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HomeMy WebLinkAboutAgreement A-22-056 with BMI Imaging Systems Inc..pdf-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 26 27 28 A G R E E M E N T THIS AGREEMENT (“Agreement”) is made and entered into this day of , 20222 (“Effective Date”), by and between the COUNTY OF FRESNO, a political subdivision of the state of California ("COUNTY"), and BMI Imaging Systems, Inc., a California corporation, whose address is 1115 E.Arques Avenue, Sunnyvale, CA 94085 ("CONTRACTOR"). W I T N E S S E T H: WHEREAS, COUNTY has a need for online hosting of digital images of recorded documents in the official custody of the COUNTY Recorder’s Office and for the creation of a microfilm backup of recorded documents for calendar year 2021 and later years; and WHEREAS, CONTRACTOR has represented that its DIGITAL REEL™ online Hosting Service meets the COUNTY’s needs; and WHEREAS, COUNTY desires to purchase such software licenses and online hosting services, from CONTRACTOR for use by the COUNTY Recorder’s office. NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions herein contained, the parties hereto agree as follows: 1.DEFINITIONS The following terms used throughout this Agreement shall be defined as follows: a)“BMI Hosting Services” means BMI hosted online access to Imaged Product (as defined below) for use by COUNTY-authorized End Users. b)“BMI Services” means services provided by BMI outside of BMI Hosting Services, such as the scanning of Fee Books. c)“County Documents” means all instruments, papers and notices submitted to the Fresno County Recorder’s Office, the recording of which is required or permitted by law. d)“End User” means any person who is authorized by COUNTY to access and use Imaged Product subject to the licenses provided in section 2.A.i. of this Agreement. e)“Imaged Product” means the end results of digital or photographic reproduction processes of BMI Services that can be viewed by COUNTY on a display device. 22nd February Agreement No. 22-056 -2- 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 f)“ISD” means the Information Services Division of COUNTY’s Internal Services Department. g)“Software” or “System Software” means the Digital Reel™ software and its contents. h)“Standard Business Hours” means Monday through Friday, 5:00 AM to 5:00 PM (Pacific) i)“System” means the System Software and System Documentation, collectively. j)“System Documentation” means the documentation related to the Software, and all specifications and materials provided by CONTRACTOR in connection with the System pursuant to this Agreement. 2.OBLIGATIONS OF THE CONTRACTOR CONTRACTOR shall provide Software and BMI Hosting Services to COUNTY in a professional and timely manner, in accordance with the terms and conditions set forth herein below. A.BMI ONLINE HOSTING SERVICES. CONTRACTOR shall provide to COUNTY BMI Hosting Services as follows: i.Licenses. CONTRACTOR shall issue to COUNTY licenses to use the System Software, including five anonymous accounts for use by the public on the COUNTY Recorder’s Internet website, 10 licenses for kiosks accessible to the public in the offices of the COUNTY Recorder’s Office, and 20 named licenses for use by employees of the COUNTY Recorder’s Office. ii.Storage and Access to Imaged Product. CONTRACTOR shall provide a minimum hardware storage configuration of RAID 5 on which the Imaged Product will be stored. CONTRACTOR will provide access to this hardware configuration in both of its two (2) hosting locations in Sacramento and Sunnyvale, with one configuration available at any one time at least 99% of Standard Business Hours. iii.Access Services. CONTRACTOR shall allow access to the Imaged Product to End Users via Internet connections from one or more of CONTRACTOR’s data repositories (“Access Services”). End Users will be determined by COUNTY. Adding or removing End Users shall be at the discretion of COUNTY’s Contract Administrator (as defined in Section 3.A.), or that person’s designee. CONTRACTOR shall provide COUNTY with software tools to allow for IT administration-level controlled addition or deletion of End Users. COUNTY assumes all responsibility for adding, deleting, or maintaining End Users, whether -3- 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 directly administering the End Users, or through CONTRACTOR technical support. iv.Communication Lines. CONTRACTOR utilizes communication services of telecom third parties to provide services under this Agreement. COUNTY acknowledges that CONTRACTOR does not have ultimate control of communication lines used to access the Imaged Product, and that therefore, CONTRACTOR cannot ultimately guarantee the security of transmissions between CONTRACTOR and COUNTY. CONTRACTOR routinely utilizes Secure Socket Layer (SSL) protocol for transmission of the Imaged Product to clients, and can provide other enhanced data communication and security provisions upon request, such as single Internet Protocol (IP) access or Virtual Private Network (VPN). Unless otherwise noted, COUNTY should not expect download bandwidth