HomeMy WebLinkAbout29584
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A G R E E M E N T
THIS AGREEMENT (“Agreement”) is made and entered into this day of
December, 2016 (the “Effective Date”), by and between the COUNTY OF FRESNO, a political
subdivision of the State of California, hereinafter referred to as "COUNTY", and BMI Imaging
Systems, Inc., whose corporate address is at 1115 E Arques Avenue, Sunnyvale, CA 94085,
hereinafter referred to as "CONTRACTOR" or “BMI”.
W I T N E S S E T H:
WHEREAS, COUNTY has a need for online hosting of imaged documents; and
WHEREAS, CONTRACTOR has represented that its DIGITAL REEL™ online Hosting Service
meets the COUNTY’s needs; and
WHEREAS, CONTRACTOR agrees to issue software licenses for ten (10) kiosk licenses and
fifteen (15) named licenses, and provide online document image hosting services to COUNTY;
pursuant to the terms stated herein; and
WHEREAS, COUNTY desires to purchase such software licenses and online hosting services,
from CONTRACTOR.
NOW, THEREFORE, for and in consideration of the promises herein, and for other good and
valuable consideration, the parties agree as follows:
1. DEFINITIONS
The following terms used throughout this Agreement shall be defined as follows:
BMI Hosting Services:
BMI hosted online access to Imaged Product (as defined below) for use by COUNTY-
authorized End Users.
BMI Documentation:
BMI end-user documentation, help and training materials, as made available to
COUNTY from time to time.
County Documents:
All instruments, papers and notices submitted to the Fresno County Recorder’s Office,
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the recording of which is required or permitted by law.
County Software:
The operating system along with any third-party software installed on COUNTY system
hardware.
End User:
Any person who is authorized by COUNTY to access and use Imaged Product in
connection with COUNTY’s business.
Imaged Product:
The end results of digital or photographic reproduction processes of BMI services that
can be viewed by COUNTY on a display device.
ISD:
Information Services Division of COUNTY’s Internal Services Department.
Software or System Software:
Digital Reel™ software and its contents.
Standard Business Hours:
Defined as M-F: 5:00 AM to 5:00 PM (Pacific)
System:
The System Software and System Documentation, collectively.
System Documentation:
The documentation related to the Software, and all specifications and materials provided
by CONTRACTOR in connection with the System pursuant to this Agreement.
2. OBLIGATIONS OF THE CONTRACTOR
A. BMI SERVICES
CONTRACTOR shall provide Software and BMI Hosting Services to COUNTY in a
professional, timely and mutually agreeable manner, in accordance with the terms and
conditions set herein below.
1) ONLINE HOSTING SERVICES
CONTRACTOR shall provide to COUNTY BMI Hosting Services as follows:
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A. Storage and Access to Imaged Product.
CONTRACTOR shall provide a minimum hardware storage configuration of
RAID 5 on which the Imaged Product will be stored. CONTRACTOR will provide access
to this hardware configuration in both of its two (2) hosting locations, with one
configuration available at any one time at least 99% of Standard Business Hours.
B. Access Services.
CONTRACTOR shall allow access to the Imaged Product to End Users via
Internet connections from one or more of CONTRACTOR’s data repositories (“Access
Services”). End Users will be determined by COUNTY, who will provide CONTRACTOR
with updated status information regarding those End Users. Adding or removing End
Users will be at the discretion of COUNTY’s Contract Administrator (as defined in
Section 3-A) or that person’s designee. CONTRACTOR will provide COUNTY with
software tools to allow for administration level controlled addition or deletion of End
Users. COUNTY assumes all responsibility for adding, deleting, or maintaining End
Users, whether directly administering the End Users or through CONTRACTOR
technical support.
C. Communication Lines.
CONTRACTOR utilizes communication services of telecom third parties.
COUNTY acknowledges that CONTRACTOR does not have ultimate control of
communication lines used to access the Imaged Product, and that therefore,
CONTRACTOR cannot ultimately guarantee the security of transmissions between
CONTRACTOR and COUNTY. CONTRACTOR routinely utilizes Secure Socket Layer
(SSL) protocol for transmission of the Imaged Product to clients and can provide other
enhanced data communication and security provisions upon request, such as single
Internet Protocol (IP) access or Virtual Private Network (VPN). Unless otherwise noted,
COUNTY should not expect bandwidth greater than 1.5Mb/s during Standard Business
Hours. COUNTY should not assume access will be available after Standard Business
Hours.
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D. Maintenance.
Standard Maintenance or System Upgrades. CONTRACTOR shall perform
preventative maintenance of its servers and other facilities in accordance with its normal
maintenance schedules and procedures, as modified from time to time during the term of
this Agreement. COUNTY acknowledges that Access Services may not be operable
during periods of preventative maintenance. CONTRACTOR will make reasonable
efforts to inform COUNTY prior to any scheduled maintenance.
Unscheduled Maintenance. COUNTY acknowledges that CONTRACTOR
may have to perform maintenance on an emergency basis and that Access Services
may not be operable at these times. CONTRACTOR shall provide COUNTY with notice
as soon as possible in such situations and will make every reasonable effort to restore
Access Services to COUNTY as soon as possible.
E. Customer Support.
CONTRACTOR will provide limited operational and technical support
pertaining to BMI Services, during normal coverage hours (8:00 A.M. to 5:00 P.M. PST,
Monday through Friday, excepting CONTRACTOR and COUNTY holidays), via toll-free
telephone assistance.
2) SCOPE OF LICENSE
These following terms of use govern the terms and conditions by which the
Software may be accessed by COUNTY and COUNTY’s designated End Users.
A. LICENSE
CONTRACTOR grants COUNTY a limited right to access and use the
Software as intended by CONTRACTOR for lawful internal business, education and/or
research purposes only and for no other purpose.
The parties acknowledge and agree that, as between CONTRACTOR and
COUNTY, title and full ownership of all rights in and to the Software, System
Documentation, and all other materials provided to COUNTY by CONTRACTOR under
the terms of this Agreement, shall remain with CONTRACTOR. COUNTY will take
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reasonable steps to protect trade secrets of the Software and System Documentation.
Ownership of all copies is retained by CONTRACTOR.
COUNTY may not disclose or make available to third parties the Software or
System Documentation or any portion thereof. CONTRACTOR shall own all right, title
and interest in and to all corrections, modifications, enhancements, programs, and work
product conceived, created or developed, alone or with COUNTY or others, as a result
of or related to the performance of this Agreement, including all proprietary rights therein
and based thereon. Except and to the extent expressly provided herein, CONTRACTOR
does not grant to COUNTY any right or license, express or implied, in or to the Software
and System Documentation or any of the foregoing. The parties acknowledge and agree
that, as between CONTRACTOR and COUNTY, full ownership of all rights in and to all
COUNTY data, whether in magnetic or paper form, including without limitation printed
output from the System, are the exclusive property of COUNTY.
B. RESTRICTIONS
Except to the extent authorized by CONTRACTOR, COUNTY agrees to keep
secret and not disclose any personal name and/or password required by
CONTRACTOR to access and use the Software and to not share access and use of the
Software with any third party. In the event that COUNTY suspects that a personal user
name and password has been disclosed to an unauthorized party, COUNTY agrees to
immediately notify CONTRACTOR.
Except to the extent permitted by law, COUNTY may not directly or indirectly
(i) transmit, redistribute, encumber, sell, rent, lease, lend barter, sub-lease, sublicense or
otherwise transfer this Software or the right to access and use this Software to any third
party without the express written consent of CONTRACTOR; (ii) use the Software in
connection with any service bureau without the express written consent of
CONTRACTOR; (iii) remove or obscure any copyright, trademark and other proprietary
rights, notices, legends, symbols or labels; (iv) alter, modify, decompile, disassemble,
create any derivative works of the Software, including customization, translation or
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localization, or reverse engineer or otherwise attempt to derive the source code for the
Software; or (v) use the DIGITAL REEL™ Software or its contents for any unlawful
purpose.
C. INTELLECTUAL PROPERTY, TRADEMARK AND COPYRIGHT
This Software is protected under U.S. Copyright laws and international
treaties, trade secret, trademark and other applicable laws. CONTRACTOR retains
ownership of the Software, any portions or copies thereof, and all rights therein.
CONTRACTOR reserves all rights not expressly granted to COUNTY. This License
does not grant COUNTY any rights in connection with any trademarks or service marks
of CONTRACTOR, its suppliers or licensors. All right, title, interest and copyrights in and
to the Software and the accompanying Software Documentation and any copies of the
Software are owned by CONTRACTOR, its suppliers or licensors. All title and intellectual
property rights in and to the content which may be accessed through use of the Software
are the property of the respective content owner and may be protected by applicable
copyright or other intellectual property laws and treaties. This License grants COUNTY
no rights to use such content.
D. DISCLAIMER OF WARRANTIES
Except as expressly set forth herein, the DIGITAL REEL™ Software, data
and information accessible through the use of the software and system are provided
“AS-IS” without representation or warranty of any kind. CONTRACTOR expressly
disclaims all implied warranties of merchantability, fitness for a particular purpose, title,
non-infringement and accuracy of data or information.
CONTRACTOR does not represent or warrant that the Software is free of all
defects or that the Software or its contents will be accessible at all times.
Use of the Software and its content, data, information and documentation is
at COUNTY’s risk.
3) CONFIDENTIALITY
CONTRACTOR acknowledges and agrees that all COUNTY Documents or any
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other information and materials furnished by COUNTY to CONTRACTOR that COUNTY
identifies as confidential information shall be and remain the confidential information of
the COUNTY, including all Imaged Product containing confidential information, unless
one or more exclusions set forth below applies. CONTRACTOR agrees that it shall not
use or disclose the confidential information for any reason other than as set forth in this
Agreement. COUNTY acknowledges and agrees that CONTRACTOR may disclose
confidential information to subcontractors for the purposes of this Agreement who are
obligated in writing to maintain the confidentiality of confidential information.
Exclusions. For the purposes of this Agreement, confidential information shall
not include information or materials that: (a) have previously become or are generally
known to the public or trade through no breach of this Agreement or similar
confidentiality or non-disclosure agreement; (b) are already rightfully known to
CONTRACTOR or a third party prior to being disclosed by or obtained from the
COUNTY under this Agreement; (c) have been or are hereafter rightfully received by
CONTRACTOR from a third party under no restriction on use or disclosure; or (d) have
been independently developed by CONTRACTOR without access to the COUNTY’s
confidential information. COUNTY agrees that CONTRACTOR may disclose COUNTY
confidential information in response to a lawful order of a court of competent jurisdiction
or legal authority, provided COUNTY is given reasonable notice to take steps to protect
such confidential information prior to disclosure, at COUNTY’s expense.
B. CONTRACTOR PROJECT COORDINATOR
Upon execution of this Agreement, CONTRACTOR shall appoint a Project
Coordinator who will act as the primary contact person to interface with COUNTY for
implementation, maintenance and support of BMI DIGITAL REEL™ Hosting Service.
C. OTHER
Unless otherwise specified, for third-party software, CONTRACTOR shall provide
standard documentation in electronic form via the Internet or File Transfer Protocol
(FTP).
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3. OBLIGATIONS OF THE COUNTY
A. COUNTY CONTRACT ADMINISTRATOR
COUNTY appoints its Director of Internal Services/Chief Information Officer or his
designee, as COUNTY's Contract Administrator with full authority to deal with
CONTRACTOR in all matters concerning this Agreement.
B. COUNTY PROJECT MANAGER
Upon execution of this Agreement, COUNTY’s Contract Administrator shall
designate one individual from ISD who will function as Project Manager with
responsibility for day-to-day management of the project for implementation of the
System Software. The Project Manager and COUNTY personnel shall have the
necessary and appropriate training and experience to implement the terms of this
Agreement. COUNTY acknowledges CONTRACTOR’S reliance on same.
C. SAFEGUARDING SYSTEM SOFTWARE
COUNTY will follow its present practices to safeguard System Software delivered
to COUNTY by CONTRACTOR. A copy of COUNTY’S “Information Technology (IT)
Standards and Preferences” will be made available upon request.
D. SECURITY
COUNTY agrees to validate the integrity of the information and data it receives
and transmits over the Internet, and to maintain the security of its Internet account and
usage. COUNTY agrees to protect its data and images from unauthorized use,
complying with protocols for sensitive, confidential and personal information.
E. CUSTOMER COOPERATION
COUNTY agrees to make available to CONTRACTOR, in a timely manner, certain
COUNTY Documents and as applicable, COUNTY personnel, equipment, and facilities.
COUNTY agrees that it will use best efforts to cooperate with CONTRACTOR in all
respects of this Agreement and COUNTY acknowledges that its failure to do so may
prevent CONTRACTOR from performing services hereunder in a timely manner.
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F. LEGAL COMPLIANCE
COUNTY represents and warrants that it is the owner of the COUNTY Documents
and/or has or shall acquire all rights, title, interest, licenses and permissions necessary for
CONTRACTOR, its employees, agents and/or subcontractors to perform BMI Services
under this Agreement without violation or infringement of any third party right or
agreement. COUNTY shall be solely responsible for legal compliance with regard to the
reproduction of COUNTY Documents and the access and use of Imaged Product in
COUNTY’s possession and/or control.
G. BACKUP OF DOCUMENTS AND DATA/ASSUMPTION OF RISK
COUNTY shall be responsible to make prior and ongoing backup copies of all
COUNTY Documents, data and programs connected to any network device onto which
CONTRACTOR will be loading software, data or Imaged Products in connection with the
performance of requested BMI Services. COUNTY acknowledges and agrees that
CONTRACTOR makes no claim as to the compatibility or serviceability of any software or
Imaged Product in connection with COUNTY’s software or equipment.
H. NON-SOLICITATION
COUNTY shall not recruit, solicit, induce or otherwise contract for the employment of
CONTRACTOR’s employees or service contractors during the term of this Agreement.
4. TERM
The term of this Agreement shall be for a period of three (3) years, commencing on the
Effective Date through and including the last day of the three-year period. This Agreement
may be extended for two (2) additional consecutive twelve (12) month periods upon written
approval of both parties no later than thirty (30) days prior to the first day of the next twelve
(12) month extension period. COUNTY’s Director of Internal Services/Chief Information
Officer or his/her designee, is authorized to execute such written approval on behalf of
COUNTY based on CONTRACTOR’s satisfactory performance.
5. TERMINATION
A. NON-ALLOCATION OF FUNDS
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The terms of this Agreement, and the services to be provided thereunder, are
contingent on the approval of funds by the appropriating government agency. Should
sufficient funds not be allocated, the services provided may be modified, or this
Agreement terminated, at any time by giving CONTRACTOR thirty (30) days advance
written notice. In such event, COUNTY shall pay for all goods and services supplied by
CONTRACTOR through the date of termination, within 45 days following the termination
date.
B. BREACH OF CONTRACT
The COUNTY may immediately suspend or terminate this Agreement in whole or in
part, where in the determination of the COUNTY there is:
1) An illegal or improper use of funds;
2) A failure to comply with any term of this Agreement;
3) A substantially incorrect or incomplete report submitted to the COUNTY;
4) Improperly performed service.
In no event shall any payment by the COUNTY constitute a waiver by the COUNTY
of any breach of this Agreement or any default which may then exist on the part of the
CONTRACTOR. Neither shall such payment impair or prejudice any remedy available to
the COUNTY with respect to the breach or default. The COUNTY shall have the right to
demand of the CONTRACTOR the repayment to the COUNTY of any funds disbursed to
the CONTRACTOR under this Agreement, which in the judgment of the COUNTY were
not expended in accordance with the terms of this Agreement. The CONTRACTOR shall
promptly refund any such funds upon demand.
CONTRACTOR may, upon thirty (30) days prior written notice to COUNTY,
terminate this Agreement if COUNTY fails to comply with any material term or condition
of this Agreement unless COUNTY cures such failure within such thirty (30) day period,
or other such timeframe as may be mutually agreed upon in writing by the parties.
C. WITHOUT CAUSE
Under circumstances other than those set forth above, this Agreement may be
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terminated by COUNTY upon the giving of thirty (30) days advance written notice of
an intention to terminate to CONTRACTOR.
D. RIGHTS AND OBLIGATIONS
Upon termination or expiration of this Agreement, COUNTY shall pay to
CONTRACTOR all amounts due and payable for services rendered. COUNTY may
request the return, transfer and/or disposal of all or some of COUNTY’s Documents,
Imaged Product and COUNTY Confidential Information in CONTRACTOR’s possession
and/or control. Any and all expenses for the return, transfer or disposal of COUNTY
Documents, Imaged Product and Confidential Information shall be borne by COUNTY,
including but not limited to any sales or transfer taxes.
1) Retention and Backup/Archival Copies of Imaged Product.
In the absence of express instructions from COUNTY or separate written
agreement as set forth herein, COUNTY agrees that CONTRACTOR may, in its sole
discretion, retain one or more copies of Imaged Product for backup, warranty,
archival or dispute resolution purposes; provided, nothing in this Agreement shall
obligate CONTRACTOR to retain any such copies for any period of time for any
purpose. COUNTY acknowledges and agrees that CONTRACTOR shall have no
obligation or legal duty to COUNTY arising from this Agreement to retain one or more
copies of Imaged Product for any purpose or to provide additional services to
COUNTY, even if CONTRACTOR has retained any such copies for backup,
warranty and/or archival purposes. Any obligation of CONTRACTOR to retain one or
more copies of Imaged Product for any purpose or to provide additional services to
COUNTY shall require a separate mutually agreeable retention and services
agreement signed by both parties.
2) Compliance with Copyright Holder Demands
In the event a copyright holder or legal representative of a copyright holder
presents a credible claim of having copyright interest in an Imaged Product and on
that basis demands or requests the destruction, modification, transfer, reproduction,
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distribution, display, transmission, and/or preparation of derivative works of, a copy of
the Imaged Product in CONTRACTOR’s possession and/or control, CONTRACTOR
may accommodate and comply with any such demands or request, as
CONTRACTOR may decide in its sole and absolute discretion, to avoid and/or settle
a claim against CONTRACTOR by the copyright holder, all without cost, benefit,
payment, contribution, obligations, notice, consent, or liability of any kind under any
legal theory, to COUNTY.
6. COMPENSATION/INVOICING
A. License and Hosting.
For each year of the possible five (5) years of this Agreement, COUNTY agrees to
pay CONTRACTOR and CONTRACTOR agrees to receive compensation as follows:
annual hosting, licensing for 10 kiosk users and 15 named users, support and
maintenance is $20,100. In no event shall such compensation for all products and
services provided under this Agreement for years 1 through 5 exceed $100,500.00. In
the event this Agreement is terminated early by COUNTY, for whatever reason,
CONTRACTOR shall refund to COUNTY on a pro-rata basis, all annual fees paid in
advance for goods and services to be provided hereunder but not yet delivered.
B. Additional License Fees.
COUNTY may purchase additional named user licenses at the following
price/volume combination: 5 users for $3,000.00. In no event shall costs for additional
licenses be in excess of $6,000.00.
C. Maximum Compensation.
In no event shall services performed under this Agreement for the entire possible
five (5) year term be in excess of $106,500.00. It is understood that all expenses
incidental to CONTRACTOR'S performance of services under this Agreement shall be
borne by CONTRACTOR.
CONTRACTOR shall submit annual invoices (referencing the provided contract
number) , either electronically or via mail to the Fresno County Recorder, 2281 Tulare
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Street Room 302, Fresno, CA 93721. COUNTY will pay CONTRACTOR within forty-five
(45) days of receipt of an approved invoice, by mail addressed to CONTRACTOR’s
remittance address at 1115 E Arques Avenue, Sunnyvale, CA 94085.
7. INDEPENDENT CONTRACTOR
In performance of the work, duties and obligations assumed by CONTRACTOR under
this Agreement, it is mutually understood and agreed that CONTRACTOR, including any and
all of the CONTRACTOR'S officers, agents, and employees will at all times be acting and
performing as an independent contractor, and shall act in an independent capacity and not
as an officer, agent, servant, employee, joint venturer, partner, or associate of the COUNTY.
Furthermore, COUNTY shall have no right to control or supervise or direct the manner or
method by which CONTRACTOR shall perform its work and function. However, COUNTY
shall retain the right to administer this Agreement so as to verify that CONTRACTOR is
performing its obligations in accordance with the terms and conditions thereof.
CONTRACTOR and COUNTY shall comply with all applicable provisions of law and the
rules and regulations, if any, of governmental authorities having jurisdiction over matters the
subject thereof.
Because of its status as an independent contractor, CONTRACTOR shall have
absolutely no right to employment rights and benefits available to COUNTY employees.
CONTRACTOR shall be solely liable and responsible for providing to, or on behalf of, its
employees all legally-required employee benefits. In addition, CONTRACTOR shall be solely
responsible and save COUNTY harmless from all matters relating to payment of
CONTRACTOR'S employees, including compliance with Social Security withholding and all
other regulations governing such matters. It is acknowledged that during the term of this
Agreement, CONTRACTOR may be providing services to others unrelated to the COUNTY
or to this Agreement.
8. CONFIDENTIALITY
A Party receiving Information (defined below) of the other will not disclose such
Information other than to persons in its organization who have a need to know and who
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will be required to comply with this Section. The Party receiving Information will not use
such Information for a purpose inconsistent with the terms of this Agreement. “Information”
means the Software, Documentation and all information and intellectual property related
thereto (including, but not limited to all databases provided to COUNTY by
CONTRACTOR whether created by CONTRACTOR or its third party licensors such as,
without limitation, the mapping product databases) as well as information related to the
business of CONTRACTOR or COUNTY. Information will not include: (i) information
publicly known prior to disclosure; (ii) information coming into the lawful possession of the
recipient without any confidentiality obligation; and (iii) information required to be disclosed
pursuant to regulatory action or court order, provided adequate prior written notice of any
request to disclose is given to the Party whose information is to be disclosed. Each Party
will exercise at least the same degree of care to safeguard the confidentiality of the other’s
Information as it does to safeguard its own proprietary confidential information, but not
less than a reasonable degree of care.
9. MODIFICATION
Any matters of this Agreement may be modified from time to time by the written consent
of all the parties without, in any way, affecting the remainder.
10. NON-ASSIGNMENT
Neither party shall assign, transfer or sub-contract this Agreement nor their rights or
duties under this Agreement without the prior written consent of the other party.
11. HOLD HARMLESS
CONTRACTOR agrees to indemnify, save, hold harmless, and at COUNTY'S request,
defend the COUNTY, its officers, agents, and employees from any and all costs and
expenses, damages, liabilities, claims, and losses occurring or resulting to COUNTY in
connection with the performance, or failure to perform, by CONTRACTOR, its officers, agents,
or employees under this Agreement, and from any and all costs and expenses, damages,
liabilities, claims, and losses occurring or resulting to any person, firm, or corporation who
may be injured or damaged by the performance, or failure to perform, of CONTRACTOR,
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its officers, agents, or employees under this Agreement. This indemnification will not extend to
claims or damages related to the content of COUNTY data or County Documents hosted by
CONTRACTOR in the performance of CONTRACTORS obligations described herein.
12. 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 or a program of self-insurance throughout the term of this
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) annual aggregate.
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D. Worker's Compensation
A policy of Worker's Compensation insurance as may be required by the California
Labor Code.
CONTRACTOR shall obtain endorsements to the Commercial General Liability insurance
naming the County of Fresno, its officers, agents, and employees, individually and
collectively, as additional insured, but only insofar as the operations under this Agreement are
concerned. Such coverage for additional insured shall apply as primary insurance and any
other insurance, or self-insurance, maintained by COUNTY, its officers, agents and
employees shall be excess only and not contributing with insurance provided under
CONTRACTOR's policies herein. This insurance shall not be cancelled or changed without a
minimum of thirty (30) days advance written notice given to COUNTY.
Within Thirty (30) days from the date CONTRACTOR signs and executes this
Agreement, CONTRACTOR shall provide certificates of insurance and endorsement as
stated above for all of the foregoing policies, as required herein, to the County of Fresno,
County of Fresno, Robert Bash, Director of Internal Services/Chief Information Officer, 333 W
Pontiac Way, Clovis, CA 93612, stating that such insurance coverages have been obtained
and are in full force; that the County of Fresno, its officers, agents and employees will not be
responsible for any premiums on the policies; that such Commercial General Liability
insurance names the County of Fresno, its officers, agents and employees, individually and
collectively, as additional insured, but only insofar as the operations under this Agreement are
concerned; that such coverage for additional insured shall apply as primary insurance and
any other insurance, or self-insurance, maintained by COUNTY, its officers, agents and
employees, shall be excess only and not contributing with insurance provided under
CONTRACTOR's policies herein; and that this insurance shall not be cancelled or changed
without a minimum of thirty (30) days advance, written notice given to COUNTY.
In the event CONTRACTOR fails to keep in effect at all times insurance coverage as
herein provided, the COUNTY may, in addition to other remedies it may have, suspend or
terminate this Agreement upon the occurrence of such event.
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All policies shall be issued by admitted insurers licensed to do business in the State of
California, and such insurance shall be purchased from companies possessing a current A.M.
Best, Inc. rating of A FSC VII or better.
13. AUDITS AND INSPECTIONS
The CONTRACTOR shall at any time during business hours, and as often as the
COUNTY may deem necessary, make available to the COUNTY for examination all of its
records and data with respect to the matters covered by this Agreement. The CONTRACTOR
shall, upon request by the COUNTY, permit the COUNTY to audit and inspect all of such
records and data necessary to ensure CONTRACTOR'S compliance with the terms of this
Agreement.
If this Agreement exceeds ten thousand dollars ($10,000.00), CONTRACTOR shall be
subject to the examination and audit of the Auditor General for a period of three (3) years after
final payment under contract (Government Code Section 8546.7).
14. NOTICES
A. AUTHORITY TO GIVE AND RECEIVE NOTICES
The persons authorized to give and receive notices under this Agreement include the
following:
COUNTY CONTRACTOR
Robert Bash William Whitney
Director of Internal Services/ President and CEO
Chief Information Officer 1115 East Arques Ave
333 W Pontiac Way Sunnyvale, CA 94085
Clovis, CA 93612 Telephone: (408) 736-7444 x204
Telephone: (559) 600-5800 FAX: (408) 736-4397
FAX: (559) 600-5927
All notices between the COUNTY and CONTRACTOR provided for or permitted
under this Agreement must be in writing and delivered either by personal service, by first-
class United States mail, by an overnight commercial courier service, or by telephonic
facsimile transmission. A notice delivered by personal service is effective upon service to
the recipient. A notice delivered by first-class United States mail is effective three
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COUNTY business days after deposit in the United States mail, postage prepaid,
addressed to the recipient. A notice delivered by an overnight commercial courier service
is effective one COUNTY business day after deposit with the overnight commercial
courier service, delivery fees prepaid, with delivery instructions given for next day
delivery, addressed to the recipient. A notice delivered by telephonic facsimile is effective
when transmission to the recipient is completed (but, if such transmission is completed
outside of COUNTY business hours, then such delivery shall be deemed to be effective
at the next beginning of a COUNTY business day), provided that the sender maintains a
machine record of the completed transmission. For all claims arising out of or related to
this Agreement, nothing in this section establishes, waives, or modifies any claims
presentation requirements or procedures provided by law, including but not limited to the
Government Claims Act (Division 3.6 of Title 1 of the Government Code, beginning with
section 810).
B. PRIMARY ESCALATION CONTACT INFORMATION
(1)
COUNTY CONTRACTOR
Contact # 1: Contact # 1:
ITSD Manager Michael Aufranc
Information Technology Manager Account Representative
Office Phone: (559) 600-5800
Email: manager@co.fresno.ca.us
Office Phone: 916-924-6666 x405
maufranc@bmiimaging.com
(2)
COUNTY CONTRACTOR
Contact # 2: Contact # 2:
Mark Zack Name Jim Modrall
Information Technology Division Manager Title VP Operations
Office Phone: (559) 600-5800 Office Phone: 408-736-7444 x221
Cell Phone: (559) 349-0210 Cell: 408-489-2697
Email: mzack@co.fresno.ca.us Jmodrall@bmiimaging.com
///
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15. GOVERNING LAW
Venue for any action arising out of or related to this Agreement shall only be in Fresno
County, California.
The rights and obligations of the parties and all interpretation and performance of this
Agreement shall be governed in all respects by the laws of the State of California.
16. DISCLOSURE OF SELF-DEALING TRANSACTIONS
This provision is only applicable if the CONTRACTOR is operating as a corporation (a
for-profit or non-profit corporation) or if during the term of the agreement, the
CONTRACTOR changes its status to operate as a corporation.
Members of the CONTRACTOR’s Board of Directors shall disclose any self -dealing
transactions that they are a party to while CONTRACTOR is providing goods or
performing services under this agreement. A self -dealing transaction shall mean a
transaction to which the CONTRACTOR is a party and in which one or more of its
directors has a material financial interest. Members of the Board of Directors shall
disclose any self-dealing transactions that they are a party to by completing and signing a
Self-Dealing Transaction Disclosure Form, attached hereto as Exhibit A and incorporated
herein by reference, and submitting it to the COUNTY prior to commencing with the self -
dealing transaction or immediately thereafter.
17. 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.
///
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1 IN WITNESS WHEREOF , the parties hereto have executed this Agreement as of the day
2 and year first hereinabove written .
3 cc:~R
4
Will iam Whitney ~ and CEO
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9 Date :
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22 FOR ACCOUNTING USE ONLY:
FUND : 000 1
23 SUBCLASS: 10000
24 ORG NO .: 04200200
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ACCOUNT NO .: 72957295
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COUNTY OF FRESNO
£ -::r-~~
Ern est Buddy Mendes
Cha irman , Board of Supervisors
Date : _....!.1 ....~.~:£1-~-_.:.r'J_-_.:.\..:::lo::::..._ ___ _
Bern ice E. Seidel
Clerk, Board of Supervisors
Robert W . Bash , Director of Internal Serv ices/
Ch ief Information Officer
APPROVED AS TO LEGAL FORM
APPROVED AS TO ACCOUNTING FORM
lli~ki CFevl, CPA Osco.~ ::r. G;o..rciQ.,C.~A
Auditor-Controller/Treasurer-Tax Collector
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Exhibit A
SELF-DEALING TRANSACTION 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 corpora tion 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 C ode.
(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: Date: