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HomeMy WebLinkAboutP-21-463 Juan T Lopez dba Amistad Associates.pdf -1- 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 A G R E E M E N T THIS AGREEMENT is made and entered into this 6th day of December 2021, by and between the COUNTY OF FRESNO, a Political Subdivision of the State of California, hereinafter referred to as "COUNTY", and Juan T. Lopez, DBA Amistad Associates, a Sole Proprietor, whose address is 6610 Barbara Drive, Sebastopol, CA 95472, hereinafter referred to as "CONTRACTOR". W I T N E S S E T H: WHEREAS COUNTY wishes to obtain specialized services, as authorized by Government Code section 31000, to obtain strategic planning, organizational development, and executive coaching and consulting services for the COUNTY Board of Supervisors, County Administrative Officer, County Department Heads, and other stakeholders as directed; and WHEREAS CONTRACTOR is willing to provide such specialized services to COUNTY under the terms and conditions set forth herein. NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions herein contained, the parties hereto agree as follows: 1. OBLIGATIONS OF THE CONTRACTOR A. CONTRACTOR agrees to provide COUNTY with the services as set forth above (the “Services”). B. CONTRACTOR agrees to perform the Services in a timely fashion with the skill, competence, and diligence commensurate with industry standards. 2. TERM The term of this Agreement shall be for a period of two (2) years, commencing on December 6, 2021, through and including December 6, 2023. This Agreement may be extended for two (2) additional consecutive twelve (12) month periods upon written approval of both parties no later than thirty (30) days prior to the first day of the next twelve (12) month extension period. The County Administrative Officer, or his or her designee, is authorized to execute such written approval on behalf of COUNTY based on CONTRACTOR’S satisfactory performance. -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 3. TERMINATION A. Non-Allocation of Funds - The terms of this Agreement, and the services to be provided hereunder, are contingent on the approval of funds by the appropriating government agency. Should sufficient funds not be allocated, the services provided may be modified, or this Agreement terminated, at any time by giving the CONTRACTOR thirty (30) days advance written notice. B. Breach of Contract - The 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. 4) Improperly performed service. 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. Neither shall such payment impair or prejudice any remedy available to the COUNTY with respect to the breach or default. The 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. The 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 upon the giving of thirty (30) days advance written notice of an intention to terminate to CONTRACTOR. 4. COMPENSATION/INVOICING: The COUNTY agrees to pay CONTRACTOR and CONTRACTOR agrees to receive compensation for consulting services performed for the COUNTY and for all associated expenses, such as per diem, airfare, airport parking, meals, hotels, and mileage at the rates set forth in Exhibit A, attached hereto and incorporated herein by this reference. CONTRACTOR shall submit monthly invoices in triplicate to the County of Fresno, County Administrative Office. -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 In no event shall compensation paid for services performed under this Agreement exceed Two Hundred Thousand and No/100 Dollars ($200,000) during the term of this Agreement, including term extensions. It is understood that all expenses incidental to CONTRACTOR'S performance of services under this Agreement shall be borne by CONTRACTOR. For COUNTY to pay CONTRACTOR as specified by this Agreement, CONTRACTOR must submit a detailed invoice to COUNTY which lists the hours worked and reimbursable costs (all as set forth in Exhibit A), the tasks performed, the percentage of the task completed during the billing period, the cumulative percentage completed for each task, the total cost of that work during the preceding billing month and a cumulative cash flow curve showing projected and actual expenditures versus time to date. 5. INDEPENDENT CONTRACTOR: In performance of the work, duties and obligations assumed by CONTRACTOR under this Agreement, it is mutually understood and agreed that CONTRACTOR, including all the CONTRACTOR'S officers, agents, and employees will always be acting and performing as an independent contractor, and shall act in an independent capacity and not as an officer, agent, servant, employee, joint venturer partner, or associate of the COUNTY. Furthermore, COUNTY shall have no right to control or supervise or direct the manner or method by which CONTRACTOR shall perform its work and function. However, COUNTY shall retain the right to administer this Agreement to verify that CONTRACTOR is performing its obligations in accordance with the terms and conditions thereof. 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 the subject thereof. Because of its status as an independent contractor, CONTRACTOR shall have 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, its employees all legally-required employee benefits. In addition, CONTRACTOR shall be solely responsible and save COUNTY harmless from all matters relating to payment of CONTRACTOR'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, CONTRACTOR may be providing services to others unrelated to the COUNTY or to this Agreement. -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 6. MODIFICATION: Any matters of this Agreement may be modified from time to time by the written consent of all the parties without, in any way, affecting the remainder. 7. NON-ASSIGNMENT: Neither party shall assign, transfer or sub-contract this Agreement nor their rights or duties under this Agreement without the prior written consent of the other party. 8. HOLD HARMLESS: 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 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 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. The provisions of this Section 8 shall survive termination of this Agreement. 