greater than 1.5Mb/s during Standard Business Hours. Access is not guaranteed outside of Standard Business Hours. v.Maintenance Standard Maintenance or System Upgrades. CONTRACTOR shall perform preventative maintenance of its servers and other facilities in accordance with its normal maintenance schedules and procedures, as modified from time to time, during the term of this Agreement. COUNTY acknowledges that Access Services may not be operable during periods of preventative maintenance. CONTRACTOR shall inform COUNTY prior to any scheduled maintenance. Unscheduled Maintenance. COUNTY acknowledges that CONTRACTOR may have to perform maintenance of CONTRACTOR’s servers and other facilities on an emergency basis, and that Access Services may not be operable at these times. CONTRACTOR shall provide COUNTY with notice as soon as possible in such situations, and shall make every reasonable effort to restore Access Services to COUNTY as soon as possible. vi.Customer Support. CONTRACTOR shall provide operational and technical support pertaining to BMI Services, during Standard Business Hours, excepting CONTRACTOR and COUNTY holidays, via toll-free telephone assistance. B.SCOPE OF LICENSE. The following terms of use govern the terms and conditions by which the Software may be accessed by COUNTY and COUNTY’s designated End Users. a.LICENSE. i.CONTRACTOR grants COUNTY a limited right to access and use the Software -4- 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 as intended by CONTRACTOR for lawful government purposes of the COUNTY’s Recorder only, and for no other purpose. ii.The parties acknowledge and agree that, as between CONTRACTOR and COUNTY, title, and full ownership of all rights in and to the Software, System Documentation, and all other materials provided to COUNTY by CONTRACTOR under the terms of this Agreement, shall remain with CONTRACTOR. Ownership of all copies is retained by CONTRACTOR. iii.CONTRACTOR shall own all right, title and interest in and to all corrections, modifications, enhancements, programs, and work product conceived, created or developed, alone or with COUNTY or others, as a result of or related to the performance of this Agreement, including all proprietary rights therein and based thereon. Except and to the extent expressly provided herein, CONTRACTOR does not grant to COUNTY any right or license, express or implied, in or to the Software and System Documentation or any of the foregoing. The parties acknowledge and agree that, as between CONTRACTOR and COUNTY, full ownership of all rights in and to all COUNTY data, whether in magnetic or paper form, including without limitation printed output from the System, are the exclusive property of COUNTY. b.RESTRICTIONS i.Except to the extent authorized by CONTRACTOR, COUNTY agrees to keep secret and not disclose any username or password required by CONTRACTOR to access and use the Software, and to not share access and use of the Software with any third party except through kiosks accessible to the public in the offices of the Fresno County Recorder’s Office, subject to the licenses provided under section 2.A.i. of this Agreement. If COUNTY suspects that a personal username and password has been disclosed to an unauthorized party, COUNTY agrees to immediately notify CONTRACTOR. ii.Except to the extent permitted by law, COUNTY may not directly or indirectly (i) transmit, redistribute, encumber, sell, rent, lease, lend barter, sub-lease, sublicense, or otherwise transfer this Software or the right to access and use this Software to any third party without the express written consent of CONTRACTOR; (ii) use the Software in connection with any service bureau without the express written consent of CONTRACTOR; (iii) remove or obscure any copyright, trademark and other proprietary -5- 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 rights, notices, legends, symbols or labels; (iv) alter, modify, decompile, disassemble, create any derivative works of the Software, including customization, translation or localization, or reverse engineer, or otherwise attempt to derive the source code for the Software; or (v) use the DIGITAL REEL™ Software or its contents for any unlawful purpose. c.INTELLECTUAL PROPERTY, TRADEMARK AND COPYRIGHT i.The Software is protected under U.S. Copyright laws and international treaties, trade secret, trademark, and other applicable laws. CONTRACTOR retains ownership of the Software, any portions or copies thereof, and all rights therein. CONTRACTOR reserves all rights not expressly granted to COUNTY. The license provided to COUNTY under this section 2.B. does not grant COUNTY any rights in connection with any trademarks or service marks of CONTRACTOR, its suppliers, or licensors. All right, title, interest, and copyrights in and to the Software and the accompanying Software Documentation, and any copies of the Software are owned by CONTRACTOR, its suppliers, or licensors. All title and intellectual property rights in and to the content which may be accessed through use of the Software are the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. The