HomeMy WebLinkAboutAgreement A-16-288 with Touch Legal Inc.pdf Agreement No. 16-288
1 AGREEMENT
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3 THIS AGREEMENT is made and entered into this 7th day of June , 2016, by and
4 between the COUNTY OF FRESNO, a Political Subdivision of the State of California, hereinafter
5 referred to as"COUNTY", and Touch Legal, Inc, a California corporation, whose address is 2630
6 Mendocino Avenue,Santa Rosa, CA 95403, hereinafter referred to as"CONTRACTOR".
7 WITNESS ETH:
8 WHEREAS, COUNTY desires to enter into an agreement to lease certain tangible
9 personal property, software (Lexis Nexis California Prison Solutions), as well as specific legal
10 research materials, publications and content for its law library in COUNTY's Adult Detention
11 Facilities; and
12 WHEREAS, CONTRACTOR is the only vendor that provides an autonomous computer
13 system that provides content that meets the requirements for legal research that must be
14 maintained in COUNTY's Adult Detentions Law Library; and
15 WHEREAS, CONTRACTOR is the current vendor that provides such services as needed
16 by COUNTY; and
17 NOW,THEREFORE, in consideration of the mutual promises, covenants and conditions
18 hereinafter set forth, the sufficiency of which consideration is hereby acknowledged, the parties
19 hereto agree as follows:
20 1. PRODUCTS AND SERVICES TO BE PROVIDED BY CONTRACTOR
21 CONTRACTOR shall:
22 A. Install and maintain, at locations specified by COUNTY's Sheriff, ten (10)
23 TST17 Standalone Touchscreen Kiosks, equipped with a pre-installed
24 searchable law library, including all mounting equipment and locks
25 (hereinafter the "Equipment"). Keys will be maintained by the Offender
26 Programs Unit for the purpose of maintenance and upgrades to the
27 equipment.
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1 B. Provide an onboard instructional tutorial and user guide.
2 C. Provide legal content updates to be received not less than every 90 days
3 and no more than 120 days after commencement of this contract, or as
4 said content updates are released by LexisNexis and described in
5 Appendix A ("Prison Solution Software")(hereinafter the "Legal Research
6 Materials and Publications"). Appendix A is attached hereto and
7 incorporated herein by reference.
8 D. install any other research materials on the internal computer system of
9 the kiosks at the SHERIFF's direction.
10 E, Maintain and repair or replace any defective or damaged Equipment
11 (whether damage be internal or external) equipment at CONTRACTOR's
12 sole cost and expense.
13 F. Supply, repair,or replace system components within five (5) days of
14 receipt of the inoperative component at its offices. Kiosks will be checked
15 daily by an assigned staff member of the Offender Programs Unit. Any
16 damaged Equipment, however and by whomever caused, shall be
17 removed from service and shipped back to TST for repair or replacement
18 at no cost to COUNTY.
19 G. Provide telephonic technical support to COUNTY minimally from Six a.m.
20 to Six p.m. (6 a.m. to 6 p.m.) Monday through Friday.The Chief Operating
21 Officer will be available twenty-four (24) hours a day, seven (7) days a
22 week, 365 days a year to facilitate immediate issue resolution and
23 support as required.
24 2. TERM
25 This Agreement shall become effective on the 1st day of April 01, 2016 and
26 shall terminate on the 31st day of March,2019, unless sooner terminated as provided herein Within
27 14 days of the expiration or early termination of this Agreement, COUNTY shall deliver the
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1 Equipment at COUNTY's cost and expense to such place as CONTRACTOR shall specify.
2 3. TERMINATION
3 A. Non-Allocation of Funds-The terms of this Agreement, and the services to
4 be provided hereunder, are contingent on the approval of funds by the appropriating
5 government agency.Should sufficient funds not be allocated, the services provided may be
6 modified, or this Agreement terminated, at anytime by giving the CONTRACTOR thirty (30) days
7 advance written notice.
