HomeMy WebLinkAboutAgreement A-23-238 with Penlink.pdf Agreement No. 23-238
1 SERVICE AGREEMENT
2 This Service Agreement ("Agreement") is dated June 6, 2023 ("Effective
3 Date") and is between Penlink, Ltd., a Nebraska corporation, whose principal address is 5944
4 Vandervoort Drive, Lincoln, Nebraska 68516 ("Contractor"), and the County of Fresno, a political
5 subdivision of the State of California ("County").
6 Recitals
7 A. County and Contractor entered into Agreement number M04-0000022229, dated
8 12/01/2022 (hereinafter"Purchasing Agreement"), pursuant to which Contractor agreed to
9 provide software licenses and forensic equipment to County.
10 B. The software licenses and forensic equipment are used by the County District Attorney
11 to load large quantities of data from an array of file types and sources, identify data links,
12 frequencies, timelines, and call associations using an array of charting tools, and collect
13 judicially-authorized pen register and Title III data and content in real-time for monitoring,
14 analysis, and reporting, in support of District Attorney's work as a member of the Multi-Agency
15 Gang Enforcement Consortium.
16 C. The Purchasing Agreement was a short-term agreement that expired on February 13,
17 2023, and the County would like to continue services with Contractor for support and
18 maintenance of the equipment and software.
19 D. The Fresno Police Department, through the Project Safe Neighborhood (PSN) Program
20 and the County Community Corrections Partnership (CCP) fully support the continued services
21 from Contractor for maintenance and support of the equipment and licenses and have provided
22 funding to continue the services.
23 E. County and Contractor now desire to enter into this Agreement so that Contractor may
24 continue to provide for maintenance and support for the current system.
25 The parties therefore agree as follows:
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1 Article 1
2 Contractor's Services
3 1.1 Scope of Services. The Contractor shall perform all of the services provided in
4 Exhibit A to this Agreement, titled "Scope of Services."
5 1.2 Representation. The Contractor represents that it is qualified, ready, willing, and
6 able to perform all of the services provided in this Agreement.
7 1.3 Compliance with Laws. The Contractor shall, at its own cost, comply with all
8 applicable federal, state, and local laws and regulations in the performance of its obligations
9 under this Agreement, including but not limited to workers compensation, labor, and
10 confidentiality laws and regulations.
11 Article 2
12 County's Responsibilities
13 2.1 The County shall assign a contract coordinator, which shall be specified in Exhibit D
14 ("Contract Coordinator"), which is attached and incorporated by this reference. The Contract
15 Coordinator shall be the Contractor's point of contact, and shall be responsible for
16 communicating the County's operational requirements to the Contractor.
17 Article 3
18 Compensation, Invoices, and Payments
19 3.1 The County agrees to pay, and the Contractor agrees to receive, compensation as
20 follows: The annual discounted rate for performance of the services is as follows: zero dollars
21 ($0) through December 31, 2023 (services included through purchase of the equipment), then
22 eighty-one thousand, one hundred sixty dollars and eighty-eight cents ($81,160.88) for each
23 following year of services through December 31, 2026. The total shall not exceed three
24 hundred twenty-four thousand, six hundred and forty-four dollars ($324,644) for the
25 performance of its services under this Agreement as described in this section. The
26 compensation for the entire possible term of this Agreement shall be paid in advance, in
27 accordance with Section 3.4, herein.
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1 3.2 Maximum Compensation. The maximum compensation payable to the Contractor
2 under this Agreement is three hundred twenty-four thousand, six hundred and forty-four dollars
3 ($324,644) for the entire term of the Agreement, including the one optional extension period.
4 The Contractor acknowledges that the County is a local government entity and does so with
5 notice that the County's powers are limited by the California Constitution and by State law, and
6 with notice that the Contractor may receive compensation under this Agreement only for
7 services performed according to the terms of this Agreement and while this Agreement is in
8 effect, and subject to the maximum amount payable under this section. The Contractor further
9 acknowledges that County employees have no authority to pay the Contractor except as
10 expressly provided in this Agreement.
11 3.3 Invoices. The Contractor shall submit one invoice to the Fresno County District
12 Attorney's Office Business Manager at 2100 Tulare Street, Fresno, CA 93721 or
13 DAB usinessOffice(a)fresnocountyca.gc for advance payment for the entire possible term of the
14 Agreement.
15 3.4 Payment. The County shall pay the correctly completed and timely submitted invoice
16 within 45 days after receipt. The County shall remit the payment to the Contractor's address
17 specified in the invoice.
18 3.5 Incidental Expenses. The Contractor is solely responsible for all of its costs and
19 expenses that are not specified as payable by the County under this Agreement.
20 Article 4
21 Term of Agreement
22 4.1 Term. This Agreement shall become effective on the Effective Date and shall
23 terminate on December 31, 2026, except as provided in section 4.2, "Extension," or Article 6,
24 "Termination and Suspension," below.
25 4.2 Extension. The term of this Agreement may be extended for no more than a one-
26 year period upon written approval of both parties at least 90 days before the first day of the one-
27 year extension period. The Fresno County District Attorney or his or her designee is authorized
28 to sign the written approval on behalf of the County based on the Contractor's satisfactory
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1 performance. The extension of this Agreement by the County is not a waiver or compromise of
2 any default or breach of this Agreement by the Contractor existing at the time of the extension
3 whether or not known to the County.
4 4.3 Refund. If County does not approve the extension of the Agreement, by not
5 providing written approval on behalf of the County of the one-year extension, or provides a
6 written notice of cancellation of the Agreement 90 days before the renewal date, Contractor
7 shall provide a refund for any prepaid service years or portions of prepaid service years that are
8 unused. Such refund shall be issued to County within forty-five days of the Agreement
9 termination date.
10 Article 5
11 Notices
12 5.1 Contact Information. The persons and their addresses having authority to give and
13 receive notices provided for or permitted under this Agreement include the following:
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For the County:
15 County of Fresno
District Attorney's Office
16 Attn: Business Manager
2100 Tulare Street
17 Fresno, CA 93721
DABusinessOffice@fresnocountyca.gov
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For the Contractor:
19 Penlink
John Spomer
20 5944 Vandervoort
Lincoln, Nebraska 68516
21 jspomer@penlink.com
(402) 421-8857
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5.2 Change of Contact Information. Either party may change the information in section
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5.1 by giving notice as provided in section 5.3.
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5.3 Method of Delivery. Each notice between the County and the Contractor provided
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for or permitted under this Agreement must be in writing, state that it is a notice provided under
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this Agreement, and be delivered either by personal service, by first-class United States mail, by
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an overnight commercial courier service, or by Portable Document Format (PDF) document
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attached to an email.
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1 (A) A notice delivered by personal service is effective upon service to the recipient.
2 (B) A notice delivered by first-class United States mail is effective three County
3 business days after deposit in the United States mail, postage prepaid, addressed to the
4 recipient.
5 (C)A notice delivered by an overnight commercial courier service is effective one
6 County business day after deposit with the overnight commercial courier service,
7 delivery fees prepaid, with delivery instructions given for next day delivery, addressed to
8 the recipient.
9 (D)A notice delivered by PDF document attached to an email is effective when
10 transmission to the recipient is completed (but, if such transmission is completed outside
11 of County business hours, then such delivery is deemed to be effective at the next
12 beginning of a County business day), provided that the sender maintains a machine
13 record of the completed transmission.
14 5.4 Claims Presentation. For all claims arising from or related to this Agreement,
15 nothing in this Agreement establishes, waives, or modifies any claims presentation
16 requirements or procedures provided by law, including the Government Claims Act (Division 3.6
17 of Title 1 of the Government Code, beginning with section 810).
18 Article 6
19 Termination and Suspension
20 6.1 Termination for Non-Allocation of Funds. The terms of this Agreement are
21 contingent on the approval of funds by the appropriating government agency. If sufficient funds
22 are not allocated, then the County, upon at least 30 days' advance written notice to the
23 Contractor, may:
24 (A) Modify the services provided by the Contractor under this Agreement; or
25 (B) Terminate this Agreement.
26 If County terminates for non-allocation of funds, Contractor shall provide a refund for any
27 prepaid service years or portions of prepaid service years that are unused. Such refund shall be
28 paid to County within 45 days of notice of non-allocation of funds.
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1 6.2 Termination for Breach.
2 (A) Upon determining that a breach (as defined in paragraph (C) below) has
3 occurred, the County may give written notice of the breach to the Contractor. The written
4 notice may suspend performance under this Agreement, and must provide at least 30
5 days for the Contractor to cure the breach.
6 (B) If the Contractor fails to cure the breach to the County's satisfaction within the
7 time stated in the written notice, the County may terminate this Agreement immediately.
8 (C) For purposes of this section, a breach occurs when, in the determination of the
9 County, the Contractor has:
10 (1) Obtained or used funds illegally or improperly;
11 (2) Failed to comply with any part of this Agreement;
12 (3) Submitted a substantially incorrect or incomplete report to the County; or
13 (4) Improperly performed any of its obligations under this Agreement.
14 6.3 Termination without Cause. In circumstances other than those set forth above, the
15 County may terminate this Agreement by giving at least 30 days advance written notice to the
16 Contractor.
17 6.4 No Penalty or Further Obligation. Any termination of this Agreement by the County
18 under this Article 6 is without penalty to or further obligation of the County.
19 6.5 County's Rights upon Termination. Upon termination for breach under this Article
20 6, the County may demand repayment by the Contractor of any monies disbursed to the
21 Contractor under this Agreement that, in the County's sole judgment, were not expended in
22 compliance with this Agreement. The Contractor shall promptly refund all such monies upon
23 demand. This section survives the termination of this Agreement.
24 Article 7
25 Independent Contractor
26 7.1 Status. In performing under this Agreement, the Contractor, including its officers,
27 agents, employees, and volunteers, is at all times acting and performing as an independent
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1 contractor, in an independent capacity, and not as an officer, agent, servant, employee, joint
2 venturer, partner, or associate of the County.
3 7.2 Verifying Performance. The County has no right to control, supervise, or direct the
4 manner or method of the Contractor's performance under this Agreement, but the County may
5 verify that the Contractor is performing according to the terms of this Agreement.
6 7.3 Benefits. Because of its status as an independent contractor, the Contractor has no
7 right to employment rights or benefits available to County employees. The Contractor is solely
8 responsible for providing to its own employees all employee benefits required by law. The
9 Contractor shall save the County harmless from all matters relating to the payment of
10 Contractor's employees, including compliance with Social Security withholding and all related
11 regulations.
12 7.4 Services to Others. The parties acknowledge that, during the term of this
13 Agreement, the Contractor may provide services to others unrelated to the County.
14 Article 8
15 Indemnity and Defense
16 8.1 Indemnity. The Contractor shall indemnify and hold harmless and defend the
17 County (including its officers, agents, employees, and volunteers) against all claims, demands,
18 injuries, damages, costs, expenses (including attorney fees and costs), fines, penalties, and
19 liabilities of any kind to the County, the Contractor, or any third party that arise from or relate to
20 the performance or failure to perform by the Contractor (or any of its officers, agents,
21 subcontractors, or employees) under this Agreement. The County may conduct or participate in
22 its own defense without affecting the Contractor's obligation to indemnify and hold harmless or
23 defend the County.
24 8.2 Survival. This Article 8 survives the termination or expiration of this Agreement.
25 Article 9
26 Insurance
27 9.1 The Contractor shall comply with all the insurance requirements in Exhibit C to this
28 Agreement.
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1 Article 10
2 Inspections, Audits, and Public Records
3 10.1 Inspection of Documents. The Contractor shall make available to the County, and
4 the County may examine at any time during business hours and as often as the County deems
5 necessary, all of the Contractor's records and data with respect to the matters covered by this
6 Agreement, excluding attorney-client privileged communications. The Contractor shall, upon
7 request by the County, permit the County to audit and inspect all of such records and data to
8 ensure the Contractor's compliance with the terms of this Agreement.
9 10.2 State Audit Requirements. If the compensation to be paid by the County under this
10 Agreement exceeds $10,000, the Contractor is subject to the examination and audit of the
11 California State Auditor, as provided in Government Code section 8546.7, for a period of three
12 years after final payment under this Agreement. This section survives the termination of this
13 Agreement.
14 10.3 Public Records. The County is not limited in any manner with respect to its public
15 disclosure of this Agreement or any record or data that the Contractor may provide to the
16 County. The County's public disclosure of this Agreement or any record or data that the
17 Contractor may provide to the County may include but is not limited to the following:
18 (A) The County may voluntarily, or upon request by any member of the public or
19 governmental agency, disclose this Agreement to the public or such governmental
20 agency.
21 (B) The County may voluntarily, or upon request by any member of the public or
22 governmental agency, disclose to the public or such governmental agency any record or
23 data that the Contractor may provide to the County, unless such disclosure is prohibited
24 by court order.
25 (C)This Agreement, and any record or data that the Contractor may provide to the
26 County, is subject to public disclosure under the Ralph M. Brown Act (California
27 Government Code, Title 5, Division 2, Part 1, Chapter 9, beginning with section 54950).
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1 (D) This Agreement, and any record or data that the Contractor may provide to the
2 County, is subject to public disclosure as a public record under the California Public
3 Records Act (California Government Code, Title 1, Division 7, Chapter 3.5, beginning
4 with section 6250) ("CPRA").
5 (E) This Agreement, and any record or data that the Contractor may provide to the
6 County, is subject to public disclosure as information concerning the conduct of the
7 people's business of the State of California under California Constitution, Article 1,
8 section 3, subdivision (b).
9 (F) Any marking of confidentiality or restricted access upon or otherwise made with
10 respect to any record or data that the Contractor may provide to the County shall be
11 disregarded and have no effect on the County's right or duty to disclose to the public or
12 governmental agency any such record or data.
13 10.4 Public Records Act Requests. If the County receives a written or oral request
14 under the CPRA to publicly disclose any record that is in the Contractor's possession or control,
15 and which the County has a right, under any provision of this Agreement or applicable law, to
16 possess or control, then the County may demand, in writing, that the Contractor deliver to the
17 County, for purposes of public disclosure, the requested records that may be in the possession
18 or control of the Contractor. Within five business days after the County's demand, the
19 Contractor shall (a) deliver to the County all of the requested records that are in the Contractor's
20 possession or control, together with a written statement that the Contractor, after conducting a
21 diligent search, has produced all requested records that are in the Contractor's possession or
22 control, or (b) provide to the County a written statement that the Contractor, after conducting a
23 diligent search, does not possess or control any of the requested records. The Contractor shall
24 cooperate with the County with respect to any County demand for such records. If the
25 Contractor wishes to assert that any specific record or data is exempt from disclosure under the
26 CPRA or other applicable law, it must deliver the record or data to the County and assert the
27 exemption by citation to specific legal authority within the written statement that it provides to
28 the County under this section. The Contractor's assertion of any exemption from disclosure is
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1 not binding on the County, but the County will give at least 10 days' advance written notice to
2 the Contractor before disclosing any record subject to the Contractor's assertion of exemption
3 from disclosure. The Contractor shall indemnify the County for any court-ordered award of costs
4 or attorney's fees under the CPRA that results from the Contractor's delay, claim of exemption,
5 failure to produce any such records, or failure to cooperate with the County with respect to any
6 County demand for any such records.
7 Article 11
8 Disclosure of Self-Dealing Transactions
9 11.1 Applicability. This Article 11 applies if the Contractor is operating as a corporation,
10 or changes its status to operate as a corporation.
11 11.2 Duty to Disclose. If any member of the Contractor's board of directors is party to a
12 self-dealing transaction, he or she shall disclose the transaction by completing and signing a
13 "Self-Dealing Transaction Disclosure Form" (Exhibit B to this Agreement) and submitting it to the
14 County before commencing the transaction or immediately after.
15 11.3 Definition. "Self-dealing transaction" means a transaction to which the Contractor is
16 a party and in which one or more of its directors, as an individual, has a material financial
17 interest.
18 Article 12
19 General Terms
20 12.1 Modification. Except as provided in Article 6, "Termination and Suspension," this
21 Agreement may not be modified, and no waiver is effective, except by written agreement signed
22 by both parties. The Contractor acknowledges that County employees have no authority to
23 modify this Agreement except as expressly provided in this Agreement.
24 12.2 Non-Assignment. Neither party may assign its rights or delegate its obligations
25 under this Agreement without the prior written consent of the other party.
26 12.3 Governing Law. The laws of the State of California govern all matters arising from
27 or related to this Agreement.
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1 12.4 Jurisdiction and Venue. This Agreement is signed and performed in Fresno
2 County, California. Contractor consents to California jurisdiction for actions arising from or
3 related to this Agreement, and, subject to the Government Claims Act, all such actions must be
4 brought and maintained in Fresno County.
5 12.5 Construction. The final form of this Agreement is the result of the parties' combined
6 efforts. If anything in this Agreement is found by a court of competent jurisdiction to be
7 ambiguous, that ambiguity shall not be resolved by construing the terms of this Agreement
8 against either party.
9 12.6 Days. Unless otherwise specified, "days" means calendar days.
10 12.7 Headings. The headings and section titles in this Agreement are for convenience
11 only and are not part of this Agreement.
12 12.8 Severability. If anything in this Agreement is found by a court of competent
13 jurisdiction to be unlawful or otherwise unenforceable, the balance of this Agreement remains in
14 effect, and the parties shall make best efforts to replace the unlawful or unenforceable part of
15 this Agreement with lawful and enforceable terms intended to accomplish the parties' original
16 intent.
17 12.9 Nondiscrimination. During the performance of this Agreement, the Contractor shall
18 not unlawfully discriminate against any employee or applicant for employment, or recipient of
19 services, because of race, religious creed, color, national origin, ancestry, physical disability,
20 mental disability, medical condition, genetic information, marital status, sex, gender, gender
21 identity, gender expression, age, sexual orientation, military status or veteran status pursuant to
22 all applicable State of California and federal statutes and regulation.
23 12.10 No Waiver. Payment, waiver, or discharge by the County of any liability or obligation
24 of the Contractor under this Agreement on any one or more occasions is not a waiver of
25 performance of any continuing or other obligation of the Contractor and does not prohibit
26 enforcement by the County of any obligation on any other occasion.
27 12.11 Entire Agreement. This Agreement, including its exhibits, is the entire agreement
28 between the Contractor and the County with respect to the subject matter of this Agreement,
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1 and it supersedes all previous negotiations, proposals, commitments, writings, advertisements,
2 publications, and understandings of any nature unless those things are expressly included in
3 this Agreement. If there is any inconsistency between the terms of this Agreement without its
4 exhibits and the terms of the exhibits, then the inconsistency will be resolved by giving
5 precedence first to the terms of this Agreement without its exhibits, and then to the terms of the
6 exhibits.
7 12.12 No Third-Party Beneficiaries. This Agreement does not and is not intended to
8 create any rights or obligations for any person or entity except for the parties.
9 12.13 Authorized Signature. The Contractor represents and warrants to the County that:
10 (A) The Contractor is duly authorized and empowered to sign and perform its
11 obligations under this Agreement.
12 (B) The individual signing this Agreement on behalf of the Contractor is duly
13 authorized to do so and his or her signature on this Agreement legally binds the
14 Contractor to the terms of this Agreement.
15 12.14 Electronic Signatures. The parties agree that this Agreement may be executed by
16 electronic signature as provided in this section.
17 (A) An "electronic signature" means any symbol or process intended by an individual
18 signing this Agreement to represent their signature, including but not limited to (1) a
19 digital signature; (2) a faxed version of an original handwritten signature; or (3) an
20 electronically scanned and transmitted (for example by PDF document) version of an
21 original handwritten signature.
22 (B) Each electronic signature affixed or attached to this Agreement (1) is deemed
23 equivalent to a valid original handwritten signature of the person signing this Agreement
24 for all purposes, including but not limited to evidentiary proof in any administrative or
25 judicial proceeding, and (2) has the same force and effect as the valid original
26 handwritten signature of that person.
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1 (C)The provisions of this section satisfy the requirements of Civil Code section
2 1633.5, subdivision (b), in the Uniform Electronic Transaction Act (Civil Code, Division 3,
3 Part 2, Title 2.5, beginning with section 1633.1).
4 (D) Each party using a digital signature represents that it has undertaken and
5 satisfied the requirements of Government Code section 16.5, subdivision (a),
6 paragraphs (1) through (5), and agrees that each other party may rely upon that
7 representation.
8 (E) This Agreement is not conditioned upon the parties conducting the transactions
9 under it by electronic means and either party may sign this Agreement with an original
10 handwritten signature.
11 12.15 Counterparts. This Agreement may be signed in counterparts, each of which is an
12 original, and all of which together constitute this Agreement.
13 [SIGNATURE PAGE FOLL0INS]
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1 The parties are signing this Agreement on the date stated in the introductory clause.
2 Contractor
COUNTY OF FRESNO
3
4 Pat Severson, Chief Financial Officer •-
5 5944 Vandervoort Dr. Sal ui toyoct�
airman of the Board of
Lincoln, Nebraska 68516 Su - ore County of Fresno
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Attest:
7 Bernice E. Seidel
Clerk of the Board of Supervisors
8 County of Fresno, State of California
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By: �•.
10 Deputy
11 For accounting use only:
12 Org No.: 2860
Account No.: 7308
13 Fund No.: 0001
Subclass No.: 10000
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Exhibit A
1 Scope of Services
2 Penlink shall provide PLX premium maintenance and support for software and
3 equipment purchased with Fresno County Purchase Order# M05-0000022229 that includes (5)
4 PLX Software Licenses, PLX Software License-Intercept Edition (IP) to be combined with
5 Intercept Edition (Telephone), Add-on: Pen-Proxy for PLX Software License-Intercept Edition
6 (Telephone) and (1) Specialty Product Equipment.
7 Premium Maintenance and support includes software updates, software upgrades, and
8 premium technical support. A software update is an enhancement including additions, changes,
9 and bug fixes to Penlink Software that is already in the applicable commercial market. Software
10 updates occur within the same major version number of an existing software.
11 A software upgrade is the replacement of an older major version of an existing Penlink
12 software product or products, with a newer major version of the Penlink software product or
13 products, to the extent required to maintain the same operational functionality that was
14 supported by Penlink software prior to the upgrade.
15 Premium Technical Support includes telephone-based Technical Support for Pen-Link
16 Software licensed by County. Premium technical support also includes assistance via email,
17 other automated processes, or its website from Monday through Friday, from 8:00 AM to 5:00
18 PM Central time, plus emergency after-hours support for live communication interception and
19 collection operations. Emergency After hours support can be accessed through telephone at
20 (402) 421-8857, extension 247, and is available from Monday through Friday from 5:01 PM —
21 7:59 AM Central time and all-day Saturday and Sunday, including holidays.
22 The first year of maintenance and support was included with the initial purchase of the
23 equipment and software. The first year of free maintenance and support ends on December 31,
24 2023. The paid initial term of maintenance and support under this agreement lasts from January
25 1, 2024 through December 31, 2026, with one optional one-year extension, which, if exercised,
26 will terminate December 31, 2027.
27 Penlink will provide a refund for any prepaid service years or portions of prepaid service
28 years that are unused if written notice of cancellation is given 90 days prior to the maintenance
A-1
Exhibit A
1 and support renewal date, or if the County terminates pursuant to Section 6.1 of the Agreement.
2 Such refund shall be issued to County within forty-five days of the Agreement termination date.
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A-2
Exhibit B
Self-Dealing Transaction Disclosure Form
In order to conduct business with the County of Fresno ("County"), members of a
contractor's board of directors ("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 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).
B-1
Exhibit 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:
B-2
Exhibit C
Insurance Requirements
1. Required Policies
Without limiting the County's right to obtain indemnification from the Contractor or any third
parties, Contractor, 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 Contractor 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 Contractor's
Technology Professional Liability (Errors and Omissions). Technology professional
liability (errors and omissions) insurance with limits of not less than Two Million Dollars
($2,000,000) per occurrence and in the aggregate. Coverage must encompass all of the
Contractor's obligations under this Agreement, including but not limited to claims
involving Cyber Risks.
2. Additional Requirements
(A) Verification of Coverage. Within 30 days after the Contractor 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 Contractor 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,
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
Contractor 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
C-1
Exhibit C
shall be excess only and not contributing with insurance provided under the
Contractor's policy.
(iii) The automobile liability insurance certificate must state that the policy covers any
auto used in connection with this Agreement.
(iv) The technology professional liability insurance certificate must also state that
coverage encompasses all of the Contractor's obligations under this Agreement,
including but not limited to claims involving Cyber Risks, as that term is defined in
this Agreement.
(v) The cyber liability insurance certificate must also state that it is endorsed, and
include an endorsement, to cover the full replacement value of damage to,
alteration of, loss of, or destruction of intangible property (including but not limited
to information or data) that is in the care, custody, or control of the Contractor.
(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 Contractor 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 Contractor 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 Contractor 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 Contractor 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 Contractor 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 Contractor shall deliver, or cause its broker or producer
to deliver, to the County's Risk Manager certificates of insurance and endorsements for
all of the coverages that have such broader coverage, higher limits, or both, as required
under this Agreement.
(E) Waiver of Subrogation. The Contractor 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 Contractor is solely
responsible to obtain any policy endorsement that may be necessary to accomplish that
waiver, but the Contractor's waiver of subrogation under this paragraph is effective
whether or not the Contractor obtains such an endorsement.
(F) County's Remedy for Contractor's Failure to Maintain. If the Contractor fails to keep
in effect at all times any insurance coverage required under this Agreement, the County
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Exhibit C
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 Contractor. The County may offset such
charges against any amounts owed by the County to the Contractor under this
Agreement.
(G)Subcontractors. The Contractor shall require and verify that all subcontractors used by
the Contractor to provide services under this Agreement maintain insurance meeting all
insurance requirements provided in this Agreement. This paragraph does not authorize
the Contractor to provide services under this Agreement using subcontractors.
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Exhibit D
CONTRACT COORDINATOR
Department Coordinator Address Phone
District Attorney Business Manager 2100 Tulare Street, Fresno, CA 93721 (559) 600-4430
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