HomeMy WebLinkAbout20-296AgreementMcCormickBarstowAgreement.pdf
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AGREEMENT FOR SPECIALIZED LEGAL SERVICES
THIS AGREEMENT is made and entered into this 4th day of August, 2020, by
and between the COUNTY OF FRESNO, a political subdivision of the State of
California, hereinafter referred to as “COUNTY,” and McCormick Barstow, LLP,
hereinafter referred to as “ATTORNEY.”
WITNESSETH
WHEREAS, COUNTY has need of expert legal advice in the area of real estate
transactions; and
WHEREAS, COUNTY wishes to obtain specialized services, as authorized by
Government Code section 31000, to represent COUNTY in the suit; and
WHEREAS, ATTORNEY represents that it is specially trained and experienced,
and the it possesses such expertise; and
WEHREAS, such specialized legal services are either not available or expected
not to be available in Fresno County’s Office of the County Counsel.
NOW THEREFORE, in consideration of the mutual covenants, terms, and
conditions herein described, the parties hereto agree as follows:
SECTION I
ENGAGEMENT OF ATTORNEY
COUNTY hereby engages ATTORNEY as an independent contractor through the
services of the following key person(s): Timothy Buchanan, and such other partners of
and associate lawyers as set forth in Attachment A, as well as such other partners of
and associate lawyers and staff members employed by ATTORNEY as ATTORNEY
deems necessary, and which COUNTY’s County Counsel (“County Counsel”), or his
designee, approves pursuant to paragraph 3 of this Agreement, except that the
foregoing key persons may, from time to time, consult with such of ATTORNEY’s other
lawyers on a “limited basis” (as hereinafter defined) as ATTORNEY reasonably deems
prudent and necessary under the circumstances. It is understood that ATTORNEY may
Agreement P-20-296
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not replace any of the aforementioned key persons named above without the prior,
express, written approval of County Counsel, or his designee. In case of death, illness
or other incapacity of any of the foregoing key persons, ATTORNEY shall provide a
replacement of at least equal professional ability and experience as the key person
replaced.
ATTORNEY shall perform specialized legal services as designated by County
Counsel in connection with the COUNTY’s potential real estate transaction involving the
City of Fresno and CMG Construction . In addition, from time to time, County counsel,
or his designee, may request ATTORNEY to perform additional specialized legal
services on behalf of COUNTY. Upon County Counsel’s, or his designee’s, written
request to perform such services, ATTORNEY shall perform such services pursuant to
the terms and conditions of this Agreement. Notwithstanding the foregoing provisions of
this paragraph, in the event of exigent circumstances, County Counsel may make such
request orally, and County Counsel and ATTORNEY shall within a reasonable time
thereafter document such request for services and acknowledgment thereof.
SECTION II
PERFORMANCE BY ATTORNEY
ATTORNEY agrees to timely perform all services provided for under this
Agreement. ATTORNEY agrees to avoid unnecessary duplicative efforts on the part of
ATTORNEY and ATTORNEY’s partners, associate lawyers, and staff members in
ATTORNEY’s performance of services for the COUNTY hereunder.
COUNTY shall not be obligated to compensate ATTORNEY for intra-office
conferences between or among ATTORNEY’s partners, associate lawyers, and staff
members, unless such intra-office conferences promote efficiency in the performance of
ATTORNEY’s work on a matter, or a reduction in the cost of compensation paid or
reimbursement made for related, reasonable and necessary, out-of-pocket expenses to
ATTORNEY, or both. In the performance of the tasks identified in paragraph 1 under
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this Agreement, ATTORNEY shall provide only those services that are necessary to
carry out such tasks in an efficient and effective manner.
III
COMPENSATION OF ATTORNEY
COUNTY shall be obligated to compensate ATTORNEY pursuant to the terms
and conditions of this Agreement only for the performance of those tasks, to the
reasonable satisfaction of COUNTY, which are related to the subject matter of this
Agreement. It is understood that COUNTY shall not be obligated to compensate
ATTORNEY for any work, services, or functions performed by ATTORNEYS: (i) in
seeking to obtain COUNTY’s business or negotiating with COUNTY to enter into this
Agreement or (ii) in providing COUNTY with documentation, explanations, or
justifications concerning the adequacy or accuracy of its invoices for the performance of
services under this Agreement and resolving same to the reasonable satisfaction of
COUNTY.
COUNTY agrees to pay and ATTORNEY agrees to accept as full compensation
for performance of tasks under this Agreement the sums per hour per person as set
forth in Attachment A, attached hereto and incorporated herein by this reference.
In addition, ATTORNEY shall be reimbursed for reasonable and necessary out-
of-pocket expenses, as follows: telephone charges, telephonic facsimile transmission
charges, computer research charges, filing fees, courier charges, postage charges,
printing and photographic reproduction expenses, in-State travel, and all such directly
related expenses. It is understood that ATTORNEY shall not be reimbursed for its
secretarial or clerical services (including overtime hours worked), or normal office
operating expenses, with the exception of those charges and expenses stated above.
In addition, ATTORNEY shall not be reimbursed for such secretarial or clerical services
performed or expenses incurred, regardless of whether such tasks are performed or
expenses are incurred by ATTORNEY’s partners, associate lawyers, or anyone else.
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Furthermore, COUNTY shall not compensate ATTORNEY for work performed by
paralegals where such work ordinarily is performed by licensed attorneys, including
legal research and legal document drafting.
In no event shall the maximum amount paid to ATTORNEY as compensation for
ATTORNEY’s services performed under this Agreement exceed Fifteen Thousand and
No/100 Dollars ($15,000), unless the parties agree to expand the scope of services
through written amendment. ATTORNEY shall not be paid for any services or costs
above this limit without a written modification of this Agreement executed by both
parties.
IV.
PAYMENT AND RECORD-KEEPING
Subject to paragraph 3 of this Agreement, payment of compensation for the
services provided under this Agreement and reimbursement for related, reasonable and
necessary out-of-pocket expenses incurred shall be made by COUNTY after
submission of an itemized invoice by ATTORNEY to the County Counsel no later than
the thirtieth (30th) day following the end of the month in which such services were
rendered or expenses incurred. All payments of compensation and reimbursement for
expenses incurred in connection therewith shall be made by COUNTY no later than
forty-five (45) days following the date that the COUNTY receives a properly completed
invoice requesting the payment for such services rendered and expenses incurred.
All such invoices shall reflect accurately the tasks performed by ATTORNEY
under this Agreement. In addition, all such invoices shall have sufficient detail as may
be required by COUNTY, including, but not limited to:
A. The specific nature of each task performed as services under this
Agreement;
B. The name of the partner or associate lawyer performing each such task;
C. The number of hours worked by each such person for each such task;
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D. The hourly rate per each such person performing each such task; and
E. The related, reasonable and necessary, out-of-pocket expenses incurred, as
provided for in paragraph 3 of this Agreement.
In addition, each invoice shall set forth a summary of hours worked by each
partner and associate lawyer for the applicable billing period. Each such invoice shall
set forth the product of such summary of hours worked by each person multiplied by
such person’s billing rate.
ATTORNEY shall prepare its invoices in an organized manner that facilitates an
efficient review of the services performed and the expenses incurred in order to provide
COUNTY with a clear and complete understanding of how much time was devoted to
specific tasks and projects, and the cost associated therewith.
ATTORNEY shall keep complete records of the services provided, together with
all related reasonable and necessary, out-of-pocket expenses. COUNTY and the
Fresno County Auditor-Controller/Treasurer-Tax Collector shall be given reasonable
access to all of these records for the purposes of audit of this Agreement. In addition,
ATTORNEY shall be subject to the examination and audit of such records by the
Auditor General for a period of three (3) years after final payment under this Agreement
(Gov. Code section 8546.7).
V.
TERM OF AGREEMENT
This Agreement is effective August 4, 2020 and shall continue in effect through
September 1, 2021, unless earlier terminated hereunder by either or both parties.
Either party may terminate this Agreement in writing at any time, either in whole or in
part. However, if ATTORNEY elects to terminate this Agreement, COUNTY’s rights
under any pending matter which may arise from ATTORNEY’s services hereunder shall
not be prejudiced due to such termination as required by the Rules of Professional
Conduct of the State Bar of California. Subject to paragraph 3 of this Agreement,
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ATTORNEY shall be paid for all services performed to the date of termination of this
Agreement, which are done to the reasonable satisfaction of COUNTY.
VI.
INDEPENDENT CONTRACTOR
In performance of the work, duties and obligations assumed by ATTORNEY
under this Agreement, it is mutually understood and agreed that ATTORNEY, including
any and all of ATTORNEY’s officers, agents, and employees will at all times be acting
and performing as an independent contractor, and shall act in an independent capacity
and not as an officer, agent, servant, employee, joint venture, partner, or associate of
COUNTY. Furthermore, COUNTY shall have no right to control, supervise, or direct the
manner or method by which ATTORNEY shall perform its obligations under this
Agreement. However, COUNTY shall retain the right to administer this Agreement so
as to verify that ATTORNEY is performing its obligations in accordance with the terms
and conditions hereof. ATTORNEY and COUNTY shall comply with all applicable
provisions of law and the rules and regulations, if any, of governmental authorities
having jurisdiction over matters of the subject hereof.
Because of its status as an independent contractor, ATTORNEY shall have
absolutely no right to employment rights and benefits available to COUNTY employees.
ATTORNEY shall be solely liable and responsible for providing to, or on behalf of, its
employees all legally-required employee benefits. In addition, ATTORNEY shall be
solely responsible and save COUNTY harmless from all matters related to payment of
ATTORNEY’s employees, including compliance with social security, withholding, and all
other regulations governing such matters. It is acknowledged that during the term of
this Agreement, ATTORNEY may be providing services to others unrelated to COUNTY
or to this Agreement.
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VII
HOLD HARMLESS
ATTORNEY shall hold COUNTY, its officers, agents, and employees harmless
and indemnify and defend COUNTY, its officers, agents and employees against
payment of any and all costs and expenses (to include legal fees and court costs),
claims, suits, losses, damages and liability occurring or resulting to COUNTY in
connection with the performance, or failure to perform, by ATTORNEY, its officers,
agents, or employees under this Agreement, and from any and all costs and expenses
(including attorney’s fees and costs), damages, liabilities, claims, and losses occurring
or resulting to any person, firm, or corporation who may be injured or damaged by the
performance, or failure to perform, of ATTORNEY, its officers, agents, or employees
under this Agreement. COUNTY’s receipt of any insurance certificates required herein
does not in any way relieve the ATTORNEY from its obligations under this paragraph 7
of this Agreement.
VIII
INSURANCE
Without limiting COUNTY’s rights under paragraph 7 of this Agreement, or
against any third parties, ATTORNEY, at its sole expense, shall maintain in full force
and effect the following insurance policies throughout the entire term of this Agreement:
A. Professional Liability Insurance with limits of not less than One Million
Dollars ($1,000,000) per occurrence, Three Million Dollars ($3,000,000) annual
aggregate;
B. Comprehensive General Liability Insurance with limits of not less than
Two Million Dollars ($2,000,000) per occurrence and an annual aggregate of Four
Million Dollars ($4,000,000). This policy shall be issued on a per occurrence basis.
COUNTY may require specific coverages including completed operations, products
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liability, contractual liability, Explosion-Collapse-Underground, fire legal liability or any
other liability insurance deemed necessary because of the nature of this Agreement;
C. Comprehensive Automobile Liability Insurance with limits of not less
than One Million Dollars ($1,000,000) per accident for bodily injury and for property
damages. Coverage should include any auto used in connection with this Agreement;
and
D. A policy of workers compensation insurance as may be required by the
California Labor Code.
Such insurance shall apply as primary insurance and any other insurance, or
self-insurance, maintained by COUNTY, its officers, agents and employees shall be
excess only and not contributing with insurance provided under ATTORNEY’s policies
herein. This insurance shall not be cancelled or changed without a minimum of thirty
(30) days advance written notice given to COUNTY.
ATTORNEY provided COUNTY certificates of insurance in connection with an
accepted request for proposal signed on or around January 7, 2020, ATTORNEY
confirms and represents these certificates are still in place.
In the event ATTORNEY fails to keep in effect at all times insurance coverage as
herein provided, the COUNTY may, in addition to other remedies it may have, suspend
or terminate this Agreement upon the occurrence of such event.
All policies shall be issued by admitted insurers licensed to do business in the
State of California, and such insurance shall be purchased from companies possessing
a current A.M. Best, Inc. rating of A FSC VII or better.
In addition to its obligations set forth hereinabove, ATTORNEY agrees that it
shall maintain, at its sole expense, in full force and effect for a period of three (3) years
following the termination of this Agreement a policy of professional liability insurance
with limits of coverage of not less than One Million Dollars ($1,000,000) per occurrence;
provided, however, in the event that ATTORNEY does not maintain such policy of
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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 One Million and No/100 Dollars ($1,000,000.00).
IX
AGREEMENT IS BINDING UPON SUCCESSORS
This Agreement shall be binding upon COUNTY and ATTORNEY and their
successors, executors, administrators, legal representatives and assigns with respect to
all the covenants and conditions set forth herein.
X
ASSIGNMENT AND SUBCONTRACTING
Notwithstanding anything stated to the contrary in paragraph 9 of this Agreement,
neither party hereto shall assign, transfer, or sub-contract this Agreement nor its rights
or duties hereunder without the written consent of the other.
XI
AMENDMENTS
This Agreement may only be amended in writing signed by the parties hereto.
XII
CONFLICT OF INTEREST
ATTORNEY promises, covenants, and warrants that, after having performed a
reasonable investigation, the performance of its services and representation to
COUNTY under this Agreement do not result in a conflict of interest as that term is used
in the Rules of Professional Conduct of the State Bar of California. In the event a
conflict of interest occurs, ATTORNEY will request COUNTY’s Board of Supervisors to
waive such conflict of interest on a case-by-case basis.
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XIII
FURTHER ASSURANCES BY ATTORNEY
ATTORNEY represents that it has read and is familiar with Government Code
section 1090 et seq. and 87100 et seq. ATTORNEY promises, covenants, and
warrants that, after having performed a reasonable investigation, the performance of its
services under this Agreement shall not result in or cause a violation by it of
Government Code section 1090 et seq. and 87100 et seq.
XIV
COMPLIANCE WITH LAWS
ATTORNEY shall comply with all federal, state, and local laws and regulations
applicable to the performance of its obligations under this Agreement.
XV
AUDITS AND INSPECTIONS
ATTORNEY shall at any time during business hours, and as often as the
COUNTY may deem necessary, make available to the COUNTY for examination all of
its records and data with respect to the matters covered by this Agreement.
ATTORNEY shall, upon request by the COUNTY, permit the COUNTY to audit and
inspect all of such records and date necessary to ensure ATTORNEY’s compliance with
the terms of this Agreement.
If this agreement exceeds ten thousand dollars ($10,000), ATTORNEY shall be
subject to the examination and audit of the Auditor General for a period of three (3)
years after final payment under contract (Government Code Section 8546.7).
