HomeMy WebLinkAbout28779CONTRACT INFORMATION SHEET
DATE: 12/20/16
Contract No.: P-16-704-T Vendor Number: 0000205230
Contract Title: Specialized Legal Name/Address: Liebert Cassidy Whitmore
Services 5250 N. Palm Ave #310
Fresno, CA 93704
Contract Period: 10/1/16 -12/31/17 Representative: Shelline Bennett
Using Agencies: County Counsel Phone No.: 559-256-7800
Email: sbennett@lcwlegal .com
Terms: N45 --~-----------------
Total Contract Amt.: $30,000 ~~--~-------------
Buyer Name: Heather Stevens
Requisition No: 0710170029 -----------------------Org: ~0 _11~0 ______________________________ _
Supersedes:
[!]NEW .___ _ __.I RENEWAL ,__ _ _,I ADJUSTMENT
D TICKDATE I REFERENCE (RFQ# I RFP#) '-----'
DESCRIPTION: Specialized legal services in investigating and advising on claims of discrimination and retaliation made by
employees within the Probation Department.
SPECIAL INSTRUCTIONS:
DISTRIBUTION: Completed By: Date: Completed By: Date
DEPARTMENT: County Counsel
REQUISITIONER: Janelle Kelley
Rev 1/2/15
P-I~-IDL-/ -T
AGREEMENT FOR SPECIALIZED LEGAL SERVICES
2
3 THIS AGREEMENT (the "Agreement") is made and entered into by and between
4 the COUNTY OF FRESNO, a political subdivision of the State of California (the
5 "COUNTY"), and the law firm of LIEBERT CASSIDY WHITMORE, a professional law
6 corporation, hereinafter referred to as "ATTORNEY."
7 WITNESSETH:
8 WHEREAS, COUNTY wishes to obtain specialized services, as authorized by
9 Government Code section 31000, to perform an internal investigation of employment
1 0 matters within the Probation Department and provide advice related thereto; and
11 WHEREAS, COUNTY wishes to engage the specialized legal services of counsel
12 who is expert in legal matters concerning such issues; and
13 WHEREAS, ATTORNEY represents that it is specially trained and experienced,
14 and that it possesses such expertise; and
15 WHEREAS, such specialized legal services are either not available or expected
16 not to be available in Fresno County's Office of the County Counsel.
17 NOW, THEREFORE, in consideration of the mutual covenants, terms, and
18 conditions herein described, the parties hereto agree as follows
19 1. Employment of Attorney: AUTHORITY hereby hires ATTORNEY as an
20 independent contractor through the services of the following key person(s): Shelline
21 Bennett, Che Johnson, and such other partners of and associate lawyers and staff
22 members employed by ATTORNEY as ATTORNEY deems necessary, and which
23 COUNTY's County Counsel ("County Counsel"), or his designee, approves pursuant to
24 paragraph 3 of this Agreement, except that the foregoing key persons may, from time to
25 time, consult with such of ATTORNEY's other lawyers on a "limited basis" (as
26 hereinafter defined) as ATTORNEY reasonably deems prudent and necessary under
27 the circumstances. It is understood that ATTORNEY may not replace any of the
28
1 aforementioned key persons named above without the prior, express, written approval
2 of County Counsel, or his designee. In case of death, illness or other incapacity of any
3 of the foregoing key persons, ATTORNEY shall provide a replacement of at least equal
4 professional ability and experience as the key person replaced.
5 ATTORNEY shall perform specialized legal services in connection with the
6 investigation of employment matters within the Probation Department and provide
7 general advice related to such investigation to COUNTY. In addition, from time to time,
8 County Counsel, or his designee, may request ATTORNEY to perform additional
9 specialized legal services in connection with this investigation on behalf of COUNTY.
10 Upon County Counsel's, or his designee's, written request to perform such services,
11 and ATTORNEY's written acknowledgment that ATTORNEY will provide such services,
12 ATTORNEY shall perform such services pursuant to the terms and conditions of this
13 Agreement. Notwithstanding the foregoing provisions of this paragraph, in the event of
14 exigent circumstances, County Counsel may make such request orally, and County
15 Counsel and ATTORNEY shall within a reasonable time thereafter document such
16 request for services and acknowledgment thereof.
17 2. Performance by Attorney: ATTORNEY agrees to timely perform all
18 services provided for under this Agreement. ATTORNEY agrees to avoid unnecessary
19 duplicative efforts on the part of ATTORNEY and ATTORNEY's partners, associate
20 lawyers, and staff members in ATTORNEY's performance of services for the COUNTY
21 hereunder.
