Loading...
HomeMy WebLinkAboutLegacy Inmate Communications - 2016-10-01SERVICE AGREEMENT BETWEEN THE CITY OF HUNTINGTON BEACH AND LEGACY INMATE COMMUNICATIONS FOR THE INSTALLATION AND MAINTENANCE OF INMATE TELEPHONES THIS AGREEMENT ("Agreement") is made and entered into by and between the City of Huntington Beach a municipal corporation of the State of California, hereinafter called "City," and Legacy Inmate Communications, a corporation, hereinafter referred to as "Contractor." Recitals A. The City desires to retain a Contractor having special skill and knowledge in the field of installation, repair, maintenance and billing of inmate telephone services at the City Jail. B. Contractor represents that Contractor is able and willing to provide such services to the City. C. In undertaking the performance of this Agreement, Contractor represents that it is knowledgeable in its field and that any services performed by Contractor under this Agreement will be performed in compliance with such standards as may reasonably be expected from a comparable company or firm in the field. Contractor has been selected to perform these services pursuant to Huntington Beach Municipal Code Chapter 3.02, NOW, THEREFORE, it is agreed by City and Contractor as follows: 1. Scope of Services Contractor shall provide all services as described in Exhibit "A," which is attached hereto and incorporated into this Agreement by this reference. These services shall sometimes hereinafter be referred to as the "Project." Contractor hereby designates Michael Harvey who shall represent it and be its sole contact and agent in all consultations with City during the performance of this Agreement. 2. City Staff Assistance City shall assign a staff coordinator to work directly with Contractor in the performance of this Agreement. 3. Compensation a. Contractor agrees to pay City a commission of fifty eight and a half percent (58.5%) of the monthly gross billable revenue generated by Contractor. The revenue will be paid as identified in Exhibit A. Page 1 of 10 4. Term This Agreement shall commence on the date first written below (the "Commencement Date") and terminate three (3) years from the Commencement Date, unless terminated earlier in accordance with the section 14 of this Agreement. All tasks specified in Exhibit "A" shall be completed no later than October 1, 2016. This schedule and Term may be extended if mutually agreed to in writing by City and Contractor. 5. Disposition of Plans, Estimates and Other Documents Contractor agrees that title to all materials prepared hereunder, including, without limitation, all original drawings, designs, reports, both field and office notices, calculations computer code, language, data or programs, maps, memoranda, letters and other documents, shall belong to City, and Contractor shall turn these materials over to City upon expiration or termination of this Agreement or upon Project completion, whichever shall occur first. These materials may be used by City as it sees fit. 6. Audit (a) The City shall have the right during the term of this agreement to examine, audit, review and extract information from records and accounts of documents relating directly to this agreement. (b) Contractor shall maintain call detail records and recordings for a minimum of five (5) years, and at the City's request, shall allow access to any calls, records, and reports for evidence in court procedures. 7. Hold Harmless Contractor hereby agrees to protect, defend, indemnify and hold harmless City, its officers, elected or appointed officials, employees, agents, and volunteers from and against any and all, claims, damages, losses, expenses, judgments, demands and defense costs, and consequential damage or liability of any kind or nature, however caused, including those resulting from death or injury to Contractor's employees and damage to Contractor's property, arising directly or indirectly out of the obligations or operations herein undertaken by Contractor, caused in whole or in part by any negligent act or omission of the Contractor, any subcontractors, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, including but not limited to concurrent active or passive negligence, except where caused by the active negligence, sole negligence, or willful misconduct of the City. Contractor will conduct all defenses at its sole cost and expense and City shall approve selection of Contractor's counsel. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Contractor. Page 2 of 10 8. Workers Compensation Insurance Pursuant to California Labor Code Section 1861, Contractor acknowledges awareness of Section 3700 et seq. of this Code, which requires every employer to be insured against liability for workers' compensation; Contractor covenants that it will comply with such provisions prior to commencing performance of the work hereunder. Contractor shall obtain and furnish to City workers' compensation and employer's liability insurance in an amount of not less than the State statutory limits. Contractor shall require all subcontractors to provide such workers' compensation and employer's liability insurance for all of the subcontractors' employees. Contractor shall furnish to City a certificate of waiver of subrogation under the terms of the workers' compensation and employer's liability insurance and Contractor shall similarly require all subcontractors to waive subrogation. 9. General Liability Insurance In addition to the workers' compensation and employer's liability insurance and Contractor's covenant to defend, hold harmless and indemnify City, Contractor shall obtain and furnish to City, a policy of general public liability insurance, including motor vehicle coverage covering the Project/Service. This policy shall indemnify Contractor, its officers, employees and agents while acting within the scope of their duties, against any and all claims arising out or in connection with the Project/Service, and shall provide coverage in not less than the following amount: combined single limit bodily injury and property damage, including products/completed operations liability and blanket contractual liability, of One Million Dollars ($1,000,000) per occurrence. If coverage is provided under a form which includes a designated general aggregate limit, the aggregate limit must be no less than One Million Dollars ($1,000,000) for this Project/Service. This policy shall name City, its officers, elected or appointed officials, employees, agents, and volunteers as Additional Insureds, and shall specifically provide that any other insurance coverage which may be applicable to the Project/Service shall be deemed excess coverage and that Contractor's insurance shall be primary. Under no circumstances shall said above -mentioned insurance contain a self -insured retention, or a "deductible" or any other similar form of limitation on the required coverage. 10. Automobile Liability Insurance Contractor shall obtain and furnish to City an automotive liability insurance policy covering the work performed by it hereunder. This policy shall provide coverage for Contractor's automotive liability in an amount not less than One Million Dollars ($1,000,000.00) per occurrence and a separate "Additional Insured Endorsement" page listing both the policy number and naming the "City of Huntington Beach, its ofcers, elected or appointed officials, employees, agents and volunteers" as additional insured on the endorsement. The above -mentioned insurance shall not contain a self -insured retention, "deductible" or any other similar form of limitation on the required coverage except with the express written consent of City. Page 3 of 10 11. Certificate of Insurance Prior to commencing performance of the work hereunder, Contractor shall furnish to City a certificate of insurance subject to approval of the City Attorney evidencing the foregoing insurance coverage as required by this Agreement; the certificate shall: a. provide the name and policy number of each carrier and policy; b. state that the policy is currently in force; and c. promise that such policy shall not be suspended, voided or canceled by either party, reduced in coverage or in limits except after thirty (30) days' prior written notice; however, ten (10) days' prior written notice in the event of cancellation for nonpayment of premium. Contractor shall maintain the foregoing insurance coverage in force until the work under this Agreement is fully completed and accepted by City. The requirement for carrying the foregoing insurance coverage shall not derogate from Contractor's defense, hold harmless and indemnification obligations as set forth in this Agreement. City or its representative shall at all times have the right to demand the original or a copy of the policy of insurance. Contractor shall pay, in a prompt and timely manner, the premiums on the insurance hereinabove required. 12. Independent Contractor Contractor is, and shall be, acting at all times in the performance of this Agreement as an independent contractor herein and not as an employee of City. Contractor shall secure at its own cost and expense, and be responsible for any and all payment of all taxes, social security, state disability insurance compensation, unemployment compensation and other payroll deductions for Contractor and its officers, agents and employees and all business licenses, if any, in connection with the Project and/or the services to be performed hereunder. 13. Conflict of Interest Contractor covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under. this Agreement. 14. Termination This Agreement may be terminated by either party with or without cause upon ninety (90) days written notice of termination. In such event, City shall be entitled to receive compensation as set forth in Exhibit "A" prior to receipt of such notice of termination. Page 4 of 10 15. Exclusivity and Amendment This Agreement represents the complete and exclusive statement between the City and Contractor, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Contractor. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Contractor or the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any parties, which are not embodied herein. 16. Assianment Inasmuch as this Agreement is intended to secure the specialized services of Contractor, Contractor may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other Contractors retained by City. 17. City Emplovees and Officials Contractor shall employ no City official nor any regular City employee in the work performed pursuant to this Agreement. No officer or employee of City shall have any financial interest in this Agreement in violation of the applicable provisions of the California Government Code. 18. Notices Any notices, certificates, or other communications hereunder shall be given either by personal delivery to Contractor's agent (as designated in Section 1 hereinabove) or to City as the situation shall warrant, or by enclosing the same in a sealed envelope, postage prepaid, and depositing the same in the United States Postal Service, to the addresses below. City and Contractor may designate different addresses to which subsequent notices, certificates or other communications will be sent by notifying the other party via personal delivery, a reputable overnight carrier or U.S. certified U.S. certified mail -return receipt requested: To City: City of Huntington Beach Attn: Detention Administrator,14BPD 2000 Main Street Huntington Beach, CA 92648 To Contractor: Legacy Inmate Communications 10833 Valley View Street, Suite 150 Cypress, CA 90630 Page 5 of 10 19. Consent When City's consent/approval is required under this Agreement, its consent/approval for one transaction or event shall not be deemed to be a consent/approval to any subsequent occurrence of the same or any other transactions or event. 20. Modification No waiver or modification of any language in this Agreement shall be valid unless in writing and duly executed by both parties. 21. Section Headings The titles, captions, section, paragraph and subject headings, and descriptive phrases at the beginning of the various sections in this Agreement are merely descriptive and are included solely for convenience of reference only and are not representative of matters included or excluded from such provisions, and do not interpret, define, limit or describe, or construe the intent of the parties or affect the construction or interpretation of any provision of this Agreement. 22. Interpretation of this Agreement The language of -all parts of this Agreement -shall in all cases be construed as a whole, according to its fair meaning, and not strictly for or against any of the parties. If any provision of this Agreement is held by an arbitrator or court of competent jurisdiction to be unenforceable, void, illegal or invalid, such holding shall not invalidate or affect the remaining covenants and provisions of this Agreement. No covenant or provision shall be deemed dependent upon any other unless so expressly provided here. As used in this Agreement, the masculine or neuter gender and singular or plural number shall be deemed to include the other whenever the context so indicates or requires. Nothing contained herein shall be construed so as to require the commission of any act contrary to law, and wherever there is any conflict between any provision contained herein and any present or future statute, law, ordinance or regulation contrary to which the parties have no right to contract, then the latter shall prevail, and the provision of this Agreement which is hereby affected shall be curtailed and limited only to the extent necessary to bring it within the requirements of the law. 23. Duplicate Original The original of this Agreement and one or more copies hereto have been prepared and signed in counterparts as duplicate originals, each of which so executed shall, irrespective of the date of its execution and delivery, be deemed an original. Each duplicate original shall be deemed an original instrument as against any party who has signed it. 24. Immigration Contractor shall be responsible for full compliance with the immigration and naturalization laws of the United States and shall, in particular, comply with the provisions of the United States Code regarding employment verification. Page 6 of 10 25. Legal Services Subcontracting Prohibited Contractor and City agree that City is not liable for payment of any subcontractor work involving legal services, and that such legal services are expressly outside the scope of services contemplated hereunder. Contractor understands that pursuant to Huntington Beach City Charter Section 309, the City Attorney is the exclusive legal counsel for City; and City shall not be liable for payment of any legal services expenses incurred by Contractor. 26. Confidentiality Contractor recognizes that in the performance of its duties under this Agreement, it must conduct its activities in a manner designed to protect information of a sensitive nature from improper use or disclosure. Contractor warrants that it will use reasonable efforts consistent with practices customary in the facilities management industry in recruiting, training and supervising employees and in otherwise performing its duties hereunder in order to achieve this result. In the furtherance of this, Contractor agrees, at the request of the City, to require its employees to execute written undertakings to comply with the foregoing confidentiality provision. 27. Discrimination Contractor shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities. Contractor affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 28. Jurisdiction - Venue This Agreement and all questions relating to its validity, interpretation, performance, and enforcement shall be government and construed in accordance with the laws of the State of California. This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 29. Professional Licenses Contractor shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Huntington Beach and all other governmental agencies. Contractor shall notify the City immediately and in writing of her inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. Page 7 of 10 30. Attorney's Fees In the event suit is brought by either parry to construe, interpret and/or enforce the terms and/or provisions of this Agreement or to secure the performance hereof, each party shall bear its own attorney's fees, such that the prevailing parry shall not be entitled to recover its attorney's fees from the nonprevailing party. 31. Sur-vival Terms and conditions of this Agreement, which by their sense and context survive the expiration or termination of this Agreement, shall so survive. 32. Governin! Law This Agreement shall be governed and construed in accordance with the laws of the State of California. 33. Signatories Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. 34. Entirety (a) The parties acknowledge and agree that they are entering into this Agreement freely and voluntarily following extensive arm's length negotiation, and that each has had the opportunity to consult with legal counsel prior to executing this Agreement. The parties also acknowledge and agree that no representations, inducements, promises, agreements or warranties, oral or otherwise, have been made by that party or anyone acting on that parry's behalf, which are not embodied in this Agreement, and that that party has not executed this Agreement in reliance on any representation, inducement, promise, agreement warranty, fact or circumstance not expressly set forth in this Agreement. (b) All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. 35. Effective Date IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and through their authorized officers. This Agreement shall be effective on October 1, 2016. This Agreement shall expire when terminated as provided herein. Page 8 of 10 CONTRACTOR Legacy Inmate Communications 10833 Valley,View Street, Suite 150 Cypress, CA�90 30 By: AI print name ITS: (circle one) Cha' n/Presid t/Vice President D gy; �S print name ITS: (circle one) Secretary/Chief Financial Officer/Asst. Secretary - Treasurer CITY OF HUNTINGTON BEACH, a municipal corporation of the State of California 2�tQ ,q ry Director f City Attorney plco °o � � 1 �� ,&A./ Receive and File Page 9 of 10 EXHIBIT A To Pay Phone West Agreement 1. Legacy Inmate Communications agrees to install, operate, and maintain the Inmate Telephone Equipment (ITE) and any ancillary equipment needed to supply service. Any equipment installed or provided by Legacy Inmate Communications will remain the property on Legacy Inmate Communications. Legacy Inmate Communications reserves the right to add or remove or relocate ITE. Legacy Inmate Communications will be responsible for billing and collection of all telephone line charge in connection with telephone activity of ITE. Legacy Inmate Communications agrees to verify the monthly gross billed revenue amounts which are the subject of this equipment. 2. Legacy Inmate Communications shall provide local, intraLATA and interstate telephone services from inmate telephones. The City may designate six phones in the booking area to provide California mandated free phone calls allowed upon arrest. 3. Legacy Inmate Communications shall provide telephones for each housing unit (10), each booking cell (6), and for each visitation room (6). All but two of these phones will recorded and proper notice of recording will be provided to those using the phones. 3. Legacy Inmate Communications shall provide a comprehensive training program customized to meet the City's particular needs. As new personnel join the investigation or jail units, training can be provided. 4. The employees of Legacy Inmate Communications will comply with and be subject to identification verification and criminal history checks as part of working inside a correctional facility. Employees will also acknowledge the standards of the Federal Prison Rape Elimination Act (PREA) and report any violations to the City. 5. The City shall exercise reasonable care in preventing damage to the telephone system installed under the agreement but shall not be responsible for any damage or destruction to the telephone system. 6. Legacy Inmate Communications hereby agrees to provide the ITE on City premises at the Police Department and agrees to service and repair the installed equipment entirely at Legacy Inmate Communications expense and at no cost whatsoever to the City. Legacy Inmate Communications agrees to pay the City a commission of fifty eight and a half percent (58.5%) of the monthly gross billable revenue generated by the ITE located on the premises of the City. Legacy Inmate Communications agrees to pay commissions on a monthly basis. The first commission will be paid approximately sixty (60) days after the phone system has been installed and every thirty (30) days thereafter following the last day of the calendar month. Page 10 of 10