. This Agreement shall continue in full force and effect unless and until
it is terminated by either or both parties. Either party may terminate this Agreement at any time,
either in whole or in part. However, if ATTORNEY elects to terminate this Agreement,
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COUNTY’s rights under section 3 of this Agreement shall not be affected, and 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.
6. 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 venturer, partner, or associate of
COUNTY. Furthermore, COUNTY shall have no right to control or 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. 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.
Both parties acknowledge that during the term of this Agreement, ATTORNEY may be
providing services to others unrelated to COUNTY or to this Agreement.
7. 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 (including attorney’s fees and court cost),
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claims, suits, losses, damages, and liability arising from or arising out of any actual or alleged
negligent or wrongful acts or omissions of ATTORNEY, including its partners, officers, agents,
and employees, in performing or failing to perform the services provided herein. COUNTY’s
receipt of any insurance certificates required herein does not in any way relieve the ATTORNEY
from its obligations under this section 7 of this Agreement.
The provisions of this section 7 shall survive the termination of this Agreement.
8. Insurance: Without limiting COUNTY’s rights to obtain indemnification from
ATTORNEY or 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:
A. Professional liability insurance with limits of not less than Ten Million
Dollars ($10,000,000) per covered event.
B. Comprehensive general liability insurance with limits of coverage of not
less than Two Million Dollars ($2,000,000) per occurrence and an annual aggregate of Four
Million Dollars ($4,000,000). This policy must be issued on a per occurrence basis. ATTORNEY
shall obtain an endorsement to this policy naming the County of Fresno, its officers, agents,
employees, and volunteers, individually and collectively, as additional insureds, but only insofar
as the operations under this Agreement are concerned. Such coverage for additional insureds
will apply as primary insurance and any other insurance, or self-insurance, maintained by the
COUNTY is excess only and not contributing with insurance provided under ATTORNEY’s
policy.
C. Automobile liability insurance coverage with limits of not less than One
Million Dollars ($1,000,000.00) per occurrence for bodily injury and for property damages.
Coverage must include any auto used in connection with this Agreement.
C. Workers compensation insurance as required by the California Labor
Code.
Additional Insurance Requirements
Within 30 days after ATTORNEY signs this Agreement, ATTORNEY shall deliver, or
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cause its broker or producer to deliver, to the County Counsel’s Office, at 2281 Tulare Street,
Suite 304, Fresno, California 93721, or CountyCounselMailbox@fresnocountyca.gov, copies of
insurance policies as produced by the broker or producer, and certificates of insurance and
endorsements for all of the coverages required under this Agreement.
(i) All insurance certificates must state that: (1) the insurance coverage has been
obtained and is in full force; (2) COUNTY, its officers, agents, employees, and
volunteers are not responsible for any premiums on the policy; and (3)
ATTORNEY has waived its right to recover from COUNTY, its officers, agents,
employees, and volunteers any amounts paid under any insurance policy required
by this Agreement and that waiver does not invalidate the insurance policy.
(ii) The comprehensive general liability insurance certificate must also state that: (1)
COUNTY, its officers, agents, employees, and volunteers, individually and
collectively, are additional insureds insofar as the operations under this
Agreement are concerned; (2) the coverage shall apply as primary insurance and
any other insurance, or self-insurance, maintained by COUNTY shall be excess
only and not contributing with insurance provided under ATTORNEY’s policy.
(iii) The automobile liability insurance certificate must state that the policy covers any
auto used in connection with this Agreement.
All such insurance policies shall be issued by insurers who have at least have an A.M.
Best, Inc. rating of A:VII or greater (except for the Professional Liability Insurance policy, which
shall be issued by an insurer who has at least a Standard & Poor’s and Fitch’s rating of AA-
because the specialized carrier is fulfilling a need in a specialty market) and shall be acceptable
to COUNTY’s Department of Human Resources, Risk Management Division.
For each insurance policy required under this Agreement, ATTORNEY shall provide to
COUNTY, or ensure that the policy requires the insurer to provide to COUNTY, written notice
of any cancellation or change in the policy as required in this paragraph. For cancellation of the
policy for nonpayment of premium, ATTORNEY shall, or shall cause the insurer to, provide
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written notice to COUNTY not less than 10 days in advance of cancellation. For cancellation of
the policy for any other reason, and for any other change to the policy, ATTORNEY shall, or
shall cause the insurer to, provide written notice to COUNTY not less than 30 days in advance
of cancellation or change. COUNTY in its sole discretion may determine that the failure of
ATTORNEY or its insurer to timely provide a written notice required by this paragraph is a
breach of this Agreement.
If ATTORNEY has or obtains insurance with broader coverage, higher limits, or both,
than what is required under this Agreement, then COUNTY requires and is entitled to the broader
coverage, higher limits, or both. To that end, ATTORNEY shall deliver, or cause its broker or
producer to deliver, to COUNTY’s Risk Manager copies of insurance policies that have such
broader coverage, higher limits, or both, as produced by the broker or producer, and certificates
of insurance and endorsements for all of the coverages that have such broader coverage, higher
limits, or both, as required under this Agreement.
ATTORNEY waives its right to recover from the County, its officers, agents, employees,
and volunteers any amounts paid under the policy of worker’s compensation insurance required
by this Agreement. ATTORNEY is solely responsible to obtain any policy endorsement that
may be necessary to accomplish that waiver, but ATTORNEY’s waiver of subrogation under
this paragraph is effective whether or not ATTORNEY obtains such an endorsement.
If ATTORNEY fails to keep in effect at all times any insurance coverage required under
this Agreement, COUNTY may, in addition to any other remedies it may have, suspend or
terminate this Agreement upon the occurrence of that failure, or purchase such insurance
coverage, and charge the cost of that coverage to ATTORNEY. COUNTY may offset such
charges against any amounts owed by COUNTY to ATTORNEY under this Agreement.
In addition to its obligations set forth above, 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 Ten Million and No/100 Dollars ($10,000,000.00) per covered event; provided, however,
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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 expense, in full force and effect extended
claims reporting coverage insurance in lieu thereof in the amount of not less than Ten Million
and No/100 Dollars ($10,000,000.00).
If any of the insurance policies required to be maintained under this section 8 of this
Agreement have a self-insured retention, such self-insured retentions shall be funded by
ATTORNEY and approved by COUNTY’s Department of Human Resources, Risk
Management Division.
The provisions of this section 8 shall survive the termination of this Agreement.
9. Agreement is Binding Upon Successors: This Agreement shall be binding upon
COUNTY and ATTORNEY and their respective successors, executors, administrators, legal
representatives, and assigns with respect to all the covenants and conditions set forth herein.
10. Assignment and Subcontracting: Notwithstanding anything stated to the contrary
in section 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.
11. Amendments: This Agreement may only be amended in writing signed by the
parties hereto.
12. 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.” ATTORNEY further
promises, covenants, and warrants that it will keep reasonably informed of its services to the
COUNTY and other clients to ensure that the performance of its services and representation to
COUNTY under this Agreement will not result in a “conflict of interest.” 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. For purposes of this paragraph 12, the phrase
“conflict of interest” has the same meaning as in the California Rules of Professional Conduct.
13. Further Assurances by ATTORNEY: ATTORNEY represents that it has read and
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is familiar with Government Code §§ 1090 et seq. and §§ 87100 et seq. ATTORNEY promises,
covenants, and 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 §§ 1090 et seq. and §§ 87100 et seq.
14. 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.
15. Notices: The persons and their addresses having authority to give and receive
notices under this Agreement include the following:
COUNTY ATTORNEY
County Counsel Arto C. Becker COUNTY OF FRESNO Hawkins Delafield & Wood LLP 2220 Tulare Street, 333 South Grand Avenue 5th Floor Los Angeles, CA 90071 Fresno, CA 93721
Any and all notices between 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, or by an overnight commercial courier service,. 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 (3) 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 (1) 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. 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 law, including but not limited to the Government
Claims Act (Division 3.6 of Title 1 of the Government Code, beginning with section 810).
16. 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
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governed in all respects by the laws of the State of California.
17. 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 the
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 (Exhibit A) and
submitting it to COUNTY prior to commencing with the self-dealing transaction or immediately
thereafter.
18. Entire Agreement: This Agreement constitutes the entire agreement between
COUNTY and ATTORNEY with respect to the specialized legal services to be provided herein
and supersedes any previous agreement concerning the subject matter hereof, negotiations,
proposals, commitments, writings, or understandings of any nature whatsoever unless expressly
included in this Agreement.
If any part of this Agreement is found to violate 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.
19. Counterparts: This Agreement may be executed in one or more counterparts, each
of which when executed shall be deemed to be an original, and such counterparts shall together
constitute one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
FY 2020-2 1 TRANs
1 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
2 as of the day and year first above written.
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HAWKINS DELAFIELD & WOOD LLP
Arto C. Becker
Partner
ORG: 2540
FUND: 0001
ACCOUNT: 7295
SUBCLASS : 10000
TRANs Agree ment FY 2020-21
COUNTY OF FRESNO
B ~
Ernest Buddy M des , Chairman of the
Board of Supervi so rs of the
County of Fresno
ATTEST:
BERNICE E. SEIDEL
Clerk of the Board of Supervisors
County of Fresno, State of California
By 3u$-O-.tv\ ~ sh<>f)
Deputy
22
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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: