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HomeMy WebLinkAboutAgreement A-15-512 with CISCO SmartNet Maintenance.pdfAgreement No. 15-512 AGREEMENT 1 2 THIS AGREEMENT is made and entered into this 13th of October , 2015, by and 3 between the COUNTY OF FRESNO, a political subdivision of the State of California, hereinafter referred to 4 as "COUNTY", and Datalink Corporation, a Minnesota corporation doing business in California as 5 Minnesota Datalink Corporation, whose address is 1 0050 Crosstown Circle, Suite 500, Eden Prairie, MN 6 55344, hereinafter referred to as "CONTRACTOR". 7 WI T N E S S E T H: 8 WHEREAS, COUNTY is in need of maintenance services for COUNTY owned CISCO Communications 9 equipment; 10 WHEREAS, CONTRACTOR is willing and able to provide such maintenance services as a third party 11 vendor through CISCO SYSTEMS, INC. -SmartNet Services, pursuant to the terms and conditions of this 12 Agreement; 13 WHEREAS, COUNTY is desirous of obtaining network communication, equipment, hardware, software 14 products, licensing and professional services, including but not limited to network communication 15 equipment, technical and maintenance support. 16 NOW, THEREFORE, in consideration of their mutual covenants and conditions, the parties hereto agree as 17 follows: 18 I. DEFINITIONS 19 Cisco SMARTnet maintenance includes software support and licensed code upgrades, telephone 20 technical support, on-site problem determination, replacement parts for Cisco equipment (hardware) and 21 labor for hardware problems if COUNTY technicians are unable or unavailable to make repairs. 22 II. DOCUMENTS CONSTITUTING THIS AGREEMENT 23 This Agreement includes State of California Participating Addendum No. 7-14-70-04, Data 24 Communications Products and Services, attached hereto as Attachment A and incorporated herein by 25 reference. 26 27 28 Ill. OBLIGATIONS OF THE CONTRACTOR (i) CONTRACTOR will provide to the COUNTY the right to obtain hardware, software, -1-I I ______ j -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 licensing, maintenance, and support as made available by Cisco/CONTRACTOR; (ii) Contractor will perform the maintenance and support services in accordance with the terms and conditions of this Agreement and as authorized by Cisco. (iii) CONTRACTOR will provide to COUNTY the right for documentation relating to any hardware, software, licensing, maintenance or support (“Documentation”). (iv) CONTRACTOR will perform installation and technical services for hardware, software, maintenance and support within the United States. (v) CONTRACTOR shall provide all products and services pursuant to the terms of this Agreement and in accordance with Attachment A. (vi) CONTRACTOR shall pay Cisco directly, on behalf of the COUNTY, all costs assessed by Cisco, to establish the integrity, rights and value of the existing Cisco hardware, software and licenses currently deployed and the opportunity to purchase additional Cisco hardware, software, licenses, maintenance service (Cisco SMARTnet), and support from the CONTRACTOR, as needed, as an authorized third party vendor through Cisco Systems, Inc. pursuant to the terms and conditions of this Agreement. In the event this Agreement is terminated by either party, COUNTY’s then existing rights and interests in Cisco licenses and software shall survive the termination of this Agreement. IV. OBLIGATIONS OF THE COUNTY (i) Upon shipment of any Product or Documentation, or upon completion of any Services, and following receipt of COUNTY’s purchase order, CONTRACTOR shall issue to COUNTY an invoice that describes the requested Products, Documentation or Services, the purchase price therefore, and the total amount due to CONTRACTOR from COUNTY (the ”Invoice Total”), which shall include the purchase price, any applicable taxes and other costs or charges that are the responsibility of COUNTY, as described in Article 5. COUNTY shall pay each Invoice Total in full. -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 (ii) COUNTY shall pay for 12 months of maintenance simultaneously with each purchase of new equipment. Following the first twelve months of maintenance, CONTRACTOR will prorate the next payment amount of the individually purchased maintenance to the due date of the next annual Cisco SMARTnet payment. This will eventually allow all maintenance to become coterminous. (iii) Periodically, COUNTY will reassess the Cisco equipment and remove from or add to the list of equipment covered by Cisco SMARTnet maintenance. CONTRACTOR will adjust the maintenance charges accordingly, based on the pricing set forth in Cisco’s State-approved Product and Service Schedule (PSS) as described at page 3 of Attachment A. V. TERM This Agreement shall become effective upon signing and shall be effective for an initial period of three (3) years. Thereafter, this Agreement may be renewed for a maximum of two (2) additional one (1) year periods upon written authorization of COUNTY’s Chief Information Officer or his designee. VI. TERMINATION A. Non-Allocation of Funds - The terms of this Agreement, and the services to be provided thereunder, 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 -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 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. VII. COMPENSATION/INVOICING: If tax is applicable, it must be separated from the total compensation. COUNTY shall pay for all products and services provided under this Agreement pursuant to applicable pricing as described in Attachment A. In no event shall the maximum compensation under this Agreement exceed the annual amount of $375,000 for the first three (3) years of the Agreement. In no event shall the maximum compensation under this agreement exceed the amount of $400,000 for potential years four (4) and five (5). It is understood that payments for each renewal period shall be mutually agreed upon in advance of the commencement of that renewal period, as CONTRACTOR will need to re-evaluate its pricing based on the then current inventory of COUNTY owned CISCO communication equipment. However, in no event shall the maximum compensation under this Agreement exceed the total of $1,925,000 for the entire potential five (5) year term. Annual maintenance payments shall be made annually and in advance for each one year period of the Agreement. All invoices shall be submitted to the COUNTY of Fresno, Internal Services Department (ISD), Business Office – Accounts Payable, 2048 N. Fine Ave, Fresno, CA 93727. COUNTY shall make payment within forty-five (45) days of receipt of the invoice. VIII. 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 any and all of the CONTRACTOR'S officers, agents, and employees will at all times be acting and performing as an -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 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 so as 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 absolutely no right to employment rights and benefits available to COUNTY employees. CONTRACTOR shall be solely liable and responsible for providing to, or on behalf of, 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. IX. 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. X. 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. XI. 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, 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 -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 costs and expenses, 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. XII. 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, throughout the term of this Agreement: A. Commercial General Liability Commercial General Liability Insurance with limits of not less than One Million Dollars ($1,000,000) per occurrence and an annual aggregate of Two Million Dollars ($2,000,000). 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 for bodily injury of not less than Two Hundred Fifty Thousand Dollars ($250,000.00) per person, Five Hundred Thousand Dollars ($500,000.00) per accident and for property damages of not less than Fifty Thousand Dollars ($50,000.00), or such coverage with a combined single limit of Five Hundred Thousand Dollars ($500,000.00). Coverage should include owned and non-owned vehicles used in connection with this Agreement. C. Professional Liability If CONTRACTOR employs licensed professional staff, (e.g., Ph.D., R.N., L.C.S.W., M.F.C.C.) 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. D. Worker's Compensation A policy of Worker's Compensation insurance as may be required by the California Labor Code. CONTRACTOR shall obtain endorsements to the Commercial General Liability -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 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. 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, ITSD, 2048 N. Fine Ave, Fresno, CA 93727), stating that such insurance coverage have been obtained and are in full force; that the County of Fresno, its officers, agents and employees will not be responsible for any premiums on the policies; that 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, agents and employees, shall be excess only and not contributing with insurance provided under CONTRACTOR's policies herein; and that this insurance shall not be cancelled or changed without a minimum of thirty (30) days advance, written notice given to COUNTY. In the event CONTRACTOR fails to keep in effect at all times insurance coverage as herein provided, the COUNTY may, in addition to other remedies it may have, suspend or terminate this Agreement upon the occurrence of such event. All policies shall be 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. XIII. AUDITS AND INSPECTIONS: The CONTRACTOR shall at any time during business hours, and as often as the COUNTY may -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 deem necessary, make available to the COUNTY for examination all of 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 of 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 Auditor General for a period of three (3) years after final payment under contract (Government Code Section 8546.7). XIV. NOTICES: The persons and their addresses having authority to give and receive notices under this Agreement include the following: COUNTY Datalink Corporation Chief Information Officer Sr. Director of Operations 2048 N. Fine Ave. 10050 Crosstown Circle, Suite 500 Fresno, CA 93727 Eden Prairie, MN 55344 ISDContracts@co.fresno.ca.us smissling@datalink.com Any and all notices between the COUNTY and the CONTRACTOR provided for or permitted under this Agreement or by law shall be in writing and shall be deemed duly served when personally delivered to one of the parties, or in lieu of such personal services, when deposited in the United States Mail, postage prepaid, addressed to such party. XV. 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. XVI. 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. -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 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 1 and incorporated herein by reference, and submitting it to the COUNTY prior to commencing with the self-dealing transaction or immediately thereafter. XVII. ENTIRE AGREEMENT: This Agreement constitutes the entire agreement between the CONTRACTOR and COUNTY with respect to the subject matter hereof and supersedes all previous Agreement negotiations, proposals, commitments, writings, advertisements, publications, and understanding of any nature whatsoever unless expressly included in this Agreement. 1 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first 2 3 ' 4 e----o 5 6 7 B 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ij~--~~~~~----------~-- ~~fi4K.C01WtORATION 50 CROSSTOWN CIRCLE, SUITE 500 EDEN PRAIRIE, MN 55344 DATE: APPROVED AS TO LEGAL FORM _=:;(. FOR ACCOUNTING USE ONLY: ORG No.: 8905 Account No.: 7309/1020/10000 -10- ATIEST: BERNICE E. SEIDEL, Clerk Board of Supervisors By ~sAa---> e:u sb crf Deputy Robert W. Bash, Director of Internal Services/ Chief Information Officer FOR -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 1 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 (here inafter 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 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 d escription 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). -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 (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: