HomeMy WebLinkAboutAgreement A-18-107 with DFM Associates Inc..pdf Agreement No. 18-107
1 TABLE OF CONTENTS
2 1. AGREEMENT OVERVIEW:........................................................................... ...5
3 2. DEFINITIONS: ......................................................................................................5
4
3. EIMS SOFTWARE LICENSE...............................................................................8
5
6 3.1. GRANT OF LICENSE: ................................................................. . ................8
7 3.2. SCOPE OF LICENSE: ......................................................................................8
8 3.3. SOFTWARE OWNERSHIP:.......................................... ................................8
9 4. CONFIDENTIAL INFORMATION:.....
10
5. OBLIGATIONS AND RESPONSIBILITIES OF THE COUNTY ..........................12
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12 5.1. ACCESS=TO FACILITIES ................................. ... . , • .12
13 5.2.-,OPERATING SYSTEM SOFTWARE ...............................................................12
14 5.3:=RESPONSjB.ILITY FOR COUNTY'S DATA ........ 13
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6. SOFTWARE MAINTENANCE AND SUPPORT ................................................13
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7. POST.
17 ..INSTALLATON SERVICES ....................................................................14
7.1 SOFTWARE RELEASES .................................................... . . .... .............14
18
19 7.2.1-TRAINING ....................................................................... ...............................14
20 7.3: LIMITATION ON DFM'S OBLIGATIONS ..................... .15.............................. ....
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8. WARRANTIES: ...;:.:..............7 ...................1,5
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8.1. LIMITED WARRANTY°- EIMS SOFTWARE ...................................................15P
' ' 8.2.WARRANTY LIMITATIONS - EIMS SOFTWARE
25 8.3:�DISCLAIMER OF WARRANTIES --EIMS SOFTWARE:..................................17
26 ; 8.4. LIMITATION ON LIABILITY AND REMEDY - EIMS SOFTWARE.'!.................17
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9.;COMPENSATION/INVOICING:........................................ . _ , . .18
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1 9.1. COMPENSATION: ...........................................................................................18
2 9.2. MAXIMUM AMOUNT PAYABLE 18
. ....................................................................
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9.3. INVOICING AND PAYMENT: ..........................................................................19
4
5 10. STATEMENT OF WORK:.................................................................................19
6 10.1. DELIVERABLES (COUNTY): ............................................................19
7 10.2. DELIVERABLES (DFM): ..................................................................19
8 11 INDEPENDENT CONTRACTOR 20
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12. MODIFICATION: ..............................................................................................20
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11 13. NON-ASSIGNMENT: ........................................................................................21
12 14. HOLD HARMLESS AND INDEMNIFICATION: .................................................21
13 15. INSURANCE 22
. ....................................................................................................
14
16. NOTICES:..........................................................................................................24
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17. GOVERNING LAW: ..........................................................................................24
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17 18. AUDITS AND INSPECTIONS: ..........................................................................24
18 19. SURVIVING PROVISIONS:...............................................................................25
19 20. FORCE MAJEURE 25
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21. TERM ................................................................................................................25
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22 22. TERMINATION: .................................................................................................25
23 22.1. NON-ALLOCATION OF FUNDS: ...................................................................26
24 22.2. BREACH OF CONTRACT:.............................................................................26
25 22.3. DEBILITATING EVENT..................................................................................26
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22.4. WITHOUT CAUSE .........................................................................................27
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28 22.5. OBLIGATIONS OF THE COUNTY AT TERMINATION OF AGREEMENT ...27
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1 22.6. CONDITIONS FOLLOWING TERMINATION ...............................................28
2 23. SOURCE CODE ESCROW..................................................................28
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24. ENTIRE AGREEMENT ....................................................................................29
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5 25. DISCLOSURE OF SELF-DEALING TRANSACTIONS ..............................29
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Agreement No. 18-107
1 AGREEMENT
2
3 THIS AGREEMENT is entered into as of this 1st day of April , 2018, by and between the
4 COUNTY OF FRESNO, a political subdivision of the State of California, (hereinafter referred to
5 as "COUNTY), and DFM ASSOCIATES, INCORPORATED, a California corporation, whose
6 address is 10 Chrysler, Irvine, California 92618-2008, (hereinafter referred to as "DFM").
7 WITNESSETH:
8 WHEREAS, DFM responded to the COUNTY'S Request for Proposal (RFP) No. 208-
9 3335 dated October 4, 2000 for the first Agreement, Agreement No. 02-046; and, ,
10
WHEREAS, DFM installed, and has.been providing the licensing and maintenance for
11
12
the Election Information Management System (EIMS) Software in accordance with Agreement
13 No. 02-046 dated February 5,2002, Agreement No. 08-133 dated March 25, 2008, and
14 Agreement No. 13436 dated April,1,'2013; and,
15 WHEREAS, the EIMS Software has been meeting the requirements of the COUNTY;
16
and,
17
18 WHEREAS, COUNTY and DFM desire to execute a new Agreement for the license, and
19 maintenance,of the EIMS Software; and,
20 WHEREAS, this,Agreement is entered into to document the parties',understanding and
21
agreement with:respect to the licensing and maintenance of the EIMS Software and the
22
respective rights and obligations between the COUNTY and DFM.
23
24 AGREEMENT
25 NOW,-7H ERE FORE, for and in consideration of the promises herein, and for other good
26 and valuable consideration, the parties agree that the following provisions shall apply to the
27
licensing, installation, training in use of, maintenance and support of the EIMS Software.
28
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1 1. AGREEMENT OVERVIEW:
2 This Agreement provides for the licensing, training in the use of, maintenance and
3
support of the EIMS Software, which are computer systems designed to automate the activities
4
5 of voter registration and election management by the COUNTY. The License(s) to use the
6 EIMS Software will be held by COUNTY. The COUNTY is responsible for operation of the
7 EIMS Software.
8 2. DEFINITIONS:
9
Business Impacting Failures: Any errors that, in the COUNTY Contract Administrator's sole
10
11 Judgment, result or will result in significant interruption of the COUNTY'S productivity or down
12 time.
13 Computer Hardware: Any computer, whether a main frame, mini-computer, personal
14 computer or file server, and related computer peripheral equipment and accessories.
