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HomeMy WebLinkAboutAgreement A-16-586 with X-Act Technology Solutions Inc..pdf Agreement No. 16-586 1 AGREEMENT 2 3 THIS AGREEMENT is made and entered into this 27th day of September, 2016, by 4 and between the COUNTY OF FRESNO, a political subdivision of the State of California, 5 hereinafter referred to as "COUNTY", and X-ACT TECHNOLOGY SOLUTIONS, INC., a 6 California corporation, whose address is 2912 Dunkirk Drive, Oxnard, CA. 93035, hereinafter 7 referred to as "CONTRACTOR". 8 WITNESSETH: 9 WHEREAS, COUNTY is in need of Wi-Fi services for 34 Library branches located throughout 10 Fresno County as shown in Exhibit A, attached hereto and incorporated herein by reference; and 11 WHEREAS, CONTRACTOR has the capability to provide Wi-Fi services to all Library branch 12 locations specified in Exhibit A. 13 NOW, THEREFORE, in consideration of their mutual covenants and conditions, the parties hereto 14 agree to the following: 15 1. SERVICES 16 A. CONTRACTOR shall procure Internet service, independent of current 17 network setup, dedicated to Wi-Fi services only, for each of the 34 Library branch locations. 18 B. CONTRACTOR shall provide and install Wi-Fi equipment in each Library 19 branch and procure software Licenses necessary to make the equipment operational. 20 C. CONTRACTOR shall provide CIPA (Children's Internet Protection Act) 21 filtering and update filtering daily with latest filtering guidelines. 22 D. CONTRACTOR shall provide 24/7 monitoring and Technical support in 23 accordance with Exhibit B, attached hereto and incorporated herein by reference. 24 E. CONTRACTOR shall provide COUNTY access to usage statistics and data 25 reports as required by the CIPA. 26 2. TERM 27 This Agreement shall become effective on October 1, 2016 and shall terminate 28 on September 30, 2018. 1 3. TERMINATION 2 A. Non-Allocation of Funds -The terms of this Agreement, and the services to 3 be provided thereunder, are contingent on the approval of funds by the appropriating government 4 agency. Should sufficient funds not be allocated, the services provided may be modified, or this 5 Agreement terminated, at any time by giving the CONTRACTOR thirty (30) days advance written 6 notice. 7 B. Breach of Contract -The COUNTY may immediately suspend or terminate 8 this Agreement in whole or in part, where in the determination of the COUNTY there is: 9 1) An illegal or improper use of funds; 10 2) A failure to comply with any term of this Agreement; 11 3) A substantially incorrect or incomplete report submitted to the 12 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 18 the CONTRACTOR the repayment to the COUNTY of any funds disbursed to the CONTRACTOR 19 under this Agreement, which in the judgment of the COUNTY were not expended in accordance 20 with 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, 23 this 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. COMPENSATIONIINVOICING: 26 For actual services provided as identified in the terms and conditions of this 27 Agreement, COUNTY agrees to pay CONTRACTOR and CONTRACTOR agrees to receive 28 compensation based on actual expenditures incurred by Contractor in accordance with the budget -2- 1 identified in Exhibit C, attached hereto and by this reference incorporated herein. In no event shall 2 services performed under this Agreement be in excess of One Hundred Eighty Thousand Seven 3 Hundred Fifty Three Dollars and Twenty Four Cents ($180,753.24) during the term of this 4 Agreement. 5 CONTRACTOR shall submit quarterly invoices, detailing individual branch 6 services, to the County of Fresno, Library's Business Office. Payments by COUNTY shall be 7 made within forty-five (45) days after receipt, verification and approval of CONTRACTOR's 8 invoices. 9 It is understood that all expenses incidental to CONTRACTOR'S performance of services 10 under this Agreement shall be borne by CONTRACTOR. 11 5. INDEPENDENT CONTRACTOR: In performance of the work, duties and 12 obligations assumed by CONTRACTOR under this Agreement, it is mutually understood and 13 agreed that CONTRACTOR, including any and all of the CONTRACTOR'S officers, agents, and 14 employees will at all times be acting and performing as an independent contractor, and shall act in 15 an independent capacity and not as an officer, agent, servant, employee, joint venturer, partner, or 16 associate of the COUNTY. Furthermore, COUNTY shall have no right to control or supervise or 17 direct the manner or method by which CONTRACTOR shall perform its work and function. 18 However, COUNTY shall retain the right to administer this Agreement so as to verify that 19 CONTRACTOR is performing its obligations in accordance with the terms and conditions thereof. 20 CONTRACTOR and COUNTY shall comply with all applicable provisions of 21 law and the rules and regulations, if any, of governmental authorities having jurisdiction over 22 matters the subject thereof. 23 Because of its status as an independent contractor, CONTRACTOR shall have 24 absolutely no right to employment rights and benefits available to COUNTY employees. 25 CONTRACTOR shall be solely liable and responsible for providing to, or on behalf of, its 26 employees all legally-required employee benefits. In addition, CONTRACTOR shall be solely 27 responsible and save COUNTY harmless from all matters relating to payment of 28 CONTRACTOR'S employees, including compliance with Social Security withholding and all other -3- 1 regulations governing such matters. It is acknowledged that during the term of this Agreement, 2 CONTRACTOR may be providing services to others unrelated to the COUNTY or to this 3 Agreement. 4 6. MODIFICATION: Any matters of this Agreement maybe modified from time 5 to time by the written consent of all the parties without, in any way, affecting the remainder. 6 7. NON-ASSIGNMENT: Neither party shall assign, transfer or sub-contract this 7 Agreement nor their rights or duties under this Agreement without the prior written consent of the 8 other party. 9 8. HOLD HARMLESS: CONTRACTOR agrees to indemnify, save, hold 10 harmless, and at COUNTY'S request, defend the COUNTY, its officers, agents, and employees 11 from any and all costs and expenses, damages, liabilities, claims, and losses occurring or 12 resulting to COUNTY in connection with the performance, or failure to perform, by 13 CONTRACTOR, its officers, agents, or employees under this Agreement, and from any and all 14 costs and expenses, damages, liabilities, claims, and losses occurring or resulting to any person, 15 firm, or corporation who may be injured or damaged by the performance, or failure to perform, 16 of CONTRACTOR, its officers, agents, or employees under this Agreement. 17 9. INSURANCE: 18 Without limiting the COUNTY's right to obtain indemnification from 19 CONTRACTOR or any third parties, CONTRACTOR, at its sole expense, shall maintain in full 20 force and effect, the following insurance policies or a program of self-insurance throughout the 21 term of the Agreement: 22 A. Commercial General Liabilit 23 Commercial General Liability Insurance with limits of not less than One 24 Million Dollars ($1,000,000) per occurrence and an annual aggregate of Two Million Dollars 25 ($2,000,000). This policy shall be issued on a per occurrence basis. COUNTY may require 26 specific coverages including completed operations, products liability, contractual liability, 27 Explosion-Collapse-Underground, fire legal liability or any other liability insurance deemed 28 necessary because of the nature of this contract. -4- 1 B. Automobile Liabilit 2 Comprehensive Automobile Liability Insurance with limits for bodily injury of 3 not less than Two Hundred Fifty Thousand Dollars ($250,000.00) per person, Five Hundred 4 Thousand Dollars ($500,000.00) per accident and for property damages of not less than Fifty 5 Thousand Dollars ($50,000.00), or such coverage with a combined single limit of Five Hundred 6 Thousand Dollars ($500,000.00). Coverage should include owned and non-owned vehicles used 7 in connection with this Agreement. 8 C. Professional Liability 9 If CONTRACTOR employs licensed professional staff, (e.g., Ph.D., R.N., 10 L.C.S.W., M.F.C.C.) in providing services, Professional Liability Insurance with limits of not less 11 than One Million Dollars ($1,000,000.00) per occurrence, Three Million Dollars ($3,000,000.00) 12 annual aggregate. 13 D. Worker's Compensation 14 A policy of Worker's Compensation insurance as may be required by the 15 California Labor Code. 16 CONTRACTOR shall obtain endorsements to the Commercial General Liability 17 insurance naming the County of Fresno, its officers, agents, and employees, individually and 18 collectively, as additional insured, but only insofar as the operations under this Agreement are 19 concerned. Such coverage for additional insured shall apply as primary insurance and any other 20 insurance, or self-insurance, maintained by COUNTY, its officers, agents and employees shall be 21 excess only and not contributing with insurance provided under CONTRACTOR's policies herein. 22 This insurance shall not be cancelled or changed without a minimum of thirty (30) days advance 23 written notice given to COUNTY. 24 Within Thirty (30) days from the date CONTRACTOR signs and executes this 25 Agreement, CONTRACTOR shall provide certificates of insurance and endorsement as stated 26 above for all of the foregoing policies, as required herein, to the County of Fresno, (Library 27 Business Manager, 2420 Mariposa Street, Fresno, CA. 93721), stating that such insurance 28 coverages have been obtained and are in full force; that the County of Fresno, its officers, agents -5- 1 and employees will not be responsible for any premiums on the policies; that such Commercial 2 General Liability insurance names the County of Fresno, its officers, agents and employees, 3 individually and collectively, as additional insured, but only insofar as the operations under this 4 Agreement are concerned; that such coverage for additional insured shall apply as primary 5 insurance and any other insurance, or self-insurance, maintained by COUNTY, its officers, agents 6 and employees, shall be excess only and not contributing with insurance provided under 7 CONTRACTOR's policies herein; and that this insurance shall not be cancelled or changed 8 without a minimum of thirty (30) days advance, written notice given to COUNTY. 9 In the event CONTRACTOR fails to keep in effect at all times insurance 10 coverage as herein provided, the COUNTY may, in addition to other remedies it may have, 11 suspend or terminate this Agreement upon the occurrence of such event. 12 All policies shall be issued by admitted insurers licensed to do business in the 13 State of California, and such insurance shall be purchased from companies possessing a current 14 A.M. Best, Inc. rating of A FSC VII or better. 15 10. AUDITS AND INSPECTIONS: The CONTRACTOR shall at any time during 16 business hours, and as often as the COUNTY may deem necessary, make available to the 17 COUNTY for examination all of its records and data with respect to the matters covered by this 18 Agreement. The CONTRACTOR shall, upon request by the COUNTY, permit the COUNTY to 19 audit and inspect all of such records and data necessary to ensure CONTRACTOR'S compliance 20 with the terms of this Agreement. 21 If this Agreement exceeds ten thousand dollars ($10,000.00), CONTRACTOR 22 shall be subject to the examination and audit of the Auditor General for a period of three (3) years 23 after final payment under contract (Government Code Section 8546.7). 24 11. NOTICES: The persons and their addresses having authority to give and 25 receive notices under this Agreement include the following: 26 COUNTY CONTRACTOR Laurel Prvsiaznv, County Librarian Adam Skinner, President 27 2420 Mariposa Street 2912 Dunkirk Drive Fresno, CA. 93721 Oxnard, CA. 93035 28 -6- 1 2 Any and all notices between the COUNTY and the CONTRACTOR provided 3 for or permitted under this Agreement or by law shall be in writing and shall be deemed duly 4 served when personally delivered to one of the parties, or in lieu of such personal services, when 5 deposited in the United States Mail, postage prepaid, addressed to such party. 6 12. GOVERNING LAW: Venue for any action arising out of or related to this 7 Agreement shall only be in Fresno County, California. 8 The rights and obligations of the parties and all interpretation and performance g of this Agreement shall be governed in all respects by the laws of the State of California. 10 13. DISCLOSURE OF SELF-DEALING TRANSACTIONS 11 This provision is only applicable if the CONTRACTOR is operating as a 12 corporation (a for-profit or non-profit corporation) or if during the term of the agreement, the 13 CONTRACTOR changes its status to operate as a corporation. 14 Members of the CONTRACTOR's Board of Directors shall disclose any self- 15 dealing transactions that they are a party to while CONTRACTOR is providing goods or 16 performing services under this agreement. A self-dealing transaction shall mean a transaction 17 to which the CONTRACTOR is a party and in which one or more of its directors has a material 18 financial interest. Members of the Board of Directors shall disclose any self-dealing 19 transactions that they are a party to by completing and signing a Self-Dealing Transaction 20 Disclosure Form, attached hereto as Exhibit D and incorporated herein by reference, and 21 submitting it to the COUNTY prior to commencing with the self-dealing transaction or 22 immediately thereafter. 23 14. ENTIRE AGREEMENT: This Agreement constitutes the entire agreement 24 between the CONTRACTOR and COUNTY with respect to the subject matter hereof and 25 supersedes all previous Agreement negotiations, proposals, commitments, writings, 26 advertisements, publications, and understandings of any nature whatsoever unless expressly 27 included in this Agreement. 28 -7- 1 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as 2 of the day and year first hereinabove written. 3 X-ACT TECHNOLOGY SOLTIONS, IN COUNTY OF FRESNO 4 5 dam Skinner Ernest Buddy Mende 6 President, Secretary and CFO Chairman, Board of Supervisors 2912 Dunkirk Drive 7 Oxnard, CA 93035 8 DATE: F 130 t (lD DATE: � c,,�J0 9 REVIEWED & RECOMMENDED FOR 10 APPROV L 11 �. r " rel . Prysiazny, Coun i ari 12 13 APPROVED AS TO LEGAL FORM APPROVED AS TO ACCOUNTING FORM 14 4DCM. Cd-ezd::�erborg, County Counsel Vicki Crow, C.P.A. 15 Auditor-Controller/Treasurer-Tax Collector 16 FOR ACCOUNTING USE ONLY: ATTEST: 17 BERNICE E.SEIDEL, Clerk Fund No.: 0107 Board o Supervisors 18 Org No,. 75110200 Account No.: 7296 By 19 Subclass: 10000 a Ity 20 21 22 23 24 25 26 27 28 -a- Exhibit A Library Branch Locations for Wi-Fi Services BRANCH STREET ADDRESS CITY STATE ZIP 1 Auberry 33049 Auberry Road Auberry CA 93602 2 Bear Mountain 30733 E. Kings Canyon Squaw Valley CA 93675 3 Betty Rodriguez 3040 N. Cedar Fresno CA 93703 41 Big Creek 51190 Point Road Big Creek CA 193605 5 Caruthers 13382 S. Henderson Caruthers CA 193609 6 Central 2420 Mariposa Street Fresno CA 93721 7 Clovis 1155 Fifth Street Clovis CA 93612 8 Easton 25 E. Fantz Fresno CA 93706 9 Fig Garden 3071 W. Bullard Fresno CA 93711 10 Firebaugh 1315 "O" Street Firebaugh CA 93622 11 Fowler 119 "E" Merced Street Fowler CA 93625 12 Gillis 629 West Dakota Fresno CA 93705 13 Kerman 15081 Kearney Plaza Kerman CA 93630 14 Kingsburg 1399 Draper Street Kingsburg CA 93631 151 Laton 6313 DeWoody Street Laton CA 93242 16 Mendota 1246 Belmont Ave. Mendota CA 93640 17 Mosqueda 4670 E. Butler, Fresno Fresno CA 93702 18 Orange Cove 815 Park Blvd. Orange Cove CA 93646 19 Parlier 1130 East Parlier Ave. Parlier CA 93648 20 1 Piedra 25385 Trimmer Springs Rd Sanger CA 93649 21 Pinedale 7170 N. San Pablo Pinedale CA 93650 22 Politi 5771 N. First Fresno CA 93710 23 Reedle 1027 "E" Street Reedley CA 93654 24 Riverdale 20975 Malsbary Riverdale CA 93656 25 San Joaquin 8781 Main Street San Joaquin CA 93660 26 Sanger 1812 Seventh Street Sanger CA 93657 27 Selma 2200 Selma Ave. Selma CA 93662 28 Senior Resource Center 2025 E. Dakota Avenue Fresno CA 93726 29 Shaver Lake 41344 Tollhouse Rd. Shaver Lake CA 93664 30 Sunnyside 5566 E. Kings Canyon Rd. Fresno CA 93727 31 ITalking Book Library 770 N. San Pablo Ave. Fresno CA 93728 32 Tranquillity 25561 Williams Street Tranquility CA 93668 33 West Fresno 188 E. California Fresno CA 93706 34 Woodward Park 1944 E. Perrin Fresno CA 193720 Exhibit B ACTPHONE 866-XACT•FIX TECHNOLOGY SOLUTIONS WEB WWW.XACTTS-COM Library A 1 Support for each Library Location with X-act's Wi-Fi service includes: pp Y � 1. 240 Internet monitoring. In the event that internet at one of the branches fails, a ticket will get i opened for the branch with our SLA applied to it. I 2. Managed Carrier Services. If an issue is discovered that requires the iSP's interaction, we will work with the ISP to resolve the issue. (This applies to accounts that we managed the ISP service on only.) 3. RF Optimization. In the event of wireless conflicts with other nearby devices, we will adjust the RF channels accordingly to allow for the best signal. j 4. Managed Splash Page. Each user who logs on to the Wi-Fi will have to accept a county issued ' terms page before accessing the Wi-Fi. S. Managed CIPA Filtering. In order to stay in compliance with the CIPA filtering policy,they require that we retain certain records so that if a breach is found the issue can be repaired. 6. CIPA&System Updates. We provide downtime scheduled updates for all library equipment as firmware becomes available by the manufacture and hourly CIPA database updates. We can also provide website whitelisting and explicit blocking per location, upon request. E 7. Break Fix Support. If a general issue occurs causing Wi-Fi not to work on multiple i devices/computers we will work to resolve any issues with the equipment, should it be deemed as the reason for the issue. 8. SSID Availability. Enforce the SSID availability according to the branch specific operating hours and/or upon request. Provide two SSIDs per branch location:one for staff and one for public. Support for agreement customers is available 24 hours per day/7 days per week. Support can be requested via the phone at (866)-XACT-FIX, Local 559-286-0013 or via email at support@xactts.com. I Remote support will be provided at no cost on normal business days, during the hours of Siam -6PM. l During this time we provide a 2 hour response SLA for acknowledging the ticket and getting it assigned to a technical resource. j i During normal business hours we will provide onsite tech services as deemed necessary by X-act. Tier 1 support will be provided by the library. This person must have the ability to follow directions related to resettingequipment. Generally any librarian can do this as we walk you through simply un- lu in a { Y g p Y p gg� g I power cord and putting it back in.) X-act will provide emergency only support for incidents outside normal business hours. Emergency is deemed as something that is greater than a 50%outage. Issues qualified as an emergency by us will be responded to within 12 hours. For a ticket to meet any of our SLA's it must be properly submitted. Support can be requested via the it phone at(866)-XACT-FIX, Local 559-286-0013 or via email at support@xactts.com. If a phone call is un- answered, leaving a voicemail will open a ticket for you and start our SLA for your account. l 818 -6760 Askinner@,Xactts.com www.xactts.com U x LU o a o o o O O O O 0 O O O o O O O o O o o o o o o O O o o o o o O O O ID C. U) to tO to Lnu7 O N to o to � u) oto N u] oU? 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A self-dealing transaction is defined below: A self-dealing transaction means a transaction to which the corporation is a party and in which one or more of its directors has a material financial interest" The definition above will be utilized for purposes of completing this disclosure form. INSTRUCTIONS (1) Enter board member's name, job title (if applicable), and date this disclosure is being made. (2) Enter the board member's company/agency name and address. (3) Describe in detail the nature of the self-dealing transaction that is being disclosed to the County. At a minimum, include a description of the following: a. The name of the agency/company with which the corporation has the transaction; and b. The nature of the material financial interest in the Corporation's transaction that the board member has. (4) Describe in detail why the self-dealing transaction is appropriate based on applicable provisions of the Corporations Code. (5) Form must be signed by the board member that is involved in the self-dealing transaction described in Sections (3) and (4). Mail the completed form to: Fresno County Library Attn: Business Manager 2420 Mariposa Street Fresno, CA 93721 Exhibit D (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: I