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HomeMy WebLinkAboutP-22-609 The Institute Agreement.pdf P-22-609 CONSULTING SERVICES AGREEMENT BETWEEN THE COUNTY OF FRESNO AND THE JFA INSTITUTE THIS AGREEMENT for consulting services ("Agreement") is entered into by and between the County of Fresno, a political subdivision of the State of California("County"), and the JFA Institute, a California non-profit corporation("Consultant"), effective October 10, 2022 ("the Effective Date"). SECTION 1. SERVICES. Subject to the terms and conditions set forth in this Agreement, Consultant shall provide to County the services described in the Scope of Work section 1.2 of this Agreement. 1.1 Term of Services. The term of this Agreement shall begin on the Effective Date and shall end on June 30, 2023, and Consultant shall complete the work described in Section 1.2 prior to that date, unless the term of the Agreement is otherwise terminated, as provided for in Section 7. The time provided to Consultant to complete the services required by the Agreement shall not affect the County's right to terminate the Agreement, as provided for in Section 7.1. 1.2 Scope of Work. The Consultant shall provide analysis and consulting services related to the current policies,processes and procedures of the County of Fresno Jail, the Fresno County Probation Department, and to the extent possible, the Superior Court of California for the County of Fresno related to the jail inmate population in the County of Fresno Jail, and develop potential strategies,processes or programs to assist the County in reducing its Jail population while maintaining public safety and complying with all legal requirements. 1.2 Standard of Performance. Consultant shall perform all services required pursuant to this Agreement in the manner and according to the standards observed by a competent practitioner of the profession in which Consultant is engaged in the geographical area in which Consultant practices its profession. Consultant shall prepare all work products required by this Agreement in a substantial, first-class manner and shall conform to the standards of quality normally observed by a person practicing in Consultant's profession. 1.3 Assignment of Personnel. Consultant shall assign only competent personnel to perform services pursuant to this Agreement. In the event that County, in its sole discretion, at any time during the term of this Agreement, desires the reassignment of any such persons, Consultant shall, immediately upon receiving written notice from County of such desire of County, reassign any such persons. James Austin is assigned as the primary contact. 1.4 Time. Consultant shall devote such time to the performance of services pursuant to this Agreement as may be reasonably necessary to meet the standard of performance provided in Section 1.2 above, and to satisfy Consultant's obligations hereunder. 1 P-22-609 SECTION 2. COMPENSATION. County hereby agrees to pay Consultant a sum not to exceed fifty thousand dollars ($50,000) over the term of this Agreement, according to the rates described in Exhibit A, notwithstanding any contrary indications that may be contained in Consultant's proposal, for services to be performed and reimbursable costs incurred under this Agreement. In the event of a conflict between this Agreement and Consultant's proposal regarding the amount of compensation, this Agreement shall prevail. County shall pay Consultant for services rendered pursuant to this Agreement at the time and in the manner set forth herein. The payments specified below shall be the only payments from County to Consultant for services rendered pursuant to this Agreement. Consultant shall submit all invoices to County in the manner specified herein. Except as specifically authorized by County, Consultant shall not bill County for duplicate services performed by more than one person. Consultant and County acknowledge and agree that compensation paid by the County to Consultant under this Agreement is based upon Consultant's estimated costs of providing the services required hereunder, including salaries and benefits of employees and subcontractors of Consultant. Consequently, the parties further agree that compensation hereunder is intended to include the cost of contributions to any pensions and/or annuities to which the Consultant and its employees, agents, and subcontractors may be eligible. County therefore has no responsibility for such contributions beyond compensation required under this Agreement. 2.1 Invoices. Consultant shall submit invoices, not more often than once a month during the term of this Agreement,based on the cost for services performed and reimbursable costs incurred prior to the invoice date. Invoices shall contain the following information: • The beginning and ending dates of the billing period; • A Task Summary containing the original Agreement amount, the amount of prior billings, the total due this period, the balance available under the Agreement, and the percentage of completion; • At County's option, for each work item in each task, a copy of the applicable time entries or time sheets shall be submitted showing the name of the person doing the work, the hours spent by each person, a brief description of the work, and each reimbursable expense; and • The total number of hours of work performed under the Agreement by Consultant. 2.2 Monthly Payment. County shall make monthly payments,based on invoices received, for services satisfactorily performed, and for authorized reimbursable costs incurred. County shall have 60 days from the receipt of an invoice that complies with all of the requirements above to pay Consultant. 2.3 Total Payment. County shall pay for the services to be rendered by Consultant pursuant to this Agreement. County shall not pay any additional sum for any expense or cost 2 P-22-609 whatsoever incurred by Consultant in rendering services pursuant to this Agreement. County shall make no payment for any extra, further, or additional services pursuant to this Agreement. In no event shall Consultant submit any invoice for an amount in excess of the maximum amount of compensation provided above either for a task or for the entire Agreement, unless the Agreement is amended by the parties prior to the submission of such invoice by a properly executed amendment approved in writing by the County Counsel, and executed by the County Purchasing Manager. 2.4 Fees. Fees for work performed by Consultant on an hourly basis shall not exceed the amounts shown on the Compensation Schedule attached hereto and incorporated herein as Exhibit A. 2.5 Reimbursable Expenses. Reimbursable expenses are specified in Exhibit A, and expenses not listed in Exhibit A are not chargeable to the County. 2.6 Payment of Taxes. Consultant is solely responsible for the payment of employment taxes incurred under this Agreement and any similar federal or state taxes. 2.7 Payment upon Termination. In the event that the County or Consultant terminates this Agreement pursuant to Section 7 of this Agreement, the County shall compensate the Consultant for all outstanding costs and reimbursable expenses incurred for work satisfactorily completed as of the date of written notice of termination. Consultant shall maintain adequate logs and timesheets in order to verify costs incurred to that date. 2.8 Authorization to Perform Services. Except as expressly provided in the Agreement, Consultant is not authorized to perform any services or incur any costs whatsoever without receipt of written authorization from the County Counsel, or their designee. 2.9 Notification of Accrued Costs. Consultant acknowledges that County is a public entity and cannot pay any amount for any services that are not authorized by this Agreement or a lawfully executed written amendment thereto. Whenever total accrued charges under this Agreement, whether billed or not yet billed, for services, expenses or cost reimbursement reaches an amount which is 85% of the maximum total compensation authorized in this Agreement, Consultant shall notify County Counsel in writing to that effect to allow the parties sufficient time to amend this Agreement if necessary and mutually agreeable to the parties. This Agreement does not authorize payment for services, expenses or cost reimbursement in any amount in excess of the total compensation limit provided in this Section 2 or in any amendment to this Agreement lawfully agreed to by the parties. Any such work or performed or cost incurred by Consultant in excess of the total compensation provided for in this Agreement or in any amended Agreement lawfully agreed to by the parties is performed or incurred at the sole expense and risk of the Consultant. County is not obligated to pay for any work performed or 3 P-22-609 cost incurred in excess of the maximum amount of compensation provided for in this Agreement or in a lawfully executed written amendment thereto. SECTION 3. FACILITIES AND EQUIPMENT. Except as set forth herein, Consultant shall, at its sole cost and expense,provide facilities and equipment that may be necessary to perform the services required by this Agreement. County shall make available to Consultant only the facilities and equipment listed in this section, and only under the terms and conditions set forth herein. County shall furnish physical facilities such as desks, filing cabinets, and conference space, as may be reasonably necessary for Consultant's use while consulting with County employees and reviewing records and the information in possession of the County. The location, quantity, and time of furnishings those facilities shall be in the sole discretion of the County. In no event shall the County be obligated to furnish any facility that may involve incurring any direct expense, including but not limited to computer, long distance telephone or other communication charges, vehicles, and reproduction of facilities. The temporary use of any such facilities or property by Consultant does not constitute any property interest by Consultant in such facilities or property. SECTION 4. HOLD HARMLESS AND INSURANCE REQUIREMENTS. 4.1 Hold Harmless. Consultant 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 Consultant, 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 Consultant, its officers, agents, or employees under this Agreement. 4.2 Insurance requirements. Without limiting the County's right to obtain indemnification from Consultant or any third parties, Consultant, 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: 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. 4 P-22-609 Commercial General Liability Consultant shall maintain 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 liability, fire legal liability, or any other liability insurance deemed necessary because of the nature of the Agreement. Workers' Compensation Consultant shall maintain a policy of Workers' Compensation insurance as may be required by the California Labor Code. Consultant 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. Consultant is solely responsible to obtain any endorsement to such policy that may be necessary to accomplish such waiver of subrogation,but Consultant's waiver of subrogation under this paragraph is effective whether or not Consultant obtains such an endorsement. Within thirty (30) days from the date Consultant executes this Agreement, Consultant shall provide certificates of insurance and endorsement as stated above for all of the foregoing policies to County Counsel's Office, stating that such insurance coverage has been obtained and is in full force and effect; 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 Consultant 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, 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, agents and employees, shall be excess only and not contributing with insurance provided under Consultant'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. 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. 4.3 Variation. The County may approve a variation in the insurance requirements, upon a determination that the coverage, scope, limit, and form of such insurance is either not commercially available, or that the County's interests are otherwise fully protected. 5 P-22-609 4.4 Notice of Reduction in Coverage. In the event that any coverage required by this section is reduced, limited, or materially affected in any other manner, Consultant shall provide written notice to County at Consultant's earliest possible opportunity and in no case later than five says after Consultant is notified of the change in coverage. 4.5 Remedies. In addition to any other remedies County may have if Consultant fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, County may, at its sole option, exercise any of the following remedies, which are alternatives to other remedies County may have and are not the exclusive remedy for Consultant's breach: 4.5.1 Order Consultant to stop work under this Agreement or withhold any payment that becomes due to Consultant hereunder, or both stop work and withhold any payment,until Consultant demonstrates compliance with the requirements hereof; and/or 4.5.2 Terminate this Agreement. SECTION 5. STATUS OF CONSULTANT. 5.1 Independent Contractor.At all times during the term of this Agreement, Consultant shall be an independent contractor and shall not be an employee of County. County shall have the right to control Consultant insofar as the results of Consultant's services rendered pursuant to this Agreement and assignment of personnel pursuant to Section 1; however, otherwise County shall not have the right to control the means by which Consultant accomplishes services rendered pursuant to this Agreement. Notwithstanding any other County, state, or federal policy, rule, regulation, law, or ordinance to the contrary, Consultant and any of its employees, agents, and subcontractors providing services under this Agreement shall not qualify for or become entitled to, and hereby agree to waive any and all claims to any compensation, benefit, or any incident of employment by County, including but not limited to eligibility to enroll in the California Public Employees Retirement System(PERS) or the Fresno County Employees Retirement Agency as an employee of County and entitlement to any contribution to be paid by County of employer contributions and/or employee contributions for PERS or other public retirement benefits. 5.2 Consultant, Not Agent. Except as County may specify in writing or as provided by law, Consultant shall have no authority, express or implied, to act on behalf of County in any capacity whatsoever as an agent. Consultant shall have no authority, express or implied,pursuant to this Agreement to bind County to any obligation whatsoever. SECTION 6. LEGAL REQUIREMENTS 6.1 Governing Law. The laws of the State of California shall govern this Agreement. 6 P-22-609 6.2 Compliance with Applicable Law. Consultant and any subcontractors shall comply with all laws applicable to the performance of the work hereunder. 6.3 Other Governmental Regulations. To the extent that this Agreement may be funded by fiscal assistance from another governmental entity, Consultant and any subcontractors shall comply with all applicable rules and regulations to which County is bound by the terms of such fiscal assistance program. 6.4 Licenses and Permits. Consultant represents and warrants to County that Consultant and its employees, agents, and any subcontractors have all licenses, permits, qualifications, and approvals of whatsoever nature that are legally required to practice their respective professions. Consultant represents and warrants to County that Consultant and its employees, agents, any subcontractors shall at their sole cost and expense, keep in effect at all times during the term of this Agreement all licenses,permits, and approvals that are legally required to practice their respective professions. In addition to the foregoing, Consultant and any subcontractors shall obtain and maintain during the term of this Agreement valid business licenses necessary to operate in the County. 6.5 Nondiscrimination and Equal Opportunity. Consultant shall not discriminate, on the basis of a person's race, religion, color, national origin age, physical or mental handicap or disability, medical condition, marital status, sex, or sexual orientation, against any employee, applicant for employment, subcontractor,bidder for a subcontract, or participant in, recipient of, or applicant for any services or programs provided by Consultant under this Agreement. Consultant shall comply with all applicable federal, state, and local laws,policies, rules, and requirements related to equal opportunity and nondiscrimination in employment, contracting, and the provision of any services that are the subject of this Agreement. SECTION 7. TERMINATION AND MODIFICATION. 7.1 Termination. County may cancel this Agreement at any time and without cause, upon written notification to Consultant. Consultant may cancel this Agreement upon 30 days written notice to County and shall include in such notice the reasons for cancellation. In the event of termination, Consultant shall be entitled to compensation for services performed to the effective date of termination; County, however, may condition payment of such compensation upon Consultant delivering to County any or all documents, photographs, computer software, video and audio tapes, and other materials provided to Consultant or prepared by or for Consultant or the County in connection with this Agreement. 7.2 Amendments. The parties may amend this Agreement only by a writing signed by all the parties. 7 P-22-609 7.3 Assignment and Subcontracting. County and Consultant shall recognize and agree that this Agreement contemplates personal performance by Consultant and is based upon a determination of Consultant's unique personal competence, experience, and specialized personal knowledge. Moreover, a substantial inducement to County for entering into this Agreement was and is the professional reputation and competence of Consultant. Consultant may not assign the Agreement or any interest therein without the prior written approval of the County Counsel. Consultant shall not subcontract any portion of the performance contemplated and provided herein, other than to the subcontractors noted in the proposal, without prior written approval of the County Counsel. 7.4 Survival. All obligations arising prior to the termination of this Agreement and all provisions of this Agreement allocating liability between County and Consultant shall survive the termination of this Agreement. 7.5 Options Upon Breach by Consultant. If Consultant materially breaches any of the terms of this Agreement, County's remedies shall include,but not be limited to the following: 7.5.1 Immediately terminate the Agreement; 7.5.2 Retain the plans, specifications, memoranda, correspondence, and any other work product prepared by Consultant pursuant to this Agreement; or 7.5.3 retain a different Consultant to complete the work described in Section 1.2 not finished by Consultant. SECTION 8. KEEPING AND STATUS OF RECORDS. 8.1 Records Created as Part of Consultant's Performance. All reports, data, maps, models, charts, studies, photographs, memoranda, plans, specifications, records, files or any other documents or materials, in electronic or any other form, that Consultant prepares or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be the property of the County. Consultant hereby agrees to deliver those documents to the County upon termination of the Agreement. It is understood and agreed that the documents and other materials, including but not limited to those described above,prepared pursuant to this Agreement are prepared specifically for the County and are not necessarily suitable for any further or other use. County and Consultant agree that,until final approval by County, all data, plans, specifications, reports and other documents are confidential and will not be released to third parties without prior written consent of both parties. The parties acknowledge that the retention of Consultant arises from the County's need for consulting services in the context of litigation entitled Hall v. County of Fresno, U.S. District Court for the Eastern District of California, Case No. 1:11-CV-02047. Although it is anticipated that the methods to be employed by Consultant, and upon consent of the County, certain reports, analyses and data compiled by 8 P-22-609 Consultant will eventually be shared with the Prison Law Office, plaintiffs' counsel in said litigation, Consultant shall obtain County's approval for the release of such reports, analyses or data by the County pursuant to this Section. Written approval may be obtained via electronic mail. 8.2 Consultant's Books and Records. Consultant shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for services or expenditures and disbursements charged to the County under this Agreement for a minimum of three (3) years, or for any longer period required by law, from the date of final payment to the Consultant to this Agreement. 8.3 Inspection and Audit of Records.Any records or documents that this Agreement requires Consultant to maintain shall be made available for inspection, audit, and/or copying at any time during business hours,upon oral or written request of the County. Consultant shall be subject to the examination and audit of such records by the State Auditor for a period of three (3) years after final payment under this Agreement,pursuant to Government Code section 8546.7, as applicable. SECTION 9. MISCELLANEOUS PROVISIONS. 9.1 Attorney's Fees. If a party to this Agreement brings any action, including an action for declaratory relief, to enforce or interpret the provision of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees in addition to any other relied to which that party may be entitled. The court may set such fees in the same action or in a separate action brought for that purpose. 9.2 Venue. In the event that either party brings any action against the other under this Agreement, the parties agree that trial of such action shall be vested exclusively in the Superior Court for the County of Fresno. 9.3 Severability. If a court of competent jurisdiction finds or rules that any provision of this Agreement is invalid, void, or unenforceable, the provisions of this Agreement not so adjusted shall remain in full force and effect. The individuality in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provisions of this Agreement. 9.4 No Implied Waiver of Breach. The waiver of any breach of a specific provision of this Agreement does not constitute a waiver of any other breach of that term or any other term of this Agreement. 9.5 Successors and Assigns. The provisions of this Agreement shall inure to the benefit of and shall apply to and bind the successors and assigns of the parties. 9 P-22-609 9.6 Conflict of Interest. Consultant may serve other clients, but none whose activities within the corporate limits of County or whose business, regardless of location, would place Consultant in a"conflict of interest," as that term is defined in the rules of professional responsibility governing Consultant's professionalism,unless such conflict may be waived by County and County chooses to waive such conflict in writing. Consultant shall not employ any County official in the work performed to this Agreement. No officer or employee of County shall have any financial interest in this Agreement that would violate California Government Code Sections 1090, et seq. Consultant hereby warrants that it is not now, nor has it been in the previous twelve (12) months, an employee, agent, appointee, or official of the County. If Consultant was an employee, agent, appointee, or official of the County in the previous twelve months, Consultant warrants that it did not participate in any manner in the forming of this Agreement. Consultant understands that, if this Agreement is made in violation of Government Code §1090 et seq., the entire Agreement is void and Consultant will not be entitled to any compensation for services performed pursuant to this Agreement, including reimbursement of expenses, and Consultant will be required to reimburse the County for any sums paid to the Consultant. Consultant understands that, in addition to the foregoing, it may be subject to criminal prosecution for a violation of Government Code § 1090 and, if applicable, will be disqualified from holding public office in the State of California. 9.7 Solicitation. Consultant agrees not to solicit business at any meeting, focus group, or interview related to this Agreement either orally or through any written materials. 9.8 Notices. Any written notices to Consultant shall be sent to: [NAME] The JFA Institute 720 Kearney Street Denver, CO 80220 Any written notices to County shall be sent to: Daniel Cederborg County Counsel 2220 Tulare Street, Suite 500 Fresno, CA 93721 Unless otherwise specifically provided for in this Agreement, all notices between County and Consultant provided for or permitted under this Agreement must be in writing and delivered either by personal service,by first-class United States mail, or by an overnight commercial courier service. A notice delivered by personal service is effective upon service to the recipient. 10 P-22-609 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. 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). 9.9 Integration. This Agreement, including the attachments, represents the entire and integrated agreement between County and Consultant and supersedes all prior negotiations representations, or agreements, either written or oral. 9.10 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one agreement. 9.11 Authorized Signature. Each person and party signing this Agreement warrants that he/she has the authority to execute this Agreement on behalf of the principal and that the party will be bound by such signature. 9.12 Electronic Signatures. The parties agree that this Agreement may be executed by electronic signature as provided in this section. An"electronic signature"means any symbol or process intended by an individual signing this Agreement to represent their signature, including but not limited to (1) a digital signature; (2) a faxed version of an original handwritten signature; or(3) an electronically scanned and transmitted(for example by PDF document) of a handwritten signature. Each electronic signature affixed or attached to this Agreement (1) is deemed equivalent to a valid original handwritten signature of the person signing this Agreement for all purposes, including but not limited to evidentiary proof in any administrative or judicial proceeding, and(2) has the same force and effect as the valid original handwritten signature of that person. The provisions of this section satisfy the requirements of Civil Code section 1633.5, subdivision (b), in the Uniform Electronic Transaction Act(Civil Code, Division 3, Part 2, Title 2.5, beginning with section 1633.1). Each party using a digital signature represents that it has undertaken and satisfied the requirements of Government Code section 16.5, subdivision (a), paragraphs (1) through (5), and agrees that each other party may rely upon that representation. This Agreement is not conditioned upon the parties conducting the transactions under it by electronic means and either party may sign this Agreement with an original handwritten signature. G��i%G�Z Date: 12/23/2022 By: 7 The JFA Institute 11 P-22-609 Digitally signed by Gary Cornuelle Date: By: Gary C o r n U e I I e Date:2023.02.02 07:15:51-08'00' Purchasing Agent, County of Fresno Daniel C. Digitally signed by Daniel C. Cederborg Date: Feb. 1, 2023 By: Cederborg Date:2023.02.01 12:25:08-08'00' Daniel Cederborg, Fresno County Counsel 12 P-22-609 EXHIBIT A COMPENSATION County shall compensate Consultant as follows: Services Hourly Rate (all consultants) $187.00 per hour Daily Rate for work of 8 hours or more per day $1,500.00 Costs and Expenses [FILL ANY OTHER EXPENSES] Any other expenses not listed above that becomes necessary for the successful performance of Consultant's services, as pre-approved in writing by the County Counsel. 13