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HomeMy WebLinkAboutAgreement A-18-601 with Arch Nexus, Inc..pdf- 1 -COUNTY OF FRESNO Fresno, CA 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 AGREEMENT WITH ARCHITECTURAL NEXUS, INC. THIS AGREEMENT is made and entered into this _______ day of ____________, 2018, by and between the COUNTY OF FRESNO, a Political Subdivision of the State of California, hereinafter referred to as “COUNTY”, and ARCHITECTURAL NEXUS, INC., a private for-profit Utah corporation, whose address is 930 R Street, Sacramento, CA 95811, hereinafter referred to as “CONTRACTOR”. COUNTY and CONTRACTOR may herein be referred to individually as “Party” or collectively as “parties” or “Parties”. W I T N E S S E T H: WHEREAS, COUNTY, desires to enter into an Agreement for a Library Facilities Master Plan, which includes a facilities needs assessment for Fresno County Public Libraries; WHEREAS, CONTRACTOR specializes in the architectural design, planning and maintenance of library buildings to create valued community transformation; and WHEREAS, CONTRACTOR possesses the experience, skills, and resources to provide the services sought by COUNTY, and agrees to provide the services as set forth below. NOW, THEREFORE, in consideration of their mutual covenants and conditions, the parties hereto agree as follows: 1. OBLIGATIONS OF THE CONTRACTOR A. CONTRACTOR shall perform all services and fulfill all responsibilities set forth in the Scope of Work, attached hereto as Exhibit “A” and incorporated herein by reference. CONTRACTOR’s performance shall be in accordance with the COUNTY’s Request for Proposal (RFP) No. 19-001 dated July 23, 2018, and Addendum No. one (1), dated August 3, 2018, (collectively, the “Revised RFP No. 19-001”) and CONTRACTOR’s Response to Revised RFP No. 19-001, dated August 21, 2018. B. In the event of any inconsistency among the documents described in Paragraph 1.A herein above, the inconsistency shall be resolved by giving precedence in the following order of priority: 1) to this Agreement, including all Exhibits attached hereto; 2) the Revised RFP No. 19- 001; and 3) CONTRACTOR's Response to Revised RFP No. 19-001. Copies of COUNTY's Revised RFP No. 19-001, and CONTRACTOR's Response to Revised RFP No. 19-001, shall be 23rd October Agreement No. 18-601 - 2 -COUNTY OF FRESNO Fresno, CA 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 retained and made available during the term of this Agreement by COUNTY'S Public Library Department. 2. OBLIGATIONS OF THE COUNTY COUNTY shall fulfill its designated responsibilities set forth in the Scope of Work, attached as Exhibit “A” and incorporated by this reference. 3. TERM The term of this Agreement shall be from October 24, 2018 through and including June 30, 2019. 4. TERMINATION A. Non-Allocation of Funds – The terms of this Agreement, and the services to be provided hereunder, 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 – 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 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 - 3 -COUNTY OF FRESNO Fresno, CA 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 Agreement may be terminated by COUNTY upon the giving of thirty (30) days advance written notice of an intention to terminate to CONTRACTOR. 5. COMPENSATION/INVOICING COUNTY agrees to pay CONTRACTOR and CONTRACTOR agrees to receive compensation in accordance with the Budget, attached as Exhibit “B” and incorporated by this reference. CONTRACTOR shall invoice COUNTY by the tenth (10th) of each month for services rendered in the previous month. CONTRACTOR shall submit monthly invoices in triplicate to Fresno County Public Library, Attn: Business Office, 2420 Mariposa Street, Fresno, CA 93721. In no event shall compensation for services performed under this Agreement exceed One Hundred Fifty Thousand Dollars ($150,000) for the term of the Agreement. Invoices shall include full details on the work performed including: library site assessed, service dates, and which categories of the budget identified in Exhibit B were billed. It is understood that all expenses incidental to CONTRACTOR'S performance of services under this Agreement shall be borne by CONTRACTOR. Payments by COUNTY shall be made in arrears, for services provided during the preceding month, within forty-five (45) days after receipt, verification and approval of CONTRACTOR’s invoices by Fresno County Public Library. 6. 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 CONTRACTOR’s officers, agents, and employees will at all times be acting and performing as an independent CONTRACTOR, and shall act in an independent capacity and not as an officer, agent, servant, employee, joint venture, 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 responsibilities 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 - 4 -COUNTY OF FRESNO Fresno, CA 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 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 CONTRACTOR 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. 7. MODIFICATION Any matters of this Agreement may be modified from time to time by the written consent of COUNTY and CONTRACTOR without, in any way, affecting the remainder. 8. NON-ASSIGNMENT Neither party shall assign, transfer or subcontract this Agreement nor their rights or duties under this Agreement without the prior written consent of the other party. 9. 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 (including attorney’s fees and costs), 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 costs and expenses (including attorney’s fees and costs), 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. The provisions of this Section 9 shall survive the termination of this Agreement. 10. INSURANCE Without limiting the COUNTY's right to obtain indemnification from CONTRACTOR or - 5 -COUNTY OF FRESNO Fresno, CA 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 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, including but not limited to, an insurance pooling arrangement or Joint Powers Agreement (JPA) throughout the term of the Agreement: A. Commercial General Liability Commercial General Liability Insurance with limits of not less than Two Million Dollars ($2,000,000.00) per occurrence and an annual aggregate of Four Million Dollars ($4,000,000.00). 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 of not less than One Million Dollars ($1,000,000.00) per accident for bodily injury and for property damages. Coverage should include any auto 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. Additional Requirements Relating to Insurance CONTRACTOR shall obtain endorsements to the Commercial General Liability 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- - 6 -COUNTY OF FRESNO Fresno, CA 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, 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, (Name and Address of the official who will administer this contract), 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 for such worker’s compensation insurance the CONTRACTOR has waived its right to recover from the COUNTY, its officers, agents, and employees any amounts paid under the insurance policy and that waiver does not invalidate the insurance policy; 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. /// /// - 7 -COUNTY OF FRESNO Fresno, CA 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 11. AUDITS AND INSPECTIONS The CONTRACTOR shall at any time during business hours, and as often as the COUNTY may 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 California State Auditor for a period of three (3) years after final payment under contract (Government Code Section 8546.7). 12. NOTICES The persons and their addresses having authority to give and receive notices under this Agreement include the following: COUNTY CONTRACTOR Fresno County Public Library Architectural Nexus, Inc. Attn: County Librarian Attn: Jeff Davis, AIA, Principal 2420 Mariposa Street 930 R Street Fresno, CA 93721 Sacramento, CA 95811 All notices between the COUNTY and the CONTRACTOR provided for or permitted under this Agreement must be in writing and delivered either by personal service, by first-class United States mail, by an overnight commercial courier service, or by telephonic facsimile transmission. A notice delivered by personal service is effective upon service to the recipient. A notice delivered by first-class United States mail is effective three COUNTY business days after deposit in the United States mail, postage prepaid, addressed to the recipient. A notice delivered by an overnight commercial courier service is effective one COUNTY business day after deposit with the overnight commercial courier service, delivery fees prepaid, with delivery instructions given for next day delivery, addressed to the recipient. A notice delivered by telephonic facsimile is effective when transmission to the recipient is completed (but, if such transmission is completed outside of COUNTY business hours, then such delivery shall be deemed to be effective at the next beginning of a COUNTY business day), provided that the sender maintains a machine record of the completed - 8 -COUNTY OF FRESNO Fresno, CA 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 transmission. For all claims arising out of or related to this Agreement, nothing in this section establishes, waives, or modifies any claims presentation requirements or procedures provided by law, including but not limited to the Government Claims Act (Division 3.6 of Title 1 of the Government Code, beginning with section 810). 13. 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. 14. 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. 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 C and incorporated herein by reference, and submitting it to the COUNTY prior to commencing with the self-dealing transaction or immediately thereafter. 15. 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 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 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the day and year first hereinabove written. COUNTY OF FRESNO Sal u te , C airperson of the Board of Sup -~e County of Fresno ~~--=---~~~ l'\G\ ~ >?C~•~±o1 CA !\9& \ \ Mailing Address ATTEST: · Bernice E. Seidel FOR ACCOUNTING USE ONLY: ORG No.: 75110800 Account No.: 7295 Requisition No.: 7511900025 \ Clerk of the Board of Supervisors County of Fresno, State of California \ . ' ·' By: 'G\, J\p. •, r I teput - 9 -.COUNTY OF FRESNO Fresno,CA Architectural Nexus, Inc. Agreement: Library Facilities Master Plan Exhibit A Page 6 of 8 and demographic projections for a 15-year timeframe. b)Graphics including photographs, charts, maps, and sketches as appropriate. 5)The timeline will be as follows: two (2) Months for Research, Analysis and Development; and report to Board of Supervisors within one (1) months for completion of written report. D. Library Branch Locations to receive a Physical Assessment 1.Auberry 10.Piedra 2.Bear Mountain 11.Pinedale 3.Big Creek 12.Politi 4.Fig Garden 13.Reedley 5.Gillis 14.Riverdale 6.Kerman 15.Selma 7.Kingsburg 16.Shaver Lake 8.Laton 17.Sunnyside 9.Mosqueda COUNTY’S RESPONSIBILITIES: FCPL on behalf of the County will work with Arch Nexus to provide access to the library buildings as needed during normal business hours. FCPL will provide available background information, such as circulation statistics, programming information, PC usage and other available data on each library to Arch Nexus and confirm the levels of research analysis required for each building location. FCPL will also provide a manager as primary contact to Arch Nexus to facilitate the project. Furthermore, a committee of FCPL staff members including public services staff, support staff, librarians and paraprofessionals will assist with any questions that Arch Nexus may have as it conducts its research.