HomeMy WebLinkAboutc0bca091-65c1-40ea-b3b4-e8abbf983684.pdf Agreement No. 24-057
1 SOFTWARE LICENSE AND SERVICE AGREEMENT
2 This Software License and Service Agreement ("Agreement") is dated
3 January 23, 2024 and is between DFM Associates, Incorporated, a California corporation
4 ("Contractor"), and the County of Fresno, a political subdivision of the State of California
5 ("County").
6 Recitals
7 A. The Contractor has been providing the licensing, training, support, and maintenance for
8 the Election Information Management System ("EIMS") Software to the County continuously
9 since the year 2000.
10 B. EIMS Software is the elections management system used daily by the County to
11 maintain voter records, candidate and campaign filing, petitions, vote centers, and election night
12 retrieval teams. The EIMS Software forms the foundation for all County Clerk/Registrar of
13 Voters' Department functions.
14 C. County and Contractor desire to enter into this Agreement for the Contractor's grant of
15 the EIMS Software license and the provision of training, support, and maintenance of the EIMS
16 Software under the terms of this Agreement.
17 The parties therefore agree as follows:
18 Article 1
19 Definitions
20 1.1 Deliverable: A product and/or service in this Agreement to be delivered to the County
21 by the Contractor and shall include installation, training, and documentation as set forth in this
22 Agreement and as necessary to constitute a testable package and to permit the County to
23 adequately perform the acceptance process.
24 1.2 County's Data: All data and information stored by the County in any database in any
25 format.
26 1.3 EIMS® Software ("EIMS Software" or"EIMS" or"EIMS®" or"Software"): The
27 Election Information Management System (EIMS) software, data conversion, installation, and
28 training.
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1 1.4 Manuals: Any documents, reports, instructions or writings, and any annotations
2 thereto, that explain or depict, generally or in detail, any aspect of the EIMS Software, including
3 but not limited to, all procedures and workings thereof, and the Manuals may be on any format,
4 including hard copy, on disk or on CD-ROM or any other media.
5 1.5 New Releases: Any added functionality or changes to functionality of programs and
6 materials not included in the EIMS Software at the time of the execution of this Agreement.
7 1.6 Operating System Software: The operating system software provided by a third
8 party vendor on any computer used by the County on which the EIMS Software will operate.
9 1.7 Software Enhancement: The addition of a new EIMS Software Subsystem or the
10 revision of any existing Subsystem for the EIMS Software.
11 1.8 Software Maintenance and Support: All EIMS Software error correction and all
12 upgrades and enhancements to the EIMS Software to be provided by the Contractor to the
13 County under this Agreement.
14 1.9 Software Release: The most recent revision of the EIMS Software.
15 1.10 Software Use: Copying any portion of the EIMS Software from a storage unit or
16 media into an appropriate computer system and execution of the EIMS Software on said
17 computer system.
18 1.11 Third Party Software: Any software, the rights of which are owned or held by a
19 corporation or entity other than the Contractor.
20 Article 2
21 Contractor's Services
22 2.1 Scope of Services. The Contractor shall perform all of the services and grant to the
23 County the EIMS Software license provided in Exhibit A to this Agreement, titled "Scope of
24 Services and Grant of License."
25 2.2 Representation. The Contractor represents that it is qualified, ready, willing, and
26 able to perform all of the services and grant to the County the EIMS Software license provided
27 in this Agreement. Contractor further represents that it has the right to grant the licenses
28 granted to County hereunder. This Section 2.2 survives the termination of this Agreement.
2
1 2.3 Compliance with Laws. The Contractor shall, at its own cost, comply with all
2 applicable federal, state, and local laws and regulations in the performance of its obligations
3 under this Agreement, including but not limited to workers compensation, labor, and
4 confidentiality laws and regulations.
5 2.4 Viruses and Disabling Mechanisms. Contractor shall use commercially
6 reasonable, diligent measures to screen the EIMS Software provided under this Agreement to
7 avoid introducing, or coding of, any virus or other destructive programming designed to permit
8 unauthorized access or use by third parties to the EIMS Software installed on County's systems,
9 or to disable or damage the County's systems (each, a "Virus"). Without limiting the rights and
10 remedies of the County, in the event any Virus is introduced into the County's systems through
11 the EIMS Software provided under this Agreement, whether or not such introduction is
12 attributable to the Contractor (including the Contractor's failure to perform its obligations under
13 this Agreement), the Contractor shall, as soon as practicable, exercise good faith and diligently
14 use its commercially reasonable, best efforts to assist the County in eliminating the effects of
15 the Virus, and if the Virus causes a loss of operational efficiency or loss of data, upon the
16 County's request, diligently work as soon as practicable to contain and remedy the problem and
17 to restore lost data resulting from the introduction of such Virus. Contractor shall not insert into
18 any of the EIMS Software provided under this Agreement any code or other device that would
19 have the effect of disabling or otherwise shutting down all or any portion of the EIMS Software.
20 Contractor shall not invoke such code or other device at any time, including upon expiration or
21 termination of this Agreement for any reason. This Section 2.4 survives the termination of this
22 Agreement.
23 Article 3
24 County's Responsibilities
25 3.1 Access to Facilities.
26 The County shall provide Contractor and its staff, employees, and authorized agents any
27 necessary access to the County Clerk/Registrar of Voters' Department facilities, including the
28 County Clerk/Registrar of Voters' computers on which the EIMS system operates, and shall
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1 provide them with adequate space therein (including a desk, work area and computer), to
2 enable Contractor to perform its obligations under this Agreement in an effective, efficient, and
3 professional manner. Access shall be provided during the County's usual business hours,
4 Monday through Friday, 8:00 a.m. to 5:00 p.m., except on County holidays, upon reasonable
5 prior notice except in the case of an emergency when access shall be provided as soon as is
6 reasonably practicable.
7 3.2 Operating System Software.
8 Contractor acknowledges that upon the commencement of this Agreement, the County's
9 Operating System Software is Windows Enterprise, and that such Operating System Software is
10 fully-compatible with the EIMS Software being provided by Contractor as of such date for this
11 Agreement. The County shall be solely responsible for, and shall pay all costs and expenses
12 associated with, the purchase or license of, and the installation and maintenance of, the
13 appropriate version of the Operating System Software required by Contractor as provided in this
14 Section 3.2. The County acknowledges and understands that upgrading of computer hardware
15 and of the Operating System Software and any other applications software used in conjunction
16 with the EIMS Software will be required from time to time; provided, however, in any event, (a)
17 Contractor shall give the County at least one-hundred twenty (120) days prior written notice of
18 the need to upgrade or replace the version of the Operating System Software which the County
19 is then using, and Contractor shall consult with the County's user group regarding the
20 scheduling of such changes, and (b) Contractor shall exercise good faith and diligently use its
21 commercially reasonable, best efforts to anticipate any foreseeable need for upgrades or
22 replacements of the then-current version of the Operating System Software which the County is
23 then using in order to avoid unnecessary costs and expenses to the County in making such
24 upgrades or replacements.
25 3.3 Responsibility for County's Data.
26 At all times during the term of this Agreement, the County shall retain all ownership rights in the
27 County's Data. In addition, notwithstanding any use by the County of any EIMS Software in
28 connection therewith, the County shall be solely responsible and accountable for the accuracy
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1 and completeness of, and for any use, publication, or other dissemination of the County's Data.
2 If the County uses, publishes or otherwise disseminates, or otherwise allows any access to, any
3 portion of the County's Data, whether before or after it has been manipulated by the EIMS
4 Software, and whether or not it is a commercial or non-commercial use, by doing so the County
5 is representing to Contractor that it has accepted, ratified and approved the accuracy and
6 completeness of the County's Data and accepts full responsibility for it.
7 3.4 Confidentiality.
8 A) EIMS Software.
9 The Contractor represents and claims that materials and information provided under this
10 Agreement, including but not limited to the EIMS Software, system documentation, and all
11 subsequent updates, revisions or work around supplied by the Contractor, are considered by
12 the Contractor to be confidential, proprietary, and trade secrets, which the Contractor believes
13 to be exempt from disclosure to the public under the Uniform Trade Secrets Act, California Civil
14 Code section 3426 et seq. and the California Public Records Act, California Government Code
15 sections 7922.000, 7930.175, and 7930.205. The Contractor shall prominently mark the
16 materials and information it represents and claims to be confidential, proprietary, and trade
17 secrets as "Confidential" or otherwise, and all oral disclosures shall be confirmed in writing
18 within ten (10) business days of disclosure to the County and so marked. Notwithstanding
19 anything to the contrary above, materials and information that the Contractor represents and
20 claims to be confidential, proprietary, and trade secrets shall exclude: (a) information in the
21 public domain; (b) information known to the County as of the date of this Agreement, unless the
22 County agreed to keep such information in confidence at the time of its receipt; and (c)
23 information obtained by the County on a non-confidential basis from a source that is entitled to
24 disclose it on a non-confidential basis. Except for the California Public Records Act process
25 described in Section 3.4(B), below, the County agrees to take all steps reasonably necessary to
26 prevent the unauthorized disclosure or reproduction of such material or information that the
27 Contractor represents and claims to be confidential, proprietary, and trade secrets. In
28 furtherance hereof, the County agrees as follows:
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1 1) The County shall use its good faith reasonable efforts to restrict access to any
2 computers running or able to access the EIMS Software, and to the EIMS Software itself, to
3 prevent unauthorized personnel from acquiring significant or confidential information
4 concerning the EIMS Software.
5 2) To the extent reasonably practicable, the County shall require all persons who will
6 have access to the EIMS Software to sign a confidentiality agreement provided in Exhibit B.
7 3) The County shall not duplicate or reproduce (except to the extent reasonably required
8 to back-up the EIMS Software in the ordinary course of business), in any manner, the
9 EIMS Software, or any component or constituent parts thereof, and agrees not to
10 disseminate, display or use the EIMS Software except as is reasonably necessary for the
11 County to perform its functions using the EIMS Software and to comply with the terms
12 of this Agreement.
13 4) The County shall notify the Contractor immediately of any and all known or suspected,
14 unauthorized disclosures of the EIMS Software.
15 5) The County agrees to provide Contractor with written notice of any actual infringement
16 within thirty (30) days of notice thereof by or to the County.
17 B) Required Disclosure.
18 Any written or oral request that the County receives under the California Public Records Act,
19 Government Code section 7920.000 et seq., or that the County reasonably determines is a
20 request under the California Public Records Act, to publicly disclose materials or information
21 provided under this Agreement that are considered by the Contractor to be confidential,
22 proprietary, and trade secrets and which the Contractor believes to be exempt from disclosure,
23 including but not limited to the EIMS Software, system documentation, and all subsequent
24 updates, revisions or work around supplied by the Contractor, will be handled by the County as
25 follows:
26 (1) The County will promptly notify the Contractor of the request. The Contractor
27 shall promptly, but in no event more than forty-eight (48) hours from the time and
28 date that the County notifies the Contractor of the request, respond to the County in
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1 writing by stating whether the Contractor objects to the release of the records to the
2 member of the public. If the Contractor objects to the release, such notice of the
3 Contractor shall give the County the specific reason(s)why the Contractor believes
4 the records should not be released, citing to the specific facts and legal authority
5 supporting its position. If the Contractor fails to timely object to the release of the
6 records to the member of the public, the Contractor shall be deemed to have waived
7 any and all rights, if any, to claim that the records are confidential or exempt from
8 disclosure to members of the public.
9 (2) If the County, after considering such reason(s) given by the Contractor,
10 chooses to release or not release the records, the County may, in its sole discretion,
11 release or not release such records.
12 (3) If the County chooses not to release such records, the Contractor shall, in
13 addition to other indemnification and defense provisions as provided in Sections 9.1
14 and 9.2 hereof, protect, indemnify, and hold harmless the County, its elective and
15 appointive boards, officers, agents, and employees from any and all claims, suits,
16 liabilities, expenses, costs, damages, or judgments of any nature, including attorney
17 fees arising out of, or in any way connected with the County's failure or refusal to
18 release such records to such member of the public. In addition, if the member of the
19 public requesting the records pursues legal action against the County in order to
20 obtain access to the records, the Contractor shall, at its own expense, appear
21 through legal counsel in such court action by joining in the defense of the County.
22 C) County Information.
23 The Contractor agrees to maintain the confidentiality of all County and County-related records
24 and information pursuant to all statutory laws relating to privacy and confidentiality that currently
25 exist or exist at any time during the term of this Agreement. All such records and information
26 shall be considered confidential and kept confidential by the Contractor and the Contractor's
27 staff, agents, and employees. The Contractor shall use reasonable diligence, and in no event
28 less than the reasonable degree of care which it uses in respect to its own confidential and
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1 proprietary records and information of a like nature, to prevent the unauthorized disclosure or
2 reproduction of such records and information.
3 Article 4
4 Compensation, Invoices, and Payments
5 4.1 The County agrees to pay, and the Contractor agrees to receive, compensation for
6 the performance of its services and grant to County of the EIMS Software license under this
7 Agreement as described in this section. Upon execution of this Agreement and annually
8 thereafter, Contractor will invoice County and County shall pay the sum of One Hundred Eighty-
9 Two Thousand Six Hundred Ninety-Two Dollars ($182,692.00) for the cost of licensing and
10 services, including any applicable taxes, for each 12-month period of this Agreement.
11 4.2 Maximum Compensation.
12 In no event shall maximum compensation payable by the County to the Contractor under this
13 Agreement be in excess of Nine Hundred Thirteen Thousand Four Hundred Sixty Dollars
14 ($913,460.00)for a full five-year term. For the period of July 1, 2023 to June 30, 2026, the
15 maximum compensation payable by the County to the Contractor shall not exceed Five
16 Hundred Forty-Eight Thousand Seventy-Six Dollars ($548,076.00). Should this Agreement be
17 extended under Section 5.2 hereof, the maximum compensation payable by the County to the
18 Contractor for each subsequent 12-month period shall be as follows: July 1, 2026 to June 30,
19 2027, One Hundred Eighty-Two Thousand Six Hundred Ninety-Two Dollars ($182,692.00); and
20 July 1, 2027 to June 30, 2028, One Hundred Eighty-Two Thousand Six Hundred Ninety-Two
21 Dollars ($182,692.00). The Contractor acknowledges that the County is a local government
22 entity and does so with notice that the County's powers are limited by the California Constitution
23 and by State law, and with notice that the Contractor may receive compensation under this
24 Agreement only for licensing and services performed according to the terms of this Agreement
25 and while this Agreement is in effect, and subject to the maximum amount payable under this
26 section. The Contractor further acknowledges that County employees have no authority to pay
27 the Contractor except as expressly provided in this Agreement.
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1 4.3 Invoices. The Contractor shall submit annual invoices to the County Clerk/Registrar
2 of Voters' Department Business Manager at 2221 Kern Street, Fresno, CA 93721 and
3 countyclerkfinance@fresnocountyca.gov. For the first 12-month period of this Agreement (July
4 1, 2023 through June 30, 2026), the Contractor shall submit an invoice within 60 days after the
5 date this Agreement is signed. The Contractor shall submit an invoice within 60 days after July
6 1 of each subsequent 12-month period of this Agreement.
7 4.4 Payment. The County shall pay each correctly completed and timely submitted
8 invoice within 45 days after receipt. The County shall remit any payment to the Contractor's
9 address specified in the invoice.
10 4.5 Incidental Expenses. The Contractor is solely responsible for all of its costs and
11 expenses that are not specified as payable by the County under this Agreement.
12 Article 5
13 Term of Agreement
14 5.1 Term. This Agreement is effective retroactively to July 1, 2023 and terminates on
15 June 30, 2026, except as provided in section 5.2, "Extension," or Article 7, "Termination and
16 Suspension," below..
17 5.2 Extension. The term of this Agreement may be extended for no more than two, one-
18 year periods only upon written approval of both parties at least 30 days before the first day of
19 the next one-year extension period. The County Clerk/Registrar of Voters or his or her designee
20 is authorized to sign the written approval on behalf of the County based on the Contractor's
21 satisfactory performance. The extension of this Agreement by the County is not a waiver or
22 compromise of any default or breach of this Agreement by the Contractor existing at the time of
23 the extension whether or not known to the County.
24 Article 6
25 Notices
26 6.1 Contact Information. The persons and their addresses having authority to give and
27 receive notices provided for or permitted under this Agreement include the following:
28 For the County:
Fresno County Clerk/Registrar of Voters
9
1 County of Fresno
2221 Kern Street
2 Fresno, CA 93721
Clerk-elections@fresnoCountyca.gov
3
4 For the Contractor:
President
5 DFM Associates, Inc.
10 Chrysler, Suite A
6 Irvine, CA 92618-2008
tgdiebolt@dfmassociates.com
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6.2 Change of Contact Information. Either party may change the information in Section
8
6.1 by giving notice as provided in Section 6.3.
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6.3 Method of Delivery. Each notice between the County and the Contractor provided
10
for or permitted under this Agreement must be in writing, state that it is a notice provided under
11
this Agreement, and be delivered either by personal service, by first-class United States mail, by
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an overnight commercial courier service, by telephonic facsimile transmission, or by Portable
13
Document Format (PDF) document attached to an email.
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(A) A notice delivered by personal service is effective upon service to the recipient.
15
(B) A notice delivered by first-class United States mail is effective three County
16
business days after deposit in the United States mail, postage prepaid, addressed to the
17
recipient.
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(C)A notice delivered by an overnight commercial courier service is effective one
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County business day after deposit with the overnight commercial courier service,
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delivery fees prepaid, with delivery instructions given for next day delivery, addressed to
21
the recipient.
22
(D)A notice delivered by telephonic facsimile transmission or by PDF document
23
attached to an email is effective when transmission to the recipient is completed (but, if
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such transmission is completed outside of County business hours, then such delivery is
25
deemed to be effective at the next beginning of a County business day), provided that
26
the sender maintains a machine record of the completed transmission.
27
6.4 Claims Presentation. For all claims arising from or related to this Agreement,
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nothing in this Agreement establishes, waives, or modifies any claims presentation
10
1 requirements or procedures provided by law, including the Government Claims Act (Division 3.6
2 of Title 1 of the Government Code, beginning with section 810).
3 Article 7
4 Termination and Suspension
5 7.1 Termination for Non-Allocation of Funds. The terms of this Agreement are
6 contingent on the approval of funds by the appropriating government agency. If sufficient funds
7 are not allocated, then the County, upon at least 30 days' advance written notice to the
8 Contractor, may:
9 (A) Modify the services provided by the Contractor under this Agreement; or
10 (B) Terminate this Agreement.
11 7.2 Termination for Breach.
12 (A) Upon determining that a breach (as defined in paragraph (C) below) has
13 occurred, the County may give written notice of the breach to the Contractor. The written
14 notice may suspend performance under this Agreement, and must provide at least 30
15 days for the Contractor to cure the breach.
16 (B) If the Contractor fails to cure the breach to the County's satisfaction within the
17 time stated in the written notice, the County may terminate this Agreement immediately.
18 (C) For purposes of this section, a breach occurs when, in the determination of the
19 County, the Contractor has:
20 (1) Obtained or used funds illegally or improperly;
21 (2) Failed to comply with any part of this Agreement;
22 (3) Submitted a substantially incorrect or incomplete report to the County; or
23 (4) Improperly performed any of its obligations under this Agreement.
24 7.3 Termination without Cause. In circumstances other than those set forth above, the
25 County may terminate this Agreement by giving at least 30 days advance written notice to the
26 Contractor.
27 7.4 No Penalty or Further Obligation. Any termination of this Agreement by the County
28 under this Article 7 is without penalty to or further obligation of the County.
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1 7.5 County's Rights upon Termination. Upon termination for breach under this Article
2 7, the County may demand repayment by the Contractor of any monies disbursed to the
3 Contractor under this Agreement that, in the County's sole judgment, were not expended in
4 compliance with this Agreement. The Contractor shall promptly refund all such monies upon
5 demand. This section survives the termination of this Agreement.
6 7.6 Debilitating Event. Any of the following events, which occur with respect to the
7 Contractor, shall be deemed to be a Debilitating Event and such cause this Agreement to be
8 modified immediately upon notice to the County of such Debilitating Event and shall cause the
9 Agreement to terminate automatically two hundred forty (240) days thereafter:
10 (a) Any assignment by the Contractor for the benefit of its creditors; or the entry of a court
11 order appointing a receiver or trustee for all or substantially all of the Contractor's assets or
12 properties, which order shall not be vacated, set aside or stayed within sixty (60) days from
13 the day of entry of said court order; or the filing by the Contractor of a petition in bankruptcy
14 or the commencement of any similar proceeding under any law for the relief of debtors by or
15 against the Contractor;
16 (b) Any permanent cessation by the Contractor of its business, which is not succeeded to by
17 a successor in interest; or
18 (c) Depositor's failure to carry out obligations imposed on it pursuant to the License
19 Agreement.
20 7.7. Obligations of the County at Termination of Agreement. Except as provided in
21 Section 7.8 hereof, immediately upon the termination of this Agreement, the County shall return
22 to the Contractor any and all tangible manifestations of any EIMS Software previously delivered
23 by the Contractor to the County, and any copies, duplicates or reproductions thereof, whether
24 authorized or not.
25 7.8. Source Code Escrow. The Contractor agrees to maintain a complete copy of the EIMS
26 Software and source code licensed under the terms of this Agreement in an escrow account.
27 This source code will be made available from the escrow agent to the County upon the
28 termination of this Agreement as a result of a Debilitating Event as defined in Section 7.6
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1 hereof. In such case, copies of the source programs and system documentation will be provided
2 to the County. The County has restricted access to all modules it has accepted from the
3 Contractor, but may not transfer source codes or documentation to any other agency or
4 commercial business, under any conditions. The County may make copies for its own use. Any
5 charges for the services of the escrow agent will be the responsibility of the County.
6 Article 8
7 Independent Contractor
8 8.1 Status. In performing under this Agreement, the Contractor, including its officers,
9 agents, employees, and volunteers, is at all times acting and performing as an independent
10 contractor, in an independent capacity, and not as an officer, agent, servant, employee,joint
11 venturer, partner, or associate of the County.
12 8.2 Verifying Performance. The County has no right to control, supervise, or direct the
13 manner or method of the Contractor's performance under this Agreement, but the County may
14 verify that the Contractor is performing according to the terms of this Agreement.
15 8.3 Benefits. Because of its status as an independent contractor, the Contractor has no
16 right to employment rights or benefits available to County employees. The Contractor is solely
17 responsible for providing to its own employees all employee benefits required by law. The
18 Contractor shall save the County harmless from all matters relating to the payment of
19 Contractor's employees, including compliance with Social Security withholding and all related
20 regulations.
21 8.4 Services to Others. The parties acknowledge that, during the term of this
22 Agreement, the Contractor may provide services to others unrelated to the County.
23 Article 9
24 Indemnity and Defense
25 9.1 Indemnity. The Contractor shall indemnify and hold harmless and defend the
26 County (including its officers, agents, employees, and volunteers) against all claims, demands,
27 injuries, damages, costs, expenses (including attorney fees and costs), fines, penalties, and
28 liabilities (except as otherwise expressly limited under Exhibit A, Section 8) of any kind to the
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1 County, the Contractor, or any third party that arise from or relate to the performance or failure
2 to perform by the Contractor (or any of its officers, agents, subcontractors, or employees) under
3 this Agreement. The County may conduct or participate in its own defense without affecting the
4 Contractor's obligation to indemnify and hold harmless or defend the County.
5 9.2 In addition to the provisions of Section 9.1 hereof, the Contractor agrees to indemnify
6 and hold harmless and defend the County (including its officers, agents, employees, and
7 volunteers) against all claims, demands, injuries, damages, costs, expenses (including attorney
8 fees and costs), fines, penalties, and liabilities (except as otherwise expressly limited under
9 Exhibit A, Section 8) of any kind to the County, for infringing upon or violating any intellectual
10 property rights, including, but not limited to, any United States patent or rights of any third party
11 of any copyright, trade secret, trademark or trade dress right of any third party, arising out of the
12 County's use of the EIMS Software provided the Contractor is notified, in writing, within thirty
13 (30) days of notice thereof by or to the County of the claim and is given complete authority and
14 information known to the County that is required for defending or settling any charge or suit
15 resulting therefrom, provided however, Contractor shall keep the County reasonably informed of
16 the status and outcome of any such settlement or suit. The Contractor, immediately following
17 the County's notification in writing as provided in the preceding sentence, shall, without any cost
18 or expense to the County, forthwith either procure for the County the right to continue using
19 same, or modify or replace such item to become non-infringing or non-violative, to result in the
20 County's uninterrupted use of the EIMS Software with substantially the same functionality and
21 performance but without diminishing the Contractor's obligations under this Agreement. The
22 County shall, with respect to any claim by a third party of infringement or violation of any such
23 intellectual proprietary rights, cease use of the EIMS Software or part thereof which is the
24 subject of such claim, only upon the County becoming the subject of an order of a court of
25 proper jurisdiction to such effect.
26 9.3 Survival. This Article 9 survives the termination of this Agreement.
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1 Article 10
2 Insurance
3 10.1 The Contractor shall comply with all the insurance requirements in Exhibit D to this
4 Agreement.
5 10.2 Survival. This Article 10 survives the termination of this Agreement.
6 Article 11
7 Inspections, Audits, and Public Records
8 11.1 Inspection of Documents. The Contractor shall make available to the County, and
9 the County may examine at any time during business hours and as often as the County deems
10 necessary, all of the Contractor's records and data with respect to the matters covered by this
11 Agreement, excluding attorney-client privileged communications. The Contractor shall, upon
12 request by the County, permit the County to audit and inspect all of such records and data to
13 ensure the Contractor's compliance with the terms of this Agreement. This Section 11.1
14 survives the termination of this Agreement.
15 11.2 State Audit Requirements. If the compensation to be paid by the County under this
16 Agreement exceeds $10,000, the Contractor is subject to the examination and audit of the
17 California State Auditor, as provided in Government Code section 8546.7, for a period of three
18 years after final payment under this Agreement. This section survives the termination of this
19 Agreement.
20 11.3 Public Records. Except as provided for in Section 3.4 hereof, the County is not
21 limited in any manner with respect to its public disclosure of this Agreement or any record or
22 data that the Contractor may provide to the County. The County's public disclosure of this
23 Agreement or any record or data that the Contractor may provide to the County may include but
24 is not limited to the following:
25 (A) The County may voluntarily, or upon request by any member of the public or
26 governmental agency, disclose this Agreement to the public or such governmental
27 agency.
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1 (B) The County may voluntarily, or upon request by any member of the public or
2 governmental agency, disclose to the public or such governmental agency any record or
3 data that the Contractor may provide to the County, unless such disclosure is prohibited
4 by court order.
5 (C)This Agreement, and any record or data that the Contractor may provide to the
6 County, is subject to public disclosure under the Ralph M. Brown Act (California
7 Government Code, Title 5, Division 2, Part 1, Chapter 9, beginning with section 54950).
8 (D)This Agreement, and any record or data that the Contractor may provide to the
9 County, is subject to public disclosure as a public record under the California Public
10 Records Act (California Government Code, Title 1, Division 10, beginning with section
11 7920.000) ("CPRA").
12 (E) This Agreement, and any record or data that the Contractor may provide to the
13 County, is subject to public disclosure as information concerning the conduct of the
14 people's business of the State of California under California Constitution, Article 1,
15 section 3, subdivision (b).
16 (F) Except as provided for in Section 3.4 hereof, any marking of confidentiality or
17 restricted access upon or otherwise made with respect to any record or data that the
18 Contractor may provide to the County shall be disregarded and have no effect on the
19 County's right or duty to disclose to the public or governmental agency any such record
20 or data.
21 11.4 Public Records Act Requests. If the County receives a written or oral request
22 under the CPRA to publicly disclose any record that is in the Contractor's possession or control,
23 and which the County has a right, under any provision of this Agreement or applicable law, to
24 possess or control, then the County may demand, in writing, that the Contractor deliver to the
25 County, for purposes of public disclosure, the requested records that may be in the possession
26 or control of the Contractor. Within five business days after the County's demand, the
27 Contractor shall (a) deliver to the County all of the requested records that are in the Contractor's
28 possession or control, together with a written statement that the Contractor, after conducting a
16
1 diligent search, has produced all requested records that are in the Contractor's possession or
2 control, or (b) provide to the County a written statement that the Contractor, after conducting a
3 diligent search, does not possess or control any of the requested records. The Contractor shall
4 cooperate with the County with respect to any County demand for such records. If the
5 Contractor wishes to assert that any specific record or data is exempt from disclosure under the
6 CPRA or other applicable law, it must deliver the record or data to the County and assert the
7 exemption by citation to specific legal authority within the written statement that it provides to
8 the County under this section. The Contractor's assertion of any exemption from disclosure is
9 not binding on the County, but the County will give at least 10 days' advance written notice to
10 the Contractor before disclosing any record subject to the Contractor's assertion of exemption
11 from disclosure. The Contractor shall indemnify the County for any court-ordered award of costs
12 or attorney's fees under the CPRA that results from the Contractor's delay, claim of exemption,
13 failure to produce any such records, or failure to cooperate with the County with respect to any
14 County demand for any such records.
15 Article 12
16 Disclosure of Self-Dealing Transactions
17 12.1 Applicability. This Article 12 applies if the Contractor is operating as a corporation,
18 or changes its status to operate as a corporation.
19 12.2 Duty to Disclose. If any member of the Contractor's board of directors is party to a
20 self-dealing transaction, he or she shall disclose the transaction by completing and signing a
21 "Self-Dealing Transaction Disclosure Form" (Exhibit C to this Agreement) and submitting it to
22 the County before commencing the transaction or immediately after.
23 12.3 Definition. "Self-dealing transaction" means a transaction to which the Contractor is
24 a party and in which one or more of its directors, as an individual, has a material financial
25 interest.
26
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1 Article 13
2 General Terms
3 13.1 Modification. Except as provided in Article 7, "Termination and Suspension," this
4 Agreement may not be modified, and no waiver is effective, except by written agreement signed
5 by both parties. The Contractor acknowledges that County employees have no authority to
6 modify this Agreement except as expressly provided in this Agreement.
7 13.2 Non-Assignment. Neither party may assign its rights or delegate its obligations
8 under this Agreement without the prior written consent of the other party.
9 13.3 Governing Law. The laws of the State of California govern all matters arising from
10 or related to this Agreement. This Section 13.3 survives the termination of this Agreement.
11 13.4 Jurisdiction and Venue. This Agreement is signed and performed in Fresno
12 County, California. Contractor consents to California jurisdiction for actions arising from or
13 related to this Agreement, and, subject to the Government Claims Act, all such actions must be
14 brought and maintained in Fresno County. This Section 13.4 survives the termination of this
15 Agreement.
16 13.5 Construction. The final form of this Agreement is the result of the parties' combined
17 efforts. If anything in this Agreement is found by a court of competent jurisdiction to be
18 ambiguous, that ambiguity shall not be resolved by construing the terms of this Agreement
19 against either party.
20 13.6 Days. Unless otherwise specified, "days" means calendar days.
21 13.7 Headings. The headings and section titles in this Agreement are for convenience
22 only and are not part of this Agreement.
23 13.8 Severability. If anything in this Agreement is found by a court of competent
24 jurisdiction to be unlawful or otherwise unenforceable, the balance of this Agreement remains in
25 effect, and the parties shall make best efforts to replace the unlawful or unenforceable part of
26 this Agreement with lawful and enforceable terms intended to accomplish the parties' original
27 intent.
28
18
1 13.9 Nondiscrimination. During the performance of this Agreement, the Contractor shall
2 not unlawfully discriminate against any employee or applicant for employment, or recipient of
3 services, because of race, religious creed, color, national origin, ancestry, physical disability,
4 mental disability, medical condition, genetic information, marital status, sex, gender, gender
5 identity, gender expression, age, sexual orientation, military status or veteran status pursuant to
6 all applicable State of California and federal statutes and regulation.
7 13.10 No Waiver. Payment, waiver, or discharge by the County of any liability or obligation
8 of the Contractor under this Agreement on any one or more occasions is not a waiver of
9 performance of any continuing or other obligation of the Contractor and does not prohibit
10 enforcement by the County of any obligation on any other occasion.
11 13.11 Entire Agreement. This Agreement, including its exhibits, is the entire agreement
12 between the Contractor and the County with respect to the subject matter of this Agreement,
13 and it supersedes all previous negotiations, proposals, commitments, writings, advertisements,
14 publications, and understandings of any nature unless those things are expressly included in
15 this Agreement. If there is any inconsistency between the terms of this Agreement without its
16 exhibits and the terms of the exhibits, then the inconsistency will be resolved by giving
17 precedence first to the terms of this Agreement without its exhibits, and then to the terms of the
18 exhibits. This Section 13.11 survives the termination of this Agreement.
19 13.12 No Third-Party Beneficiaries. This Agreement does not and is not intended to
20 create any rights or obligations for any person or entity except for the parties.
21 13.13 Authorized Signature. The Contractor represents and warrants to the County that:
22 (A) The Contractor is duly authorized and empowered to sign and perform its
23 obligations under this Agreement.
24 (B) The individual signing this Agreement on behalf of the Contractor is duly
25 authorized to do so and his or her signature on this Agreement legally binds the
26 Contractor to the terms of this Agreement.
27 13.14 Electronic Signatures. The parties agree that this Agreement may be executed by
28 electronic signature as provided in this section.
19
1 (A) An "electronic signature" means any symbol or process intended by an individual
2 signing this Agreement to represent their signature, including but not limited to (1) a
3 digital signature; (2) a faxed version of an original handwritten signature; or (3) an
4 electronically scanned and transmitted (for example by PDF document) version of an
5 original handwritten signature.
6 (B) Each electronic signature affixed or attached to this Agreement (1) is deemed
7 equivalent to a valid original handwritten signature of the person signing this Agreement
8 for all purposes, including but not limited to evidentiary proof in any administrative or
9 judicial proceeding, and (2) has the same force and effect as the valid original
10 handwritten signature of that person.
11 (C)The provisions of this section satisfy the requirements of Civil Code section
12 1633.5, subdivision (b), in the Uniform Electronic Transaction Act (Civil Code, Division 3,
13 Part 2, Title 2.5, beginning with section 1633.1).
14 (D) Each party using a digital signature represents that it has undertaken and
15 satisfied the requirements of Government Code section 16.5, subdivision (a),
16 paragraphs (1) through (5), and agrees that each other party may rely upon that
17 representation.
18 (E) This Agreement is not conditioned upon the parties conducting the transactions
19 under it by electronic means and either party may sign this Agreement with an original
20 handwritten signature.
21 13.15 Counterparts. This Agreement may be signed in counterparts, each of which is an
22 original, and all of which together constitute this Agreement.
23 [SIGNATURE PAGE FOLLOWS]
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1 The parties are signing this Agreement on the date stated in the introductory clause.
2
DFM Associates, Inc. COUNTY OF FRESNO
3
4
5 as G. Die bolt, Pres-idbnt7 Nathan Magsig, Chairman of the Board of
Supervisors of the County of Fresno
6 10 Chrysler, Suite A
Irvine, CA 92618 Attest:
7 Bernice E. Seidel
Clerk of the Board of Supervisors
8 County of Fresno, State of California
9
10 Deputy
11 For accounting use only:
12 Org No.: 2850
Account No.: 7309
13 Fund No.: 0001
Subclass No.: 10000
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Exhibit A
1 Scope of Services and Grant of License
2 Contractor's Services
3 1. SERVICES — OBJECTIVE.
4 The Contractor is to maintain the EIMS Software application currently in use by County
5 with the core function of gathering and maintaining data for use in the process of registering
6 voters and administering elections. The EIMS Software application consists of the following
7 functional modules:
8 (A) Precinct/District: Creates and maintains precincts, districts, and the relationship
9 between those categories.
10 (B) Street Guide: Creates and maintains street segments and their relationship to
11 precincts.
12 (C) Office/Incumbent: Creates and maintains office types, office definitions, and
13 incumbent data.
14 (D)Voters: Creates and maintains voter registration records. Maintains active,
15 canceled, and inactive voter records. Provides duplicate checking, customer tape
16 generation and other reporting features.
17 (E) Affidavit Tracking: Maintains records of affidavits provided to third parties and
18 tracks those subsequently returned.
19 (F) Officers/Polling Places: Maintains records of vote centers, election officers and
20 election night workers. Maintains all records from past vote centers, election
21 officers and election night workers.
22 (G)Election Workspace: Manages election definitions including contests, candidates,
23 and measures. Provides ballot typing, consolidation, election officer and vote
24 center management for the election. Produces election related mailings and
25 reports.
26 (H) Petition Checking: Manages petition information, defines newly submitted
27 petitions, selects random samples, and provides system directed signature
28 checking.
A-1
Exhibit A
1 (1) Resources: Manages County-specific information and options.
2 2. DELIVERABLES.
3 Contractor is responsible for the following deliverables:
4 (A) Contractor will be responsible for EIMS Software application installation
5 onto hardware as New Releases are made available and accepted by County.
6 (B) Contractor will be responsible for providing on-site support and training to
7 County Clerk/Registrar of Voters' Department personnel as mutually agreed to as being
8 necessary.
9 (C) Contractor shall provide telephone support twenty-four (24) hours a day,
10 seven (7) days a week to assist County in using the EIMS Software.
11 3. SOFTWARE MAINTENANCE AND SUPPORT.
12 Contractor shall maintain County's licensed-to-use EIMS Software such that it operates
13 in full conformity with the then-current Manuals for the installed software version, including all
14 error corrections or changes. Contractor shall exercise good faith and diligently use its
15 commercially reasonable, best efforts to correct any reproducible error. Suspected error
16 conditions will be promptly investigated and corrected by Contractor personnel. Contractor may
17 provide County with unsolicited error corrections or changes to the software which Contractor
18 determines are necessary for proper operation of its EIMS Software, and County shall
19 incorporate these corrections or changes into the EIMS Software within thirty (30) days of
20 receipt and testing by County. Telephone Assistance is a service of Contractor in which the
21 County may telephone Contractor for consultation concerning the EIMS Software. Contractor
22 shall provide the names and telephone numbers of Contractor management and staff
23 responsible for support in the event further inquiries or requests for escalation of a problem are
24 required.
25 4. POST INSTALLATON SERVICES.
26 This Exhibit A, Section 4 survives the termination of this Agreement. Contractor agrees
27 to provide the County with post-installation services as follows:
28 (A) SOFTWARE RELEASES.
A-2
Exhibit A
1 Contractor agrees to provide in a timely manner, and in any event, not later than thirty
2 (30) days from the date they are generally available, any Software Releases covering applicable
3 legislative changes and enactment of new laws applicable to such EIMS Software, the cost of
4 which is included in the annual fee.
5 (B) TRAINING.
6 Contractor agrees to provide the County with the following training services with respect
7 to any EIMS Software:
8 (a) Contractor will establish, with the help of a designated representative of the County,
9 which users will participate in training and on which subsystems.
10 (b) Contractor will develop a training schedule with sufficient training to allow the County
11 Clerk/Registrar of Voters' Department, which will have primary responsibility for using the EIMS
12 Software, to operate it.
13 (c) Contractor will conduct the actual training sessions, including "hands on" and formal
14 classroom training, with the initial training to be on-site at the County Clerk/Registrar of Voters'
15 facilities.
16 (d) User training costs for any EIMS Software are included in the annual fee. There are
17 no additional costs for training. As subsystems of any EIMS Software are enhanced or changed
18 to conform to new requirements, users will be provided training with respect thereto on an on-
19 going basis. Training with respect to enhanced or changed subsystems can be on-site or
20 regional, depending on the material and individual needs of the users.
21 5. LIMITATION ON CONTRACTOR'S OBLIGATIONS.
22 Notwithstanding any other provision of this Agreement to the contrary, Contractor has no
23 duty or obligation to perform any Software Maintenance or to provide the County with any
24 Software Enhancements or Releases, or to provide any training to the County with respect to
25 any EIMS Software if the County fails or refuses to comply with Section 3.2 hereof. This Exhibit
26 A, Section 5 survives the termination of this Agreement.
27 6. WARRANTIES:
28 (A) LIMITED WARRANTY - EIMS SOFTWARE.
A-3
Exhibit A
1 Contractor warrants, for the sole benefit of the County and no other person or entity, that the
2 EIMS Software shall be capable of performing the core functions set forth in this Agreement
3 related thereto, subject to the limitations set forth in Exhibit A, Section 6(B), below. This is
4 Contractor's sole express warranty with respect to any EIMS Software. Any claim by the County
5 against Contractor for breach of its express warranty must be in writing and must be promptly
6 delivered by the County to Contractor. In the event of any breach of Contractor's express
7 warranty, the County's sole and exclusive remedy against Contractor for such breach, and
8 Contractor's sole and exclusive liability to the County for such breach, shall be that Contractor,
9 at its sole cost and expense, shall exercise good faith and diligently use its commercially
10 reasonable, best efforts to provide adequate programming services to correct such inherent
11 defect, as Contractor and the County deem necessary or appropriate. Warranty service
12 performed in accordance with this Section shall be performed during normal weekday business
13 hours, excluding Contractor holidays, excepting County's notification to Contractor of
14 emergencies needing immediate warranty service(s). With respect to Business Impacting
15 Failures, which are defined as any errors that, in the County's sole judgment, result or will result
16 in significant interruption of the County's productivity, Contractor shall exercise good faith and
17 diligently use its commercially reasonable, best efforts to begin error correction procedures
18 within two (2) hours after receipt of such report by the County. With respect to any reported
19 errors that do not constitute Business Impacting Failures, Contractor shall exercise good faith
20 and diligently use its commercially reasonable, best efforts to begin error correction procedures
21 no later than twenty-four(24) hours after receipt of such report by the County. Contractor's sole
22 and exclusive obligation under the foregoing warranty shall be to exercise good faith and
23 diligently use its commercially reasonable, best efforts to implement appropriate error
24 corrections in response to notices from the County of such errors.
25 (B) WARRANTY LIMITATIONS - EIMS SOFTWARE.
26 Notwithstanding the warranty provisions set forth in Exhibit A, Section 6(A), above, all of
27 Contractor's obligations with respect to such warranties shall be contingent upon the County's
28 use of the EIMS Software in accordance with this Agreement and in accordance with
A-4
Exhibit A
1 instructions provided by Contractor from time to time, including those set forth in the Manuals,
2 as the same may be amended, supplemented, or modified from time to time and provided to the
3 County. Contractor shall have no warranty obligation:
4 (a) With respect to any portion of the EIMS Software which has been:
5 (i) Operated by the County or its employees, agents, contractors,
6 subcontractors, or licensees in a manner inconsistent with the requirements set
7 forth in the Manuals or elsewhere, or that has been modified by any party other
8 than Contractor;
9 (ii) Damaged in any manner by any cause other than any act or omission
10 of Contractor;
11 (iii) Operated or maintained in environmental conditions outside the
12 parameters designated by Contractor, in the Manuals or elsewhere;
13 (iv) Subjected to extreme power surges or electromagnetic field(s);
14 (v) Reinstalled without the prior written consent of Contractor; or
15 (vi) Determined by Contractor to have an error or defect, which fact is
16 conveyed in writing to the County together with supplemental written instructions
17 on how to avoid or circumvent the error or defect, and the County fails or refuses
18 to follow the supplemental instructions.
19 (b) As a result of or in any way connected with any error or defect in the Operating
20 System Software and/or any application software provided by any Third-Party Software vendor;
21 provided, however, in such event, Contractor will exercise good faith and diligently use its
22 commercially reasonable, best efforts to resolve the problem to the extent that a resolution is
23 reasonably available by reprogramming the EIMS Software;
24 (c)As a result of or in any way connected with the County's failure or refusal to use the
25 Operating System Software or to upgrade its computer hardware as requested by Contractor; or
26 as a result of, or in any way connected with any of the County's Data.
27 7. DISCLAIMER OF WARRANTIES - EIMS SOFTWARE.
28
A-5
Exhibit A
1 Contractor does not represent or warrant that the EIMS Software will be free from error or that
2 all errors in any EIMS Software will be corrected. The warranty stated in Exhibit A, Section 6(A),
3 above, is the sole and exclusive warranty offered by Contractor. There are no other warranties
4 respecting the EIMS Software, either express or implied, including but not limited to any
5 warranty of design, merchantability, or fitness for a particular purpose, even if Contractor has
6 been informed or is otherwise made aware of such purpose. No agent of Contractor is
7 authorized to alter or exceed the warranty obligations of Contractor set forth in this Agreement.
8 8. LIMITATION ON LIABILITY AND REMEDY - EIMS SOFTWARE.
9 The County acknowledges the complexity and interrelationships of each of the component and
10 constituent parts comprising any EIMS Software. The County further acknowledges and agrees
11 that the annual fee, which Contractor is charging for any EIMS Software, does not include any
12 consideration for assumption by Contractor of the risk of the County's incidental or
13 consequential damages which may arise in connection with the County's use of any EIMS
14 Software. Accordingly, the County agrees that Contractor shall not be responsible to the
15 County, or any department, agency, or subdivision thereof, for any incidental or consequential
16 damages arising out of the licensing, leasing, or use of any EIMS Software; provided however
17 that Contractor shall be responsible for incidental and consequential damages including
18 reasonable attorney fees and costs arising from negligence or willful misconduct on the part of
19 Contractor or Contractor's staff, employees, and authorized agents. Contractor shall also be
20 responsible for incidental (but not consequential) costs and expenses arising in connection with
21 any infringement or alleged infringement of third-party proprietary rights.
22 9. GRANT OF LICENSE.
23 Contractor hereby grants to County a royalty-free, non-exclusive, non-transferable,
24 license to use the EIMS Software, including all updates, upgrades, enhancements, new
25
versions, other improvements, and all error corrections or changes, to the EIMS Software, for
26
the term of this Agreement, subject to the terms and conditions set forth in this Agreement.
27
10. SCOPE OF LICENSE.
28
A-6
Exhibit A
1 The EIMS Software is provided in object code format only. The County agrees not to
2 modify, reverse engineer, reconstitute, de-compile, and/or disassemble the EIMS Software. The
3 County expressly agrees that the license granted herein gives it no rights whatsoever to the
4
EIMS Software in source code format.
5
County may not copy the licensed EIMS Software, except that County may make copies
6
of the licensed EIMS Software for the sole purpose of backup and provided that County gives
7
8 notice to Contractor of the location of all if any, of such backup copies stored other than upon
9 County's premises. This Exhibit A, Section 10 survives the termination of this Agreement
10 11. SOFTWARE OWNERSHIP.
11 The County agrees that Contractor claims exclusive ownership of the EIMS Software
12 and the County acquires neither ownership nor any other interest in the EIMS Software, except
13 for the right to use and possess the EIMS Software in accordance with the terms and conditions
14
of this Agreement. All rights to the EIMS Software not expressly granted to the County are
15
retained by Contractor. This Exhibit A, Section 11 survives the termination of this Agreement
16
-END-
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A-7
Exhibit B
1
2 2023
3 NOTICE OF CONFIDENTIAL MATERIAL
4 The EIMSO is a computer software package leased by the County, with rights thereto reserved
5 to DFM Associates ("DFM"O) as designers, installers and maintainers of EIMSO. The
6 safeguarding of DFM's rights, with respect to the EIMSO, requires that all persons, employed or
7 associated with the County, who have direct or indirect access to the host computer facility
8 and/or the EIMSO software, its component or derivative parts, receive written notice of the
9 confidential and secret nature of the EIMSO and sign an acknowledgement to that effect.
10 Therefore, this memorandum is to serve as general notice that the EIMSO, its components and
11 derivative parts including, but not limited to, all computer programs (in whatever form they may
12 be found and/or on whatever media they are contained) and all EIMSO documentation (formal
13 and informal) are to be regarded as confidential and secret material. These materials and/or the
14 information they contain are NOT to be given, sold, reproduced, disseminated or otherwise
15 disclosed without the prior express written authorization of DFM Associates.
16 Your signature hereon will serve as written acknowledgement that you have received, read and
17 understood this notice. In the event that there are any questions concerning the subject matter
18 of this notice please contact DFM Associates.
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B-1
Exhibit C
Self-Dealing Transaction Disclosure Form
In order to conduct business with the County of Fresno ("County"), members of a
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).
C-1
Exhibit C
(1) Company Board Member Information:
Name: Date:
Job Title:
(2) Company/Agency Name and Address:
(3) Disclosure (Please describe the nature of the self-dealing transaction you are a
party to)
(4) Explain why this self-dealing transaction is consistent with the requirements of
Corporations Code § 5233 (a)
(5) Authorized Signature
Signature: Date:
C-2
Exhibit D
Insurance Requirements
1. Required Policies
Without limiting the County's right to obtain indemnification from the Contractor or any third
parties, Contractor, at its sole expense, shall maintain in full force and effect the following
insurance policies throughout the term of this Agreement.
(A) Commercial General Liability. Commercial general liability insurance with limits of not
less than Two Million Dollars ($2,000,000) per occurrence and an annual aggregate of
Four Million Dollars ($4,000,000). This policy must be issued on a per occurrence basis.
Coverage must include products, completed operations, property damage, bodily injury,
personal injury, and advertising injury. The Contractor shall obtain an endorsement to
this policy naming the County of Fresno, its officers, agents, employees, and volunteers,
individually and collectively, as additional insureds, but only insofar as the operations
under this Agreement are concerned. Such coverage for additional insureds will apply as
primary insurance and any other insurance, or self-insurance, maintained by the County
is excess only and not contributing with insurance provided under the Contractor's
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.
2. Additional Requirements
(A) Verification of Coverage. Within 30 days after the Contractor signs this Agreement,
and at any time during the term of this Agreement as requested by the County's Risk
Manager or the County Administrative Office, the Contractor shall deliver, or cause its
broker or producer to deliver, to the County Risk Manager, at 2220 Tulare Street, 16th
Floor, Fresno, California 93721, or HRRiskManagement@fresnoCountyca.gov, and by
mail or email to the person identified to receive notices under this Agreement,
certificates of insurance and endorsements for all of the coverages required under this
Agreement.
(i) Each insurance certificate must state that: (1) the insurance coverage has been
obtained and is in full force; (2) the County, its officers, agents, employees, and
volunteers are not responsible for any premiums on the policy; and (3) the
Contractor has waived its right to recover from the County, its officers, agents,
employees, and volunteers any amounts paid under any insurance policy
required by this Agreement and that waiver does not invalidate the insurance
policy.
D-1
Exhibit D
(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.
(B) Acceptability of Insurers. All insurance policies required under this Agreement must be
issued by admitted insurers licensed to do business in the State of California and
possessing at all times during the term of this Agreement an A.M. Best, Inc. rating of no
less than A: VI I.
(C) Notice of Cancellation or Change. For each insurance policy required under this
Agreement, the Contractor shall provide to the County, or ensure that the policy requires
the insurer to provide to the County, written notice of any cancellation or change in the
policy as required in this paragraph. For cancellation of the policy for nonpayment of
premium, the Contractor shall, or shall cause the insurer to, provide written notice to the
County not less than 10 days in advance of cancellation. For cancellation of the policy
for any other reason, and for any other change to the policy, the Contractor shall, or shall
cause the insurer to, provide written notice to the County not less than 30 days in
advance of cancellation or change. The County in its sole discretion may determine that
the failure of the Contractor or its insurer to timely provide a written notice required by
this paragraph is a breach of this Agreement.
(D) County's Entitlement to Greater Coverage. If the Contractor has or obtains insurance
with broader coverage, higher limits, or both, than what is required under this
Agreement, then the County requires and is entitled to the broader coverage, higher
limits, or both. To that end, the Contractor shall deliver, or cause its broker or producer
to deliver, to the County's Risk Manager certificates of insurance and endorsements for
all of the coverages that have such broader coverage, higher limits, or both, as required
under this Agreement.
(E) Waiver of Subrogation. The Contractor waives any right to recover from the County, its
officers, agents, employees, and volunteers any amounts paid under the policy of
worker's compensation insurance required by this Agreement. The Contractor is solely
responsible to obtain any policy endorsement that may be necessary to accomplish that
waiver, but the Contractor's waiver of subrogation under this paragraph is effective
whether or not the Contractor obtains such an endorsement.
(F) County's Remedy for Contractor's Failure to Maintain. If the Contractor fails to keep
in effect at all times any insurance coverage required under this Agreement, the County
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
D-2
Exhibit D
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.
D-3