HomeMy WebLinkAboutAgreement A-22-493 with MSW Consultants Inc.pdf Agreement No. 22-493
22-0959
1 SERVICE AGREEMENT
2 This Service Agreement("Agreement") is dated October 25, 2022 and is between MSW
3 Consultants, Inc, a California corporation ("Consultant"), and the County of Fresno, a political
4 subdivision of the State of California ("County").
5 Recitals
6 A. The County, through its Department of Public Works and Planning — Resources
7 ("Department"), is in need of software program to collect and track all data required by
8 California Senate Bill 1383 ("SB 1383").
9 B. Merced County Regional Waste Management Authority (MCRWMA) released Request
10 for Proposal (RFP) No. RFP20210902MCRWMA, released on September 2, 2021, and closed
11 on September 30, 2021, for SB1383 Software Reporting Program, and awarded an agreement
12 to Consultant.
13 C. The County is satisfied that the source selection method used by MCRWMA complies
14 with the requirements of the County's Purchasing Manual, and County's procurement
15 requirements, and is in the best interest of the County. The Consultant is qualified and willing to
16 provide the County the software program to assist the County with meeting SB 1383's reporting
17 requirements.
18 The parties therefore agree as follows:
19 Article 1
20 Consultant's Services
21 1.1 Scope of Services. The Consultant shall perform all of the services provided in
22 Exhibit A to this Agreement, titled "Scope of Services" and in compliance with Exhibit E, titled
23 "Data Security."
24 1.2 Representation. The Consultant represents that it is qualified, ready, willing, and
25 able to perform all of the services provided in this Agreement.
26 1.3 Compliance with Laws. The Consultant shall, at its own cost, comply with all
27 applicable federal, state, and local laws and regulations in the performance of its obligations
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1 under this Agreement, including but not limited to workers compensation, labor, and
2 confidentiality laws and regulations.
3 Article 2
4 County's Responsibilities
5 2.1 The County shall assist Consultant by providing all information and data reasonably
6 necessary for the project.
7 2.2 The County shall examine all studies, reports, proposals and other documents
8 presented by Consultant, and render verbally or in writing, as may be appropriate, decisions
9 pertaining thereto within a reasonable time so as not to delay the services of Consultant.
10 2.3 The Director of Public Works and Planning, or designee, will act as the"County
11 Representative" with respect to all work to be performed under this Agreement.
12 Article 3
13 Compensation, Invoices, and Payments
14 3.1 The County agrees to pay, and the Consultant agrees to receive, compensation for
15 the performance of its services under this Agreement as described in Exhibit B to this
16 Agreement, titled "Compensation."
17 3.2 Maximum Compensation. The maximum compensation payable to the Consultant
18 under this Agreement is ninety-three thousand eight hundred dollars ($93,800)for the entire
19 term of the Agreement. The compensation payable to the Consultant for each of the renewal
20 periods shall be thirty-one thousand four hundred dollars ($31,400)for the fourth year and thirty-
21 four thousand four hundred eighty dollars ($34,480) for the fifth year. Maximum compensation
22 under the terms of this Agreement shall not exceed one hundred fifty-nine thousand six hundred
23 eighty dollars ($159,680). The Consultant acknowledges that the County is a local government
24 entity and does so with notice that the County's powers are limited by the California Constitution
25 and by State law, and with notice that the Consultant may receive compensation under this
26 Agreement only for services performed according to the terms of this Agreement and while this
27 Agreement is in effect, and subject to the maximum amount payable under this section. The
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1 Consultant further acknowledges that County employees have no authority to pay the
2 Consultant except as expressly provided in this Agreement.
3 I I 3.3 Invoices. The Consultant shall submit invoices to Public Works and Planning —
4 Resources Division via email at PWPBusinessOffice(c)-fresnocountyca.gov or send invoice to
5 the following address:
6 Public Works and Planning — Resources Division
Attention: Resources Division Manager
7 2220 Tulare St, 61h Floor
Fresno, CA 93721
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9 Each invoice shall specifically identify this Agreement number. The Consultant shall submit an
10 invoice to the County annually for software and setup, training, and technical support fees.
11 Invoice must include details of tasks and/or work completed relevant to the payment request.
12 3.4 Payment. The County shall pay each correctly completed and timely submitted
13 invoice within 45 days after receipt. The County shall remit any payment to the Consultant's
14 address specified in the invoice.
15 3.5 Incidental Expenses. The Consultant is solely responsible for all of its costs and
16 expenses that are not specified as payable by the County under this Agreement.
17 Article 4
18 Term of Agreement
19 4.1 Term. This Agreement is effective on October 25, 2022 and terminates on October
20 25, 2025, except as provided in section 4.2, "Extension," or Article 6, "Termination and
21 Suspension," below.
22 4.2 Extension. The term of this Agreement may be extended for no more than two, one-
23 year periods only upon written approval of both parties at least 30 days before the first day of
24 the next one-year extension period. The Director of Public Works and Planning or his or her
25 designee is authorized to sign the written approval on behalf of the County based on the
26 Consultant's satisfactory performance. The extension of this Agreement by the County is not a
27 waiver or compromise of any default or breach of this Agreement by the Consultant existing at
28 the time of the extension whether or not known to the County.
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1 Article 5
2 Notices
3 5.1 Contact Information. The persons and their addresses having authority to give and
4 receive notices provided for or permitted under this Agreement include the following:
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For the County:
6 Resources Division Manager
County of Fresno
7 2220 Tulare St, 61h Floor
Fresno, CA 93721
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For the Consultant:
9 President
David Davis
10 I I 41760 Ivy St., Suite 203
Murrieta, CA 92562
11 Dave(a)-msw-consultants.com
12 5.2 Change of Contact Information. Either party may change the information in section
13 5.1 by giving notice as provided in section 5.3.
14 5.3 Method of Delivery. Each notice between the County and the Consultant provided
15 for or permitted under this Agreement must be in writing, state that it is a notice provided under
16 this Agreement, and be delivered either by personal service, by first-class United States mail, by
17 an overnight commercial courier service, or by Portable Document Format (PDF) document
18 attached to an email.
19 (A) A notice delivered by personal service is effective upon service to the recipient_
20 (B) A notice delivered by first-class United States mail is effective three County
21 business days after deposit in the United States mail, postage prepaid, addressed to the
22 recipient.
23 I I (C)A notice delivered by an overnight commercial courier service is effective one
24 County business day after deposit with the overnight commercial courier service,
25 delivery fees prepaid, with delivery instructions given for next day delivery, addressed to
26 the recipient.
27 (D)A notice delivered by PDF document attached to an email is effective when
28 transmission to the recipient is completed (but, if such transmission is completed outside
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1 of County business hours, then such delivery is deemed to be effective at the next
2 beginning of a County business day), provided that the sender maintains a machine
3 record of the completed transmission.
4 5.4 Claims Presentation. For all claims arising from or related to this Agreement,
5 nothing in this Agreement establishes, waives, or modifies any claims presentation
6 requirements or procedures provided by law, including the Government Claims Act (Division 3.6
7 of Title 1 of the Government Code, beginning with section 810).
8 Article 6
9 Termination and Suspension
10 6.1 Termination for Non-Allocation of Funds. The terms of this Agreement are
11 contingent on the approval of funds by the appropriating government agency. If sufficient funds
12 are not allocated, then the County, upon at least 30 days' advance written notice to the
13 Consultant, may:
14 (A) Modify the services provided by the Consultant under this Agreement; or
15 (B) Terminate this Agreement.
16 6.2 Termination for Breach.
17 (A) Upon determining that a breach (as defined in paragraph (C) below) has
18 occurred, the County may give written notice of the breach to the Consultant. The written
19 notice may suspend performance under this Agreement, and must provide at least 30
20 days for the Consultant to cure the breach.
21 (B) If the Consultant fails to cure the breach to the County's satisfaction within the
22 time stated in the written notice, the County may terminate this Agreement immediately.
23 (C) For purposes of this section, a breach occurs when, in the determination of the
24 County, the Consultant has:
25 (1) Obtained or used funds illegally or improperly;
26 (2) Failed to comply with any part of this Agreement;
27 (3) Submitted a substantially incorrect or incomplete report to the County; or
28 (4) Improperly performed any of its obligations under this Agreement.
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1 6.3 Termination without Cause. In circumstances other than those set forth above, the
2 County may terminate this Agreement by giving at least 30 days advance written notice to the
3 Consultant.
4 6.4 No Penalty or Further Obligation. Any termination of this Agreement by the County
5 under this Article 6 is without penalty to or further obligation of the County.
6 6.5 County's Rights upon Termination. Upon termination for breach under this Article
7 6, the County may demand repayment by the Consultant of any monies disbursed to the
8 Consultant under this Agreement that, in the County's sole judgment, were not expended in
9 compliance with this Agreement. The Consultant shall promptly refund all such monies upon
10 demand. This section survives the termination of this Agreement.
11 Article 7
12 Independent Consultant
13 7.1 Status. In performing under this Agreement, the Consultant, including its officers,
14 agents, employees, and volunteers, is at all times acting and performing as an independent
15 Consultant, in an independent capacity, and not as an officer, agent, servant, employee,joint
16 venturer, partner, or associate of the County_
17 7.2 Verifying Performance. The County has no right to control, supervise, or direct the
18 manner or method of the Consultant's performance under this Agreement, but the County may
19 verify that the Consultant is performing according to the terms of this Agreement.
20 7.3 Benefits. Because of its status as an independent Consultant, the Consultant has no
21 right to employment rights or benefits available to County employees. The Consultant is solely
22 responsible for providing to its own employees all employee benefits required by law. The
23 Consultant shall save the County harmless from all matters relating to the payment of
24 Consultant's employees, including compliance with Social Security withholding and all related
25 regulations.
26 7.4 Services to Others. The parties acknowledge that, during the term of this
27 Agreement, the Consultant may provide services to others unrelated to the County.
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1 Article 8
2 Indemnity and Defense
3 8.1 Indemnity. The Consultant shall indemnify and hold harmless and defend the
4 County (including its officers, agents, employees, and volunteers) against all claims, demands,
5 injuries, damages, costs, expenses (including attorney fees and costs), fines, penalties, and
6 liabilities of any kind to the County, the Consultant, or any third party that arise from or relate to
7 the performance or failure to perform by the Consultant (or any of its officers, agents,
8 subconsultants, or employees) under this Agreement. The County may conduct or participate in
9 its own defense without affecting the Consultant's obligation to indemnify and hold harmless or
10 defend the County.
11 8.2 Survival. This Article 8 survives the termination of this Agreement.
12 Article 9
13 Insurance
14 9.1 The Consultant shall comply with all the insurance requirements in Exhibit D to this
15 Agreement.
16 Article 10
17 Inspections, Audits, and Public Records
18 10.1 Inspection of Documents. The Consultant shall make available to the County, and
19 the County may examine at any time during business hours and as often as the County deems
20 necessary, all of the Consultant's records and data with respect to the matters covered by this
21 Agreement, excluding attorney-client privileged communications. The Consultant shall, upon
22 request by the County, permit the County to audit and inspect all of such records and data to
23 ensure the Consultant's compliance with the terms of this Agreement.
24 10.2 State Audit Requirements. If the compensation to be paid by the County under this
25 Agreement exceeds $10,000, the Consultant is subject to the examination and audit of the
26 California State Auditor, as provided in Government Code section 8546.7, for a period of three
27 years after final payment under this Agreement. This section survives the termination of this
28 Agreement.
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1 10.3 Public Records. The County is not limited in any manner with respect to its public
2 disclosure of this Agreement or any record or data that the Consultant may provide to the
3 County. The County's public disclosure of this Agreement or any record or data that the
4 Consultant may provide to the County may include but is not limited to the following:
5 (A) The County may voluntarily, or upon request by any member of the public or
6 governmental agency, disclose this Agreement to the public or such governmental
7 agency.
8 (B) The County may voluntarily, or upon request by any member of the public or
9 governmental agency, disclose to the public or such governmental agency any record or
10 data that the Consultant may provide to the County, unless such disclosure is prohibited
11 by court order.
12 (C)This Agreement, and any record or data that the Consultant may provide to the
13 County, is subject to public disclosure under the Ralph M. Brown Act (California
14 Government Code, Title 5, Division 2, Part 1, Chapter 9, beginning with section 54950).
15 (D)This Agreement, and any record or data that the Consultant may provide to the
16 County, is subject to public disclosure as a public record under the California Public
17 Records Act (California Government Code, Title 1, Division 7, Chapter 3.5, beginning
18 with section 6250) ("CPRA").
19 (E) This Agreement, and any record or data that the Consultant may provide to the
20 County, is subject to public disclosure as information concerning the conduct of the
21 people's business of the State of California under California Constitution, Article 1,
22 section 3, subdivision (b).
23 (F) Any marking of confidentiality or restricted access upon or otherwise made with
24 respect to any record or data that the Consultant may provide to the County shall be
25 disregarded and have no effect on the County's right or duty to disclose to the public or
26 governmental agency any such record or data.
27 10.4 Public Records Act Requests. If the County receives a written or oral request
28 under the CPRA to publicly disclose any record that is in the Consultant's possession or control,
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1 and which the County has a right, under any provision of this Agreement or applicable law, to
2 possess or control, then the County may demand, in writing, that the Consultant deliver to the
3 County, for purposes of public disclosure, the requested records that may be in the possession
4 or control of the Consultant. Within five business days after the County's demand, the
5 Consultant shall (a) deliver to the County all of the requested records that are in the
6 Consultant's possession or control, together with a written statement that the Consultant, after
7 conducting a diligent search, has produced all requested records that are in the Consultant's
8 possession or control, or (b) provide to the County a written statement that the Consultant, after
9 conducting a diligent search, does not possess or control any of the requested records. The
10 Consultant shall cooperate with the County with respect to any County demand for such
11 records. If the Consultant wishes to assert that any specific record or data is exempt from
12 disclosure under the CPRA or other applicable law, it must deliver the record or data to the
13 County and assert the exemption by citation to specific legal authority within the written
14 statement that it provides to the County under this section. The Consultant's assertion of any
15 exemption from disclosure is not binding on the County, but the County will give at least 10
16 days' advance written notice to the Consultant before disclosing any record subject to the
17 Consultant's assertion of exemption from disclosure. The Consultant shall indemnify the County
18 for any court-ordered award of costs or attorney's fees under the CPRA that results from the
19 Consultant's delay, claim of exemption, failure to produce any such records, or failure to
20 cooperate with the County with respect to any County demand for any such records.
21 Article 11
22 Disclosure of Self-Dealing Transactions
23 11.1 Applicability. This Article 11 applies if the Consultant is operating as a corporation,
24 or changes its status to operate as a corporation.
25 11.2 Duty to Disclose. If any member of the Consultant's board of directors is party to a
26 self-dealing transaction, he or she shall disclose the transaction by completing and signing a
27 "Self-Dealing Transaction Disclosure Form" (Exhibit C to this Agreement) and submitting it to
28 the County before commencing the transaction or immediately after.
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1 11.3 Definition. "Self-dealing transaction" means a transaction to which the Consultant is
2 a party and in which one or more of its directors, as an individual, has a material financial
3 interest.
4 Article 12
5 General Terms
6 12.1 Modification. Except as provided in Article 6, "Termination and Suspension,"this
7 Agreement may not be modified, and no waiver is effective, except by written agreement signed
8 by both parties. The Consultant acknowledges that County employees have no authority to
9 modify this Agreement except as expressly provided in this Agreement.
10 12.2 Non-Assignment. Neither party may assign its rights or delegate its obligations
11 under this Agreement without the prior written consent of the other party.
12 12.3 Governing Law. The laws of the State of California govern all matters arising from
13 or related to this Agreement.
14 12.4 Jurisdiction and Venue. This Agreement is signed and performed in Fresno
15 County, California. Consultant consents to California jurisdiction for actions arising from or
16 related to this Agreement, and, subject to the Government Claims Act, all such actions must be
17 brought and maintained in Fresno County.
18 12.5 Construction. The final form of this Agreement is the result of the parties' combined
19 efforts. If anything in this Agreement is found by a court of competent jurisdiction to be
20 ambiguous, that ambiguity shall not be resolved by construing the terms of this Agreement
21 against either party.
22 12.6 Days. Unless otherwise specified, "days" means calendar days.
23 12.7 Headings. The headings and section titles in this Agreement are for convenience
24 only and are not part of this Agreement.
25 12.8 Severability. If anything in this Agreement is found by a court of competent
26 jurisdiction to be unlawful or otherwise unenforceable, the balance of this Agreement remains in
27 effect, and the parties shall make best efforts to replace the unlawful or unenforceable part of
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1 this Agreement with lawful and enforceable terms intended to accomplish the parties' original
2 intent.
3 12.9 Nondiscrimination. During the performance of this Agreement, the Consultant shall
4 not unlawfully discriminate against any employee or applicant for employment, or recipient of
5 services, because of race, religious creed, color, national origin, ancestry, physical disability,
6 mental disability, medical condition, genetic information, marital status, sex, gender, gender
7 identity, gender expression, age, sexual orientation, military status or veteran status pursuant to
8 all applicable State of California and federal statutes and regulation.
9 12.10 No Waiver. Payment, waiver, or discharge by the County of any liability or obligation
10 of the Consultant under this Agreement on any one or more occasions is not a waiver of
11 performance of any continuing or other obligation of the Consultant and does not prohibit
12 enforcement by the County of any obligation on any other occasion.
13 12.11 Entire Agreement. This Agreement, including its exhibits, is the entire agreement
14 between the Consultant and the County with respect to the subject matter of this Agreement,
15 and it supersedes all previous negotiations, proposals, commitments, writings, advertisements,
16 publications, and understandings of any nature unless those things are expressly included in
17 this Agreement. If there is any inconsistency between the terms of this Agreement without its
18 exhibits and the terms of the exhibits, then the inconsistency will be resolved by giving
19 precedence first to the terms of this Agreement without its exhibits, and then to the terms of the
20 exhibits.
21 12.12 No Third-Party Beneficiaries. This Agreement does not and is not intended to
22 create any rights or obligations for any person or entity except for the parties.
23 12.13 Authorized Signature. The Consultant represents and warrants to the County that:
24 (A) The Consultant is duly authorized and empowered to sign and perform its
25 obligations under this Agreement.
26 (B) The individual signing this Agreement on behalf of the Consultant is duly
27 authorized to do so and his or her signature on this Agreement legally binds the
28 Consultant to the terms of this Agreement.
11
II
1 12.14 Electronic Signatures. The parties agree that this Agreement may be executed by
2 electronic signature as provided in this section.
3 (A) An "electronic signature" means any symbol or process intended by an individual
4 signing this Agreement to represent their signature, including but not limited to (1) a
5 digital signature; (2) a faxed version of an original handwritten signature; or(3) an
6 electronically scanned and transmitted (for example by PDF document) version of an
7 original handwritten signature.
8 (B) Each electronic signature affixed or attached to this Agreement(1) is deemed
9 equivalent to a valid original handwritten signature of the person signing this Agreement
10 for all purposes, including but not limited to evidentiary proof in any administrative or
11 judicial proceeding, and (2) has the same force and effect as the valid original
12 handwritten signature of that person.
13 (C)The provisions of this section satisfy the requirements of Civil Code section
14 1633.5, subdivision (b), in the Uniform Electronic Transaction Act (Civil Code, Division 3,
15 Part 2, Title 2.5, beginning with section 1633.1).
16 (D) Each party using a digital signature represents that it has undertaken and
17 satisfied the requirements of Government Code section 16.5, subdivision (a),
18 paragraphs (1) through (5), and agrees that each other party may rely upon that
19 representation.
20 (E) This Agreement is not conditioned upon the parties conducting the transactions
21 under it by electronic means and either party may sign this Agreement with an original
22 handwritten signature.
23 12.15 Counterparts. This Agreement may be signed in counterparts, each of which is an
24 original, and all of which together constitute this Agreement.
25 [SIGNATURE PAGE FOLLOWS]
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1 The parties are signing this Agreement on the date stated in the introductory clause.
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MSW Consultants, Inc COUNTY OF FRESNO
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4 !�%Gt'J.f�l�/,t i tam
n-i-J o,—lSrp 23,2022 11:10 PDT) t+�•
5 David Davis, President Brian Pacheco, Chairman of the Board of
6 41760 Ivy St., Suite 203 Supervisors of the County of Fresno
Murrieta, CA 92562 Attest:
7 Bernice E. Seidel
Clerk of the Board of Supervisors
8 County of Fresno, State of California
9
By:
10 Deputy
11 For accounting use only:
12 Org No.: 9015
Account No.: 7295
13 Fund No.: 0701
Subclass No.: 15001
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Exhibit A
1 Scope of Services
2 Consultant shall provide an internet/cloud-based software program that is capable of
3 collecting and tracking data required by SB 1383. The software program will consist of a single
4 license granted to the County with unlimited users.
5 The software program shall be capable of allowing County and haulers to be able to
6 input, but not be limited to, the following data: customer information, route inspection data,
7 photo/document uploads, edible food generator inspections, production of violation letters or
8 educational material, and other pertinent information for SB 1383 reporting. Data must be
9 secure with County having administrative rights to the information.
10 The County must have the ability to easily run several reports, and each report must
11 have all data required by CalRecycle's Electronic Annual Report. The system must be flexible to
12 meet the changing requirements of the state.
13 Consultant shall provide all necessary staff training and assistance for the use of the
14 software program. County and haulers shall have access to ongoing technical support and
15 maintenance, as needed.
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A-1
Exhibit B
1 Compensation
2 The Consultant will be compensated for performance of its services under this
3 Agreement as provided in this Exhibit B. The Consultant is not entitled to any compensation
4 except as expressly provided in this Exhibit B.
5 Fixed pricing for the full term of the Agreement.
6 Task Cost
7 Software and Setup (including subscription and licensing) $79,800.00
Training $7,000.00
8 Technical Support $7,000.00
9 3 Year Contract Total $93,800.00
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Task Cost
11 Software and Setup (including subscription and licensing) $29,200.00
12 Training $1,100.00
Technical Support, $1,100.00
13 Year 4 Totall $31,400.00
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15 Task Cost
Software and Setup(including subscription and licensing) $32,280.00
16 Training $1,100.00
17 Technical Support $1,100.00
Year 5 Total $34,480.00
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B-1
Exhibit C
Self-Dealing Transaction Disclosure Form
In order to conduct business with the County of Fresno ("County"), members of a
Consultant's board of directors ("County Consultant"), 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 used 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.
The form must be signed by the board member that is involved in the self-dealing
transaction described in Sections (3) and (4).
C-1
Exhibit C
(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:
C-2
Exhibit D
Insurance Requirements
1. Required Policies
Without limiting the County's right to obtain indemnification from the Consultant or any third
parties, Consultant, at its sole expense, shall maintain in full force and effect the following
insurance policies throughout the term of this Agreement.
(A) Commercial General Liability. Commercial general liability insurance with limits of not
less than Two Million Dollars ($2,000,000) per occurrence and an annual aggregate of
Four Million Dollars ($4,000,000). This policy must be issued on a per occurrence basis.
Coverage must include products, completed operations, property damage, bodily injury,
personal injury, and advertising injury. The Consultant shall obtain an endorsement to
this policy naming the County of Fresno, its officers, agents, employees, and volunteers,
individually and collectively, as additional insureds, but only insofar as the operations
under this Agreement are concerned. Such coverage for additional insureds will apply as
primary insurance and any other insurance, or self-insurance, maintained by the County
is excess only and not contributing with insurance provided under the Consultant's
policy.
(B) Automobile Liability.Automobile liability insurance with limits of not less than One
Million Dollars ($1,000,000) per occurrence for bodily injury and for property damages.
Coverage must include any auto used in connection with this Agreement.
(C)Workers Compensation. Workers compensation insurance as required by the laws of
the State of California with statutory limits.
(D) Employer's Liability. Employer's liability insurance with limits of not less than One
Million Dollars ($1,000,000) per occurrence for bodily injury and for disease.
(E) Professional Liability. Professional liability insurance with limits of not less than One
Million Dollars ($1,000,000) per occurrence and an annual aggregate of Three Million
Dollars ($3,000,000). If this is a claims-made policy, then (1)the retroactive date must
be prior to the date on which services began under this Agreement; (2)the Consultant
shall maintain the policy and provide to the County annual evidence of insurance for not
less than five years after completion of services under this Agreement; and (3) if the
policy is canceled or not renewed, and not replaced with another claims-made policy
with a retroactive date prior to the date on which services begin under this Agreement,
then the Consultant shall purchase extended reporting coverage on its claims-made
policy for a minimum of five years after completion of services under this Agreement.
2. Additional Requirements
(A) Verification of Coverage. Within 30 days after the Consultant signs this Agreement,
and at any time during the term of this Agreement as requested by the County's Risk
Manager or the County Administrative Office, the Consultant shall deliver, or cause its
broker or producer to deliver, to the County Risk Manager, at 2220 Tulare Street, 16th
Floor, Fresno, California 93721, or HRRiskManagement@fresnocountyca.gov, and by
mail or email to the person identified to receive notices under this Agreement,
D-1
Exhibit D
certificates of insurance and endorsements for all of the coverages required under this
Agreement.
(i) Each insurance certificate must state that: (1) the insurance coverage has been
obtained and is in full force; (2) the County, its officers, agents, employees, and
volunteers are not responsible for any premiums on the policy; and (3) the
Consultant has waived its right to recover from the County, its officers, agents,
employees, and volunteers any amounts paid under any insurance policy
required by this Agreement and that waiver does not invalidate the insurance
policy.
(ii) The commercial general liability insurance certificate must also state, and include
an endorsement, that the County of Fresno, its officers, agents, employees, and
volunteers, individually and collectively, are additional insureds insofar as the
operations under this Agreement are concerned. The commercial general liability
insurance certificate must also state that the coverage shall apply as primary
insurance and any other insurance, or self-insurance, maintained by the County
shall be excess only and not contributing with insurance provided under the
Consultant's policy.
(iii) The automobile liability insurance certificate must state that the policy covers any
auto used in connection with this Agreement.
(iv) The professional liability insurance certificate, if it is a claims-made policy, must
also state the retroactive date of the policy, which must be prior to the date on
which services began under this Agreement.
(B) Acceptability of Insurers. All insurance policies required under this Agreement must be
issued by admitted insurers licensed to do business in the State of California and
possessing at all times during the term of this Agreement an A.M. Best, Inc. rating of no
less than A: VI I.
(C) Notice of Cancellation or Change. For each insurance policy required under this
Agreement, the Consultant shall provide to the County, or ensure that the policy requires
the insurer to provide to the County, written notice of any cancellation or change in the
policy as required in this paragraph. For cancellation of the policy for nonpayment of
premium, the Consultant shall, or shall cause the insurer to, provide written notice to the
County not less than 10 days in advance of cancellation. For cancellation of the policy
for any other reason, and for any other change to the policy, the Consultant shall, or
shall cause the insurer to, provide written notice to the County not less than 30 days in
advance of cancellation or change. The County in its sole discretion may determine that
the failure of the Consultant or its insurer to timely provide a written notice required by
this paragraph is a breach of this Agreement.
(D) County's Entitlement to Greater Coverage. If the Consultant has or obtains insurance
with broader coverage, higher limits, or both, than what is required under this
Agreement, then the County requires and is entitled to the broader coverage, higher
limits, or both. To that end, the Consultant shall deliver, or cause its broker or producer
to deliver, to the County's Risk Manager certificates of insurance and endorsements for
D-2
Exhibit D
all of the coverages that have such broader coverage, higher limits, or both, as required
under this Agreement.
(E) Waiver of Subrogation. The Consultant waives any right to recover from the County, its
officers, agents, employees, and volunteers any amounts paid under the policy of
worker's compensation insurance required by this Agreement. The Consultant is solely
responsible to obtain any policy endorsement that may be necessary to accomplish that
waiver, but the Consultant's waiver of subrogation under this paragraph is effective
whether or not the Consultant obtains such an endorsement.
(F) County's Remedy for Consultant's Failure to Maintain. If the Consultant fails to keep
in effect at all times any insurance coverage required under this Agreement, the County
may, in addition to any other remedies it may have, suspend or terminate this
Agreement upon the occurrence of that failure, or purchase such insurance coverage,
and charge the cost of that coverage to the Consultant. The County may offset such
charges against any amounts owed by the County to the Consultant under this
Agreement.
(G)Subcontractors. The Consultant shall require and verify that all subcontractors used by
the Consultant to provide services under this Agreement maintain insurance meeting all
insurance requirements provided in this Agreement. This paragraph does not authorize
the Consultant to provide services under this Agreement using subcontractors.
D-3
Exhibit E
1 "Data Security"
2 A. Definitions.
3 Capitalized terms used in this Exhibit E have the meanings set forth in this section A.
4 "Authorized Employees" means CONSULTANT's employees who have access to Personal
5 Information.
6 "Authorized Persons" means: (i) any and all Authorized Employees; and (ii) any and all of
7 CONSULTANT's subcontractors, representatives, agents, outsourcers, and consultants, and providers
8 of professional services to CONSULTANT, who have access to Personal Information and are bound by
9 law or in writing by confidentiality obligations sufficient to protect Personal Information in accordance
10 I I with the terms of this Exhibit E.
11 "Director" means COUNTY's Director of Internal Services-Chief Information Officer or his or her
12 designee.
13 "Disclose" or any derivative of that word means to disclose, release, transfer, disseminate, or
14 otherwise provide access to or communicate all or any part of any Personal Information orally, in writing,
15 or by electronic or any other means to any person.
16 "Person" means any natural person, corporation, partnership, limited liability company, firm, or
17 association.
18 "Personal Information" means any and all information, including any data, provided, or to
19 which access is provided, to CONSULTANT by or upon the authorization of COUNTY, under this
20 Agreement, including but not limited to vital records, that: (i) identifies, describes, or relates to, or is
21 associated with, or is capable of being used to identify, describe, or relate to, or associate with, a person
22 (including, without limitation, names, physical descriptions, signatures, addresses, telephone numbers,
23 e-mail addresses, education, financial matters, employment history, and other unique identifiers, as well
24 as statements made by or attributable to the person); (ii) is used or is capable of being used to
25 authenticate a person (including, without limitation, employee identification numbers, government-issued
26 identification numbers, passwords or personal identification numbers (PINs), financial account numbers,
27 credit report information, answers to security questions, and other personal identifiers); or is personal
28 information within the meaning of California Civil Code section 1798.3, subdivision (a), or 1798.80,
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i
Exhibit E
1 subdivision (e). Personal Information does not include publicly available information that is lawfully made
2 available to the general public from federal, state, or local government records.
3 "Privacy Practices Complaint" means a complaint received by COUNTY relating to
4 CONSULTANT's (or any Authorized Person's) privacy practices, or alleging a Security Breach. Such
5 complaint shall have sufficient detail to enable CONSULTANT to promptly investigate and take remedial
6 action under this Exhibit E.
7 "Security Safeguards" means physical, technical, administrative or organizational security
8 procedures and practices put in place by CONSULTANT (or any Authorized Persons) that relate to the
9 protection of the security, confidentiality, value, or integrity of Personal Information_ Security Safeguards
10 shall satisfy the minimal requirements set forth in subsection C.(5) of this Exhibit E.
11 "Security Breach" means (i) any act or omission that compromises either the security,
12 confidentiality, value, or integrity of any Personal Information or the Security Safeguards, or(ii) any
13 unauthorized Use, Disclosure, or modification of, or any loss or destruction of, or any corruption of or
14 damage to, any Personal Information.
15 "Use" or any derivative thereof means to receive, acquire, collect, apply, manipulate, employ,
16 process, transmit, disseminate, access, store, disclose, or dispose of Personal Information.
17 B. Standard of Care.
18 (1) CONSULTANT acknowledges that, in the course of its engagement by COUNTY under this
19 Agreement, CONSULTANT, or any Authorized Persons, may Use Personal Information only as
20 permitted in this Agreement.
21 (2) CONSULTANT acknowledges that Personal Information is deemed to be confidential
22 information of, or owned by, COUNTY (or persons from whom COUNTY receives or has received
23 Personal Information) and is not confidential information of, or owned or by, CONSULTANT, or any
24 I I Authorized Persons. CONSULTANT further acknowledges that all right, title, and interest in or to the
25 Personal Information remains in COUNTY (or persons from whom COUNTY receives or has received
26 Personal Information) regardless of CONSULTANT's, or any Authorized Person's, Use of that Personal
27 Information.
28 (3) CONSULTANT agrees and covenants in favor of COUNTY that CONSULTANT shall: (i) keep
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Exhibit E
1 and maintain all Personal Information in strict confidence, using such degree of care under this
2 Subsection B as is reasonable and appropriate to avoid a Security Breach; (ii) Use Personal Information
3 exclusively for the purposes for which the Personal Information is made accessible to CONSULTANT
4 pursuant to the terms of this Exhibit E; (iii) not Use, Disclose, sell, rent, license, or otherwise make
5 available Personal Information for CONSULTANT's own purposes or for the benefit of anyone other
6 than COUNTY, without COUNTY's express prior written consent, which the COUNTY may give or
7 withhold in its sole and absolute discretion; and (iv) not, directly or indirectly, Disclose Personal
8 Information to any person (an "Unauthorized Third Party") other than Authorized Persons pursuant to
9 this Agreement, without the Director's and the Recorder's express prior written consent.
10 Notwithstanding the foregoing paragraph, in any case in which CONSULTANT believes it, or any
11 Authorized Person, is required to disclose Personal Information to government regulatory authorities, or
12 pursuant to a legal proceeding, or otherwise as may be required by applicable law, Consultant shall (a)
13 immediately notify COUNTY of the specific demand for, and legal authority for the disclosure, including
14 providing County with a copy of any notice, discovery demand, subpoena, or order, as applicable,
15 received by CONSULTANT, or any Authorized Person, from any government regulatory authorities, or in
16 relation to any legal proceeding, and (b) promptly notify COUNTY before such Personal Information is
17 offered by CONSULTANT for such disclosure so that COUNTY may have sufficient time to obtain a
18 court order or take any other action COUNTY may deem necessary to protect the Personal Information
19 from such disclosure, and CONSULTANT shall cooperate with COUNTY to minimize the scope of such
20 disclosure of such Personal Information.
21 CONSULTANT shall remain liable to COUNTY for the actions and omissions of any
22 Unauthorized Third Party concerning its Use of such Personal Information as if they were
23 CONSULTANT's own actions and omissions.
24 C. Information Security.
25 (1) CONSULTANT covenants, represents and warrants to COUNTY that Consultant's Use of
26 Personal Information under this Agreement does and shall at all times comply with all applicable federal,
27 state, and local, privacy and data protection laws, as well as all other applicable regulations and
28 directives, including but not limited to California Civil Code, Division 3, Part 4, Title 1.81 (beginning with
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Exhibit E
1 section 1798.80), and the Song-Beverly Credit Card Act of 1971 (California Civil Code, Division 3, Part
2 4, Title 1.3, beginning with section 1747). If CONSULTANT Uses credit, debit or other payment
3 cardholder information, CONSULTANT shall at all times remain in compliance with the Payment Card
4 Industry Data Security Standard ("PCI DSS") requirements, including remaining aware at all times of
5 changes to the PCI DSS and promptly implementing and maintaining all procedures and practices as
6 may be necessary to remain in compliance with the PCI DSS, in each case, at CONSULTANT's sole
7 cost and expense.
8 (2) CONSULTANT covenants, represents and warrants to COUNTY that, as of the Effective
9 Date, CONSULTANT has not received notice of any violation of any privacy or data protection laws, as
10 well as any other applicable regulations or directives, and is not the subject of any pending legal action
11 or investigation by, any government regulatory authority regarding same.
12 (3) Without limiting CONSULTANT's obligations under subsection C.(1) of this Exhibit E,
13 CONSULTANT's (or Authorized Person's) Security Safeguards shall be no less rigorous than accepted
14 industry practices and, at a minimum, include the following: (i) limiting Use of Personal Information
15 strictly to CONSULTANT's and Authorized Persons' technical and administrative personnel who are
16 necessary for the CONSULTANT's, or Authorized Persons', Use of the Personal Information pursuant to
17 this Agreement; (ii) ensuring that all of CONSULTANT's connectivity to County computing systems will
18 only be through security procedures approved upon the express prior written consent of the Director; (iii)
19 to the extent that they contain or provide access to Personal Information, (a) securing business facilities,
20 data centers, paper files, servers, back-up systems and computing equipment, operating systems, and
21 software applications, including, but not limited to, all mobile devices and other equipment, operating
22 systems, and software applications with information storage capability; (b) employing adequate controls
23 and data security measures, both internally and externally, to protect (1)the Personal Information from
24 potential loss or misappropriation, or unauthorized Use, and (2) the COUNTY's operations from
25 disruption and abuse; (c) having and maintaining network, device application, database and platform
26 security; (d) maintaining authentication and access controls within media, computing equipment,
27 operating systems, and software applications; and (e) installing and maintaining in all mobile, wireless,
28 or handheld devices a secure internet connection, having continuously updated anti-virus software
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Exhibit E
1 protection and a remote wipe feature always enabled, all of which is subject to express prior written
2 consent of the Director; (iv) encrypting all Personal Information at advance encryption standards of
3 Advanced Encryption Standards (AES) of 128 bit or higher(a) stored on any mobile devices, including
4 but not limited to hard disks, portable storage devices, or remote installation, or (b) transmitted over
5 public or wireless networks (the encrypted Personal Information must be subject to password or pass
6 phrase, and be stored on a secure server and transferred by means of a secure connection, all of which
7 is subject to express prior written consent of the Director); (v) strictly segregating Personal Information
8 from all other information of CONSULTANT, including any Authorized Person, or anyone with whom
9 CONSULTANT or any Authorized Person deals so that Personal Information is not commingled with any
10 other types of information; (vi) maintaining appropriate personnel security and integrity procedures and
11 practices, including, but not limited to, conducting background checks of Authorized Employees
12 consistent with applicable law; and (vii) providing appropriate privacy and information security training to
13 Authorized Employees.
14 (4) During the term of each Authorized Employee's employment by CONSULTANT,
15 CONSULTANT shall cause such Authorized Employees to abide strictly by CONSULTANT's obligations
16 under this Exhibit E. CONSULTANT further agrees that it shall maintain a disciplinary process to
17 address any unauthorized Use of Personal Information by any Authorized Employees.
18 (5) CONSULTANT shall, in a secure manner, backup daily, or more frequently if it is
19 CONSULTANT's practice to do so more frequently, Personal Information received from COUNTY.
20 COUNTY shall request a copy of this backup by submitting a request via Consultant support and
21 Consultant support will provide a file of COUNTY data within forty-eight(48) hours. Backups of the
22 application are performed by Microsoft via Microsoft Azure Services.
23 (6) CONSULTANT shall provide COUNTY with the name and contact information for each
24 Authorized Employee (including such Authorized Employee's work shift, and at least one alternate
25 Authorized Employee for each Authorized Employee during such work shift) who shall serve as
26 COUNTY's primary security contact with CONSULTANT and shall be available to assist COUNTY
27 twenty-four (24) hours per day, seven (7) days per week as a contact in resolving CONSULTANT's and
28 any Authorized Persons' obligations associated with a Security Breach or a Privacy Practices
E-5
ii
Exhibit E
1 Complaint.
D. Security Breach Procedures.
3 (1) Immediately upon CONSULTANT's awareness or reasonable belief of a Security Breach,
4 CONSULTANT shall (a) notify the Director of the Security Breach, such notice to be given first by
5 telephone at the following telephone number, followed promptly by email at the following email address:
6 (559) 600-6200/ematthews@fresnocountyca.gov (which telephone number and email address
7 COUNTY may update by providing notice to CONSULTANT), and (b) preserve all relevant evidence
8 (and cause any affected Authorized Person to preserve all relevant evidence) relating to the Security
9 Breach. The notification shall include, to the extent reasonably possible, the identification of each type
10 and the extent of Personal Information that has been, or is reasonably believed to have been, breached,
11 including but not limited to, compromised, or subjected to unauthorized Use, Disclosure, or modification,
12 or any loss or destruction, corruption, or damage_
13 (2) Immediately following CONSULTANT's notification to COUNTY of a Security Breach, as
14 provided pursuant to subsection D.(1) of this Exhibit E, the Parties shall coordinate with each other to
15 investigate the Security Breach. CONSULTANT agrees to fully cooperate with COUNTY, including,
16 without limitation: (i) assisting COUNTY in conducting any investigation; (ii) facilitating interviews with
17 Authorized Persons and any of CONSULTANT's other employees knowledgeable of the matter; and (iii)
18 making available all relevant records, logs, files, data reporting and other materials required to comply
19 with applicable law, regulation, industry standards, or as otherwise reasonably required by COUNTY.
20 (3) County shall promptly notify CONSULTANT of the Director's knowledge, or reasonable belief,
21 of any Privacy Practices Complaint, and upon CONSULTANT's receipt of notification thereof,
22 CONSULTANT shall promptly address such Privacy Practices Complaint, including taking any corrective
23 action under this Exhibit E, all at CONSULTANT's sole expense, in accordance with applicable privacy
24 rights, laws, regulations and standards. In the event CONSULTANT discovers a Security Breach,
25 CONSULTANT shall treat the Privacy Practices Complaint as a Security Breach. Within twenty-four(24)
26 hours of CONSULTANT's receipt of notification of such Privacy Practices Complaint, CONSULTANT
27 shall notify COUNTY whether the matter is a Security Breach, or otherwise has been corrected and the
28 manner of correction, or determined not to require corrective action and the reason therefor.
E-6
Exhibit E
1 (4) CONSULTANT agrees to cooperate, at its sole expense, with COUNTY in any litigation or
2 other action to protect COUNTY's rights relating to Personal Information, including the rights of persons
3 I I from whom COUNTY receives Personal Information.
4 E. Oversight of Security Compliance.
5 (1) CONSULTANT shall have and maintain a written information security policy that specifies
6 Security Safeguards appropriate to the size and complexity of CONSULTANT's operations and the
7 nature and scope of its activities.
8 (2) Upon COUNTY's written request, to confirm CONSULTANT's compliance with this Exhibit E,
9 as well as any applicable laws, regulations and industry standards, CONSULTANT grants COUNTY or,
10 upon COUNTY's election, a third party on COUNTY's behalf, permission to perform an assessment,
11 audit, examination or review of all controls in CONSULTANT's physical and technical environment in
12 relation to all Personal Information that is Used by CONSULTANT pursuant to this Agreement.
13 CONSULTANT shall fully cooperate with such assessment, audit or examination, as applicable, by
14 providing COUNTY or the third party on COUNTY's behalf, access to all Authorized Employees and
15 other knowledgeable personnel, physical premises, documentation, infrastructure and application
16 software that is Used by CONSULTANT for Personal Information pursuant to this Agreement. In
17 addition, CONSULTANT shall provide COUNTY with the results of any audit by or on behalf of
18 CONSULTANT that assesses the effectiveness of CONSULTANT's information security program as
19 relevant to the security and confidentiality of Personal Information Used by CONSULTANT or
20 I I Authorized Persons during the course of this Agreement under this Exhibit E.
21 (3) CONSULTANT shall ensure that all Authorized Persons who Use Personal Information agree
22 to the same restrictions and conditions in this Exhibit E that apply to CONSULTANT with respect to such
23 Personal Information by incorporating the relevant provisions of these provisions into a valid and binding
24 written agreement between CONSULTANT and such Authorized Persons, or amending any written
25 agreements to provide same.
26 F. Return or Destruction of Personal Information.
27 Upon the termination of this Agreement, CONSULTANT shall, and shall instruct all Authorized
28 Persons to, promptly return to COUNTY all Personal Information, whether in written, electronic or other
E-7
Exhibit E
1 form or media, in its possession or the possession of such Authorized Persons, in a machine readable
2 form used by COUNTY at the time of such return, or upon the express prior written consent of the
3 Recorder and the Director, securely destroy all such Personal Information, and certify in writing to the
4 COUNTY that such Personal Information have been returned to COUNTY or disposed of securely, as
5 applicable. If CONSULTANT is authorized to dispose of any such Personal Information, as provided in
6 this Exhibit E, such certification shall state the date, time, and manner(including standard) of disposal
7 and by whom, specifying the title of the individual. CONSULTANT shall comply with all reasonable
8 directions provided by the Recorder and the Director with respect to the return or disposal of Personal
9 Information and copies thereof. If return or disposal of such Personal Information or copies of Personal
10 Information is not feasible, CONSULTANT shall notify COUNTY according, specifying the reason, and
11 continue to extend the protections of this Exhibit E to all such Personal Information and copies of
12 Personal Information. CONSULTANT shall not retain any copy of any Personal Information after
13 returning or disposing of Personal Information as required by this section F. CONSULTANT's obligations
14 under this section F survive the termination of this Agreement and apply to all Personal Information that
15 CONSULTANT retains if return or disposal is not feasible and to all Personal Information that
16 CONSULTANT may later discover.
17 G. Equitable Relief.
18 CONSULTANT acknowledges that any breach of its covenants or obligations set forth in this
19 Exhibit E may cause COUNTY irreparable harm for which monetary damages would not be adequate
20 compensation and agrees that, in the event of such breach or threatened breach, COUNTY is entitled to
21 seek equitable relief, including a restraining order, injunctive relief, specific performance and any other
22 relief that may be available from any court, in addition to any other remedy to which COUNTY may be
23 entitled at law or in equity. Such remedies shall not be deemed to be exclusive but shall be in addition to
24 all other remedies available to COUNTY at law or in equity or under this Agreement.
25 H. Indemnification.
26 CONSULTANT shall defend, indemnify and hold harmless COUNTY, its officers, employees,
27 and agents, (each, a "COUNTY Indemnitee") from and against any and all infringement of intellectual
28 property including, but not limited to infringement of copyright, trademark, and trade dress, invasion of
E-8
Exhibit E
1 privacy, information theft, and extortion, unauthorized Use, Disclosure, or modification of, or any loss or
2 destruction of, or any corruption of or damage to, Personal Information, Security Breach response and
3 remedy costs, credit monitoring expenses, forfeitures, losses, damages, liabilities, deficiencies, actions,
4 judgments, interest, awards, fines and penalties (including regulatory fines and penalties), costs or
5 expenses of whatever kind, including attorneys'fees and costs, the cost of enforcing any right to
6 indemnification or defense under this Exhibit E and the cost of pursuing any insurance providers, arising
7 out of or resulting from any third party claim or action against any COUNTY Indemnitee in relation to
8 CONSULTANT's, its officers, employees, or agents, or any Authorized Employee's or Authorized
9 Person's, performance or failure to perform under this Exhibit E or arising out of or resulting from
10 CONSULTANT's failure to comply with any of its obligations under this section H, unless costs or
11 expenses are cause by the negligent or willful misconduct of COUNTY. The provisions of this section H
12 are cumulative to any other obligation of CONSULTANT to, defend, indemnify, or hold harmless any
13 COUNTY Indemnity under this Agreement. The provisions of this section H shall survive the termination
14 of this Agreement for a period of five (5) years.
15 I. Survival.
16 The respective rights and obligations of CONSULTANT and COUNTY as stated in this Exhibit E
17 shall survive the termination of this Agreement.
18 J. No Third Party Beneficiary. Nothing express or implied in the provisions of in this Exhibit E is
19 intended to confer, nor shall anything herein confer, upon any person other than COUNTY or
20 CONSULTANT and their respective successors or assignees, any rights, remedies, obligations or
21 liabilities whatsoever.
22 K. No County Warranty.
23 COUNTY does not make any warranty or representation whether any Personal Information in
24 CONSULTANT's (or any Authorized Person's) possession or control, or Use by CONSULTANT (or any
25 Authorized Person), pursuant to the terms of this Agreement is or will be secure from unauthorized Use,
26 or a Security Breach or Privacy Practices Complaint.
27
28
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