HomeMy WebLinkAbout306411
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Agreement No . 19-089
AGREEMENT
THIS AGREEMENT FOR JOB ORDER CONTRACTING SERVICES ("Agreement") is
made and entered into this 26th day of February , 2019 ("Effective Date"), by and between
the County of Fresno , a political subdivision of the State of California ("COUNTY"), and The
Gordian Group Inc., a Georgia corporation , which will do business in California as the Mellon
Group, whose corporate address is 30 Patewood Dr., Building 2, Suite 350 , Greenville, SC
29615 , ("CONTRACTOR").
WITNESS ETH
WHEREAS , COUNTY needs the administration and maintenance of a Job Order
Contracting (JOC) system and JOC consulting services ; and
WHEREAS, CONTRACTOR is qualified to perform the services required, and is willing to
perform such services pursuant to the terms and conditions stated in this Agreement.
NOW, THEREFORE , in consideration of their mutual covenants and conditions , the parties
agree as follows :
SECTION 1. -OBLIGATIONS OF THE CONTRACTOR (GORDIAN JOC SOLUTION ®}
CONTRACTOR shall provide the "Gordian JOC Solution®' Job Order Contracting (JOC)
products and support services as specified in this Agreement.
A DEVELOPMENT AND IMPLEMENTATION SERVICES
The development and implementation services shall be performed for the COUNTY 's
Department of Internal Service Department (ISO) and the Department of Public Works and
Planning (PWP) (collectively referred to in th is Agreement as "Department"), on or after the
Effective Date of this Agreement.
An independent JOC program is defined as a program that requires preparing Department-
specific JOC contract documents, preparing Department-specific execution procedures ,
procuring Department-specific JOC contractors , providing access to eGordian® for
Department-specific staff and JOC contractors , and training Department-specific staff and
JOC contractors .
The JOC program is a unique , indefinite quantity procurement process that helps facility
-1-
-2-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
and infrastructure owners complete a large number of repairs, remodeling, and other
repetitive work with a single, competitively-bid contract. Unlike traditional bidding, where
each project is identified, designed and then put out to bid, JOC establishes competitively-
bid per unit prices up front, and eliminates the need to separately bid each such project.
1. CONTRACTOR shall provide experienced staff who shall be responsible for the
development, implementation, and ongoing support of each independent JOC
program for COUNTY during the term of this Agreement. CONTRACTOR’s staff
shall report directly to COUNTY, and shall be available to assist COUNTY with any
JOC-related issues.
2. CONTRACTOR shall be responsible for conducting the activities necessary for
establishing the structure of the COUNTY's JOC program, informing COUNTY staff
as well as the contracting community about JOC best practices, assisting with
procurement of the actual JOC contractors, and assisting with development and/or
modification of the actual procedures COUNTY shall use in executing the JOC
program. Specific services CONTRACTOR shall provide will include: develop the
JOC program structure/bidding strategy; prepare and conduct pre-bid seminars;
prepare and conduct an external marketing program; prepare and conduct an
internal marketing program; and coordinate and develop the JOC execution
procedures.
3. CONTRACTOR shall be responsible for developing and conducting a
comprehensive JOC training program for any new COUNTY or JOC Contractor
staff, which shall include different course modules in order for COUNTY staff to
receive specialized training.
4. All JOC contract order invoicing shall clearly list both (1) the JOC Project Number
and the (2) FAMIS1 work order number, provided the COUNTY enters the FAMIS
1 FAMIS is the COUNTY’s could-based facilities maintenance management software solution, licensed by
Accruent, LLC.
-3-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
work order number into the JOC system in a timely manner.
5. CONTRACTOR will be responsible for providing comprehensive JOC follow-up
support to each user COUNTY Department for the administration of its JOC
program. CONTRACTOR will monitor the overall program and prepare any status
reports required by the COUNTY. Support services will include, but are not limited
to, unlimited toll-free JOC Software support, access to all applicable JOC Software
updates and additional functionality, updating for each new JOC construction
contract the Construction Task Catalog®, technical specifications, contract and
general conditions and bid documents, providing procurement assistance for new
JOC contracts, providing training for new COUNTY and JOC contractor staff, and
preparing customized forms and reports requested by the COUNTY.
6. CONTRACTOR will be responsible for providing a license for an unlimited number
of users for the COUNTY to access Gordian’s web-based JOC system, which
includes the JOC Software and Construction Task Catalog®. The JOC Software will
be capable of generating the JOC documents including independent cost estimates,
JOC contractor price proposals, job orders, and management reports and forms.
The COUNTY’s standard reports and forms will be incorporated as requested.
B. MAINTENANCE AND SUPPORT
All information CONT RACTOR receives from the COUNTY or comes in contact with while
performing contracted duties for the COUNTY shall be treated as confidential, and shall not
be released or discussed with an outside party without the written consent of the COUNTY.
CONTRACTOR shall provide to COUNTY the following:
1. Program Support
a) Provide strategic guidance to the project team;
b) Monitor program performance, as requested;
c) Integrate successful experiences from other agencies using JOC;
d) Identify and consult on major program issues;
-4-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
e) Provide guidance and interpretations on procedures;
f) Assist with interpretation of the Construction Task Catalog® including:
i. Resolve Construction Task Catalog® issues; and
ii. Manage revisions to the Construction Task Catalog®.
g) Conduct annual on-site reviews of the JOC program, as requested; and
h) Prepare program evaluations, as requested.
2. Procurement and Document Maintenance Support (On-Site)
a) Provide assistance with modifications to the contract and general
conditions;
b) Provide assistance with modifications to the instructions to bidders;
c) Conduct research to identify recurring use of new, unpriced tasks;
d) Coordinate preparation of updated Construction Task Catalogs®;
e) Coordinate preparation of updated technical specifications;
f) Conduct informational seminars for local groups, as requested; and
g) Assist with bidding new JOC contracts including:
i. Conduct pre-bid meetings with potential contractors; and
ii. Assist with bid review and JOC contractor selection, as requested.
3. Procurement and Document Maintenance Support (Off-Site)
a) Update and enhance the customized Construction Task Catalog® including:
i. Maintain the integrity of the CSI numbering system;
ii. Improve task descriptions;
iii. Develop descriptions for new, recurring unpriced tasks;
iv. Remove outdated tasks that are no longer used or available;
v. Monitor local area pricing;
vi. Incorporate current construction practices and materials; and
vii. Publish a new Construction Task Catalog® for each additional
solicitation.
-5-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
b) Update and enhance customized technical specifications including:
i. Develop new specifications for new, recurring unpriced tasks;
ii. Incorporate current construction practices, standards and materials;
and
iii. Publish new technical specifications for each additional solicitation
4. Training Support
a) Update the training manual to reflect any changes in procedures;
b) Conduct JOC procedures refresher training for staff, as requested;
c) Conduct JOC procedures training for new staff;
d) Provide hands-on training for new staff in the areas of:
i. Project identification and development;
ii. Joint scope meetings;
iii. Project scope development;
iv. Proposal development and preparation; and
v. Proposal review and variance resolution.
e) Conduct JOC Software training including:
i. Provide on-site software assistance, as needed or requested;
ii. Provide refresher training for current staff;
iii. Provide on-site/internet-based training for new releases of the
software;
iv. Provide on-site/internet-based training for all new staff; and
v. Provide internet based training for current and new staff.
5. Software Support
a) Provide unlimited access to the JOC Software;
b) Provide software technical support, including:
i. Maintain software access for staff;
ii. Set up software access for new staff; and
-6-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
iii. Provide systems support in connection with the software.
c) Provide access to all new releases of the software;
d) Write, test and finalize modifications to existing reports, as requested;
e) Write, test and finalize new reports, as requested; and
f) Provide toll-free technical support from 8 AM EST thru 10 PM EST, Monday
through Friday, excluding holidays. Telephone technical support may be
contacted at 800-448-8182.
C. SECURITY
Failure to fully comply with the security requirements as set forth in this Section 1(C)
will be considered a breach of this Agreement and shall result in termination of this
Agreement for default of the CONTRACTOR. CONTRACTOR personnel shall cooperate
with all COUNTY security personnel at all times and shall be subject to and conform to
COUNTY security rules and regulations. Any violations or disregard of these rules may be
cause for denial of access to COUNTY property. COUNTY may change these policies and
procedures at any time, without any prior notice to CONTRACTOR. It is the
CONTRACTOR’s responsibility to have the most recent versions of the attachments below.
1. CONTRACTOR acknowledges that the Juvenile Justice Campus (JJC) and the
Fresno Sheriff – Coroner’s Office (FSCO) Jail Detention Facilities are “no-hostage
facilities”. CONTRACTOR shall ensure that its employees and any subcontractors
working in the JJC, and associated facilities, agree to abide by COUNTY’s rules for
a no-hostage facility as set forth in Attachment C and D, attached and incorporated
by this reference. CONTRACTOR shall plan and execute all work in such a manner
as to prevent a security breach of the JJC and FSCO detention facilities or any
other COUNTY secured facility.
2. CONTRACTOR shall comply with all Prison Rape Elimination Act (PREA)
standards for juvenile correctional facilities as set forth in Attachment E, attached
and incorporated by this reference. The Probation Department shall provide
-7-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Trainings, as necessary, at no charge to CONTRACTOR. CONTRACTOR shall
comply with all Probation Department Policies and Procedures. In the event of a
dispute involving COUNTY staff and a CONTRACTOR employee or subcontractor,
the on-duty Facility Administrator will have the final decision. Information on the
Prison Rape Elimination Act can be found at: http://www.prearesourcecenter.org/.
3. COUNTY may require CONTRACTOR to have its staff pass a background
investigation through the Fresno County’s Sheriff – Coroner Office, as stated in
Attachment F, attached and incorporated by this reference, prior to commencing
services. Decision to require a background investigation, or lack thereof, will be at
the sole discretion of the COUNTY.
D. PREVAILING WAGE
In accordance with Labor Code section 1770, et seq., the Director of the
Department of Industrial Relations of the State of California has determined the general
prevailing wages rates and employer payments for health and welfare pension, vacation,
travel time and subsistence pay as provided for in Section 1773.1, apprenticeship or other
training programs authorized by Section 3093, and similar purposes applicable to the work
to be done.
Information pertaining to applicable Prevailing Wage Rates may be found on the
website for the State of California – Department of Industrial Relations:
http://www.dir.ca.gov/oprl/PWD/index.htm. Information pertaining to applicable prevailing
wage rates for apprentices may be found on the website for the State of California –
Department of Industrial Relations:
http://www.dir.ca.gov/oprl/pwappwage/PWAppWageStart.asp.
It shall be mandatory upon the CONTRACTOR and upon any subcontractor to pay
not less than the prevailing wage rates, including overtime and holiday rates, to all workers,
laborers, or mechanics employed on this public work project, including those workers
employed as apprentices. Further, CONTRACTOR and each subcontractor shall comply
-8-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
with Labor Code sections 1777.5 and 1777.6 concerning the employment of apprentices. A
copy of the above-mentioned prevailing wage rates shall be posted by the CONTRACTOR
at the job site where it will be available to any interested party.
CONTRACTOR shall comply with Labor Code section 1775 and shall forfeit as a
penalty to COUNTY Two Hundred Dollars ($200.00) for each calendar day or portions
thereof, for each worker paid less than the prevailing wage rates for the work or craft in
which the worker is employed for any work done under this project by CONTRACTOR or
by any subcontractor under CONTRACTOR in violation of Labor Code section 1770, et
seq. In addition to the penalty, the difference between the prevailing wage rates and
amount paid to each worker for each calendar day or portion thereof for which each worker
was paid less than the prevailing wage rate shall be paid to each worker by the
CONTRACTOR or subcontractor.
CONTRACTOR and each of their subcontractors shall keep an accurate record
showing the name, address, social security number, work classification, straight time and
overtime hours worked each day and week, and the actual per diem wages paid to each
journeyman, apprentice, worker, or other employee employed by him or her in connection
with this public work project. In accordance with Labor Code section 1776, each payroll
record shall be certified and verified by a written declaration under penalty of perjury stating
that the information within the payroll record is true and correct and that the
CONTRACTOR or subcontractor has complied with the requirements of Labor Code
sections 1771, 1811 and 1815 for any work performed by its employees on this public work
project. These records shall be open at all reasonable hours to inspection by the COUNTY,
its officers and agents, and to the representatives of the State of California – Department of
Industrial Relations, including but not limited to the Division of Labor Standards
Enforcement.
SECTION 2. – JOC SYSTEM LICENSE AND FEES
A. JOC SYSTEM LICENSE -- CONTRACTOR hereby grants to COUNTY a non-exclusive,
-9-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
non-transferable right, privilege and license to use CONTRACTOR's JOC system and other
related proprietary materials (collectively referred to as "Proprietary Information") for the
sole purpose of operating the COUNTY's JOC program for the Term of this Agreement.
This is called a “County License Fee.” The parties hereby agree that the Proprietary
Information shall include, but is not limited to, CONTRACTOR’s JOC Software applications
and support documentation, Construction Task Catalog® (also commonly referred to as a
unit price book), construction cost data, training materials and other Proprietary materials
provided by CONTRACTOR. In the event this Agreement expires or terminates as provided
herein, COUNTY shall return all Proprietary Information in the COUNTY’s possession to
CONTRACTOR, excluding COUNTY data and associated business information for which
access remains at the discretion of the COUNTY’s Chief Administrative
Officer. COUNTY acknowledges the unauthorized disclosure of Proprietary Information will
result in irreparable harm to CONTRACTOR for which monetary damages would be an
inadequate remedy and agrees that no such disclosure shall be made to anyone without
first receiving CONTRACTOR's written consent. The COUNTY further acknowledges and
agrees to respect the copyrights, registrations, trade secrets and other proprietary rights of
CONTRACTOR in the Proprietary Information during and after the term of this Agreement
and shall at all times maintain complete confidentiality with regard to the Proprietary
Information provided to the COUNTY, subject to federal and state laws related to public
records disclosure.
The County License Fee is payable by COUNTY to CONTRACTOR when a job
order contract is issued to the JOC contractor. The County License Fee will apply to all
future JOC contracts awarded by the County and will be assessed regardless of the
cumulative value of the work ordered. It is important to note that CONTRACTOR will be
responsible for all administrative duties related to the County License Fee, including
invoicing and collections.
CONTRACTOR agrees to grant a Contractor License to use the applicable Proprietary
-10-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Information to each contractor awarded a JOC contract by the COUNTY, provided such
JOC contractor agrees to pay CONTRACTOR's JOC “Contractor License Fee” in effect
when the COUNTY awards the contract, and further provided that COUNTY includes
licensing language in such JOC contract similar in form to that set forth in the “JOC System
License”,
Within 30 days of expiration or termination of this Agreement as provided herein,
CONTRACTOR shall provide to the County all data generated by the COUNTY in a form
accessible by a standard database program, such as Microsoft Access.
B. The cost of the County License Fee and the Contractor License Fee are discussed in
Section 5. – Compensation, see below.
SECTION 3. – OBLIGATIONS OF THE COUNTY
A. Review all documentation and requests for information submitted by CONTRACTOR in a
timely manner.
