HomeMy WebLinkAbout31980Agreement 15-020
Contract between the
County of Fresno
and
ECS Imaging Inc.
Agreement 15-020
1 AGREEMENT
2 THIS AGREEMENT is made and entered into this 6th day of January , 2015, by and
3 between the COUNTY OF FRESNO, a political subdivision of the State of California,
4 hereinafter referred to as "COUNTY", and ECS Imaging Inc., whose corporate address is at
5 5905 Brockton Ave., Suite C, Riverside, CA 92506, hereinafter referred to as "CONTRACTOR".
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7 RECITALS
8 WHEREAS, COUNTY desires to purchase software license, installation, training, data
9 conversion, and software maintenance of Laserfiche, from CONTRACTOR; as set forth in the
10 COUNTY's Request for Proposal (RFP) 962-5267, dated May 22,2014; and
11 WHEREAS, CONTRACTOR represented, via its Response to COUNTY's RFP No 962-5267,
12 dated July 10, 2014, that the software license, installation, training, data conversion, and
13 software maintenance of Laserfiche from CONTRACTOR, along with professional services from
14 CONTRACTOR would meet the stated needs of the COUNTY; and
15 WHEREAS, COUNTY desires to purchase from CONTRACTOR continuous maintenance and
16 support for Laserfiche; and
17 WHEREAS, COUNTY and CONTRACTOR desire to execute this Agreement for the purchase
18 of the right to use the software license, and maintenance and support of the Laserfiche
19 software.
20 NOW, THEREFORE, for and in consideration of the promises herein, and for other good and
21 valuable consideration, the parties agree as follows:
22
23 W I T N E S S E T H
24 I. DOCUMENTS CONSTITUTING AGREEMENT
25 This Agreement includes COUNTY's RFP No 962-5267, and CONTRACTOR's Response to
26 RFP No 962-5267. The originals of COUNTY'S RFP No 962-5267 and CONTRACTOR's
27 Response to RFP No 962-5267 shall be maintained by COUNTY's Purchasing Department
28 located at 4525 N. Hamilton, Fresno, California and are incorporated herein by reference.
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II. DEFINITIONS
The following terms used throughout this Agreement shall be defined as follows:
Acceptance Criteria:
The performance and operating specifications which the System must meet at a
minimum, as set out or referred to in this Agreement.
Acceptance Test:
The process of testing a specific function or functions to determine if the operation or
operations are as stated in this Agreement.
Change Control Process:
Process used by the Information Technology Services Division of COUNTY's Internal
Services Department (ITSD) to inform staff of new or updated production use systems.
County System Hardware:
The central processing units owned or leased by COUNTY which are described in this
Agreement on which COUNTY is licensed to use the System Software, any back-up
equipment for such central processing units, and any peripheral hardware such as
terminals, printers, and Personal Computers as described in this Agreement.
Final System Acceptance:
When it is determined by COUNTY that all necessary deliverables have been delivered,
the data has been converted, the base Laserfiche software has been successfully
installed and tested, and the Laserfiche performs all functions in accordance with its
specifications.
First Production Use:
Date of first use of the system in a production environment.
License:
The meaning assigned to the term 'License" as defined in Section 111-A of this Agreement
and the rights and obligations which it creates under the laws of the United States of
America and the State of California including without limitation, copyright and intellectual
property law.
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1 Monies:
2 The terms "Monies", "Charges", "Price", and "Fees" will be considered to be equivalent.
3 Public Records:
4 Public Records includes any writing containing information relating to the conduct of the
5 public's business that is prepared, owned, used, or retained by any state or local agency,
6 regardless of physical form or characteristics.
7 Supplier:
8 The terms "Supplier", "Vendor", and "ESC Imaging Inc." all refer to CONTRACTOR and
9 are considered to be equivalent throughout this Agreement.
10 System:
11 The System Software and System Documentation, collectively. Reference to the
12 "System" shall include any component thereof. All modifications and enhancements to
13 the System shall be deemed to be part of the System as defined herein and shall be
14 subject to all terms and conditions set forth herein. The System consists of Laserfiche,
15 which supports various Fresno County departments, all interfaces, and third party
16 software required for the system to function.
17 System Documentation:
18 The documentation relating to the System Software, and all manuals, reports, brochures,
19 sample runs, specifications and other materials comprising such documentation provided
20 by CONTRACTOR in connection with the System Software pursuant to this Agreement.
21 System Operation:
22 The general operation of COUNTY's hardware and all software including, but not limited
23 to, system restarts, configuration and operation of system peripherals (such as printers,
24 modems, and terminals), installation of new software releases, and other related
25 activities.
26 System Installation:
27 All software has been delivered, has been physically loaded on a Computer, and
28 COUNTY has successfully executed program sessions.
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1 System Software:
2 Laserfiche, that certain computer software described in this Agreement provided by
3 CONTRACTOR, and all interfaces, coding, tapes, disks, modules and similar materials
4 comprising such software or on which it is stored. System Software shall not include
5 operating system software, or any other Third-Party Software.
6 User:
7 The terms "User", "Customer'' and "Licensee" all refer to COUNTY and are considered
8 to be equivalent throughout this Agreement.
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Ill.
A)
OBLIGATIONS OF THE CONTRACTOR
SOFTWARE LICENSE
1) GRANT OF LICENSE
CONTRACTOR grants to COUNTY and COUNTY accepts a non-exclusive,
non-transferable, perpetual license to use Laserfiche that is subject to the terms
and conditions set forth in this Agreement.
2) SCOPE OF LICENSE
The license granted herein shall consist solely of the non-exclusive, non-
transferable right of COUNTY to operate the System Software in support of various
COUNTY departments, including COUNTY's Probation Department and
Department of Public Health.
3) OWNERSHIP
The parties acknowledge and agree that, as between CONTRACTOR and
COUNTY, title and full ownership of all rights in and to the System Software,
System Documentation, and all other materials provided to COUNTY by
CONTRACTOR under the terms of this Agreement shall remain with
CONTRACTOR. The parties acknowledge and agree that, as between
CONTRACTOR and COUNTY, full ownership of all rights in and to all COUNTY
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data, whether in magnetic or paper form, including without limitation printed output
from the System, are the exclusive property of COUNTY.
4) POSSESSION, USE AND UPDATE OF SOFTWARE
COUNTY agrees that only COUNTY will use the System Software for its
own internal purposes. CONTRACTOR may, at reasonable times, inspect
COUNTY's premises and equipment to verify that all of the terms and conditions of
this license are being observed. CONTRACTOR may create, from time to time,
updated versions of the System Software and System Documentation and
CONTRACTOR shall make such System Updates available to COUNTY. All
System Updates shall be licensed under the terms of this Agreement. COUNTY
agrees to follow the prescribed instructions for updating System Software and
System Documentation provided to COUNTY by CONTRACTOR. COUNTY must
authorize all System Updates in writing.
5) TRANSFER OF SOFTWARE
COUNTY shall not rent, lease, license, distribute, sell, transfer, or assign
this license, the System Software, or the System Documentation, or any of the
information contained therein other than COUNTY data, to any other person or
entity, whether on a permanent or temporary basis, and any attempt to do so will
constitute a breach of this Agreement. No right or license is granted under this
Agreement for the use or other utilization of the licensed programs, directly or
indirectly, for the benefit of any other person or entity, except as provided in this
Agreement.
6) POSSESSION AND USE OF SOURCE CODE
Source code and other material that results from custom programming by
CONTRACTOR released to COUNTY under this license shall be deemed
CONTRACTOR software subject to all of the terms and conditions of the software
license set forth in this Agreement. The scope of COUNTY's permitted use of the
custom source code under this license shall be limited to maintenance and support
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of the System Software. For purposes of this Section, the term "maintenance and
support" means correction of System Software errors and preparation of System
Software modifications and enhancements. If COUNTY creates computer code in
the process of enhancing the System Software, that specific new code shall be
owned by COUNTY and may be used by COUNTY's employees, officers, or agents
for COUNTY's own internal business operations. However, if COUNTY's
enhancement results in the creation of a derivative work from the System Software,
the copyright to such derivative work shall be owned by CONTRACTOR and
COUNTY's rights to use such derivative work shall be limited to those granted with
10 respect to the System Software in this Agreement.
11 B) SERVICES TO BE PROVIDED BY CONTRACTOR TO COUNTY
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1) SYSTEM INSTALLATION
CONTRACTOR shall supply and install Laserfiche in accordance with this
Agreement. Such software installation shall include hardware/network review and
recommendations, consultation, software installation and remote technical support.
2) TRAINING
CONTRACTOR will conduct "train-the-trainer" training of COUNTY staff at a
COUNTY-designated location and at a time approved in writing by COUNTY as
specified in CONTRACTOR's Response to RFP No 962-5267.
3) DOCUMENTATION
CONTRACTOR shall provide to COUNTY Laserfiche System
Documentation, which shall consist of electronic media files. The electronic media
files must be printable using PC software normally available at COUNTY.
CONTRACTOR shall provide new System Documentation corresponding to all new
Software Upgrades. COUNTY may print additional copies of all documentation. All
26 System Documentation is to be used by COUNTY only for the purposes identified
27 within this Agreement.
28 C) SYSTEM MAINTENANCE AND SUPPORT BY CONTRACTOR
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1 System maintenance and support includes System Updates as they are released by
2 CONTRACTOR, including updates as required as a result of Federal Regulatory Changes.
3 The first day of production use will be identified by COUNTY and communicated to
4 CONTRACTOR. CONTRACTOR will support day-to-day operation of the System as
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follows:
1) SUPPORT HOURS/SCOPE:
Provide technical assistance by phone during normal coverage hours (7:30 a.m.
to 5:00 p.m. Pacific Standard Time (PST), Monday through Friday, except
CONTRACTOR and COUNTY holidays), toll-free telephone assistance to keep
the System in, or restored to, normal operating condition. The object of this
support will be to answer specific questions related to the System Software and
the application thereof. Support provided under this Agreement does not include
training of new personnel (after initial staff is trained), operation of hardware, or
solving other hardware/software problems unrelated to the System Software.
2) SUPPORT RESPONSE:
During the term of this Agreement, CONTRACTOR will (a) correct any error or
malfunctions in the System as supplied by CONTRACTOR which prevents it from
operating in conformance with the specifications set forth in this Agreement or (b)
provide a commercially reasonable alternative that will conform to the
specifications set forth in this Agreement.
If analysis by CONTRACTOR indicates a reported problem is caused by a
reproducible error or malfunction in the then-current release of the System
Software as supplied and maintained by CONTRACTOR that significantly impacts
effective use of the System by COUNTY, CONTRACTOR will, if the System is
inoperable, as reported by COUNTY, provide continuous effort to correct the error
or to resolve the problem by providing a circumvention.
In such cases, CONTRACTOR will provide COUNTY with corrective information,
such as corrective documentation and/or program code. CONTRACTOR will
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endeavor to respond to COUNTY's service request no later than four (4) business
hours from the time a call has been received by CONTRACTOR. In the event
that a person with the necessary expertise is not available when the call is
received, CONTRACTOR will endeavor to respond to the service request no later
than within one (1) business day.
3) REMOTE VIRTUAL PRIVATE NETWORK (VPN) DIAGNOSTICS
Remote VPN Diagnostics Support includes:
a. Diagnostic or corrective actions necessary to restore proper Laserfiche
operation;
b. Diagnostic actions which attempt to identify the cause of system
problem;
c. Correction of data file problem; and
d. Laserfiche modifications
CONTRACTOR product specialists will provide diagnostics via VPN on
Laserfiche. COUNTY will provide any required hardware and equipment necessary
at COUNTY for CONTRACTOR VPN support.
4) ERROR CORRECTION PROCESS:
If during the term of this Agreement COUNTY determines that software error(s)
exist, COUNTY will first follow the error procedures specified in the System
Documentation. If following the error procedures does not correct the software
error, COUNTY shall immediately notify CONTRACTOR, setting forth the defects
noted with specificity. Upon notification of a reported software error,
CONTRACTOR shall have five (5) days to determine if any actual software error
exist and, if so, endeavor to correct such software errors. At CONTRACTOR's
request, additional time to solve difficult problems will not be unreasonably
withheld. Within fifteen (15) days of correction, COUNTY shall retest the System
Software and report any other software errors.
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5) TECHNICAL INFORMATION
CONTRACTOR will provide technical information to COUNTY from time to
time. Such information may cover areas such as Laserfiche usage, third party
software, and other matters considered relevant to COUNTY by CONTRACTOR.
5 Technical information will be provided at the discretion of CONTRACTOR, but will
6 not be unreasonably withheld.
7 D) ADDITIONAL SYSTEM MAINTENANCE SERVICES BY CONTRACTOR
8 CONTRACTOR may provide additional maintenance services ("Additional
9 Maintenance and Support Services" or "Additional Maintenance Services") at an additional
1 0 charge. Charges will be as identified in Section VII-G of this Agreement; or, if not included
11 in this Agreement, charges will be at current prices in effect at the time goods or services
12 are provided. Any Additional Maintenance and Support Services requested by COUNTY
13 and determined by CONTRACTOR to be billable by CONTRACTOR must be identified as
14 a chargeable service prior to the service being performed and must be approved in writing
15 in advance by COUNTY's Contract Administrator. Additional Maintenance Services
16 include, but are not limited to, the following:
17 1) ADDITIONAL TRAINING
18 A specific amount of training is specified in this agreement. Additional
19 training at a County facility is available upon request by COUNTY at an additional
20 charge under the terms of this Agreement. Requests for additional training will be
21 reviewed by CONTRACTOR and must be requested in writing in advance by
22 COUNTY's Contract Administrator. Charges will be at rates identified in this
23 Agreement.
24 2) DATA AND SYSTEM CORRECTIONS
25 Data and System Corrections include any corrective actions accomplished
26 by CONTRACTOR on-site or via VPN which are necessary due to COUNTY errors
27 or unauthorized source code or data access by COUNTY. Unauthorized access to
28 the data is defined as any COUNTY editing of data through other than normal
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system usage as defined in System Documentation. Unauthorized access to
source code is defined as any COUNTY access whatsoever to system source
code. Services provided by CONTRACTOR are not billable when they result from
errors caused by MyAvatar, Laserfiche, Mobile or instruction provided by
CONTRACTOR.
3) CUSTOMER SITE VISITS
Site visits to COUNTY sites, as may be requested in writing by COUNTY
and that are within the scope of the project services, are available for reasons such
as, but not limited to, (1) additional system training on hardware or software usage;
(2) resolution of system difficulties not resulting from actions by, or otherwise the
responsibility of CONTRACTOR (as determined by mutual agreement between
CONTRACTOR and COUNTY); (3) installation of Software Releases; and (4)
assistance in equipment maintenance, movement or diagnosis. Site visits outside
of the scope of project services will be reviewed by CONTRACTOR and must be
requested in writing in advance by COUNTY's Contract Administrator. Charges will
be at rates identified in this Agreement.
4) CUSTOM PROGRAMMING
Requests for supplemental programming or customization of system
features not covered under this Agreement are available to COUNTY. Such
requests will be reviewed by CONTRACTOR and must be requested in writing in
advance by COUNTY's Contract Administrator. Charges will be at rates identified
22 in this Agreement.
23 E) CONTRACTOR PROJECT COORDINATOR
24 Upon execution of this Agreement, CONTRACTOR shall appoint a Project Coordinator
25 who will act as the primary contact person to interface with COUNTY for implementation of
26 Laserfiche.
27 F) SYSTEM UPDATES AND NEW PRODUCTS
28 1) SYSTEM UPDATES
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From time to time CONTRACTOR will develop and provide System
Updates to COUNTY for the COUNTY'S licensed CONTRACTOR software.
System Updates shall be subject to the terms and conditions of this Agreement and
shall be deemed licensed System Software hereunder and will be made available
to COUNTY at no additional charge to COUNTY. System Updates will be made
available to COUNTY at the discretion of CONTRACTOR but will not be
unreasonably withheld.
2) NEW PRODUCTS
CONTRACTOR may from time to time release new software with
capabilities substantially different from or greater than the System Software ("New
Products") and which therefore do not constitute System Updates. These New
Products will be made available to COUNTY at a cost not to exceed
13 CONTRACTOR's then standard rates for customers similarly situated.
14 G) OPERATING SYSTEM UPDATES
15 The application must run on an operating system (0/S) that is consistently and
16 currently supported by the operating system vendor. Applications under maintenance are
17 expected to always be within 1 year of current in regards to the 0/S. Outdated or
18 unsupported 0/S will not be implemented on the production network.
19 COUNTY will notify CONTRACTOR when a critical security patch is released.
20 CONTRACTOR will have 30 days to ensure application can perform in the updated
21 environment. With approval from CONTRACTOR, COUNTY will apply patches to both the
22 operating system, and non-critical security subsystems as releases are available from
23 operating system vendors. The application is expected to perform in this environment.
24 CONTRACTOR is expected to keep their software within 1 year of current in order to
25 operate in this environment.
26 H) ANTI-VIRUS MANAGEMENT
27 COUNTY will actively run anti-virus management, where appropriate, on all application
28 servers and PCs. The application is expected to perform adequately while anti-virus
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1 management is active.
2 I) ADHERE TO CHANGE CONTROL PROCESS
3 CONTRACTOR must adhere to COUNTY's Change Control Process, which shall be
4 provided to CONTRACTOR in writing. COUNTY employs a procedure to implement
5 updates, upgrades, and version releases to a system that is in production use. This forum
6 allows ITSD to inform staff (Help Desk, Network, Server, Database, Security, and
7 Analysts) of upcoming changes to a production system. CONTRACTOR must inform
8 ITSD a minimum of 1 week prior to any planned, non-emergency changes so that the
9 Change Control Process may be followed.
10 J) OTHER
11 Unless otherwise specified, for third-party software, CONTRACTOR shall provide
12 standard documentation in electronic form (via the Internet or File Transfer Protocol
13 (FTP)).
14 The system being provided runs in a Local Area Network and Web environment. As such,
15 the performance of the system is directly related to, among other things: available network
16 bandwidth, and the performance of other applications. For this reason, CONTRACTOR
17 makes no guarantees as to system response time.
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19 IV. OBLIGATIONS OF THE COUNTY
20 A) COUNTY CONTRACT ADMINISTRATOR
21 COUNTY appoints its Chief Information Officer (CIO) or his designee, as COUNTY's
22 Contract Administrator with full authority to deal with CONTRACTOR in all matters
23 concerning this Agreement.
24 B) SAFEGUARDING SYSTEM SOFTWARE
25 COUNTY will follow its present practices to safeguard System Software delivered to
26 COUNTY by CONTRACTOR. A copy of COUNTY'S "Information Technology (IT)
27 Standards and Preferences" will be made available upon request.
28 C) BACKUP AND RECOVERY MANAGEMENT
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1 COUNTY utilizes a backup and recovery system written and maintained by Commvault
2 Systems. This application requires a backup agent to run on the server.
3 COUNTY will provide the vendor with an account with appropriate administrative rights
4 to administer the application. The account password is expected to periodically expire.
5 In order for the application to run on COUNTY supported servers, the application must
6 not require the users to have administrative rights on the servers.
7 COUNTY, at all times, during and after the performance of the installation of the
8 System Software, is responsible for maintaining adequate data backups to protect against
9 loss of data.
10 D) ACCEPTANCE TESTING
11 COUNTY shall approve Final System Acceptance when Laserfiche has been
12 successfully tested and satisfactorily performs all functions necessary pursuant to this
13 Agreement, and all deliverables identified in this Agreement as required for acceptance
14 have been received by COUNTY.
15 E) ACCEPTANCE TESTING PROCESS
16 Following delivery and installation, CONTRACTOR shall test Laserfiche along with
17 COUNTY personnel.
18 F) FACILITIES AND PREPARATION
19 COUNTY will at its own expense provide all necessary labor and materials for site
20 preparation, electrical services, and cabling required for System Installation. COUNTY
21 shall receive the System Software and will follow instructions provided by CONTRACTOR
22 to load it on COUNTY's System Hardware to prepare the System for processing.
23 G) SYSTEM HARDWARE AND SYSTEM SOFTWARE
24 COUNTY will at its own expense provide and properly maintain and update on an on-
25 going basis all necessary COUNTY System Software and County System Hardware
26 required to operate Laserfiche. Said COUNTY System Software and County System
27 Hardware shall meet or exceed CONTRACTOR's recommendations.
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1 As part of COUNTY's responsibility for computer infrastructure, COUNTY is
2 responsible for ensuring that data is secure and protected at all times. CONTRACTOR is
3 not responsible for and cannot be held liable for inadvertent data disclosure or theft from
4 COUNTY facilities.
5 H) COUNTY PROJECT MANAGER
6 Upon execution of this Agreement, COUNTY's Contract Administrator shall designate
7 one individual from ITSD who will function as Project Manager with responsibility for day-
a to-day management of the project for implementation of Laserfiche. The Project Manager
9 and COUNTY personnel shall have the necessary and appropriate training and
10 experience to implement the terms of this Agreement. COUNTY acknowledges
11 CONTRACTOR'S reliance on same.
12 I) OTHER COUNTY OBLIGATIONS
13 Technical assistance from COUNTY's ITSD staff will be provided during the
14 performance of the installation of the System Software. In particular, COUNTY will
15 provide:
16 a. Network connectivity and troubleshooting assistance.
17 b. Ability to monitor network traffic and isolate bottlenecks.
18 c. Technical assistance concerning the integration with existing COUNTY
19 systems (if applicable).
20 d. Expertise to handle issues with PCs, printers, and cabling before, during,
21 and after rollout.
