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HomeMy WebLinkAboutAgreement A-16-288 with Touch Legal, Inc.pdf1 2 AGREEMENT Agreement No . 16-288 3 THIS AGREEMENT is made and entered into this _l!h__ day of June , 201 6, 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 WITNESSETH: 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 cons ideration 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. 28 -1- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 B. Provide an onboard instructional tutorial and user guide. c. Provide legal content updates to be received not less than every 90 days and no more than 120 days after commencement of this contract, or as said content updates are released by LexisNexis and described in Appendix A ("Prison Solution Software") (hereinafter the "Legal Research Materials and Publications"). Appendix A is attached hereto and incorporated herein by reference. D. Install any other research materials on the internal computer system of the kiosks at the SHERIFF's direction. E. Maintain and repair or replace any defective or damaged Equipment (whether damage be internal or external) equipment at CONTRACTOR's sole cost and expense. F. Supply, repair, or replace system components within five (5) days of receipt of the inoperative component at its offices. Kiosks will be checked daily by an assigned staff member of the Offender Programs Unit. Any damaged Equipment, however and by whomever caused, shall be removed from service and shipped back to TST for repair or replacement at no cost to COUNTY. G. Provide telephonic technical support to COUNTY minimally from Six a.m. to Six p.m. (6 a.m. to 6 p.m.) Monday through Friday. The Chief Operating Officer will be available twenty-four (24) hours a day, seven (7) days a week, 365 days a year to facilitate immediate issue resolution and support as required. 2. TERM This Agreement shall become effective on the l st 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 28 -2- 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 seNices 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 any time by giving the CONTRACTOR thirty (30) days 7 advance written notice. 8 B. Breach of Contract-The COUNTY may immediately suspend or terminate 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 hove 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 COUNTY 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 Couse -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. COMPENSATION/INVOICING: COUNTY agrees to pay CONTRACTOR and 26 ONTRACTOR agrees to receive compensation as follows: 27 A. Equipment-The monthly fee for the Equipment shall be paid in advance in 28 -3- 1 nstallments 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 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 B. Legal Research Material and Publications: The monthly fee for Legal esearch Materials and Publications as provided by LexisNexis a Mathew Bender company and escribed in Appendix A, shall be paid in advance in monthly installments of Three Thousand ight Hundred Eighty and 00/100 Dollars [$3,880.00) beginning on April 1. 2016 and on the first ay of each succeeding month throughout the term hereof. C. Total Monthly Fees: The total monthly fee for both Equipment and Legal Research Materials and Publications (including CA sales taxes) shall be Seven Thousand One Hundred Seventy Five and 32/100 Dollars ($7,175.32}, and shall be payable to Touch Legal, Inc., 2630 Mendocino Avenue, Santa Rosa CA 95403, or at such other place as CONTRACTOR may designate from time to time. CONTRACTOR shall submit invoices monthly, no later than the 201h of the month preceding the month included in the invoice to the Sheriff's Office and shall be delivered to Fresno County Sheriff's Business Office, 2200 Tulare, Fresno, California 93721. It is understood that all expenses incidental to CONTRACTOR'S performance of services under this Agreement shall be borne by CONTRACTOR. Such payment shall be sent to: Touch Legal, Inc. 2630 Mendocino Avenue Santa Rosa, CA 9 5403 5. INDEPENDENT CONTRACTOR: In performance of the work, duties and obligations ssumed by CONTRACTOR under this Agreement, it is mutually understood and agreed that ONTRACTOR, including any and all of the CONTRACTOR'S officers, agents, and employees will at II times be acting and performing as on independent contractor, and shall act in an ndependent capacity and not as an officer, agent, servant, employee, joint venture, partner, or ssociate of the COUNTY. Furthermore, COUNTY shall have no right to control or supervise or direct 28 -4- 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 erforming 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 greement nor their rights or duties under this Agreement without the prior written consent of the 19 ther party. 20 8. 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 ccurring 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 nd expenses (including attorneys 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 28 -5- 1 greement. 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 hat CONTRACTOR has clear title to and the right to sell or license, as applicable herein, any and 4 II 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/or sell the Product(s) has been lawfully obtained by CONTRACTOR and that CONTRACTOR is 7 uthorized 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 y CONTRACTOR to COUNTY under this Agreement, CONTRACTOR covenants, warrants, and 11 uarantees 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 aults and defects in materials, equipment, goods and workmanship, shall be installed properly Jn a 14 ood 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 greement 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 24 25 26 27 28 a. Repair and correct any such defective item; b. If necessary, furnish and install a similar new item of at least the same quality to replace the defective item; c. Replace such item with an appropriate new item that is fit for the purposes selected; -6- 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 Jail 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 shall 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 to 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. 20 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 "IP 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 ofter COUNTY first receives notice thereof. Without limiting 28 -7- 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 other 9 alternatives that do not result in any cost or expense to COUNTY. If no other alternatives can be 10 agreed upon, then (i) COUNTY shall return product to the CONTRACTOR when replaced with a 11 technically equivalent product by CONTRACTOR at CONTRACTOR's expense; and (iij 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. 17 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 a per occurrence basis. COUNTY may require specific 28 -8- 1 coverages including completed operations, products liability, contractual liability, Exprosion-2 Collapse-Underground, fire legal liability or any other liability insurance deemed necessary 3 because of the nature of this contract. 4 B. Worker's 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 Genera/ Uability 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. 28 -9- 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 AM. 6 Best, Inc. rating of A FSC VII or better. 7 11. AUDITS AND INSPECTIONS: The CONTRACTOR shall at any time during business 8 ours, and as often as the COUNTY may deem necessary, make available to the COUNTY for 9 xamination all of its records and data with respect to the matters covered by this Agreement. The 10 ONTRACTOR shall, upon request by the COUNTY, permit the COUNTY to audit and inspect all of 11 uch records and data necessary to ensure CONTRACTOR'S compliance with the terms of this 12 greement. 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 8546.7). 16 12. DISCLOSURE OF SELF-DEALING TRANSACTIONS: This provision is only applicable if the 17 ONTRACTOR is operating as a corporation (a for-profit or non-profit corporation) or if during the 18 erm 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 nder 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 ommencing with the self-dealing transaction or immediately thereafter. 27 13. NOTICES: The persons and their addresses having authority to give and receive 28 -10- 1 2 3 4 5 6 7 8 g 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 otices under this Agreement include the following: COUNTY COUNTY OF FRESNO Sheriff's Office 2200 Fresno Street Fresno, CA 93721 CONTRACTOR Touch Legal, Inc. Attn: Bradley J. Plaschke 2630 Mendocino A venue Santa Rosa, CA 95403 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. 14. GOVERNING LAW: Venue for any action arising out of or related to this greement 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. 15. ENTIRE AGREEMENT: This Agreement constitutes the entire agreement between he CONTRACTOR and COUNTY with respect to the subject matter hereof and supersedes all revious Agreement negotiations, proposals, commitments, writings, advertisements, publications, nd understanding of any nature whatsoever unless expressly included in this Agreement. -11- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and ear first hereinabove written. DATE: FOR ACCOUNTING USE ONLY: ORG No : 3 1 114008 COUNTY OF FRESNO ~~~ Ernest Buddy Mendes, Chairman, Board of DATE: Supervisors ATTEST: BERNICE E . SEIDEL , Clerk Board of Supervisors By Su,s<l.u-;? ~sh q--p Deputy APPROVE 1 S TO ACCOUNTING fORM If_. LuL fl-: Vicki Crow, Auditor-Controller /Treasurer- Tax Collector APPROVED AS TO LEGAL FORM 22 Account No : 7295 23 24 25 26 27 28 -12- ounsel 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 • U.S. Supreme Court Cases 8 • Federal Cases (all circuit and district court cases) 9 • United States Code Service, Annotated 10 • Federal Court Rules (includes the Federal Rules of Criminal and Civil 11 Procedure) 12 • United States Constitution 13 California Primary Sources 14 • Deering's California Codes Annotated 15 • California Official Reports 16 • California Code of Regulations 17 • California Court Rules 18 • California Local Court Rules 19 Analysis and Practice Guides 20 • California Criminal Defense Practice Reporter 21 • Federal Habeas Corpus Practice and Procedure 22 • California Family Law Practice 23 • California family Law Litigation Guide 24 • California Judicial Council Criminal Jury Instructions 25 Citators and References 26 • Shepard's-Federal and U.S. Citations 27 • Shepard's -California Citations 28 -13- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 • Ballantine's Law Dictionary, 3rd Edition. • California Criminal Discover • Constitutional Rights of Prisoners • California Evidence Courtroom Manual • California Courtroom Evidence, by Cotchett • California Juvenile Courts Practice and Procedure • Moore's Federal Practice-Criminal • Civil Rights Actions • California Criminal Defense Practice -14-