B. Provide full information regarding requirements for the JOC program, including, but not
limited to, facilities’ lists, current COUNTY procedures, programs, technical specifications,
and bidding information.
C. Designate, in writing, a representative who shall render or obtain decisions in a timely
manner pertaining to the JOC program.
D. Provide office space, furniture, telephone, and internet access as necessary, to
CONTRACTOR's JOC development team.
E. Provide reproduction services for all draft and final versions of the Construction Task
Catalog®, technical specifications, contract terms and conditions, instructions to bidders and
proposal forms, execution procedures and training materials.
F. CONTRACTOR shall comply with all applicable Federal, State, County, and City
regulations regarding wages, hours, and working conditions.
-11-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
SECTION 4. -- TERM
The initial term of this Agreement shall be for a period of three (3) years, commencing on
April 28, 2019, through and including April 27, 2022 (“Term”). This Agreement may be extended
for two (2) additional consecutive twelve (12) month periods upon written approval of both
COUNTY and CONTRACTOR, no later than thirty (30) days prior to the first day of the next twelve
(12) month extension period. COUNTY’s Director of Internal Services/Chief Information Officer or
his or her designee, is authorized to execute such written approval on behalf of COUNTY based on
CONTRACTOR’s satisfactory performance.
SECTION 5. – COMPENSATION/INVOICING
COUNTY agrees to pay CONTRACTOR for services provided to Department for Gordian
JOC Solution® services and JOC Complete Solution® services as follows:
A. Gordian JOC Solution® services – For Gordian JOC Solution® services provided to
Department, COUNTY shall pay to CONTRACTOR County License Fees totaling 1.95% of
the value of construction work awarded to JOC contractors utilizing the JOC system. Such
County License Fees shall be billable upon the issuance of a Job Order, purchase order,
notice to proceed, or similar purchasing document by COUNTY to the JOC contractors.
Additionally, throughout the term of this Agreement, all JOC contractors awarded by
COUNTY, who in turn will utilize the JOC system, shall be assessed a Contractor License
Fee of one percent (1%) of the value of construction procured from the JOC contractor by
the COUNTY. Such Contractor License Fees are payable to CONTRACTOR when a Job
Order, purchase order, notice to proceed, or similar purchasing document is issued to the
JOC contractor. Such Contractor License Fees shall be billable upon the award of
contracts to the JOC construction contractors.
1. ISD: In no event shall compensation for Gordian JOC Solution® services for
COUNTY's ISD under this Agreement exceed Four Hundred Fifty Thousand Dollars
($450,000.00) during the term of this Agreement, including extension periods.
CONTRACTOR shall submit invoices in accordance with the rates and
-12-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
charges agreed upon for the services provided to the COUNTY by CONTRACTOR
during the previous monthly billing period on the first day of the month. Each invoice
shall reference this Agreement number, the date and name of the facility where the
services were performed, and a clear itemization of services performed, and shall
be mailed to The County of Fresno, Internal Services Department, Facility Services
Division, Isdap-ar@FresnoCountyCA.gov, or at address 4590 E. Kings Canyon
Road, Fresno, CA 93702-3709. COUNTY shall make payment to
CONTRACTOR(S) no later than forty-five (45) days after receipt and approval of
each invoice, which shall be given upon verification of satisfactory performance.
2. PWP: In no event shall compensation for Gordian JOC Solution® services for
COUNTY's PWP under this Agreement exceed Five Hundred Thousand Dollars
($500,000.00) during the term of this Agreement, including extension periods.
CONTRACTOR shall submit invoices in accordance with the rates and charges
agreed upon for the services provided to the COUNTY by CONTRACTOR during
the previous monthly billing period on the first day of the month. Each invoice shall
reference this Agreement number, the date and name of the facility where the
services were performed, and a clear itemization of services performed, and shall
be e-mailed to: PWPBusinessoffice@fresnocountyca.gov or mailed to: County of
Fresno, Department of Public Works and Planning, Business Office, 2220 Tulare
Street, 6th Floor, Fresno, CA 93721-2127. Payment shall be made by COUNTY
forty-five (45) days from receipt of invoice by COUNTY.
3. COMBINED: In no event shall the combined total compensation paid to
CONTRACTOR for both the ISD and PWP departments for the entire potential five-
year term of this Agreement for Gordian JOC Solution® services exceed the sum of
Nine Hundred Fifty Thousand Dollars ($950,000).
B. JOC Complete Solution® – COUNTY, at its sole discretion, may request on an as-needed
basis “JOC Complete Solution®” described in Attachment B over and above those provided
-13-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
in the “Gordian JOC Solution®” package, described in this Agreement. The JOC Complete
Solution® will be utilized by Departments if Departments require services that are excluded
in the Gordian JOC Solution® service package. Such services include project managers to
assist with developing job orders from project identification to issuing the job orders.
In the event COUNTY requests JOC Complete Solution®, CONTRACTOR shall
provide a project-specific cost proposal for JOC Complete Solution® as set forth in
Attachment B. In consideration for such services, the COUNTY agrees to pay the
compensation associated with each additional service as provided in the project-specific
cost proposal. CONTRACTOR shall provide additional services to COUNTY as mutually
agreed. However, the JOC Complete Solution® will be provided to CONTRACTOR without
prior written authorization by COUNTY. The costs for Additional Services shall be as
follows:
1. JOC COMPLETE SOLUTION®: The following fees will apply to all future JOC
contracts awarded by the COUNTY for services provided to COUNTY and will be
assessed regardless of the cumulative value of the word ordered.
i. County License Fee: COUNTY shall pay CONTRACTOR JOC Complete
Solution® License Fees totaling 1.95% of the value of contracts awarded to
JOC contractors utilizing the JOC system;
ii. Job Order Development Fee: COUNTY shall pay CONTRACTOR Job Order
Contract Development Fees totaling 3.05% of the value of the work ordered
to JOC contractors utilizing the JOC Complete Solution®; and
iii. Contractor License Fee: All JOC contractors awarded by COUNTY, who in
turn utilize the JOC Complete Solution®, shall be assessed a Contractor
License Fee As described in Section 5(A).
2. In no event shall the total compensation paid to CONTRACTOR for the entire
potential five-year term of this Agreement for JOC Complete Solution® exceed the
sum of One Million Five Hundred Thousand Dollars ($1,500,000).
-14-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
C. It is understood that all expenses incidental to CONTRACTOR's performance of all
services under this Agreement shall be borne by CONTRACTOR.
D. TOTAL OVERALL CONTRACT MAXIMUM: In no event shall the total compensation paid
to CONTRACTOR for all services, including Gordian JOC Solution® services and JOC
Complete Solution®, for the entire potential five-year term of this Agreement, exceed
Two Million, Four-Hundred Fifty Thousand Dollars ($2,450,000).
SECTION 6. -- INDEPENDENT CONTRACTOR
In performance of the work, duties, and obligations assumed by each CONTRACTOR
under this Agreement, it is mutually understood and agreed that CONTRACTOR, including any
and all of CONTRACTOR’s officers, agents, subcontractors, and employees shall at all times be
acting and performing as independent contractors, and shall act in an independent capacity and
not as an officer, agent, servant, employee, joint venturer, partner, or associate of the COUNTY.
Furthermore, COUNTY shall have no right to control or supervise or direct the manner or
method by which CONTRACTORS shall perform their work and function. However,
CONTRACTOR’s methods must be compatible with COUNTY's standards and must result in
satisfactory and timely completion of the work assigned, and the quality and quantity of work
produced must be acceptable to the COUNTY. COUNTY retains the right to verify that each
CONTRACTOR is performing their obligations in accordance with this Agreement’s terms and
conditions. CONTRACTOR and COUNTY shall comply with all applicable provisions of law and
the rules and regulations, if any, of governmental authorities having jurisdiction over matters
covered by this Agreement.
Because of its status as an independent contractor, CONTRACTOR shall have
absolutely no right to employment rights and benefits available to COUNTY employees.
CONTRACTOR shall be solely liable and responsible for providing to, or on behalf of, their
employees all legally required employee benefits. In addition, CONTRACTOR shall be solely
responsible and shall hold the COUNTY harmless from all matters relating to payment of
CONTRACTORS' employees, including compliance with Social Security withholding, and all
-15-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
other regulations governing such matters. It is acknowledged that during the term of this
Agreement, CONTRACTOR may be providing services to others unrelated to the COUNTY or to
this Agreement.
SECTION 7. -- TERMINATION OF AGREEMENT
This Agreement may be terminated for the following reasons:
A. Non-Allocation of Funds - The terms of this Agreement and any extensions, and the
services to be provided, are contingent on the approval of funds by the appropriating
government agency. If sufficient funds are not allocated, the services provided may be
modified, or this Agreement terminated by COUNTY at any time by giving
CONTRACTOR thirty (30) days advance written notice.
B. Breach of Contract - COUNTY may immediately suspend or terminate this Agreement in
whole or in part, where in the determination of the COUNTY there is:
1. An illegal or improper use of funds;
2. A failure to comply with any term of this Agreement
3. A substantially incorrect or incomplete report submitted to the COUNTY;
or
4. Improperly performed services.
In no event shall any payment by the COUNTY constitute a waiver by the COUNTY of
any breach of this Agreement or any default which may then exist on the part of the
CONTRACTOR. Such payment shall not impair or prejudice any remedy to the
COUNTY with respect to the breach or default. COUNTY shall have the right to demand
of the CONTRACTOR the repayment to the COUNTY of any funds disbursed to the
CONTRACTOR under this Agreement, which in the judgment of the COUNTY were not
expended in accordance with the terms of this Agreement. CONTRACTOR shall
promptly refund any such funds upon demand.
C. Without Cause - Under circumstances other than those set forth above, this Agreement
may be terminated by COUNTY by giving ninety (90) days advance written notice of an
intention to terminate to CONTRACTOR. In the event of such termination, COUNTY
-16-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
shall pay CONTRACTOR for satisfactory services or supplies provided up until the date
of termination.
COUNTY’s Director of Internal Services/Chief Information Officer or his or her designee,
is authorized to execute such written notice on behalf of COUNTY.
SECTION 8. -- HOLD HARMLESS AND INDEMNIFICATION
CONTRACTOR agrees to indemnify, save, hold harmless, and at COUNTY'S request,
defend the COUNTY, its officers, agents, and employees from any and all costs and expenses
(including attorney’s fees and costs), damages, liabilities, claims, and losses, and any and all
claims, damages, costs, fees, regulatory fines and penalties, and forms of legal action involving
Cyber Risks, occurring or resulting to COUNTY in connection with the performance, or failure to
perform, by CONTRACTOR, 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, and any and all claims, damages, costs, fees, regulatory fines and penalties,
and forms of legal action involving Cyber Risks, occurring or resulting to any person, firm, or
corporation who may be injured or damaged by the performance, or failure to perform, of
CONTRACTOR, its officers, agents, or employees under this Agreement.
COUNTY agrees to indemnify, save, hold harmless, and at CONTRACTOR'S request,
defend the CONTRACTOR, its officers, agents, and employees from any and all costs and
expenses (including attorney’s fees and costs), damages, liabilities, claims, and losses
occurring or resulting to CONTRACTOR in connection with the performance, or failure to
perform, by COUNTY, 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 COUNTY, its officers, agents, or
employees under this Agreement.
In the event of a claim of alleged infringement of patent rights, copyright, trade secret
rights, or intellectual property rights, to the fullest extent permitted by law, CONTRACTOR
agrees to and shall indemnify, save, hold harmless, and at COUNTY’s request, defend
-17-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
COUNTY, including its officers, officials, agents, and employees from any and all demands,
costs and expenses, penalties, attorney’s fees and court costs, damages of any nature
whatsoever (including, without limitation, injury or damage to or loss or destruction of property),
judgments (including, without limitation, amounts paid in settlement and amounts paid to
discharge judgments), liabilities, claims and losses, suits, actions or proceedings of every name,
kind and description occurring or resulting to COUNTY, out of or in connection with any claim
that is based on the infringement (or assertions of infringement) of any of patent rights,
copyright, trade secret rights, or intellectual property rights with respect to services, software, or
any Equipment provided by CONTRACTOR as part of this Agreement, including, but not limited
to, their materials, designs, techniques, processes and information supplied or used by
CONTRACTOR or any of CONTRACTOR’s subcontractor of any tier in performing or providing
any portion of CONTRACTOR’s obligations as outlined in this Agreement. If, in any suit, action,
proceeding or claim relating to the foregoing, a temporary restraining order or preliminary
injunction is granted, CONTRACTOR shall make every reasonable effort to secure the
suspension of the injunction or restraining order. If, in any such suit, action, proceeding or
claim, the services, software or any Equipment provided by CONTRACTOR or any part,
combination or process thereof, is held to constitute an infringement and its use is enjoined,
CONTRACTOR shall immediately (a) pay the reasonable direct out-of-pocket costs and
expenses to secure a license to use such infringing work, replace the infringing work or modify
the same so that it becomes non-infringing, and (b) make every reasonable effort to secure for
the COUNTY a license, at no cost to COUNTY, authorizing COUNTY’s continued use of the
infringing work. If CONTRACTOR is unable to secure such license within a reasonable time,
CONTRACTOR, at its own expense and without impairing performance requirements of the
services, software, or any Equipment provided by CONTRACTOR as part of this Agreement,
shall either replace the affected services, software, or any Equipment provided by
CONTRACTOR as part of this Agreement, combination or process thereof, with non-infringing
services, software, or other equipment, or modify the same so that they become non-infringing.
The provisions of this Section 8 shall survive the termination of this Agreement.
-18-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
SECTION 9. -- INSURANCE
Without limiting COUNTY's right to obtain indemnification from CONTRACTOR or any
third parties, CONTRACTOR, at its sole expense, shall maintain in full force and effect, the
following insurance policies or a program of self -insurance, including but not limited to, an
insurance pooling arrangement or Joint Powers Agreement (JPA) throughout the term of the
Agreement:
A. Commercial General Liability
Commercial General Liability Insurance with limits of not less than Two Million Dollars
($2,000,000.00) per occurrence and an annual aggregate of Four Million Dollars
($4,000,000.00). This policy shall be issued on a per occurrence basis. County may
require specific coverage including completed operations, product liability, contractual
liability, Explosion-Collapse-Underground, fire legal liability or any other liability
insurance deemed necessary because of the nature of the contract.
B. Automobile Liability
Comprehensive Automobile Liability Insurance with limits of not less than One Million
Dollars ($1,000,000.00) per accident for bodily injury and for property damages.
Coverage should include any auto used in connection with this Agreement.
C. Professional Liability
If CONTRACTOR employs licensed professional staff (e.g., Ph.D., R. N., L.C.S.W.,
M.F.C.C.) while providing services, Professional Liability Insurance with limits of not less
than One Million Dollars ($1,000,000.00) per occurrence, and Three Million Dollars
($3,000,000.00) annual aggregate. This coverage shall be issued on a per claim basis.
Contractor agrees that it shall maintain, at its sole expense, in full force and effect for a
period of three years following the termination of this Agreement, one or more policies of
professional liability insurance with limits of coverage as specified herein.
D. Worker's Compensation
A policy of Worker's Compensation insurance as may be required by the California
Labor Code. CONTRACTOR shall obtain endorsements to the Commercial General
-19-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Liability insurance naming the County of Fresno, its officers, agents, and employees,
individually and collectively, as additional insured, but only insofar as the operations
under this Agreement are concerned. Such coverage for additional insured shall apply
as primary insurance and any other insurance, or self-insurance, maintained by
COUNTY, its officers, agents and employees shall be excess only and not contributing
with insurance provided under CONTRACTOR’s policies herein. This insurance shall
not be cancelled or changed without a minimum of thirty (30) days advance written
notice given to COUNTY.
E. Technology Professional Liability (Errors and Omissions)
Technology professional liability (errors and omissions) insurance with limits of not less
than Two Million Dollars ($2,000,000.00) per occurrence. Coverage shall encompass all
of the CONTRACTOR’s duties and obligations that are the subject of this Agreement.
Coverage shall include, but not be limited to, any and all claims, damages, costs, fees,
regulatory fines and penalties, or forms of legal action involving Cyber Risks.
F. Cyber Liability
Cyber liability insurance with limits of not less than Two Million Dollars ($2,000,000.00)
per occurrence. Coverage shall include, but not be limited to, any and all claims,
damages, costs, fees, regulatory fines and penalties, or forms of legal action involving
Cyber Risks. The cyber liability policy shall be endorsed to cover the full replacement
value of, damage to, alteration of, loss of, theft of, ransom of, or destruction of intangible
property (including but not limited to information or data) that is in the care, custody, or
control of CONTRACTOR.
For purposes of the technology professional liability insurance and the cyber liability
insurance required under this Agreement, Cyber Risks include, but are not limited to, (i)
security breaches, which include disclosure of, whether intentional or unintentional,
information provided by COUNTY, information provided by or obtained from any inmate,
or personal-identifying information relating to any inmate, to an unauthorized third party;
(ii) breach of any of CONTRACTOR’s obligations under this Agreement relating to data
-20-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
security, protection, preservation, usage, storage, transmission, and the like; (iii)
infringement of intellectual property including, but not limited to, infringement of
copyright, trademark, and trade dress; (iv) invasion of privacy, including any release of
private information; (v) information theft by any person or entity, whatsoever; (vi)
damage to or destruction or alteration of electronic information; (vii) extortion related to
CONTRACTOR’s obligations under this Agreement regarding electronic information,
including information provided by COUNTY, information provided by or obtained from
any inmate, or personal-identifying information relating to any inmate; (viii) network
security; (ix) data breach response costs, including security breach response costs; (x)
regulatory fines and penalties related to CONTRACTOR’s obligations under this
Agreement regarding electronic information, including information provided by
COUNTY, information provided by or obtained from an inmate, or personal-identifying
information relating to any inmate; and (xi) credit monitoring expenses.
Contractor hereby waives its right to recover from County, its officers, agents, and
employees any amounts paid by the policy of worker’s compensation insurance required by this
Agreement. Contractor is solely responsible to obtain any endorsement to such policy that may
be necessary to accomplish such waiver of subrogation, but Contractor’s waiver of subrogation
under this paragraph is effective whether or not Contractor obtains such an endorsement.
Within thirty (30) days from the date CONTRACTOR executes this Agreement,
CONTRACTOR shall provide certificates of insurance and endorsement as stated above for all
of the foregoing policies, as required herein, to the County of Fresno, Facility Services, Attn:
Facility Manager, 4590 E. Kings Canyon Road, Fresno, CA 93702, stating that such insurance
coverage have been obtained and are in full force; that the County of Fresno, its officers, agents
and employees will not be responsible for any premiums on the policies; that for such worker’s
compensation insurance the CONTRACTOR has waived its right to recover from the COUNTY,
its officers, agents, and employees any amounts paid under the insurance policy and that
waiver does not invalidate the insurance policy; that such Commercial General Liability
insurance names the County of Fresno, its officers, agents and employees, individually and
-21-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
collectively, as additional insured, but only insofar as the operations under this Agreement are
concerned; that such coverage for additional insured shall apply as primary insurance and any
other insurance, or self-insurance, maintained by COUNTY, its officers, agents and employees,
shall be excess only and not contributing with insurance provided under CONTRACTOR's
policies herein; and that this insurance shall not be cancelled or changed without a minimum of
thirty (30) days advance, written notice given to COUNTY.
In the event CONTRACTOR 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 with admitted insurers licensed to do business in the State of California.
Insurance purchased shall be purchased from companies possessing a current A.M. Best, Inc.
rating of A FSC VII or better.
SECTION 10. -- MODIFICATION
This Agreement may be modified from time to time by the written consent of all the
parties without, in any way, affecting the remainder.
SECTION 11. – NON - ASSIGNMENT
CONTRACTOR shall not assign, transfer or sub-contract this Agreement or any of its
respective rights or duties hereunder without the prior written consent of the COUNTY.
SECTION 12. -- AUDITS AND INSPECTIONS
CONTRACTOR 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. CONTRACTOR shall, upon
request by the COUNTY, permit the COUNTY to audit and inspect all of such records and data
necessary to ensure CONTRACTORS' compliance with the terms of this Agreement. If this
Agreement exceeds ten thousand dollars ($10,000.00), CONTRACTOR shall be subject to the
examination and audit of the California State Auditor for a period of three (3) years after final
payment under contract (Government Code Section 8546.7).
-22-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
SECTION 13. -- NOTICES
The persons and their addresses having authority to give and receive written notices
under this Agreement include the following:
COUNTY OF FRESNO CONTRACTORS
County of Fresno - ISD The Gordian Group, Inc.
Director of Internal Services/
Chief Information Officer
333 W. Pontiac Way, Clovis, CA 93612
Ammon Lesher, Vice President
30 Patewood Dr., Building 2, Suite 350
Greenville, SC 29615-6810
County of Fresno - Public Works and
Planning
Director of Public Works and Planning
2220 Tulare Street, 6th floor
Fresno, CA 93721-2127
All notices between the COUNTY and the CONTRACTOR 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 a 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 law, including but not limited to the Government Claims Act (Division 3.6 of Title 1 of
the Government Code, beginning with section 810).
-23-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
SECTION 14. – LEGAL AUTHORITY
Each individual executing this Agreement on behalf of CONTRACTOR hereby
covenants, warrants, and represents: (i) that he or she is duly authorized to execute or attest
and deliver this Agreement on behalf of such entity, e.g. (without limitation), corporation, limited
liability company, limited partnership, partnership or sole proprietorship, in accordance with all
applicable formalities and under California law; (ii) that this Agreement is binding on such entity;
and (iii) that CONTRACTOR (as applicable) is a duly organized and legally existing corporation,
limited liability company, limited partnership, partnership or sole proprietorship in good standing
in the State of California.
SECTION 15. -- GOVERNING LAW
Venue for any action arising out of or relating to this Agreement shall only be in Fresno
County, California. The rights and obligations of the parties and all interpretation and
performance of this Agreement shall be governed in all respects by the laws of the State of
California.
SECTION 16. -- DISCLOSURE OF SELF-DEALING TRANSACTIONS
This provision is only applicable if the CONTRACTOR is operating as a corporation (a
for-profit or non-profit corporation) or if during the term of this agreement, the CONTRACTOR
changes its status to operate as a corporation.
Members of CONTRACTOR’s Board of Directors shall disclose any self-dealing
transactions that they are a party to while CONTRACTOR is providing goods or performing
services under this agreement. A self-dealing transaction shall mean a transaction to which the
CONTRACTOR is a party and in which one or more of its directors has a material financial
interest. Members of CONTRACTOR’S 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 (Attachment G) and submitting it to the COUNTY prior to commencing with the
self-dealing transaction or immediately thereafter.
-24-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
SECTION 17. -- ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between CONTRACTOR and
COUNTY with respect to the subject matter hereof and supersedes all previous Agreement
negotiations, proposals, commitments, writings, advertisements, publications, and
understandings of any nature whatsoever unless expressly included in this Agreement.
//
//
1 IN WITNESS WHEREOF , the parties hereto have executed this Agreement as of the
2 Effective Date .
3
4 CONTRACTOR
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Ammon T. Lesher, Vice-President
FOR ACCOUNTING USE ONLY:
ISO -FACILITY SERVICES
FUND : 1045
SUBCLASS: 10000
ORG No .: 8935
Account No.: 7205
DEPARTMENT OF PUBLIC WORKS AND
PLANNING
Please see the page that follows .
-25-
COUNTY OF FRESNO
ATTEST:
Bernice E . Seidel
Clerk of the Board of Supervisors
County of Fresno , State of California
-26-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
DEPARTMENT OF PUBLIC WORKS AND
PLANNING
Fund: 0400
Subclass: 10051
Dept: 8851
Acct: 8150
Fund: 0400
Subclass: 10100
Dept: 8830
Acct: 8150
Fund: 0400
Subclass: 10052
Dept: 8852
Acct: 8150
Fund: 0701
Subclass: 15001
Dept: 9015
Acct: 7295
Fund: 0001
Subclass: 10000
Dept: 4360
Acct: 7295
Fund: 0720
Subclass: 15000
Dept: 9020
Acct: 7295
Fund: 0001
Subclass: 10000
Dept: 4365
Acct: 7295
Fund: 0700
Subclass: 15000
Dept: 9026
Acct: 7295
Fund: 0001
Subclass: 11000
Dept: 4510
Acct: 7295
Fund: 0710
Subclass: 15000
Dept: 9028
Acct: 7295
Fund: 0001
Subclass: 10000
Dept: 7205
Acct: 7295
Fund: 0801
Subclass: 16900
Dept: 9140
Acct: 7295
Fund: 0001
Subclass: 10000
Dept: 7910
Acct: 7295
Fund: 0400
Subclass: 10061
Dept: 8861
Acct: 8150
Fund: 0400
Subclass: 10059
Dept: 8859
Acct: 8150
Fund: 0400
Subclass: 10060
Dept: 8860
Acct: 8150