22 v. TERM
23 This Agreement shall become effective on the date first written hereinabove for a term of
24 three (3) years, and may be renewed by COUNTY for a maximum of two (2), one (1) year
25 periods, upon provision of written notice by the Director of the Probation or his/her designee, or
26 Department Director of Public Health or his/her designee, and payment of Annual Maintenance
27 Fees.
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VI.
A)
TERMINATION
NON-ALLOCATION OF FUNDS
3 The terms of this Agreement, and the services to be provided thereunder, are
4 contingent on the approval of funds by the appropriating government agency. Should
5 sufficient funds not be allocated, the services provided may be modified, or this
6 Agreement terminated, at any time by giving the CONTRACTOR thirty (30) days advance
7 written notice.
8 B) BREACH OF CONTRACT
9 The COUNTY may immediately suspend or terminate this Agreement in whole or in part,
10 where in the determination of the COUNTY there is:
11 1) An illegal or improper use of funds;
12 2) A failure to comply with any term of this Agreement;
13 3) A substantially incorrect or incomplete report submitted to the COUNTY;
14 4) Improperly performed service.
15 In no event shall any payment by the COUNTY constitute a waiver by the COUNTY of any
16 breach of this Agreement or any default which may then exist on the part of the
17 CONTRACTOR. Neither shall such payment impair or prejudice any remedy available to
18 the COUNTY with respect to the breach or default. The COUNTY shall have the right to
19 demand of the CONTRACTOR the repayment to the COUNTY of any funds disbursed to
20 the CONTRACTOR under this Agreement, which in the judgment of the COUNTY were
21 not expended in accordance with the terms of this Agreement. The CONTRACTOR shall
22 promptly refund any such funds upon demand.
23 CONTRACTOR may, upon thirty (30) days prior written notice to COUNTY, terminate
24 this Agreement if COUNTY fails to comply with any material term or condition of this
25 Agreement unless COUNTY cures such failure within such thirty (30) day period, or other
26 such timeframe as may be mutually agreed upon in writing by the parties.
27 C) WITHOUT CAUSE
28 Under circumstances other than those set forth above, this Agreement may be
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1 terminated by COUNTY upon the giving of thirty (30) days advance written notice of an
2 intention to terminate to CONTRACTOR.
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4 VII. COMPENSATION/INVOICING
5 COUNTY agrees to pay CONTRACTOR and CONTRACTOR agrees to receive
6 compensation as follows:
7 A) ONE-TIME FEES FOR CONVERSION, INSTALLATION, TRAINING, AND
8 PROJECT MANAGEMENT FOR PROBATION
1. Software Installation
2. Laserfiche Server Application
3. Workstation Licenses (35 @ $660)
4. Data Conversion
5. Training (16 Hours total-8 for Admin, 8 for Data Entry)
6. Discount
Total One-time fees
$12,000.00
$50,000.00
$23,100.00
$31,500.00
$3,000.00
($7,310.00)
$ 112,290.00
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16 B) ONE-TIME FEES FOR CONVERSION. INSTALLATION, TRAINING. AND
17 PROJECT MANAGEMENT FOR PUBLIC HEALTH
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1. Software Installation
2. Laserfiche Server Application
3. Workstation Licenses (23 @ $660)
4. Data Conversion
5. Training (16 Hours total-8 for Admin, 8 for Data Entry)
6. Discount
Total One-time fees
C) PAYMENT SCHEDULE FOR ONE-TIME FEES
1. 30% upon all parties signing this Agreement.
2. 20% upon System Installation of Licenses.
3. 20% upon completion of training.
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$12,000.00
$50,000.00
$15,180.00
$45,000.00
$3,000.00
($6.518.00)
$ 118,662.00
1 4. 30% upon COUNTY's First Production Use.
2 D) NOT TO EXCEED AMOUNT FOR ONE-TIME FEES
3 It is understood and agreed that the dollar figures listed hereinabove for one-time fees
4 include applicable taxes which may be subject to change during the period for scheduled
5 payments. In no event shall services performed under this Agreement exceed $230,952
6 for one-time fees.
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E) ANNUAL MAINTENANCE AND SUPPORT FEES:
1. Probation Annual Maintenance Fee
2. Department of Public Health Annual Maintenance Fee
3. Annual Maintenance Fee for other County Departments
Total Annual Maintenance
F) FEE CHANGES
$12,394
$8,263
$75,351
$96,008
13 CONTRACTOR may increase Annual Maintenance and Support fees for years 2-5 of
14 this Agreement, upon thirty (30) days' advance written notice to COUNTY, provided
15 CONTRACTOR shall not increase such fees more than once in any one year period, and
16 provided further that each increase will not exceed the previous fees by the lesser of three
17 percent (3%) per year or (ii) the cumulative percentage increase in the Consumer Price
18 Index, All Urban Consumers for the U.S., during the previous year.
19 G) ADDITIONAL SERVICE FEES/PRICING
20 Interfaces will be negotiated at the time they are needed and will be agreed upon by both
21 parties in writing. All Laserfiche software requires the purchase of annual maintenance at
22 a cost of 20% of the listed Laserfiche software price. This cost applies to the initial
23 purchase (first year) and every year thereafter. Optional, additional services and software
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may include, but are not limited to:
1. On-site System Consulting or Training I day
2. Remote Billable Services I hour
3. Laserfiche Rio Named Full Users (1 00-199 users)
4. Laserfiche Rio Named Full Users (200-499 users)
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$ 1,500.00
$ 175.00
$700.00
$600.00
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5. Laserfiche Rio Named Full Users (500-999 users) $500.00
6. Laserfiche Rio Named Retrieval users (200-999 users) $200.00
7. Laserfiche Weblink Pilot Portal (25 retrieval users) $25,000.00
8. Laserfiche Weblink Portal (unlimited retrieval users -1 CPU) $45,000.00
9. Laserfiche Weblink Portal (unlimited retrieval users -2CPU) $50,000.00
10. Laserfiche Weblink Portal (unlimited retrieval users-3CPU) $75,000.00
11. Laserfiche Forms Full Users (25-49 users) $90.00
12. Laserfiche Forms Full user (50-99 users) $83.00
13. Laserfiche Forms Full User (100-199 users) $70.00
14. Laserfiche Forms Portal Add-on
15. Laserfiche Forms Enterprise Portal Add-on
16. Laserfiche forms Authenticated Participants (1-49 users)
17. Laserfiche Forms Authenticated Participants (50-199 users)
18. Laserfiche Forms Authenticated Participants (200-499 users)
19. Laserfiche Quick Fields
20. Laserfiche Quick Fields Basic
21. Laserfiche Quick Fields Core
22. Laserfiche Quick Fields Classify
23. Laserfiche Quick Fields Context
24. Laserfiche Quick Fields Complete
25. Laserfiche Quick Fields Agent
26. Laserfiche Quick Fields Auto Stamp/Redaction (Upgrade)
27. Laserfiche Quick Fields Document Classification (Upgrade)
28. Laserfiche Import Agent
29. Laserfiche ScanConnect
30. Laserfiche ScanConnect S-Pack
31. Laserfiche Plus for Digital Archiving
32. Laserfiche Plus for Publishing
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$7,995.00
$24,000.00
$200.00
$140.00
$99.00
$595.00
$2,500.00
$5,000.00
$7,500.00
$10,000.00
$15,000.00
$10,000.00
$500.00
$5,000.00
$1,500.00
$165.00
$660.00
$10,000.00
$3,800.00
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33. Laserfiche Enterprise Agenda manager (1 0 Meeting Types) $25,000.00
34. Laserfiche Enterprise Agenda Manager (50 Meeting Types) $35,000.00
35. Laserfiche SDK $2,500.00
36. LF Connector
37. LF Connector 5 Pack
$1,495.00
$5,975.00
Additional Service fees shall only be paid to CONTRACTOR if any such services set
forth hereinabove are performed by CONTRACTOR upon COUNTY's written request. In
no event shall Additional Service Fees exceed $50,000 per year for each one year period
of this Agreement.
H) TOTAL CONTRACT AMOUNT
In no event shall services performed under this Agreement be in excess of $975,000
during the entire possible five (5) year term of this Agreement. It is understood that all
expenses incidental to CONTRACTOR'S performance of services under this Agreement
shall be borne by CONTRACTOR.
I) INVOICING
CONTRACTOR shall submit invoices (which must reference the provided contract
number), either electronically or via mail to the County of Fresno ITSD, Accounts Payable,
2048 N. Fine Avenue, Fresno, CA 93727 or Accounts Payable
(ITSDBusinessOffice@Co.Fresno.Ca.US ). COUNTY will pay CONTRACTOR within
forty-five (45) days of receipt of an approved invoice, by mail addressed to
CONTRACTOR's remittance address at 410 S Melrose Drive, Suite 100, Vista, CA 92081.
VIII. INDEPENDENT CONTRACTOR:
24 In performance of the work, duties and obligations assumed by CONTRACTOR under
25 this Agreement, it is mutually understood and agreed that CONTRACTOR, including any and
26 all of the CONTRACTOR'S officers, agents, and employees will at all times be acting and
27 performing as an independent contractor, and shall act in an independent capacity and not as
28 an officer, agent, servant, employee, joint venturer, partner, or associate of the COUNTY.
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1 Furthermore, COUNTY shall have no right to control or supervise or direct the manner or
2 method by which CONTRACTOR shall perform its work and function. However, COUNTY shall
3 retain the right to administer this Agreement so as to verify that CONTRACTOR is performing
4 its obligations in accordance with the terms and conditions thereof.
5 CONTRACTOR and COUNTY shall comply with all applicable provisions of law and the
6 rules and regulations, if any, of governmental authorities having jurisdiction over matters the
7 subject thereof.
8 Because of its status as an independent contractor, CONTRACTOR shall have absolutely
9 no right to employment rights and benefits available to COUNTY employees. CONTRACTOR
10 shall be solely liable and responsible for providing to, or on behalf of, its employees all
11 legally-required employee benefits. In addition, CONTRACTOR shall be solely responsible and
12 save COUNTY harmless from all matters relating to payment of CONTRACTOR'S employees,
13 including compliance with Social Security withholding and all other regulations governing such
14 matters. It is acknowledged that during the term of this Agreement, CONTRACTOR may be
15 providing services to others unrelated to the COUNTY or to this Agreement.
16
17 IX. MODIFICATION
18 Any matters of this Agreement may be modified from time to time by the written consent
19 of all the parties without, in any way, affecting the remainder.
20
21 X. NON-ASSIGNMENT
22 Neither party shall assign, transfer or sub-contract this Agreement nor their rights or
23 duties under this Agreement without the prior written consent of the other party.
24
25 XI. HOLD HARI\l!LESS
26 CONTRACTOR agrees to indemnify, save, hold harmless, and at COUNTY'S request,
27 defend the COUNTY, its officers, agents, and employees from any and all costs and expenses,
28 damages, liabilities, claims, and losses occurring or resulting to COUNTY in connection with the
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1 performance, or failure to perform, by CONTRACTOR, its officers, agents, or employees under
2 this Agreement, and from any and all costs and expenses including attorney's fees and court
3 costs, damages, liabilities, claims, and losses occurring or resulting to any person, firm, or
4 corporation who may be injured or damaged by the performance, or failure to perform, of
5 CONTRACTOR, its officers, agents, or employees under this Agreement.
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XII. INSURANCE
Without limiting the COUNTY's right to obtain indemnification from 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 the Agreement:
A) COMMERCIAL GENERAL LIABILITY
Commercial General Liability Insurance with limits of not less than One Million Dollars
($1 ,000,000) per occurrence and an annual aggregate of Two Million Dollars
($2,000,000). This policy shall be issued on a per occurrence basis. COUNTY may
require specific coverages including completed operations, products liability, contractual
liability, Explosion-Collapse-Underground, fire legal liability or any other liability insurance
deemed necessary because of the nature of this contract.
B) AUTOMOBILE LIABILITY
Comprehensive Automobile Liability Insurance with limits for bodily injury of not less
than Two Hundred Fifty Thousand Dollars ($250,000.00) per person, Five Hundred
Thousand Dollars ($500,000.00) per accident and for property damages of not less than
Fifty Thousand Dollars ($50,000.00), or such coverage with a combined single limit of Five
Hundred Thousand Dollars ($500,000.00). Coverage should include owned and non-
owned vehicles used in connection with this Agreement.
C) PROFESSIONAL LIABILITY
If CONTRACTOR employs licensed professional staff, (e.g., Ph.D., R.N., L.C.S.W.,
M.F.C.C.) in providing services, Professional Liability Insurance with limits of not less than
One Million Dollars ($1 ,000,000.00) per occurrence, Three Million Dollars ($3,000,000.00)
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1 annual aggregate.
2 D) WORKER'S COMPENSATION
3 A policy of Worker's Compensation insurance as may be required by the California
4 Labor Code.
5 CONTRACTOR shall obtain endorsements to the Commercial General Liability
6 insurance naming the County of Fresno, its officers, agents, and employees, individually
7 and collectively, as additional insured, but only insofar as the operations under this
8 Agreement are concerned. Such coverage for additional insured shall apply as primary
9 insurance and any other insurance, or self-insurance, maintained by COUNTY, its officers,
10 agents and employees shall be excess only and not contributing with insurance provided
11 under CONTRACTOR's policies herein. This insurance shall not be cancelled or changed
12 without a minimum of thirty (30) days advance written notice given to COUNTY.
13 Within Thirty (30) days from the date CONTRACTOR executes this Agreement,
14 CONTRACTOR shall provide certificates of insurance and endorsement as stated above
15 for all of the foregoing policies, as required herein, to the County of Fresno, Robert Bash,
16 Chief Information Officer, 2048 N Fine Street, Fresno CA 93727, stating that such
17 insurance coverages have been obtained and are in full force; that the County of Fresno,
18 its officers, agents and employees will not be responsible for any premiums on the
19 policies; that such Commercial General Liability insurance names the County of Fresno,
20 its officers, agents and employees, individually and collectively, as additional insured, but
21 only insofar as the operations under this Agreement are concerned; that such coverage
22 for additional insured shall apply as primary insurance and any other insurance, or
23 self-insurance, maintained by COUNTY, its officers, agents and employees, shall be
24 excess only and not contributing with insurance provided under CONTRACTOR's policies
25 herein; and that this insurance shall not be cancelled or changed without a minimum of
26 thirty (30) days advance, written notice given to COUNTY.
27 In the event CONTRACTOR fails to keep in effect at all times insurance coverage as
28 herein provided, the COUNTY may, in addition to other remedies it may have, suspend or
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1 terminate this Agreement upon the occurrence of such event.
2 All policies shall be with admitted insurers licensed to do business in the State of
3 California. Insurance purchased shall be purchased from companies possessing a current
4 A.M. Best, Inc. rating of A FSC VII or better.
5
6
7
8
XIII. AUDITS AND INSPECTIONS
CONTRACTOR shall at any time during CONTRACTOR'S normal business hours, and
9 upon prior written notice, as often as the COUNTY may deem necessary, make available to the
10 COUNTY for examination all of its records and data with respect to the matters covered by this
11 Agreement. CONTRACTOR shall, upon request by the COUNTY, permit the COUNTY to audit
12 and inspect all of such records and data necessary to ensure CONTRACTOR'S compliance
13 with the terms of this Agreement. Any such examinations or audits shall be at the COUNTY'S
14 expense.
15 If this Agreement exceeds ten thousand dollars ($1 0,000.00}, CONTRACTOR shall be
16 subject to the examination and audit of the Auditor General for a period of three (3) years after
17 final payment under contract (Government Code Section 8546.7).
18
19 XIV. NOTICES
20 A) AUTHORITY TO GIVE AND RECEIVE NOTICES
21 The persons and their addresses having authority to give and receive notices under this
22 Agreement include the following:
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COUNTY OF FRESNO
Robert Bash
Chief Information Officer
2048 N Fine
Fresno, CA 93727
CONTRACTOR
Debbi Bodewin
Executive Vice President
5905 Brockton Ave, Suite C
Riverside, CA 92506
Any and all notices between the COUNTY and the CONTRACTOR provided
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1 for or permitted under this Agreement or by law shall be in writing and shall be deemed duly
2 served when personally delivered to one of the parties, or in lieu of such personal services, when
3 deposited in the United States Mail, postage prepaid, addressed to such party or by electronic
4 mail sent to and confirmed by CONTRACTOR at CONTRACTOR's email address.
5 B) PRIMARY ESCALATION CONTACT INFORMATION
6 The persons and their contact information that the COUNTY or CONTRACTOR can use to
7 escalate problems or situations:
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XV.
(1)
COUNTY
Contact# 1:
Daniel Moore
Information Technology Manager
Office Phone: (559) 600-5800
Email: dmoore@co.fresno.ca.us
(2)
COUNTY
Contact# 2:
Mark Zack
Information Technology Division Manager
Office Phone: (559) 600-5800
Cell Phone: (559) 349-0210
Email: mzack@co.fresno.ca.us
GOVERNING LAW
CONTRACTOR
Contact# 1:
Debbi Bodewin
Executive Vice President
Office Phone: (951) 787-8768
Cell Phone: (949) 355-1148
Email debbi@ecsimaging.com
CONTRACTOR
Contact# 2:
James Green
Chief Operatinq Officer
Office Phone: (951) 787-8768
Cell Phone: (714) 906-1009
Email iames@ecsimaaina .com
Venue for any action arising out of or related to this Agreement shall only be in Fresno
County, California.
27 The rights and obligations of the parties and all interpretation and performance of this
28 Agreement shall be governed in all respects by the laws of the State of California.
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1 XVI. HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT
2 A. The parties to this Agreement shall be in strict conformance with all applicable
3 Federal and State of California laws and regulations, including but not limited to Sections
4 5328, 10850, and 14100.2 et seq. of the Welfare and Institutions Code, Sections 2.1 and
5 431.300 et seq. of Title 42, Code of Federal Regulations (CFR), Section 56 et seq. of the
6 California Civil Code, Sections 11977 and 11812 of Title 22 of the California Code of
7 Regulations, and the Health Insurance Portability and Accountability Act (HIPAA), including
8 but not limited to Section 1320 D et seq. of Title 42, United States Code (USC) and its
9 implementing regulations, including, but not limited to Title 45, CFR, Sections 142, 160, 162,
10 and 164, The Health Information Technology for Economic and Clinical Health Act
11 (HITECH) regarding the confidentiality and security of patient information, and the Genetic
12 Information Nondiscrimination Act (GINA) of 2008 regarding the confidentiality of genetic
13 information.
14 Except as otherwise provided in this Agreement, CONTRACTOR, as a Business
15 Associate of COUNTY, may use or disclose Protected Health Information (PHI) to perform
16 functions, activities or services for or on behalf of COUNTY, as specified in this Agreement,
17 provided that such use or disclosure shall not violate the Health Insurance Portability and
18 Accountability Act (HIPAA), USC 1320d et seq. The uses and disclosures of PHI may not
19 be more expansive than those applicable to COUNTY, as the "Covered Entity" under the
20 HIPAA Privacy Rule (45 CFR 164.500 et seq.), except as authorized for management,
21 administrative or legal responsibilities of the Business Associate.
22 B. CONTRACTOR, including its subcontractors and employees, shall protect, from
23 unauthorized access, use, or disclosure of names and other identifying information, including
24 genetic information, concerning persons receiving services pursuant to this Agreement,
25 except where permitted in order to carry out data aggregation purposes for health care
26 operations [45 CFR Sections 164.504 (e)(2)(i), 164.504 (3)(2)(ii)(A), and 164.504 (e)(4)(i)]
27 This pertains to any and all persons receiving services pursuant to a COUNTY funded
28 program. This requirement applies to electronic PHI. CONTRACTOR shall not use such
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1 identifying information or genetic information for any purpose other than carrying out
2 CONTRACTOR's obligations under this Agreement.
3 C. CONTRACTOR, including its subcontractors and employees, shall not disclose
4 any such identifying information or genetic information to any person or entity, except as
5 otherwise specifically permitted by this Agreement, authorized by Subpart E of 45 CFR Part
6 164 or other law, required by the Secretary, or authorized by the client/patient in writing. In
7 using or disclosing PHI that is permitted by this Agreement or authorized by law,
8 CONTRACTOR shall make reasonable efforts to limit PHI to the minimum necessary to
9 accomplish intended purpose of use, disclosure or request.
10 D. For purposes of the above sections, identifying information shall include, but not
11 be limited to name, identifying number, symbol, or other identifying particular assigned to the
12 individual, such as finger or voice print, or photograph.
13 E. For purposes of the above sections, genetic information shall include genetic
14 tests of family members of an individual or individual, manifestation of disease or disorder of
15 family members of an individual, or any request for or receipt of, genetic services by
16 individual or family members. Family member means a dependent or any person who is
17 first, second, third, or fourth degree relative.
18 F. CONTRACTOR shall provide access, at the request of COUNTY, and in the
19 time and manner designated by COUNTY, to PHI in a designated record set (as defined
20 in 45 CFR Section 164.501), to an individual or to COUNTY in order to meet the
21 requirements of 45 CFR Section 164.524 regarding access by individuals to their PHI.
22 With respect to individual requests, access shall be provided within thirty (30) days from
23 request. Access may be extended if CONTRACTOR cannot provide access and provides
24 individual with the reasons for the delay and the date when access may be granted. PHI
25 shall be provided in the form and format requested by the individual or COUNTY.
26 CONTRACTOR shall make any amendment(s) to PHI in a designated record set at
27 the request of COUNTY or individual, and in the time and manner designated by
28 COUNTY in accordance with 45 CFR Section 164.526.
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1 CONTRACTOR shall provide to COUNTY or to an individual, in a time and manner
2 designated by COUNTY, information collected in accordance with 45 CFR Section
3 164.528, to permit COUNTY to respond to a request by the individual for an accounting of
4 disclosures of PHI in accordance with 45 CFR Section 164.528.
5 G. CONTRACTOR shall report to COUNTY, in writing, any knowledge or reasonable
6 belief that there has been unauthorized access, viewing, use, disclosure, security incident, or
7 breach of unsecured PHI not permitted by this Agreement of which it becomes aware,
8 immediately and without reasonable delay and in no case later than two (2) business days of
9 discovery. Immediate notification shall be made to COUNTY's Information Security Officer
10 and Privacy Officer and COUNTY's DPH HIPAA Representative, within two (2) business
11 days of discovery. The notification shall include, to the extent possible, the identification of
12 each individual whose unsecured PHI has been, or is reasonably believed to have been,
13 accessed, acquired, used, disclosed, or breached. CONTRACTOR shall take prompt
14 corrective action to cure any deficiencies and any action pertaining to such unauthorized
15 disclosure required by applicable Federal and State Laws and regulations. CONTRACTOR
16 shall investigate such breach and is responsible for all notifications required by law and
17 regulation or deemed necessary by COUNTY and shall provide a written report of the
18 investigation and reporting required to COUNTY's Information Security Officer and Privacy
19 Officer and COUNTY's DPH HIPAA Representative. This written investigation and
20 description of any reporting necessary shall be postmarked within the thirty (30) working
21 days of the discovery of the breach to the addresses below:
22
23
24
25
26
27
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County of Fresno
Dept. of Public Health
HIPAA Representative
Privacy Officer
(559) 600-6439
P.O. Box 11867 Fresno, CA
93775
County of Fresno
Dept. of Public Health
Information Security Officer
(559) 600-6405
P.O. Box 11867 Fresno, CA
93775
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County of Fresno
Information Technology
Services
(559) 600-5800
2048 N. Fine Street
Fresno, CA 93727
1 H. CONTRACTOR shall make its internal practices, books, and records relating to
2 the use and disclosure of PHI received from COUNTY, or created or received by the
3 CONTRACTOR on behalf of COUNTY, in compliance with HIPAA's Privacy Rule, including,
4 but not limited to the requirements set forth in Title 45, CFR, Sections 160 and 164.
5 CONTRACTOR shall make its internal practices, books, and records relating to the use and
6 disclosure of PHI received from COUNTY, or created or received by the CONTRACTOR on
7 behalf of COUNTY, available to the United States Department of Health and Human
8 Services (Secretary) upon demand.
9 CONTRACTOR shall cooperate with the compliance and investigation reviews
1 0 conducted by the Secretary. PHI access to the Secretary must be provided during the
11 CONTRACTOR's normal business hours, however, upon exigent circumstances access at
12 any time must be granted. Upon the Secretary's compliance or investigation review, if PHI is
13 unavailable to CONTRACTOR and in possession of a Subcontractor, it must certify efforts to
14 obtain the information to the Secretary.
15 I. Safeguards
16 CONTRACTOR shall implement administrative, physical, and technical safeguards as
17 required by the HIPAA Security Rule, Subpart C of 45 CFR 164, that reasonably and
18 appropriately protect the confidentiality, integrity, and availability of PHI, including electronic
19 PHI, that it creates, receives, maintains or transmits on behalf of COUNTY and to prevent
20 unauthorized access, viewing, use, disclosure, or breach of PHI other than as provided for
21 by this Agreement. CONTRACTOR shall conduct an accurate and thorough assessment of
22 the potential risks and vulnerabilities to the confidential, integrity and availability of electronic
23 PHI. CONTRACTOR shall develop and maintain a written information privacy and security
24 program that includes administrative, technical and physical safeguards appropriate to the
25 size and complexity of CONTRACTOR's operations and the nature and scope of its
26 activities. Upon COUNTY's request, CONTRACTOR shall provide COUNTY with
27 information concerning such safeguards.
28
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1 CONTRACTOR shall implement strong access controls and other security safeguards
2 and precautions in order to restrict logical and physical access to confidential, personal (e.g.,
3 PHI) or sensitive data to authorized users only. Said safeguards and precautions shall
4 include the following administrative and technical password controls for all systems used to
5 process or store confidential, personal, or sensitive data:
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1. Passwords must not be:
a. Shared or written down where they are accessible or recognizable by
anyone else; such as taped to computer screens, stored under keyboards, or visible
in a work area;
b. A dictionary word; or
c. Stored in clear text.
2. Passwords must be:
a. Eight (8) characters or more in length;
b. Changed every ninety (90) days;
c. Changed immediately if revealed or compromised; and
d. Composed of characters from at least three (3) of the following four (4)
groups from the standard keyboard:
1) Upper case letters (A-Z);
2) Lowercase letters (a-z);
3) Arabic numerals (0 through 9); and
21 4) Non-alphanumeric characters (punctuation symbols).
22 CONTRACTOR shall implement the following security controls on each workstation
23 or portable computing device (e.g., laptop computer) containing confidential,
24 personal, or sensitive data:
25 1. Network-based firewall and/or personal firewall;
26 2. Continuously updated anti-virus software; and
27 3. Patch management process including installation of all operating
28 system/software vendor security patches.
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1 CONTRACTOR shall utilize a commercial encryption solution that has received FIPS
2 140-2 validation to encrypt all confidential, personal, or sensitive data stored on portable
3 electronic media (including, but not limited to, compact disks and thumb drives) and on
4 portable computing devices (including, but not limited to, laptop and notebook computers).
5 CONTRACTOR shall not transmit confidential, personal, or sensitive data via e-mail
6 or other internet transport protocol unless the data is encrypted by a solution that has
7 been validated by the National Institute of Standards and Technology (NIST) as
8 conforming to the Advanced Encryption Standard (AES) Algorithm. CONTRACTOR must
9 apply appropriate sanctions against its employees who fail to comply with these
10 safeguards. CONTRACTOR must adopt procedures for terminating access to PHI when
11 employment of employee ends.
12 J. Mitigation of Harmful Effects
13 CONTRACTOR shall mitigate, to the extent practicable, any harmful effect that is
14 suspected or known to CONTRACTOR of an unauthorized access, viewing, use,
15 disclosure, or breach of PHI by CONTRACTOR or its subcontractors in violation of the
16 requirements of these provisions. CONTRACTOR must document suspected or known
17 harmful effects and the outcome.
18 K. CONTRACTOR's Subcontractors
19 CONTRACTOR shall ensure that any of its contractors, including subcontractors, if
20 applicable, to whom CONTRACTOR provides PHI received from or created or received by
21 CONTRACTOR on behalf of COUNTY, agree to the same restrictions, safeguards, and
22 conditions that apply to CONTRACTOR with respect to such PHI and to incorporate,
23 when applicable, the relevant provisions of these provisions into each subcontract or sub-
24 award to such agents or subcontractors ..
25 L. Employee Training and Discipline
26 CONTRACTOR shall train and use reasonable measures to ensure compliance with
27 the requirements of these provisions by employees who assist in the performance of
28 functions or activities on behalf of COUNTY under this Agreement and use or disclose
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1 PHI and discipline such employees who intentionally violate any provisions of these
2 provisions, including termination of employment.
3 M. Termination for Cause
4 Upon COUNTY's knowledge of a material breach of these provisions by
5 CONTRACTOR, COUNTY shall either:
6 1. Provide an opportunity for CONTRACTOR to cure the breach or end the violation
7 and terminate this Agreement if CONTRACTOR does not cure the breach or end the
8 violation within the time specified by COUNTY; or
9 2. Immediately terminate this Agreement if CONTRACTOR has breached a material
10 term of these provisions and cure is not possible.
11 3. If neither cure nor termination is feasible, the COUNTY's Privacy Officer shall report
12 the violation to the Secretary of the U.S. Department of Health and Human Services.
13 N. Judicial or Administrative Proceedings
14 COUNTY may terminate this Agreement in accordance with the terms and conditions
15 of this Agreement as written hereinabove, if: (1) CONTRACTOR is found guilty in a
16 criminal proceeding for a violation of the HIPAA Privacy or Security Laws or the HITECH
17 Act; or (2) there is a finding or stipulation that the CONTRACTOR has violated a privacy
18 or security standard or requirement of the HITECH Act, HIPAA or other security or privacy
19 laws in an administrative or civil proceeding in which the CONTRACTOR is a party.
20 0. Effect of Termination
21 Upon termination or expiration of this Agreement for any reason, CONTRACTOR
22 shall return or destroy all PHI received from COUNTY (or created or received by
23 CONTRACTOR on behalf of COUNTY) that CONTRACTOR still maintains in any form,
24 and shall retain no copies of such PHI. If return or destruction of PHI is not feasible, it
25 shall continue to extend the protections of these provisions to such information, and limit
26 further use of such PHI to those purposes that make the return or destruction of such PHI
27 infeasible. This provision shall apply to PHI that is in the possession of subcontractors or
28 agents, if applicable, of CONTRACTOR. If CONTRACTOR destroys the PHI data, a
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1 certification of date and time of destruction shall be provided to the COUNTY by
2 CONTRACTOR.
3 P. Disclaimer
4 COUNTY makes no warranty or representation that compliance by CONTRACTOR
5 with these provisions, the HITECH Act, HIPAA or the HIPAA regulations will be adequate
6 or satisfactory for CONTRACTOR's own purposes or that any information in
7 CONTRACTOR's possession or control, or transmitted or received by CONTRACTOR, is
8 or will be secure from unauthorized access, viewing, use, disclosure, or breach.
9 CONTRACTOR is solely responsible for all decisions made by CONTRACTOR regarding
10 the safeguarding of PHI.
11 Q. Amendment
12 The parties acknowledge that Federal and State laws relating to electronic data
13 security and privacy are rapidly evolving and that amendment of these provisions may be
14 required to provide for procedures to ensure compliance with such developments. The
15 parties specifically agree to take such action as is necessary to amend this agreement in
16 order to implement the standards and requirements of HIPAA, the HIPAA regulations, the
17 HITECH Act and other applicable laws relating to the security or privacy of PHI. COUNTY
18 may terminate this Agreement upon thirty (30) days written notice in the event that
19 CONTRACTOR does not enter into an amendment providing assurances regarding the
20 safeguarding of PHI that COUNTY in its sole discretion, deems sufficient to satisfy the
21 standards and requirements of HIPAA, the HIPAA regulations and the HITECH Act.
22 R. No Third-Party Beneficiaries
23 Nothing express or implied in the terms and conditions of these provisions is
24 intended to confer, nor shall anything herein confer, upon any person other than COUNTY
25 or CONTRACTOR and their respective successors or assignees, any rights, remedies,
26 obligations or liabilities whatsoever.
27 S. Interpretation
28 The terms and conditions in these provisions shall be interpreted as broadly as
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1 necessary to implement and comply with HIPAA, the HIPAA regulations and applicable
2 State laws. The parties agree that any ambiguity in the terms and conditions of these
3 provisions shall be resolved in favor of a meaning that complies and is consistent with
4 HIPAA and the HIPAA regulations.
5 T. Regulatory References
6 A reference in the terms and conditions of these provisions to a section in the HIPAA
7 regulations means the section as in effect or as amended.
8 U. Survival
9 The respective rights and obligations of CONTRACTOR as stated in this Section shall
10 survive the termination or expiration of this Agreement.
11 V. No Waiver of Obligations
12 No change, waiver or discharge of any liability or obligation hereunder on any one or
13 more occasions shall be deemed a waiver of performance of any continuing or other
14 obligation, or shall prohibit enforcement of any obligation on any other occasion.
15
16 XVII. DISCLOSURE OF SELF-DEALING TRANSACTIONS
17 This provision is only applicable if the CONTRACTOR is operating as a corporation (a for-
18 profit or non-profit corporation) or if during the term of this agreement, the CONTRACTOR
19 changes its status to operate as a corporation.
20 Members of the CONTRACTOR's Board of Directors shall disclose any self-dealing
21 transactions that they are a party to while CONTRACTOR is providing goods or performing
22 services under this agreement. A self-dealing transaction shall mean a transaction to which the
23 CONTRACTOR is a party and in which one or more of its directors has a material financial
24 interest. Members of the Board of Directors shall disclose any self-dealing transactions that
25 they are a party to by completing and signing a Self-Dealing Transaction Disclosure Form
26 (Exhibit 1) and submitting it to the COUNTY prior to commencing with the self-dealing
27 transaction or immediately thereafter.
28
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XVIII. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the CONTRACTOR and
COUNTY with respect to the subject matter hereof and supersedes all previous Agreement
negotiations, proposals, commitments, writings, advertisements, publications, and
understandings of any nature whatsoever unless expressly included in this Agreement. In the
event of any inconsistency in interpreting the documents comprising this Agreement, the
inconsistency shall be resolved by giving precedence in the following order of priority: (1) the
text of this Agreement (excluding COUNTY's RFP No. 962-5267 and CONTRACTOR's
Response thereto); (2) COUNTY's RFP No. 962-5267; and (3) CONTRACTOR's Response to
RFP No. 962-5267.
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1 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and
2 year first hereinabove written.
3 CONTRACTOR
4 / VJbba
5 Debbie Bodewin, Executive Vice President
: ~~-----<--{t--+JlZ'I---o~D_
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10 DATE:
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13 REVIEWED & RECOM
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20 APPROVED AS TO LEGAL FORM
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24 FOR ACCOUNTING USE ONLY:
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26 ORG No.:
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Account No./Fund:
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COUNTY OF FRE~·
~a. .
Deborah A. Poochigian 0
Chairman, Board of Supervisors
DATE:
ATTEST:
BERNICE E. SEIDEL, Clerk
Board of Supervisors
By Su.~..cN ~s.he>.f2
Deputy
Date: :Tc""""'~ ~, d.O lS
REVIEWED & REeOMMENDED FOR
APPROVAL
1d Porn
Director o
Health
~k
Chief Probation Officer
APPROVED AS TO ACCOUNTING
FORM
0£t. 'iC.~ J.
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Exhibit 1 -Self-Dealing Transaction Disclosure Form
SELF-DEAUNG TRANSAcnON DISCLOSURE FORM
In order to conduct business with the County of Fresno (hereinafter referred to as "County"), members of a
contractor's board of directors 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 board members has a material financial interest"
The definition above will be utilized 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.
(5) Form must be signed by the board member that is involved in the self-dealing transaction described in
Sections (3) and (4).
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(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: I Date:
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