8 B. Breach of Contract-The COUNTY may immediately suspend arterminate
9 this Agreement in whole or in part, where in the determination of the COUNTY there is:
10 1) An illegal or improper use of funds;
11 2) A failure to comply with any term of this Agreement;
12 3) A substantially incorrect or incomplete report submitted to the COUNTY;
13 4) Improperly performed service.
14 In no event shall any payment by the COUNTY constitute a waiver by the COUNTY
15 of any breach of this Agreement or any default which may then exist on the part of the
16 CONTRACTOR. Neither shall such payment impair or prejudice any remedy available to the
17 COUNTY with respect to the breach or default.The COUNTY shall have the right to demand of the
18 CONTRACTOR the repayment to the COUNTY of any funds disbursed to the CONTRACTOR under
19 this Agreement,which in the judgment of the COUNT`(were not expended in accordance with
20 the terms of this Agreement. The CONTRACTOR shall promptly refund any such funds upon
21 demand.
22 C. Without Cause- Under circumstances other than those set forth above, this
23 Agreement may be terminated by COUNTY upon the giving of thirty (30) days advance written
24 notice of an intention to terminate to CONTRACTOR.
25 4_ COMPENSAPON/INVOICING: COUNTY agrees to pay CONTRACTOR and
26 ZONTRACTOR agrees to receive compensation as follows:
27 A. Equipment-The monthly fee for the Equipment shall be paid in advance in
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1 installments of Two Thousand Seven Hundred Fifty and 00/100 Dollars ($2,750) each month,
2 ommencing on April 01, 2016 and on the first day of each succeeding month throughout the
3 erm hereof.
4 B. Legal Research Material and Publications:The monthly fee for Legal
5 Research Materials and Publications as provided by LexisNexis a Mathew Bender company and
6 described in Appendix A, shall be paid in advance in monthly installments of Three Thousand
7 ight Hundred Eighty and 00/100 Dollars ($3,880.00) beginning on April 1, 2016 and on the first
8 Jay of each succeeding month throughout the term hereof.
9 C. Total Monthly Fees:The total monthly fee for both Equipment and Legal
10 Research Materials and Publications (including CA sales taxes) shall be Seven Thousand One
11 Hundred Seventy Five and 32/100 Dollars ($7,175.32), and shall be payable to Touch Legal, Inc.,
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2630 Mendocino Avenue, Santa Rosa CA 95403, or at such other place as CONTRACTOR may
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14 designate from time to time.
15 CONTRACTOR shall submit invoices monthly, no later than the 20th of the
16 month preceding the month included in the invoice to the Sheriff's Office and shall be delivered
17 to Fresno County Sheriff's Business Office,2200 Tulare, Fresno, California 93721 .
18 It is understood that all expenses incidental to CONTRACTOR'S performance of
19 services under this Agreement shall be bome by CONTRACTOR. Such payment shall be sent to:
20 Touch Legal, Inc.
2630 Mendocino Avenue
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Santa Rosa, CA 95403
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23 5. INDEPENDENT CONTRACTOR: In performance of the work, duties and obligations
24 ssumed by CONTRACTOR under this Agreement,it is mutually understood and agreed that
25 ONTRACTOR, including any and all of the CONTRACTOR'S officers, agents, and employees will at
26 11 times be acting and performing as an independent contractor, and shall act in an
27 ndependent capacity and not as an officer, agent, servant, employee,joint venture, partner,or
28 ssociate of the COUNTY. Furthermore, COUNTY shall have no right to control or supervise or direct
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1 he manner or method by which CONTRACTOR shall perform its work and function. However,
2 OUNTY shall retain the right to administer this Agreement so as to verify that CONTRACTOR is
3 Derforming its obligations in accordance with the terms and conditions thereof.
4 CONTRACTOR and COUNTY shall comply with all applicable provisions of law
5 and the rules and regulations, if any, of governmental authorities having jurisdiction over matters
6 the subject thereof.
7 Because of its status as an independent contractor, CONTRACTOR shall have
8 absolutely no right to employment rights and benefits available to COUNTY employees.
9 CONTRACTOR shall be solely liable and responsible for providing to, or on behalf of, its employees
10 all legally-required employee benefits. In addition, CONTRACTOR shall be solely responsible and
11 save COUNTY harmless from all matters relating to payment of CONTRACTOR'S employees,
12 including compliance with Social Security withholding and all other regulations governing such
13 matters. It is acknowledged that during the term of this Agreement,CONTRACTOR may be
14 providing services to others unrelated to the COUNTY or to this Agreement.
15 6. MODIFICATION: Any matters of this Agreement may be modified from time to
16 ime by the written consent of all the parties without, in any way,affecting the remainder_
17 7. NON-ASSIGNMENT: Neither party shall assign,transfer or sub-contract this
18 kgreement nor their rights or duties under this Agreement without the prior written consent of the
19 Dther party.
20 B. HOLD HARMLESS: CONTRACTOR agrees to indemnify, save, hold harmless, and
21 t COUNTY'S request, defend the COUNTY, its officers, agents, and employees from any and all
22 osts and expenses (including attorneys fees and expenses), damages, liabilities, claims, and losses
23 DccurrIng or resulting to COUNTY in connection with the performance,or failure to perform, by
24 ONTRACTOR, its officers, agents, or employees under this Agreement, and from any and all costs
25 ind expenses (including attomeys fees and expenses), damages,liabilities, claims, and losses
26 ccurring or resulting to any person, firm, or corporation who may be injured or damaged by the
27 erformance, or failure to perform, of CONTRACTOR,its officers, agents, or employees under this
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1 Agreement.The provisions of this Section 8 shall survive the termination of this Agreement.
2 9. CONTRACTOR'S WARRANTIES: CONTRACTOR represents and warrants to COUNTY
3 that CONTRACTOR has clear title to and the right to sell or license, as applicable herein, any and
4 DII products to be delivered hereunder free of claims of Third Parties. (hereinafter, referred to as the
5 'Products"). CONTRACTOR certifies to COUNTY that any permission required to manufacture
6 nd/orsell the Product(s) has been lawfully obtained by CONTRACTOR and that CONTRACTOR is
7 3uthorized to manufacture and/or to sell the Product(s) to COUNTY pursuant to this Agreement.
8 ontractor shall provide one user license per kiosk issued to County.
9 In addition to any and all other representations, covenants, and warranties made
10 Dy CONTRACTOR to COUNTY under this Agreement,CONTRACTOR covenants,warrants, and
11 guarantees to COUNTY, that any and all materials, equipment,goods and workmanship thereof,
12 rovided for, installed in, or constructed under this Agreement shall be new,shall be free from all
13 auits and defects in materials,equipment, goods and workmanship, shall be installed properly in a
14 good and workmanlike manner, shall be fit for the purpose or purposes selected or designed by
15 ONTRACTOR, shall function properly in accordance with the terms and conditions of this
16 greement, and with any applicable federal and state laws or regulations.
17 Should any materials, equipment, or good supplied in accordance with this
18 Agreement be found to be defective, or improperly installed, or otherwise fail to meet the
19 equirements of this Agreement, and COUNTY gives written notice thereof to CONTRACTOR within
20 our (4) years from the approval of the installation of the materials, equipment or goods at issue by
21 OUNTY'S Project Manager, CONTRACTOR agrees,without any charge, cost, or expense to
22 OUNTY, to diligently and promptly:
23 a. Repair and correct any such defective item;
24 b. If necessary,furnish and install a similar new item of at least the some quality to
25 replace the defective item;
26 c. Replace such item with an appropriate new item that is fit for the purposes
27 selected;
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1 d. Correct the installation of any items improperly installed;
2 e. Place in satisfactory condition in every particular any and all of such work; and
3 f. Make good any and all work or materials, equipment, or goods.
4 Provided, however, for defective items, or items requiring replacement, the COUNTY shall make
5 the original item available to CONTRACTOR at COUNTY`s Main Jai[ for its inspection and, if
6 replaced, CONTRACTOR shall remove such item at CONTRACTOR's sole cost.
7 CONTRACTOR shall respond and diligently work toward taking corrective action
8 concerning the COUNTY's written notice within a reasonable time after such notice by the
9 COUNTY, but in no event shall such response by CONTRACTOR be later than twenty four (24)
10 hours from such notice, nor shalt corrective action take longer than 96 hours from time of
11 notification from the COUNTY. If CONTRACTOR fails to promptly comply with its obligations after
12 having received such notice from the COUNTY, the COUNTY may, without relieving CONTRACTOR
13 of such obligation, have the defects corrected to make the materials, equipment, or goods
14 operate correctly, and CONTRACTOR shall be liable for all costs and expense incurred by the
15 COUNTY in taking such action.
16 On all Products installed pursuant tc this Agreement,CONTRACTOR shall provide, at no
17 charge to COUNTY all labor,services, supervision, management, equipment, supplies, goods, and
18 materials required to repair or replace defective equipment or parts, or to correct the installation
19 of any items improperly installed, and to otherwise comply with this Agreement.
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21 CONTRACTOR shall defend COUNTY against any claim, action, or proceeding brought
22 against COUNTY based upon an allegation that any Product infringes any United States patent,
23 copyright, trade secret or other intellectual property right of any third party (each, an 1P Claim"),
24 and indemnify COUNTY against, and hold COUNTY harmless from, any and all costs and expenses
25 (including attorneys fees and costs) and damages awarded against COUNTY that arise from such
26 IP Claim if COUNTY delivers to CONTRACTOR written notice of the IP Claim and any actions taken
27 in connection therewith promptly after COUNTY first receives notice thereof. Without limiting
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1 CONTRACTOR's obligations under the preceding sentence, if any third party obtains an injunction
2 against COUNTY's use of any Product as a result of any IP Claim, or if CONTRACTOR determines, in
3 its sole discretion, that COUNTY's use of any Product may be subject to an IP Claim, then
4 CONTRACTOR, at its sole cost and expense, shall (i) procure for COUNTY the right to continue to
5 use the Product, or(ii) replace or modify the Product with a functionally-equivalent or better
6 Product so that COUNTY's use is not subject to an IP Claim. If CONTRACTOR and COUNTY
7 cooperatively determine that neither of the foregoing alternatives can be accomplished in a
8 commercially reasonable manner, CONTRACTOR and COUNTY will discuss and assess ether
9 alternatives that do not result in any cost or expense to COUNTY. If no other alternatives can be
10 agreed upon,then fi) COUNTY shall return product to the CONTRACTOR when replaced with a
I'I technically equivalent product by CONTRACTOR at CONTRACTOR's expense; and (ii)
12 CONTRACTOR shall promptly refund to COUNTY the purchase price of the Product,
13 Notwithstanding anything state to the contrary herein, nothing in this section 9 shall be
14 construed to alleviate or relieve CONTRACTOR from complying with its obligations to perform
15 under all other terms and conditions of this Agreement.
16 The provisions of this Section 9 shall survive the termination of this Agreement.
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18 10. INSURANCE
19 Without limiting the COUNTY's right to obtain indemnification from
20 CONTRACTOR or any third parties,CONTRACTOR, at its sole expense,shall maintain in full force
21 and effect, the following insurance policies or a program of self-insurance, including but not
22 limited to, an insurance pooling arrangement or Joint Powers Agreement (JPA) throughout the
23 term of the Agreement:
24 A. Commercial General Liability
25 Commercial General Liability Insurance with limits of not less than One
26 Million Dollars ($1,000,000) per occurrence and an annual aggregate of Two Million Dollars
27 ($2,000,000).This policy shall be issued on o per occurrence basis. COUNTY may require specific
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I coverages including completed operations, products liability, contractual liability, Explosion-
2 Collapse-Underground,fire legal liability or any other liability insurance deemed necessary
3 because of the nature of this contract.
4 B. Workers Compensation
5 A policy of Worker's Compensation insurance as may be required by the
6 California Labor Code.
7 CONTRACTOR shall obtain endorsements to the Commercial General Liability
8 insurance naming the County of Fresno, its officers, agents, and employees, individually and
9 collectively, as additional insured, but only insofar as the operations under this Agreement are
10 concerned. Such coverage for additional insured shall apply as primary insurance and any other
11 insurance, or self-insurance, maintained by COUNTY,its officers, agents and employees shall be
12 excess only and not contributing with insurance provided under CONTRACTOR's policies herein.
13 This insurance shall not be cancelled or changed without a minimum of thirty (30) days advance
14 written notice given to COUNTY.
15 Within Thirty (30) days from the date CONTRACTOR signs and executes this
16 Agreement, CONTRACTOR shall provide certificates of insurance and endorsement as stated
17 above for all of the foregoing policies, as required herein, to the County of Fresno, Rick Hill,
18 Captain, 1225 M Street, Fresno, California 93717,stating that such insurance coverage have been
19 obtained and are in full force; that the County of Fresno,its officers, agents and employees will
20 not be responsible for any premiums on the policies; that such Commercial Generai Liability
21 insurance names the County of Fresno,its officers, agents and employees,individually and
22 collectively, as additional insured, but only insofar as the operations under this Agreement are
23 concerned; that such coverage for additional insured shall apply as primary insurance and any
24 other insurance, or self-insurance, maintained by COUNTY, its officers, agents and employees,
25 shall be excess only and not contributing with insurance provided under CONTRACTOR's policies
26 herein; and that this insurance shall not be cancelled or changed without a minimum of thirty (30)
27 days advance,written notice given to COUNTY.
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1 in the event CONTRACTOR fails to keep in effect at all times insurance
2 coverage as herein provided, the COUNTY may,in addition to other remedies it may have,
3 suspend or terminate this Agreement upon the occurrence of such event.
4 All policies shall be with admitted insurers licensed to do business in the State of
5 California. Insurance purchased shall be purchased from companies possessing a current A.M.
6 Best, Inc. rating of A FSC VII or better.
7 11. AUDITS AND INSPECTIONS: The CONTRACTOR shall at any time during business
S ours, and as often as the COUNTY may deem necessary, make available to the COUNTY for
9 axamincition all of its records and data with respect to the matters covered by this Agreement.The
10 CONTRACTOR shall, upon request by the COUNTY, permit the COUNTY to audit and inspect all of
11 3uch records and data necessary to ensure CONTRACTOR'S compliance with the terms of this
12 kgreement.
13 If this Agreement exceeds ten thousand dollars ($10,000.00), CONTRACTOR
14 shall be subject to the examination and audit of the Auditor General for a period of three (3)
15 years after final payment under contract (Government Code Section 85467).
16 12. DISCLOSURE OF SELF-DEALING TRANSACTIONS:This provision is only applicable if the
17 CONTRACTORN operating as a corporation (a for-profit or non-profit corporation) or if during the
18 lerrn of this agreement,the CONTRACTOR changes its status to operate as a corporation.
19 Members of the CONTRACTOR's Board of Directors shall disclose any self-dealing
20 ransactions that they are a party to while CONTRACTOR is providing goods or performing services
21 inder this agreement.A self-dealing transaction shall mean a transaction to which the
22 ONTRACTOR is a party and in which one or more of its directors has a material financial interest.
23 embers of the Board of Directors shall disclose any self-dealing transactions that they are a party
24 o by completing and signing a Self-Dealing Transaction Disclosure Form, attached hereto as
25 xhibit A and incorporated herein by reference, and submitting it to the COUNTY prior to
26 commencing with the self-dealing transaction or immediately thereafter.
27 13. NOTICES: The persons and their addresses having authority to give and receive
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1 otices under this Agreement include the following:
COUNTY CONTRACTOR
2 COUNTY OF FRESNO
Touch Legal, Inc.
3 Sheriff's Office Attn: Bradley J. Plaschke
4 2200 Fresno Street 2630 Mendocino Avenue
Fresno, CA 93721 Santa Rosa, CA 95403
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Any and all notices between the COUNTY and the CONTRACTOR provided for
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or permitted under this Agreement or by law shall be in writing and shall be deemed duly served
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when personally delivered to one of the parties, or in lieu of such personal services,when
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deposited in the United States Mail, postage prepaid, addressed to such party.
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14. GOVERNING LAW: Venue for any action arising out of or related to this
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greement shall only be in Fresno County, California.
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The rights and obligations of the parties and all interpretation and
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performance of this Agreement shalt be governed in all respects by the laws of the State of
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California.
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15, ENTIRE AGREEMENT: This Agreement constitutes the entire agreement between
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he CONTRACTOR and COUNTY with respect to the subject matter hereof and supersedes all
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revious Agreement negotiations, proposals, commitments,writings, advertisements, publications,
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nd understanding of any nature whatsoever unless expressly included in this Agreement.
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1 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and
2 ear first hereinabove written.
3 CONTRACTOR: Touch Legal, Inc. COUNTY OF FRESNO
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5 ( ut o zed Signature) Ernest Buddy Mendes, hairman, Board of
6 Supervisors
v `a.f� (�S --— ATTEST:
7 Print Namd 8& Title BERNICE E.SEIDEL,Clerk
e ( V� � Board ofSupervisors �``
8 By SusQ� A-4Na�
3 b N� L
t�-vL�_ �Sq-�9 Mailing Address Q51-(a3 Depury
10 DATE: b71 1 lP �l(o DATE: �lu,,..>a., `7 011D I Le
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13 REVIEWED & RECOMMENDED FOR
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15
ar , Sheriff-Coroner
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17 APPROV7f5 ACCOUNTING FORM
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19 Vicki Crow, Auditor-Controller/Treasurer-
20 Tax Collector
21 FOR ACCOUNTING USE ONLY: APPROVED AS TO LEGAL FORM
ORG No:31 114008
22 Account No:7295
23 m61 C. Cederborg, Co ounsel
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1 APPENDIX A-Legal Research Materials and Publications
2 CONTENT
3 The following legal Content will be provided by CONTRACTOR on an electronic hard
4 drive not less than every 90 days or as said content updates are released by LexisNexis, updated on a
5 quarterly basis:
6 Federal Primary Sources
7 a U.S. Supreme Court Cases
8 a Federal Cases (all circuit and district court cases)
9 a United States Code Service, Annotated
10 a Federal Court Rules (includes the Federal Rules of Criminal and Civil
11 Procedure)
12 a United States Constitution
13 California Primary Sources
14 a Deering's California Codes Annotated
15 a California Official Reports
16 a California Code of Regulations
17 a California Court Rules
18 a California Local Court Rules
19 Analysis and Practice Guides
26 a Califomia Criminal Defense Practice Reporter
21 a Federal Habeas Corpus Practice and Procedure
22 ■ California Family Law Practice
23 a California family Law Litigation Guide
24 a California Judicial Council Criminal Jury Instructions
25 Citatons and References
26 a Shepard's--Federal and U.S, Citations
27 a Shepard's—California Citations
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1 • Baliantine's Law Dictionary, 3`'Edition.
2 • California Criminal Discover
3 . Constitutional Rights of Prisoners
4 . California Evidence Courtroom Manual
5 . California Courtroom Evidence, by Cotchett
6 • California Juvenile Courts Practice and Procedure
7 • Moore's Federal Practice-Criminal
8 • Civil Rights Actions
9 • California Criminal Defense Practice
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