license provided to COUNTY under this section 2.B. grants COUNTY no rights to use such content. d.DISCLAIMER OF WARRANTIES i.Except as expressly set forth herein, the DIGITAL REEL™ Software, data, and information accessible through the use of the software and system are provided “AS-IS”, without representation or warranty of any kind, except that CONTRACTOR expressly warrants and represents that its DIGITAL REEL™ online Hosting Service meets the COUNTY’s needs. ii.CONTRACTOR does not represent or warrant that the Software is free of all defects, or that the Software or its contents will be accessible at all times. iii.Use of the Software and its content, data, information, and documentation is at COUNTY’s risk. C.CONFIDENTIALITY OF COUNTY’S INFORMATION a.CONTRACTOR acknowledges and agrees that all COUNTY Documents or any other information and materials furnished by COUNTY to CONTRACTOR that COUNTY identifies as -6- 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 confidential information shall be and remain the confidential information of the COUNTY, including all Imaged Product containing confidential information, unless one or more exclusions set forth below applies. CONTRACTOR agrees that it shall not use or disclose the confidential information for any reason other than as set forth in this Agreement. COUNTY acknowledges and agrees that CONTRACTOR may disclose confidential information to subcontractors for the purposes of this Agreement who are obligated in writing to maintain the confidentiality of confidential information. b.Exclusions. For the purposes of this Agreement, confidential information shall not include information or materials that: (a) have previously become or are generally known to the public or trade not through a breach of this Agreement or similar confidentiality or non-disclosure agreement; (b) are already rightfully known to CONTRACTOR or a third party prior to being disclosed by or obtained from the COUNTY under this Agreement; (c) have been or are hereafter rightfully received by CONTRACTOR from a third party under no restriction on use or disclosure; or (d) have been independently developed by CONTRACTOR without access to the COUNTY’s confidential information. COUNTY agrees that CONTRACTOR may disclose COUNTY confidential information in response to a lawful order of a court of competent jurisdiction or legal authority, provided COUNTY is given reasonable notice to take steps to protect such confidential information prior to disclosure, at COUNTY’s expense. c.Notwithstanding anything provided above, CONTRACTOR shall not sell or disclose COUNTY Documents to any third party, or otherwise use COUNTY Documents for CONTRACTOR’s business purposes except as expressly provided in this Agreement. D.CONTRACTOR PROJECT COORDINATOR. Upon execution of this Agreement, CONTRACTOR shall appoint a Project Coordinator, who will act as the primary contact person to interface with COUNTY for implementation, maintenance, and support of BMI DIGITAL REEL™ Hosting Service. E.OTHER. a.Unless otherwise specified, for third-party software, CONTRACTOR shall provide standard documentation in electronic form via the Internet or File Transfer Protocol (FTP). b.COUNTY may request CONTRACTOR to add the Fee Book Index to the hosted system, so that the Fee Book Index may be viewed through the hosted system by employees of the COUNTY Recorder’s Office. The Fee Book Index is an index (that is, a list) of recorded documents. -7- 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 c.COUNTY may request CONTRACTOR to add the Land Index to the anonymous data set, so that the Land Index may be viewed by the public through the five anonymous accounts for use by the public on the COUNTY Recorder’s Internet website as provided in section 2.A.i. of this Agreement. The Land Index is an index (that is, a list) of recorded documents. F.MICROFILM DIGITAL ARCHIVE PROJECT. BMI shall assist the COUNTY in the continued implementation of the Microfilm Digital Archive (MDA) Project, as provided by California Government Code section 27322.2, by providing the services described in Attachment A, attached and incorporated by this reference. 3.OBLIGATIONS OF COUNTY A.COUNTY CONTRACT ADMINISTRATOR: COUNTY appoints its Assessor-Recorder or their designee, as COUNTY’s Contract Administrator, with full authority to deal with CONTRACTOR in all matters concerning this Agreement. B.COUNTY PROJECT MANAGER: Upon execution of this Agreement, COUNTY’s Contract Administrator shall designate one individual who will function as Project Manager, with responsibility for day-to-day management of the project for implementation of the System Software. The Project Manager and COUNTY personnel shall have the necessary and appropriate training and experience to implement the terms of this Agreement. COUNTY acknowledges CONTRACTOR’S reliance on same. C.SAFEGUARDING SYSTEM SOFTWARE: COUNTY will follow its present practices to safeguard System Software delivered to COUNTY by CONTRACTOR. A copy of COUNTY’S “Information Technology (IT) Standards and Preferences” will be made available upon request. D.SECURITY: COUNTY agrees to validate the integrity of the information and data it receives and transmits over the Internet, and to maintain the security of its Internet account and usage. COUNTY agrees to protect its data and images from unauthorized use, complying with protocols for sensitive, confidential, and personal information. E.COOPERATION: COUNTY agrees to make available to CONTRACTOR, in a timely manner, certain COUNTY Documents and as applicable, COUNTY personnel, equipment, and facilities. Each party agrees that it will use best efforts to cooperate with the other parties in all respects of this Agreement. COUNTY acknowledges that delay in making COUNTY Documents available to the -8- 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 CONTRACTOR may delay CONTRACTOR’s performance of services under this Agreement. F.LEGAL COMPLIANCE: COUNTY represents and warrants that it has, under Government Code section 27231, lawful authority in relation to the COUNTY Documents to engage the CONTRACTOR, its employees, agents and/or subcontractors to perform BMI Services under this Agreement without violation or infringement of any third party right or agreement. COUNTY shall be solely responsible for legal compliance with regard to the reproduction of COUNTY Documents, and the access and use of Imaged Product in COUNTY’s possession and/or control. G.BACKUP OF DOCUMENTS AND DATA; ASSUMPTION OF RISK: COUNTY shall be responsible to make prior and ongoing backup copies of all COUNTY Documents, data and programs connected to any network device onto which CONTRACTOR will be loading software, data, or Imaged Products in connection with the performance of requested BMI Services. COUNTY acknowledges and agrees that CONTRACTOR makes no claim as to the compatibility or serviceability of any software or Imaged Product in connection with COUNTY’s software or equipment. H.NON-SOLICITATION: COUNTY shall not recruit, solicit, induce, or otherwise contract for the employment of CONTRACTOR’s employees or service contractors during the term of this Agreement. This section 3.H. shall not subject COUNTY to any liability if a CONTRACTOR employee responds to a COUNTY job posting. 4.TERM The term of this Agreement shall be for a period of three (3) years, commencing on the December 6, 2021, through and including December 5, 2024. This Agreement may be extended for two (2) additional consecutive twelve (12) month periods upon written approval of both parties no later than thirty (30) days prior to the first day of the next twelve (12) month extension period. The ISD Director/CIO or his or her designee is authorized to execute such written approval on behalf of COUNTY based on CONTRACTOR’S satisfactory performance. 5.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 -9- 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 terminated, at any time without penalty by giving the CONTRACTOR thirty (30) days advance written notice. B.Breach of Contract - The 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 Agreement may be terminated by COUNTY by giving thirty (30) days advance written notice of an intention to terminate to CONTRACTOR. 6.COMPENSATION/INVOICING: A.COUNTY agrees to pay CONTRACTOR and CONTRACTOR agrees to receive compensation as follows: Annual hosting, paid in advance each year, which includes five anonymous accounts for use by the public on the COUNTY Recorder’s Internet website, 10 licenses for kiosks accessible to the public in the offices of the COUNTY Recorder’s Office, and 20 named licenses for use by employees of the COUNTY Recorder’s Office, plus support and maintenance, is $27,600 per year. COUNTY may purchase additional named user licenses in increments of 5 users for $500.00 per year, which will be added to the hosting fee. The Microfilm Digital Archive (MDA) Project (see section 2.F. and Attachment A) will cost $.045 per image. The cost to add the Fee Book Index to the hosted system as provided in section 2.E.b. of this Agreement is -10- 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 $50 per roll of film. The cost to add the Land Index to the anonymous data set as provided in section 2.E.c. of this Agreement is $1,000. . If this Agreement is terminated early by COUNTY, for whatever reason, CONTRACTOR shall refund to COUNTY on a pro-rata basis, all annual fees paid in advance for goods and services to be provided hereunder but not yet delivered, including but not limited to the pro-rata share of the hosting fee for the period after the date of determination. CONTRACTOR shall submit monthly invoices referencing the provided contract number, either electronically or via mail, in triplicate to the County of Fresno, Recorder’s Office, Attention: Business Manager, 2281 Tulare Street, Room 201, Fresno, CA 93721. The maximum compensation payable to the CONTRACTOR for the initial three-year term of this Agreement is $400,000, which is $133,333.33 for the first year, $133,333.33 for the second year, and $133,333.34 for the third year. If this Agreement is extended an additional fourth year, the maximum compensation payable to the CONTRACTOR for the fourth year is $125,000, which is a maximum of $525,000 for all four years. If this Agreement is extended an additional fifth year, the maximum compensation payable to the CONTRACTOR for the fifth year is $125,000, which is a maximum of $650,000 for all five years. It is understood that all expenses incidental to CONTRACTOR'S performance of services under this Agreement shall be borne by CONTRACTOR. COUNTY shall pay CONTRACTOR within forty-five (45) days of receipt of an approved invoice. 7.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 the 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 venturer, 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 obligations in accordance with the -11- 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 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 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 COUNTY 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. 8.CONFIDENTIALITY OF CONTRACTOR’S TRADE SECRETS: Subject to Sections 9 and 10 of this Agreement, if under this Agreement COUNTY receives from CONTRACTOR any trade secrets of CONTRACTOR under California Evidence Code section 1060, the COUNTY will not disclose such trade secrets other than to persons in its organization who have a need to know and who will be required to comply with this section 8. The COUNTY will not use such trade secrets for a purpose inconsistent with the terms of this Agreement. . If CONTRACTOR provides to COUNTY under this Agreement any information or documentation containing trade secrets, CONTRACTOR shall clearly and conspicuously mark that information or documentation as containing trade secrets, and shall clearly and conspicuously mark the trade secrets as such. Subject to Sections 9 and 10 of this Agreement, if COUNTY receives any information or documentation from CONTRACTOR that is clearly and conspicuously marked as containing trade secrets of the CONTRACTOR, COUNTY will exercise at least the same degree of care to safeguard the confidentiality of CONTRACTOR’s trade secrets as COUNTY does to safeguard its own confidential information, but not less than a reasonable degree of care. CONTRACTOR shall make all reasonable efforts to provide services under this Agreement without providing any trade secrets to COUNTY. 9.PUBLIC RECORDS. COUNTY is not limited in any manner with respect to its public disclosure of this Agreement, or any record or data that CONTRACTOR may provide to COUNTY. COUNTY’s public disclosure of this Agreement, or any record or data that CONTRACTOR may provide to COUNTY, may include but is not limited to the following: -12- 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 A.COUNTY may voluntarily, or upon request by any member of the public or governmental agency, disclose this Agreement to the public or such governmental agency. B.COUNTY may voluntarily, or upon request by any member of the public or governmental agency, disclose to the public or such governmental agency any record or data that CONTRACTOR may provide to COUNTY, unless such disclosure is prohibited by court order. C.This Agreement, and any record or data that CONTRACTOR may provide to COUNTY, is subject to public disclosure under the Ralph M. Brown Act (California Government Code, Title 5, Division 2, Part 1, Chapter 9, beginning with section 54950). D.This Agreement, and any record or data that CONTRACTOR may provide to COUNTY, is subject to public disclosure as a public record under the California Public Records Act (California Government Code, Title 1, Division 7, Chapter 3.5, beginning with section 6250) (“CPRA”). E.This Agreement, and any record or data that CONTRACTOR may provide to COUNTY, is subject to public disclosure as information concerning the conduct of the people’s business of the State of California under California Constitution, Article 1, section 3, subdivision (b). F.Any marking of confidentiality or restricted access upon or otherwise made with respect to any record or data that CONTRACTOR may provide to COUNTY shall be disregarded, and have no effect on COUNTY’s right or duty to disclose to the public or governmental agency any such record or data. 10.PUBLIC RECORDS ACT REQUESTS. If COUNTY receives a written or oral request under the CPRA to publicly disclose any record that is in CONTRACTOR’s possession or control, and which COUNTY has a right, under any provision of this Agreement or applicable law, to possess or control, then COUNTY may demand, in writing, that CONTRACTOR deliver to COUNTY, for purposes of public disclosure, the requested records that may be in the possession or control of CONTRACTOR. Within five business days after COUNTY’s demand, CONTRACTOR shall (a) deliver to COUNTY all of the requested records that are in CONTRACTOR’s possession or control, together with a written statement that CONTRACTOR, after conducting a diligent search, has produced all requested records that are in -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 CONTRACTOR’s possession or control, or (b) provide to COUNTY a written statement that CONTRACTOR, after conducting a diligent search, does not possess or control any of the requested records. CONTRACTOR shall cooperate with COUNTY with respect to any COUNTY demand for such records. If CONTRACTOR wishes to assert that any specific record or data is exempt from disclosure under the CPRA or other applicable law, it must deliver the record or data to COUNTY and assert the exemption by citation to specific legal authority within the written statement that it provides to COUNTY under this section. CONTRACTOR’s assertion of any exemption from disclosure is not binding on COUNTY, but COUNTY will give at least 10 days’ advance written notice to CONTRACTOR before disclosing any record subject to CONTRACTOR’s assertion of exemption from disclosure. CONTRACTOR shall indemnify COUNTY for any court-ordered award of costs or attorney’s fees under the CPRA that results from CONTRACTOR’s delay, claim of exemption, failure to produce any such records, or failure to cooperate with COUNTY with respect to any COUNTY demand for any such records. 11.MODIFICATION: Any matters of this Agreement may be modified from time to time by the written consent of all the parties without, in any way, affecting the remainder. 12.NON-ASSIGNMENT: Neither party shall assign, transfer or sub-contract this Agreement nor their rights or duties under this Agreement without the prior written consent of the other party. 13.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 13 shall survive the expiration or termination of this Agreement. 14.INSURANCE Without limiting the COUNTY's right to obtain indemnification from CONTRACTOR or any third parties, CONTRACTOR, at its sole expense, shall maintain in full force and effect, the following insurance -14- 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 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.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-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. CONTRACTOR hereby waives its right to recover from COUNTY, its officers, agents, and employees any amounts paid by the policy of worker’s compensation insurance required by this Agreement. CONTRACTOR is solely responsible to obtain any endorsement to such policy that may be necessary to accomplish such waiver of subrogation, but CONTRACTOR’s waiver of subrogation under this paragraph is effective whether or not CONTRACTOR obtains such an endorsement. -15- 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 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, Internal Services Department, Attention: Director of Internal Services/Chief Information Officer, 333 W. Pontiac Way, Clovis, CA 93612, 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. 15.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 -16- 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 under contract (Government Code Section 8546.7). 16.NOTICES: The persons and their addresses having authority to give and receive notices under this Agreement include the following: COUNTY CONTRACTOR COUNTY OF FRESNO BMI IMAGING SYSTEMS, INC. Director of Internal Services/CIO William Whitney 333 W. Pontiac Way 1115 East Arques Ave Clovis, CA 93612 Sunnyvale, CA 94085 All notices between the COUNTY and 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 transmission. For all claims arising out of or related to this Agreement, nothing in this section 14 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). 17.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. 18.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 -17- 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 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 Attachment B and incorporated herein by reference, and submitting it to the COUNTY prior to commencing with the self-dealing transaction or immediately thereafter. 19.ELECTRONIC SIGNATURES The parties agree that this Agreement may be executed by electronic signature as provided in this section 17. An “electronic signature” means any symbol or process intended by an individual signing this Agreement to represent their signature, including but not limited to (1) a digital signature; (2) a faxed version of an original handwritten signature; or (3) an electronically scanned and transmitted (for example by PDF document) of a handwritten signature. Each electronic signature affixed or attached to this Agreement (1) is deemed equivalent to a valid original handwritten signature of the person signing this Agreement for all purposes, including but not limited to evidentiary proof in any administrative or judicial proceeding, and (2) has the same force and effect as the valid original handwritten signature of that person. The provisions of this section 17 satisfy the requirements of Civil Code section 1633.5, subdivision (b), in the Uniform Electronic Transaction Act (Civil Code, Division 3, Part 2, Title 2.5, beginning with section 1633.1). Each party using a digital signature represents that it has undertaken and satisfied the requirements of Government Code section 16.5, subdivision (a), paragraphs (1) through (5), and agrees that each other party may rely upon that representation. This Agreement is not conditioned upon the parties conducting the transactions under it by electronic means and either party may sign this Agreement with an original handwritten signature. 20.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 -18- 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 understanding of any nature whatsoever unless expressly included in this Agreement. 1 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first 2 hereinabove written . 3 4 5 6 7 8 9 10 11 12 13 14 15 16 BMI Imaging Systems , Inc . s CA 17 FOR ACCOUNTING USE ONLY : 18 Fund :0035 19 Subciass : 17058 20 ORG : 1048 21 Account: 7295 22 23 24 25 26 27 28 Brian Pacheco Chairman of the Board of Supervisors of the County of Fresno ATTEST: Bernice E. Seidel Clerk of the Board of Supervisors County of Fresno , State of California By: --~~~..L...:..-:~---- Deputy -19- ATTACHMENT A Microfilm Digital Archive (MDA) Project: 1.County Recorder staff will upload Official Record images and data to an Internet portal maintained by the Contractor for storage and access by County Recorder staff through the MDA site. County Recorder staff will upload images and data bi-weekly. Images and data uploaded to the MDA site by County Recorder staff must include at a minimum recorded document numbers and page count . 2.The Contractor will create silver original microfilm rolls of the Official Record images that County Recorder staff upload to the MDA site. The Contractor will use 16mm Microfilm – Simplex rolls that are either 100 feet or 215 feet long. 3.Through the MDA application, the Contractor will compare the number of pages to the page count provided by County Recorder staff and provide a programmatic alert for any pages or documents missing from an upload. Following any alert, County Recorder staff will review to determine whether documents are actually missing; then, if any documents are missing, County Recorder staff upload corrected documents. 4.Through the MDA application, the Contractor will track the image capacity of each roll of microfilm containing Official Record images. When the roll of microfilm is getting close to full capacity, the Contractor will create one silver original microfilm roll that will be sent to the County via UPS at no cost to the County. The Contractor represents and warrants to the County that the full capacity of a roll is approximately 2,500-page images for a 100-foot roll or approximately 7,000-page images for a 215-foot roll. A digital copy of each microfilm roll will be maintained online, by the Contractor, for disaster recovery in the event of an emergency, and access by County Recorder staff at any time as needed in the determination of the County Recorder’s Office. The Contractor will maintain the digital copy of each microfilm roll in a secure ATTACHMENT A Statement on Standards for Attestation Engineers No. 16 (SSAE 16) System and Organization Controls (SOC) 2 data center. 5.BMI will process and inspect the microfilm rolls for image write and processing quality. As part of this process, BMI will inspect film for scratches, water spots that may have been created during processing, film fog, and image quality. During the quality control process, the operator may also splice any retakes. The process is complete once the box label is created, and the roll is inserted for delivery to client. 6.All training for County Recorder staff using the MDA system for online access to images and data will be provided by the Contractor as requested by the County, at no cost to the County. Attachment B SELF-DEALING TRANSACTION DISCLOSURE FORM In order to conduct business with the County of Fresno (hereinafter referred to as “County”), members of a contractor’s board of directors (hereinafter referred to as “County Contractor”), must disclose any self-dealing transactions that they are a party to while providing goods, performing services, or both for the County. A self-dealing transaction is defined below: “A self-dealing transaction means a transaction to which the corporation is a party and in which one or more of its directors has a material financial interest” The definition above will be utilized for purposes of completing this disclosure form. INSTRUCTIONS (1)Enter board member’s name, job title (if applicable), and date this disclosure is being made. (2)Enter the board member’s company/agency name and address. (3)Describe in detail the nature of the self-dealing transaction that is being disclosed to the County. At a minimum, include a description of the following: a.The name of the agency/company with which the corporation has the transaction; and b.The nature of the material financial interest in the Corporation’s transaction that the board member has. (4)Describe in detail why the self-dealing transaction is appropriate based on applicable provisions of the Corporations Code. (5)Form must be signed by the board member that is involved in the self-dealing transaction described in Sections (3) and (4). Attachment B (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: