HomeMy WebLinkAboutAgreement A-24-422 with JBI fully executed packet.pdf co
Board Agenda Item 50
O 1856 O
FRE`'�
DATE: August 6, 2024
TO: Board of Supervisors
SUBMITTED BY: Kirk Haynes, Chief Probation Officer
SUBJECT: Agreement with JBI, L.P. dba Justice Benefits, Inc.
RECOMMENDED ACTION(S):
1. Under Administrative Policy No. 34, determine that an exception to the requirements for
competitive bids or requests for proposals is satisfied due to unusual or extraordinary
circumstances, and that the best interests of the County would be served by entering into
an agreement with JBI, L.P. dba Justice Benefits, Inc. (JBI),the only vendor that provides its
proprietary RMS system,which assists the Probation Department with all aspects of the
Federal Title IV-E program; and
2. Approve and authorize the Chairman to execute a retroactive Agreement with JBI for
grant-claiming services for the Federal Title IV-E program for the Probation Department,
effective July 25, 2024, not to exceed five consecutive years,which includes a three-year
base term and two optional one-year extensions, total not to exceed $600,000.
There is no Net County Cost associated with the recommended actions. The costs for the recommended
agreement will be funded with Title IV-E revenue. The open-ended entitlement grant program is designed to
provide case management and legal representation services to juveniles at imminent risk of being removed
from their home and placed in a foster or group home, or who are already in a foster or group home.
Approval of the recommended actions will allow JBI to continue to provide professional services to assist the
Probation Department with all aspects of Federal Title IV-E claims. JBI's random time keeping system
(RMS), is proprietary, and Probation staff have been trained in this system. This item is countywide.
ALTERNATIVE ACTION(S):
If the recommended actions are not approved, the Probation Department will not be able to use JBI's
services to assure that its Title IV-E claims are in compliance with Federal and State regulations.
RETROACTIVE:
The recommended Agreement is retroactive to July 25, 2024. This item was originally scheduled to come
before your Board on July 9, 2024. However, the vendor made substantial material edits to the Agreement
after the agenda item approval process was underway. Due to the length of time to prepare, review, and
approve the agreement, the Department was unable to meet the agenda item processing timelines for the
scheduled Board Meeting date. This item is being brought to your Board at the next available Board date in
accordance with the agenda item processing timelines.
SUSPENSION OF COMPETITION/SOLE SOURCE CONTRACT:
The Probation Department requests your Board find that under AP 34 an exception to the requirements for
County of Fresno Page I File Number.24-0660
File Number:24-0660
competitive bids or requests for proposals is satisfied due to unusual or extraordinary circumstances, as
JBI's program, including the RMS, is proprietary, and Probation Department staff have been trained in this
system. Switching to another company and system would require significant time and resources to retrain
staff on a new program/system. In addition, JBI is the leading company providing these services in
California. They are currently providing these services to 35 Probation Departments in California. JBI is also
the agency the Chief Probation Officers of California (CPOC) look to for training in the Title IV-E program.
Based on these factors, a letter of interest was not sent out. The Internal Services Department- Purchasing
concurs with the Departments' request to find an exception to the competitive bidding process is satisfied.
FISCAL IMPACT:
There is no Net County Cost associated with the recommended actions. The performance fees for the
services performed under the recommended agreement are paid for with the revenue received from the Title
IV-E program. JBI will receive a fee of 10% of the sum of Probation's gross quarterly Title IV-E claims with a
maximum of$30,000 per quarter, for a maximum of$120,000 annually. The maximum compensation for the
five-year term of the recommended agreement is $600,000. Sufficient appropriations and estimated
revenues have been included in the Probation Department's Org 3430 FY 2024-25 Recommended Budget
and will be included in future budget requests.
DISCUSSION:
The Probation Department participates in the Federal Title IV-E program. The program is designed to
provide case management and legal representation services to juveniles at imminent risk of being removed
from their home and placed in a foster or group home, or who are already in a foster or group home.
Assessments are completed on juveniles within the Title IV-E program and referrals for services are made
for the needs identified in the assessment.
On July 25, 2014, the Probation Department entered into a one-year Procurement Agreement to establish a
pilot program in which JBI would assist the County with accurate Title IV-E program documentation and
claim compilations to ensure compliance with the federal and state guidelines in place at that time. On
January 13, 2015, the Board approved the request to extend the term for a three-year base contract with two
optional one-year extensions and increase the maximum compensation beyond the Purchasing Manager's
Authority; converting the Procurement Agreement to a Board Agreement.
On July 9, 2019, your Board made the finding that it was in in the best interest of the County to suspend
competitive bidding and authorized the Chairman to execute the current Agreement which will expire July 24,
2024. On May 26, 2020 your Board approved the Chairman to execute the First Amendment to the
Agreement with JBI to increase the maximum compensation with no change in term and add the Public
Defender's Office as a party to the Agreement.
The recommended actions will allow JBI to continue to provide professional services to the Probation
Department for its Federal Title IV-E program, including preparation of time studies, case plans, and claim
submittals. JBI also provides training to staff on how to accurately complete the Title IV-E time study, and
training to use JBI's proprietary RMS. In addition, JBI will audit and provide quality assurance to ensure the
Probation Department's claims are accurate and will be onsite to assist the Probation Department through
any State or Federal audit.
REFERENCE MATERIAL:
BAI #47, May 26, 2020
BAI #54, July 9, 2019
BAI #20, January 13, 2015
County of Fresno Page 2 File Number.24-0660
File Number:24-0660
ATTACHMENTS INCLUDED AND/OR ON FILE:
Suspension of Competition Acquisition Request Form
On file with Clerk-Agreement with JBI
CAO ANALYST:
Fine Nai
County of Fresno Page 3 File Number:24-0660
COtj County of Fresno Hall of Records, Room 301
2281 Tulare Street
Fresno,California
601 Board of Supervisors 93721-2198
O� 1$56 O Telephone: (559)600-3529
FRV,t' Minute Order Toll Free: 1-800-742-1011
www.fresnocountyca.gov
August 6, 2024
Present: 5- Supervisor Steve Brandau, Chairman Nathan Magsig,Vice Chairman Buddy Mendes,
Supervisor Brian Pacheco, and Supervisor Sal Quintero
Agenda No. 50. Probation File ID: 24-0660
Re: Under Administrative Policy No. 34, determine that an exception to the requirements for competitive
bids or requests for proposals is satisfied due to unusual or extraordinary circumstances, and that the
best interests of the County would be served by entering into an agreement with JBI, L.P.dba Justice
Benefits, Inc. (JBI),the only vendor that provides its proprietary RMS system,which assists the
Probation Department with all aspects of the Federal Title IV-E program; and approve and authorize
the Chairman to execute a retroactive Agreement with JBI for grant-claiming services for the Federal
Title IV-E program for the Probation Department, effective July 25, 2024, not to exceed five consecutive
years,which includes a three-year base term and two optional one-year extensions, total not to
exceed$600,000
APPROVED AS RECOMMENDED
Ayes: 5- Brandau, Magsig, Mendes, Pacheco, and Quintero
Agreement No. 24-422
County of Fresno Page 52
Agreement No. 24-422
1 SERVICE AGREEMENT
2 This Service Agreement("Agreement") is dated August 6, 2024 , and is between JBI,
3 L.P., a Texas limited partnership ("Contractor"), and the County of Fresno, a political subdivision
4 of the State of California ("County").
5 Recitals
6 A. The County participates in the Federal Title IV-E program and receives funding for its
7 participation.
8 B. County has received services continuously from Contractor since 2014.
9 C. Contractor is willing and able to continue to provide professional services to assist the
10 County's Probation Department ("Probation") in accurately claiming for Federal Title IV-E funds
11 including, but not limited to, preparing the required claim, training, quality assurance and
12 auditing to ensure compliance with the program's requirements. Contractor works closely with
13 the California Department of Social Services (CDSS)and County to ensure the County is
14 following the latest claiming policies.
15 The parties therefore agree as follows:
16 Article 1
17 Contractor's Services
18 1.1 Scope of Services. The Contractor shall perform all of the services provided in
19 Exhibit A to this Agreement, titled "Scope of Services."
20 1.2 Contractor shall continually monitor for new opportunities of funding. Whenever a
21 new federal reimbursement opportunity arises, Contractor shall notify County of that opportunity
22 Contractor shall strive to identify and optimize all federal reimbursement opportunities for
23 County, including any retroactive claiming processes.
24 1.3 Representation. The Contractor represents that it is qualified, ready, willing, and
25 able to perform all of the services provided in this Agreement.
26 1.4 Compliance with Laws. The Contractor shall, at its own cost, comply with all
27 applicable federal, state, and local laws and regulations in the performance of its obligations
28
1
I under this Agreement, including but not limited to workers compensation, labor, and
2 confidentiality laws and regulations.
3 1.5 Meetings. Contractor shall participate in quarterly workgroup meetings, or as
4 needed, consisting of County staff to discuss service requirements, reporting, training, policies
5 and procedures, overall program operations, and any problems or foreseeable problems that
6 may arise. Schedules for these meetings may change based on the County's needs.
7 1.6 The services shall be provided in part at the JJC, and other available Probation
8 facilities. Contractor shall not have any right to control or exclusively possess all or any portion
9 of any County facility, including the JJC, and at any time, authorized County staff may enter
10 County facilities, including the JJC, where Contractor is performing services.
11 Article 2
12 County's Responsibilities
13 2.1 The County shall monitor Contractor's performance under the terms and condition of
14 this Agreement.
15 2.2 The County shall authorize payment for services rendered based upon properly
16 submitted invoices to the County in accordance with Article 3 "Compensation, Invoices, and
17 Payments".
18 2.3 The County shall provide Contractor with copies of or access to documents and/or
19 databases that are necessary for the successful completion of work required by this Agreement.
20 Article 3
21 Compensation, Invoices, and Payments
22 3.1 The County agrees to pay, and the Contractor agrees to receive, compensation for
23 the performance of its services under this Agreement as described in Exhibit B to this
24 Agreement, titled "Compensation".
25 3.2 Maximum Compensation.The maximum annual compensation payable for
26 services performed for Probation is One Hundred Twenty Thousand Dollars ($120,000).
27 Commencing July 25, 2024 through July 24, 2027, the maximum compensation for the initial
28 three-year term is Three Hundred Sixty Thousand Dollars ($360,000). In accordance with Article
2
1 4"Term of Agreement," if this Agreement extends for a fourth year,the maximum compensation
2 is Four Hundred Eighty Thousand Dollars ($480,000). If this Agreement extends for a fifth year,
3 the maximum compensation is Six Hundred Thousand Dollars ($600,000). In no event shall the
4 total maximum compensation for services performed under this Agreement exceed Six Hundred
5 Thousand Dollars ($600,000)for the entire potential five-year term.
6 3.3 The Contractor acknowledges that the County is a local government entity, and does
7 so with notice that the County's powers are limited by the California Constitution and by State
8 law, and with notice that the Contractor may receive compensation under this Agreement only
9 for services performed according to the terms of this Agreement and while this Agreement is in
10 effect, and subject to the maximum amount payable under this section.The Contractor further
11 acknowledges that County employees have no authority to pay the Contractor except as
12 expressly provided in this Agreement.
13 3.4 Invoices. The Contractor shall submit quarterly invoices to
14 nnv and n,n' email
15 inboxes. The Contractor shall submit each quarterly invoice within 60 days after the quarter in
16 which the Contractor performs services and in any case within 60 days after the end of the term
17 or termination of this Agreement.
18 3.5 Payment. The County shall pay each correctly completed and timely submitted
19 invoice within 45 days of County's receipt of Title IV-E reimbursement funds, pursuant to
20 Contractor's submission of quarterly invoices to the Probation Department. The County shall
21 remit payment to the Contractor's address specified in the invoice. Contractor agrees that in the
22 unlikely event any funds recovered by the County as a result of this Agreement are substantially
23 disallowed, and the disallowance is not directly related to Contractor's performance, that the
24 related fees paid to Contractor based on such disallowed reimbursements shall be credited
25 against future payments to Contractor, or promptly repaid to the County if this Agreement is
26 terminated. Contractor shall have the right to review County's claims, grant awards, and such
27 books, records, and other documents as may be required to ensure that the payment of
28 Contractor's fees is in accordance with this Agreement. In the unlikely event any funds
3
1 recovered through the program by the County are subsequently disallowed, at County's option,
2 JBI will either credit the related fees paid to JBI against future payments or promptly repay such
3 fees to County. JBI's liability is limited to the amount paid or owed to JBI.
4 3.6 Incidental Expenses. The Contractor is solely responsible for all of its costs and
5 expenses that are not specified as payable by the County under this Agreement.
6 Article 4
7 Term of Agreement
8 4.1 Term.This Agreement is retroactively effective on July 25, 2024 and terminates on
9 July 24, 2027 except as provided in section 4.2, "Extension,"or Article 6, "Termination and
10 Suspension," below.
11 4.2 Extension.The term of this Agreement may be extended for no more than two, one-
12 year periods only upon written approval of each party at least 30 days before the first day of the
13 next one-year extension period. The Chief Probation Officer, or designee, is authorized to sign
14 the written approval on behalf of the County based on the Contractor's satisfactory
15 performance. The extension of this Agreement by the County is not a waiver or compromise of
16 any default or breach of this Agreement by the Contractor existing at the time of the extension
17 whether or not known to the County.
18 Article 5
19 Notices
20 5.1 Contact Information. The persons and their addresses having authority to give and
21 receive notices provided for or permitted under this Agreement include the following:
22
For the County:
23 Probation Department
Chief Probation Officer
24 3333 E.American Ave., Suite B
Fresno, CA 93725
25 ProbationContractsCa�fresnocountvca.aov
26
For the Contractor:
27 JBI, LD
Senior Vice President
28 Justice Benefits, Inc., LD
1711 East Belt Line Road
4
1 Coppell, TX 75019
2
5.2 Change of Contact Information. Either party may change the information in section
3
5.1 by giving notice as provided in section 5.3.
4
5 3 Method of Delivery. Each notice between the County and the Contractor provided
5
for or permitted under this Agreement must be in writing, state that it is a notice provided under
6
this Agreement, and be delivered either by personal service, by first-class United States mail, by
7
an overnight commercial courier service, or by Portable Document Format(PDF) document
8
attached to an email.
9
(A) A notice delivered by personal service is effective upon service to the recipient.
10
(B)A notice delivered by first-class United States mail is effective three County
11
business days after deposit in the United States mail, postage prepaid, addressed to the
12
recipient.
13
(C)A notice delivered by an overnight commercial courier service is effective one
14
County business day after deposit with the overnight commercial courier service,
15
delivery fees prepaid, with delivery instructions given for next day delivery, addressed to
16
the recipient.
17
(D)A notice delivered by telephonic facsimile transmission or by PDF document
18
attached to an email is effective when transmission to the recipient is completed (but, if
19
such transmission is completed outside of County business hours, then such delivery is
20
deemed to be effective at the next beginning of a County business day), provided that
21
the sender maintains a machine record of the completed transmission.
22
5.4 Claims Presentation. For all claims arising from or related to this Agreement,
23
nothing in this Agreement establishes, waives, or modifies any claims presentation
24
requirements or procedures provided by law, including the Government Claims Act (Division 3.6
25
of Title 1 of the Government Code, beginning with section 810).
26
27
28
5
1 Article 6
2 Termination and Suspension
3 6.1 Termination for Non-Allocation of Funds. The terms of this Agreement are
4 contingent on the approval of funds by the appropriating government agency. If sufficient funds
5 are not allocated, then the County, upon at least 30 days' advance written notice to the
6 Contractor, may:
7 (A) Modify the services provided by the Contractor under this Agreement; or
8 (B)Terminate this Agreement.
9 6.2 Termination for Breach.
10 (A) Upon determining that a breach (as defined in paragraph (C) below) has
11 occurred, the County may give written notice of the breach to the Contractor. The written
12 notice may suspend performance under this Agreement, and must provide at least 30
13 days for the Contractor to cure the breach.
14 (B) If the Contractor fails to cure the breach to the County's satisfaction within the
15 time stated in the written notice, the County may terminate this Agreement immediately.
16 (C) For purposes of this section, a breach occurs when, in the determination of the
17 County, the Contractor has:
18 (1) Obtained or used funds illegally or improperly;
19 (2) Failed to comply with any part of this Agreement;
20 (3) Submitted a substantially incorrect or incomplete report to the County; or
21 (4) Improperly performed any of its obligations under this Agreement.
22 6.3 Termination without Cause. In circumstances other than those set forth above, the
23 County may terminate this Agreement by giving at least 30 days advance written notice to the
24 Contractor.
25 6.4 No Penalty or Further Obligation. Any termination of this Agreement by the County
26 under this Article 6 is without penalty to or further obligation of the County.
27 6.5 County's Rights upon Termination. Upon termination for breach under.this Article
28 6, the County may demand repayment by the Contractor of any monies disbursed to the
6
1 Contractor under this Agreement that, in the County's sole judgment, were not expended in
2 compliance with this Agreement. The Contractor shall promptly refund all such monies upon
3 demand. This section survives the termination of this Agreement.
4 Article 7
5 Independent Contractor
6 7.1 Status. In performing under this Agreement, the Contractor, including its officers,
7 agents, employees, and volunteers, is at all times acting and performing as an independent
8 Contractor, in an independent capacity, and not as an officer, agent, servant, employee,joint
9 venturer, partner, or associate of the County.
10 7.2 Verifying Performance. The County has no right to control, supervise, or direct the
11 manner or method of the Contractor's performance under this Agreement, but the County may
12 verify that the Contractor is performing according to the terms of this Agreement.
13 7.3 Benefits. Because of its status as an independent Contractor, the Contractor has no
14 right to employment rights or benefits available to County employees. The Contractor is solely
15 responsible for providing to its own employees all employee benefits required by law. The
16 Contractor shall save the County harmless from all matters relating to the payment of
17 Contractor's employees, including compliance with Social Security withholding and all related
18 regulations.
19 7.4 Services to Others. The parties acknowledge that, during the term of this
20 Agreement, the Contractor may provide services to others unrelated to the County
21 Article 8
22 Indemnity and Defense
23 8.1 Indemnity. The Contractor shall indemnify and hold harmless and defend the
24 County (including its officers, agents, employees, and volunteers) against all claims, demands,
25 injuries, damages, costs, expenses (including attorney fees and costs), fines, penalties, and
26 liabilities of any kind to the County, the Contractor, or any third party that arise from or relate to
27 the performance or failure to perform by the Contractor(or any of its officers, agents,
28 subcontractors, or employees) under this Agreement. The County may conduct or participate in
1 its own defense without affecting the Contractor's obligation to indemnify and hold harmless or
2 defend the County.
3 8.2 Survival. This Article 8 survives the termination or expiration of this Agreement.
4 Article 9
5 Insurance
6 9.1 The Contractor shall comply with all the insurance requirements in Exhibit C to this
7 Agreement.
8 Article 10
9 Inspections, Audits, and Public Records
10 10.1 Inspection of Documents.The Contractor shall make available to the County, and
11 the County may examine at any time during business hours and as often as the County deems
12 necessary, all of the Contractor's records and data with respect to the matters covered by this
13 Agreement, excluding attorney-client privileged communications. The Contractor shall, upon
14 request by the County, permit the County to audit and inspect all of such records and data to
15 ensure the Contractor's compliance with the terms of this Agreement.
16 10.2 State Audit Requirements. If the compensation to be paid by the County under this
17 Agreement exceeds Ten Thousand Dollars ($10,000), the Contractor is subject to the
18 examination and audit of the California State Auditor, as provided in Government Code section
19 8546.7, for a period of three years after final payment under this Agreement. This section
20 survives the termination of this Agreement.
21 10.3 Public Records. The County is not limited in any manner with respect to its public
22 disclosure of this Agreement or any record or data that the Contractor may provide to the
23 County. The County's public disclosure of this Agreement or any record or data that the
24 Contractor may provide to the County may include but is not limited to the following:
25 (A) The County may voluntarily, or upon request by any member of the public or
26 governmental agency, disclose this Agreement to the public or such governmental
27 agency.
28
8
1 (B)The County may voluntarily, or upon request by any member of the public or
2 governmental agency, disclose to the public or such governmental agency any record or
3 data that the Contractor may provide to the County, unless such disclosure is prohibited
4 by court order.
5 (C)This Agreement, and any record or data that the Contractor may provide to the
6 County, is subject to public disclosure under the Ralph M. Brown Act (California
7 Government Code, Title 5, Division 2, Part 1, Chapter 9, beginning with section 54950).
8 (D)This Agreement, and any record or data that the Contractor may provide to the
9 County, is subject to public disclosure as a public record under the California Public
10 Records Act(California Government Code, Title 1, Division 10, beginning with section
11 7920.000) ("CPRA").
12 (E) This Agreement, and any record or data that the Contractor may provide to the
13 County, is subject to public disclosure as information concerning the conduct of the
14 people's business of the State of California under California Constitution, Article 1,
15 section 3, subdivision (b).
16 (F) Any marking of confidentiality or restricted access upon or otherwise made with
17 respect to any record or data that the Contractor may provide to the County shall be
18 disregarded and have no effect on the County's right or duty to disclose to the public or
19 governmental agency any such record or data.
20 10.4 Public Records Act Requests. If the County receives a written or oral request
21 under the CPRA to publicly disclose any record that is in the Contractor's possession or control,
22 and which the County has a right, under any provision of this Agreement or applicable law, to
23 possess or control, then the County may demand, in writing, that the Contractor deliver to the
24 County, for purposes of public disclosure, the requested records that may be in the possession
25 or control of the Contractor. Within five business days after the County's demand, the
26 Contractor shall (a) deliver to the County all of the requested records that are in the Contractor's
27 possession or control, together with a written statement that the Contractor, after conducting a
28 diligent search, has produced all requested records that are in the Contractor's possession or
9
1 control, or(b) provide to the County a written statement that the Contractor, after conducting a
2 diligent search, does not possess or control any of the requested records. The Contractor shall
3 cooperate with the County with respect to any County demand for such records. If the
4 Contractor wishes to assert that any specific record or data is exempt from disclosure under the
5 CPRA or other applicable law, it must deliver the record or data to the County and assert the
6 exemption by citation to specific legal authority within the written statement that it provides to
7 the County under this section. The Contractor's assertion of any exemption from disclosure is
8 not binding on the County, but the County will give at least 10 days' advance written notice to
9 the Contractor before disclosing any record subject to the Contractor's assertion of exemption
10 from disclosure. The Contractor shall indemnify the County for any court-ordered award of costs
11 or attorney's fees under the CPRA that results from the Contractor's delay, claim of exemption,
12 failure to produce any such records, or failure to cooperate with the County with respect to any
13 County demand for any such records.
14 Article 11
15 Data Security
16 11.1 Data Security Requirements. Contractor shall comply with data security
17 requirements in Exhibit D to this Agreement.
18 Article 12
19 Disclosure of Self-Dealing Transactions
20 12.1 Applicability. This Article 12 applies if the Contractor is operating as a corporation,
21 or changes its status to operate as a corporation.
22 12.2 Duty to Disclose. If any member of the Contractor's board of directors is party to a
23 self-dealing transaction, he or she shall disclose the transaction by completing and signing a
24 "Self-Dealing Transaction Disclosure Form" (Exhibit E to this Agreement) and submitting it to the
25 County before commencing the transaction or immediately after.
26 12.3 Definition. "Self-dealing transaction" means a transaction to which the Contractor is
27 a party and in which one or more of its directors, as an individual, has a material financial
28 interest.
10
1 Article 13
2 General Terms
3 13.1 Modification. Except as provided in Article 6, "Termination and Suspension,"this
4 Agreement may not be modified, and no waiver is effective, except by written agreement signed
5 by both parties. The Contractor acknowledges that County employees have no authority to
6 modify this Agreement except as expressly provided in this Agreement.
7 13.2 Non-Assignment. Neither party may assign its rights or delegate its obligations
8 under this Agreement without the prior written consent of the other party.
9 13.3 Governing Law. The laws of the State of California govern all matters arising from
10 or related to this Agreement.
11 13.4 Jurisdiction and Venue. This Agreement is signed and performed in Fresno
12 County, California. Contractor consents to California jurisdiction for actions arising from or
13 related to this Agreement, and, subject to the Government Claims Act, all such actions must be
14 brought and maintained in Fresno County.
15 13.5 Consistent Federal Income Tax Position. Contractor acknowledges that the JJC
16 referred to herein has been acquired, constructed, and/or improved using net proceeds of
17 governmental tax-exempt bonds ("Bond-Financed Facility"). Contractor agrees that, with respect
18 to this Agreement and the Bond Financed Facility, Contractor is not entitled to take, and shall
19 not take, any position (also known as a "tax position")with the Internal Revenue Service ("IRS")
20 that is inconsistent with being a "service provider"to the County, as a "qualified user"with
21 respect to the Bond Financed Facility, as "managed property," as all of those terms are used in
22 Internal Revenue Service Revenue Procedure 2017-13, and to that end, for example, and not
23 as a limitation, Contractor agrees that Contractor shall not, in connection with any federal
24 income tax return that it files with the IRS or any other statement or information that it provides
25 to the IRS, (a)claim ownership, or that Contractor is a lessee, of any portion of the Bond
26 Financed Facility, or (b) claim any depreciation or amortization deduction, investment tax credit,
27 or deduction for any payment as rent with respect to the Bond-Financed Facility.
28
11
1 13.6 Construction. The final form of this Agreement is the result of the parties' combined
2 efforts. If anything in this Agreement is found by a court of competent jurisdiction to be
3 ambiguous, that ambiguity shall not be resolved by construing the terms of this Agreement
4 against either party.
5 13.7 Days. Unless otherwise specified, "days" means calendar days.
6 13.8 Headings. The headings and section titles in this Agreement are for convenience
7 only and are not part of this Agreement.
8 13.9 Severability. If anything in this Agreement is found by a court of competent
9 jurisdiction to be unlawful or otherwise unenforceable, the balance of this Agreement remains in
10 effect, and the parties shall make best efforts to replace the unlawful or unenforceable part of
11 this Agreement with lawful and enforceable terms intended to accomplish the parties' original
12 intent.
13 13.10 Nondiscrimination. During the performance of this Agreement, the Contractor shall
14 not unlawfully discriminate against any employee or applicant for employment, or recipient of
15 services, because of race, religious creed, color, national origin, ancestry, physical disability,
16 mental disability, medical condition, genetic information, marital status, sex, gender, gender
17 identity, gender expression, age, sexual orientation, military status or veteran status pursuant to
18 all applicable State of California and federal statutes and regulation.
19 13.11 No Waiver. Payment, waiver, or discharge by the County of any liability or obligation
20 of the Contractor under this Agreement on any one or more occasions is not a waiver of
21 performance of any continuing or other obligation of the Contractor and does not prohibit
22 enforcement by the County of any obligation on any other occasion.
23 13.12 Entire Agreement. This Agreement, including its exhibits, is the entire agreement
24 between the Contractor and the County with respect to the subject matter of this Agreement,
25 and it supersedes all previous negotiations, proposals, commitments, writings, advertisements,
26 publications, and understandings of any nature unless those things are expressly included in
27 this Agreement. If there is any inconsistency between the terms of this Agreement without its
28 exhibits and the terms of the exhibits, then the inconsistency will be resolved by giving
12
1 precedence first to the terms of this Agreement without its exhibits, and then to the terms of the
2 exhibits.
3 13.13 No Third-Party Beneficiaries. This Agreement does not and is not intended to
4 create any rights or obligations for any person or entity except for the parties.
5 13.14 Authorized Signature. The Contractor represents and warrants to the County that:
6 (A) The Contractor is duly authorized and empowered to sign and perform its
7 obligations under this Agreement.
8 (B) The individual signing this Agreement on behalf of the Contractor is duly
9 authorized to do so and his or her signature on this Agreement legally binds the
10 Contractor to the terms of this Agreement.
11 13.15 Electronic Signatures.The parties agree that this Agreement may be executed by
12 electronic signature as provided in this section.
13 (A)An "electronic signature" means any symbol or process intended by an individual
14 signing this Agreement to represent their signature, including but not limited to (1) a
15 digital signature; (2) a faxed version of an original handwritten signature; or (3)an
16 electronically scanned and transmitted (for example by PDF document)version of an
17 original handwritten signature.
18 (B) Each electronic signature affixed or attached to this Agreement(1) is deemed
19 equivalent to a valid original handwritten signature of the person signing this Agreement
20 for all purposes, including but not limited to evidentiary proof in any administrative or
21' judicial proceeding, and (2) has the same force and effect as the valid original
22 handwritten signature of that person.
23 (C)The provisions of this section satisfy the requirements of Civil Code section
24 1633.5, subdivision (b), in the Uniform Electronic Transaction Act (Civil Code, Division 3,
25 Part 2, Title 2.5, beginning with section 1633.1).
26 (D) Each party using a digital signature represents that it has undertaken and
27 satisfied the requirements of Government Code section 16.5, subdivision (a),
28
13
1 paragraphs (1)through (5), and agrees that each other party may rely upon that
2 representation.
3 (E)This Agreement is not conditioned upon the parties conducting the transactions
4 under it by electronic means and either party may sign this Agreement with an original
5 handwritten signature.
6 13.16 Counterparts. This Agreement may be signed in counterparts, each of which is an
7 original, and all of which together constitute this Agreement.
8 [SIGNATURE PAGE FOLLOWS]
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
14
1 The parties are signing this Agreement on the date stated in the introductory clause.
2
CONTRACTOR COUNTY OFFRESNO
3
5 Wisey Frye, is resident Nathan Magsig, Chairman of the Board of
Supervisors of the County of Fresno
6 1711 E. Belt Line Road
Coppell, TX 75019 Attest:
7 Bernice E. Seidel
Clerk of the Board of Supervisors
8 County of Fresno, State of California
9
By:
10 eputy
11 For accounting use only:
12 Probation
13 Org No.: 34309999
Account No.: 7295
14 Fund No.: 0001
Subclass No.: 10000
15
16 [Page left intentionally blank.]
17
18
19
20
21
22
23
24
25
26
27
28
15
Exhibit A
SCOPE OF SERVICES
FRESNO COUNTY PROBATION DEPARTMENT
Contractor shall assist the Fresno County Probation Department (Probation) to accurately
compile Probation's Title IV-E Administrative Claims. Services shall include completion of the
following steps:
1. Contractor shall maintain and implement any necessary updates to its web-based
random moment time keeping system (RMS);
2 Contractor staff shall come onsite at a Probation facility with designated space to train
Probation staff on how to accurately complete the IV-E time study;
a Contractor's staff and proprietary software shall compute the claims and submit them to
Probation for approval;
4. Contractor shall monitor to ensure Probation receives the appropriate Federal
reimbursements;
5. Contractor shall provide periodic updates on what has been successfully
claimed for each opportunity/reimbursement; and
6. Contractor shall work closely with the California Department of Social Services (COSS)
and Probation staff to update claiming policies when needed.
TIME STUDY
Contractor developed a versatile web-based RMS time study that has been approved by COSS.
The time study is continuous, and the results are compiled quarterly. The sample universe is
updated monthly due to turnover and unexpected staff changes. Updating the sample universe
monthly allows all potential reimbursable staff access to the time study. Contractor shall ensure
that Probation time study participants are included based on daily activities, not solely based on
job description.
Contractor shall be responsible for the operation of the RMS system. This responsibility
includes, but is not limited to, the following:
• Reviewing and revising the existing County time codes to add Probation-specific
examples;
Modifying the participant list each month to ensure only the correct staff members are
included in the time study;
• Training Probation staff on how to accurately complete the IV-E time study;
• Monitoring to ensure Probation accurately completes the web-based RMS on a daily
basis;
Providing periodic updates on the areas of needed improvement as it relates to the
time study codes;
Computing the quarterly time study results and submitting them to the Chief Probation
Officer for approval;
• Working with the COSS personnel to update the web-based RMS policies when
needed;
• Analyzing, editing, and summarizing the sample results and making the necessary
allocations;
• Ensuring that the sample universe is updated monthly to include new hires and exclude
A-1
Exhibit A
terminations and transfers;
• Providing a detailed training manual to all eligible Probation staff that participate in the
quarterly time study;
• Providing a focal point where all RMS problems/questions can be submitted and
resolved;
• Providing the following onsite and/or web-based trainings:
o RMS Training: web-based RMS system that is utilized for documenting time and
activities related to Title IV-E Claiming;
o Code Training: all Title IV-E Time Codes. Contractor shall provide a complete
understanding of all Title IV-E Codes for the State of California. The Contractor
trainers shall educate all participants so that they have a clear understanding on
how to code daily activities; and
• Providing a team of time study analysts:
o With primary focus to review all time study moments received and confirm that
they are coded correctly with the correct information within the allotted time
frame; and
o Monitor Probation's RMS activity on a daily basis. Each RMS Observation
Moment that is answered by Probation staff is reviewed by the time study
analysts to ensure accuracy and validity.
Web-Based Time Study Timeframe -The time study shall be generated quarterly based
off the federal fiscal quarters.
• 1Q -July, August, and September
• 20 - October, November, and December
• 30 -January, February, and March
• 4Q -April, May, and June
Random Moment Set-Up - On a monthly basis
Contractor shall work with Probation to determine which Probation staff shall participate in the
RMS web-based time study. Once Contractor determines who is going to participate in the
time study, the following data shall need to be collected from Probation:
• State holidays
• Staffs email address
• Staffs work schedule
• Staffs work phone number and location
• Staffs supervisor
• Supervisor's email address and work phone number
Time Study Coordinator
Contractor shall act as Probation's Time Study Coordinator. On a monthly basis, Contractor
shall be responsible for running the time study and the quality assurance process. As the
Time Study Coordinator, Contractor is available via email correspondence and a toll free 800
number for the time study participants to contact with any time study questions or technical
issues they are experiencing.
Study Notifications
A-2
Exhibit A
Once the sampling is verified by the Contractor Time Study Coordinator, the system shall send
the observation moment notification at the time of the actual observation moment. The
participant shall then fill out their moment according to the activity they were performing at that
specific time and electronically submit the observation moment back to Contractor for
immediate quality assurance.
All original observation moments must be filled out within 72 hours from the time of the
moment excluding days off, weekends and holidays. If the time study participant has not
responded by midnight of the RMS moment, an email reminder shall be generated and sent
out through the Contractor email application to the participant and their time study observer. A
time study observer is a person who acts as a quality assurance person for time study
purposes. They are trained on the time study process, as well as, the importance of
participants answering all RMS moments in a timely manner.
100/6 Quality Assurance Process
Every night, if the observer has any quality assurance moments from the day, the Contractor
RMS automated system shall generate an email to the observer letting them know of any
quality assurance moments they need to complete. This email also includes any other "to do's"
the observer needs to follow upon, such as any RMS moments their participants have from the
previous day or any profiles pending that the observer has not approved.
RMS Reporting Features
Contractor's RMS is capable of running various reports based off the RMS results. The RMS
shall provide Probation with several report features. Contractor shall use these reports to
determine if any one individual needs additional training, or if certain codes are getting used
more than others.
These reports shall aid in ensuring accuracy of coding as well as providing an at-a-glance
view to ensure participants are simply coding their moments. At any given time, Probation can
check the status of each person in the study. The report summarizes each participant's
activities for a particular study and then summarizes the entire study itself by code.
Quality Assurance Procedures
The Contractor quality assurance process consists of two steps.
1. Contractor's Q1 staff shall review the electronic data on a daily basis for the following
information:
a. Electronic signature
b. Date and time (for 72-hour compliance)
c. Comment section included detailed activity description of what the time study
participant was doing
d. Appropriate sections are all documented
e. Codes checked correctly correspond with activity description
f. If any of the above elements are not satisfied, the sample moment is sent back
to the participant for a correction or further clarification. If clarification cannot be
made, the moment shall be considered invalid.
A-3
Exhibit A
2 After 01 staff decides the data is captured accurately, 02 staff shall then review the
data for a second quality assurance process.
TRAINING
Time Study Training
Contractor shall train and educate Probation staff cn what is required to participate in Title IV-
E Administrative Claiming and Contractor's RMS. Prior to the initial onset of the time study, all
eligible participants shall receive onsite training regarding time study process and codes. The
Contractor trainer shall focus on the following for the RMS training session:
• Time codes;
• Operation of the web system; and
• Supervisor oversight with RMS.
Contractor shall provide each participant with a training manual that includes the time study
codes and process for navigating the RMS website. In addition to Contractor providing training
manuals, Contractor also has a link on the RMS website where the participant can pull up the
time codes electronically.
Candidates for Foster Care/Case Plan Training
In order for Probation to claim preventative case management services, a youth must be
considered a candidate for foster care. Probation shall not claim any reimbursable time under
the RMS time study until a youth is determined to be a candidate for foster care and a case
plan is developed.
Contractor shall help ensure that Probation uses the most accurate case plan in order to fully
document candidacy. Contractor shall review such documentation before any claims have
been filed. Contractor shall help ensure that all youth who are on probation shall have case
plans and case plan reviews regardless of candidate status. Contractor shall assist with an
assessment and case planning process that shall be conducted to determine who is a
candidate and who is not.
Contractor shall provide Probation with "Candidate for Foster Care" training. Contractor shall
train all appropriate Probation staff on completing a case plan and documenting candidacy as
it relates to Title ME. The detailed training covers how to determine which youth are
considered a candidate for foster care, the method of documenting candidacy and the
frequency the federal government requires this documentation.
General Training and Webinars
• Contractor shall develop a training plan for Probation;
• Contractor trainings shall be documented;
• Contractor training material shall be provided for each Probation participant;
• Contractor trainings shall include an agenda, handout, and sign-in sheet that is kept
on-hand in the case of an audit; and
A-4
Exhibit A
• Contractor shall be able to answer Title IV-E questions regarding coding time,
completing case plans, deadlines, and all other guidelines on demand.
Contractor shall perform onsite and web-based trainings with Probation staff to ensure a
thorough understanding of Title IV-E. Contractor is available for refresher training or training
new Probation staff. As new Probation staff are hired, as Contractor determines it is needed,
and/or at Probation request, additional routine training shall be provided. Contractor also
provides a toll-free telephone number for support.
Contractor also provides webinars as a supplemental method to onsite training. The
Contractor webinars are at no additional cost to Probation. Contractor offers webinars to
provide updates regarding policies and procedures with Title IV-E claiming. This is a unique
service which has proved beneficial for staff that may be spread out in different building or in
different areas of the state.
TITLE IV-E ADMINISTRATIVE CLAIM COMPILATION
Every quarter, Contractor shall compile a Title IV-E administrative claim for reimbursement on
behalf of Probation. The Title IV-E administrative claim is the compilation of data from several
sources. Payroll, expenditures, and capital asset information is provided by Probation.
Contractor specializes in capturing all direct and indirect costs allocable to the Title IV-E
program for Federal Match. Contractor shall customize each claim to Probation's
organizational structure and accounting systems.
Contractor shall work with the Probation's financial staff to ensure that the best claiming
practices are being utilized. Contractor shall assist Probation with all claiming procedures
from start to finish.
• Contractor shall analyze all expenditures for maximum reimbursement.
Contractor shall review all payroll data to ensure all reimbursement opportunities are
included.
• Contractor shall calculate Time Study results for Probation's Title IV-E claim.
• Contractor shall provide continuous follow up with staff on any missing information or
needed documentation to ensure maximum reimbursement.
• Contractor shall compile a completed claim for Probation to approve.
• Contractor shall make certain all deadlines are met.
Once the administrative claiming quarter closes, Contractor shall request all the information to
compile Probation's Title IV-E administrative claim. Contractor shall email request letters to
Probation contacts at ProbationBusinessOffice(dfresnocountyca.gov and
ProbationContracts@fresnocountyca.gov with specific due dates and descriptions of the types
of data being requested.
After Probation data is received. Contractor shall complete the Title IV-E administrative claim.
Contractor shall capture all direct and indirect costs allocable to the Title IV-E program for
Federal Match. Contractor shall allocate costs within Probation of those participating in the
Random Moment Sampling.
Once the claim is complete, Contractor shall submit the Title IV-E administrative claims to
Probation for approval. If the Probation disapproves of the claim, Contractor shall then revise
A-5
Exhibit A
the claim and resubmit it to Probation. Contractor shall monitor for changes to Title IV-E
claiming processes and shall incorporate any changes required into its RMS and/or training
materials.
QUALITY ASSURANCE
Contractor shall put in place auditing and quality assurance processes to ensure Probation
claims accurately. Contractor shall provide Probation with the following types of audits:
• Candidates for Foster Care
• Random Moment Audit
• Probation File Audit
At the conclusion of any Contractor audit, Contractor shall provide Probation a written report of
any inaccuracies in hopes the same errors shall not continue in future claiming. Probation
shall review recommendations provided by Contractor on audit findings.
Audit Support
• Contractor shall provide Probation with additional trainings and support on any audit
findings.
• Contractor shall come onsite to assist Probation through any State or Federal Audit
that they may undergo.
• Contractor shall attend and stay current on all state Title IV-E trainings to ensure that
the most recent information is being carried out at county level.
PROBATION PARTICIPATION
Probation shall assist Contractor in the quarterly IV-E claiming through the following:
Financial Information Support
Contractor shall provide Probation with financial information support and assistance, and shall
assist Probation with all claiming procedures from start to finish. Probation shall provide
Contractor with the claim submission deadline set by the local CDSS.
Probation shall provide the requested financial information to Contractor in a timely manner so
that Contractor can adhere to the deadline set forth by the local CDSS.
• Probation shall provide Contractor with initial reports and documentation in order for
Contractor to determine the most efficient and accurate route to pursue for Probation's
Title IV-E Administrative claims.
• Probation shall provide Contractor with expenditure reports for analysis.
• Probation shall provide Contractor with payroll data.
• Probation shall provide any additional financial reports/information needed to complete
claim in order to ensure all reimbursement opportunities are included.
• Probation shall provide Contractor with Probation specific financial information needed
to complete claim, i.e., Cost Allocation Plan and Eligibility Rate.
• Probation shall provide further information if requested by Contractor on any missing
information or needed documentation to ensure maximized reimbursability.
A-6
Exhibit A
• Probation shall review the claim completed by Contractor.
• Probation shall submit the Title IV-E claim to their local CDSS for processing and
payment.
Foster Care Candidate Information Support
Probation shall determine and document Title IV-E Candidates for Foster Care in a manner
consistent with federal and state guidelines.
Training Support
Contractor shall perform trainings with Probation's staff to provide a thorough understanding of
Title IV-E. Training dates shall be set in advance and shall accommodate staff schedules.
• Probation shall participate in trainings provided by Contractor.
• Probation shall participate in periodic"refresher"' trainings provided by Contractor
either on-site or via webinar.
Web-Based Random Moment Time Study
Probation shall continue utilization of Contractor's RMS system, which is the current time
study method being utilized. A time study shall be generated quarterly, and the results shall be
calculated and compiled by Contractor into the quarterly Title IV-E claim. Quarterly time
frames for the state of California are below:
• 1 Q-July, August, and September
• 2Q -October, November, and December
• 3Q -January, February, and March
• 4Q -April, May, and June
Probation shall ensure that selected staff can access to the Contractor RMS website via a
computer or smartphone.
Probation staff shall answer"Observation Moments" as received via email to document what
they were doing at the time of the random moment.
Probation staff shall have 72 hours, excluding weekends and holidays to answer their
"Observation Moments."
Probation shall continue to utilize Title IV-E codes set by the state of California for the RMS.
A-7
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 County shall pay to Contractor performance fees equal to ten percent(10%)of gross
6 Title ME Juvenile Justice funds received by Probation for each quarter period relating to
7 services provided by Contractor, provided that Contractor's performance fees for any given
8 quarterly period of this Agreement shall not exceed Thirty Thousand Dollars ($30,000) per
9 quarter
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
B-1
Exhibit C
Insurance Requirements
1. Required Policies
Without limiting the County's right to obtain indemnification from the Contractor or any third
parties, Contractor, at its sole expense, shall maintain in full force and effect the following
insurance policies throughout the term of this Agreement.
(A) Commercial General Liability. Commercial general liability insurance with limits of not
less than Two Million Dollars ($2,000,000) per occurrence and an annual aggregate of
Four Million Dollars ($4,000,000). This policy must be issued on a per occurrence basis.
Coverage must include products, completed operations, property damage, bodily injury,
personal injury, and advertising injury. The Contractor shall obtain an endorsement to
this policy naming the County of Fresno, its officers, agents, employees, and volunteers,
individually and collectively, as additional insureds, but only insofar as the operations
under this Agreement are concerned. Such coverage for additional insureds will apply as
primary insurance and any other insurance, or self-insurance, maintained by the County
is excess only and not contributing with insurance provided under the Contractor's
policy.
(B) Automobile Liability. Automobile liability insurance with limits of not less than One
Million Dollars ($1,000,000) per occurrence for bodily injury and for property damages.
Coverage must include any auto used in connection with this Agreement.
(C)Workers Compensation. Workers compensation insurance as required by the laws of
the State of California with statutory limits.
(D) Employer's Liability. Employer's liability insurance with limits of not less than One
Million Dollars ($1,000,000) per occurrence for bodily injury and for disease.
(E) Professional Liability. Professional liability insurance with limits of not less than One
Million Dollars ($1,000,000) per occurrence and an annual aggregate of Three Million
Dollars ($3,000,000). If this is a claims-made policy, then (1)the retroactive date must
be prior to the date on which services began under this Agreement; (2)the Contractor
shall maintain the policy and provide to the County annual evidence of insurance for not
less than five years after completion of services under this Agreement; and (3) if the
policy is canceled or not renewed, and not replaced with another claims-made policy
with a retroactive date prior to the date on which services begin under this Agreement,
then the Contractor shall purchase extended reporting coverage on its claims-made
policy for a minimum of five years after completion of services under this Agreement.
(F) 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.
(G)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,
C-1
Exhibit C
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 Article 11
of this Agreement; (iv) system failure; (v) data recovery; (vi)failure to timely disclose
data breach or Security Breach; (vii)failure to comply with privacy policy; (viii) payment
card liabilities and costs; (ix) infringement of intellectual property, including but not
limited to infringement of copyright, trademark, and trade dress; (x) invasion of privacy,
including release of private information; (xi) information theft; (xii) damage to or
destruction or alteration of electronic information; (xiii) cyber extortion; (xiv)extortion
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.
Additional Requirements
(A) Verification of Coverage. Within 30 days after the Contractor signs this Agreement,
and at any time during the term of this Agreement as requested by the County's Risk
Manager or the County Administrative Office, the Contractor shall deliver, or cause its
broker or producer to deliver, to the County Risk Manager, at 2220 Tulare Street, 16th
Floor, Fresno, California 93721, or HRRiskManagement@fresnocountyca.gov, and by
mail or email to the person identified to receive notices under this Agreement,
certificates of insurance and endorsements for all of the coverages required under this
Agreement.
(i) Each insurance certificate must state that: (1) the insurance coverage has been
obtained and is in full force; (2)the County, its officers, agents, employees, and
volunteers are not responsible for any premiums on the policy; and (3)the
Contractor has waived its right to recover from the County, its officers, agents,
employees, and volunteers any amounts paid under any insurance policy
required by this Agreement and that waiver does not invalidate the insurance
policy.
(ii) The commercial general liability insurance certificate must also state, and include
an endorsement, that the County of Fresno, its officers, agents, employees, and
volunteers, individually and collectively, are additional insureds insofar as the
operations under this Agreement are concerned. The commercial general liability
insurance certificate must also state that the coverage shall apply as primary
insurance and any other insurance, or self-insurance, maintained by the County
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.
C-2
Exhibit C
The professional liability insurance certificate, if it is a claims-made policy, must also state the
retroactive date of the policy, which must be prior to the date on which services began under
this Agreement.
(iv) The technology professional liability insurance certificate must also state that
coverage encompasses all of the Contractor's obligations under this Agreement,
including but not limited to claims involving Cyber Risks, as that term is defined in
this Agreement.
(v) The cyber liability insurance certificate must also state that it is endorsed, and
include an endorsement, to cover the full replacement value of damage to,
alteration of, loss of, or destruction of intangible property (including but not limited
to information or data)that is in the care, custody, or control of the Contractor.
(B)Acceptability of Insurers. All insurance policies required under this Agreement must be
issued by admitted insurers licensed to do business in the State of California and
possessing at all times during the term of this Agreement an A.M. Best, Inc. rating of no
less than A: VII.
(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,
C-3
Exhibit C
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.
C-4
Exhibit D
Data Security
1. Definitions
Capitalized terms used in this Exhibit have the meanings set forth in this section 1.
(A) "Authorized Employees" means the Contractor's employees who have access to
Personal Information.
(B) "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 D.
(C)"Director" means the County's Chief Probation Officer or designee.
(D)"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.
(E) "Person"means any natural person, corporation, partnership, limited liability company,
firm, or association.
(F) "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, under this Agreement, 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(iii) is personal information within the
meaning of California Civil Code section 1798.3, 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.
(G)"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 D.
(H)"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 section 3(C)of this Exhibit D.
D-1
Exhibit D
(1) "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.
(J) "Use" or any derivative of that word means to receive, acquire, collect, apply,
manipulate, employ, process, transmit, disseminate, access, store, disclose, or dispose
of Personal Information.
2. Standard of Care
(A) 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.
(B) 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 Person's, Use of that Personal
Information.
(C)The Contractor agrees and covenants in favor of the Country that the Contractor shall:
(i) keep and maintain all Personal Information in strict confidence, using such
degree of care under this section 2 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 D;
(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.
(D)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, Contractor shall (i) immediately notify the County of the
specific demand for, and legal authority for the disclosure, including providing 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 (ii) promptly notify the County
D-2
Exhibit D
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.
(E) 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.
3. Information Security
(A) The Contractor covenants, represents and warrants to the County that the Contractor's
Use of Personal Information under this Agreement does and will at all times comply with
all applicable 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.
(B)The Contractor covenants, represents and warrants to the County that, as of the
effective date of this Agreement, 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.
(C)Without limiting the Contractor's obligations under section 3(A) of this Exhibit D, 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 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 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)
D-3
Exhibit D
employing adequate controls and data security measures, both internally and
externally, to protect (1)the Personal Information from potential loss or
misappropriation, or unauthorized Use, and (2)the County's operations from
disruption and abuse; (c) having and maintaining network, device application,
database and platform security; (d) maintaining authentication and access
controls within media, computing equipment, operating systems, and software
applications; and (e) installing and maintaining in all mobile, wireless, or
handheld devices a secure internet connection, having continuously updated
anti-virus software protection and 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
and 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.
(D) 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 D. The Contractor shall maintain a disciplinary process to
address any unauthorized Use of Personal Information by any Authorized Employees.
(E) 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.
(F) 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
D-4
Exhibit D
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.
(G)The Contractor shall not knowingly include or authorize any Trojan Horse, back door,
time bomb, drop dead device, worm, virus, or other code of any kind that may disable,
erase, display any unauthorized message within, or otherwise impair any County
computing system, with or without the intent to cause harm.
4. Security Breach Procedures
(A) Immediately upon the Contractor's awareness or reasonable belief of a Security Breach,
the Contractor shall (i) notify the Director of the Security Breach, such notice to be given
first by telephone at the following telephone numbers, followed promptly by email at the
following email addresses: incidents(aUresnocountyca.gov, 559-600-5900, (559)600-
6040, and Probation Contracts(c-)fresnocountyca.gov, (which telephone number and
email address the County may update by providing notice to the Contractor), and (ii)
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.
(B) Immediately following the Contractor's notification to the County of a Security Breach, as
provided pursuant to section 4(A) of this Exhibit D, 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, or deemed
reasonably necessary by the County, and the Contractor shall provide a written report of
the investigation and reporting required to the Director within 30 days after the
Contractor's discovery of the Security Breach.
(C)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 that
notification, the Contractor shall promptly address such Privacy Practices Complaint,
D-5
Exhibit D
including taking any corrective action under this Exhibit D, 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
for that determination.
(D)The Contractor shall take prompt corrective action to respond to and remedy any
Security Breach and take 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 relation to any litigation or other action described section
4(E) of this Exhibit D. '
(E)The Contractor agrees to cooperate, at its sole expense, with the County in any litigation
or other action to protect the County's rights relating to Personal Information, including
the rights of persons from whom the County receives Personal Information.
5. Oversight of Security Compliance
(A) 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.
(B) Upon the County's written request, to confirm the Contractor's compliance with this
Exhibit D, 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 D.
(C)The Contractor shall ensure that all Authorized Persons who Use Personal Information
agree to the same restrictions and conditions in this Exhibit D. 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
D-6
Exhibit D
Contractor and such Authorized Persons, or amending any written agreements to
provide same.
6. 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
D, such certification shall state the date, time, and manner(including standard)of disposal and
by whom, specifying the title of the individual. The Contractor shall comply with all reasonable
directions provided by the Director with respect to the return or disposal of Personal Information
and copies of Personal Information. If return or disposal of such Personal Information or copies
of Personal Information is not feasible, the Contractor shall notify the County according,
specifying the reason, and continue to extend the protections of this Exhibit D 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 6. The Contractor's obligations under this section 6 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.
7. Equitable Relief. The Contractor acknowledges that any breach of its covenants or
obligations set forth in this Exhibit D 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.
8. Indemnity. 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 attorneys' fees and costs, the cost of enforcing any right to
indemnification or defense under this Exhibit D and the cost of pursuing any insurance
providers, arising out of or resulting from any third party claim or action against any County
Indemnitee in relation to the Contractor's, its officers, employees, or agents, or any Authorized
Employee's or Authorized Person's, performance or failure to perform under this Exhibit D or
arising out of or resulting from the Contractor's failure to comply with any of its obligations under
this section 8. The provisions of this section 8 do not apply to the acts or omissions of the
D-7
Exhibit D
County. The provisions of this section 8 are cumulative to any other obligation of the Contractor
to, defend, indemnify, or hold harmless any County Indemnitee under this Agreement. The
provisions of this section 8 shall survive the termination of this Agreement.
9. Survival. The respective rights and obligations of the Contractor and the County as stated
in this Exhibit D shall survive the termination of this Agreement.
10. No Third Party Beneficiary. Nothing express or implied in the provisions of in this Exhibit D
is intended to confer, nor shall anything in this Exhibit D confer, upon any person other than the
County or the Contractor and their respective successors or assignees, any rights, remedies,
obligations or liabilities whatsoever.
11. 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.
D-8
Exhibit E
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).
E-1
Exhibit E I
(1) Company Board Member Information:
Name: Date:
Job Title:
(2) Company/Agency Name and Address:
(3) Disclosure (Please describe the nature of the self-dealing transaction you are a
party to)
(4) Explain why this self-dealing transaction is consistent with the requirements of
Corporations Code § 5233 (a)
(5)Authorized Signature
Signature: Date:
E-2