15
16 Contract Deliverable: A Contract Deliverable ("CD") is a product and/or service in this
17 Agreement to be delivered to COUNTY by DFM and shall include installation, training, and
18 documentation as set forth in this Agreement and as necessary to constitute a testable
19 package and to permit COUNTY to adequately perform the acceptance process.
20
COUNTY Contract Administrator: The County Clerk/Registrar of Voters, or designee. The
21
22 COUNTY Contract Administrator is the sole representative of the COUNTY for the purposes of
23 this Agreement and shall have full authority to deal with DFM in any way and every regard
24 concerning this Agreement, with the exception of executing any amendments or modifications
25 to this Agreement.
26
County's Data: All data and information stored by it in any database in any format.
27
28
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1 Critical Software Error: Failure of the Software to perform a function defined by this
2 Agreement, which prevents the COUNTY from using the EIMS Software.
3
Critical Software Error Resolution Plan: DFM provided resolution for Critical Software
4
5 Error(s). This resolution may include a combination of software fixes, data file fix, or an
6 acceptable work-around procedure, such plan to include a mutually agreed-upon time frame.
7 EIMS®Software ("EIMS Software" or "EIMS" or "EIMS'or "Software"): The Election
8 Information Management System (EIMS) software, data conversion, installation and training.
9
License: The meaning assigned to the term "License" is as defined in Section 3 of this
10
11 Agreement and the rights and obligations which it creates under the laws of the United States
12 of America and the State of California including, without limitation, copyright and intellectual
13 property law.
14 Licensed Software: EIMS Software that DFM shall provide to the COUNTY under this
15
16 Agreement.
17 Maintenance: Program logic and documentation changes and improvements to correct known
18 defects and maintain the operational quality of the EIMS Software licensed to the COUNTY
19 under this Agreement.
20
Manuals: Any documents, reports, instructions or writings, and any annotations thereto, that
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22 explain or depict, generally or in detail, any aspect of any particular DFM Software, including
23 but not limited to , all procedures and workings thereof, and the Manuals may be on any format,
24 including hard copy, on disk or on CD-ROM or any other media.
25 New Releases: Any added functionality or changes to functionality of programs and materials
26
not included in the EIMS Software at the time of the execution of this Agreement.
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1 Operating System Software: The operating system software provided by a third party vendor
2 the Computer Hardware used by the County on which the Specified DFM Software will operate.
3
Product: Includes, without limitation, any piece or component of equipment, hardware,
4
5 firmware, middleware custom or commercial software, or internal components or subroutines
6 therein.
7 Program Corrections: Program Corrections are changes to the EIMS Software necessitated
8 by its failure to meet the System Requirements.
9
Software Enhancement: The addition of a new DFM Software Subsystem or the revision of
10
11 any existing Subsystem for any particular DFM Software.
12 Software Error: Failure of the Licensed Software to perform a function defined by this
13 Agreement, which can be reproduced or adequately defined.
14 Software Maintenance and Support: Software Maintenance and Support means all Software
15
16 Error correction and all upgrades and enhancements to the EIMS Software to be provided by
17 DFM to the COUNTY under this Agreement.
18 Software Release: The most recent revision of any particular DFM Software.
19 Software Use: Copying any portion of the Software from a storage unit or media into an
20
appropriate computer system and execution of the Software on said computer system.
21
22 Source Code: Original mnemonic or high-level statement version of a computer program
23 provided by DFM.
24 System Documentation: All user manuals, operator manuals, technical reference manuals,
25 reports, brochures, sample runs, specifications, and other materials relating to the Software and
26
Hardware provided by DFM, pursuant to this Agreement, which is necessary to enable the
27
28 COUNTY to operate and utilize the EIMS Software.
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1 System Requirements: The functional requirements the EIMS Software must meet as defined
2 in the System Documentation, the RFP, and all other requirements as stated in this Agreement.
3
Third Party Software: Any software, the rights of which are owned or held by a corporation or
4
5 entity other than DFM.
6 User Group: All California counties that utilize EIMS.
7 3. EIMS SOFTWARE LICENSE:
8 3.1. GRANT OF LICENSE:
9
DFM hereby grants to COUNTY a non-exclusive, non-transferable, license to use the
10
11 EIMS Software, subject to the terms and conditions set forth within this Agreement.
12 3.2. SCOPE OF LICENSE:
13 The EIMS Software is provided in object code format only. The COUNTY agrees not to
14 modify, reverse engineer, reconstitute, de-compile, and/or disassemble the EIMS Software. The
15
16 COUNTY expressly agrees that the license granted herein gives it no rights whatsoever to the
17 EIMS Software in source code format except as provided for in Section 23, Source Code
18 Escrow.
19 COUNTY may not copy the Licensed Software, except that COUNTY may make copies
20
of the Licensed Software for the sole purpose of backup and provided that COUNTY gives
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22 notice to DFM of the location of all if any, of such backup copies stored other than upon
23 COUNTY'S premises.
24 3.3. SOFTWARE OWNERSHIP:
25 The COUNTY agrees that DFM claims exclusive ownership of the EIMS Software and
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the COUNTY acquires neither ownership nor any other interest in the EIMS Software, except
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28 for the right to use and possess the EIMS Software in accordance with the terms and
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1 conditions of this Agreement. All rights to the EIMS Software not expressly granted to the
2 COUNTY are retained by DFM.
3
4. CONFIDENTIAL INFORMATION:
4
5 The COUNTY acknowledges DFM's representations and claims that the materials
6 provided under this Agreement, including, but not limited to the EIMS Software, Documentation,
7 and all subsequent updates, revisions, or work around, supplied by DFM are considered by
8 DFM to be confidential, proprietary, and trade secrets. The COUNTY also acknowledges
9
DFM'S further representation and claims that these materials contain commercial or financial
10
11 information or trade secrets of DFM, which DFM believes to be confidential and exempt from
12 disclosure to the public under the Freedom of Information Act, 5 U.S.C. §§522(b)(3), (4). (9)
13 and the Sunshine Act of 1976, 5 U.S.C. §552b, and unlawful disclosure thereof is a violation of
14 the Uniform Trade Secrets Act, California Civ. Code §3426. The COUNTY shall use reasonable
15
16 diligence, and in no event less than the degree of care which COUNTY uses with respect to its
17 own confidential and proprietary information of a like nature, to prevent the unauthorized
18 disclosure or reproduction of such materials or information.
19 With respect to materials other than the aforementioned, DFM, COUNTY, and their
20
respective employees and agents shall hold in confidence all confidential and proprietary
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22 information of the other party which is disclosed to such party in connection with this Agreement
23 and the transactions contemplated hereby, and which is so designated in writing by the
24 disclosing party, including, without limitation, information concerning end user(s) and
25 prospective end user(s), and financial and technical information. Each party shall use
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reasonable diligence, and in no event less than the degree of care which such party uses in
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28 respect to its own confidential and proprietary information of a like nature, to prevent the
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1 unauthorized disclosure or reproduction of such information. All confidential information and
2 materials disclosed in writing shall be stamped "Confidential" and all oral disclosures of
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confidential information will be confirmed in writing within ten (10) business days of such
4
5 disclosure and so stamped. Confidential and proprietary information will be identified in writing
6 and shall exclude:
7 (a) Information in the public domain;
8 (b) Information known to the recipient party as of the date of this Agreement, unless the
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recipient party agreed to keep such information in confidence at the time of its receipt;
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11 and
12 (c) Information hereafter obtained by the recipient party from a source not under an
13 obligation of confidentiality to the other party.
14 Both parties will maintain in confidence the other party's confidential and proprietary
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16 information for a period of five (5) years after termination or expiration of this Agreement.
17 Requests for inspection of records (described in this Section 4 of the Agreement )from a
18 member of the public, which qualify as a Public Records Act request under California law, will
19 be handled by the County as follows:
20
21 (1) COUNTY Contract Administrator will promptly notify DFM of the request for such
22 records. DFM shall promptly respond to COUNTY Contract Administrator in writing
(but in no event more than forty-eight (48) hours from the time and date that the
23
COUNTY Contract Administrator notifies DFM of the request for records), by stating
24 whether DFM objects to the release of the records to the member of the public. If
25 DFM objects to the release, such notice of DFM shall give COUNTY Contract
26 Administrator the specific reason(s)why DFM believes the records should not be
27 released, citing the specific facts and legal authority supporting its position. If DFM
28 fails to timely object to the release of the records to the member of the public, DFM
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1 shall be deemed to have waived any and all rights, if any, to claim that the records
2 are confidential or exempt from disclosure to members of the public.
3
4 (2) If COUNTY Contract Administrator, after considering such reason(s) given by DFM,
5 chooses to release or not release the records, the COUNTY Contract Administrator
6 may, in its sole discretion, release or not release such records.
7 (3) If COUNTY Contract Administrator chooses not to release such records, DFM shall,
8 in addition to other indemnification and defense provisions in this Agreement, protect,
9 indemnify and hold harmless the County, its elective and appointive boards, officers,
10 agents and employees from any and all claims, suits, liabilities, expenses, costs,
11 damages, or judgments of any nature, including attorney's fees arising out of, or in
12 any way connected with COUNTY Contract Administrator's failure or refusal to
13 release such records to such member of the public. In addition, if the member of the
14 public requesting the records pursues legal action against the COUNTY and/or
15 COUNTY Contract Administrator in order to obtain access to the records, DFM shall,
16 at its own expense, appear through legal counsel in such court action by joining in
the defense of COUNTY and/or COUNTY Contract Administrator.
17
18 DFM grants the COUNTY the right, subject to the terms and conditions of this
19 Agreement, to discuss or demonstrate the executable EIMS Software, including all updates and
20 revisions, and the related documentation with any City, COUNTY, or Governmental entities or
21 agencies, whether licensed by DFM or not, or other EIMS Software licensees, whether
approached independently or as a DFM customer reference site.
22 To the extent reasonably practicable, the COUNTY shall require all persons who will
23
24 have access to any EIMS Software, to sign on an annual basis an acknowledgement, in a form
25 provided by DFM and attached hereto as Exhibit A, which is acceptable to the COUNTY.
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1 The COUNTY shall provide a copy of this Section 4 to all employees that use the EIMS
2 software in their COUNTY employment and have each of these employees execute Exhibit A
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attached to this agreement.
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5 5. OBLIGATIONS AND RESPONSIBILITIES OF THE COUNTY
6 5.1. ACCESS TO FACILITIES.
7 The COUNTY shall provide DFM and its employees and authorized agents any
8 necessary access to the COUNTY'S facilities, including the Computer Hardware, and shall
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provide them with adequate facilities (including a desk, work area and computer), to enable
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11 DFM to perform its obligations under this Agreement in an effective, efficient and
12 professional manner. Access shall be provided during the COUNTY'S usual business hours
13 upon reasonable prior notice except in the case of an emergency when access shall he
14 provided as soon as is reasonably practicable.
15
5.2. OPERATING SYSTEM SOFTWARE.
16
17 The COUNTY shall be solely responsible for, and shall pay all costs and expenses
18 associated with, the purchase or license of, and the installation and maintenance of, the
19 appropriate version of the Operating System Software required by DFM at any time or from
20
time to time. The COUNTY acknowledges and understands that upgrading of Computer
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22 Hardware and of the Operating System Software and any other applications software used in
23 conjunction with the EIMS Software will be required from time to time; provided, however, in
24 any event, DFM shall give the COUNTY at least one-hundred twenty (120) days prior written
25 notice of the need to upgrade or replace the version of the Operating System Software which
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the COUNTY is then using, and DFM shall consult with the COUNTY'S User Group regarding
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28 the scheduling of such changes.
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1 5.3. RESPONSIBILITY FOR COUNTY'S DATA.
2 At all times during the term of this Agreement, the COUNTY shall retain all ownership
3
rights in the COUNTY'S Data. In addition, notwithstanding any use by the COUNTY of any
4
5 EIMS Software in connection therewith, the COUNTY shall be solely responsible and
6 accountable for the accuracy and completeness of, and for any use, publication or other
7 dissemination of the COUNTY'S Data. If the COUNTY uses, publishes or otherwise
8 disseminates, or otherwise allows any access to, any portion of the COUNTY'S Data, whether
9
before or after it has been manipulated by the EIMS Software, and whether or not it is a
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11 commercial or non-commercial use, by doing so the COUNTY is representing to DFM that it
12 has accepted, ratified and approved the accuracy and completeness of the COUNTY'S Data
13 and accepts full responsibility for it.
14 6. SOFTWARE MAINTENANCE AND SUPPORT
15
16 DFM shall maintain COUNTY'S licensed-to-use EIMS Software such that it operates in
17 conformity with the current Users Reference manual for the installed software version, including
18 all error corrections or changes. DFM shall use best efforts to correct any reproducible error.
19 Suspected error conditions will be investigated and corrected by DFM personnel at DFM'S
20
office to the extent possible. DFM may provide COUNTY with unsolicited error corrections or
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22 changes to the software which DFM determines are necessary for proper operation of its EIMS
23 Software, and COUNTY shall incorporate these corrections or changes into the EIMS within
24 thirty(30) days of receipt and testing by COUNTY. Telephone Assistance is a service of DFM in
25 which the COUNTY may telephone DFM for consultation concerning the EIMS Software DFM
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shall provide toll-free telephone consultation and support services during DFM'S normal
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28 business hours. DFM shall provide the names and telephone numbers of DFM management
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1 and staff responsible for support in the event further inquiries or requests for escalation of a
2 problem are required.
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7. POST INSTALLATON SERVICES.
4
5 DFM agrees to provide the COUNTY with post-installation services as follows:
6 7.1. SOFTWARE RELEASES.
7 DFM agrees to provide in a timely manner Software Releases covering applicable legislative
8 changes and enactment of new laws applicable to such EIMS Software, the cost of which is
9
included in the Annual Fee.
10
11 7.2. TRAINING.
12 DFM agrees to provide the COUNTY with the following training services with respect to any
13 EIMS Software:
14 (a) DFM will establish, with the help of a designated representative of the COUNTY, which
15
16 users will participate in training and on which subsystems.
17 (b) DFM will develop a training schedule with sufficient training to allow the department or
18 agency of the COUNTY, which will have primary responsibility for using the EIMS Software
19 to operate it.
20
(c) DFM will conduct the actual training sessions, including "hands on" and formal
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22 classroom training, with the initial training to be on-site at the COUNTY'S facilities.
23 User training costs for any EIMS Software are included in the annual fee. There are no
24 additional costs for training. As subsystems of any EIMS Software are enhanced or changed to
25 conform to new requirements, users will be provided training with respect thereto on an on-
26
going basis. Training with respect to enhanced or changed subsystems can be on-site or
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28 regional, depending on the material and individual needs of the users.
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1 7.3. LIMITATION ON DFM'S OBLIGATIONS.
2 Notwithstanding any other provision of this Agreement to the contrary, DFM has no duty or
3
obligation to perform any Software Maintenance or to provide the COUNTY with any Software
4
5 Enhancements or Releases, or to provide any training to the COUNTY with respect to any
6 EIMS Software if the COUNTY fails or refuses to utilize the most current revision of the
7 Operating System Software required by DFM; provided, however, in any event, DFM shall give
8 the COUNTY at least one-hundred twenty (120) days prior written notice of the need to
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upgrade or replace the version of the Operating System Software which the COUNTY is then
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11 using, and DFM shall consult with the COUNTY'S User Group regarding the scheduling of such
12 changes.
13 8. WARRANTIES:
14 8.1. LIMITED WARRANTY - EIMS SOFTWARE.
15
16 DFM warrants, for the sole benefit of the COUNTY and no other person or entity, that the
17 EIMS Software shall be capable of performing the core functions set forth in this agreement
18 related thereto, subject to the limitations set forth in Section 8.2 below. This is DFM'S sole
19 express warranty with respect to any EIMS Software. Any claim by the COUNTY against DFM
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for breach of its express warranty must be in writing and must be promptly delivered by the
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22 COUNTY to DFM. In the event of any breach of DFM'S express warranty, the COUNTY'S sole
23 and exclusive remedy against DFM, and DFM'S sole and exclusive liability to the COUNTY,
24 shall be that DFM, at its sole cost and expense, shall exercise good faith and make reasonable
25 efforts to provide adequate programming services to correct such inherent defect, as DFM and
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the COUNTY deem necessary or appropriate. Warranty service performed in accordance with
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28 this Section shall be performed during normal weekday business hours, excluding DFM
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1 holidays, excepting COUNTY's notification to DFM of emergencies needing immediate warranty
2 service(s). With respect to Business Impacting Failures, DFM shall use its best efforts to begin
3
error correction procedures within twenty-four(24) hours after receipt of such report. With
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5 respect to any reported errors that do not constitute Business Impacting Failures, DFM shall
6 use its good faith reasonable efforts to begin error correction procedures no later than seventy-
7 two (72) hours after receipt of such report. DFM'S sole and exclusive obligation under the
8 foregoing warranty shall be to exercise its good faith reasonable efforts to implement
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appropriate error corrections in response to notices from the COUNTY of such errors.
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11 8.2. WARRANTY LIMITATIONS - EIMS SOFTWARE.
12 Notwithstanding the warranty provisions set forth in Section 8.1 above, all of DFM'S
13 obligations with respect to such warranties shall be contingent upon the COUNTY'S use of the
14 EIMS Software in accordance with this Agreement and in accordance with instructions provided
15
16 by DFM from time to time, including those set forth in the Manuals, as the same may be
17 amended, supplemented or modified from time to time. DFM shall have no warranty obligation:
18 (a) With respect to any portion of the EIMS Software which has been:
19 (i) Operated by the COUNTY or its employees, agents, contractors,
20
subcontractors or licensees in a manner inconsistent with the requirements set forth in
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22 the Manuals or elsewhere, or that has been modified by any party other than DFM;
23 (ii) Damaged in any manner by any cause other than any act or omission of DFM;
24 (iii) Operated or maintained in environmental conditions outside the parameters
25 designated by DFM, in the Manuals or elsewhere;
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(iv) Subjected to extreme power surges or electromagnetic field(s);
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28 (v) Reinstalled without the prior written consent of DFM; or
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1 (vi) Determined by DFM to have an error or defect, which fact is conveyed to the
2 COUNTY together with supplemental instructions on how to avoid or circumvent the
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error or defect, and the COUNTY fails or refuses to follow the supplemental instructions.
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5�
(b) As a result of or in any way connected with any error or defect in the Operating
6 System Software and/or any application software provided by any Third Party Software vendor;
7 provided, however, in such event, DFM will use its good faith reasonable efforts to resolve the
8 problem to the extent that a resolution is reasonably available by reprogramming the EIMS
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Software;
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11 (c)As a result of or in any way connected with the COUNTY'S failure or refusal to use
12 the Operating System Software or to upgrade its Computer Hardware as requested by DFM; or
13 as a result of or in any connected with any of the COUNTY'S Data.
14 8.3. DISCLAIMER OF WARRANTIES - EIMS SOFTWARE.
15
16 DFM does not represent or warrant that the EIMS software will be free from error or that
17 all errors in any EIMS software will be corrected. The warranty stated in section 8.1 is the sole
18 and exclusive warranty offered by DFM. There are no other warranties respecting the EIMS
19 software, either express or implied, including but not limited to any warranty of design,
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merchantability or fitness for a particular purpose, even if DFM has been informed or is
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22 otherwise made aware of such purpose. No agent of DFM is authorized to alter or exceed the
23 warranty obligations of DFM set forth in this article 8.
24 8.4. LIMITATION ON LIABILITY AND REMEDY- EIMS SOFTWARE.
25 The COUNTY acknowledges the complexity and interrelationships of each of the component
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and constituent parts comprising any EIMS software. The COUNTY further acknowledges and
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28 agrees that the annual fee, which DFM is charging for any EIMS software, does not include any
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1 consideration for assumption by DFM of the risk of the COUNTY'S incidental or consequential
2 damages which may arise in connection with the COUNTY'S use of any EIMS software.
3
Accordingly the COUNTY agrees that DFM shall not be responsible to the COUNTY, or any
4
5 department, agency or subdivision thereof, for any incidental or consequential damages arising
6 out of the licensing, leasing or use of any EIMS software; provided however that DFM shall be
7 responsible for such incidental (but not consequential) costs and expenses arising in
8 connection with any infringement or alleged infringement of third party proprietary rights as set
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forth in article 15.
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11 9. COMPENSATION/INVOICING:
12 9.1. COMPENSATION:
13 Upon execution of this Agreement, DFM will invoice COUNTY and COUNTY shall pay
14
the sum of One Hundred Fifty-Six Thousand Seventy-Two Dollars ($156,072)for the cost of
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16 licensing and software support, including any applicable taxes, from April 1, 2018 to March 31,
17 2019, One Hundred Fifty-Six Thousand Seventy-Two Dollars ($156,072)for the period of April
18 1, 2019 to March 31, 2020, and One Hundred Fifty-Six Thousand Seventy-Two Dollars
19 ($156.072)for the period of April 1 2020 to March 31, 2021. In the event the this Agreement is
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renewed, as described in Section 21, DFM shall invoice COUNTY for One Hundred Fifty-Six
21
22 Thousand Seventy-Two Dollars ($156,072)for the period of April 1, 2021 to March 31, 2022,
23 and One Hundred Fifty-Six Thousand Seventy-Two Dollars ($156,072)for the period of April 1,
24 2022 to March 31, 2023.
25 9.2. MAXIMUM AMOUNT PAYABLE:
26
In no event shall services performed during the term of this Agreement be in excess of Seven
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28 Hundred Eighty Thousand Three Hundred Sixty Dollars ($780,360). It is understood that all
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1 expenses incidental to DFM'S performance of services under this Agreement shall be borne by
2 DFM.
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9.3. INVOICING AND PAYMENT:
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5 Upon receipt of DFM's valid and correct invoice, COUNTY shall pay DFM the invoice amount
6 due as for that item listed in the above payment schedule. Payment shall be made to DFM
7 within forty-five (45) days after COUNTY'S receipt of a valid and correct invoice. Invoices shall
8 be submitted to Fresno County Clerk/Registrar of Voters, 2221 Kern St., Fresno, California
9
93721. Payment shall be mailed to DFM Associates, Inc., 10 Chrysler, Irvine, CA 92618.
10
11 10. STATEMENT OF WORK:
12 The specific objective for DFM and COUNTY is to maintain the software application currently in
13 use by COUNTY as the core function.
14 10.1. DELIVERABLES (COUNTY)
15 COUNTY is responsible for the following deliverables and will work in conjunction with DFM on
16 feedback where appropriate:
17 COUNTY will ensure that the appropriate staff and resources are assigned and available
18 to the project. These include, but are not limited to, elections personnel, technical support
19 specialist, network administrators, and management as needed.
20 COUNTY will be responsible for the maintenance of network infrastructure, server and
21 client workstation hardware.
22 COUNTY will pay annual License payments.
23
24 10.2. DELIVERABLES (DFM)
25 DFM is responsible for the following deliverables and will work in conjunction with COUNTY on
26 input and feedback where appropriate:
27 DFM will be responsible for application software installation onto hardware as new
28 releases are made available and accepted by COUNTY.
-19-
1 DFM will be responsible for providing telephone support, on-site support, and training to
2 elections personnel as mutually agreed to as being necessary.
3 11. INDEPENDENT CONTRACTOR:
4 In performance of the work, duties, and obligations assumed by DFM under this
5
Agreement, it is mutually understood and agreed that DFM, including any and all of DFM'S
6
7 officers, agents, and employees, will at all times be acting and performing as an independent
8 contractor, and shall act in an independent capacity and not as an officer, agent, servant,
9 employee,joint venture, partner, or associate of COUNTY. Furthermore, COUNTY shall have
10 no right to control or supervise or direct the manner or method by which DFM shall perform its
11
work and function. However, COUNTY shall retain the right to administer this Agreement so as
12
13 to verify that DFM is performing its obligations in accordance with the terms and conditions
14 thereof. DFM and COUNTY shall comply with all applicable provisions of law and the rules and
15 regulations, if any, of governmental authorities having jurisdiction over the subject matters
16 thereof. Because of its status as an independent contractor, DFM shall have absolutely no right
17
18 to employment rights and benefits available to COUNTY employees. DFM shall be solely liable
19 and responsible for providing to, or on behalf of, its employees all legally required employee
20 benefits. In addition, DFM shall be solely responsible and save COUNTY harmless from all
21 matters relating to payment of DFM'S employees, including compliance with Social Security,
22
withholding, and all other regulations governing such matters. It is acknowledged that during
23
24 the term of this Agreement, DFM may be providing services to others unrelated to COUNTY or
25 to this Agreement.
26 12. MODIFICATION:
27
28
-20-
1 Any matters of this Agreement may be modified from time to time by the written consent
2 of all the parties without, in any way, affecting the remainder.
3
13. NON-ASSIGNMENT:
4
5 No party shall assign, transfer or sub-contract this Agreement nor their rights or duties
6 under this Agreement without written consent of the other party, such consent not to be
7 unreasonably withheld.
8 14. HOLD HARMLESS AND INDEMNIFICATION:
9
DFM agrees to indemnify, save, hold harmless, and at COUNTY'S request, defend the
10
11 COUNTY, its officers, agents, and employees from any and all costs and expenses, damages,
12 liabilities, claims, and losses occurring or resulting to COUNTY in connection with the
13 performance, or failure to perform, by DFM, its officers, agents, or employees under this
14 Agreement, and from any and all costs and expenses, damages, liabilities, claims, and losses
15
16 occurring or resulting to any person, firm, or corporation who may be injured or damaged by the
17 performance, or failure to perform of DFM, its officers, agents, or employees under this
18 Agreement. DFM agrees to indemnify and hold COUNTY harmless from any copyright
19 infringement or proprietary right claim arising out of COUNTY'S use of the EIMS Software
20
provided DFM is notified promptly in writing of the claim and is given complete authority and
21
22 information required for defending or settling any charge of copyright infringement or suit
23 resulting therefrom. DFM, following COUNTY's notification in writing as provided in the
24 preceding sentence, shall forthwith either procure for COUNTY the right to continue using
25 same, or modify or replace such item to become non-infringing, to result in COUNTY'S
26
uninterrupted use of the EIMS Software with substantially the same functionality and
27
28 performance but without diminishing DFM'S obligations under this Agreement. COUNTY shall,
-21-
1 with respect to any claim by a third party of infringement of a copyright or other proprietary
2 rights, cease use of the EIMS Software or part thereof which is the subject of such claim, only
3
upon COUNTY becoming the subject of an order of a court of proper jurisdiction to such effect.
4
5 15. INSURANCE:
6 Without limiting the COUNTY'S right to obtain indemnification from DFM or any
7 third parties, DFM, at its sole expense, shall maintain in full force and effect the following
8 insurance policies throughout the term of this Agreement:
g A. Commercial General Liability
10 Commercial General Liability Insurance with limits of not less than One
11 Million Dollars($1,000,000) per occurrence and an annual aggregate of Two Million Dollars
12 ($2,000,000). This policy shall be issued on a per occurrence basis. COUNTY may require
13 specific coverages including completed operations, products liability, contractual liability,
14 Explosion-Collapse-Underground, fire legal liability or any other liability insurance deemed
15 necessary because of the nature of this contract.
16 B. Automobile Liability
17 Comprehensive Automobile Liability Insurance with limits for bodily injury of
18 not less than Two Hundred Fifty Thousand Dollars ($250,000.00) per person, Five Hundred
19 Thousand Dollars($500,000.00) per accident and for property damages of not less than Fifty
20 Thousand Dollars ($50,000.00), or such coverage with a combined single limit of One Million
21 Dollars ($500,000.00). Coverage should include owned, non-owned and hired vehicles used in
22 connection with this Agreement.
23 C. Professional Liability
24 If DFM employs licensed professional staff, (e.g., Ph.D., R.N., L.C.S.W.,
25 M.F.C.C.) in providing services, Professional Liability Insurance with limits of not less than One
26 Million Dollars($1,000,000.00) per occurrence, Three Million Dollars($3,000,000.00)annual
27 aggregate.
28
-22-
1 D. Worker's Compensation
2 A policy of Worker's Compensation insurance as may be required by the
3 California Labor Code.
4
5 DFM shall obtain endorsements to the Commercial General Liability insurance
6 naming the COUNTY of Fresno, its officers, agents, and employees, individually and collectively,
7 as additional insured, but only insofar as the operations under this Agreement are concerned.
8 Such coverage for additional insured shall apply as primary insurance and any other insurance, or
9 self-insurance, maintained by COUNTY, its officers, agents and employees shall be excess only
10 and not contributing with insurance provided under DFM'S policies herein. This insurance shall
11 not be cancelled or changed without a minimum of thirty(30) days advance written notice given to
12 COUNTY.
13 Within Thirty(30)days from the date DFM executes this Agreement, DFM shall
14 provide certificates of insurance and endorsement as stated above for all of the foregoing policies,
15 as required herein, to the COUNTY of Fresno, County Clerk/Registrar of Voters 2221 Kern Street,
16 Fresno, CA 93721, stating that such insurance coverage have been obtained and are in full force;
17 that the COUNTY of Fresno, its officers, agents and employees will not be responsible for any
18 premiums on the policies; that such Commercial General Liability insurance names the COUNTY
19 of Fresno, its officers, agents and employees, individually and collectively, as additional insured,
20 but only insofar as the operations under this Agreement are concerned; that such coverage for
21 additional insured shall apply as primary insurance and any other insurance, or self-insurance,
22 maintained by COUNTY, its officers, agents and employees, shall be excess only and not
23 contributing with insurance provided under DFM'S policies herein; and that this insurance shall not
24 be cancelled or changed without a minimum of thirty(30)days advance, written notice given to
25 COUNTY.
26 In the event DFM fails to keep in effect at all times insurance coverage as
27 herein provided, the COUNTY may, in addition to other remedies it may have, suspend or
28 terminate this Agreement upon the occurrence of such event.
-23-
1 All policies shall be with admitted insurers licensed to do business in the State
2 of California. Insurance purchased shall be purchased from companies possessing a current A.M.