XVI
NOTICES
The persons and their addresses having authority to give and receive notices
under this Agreement include the following:
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COUNTY ATTORNEY
Daniel C. Cederborg Timothy Buchanan
County Counsel McCormick Barstow, LLP
Fresno County Counsel’s Office 5 River Park Place East
2220 Tulare Street, Suite 500 Fresno, CA 93720
Fresno, CA 93721
All notices between the COUNTY and ATTORNEY provided for or permitted under this
Agreement must be in writing and delivered either by personal service, by first-class
United States mail, by an overnight commercial courier service, or by telephonic
facsimile transmission. A notice delivered by personal service is effective upon service
to the recipient. A notice delivered by first-class United States mail is effective three
COUNTY business days after deposit in the United States mail, postage prepaid,
addressed to the recipient. A notice delivered by an overnight commercial courier
service is effective one COUNTY business day after deposit with the overnight
commercial courier service, delivery fees prepaid, with delivery instructions given for
next day delivery, addressed to the recipient. A notice delivered by telephonic facsimile
is effective when transmission to the recipient is completed (but, if such transmission is
completed outside of COUNTY business hours, then such delivery shall be deemed to
be effective at the next beginning of an COUNTY business day), provided that the
sender maintains a machine record of the completed transmission. For all claims
arising out of or related to this Agreement, nothing in this section establishes, waives, or
modifies any claims presentation requirements or procedures provided by laws,
including but not limited to the Government Claims Act (Division 3.6 of Title 1 of the
Government Code, beginning with section 810).
XVII
VENUE AND GOVERNING LAW
The parties agree that, for purposes of venue, performance under this
Agreement is to be in Fresno County, California. The rights and obligations of the
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parties and all interpretations and performance of this Agreement shall be governed in
all respects by the laws of the State of California.
XVIII
DISCLOSURE OF SELF-DEALING TRANSACTIONS
This provision is only applicable if ATTORNEY is operating as a corporation (a
for-profit or non-profit corporation) or if during the term of this Agreement, ATTORNEY
changes its status to operate as a corporation.
Members of ATTORNEY’s Board of Directors shall disclose any self-dealing
transactions that they are a party to while ATTORNEY is providing goods or performing
services under this Agreement. A self-dealing transaction shall mean a transaction to
which ATTORNEY is a party and in which one or more of its directors has a material
financial interest. Members of the Board of Directors shall disclose any self-dealing
transactions that they are a party to by completing and signing a Self-Dealing
Transaction Disclosure Form, attached hereto as Attachment B and by this reference
incorporated herein, and submitting it to COUNTY prior to commencing with the self-
dealing transaction or immediately thereafter.
XIXI
ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between COUNTY and
ATTORNEY with respect to the specialized legal services to be provided herein and
supersedes any previous agreement concerning the subject matter hereof, negotiations,
proposals, commitments, writings, or understandings of any nature whatsoever unless
expressly included in this Agreement. If any part of this Agreement is found violative of
any law or is found to be otherwise legally defective, ATTORNEY and COUNTY shall
use their best efforts to replace that part of this Agreement with legal terms and
conditions most readily approximating the original intent of the parties.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first hereinabove written.
McCormick Barstow, LLP COUNTY OF FRESNO
By___________________
Timothy Buchanan,
Partner
_______________________
Gary Cornuelle,
Purchasing Manager
The County of Fresno
Daniel C. Cederborg
County Counsel, County of Fresno
For Accounting Use Only:
Org: 2540
Account No.: 7295
Requisition No.: 07102000 51
___________________________
EXHIBIT A
Standard Hourly Rates:
Attorneys: Timothy J. Buchanan: $290.00 per hour
Paralegals $130.000 per hour
Current Costs:
Photocopies: 25¢ per page
Photocopy Center: 15¢ per page
Computer-Assisted Legal Research: Actual cost
Fax Sent: 50¢ per page plus long distance charges
Mileage: IRS approved rate per mile
Messenger Service: Actual cost
Other Costs: Direct pass through without surcharge