HomeMy WebLinkAboutMetaSource LLC-Archival Digitization Services_A-24-268.pdf - COU��� County of Fresno Hall of Records, Room301
2281 Tulare Street
Fresno,California
Board of Supervisors 93721-2198
O� i850 Telephone:(559)600-3529
FRE`' Minute Order Toll Free:1-800-742-1011
www.fresnocountyca.gov
June 4, 2024
Present: 5- Supervisor Steve Brandau,Chairman Nathan Magsig,Vice Chairman Buddy Mendes,
Supervisor Brian Pacheco,and Supervisor Sal Quintero
Agenda No. 33. Internal Services File ID:24-0534
Re: Under Administrative Policy No.34 for competitive bids or requests for proposals(AP 34),determine
that an exception to the competitive bidding requirements under AP 34 is satisfied and a suspension
of competition is warranted due to unusual or extraordinary circumstances,and that the best interests
of the County would be served by entering into an agreement with MetaSource, LLC as the vendor
currently provides archival digitizing services for multiple County departments,and it is the only vendor
able to continue services without causing major delays in the County's digitizing projects;and Approve
and authorize the Chairman to execute an Agreement with MetaSource, LLC for archival digitizing
services,effective upon execution, not to exceed five consecutive years,which includes a three-year
base contract and two optional one-year extensions,total not to exceed$3,000,000
APPROVED AS RECOMMENDED
Ayes: 5- Brandau, Magsig, Mendes, Pacheco,and Quintero
Agreement No.24-268
County of Fresno Page 35
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(61; Board Agenda Item 33
01 1856 Q
FRESH'
DATE: June 4, 2024
TO: Board of Supervisors
SUBMITTED BY: Edward Hill, Chief Operating Officer/Interim Director of Internal Services/Chief
Information Officer
SUBJECT: Agreement with MetaSource, LLC for Archival Digitizing Services
RECOMMENDED ACTION(S):
1. Under Administrative Policy No. 34 for competitive bids or requests for proposals (AP 34),
determine that an exception to the competitive bidding requirements under AP 34 is
satisfied and a suspension of competition is warranted due to unusual or extraordinary
circumstances, and that the best interests of the County would be served by entering into
an agreement with MetaSource, LLC as the vendor currently provides archival digitizing
services for multiple County departments, and it is the only vendor able to continue
services without causing major delays in the County's digitizing projects; and
2. Approve and authorize the Chairman to execute an Agreement with MetaSource, LLC for
archival digitizing services, effective upon execution, not to exceed five consecutive years,
which includes a three-year base contract and two optional one-year extensions,total not to
exceed $3,000,000.
There is no additional Net County Cost associated with the recommended actions.Approval of the
recommended actions will allow the County to continue the digitizing of physical archives with MetaSource,
LLC (MetaSource).This item is countywide.
ALTERNATIVE ACTION(S):
Should your Board not approve the recommended actions, the Internal Services Department- Information
Technology Division (ISD-IT)will need to stop current digitizing projects, solicit for new document digitization
services, and train a new vendor to take over the digitization projects already underway. Your Board may
direct staff to solicit for competitive bids for a new vendor; however, procurement and implementation would
be very costly and time-consuming.
SUSPENSION OF COMPETITION/SOLE SOURCE CONTRACT:
It is requested that the County find under AP 34 that an exception to the competitive bidding requirement is
satisfied, and a suspension of competition is warranted due to unusual or extraordinary circumstances, as
MetaSource currently provides archival digitizing services for multiple County departments and is the only
vendor that can continue providing these services without causing major delays in the digitizing projects.
The Internal Services Department- Purchasing Division (ISD-Purchasing)concurs with the request to
suspend the competitive bidding process.
County of Fresno page 1 File Number.24-0534
File Number.24-0534
FISCAL IMPACT:
There is no increase in Net County Cost associated with the recommended actions. The maximum amount
for the potential five-year term of the agreement is $3,000,000. Sufficient appropriations and estimated
revenues are included in the ISD-IT Org 8905 FY 2023-24 Adopted Budget and will be included in
subsequent annual budget requests. Costs associated with this agreement are recovered through
chargebacks to user departments. Each requesting department will need sufficient appropriations for the
use of this contract within FY2023-24 Adopted Budget and will be included in subsequent budget request.
DISCUSSION:
On January 9, 2019, ISD-Purchasing issued Request for Quotation (RFQ) No. 19-040 for Conversion of
Paper Documents to Electronic Data Files. The response period closed on February 7, 2019, and 13
vendors responded. MetaSource submitted the lowest, most responsive bid.
On June 18, 2019, your Board approved Agreement 19-287 with MetaSource for document digitization
services, to provide the option for departments to begin digitizing the tens of thousands of boxed documents
stored in a variety of locations, beginning with the approximately 10,500 boxes of records currently stored by
the Public Defender's Office.
On November 16, 2021, your Board approved an amendment to the agreement,which increased the
maximum compensation to begin the process of digitizing physical record archives for Human Resources,
and other user departments, as needed.
Approval of the recommended actions will allow ISD-IT to enter into a new agreement with MetaSource to
continue the ongoing digitizing of physical record archives for various County departments for a potential
five-year term, which includes a three-year base term and two optional one-year extensions, total
compensation not to exceed $3,000,000.
REFERENCE MATERIAL:
BAI #36, November 16, 2021
BAI #46, June 18, 2019
ATTACHMENTS INCLUDED AND/OR ON FILE:
Suspension of Competition Acquisition Request
On file with Clerk-Agreement with MetaSource, LLC.
CAO ANALYST:
Ahla Yang
County of Fresno page 2 File Number:24-0534
CO(
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Suspension of Competition Acquisition Request Double click!
1. Fully describe the product(s) and/or service(s) being requested.
The Internal Services Department, Information Technology Division (ISD-IT) is requesting an agreement with
MetaSource, LLC (MetaSource)for scanning and digitizing services to digitize the County's inventory of physical
record.
2. Identify the selected vendor and contact person; include the address, phone number and e-mail address for each.
MetaSource, LLC
12162 S Business Park Dr 113
Draper, UT 84020
Hal Redjai
385-351-6651
hredjai@metasource.com
3. What is the total cost of the acquisition? If an agreement, state the total cost of the initial term and the amounts for
potential renewal terms.
The total cost for the initial three-year base term will be $1,800,000. The remaining two optional one-year extensions
will be $600,000 per year, making the total potential five-year term $3,000,000.
4. Identify the unique qualities and/or capabilities of the service(s) and/or product(s)that qualify this as a Suspension of
Competition acquisition.
MetaSource has been providing scanning and digitizing services to the County since 2019 and are currently in the
middle of various scanning projects with departments including Internal Services, Human Resources, Public
Defender, and Public Health. MetaSource has worked with departments to establish a detailed system for box
pickup and processing. An investigation into the company's policy on handling and processing HIPAA related
documents, ongoing file storage, and adhering to legal retention policies have been completed and determined to
be sufficient.
5. Identify from Administrative Policy#34 what circumstances constitute a Suspension of Competition.
❑ In an emergency when goods or services are immediately necessary for the preservation of the public health,welfare,or safety,or for the
protection of County property.
❑When the contract is with a federal,state,or local governmental agency.
❑When the department head,with the concurrence of the Purchasing Agent,finds that the cost of preparing and administering a competitive
bidding process in a particular case will equal or exceed the estimated contract amount or$5,000 whichever is more.
❑When a contract provides only for payment of per diem and travel expenses and there is to be no payment for services rendered.
❑When obtaining the services of expert witnesses for litigation or special counsel to assist the County.
®When in unusual or extraordinary circumstances,the Board of Supervisors or the Purchasing Agent/Purchasing Manager determines that
the best interests of the County would be served by not securing competitive bids or issuing a request for proposal.
6. Explain why the unique qualities and/or capabilities described above are essential to your department.
Since MetaSource has been trained on the County's handling and processing system and is currently in the process
of projects for several County departments, entering into an agreement with a new vendor would delay existing
scanning projects by one year or more, as ISD-IT would need to obtain the entire document load that has been
provided to MetaSource since the project begin date.The document load includes digitized documents that have yet
to be approved for destruction, documents that are being actively digitized, and documents needing correction.
Switching vendors at this point in the project would require an increase in cost, as it would include the procurement of
a new vendor, training, and implementation.
7. Provide a comprehensive explanation of the research done to verify that the recommended vendor is the only vendor
with the unique qualities and/or capabilities stated above. Include a list of all other vendors contacted, what they were
asked, and their responses.
Due to being in the middle of digitization projects, ISD-IT did not research any other vendors in an effort to maintain
continuity. Switching vendors at this point in the projects would delay the project by one year or more and would
require an increase in cost, as it would include the procurement of a new vendor, training, and implementation.
stbrown 5/2/2024 10:24:02 AM Staff Analyst [Q Sign] Double click!
Requested By: Title
E-PD-048 (Rev 07/2021)
I approve this request to suspend competition for the service(s) and/or product(s) identified herein.
rbash 5/3/2024 2:04:10 PM [a Sign] Double dick!
Department Head Signature
mvilanova 5/3/2024 3:25:15 PM [a Sign] Double dick!
Purchasing Manager Signature
E-PD-048 (Rev 07/2021)
Agreement No. 24-268
1 SERVICE AGREEMENT
2 This Service Agreement ("Agreement") is dated June 4, 2024 and is between
3 MetaSource, LLC., a Delaware limited liability company ("Contractor"), and the County of
4 Fresno, a political subdivision of the State of California ("County").
5 Recitals
6 A. The County has a need for scanning and digitizing services to digitize the County's
7 inventory of physical records.
8 B. The County previously entered into an agreement for these services with the Contractor.
9 C. The Contractor has provided scanning and digitizing services to the County for various
10 departments, and currently has several ongoing projects.
11 D. The County now desires to engage the Contractor through a suspension of competition
12 for scanning and digitizing services, to ensure the completion of critical projects countywide.
13 The parties therefore agree as follows:
14 Article 1
15 Contractor's Services
16 1.1 Scope of Services. The Contractor shall perform all of the services provided in
17 Exhibit A to this Agreement, titled "Scope of Services."
18 1.2 Representation. The Contractor represents that it is qualified, ready, willing, and
19 able to perform all of the services provided in this Agreement.
20 1.3 Compliance with Laws. The Contractor shall, at its own cost, comply with all
21 applicable federal, state, and local laws and regulations in the performance of its obligations
22 under this Agreement, including but not limited to workers compensation, labor, and
23 confidentiality laws and regulations.
24 1.4 Data Security. The Contractor shall comply with all obligations in the attached
25 Exhibit E— Data Security, which is incorporated by this reference.
26
27
28
1
1 Article 2
2 County's Responsibilities
3 2.1 The County shall provide a County representative who will serve as point of contact
4 for the Contractor in the fulfillment of its duties under this Agreement ("County Representative").
5 The County Representative will be the County Internal Services Department's Information
6 Technology Services (ISD-IT) Manager, and/or their designees. Upon the execution of this
7 Agreement, the Contractor shall provide to the County Representative its contact person on
8 behalf of the Contractor.
9 2.2 The County shall contact the Contractor on an as-needed basis to request services,
10 the process of which is described in Exhibit A.
11 Article 3
12 Compensation, Invoices, and Payments
13 3.1 The County agrees to pay, and the Contractor agrees to receive, compensation for
14 the performance of its services under this Agreement as described in Exhibit B to this
15 Agreement.
16 3.2 Maximum Compensation. The maximum compensation payable to the Contractor
17 under this Agreement is $1,800,000 for the initial three-year term of this Agreement. In the event
18 this Agreement is extended for its first optional one-year extension ("Year 4"), the total
19 compensation payable to the Contractor under this Agreement is $2,400,000. In the event this
20 Agreement is extended for its final one-year extension ("Year 5"), the total compensation
21 payable to the Contractor under this Agreement is $3,000,000. In the event the total maximum
22 compensation amount in the Initial Term, Year 4, and/or Year 5 is not fully expended, the
23 remaining unspent funding amounts shall roll over to each subsequent term's established
24 maximum compensation.
25 The Contractor acknowledges that the County is a local government entity, and does so with
26 notice that the County's powers are limited by the California Constitution and by State law, and
27 with notice that the Contractor may receive compensation under this Agreement only for
28 services performed according to the terms of this Agreement and while this Agreement is in
2
1 effect, and subject to the maximum amount payable under this section. The Contractor further
2 acknowledges that County employees have no authority to pay the Contractor except as
3 expressly provided in this Agreement.
4 3.3 Invoices. The Contractor shall submit monthly invoices referencing the provided
5 agreement number to the County of Fresno, Internal Services Department, Attention: Business
6 Office, 333 W. Pontiac Way, Clovis, CA 93612,Isd bus inessoffice(�fresnocountyca.gov . The
7 Contractor shall submit each invoice within 60 days after the month in which the Contractor
8 performs services and in any case within 60 days after the end of the term or termination of this
9 Agreement.
10 3.4 Payment. The County shall pay each correctly completed and timely submitted
11 invoice within 45 days after receipt. The County shall remit any payment to the Contractor's
12 address specified in the invoice.
13 3.5 Incidental Expenses. The Contractor is solely responsible for all of its costs and
14 expenses that are not specified as payable by the County under this Agreement.
15 Article 4
16 Term of Agreement
17 4.1 Term. This Agreement is effective as the date listed above and terminates three
18 years after that date ("Initial Term"), except as provided in section 4.2, "Extension," or Article 6,
19 "Termination and Suspension," below.
20 4.2 Extension. The term of this Agreement may be extended for no more than two, one-
21 year periods only upon written approval of both parties at least 30 days before the first day of
22 the next one-year extension period. The Director of Internal Services/Chief Information Officer
23 or his or her designee is authorized to sign the written approval on behalf of the County based
24 on the Contractor's satisfactory performance. The extension of this Agreement by the County is
25 not a waiver or compromise of any default or breach of this Agreement by the Contractor
26 existing at the time of the extension whether or not known to the County.
27
28
3
1 Article 5
2 Notices
3 5.1 Contact Information. The persons and their addresses having authority to give and
4 receive notices provided for or permitted under this Agreement include the following:
5
For the County:
6 Director of Internal Services/Chief Information Officer
County of Fresno
7 333 W. Pontiac Way
Clovis, CA 93612
8 isdcontracts a,fresnocountyca.gov
9 For the Contractor:
Hal Redjai, Vice President, Public Sector
10 MetaSource, LLC
3630 E. Miraloma Avenue
11 Anaheim, CA 92806
hrediai(aTmetasource.com
12
With a copy to:
13 Legal Department
MetaSource, LLC
14 12162 South Business Park Drive, Suite 113
Draper, UT 84020
15 legal(@metasource.com and mridder(a.metasource.com
16 5.2 Change of Contact Information. Either party may change the information in section
17 5.1 by giving notice as provided in section 5.3.
18 5.3 Method of Delivery. Each notice between the County and the Contractor provided
19 for or permitted under this Agreement must be in writing, state that it is a notice provided under
20 this Agreement, and be delivered either by personal service, by first-class United States mail, by
21 an overnight commercial courier service, or by Portable Document Format (PDF) document
22 attached to an email.
23 (A) A notice delivered by personal service is effective upon service to the recipient.
24 (B) A notice delivered by first-class United States mail is effective three County
25 business days after deposit in the United States mail, postage prepaid, addressed to the
26 recipient.
27 (C)A notice delivered by an overnight commercial courier service is effective one
28 County business day after deposit with the overnight commercial courier service,
4
1 delivery fees prepaid, with delivery instructions given for next day delivery, addressed to
2 the recipient.
3 (D)A notice delivered by PDF document attached to an email is effective when
4 transmission to the recipient is completed (but, if such transmission is completed outside
5 of County business hours, then such delivery is deemed to be effective at the next
6 beginning of a County business day), provided that the sender maintains a machine
7 record of the completed transmission.
8 5.4 Claims Presentation. For all claims arising from or related to this Agreement,
9 nothing in this Agreement establishes, waives, or modifies any claims presentation
10 requirements or procedures provided by law, including the Government Claims Act (Division 3.6
11 of Title 1 of the Government Code, beginning with section 810).
12 Article 6
13 Termination and Suspension
14 6.1 Termination for Non-Allocation of Funds. The terms of this Agreement are
15 contingent on the approval of funds by the appropriating government agency. If sufficient funds
16 are not allocated, then the County, upon at least 30 days' advance written notice to the
17 Contractor, may:
18 (A) Modify the services provided by the Contractor under this Agreement; or
19 (B) Terminate this Agreement.
20 6.2 Termination for Breach.
21 (A) Upon determining that a breach (as defined in paragraph (C) below) has
22 occurred, the County may give written notice of the breach to the Contractor. The written
23 notice may suspend performance under this Agreement, and must provide at least 30
24 days for the Contractor to cure the breach.
25 (B) If the Contractor fails to cure the breach to the County's satisfaction within the
26 time stated in the written notice, the County may terminate this Agreement immediately.
27 (C) For purposes of this section, a breach occurs when, in the determination of the
28 County, the Contractor has:
5
1 (1) Obtained or used funds illegally or improperly;
2 (2) Failed to comply with any part of this Agreement;
3 (3) Submitted a substantially incorrect or incomplete report to the County; or
4 (4) Improperly performed any of its obligations under this Agreement.
5 6.3 Termination without Cause. In circumstances other than those set forth above, the
6 County may terminate this Agreement by giving at least 30 days advance written notice to the
7 Contractor.
8 6.4 No Penalty or Further Obligation. Any termination of this Agreement by the County
9 under this Article 6 is without penalty to or further obligation of the County.
10 6.5 County's Rights upon Termination. Upon termination for breach under this Article
11 6, the County may demand repayment by the Contractor of any monies disbursed to the
12 Contractor under this Agreement that, in the County's sole judgment, were not expended in
13 compliance with this Agreement. The Contractor shall promptly refund all such monies upon
14 demand. This section survives the termination of this Agreement.
15 Article 7
16 Independent Contractor
17 7.1 Status. In performing under this Agreement, the Contractor, including its officers,
18 agents, employees, and volunteers, is at all times acting and performing as an independent
19 contractor, in an independent capacity, and not as an officer, agent, servant, employee, joint
20 venturer, partner, or associate of the County.
21 7.2 Verifying Performance. The County has no right to control, supervise, or direct the
22 manner or method of the Contractor's performance under this Agreement, but the County may
23 verify that the Contractor is performing according to the terms of this Agreement.
24 7.3 Benefits. Because of its status as an independent contractor, the Contractor has no
25 right to employment rights or benefits available to County employees. The Contractor is solely
26 responsible for providing to its own employees all employee benefits required by law. The
27 Contractor shall save the County harmless from all matters relating to the payment of the
28
6
1 Contractor's employees, including compliance with Social Security withholding and all related
2 regulations.
3 7.4 Services to Others. The parties acknowledge that, during the term of this
4 Agreement, the Contractor may provide services to others unrelated to the County.
5 Article 8
6 Indemnity and Defense
7 8.1 Indemnity. The Contractor shall indemnify and hold harmless and defend the
8 County (including its officers, agents, employees, and volunteers) against all claims, demands,
9 injuries, damages, costs, expenses (including attorney fees and costs), fines, penalties, and
10 liabilities of any kind to the County, the Contractor, or any third party that arise from or relate to
11 the performance or failure to perform by the Contractor (or any of its officers, agents,
12 subcontractors, or employees) under this Agreement. The County may conduct or participate in
13 its own defense without affecting the Contractor's obligation to indemnify and hold harmless or
14 defend the County.
15 8.2 Survival. This Article 8 survives the termination of this Agreement.
16 Article 9
17 Insurance
18 9.1 The Contractor shall comply with all the insurance requirements in Exhibit D to this
19 Agreement.
20 Article 10
21 Health Insurance Portability and Accountability Act
22 10.1 HIPAA. See Exhibit F to this Agreement, titled, "Health Insurance Portability and
23 Accountability Act (HIPAA)".
24 Article 11
25 Inspections, Audits, and Public Records
26 11.1 Inspection of Documents. The Contractor shall make available to the County, and
27 the County may examine at any time during business hours and as often as the County deems
28 necessary, all of the Contractor's records and data with respect to the matters covered by this
7
1 Agreement, excluding attorney-client privileged communications. The Contractor shall, upon
2 request by the County, permit the County to audit and inspect all of such records and data to
3 ensure the Contractor's compliance with the terms of this Agreement.
4 11.2 State Audit Requirements. If the compensation to be paid by the County under this
5 Agreement exceeds $10,000, the Contractor is subject to the examination and audit of the
6 California State Auditor, as provided in Government Code section 8546.7, for a period of three
7 years after final payment under this Agreement. This section survives the termination of this
8 Agreement.
9 11.3 Public Records. The County is not limited in any manner with respect to its public
10 disclosure of this Agreement or any record or data that the Contractor may provide to the
11 County. The County's public disclosure of this Agreement or any record or data that the
12 Contractor may provide to the County may include but is not limited to the following:
13 (A) The County may voluntarily, or upon request by any member of the public or
14 governmental agency, disclose this Agreement to the public or such governmental
15 agency.
16 (B) The County may voluntarily, or upon request by any member of the public or
17 governmental agency, disclose to the public or such governmental agency any record or
18 data that the Contractor may provide to the County, unless such disclosure is prohibited
19 by court order.
20 (C)This Agreement, and any record or data that the Contractor may provide to the
21 County, is subject to public disclosure under the Ralph M. Brown Act (California
22 Government Code, Title 5, Division 2, Part 1, Chapter 9, beginning with section 54950).
23 (D)This Agreement, and any record or data that the Contractor may provide to the
24 County, is subject to public disclosure as a public record under the California Public
25 Records Act (California Government Code, Title 1, Division 10, Chapter 3, beginning
26 with section 7920.200) ("CPRA").
27 (E) This Agreement, and any record or data that the Contractor may provide to the
28 County, is subject to public disclosure as information concerning the conduct of the
8
1 people's business of the State of California under California Constitution, Article 1,
2 section 3, subdivision (b).
3 (F) Any marking of confidentiality or restricted access upon or otherwise made with
4 respect to any record or data that the Contractor may provide to the County shall be
5 disregarded and have no effect on the County's right or duty to disclose to the public or
6 governmental agency any such record or data.
7 11.4 Public Records Act Requests. If the County receives a written or oral request
8 under the CPRA to publicly disclose any record that is in the Contractor's possession or control,
9 and which the County has a right, under any provision of this Agreement or applicable law, to
10 possess or control, then the County may demand, in writing, that the Contractor deliver to the
11 County, for purposes of public disclosure, the requested records that may be in the possession
12 or control of the Contractor. Within five business days after the County's demand, the
13 Contractor shall (a) deliver to the County all of the requested records that are in the Contractor's
14 possession or control, together with a written statement that the Contractor, after conducting a
15 diligent search, has produced all requested records that are in the Contractor's possession or
16 control, or(b) provide to the County a written statement that the Contractor, after conducting a
17 diligent search, does not possess or control any of the requested records. The Contractor shall
18 cooperate with the County with respect to any County demand for such records. If the
19 Contractor wishes to assert that any specific record or data is exempt from disclosure under the
20 CPRA or other applicable law, it must deliver the record or data to the County and assert the
21 exemption by citation to specific legal authority within the written statement that it provides to
22 the County under this section. The Contractor's assertion of any exemption from disclosure is
23 not binding on the County, but the County will give at least 10 days' advance written notice to
24 the Contractor before disclosing any record subject to the Contractor's assertion of exemption
25 from disclosure. The Contractor shall indemnify the County for any court-ordered award of costs
26 or attorney's fees under the CPRA that results from the Contractor's delay, claim of exemption,
27 failure to produce any such records, or failure to cooperate with the County with respect to any
28 County demand for any such records.
9
1 Article 12
2 Disclosure of Self-Dealing Transactions
3 12.1 Applicability. This Article 11 applies if the Contractor is operating as a corporation,
4 or changes its status to operate as a corporation.
5 12.2 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 C to this Agreement) and submitting it to
8 the County before commencing the transaction or immediately after.
9 12.3 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 13
13 General Terms
14 13.1 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 13.2 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 13.3 Governing Law. The laws of the State of California govern all matters arising from
21 or related to this Agreement.
22 13.4 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 13.5 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
28
10
1 ambiguous, that ambiguity shall not be resolved by construing the terms of this Agreement
2 against either party.
3 13.6 Days. Unless otherwise specified, "days" means calendar days.
4 13.7 Headings. The headings and section titles in this Agreement are for convenience
5 only and are not part of this Agreement.
6 13.8 Severability. If anything in this Agreement is found by a court of competent
7 jurisdiction to be unlawful or otherwise unenforceable, the balance of this Agreement remains in
8 effect, and the parties shall make best efforts to replace the unlawful or unenforceable part of
9 this Agreement with lawful and enforceable terms intended to accomplish the parties' original
10 intent.
11 13.9 Nondiscrimination. During the performance of this Agreement, the Contractor shall
12 not unlawfully discriminate against any employee or applicant for employment, or recipient of
13 services, because of race, religious creed, color, national origin, ancestry, physical disability,
14 mental disability, medical condition, genetic information, marital status, sex, gender, gender
15 identity, gender expression, age, sexual orientation, military status or veteran status pursuant to
16 all applicable State of California and federal statutes and regulation.
17 13.10 No Waiver. Payment, waiver, or discharge by the County of any liability or obligation
18 of the Contractor under this Agreement on any one or more occasions is not a waiver of
19 performance of any continuing or other obligation of the Contractor and does not prohibit
20 enforcement by the County of any obligation on any other occasion.
21 13.11 Entire Agreement. This Agreement, including its exhibits, is the entire agreement
22 between the Contractor and the County with respect to the subject matter of this Agreement,
23 and it supersedes all previous negotiations, proposals, commitments, writings, advertisements,
24 publications, and understandings of any nature unless those things are expressly included in
25 this Agreement. If there is any inconsistency between the terms of this Agreement without its
26 exhibits and the terms of the exhibits, then the inconsistency will be resolved by giving
27 precedence first to the terms of this Agreement without its exhibits, and then to the terms of the
28 exhibits.
11
1 13.12 No Third-Party Beneficiaries. This Agreement does not and is not intended to
2 create any rights or obligations for any person or entity except for the parties.
3 13.13 Agent for Service of Process. The Contractor represents to County that the
4 Contractor's agent for service of process in California, and that such agent's address for
5 receiving such service of process in California, which information the Contractor shall maintain
6 with the office of the California Secretary of State, is as follows:
7 Registered Agents Inc
8 1505 Corporation
9 C T Corporation System
10 330 N Brand Blvd.
11 Glendale, CA 91203
12 The Contractor further represents to the County that if the Contractor changes its agent for
13 service of process in California, or the Contractor's agent for service of process in California
14 changes its address for receiving such service of process in California, which changed
15 information the Contractor shall maintain with the office of the California Secretary of State, the
16 Contractor shall give the County written notice thereof within five (5) calendar days thereof
17 pursuant to Article 5 of this Agreement.
18 13.14 Authorized Signature. The Contractor represents and warrants to the County that:
19 (A) The Contractor is duly authorized and empowered to sign and perform its
20 obligations under this Agreement.
21 (B) The individual signing this Agreement on behalf of the Contractor is duly
22 authorized to do so and his or her signature on this Agreement legally binds the
23 Contractor to the terms of this Agreement.
24 13.15 Electronic Signatures. The parties agree that this Agreement may be executed by
25 electronic signature as provided in this section.
26 (A) An "electronic signature" means any symbol or process intended by an individual
27 signing this Agreement to represent their signature, including but not limited to (1) a
28 digital signature; (2) a faxed version of an original handwritten signature; or (3) an
12
1 electronically scanned and transmitted (for example by PDF document) version of an
2 original handwritten signature.
3 (B) Each electronic signature affixed or attached to this Agreement (1) is deemed
4 equivalent to a valid original handwritten signature of the person signing this Agreement
5 for all purposes, including but not limited to evidentiary proof in any administrative or
6 judicial proceeding, and (2) has the same force and effect as the valid original
7 handwritten signature of that person.
8 (C)The provisions of this section satisfy the requirements of Civil Code section
9 1633.5, subdivision (b), in the Uniform Electronic Transaction Act (Civil Code, Division 3,
10 Part 2, Title 2.5, beginning with section 1633.1).
11 (D) Each party using a digital signature represents that it has undertaken and
12 satisfied the requirements of Government Code section 16.5, subdivision (a),
13 paragraphs (1)through (5), and agrees that each other party may rely upon that
14 representation.
15 (E) This Agreement is not conditioned upon the parties conducting the transactions
16 under it by electronic means and either party may sign this Agreement with an original
17 handwritten signature.
18 13.16 Counterparts. This Agreement may be signed in counterparts, each of which is an
19 original, and all of which together constitute this Agreement.
20 [SIGNATURE PAGE FOLLOWS]
21
22
23
24
25
26
27
28
13
1 The parties are signing this Agreement on the date stated in the introductory clause.
2
MetaSource, LLC COUNTY OF FRESNO
4 2WO TOINr?�C /_
Randy Powa May 7,2024 12:53 MDT) - ------
Nathan Magsig, Chairman of the Board of
5 Randy Powell, Vice President Supervisors of the County of Fresno
6 12162 South Business Park Drive, Suite 113 Attest:
Draper, UT 84020 Bernice E. Seidel
7 Clerk of the Board of Supervisors
8 County of Fresno, State of California
9 By.
10 Deputy
11 For accounting use only:
Org No.: various
12 Account No.: various
Fund No.: various
13 Subclass No.: various
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
14
Exhibit A
1 Scope of Services
2 Transport of Materials—The Contractor agrees to transport materials securely to the
3
Contractor's facility, to be processed as described below:
4 • The Contractor agrees to pick up documents and/or boxes of documents from
5
multiple locations within the County, as needed to fulfill the digitizing process,
6
using the Contractor's vehicles and employees, and securely transporting to the
7
Contractor's facility for scanning.
8 • The Contractor agrees to provide boxes to pack all County documents and
9
palletize boxes if necessary.
10 The Contractor agrees that no more than 250 boxes shall be picked up at one
11
time.
12 • The Contractor agrees to create an internal barcode control number range for
13
each box prior to pickup.
14 • The Contractor agrees to maintain chain of custody for all documents/boxes
15
picked up at the County's locations.
16 processing of Materials —The Contractor agrees to process all documents upon the arrival of
17 the County documents to the Contractor's facility as follows:
18 • Enter barcode control numbers into the Contractor's tracking system in order to
19
track the location, status, and progress of each individual box.
20 • Provide barcode control numbers to the County once the manifest is created.
21
• Photograph and tag all damaged boxes.
22 • Maintain and store all documents within a secure space.
23
• Resolve security issues within one hour, and immediately notify the County with
24
a description of the issue and the resolution.
25 • Provide proof of safeguards preventing accidental damage to the documents
26
including, but not limited to, theft, fire, or water damage.
27 Analyze the contents of each box and create a detailed log to identify the
28 contents of each box. This log shall include pages, folders, condition of
A-1
Exhibit A
1
documents, condition of box, and index variations. The log shall be kept
2
separately, and later used to cross-check the finished products. Any discrepancy
3
in the log shall result in a full audit of the box.
4
• Preparation of the documents for scanning shall include:
5
• Removing staples, paperclips, and other binding; unfolding any dog-
6
ears; and inspecting and repairing damaged pages on an as-needed
7
basis.
8
• Place taped notes and self-adhesive notes in such a manner so as not
9
to obscure the document text or, where that is not possible, transfer
10
notes to the back of the original document, or to a clean piece of an 8
11
'/z"x 11" sized piece of paper in order to be scanned.
12
• Inserting separator sheets to separate sections within the files as
13
documents are removed from folders.
14 Documents are to be scanned to the following imaging specifications:
15
1. Documents are to be scanned from front to back, as presented in
16 the file folders.
17
2. Each batch scanned must have a batch identifier as provided by
18
the County departments.
19 3. The Contractor must provide images in TIFF standard format.
20 4. Scans must be completed at a minimum of 300 dpi.
21 5. The size of each TIFF file shall be less than 500MB.
22
6. All documents must be scanned using Optical Character
23
Recognition (OCR).
24
7. The images must meet"Legal Admissibility" in compliance with
25 State and Federal laws.
26 Each individual file created of imaged documents must contain the
27
following identifier in the file name:
28
A-2
Exhibit
1
1. Case number consisting of 9-digits (e.g., F18000000 or
2 M18000000) to be taken from case label on the outside of the file
3
folder.
4
2. If multiple TIFF files for the same case, use -1, -2, -3, etc. to name
5
consecutive files for the same case.
6
• Duplex scans shall be used to capture both front and back of
7
documents on an as-needed basis.
8
• Color images must be viewable quality so that detail in the image is
9
captured.
10 • Color photos and documents that have colored pencil marks will be
11
scanned in color.
12
• Size of image must be relative to the original (measuring both
13
horizontally and vertically).
14
• Images must be correctly oriented for viewing without skewing or
15
inverting.
16
• Text must be legible up to the edge of the document.
17 • Borders shall not be cropped.
18
• There shall be no missing portion of the edge of the image.
19 • Contrast ratio between the text and the background must be high.
20
• Contrast on grey scale images should represent the original image.
21 . All documents shall be of adequate brightness.
22 • There shall be no color dropout.
23
• There shall be no poor thresholding, dropping of low contact features, or
24
dark background obscuring foreground.
25 • There shall be no character dropout or otherwise missing characters
26
from the OCR process.
27 There shall be no missing lines.
28
A-3
Exhibit A
1
• Images must be devoid of speckles or noise in the background of the
2
image, repeated scan lines on successive images, or repeated pixels on
3
successive images.
4 • The images shall be in focus; small characters must be fully legible.
5
• All blank pages must be removed and not scanned.
6 • 10% of the images will be spot-checked for image quality and
7
readability prior to delivery to the County for review.
8
• Each file shall be indexed for quick retrieval using the index information
9
provided. Index metadata must be included with each file. Data to be
10
captured in the metadata includes the following core index fields: (1)
11 Case number consisting of 9-digits (e.g., F18000000 or M18000000) to
12
be taken from case label on the outside of the file folder and (II)
13
Defendant name.
14
• Every written page shall be scanned.
15 • All errors shall be fixed within 24 hours of contacting the County, and at
16
no additional cost to the County.
17
• Image repair, file separation, and index correction shall be done in real-
18
time and forwarded to the County within 24 hours.
19
Quality Control
20
• Quality control of scanning, image control, and indexing will be performed once
21 scanning is completed. The data shall be moved to the Contractor's dedicated
22 image server in order to provide the County with instant access to search
23 scanned documents. The County will perform its own quality control in addition to
24 the Contractor's quality control check. Documents that are imaged shall be
25 stored for three months free of charge per delivery during quality checking and
26 disposition determination. Upon the County's approval of scanned documents,
27 the Contractor shall deliver images to the County via a secure file transfer
28 protocol or on an encrypted password-protected hard drive.
A-4
Exhibit A
1
• Fragile or other document that require special handling shall be processed in the
2
safest manner to protect the integrity of the original document and ensure the
3
electronic format is easily legible. This may include photocopying the original
4 fragile document and scanning the photocopied version of the document when
5
necessary.
6 Document Destruction: Formal written approval shall be obtained from the
7 •
County prior to the initiation of shredding any document. The County will be given
8
a certificate of destruction.
9
10 Coordination of Document Pickup
11
• County staff shall be responsible for providing initial organization of the maximum
12 250 boxes to be picked up by the Contractor. County staff will provide
13 appropriate access to the Contractor's staff to appropriate County locations for
14
the Contractors to collect materials to be scanned.
15 Creation of Index
16 The County will create the index of the case number and box number and
17 •
provide that information to the Contractor.
18
Document Review and Formal Approval
19 The County will complete the required quality control review as promptly as
20 reasonably possible. If the County's review process exceeds 90 days, the County
21 agrees to pay a storage fee, as described in Exhibit B.
22
23
24
25
26
27
28
A-5
Exhibit B
1 Compensation
2 The Contractor will be compensated for performance of its services under this
3 Agreement as provided in this Exhibit B. The Contractor is not entitled to any compensation
4 except as expressly provided in this Exhibit B.
5 The rates in this Exhibit B are based on standard projects. After the County submits a
6 supplemental request to perform work beyond initial contract scope, and upon the completion of
7 requirements gathering by the Contractor, the Contractor shall submit a "Preliminary Budgeting
8 Pricing" relative to such supplemental request to the County. The Contractor reserves the right
9 to adjust pricing (decrease or increase) per the specific scope, based on mutual written
10 agreement from the County executed by the parties at the time of engagement to perform the
11 supplemental service however in no case may any pricing be adjusted to exceed the maximum
12 compensation as stated in Article 3. The "Preliminary Budgetary Pricing" is based upon the
13 current agreement with the County. Pricing will be confirmed following the "Proof of Concept"
14 (POC). Should documents vary from initial the sampling, the Contractor will advise the County
15 of any variance in preparation time required (additional fees may apply). All rates below will be
16 subject to a yearly Cost of Living Adjustment (COLA) increase in the amount of 4.6% applicable
17 to years 3—5, respectively, however any rate increase may not result in exceeding the stated
18 maximum compensation amount in Article 3 of this Agreement.
19
20
21
22
23
24
25
26
27
28
B-1
Exhibit B
1
2
3 Standard Task Description Cost Price Contractor's
Processing Factor Comments
4 Costs Tasks
5 Records Imaging Cost of offsite standard Per $0.0369 Case scanning
Services— imaging services for image and case file
6 Offsite documents. Digital files metadata
delivered to the capture only. For
7 Participating Entity standard size
8 shall be compatible page up to 11 x
with its CMS, DMS, or 17. Including:
9 other digital storage Miscellaneous
repository, and include other items
10 an associated index of including fragile,
metadata for import confidential,
11 and retrieval purposes and/or pocket
folders.
12 Box Destruction Content destruction Per Box No Charge
13
14 Storage Document storage Per Box $0.49 per
more than 90 days (not box/per month
15 to exceed 180 days) $2.00 per
box/per month
16 after 180 days
17 Document Prepare documents for Per hour $35.79 This fee will
preparation. scanning and digitizing apply to all
18 by removing staples projects requiring
19 and other bindings, and document
by inspecting and preparation.
20 repairing pages as Contractor will
needed. Insertion of provide an
21 targets expected time
after a POC.
22 Case preparation
estimate box fee
23 for PD= 2.75
24 hours +10%
25 Pickup of Boxes Pallets picked up Per load $680.09 Up to 6 pallets =
240 boxes
26
27
28
B-2
Exhibit B
1
2
3 Standard Task Description Cost Price Contractor's
Processing Factor Comments
4 Costs Tasks
5 Indexing Associated index Field $0.32 Any work
values up to 15 required manual
6 characters data capture.
7 Pre-pickup Cost to perform pre- Per hour $51.01 This fee applies
preparation production preparation if Contractor is
8 Client's Site and packing of required to
documents for imaging remove boxes
9 for transfer to the from shelves,
vendor's work site palletize and
10 (includes indexing the shrink wrap
11 files being packed). boxes.
12 Store and Cost to store and Per box Included Up to 30 days
maintain records maintain files in a per post image
13 during climate-controlled, month upload
14 Production secure storage space
phase with fire and burglar
15 alarm protections until
the Participating Entity
16 has reviewed the
imaged and digitized
17 documents for quality
control purposes.
18 Box and records Paper shred and Per box Waived No charge if the
19 Destruction post recycled County requests
Scan the service
20 Image QC 100% Quality Check Per $0.0227 Image QC
21 for all images scanned image process: All
images are
22 checked for
legibility,
23 orientation,
a er folds, etc.
24 Large format 300dpi in color Per $1.28 Final price to be
scanning drawing determined with
25 a POC prior to
26 production.
Large format 300dpi in color Per $1.53
27 scanning — pre drawing
28 1979
B-3
Exhibit B
1 Standard Task Description Cost Price Contractor's Comments
Processing Factor
2 Costs Tasks
3 Large format 300dpi in color Per $1.53
scanning — pre drawing
4 1979
5 Large format Prepare documents for Per hour $40.13 We refer to any large
special handling scanning and format documents created
6 — pre 1979 digitizing. prior to 1979 as historical
7 documents. Special
handling will apply.
8
9
10 Special Cost of imaging fragile Per hour $40.13 Specific to document
handling documents or other processing, these charges
11 categories of apply to all pre-prep
documents that services that are beyond
12 require special the scope of standard
13 processing. document preparation
14
15
Microfilm Cost to Digitize 16MM Per $0.01292
16 microfilm. image
17 Microfiche Cost to Digitize Per fiche $5.51
Microfiche.
18 Manifest Fee Cost of Data Per File $0.75 Manual capture of missing
capture/indexing. Manifest data.
19 Additionally, said Manifest
Fee is being added to
20 invoicing pertinent to
21 original contract 19-287
services to address.
22 County omitted Manifest
as agreed under contract
23 19-287.
Mailroom Receive mail, extract Per $0.72 Assumes envelopes
24 Services mail from envelopes, Envelope contain 3 pages, and the
prep, scan, index, index value is 15
25 return mail images characters or less. No
26 with index data. envelopes will be
scanned.
27
28
B-4
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, 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. Umbrella coverage may be aggregated with this requirement to fulfill the
obligation stated.
(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) The following coverages in a single policy:
1. Technology Professional Liability (Errors and Omissions). Technology
professional liability (errors and omissions) insurance with limits of not less than Two
Million Dollars ($2,000,000) per occurrence and in the aggregate. Coverage must
encompass all of the Contractor's obligations under this Agreement, including but not
limited to claims involving Cyber Risks.
2. 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 E
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
D-1
Exhibit D
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
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 HRRiskMananementCc�fresnocountyca.qov, 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.
D-2
Exhibit D
(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
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
Exhibit E
Data Security
A. Definitions.
Capitalized terms used in this Exhibit E 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 E.
"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,
E-1
Exhibit E
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 E.
"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 E.
"Security Breach" means (i) any act or omission that compromises either the security,
confidentiality, value, or integrity of any Personal Information or the Security Safeguards, 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.
"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
receives or has received Personal Information) regardless of the Contractor's, or any Authorized
E-2
Exhibit E
Person's, Use of that Personal Information.
(3) 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 E; (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.
The Contractor shall remain liable to the County for the actions and omissions of any
Unauthorized Third Party concerning its Use of such 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
E-3
Exhibit E
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) Without limiting the Contractor's obligations under subsection C.(1) of this Exhibit E, 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
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
E-4
Exhibit E
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 a remote wipe feature always enabled, all of which is subject to
express prior written consent of the Director; (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, all of
which is subject to express prior written consent of the Director); (v) strictly segregating Personal
Information from all other information of the Contractor, including any Authorized Person, or
anyone with whom the Contractor or any Authorized Person deals so that Personal Information is
not commingled with any other types of information; (vi) 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 obligations
under this Exhibit E. 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, Personal Information received from the County, and
the County shall have immediate, real time access, at all times, to such backups via a secure,
remote access connection provided by the Contractor, through the Internet.
E-5
Exhibit E
(6)The Contractor shall provide the County with the name and contact information for each
Authorized Employee (including such Authorized Employee's work shift, and at least one alternate
Authorized Employee for each Authorized Employee during such work shift)who shall serve as the
County's primary security contact with the Contractor and shall be available to assist the County
twenty-four(24) hours per day, seven (7)days per week as a contact in resolving the Contractor's
and any Authorized Persons' obligations associated with a Security Breach or a Privacy Practices
Complaint.
D. Security Breach Procedures.
(1) Promptly, and without undue delay, upon the Contractor's confirmation of a Security
Breach, the Contractor shall (a) notify the Director of the Security Breach, such notice to be given
first by telephone at the following telephone number, followed promptly by email at the following
email address: (559) 600-5900/incidentsftesnocountyca.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 E, the Parties shall coordinate with each
other to investigate the Security Breach. The Contractor agrees to fully cooperate with the County,
including, without limitation: (i) assisting the County in conducting any investigation; (ii) providing
the County with physical access to the facilities and operations affected; (iii)facilitating interviews
with Authorized Persons and any of the Contractor's other employees knowledgeable of the
matter; and (iv) 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. To that end, the Contractor shall, with respect to a Security Breach, be
solely responsible, at its cost, for all notifications required by law and regulation, and the Contractor
E-6
Exhibit E
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 E, 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
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 any
reoccurrence of the Security Breach and correcting any deficiency in Security Safeguards as a
result of such incident, 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 E. 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.
E-7
Exhibit E
(2) Upon the County's written request, to confirm the Contractor's compliance with this
Exhibit E, as well as any applicable laws, regulations and industry standards, the Contractor grants
the County or, upon the County's election, a third party on the County's behalf, permission to
perform an assessment, audit, examination or review of all controls in the Contractor's physical and
technical environment in relation to all Personal Information that is Used by the Contractor pursuant
to this Agreement. The Contractor shall fully cooperate with such assessment, audit or
examination, as applicable, by providing the County or the third party on the County's behalf,
access to all Authorized Employees and other knowledgeable personnel, physical premises,
documentation, infrastructure and application software that is Used by the Contractor for Personal
Information pursuant to this Agreement. In addition, the Contractor shall provide the County with
the results of any audit by or on behalf of the Contractor that assesses the effectiveness of the
Contractor's information security program as relevant to the security and confidentiality of Personal
Information Used by the Contractor or Authorized Persons during the course of this Agreement
under this Exhibit E.
(3)The Contractor shall ensure that all Authorized Persons who Use Personal Information
agree to the same restrictions and conditions in this Exhibit E. 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 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 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 E, such certification shall state the date, time, and manner
E-8
Exhibit E
(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 E 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 E 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 including, but not limited to infringement of copyright, trademark, and trade
dress, invasion of privacy, information theft, and extortion, unauthorized Use, Disclosure, or
modification of, or any loss or destruction of, or any corruption of or damage to, Personal
Information, 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
E-9
Exhibit E
fees and costs, the cost of enforcing any right to indemnification or defense under this Attachment
"A" 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 CONTRACTOR's, 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 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 E shall survive the termination of this Agreement.
J. No Third Party Beneficiary.
Nothing express or implied in the provisions of in this Exhibit E 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.
E-10
Exhibit F
Health Insurance Portability and Accountability Act (HIPAA)
1. The County is a "Covered Entity," and the Contractor is a "Business Associate," as
these terms are defined by 45 CFR 160.103. In connection with providing services under the
Agreement, the parties anticipate that the Contractor will create and/or receive Protected Health
Information ("PHI")from or on behalf of the County. The parties enter into this Business Associate
Agreement(BAA)to comply with the Business Associate requirements of HIPAA, to govern the
use and disclosures of PHI under this Agreement. "HIPAA Rules" shall mean the Privacy, Security,
Breach Notification, and Enforcement Rules at 45 CFR Parts 160 and 164. The parties to this
Agreement shall be in strict conformance with all applicable federal and State of California laws
and regulations, including, but not limited to California Welfare and Institutions Code sections 5328,
10850, and 14100.2 et seq.; 42 CFR 2; 42 CFR 431; California Civil Code section 56 et seq.; the
Health Insurance Portability and Accountability Act of 1996, as amended ("HIPAA!'), including, but
not limited to, 45 CFR Parts160, 45 CFR 162, and 45 CFR 164; the Health Information Technology
for Economic and Clinical Health Act("HITECH") regarding the confidentiality and security of
patient information, including, but not limited to 42 USC 17901 et seq.; and the Genetic Information
Nondiscrimination Act("GINA") of 2008 regarding the confidentiality of genetic information.
Except as otherwise provided in this Agreement, the Contractor, as a business
associate of the County, may use or disclose Protected Health Information ("PHI") to perform
functions, activities or services for or on behalf of the County, as specified in this Agreement,
provided that such use or disclosure shall not violate HIPAA Rules. The uses and disclosures of
PHI may not be more expansive than those applicable to the County, as the "Covered Entity"
under the HIPAA Rules, except as authorized for management, administrative or legal
responsibilities of the Contractor.
2. The Contractor, including its subcontractors and employees, shall protect from
unauthorized access, use, or disclosure of names and other identifying information, including
genetic information, concerning persons receiving services pursuant to this Agreement, except
where permitted in order to carry out data aggregation purposes for health care operations [45
CFR§§ 164.504(e)(2)(i), 164.504(e)(2)(ii)(A), and 164.504(e)(4)(i)]. This pertains to any and all
persons receiving services pursuant to a County-funded program. This requirement applies to
electronic PHI. The Contractor shall not use such identifying information or genetic information for
any purpose other than carrying out the Contractor's obligations under this Agreement.
3. The Contractor, including its subcontractors and employees, shall not disclose any
such identifying information or genetic information to any person or entity, except as otherwise
specifically permitted by this Agreement, authorized by Subpart E of 45 CFR Part 164 or other law,
required by the Secretary of the United States Department of Health and Human Services
("Secretary"), or authorized by the client/patient in writing. In using or disclosing PHI that is
permitted by this Agreement or authorized by law, the Contractor shall make reasonable efforts to
limit PHI to the minimum necessary to accomplish intended purpose of use, disclosure or request.
4. For purposes of the above sections, identifying information shall include, but not be
limited to, name, identifying number, symbol, or other identifying particular assigned to the
individual, such as fingerprint or voiceprint, or photograph.
5. For purposes of the above sections, genetic information shall include genetic tests
of family members of an individual or individual(s), manifestation of disease or disorder of family
members of an individual, or any request for or receipt of genetic services by individual or family
F-1
Exhibit F
members. Family member means a dependent or any person who is first, second, third, or fourth
degree relative.
6. The Contractor shall provide access, at the request of the County, and in the time
and manner designated by the County, to PHI in a designated record set (as defined in 45 CFR§
164.501), to an individual or to COUNTY in order to meet the requirements of 45 CFR§ 164.524
regarding access by individuals to their PHI. With respect to individual requests, access shall be
provided within thirty (30)days from request. Access may be extended if the Contractor cannot
provide access and provides the individual with the reasons for the delay and the date when
access may be granted. PHI shall be provided in the form and format requested by the individual
or the County.
The Contractor shall make any amendment(s)to PHI in a designated record set
at the request of the County or individual, and in the time and manner designated by the County
in accordance with 45 CFR § 164.526.
The Contractor shall provide to the County or to an individual, in a time and
manner designated by the County, information collected in accordance with 45 CFR § 164.528,
to permit the County to respond to a request by the individual for an accounting of disclosures of
PHI in accordance with 45 CFR § 164.528.
7. The Contractor shall report to the County, in writing, any knowledge or
reasonable belief that there has been unauthorized access, viewing, use, disclosure, security
incident, or breach of unsecured PHI not permitted by this Agreement of which the Contractor
becomes aware, immediately and without reasonable delay and in no case later than two (2)
business days of discovery. Immediate notification shall be made to the County's Information
Security Officer and Privacy Officer and the County's Department of Public Health ("DPH")
HIPAA Representative, within two (2) business days of discovery. The notification shall include,
to the extent possible, the identification of each individual whose unsecured PHI has been, or is
reasonably believed to have been, accessed, acquired, used, disclosed, or breached. The
Contractor shall take prompt corrective action to cure any deficiencies and any action pertaining
to such unauthorized disclosure required by applicable federal and State laws and regulations.
The Contractor shall investigate such breach and is responsible for all notifications required by
law and regulation or deemed necessary by the County and shall provide a written report of the
investigation and reporting required to the County's Information Security Officer and Privacy
Officer and the County's DPH HIPAA Representative.
This written investigation and description of any reporting necessary shall be
postmarked within the thirty (30) working days of the discovery of the breach to the
addresses below:
County of Fresno County of Fresno County of Fresno
Department of Public Health Department of Public Health Department of Internal
HIPAA Representative Privacy Officer Services
(559) 600-6439 (559) 600-6405 Information Security Officer
P.O. Box 11867 P.O. Box 11867 (559) 600-5800
Fresno, California 93775 Fresno, California 93775 2048 North Fine Street
Fresno, California 93727
8. The Contractor shall make its internal practices, books, and records relating to
the use and disclosure of PHI received from the County, or created or received by the
F-2
Exhibit F
Contractor on behalf of the County, in compliance with Parts the HIPAA Rules. The Contractor
shall make its internal practices, books, and records relating to the use and disclosure of PHI
received from the County, or created or received by the Contractor on behalf of the County,
available to the Secretary upon demand.
The Contractor shall cooperate with the compliance and investigation reviews conducted
by the Secretary. PHI access to the Secretary must be provided during the Contractor's normal
business hours; however, upon exigent circumstances access at any time must be granted.
Upon the Secretary's compliance or investigation review, if PHI is unavailable to the Contractor
and in possession of a subcontractor of the Contractor, the Contractor must certify to the
Secretary its efforts to obtain the information from the subcontractor.
9. Safeguards
The Contractor shall implement administrative, physical, and technical safeguards as
required by the HIPAA Security Rule, Subpart C of 45 CFR Part 164, that reasonably and
appropriately protect the confidentiality, integrity, and availability of PHI, including electronic
PHI, that it creates, receives, maintains or transmits on behalf of the County and to prevent
unauthorized access, viewing, use, disclosure, or breach of PHI other than as provided for by
this Agreement. The Contractor shall conduct an accurate and thorough assessment of the
potential risks and vulnerabilities to the confidentiality, integrity and availability of electronic PHI.
The Contractor shall develop and maintain a written information privacy and security program
that includes administrative, technical and physical safeguards appropriate to the size and
complexity of the Contractor's operations and the nature and scope of its activities. Upon the
County's request, the Contractor shall provide the County with information concerning such
safeguards.
The Contractor shall implement strong access controls and other security safeguards
and precautions in order to restrict logical and physical access to confidential, personal (e.g.,
PHI) or sensitive data to authorized users only. Said safeguards and precautions shall include
the following administrative and technical password controls for all systems used to process or
store confidential, personal, or sensitive data:
A. Passwords must not be:
(1) Shared or written down where they are accessible or recognizable by anyone
else; such as taped to computer screens, stored under keyboards, or visible
in a work area;
(2) A dictionary word; or
(3) Stored in clear text
B. Passwords must be:
(1) Eight (8) characters or more in length;
(2) Changed every ninety (90) days;
(3) Changed immediately if revealed or compromised; and
(4) Composed of characters from at least three (3) of the following four(4)
groups from the standard keyboard:
a) Upper case letters (A-Z);
b) Lowercase letters (a-z);
c) Arabic numerals (0 through 9); and
d) Non-alphanumeric characters (punctuation symbols).
F-3
Exhibit F
The Contractor shall implement the following security controls on each workstation or
portable computing device (e.g., laptop computer) containing confidential, personal, or sensitive
data:
1. Network-based firewall and/or personal firewall;
2. Continuously updated anti-virus software; and
3. Patch management process including installation of all operating system/software
vendor security patches.
The Contractor shall utilize a commercial encryption solution that has received FIPS
140-2 validation to encrypt all confidential, personal, or sensitive data stored on portable
electronic media (including, but not limited to, compact disks and thumb drives) and on portable
computing devices (including, but not limited to, laptop and notebook computers).
The Contractor shall not transmit confidential, personal, or sensitive data via e-mail or
other internet transport protocol unless the data is encrypted by a solution that has been
validated by the National Institute of Standards and Technology (NIST) as conforming to the
Advanced Encryption Standard (AES) Algorithm. The Contractor must apply appropriate
sanctions against its employees who fail to comply with these safeguards. The Contractor must
adopt procedures for terminating access to PHI when employment of employee ends.
10. Mitigation of Harmful Effects
The Contractor shall mitigate, to the extent practicable, any harmful effect that is
suspected or known to the Contractor of an unauthorized access, viewing, use, disclosure, or
breach of PHI by the Contractor or its subcontractors in violation of the requirements of these
provisions. The Contractor must document suspected or known harmful effects and the
outcome.
11. The Contractor's Subcontractors
The Contractor shall ensure that any of its contractors, including subcontractors, if
applicable, to whom the Contractor provides PHI received from or created or received by the
Contractor on behalf of the County, agree to the same restrictions, safeguards, and conditions
that apply to the Contractor with respect to such PHI and to incorporate, when applicable, the
relevant provisions of these provisions into each subcontract or sub-award to such agents or
subcontractors.
Nothing in this section 11 or this Exhibit F authorizes the Contractor to perform services
under this Agreement using subcontractors.
12. Employee Training and Discipline
The Contractor shall train and use reasonable measures to ensure compliance with the
requirements of these provisions by employees who assist in the performance of functions or
activities on behalf of the County under this Agreement and use or disclose PHI, and discipline
such employees who intentionally violate any provisions of these provisions, which may include
termination of employment.
13. Termination for Cause
Upon the County's knowledge of a material breach of these provisions by the Contractor,
the County will either:
A. Provide an opportunity for the Contractor to cure the breach or end the
violation, and the County may terminate this Agreement if the Contractor does not cure the
breach or end the violation within the time specified by the County; or
F-4
Exhibit F
B. Immediately terminate this Agreement if the Contractor has breached a
material term of this Exhibit F and cure is not possible, as determined by the County.
C. If neither cure nor termination is feasible, the County's Privacy Officer will
report the violation to the Secretary of the U.S. Department of Health and Human Services.
14. Judicial or Administrative Proceedings
The County may terminate this Agreement if: (1) the Contractor is found guilty in a
criminal proceeding for a violation of the HIPAA Privacy or Security Laws or the HITECH Act; or
(2) there is a finding or stipulation in an administrative or civil proceeding in which the Contractor
is a party that the Contractor has violated a privacy or security standard or requirement of the
HITECH Act, HIPAA or other security or privacy laws.
15. Effect of Termination
Upon termination or expiration of this Agreement for any reason, the Contractor shall
return or destroy all PHI received from the County (or created or received by the Contractor on
behalf of the County) that the Contractor still maintains in any form, and shall retain no copies of
such PHI. If return or destruction of PHI is not feasible, the Contractor shall continue to extend
the protections of these provisions to such information, and limit further use of such PHI to those
purposes that make the return or destruction of such PHI infeasible. This provision applies to
PHI that is in the possession of subcontractors or agents, if applicable, of the Contractor. If the
Contractor destroys the PHI data, a certification of date and time of destruction shall be
provided to the County by the Contractor.
16. Compliance with Other Laws
13.17 To the extent that other state and/or federal laws provide additional, stricter
and/or more protective privacy and/or security protections to PHI or other confidential
information covered under this BAA, the Contractor agrees to comply with the more protective of
the privacy and security standards set forth in the applicable state or federal laws to the extent
such standards provide a greater degree of protection and security than HIPAA Rules or are
otherwise more favorable to the individual.
17. Disclaimer
The County makes no warranty or representation that compliance by the Contractor with
these provisions, the HITECH Act, or the HIPAA Rules, will be adequate or satisfactory for the
Contractor's own purposes or that any information in the Contractor's possession or control, or
transmitted or received by the Contractor, is or will be secure from unauthorized access,
viewing, use, disclosure, or breach. The Contractor is solely responsible for all decisions made
by the Contractor regarding the safeguarding of PHI.
18. Amendment
The parties acknowledge that Federal and State laws relating to electronic data security
and privacy are rapidly evolving and that amendment of this Exhibit F may be required to
provide for procedures to ensure compliance with such developments. The parties specifically
agree to take such action as is necessary to amend this agreement in order to implement the
standards and requirements of the HIPAA Rules, the HITECH Act and other applicable laws
relating to the security or privacy of PHI. The County may terminate this Agreement upon thirty
(30) days written notice in the event that the Contractor does not enter into an amendment
providing assurances regarding the safeguarding of PHI that the County in its sole discretion,
deems sufficient to satisfy the standards and requirements of the HIPAA Rules, and the
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Exhibit F
HITECH Act.
19. No Third-Party Beneficiaries
Nothing expressed or implied in the provisions of this Exhibit F is intended to confer, and
nothing in this Exhibit F does confer, upon any person other than the County or the Contractor
and their respective successors or assignees, any rights, remedies, obligations or liabilities
whatsoever.
20. Interpretation
The provisions of this Exhibit F shall be interpreted as broadly as necessary to
implement and comply with the HIPAA Rules, and applicable State laws. The parties agree that
any ambiguity in the terms and conditions of these provisions shall be resolved in favor of a
meaning that complies and is consistent with the HIPAA Rules.
21. Regulatory References
A reference in the terms and conditions of these provisions to a section in the HIPAA
Rules means the section as in effect or as amended.
22. Survival
The respective rights and obligations of the Contractor as stated in this Exhibit F survive
the termination or expiration of this Agreement.
23. No Waiver of Obligation
Change, waiver or discharge by the County of any liability or obligation of the Contractor
under this Exhibit F on any one or more occasions is not a waiver of performance of any
continuing or other obligation of the Contractor and does not prohibit enforcement by the County
of any obligation on any other occasion.
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