HomeMy WebLinkAboutAgreement A-18-602 with Lexipol, LLC.pdf1
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AGREEMENT
3 THIS AGREEMENT ("Agreement") is made and entered into this _ day of October, 2018
4 ("Effective Date"), by and between the COUNTY OF FRESNO, a Political Subdivision of the State of
5 California, ("COUNTY"), and Lexipol, LLC., a Delaware limited liability company, whose address is 2801
6 Network Blvd., Suite 500, Frisco, TX 75034, ("CONTRACTOR").
7 W I T N E S S ET H:
8 WHEREAS, COUNTY desires to enter into an agreement to obtain probation and juvenile policy
9 manuals and daily training bulletin services for Prob ation Department personnel; and
10 WH EREAS, CONTRACTOR is qualified and willing to provide policy manual and daily training
11 bulletin services through access to the Lexipol Knowledge Management System, which is a web-based
12 delivery platform and mobile application used to distribute policies to staff.
13 NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions herein
14 contained, the parties agree as follows:
15 1.OBLIGATIONS OF THE CONTRACTOR
16 CONTRACTOR shall provide COUNTY access to customizable, state-specific probation and
17 juvenile policy content and daily training bulletin services through access to the Lexipol Knowledge
18 Management System, as well as assist COUNTY in the customization of CONTRACTOR's content to
19 meet the needs of COUNTY, as more specifically stated in Exhibit "A", attached and incorporated by this
20 reference.
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A.CONTRACTOR agrees to provide implementation services (estimated at 800 hours)
over the term of the Agreement. Exhibit A, which is attached and incorporated by this
reference, contains a more detailed description of these implementation services in
the section entitled, "Full Implementation."
B.CONTRACTOR shall provide COUNTY subscriptions to the Lexipol Probation and
26 Juvenile Policy Manuals and Daily Training Bulletin Service, to include:
27 i.Policy manual content, document management, training content and testing
28 through web-based proprietary system tools.
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Agreement No. 18-602
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ii.Regular and urgent updates to content via web-based tools.
iii.Integrated Daily Training Bulletins (DTBs)
iv.Archiving of all versions of the Probation Department's policy manuals.
v.Reporting features -including exception reporting with export capability to
Microsoft Excel.
2.OBLIGATIONS OF THE COUNTY
A.COUNTY shall maintain the confidentiality of COUNTY's password and account.
COUNTY agrees to notify Lexipol immediately of any unauthorized use of COUNTY's account or breach
of security.
10 B.COUNTY shall ensure that the COUNTY's user name and password are for
11 COUNTY's sole use and COUNTY shall not share, distribute, sell or otherwise transfer its password or
12 username to other individuals.
13 C.COUNTY shall ensure that administrator passwords permitting access to Lexipol
14 Forum pages, Release Notes, and guide sheets is for use of COUNTY Administrator and may not be
15 used by any other user.
16 3.TERM
17 The term of this Agreement shall be for a period of three (3) years, commencing on November 1,
18 2018 through and including October 31, 2021. This Agreement may be extended for two (2) additional
19 consecutive twelve (12) month periods upon written approval of both parties no later than thirty (30) days
20 prior to the first day of the next twelve ( 12) month extension period. The Chief Probation Officer or his or
21 her designee is authorized to execute such written approval on behalf of COUNTY based on
22 CONTRACTOR'S satisfactory performance.
23 4.TERMINATION
24 A.Non-Allocation of Funds -The terms of this Agreement, and the services to be provided
25 hereunder, are contingent on the approval of funds by the appropriating government
26 agency. Should sufficient funds not be allocated, the services provided may be modified,
27 or this Agreement terminated, at any time by giving CONTRACTOR thirty (30) days
28 advance written notice.
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B.Breach of Contract -COUNTY may immediately suspend or terminate this Agreement in
whole or in part, where in the determination of COUNTY there is:
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An illegal or improper use of funds;
A failure to comply with any term of this Agreement;
A substantially incorrect or incomplete report submitted to the COUNTY;
Improperly performed service.
7 In no event shall any payment by COUNTY constitute a waiver by COUNTY of any breach of this
8 Agreement or any default which may then exist on the part of CONTRACTOR. Neither shall such payment
9 impair or prejudice any remedy available to the COUNTY with respect to the breach or default. COUNTY
10 shall have the right to demand of CONTRACTOR the repayment to COUNTY of any funds disbursed to
11 CONTRACTOR under this Agreement, which in the judgment of COUNTY were not expended in
12 accordance with the terms of this Agreement. CONTRACTOR shall promptly refund any such funds upon
13 demand.
14 C.Without Cause -Under circumstances other than those set forth above, this
15 Agreement may be terminated by COUNTY by giving thirty (30) days' advance written notice of an intention
16 to terminate to CONTRACTOR.
17 5.COMPENSATION/INVOICING: COUNTY agrees to pay CONTRACTOR and
18 CONTRACTOR agrees to receive compensation based on the prices listed in Exhibit "B'', which is attached
19 and incorporated by this reference. The subscription and Fixed Price implementation are to be invoiced
20 upon execution of this Agreement and CONTRACTOR shall submit invoices in triplicate to the County of
21 Fresno Probation Department, 3333 E. American Avenue, Suite B, Fresno, California 93725.
22 In no event shall compensation for services performed under this Agreement exceed three hundred
23 ninety seven thousand and fifty-one dollars ($397,051), as further described in Exhibit B. It is understood
24 that all expenses incidental to CONTRACTOR'S performance of services under this Agreement shall be
25 borne by CONTRACTOR. Within forty-five (45) days after receipt of the invoice, COUNTY will remit
26 payment to CONTRACTOR. Such payment shall be sent to:
27 Lexi pol
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Frisco, TX 75034 1
2 6.INDEPENDENT CONTRACTOR: In performance of the work, duties and obligations
3 assumed by CONTRACTOR under this Agreement, it is mutually understood and agreed that
4 CONTRACTOR, including any and all of CONTRACTOR'S officers, agents, and employees will at all times
5 be acting and performing as an independent contractor, and shall act in an independent capacity and not as
6 an officer, agent, servant, employee, joint venturer, partner, or associate of the COUNTY. Furthermore,
7 COUNTY shall have no right to control or supervise or direct the manner or method by which
8 CONTRACTOR shall perform its work and function. However, COUNTY shall retain the right to administer
9 this Agreement so as to verify that CONTRACTOR is performing its obligations in accordance with the
10 terms and conditions thereof.
11 CONTRACTOR and COUNTY shall comply with all applicable provisions of law and the rules and
12 regulations, if any, of governmental authorities having jurisdiction over matters the subject thereof.
13 Because of its status as an independent contractor, CONTRACTOR shall have absolutely no right
14 to employment rights and benefits available to COUNTY employees. CONTRACTOR shall be solely liable
15 and responsible for providing to, or on behalf of, its employees all legally-required employee benefits. In
16 addition, CONTRACTOR shall be solely responsible and save COUNTY harmless from all matters relating
17 to payment of CONTRACTOR'S employees, including compliance with Social Security withholding and all
18 other regulations governing such matters. It is acknowledged that during the term of this Agreement,
19 CONTRACTOR may be providing services to others unrelated to the COUNTY or to this Agreement.
20 7.MODIFICATION: Any matters of this Agreement may be modified from time to time by the
21 written consent of all the parties without, in any way, affecting the remainder.
22 8.NON-ASSIGNMENT: Neither party shall assign, transfer or sub-contract this Agreement
23 nor their rights or duties under this Agreement without the prior written consent of the other party.
24 9.HOLD HARMLESS: CONTRACTOR agrees to indemnify, save, hold harmless, and at
25 COUNTY'S request, defend the COUNTY, its officers, agents, and employees from any and all costs and
26 expenses (including attorney's fees and costs), damages, liabilities, claims, and losses occurring or
27 resulting to COUNTY as a result of CONTRACTOR'S negligence or willful misconduct under this
28 Agreement, and from any and all costs and expenses (including attorney's fees and costs), damages,
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1 liabilities, claims, and losses occurring or resulting to any person, firm, or corporation who may be injured
2 or damaged by the performance, or failure to perform, of CONTRACTOR, its officers, agents, or
3 employees under this Agreement.
4 The provisions of this Section 9 shall survive the termination of this Agreement.
5 10.COPYRIGHT
6 COUNTY expressly acknowledges and agrees that each and every policy provided by
7 CONTRACTOR including, but not limited to, all updated, revisions to CONTRACTOR content,
8 Supplemental Policy Publications and/or Procedures Manuals, and Daily Training Bulletins are expressly
9 created for COUNTY's exclusive use. COUNTY further agrees that CONTRACTOR owns the copyright to
10 all content created by CONTRACTOR that is incorporated into Policy Manual(s), content created by
11 CONTRACTOR that is incorporated into Supplemental Policy Publications and/or Procedure Manuals,
12 Policy and/or Procedure update content and Daily Training Bulletins ("Lexipol Content"). COUNTY further
13 agrees that any content within an Agency Policy Manual prepared by the COUNTY based in whole or in
14 part on content created by CONTRACTOR, or based on any Supplemental Policy Publications and/or
15 Procedure Manuals, and Daily Training Bulletins copyrighted by CONTRACTOR shall be derivative work
16 subject to the copyright of CONTRACTOR. Subject to the provisions of this Section 10, COUNTY shall
17 have a perpetual right and license to use all materials provided by CONTRACTOR for COUNTY's use
18 under this Agreement. The foregoing does not, however, prohibit or restrict COUNTY from providing
19 subscriptions material or derivative works prepared by or for COUNTY pursuant to an order from a court or
20 other governmental agency or other legal process or as required by the California Public Records Act, nor
21 does it prohibit or restrict COUNTY from displaying the adopted/approved final policy document on a
22 publicly accessible website for official COUNTY purposes.
23 11.INSURANCE
24 Without limiting the COUNTY's right to obtain indemnification from CONTRACTOR or any third
25 parties, CONTRACTOR, at its sole expense, shall maintain in full force and effect, the following insurance
26 policies or a program of self-insurance, including but not limited to, an insurance pooling arrangement or
27 Joint Powers Agreement (JPA) throughout the term of the Agreement:
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1 A.Commercial General Liability
2 Commercial General Liability Insurance with limits of not less than Two Million Dollars
3 ($2,000,000.00 ) per occurrence and an annual aggregate of Four Million Dollars ($4,000,000.00 ). This
4 policy shall be issued on a per occurrence basis. COUNTY may require specific coverages including
5 completed operations, products liability, contractual liability, Explosion-Collapse-Underground, fire legal
6 liability or any other liability insurance deemed necessary because of the nature of this contract.
7 B.Professional Liability
8 If CONTRACTOR employs licensed professional staff, (e.g., Ph.D., R.N., L.C.S.W., M.F.C.C.) in
9 providing services, Professional Liability Insurance with limits of not less than One Million Dollars
10 ($1,000,000.00) per occurrence, Three Million Dollars ($3,000 ,000.00) annual aggregate.
11 C.Technology Professional Liability (Errors and Omissions)
12 Technology Professional Liability (Errors and Omissions) Insurance appropriate to the
13 CONTRACTOR's profession, with limits not less than $2,000,000 per occurrence or claim, $2,000 ,000
14 aggregate. Coverage shall be sufficiently broad to respond to the duties and obligations as is
15 undertaken by CONTRACTOR in this agreement and shall include, but not be limited to, claims
16 involving infringement of intellectual property, including but not limited to infringement of copyright,
17 trademark, trade dress, invasion of privacy violations, information theft, damage to or destruction of
18 electronic information, release of private information, alteration of electronic information, extortion and
19 network security. The policy shall provide coverage for breach response costs as well as regulatory
20 fines and penalties as well as credit monitoring expenses with limits sufficient to respond to these
21 obligations.
