HomeMy WebLinkAboutAgreement A-24-436 with Thales DIS USA Inc..pdf Agreement No. 24-436
1 SERVICE AGREEMENT
2 This Service Agreement ("Agreement") is dated August 20, 2024 and is between
3 Thales DIS USA, Inc., a Delaware corporation with a principal place of business at 2964 Bradley
4 Street, Pasadena, California 91107 ("Contractor"), and the County of Fresno, a political
5 subdivision of the State of California ("County").
6 Recitals
7 A. Contractor is the sole vendor of the regional Automated Fingerprint Identification System
8 (the "AFIS"), installed at the County's Sheriff's Office facilities; and
9 B. The County purchased the AFIS and associated hardware and software from Contractor,
10 formerly Cogent Systems, pursuant to County agreement No. 05-130, which was amended two
11 times, and also provided maintenance of the AFIS and associated hardware and software; and
12 C. The County continued to contract for maintenance and upgrade services for the AFIS
13 pursuant to agreement No. 12-623 with Cogent Systems, which was acquired by 3M and
14 became 3M Cogent which was then acquired by Gemalto and became Gemalto Cogent;
15 D. The County continued to contract with Gemalto Cogent for maintenance and upgrade
16 services for the AFIS pursuant to agreement No. 18-522;
17 E. Gemalto Cogent was then acquired by Contractor;
18 F. County desires to obtain and Contractor agrees to provide AFIS maintenance and
19 support services for such hardware and software, in accordance with the terms and conditions
20 of this Agreement.
21 G. Approval of this Agreement is recommended by the regional CAL-ID/Remote Access
22 Network (RAN) Board, whose authority in such matters is granted by California Vehicle Code
23 Section 9250.19.
24 The parties therefore agree as follows:
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1 Article 1
2 Contractor's Services
3 1.1 Scope of Services. The Contractor shall perform all of the services provided in
4 Exhibit A to this Agreement, titled "Scope of Services."
5 1.2 Representation. The Contractor represents that it is qualified, ready, willing, and
6 able to perform all of the services provided in this Agreement.
7 1.3 Compliance with Laws. The Contractor shall, at its own cost, comply with all
8 applicable federal, state, and local laws and regulations in the performance of its obligations
9 under this Agreement, including but not limited to workers compensation, labor, and
10 confidentiality laws and regulations.
11 1.4 Data Security. The Contractor shall comply with the provisions of Exhibit F, Data
12 Security, attached to this Agreement and incorporated by this reference.
13 1.5 Location of Services. These services shall be provided remotely, or at Fresno
14 Sheriff's Headquarters, located at 2200 Fresno Street, Fresno CA 93721.
15 Article 2
16 County's Responsibilities
17 2.1 The County shall appoint the Sheriff-Coroner-Public Administrator of Fresno County,
18 or her/his designee, as County's Contract Administrator for this Agreement, who will coordinate
19 all activities with the Contractor. The Contract Administrator shall have full authority to make
20 decisions on behalf of the County concerning this Agreement, in accordance with the terms of
21 this Agreement, with the exception of amending or terminating this Agreement or increasing the
22 County's fiscal year or total compensation maximums.
23 2.2 County shall at all times, exercise reasonable care for the security of the AFIS. Until
24 such time that this Agreement is expired, the AFIS equipment will be accessible to Contractor's
25 authorized personnel, agents and designees who have passed County's security and
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1 background checks, and to such personnel of the County who currently have unrestricted
2 access to the area.
3 2.3 County agrees that Contractor will retain all rights, title and interest in and to the
4 Intellectual Property Rights in the AFIS and any derivative works thereof, subject only to the
5 limited license set forth in the original AFIS purchase agreement executed by and between the
6 parties. County does not acquire any other rights, express or implied, in the Intellectual Property
7 Rights in the AFIS. "Intellectual Property Rights" means on a world-wide basis, any and all now
8 known or hereafter known tangible and intangible (a) rights associated with works of authorship
9 including, without limitation, copyrights, (b) rights associated with trademarks, service marks,
10 trade names and similar rights, (c)trade secret rights, (d) patents, designs, algorithms and other
11 industrial property rights, (e) rights in domain names; (f) all other intellectual and industrial
12 property rights of every kind and nature and however designated, whether arising by operation
13 of law, contract, license or otherwise, and (g) all registrations, applications, renewals,
14 extensions, continuations, divisions or reissues thereof now or hereafter existing, made or in
15 force (including any rights in any of the foregoing).
16 Article 3
17 Compensation, Invoices, and Payments
18 3.1 The County agrees to pay, and the Contractor agrees to receive, compensation for
19 the performance of its services under this Agreement as described in Exhibit B to this
20 Agreement, titled "Support Fees."
21 3.2 Maximum Compensation. The maximum compensation payable to the Contractor
22 under this Agreement is one million, seven hundred nighty-nine thousand, one hundred sixty-
23 eight dollars ($1,791,168). The Contractor acknowledges that the County is a local
24 government entity and does so with notice that the County's powers are limited by the
25 California Constitution and by State law, and with notice that the Contractor may receive
26 compensation under this Agreement only for services performed according to the terms of this
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1 Agreement and while this Agreement is in effect, and subject to the maximum amount payable
2 under this section. The Contractor further acknowledges that County employees have no
3 authority to pay the Contractor except as expressly provided in this Agreement.
4 3.3 Invoices. The Contractor shall submit quarterly invoices to Fresno Sheriff's Office,
5 Information Technology Manager teresaburgamy(a)_fresnosheriff.org; 2200 Fresno Street,
6 Fresno, CA, 93722. The Contractor shall submit each invoice to County during the 3rd month of
7 each quarter in which services are performed by Contractor for County and within 60 days after
8 this Agreement expires or is terminated.
9 3.4 Payment. The County shall pay each correctly completed and timely submitted
10 invoice within 45 days after receipt. The County shall remit any payment to the Contractor's
11 address specified in the invoice.
12 3.5 Incidental Expenses. The Contractor is solely responsible for all of its costs and
13 expenses that are not specified as payable by the County under this Agreement.
14 Article 4
15 Term of Agreement
16 4.1 Term. This Agreement is retroactively effective to January 1, 2024, and will expire on
17 December 31, 2026, unless earlier terminated per the terms of this Agreement. This Agreement
18 may be extended for no more than two (2) additional one (1) year periods, only upon written
19 approval of both parties at least 30 days before the first day of the next one-year extension
20 period, except as provided in Article 6, "Termination and Suspension" below, or in Exhibit A,
21 Section 6 (Discontinuance of Support Services).
22 Article 5
23 Notices
24 5.1 Contact Information. The persons and their addresses having authority to give and
25 receive notices provided for or permitted under this Agreement include the following:
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For the County:
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1 Sheriff-Coroner/Public Administrator's Office
County of Fresno
2 2200 Fresno Street
Fresno, CA 93721
3 teresaburgamy(a)fresnosheriff.org
Fax: 559-600-3348
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For the Contractor:
5 Brian Yeager, Sales Manager
Thales DIS USA, Inc.
6 2964 Bradley Street
Pasadena, CA 91107
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8 5.2 Change of Contact Information. Either party may change the information in section
9 5.1 by giving notice as provided in section 5.3.
10 5.3 Method of Delivery. Each notice between the County and the Contractor provided
11 for or permitted under this Agreement must be in writing, state that it is a notice provided under
12 this Agreement, and be delivered either by personal service, by first-class United States mail, by
13 an overnight commercial courier service, by telephonic facsimile transmission, or by Portable
14 Document Format(PDF) document attached to an email.
15 (A) A notice delivered by personal service is effective upon service to the recipient.
16 (B) A notice delivered by first-class United States mail is effective three County
17 business days after deposit in the United States mail, postage prepaid, addressed to the
18 recipient.
19 (C)A notice delivered by an overnight commercial courier service is effective one
20 County business day after deposit with the overnight commercial courier service, delivery fees
21 prepaid, with delivery instructions given for next day delivery, addressed to the recipient.
22 (D)A notice delivered by telephonic facsimile transmission or by PDF document
23 attached to an email is effective when transmission to the recipient is completed (but, if such
24 transmission is completed outside of County business hours, then such delivery is deemed to
25 be effective at the next beginning of a County business day), provided that the sender maintains
26 a machine record of the completed transmission.
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1 5.4 Claims Presentation. For all claims arising from or related to this Agreement,
2 nothing in this Agreement establishes, waives, or modifies any claims presentation
3 requirements or procedures provided by law, including the Government Claims Act (Division 3.6
4 of Title 1 of the Government Code, beginning with section 810).
5 Article 6
6 Termination and Suspension
7 6.1 Termination for Non-Allocation of Funds. The terms of this Agreement are
8 contingent on the approval of funds by the appropriating government agency. If sufficient funds
9 are not allocated, then the County, upon at least 30 days' advance written notice to the
10 Contractor, may:
11 (A) Modify the services provided by the Contractor under this Agreement; or
12 (B) Terminate this Agreement.
13 6.2 Termination for Breach.
14 (A) Upon discovering that a breach has occurred, the non-breaching party shall give
15 written notice of the breach to the breaching party. The County's written notice of Contractor's
16 breach may suspend County's responsibility for payment of services rendered under this
17 Agreement which are related to the breach and County must provide at least 30 days for the
18 Contractor to cure the breach. Contractor can immediately terminate the Agreement upon
19 written notice to County upon substantiated evidence of violation by County of the limited
20 license set forth in Section 6.2 (D) LICENSE, which is listed in 6.2(A)(i). The Contractor may
21 terminate this Agreement for County breaches of obligations other than the limited license
22 referred to above upon thirty (30) days written notice to the County. The County shall have 30
23 days from Contractor's written notice to cure County's breach.
24 (i) LICENSE
25 (1) Subject to COUNTY's compliance with the terms and conditions of this
26 Agreement, CONTRACTOR hereby grants to COUNTY a non-exclusive, non-
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1 transferable license during the term of this Agreement (without the right to
2 sublicense):
3 a) To use the Software solely for COUNTY's own business operations,
4 including use by any law enforcement agency supported by COUNTY,
5 solely on the Equipment on which the Software is first installed (or, on
6 a temporary basis, on a backup system if such equipment is
7 inoperative), and in a manner consistent with the limitations specified
8 or referenced in this Agreement and the Documentation;
9 b) Notwithstanding these licensing terms, COUNTY shall have the right
10 to install those portions of the client software that are deemed
11 redistributable on any client used by a law enforcement agency that
12 COUNTY supports.
13 c) To reproduce a reasonable number of copies of the Documentation as
14 reasonably necessary to support COUNTY's authorized use of the
15 AFIS; and
16 d) To internally use the Documentation in support of COUNTY's
17 authorized use of the AFIS.
18 (2) COUNTY will not copy or use the Software or Documentation except as
19 expressly permitted by this Agreement. COUNTY will not modify the Software
20 or Documentation, except to the extent expressly approved in advance by
21 CONTRACTOR in writing. COUNTY may not relicense, sublicense, sell, lend,
22 give, disclose, transfer, assign, rent or lease the Software or Documentation
23 to any third party or use the Software for third party training, commercial time-
24 sharing or service bureau use. COUNTY will not intentionally permit any third
25 party to reverse engineer, disassemble or decompile any Software. COUNTY
26 will not remove, obscure, or alter any notice of patent, copyright, restricted
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1 rights, trade secret, trademark or other proprietary right related to the
2 Software. COUNTY hereby acknowledges and agrees that all Software is
3 licensed and not sold to COUNTY.
4 (3) If the Equipment purchased hereunder is sold or assigned to a third party,
5 COUNTY will remove all Software from such Equipment prior to delivery to
6 the third party. CONTRACTOR may grant the new owner or assignee a
7 license to the relevant Software, provided that the new owner or assignee
8 agrees to CONTRACTOR's then-current Software license terms and
9 conditions (including CONTRACTOR's then-current fees) and such other
10 terms as CONTRACTOR may reasonably require.
11 (B) If the breaching party fails to cure the breach to the non-breaching party's
12 satisfaction within the time stated in the written notice, the non-breaching party may terminate
13 this Agreement immediately.
14 (C) For purposes of this section, a Contractor breach occurs when, based on factual
15 evidence, the Contractor has:
16 (1) Obtained or used funds illegally or improperly;
17 (2) Failed to materially comply with a Contractor obligation set forth in this
18 Agreement; or
19 (3) Submitted a substantially incorrect or incomplete report to the County.
20 6.3 Termination without Cause. In circumstances other than those set forth above, the
21 County may terminate this Agreement by giving at least 30 days advance written notice to the
22 Contractor. Contractor may terminate this Agreement without cause at the end of the initial three
23 (3)year term or at the end of the first option year upon thirty(30) days advance written notice to
24 the County. The Agreement will automatically end at the end of the second option year unless
25 earlier terminated.
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1 6.4 No Penalty or Further Obligation. Any termination of this Agreement by the County
2 under this Article 6 is without penalty to or further obligation of the County except that County
3 shall pay for all services satisfactorily performed by Contractor prior to termination of the
4 Agreement.
5 6.5 County's Rights upon Termination. Upon termination for breach under this Article
6 6, the County may demand repayment by the Contractor of any monies disbursed to the
7 Contractor under this Agreement that, in the County's substantiated judgment, were not
8 expended in compliance with this Agreement. The Contractor shall promptly refund all such
9 monies upon demand. This section survives the termination of this Agreement.
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11 Article 7
12 Independent Contractor
13 7.1 Status. In performing under this Agreement, the Contractor, including its officers,
14 agents, employees, and volunteers, is at all times acting and performing as an independent
15 contractor, in an independent capacity, and not as an officer, agent, servant, employee,joint
16 venturer, partner, or associate of the County.
17 7.2 Verifying Performance. The County has no right to control, supervise, or direct the
18 manner or method of the Contractor's performance under this Agreement, but the County may
19 verify that the Contractor is performing according to the terms of this Agreement.
20 7.3 Benefits. Because of its status as an independent contractor, the Contractor has no
21 right to employment rights or benefits available to County employees. The Contractor is solely
22 responsible for providing to its own employees all employee benefits required by law. The
23 Contractor shall save the County harmless from all matters relating to the payment of
24 Contractor's employees, including compliance with Social Security withholding and all related
25 regulations.
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1 7.4 Services to Others. The parties acknowledge that, during the term of this
2 Agreement, the Contractor may provide services to others unrelated to the County.
3 7.5 This Agreement will not be construed as creating an agency, partnership,joint
4 venture, or any other form of association, for tax purpose or otherwise, between the parties, and
5 the parties will at all times be and remain independent contractors. Except as expressly agreed
6 by the parties in writing, neither party will have any right or authority, express or implied, to
7 assume or create any obligation of any kind, or to make any representation or warranty, on
8 behalf of the other party or to bind the other party in any respect whatsoever.
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10 Article 8
11 Indemnity and Defense; Limitation on Liability
12 8.1 Indemnity. The Contractor shall indemnify and hold harmless and defend the
13 County(including its officers, agents, employees, and volunteers) against claims, demands,
14 injuries, damages, costs, expenses (including reasonable attorney fees and costs), fines,
15 penalties, and liabilities for bodily injury or damage to property suffered by the County, the
16 Contractor, or any third party, to the extent arising from the performance or failure to perform by
17 the Contractor(or any of its officers, agents, subcontractors, or employees) under this
18 Agreement, or claims by a third party alleging that any of Contractor's work performed for
19 County or products provided to County infringe any Intellectual Property Right of a third party.
20 The County may conduct or participate in its own defense without affecting the Contractor's
21 obligation to indemnify and hold harmless or defend the County.
22 8.2 Limitation on Liability. Excluding claims for indemnity pursuant to section 8.1,
23 Contractor's aggregate liability under or in connection with this Agreement, whether arising from
24 contract or otherwise, is limited to the total amount of fees paid by County to Contractor under
25 this Agreement during the twelve (12) month period immediately preceding Contractor's receipt
26 of notice of a claim. Contractor shall not be liable for any indirect, special, incidental, punitive,
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1 or consequential damages, whether based upon contract, tort, or any other legal theory, arising
2 from Contractor's performance or nonperformance under this Agreement and the attached
3 quotation.
4 8.3 Survival. This Article 8 survives the termination or expiration of this Agreement.
5 Article 9
6 Insurance
7 9.1 The Contractor shall comply with all the insurance requirements in Exhibit D to this
8 Agreement.
9 Article 10
10 Inspections, Audits, and Public Records
11 10.1 Inspection of Documents. The Contractor shall make available to the County, and
12 the County may examine at any time during business hours upon reasonable advance written
13 notice to Contractor as often as County reasonably deems necessary, all of the Contractor's
14 records and data with respect to the matters covered by this Agreement, excluding attorney-
15 client privileged communications and Contractor's confidential business records exempt from
16 disclosure under the California Public Records Act. The Contractor shall, upon request by the
17 County, permit the County to audit and inspect all of such records and data to ensure the
18 Contractor's compliance with the terms of this Agreement.
19 10.2 State Audit Requirements. If the compensation to be paid by the County under this
20 Agreement exceeds $10,000, the Contractor is subject to the examination and audit of the
21 California State Auditor, as provided in Government Code section 8546.7, for a period of three
22 years after final payment under this Agreement. This section survives the termination of this
23 Agreement.
24 10.3 Public Records. The County is not limited in any manner with respect to its public
25 disclosure of this Agreement or any record or data that the Contractor may provide to the
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1 County. The County's public disclosure of this Agreement or any record or data that the
2 Contractor may provide to the County may include but is not limited to the following:
3 (A) The County may voluntarily, or upon request by any member of the public or
4 governmental agency, disclose this Agreement to the public or such governmental agency.
5 (B) The County may voluntarily, or upon request by any member of the public or
6 governmental agency, disclose to the public or such governmental agency any record or data
7 that the Contractor may provide to the County, unless such disclosure is prohibited by law or
8 court order.
9 (C)This Agreement, and any record or data that the Contractor may provide to the
10 County, is subject to public disclosure under the Ralph M. Brown Act (California Government
11 Code, Title 5, Division 2, Part 1, Chapter 9, beginning with section 54950).
12 (D)This Agreement, and any record or data that the Contractor may provide to the
13 County, is subject to public disclosure as a public record under the California Public Records
14 Act (California Government Code section 7920.000 et. seq.) ("CPRA").
15 (E) This Agreement, and any record or data that the Contractor may provide to the
16 County, is subject to public disclosure as information concerning the conduct of the people's
17 business of the State of California under California Constitution, Article 1, section 3, subdivision
18 (b).
19 (F) Any marking of confidentiality or restricted access upon or otherwise made with
20 respect to any record or data that the Contractor may provide to the County shall be
21 disregarded and have no effect on the County's right or duty to disclose to the public or
22 governmental agency any such record or data.
23 10.4 Public Records Act Requests. If the County receives a written or oral request
24 under the CPRA to publicly disclose any record that is in the Contractor's possession or control,
25 and which the County has a right, under any provision of this Agreement or applicable law, to
26 possess or control, then the County may demand, in writing, that the Contractor deliver to the
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1 County, for purposes of public disclosure, the requested records that may be in the possession
2 or control of the Contractor. Within five business days after the County's demand, the
3 Contractor shall (a) deliver to the County all of the requested records that are in the Contractor's
4 possession or control, together with a written statement that the Contractor, after conducting a
5 diligent search, has produced all requested records that are in the Contractor's possession or
6 control, or(b) provide to the County a written statement that the Contractor, after conducting a
7 diligent search, does not possess or control any of the requested records. The Contractor shall
8 cooperate with the County with respect to any County demand for such records. If the
9 Contractor wishes to assert that any specific record or data is exempt from disclosure under the
10 CPRA or other applicable law, it must deliver the record or data to the County and assert the
11 exemption by citation to specific legal authority within the written statement that it provides to
12 the County under this section. The Contractor's assertion of any exemption from disclosure is
13 not binding on the County, but the County will give at least 10 days' advance written notice to
14 the Contractor before disclosing any record subject to the Contractor's assertion of exemption
15 from disclosure. The Contractor shall indemnify the County for any court-ordered award of costs
16 or attorney's fees under the CPRA that results from the Contractor's delay, claim of exemption,
17 failure to produce any such records, or failure to cooperate with the County with respect to any
18 County demand for any such records.
19 Article 11
20 Disclosure of Self-Dealing Transactions
21 11.1 Applicability. This Article 11 applies if the Contractor is operating as a corporation
22 or changes its status to operate as a corporation.
23 11.2 Duty to Disclose. If any member of the Contractor's board of directors is party to a
24 self-dealing transaction, he or she shall disclose the transaction by completing and signing a
25 "Self-Dealing Transaction Disclosure Form" (Exhibit C to this Agreement)and submitting it to
26 the County before commencing the transaction or immediately after.
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1 11.3 Definition. "Self-dealing transaction" means a transaction to which the Contractor is
2 a party and in which one or more of its directors, as an individual, has a material financial
3 interest.
4 Article 12
5 General Terms
6 12.1 Modification. Except as provided in Article 6, "Termination and Suspension,"this
7 Agreement may not be modified, and no waiver is effective, except by written agreement signed
8 by both parties. The Contractor acknowledges that County employees have no authority to
9 modify this Agreement except as expressly provided in this Agreement.
10 12.2 Non-Assignment. Neither party may assign its rights or delegate its obligations
11 under this Agreement without the prior written consent of the other party.
12 12.3 Governing Law. The laws of the State of California govern all matters arising from
13 or related to this Agreement.
14 12.4 Jurisdiction and Venue. This Agreement is signed and performed in Fresno
15 County, California. Contractor consents to California jurisdiction for actions arising from or
16 related to this Agreement, and, subject to the Government Claims Act, all such actions must be
17 brought and maintained in Fresno County.
18 12.5 Construction. The final form of this Agreement is the result of the parties' combined
19 efforts. If anything in this Agreement is found by a court of competent jurisdiction to be
20 ambiguous, that ambiguity shall not be resolved by construing the terms of this Agreement
21 against either party.
22 12.6 Days. Unless otherwise specified, "days" means calendar days.
23 12.7 Headings. The headings and section titles in this Agreement are for convenience
24 only and are not part of this Agreement.
25 12.8 Severability. If anything in this Agreement is found by a court of competent
26 jurisdiction to be unlawful or otherwise unenforceable, the balance of this Agreement remains in
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1 effect, and the parties shall make best efforts to replace the unlawful or unenforceable part of
2 this Agreement with lawful and enforceable terms intended to accomplish the parties' original
3 intent.
4 12.9 Nondiscrimination. During the performance of this Agreement, the Contractor shall
5 not unlawfully discriminate against any employee or applicant for employment, or recipient of
6 services, because of race, religious creed, color, national origin, ancestry, physical disability,
7 mental disability, medical condition, genetic information, marital status, sex, gender, gender
8 identity, gender expression, age, sexual orientation, military status or veteran status pursuant to
9 all applicable State of California and federal statutes and regulation.
10 12.10 No Waiver. No course of dealing, course of performance, or failure of either party
11 strictly to enforce any term, right, or condition of this Agreement will be construed as a waiver of
12 any other term, right, or condition. No waiver of breach of any provision of this Agreement will
13 be construed to be a waiver of any subsequent breach of the same or any other provision.
14 12.11 Entire Agreement. This Agreement, including its exhibits, is the entire agreement
15 between the Contractor and the County with respect to the subject matter of this Agreement,
16 and it supersedes all previous negotiations, proposals, commitments, writings, advertisements,
17 publications, and understandings of any nature unless those things are expressly included in
18 this Agreement. If there is any inconsistency between the terms of this Agreement without its
19 exhibits and the terms of the exhibits, then the inconsistency will be resolved by giving
20 precedence first to the terms of this Agreement without its exhibits, and then to the terms of the
21 exhibits.
22 12.12 No Third-Party Beneficiaries. This Agreement does not and is not intended to
23 create any rights or obligations for any person or entity except for the parties.
24 12.13 Authorized Signature. The Contractor represents and warrants to the County that:
25 (A) The Contractor is duly authorized and empowered to sign and perform its
26 obligations under this Agreement.
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1 (B) The individual signing this Agreement on behalf of the Contractor is duly
2 authorized to do so and his or her signature on this Agreement legally binds the Contractor to
3 the terms of this Agreement.
4 12.14 Electronic Signatures. The parties agree that this Agreement may be executed by
5 electronic signature as provided in this section.
6 (A)An "electronic signature" means any symbol or process intended by an individual
7 signing this Agreement to represent their signature, including but not limited to (1) a digital
8 signature; (2) a faxed version of an original handwritten signature; or(3) an electronically
9 scanned and transmitted (for example by PDF document) version of an original handwritten
10 signature.
11 (B) Each electronic signature affixed or attached to this Agreement (1) is deemed
12 equivalent to a valid original handwritten signature of the person signing this Agreement for all
13 purposes, including but not limited to evidentiary proof in any administrative or judicial
14 proceeding, and (2) has the same force and effect as the valid original handwritten signature of
15 that person.
16 (C)The provisions of this section satisfy the requirements of Civil Code section
17 1633.5, subdivision (b), in the Uniform Electronic Transaction Act (Civil Code, Division 3, Part 2,
18 Title 2.5, beginning with section 1633.1).
19 (D) Each party using a digital signature represents that it has undertaken and
20 satisfied the requirements of Government Code section 16.5, subdivision (a), paragraphs (1)
21 through (5), and agrees that each other party may rely upon that representation.
22 (E)This Agreement is not conditioned upon the parties conducting the transactions
23 under it by electronic means and either party may sign this Agreement with an original
24 handwritten signature.
25 12.15 Counterparts. This Agreement may be signed in counterparts, each of which is an
26 original, and all of which together constitute this Agreement.
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1 12.16 Force Majeure. Except with regard to County's obligation to make timely payments
2 to Contractor for Contractor's services rendered prior to the force majeure event, neither party
3 will be responsible for any delay or failure in performance to the extent that such delay or failure
4 is caused by fires, strikes, embargoes, explosion, earthquakes, floods, wars, pandemics,
5 terrorism, civil or military authorities, acts of God, or similar events outside of a party's
6 reasonable control and without its fault. Contractor's inability to supply Hardware, Software,
7 Support Services or other materials or services of whatever nature due to the inability to obtain
8 or maintain required export authorization shall not constitute a breach of this Agreement and
9 County hereby acknowledges this risk.
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1 The parties are signing this Agreement on the date stated in the introductory clause.
2
THALES, DIS USA, INC. COUNTY OF FRESNO
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0— �,..
5 Antonio Lo Brutto, Nathan Magsig, Chairman of the Board of
Executive Vice President Supervisors of the County of Fresno
6 2733 S. Crystal Drive, Suite 1200
Arlington, VA 22202 Attest:
7 Bernice E Seidel
Clerk of the Board of Supervisors
8 County of Fresno, State of California
9
10 Deputy
11 For accounting use only:
12 Org No.: 9052
Account No.: 7205/8300
13 Fund No.: 4000
Subclass No.: 40430
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Exhibit A
1
2 Scope of Services
3 1. Definitions
4 (A) "Documentation" means the written materials, including instructions, rules,
5 guidelines, manuals, and/or procedures, associated with the Software that Contractor shall
6 make available to County.
7 (B) "Error" means a reproducible defect or combination of defects in the Software
8 that results in a failure of the Software, when used in accordance with Contractor's instructions
9 (including, without limitation, the applicable Documentation), to function substantially in
10 accordance with the Specifications. As used hereunder, a reproducible defect will mean a
11 defect that Contractor can reproduce using the most recent version of the Software, as
12 delivered by Contractor to County, in accordance with the terms of this Agreement.
13 (C)"Error Correction" means either(a) a bug fix or other modification or addition
14 that, when made or added to the Software, corrects an Error, or(b) a procedure or routine that,
15 when observed in the regular operation of the Software, eliminates the practical adverse effect
16 of an Error on County.
17 (D)"Hardware" means the Contractor proprietary hardware purchased by County
18 from Contractor for use in connection with the Software as such hardware is further described
19 on Exhibit B (Compensation).
20 (E) "the Support Term" is as set forth in the quotation (Quote Number 00006921 B)
21 contained in Exhibit B.
22 (F) "Software" means the Contractor-developed proprietary computer program(s)
23 licensed by Contractor to County as further listed in the Exhibit B quotation. Software excludes
24 Third Party Software.
25 (G)"Specifications" means the technical specifications for the Software as set forth
26 in the applicable Documentation.
27 (H)"Support Fees" has the meaning set forth in Exhibit B.
28
A-1
Exhibit A
1 (1) "Support Services" means the support and maintenance services provided by
2 Contractor pursuant to this Agreement, as further described herein.
3 (J) "Technical Contact" means the person or persons designated by County in this
4 Exhibit A (County's Primary Service Engineer(s)), as the initial interface for Error reporting for
5 the Software and fault reporting for the Hardware. The Technical Contact is the Sheriff's Office
6 CAL-ID Manager, Teresa Burgamy, 'eresa.hurnamvafresnnsheriff-or (559) 600-8103. The
7 Sheriff, or his or her designee, has authority to update the Technical Contact as needed, with
8 written notice to Contractor.
9 (K) "Third Party Hardware" means hardware products that are proprietary to
10 entities other than Contractor(e.g., Dell, HP, etc.).
11 (L) "Third Party Software" means software products that are proprietary to entities
12 other than Contractor (e.g., Microsoft, Oracle, etc.).
13 (M)"Update" means a revision of the Software or Hardware which is released by
14 Contractor during the Term of this Agreement and which contains an Error Correction. Unless
15 agreed otherwise in writing, any Updates provided to County during the Term of this Agreement
16 will be provided by Contractor to County at no extra charge, so long as County is in compliance
17 with the terms and conditions of this Agreement. Any revision of the Software or Hardware that
18 is not an Update shall be deemed an Upgrade.
19 (N)"Upgrade" means a revision of the Software released by Contractor during the
20 Term of this Agreement which adds new and different functions to the Software or increases the
21 capacity of the Software to process information. Contractor is under no obligation to provide
22 any Upgrades under this Agreement, but if any Upgrades are made available to County under
23 this Agreement, each Upgrade will generally require a Change Request and County's payment
24 of an additional charge.
25 2. Hardware Maintenance and Support
26 2.1 Hardware Fault Reporting and Correction. During the Support Term, on the
27 terms and conditions of this Agreement, Contractor shall repair or replace without charge to
28 County any part of the Hardware found to be faulty by reason of defective material, design or
A-2
Exhibit A
1 workmanship. Hardware problems will be reported by County through County's Technical
2 Contact to Contractor at the support number: Phone: 1-866-500-AFIS (or 1-866-500-2347),
3 Email: itsm.ibs.LEHelpdesk(a)_apps.thalesgroup.cori or Web Portal: https://us-dis-
4 support.thalesgroup.com/sp/?id=landing, as it may be revised by Contractor from time to time.
5 Each such report will be accompanied or followed by sufficient information to enable Contractor
6 to determine the cause of the Hardware problem. Contractor will acknowledge a report of a
7 Hardware problem via electronic mail through updating the Service Now ticket to the Technical
8 Contact consistent with the severity of the issue per the response time identified in Exhibit E.
9 Contractor shall use commercially reasonable efforts consistent with the severity of the problem
10 to repair or replace the Hardware. Any Hardware replaced by Contractor shall be replaced with
11 hardware of comparable functionality, which may be new or reconditioned hardware. Contractor
12 will determine, in its sole discretion, the manner in which it will repair or replace the Hardware.
13 Contractor will pay all shipping costs required to repair or replace the faulty Hardware.
14 Contractor shall not be required to repair, replace, update, or upgrade any Hardware
15 for the purpose of maintaining compatibility with Third Party Hardware or Third-Party Software
16 or updates thereto, including but not limited to Third Party Software operating systems, or where
17 requested due to changes in state or federal requirements or changes in County's internal IT
18 policies (including but not limited to security policies). County must initiate a Change Request to
19 Contractor for Contractor's consideration if County wishes for Contractor to provide any support
20 related to the foregoing situations, and if Contractor agrees to provide the support, it shall be at
21 charges agreed to by the parties.
22 2.2 Third Party Hardware Support. During the Support Term, Contractor shall
23 provide corrective maintenance for Third Party Hardware previously purchased by County from
24 Contractor. This means that if this Third Party Hardware breaks or fails, Contractor shall supply
25 a fix to or replace the product. If, however, by example, a Third-Party Hardware vendor issues a
26 firmware update, any work or support that Contractor in its discretion wishes to do for County,
27 whether for the Hardware or the Third-Party Hardware, will require a Change Request and
28 additional support charges may apply. Preventive maintenance (i.e., maintenance that is done
A-3
Exhibit A
1 to prolong the useful life of a product or infrastructure) is not provided by Contractor for Third
2 Party Hardware. Lastly, Contractor shall have no obligation regarding any EOL (End of Life)
3 Third Party Hardware that is no longer being supported by Contractor or the Third-Party
4 Hardware vendor.
5 2.3 Exclusions from Hardware Maintenance and Support. Notwithstanding the
6 provisions contained in Sections 2.1 and 2.2 above, Contractor shall have no responsibility to
7 provide Hardware maintenance or support or repair or replace any Hardware where Contractor
8 determines, in its sole and reasonable discretion, that the Hardware requires such repair or
9 replacement due to:
10 2.3.1 any changes or modifications to the Hardware or Software included on
11 the Hardware that were not made by Contractor;
12 2.3.2 damage to the Hardware (other than normal wear and tear);
13 2.3.3 the failure of computer hardware, equipment, or software not supplied by
14 Contractor;
15 2.3.4 the negligence of County or a third party;
16 2.3.5 the use of operating systems or auxiliary devices (e.g., third party
17 hardware components) in conjunction with Hardware or Software which have not been
18 approved in writing by Contractor for use with Hardware and Software;
19 2.3.6 attempted maintenance by unauthorized persons;
20 2.3.7 County's improper use of the Hardware, including but not limited to
21 County merging or combining the Hardware with any hardware or software not authorized by
22 Contractor to be so merged or combined;
23 2.3.8 environmental issues (e.g., heat, humidity, electrical) on County's
24 premises; or
25 2.3.9 changes made to County's network or to County's IT infrastructure by
26 County or a third party without Contractor's knowledge and approval.
27
28
A-4
Exhibit A
1 2.4 On-Site Hardware Support. Contractor may, in its sole discretion,
2 provide on-site support when a Hardware issue cannot be resolved remotely, Contractor would
3 perform such support at a time mutually agreed upon by Contractor and County.
4 3. Software maintenance and Support
5 3.1 Software Error Reporting and Correction. Thales will provide Customer
6 with the ability to open software-related support tickets 24 hours a day, 7 days a week. Each
7 Error experienced by Customer related to Customer's use of the Software may be reported by
8 Customer through Customer's Technical Contact to Thales by opening a support ticket either by
9 phone (866.500.2347), e-mail(itsm.ibs.LEHelpdesk(a)apps.thalesgroup.com), or via online
10 portal (https://us-dis-support.thalesgroup.com/sp/?id=landing), as that information may be
11 revised by Contractor from time to time. Each such Error report will be accompanied or followed
12 by sufficient information to enable Contractor to reproduce and verify the Error. Contractor will
13 acknowledge a report of an Error via electronic mail through updating the Service Now ticket to
14 the Technical Contact consistent with the severity of the issue per the response time identified
15 in Exhibit E. Contractor will use commercially reasonable efforts consistent with the severity of
16 the Error to reproduce and verify reported Errors and provide Error Corrections. Contractor will
17 determine, in its sole discretion, the priority level of each reported Error.
18 Under this Agreement, Contractor shall not be required to repair, replace, update, or
19 upgrade any Software to a subsequent version for the purpose of maintaining compatibility with
20 Third Party Software or updates thereof, including but not limited to Third Party Software
21 operating systems, or where requested due to changes in state or federal requirements or in
22 County's internal IT policies (including but not limited to security policies).
23 Unless the parties mutually agree otherwise in advance in writing, Contractor shall
24 implement any Software Error Corrections provided by Contractor to County.
25 3.2 Third Party Software Support. During the Initial Support Term, Contractor
26 shall provide only corrective maintenance for Third Party Software previously purchased by
27 County from Contractor; no preventative maintenance (inspection, detection, and correction of
28 incipient failures before they occur) is provided by Contractor for Third Party Software. Further,
A-5
Exhibit A
1 Contractor shall have no obligation regarding any EOL (End of Life) Third Party Software that is
2 no longer being supported by Contractor or the Third-Party Software vendor.
3 3.3 Exclusions from Software Maintenance and Support. Notwithstanding
4 the provisions contained in Sections 3.1 and 3.2 above, Contractor shall have no responsibility
5 to provide Software maintenance or support where Contractor determines in its reasonable and
6 sole discretion that:
7 3.3.1 the Software has been changed, modified, or damaged (excluding
8 modifications made by Contractor);
9 3.3.2 the Software Maintenance and Support Services are necessary due to:
10 (a)failure of computer hardware, equipment, or software not supplied by Contractor; (b)the
11 negligence of County or any third party; (c) a cause or causes beyond the reasonable control of
12 Contractor; (d) attempted maintenance by unauthorized persons; (e) County's use or improper
13 use of the Software, or the use, merging or combining of the Software with any hardware or
14 software not authorized by Contractor to be so merged or combined; or(f)environmental issues
15 (e.g. heat, humidity, electrical) on County's premises;
16 3.3.3 County has not installed and implemented any Error Corrections provided
17 by Contractor;
18 3.3.4 County has not paid the Support Fees, or any related fees or amounts,
19 required by this Agreement, when due; or
20 3.3.5 County or a third party has made changes to County's network or to
21 County's IT infrastructure without Contractor's knowledge and approval.
22 3.4 On-Site Software Support. Contractor may, in its sole discretion, provide
23 on-site support when a Software issue cannot be resolved remotely Contractor would perform
24 such support at a time mutually agreed upon by Contractor and County.
25 4. County Compliance and Cooperation
26 4.1 County acknowledges that all Documentation, Software, Error
27 Corrections, and Upgrades provided by Contractor are subject to the licensing conditions of the
28 AFIS purchase and maintenance agreement entered into by and between the County of Fresno
A-6
Exhibit A
1 and Gemalto Cogent, Inc. (now Thales DIS USA, Inc.) on September 11, 2018, listed in Section
2 6.2(A)(i) of the Agreement, and County agrees to comply with those conditions.
3 4.2 County will fully cooperate and assist Contractor in the provision of the Support
4 Services, including allowing full and free access, including, but not limited to remote access, to
5 relevant hardware, software, and other information if reasonably required by Contractor.
6 5. DISCLAIMER OF WARRANTIES. Contractor disclaims all warranties, express or
7 implied, with regard to services provided under this agreement and its attached quotation,
8 including, without limitation, all implied warranties of merchantability, fitness for a particular
9 purpose, title, and non-infringement, and all warranties that may arise from a course of dealing,
course of performance, or usage of trade. With respect to any hardware faults reported by
10 county to contractor, county agrees that contractor's sole and exclusive obligation and county's
11 sole and exclusive remedy under this agreement is for contractor to use commercially
12 reasonable efforts to repair or replace the hardware in accordance with contractor's
13 maintenance obligations pursuant to section 2 above. With respect to any errors reported by
14 county to contractor, county agrees that contractor's sole and exclusive obligation and county's
sole and exclusive remedy under this agreement is for contractor to use commercially
15 reasonable efforts to correct such errors in accordance with contractor's support obligations
16 pursuant to section 3 above.
17 6. Discontinuance of Support Services. Contractor reserves the right to discontinue
18 provision of the Support Services for any Hardware, Software, Third Party Hardware, and Third
19 Party Software where Contractor, in its sole discretion, determines that Contractor's continued
20 provision of Support Services is no longer economically feasible due to obsolescence of the
Hardware, Software, Third Party Hardware, and Third Party Software. Contractor will give
21 County at least three (3) months prior written notice of any such discontinuance of Support
22 Services and will refund any unaccrued Support Fees that County may have prepaid with
23 respect to the affected products. In all cases, Contractor will have no obligation to support or
24 maintain any version of the Software or Third Party Software, including but not limited to
25 operating system software, except (a)the then-current version, and (b) the immediately
preceding version for a period of six (6) months after it is first superseded.
26
27 7. Integration Efforts Not Included. This Agreement does not include any installation
28 or deployment activities or anything related to Hardware or Software outside of the project
A-7
Exhibit A
1 delivery scope set forth in the Exhibit B quotation. This Agreement only covers those Products
2 listed on the Exhibit B quotation.
3 8. Change Request. If County has a need for services that are outside the scope of
4 Contractor's standard maintenance and support provided under the terms of this Agreement,
5 County may request that Contractor prepare a Change Request with attendant pricing for
6 County's consideration. Contractor in its sole discretion will determine whether Contractor is
7 willing and able to perform a Change Request, given factors that include, but are not limited to,
8 time, resources, costs, complexity, and impact of the work involved. Contractor will follow its
9 internal Change Management Request Process in documenting a Change Request, analyzing
10 it, assessing its costs, and making the decision as to whether to proceed with the Change
11 Request. Two examples of situations where a Change Request could arise are: (i) Hardware or
12 Software at or nearing End of Life; or (ii) third party vendor makes a change to Third Party
13 Hardware or Third Party Software which impacts performance or operability of Hardware or
14 Software.
15
16
17
18
19
20
21
22
23
24
25
26
27
28
A-8
Exhibit B
1
2 Compensation
3 The Contractor will be compensated for performance of its services under this
4 Agreement as provided in this Exhibit B. The Contractor is not entitled to any compensation
5 except as expressly provided in this Exhibit B.
6 Support Fees. County will pay annual support fees for the Support Services
7 according to Section 3.3 (Invoices) and Section 3.4 (Payment) of the Agreement. Contractor
8 may increase the annual Support Fees for any Option Years if County requires system
9 additions, subtractions, or modifications, and will give County advance notice of such increases.
10 Taxes. All taxes and duties attributable to this Agreement (except taxes relating to
11 Contractor's net income), including sales, use, and any other tax assessed by local, state, or
12 federal authorities, will be borne by County, and shall be invoiced to County by Contractor on
13 each invoice.
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
B-1
Exhibit B
1
Thales DIS USA,Inc.
THALES Te[+1 ena,(62Bradley Street
2 Pa 691325-9600
3 Fax:+1(626)325-9700
4 Quote Number 00006921B Updated Date 5/3/2024
Oracle ID US056143 Expiration Date 902024
5 Category Code Biometrics Law Enforcement Protect Number GNM19037_1
6
Bill To Name County of Fresno Ship To Name County of Fresno
7 Bill To 2200 Fresno Street Ship To 2200 Fresno Street
Fresno,CA 93724 Fresno,CA 93724
United States United States
8
Support and Maintenance Renewal Quotation
9
Pirciduct Pmduct Code line Item Description Qumft Sales Price Total Price
10 Maintenance(Billing Only) A2887554 MISC-CAFIS Support 8 Maintenance 1 $164.078 49 $164,078.49
11 Annual AFIS Maintenance A2887551 Annual Maintenance-AFIS/Database Services 1 $61,903.00 $61,903,00
Latent Workstation Annual 75050114332 Annual Maintenance-CARS Client 5 $6,293.86 $31,469.30
12 Maintenance Workstations-Latent
Maintenance(Billing Only) A2887554 Annual Maintenance-CARS Client 3 $3,833.89 $11,501.67
13 Workstations-Tenprint/Venfication
Maintenance(Billing Only) A2887554 Annual Maintenance-Latent Matcher 1 $43,881 42 $43,881,42
14 Subsystem
Maintenance(Billing Only) A2887554 Annual Maintenance-Tenpnnt Matching Subsystem 1 $43,88142 $43,881.42
15 Maintenance(Billing Only) A2887554 Annual Maintenance-Interface R Backup 1 $37,612.63 $37,612 63
Services
16 Maintenance(Billing Only) A2887554 Annual Maintenance-Workflow Services 1 $37,612.63 $37,612 63
17 Maintenance(Billing Only) A2887554 Annual Maintenance-'NebArchive 1 $17,910.79 $17.910.79
Services
18 Maintenance(Billing Only) A2887554 ��V2025Lines
2-8 listed above-1112025- 1 $304,348.25 $304,34825
Maintenance(Billing Only) A2887554 Year 3'-Lines 2-8 listed above-1/1/2026- 1 $324,130.90 $324,130.90
19 12/31/2026
20 Mairterance Start 1/12024 Subtotal $1.078,330.50
Mairterarc--nd 12/312026 Grand Total $1,078,330.50
21
Notes to Customer
22
Year I (Lines 2-8)Total Cost:$285,772.86
(Lines listed above+Option Years 1-2): $1.791.16728
23 Option Year 1"(1/1/27-12/31/27)=$345,199.41
Total quote Value: $1,791,167.28
Option Year 2`(1/128-12131128):$3677�37.37
24
25 'Year 2-3 and Option Years 1-2 costs are estimated and subject to change based on system additions,subtractions,and modifications
26 Acceptance of Quote:
27 Signature Date
28
B-2
Exhibit C
Self-Dealing Transaction Disclosure Form
In order to conduct business with the County of Fresno ("County"), members of a
contractor's board of directors ("County Contractor"), must disclose any self-dealing transactions
that they are a party to while providing goods, performing services, or both for the County. A
self-dealing transaction is defined below:
"A self-dealing transaction means a transaction to which the corporation is a party and in
which one or more of its directors has a material financial interest."
The definition above will be used for purposes of completing this disclosure form.
Instructions
(1) Enter board member's name,job title (if applicable), and date this disclosure is being
made.
(2) Enter the board member's company/agency name and address.
(3) Describe in detail the nature of the self-dealing transaction that is being disclosed to the
County. At a minimum, include a description of the following:
a. The name of the agency/company with which the corporation has the transaction;
and
b. The nature of the material financial interest in the Corporation's transaction that
the board member has.
(4) Describe in detail why the self-dealing transaction is appropriate based on applicable
provisions of the Corporations Code.
The form must be signed by the board member that is involved in the self-dealing
transaction described in Sections (3) and (4).
C-1
Exhibit C
(1) Company Board Member Information:
Name: Date:
Job Title:
(2) Company/Agency Name and Address:
(3) Disclosure (Please describe the nature of the self-dealing transaction you are a
party to)
(4) Explain why this self-dealing transaction is consistent with the requirements of
Corporations Code § 5233 (a)
(5) Authorized Signature
Signature: Date:
C-2
Exhibit D
Insurance Requirements
1. Required Policies
Without limiting the County's right to obtain indemnification from the Contractor or any third
parties, Contractor, at its sole expense, shall maintain in full force and effect the following
insurance policies throughout the term of this Agreement.
(A) Commercial General Liability. Commercial general liability insurance with limits of not
less than Two Million Dollars ($2,000,000) per occurrence and an annual aggregate of
Four Million Dollars ($4,000,000). This policy must be issued on a per occurrence basis.
Coverage must include products, completed operations, property damage, bodily injury,
personal injury, and advertising injury. The Contractor shall obtain an endorsement to
this policy naming the County of Fresno, its officers, agents, employees, and volunteers,
individually and collectively, as additional insureds, but only insofar as Contractor's
performance of its obligations 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 Three
Million Dollars ($3,000,000) per claim and in the aggregate. 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 Three Million Dollars
($3,000,000) per occurrence and in the aggregate.
D-1
Exhibit D
(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,
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 F
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.
2. Additional Requirements
(A) Verification of Coverage. Within 30 days after the Contractor signs this Agreement,
and 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) 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
Contractor's performance of its obligation 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.
D-2
Exhibit D
(ii) The automobile liability insurance certificate must state that the policy covers any
auto used in connection with this Agreement.
(iii) 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.
(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 written notice of any cancellation
of the policy as required in this paragraph. For cancellation of the policy for nonpayment
of premium, the Contractor shall provide written notice to the County not less than 10
days in advance of cancellation. For cancellation of the policy for any other reason, the
Contractor shall provide written notice to the County not less than 30 days in advance of
cancellation. The County in its reasonable 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)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.
(E) 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.
(F) 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
AFIS SERVICE LEVELS
TECHNICAL SUPPORT CONTACT INFORMATION
Phone: 1-866-500-AFIS (or 1-866-500-2347)
Email: itsm.ibs.LEHelpdesk(c�apps.thalesgroup.corr,
Web Portal: https://us-dis-support.thalesgroup.com/sp/?id=landing
-Ammw-- Remote
1"TMqErMqq I Response
Severity Severity Definition Detail Description Example(s) Time*
Critical Full System Outage,or Problems that cause total failure of Entire AFIS system is 1 hour
Critical Impact to the full system (unscheduled) or stop a inoperable.
System Usability user from completing a business
critical function.
There are no work-arounds available.
County must be available to work
toward a resolution.
Major Partial System Outage Problems that cause total failure of a Critical AFIS components 2 hours
or Major Impact to critical system component are inoperable (ten-
System Usability (unscheduled). print searching).
>50%+of licensees or There are no work-arounds available.
critical functionality County must be available to work
toward a resolution.
E-1
Exhibit E
Significant Significant Impact to Problems that cause a significant Multiple workstations 2 hours
Usability performance impact to any system are completely
>25%of licensees or component (unscheduled), or inoperable (Livescan
daily used functionality impacting more than 50%of the Booking,Tenprint
system's transactions. Analysis, Latent
A short-term work-around is available. Analysis)
County must be available to work -OR-
toward a resolution. System response is not
meeting contractual
obligations
Medium Moderate Impact to Problems that cause a moderate Workstation or device is 4 hours
Usability impact on licensee's productivity, not functioning within
<25% of users or system performance or system designed specifications
moderately used functionality.
functionality A mid-term work-around is available.
County must be available to work
toward a resolution.
Low Low impact to Problems that cause little to no effect Inconvenient error 8 hours
licensees to County's productivity, system message
functionality or system performance. -OR-
Intermittent problem
E-2
Exhibit E
*Remote response time means the time period between Contractor's receipt of County's notice
of a Software Error or a Hardware problem and Contractor's electronic response to County
acknowledging Contractor's receipt of County's notification.
E-3
Exhibit F
Data Security Exhibit
1. Definitions
Capitalized terms used in this Exhibit F 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 F.
(C) "County Data" means all data, information, and other content of any type that is input,
imported, interfaced, or processed by County staff into System as a part of this
agreement.
(D) "Director" means the County Sheriff's Finance Bureau Director or his or her designee.
(E) "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.
(F) "Person" means any natural person, corporation, partnership, limited liability company,
firm, or association.
(G)"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,
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Exhibit F
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.
(H) "Privacy" means the protection of software and data from unauthorized access and
manipulation.
(1) "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 F.
(J) "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 F.
(K) "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.
(L) "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
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Exhibit F
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 F;
(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
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.
3. The Contractor shall remain liable to the County for the actions and omissions of any of
Contractor's employees, former employees or subcontractors concerning its (or their) Use of
such Personal Information as if they were the Contractor's own actions and omissions
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Exhibit F
4. 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).
(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 F, 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 Sheriff's security gateways and firewalls, and only
through security procedures approved upon the express prior written consent of
the Director;
(iii) 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
(iv) 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
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Exhibit F
obligations under this Exhibit F. 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 24x7 Contractor contact information for
County's use in notifying Contractor of a Security Breach or a Privacy Practices
Complaint. Contractor shall utilize Contractor's internal corporate incident response plan
in addressing a Security Breach or 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. If either County or
Contractor becomes aware of the existence of such a malicious program, it shall notify
the other Party thereof and Contractor shall promptly remove the malicious program,
repair the System and County's data, and repair any other damage done by the
malicious program.
5. Survival. The respective rights and obligations of the Contractor and the County as stated
in this Exhibit F shall survive the termination of this Agreement.
6. No Third-Party Beneficiary. Nothing express or implied in the provisions of in this Exhibit F
is intended to confer, nor shall anything in this Exhibit F confer, upon any person other than the
County or the Contractor and their respective successors or assignees, any rights, remedies,
obligations or liabilities whatsoever.
7. 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.
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