22 COUNTY shall not be obligated to compensate ATTORNEY for intra-office
23 conferences between or among ATTORNEY's partners, associate lawyers, and staff
24 members, unless such intra-office conferences promote efficiency in the performance of
25 ATTORNEY's work on a matter, or a reduction in the cost of compensation paid or
26 reimbursement made for related, reasonable and necessary, out-of-pocket expenses to
27 ATTORNEY, or both. In the performance of the tasks identified in paragraph 1 under
28
-2-
1 this Agreement, ATTORNEY shall provide only those services which are necessary to
2 carry out such tasks in an efficient and effective manner.
3 3. Compensation of ATTORNEY: COUNTY shall be obligated to
4 compensate ATTORNEY pursuant to the terms and conditions of this Agreement only
5 for the performance of those tasks, to the reasonable satisfaction of COUNTY, which
6 are related to the subject matter of this Agreement. It is understood that COUNTY shall
7 not be obligated to compensate ATTORNEY for any work, services, or functions
8 performed by ATTORNEYS: (i) in seeking to obtain COUNTY's business or negotiating
9 with COUNTY to enter into this Agreement or (ii) in providing COUNTY with
10 documentation, explanations, or justifications concerning the adequacy or accuracy of
11 its invoices for the performance of services under this Agreement and resolving same to
12 the reasonable satisfaction of COUNTY.
13 COUNTY agrees to pay and ATTORNEY agrees to accept as full compensation
14 for performance of tasks under this Agreement the following sum per hour per person:
15 Shelline Bennett: $325 per hour
16 Che Johnson: $235 per hour
17 ATTORNEY shall be reimbursed for the fees charged by Lisa Buehler of the firm
18 of Ellis Buehler Makus LLP in investigating complaints by employees of the Probation
19 Department, at a rate of $250 per hour for work performed and $195 per hour for travel
20 time. In addition, ATTORNEY shall be reimbursed for reasonable and necessary out-of
21 pocket expenses, as follows: telephone charges, telephonic facsimile transmission
22 charges, computer research charges, filing fees, courier charges, postage charges,
23 printing and photographic reproduction expenses, in-State travel, and all such directly-
24 related expenses. It is understood that ATTORNEY shall not be reimbursed for its
25 secretarial or clerical services (including overtime hours worked), or normal office
26 operating expenses, with the exception of those charges and expenses stated above.
27 In addition, ATTORNEY shall not be reimbursed for such secretarial or clerical services
28
-3-
1 performed or expenses incurred, regardless of whether such tasks are performed or
2 expenses are incurred by ATTORNEY's partners, associate lawyers, or anyone else.
3 Furthermore, COUNTY shall not compensate ATTORNEY for work performed by
4 paralegals where such work ordinarily is performed by licensed attorneys, including
5 legal research and legal document drafting.
6 In no event shall the maximum amount paid to ATTORNEY as compensation for
7 ATTORNEY's services performed (including the services of Lisa Buehler) exceed Thirty
8 Thousand and No/100 Dollars ($30,000) under this Agreement. ATTORNEY shall not
9 be paid for any services or costs above this limit without a written modification of this
10 Agreement executed by both parties. ATTORNEY shall notify COUNTY in writing when
11 the value of its accrued services, whether billed or not yet billed to the COUNTY, has
12 reached the amount of Twenty Thousand and No/1 00 Dollars ($20,000) and again when
13 and if the value of its accrued services, whether billed or not yet billed to the COUNTY,
14 has reached the amount of Twenty Five Thousand and No/100 Dollars ($25,000).
15 4. Payment and Record-keeping: Subject to paragraph 3 of this Agreement,
16 payment of compensation for the services provided under this Agreement and
17 reimbursement for related, reasonable and necessary out-of-pocket expenses incurred
18 shall be made by COUNTY after submission of an itemized invoice by ATTORNEY to
19 the County Counsel no later than the thirtieth (30 1h) day following the end of the month
20 in which such services were rendered or expenses incurred. All payments of
21 compensation and reimbursement for expenses incurred in connection therewith shall
22 be made by COUNTY no later than forty-five (45) days following the date that the
23 COUNTY receives a properly completed invoice requesting the payment for such
24 services rendered and expenses incurred.