3 Best, Inc. rating of A FSC VII or better.
4 16. NOTICES:
5 The persons and their addresses having authority to give and receive notices under this
6
Agreement include the following:
7
8 COUNTY of Fresno DFM Associates. Inc.
9 Fresno County Clerk/ President, DFM Associates, Inc.
Registrar of Voters 10 Chrysler
10 2221 Kern Street Irvine, California 92618-2008
11 Fresno, California 93721
12
Any and all notices between COUNTY and DFM provided for or permitted under this
13
14 Agreement or by law shall be in writing and shall be deemed duly served when personally
15 delivered to one of the parties, or in lieu of such personal service, when deposited in the United
16 States Mail, postage prepaid, addressed to such party.
17 17. GOVERNING LAW:
18
19 Venue for any action arising out of or relating to this Agreement shall only be in Fresno
20 COUNTY, California. The rights and obligations of the parties and all interpretation and
21 performance of this Agreement shall be governed in all respects by the laws in the State of
22 California.
23 18. AUDITS AND INSPECTIONS:
24
25 DFM shall at any time during business hours, and as often as COUNTY may deem
26 necessary, make available to COUNTY for examination all of its records and data with respect
27 to the matters covered by this Agreement upon twenty-four(24) hours written notice from
28
-24-
1 COUNTY. DFM shall, upon request by COUNTY, permit COUNTY to audit and inspect all of
2 such records and data necessary to ensure DFM'S compliance with the terms of this
3
Agreement. Because this Agreement exceeds Ten Thousand and No/100
4
5 Dollars ($10,000.00), DFM shall be subject to the examination and audit of the State Auditor for
6 a period of three (3) years after final payment under contract (Government Code §8546.7).
7 19. SURVIVING PROVISIONS:
8 The obligations under§§3.2, 3.3, 7, 14,15,17,18, 23, and 24 shall survive termination of
9
this Agreement.
10
11 20. FORCE MAJEURE:
12 Neither party shall be liable for any delay or failure in performance of this Agreement if
13 caused by an act God or any factor beyond the control of such party, including, but not limited
14 to, failure of the other party to comply with its obligations and responsibilities hereunder or to
15
16 provide materials or information herein. In any such event, the date for the parties' performance
17 shall be deferred for a period of time equal to the time loss by reason of such act of God or
18 other factor beyond the control of the party, provided that the delayed party shall notify the
19 other party of such occurrence and shall cooperate with the other party in minimizing any
20
adverse impact of such occurrence.
21
21. TERM:
22
23 This term of this Agreement shall be for a period of three (3) years, commencing on
24 April 1, 2018 through and including March 31, 2021. This Agreement may be extended for two
25 (2) additional consecutive twelve (12) month periods upon written approval of both parties no
26
later than thirty (30) days prior to the first day of the next twelve (12) month extension period.
27
28
-25-
1 The County Clerk/Registrar of Voters or his or her designee is authorized to execute such
2 written approval on behalf of COUNTY based on DFM's satisfactory performance.
3
22. TERMINATION:
4
5 22.1. NON-ALLOCATION OF FUNDS:
6 The terms of this Agreement, and the services to be provided thereunder, are contingent
7 on approval of funds by COUNTY'S Board of Supervisors. Should sufficient funds not be
8 allocated, the services provided may be modified, or this Agreement terminated at any time by
9
giving DFM thirty (30) days advance written notice.
10
11 22.2• BREACH OF CONTRACT:
12 The COUNTY may immediately suspend or terminate this Agreement in whole or in part,
13 where in the determination of the COUNTY there is:
14 (a)An illegal or improper use of funds;
15
16 (b) A failure to comply with any term of this Agreement;
17 (c) A substantially incorrect or incomplete report submitted to the COUNTY;
18 In no event shall any payment by COUNTY constitute a waiver by COUNTY of any
19 breach of this Agreement or any default that may then exist on the part of DFM. Neither shall
20
such payment impair or prejudice any remedy available to COUNTY with respect to the breach
21
22 or default. COUNTY shall have the right to demand of DFM the repayment to COUNTY of any
23 funds disbursed to DFM under this Agreement, which in the judgment of COUNTY were not
24 expended in accordance with the terms of this Agreement. DFM shall promptly refund any such
25 funds upon demand.
26
22.3. DEBILITATING EVENT.
27
28
-26-
1 Any of the following events, which occur with respect to DFM, shall be deemed to be a
2 "Debilitating Event" and shall cause this Agreement to be modified immediately upon notice to
3
the COUNTY of such Debilitating Event and shall cause the Agreement to terminate
4
5 automatically two hundred forty (240) days thereafter:
6 (a) Any assignment by DFM for the benefit of its creditors; or the entry of a court order
7 appointing a receiver or trustee for all or substantially all of DFM's assets or properties, which
8 order shall not be vacated, set aside or stayed within sixty (60) days from the day of entry of
9
said court order; or the filing by DFM of a petition in bankruptcy or the commencement of any
10
11 similar proceeding under any law for the relief of debtors by or against DFM; or
12 (b) Any permanent cessation by DFM of its business, which is not succeeded to by a
13 successor in interest.
14 (c) Depositor's failure to carry out obligations imposed on it pursuant to the License
15
16 Agreement.
17 22.4. WITHOUT CAUSE
18 Under circumstances other than those set forth above, this Agreement may be terminated by
19 the COUNTY upon the giving of thirty(30) days advance written notice of an intention to
20
terminate to CONTRACTOR. Upon such termination, the COUNTY will be released from any
21
22 further financial obligation to CONTRACTOR, except for services performed prior to the date of
23 termination.
24 22.5. OBLIGATIONS OF THE COUNTY AT TERMINATION OF AGREEMENT
25 Except as provided in section 23, immediately upon the termination of this Agreement,
26
the COUNTY shall return to CONTRACTOR any and all tangible manifestations of any EIMS
27
28
-27-
1 Software previously delivered by CONTRACTOR to the COUNTY, and any copies, duplicates
2 or reproductions thereof, whether authorized or not.
3
22.6. CONDITIONS FOLLOWING TERMINATION:
4
5 Upon termination, the COUNTY will be released from any further financial obligation to
6 CONTRACTOR, except for services performed prior to the date of termination or any liability
7 due to default existing at the time this clause is exercised.
8 (a)All non-disclosure, non-competition, and confidentiality provisions of this Agreement
9
shall survive its termination.
10
11 23. SOURCE CODE ESCROW:
12 DFM agrees to maintain a complete copy of the EIMS Software and Source Code
13 licensed under the terms of this Agreement in an escrow account. This Source Code will be
14 made available from the escrow agent to the COUNTY upon the termination of this Agreement
15
16 as a result of a Debilitating Event as defined in Section 22.3 herein. In such case, copies of the
17 source programs and System Documentation will be provided to the COUNTY. COUNTY has
18 unrestricted access to all modules it has accepted from DFM, but may not transfer source
19 codes or documentation to any other agency or commercial business, under any conditions.
20
COUNTY may make copies for its own use. Any charges for the services of the escrow agent
21
22 will be the responsibility of COUNTY.
23 24. ENTIRE AGREEMENT:
24 This Agreement and all Exhibits to it, (incorporated herein by reference), and
25 all other documents referred to or incorporated herein, constitute the entire Agreement and
26
understanding between DFM and COUNTY with respect to the subject matter hereof and
27
28 supersedes all previous negotiations, proposals, commitments, writings, advertisements,
-28-
1 publications, and understandings of any nature whatsoever unless expressly included in this
2 Agreement and shall be cumulatively referred to herein as the "Agreement".
3
25. DISCLOSURE OF SELF-DEALING TRANSACTIONS:
4
5 Members of the DFM Board of Directors shall disclose any self-dealing
6 transactions that they are a party to while DFM is providing goods or performing services under
7 this agreement. A self-dealing transaction shall mean a transaction to which DFM is a party and in
8 which one or more of its directors has a material financial interest. Members of the Board of
9
Directors shall disclose any self-dealing transactions that they are a party to by completing and
10
11 signing a Self-Dealing Transaction Disclosure Form, attached hereto as Exhibit B and
12 incorporated herein by reference, and submitting it to the COUNTY prior to commencing with the
13 self-dealing transaction or immediately thereafter.
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-29-
1 EXECUTED AND EFFECTIVE as of the date first above set forth.
2
CONTRACTOR: COUNTY OF FRESNO
3 I)FM ASSO 1ATES, INCORPO
Z,
By By _
5 ( rized Signature) Sal C� int roQC�hirperson of the Board
6 of Sup isors he County of Fresno
Print Name: Zy�J.5 .L�i1!5
7
Title: _ ��.�Si d ca/T
8 Chairman of Board, or President, or any Vice President
9
10
E3y
-A
11
12
Print Name: — ��f �•
13 Title:
Secretary (of Corporation), or any Assistant Secretary, or Chief Financial Officer, or
14 any Assistant Treasurer
15 Mailing Address:
DFM Associates, Incorporated ATTEST:
16 10 Chrysler Bernice E. Seidel
Irvine, California 92618-2008 Clerk of the Board of Supervisors
17 County of Fresno, State of California
18
19 By: .
Deputy
20
21 FOR ACCOUNTING USE ONLY:
22 ORG No.: 28500100
23 Account No.: 7309
24 Requisition No.: 8501800131
25 11
26 11
27 11
28
-30-
1 EXHIBIT A
2 DFM CONFIDENTIALITY STATEMENT
3
NOTICE OF CONFIDENTIAL MATERIAL 2018
4
The EIMSO is a computer software package licensed by the County, with rights thereto reserved to
5
DFM Associates ("DFM"O) as designers, installers and maintainers of EIMSO. The safeguarding of
6
DFM'S rights, with respect to the EIMSO, requires that all persons, employed or associated with the
7
County, who have direct or indirect access to the host computer facility and/or the EIMSO software, its
8
component or derivative parts, receive written notice of the confidential and secret nature of the EIMSO
9
and sign an acknowledgement to that effect.
10
11
Therefore, this memorandum is to serve as general notice that the EIMSO, its components and
12
derivative parts including, but not limited to, all computer programs(in whatever form they may be found
13
and/or on whatever media they are contained) and all EIMSO documentation (formal and informal)are
14
to be regarded as confidential and secret material. These materials and/or the information they contain
15
are NOT to be given, sold, reproduced, disseminated or otherwise disclosed without the prior express
16
written authorization of DFM Associates.
17
18
Your signature hereon will serve as written acknowledgement that your have received, read and
19
understood this notice. In the event that there are any questions concerning the subject matter of this
20
notice please contact DFM Associates.
21
Print Name Sign Name
22
Print Name Sign Name
23
Print Name Sign Name
24
Print Name Sign Name
25
Print Name Sign Name
26
Print Name Sign Name
27
Print Name Sign Name
28
-31-
1 EXHIBIT B
2 SELF DEALING TRANSACTIONS DISCLOSURE FORMS
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-32-
Exhibit B
Page 1 of 2
SELF-DEALING TRANSACTION DISCLOSURE FORM
In order to conduct business with the County of Fresno (hereinafter referred to as "County"), members
of a contractor's board of directors (hereinafter referred to as "County Contractor"), must disclose any
self-dealing transactions that they are a party to while providing goods, performing services, or both for
the County. A self-dealing transaction is defined below:
"A self-dealing transaction means a transaction to which the corporation is a party and in which one
or more of its directors has a material financial interest"
The definition above will be utilized for purposes of completing this disclosure form.
INSTRUCTIONS
(1) Enter board member's name,job title(if applicable),and date this disclosure is being made.
(2) Enter the board member's company/agency name and address.
(3) Describe in detail the nature of the self-dealing transaction that is being disclosed to the
County.At a minimum, include a description of the following:
a. The name of the agency/company with which the corporation has the transaction;and
b. The nature of the material financial interest in the Corporation's transaction that the
board member has.
(4) Describe in detail why the self-dealing transaction is appropriate based on applicable provisions
of the Corporations Code.
(5) Form must be signed by the board member that is involved in the self-dealing transaction
described in Sections(3)and(4).
i
Exhibit B
Page 2 of 2
i
(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)
1
(4)Explain why this self-dealing transaction is consistent with the requirements of Corporations Code 5233
(a)
S Authorized Signature
Signature: Date: