HomeMy WebLinkAboutP-24-566 CompuTrust Software Corp.pdf County of Fresno
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1 SERVICE AGREEMENT
2 This Service Agreement ("Agreement") is dated November 1, 2024 and is between
3 CompuTrust Software Corporation, a Delaware corporation, ("Contractor"), and the County of
4 Fresno, a political subdivision of the State of California ("County").
5 Recitals
6 A. The County has a need for CompuTrust Case Management and Trust Accounting
7 Software System license, maintenance, and support. The purpose of the Case Management
8 and Trust Accounting Software System is to provide trust accounting and case management for
9 the Public Guardian.
10 B. The County previously entered into Agreement A-19-516 for the continued licensing,
11 maintenance and support for CompuTrust Case Management and Trust Accounting Software
12 System, which expired on June 30, 2024.
13 C. The County now desires to enter into an agreement through a suspension of competition
14 with the Contractor, for the continued provision of Case Management and Trust Accounting
15 Software System licensing, maintenance, and support for use by the Department of Behavioral
16 Health-Public Guardian's Office.
17 The parties therefore agree as follows:
18 Article 1
19 Contractor's Services
20 1.1 Scope of Services. The Contractor shall provide a one-year license with two
21 possible one-year extensions for CompuTrust Case Management and Trust Accounting
22 Software System as described in Exhibit A to this Agreement.
23 1.2 Representation. The Contractor represents that it is qualified, ready, willing, and
24 able to perform all of the services provided in this Agreement.
25 1.3 Compliance with Laws. The Contractor shall, at its own cost, comply with all
26 applicable federal, state, and local laws and regulations in the performance of its obligations
27 under this Agreement, including but not limited to workers compensation, labor, and
28 confidentiality laws and regulations.
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1 1.4 License Term. The term of the license (as defined in Exhibit A) is a one-year license
2 for maintenance and support with two possible one-year extensions. However, the County shall
3 be entitled to CompuTrust Case Management and Trust Accounting Software System updates,
4 upgrades, enhancements, new versions, bug fixes, and other improvements to the software,
5 when released by the Contractor to the Contractor's customers, and to technical assistance
6 relating to the software, for the Term described in this Agreement. The Contractor hereby grants
7 to the County, at no additional cost, a limited non-exclusive, non-transferable license to use the
8 Contractor's CompuTrust Case Management and Trust Accounting Software System (as
9 defined in Exhibit A) in object code only for the County's internal business purposes (and not to
10 process the data of any other entity or agency, except to the extent the other entity or agency
11 uses the County's public facing site), as well as to support the number of County databases and
12 the number of named users of the Contractor.
13 1.5 Coordination of Work. The Contractor shall coordinate all work with the County to
14 minimize any interruptions to the normal operation of County operations, through the appointee
15 as identified in section 2.1 of this Agreement.
16 1.6 Infringement. The Contractor further represents and warrants that it has the right to
17 grant the licenses granted to the County hereunder, and that the services provided under this
18 Agreement do not infringe upon or violate the United States patent of rights of any third party
19 and do not infringe upon or violate the copyright, or trade secret right of any third party. This
20 section survives the termination of this agreement.
21 1.7 Viruses & Disabling Mechanisms. The Contractor shall use commercially
22 reasonable, diligent measures to screen the licensed programs provided under this Agreement
23 to avoid introducing, or coding of, any virus or other destructive programming designed to permit
24 unauthorized access or use by third parties to the software installed on the County's systems
25 (as defined in Exhibit A), or to disable or damage the County's systems (each, a "Virus").
26 Without limiting the rights and remedies of the County, in the event any Virus is introduced into
27 the County's systems through any of the licensed programs provided under this Agreement,
28 (including the Contractor's failure to perform its obligations under this Agreement), the
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1 Contractor shall, as soon as practicable, use its diligent, commercially reasonable efforts to
2 assist the County in eliminating the effects of the Virus, and if the Virus causes a loss of
3 operational efficiency or loss of data, and upon the County's request, the Contractor will,
4 diligently work as soon as practicable to contain and remedy the problem and to restore lost
5 data resulting from the introduction of such Virus. The Contractor shall not insert into any of the
6 licensed programs provided in this Agreement any code or other device that would have the
7 effect of disabling or otherwise shutting down all or any portion of the licensed programs. The
8 Contractor shall not invoke such code or other device at any time, including upon expiration or
9 termination of this Agreement for any reason. This section survives the termination of this
10 Agreement. The Contractor will accept responsibility and provide remediation only if virus
11 intrusion is determined to be fault of Contractor. The Contractor will support remediation at
12 standard rates otherwise.
13 1.8 ADA Compliance. The Contractor's Products and Services shall be in compliance
14 with the Americans with Disabilities Act of 1990 (ADA). ADA compliance shall be the sole
15 responsibility of the Contractor. The Contractor shall indemnify, defend, and hold the County
16 (including its officers, agents, employees, and volunteers) harmless from liability of any nature
17 or kind, including damages, costs, and expenses (including attorney's fees and costs) arising
18 from the Contractor's non-compliance therewith, including compliance with ADA Section 508 of
19 the Rehabilitation Act of 1973. This section survives the termination of this Agreement.
20 1.9 HIPAA Compliance. The Contractor will follow present practices as outlined in
21 Exhibit E.
22 Article 2
23 County's Responsibilities
24 2.1 County Contractor Administrator. The County appoints the Director of Internal
25 Services/Chief Information Officer ("CIO"), or his or her designee, as the County's Contract
26 Administrator with full authority to deal with the Contractor in all matters concerning this
27 Agreement.
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1 2.2 Notice to Proceed. The County shall issue a Notice to Proceed for each Order or
2 Statement of Work (SOW), as defined in Exhibit A, for which County may desire, and shall issue
3 any subsequent Change Requests, which the County may desire, for each Order or SOW, as
4 applicable.
5 2.3 Written Acceptance. The County shall provide a Written Acceptance of all Orders or
6 SOW's, upon the County's determination that the Contractor has fully performed under the
7 Order or SOW, at the end of an Order or SOW, as applicable.
8 2.4 Contractor Access. The County will ensure that the Contractor's consultants have
9 access to the County's network and systems as required during the County's normal business
10 hours, which is 8AM to 5PM Monday through Friday, except for County holidays or when the
11 Office of the Clerk of the Board of Supervisors is officially closed to the public.
12 2.5 System Hardware and System Software. The County, at its own expense, will
13 provide and properly maintain and update, on an ongoing basis, all necessary County System
14 Software and County System Hardware required to operate CompuTrust Case Management
15 and Trust Accounting Software System.
16 Article 3
17 Compensation, Invoices, and Payments
18 3.1 Compensation. The County agrees to pay, and the Contractor agrees to receive,
19 compensation for the performance of its services under this Agreement as described in Exhibit
20 B to this Agreement.
21 3.2 Maximum Compensation. The total maximum compensation payable to the
22 Contractor during the initial term of this Agreement is $72,707. If this Agreement is extended for
23 the first additional year as provided in Article 4, below, the total maximum compensation
24 payable to the Contractor will increase to $129,913. If this Agreement is extended for the
25 second additional year as provided in Article 4, below, the total maximum compensation
26 payable to the Contractor for the Contractor Products and Services will increase to $188,835. In
27 the event the total maximum compensation amount in the Initial Term and/ or Year 2 is not fully
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1 expended, the remaining unspent funding amounts shall roll over to each subsequent term's
2 established maximum compensation.
3 The Contractor acknowledges that the County is a local government entity and does so with
4 notice that the County's powers are limited by the California Constitution and by State law, and
5 with notice that the Contractor may receive compensation under this Agreement only for
6 services performed according to the terms of this Agreement and while this Agreement is in
7 effect, and subject to the maximum amount payable under this section. The Contractor further
8 acknowledges that County employees have no authority to pay the Contractor, except as
9 expressly provided in this Agreement.
10 3.3 Contractor Products and Services. The Contractor's CompuTrust Case
11 Management and Trust Accounting Software System license, including maintenance and
12 support, are purchased by the County as annual renewals. Additional Contractor Products and
13 Services, which may include but is not limited to, licenses, modules, features, and professional
14 services, may be added during an Order Term (as described in section 3.4 below), to the
15 System Software as determined necessary by the Contract Administrator.
16 3.4 Annual Fees. CompuTrust Case Management and Trust Accounting Software
17 System license annual fees (as identified in Exhibit B) are due for the first year of the
18 Agreement, and then annually thereafter, and at the beginning of any extended term, within 45
19 days of receipt of invoice. Exhibit B of this Agreement identifies the list of Products and Services
20 used in this Agreement. Services supporting the Contractor's products shall be paid annually
21 commencing upon the completion of the implementation of the products, or their being ready for
22 the County's use.
23 3.5 Ordering Products and Services. The Parties may execute one or more Order or
24 SOW related to the sale and purchase of the Contractor's Products and Services. Each Order or
25 SOW will include an itemized list of the Contractor Products and Services, as well as the Order
26 Term for such Contractor Products and Services. Each Order or SOW must, generally, be
27 signed by the Parties. Each Order or SOW shall be governed by this Agreement regardless of
28 any pre-printed legal terms on each Order or SOW, and by this reference is incorporated herein.
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1 3.6 Invoices. The Contractor shall submit invoices referencing the provided agreement
2 number to the County of Fresno, Department of Behavioral Health-Public Guardian, Attention:
3 Business Office, PO Box 712, Fresno, CA 93712, DBH-invoices(a)_fresnocountycG.,,-, . The
4 Contractor shall submit each invoice within 60 days after the month in which the Contractor
5 performs services and in any case within 60 days after the end of the term or termination of this
6 Agreement.
7 3.7 Payment. The County shall pay each correctly completed and timely submitted
8 invoice within 45 days after receipt. The County shall remit any payment to the Contractor's
9 address specified in the invoice.
10 3.8 Incidental Expenses. The Contractor is solely responsible for all of its costs and
11 expenses that are not specified as payable by the County under this Agreement.
12 Article 4
13 Term of Agreement
14 4.1 Term. This Agreement is effective on July 1, 2024, and terminates on June 30, 2025,
15 except as provided in section 4.2, "Extension," or Article 6, "Termination and Suspension,"
16 below.
17 4.2 Extension. The term of this Agreement may be extended for no more than two, one-
18 year periods only upon the written approval of both parties at least 30 days before the first day
19 of the next one-year extension period. The Director of Internal Services/Chief Information Officer
20 or his or her designee is authorized to sign the written approval on behalf of the County based
21 on the Contractor's satisfactory performance. The extension of this Agreement by the County is
22 not a waiver or compromise of any default or breach of this Agreement by the Contractor
23 existing at the time of the extension whether or not known to the County.
24 Article 5
25 Notices
26 5.1 Contact Information. The persons and their addresses having authority to give and
27 receive notices provided for or permitted under this Agreement include the following:
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For the County:
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1 Director of Internal Services/Chief Information Officer
County of Fresno
2 333 W. Pontiac Way
Clovis, CA 93612
3 isacuntractscwtresnocountyca.gov
4 For the Contractor:
CEO
5 Anthony Kessel
36 Chatham Court
6 San Jose, California 95139
7 5.2 Change of Contact Information. Either party may change the information in section
8 5.1 by giving notice as provided in section 5.3.
9 5.3 Method of Delivery. Each notice between the County and the Contractor provided
10 for or permitted under this Agreement must be in writing, state that it is a notice provided under
11 this Agreement, and be delivered either by personal service, by first-class United States mail, by
12 an overnight commercial courier service, or by Portable Document Format (PDF) document
13 attached to an email.
14 (A) A notice delivered by personal service is effective upon service to the recipient.
15 (B) A notice delivered by first-class United States mail is effective three County
16 business days after deposit in the United States mail, postage prepaid, addressed to the
17 recipient.
18 (C)A notice delivered by an overnight commercial courier service is effective one
19 County business day after deposit with the overnight commercial courier service,
20 delivery fees prepaid, with delivery instructions given for next day delivery, addressed to
21 the recipient.
22 (D)A notice delivered by PDF document attached to an email is effective when
23 transmission to the recipient is completed (but, if such transmission is completed outside
24 of County business hours, then such delivery is deemed to be effective at the next
25 beginning of a County business day), provided that the sender maintains a machine
26 record of the completed transmission.
27 5.4 Claims Presentation. For all claims arising from or related to this Agreement,
28 nothing in this Agreement establishes, waives, or modifies any claims presentation
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1 requirements or procedures provided by law, including the Government Claims Act (Division 3.6
2 of Title 1 of the Government Code, beginning with section 810).
3 Article 6
4 Termination and Suspension
5 6.1 Termination for Non-Allocation of Funds. The terms of this Agreement are
6 contingent on the approval of funds by the appropriating government agency. If sufficient funds
7 are not allocated, then the County, upon at least 30 days' advance written notice to the
8 Contractor, may:
9 (A) Modify the services provided by the Contractor under this Agreement; or
10 (B) Terminate this Agreement.
11 6.2 Termination for Breach.
12 (A) Upon determining that a breach (as defined in paragraph (C) below) has
13 occurred, the County may give written notice of the breach to the Contractor. The written
14 notice may suspend performance under this Agreement, and must provide at least 30
15 days for the Contractor to cure the breach.
16 (B) If the Contractor fails to cure the breach to the County's satisfaction within the
17 time stated in the written notice, the County may terminate this Agreement immediately.
18 (C) For purposes of this section, a breach occurs when, in the determination of the
19 County, the Contractor has:
20 (1) Obtained or used funds illegally or improperly;
21 (2) Failed to comply with any part of this Agreement;
22 (3) Submitted a substantially incorrect or incomplete report to the County; or
23 (4) Improperly performed any of its obligations under this Agreement.
24 6.3 Termination without Cause. In circumstances other than those set forth above, the
25 County CIO may terminate this Agreement by giving at least 30 days advance written notice to
26 the Contractor.
27 6.4 No Penalty or Further Obligation. Any termination of this Agreement by the County
28 under this Article 6 is without penalty to or further obligation of the County.
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1 6.5 County's Rights upon Termination. Upon termination for breach under this Article
2 6, the County may demand repayment by the Contractor of any monies disbursed to the
3 Contractor under this Agreement that, by mutual agreement of both parties, were not expended
4 in compliance with this Agreement. The Contractor shall promptly refund all such monies upon
5 demand. This section survives the termination of this Agreement.
6 Article 7
7 Independent Contractor
8 7.1 Status. In performing under this Agreement, the Contractor, including its officers,
9 agents, employees, and volunteers, is at all times acting and performing as an independent
10 contractor, in an independent capacity, and not as an officer, agent, servant, employee,joint
11 venturer, partner, or associate of the County.
12 7.2 Verifying Performance. The County has no right to control, supervise, or direct the
13 manner or method of the Contractor's performance under this Agreement, but the County may
14 verify that the Contractor is performing according to the terms of this Agreement.
15 7.3 Benefits. Because of its status as an independent contractor, the Contractor has no
16 right to employment rights or benefits available to County employees. The Contractor is solely
17 responsible for providing to its own employees all employee benefits required by law. The
18 Contractor shall save the County harmless from all matters relating to the payment of the
19 Contractor's employees, including compliance with Social Security withholding and all related
20 regulations.
21 7.4 Services to Others. The parties acknowledge that, during the term of this
22 Agreement, the Contractor may provide services to others unrelated to the County.
23 Article 8
24 Indemnity and Defense
25 8.1 Indemnity. The Contractor shall indemnify and hold harmless and defend the
26 County (including its officers, agents, employees, and volunteers) against all claims, demands,
27 injuries, damages, costs, expenses (including attorney fees and costs), fines, penalties, and
28 liabilities of any kind to the County, the Contractor, or any third party that arise from or relate to
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1 the performance or failure to perform by the Contractor (or any of its officers, agents,
2 subcontractors, or employees) under this Agreement. The County may conduct, at its own cost,
3 in its own defense without affecting the Contractor's obligation to indemnify and hold harmless
4 or defend the County.
5 8.2 Survival. This Article 8 survives the termination of this Agreement.
6 Article 9
7 Health Insurance Portability and Accountability Act
8 9.1 The parties to the Agreement shall be in strict conformance to the provisions of
9 Exhibit F.
10 Article 10
11 Insurance
12 10.1 The Contractor shall comply with all the insurance requirements in Exhibit D to this
13 Agreement.
14 Article 11
15 Ownership of Data
16 11.1 Ownership of Data. The parties acknowledge and agree that all the County's data
17 (Data), is and shall remain the exclusive property of the County. The Contractor acknowledges
18 that in performing its obligations under the Agreement it may have access to the County's
19 networks and Data. The Contractor shall use and access such Data only as necessary for the
20 purpose of providing the services and supporting the Software as agreed.
21 11.2 Ownership of System Software. The parties acknowledge and agree that, as
22 between the Contractor and the County, title, and full ownership of all rights in and to the
23 System Software, System Documentation (as defined in Exhibit A), and all other materials
24 provided to the County by the Contractor under the terms of this Agreement shall remain with
25 the Contractor. The County will take reasonable steps to protect trade secrets (as defined in
26 Government Code Section 7924.510(f)) of the System Software and System Documentation,
27 and which are identified as such by the Contractor. The County may not disclose or make
28 available to third parties the System Software or System Documentation or any portion thereof,
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1 unless otherwise required by court order. The Contractor shall own all right, title, and interest in
2 and to all corrections, modifications, enhancements, programs, and work product conceived,
3 created or developed, alone or with the County or others, as a result of or related to the
4 performance of this Agreement, including all proprietary rights therein and based thereon.
5 Except and to the extent expressly provided herein, the Contractor does not grant to the County
6 any right or license, express or implied, in or to the System Software and System
7 Documentation or any of the foregoing. The parties acknowledge and agree that, as between
8 the Contractor and the County, full ownership of all rights in and to all County data, whether in
9 magnetic or paper form, including without limitation printed output from the System, are the
10 exclusive property of the County.
11 11.3 Contractor Intellectual Property Rights. The Contractor shall grant a non-
12 exclusive, non-transferable license, at no additional cost, to the County to use the Contractor's
13 Products and Services in support of Department of Behavioral Health's -Public Guardian's
14 Office to the extent allowed in the relevant Order or SOW (Permitted Use). The County may
15 reproduce, modify, or create derivative works for its own use, public display, and use any and all
16 of the Contractor's copyrights in the homepage layout wireframe, sitemap, draft homepage
17 design concept(s) interior page layouts (collectively, the "Contractor Designs") embodied in the
18 County's website and intranet, which are prepared or caused to be prepared by the Contractor
19 under this Agreement. All rights not licensed are reserved to the Contractor and no rights may
20 be implied. The Contractor retains all intellectual property rights in the Software, and the County
21 agrees to implement software protection measures designed to prevent unauthorized use and
22 copying of the Software.
23 11.4 Data Sources. Data uploaded into the Contractor Products and Services must be
24 brought in from County sources (interactions with end users and opt-in contact lists). The
25 County cannot upload purchased contact information into the Contractor Products and Services
26 without the Contractor's written permission, which shall not be unreasonably withheld or
27 delayed, and professional services support for list cleansing. The Contractor understands and
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1 acknowledges, however, that the County is a government agency and intends to use the
2 Contractor for the purpose of publishing information required by law to be available to the public.
3 Article 12
4 Confidentiality & Data Security
5 12.1 Confidentiality. The County and the Contractor may have access to information that
6 the other considers to be a trade secret as defined in California Government Code section
7 7924.510(f).
8 12.2 Each party shall use the other's Information only to perform its obligations under, and
9 for the purposes of, the Agreement. Neither party shall use the Information of the other Party for
10 the benefit of a third party. Each Party shall maintain the confidentiality of all Information in the
11 same manner in which it protects its own information of like kind, but in no event shall either
12 Party take less than reasonable precautions to prevent the unauthorized disclosure or use of the
13 Information.
14 12.3 The Contractor shall not disclose the County's data except to any third parties as
15 necessary to operate the Contractor Products and Services (provided that the Contractor
16 hereby grants to the County, at no additional cost, a non-perpetual, noncancelable, worldwide,
17 nonexclusive license to utilize any data, on an anonymous or aggregate basis only, that arises
18 from the use of the Contractor Products and Services by the Contractor, whether disclosed on,
19 subsequent to, or prior to the Effective Date, to improve the functionality of the Contractor
20 Products and Services and any other legitimate business purpose, subject to all legal
21 restrictions regarding the use and disclosure of such information).
22 12.4 Upon termination of the Agreement, or upon a Party's request, each Party shall
23 return to the other all information of the other in its possession. All provisions of the Agreement
24 relating to confidentiality, ownership, and limitations of liability shall survive the termination of
25 the Agreement.
26 12.5 All services performed by the Contractor shall be in strict conformance with all
27 applicable Federal, State of California, and/or local laws and regulations relating to
28 confidentiality, including but not limited to, California Civil Code, California Welfare and
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1 Institutions Code, California Health and Safety Code, California Code of Regulations, and the
2 Code of Federal Regulations.
3 12.6 12.6 Data Security. While the Contractor does not maintain the on-premises
4 environment, the Contractor shall be responsible for the privacy and security safeguards of any
5 County data they collect, process, or store as part of their services. The Contractor shall afford
6 the County access as necessary to the Contractor's technical capabilities to ensure compliance
7 with data security requirements. If new or unanticipated threats or hazards are discovered by
8 either the County or the Contractor, or if existing safeguards have ceased to function, the
9 discoverer shall immediately bring the situation to the attention of the other party.
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11 Article 13
12 Inspections, Audits, and Public Records
13 13.1 Inspection of Documents. The Contractor shall make available to the County, and
14 the County may examine at any time during Business Hours and as often as the County deems
15 necessary, all of the Contractor's records and data with respect to the matters covered by this
16 Agreement, excluding attorney-Contractor privileged communications. The Contractor shall,
17 upon request by the County, permit the County to audit and inspect all of such records and data
18 to ensure the Contractor's compliance with the terms of this Agreement.
19 13.2 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 13.3 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
26 County. The County's public disclosure of this Agreement or any record or data that the
27 Contractor may provide to the County may include but is not limited to the following:
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1 (A) The County may voluntarily, or upon request by any member of the public or
2 governmental agency, disclose this Agreement to the public or such governmental
3 agency.
4 (B) The County may voluntarily, or upon request by any member of the public or
5 governmental agency, disclose to the public or such governmental agency any record or
6 data that the Contractor may provide to the County, unless such disclosure is prohibited
7 by court order.
8 (C)This Agreement, and any record or data that the Contractor may provide to the
9 County, is subject to public disclosure under the Ralph M. Brown Act (California
10 Government Code, Title 5, Division 2, Part 1, Chapter 9, beginning with section 54950).
11 (D)This Agreement, and any record or data that the Contractor may provide to the
12 County, is subject to public disclosure as a public record under the California Public
13 Records Act (California Government Code, Title 1, Division 10, Chapter 3, beginning
14 with section 7920.200) ("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
17 people's business of the State of California under California Constitution, Article 1,
18 section 3, subdivision (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 13.4 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
27 County, for purposes of public disclosure, the requested records that may be in the possession
28 or control of the Contractor. Within five business days after the County's demand, the
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1 Contractor shall (a) deliver to the County all of the requested records that are in the Contractor's
2 possession or control, together with a written statement that the Contractor, after conducting a
3 diligent search, has produced all requested records that are in the Contractor's possession or
4 control, or (b) provide to the County a written statement that the Contractor, after conducting a
5 diligent search, does not possess or control any of the requested records. The Contractor shall
6 cooperate with the County with respect to any County demand for such records. If the
7 Contractor wishes to assert that any specific record or data is exempt from disclosure under the
8 CPRA or other applicable law, it must deliver the record or data to the County and assert the
9 exemption by citation to specific legal authority within the written statement that it provides to
10 the County under this section. The Contractor's assertion of any exemption from disclosure is
11 not binding on the County, but the County will give at least 10 days' advance written notice to
12 the Contractor before disclosing any record subject to the Contractor's assertion of exemption
13 from disclosure. The Contractor shall indemnify the County for any court-ordered award of costs
14 or attorney's fees under the CPRA that results from the Contractor's delay, claim of exemption,
15 failure to produce any such records, or failure to cooperate with the County with respect to any
16 County demand for any such records.
17 Article 14
18 Disclosure of Self-Dealing Transactions
19 14.1 Applicability. This Article 14 applies if the Contractor is operating as a corporation,
20 or changes its status to operate as a corporation.
21 14.2 Duty to Disclose. If any member of the Contractor's board of directors is party to a
22 self-dealing transaction, he or she shall disclose the transaction by completing and signing a
23 "Self-Dealing Transaction Disclosure Form" (Exhibit C to this Agreement) and submitting it to
24 the County before commencing the transaction or immediately after.
25 14.3 Definition. "Self-dealing transaction" means a transaction to which the Contractor is
26 a party and in which one or more of its directors, as an individual, has a material financial
27 interest.
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1 Article 15
2 General Terms
3 15.1 CIO. Director of Internal Services/Chief Information Officer (CIO).
4 15.2 Modification. Except as provided in Article 6, "Termination and Suspension," this
5 Agreement may not be modified, and no waiver is effective, except by written agreement signed
6 by both parties. The Contractor acknowledges that County employees have no authority to
7 modify this Agreement except as expressly provided in this Agreement.
8 15.3 Non-Assignment. Neither party may assign its rights or delegate its obligations
9 under this Agreement without the prior written consent of the other party.
10 15.4 Governing Law. The laws of the State of California govern all matters arising from
11 or related to this Agreement.
12 15.5 Jurisdiction and Venue. This Agreement is signed and performed in Fresno
13 County, California. Contractor consents to California jurisdiction for actions arising from or
14 related to this Agreement, and, subject to the Government Claims Act, all such actions must be
15 brought and maintained in Fresno County.
16 15.6 Severability. If anything in this Agreement is found by a court of competent
17 jurisdiction to be unlawful or otherwise unenforceable, the balance of this Agreement remains in
18 effect, and the parties shall make best efforts to replace the unlawful or unenforceable part of
19 this Agreement with lawful and enforceable terms intended to accomplish the parties' original
20 intent.
21 15.7 Nondiscrimination. During the performance of this Agreement, the Contractor shall
22 not unlawfully discriminate against any employee or applicant for employment, or recipient of
23 services, because of race, religious creed, color, national origin, ancestry, physical disability,
24 mental disability, medical condition, genetic information, marital status, sex, gender, gender
25 identity, gender expression, age, sexual orientation, military status or veteran status pursuant to
26 all applicable State of California and federal statutes and regulation.
27 15.8 No Waiver. Payment, waiver, or discharge by the County of any liability or obligation
28 of the Contractor under this Agreement on any one or more occasions is not a waiver of
16
County of Fresno
P-24-566
1 performance of any continuing or other obligation of the Contractor and does not prohibit
2 enforcement by the County of any obligation on any other occasion.
3 15.9 Entire Agreement. This Agreement, including its exhibits, is the entire agreement
4 between the Contractor and the County with respect to the subject matter of this Agreement,
5 and it supersedes all previous negotiations, proposals, commitments, writings, advertisements,
6 publications, and understandings of any nature unless those things are expressly included in
7 this Agreement. If there is any inconsistency between the terms of this Agreement without its
8 exhibits and the terms of the exhibits, then the inconsistency will be resolved by giving
9 precedence first to the terms of this Agreement without its exhibits, and then to the terms of the
10 exhibits.
11 15.10 No Third-Party Beneficiaries. This Agreement does not and is not intended to
12 create any rights or obligations for any person or entity except for the parties.
13 15.11 Authorized Signature. The Contractor represents and warrants to the County that:
14 (A) The Contractor is duly authorized and empowered to sign and perform its
15 obligations under this Agreement.
16 (B) The individual signing this Agreement on behalf of the Contractor is duly
17 authorized to do so and his or her signature on this Agreement legally binds the
18 Contractor to the terms of this Agreement.
19 15.12 Electronic Signatures. The parties agree that this Agreement may be executed by
20 electronic signature as provided in this section.
21 (A) An "electronic signature" means any symbol or process intended by an individual
22 signing this Agreement to represent their signature, including but not limited to (1) a
23 digital signature; (2) a faxed version of an original handwritten signature; or (3) an
24 electronically scanned and transmitted (for example by PDF document) version of an
25 original handwritten signature.
26 (B) Each electronic signature affixed or attached to this Agreement (1) is deemed
27 equivalent to a valid original handwritten signature of the person signing this Agreement
28 for all purposes, including but not limited to evidentiary proof in any administrative or
17
County of Fresno
P-24-566
1 judicial proceeding, and (2) has the same force and effect as the valid original
2 handwritten signature of that person.
3 (C)The provisions of this section satisfy the requirements of Civil Code section
4 1633.5, subdivision (b), in the Uniform Electronic Transaction Act (Civil Code, Division 3,
5 Part 2, Title 2.5, beginning with section 1633.1).
6 (D) Each party using a digital signature represents that it has undertaken and
7 satisfied the requirements of Government Code section 16.5, subdivision (a),
8 paragraphs (1) through (5), and agrees that each other party may rely upon that
9 representation.
10 (E) This Agreement is not conditioned upon the parties conducting the transactions
11 under it by electronic means and either party may sign this Agreement with an original
12 handwritten signature.
13 15.13 Counterparts. This Agreement may be signed in counterparts, each of which is an
14 original, and all of which together constitute this Agreement.
15 15.14 Agent for Service of Process. The Contractor represents to the County that the
16 Contractor's agent for service of process in California, and that such agent's address for
17 receiving such service of process in California, which information the Contractor shall maintain
18 with the office of the California Secretary of State, is as follows:
19 Anthony Kessel
36 Chatham Court
20 San Jose, California 95139
21 The Contractor further represents to the County that if the Contractor changes its agent for
22 service of process in California, or the Contractor's agent for service of process in California
23 changes its address for receiving such service of process in California, which changed
24 information the Contractor shall maintain with the office of the California Secretary of State, the
25 Contractor shall give the County written notice thereof within five (5) calendar days thereof
26 pursuant to Article 5.
27 [SIGNATURE PAGE FOLLOWS]
28
18
County of Fresno
P-24-566
1 The parties are signing this Agreement on the date stated in the introductory clause.
2
CompuTrust Software Corporation. COUNTY OF FRESNO
3
Digitally signed by Riley Blackburn
4 Riley Blackburn Date:2024.11.01 15:18:28-07'00'
5 Anthony Kessel, CEO Riley Blackburn, Purchasing Manager
6 36 Chatham Court
San Jose, California 95139
7
For accounting use only:
8
Org No.: 8905
9 Account No.: 7311
Fund No.: 1020
10 Subclass No.: 100
11
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13
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19
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21
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19
County of Fresno
P-24-566
Exhibit A - Scope of Work
1 1. Definitions. In addition to the terms defined elsewhere in this Agreement, the following
2 terms shall have the meanings specified:
3 Change Control Process is defined as the process used by the Information Technology
4 Services Division of the County's Internal Services Department (ISD) to inform County staff of
5 new or updated production use systems.
6 County System Hardware is defined as the central processing units owned or leased by
7 the County for which the County is licensed to use the system software, any back-up equipment
8 for such central processing units, and any peripheral hardware, such as terminals, printers, and
9 personal computers as described in this agreement.
10 County System Software is defined as the operating system and databased software
11 installed on the County System Hardware.
12 Products and Services — is defined as the Contractor's Products and Services made
13 available to the County pursuant to this Agreement, which include licensing, maintenance and
14 support which are accessible for use by the County on an annual basis, the Contractor
15 professional services, content from any professional services or other required equipment
16 components or other required hardware, as specified in each Order or SOW.
17 License is defined as the license granted under this Agreement, and the rights and
18 obligations that it creates under the laws of the United States of America and the State of
19 California, including without limitation, copyright, and intellectual property law.
20 Order or Statement of Work (SOW) is defined as a written order, proposal, or purchase
21 document in which the Contractor agrees to provide and the County agrees to purchase specific
22 Contractor Products and Services. Statement of Work (SOW) means a written order, proposal,
23 or purchase document that is signed by both Parties and describes the Contractor Products and
24 Services to be provided and/or performed by the Contractor. Each Order or SOW shall describe
25 the Parties' performance obligations and any assumptions or contingencies associated with the
26 implementations of the Contractor Products and Services, as specified in each Order or SOW
27 placed hereunder.
28
A-1
County of Fresno
P-24-566
Exhibit A - Scope of Work
1 Order Term is defined as the then-current duration of performance identified on each
2 Order or SOW, for which the Contractor has committed to provide, and the County has
3 committed to pay for, the Contractor Products and Services.
4 Support is defined as the ongoing support and maintenance services performed by the
5 Contractor related to the Contractor Products and Services as specified in each Order or SOW
6 placed between the Parties.
7 System is defined as the System Software and System Documentation, collectively,
8 including all modifications and enhancements.
9 Svstem Documentation is defined as the documentation relating to the System Software,
10 including all manuals, reports, brochures, sample runs, specifications, and other materials
11 provided by the Contractor in connection with the System Software.
12 System Software is defined as the Contractor's Products and Services provided by the
13 Contractor and interfaces, coding, tapes, disks, modules, and similar materials comprising such
14 software or on which it is stored. System Software shall not include operating system software,
15 or any other Third-Party Software. System Software does not include operating system
16 software, or any other third-party software.
17 System Software Maintenance and Support and Support is defined as regular software
18 updates to System Software, and support provided for System Software in case of errors,
19 mistakes, or other technical difficulties.
20 2. Warranties & Disclaimers. The Contractor warrants that all services performed under
21 this Agreement will conform in all aspects with the requirements of this Agreement and their
22 specifications. The Contractor warrants that it takes all precautions that are standard in the
23 industry, in California, to increase the likelihood of a successful performance for the Contractor
24 Products and Services.
25 Except as provided in herein provided, each Party hereby disclaims any and all other
26 warranties of any nature whatsoever whether oral and written, express or implied, including,
27 without limitation, the implied warranties of merchantability, title, non-infringement, and fitness
28
A-2
County of Fresno
P-24-566
Exhibit A - Scope of Work
1 for a particular purpose. The Contractor does not warrant that the Contractor Products and
2 Services will meet the County's requirements.
3 3. Project Deadlines. It is understood and agreed by both parties to this Agreement that if
4 all the work specified or indicated in the Order or SOW is not completed within the specified
5 timeframes set forth in the Order or SOW, or within such time limits as extended, the County
6 may elect to terminate without cause as discussed in section 6.3, provided however, nothing in
7 this section limits any of the County's remedies under this Agreement for the Contractor's
8 breach of this Agreement.
9 4. Contractor's Project Coordinator. Upon execution of this Agreement, the Contractor
10 shall appoint a Project Coordinator who will act as the primary contact person to interface with
11 the County for the services discussed in this Agreement.
12 5. Technical Information. The Contractor will provide technical information to the County.
13 Such information may cover areas regarding the software discussed in this Agreement, third
14 party software, and other matters considered relevant to the County by the Contractor.
15 Technical information will be provided at the discretion of the Contractor but will not be
16 unreasonably withheld.
17 6. Operating System Updates. The application must run on a County operating system
18 that is consistently and currently supported by the operating system vendor. Applications under
19 maintenance are expected to always be current in regard to the required Contractor operating
20 system. No outdated or unsupported County operating system will be implemented on the
21 production network. Contractor shall keep their software current in order to operate in this
22 environment. Patches may include critical operating system updates and security patches.
23 7. Adhere to Change Control Process. The Contractor employs a procedure to
24 implement updates, upgrades, and version releases to a system that is in production use. This
25 forum allows the Contractor to inform the County of upcoming changes to a production system.
26 The Contractor must inform the County a minimum of one week prior to any planned, non-
27 emergency changes so that the Change Control Process may be followed.
28
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County of Fresno
P-24-566
Exhibit A - Scope of Work
1 8. Storage and Sending. If any services specified in this Agreement are used to store
2 and/or send Confidential Information, the Contractor must be notified in writing, in advance of
3 the storage or sending. Should the County provide such notice, the County must ensure that
4 Confidential Information is stored behind a secure interface and that the Contractor's Products
5 and Services be used only to notify people of updates to the information that can be accessed
6 after authentication against a secure interface managed by the County.
7 9. Support Services. Support Services is defined as technical support, account
8 management, and education and training. The Contractor will support day-to-day operation of
9 the System as follows. Basic support related to standard Contractor Products and Services is
10 included within the fees paid during the Order Term. The Contractor may update its Support
11 obligations under this Agreement, so long as the functionality purchased by the County is not
12 materially diminished. An emergency is defined as the Contractor's services described in this
13 Agreement being down for more than ten minutes where the actions of the Contractor are
14 found to be at fault.
15 10. Downtime. Downtime shall be defined as System non-availability due to System
16 Software error, malfunction, or due to System Software Maintenance and Support activity other
17 than in accordance with the scheduling parameters set forth in this Agreement. Examples of
18 Downtime include, without limitation, the County and public cannot access the System for
19 reasons within the Contractor's Control or any functional Component of the System or
20 Interference is not available and is within the Contractor's Control. The County requires that
21 there be no unscheduled Downtime for routine System Software Maintenance and Support of
22 the Application Software. The County will accept occasional scheduled Downtime, not to
23 exceed, four hours, for significant non-routine Updates and maintenance to be scheduled by
24 the Contractor. Routine System Software Maintenance and Support includes such tasks as
25 major System Software version Updates. The Contractor shall use its best efforts to keep
26 scheduled Downtime for non-routine maintenance to a minimum (99.9% up time guarantee).
27 11. Data Sources. Data uploaded into the Contractor Products and Services must be
28 brought in from the County sources (interactions with end users and opt-in contact lists). The
A-4
County of Fresno
P-24-566
Exhibit A - Scope of Work
1 County cannot upload purchased contact information into the Contractor Products and
2 Services without the Contractor's written permission and professional services support for list
3 cleansing. The Contractor certifies that it will not sell, retain, use, or disclose any personal
4 information provided by the County for any purpose other than retaining, using, or disclosing
5 such personal information for the specific purpose of performing the services outlined within
6 this Agreement.
7 12. Passwords. Passwords are not transferable to any third party. The County is
8 responsible for keeping all passwords secure and all use of the Contractor Products and
9 Services accessed through the County's passwords.
10 13. County Feedback. The County will provide feedback to the Contractor with any
11 suggestion, enhancement, request, recommendation, correction, or other feedback provided by
12 the County relating to the use of the Contractor Products and Services. The Contractor may
13 use such submissions as it deems appropriate in its sole discretion.
14 14. Support. System maintenance and support includes System Updates as they are
15 released by the Contractor. The County will identify the first day of production use, and
16 communicate that to the Contractor. The Contractor will support day to-day operation of the
17 System, including the following services:
18 A. Support Hours. Provide unlimited technical assistance through toll-free telephone Hot
19 Line Support at (800) 222-7947, or electronic mail at ctsupport@computrustcorp.com, Monday
20 through Friday from 8:00 a.m. to 5 p.m., Pacific Standard Time, excluding Contractor and
21 County holidays, to report problems or request user assistance in use or restoration of the
22 Program to normal operating condition. The object of this support will be to answer specific
23 questions related to the System Software and the application thereof. Support provided under
24 this Agreement does not include training of new personnel (after initial staff is trained),
25 operation of hardware, or solving other hardware/software problems unrelated to the System
26 Software.
27 B. Support Response. During the term of this Agreement, the Contractor will (a) correct
28 any error or malfunctions in the System as supplied by the Contractor that prevent the System
A-5
County of Fresno
P-24-566
Exhibit A - Scope of Work
1 from operating in conformance with the specifications set forth in this Agreement, or (b) provide
2 a commercially reasonable alternative that will conform to the specifications set forth in this
3 Agreement.
4 If analysis by the Contractor indicates a reported problem is caused by a reproducible error
5 or malfunction in the then-current release of the System Software, as supplied and maintained
6 by the Contractor, which significantly impacts effective use of the System by the County, the
7 Contractor will provide continuous effort to correct the error or to resolve the problem by
8 providing a circumvention.
9 In such cases, the Contractor will provide the County with corrective information, such as
10 corrective documentation and/or program code. The Contractor will endeavor to respond to the
11 County's service request no later than four business hours from the time the Contractor receives
12 the County's call. In the event that a person with the necessary expertise is not available when
13 the call is received, the Contractor will respond to the service request no later than within one
14 business day.
15 D. Error Reports. Error Reports to the Contractor are not counted towards the County's
16 annual support hours. The County agrees, if requested by the Contractor, to submit an Error
17 Report which identifies the problem and describes the steps needed to reproduce the Error
18 ("Error Report"), in addition to a listing of output and any other data that the Contractor may
19 require in order to reproduce any Error, and the operating conditions under which the Error
20 occurred or was discovered.
21 E. Remote Accessibility Diagnostics. Remote Access Ability Support includes:
22 1) Diagnostic or corrective actions necessary to restore proper Product operation; 2) Diagnostic
23 actions which attempt to identify the cause of system problem; 3) Correction of data file
24 problem; and 4) Product modifications and diagnostics the Contractor's product specialists will
25 provide via an approved County method. The County will provide any required hardware and
26 equipment necessary at the County for the Contractor support.
27 F. Error Correction Process. If, during the term of this Agreement, the County determines
28 that software error(s) exist, the County will first follow the error procedures specified in the
A-6
County of Fresno
P-24-566
Exhibit A - Scope of Work
1 System Documentation. If following the error procedures does not correct the software error, the
2 County shall immediately notify the Contractor, setting forth the defects noted with specificity.
3 Upon notification of a reported software error, the Contractor shall have five days to determine if
4 any actual software error exists, and if so, endeavor to correct such software errors. At the
5 Contractor's request, additional time to solve difficult problems will not be unreasonably
6 withheld. Within 15 days of correction, the County shall retest the System Software, and report
7 any other software errors.
8 G. Technical Information. The Contractor will provide technical information to the County
9 from time to time. Such information may cover areas such as Product usage, third party
10 software, and other matters considered relevant to the County- by the Contractor. The
11 Contractor will provide technical information at the discretion of the Contractor, which will not be
12 unreasonably withheld.
13 15. Product Descriptions. CompuTrust Case Management and Trust Accounting Software
14 System license.
15 16. Scope of Service. The Contractor agrees to provide the following services:
16 A. System Maintenance and Support. System maintenance and support includes System
17 Updates as they are released by the Contractor. The County will identify the first day of
18 production use and communicate that to the Contractor. The Contractor will support day-
19 to-day operation of the System, including the services defined in Section 15 of this
20 Exhibit A.
21 B. Matters Not Covered by Support. The following matters are not covered as part of the
22 County's Annual Usage Fee Support, and if the County requests any of the following
23 services, the Contractor will charge at the prevailing per diem rate:
24 1. Any problem resulting from the misuse, improper use, alteration, or damage of
25 the Program.
26 2. Any problem caused by County modifications to any version of the Program.
27 3. Any problem resulting from computer software other than the Program.
28
A-7
County of Fresno
P-24-566
Exhibit A - Scope of Work
1 4. Any problem relating to the County computer hardware or peripherals, which
2 includes printers. Adding, modifying, and deleting printers to the County network
3 is expressly not covered.
4 5. Any problems relating to older unsupported versions.
5 6. Any support resulting from a system crash. This includes rebuilding from a
6 backup. Restoring after a system failure or reloading software as a result of not
7 having a reliable backup.
8 7. Reloading software other than CT as a result of a system upgrade. Assistance
9 with reloading CT after a system upgrade is available if scheduled in advance.
10 This support is limited to two hours, and the Contractor reserves the right invoice
11 the County for further assistance in excess of two hours.
12 8. Assistance with backups of the data or the operating system.
13 9. Administration and any support/training of the operating system.
14 10. Initial or reinstallation of the operating system.
15 11. CT Support, as a result of users not reconciling their bank account(s) in a timely
16 manner.
17 12. CT support, as a result of users not running Database Backup and Recovery and
18 resolving balancing issues in a timely manner. The Contractor reserves the right
19 to charge additional service fees if the County seeks assistance for matters that
20 do not directly relate to the operation of the Program. The Contractor does not
21 hold itself out as a professional expert or adviser regarding the County's
22 computer hardware, Third Party Software, computer peripherals or information
23 needs. In particular, the Contractor does not support the County's printers. The
24 Contractor is not responsible for obsolescence of the Program that may result
25 from changes in the County's requirements.
26 C. Additional Services. The Contractor may provide additional services at an additional
27 charge. Charges will be as identified in Exhibit B of this Agreement; or, if not included in
28 this Agreement, charges will be at current prices in effect at the time goods or services
A-8
County of Fresno
P-24-566
Exhibit A - Scope of Work
1 are provided and are subject to the maximum compensation of the Agreement. Any
2 Additional Services requested by the County and determined by the Contractor to be
3 billable by the Contractor must be identified as a chargeable service prior to the service
4 being performed and must be approved in writing in advance by the County's Contract
5 Administrator. Additional Services include, but are not limited to, the following:
6 1. Additional Training. Additional training at a county facility is available upon the
7 County's request, at an additional charge, under the terms of this Agreement as
8 set forth in Exhibit B. The Contractor will review requests for additional training,
9 which must be requested in writing in advance by the County's Contract
10 Administrator. Charges will be at the rates identified in Exhibit B.
11 2. Data and System Corrections. Data and System Corrections include any
12 corrective actions accomplished by the Contractor via VPN, which are necessary
13 due to the County errors or unauthorized source code or data access by the
14 County. Unauthorized access to the data is defined as any county editing of data
15 through other than normal system usage as defined in System Documentation.
16 Unauthorized access to source code is defined as any county access whatsoever
17 to system source code. Services provided by the Contractor are not billable when
18 they result from errors caused by CT or instruction provided by the Contractor.
19 3. Site Visits. Site visits to county sites, as may be requested in writing by the
20 County, and that are within the scope of the project services, are available for
21 reasons including, but not limited to, (1) additional system training on hardware
22 or software usage; (2) resolution of system difficulties not resulting from actions
23 by, or otherwise the responsibility of the Contractor (as determined by mutual
24 agreement between the Contractor and the County); (3) installation of Software
25 Releases; and (4) assistance in equipment maintenance, movement or
26 diagnosis. The Contractor will review site visits outside of the scope of project
27 services, which must be requested in writing in advance by the County's Contract
28 Administrator. Charges will be at rates identified in Exhibit B.
A-9
County of Fresno
P-24-566
Exhibit A - Scope of Work
1 4. Custom Programming. Requests for supplemental programming or
2 customization of system features not covered under this Agreement are available
3 to the County. Such requests will be reviewed by the Contractor and must be
4 requested in writing in advance by the County's Contract Administrator. Charges
5 will be at rates identified in Exhibit B.
6 D. System Updates and New Products.
7 1. System Updates. From time to time, the Contractor will develop and provide
8 System Updates to the County for the County's licensed Contractor software.
9 System Updates shall be subject to the terms and conditions of this Agreement,
10 shall be deemed licensed System Software hereunder, and will be made
11 available to the County at no additional charge to the County. System Updates
12 will be made available to the County at the discretion of the Contractor and will
13 not be unreasonably withheld.
14 2. New Products. The Contractor may from time to time release new software with
15 capabilities substantially different from or greater than the System Software
16 ("New Products"), which therefore do not constitute System Updates. These New
17 Products will be made available to the County at a cost not to exceed the
18 Contractor's then standard rates for similarly situated customers.
19 3. Operating System Updates. The application must run on an operating system
20 (O/S) that is consistently and currently supported by the operating system
21 vendor. O/S applications are expected to be assessed for maintenance no less
22 than once per year. An outdated or unsupported O/S will not be implemented on
23 the production network. The County will notify the Contractor when a critical
24 security patch is released. The Contractor will have 30 days to ensure application
25 can perform in the updated environment. With approval from the Contractor, the
26 County will apply patches to both the operating system, and non-critical security
27 subsystems as releases are available from operating system vendors. The
28 application must perform in this environment. The Contractor shall update O/S
A-10
County of Fresno
P-24-566
Exhibit A - Scope of Work
1 applications no less than once per year from any given date. These patches
2 include critical O/S updates and security patches.
3 4. Anti-virus Management. The County will actively run anti-virus management,
4 where appropriate, on all application servers and PCs. The application is
5 expected to perform adequately while anti-virus management is active.
6 5. Adherence to Change Control Process. The Contractor must adhere to the
7 County's Change Control Process, which shall be provided to the Contractor in
8 writing. The County employs a procedure to implement updates, upgrades, and
9 version releases to a system that is in production use. This forum allows ISD to
10 inform staff(Help Desk, Network, Server, Database, Security, and Analysts) of
11 upcoming changes to a production system. The Contractor must inform ISD a
12 minimum of one week prior to any planned, non-emergency changes, so that the
13 Change Control Process may be followed.
14 6. Other. Unless otherwise specified for third-party software, the Contractor shall
15 provide standard documentation in electronic form (via the Internet or File
16 Transfer Protocol (FTP)). The System runs in a Local Area Network and Web
17 environment. As such, the performance of the System is directly related to,
18 among other things: available network bandwidth, and the performance of other
19 applications. For this reason, the Contractor makes no guarantees as to System
20 response time.
21 E. Hardware/Software Requirements.
22 1. Software:
23 i. MS IIS 7.5 or newer- Web Deployment Tool
24 ii. MS .Net Framework 4.7.1
25 iii. MS SQL Server 2014 or newer, CLR enabled
26 iv. MS Analysis Server (optional)
27 v. MS Reporting Server (optional)
28 vi. SMTP server access to send out emails
A-11
County of Fresno
P-24-566
Exhibit A - Scope of Work
1 2. Hardware: (The Web App does not have a specific minimum requirement; these
2 are dictated by the O/S and the database server)
3 i. Memory 16GB. Recommended 20GB
4 ii. Disk space should be adopted in accordance with the volume of
5 documents and images to be stored.
6 iii. Minimum four CPU's, AMD Opteron, AMD Athlon 64, Intel Xeon with Intel
7 EM64T support, Intel Pentium IV with EM64T support.
8 iv. Speed, 2.0 GHz or faster.
9 3. Workstations:
10 i. The client workstation or device should have installed the appropriate
11 software in order to display, edit and/or print these files (PDF, Word,
12 images, audio, video, etc.) that may be stored or generated in the server.
13 ii. Current Browser Support
14 1. Browsers with no HTML 5 implemented are not supported
15 2. Browsers will NOT support JAVA. If JAVA is required, the
16 Contractor must ensure that Open JDK is supported.
17 3. Browsers in Beta stage are not supported
18 4. All Discontinued browsers are not supported for example: IE &
19 Netscape
20
21
22
23
24
25
26
27
28
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County of Fresno
P-24-566
Exhibit B
Compensation
The Contractor will be compensated for the Contractor's Products and Services under
this Agreement as provided in this Exhibit B subject to the maximum compensation amount as
described in Article 3 of this Agreement. The Contractor is not entitled to any compensation
except as expressly provided in this Exhibit B.
1. Fees. The County agrees to pay all fees, costs, and other amounts as specified in each
Order or SOW approved by County, subject to the maximum compensation amount as
described in Section 3 of this Agreement.
YEAR TERM Total Users Cost
YEAR 1 07/01/2024-06/30/2025 22 Users $55,540
YEAR 2 (Optional) 07/01/2025-06/30/2026 22 Users $57,206
YEAR 3 (Optional) 07/01/2026-06/30/2027 22 Users $58,922
Funding included for any additional, as-needed, licenses or services $17,167
TOTAL possible compensation for the entire potential three-year term $188,835
Additional Service Fees shall only be paid to the Contractor if any such services set forth herein
are performed by the Contractor upon the County's written request; these additional fees are
also subject to the maximum compensation amount.
Additional Optional Services Cost
On-site training (includes all travel expenses) $1,400.00 per day
Billable support or Programming $175.00 per hour
B-1
County of Fresno
P-24-566
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
County of Fresno
P-24-566
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
County of Fresno
P-24-566
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 an
annual aggregate of Two Million Dollars ($2,000,000). This policy must be issued on a
per occurrence basis. Coverage must include products, completed operations, property
damage, bodily injury, personal injury, and advertising injury. The Contractor shall obtain
an endorsement to this policy naming the County of Fresno, its officers, agents,
employees, and volunteers, individually and collectively, as additional insureds, but only
insofar as the operations under this Agreement are concerned. Such coverage for
additional insureds will apply as primary insurance and any other insurance, or self-
insurance, maintained by the County is excess only and not contributing with insurance
provided under the Contractor's policy.
(B) Automobile Liability. Automobile liability insurance with limits of not less than One
Million Dollars ($1,000,000) per occurrence for bodily injury and for property damages.
Coverage must include any auto used in connection with this Agreement.
(C)Workers Compensation. Workers compensation insurance as required by the laws of
the State of California with statutory limits.
(D) Employer's Liability. Employer's liability insurance with limits of not less than One
Million Dollars ($1,000,000) per occurrence for bodily injury and for disease.
(E) Technology Professional Liability (Errors and Omissions). Technology professional
liability (errors and omissions) insurance with limits of not less than Two Million Dollars
($2,000,000) per occurrence and in the aggregate. Coverage must encompass all of the
Contractor's obligations under this Agreement, including but not limited to claims
involving Cyber Risks.
(F) Cyber Liability. Cyber liability insurance with limits of not less than Two Million Dollars
($2,000,000) per occurrence. Coverage must include claims involving Cyber Risks. The
cyber liability policy must be endorsed to cover the full replacement value of damage to,
alteration of, loss of, or destruction of intangible property (including but not limited to
information or data) that is in the care, custody, or control of the Contractor.
Definition of Cyber Risks. "Cyber Risks" include but are not limited to (i) Security
Breach, which may include Disclosure of Personal Information to an Unauthorized Third
Party; (ii) data breach; (iii) breach of any of the Contractor's obligations under 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
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County of Fresno
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Exhibit D
related to the Contractor's obligations under this Agreement regarding electronic
information, including Personal Information; (xv) fraudulent instruction; (xvi) funds
transfer fraud; (xvii) telephone fraud; (xviii) network security; (xix) data breach response
costs, including Security Breach response costs; (xx) regulatory fines and penalties
related to the Contractor's obligations under this Agreement regarding electronic
information, including Personal Information; and (xxi) credit monitoring expenses.
2. Additional Requirements
(A) Verification of Coverage. Within 30 days after the Contractor signs this Agreement,
and at any time during the term of this Agreement as requested by the County's Risk
Manager or the County Administrative Office, the Contractor shall deliver, or cause its
broker or producer to deliver, to the County Risk Manager, at 2220 Tulare Street, 16th
Floor, Fresno, California 93721, or 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.
(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.
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County of Fresno
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Exhibit D
(B) Acceptability of Insurers. All insurance policies required under this Agreement must be
issued by admitted insurers licensed to do business in the State of California and
possessing at all times during the term of this Agreement an A.M. Best, Inc. rating of no
less than A: VI I.
(C) Notice of Cancellation or Change. For each insurance policy required under this
Agreement, the Contractor shall provide to the County, or ensure that the policy requires
the insurer to provide to the County, written notice of any cancellation or change in the
policy as required in this paragraph. For cancellation of the policy for nonpayment of
premium, the Contractor shall, or shall cause the insurer to, provide written notice to the
County not less than 10 days in advance of cancellation. For cancellation of the policy
for any other reason, and for any other change to the policy, the Contractor shall, or shall
cause the insurer to, provide written notice to the County not less than 30 days in
advance of cancellation or change. The County in its sole discretion may determine that
the failure of the Contractor or its insurer to timely provide a written notice required by
this paragraph is a breach of this Agreement.
(D) County's Entitlement to Greater Coverage. If the Contractor has or obtains insurance
with broader coverage, higher limits, or both, than what is required under this
Agreement, then the County requires and is entitled to the broader coverage, higher
limits, or both. To that end, the Contractor shall deliver, or cause its broker or producer
to deliver, to the County's Risk Manager certificates of insurance and endorsements for
all of the coverages that have such broader coverage, higher limits, or both, as required
under this Agreement.
(E) Waiver of Subrogation. The Contractor waives any right to recover from the County, its
officers, agents, employees, and volunteers any amounts paid under the policy of
worker's compensation insurance required by this Agreement. The Contractor is solely
responsible to obtain any policy endorsement that may be necessary to accomplish that
waiver, but the Contractor's waiver of subrogation under this paragraph is effective
whether or not the Contractor obtains such an endorsement.
(F) County's Remedy for Contractor's Failure to Maintain. If the Contractor fails to keep
in effect at all times any insurance coverage required under this Agreement, the County
may, in addition to any other remedies it may have, suspend, or terminate this
Agreement upon the occurrence of that failure, or purchase such insurance coverage,
and charge the cost of that coverage to the Contractor. The County may offset such
charges against any amounts owed by the County to the Contractor under this
Agreement.
(G)Subcontractors. The Contractor shall require and verify that all subcontractors used by
the Contractor to provide services under this Agreement maintain insurance meeting all
insurance requirements provided in this Agreement. This paragraph does not authorize
the Contractor to provide services under this Agreement using subcontractors
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County of Fresno
P-24-566
Exhibit E
Health Insurance Portability and Accountability Act (HIPAA)
1. The County is a "Covered Entity," and the Contractor is a "Business Associate," as
these terms are defined by 45 CFR 160.103. In connection with providing services under the
Agreement, the parties anticipate that the Contractor will create and/or receive Protected Health
Information ("PHI")from or on behalf of the County. The parties enter into this Business Associate
Agreement (BAA)to comply with the Business Associate requirements of HIPAA, to govern the
use and disclosures of PHI under this Agreement. "HIPAA Rules" shall mean the Privacy, Security,
Breach Notification, and Enforcement Rules at 45 CFR Parts 160 and 164. The parties to this
Agreement shall be in strict conformance with all applicable federal and State of California laws
and regulations, including, but not limited to California Welfare and Institutions Code sections 5328,
10850, and 14100.2 et seq.; 42 CFR 2; 42 CFR 431; California Civil Code section 56 et seq.; the
Health Insurance Portability and Accountability Act of 1996, as amended ("HIPAA"), including, but
not limited to, 45 CFR Parts160, 45 CFR 162, and 45 CFR 164; the Health Information Technology
for Economic and Clinical Health Act ("HITECH") regarding the confidentiality and security of
patient information, including, but not limited to 42 USC 17901 et seq.; and the Genetic Information
Nondiscrimination Act ("GINA") of 2008 regarding the confidentiality of genetic information.
Except as otherwise provided in this Agreement, the Contractor, as a business
associate of the County, may use or disclose Protected Health Information ("PHI") to perform
functions, activities, or services for or on behalf of the County, as specified in this Agreement,
provided that such use or disclosure shall not violate HIPAA Rules. The uses and disclosures of
PHI may not be more expansive than those applicable to the County, as the "Covered Entity"
under the HIPAA Rules, except as authorized for management, administrative or legal
responsibilities of the Contractor.
2. The Contractor, including its subcontractors and employees, shall protect from
unauthorized access, use, or disclosure of names and other identifying information, including
genetic information, concerning persons receiving services pursuant to this Agreement, except
where permitted in order to carry out data aggregation purposes for health care operations [45
CFR§§ 164.504(e)(2)(i), 164.504(e)(2)(ii)(A), and 164.504(e)(4)(i)]. This pertains to any and all
persons receiving services pursuant to a County-funded program. This requirement applies to
electronic PHI. The Contractor shall not use such identifying information or genetic information for
any purpose other than carrying out the Contractor's obligations under this Agreement.
3. The Contractor, including its subcontractors and employees, shall not disclose any
such identifying information or genetic information to any person or entity, except as otherwise
specifically permitted by this Agreement, authorized by Subpart E of 45 CFR Part 164 or other law,
required by the Secretary of the United States Department of Health and Human Services
("Secretary"), or authorized by the client/patient in writing. In using or disclosing PHI that is
permitted by this Agreement or authorized by law, the Contractor shall make reasonable efforts to
limit PHI to the minimum necessary to accomplish intended purpose of use, disclosure, or request.
4. For purposes of the above sections, identifying information shall include, but not be
limited to, name, identifying number, symbol, or other identifying particular assigned to the
individual, such as fingerprint or voiceprint, or photograph.
5. For purposes of the above sections, genetic information shall include genetic tests
of family members of an individual or individual(s), manifestation of disease or disorder of family
members of an individual, or any request for or receipt of genetic services by individual or family
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County of Fresno
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Exhibit E
members. Family member means a dependent or any person who is first, second, third, or fourth
degree relative.
6. Mitigation of Harmful Effects
The Contractor shall mitigate, to the extent practicable, any harmful effect that is
suspected or known to the Contractor of an unauthorized access, viewing, use, disclosure, or
breach of PHI by the Contractor or its subcontractors in violation of the requirements of these
provisions. The Contractor must document suspected or known harmful effects and the
outcome.
7. The Contractor's Subcontractors
The Contractor shall ensure that any of its contractors, including subcontractors, if
applicable, to whom the Contractor provides PHI received from or created or received by the
Contractor on behalf of the County, agree to the same restrictions, safeguards, and conditions
that apply to the Contractor with respect to such PHI and to incorporate, when applicable, the
relevant provisions of these provisions into each subcontract or sub-award to such agents or
subcontractors.
Nothing in this section 11 or this Exhibit F authorizes the Contractor to perform services
under this Agreement using subcontractors.
8. Employee Training and Discipline
The Contractor shall train and use reasonable measures to ensure compliance with the
requirements of these provisions by employees who assist in the performance of functions or
activities on behalf of the County under this Agreement and use or disclose PHI, and discipline
such employees who intentionally violate any provisions of these provisions, which may include
termination of employment.
9. Termination for Cause
Upon the County's knowledge of a material breach of these provisions by the Contractor,
the County will either:
A. Provide an opportunity for the Contractor to cure the breach or end the
violation, and the County may terminate this Agreement if the Contractor does not cure the
breach or end the violation within the time specified by the County; or
B. Immediately terminate this Agreement if the Contractor has breached a
material term of this Exhibit F and cure is not possible, as determined by the County.
C. If neither cure nor termination is feasible, the County's Privacy Officer will
report the violation to the Secretary of the U.S. Department of Health and Human Services.
10. Judicial or Administrative Proceedings
The County may terminate this Agreement if: (1) the Contractor is found guilty in a
criminal proceeding for a violation of the HIPAA Privacy or Security Laws or the HITECH Act; or
(2) there is a finding or stipulation in an administrative or civil proceeding in which the Contractor
is a party that the Contractor has violated a privacy or security standard or requirement of the
HITECH Act, HIPAA or other security or privacy laws.
11. Effect of Termination
Upon termination or expiration of this Agreement for any reason, the Contractor shall
return or destroy all PHI received from the County (or created or received by the Contractor on
behalf of the County) that the Contractor still maintains in any form, and shall retain no copies of
such PHI. If return or destruction of PHI is not feasible, the Contractor shall continue to extend
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County of Fresno
P-24-566
Exhibit E
the protections of these provisions to such information, and limit further use of such PHI to those
purposes that make the return or destruction of such PHI infeasible. This provision applies to
PHI that is in the possession of subcontractors or agents, if applicable, of the Contractor. If the
Contractor destroys the PHI data, a certification of date and time of destruction shall be
provided to the County by the Contractor.
12. Compliance with Other Laws
15.15 To the extent that other state and/or federal laws provide additional, stricter
and/or more protective privacy and/or security protections to PHI or other confidential
information covered under this BAA, the Contractor agrees to comply with the more protective of
the privacy and security standards set forth in the applicable state or federal laws to the extent
such standards provide a greater degree of protection and security than HIPAA Rules or are
otherwise more favorable to the individual.
13. Disclaimer
The County makes no warranty or representation that compliance by the Contractor with
these provisions, the HITECH Act, or the HIPAA Rules, will be adequate or satisfactory for the
Contractor's own purposes or that any information in the Contractor's possession or control, or
transmitted or received by the Contractor, is or will be secure from unauthorized access,
viewing, use, disclosure, or breach. The Contractor is solely responsible for all decisions made
by the Contractor regarding the safeguarding of PHI.
14. Amendment
The parties acknowledge that Federal and State laws relating to electronic data security
and privacy are rapidly evolving and that amendment of this Exhibit F may be required to
provide for procedures to ensure compliance with such developments. The parties specifically
agree to take such action as is necessary to amend this agreement in order to implement the
standards and requirements of the HIPAA Rules, the HITECH Act and other applicable laws
relating to the security or privacy of PHI. The County may terminate this Agreement upon thirty
(30) days written notice in the event that the Contractor does not enter into an amendment
providing assurances regarding the safeguarding of PHI that the County in its sole discretion,
deems sufficient to satisfy the standards and requirements of the HIPAA Rules, and the
HITECH Act.
15. No Third-Party Beneficiaries
Nothing expressed or implied in the provisions of this Exhibit F is intended to confer, and
nothing in this Exhibit F does confer, upon any person other than the County or the Contractor
and their respective successors or assignees, any rights, remedies, obligations, or liabilities
whatsoever.
16. Interpretation
The provisions of this Exhibit F shall be interpreted as broadly as necessary to
implement and comply with the HIPAA Rules, and applicable State laws. The parties agree that
any ambiguity in the terms and conditions of these provisions shall be resolved in favor of a
meaning that complies and is consistent with the HIPAA Rules.
17. Regulatory References
A reference in the terms and conditions of these provisions to a section in the HIPAA
Rules means the section as in effect or as amended.
18. Survival
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County of Fresno
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Exhibit E
The respective rights and obligations of the Contractor as stated in this Exhibit F survive
the termination or expiration of this Agreement.
19. No Waiver of Obligation
Change, waiver or discharge by the County of any liability or obligation of the Contractor
under this Exhibit F on any one or more occasions is not a waiver of performance of any
continuing or other obligation of the Contractor and does not prohibit enforcement by the County
of any obligation on any other occasion.
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