25 All such invoices shall reflect accurately the tasks performed by ATTORNEY
26 under this Agreement. In addition, all such invoices shall have sufficient detail as may
27 be required by COUNTY, including, but not limited to:
28
-4-
1 A. The specific nature of each task performed as services under this
2 Agreement;
3 B. The name of the partner or associate lawyer performing each such task;
4 C. The number of hours worked by each such person for each such task;
5 D. The hourly rate per each such person performing each such task; and
6 E. The related, reasonable and necessary, out-of-pocket expenses incurred, as
7 provided for in paragraph 3 of this Agreement.
8 In addition, each invoice shall set forth a summary of hours worked by each
9 partner and associate lawyer for the applicable billing period. Each such invoice shall
10 set forth the product of such summary of hours worked by each person multiplied by
11 such person's billing rate.
12 ATTORNEY shall prepare its invoices in an organized manner that facilitates an
13 efficient review of the services performed and the expenses incurred in order to provide
14 COUNTY with a clear and complete understanding of how much time was devoted to
15 specific tasks and projects, and the cost associated therewith.
16 ATTORNEY shall keep complete records of the services provided, together with
17 all related reasonable and necessary, out-of-pocket expenses. COUNTY, and the
18 Fresno County Auditor-Controllerffreasurer-Tax Collector shall be given reasonable
19 access to all of these records for the purposes of audit of this Agreement. In addition,
20 ATTORNEY shall be subject to the examination and audit of such records by the
21 Auditor General for a period of three (3) years after final payment under this Agreement
22 (Gov. Code section 8546.7).
23 5. Term of Agreement: This Agreement shall be effective as of October 1,
24 2016 and will continue in effect ending on December 31,2017. Either party may
25 terminate this Agreement at any time, either in whole or in part. However, if
26 ATTORNEY elects to terminate this Agreement, COUNTY's rights under any pending
27 matter which may arise from ATTORNEY's services hereunder shall not be prejudiced
28
-5-
1 due to such termination as required by the Rules of Professional Conduct of the State
2 Bar of California. Subject to paragraph 3 of this Agreement, COUNTY shall be paid for
3 all services performed to the date of termination of this Agreement, which are done to
4 the reasonable satisfaction of COUNTY.
5 6. Independent Contractor: In performance of the work, duties and
6 obligations assumed by ATTORNEY under this Agreement, it is mutually understood
7 and agreed that ATTORNEY, including any and all of ATTORNEY's officers, agents,
8 and employees will at all times be acting and performing as an independent contractor,
9 and shall act in an independent capacity and not as an officer, agent, servant,
10 employee, joint venture, partner, or associate of COUNTY. Furthermore, COUNTY
11 shall have no right to control or supervise or direct the manner or method by which
12 ATTORNEY shall perform its obligations under this Agreement. However, COUNTY
13 shall retain the right to administer this Agreement so as to verify that ATTORNEY is
14 performing its obligations in accordance with the terms and conditions hereof.
15 ATTORNEY and COUNTY shall comply with all applicable provisions of law and the
16 rules and regulations, if any, of governmental authorities having jurisdiction over matters
17 of the subject hereof.
18 Because of its status as an independent contractor, ATTORNEY shall have
19 absolutely no right to employment rights and benefits available to COUNTY employees.
20 ATTORNEY shall be solely liable and responsible for providing to, or on behalf of, its
21 employees all legally-required employee benefits. In addition, ATTORNEY shall be
22 solely responsible and save COUNTY harmless from all matters related to payment of
23 ATTORNEY's employees, including compliance with social security, withholding, and all
24 other regulations governing such matters. It is acknowledged that during the term of
25 this Agreement, ATTORNEY may be providing services to others unrelated to COUNTY
26 or to this Agreement.
27
28
-6-
1 7. Hold Harmless: ATTORNEY shall hold COUNTY, its officers, agents, and
2 employees harmless and indemnify and defend AUTHORITY, its officer, agents and
3 employees against payment of any and all costs and expenses, claims, suits, losses,
4 damages and liability arising form or arising out of any actual negligent or wrongful acts
5 or omissions of ATTORNEY, including its partners, officers, agents and employees, in
6 performing or failing to perform the services provided herein. COUNTY's receipt of any
7 insurance certificates required herein does not in any way relieve the ATTORNEY from
8 its obligations under this paragraph 7 of this Agreement.
9 8. Insurance: Without limiting COUNTY's rights under paragraph 7 of this
10 Agreement, or against any third parties, ATTORNEY, at its sole expense, shall maintain
11 in full force and effect the following insurance policies throughout the entire term of this
12 Agreement:
13 A. A policy of professional liability insurance with limits of coverage of not
14 less than One Million and No./1 00 Dollars ($1 ,000,000.00) per covered event, Two
15 Million and No/1 00 Dollars ($2,000,000.00) in the annual aggregate;
16 B. A policy of comprehensive general liability insurance with limits of
17 coverage of not less than One Million and No/1 00 Dollars ($1 ,000,000.00) per
18 occurrence. (Such insurance shall include automobile insurance coverage, provided
19 however, if ATTORNEY maintains comprehensive general liability insurance that does
20 not cover a loss in connection with an automobile, ATTORNEY shall also obtain and
21 maintain automobile liability insurance coverage with limits of coverage of not less than
22 One Hundred Thousand and No/1 00 Dollars ($1 00,000.00) per person and Three
23 Hundred Thousand and No/1 00 Dollars ($300,000.00) per occurrence); and
24 C. A policy of workers compensation insurance as is required by the
25 California Labor Code, providing full statutory coverage.
26 All such insurance policies shall be issued by insurers who at least have an A.M.
27 Best rating of B+ FSC VIII, and shall be acceptable to COUNTY. In addition, the
28
-7-
1 comprehensive general liability insurance policy (and, the automobile liability insurance
2 policy, if such policy is at any time maintained separately from the comprehensive
3 general liability insurance policy) shall name the COUNTY, its officers, agents, and
4 employees, individually and collectively, as additional insureds, but only insofar as the
5 operations under this Agreement are concerned. Such coverage for additional insureds
6 shall apply as primary insurance and any other insurance, or self-insurance, maintained
7 by the COUNTY, its officers, agents, and employees, shall be excess only and not
8 contributing with such insurance provided under ATTORNEY's policies herein. This
9 insurance shall not be canceled, reduced, or changed without a minimum of thirty (30)
10 calendar days advance, written notice given to County Counsel (at the address for
11 notices to County Counsel provided herein).
12 ATTORNEY shall provide to County Counsel a certificate of insurance for all the
13 foregoing policies and an endorsement to ATTORNEY's comprehensive general liability
14 insurance policy (and, to the automobile liability insurance policy, if such policy is at any
15 time maintained separately from the comprehensive general liability insurance policy)
16 naming COUNTY as an additional insured, as stated above, which are acceptable to
17 COUNTY, evidencing proof of such insurance coverages required herein prior to
18 performing any services under this Agreement.
19 In addition to its obligations set forth hereinabove, ATTORNEY agrees that it
20 shall maintain, at its sole expense, in full force and effect for a period of three (3) years
21 following the termination of this Agreement a policy of professional liability insurance
22 with limits of coverage of not less than One Million and No/1 00 Dollars ($1 ,000,000 .00)
23 per claim; provided, however, in the event that ATTORNEY does not maintain such
24 policy of insurance for such entire three (3) year period, ATTORNEY shall maintain, at
25 its sole expense, in full force and effect extended claims reporting coverage insurance
26 in lieu thereof in the amount of not less than One Million and No/1 00 Dollars
27 ($1 ,000,000.00).
28
-8-
1 If either the professional liability or comprehensive general liability insurance
2 policies (or, the automobile liability insurance policy, if such policy is at any time
3 maintained separately from the comprehensive general liability insurance policy)
4 required to be maintained pursuant to this paragraph 8, or both (or all of them, as the
5 case may be), have a self-insured retention, such self-insured retentions shall be
6 funded by ATTORNEY and approved by AUTHORITY.
7 9 . Agreement is Binding Upon Successors: This Agreement shall be binding
8 upon COUNTY and ATTORNEY and their successors, executors, administrators, legal
9 representatives and assigns with respect to all the covenants and conditions set forth
10 herein .
11 10. Assignment and Subcontracting: Notwithstanding anything stated to the
12 contrary in paragraph 9 of this Agreement, neither party hereto shall assign, transfer, or
13 sub-contract this Agreement nor its rights or duties hereunder without the written
14 consent of the other. Without waiving this section, COUNTY consents to the
15 employment of Attorney Lisa Buehler of the firm of Ellis Buehler Makus LLP by
16 ATTORNEY for the purpose of conducting an investigation regarding complaints filed by
17 employees of the Probation Department.
18 11. Amendments: This Agreement may only be amended in writing signed by
19 the parties hereto .
20 12. Conflict of Interest: ATTORNEY promises, covenants, and warrants that,
21 after having performed a reasonable investigation, the performance of its services and
22 representation to COUNTY under this Agreement do not result in a conflict of interest as
23 that term is used in the Rules of Professional Conduct of the State Bar of California. In
24 the event a conflict of interest occurs, ATTORNEY will request COUNT's Board of
25 Supervisors to waive such conflict of interest on a case-by-case basis.
26 13. Further Assurances by ATTORNEY: ATTORNEY represents that it has
27 read and is familiar with Government Code section 1090 et seq. and 87100 et seq.
28
-9-
1 ATTORNEY promises, covenants, and warrants that, after having performed a
2 reasonable investigation, the performance of its services under this Agreement shall not
3 result in or cause a violation by it of Government Code section 1090 et seq and 87100
4 et seq.
5 14 . Compliance With Laws: ATTORNEY shall comply with all federal, state,
6 and local laws and regulations applicable to the performance of its obligations under this
7 Agreement.
8 15. Notices : The persons and their addresses having authority to give and
9 receive notices under this Agreement include the following:
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
COUNTY
Catherine Basham
Fresno County Counsel
2220 Tulare S., Suite 500
Fresno, CA 93721
ATTORNEY
Shelline Bennett
Liebert, Cassidy & Whitmore
5250 N. Palm Ave., Suite 310
Fresno, CA 93704
Any and all notices between the COUNTY and ATTORNEY provided for or permitted
under this Agreement or by law shall be in writing and shall be deemed duly served
when personally delivered to one of the parties, or in lieu of such personal service,
when deposited in the United States mail, postage prepaid, addressed to such party.
Any notices to be given or provided for under this Agreement are not modifications or
changes of this Agreement.
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 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.
-10-
1 Members of ATTORNEY's Board of Directors shall disclose any self-dealing
2 transactions that they are a party to while ATTORNEY is providing goods or performing
3 services under this Agreement. A self-dealing transaction shall mean a transaction to
4 which ATTORNEY is a party and in which one or more of its directors has a material
5 financial interest. Members of the Board of Directors shall disclose any self-dealing
6 transactions that they are a party to by completing and signing a Self-Dealing
7 Transaction Disclosure Form, attached hereto as Exhibit A and by this reference
8 incorporated herein, and submitting it to COUNTY prior to commencing with the self-
9 dealing transaction or immediately thereafter.
10 18 . Entire Agreement: This Agreement constitutes the entire agreement
11 between COUNTY and ATTORNEY with respect to the specialized legal services to be
12 provided herein and supersedes any previous agreement concerning the subject matter
13 hereof, negotiations, proposals, commitments, writings, or understandings of any nature
14 whatsoever unless expressly included in this Agreement. If any part of this Agreement
15 is found violative of any law or is found to be otherwise legally defective, ATTORNEY
16 and COUNTY shall use their best efforts to replace that part of this Agreement with
17 legal terms and conditions most readily approximating the original intent of the parties.
18 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
19 executed as of the day and year first above written.
20 LIEBERT CASSIDY WHITMORE, a professional law corporation
24
25
26
27
28
Shelline Bennett, Partner
COUNTY OF FRESNO
-11-
1 REVIEWED AND RECOMMENDED FOR APPROVAL:
2
3
4
5
6 APPROVED AS TO ACCOUNTING FORM:
OSCAR J. GARCIA, CPA,
7 AUDITOR-CONTROLLER/TREASURER-
8
9
TAX COLLECTOR
1 o sy_..lc.-<'{RiZ""'-• ~.kf ____,.cc-=· ~==,AF-'+rF_t.£__· --ei(J
11 Deputy
12
13
APPROVED AS TO LEGAL FORM: 14 DANIEL C. CEDERBORG, COUNTY COUNSEL
15
16
17 By~~~~~~~~~~~L---
18
19
20 Fund/Subclass: C£Y) 1/f(::oC{)
Organization: 3'--\ ~o<Ooo
21 Acct/Program: '7~ 45
22
23
24
25
26
27
28
-12-
Exhibit A
SELF-DEALING TRANSACTION DISCLOSURE FORM
In order to conduct business with the County of Fresno (hereinafter referred to as "County"),
members of a contractor's board of directors {hereinafter referred to as "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).
Exhibit A
(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) Explainwhy this self-dealingtransaction is co.nsisteritwith the requirements of Corporations Code 5233(a):
(S) Authorized Signature :
. .. .
Signature: I Date: I