9. INSURANCE Without limiting the 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 coverages including completed operations, products liability, contractual liability, Explosion-Collapse-Underground, fire legal liability or any other liability insurance deemed necessary because of the nature of this 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. -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 C. Professional Liability If CONTRACTOR employs licensed professional staff, (e.g., Ph.D., R.N., L.C.S.W., M.F.C.C.) in providing services, Professional Liability Insurance with limits of not less than One Million Dollars ($1,000,000.00) per occurrence, Three Million Dollars ($3,000,000.00) annual aggregate. CONTRACTOR 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, 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. E. Cyber liability Cyber Liability Insurance, with limits of not less than Two Million Dollars ($2,000,000.00) per occurrence or claim, Two Million Dollars ($2,000,000.00) annual aggregate. Coverage shall be sufficiently broad to respond to the duties and obligations as are undertaken by CONTRACTOR in this Agreement and shall include, but not be limited to, claims involving infringement of intellectual property, including but not limited to infringement of copyright, trademark, trade dress, invasion of privacy violations, information theft, damage to or destruction of electronic information, release of private information, alteration of electronic information, extortion and network security. The policy shall provide coverage for breach response costs as well as regulatory fines and penalties as well as credit monitoring expenses with limits sufficient to respond to these obligations. F. 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 must encompass all the CONTRACTOR’S obligations under this Agreement, including but not limited to claims involving Cyber Risks. Definition of Cyber Risks. “Cyber Risks” include but are not limited to (i) Security Breaches, which may include Disclosure of Personal Information to an Unauthorized Third Party; (ii) breach of any of the Contractor’s obligations under this Agreement; (iii) infringement of intellectual property, including but not limited to infringement of copyright, trademark, and trade dress; (iv) invasion of privacy, including -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 release of private information; (v) information theft; (vi) damage to or destruction or alteration of electronic information; (vii) extortion related to the Contractor’s obligations under this Agreement regarding electronic information, including Personal Information; (viii) network security; (ix) data breach response costs, including Security Breach response costs; (x) regulatory fines and penalties related to the Contractor’s obligations under this Agreement regarding electronic information, including Personal Information; and (xi) credit monitoring expenses. Additional Requirements Relating to Insurance CONTRACTOR shall obtain endorsements to the Commercial General 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. 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 CONTRACTOR obtains such an endorsement. Within Thirty (30) days from the date CONTRACTOR signs and 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, County Administrative Officer, 2281 Tulare Street, Room 304, Fresno CA 93721, stating that such insurance coverages 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 such Commercial General Liability insurance names 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; that such coverage for additional insured shall apply as primary insurance and any other insurance, or self-insurance, maintained by COUNTY, its officers, -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 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 always keep in effect 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. 10. AUDITS AND INSPECTIONS: The 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 its records and data with respect to the matters covered by this Agreement. The CONTRACTOR shall, upon request by the COUNTY, permit the COUNTY to audit and inspect all such records and data necessary to ensure CONTRACTOR'S 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). 11. NOTICES: The persons and their addresses having authority to give and receive notices under this Agreement include the following: COUNTY CONTRACTOR COUNTY OF FRESNO County Administrative Officer 2281 Tulare Street, Room 304 Fresno, CA 93721 Juan T. Lopez Amistad Associates 6610 Barbara Drive Sebastopol, CA 95742 All notices between the COUNTY and 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, -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 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). 12. GOVERNING LAW: Venue for any action arising out of or related 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. 13. 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 the agreement, the CONTRACTOR changes its status to operate as a corporation. Members of the 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 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 Exhibit B, and incorporated herein by reference, and submitting it to the COUNTY prior to commencing with the self-dealing transaction or immediately thereafter. 14. ENTIRE AGREEMENT: This Agreement constitutes the entire agreement between the CONTRACTOR and COUNTY with respect to the subject matter hereof and supersedes all previous -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 Agreement negotiations, proposals, commitments, writings, advertisements, publications, and understanding of any nature whatsoever unless expressly included in this Agreement. /// /// /// /// /// /// /// /// /// /// /// /// -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 EXHIBIT A Rates paid by COUNTY to CONTRACTOR for consulting services performed, and for all associated expenses, such as per diem, airfare, airport parking, meals, hotels, and mileage, shall be as follows: • Hourly Rate: $275 • Daily Rate: $2,200 (to be charged if CONTRACTOR engages in eight or more consecutive hours of work for the COUNTY within a 24-hour period) • Mileage: IRS allowed amount • Airport Parking: At rates pre-approved by the COUNTY • Airfare: At rates pre-approved by the COUNTY • Hotel: At rates pre-approved by the COUNTY • Meals: At rates pre-approved by the COUNTY -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 EXHIBIT B 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 that 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 a 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). -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 (1) Company Board Member Information: Name: Date: Job Title: (2) Company/Agency Name and Address: (3) Disclosure (Please describe the nature of the self-dealing transaction you are a party to): (4) Explain why this self-dealing transaction is consistent with the requirements of Corporations Code 5233 (a): (5) Authorized Signature Signature: Date: