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HomeMy WebLinkAbout320001 2 3 AGREEMENT THIS AGREEMENT is dated February 1 0 AGREEMENT NO . 15-045 , 2015, and is between the COUNTY 4 OF FRESNO, a political subd iv is ion of the State of California ("COUNTY''), and Pacific Publishing 5 Group, Inc. d.b.a. The Business Journal at 1315 Van Ness Avenue, Suite 200 , Fresno California , 6 93721 ("CONTRACTOR"). 7 8 Recitals The COUNTY and its various Departments occasionally need to publish legal notices. 9 The CONTRACTOR represents that it is a newspaper of general circulation that it is able to 10 pub l ish those notices. 11 The parties therefore agree as follows: 12 1. SERVICES PROVIDED BY CONTRACTOR 13 The CONTRACTOR shall publish legal notices submitted as needed by the 14 COUNTY and its various Departments , according to the CONTRACTOR'S ordinary publishing 15 schedule, at the prices specified in this agreement. There is no minimum order quantity. 16 17 2. TERM This agreement is effective from the date written in the introductory paragraph 18 through December 31 , 2017. The term of this agreement may be renewed for no more than two 19 one-year extensions at the sole discretion of the COUNTY upon a determination of the Auditor- 20 Controllerffreasurer-Tax Collector (Aud itor) that the CONTRACTOR is performing satisfactorily. 21 To exercise each one-year extension , the Auditor will notify the CONTRACTOR of the extension 22 by written letter at least 45 days before the termination date. 23 3. TERMINATION 24 A. Non-Allocation of Funds -The terms of this Agreement, and the services to 25 be provided thereunder, 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, or this 27 Agreement terminated , at any time by giving the CONTRACTOR thirty (30) days advance written 28 notice. -1 - 1 B. Breach of Contract-The COUNTY may immediately suspend or terminate 2 this Agreement in whole or in part, where in the determination of the COUNTY there is : 3 1) An illegal or improper use of funds ; 4 5 6 7 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 8 of any breach of this Agreement or any default which may then exist on the part of the 9 CONTRACTOR Neither shall such payment impair or prejudice any remedy available to the 10 COUNTY with respect to the breach or default. The COUNTY shall have the right to demand of 11 the CONTRACTOR the repayment to the COUNTY of any funds disbursed to the CONTRACTOR 12 under this Agreement, which in the judgment of the COUNTY were not expended in accordance 13 with the terms of this Agreement. The CONTRACTOR shall promptly refund any such funds upon 14 demand . 15 C. Without Cause -Under circumstances other than those set forth above , 16 this Agreement may be terminated by COUNTY upon the giving of thirty (30) days advance written 17 notice of an intention to terminate to CONTRACTOR 18 4 . COMPENSATION/INVOICING : COUNTY agrees to pay CONTRACTOR and 19 CONTRACTOR agrees to receive compensation as follows: $25 .00 per column inch for services 20 provided in calendar years 2015 , 2016 , and 2017 ; and , if extensions are granted as provided in 21 section 2 of this agreement, $26.00 per column inch for services that are provided in 2018 and 22 2019. CONTRACTOR shall submit invoices to the County of Fresno department receiving the 23 service to the address provided by the department. The invoice terms shall be net 45 days . 24 In no event shall compensation for services performed under this agreement 25 exceed SIX HUNDRED THOUSAND ($600 ,000 .00) during the period from the date when this 26 agreement becomes effective to December 31 , 2015 ; SIX HUNDRED THOUSAND ($600 ,000 .00) 27 during the period January 1, 2016 to December 31 , 2016; and SIX HUNDRED THOUSAND 28 ($600,000 .00) during the period January 1, 2017 to December 31 , 2017. If extensions are granted -2 - 1 as provided in section 2 of this agreement, compensation for services performed under this 2 agreement during each of those extension periods shall not exceed SIX HUNDRED FIFTY 3 THOUSAND ($650,000.00) during the period January 1, 2018 to December 31, 2018; and SIX 4 HUNDRED FIFTY THOUSAND ($650,000 .00) during the period January 1, 2019 to December 31, 5 2019. It is understood that all expenses incidental to CONTRACTOR'S performance of services 6 under this Agreement shall be borne by CONTRACTOR 7 5. INDEPENDENT CONTRACTOR: In performance of the work, duties and 8 obligations assumed by CONTRACTOR under this Agreement, it is mutually understood and 9 agreed that CONTRACTOR, including any and all of the CONTRACTOR'S officers, agents, and 10 employees will at all times be acting and performing as an independent contractor, and shall act in 11 an independent capacity and not as an officer, agent, servant , employee, joint venturer, partner, or 12 associate of the COUNTY. Furthermore, COUNTY shall have no right to control or supervise or 13 direct the manner or method by which CONTRACTOR shall perform its work and function. 14 However, COUNTY shall retain the right to administer this Agreement so as to verify that 15 CONTRACTOR is performing its obligations in accordance with the terms and conditions thereof. 16 CONTRACTOR and COUNTY shall comply with all applicable provisions of 17 law and the rules and regulations, if any, of governmental authorities having jurisdiction over 18 matters the subject thereof. 19 Because of its status as an independent contractor, CONTRACTOR shall have 20 absolutely no right to employment rights and benefits available to COUNTY employees. 21 CONTRACTOR shall be solely liable and responsible for providing to, or on behalf of, its 22 employees all legally-required employee benefits. In addition, CONTRACTOR shall be solely 23 responsible and save COUNTY harmless from all matters relating to payment of 24 CONTRACTOR'S employees, including compliance with Social Security withholding and all other 25 regulations governing such matters. It is acknowledged that during the term of this Agreement, 26 CONTRACTOR may be providing services to others unrelated to the COUNTY or to this 27 Agreement. 28 6. MODIFICATION: Any matters of this Agreement may be modified from time -3- 1 to time by the written consent of all the parties without, in any way , affecting the remainder. 2 7 . NON-ASSIGNMENT: Neither party shall assign, transfer or sub-contract this 3 Agreement nor their rights or duties under this Agreement without the prior written consent of the 4 other party. 5 8. HOLD HARMLESS: CONTRACTOR agrees to indemnify, save, hold 6 harmless, and at COUNTY'S request, defend the COUNTY , its officers, agents, and employees 7 from any and all costs and expenses, damages , liabilities, claims, and losses occurring or 8 resulting to COUNTY in connection with the performance, or failure to perform, by 9 CONTRACTOR, its officers, agents, or employees under this Agreement , and from any and all 10 costs and expenses, damages, liabilities , claims , and losses occurring or resulting to any person , 11 firm, or corporation who may be injured or damaged by the performance , or failure to perform, 12 of CONTRACTOR, its officers, agents , or employees under this Agreement. 13 9. INSURANCE 14 Without limiting the COUNTY'S 15 right to obtain indemnification from CONTRACTOR or any third parties, CONTRACTOR, at its 16 sole expense , shall maintain in full force and effect , the following insurance policies or a program 17 of self-insurance, including but not limited to , an insurance pooling arrangement or Joint Powers 18 Agreement (JPA) throughout the term of the Agreement: 19 A. Commercial General Liability 20 Commercial General Liability Insurance with limits of not less than One 21 Million Dollars ($1 ,000 ,000) per occurrence and an annual aggregate of Two Million Dollars 22 ($2,000,000). This policy shall be issued on a per occurrence basis. COUNTY may require 23 specific coverages including completed operations , products liability, contractual liability , 24 Explosion-Collapse-Underground , fire legal liability or any other liability insurance deemed 25 necessary because of the nature of this contract. 26 B. Automobile Liability 27 Comprehensive Automobile Liability Insurance with limits for bodily injury of 28 not less than Two Hundred Fifty Thousand Dollars ($250 ,000 .00) per person , Five Hundred -4- 1 Thousand Dollars ($500,000.00) per accident and for property damages of not less than Fifty 2 Thousand Dollars ($50,000.00), or such coverage with a combined single limit of Five Hundred 3 Thousand Dollars ($500,000.00). Coverage should include owned and non-owned vehicles used 4 in connection with this Agreement. 5 C. Professional Liability 6 If CONTRACTOR employs licensed professional staff, (e .g ., Ph.D ., R.N ., 7 L.C.S.W., M .F.C .C.) in providing services , Professional Liability Insurance with limits of not less 8 than One Million Dollars ($1 ,000 ,000.00) per occurrence , Three Million Dollars ($3 ,000 ,000.00) 9 annual aggregate. 10 D. Worker's Compensation 11 A policy of Worker's Compensation insurance as may be required by the 12 California Labor Code . 13 CONTRACTOR shall obtain endorsements to the Commercial General Liability 14 insurance naming the County of Fresno , its officers , agents, and employees , individually and 15 collectively , as additional insured , but only insofar as the operations under this Agreement are 16 concerned. Such coverage for additional insured shall apply as primary insurance and any other 17 insurance , or self-insurance , maintained by COUNTY , its officers, agents and employees shall be 18 excess only and not contributing with insurance provided under CONTRACTOR'S policies herein . 19 This insurance shall not be cancelled or changed without a minimum of thirty (30) days advance 20 written notice given to COUNTY. 21 Within Thirty (30) days from the date CONTRACTOR signs and executes this 22 Agreement, CONTRACTOR shaU provide certificates of insurance and endorsement as stated 23 above for all of the foregoing pol icies , as required herein , to the County of Fresno Auditor- 24 Controllerffreasurer-Tax Collector Department , stating that such insurance coverage have been 25 obtained and are in full force ; that the County of Fresno , its officers, agents and employees will not 26 be responsible for any premiums on the policies ; that such Commercial General Liability insurance 27 names the County of Fresno , its officers , agents and employees , individually and collectively , as 28 additional insured , but only insofar as the operations under this Agreement are concerned ; that -5- 1 such coverage for additional insured shall apply as primary insurance and any other insurance , or 2 self-insurance, maintained by COUNTY, its officers, agents and employees, shall be excess only 3 and not contributing with insurance provided under CONTRACTOR'S policies herein; and that this 4 insurance shall not be cancelled or changed without a minimum of thirty (30) days advance, 5 written notice given to COUNTY. 6 In the event CONTRACTOR fails to keep in effect at all times insurance 7 coverage as herein provided, the COUNTY may, in addition to other remedies it may have, 8 suspend or terminate this Agreement upon the occurrence of such event. 9 All policies shall be issued by admitted insurers licensed to do business in the 1 0 State of California, and such insurance shall be purchased from companies possessing a current 11 A.M. Best , Inc. rating of A FSC VII or better. 12 10 . AUDITS AND INSPECTIONS: The CONTRACTOR shall at any time during 13 business hours, and as often as the COUNTY may deem necessary, make available to the 14 COUNTY for examination all of its records and data with respect to the matters covered by this 15 Agreement. The CONTRACTOR shall, upon request by the COUNTY, permit the COUNTY to 16 audit and inspect all of such records and data necessary to ensure CONTRACTOR'S compliance 17 with the terms of this Agreement. 18 If this Agreement exceeds ten thousand dollars ($1 0,000.00), CONTRACTOR 19 shall be subject to the examination and audit of the Auditor General for a period of three (3) years 20 after final payment under contract (Government Code Section 8546. 7). 21 11. NOTICES : The persons and their addresses having authority to give and 22 receive notices under this Agreement include the following : 23 24 25 26 COUNTY COUNTY OF FRESNO Audit or -ControllerfT reasu rer-Tax Collector P.O. Box 1247 Fresno CA 93715-1247 CONTRACTOR Pacific Publishing Group, Inc., d .b.a . The Business Journal 1315 Van Ness Ave. Suite 200 Fresno. CA 93721 27 All notices between the COUNTY and the CONTRACTOR provided for or 28 permitted under this Agreement must be in writing and delivered either by personal service, by -6- 1 first-class United States mail, by an overnight commercial courier service, or by telephonic 2 facsimile transmission. A notice delivered by personal service is effective upon service to the 3 recipient. A notice delivered by first-class United States mail is effective three COUNTY business 4 days after deposit in the United States mail, postage prepaid, addressed to the recipient. A notice 5 delivered by an overnight commercial courier service is effective one COUNTY business day after 6 deposit with the overnight commercial courier service, delivery fees prepaid, with delivery 7 instructions given for next day delivery, addressed to the recipient. A notice delivered by 8 telephonic facsimile is effective when transmission to the recipient is completed (but, if such 9 transmission is completed outside of COUNTY business hours, then such delivery shall be 10 deemed to be effective at the next beginning of a COUNTY business day), provided that the 11 sender maintains a machine record of the completed transmission . For all claims arising out of or 12 related to this Agreement, nothing in this section establishes, waives, or modifies any claims 13 presentation requirements or procedures provided by law, including but not limited to the 14 Government Claims Act (Division 3.6 of Title 1 of the Government Code, beginning with section 15 810). 16 12. VENUE AND GOVERNING LAW: Venue for any action arising out of or 17 related to this Agreement shall only be in Fresno County, California. 18 The rights and obligations of the parties and all interpretation and performance 19 of this Agreement shall be governed in all respects by the laws of the State of California. 20 13. DISCLOSURE OF SELF-DEALING TRANSACTIONS 21 This provision is only applicable if the CONTRACTOR is operating as a 22 corporation (a for-profit or non-profit corporation) or if during the term of the agreement, the 23 CONTRACTOR changes its status to operate as a corporation. 24 Members of the CONTRACTOR'S Board of Directors shall disclose any self- 25 dealing transactions that they are a party to while CONTRACTOR is providing goods or 26 performing services under this agreement. A self-dealing transaction shall mean a transaction 27 to which the CONTRACTOR is a party and in which one or more of its directors has a material 28 financial interest. Members of the Board of Directors shall disclose any self-dealing -7- 1 transactions that they are a party to by completing and signing a Self-Dealing Transaction 2 Disclosure Form, attached hereto as Exhibit A and incorporated herein by reference, and 3 submitting it to the COUNTY prior to commencing with the self-dealing transaction or 4 immediately thereafter. 5 14. ENTIRE AGREEMENT: This Agreement constitutes the entire agreement 6 between the CONTRACTOR and COUNTY with respect to the subject matter hereof and 7 supersedes all previous Agreement negotiations, proposals, commitments, writings, 8 advertisements, publications, and understanding of any nature whatsoever unless expressly 9 included in this Agreement. 10 [SIGNATURE PAGE FOLLOWS] 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -8- 1 The parties are signing this agreement on the date stated in the introductory clause . 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 CONTRACTOR: Pacific Publishing Group , Inc . d.b.a. The Busi ess Journal For accounting use only: Org . No.: Various Account No .: 7325 Debo rah A. Poochigian Chair, Board of Supervisors ~ (/) w Reviewed and recommended for approval. ~ {ku -~ AUDITOR-CONTROLLE /TREASURER-TAX COLLECTOR Approved as to accounting form. Approved as to legal form . , Deputy -9- _j !/) w ~ ~-~ 3 (/)CI.l . c. w ::J (/'/ wen S2o ~ z "0 . c:::;o wo >-coco (0 Exhibit A SELF-DEALING TRANSACTION DISCLOSURE FORM (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 :