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D.Worker's Compensation
A policy of Worker's Compensation insurance as may be required by the California Labor
25 Additional Requirements Relating to Insurance
26 CONTRACTOR shall obtain endorsements to the Commercial General Liability insurance naming
27 the County of Fresno, its officers, agents, and employees, individually and collectively, as additional
28 insured, but only insofar as the operations under this Agreement are concerned. Such coverage for
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1 only be in Fresno County, California.
2 The rights and obligations of the parties and all interpretation and performance of this Agreement
3 shall be governed in all respects by the laws of the State of California.
4 15.DISCLOSURE OF SELF-DEALING TRANSACTIONS
5 This provision is only applicable if the CONTRACTOR is operating as a corporation (a for-profit
6 or non-profit corporation) or if during the term of the agreement, the CONTRACTOR changes its status
7 to operate as a corporation.
8 Members of the CONTRACTOR's Board of Directors shall disclose any self-dealing transactions
9 that they are a party to while CONTRACTOR is providing goods or performing services under this
10 agreement. A self-dealing transaction shall mean a transaction to which the CONTRACTOR is a party
11 and in which one or more of its directors has a material financial interest. Members of the Board of
12 Directors shall disclose any self-dealing transactions that they are a party to by completing and signing a
13 Self-Dealing Transaction Disclosure Form, attached hereto as Exhibit C and incorporated herein by
14 reference, and submitting it to the COUNTY prior to commencing with the self-dealing transaction or
15 immediately thereafter.
16 16.CONSISTENT FEDERAL INCOME TAX POSITION: CONTRACTOR acknowledges that
17 the Juvenile Justice Campus has been acquired, constructed, or improved (and that the JJC is situated
18 on land that has been acquired) using net proceeds of governmental tax-ex empt bonds (collectively,
19 "Bond-Financed Facilities"). CONTRACTOR agrees that, with respect to this Agreement and the Bond
20 Financed Facilities, CONTRACTOR is not entitled to take, and shall not take, any position (also known
21 as a "tax position") with the Internal Revenue Service ("IRS") that is inconsistent with being a "service
22 provider" to the COUNTY, as a "qualified user" with respect to the Bond-Financed Facilities, as
23 "managed property," as all of those terms are used in Internal Revenue Service Revenue Procedure
24 2017-13, and to that end, for example, and not as a limitation, CONTRACTOR agrees that
25 CONTRACTOR shall not, in connection with any federal income tax return that it files with the IRS or
26 any other statement or information that it provides to the IRS, (a) claim ownership, or that it is a lessee,
27 of any portion of the Bond Financed Facilities, or (b) claim any depreciation or amortization deduction,
28 investment tax credit, or deduction for any payment as rent with respect to the Bond-Financed Facilities.
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1 17.ENTIRE AGREEMENT: This Agreement constitutes the entire agreement between the
2 CONTRACTOR and COUNTY with respect to the subject matter hereof and supersedes all previous
3 Agreement negotiations, proposals, commitments, writings, advertisements, publications, and
4 understanding of any nature whatsoever unless expressly included in this Agreement. In the event of any
5 inconsistency between the Agreement including Exhibits A through C, the provisions of this Agreement
6 (excluding Exhibits A through C) shall govern.
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1 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year
2 first hereinabove written.
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Print Name & Title
COUNTY OF FRESNO
Sal
Su
irperson of the Board of
e County of Fresno
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10 Mailing Address
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16 FOR ACCOUNTING USE ONLY:
17 ORG No.:34309999
18 Account No.:7295
Requisition No.: 3431900055
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ATTEST:
Bernice E. Seidel
Clerk of the Board of Supervisors
County of Fresno, State of California
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