HomeMy WebLinkAboutAgreement A-23-552 with eCivis Inc..pdf Agreement No. 23-552
1 SERVICE AGREEMENT
2 This Service Agreement ("Agreement") is dated October 10, 2023 and is between
3 eCivis, Inc., a Delaware corporation ("Contractor"), and the County of Fresno, a political
4 subdivision of the State of California ("County").
5 Recitals
6 A. The County has need for a grant management system to identify and research grants,
7 as well as manage the grants and grant-funding post award.
8 B. The Contractor provides solutions relating to grant identification and grant management
9 that encompasses the full grant lifecycle.
10 C. The County desires to utilize the Contractors software and services for continued grant
11 management.
12 The parties therefore agree as follows:
13 Article 1
14 Contractor's Services
15 1.1 Scope of Services. The Contractor shall perform all of the services provided in
16 Exhibit A to this Agreement, titled "Scope of Services."
17 1.2 Representation. The Contractor represents that it is qualified, ready, willing, and
18 able to perform all of the services provided in this Agreement.
19 1.3 Compliance with Laws. The Contractor shall, at its own cost, comply with all
20 applicable federal, state, and local laws and regulations in the performance of its obligations
21 under this Agreement, including but not limited to workers compensation, labor, and
22 confidentiality laws and regulations.
23 Article 2
24 County's Responsibilities
25 2.1 The County shall perform all of the County's responsibilities set forth in Exhibit A.
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1 Article 3
2 Compensation, Invoices, and Payments
3 3.1 The County agrees to pay, and the Contractor agrees to receive, compensation for
4 the performance of its services under this Agreement as described in Exhibit B to this
5 Agreement, titled "Compensation."
6 3.2 Maximum Compensation. The maximum compensation payable to the Contractor
7 under this Agreement is $600,000. The Contractor acknowledges that the County is a local
8 government entity, and does so with notice that the County's powers are limited by the
9 California Constitution and by State law, and with notice that the Contractor may receive
10 compensation under this Agreement only for services performed according to the terms of this
11 Agreement and while this Agreement is in effect, and subject to the maximum amount payable
12 under this section. The Contractor further acknowledges that County employees have no
13 authority to pay the Contractor except as expressly provided in this Agreement.
14 3.3 Invoices. The Contractor shall submit monthly invoices referencing the provided
15 Agreement number to the County of Fresno, Internal Services Department, Attention: Business
16 Office, 333 W. Pontiac Way, Clovis, CA 93612, sdcontracts(a)-fresnocountyca.gov. The
17 Contractor shall submit each invoice within 60 days after the month in which the Contractor
18 performs services and in any case within 60 days after the end of the term or termination of this
19 Agreement.
20 3.4 Payment. The County shall pay each correctly completed and timely submitted
21 invoice within 45 days after receipt. The County shall remit any payment to the Contractor's
22 address specified in the invoice.
23 3.5 Incidental Expenses. The Contractor is solely responsible for all of its costs and
24 expenses that are not specified as payable by the County under this Agreement.
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1 Article 4
2 Term of Agreement
3 4.1 Term. This Agreement is effective October 1, 2023 and terminates on September 30,
4 2026, except as provided in section 4.2, "Extension," or Article 6, "Termination and Suspension,"
5 below.
6 4.2 Extension. The term of this Agreement may be extended for no more than two, one-
7 year periods only upon written approval of both parties at least 30 days before the first day of
8 the next one-year extension period. The Director of Internal Services/Chief Information Officer
9 or his or her designee is authorized to sign the written approval on behalf of the County based
10 on the Contractor's satisfactory performance. The extension of this Agreement by the County is
11 not a waiver or compromise of any default or breach of this Agreement by the Contractor
12 existing at the time of the extension whether or not known to the County.
13 Article 5
14 Notices
15 5.1 Contact Information. The persons and their addresses having authority to give and
16 receive notices provided for or permitted under this Agreement include the following:
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For the County:
18 Director of Internal Services/Chief Information Officer
County of Fresno
19 333 W. Pontiac Way
Clovis, CA 93612
20 isdcontracts(a-)fresnocountyca.gov
21 For the Contractor:
Chief Executive Officer
22 eCivis, Inc. dba Euna Solutions
363 W. Erie St., Floor 7
23 Chicago, IL 60654
legal@eunasolutions.com
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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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1 an overnight commercial courier service, or by Portable Document Format (PDF) document
2 attached to an email.
3 (A) A notice delivered by personal service is effective upon service to the recipient.
4 (B) A notice delivered by first-class United States mail is effective three County
5 business days after deposit in the United States mail, postage prepaid, addressed to the
6 recipient.
7 (C)A notice delivered by an overnight commercial courier service is effective one
8 County business day after deposit with the overnight commercial courier service,
9 delivery fees prepaid, with delivery instructions given for next day delivery, addressed to
10 the recipient.
11 (D)A notice delivered by PDF document attached to an email is effective when
12 transmission to the recipient is completed (but, if such transmission is completed outside
13 of County business hours, then such delivery is deemed to be effective at the next
14 beginning of a County business day), provided that the sender maintains a machine
15 record of the completed transmission.
16 5.4 Claims Presentation. For all claims arising from or related to this Agreement,
17 nothing in this Agreement establishes, waives, or modifies any claims presentation
18 requirements or procedures provided by law, including the Government Claims Act (Division 3.6
19 of Title 1 of the Government Code, beginning with section 810).
20 Article 6
21 Termination and Suspension
22 6.1 Termination for Non-Allocation of Funds. The terms of this Agreement are
23 contingent on the approval of funds by the appropriating government agency. If sufficient funds
24 are not allocated, then the County, upon at least 30 days' advance written notice to the
25 Contractor, may:
26 (A) Modify the services provided by the Contractor under this Agreement; or
27 (B) Terminate this Agreement.
28 6.2 Termination for Breach.
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1 (A) Upon determining that a breach (as defined in paragraph (C) below) has
2 occurred, the County may give written notice of the breach to the Contractor. The written
3 notice may suspend performance under this Agreement, and must provide at least 30
4 days for the Contractor to cure the breach.
5 (B) If the Contractor fails to cure the breach to the County's satisfaction within the
6 time stated in the written notice, the County may terminate this Agreement immediately.
7 (C) For purposes of this section, a breach occurs when, in the determination of the
8 County, the Contractor has:
9 (1) Obtained or used funds illegally or improperly;
10 (2) Failed to comply with any part of this Agreement;
11 (3) Submitted a substantially incorrect or incomplete report to the County; or
12 (4) Improperly performed any of its obligations under this Agreement.
13 6.3 Termination without Cause. Intentionally omitted.
14 6.4 No Penalty or Further Obligation. Any termination of this Agreement by the County
15 under this Article 6 is without penalty to or further obligation of the County.
16 6.5 County's Rights upon Termination. Upon termination for breach under this Article
17 6, the County may demand repayment by the Contractor of any monies disbursed to the
18 Contractor under this Agreement that, in the County's sole judgment, were not expended in
19 compliance with this Agreement. The Contractor shall promptly refund all such monies upon
20 demand. This section survives the termination of this Agreement.
21 6.6 Return of Data. Upon request made by the County within 30 days after termination
22 of this Agreement, the Contractor shall make available for download the County's Data as a
23 comma separated value (.csv) format file, along with attachments in their native format. After
24 such 30-day period, the Contractor shall have no obligation to maintain or provide any of the
25 County's Data and shall thereafter, unless legally prohibited, delete all of the County's Data in
26 the Contractor's system or other in the Contractor's possession or under the Contractor's
27 control.
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1 6.7 LIMITATION OF LIABILITY. NEITHER PARTY'S CUMULATIVE LIABILITY ARISING
2 OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR
3 UNDER ANY OTHER THEORY OF LIABILITY) SHALL EXCEED THE AMOUNT PAID BY YOU
4 HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO
5 EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED
6 TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER
7 THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER. THE
8 FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 4
9 (FEES AND PAYMENT FOR SERVICES).
10 6.8 EXCLUSION OF CONSEQUENTIAL AND RELATED DAMAGES. IN NO EVENT
11 SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST
12 PROFITS OR REVENUES OR FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL,
13 COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT
14 OR ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN
15 ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER
16 SHALL NOT APPLY TO THE EXTENT LIMITED OR PROHIBITED BY LAW.
17 Article 7
18 Independent Contractor
19 7.1 Status. In performing under this Agreement, the Contractor, including its officers,
20 agents, employees, and volunteers, is at all times acting and performing as an independent
21 contractor, in an independent capacity, and not as an officer, agent, servant, employee, joint
22 venturer, partner, or associate of the County.
23 7.2 Verifying Performance. The County has no right to control, supervise, or direct the
24 manner or method of the Contractor's performance under this Agreement, but the County may
25 verify that the Contractor is performing according to the terms of this Agreement.
26 7.3 Benefits. Because of its status as an independent contractor, the Contractor has no
27 right to employment rights or benefits available to County employees. The Contractor is solely
28 responsible for providing to its own employees all employee benefits required by law. The
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1 Contractor shall save the County harmless from all matters relating to the payment of the
2 Contractor's employees, including compliance with Social Security withholding and all related
3 regulations.
4 7.4 Services to Others. The parties acknowledge that, during the term of this
5 Agreement, the Contractor may provide services to others unrelated to the County.
6 Article 8
7 Indemnity and Defense
8 8.1 Indemnity. The Contractor shall indemnify and hold harmless and defend the
9 County (including its officers, agents, employees, and volunteers) against all claims, demands,
10 injuries, damages, costs, expenses (including attorney fees and costs), fines, penalties, and
11 liabilities of any kind to the County, the Contractor, or any third party that arise from or relate to
12 gross negligence or willful misconduct by the Contractor (or any of its officers, agents,
13 subcontractors, or employees) under this Agreement. The County may conduct or participate in
14 its own defense without affecting the Contractor's obligation to indemnify and hold harmless or
15 defend the County.
16 8.2 Survival. This Article 8 survives the termination of this Agreement.
17 Article 9
18 Insurance
19 9.1 The Contractor shall comply with all the insurance requirements in Exhibit E to this
20 Agreement.
21 Article 10
22 Inspections, Audits, and Public Records
23 10.1 Inspection of Documents. No more than once a year, the Contractor shall make
24 available to the County, and the County may examine at any time during business hours,
25 Contractor's records and data solely with respect to the matters covered by this Agreement,
26 excluding attorney-client privileged communications. The Contractor shall, upon request by the
27 County, permit the County to audit and inspect all of such records and data to ensure the
28 Contractor's compliance with the terms of this Agreement.
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1 10.2 State Audit Requirements. If the compensation to be paid by the County under this
2 Agreement exceeds $10,000, the Contractor is subject to the examination and audit of the
3 California State Auditor, as provided in Government Code section 8546.7, for a period of three
4 years after final payment under this Agreement. This section survives the termination of this
5 Agreement.
6 10.3 Public Records. The County is not limited in any manner with respect to its public
7 disclosure of this Agreement or any record or data that the Contractor may provide to the
8 County. The County's public disclosure of this Agreement or any record or data that the
9 Contractor may provide to the County may include but is not limited to the following:
10 (A) The County may voluntarily, or upon request by any member of the public or
11 governmental agency, disclose this Agreement to the public or such governmental
12 agency.
13 (B) The County may voluntarily, or upon request by any member of the public or
14 governmental agency, disclose to the public or such governmental agency any record or
15 data that the Contractor may provide to the County, unless such disclosure is prohibited
16 by court order.
17 (C)This Agreement, and any record or data that the Contractor may provide to the
18 County, is subject to public disclosure under the Ralph M. Brown Act (California
19 Government Code, Title 5, Division 2, Part 1, Chapter 9, beginning with section 54950).
20 (D) This Agreement, and any record or data that the Contractor may provide to the
21 County, is subject to public disclosure as a public record under the California Public
22 Records Act (California Government Code, Title 1, Division 10, Chapter 3, beginning
23 with section 7920.200) ("CPRA").
24 (E) This Agreement, and any record or data that the Contractor may provide to the
25 County, is subject to public disclosure as information concerning the conduct of the
26 people's business of the State of California under California Constitution, Article 1,
27 section 3, subdivision (b).
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1 (F) Any marking of confidentiality or restricted access upon or otherwise made with
2 respect to any record or data that the Contractor may provide to the County shall be
3 disregarded and have no effect on the County's right or duty to disclose to the public or
4 governmental agency any such record or data.
5 10.4 Public Records Act Requests. If the County receives a written or oral request
6 under the CPRA to publicly disclose any record that is in the Contractor's possession or control,
7 and which the County has a right, under any provision of this Agreement or applicable law, to
8 possess or control, then the County may demand, in writing, that the Contractor deliver to the
9 County, for purposes of public disclosure, the requested records that may be in the possession
10 or control of the Contractor. Within five business days after the County's demand, the
11 Contractor shall (a) deliver to the County all of the requested records that are in the Contractor's
12 possession or control, together with a written statement that the Contractor, after conducting a
13 diligent search, has produced all requested records that are in the Contractor's possession or
14 control, or (b) provide to the County a written statement that the Contractor, after conducting a
15 diligent search, does not possess or control any of the requested records. The Contractor shall
16 cooperate with the County with respect to any County demand for such records. If the
17 Contractor wishes to assert that any specific record or data is exempt from disclosure under the
18 CPRA or other applicable law, it must deliver the record or data to the County and assert the
19 exemption by citation to specific legal authority within the written statement that it provides to
20 the County under this section. The Contractor's assertion of any exemption from disclosure is
21 not binding on the County, but the County will give at least 10 days' advance written notice to
22 the Contractor before disclosing any record subject to the Contractor's assertion of exemption
23 from disclosure. The Contractor shall indemnify the County for any court-ordered award of costs
24 or attorney's fees under the CPRA that results from the Contractor's delay, claim of exemption,
25 failure to produce any such records, or failure to cooperate with the County with respect to any
26 County demand for any such records.
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1 Article 11
2 Disclosure of Self-Dealing Transactions
3 11.1 Applicability. This Article 11 applies if the Contractor is operating as a corporation
4 or changes its status to operate as a corporation.
5 11.2 Duty to Disclose. If any member of the Contractor's board of directors is party to a
6 self-dealing transaction, he or she shall disclose the transaction by completing and signing a
7 "Self-Dealing Transaction Disclosure Form" (Exhibit D to this Agreement) and submitting it to
8 the County before commencing the transaction or immediately after.
9 11.3 Definition. "Self-dealing transaction" means a transaction to which the Contractor is
10 a party and in which one or more of its directors, as an individual, has a material financial
11 interest.
12 Article 12
13 General Terms
14 12.1 Modification. Except as provided in Article 6, "Termination and Suspension," this
15 Agreement may not be modified, and no waiver is effective, except by written agreement signed
16 by both parties. The Contractor acknowledges that County employees have no authority to
17 modify this Agreement except as expressly provided in this Agreement.
18 12.2 Non-Assignment. Neither party may assign its rights or delegate its obligations
19 under this Agreement without the prior written consent of the other party.
20 12.3 Governing Law. The laws of the State of California govern all matters arising from
21 or related to this Agreement.
22 12.4 Jurisdiction and Venue. This Agreement is signed and performed in Fresno
23 County, California. The Contractor consents to California jurisdiction for actions arising from or
24 related to this Agreement, and, subject to the Government Claims Act, all such actions must be
25 brought and maintained in Fresno County.
26 12.5 Construction. The final form of this Agreement is the result of the parties' combined
27 efforts. If anything in this Agreement is found by a court of competent jurisdiction to be
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1 ambiguous, that ambiguity shall not be resolved by construing the terms of this Agreement
2 against either party.
3 12.6 Days. Unless otherwise specified, "days" means calendar days.
4 12.7 Services. The products and services ordered by the County and made available by
5 the Contractor online.
6 12.8 Data. Data means all electronic data or information submitted by the County to the
7 Services, including but not limited to any data, content (including user content), information and
8 files.
9 12.9 Malicious Code. Malicious code means but is not limited to viruses, worms, time
10 bombs, Trojan horses, and other harmful or malicious code, files, scripts, agents or programs.
11 12.10 Users. Users means individuals who are authorized by the Contractor to use the
12 Services, for whom subscriptions to a Service have been ordered, and who have been supplied
13 user identifications and passwords by the County, or by the Contractor upon the Count's
14 request. User may include but are not limited to employees, consultants, contractors and
15 agents, and third parties with which the County transacts business.
16 12.11 User Guide. User Guide means the on-line user guide for the Services, made
17 available on-line at: *insert link here*
18 12.12 Headings. The headings and section titles in this Agreement are for convenience
19 only and are not part of this Agreement.
20 12.13 Severability. If anything in this Agreement is found by a court of competent
21 jurisdiction to be unlawful or otherwise unenforceable, the balance of this Agreement remains in
22 effect, and the parties shall make best efforts to replace the unlawful or unenforceable part of
23 this Agreement with lawful and enforceable terms intended to accomplish the parties' original
24 intent.
25 12.14 Nondiscrimination. During the performance of this Agreement, the Contractor shall
26 not unlawfully discriminate against any employee or applicant for employment, or recipient of
27 services, because of race, religious creed, color, national origin, ancestry, physical disability,
28 mental disability, medical condition, genetic information, marital status, sex, gender, gender
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1 identity, gender expression, age, sexual orientation, military status or veteran status pursuant to
2 all applicable State of California and federal statutes and regulation.
3 12.15 No Waiver. Payment, waiver, or discharge by the County of any liability or obligation
4 of the Contractor under this Agreement on any one or more occasions is not a waiver of
5 performance of any continuing or other obligation of the Contractor and does not prohibit
6 enforcement by the County of any obligation on any other occasion.
7 12.16 Entire Agreement. This Agreement, including its exhibits, is the entire agreement
8 between the Contractor and the County with respect to the subject matter of this Agreement,
9 and it supersedes all previous negotiations, proposals, commitments, writings, advertisements,
10 publications, and understandings of any nature unless those things are expressly included in
11 this Agreement. If there is any inconsistency between the terms of this Agreement without its
12 exhibits and the terms of the exhibits, then the inconsistency will be resolved by giving
13 precedence first to the terms of this Agreement without its exhibits, and then to the terms of the
14 exhibits.
15 12.17 No Third-Party Beneficiaries. This Agreement does not and is not intended to
16 create any rights or obligations for any person or entity except for the parties.
17 12.18 Agent for Service of Process. The Contractor represents to County that the
18 Contractor's agent for service of process in California, and that such agent's address for
19 receiving such service of process in California, which information the Contractor shall maintain
20 with the office of the California Secretary of State, is as follows:
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22 Registered Agents Inc
23 1401 21 st Street Suite R
24 Sacramento, CA 95811
25 Sacramento County
26 The Contractor further represents to the County that if the Contractor changes its agent for
27 service of process in California, or the Contractor's agent for service of process in California
28 changes its address for receiving such service of process in California, which changed
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1 information the Contractor shall maintain with the office of the California Secretary of State, the
2 Contractor shall give the County written notice thereof within five (5) calendar days thereof
3 pursuant to Article 5 of this Agreement.
4 12.19 Authorized Signature. The Contractor represents and warrants to the County that:
5 (A) The Contractor is duly authorized and empowered to sign and perform its
6 obligations under this Agreement.
7 (B) The individual signing this Agreement on behalf of the Contractor is duly
8 authorized to do so and his or her signature on this Agreement legally binds the
9 Contractor to the terms of this Agreement.
10 12.20 Electronic Signatures. The parties agree that this Agreement may be executed by
11 electronic signature as provided in this section.
12 (A) An "electronic signature" means any symbol or process intended by an individual
13 signing this Agreement to represent their signature, including but not limited to (1) a
14 digital signature; (2) a faxed version of an original handwritten signature; or (3) an
15 electronically scanned and transmitted (for example by PDF document) version of an
16 original handwritten signature.
17 (B) Each electronic signature affixed or attached to this Agreement (1) is deemed
18 equivalent to a valid original handwritten signature of the person signing this Agreement
19 for all purposes, including but not limited to evidentiary proof in any administrative or
20 judicial proceeding, and (2) has the same force and effect as the valid original
21 handwritten signature of that person.
22 (C)The provisions of this section satisfy the requirements of Civil Code section
23 1633.5, subdivision (b), in the Uniform Electronic Transaction Act (Civil Code, Division 3,
24 Part 2, Title 2.5, beginning with section 1633.1).
25 (D) Each party using a digital signature represents that it has undertaken and
26 satisfied the requirements of Government Code section 16.5, subdivision (a),
27 paragraphs (1) through (5), and agrees that each other party may rely upon that
28 representation.
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1 (E) This Agreement is not conditioned upon the parties conducting the transactions
2 under it by electronic means and either party may sign this Agreement with an original
3 handwritten signature.
4 12.21 Counterparts. This Agreement may be signed in counterparts, each of which is an
5 original, and all of which together constitute this Agreement.
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1 The parties are signing this Agreement on the date stated in the introductory clause.
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ECIVIS, INC. COUNTY OF FRESNO
3
4 Mck-i7ieiweiios
m,: 2 ;1t L
5 Nick Thermenos, Chief Revenue Officer Sjf Q i ro, hairman of the Board of
363 W. Erie St., Floor 7 SLvepis the County of Fresno
6 Chicago, IL 60654
Attest:
7 Bernice E. Seidel
Clerk of the Board of Supervisors
8 County of Fresno, State of California
9
By:AA'oy "'01
10 Deputy
11 For accounting use only:
12 Org No.: 8905
Account No.: 7309
13 Fund No.: 1020
Subclass No.: 10000
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Exhibit A
Scope of Services
1. Contractor Responsibilities. The Agreement provides the County access to the
Grants NetworkTM Grant Pre-Award Software, and State Add-On, the Grants NetworkTM Post-
Award Software, as well as 50 User licenses for individual users. The Contractor shall: (i)
provide the basic support for the Services to the County at no additional charge, and/or
upgraded support if purchased separately, (ii) use commercially reasonable efforts to make the
Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which
the Contractor shall give at least 8 hours' notice via the Services and which the Contractor shall
schedule to the extent practicable during the weekend hours from 9:00 pm Friday to 6:00 am
Monday Eastern Time), or (b) any unavailability caused by circumstances beyond reasonable
control, including without limitation, acts of God, acts of government, floods, fires, earthquakes,
civil unrest, acts of terror, strikes or other labor problems (other than those involving Our
employees), Internet services provider failure or delays, or denial of service attacks, and (iii)
provide the Services only in accordance with applicable laws and government regulations.
2. County Responsibilities. The County shall (i) be responsible for Users'
compliance with this Agreement, (ii) be responsible for the accuracy, quality and legality of the
County's Data and of the means by which the County acquired the Data, (iii) use commercially
reasonable efforts to prevent unauthorized access to or use of the Services, and notify the
Contractor promptly of any such unauthorized access or use, and (iv) use the Services only in
accordance with the User Guide and applicable laws and government regulations. The County
shall not (a) make the Services available to anyone other than Users, (b) sell, resell, rent or
lease the Services, (c) use the Services to store or transmit material in violation of third-party
privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or
disrupt the integrity or performance of the Service or third-party data contained therein, or (f)
attempt to gain unauthorized access to the Services or their related systems or networks.
3. User Subscriptions. Unless otherwise specified in the Agreement (i) Services
are purchased as User subscriptions and may be accessed by no more than the specified
number of Users, (ii) additional User subscriptions may be added during the applicable
A-1
Exhibit A
subscription term at the same price as that for the pre-existing subscriptions thereunder,
prorated for the remainder of the subscription term in effect at the time the additional User
subscriptions are added and (iii) the added User subscriptions shall terminate on the same day
as the pre-existing subscriptions. User subscriptions are for designated Users only and cannot
be shared or used by more than one user but may be reassigned to new Users replacing former
Users who no longer require ongoing use of the Services.
4. Hosting, Product Maintenance and Support. For the first year of this
Agreement, upon paying the Subscription Fee and for each year thereafter, provided that
Subscriber continues to pay the Subscription Fees in accordance with the fees set forth below,
the Contractor shall provide Hosting, Maintenance and Technical Support Services for the
software as set forth in Exhibit B, if the Subscriber is not otherwise in breach of the provisions of
this Agreement.
(A) Hosting Services. The Contractor shall provide technical support and the
associated hardware infrastructure to maintain the various Contractor databases in a hosted
environment. This includes performance tuning, database backups, disaster recovery
availability, applying software upgrades and patches in the normal course for Contractor.
Hosting Services do not include:
I. Testing customizations during an upgrade
II. Restoring a database backup required because of a Subscriber error
III. Migrating data or reports among instances (example: from training or testing to
production)
The Contractor may at its sole discretion, periodically make necessary modifications or
changes to the Hosting Services provided.
The County is responsible for ensuring that its personnel have sufficient training to attain
and maintain competence in the operation of the Software.
Technical support relating to the Hosting Services is available through the Contractor's
normal business hours. Extended coverage is available for an additional fee. the Contractor
A-2
Exhibit A
will provide an initial response to all properly submitted support requests as set forth in
Contractor's standard service level terms.
(B) Product Maintenance. On an as-available basis, the Contractor will provide
enhancements, modifications or upgrades to the Software as the Contractor may from time to
time make available to its Subscribers generally ("Updates") but excluding any New Product (a
"New Product" being a solution which, in the Contractor's determination and subject to general
industry standards, does not replace the Software licensed hereunder.) Updates do not include:
I. Platform extensions including product extensions to (i) different hardware
platforms; (ii) different windowing system platforms; (iii) different operating system platforms
II. New applications
III. Services associated with the application or installation of Updates
If requested, the Contractor will provide assistance in the testing of any site-specific
customizations. The Contractor will provide a quote for any required rework associated with
customizations resulting from the upgrade.
(C) Technical Support Services. The Contractor will provide phone and e-mail
based technical support of a reasonable nature as described herein. A technical support
incident or problem is a single user defined problem seeking resolution. It must be related to the
original intent and design of the software. Technical Support Services include the support of the
Contractor supplied integrations that have not been modified by the Subscriber. Each Technical
Support Service incident is deemed closed when a remedy, workaround, or recommendation for
the installation of a current maintenance release has been offered, and a commercially
reasonable effort has been made to restore operation to the original intent and design of the
Software. Technical Support Service does not include:
I. Custom programming services;
II. On-site support;
III. Subscriber developed interfaces, API interactions, or customizations;
IV. Subscriber developed reports;
V. End-User training or re-training;
A-3
Exhibit A
VI. Subscriber hardware or network issues;
VI I. Correction of data issues derived from user error or Software misuse;
VIII. Changes to the Contractor developed custom reports or Permitted
Customizations (including the Contractor supplied custom business rules or
customized user screens) that are outside the scope of the accepted
specification, scope of work, or authorized change requests;
IX. Corrections to the Contractor developed custom reports or Permitted
Customizations beyond six (6) months from the date of delivery (the upgrade
protection period); and
X. Changes to integration functionality made necessary due to Subscriber server
modifications/replacement, or changes by upgrades or changes to the integrated
financial system software or hardware.
The Contractor may at its sole discretion, periodically make reasonable modifications or
changes to the Technical Support Services and/or Product Maintenance Services provided.
Subscriber is responsible for ensuring that its personnel have sufficient training to attain
and maintain competence in the operation of the Software.
Technical Support Service is available through the Contractor's normal business hours,
Monday through Friday, 8:OOam through 8:OOpm, Eastern Standard Time on Business Days.
Extended coverage is available for an additional fee.
5. Our Protection of Your Data. The Contractor shall maintain reasonable
administrative, physical and technical safeguards for protection of the security, confidentiality
and integrity of the County's Data. The Contractor shall not (a) modify the County's Data, (b)
disclose the County's Data except as compelled by law in accordance with Section 14 of this
Exhibit A (Compelled Disclosure) or as expressly permitted in writing by the County, or (c)
access the County's Data except to provide the Services and prevent or address service or
technical problems, or at the County's request in connection with customer support matters.
6. Media Releases. Neither party shall use the name, trademark or logo of the
other party without the prior written consent of the other party. Notwithstanding the foregoing,
A-4
Exhibit A
the Contactor may use the County's name and identify the County as the Contractor's client in
advertising, marketing materials, press releases and similar materials.
7. Reservation of Rights in Services. Subject to the limited rights expressly
granted hereunder, the Contractor reserves all rights, title and interest in and to the Services,
including all related intellectual property rights. No rights are granted to the County hereunder
other than as expressly set forth herein.
8. Restrictions. The County shall not (i) permit any third-party to access the
Services except as permitted herein (ii) create derivative works based on the Services except as
contained herein, (iii) copy, frame or mirror any part or content of the Services, other than
copying or framing on the County's own intranets or otherwise for the County's own internal
business purposes, (iv) reverse engineer the Services, or (v) access the Services in order to (a)
build a competitive product or service, or (b) copy any features, functions or graphics of the
Services.
9. County Applications and Code. If the County, a third party acting on the
County's behalf, or a User creates applications or program code using the Services, the County
authorizes the Contractor to host, copy, transmit, display and adapt such applications and
program code, solely as necessary for the Contractor to provide the Services in accordance with
this Agreement. Subject to the above, the Contractor acquires no right, title or interest from the
County or the County's licensors under this Agreement in or to such applications or program
code, including any intellectual property rights therein.
10. County Data. Subject to the limited rights granted to the County in this
Agreement, the Contractor acquires no right, title or interest from the County or the County's
licensors under this Agreement in or to the County's Data, including any intellectual property
rights therein.
11. Suggestions. The Contractor shall have a royalty-free, worldwide, irrevocable,
perpetual license to use and incorporate into the Services any suggestions, enhancement
requests, recommendations or other feedback provided by the County, including Users, relating
A-5
Exhibit A
to the operation of the Services. The Contractor may additionally develop, modify, improve,
support, and operate Services based on the County's use, as applicable, of any Services.
12. Definition of Confidential Information. As used herein, "Confidential
Information" means all confidential information disclosed by a party ("Disclosing Party"), whether
orally or in writing, that is designated as confidential or that reasonably should be understood to
be confidential given the nature of the information and the circumstances of disclosure. The
County's Confidential Information shall include the County's Data; The Contractor's Confidential
Information shall include the Services; and Confidential Information of each party shall include
the terms and conditions of this Agreement, as well as business and marketing plans,
technology and technical information, product plans and designs, and business processes
disclosed by such party. However, Confidential Information (other than the County's Data) shall
not include any information that (i) is or becomes generally known to the public without breach
of any obligation owed to the Disclosing Party, (ii)was known to the party receiving information
("Receiving Party") prior to its disclosure by the Disclosing Party without breach of any
obligation owed to the Disclosing Party (iii) is received from a third party without breach of any
obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving
Party.
13. Protection of Confidential Information. The Receiving party shall use the
same degree of care that uses to protect the confidentiality of its own confidential information of
like kind (but in no event less than reasonable care) (i) not to use any Confidential Information of
the Disclosing Party for any purpose outside the scope of this Agreement or as required to
perform services hereunder, and (ii) except as otherwise authorized by the Disclosing Party in
writing, to limit access to Confidential Information of the Disclosing Party to those of its and its
Affiliates' employees, contractors and agents who need such access for purposes consistent
with this Agreement and who have signed confidentiality agreements with the Receiving Party
containing protections no less stringent than those herein. Neither party shall disclose the terms
of this Agreement or any Order Form to any third party other than its Affiliates and their legal
counsel and accountants without the other party's prior written consent.
A-6
Exhibit A
14. Compelled Disclosure. The Receiving Party may disclose Confidential
Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving
Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally
permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party
wishes to contest such disclosure. If the Receiving Party is compelled by law to disclose the
Disclosing Party's Confidential Information as part of a civil proceeding or otherwise to which the
Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the
Disclosing Party will reimburse the Receiving Party for its reasonable costs of compiling and
providing secure access to such Confidential Information.
A-7
Exhibit B
Compensation
The Contractor will be compensated for performance of its services under this
Agreement as provided in this Exhibit B. The Contractor is not entitled to any compensation
except as expressly provided in this Exhibit B.
SaaS Subscription Units Avg Unit Price Total
Grants NetworkTM Grantee Pre-Award Software 1 $26,200 $26,200.00
Grants NetworkTM Grantee Pre-Award 1 $5,350 $5,350.00
Software State Add On
Grants NetworkTM Grantee Post-Award Software 1 $52,950 $52,950.00
User License Fee 1-99 50 $300 $15,000.000
Recurring Annual Fee(s)Sub-Total $99 500.000
TOTAL YEAR 1 PRICE $99,500.00
TOTAL YEAR 2 PRICE $103,500.00
TOTAL YEAR 3 PRICE $107,500.00
TOTAL OPTIONAL YEAR 4 $111,750.00
TOTAL OPTION YEAR 5 $116,000.00
Pricing Notes
• eCivis Annual fees
o Year 1 term 10/01/23 - 9/30/24
• Terms of Payment:
o Software:
■ 100% upon Contract Effective Date (Net 45)
■ Year 2 due 365 days from Contract Effective Date and annually thereafter
o Professional Services:
■ 100% upon Contract Effective Date (Net 45)
• Additional user subscriptions shall be prorated from the applicable order date through the
remainder of the Term. The per-unit pricing shall be held throughout the Term, unless the
Contractor provides to the County notice at least 60-days in advance of a renewal period.
Any such pricing increase shall not exceed 7% of the pricing for the relevant Services,
unless the pricing had previously been designated as promotional or one-time.
• An approximate 10 percent buffer has been added to the maximum compensation allocated
for any additional Add-On software or individual User Licenses to be added throughout the
potential five-year term of this Agreement.
B-1
Exhibit C
Data Security
A. Definitions.
Capitalized terms used in this Exhibit C have the meanings set forth in this section A.
"Authorized Employees" means the Contractor's employees who have access to
Personal Information.
"Authorized Persons" means: (i) any and all Authorized Employees; and (ii) any and all of
the Contractor's subcontractors, representatives, agents, outsourcers, and consultants, and
providers of professional services to the Contractor, who have access to Personal Information and
are bound by law or in writing by confidentiality obligations sufficient to protect Personal Information
in accordance with the terms of this Exhibit C.
"Director" means the County's Director of Internal Services-Chief Information Officer or his
or her designee.
"Disclose" or any derivative of that word means to disclose, release, transfer, disseminate,
or otherwise provide access to or communicate all or any part of any Personal Information orally, in
writing, or by electronic or any other means to any person.
"Person" means any natural person, corporation, partnership, limited liability company,
firm, or association.
"Personal Information" means any and all information, including any data provided, or to
which access is provided, to the Contractor by or upon the authorization of the County, including
but not limited to vital records, that: (i) identifies, describes, or relates to, or is associated with, or is
capable of being used to identify, describe, or relate to, or associate with, a person (including,
without limitation, names, physical descriptions, signatures, addresses, telephone numbers, e-mail
addresses, education, financial matters, employment history, and other unique identifiers, as well
as statements made by or attributable to the person); (ii) is used or is capable of being used to
authenticate a person (including, without limitation, employee identification numbers, government-
issued identification numbers, passwords or personal identification numbers (PINs), financial
account numbers, credit report information, answers to security questions, and other personal
identifiers); or is personal information within the meaning of California Civil Code section 1798.3,
C-1
Exhibit C
subdivision (a), or 1798.80, subdivision (e). Personal Information does not include publicly
available information that is lawfully made available to the general public from federal, state, or
local government records.
"Privacy Practices Complaint" means a complaint received by the County relating to the
Contractor's (or any Authorized Person's) privacy practices, or alleging a Security Breach. Such
complaint shall have sufficient detail to enable the Contractor to promptly investigate and take
remedial action under this Exhibit C.
"Security Safeguards" means physical, technical, administrative, or organizational
security procedures and practices put in place by the Contractor(or any Authorized Persons)that
relate to the protection of the security, confidentiality, value, or integrity of Personal Information.
Security Safeguards shall satisfy the minimal requirements set forth in subsection C.(5)of this
Exhibit B.
"Security Breach" means (i) any act or omission that compromises either the security,
confidentiality, value, or integrity of any unencrypted Personal Information, or(ii) any unauthorized
Use, Disclosure, or modification of, or any loss or destruction of, or any corruption of or damage to,
any Personal Information due to a system compromise.
"Use" or any derivative thereof means to receive, acquire, collect, apply, manipulate,
employ, process, transmit, disseminate, access, store, disclose, or dispose of Personal
Information.
B. Standard of Care.
(1)The Contractor acknowledges that, in the course of its engagement by the County
under this Agreement, the Contractor, or any Authorized Persons, may Use Personal Information
only as permitted in this Agreement.
(2)The Contractor acknowledges that Personal Information is deemed to be confidential
information of, or owned by, the County(or persons from whom the County receives or has
received Personal Information) and is not confidential information of, or owned or by, the
Contractor, or any Authorized Persons. The Contractor further acknowledges that all right, title, and
interest in or to the Personal Information remains in the County (or persons from whom the County
C-2
Exhibit C
receives or has received Personal Information) regardless of the Contractor's, or any Authorized
Person's, Use of that Personal Information.
(3)To the extent the Contractor is accessing and processing County's unencrypted
Personal Information, the Contractor agrees and covenants in favor of the County that the
Contractor shall: (i) keep and maintain all Personal Information in strict confidence, using such
degree of care under this Subsection B as is reasonable and appropriate to avoid a Security
Breach; (ii) Use Personal Information exclusively for the purposes for which the Personal
Information is made accessible to the Contractor pursuant to the terms of this Exhibit C; (iii) not
Use, Disclose, sell, rent, license, or otherwise make available Personal Information for the
Contractor's own purposes or for the benefit of anyone other than the County, without the County's
express prior written consent, which the County may give or withhold in its sole and absolute
discretion; and (iv) not, directly or indirectly, Disclose Personal Information to any person (an
"Unauthorized Third Party") other than Authorized Persons pursuant to this Agreement, without the
Director's express prior written consent.
Notwithstanding the foregoing paragraph, in any case in which the Contractor believes it, or
any Authorized Person, is required to disclose Personal Information to government regulatory
authorities, or pursuant to a legal proceeding, or otherwise as may be required by applicable law,
the Contractor shall (a) immediately notify the County of the specific demand for, and legal
authority for the disclosure, including providing the County with a copy of any notice, discovery
demand, subpoena, or order, as applicable, received by the Contractor, or any Authorized Person,
from any government regulatory authorities, or in relation to any legal proceeding, and (b) promptly
notify the County before such Personal Information is offered by the Contractor for such disclosure
so that the County may have sufficient time to obtain a court order or take any other action the
County may deem necessary to protect the Personal Information from such disclosure, and the
Contractor shall cooperate with the County to minimize the scope of such disclosure of such
Personal Information.
To the extent provided by Contractor's insurance, the Contractor shall remain liable to the
County for the actions and omissions of any Unauthorized Third Party concerning its Use of such
C-3
Exhibit C
Personal Information as if they were the Contractor's own actions and omissions.
C. Information Security.
(1)The Contractor covenants, represents and warrants to the County that the Contractor's
Use of Personal Information under this Agreement does and shall at all times comply with all
federal, state, and local, privacy and data protection laws, as well as all other applicable regulations
and directives, including but not limited to California Civil Code, Division 3, Part 4, Title 1.81
(beginning with section 1798.80), and the Song-Beverly Credit Card Act of 1971 (California Civil
Code, Division 3, Part 4, Title 1.3, beginning with section 1747). If the Contractor Uses credit, debit,
or other payment cardholder information, the Contractor shall at all times remain in compliance with
the Payment Card Industry Data Security Standard ("PCI DSS") requirements, including remaining
aware at all times of changes to the PCI DSS and promptly implementing and maintaining all
procedures and practices as may be necessary to remain in compliance with the PCI DSS, in each
case, at the Contractor's sole cost and expense.
(2)The Contractor covenants, represents and warrants to the County that, as of the
Effective Date, the Contractor has not received notice of any violation of any privacy or data
protection laws, as well as any other applicable regulations or directives, and is not the subject of
any pending legal action or investigation by, any government regulatory authority regarding same.
(3)To the extent Contractor is using or accessing unencrypted Personal Information, the
Contractor's (or Authorized Person's) Security Safeguards shall be no less rigorous than accepted
industry practices and, at a minimum, include the following: (i) limiting Use of Personal Information
strictly to the Contractor's and Authorized Persons' technical and administrative personnel who are
necessary for the Contractor's, or Authorized Persons', Use of the Personal Information pursuant
to this Agreement; (ii) ensuring that all of the Contractor's connectivity to the County computing
systems will only be through the County's security gateways and firewalls, and only through
security procedures approved upon the express prior written consent of the Director; (iii)to the
extent that they contain or provide access to Personal Information, (a) securing the Contractor's
business facilities, data centers, paper files, servers, back-up systems and computing equipment,
operating systems, and software applications, including, but not limited to, all mobile devices and
C-4
Exhibit C
other equipment, operating systems, and software applications with information storage capability;
(b) employing adequate controls and data security measures with respect to the Contractor
Facilities and Equipment), both internally and externally, to protect(1)the Personal Information
from potential loss or misappropriation, or unauthorized Use, and (2)the County's operations from
disruption and abuse; (c) having and maintaining network, device application, database and
platform security; (d) maintaining authentication and access controls within media, computing
equipment, operating systems, and software applications; and (e) installing and maintaining in all
mobile, wireless, or handheld devices a secure internet connection, having continuously updated
anti-virus software protection and an ability to remove Contractor data from device; (iv) encrypting
all Personal Information at advance encryption standards of Advanced Encryption Standards
(AES) of 128 bit or higher(a) stored on any mobile devices, including but not limited to hard disks,
portable storage devices, or remote installation, or(b)transmitted over public or wireless networks
(the encrypted Personal Information must be subject to password or pass phrase, and be stored on
a secure server and transferred by means of a Virtual Private Network (VPN) connection, or
another type of secure connection; (v) having a patch management process including installation of
all operating system/software vendor security patches; (vii) maintaining appropriate personnel
security and integrity procedures and practices, including, but not limited to, conducting
background checks of Authorized Employees consistent with applicable law; and (viii) providing
appropriate privacy and information security training to Authorized Employees.
(4) During the term of each Authorized Employee's employment by the Contractor, the
Contractor shall cause such Authorized Employees to abide strictly by the Contractor's policies and
procedures. The Contractor further agrees that it shall maintain a disciplinary process to address
any unauthorized Use of Personal Information by any Authorized Employees.
(5)The Contractor shall, in a secure manner, backup daily, or more frequently if it is the
Contractor's practice to do so more frequently.
(6)The Contractor shall provide the County with support information and shall be available
to assist the County in reporting or responding to a Security Breach or a Privacy Practices
Complaint.
C-5
Exhibit C
D. Security Breach Procedures.
(1) Promptly, and without undue delay, upon the Contractor's confirmation of a Security
Breach that involves County sensitive data, the Contractor shall (a) notify the Director of the
Security Breach, such notice to be given first by telephone at the following telephone number, or by
email at the following email address: (559) 600-6200/servicedeskCa)_fresnocountyca.gov (which
telephone number and email address the County may update by providing notice to the
Contractor), and (b) preserve all relevant evidence (and cause any affected Authorized Person to
preserve all relevant evidence) relating to the Security Breach. The notification shall include, to the
extent reasonably possible, the identification of each type and the extent of Personal Information
that has been, or is reasonably believed to have been, breached, including but not limited to,
compromised, or subjected to unauthorized Use, Disclosure, or modification, or any loss or
destruction, corruption, or damage.
(2) Immediately following the Contractor's notification to the County of a Security Breach,
as provided pursuant to subsection D.(1) of this Exhibit C, the Parties shall coordinate with each
other to investigate the Security Breach if deemed applicable. the Contractor agrees to fully
cooperate with the County, including, without limitation: (i) assisting the County in conducting any
investigation;; and (ii) making available all relevant records, logs, files, data reporting and other
materials required to comply with applicable law, regulation, industry standards, or as otherwise
reasonably required by the County. Contractor shall provide a written report of the investigation and
reporting required to the Director within thirty (30) days after the Contractor's discovery of the
Security Breach.
(3)The County shall promptly notify the Contractor of the Director's knowledge, or
reasonable belief, of any Privacy Practices Complaint, and upon the Contractor's receipt of
notification thereof, the Contractor shall promptly address such Privacy Practices Complaint,
including taking any corrective action under this Exhibit C, all at the Contractor's sole expense, in
accordance with applicable privacy rights, laws, regulations and standards. In the event the
Contractor discovers a Security Breach, the Contractor shall treat the Privacy Practices Complaint
as a Security Breach. Within 24 hours of the Contractor's receipt of notification of such Privacy
C-6
Exhibit C
Practices Complaint, the Contractor shall notify the County whether the matter is a Security
Breach, or otherwise has been corrected and the manner of correction, or determined not to
require corrective action and the reason therefor.
(4)The Contractor shall take prompt corrective action to respond to and remedy any
Security Breach and take reasonable mitigating actions, including but not limiting to, preventing
reoccurrence of the Security Breach and correcting noted deficiencies in Security Safeguards as a
result of such Security Breach, all at the Contractor's sole expense, in accordance with applicable
privacy rights, laws, regulations and standards. the Contractor shall reimburse the County for all
reasonable costs incurred by the County in responding to, and mitigating damages caused by, any
Security Breach, including all costs of the County incurred in relation to any litigation or other action
described in subsection D. (5) of this Exhibit C. to the extent applicable: (1)the cost of providing
affected individuals with credit monitoring services for a specific period not to exceed twelve (12)
months, to the extent the incident could lead to a compromise of the data subject's credit or credit
standing; (2) call center support for such affected individuals for a specific period not to exceed
thirty (30) days; and (3)the cost of any measures required under applicable laws.
E. Oversight of Security Compliance.
(1)The Contractor shall have and maintain a written information security policy that
specifies Security Safeguards appropriate to the size and complexity of the Contractor's operations
and the nature and scope of its activities.
(2)The Contractor shall ensure that all Authorized Persons who Use Personal Information
agree to the same restrictions and conditions in this Exhibit C. that apply to the Contractor with
respect to such Personal Information by incorporating the relevant provisions of these provisions
into a valid and binding written agreement between the Contractor and such Authorized Persons,
or amending any written agreements to provide same.
F. Return or Destruction of Personal Information.
Upon the request of County at termination of this Agreement, the Contractor shall, and shall
instruct all Authorized Persons to, promptly return to the County all Personal Information, whether
in written, electronic or other form or media, in its possession or the possession of such Authorized
C-7
Exhibit C
Persons, in a machine readable form used by the County at the time of such return, or upon the
express prior written consent of the Director, securely destroy all such Personal Information, and
certify in writing to the County that such Personal Information have been returned to the County or
disposed of securely, as applicable. If the Contractor is authorized to dispose of any such Personal
Information, as provided in this Exhibit C, such certification shall state the date, time, and manner
(including standard) of disposal and by whom, specifying the title of the individual. The Contractor
shall comply with all reasonable directions provided by the Director with respect to the return or
disposal of Personal Information and copies thereof. If return or disposal of such Personal
Information or copies of Personal Information is not feasible, the Contractor shall notify the County
accordingly, specifying the reason, and continue to extend the protections of this Exhibit C to all
such Personal Information and copies of Personal Information. The Contractor shall not retain any
copy of any Personal Information after returning or disposing of Personal Information as required
by this section F. The Contractor's obligations under this section F survive the termination of this
Agreement and apply to all Personal Information that the Contractor retains if return or disposal is
not feasible and to all Personal Information that the Contractor may later discover.
G. Equitable Relief.
The Contractor acknowledges that any breach of its covenants or obligations set forth in
this Exhibit C may cause the County irreparable harm for which monetary damages would not be
adequate compensation and agrees that, in the event of such breach or threatened breach, the
County is entitled to seek equitable relief, including a restraining order, injunctive relief, specific
performance and any other relief that may be available from any court, in addition to any other
remedy to which the County may be entitled at law or in equity. Such remedies shall not be
deemed to be exclusive but shall be in addition to all other remedies available to the County at law
or in equity or under this Agreement.
H. Indemnification.
The Contractor shall defend, indemnify and hold harmless the County, its officers,
employees, and agents, (each, a "County Indemnitee")from and against any and all infringement
of intellectual property such as infringement of US or Canadian copyright, trademark, or trade
C-8
Exhibit C
secret. With respect to the unauthorized Use, Disclosure, or modification of, or any loss or
destruction of, or any corruption of or damage to, Personal Information, to the extent directly
caused by Contractor, up to the amount provided in its insurance Contractor will defend, indemnify
and hold harmless County Indemnitees for Security Breach response and remedy costs, credit
monitoring expenses, forfeitures, losses, damages, liabilities, deficiencies, actions,judgments,
interest, awards, fines, and penalties (including regulatory fines and penalties), costs or expenses
of whatever kind, including attorney's fees and costs, the cost of enforcing any right to
indemnification or defense under this Exhibit C and the cost of pursuing any insurance providers,
arising out of or resulting from any third party claim or action against any County Indemnitee in
relation to the Contractor, its officers, employees, or agents, or any Authorized Employee's or
Authorized Person's, performance or failure to perform under this Attachment "A" or arising out of
or resulting from the Contractor's failure to comply with any of its obligations under this section H.
The provisions of this section H do not apply to the acts or omissions of the County. The provisions
of this section H are cumulative to any other obligation of the Contractor to, defend, indemnify, or
hold harmless any County Indemnity under this Agreement. The provisions of this section H shall
survive the termination of this Agreement.
I. Survival.
The respective rights and obligations of the Contractor and the County as stated in this
Exhibit C shall survive the termination of this Agreement.
J. No Third Party Beneficiary.
Nothing express or implied in the provisions of in this Exhibit C is intended to confer, nor
shall anything herein confer, upon any person other than the County or the Contractor and their
respective successors or assignees, any rights, remedies, obligations or liabilities whatsoever.
L. No County Warranty.
The County does not make any warranty or representation whether any Personal Information in the
Contractor's (or any Authorized Person's) possession or control, or Use by the Contractor(or any
Authorized Person), pursuant to the terms of this Agreement is or will be secure from unauthorized
Use, or a Security Breach or Privacy Practices Complaint.
C-9
Exhibit D
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).
D-1
Exhibit D
(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:
D-2
Exhibit E
Insurance Requirements
1. Required Policies
Without limiting the County's right to obtain indemnification from the Contractor or any third
parties, the 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
policy.
(B) Automobile Liability. Automobile liability insurance with limits of not less than One
Million Dollars ($1,000,000) per occurrence for bodily injury and for property damages.
Coverage must include any auto used in connection with this Agreement.
(C)Workers Compensation. Workers compensation insurance as required by the laws of
the State of California with statutory limits.
(D) Employer's Liability. Employer's liability insurance with limits of not less than One
Million Dollars ($1,000,000) per occurrence for bodily injury and for disease.
(E) 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.
(F) Cyber Liability. Cyber liability insurance with limits of not less than Two Million Dollars
($2,000,000) per occurrence. Coverage must include claims involving Cyber Risks. The
cyber liability policy must be endorsed 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.
Definition of Cyber Risks. "Cyber Risks" include but are not limited to (i) Security
Breach, which may include Disclosure of Personal Information to an Unauthorized Third
Party; (ii) data breach; (iii) breach of any of the Contractor's obligations under Exhibit C
of this Agreement; (iv) system failure; (v) data recovery; (vi)failure to timely disclose
data breach or Security Breach; (vii)failure to comply with privacy policy; (viii) payment
card liabilities and costs; (ix) infringement of intellectual property, including but not
limited to infringement of copyright, trademark, and trade dress; (x) invasion of privacy,
including release of private information; (xi) information theft; (xii) damage to or
destruction or alteration of electronic information; (xiii) cyber extortion; (xiv) extortion
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Exhibit E
related to the Contractor's obligations under this Agreement regarding electronic
information, including Personal Information; (xv)fraudulent instruction; (xvi) funds
transfer fraud; (xvii) telephone fraud; (xviii) network security; (xix) data breach response
costs, including Security Breach response costs; (xx) regulatory fines and penalties
related to the Contractor's obligations under this Agreement regarding electronic
information, including Personal Information; and (xxi) credit monitoring expenses.
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 HRRiskMan age ment@fresnocou_ntvca.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
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
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Exhibit E
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
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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