HomeMy WebLinkAboutAgreement A-20-442 with Kofile Technologies Inc..pdf-1-
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A G R E E M E N T
THIS AGREEMENT (“Agreement”) is made and entered into this day of November,
2020 (“Effective Date”), by and between the COUNTY OF FRESNO, a political subdivision of the state of
California ("COUNTY"), and Kofile Technologies, Inc., a Delaware corporation, whose address is 6300
Cedar Springs Road, Dallas, TX 75235 ("CONTRACTOR").
W I T N E S S E T H:
WHEREAS, the Clerk of the Board of Supervisors of the County of Fresno is required to maintain
the historical records of the meetings of the COUNTY Board of Supervisors;
WHEREAS, in order to carry out those duties, the COUNTY needs to digitize, preserve and
maintain those historical documents, and store them safely in archival-quality physical storage;
WHEREAS, CONTRACTOR is the only vendor performing large-scale document preservation and
digitizing;
WHEREAS, COUNTY already uses the QuickLink Software program for digital indexing of records
and may desire to utilize this software within the scope of this project;
WHEREAS, COUNTY desires to purchase document digitization and preservation services,
archival-quality physical storage system for vital records, and the QuickLink Software program for digital
indexing of records from CONTRACTOR, to be utilized by the COUNTY; and
WHEREAS, COUNTY and CONTRACTOR desire to execute this Agreement for (1) the QuickLink
Software, (2) maintenance and support for the QuickLink Software, and (3) an archival-quality physical
storage system and related storage supplies, to be utilized by the COUNTY.
NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions herein
contained, the parties hereto agree as follows:
1.DEFINITIONS:
The following terms are defined as follows for purposes of this Agreement:
Change Control Process means the process used by the Information Services Division of
COUNTY’s Internal Services Department (“ISD”) to inform COUNTY staff of new or updated production
Agreement No. 20-442
3rd
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use systems.
County System Hardware means the central processing units owned or leased by COUNTY 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.
COUNTY System Software means the operating system and database software installed on the
County System Hardware.
Final System Acceptance means indexing services are completed, the QuickLink software has
been installed and tested, and the QuickLink software performs all functions in accordance with its
specifications, and the COUNTY has delivered to CONTRACTOR a written notice of acceptance.
First Production Use is the date of first use of the system in a production environment. For
purposes of this Agreement, production environment means the QuickLink software with the County
data incorporated and ready for use.
ISD is the COUNTY’s Internal Services Department.
License is the license granted under Section 2(A) of this Agreement, and the rights and
obligations that it creates under the laws of the United States of America and the State of California,
including without limitation, copyright and intellectual property law.
System refers to the System Software and System Documentation, collectively, including all
modifications and enhancements.
System Documentation means the documentation relating to the System Software, including all
manuals, reports, brochures, sample runs, specifications, and other materials provided by
CONTRACTOR in connection with the System Software.
System Software is the QuickLink computer software provided and hosted by CONTRACTOR
that provides rapid linking between indexes in the digitized versions of vital record books and each index
entries corresponding record. QuickLinks is a web application that will be accessed via internet
browsers on personal computers at the COUNTY. QuickLink includes two service levels: Full Access
and Lite. Both service levels will be accessed through a web application using the same user interface.
The Full Access version includes digital links from each index in a record series to a digital copy of each
specific entry, which will reduce the need to physically access documents that have been digitally
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scanned and entered into the System. The Lite version provides location information for physical
records that are not stored digitally within the System. System Software does not include operating
system software, or any other third-party software.
System Software Maintenance and Support means software hosting for System Software,
regular software updates to System Software, and support provided for System Software in case of
errors, mistakes, or other technical difficulties.
2.OBLIGATIONS OF THE CONTRACTOR
A.SOFTWARE LICENSE
1)GRANT OF LICENSE
CONTRACTOR grants to COUNTY, and COUNTY accepts, a non-exclusive, non-transferable,
license to use the System Software, subject to the terms and conditions set forth in this Agreement. This
license shall survive termination or expiration of this Agreement, but only if COUNTY continues to
purchase System Software Maintenance and Support.
2)SCOPE OF LICENSE
The license granted under this Agreement consists solely of the non-exclusive, non-transferable
right of COUNTY to operate the System Software in support of the Clerk of the Board in carrying out its
duties.
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. COUNTY will take reasonable steps to protect trade secrets of the System Software
and System Documentation. COUNTY may not disclose or make available to third parties the System
Software or System Documentation or any portion of either. CONTRACTOR owns all right, title and
interest in and to all CONTRACTOR’s corrections, modifications, or enhancements to the System that
are 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. For purposes
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of this Agreement, “enhancement” means new software that is an interface between the System
Software and other software. 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 System. 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.
4)POSSESSION, USE, AND UPDATE OF SOFTWARE
COUNTY agrees that COUNTY will only use the System Software for the COUNTY’s purposes,
as provided in this Agreement. CONTRACTOR may, at reasonable times, inspect the COUNTY’s
premises and equipment to verify that all of the terms and conditions of the 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)POSSESSION AND USE OF SOURCE CODE
Source code and other material that results from custom programming by CONTRACTOR
released to COUNTY under the License are deemed CONTRACTOR software, subject to all of the
terms and conditions of the License. The scope of COUNTY’s permitted use of the custom source code
under the License is limited to maintenance and support 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 developing an enhancement for 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 to carry out statutory public functions that benefit the public, including
individual members of the public. 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
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CONTRACTOR, and COUNTY’s right to use such derivative work is limited to those granted with
respect to the System Software in this Agreement.
6) RESTRICTIONS ON USE
COUNTY shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise
commercially exploit or make available to any third party the System Software or the System
Documentation in any way; (ii) modify the System Software or make derivative works based upon the
System Software or the System Documentation; (iii) create Internet “links” to the System Software or
“frame” or “mirror” any System Documentation on any other server or wireless or Internet -based device;
(iv) use the System to send spam or otherwise duplicative or unsolicited messages in violation of
applicable law; (v) use the System to send or store infringing, obscene, threatening, libelous, or
otherwise unlawful or tortious material, including material harmful to children or violative of third party
privacy rights; (iv) use the System to send or store material containing software viruses, worms, Trojan
horses or other harmful computer code, files, scripts, agents or programs; (vii) interfere with or disrupt
the integrity or performance of the System Software or the data contained therein, including but not
limited to COUNTY data; (viii) attempt to gain unauthorized access to the System Software or its related
systems or networks; (ix) reverse engineer or access the System Software in order to (a) build a
competitive product or service, (b) build a product using similar ideas, features, functions or graphics of
the System Software, or (c) copy any ideas, features, functions or graphics of the System Software.
No right or license is granted under this Agreement for the use of the System, directly or
indirectly, for the benefit of any other person or entity, except as provided in this Agreement, except that
CONTRACTOR acknowledges that COUNTY intends to use the System to carry out statutory public
functions that benefit the public, including individual members of the public.
7) INTELLECTUAL PROPERTY, TRADEMARK, AND COPYRIGHT
CONTRACTOR retains ownership of and all rights in the System Software, any portions or
copies thereof. 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 System, and any copies of the
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System Software are owned by CONTRACTOR, its suppliers or its licensors. All title and intellectual
property rights in and to the content which may be accessed through use of the System 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.
B.SERVICES TO BE PROVIDED BY CONTRACTOR TO COUNTY
1)DOCUMENT PRESERVATION
CONTRACTOR will perform preservation and digitization of the documents described in the
schedule below. CONTRACTOR agrees to accomplish this each phase of the project within six (6)
months of receiving the items. Each phase will be initiated COUNTY’s Clerk of the Board, and approved
in writing by the Contract Administrator.
Record Series Title Date
Approximate
Quantity
Vols. Pages
Ordinances 1883-1972 12 6,680
Indexes to Supervisors Meetings 1856-1974 A-Z,
5-11 6,300
Minutes 1856-1974 210 117,256
Tentative Schedule
Phase No. Includes
Year 1 Ordinances (all), Indexes to Supervisors Meetings (all), and Minutes (vol. A-Z and
27-32)
Year 2 Minutes (vol. 33-77)
Year 3 Minutes (vol. 78-121)
Year 4 Minutes (vol. 122-165)
Year 5 Minutes (vol. 166-210)
This tentative schedule may be modified with written approval of the Contract Administrator.
2)IMPLEMENTATION SERVICES
Upon notification of the desire of COUNTY to utilize System Software, CONTRACTOR will
complete the implementation of services as described in the schedule below. CONTRACTOR agrees to
accomplish this implementation within six (6) months from the date of notification. Items 3, 4, and 5 may
be performed concurrently.
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Step Time Required
1.Process digitized images 1 day
2. Site development 1 day
3. Production and creation of links 4.5 months
4. Site data build 1 week
5. Link correction 1 month
6. Punch list - corrections 1 week
7. Training 1 day
a.SITE DEVELOPMENT
CONTRACTOR will develop a unique digital instance of the QuickLink software for exclusive use
of the COUNTY. This instance will be hosted by CONTRACTOR for the duration of the Agreement, and
available via web browser, so long as the COUNTY pays annual System Software Maintenance and
Support.
b.CREATION OF LINKS
CONTRACTOR shall develop a digital index to link index entries in the documents below to their
corresponding record book digitized page images within the QuickLink system.
Record Series
Title Date Approximate Quantity Level of Service Vols. Pages
Ordinances 1883-1972 12 6,680 QuickLink Full Access Indexing
Indexes to
Supervisors
Meetings
1856-1974 A-Z, 5-11 6,300 QuickLink Full Access Indexing
Minutes 1856-1974 210 117,256 QuickLink Full Access Indexing
All indexes and records will be imaged as a part of the restoration process, as described in
Section B.1, above.
c.LINK REVIEW AND CORRECTION
The links within the indexes referenced in step 2 of the table in Section 2(B)(2), herein, shall be
available for review by COUNTY a minimum of 30-days prior to the First Production Use. This feedback
will be used to develop a punch list of corrections and any other issues for CONTRACTOR to resolve
before the First Production Use.
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d.TRAINING
CONTRACTOR will conduct one session of “train-the-trainer” training of certain COUNTY staff at
a COUNTY-designated location, and at a time approved in writing by COUNTY’s Contract Administrator.
For purposes of this Agreement, “train-the-trainer” means certain County staff are given the teaching
skills they need to convey information to other staff members in a replicable way.
e.DOCUMENTATION
CONTRACTOR shall provide to COUNTY the System Documentation, which shall consist of
electronic media files. The electronic media files must be provided in Portable Document Format (.pdf).
CONTRACTOR shall provide new System Documentation for each upgrade to the System Software.
COUNTY may print copies of all System Documentation. All System Documentation is to be used by
COUNTY only for the purposes identified within this Agreement.
C.SYSTEM MAINTENANCE AND SUPPORT BY CONTRACTOR
CONTRACTOR shall provide System Software Maintenance and Support. System maintenance
and support includes, but is not limited to, hosting of the System Software, and updates to the System
Software as they are released by CONTRACTOR, including updates required because of federal
regulatory changes. CONTRACTOR will support day-to-day operation of the System as follows:
1)SUPPORT HOURS/SCOPE:
Provide unlimited technical assistance by phone during normal coverage hours
(8:00 a.m. to 5:00 p.m. Pacific Standard Time (PST), Monday through Friday, except for
days that are holidays for either CONTRACTOR or COUNTY ), toll-free telephone
assistance to keep the System in, or restored to, normal operating condition in
conformance with the specifications set forth in this Agreement. The object of this support
will be to answer questions related to the System Software and the application thereof.
Support provided under this Agreement does not include training of new COUNTY
personnel after initial staff is trained, operation of hardware, or solving hardware or
software problems unrelated to the System Software.
2)SUPPORT RESPONSE:
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During the term of this Agreement, CONTRACTOR will (a) correct any error or
malfunctions in the System that prevent the System from operating in conformance with
the specifications set forth in Section 1 and Section 2.C of this Agreement, or (b) provide
a commercially reasonable alternative that will conform to the specifications set forth in in
Section 1 of 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,
which significantly impedes effective use of the System by COUNTY for the purposes
described in the recitals and in Section 2 above, 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, corrective program code in the form of an update to
the System Software, or both. CONTRACTOR shall respond to COUNTY's service
request no later than four (4) business hours from the time a call is received by
CONTRACTOR. If a person with the necessary expertise is not available when the call is
received, CONTRACTOR will promptly notify COUNTY of that fact, and then endeavor to
respond to the service request no later than within one (1) business day.
3)ERROR CORRECTION PROCESS
If, during the term of this Agreement, COUNTY determines that a System Software error exists,
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
via phone or email, setting forth the defects noted with specificity. Upon notification of a reported
software error, CONTRACTOR shall have five (5) business days to determine if any actual software
errors exist and, if so, endeavor to correct such software errors. CONTRACTOR may request
reasonable additional time to solve difficult problems, and COUNTY will not unreasonably deny such
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requests. Within fifteen (15) days of correction, COUNTY shall retest the System Software and report
any other software errors.
D.ADDITIONAL SYSTEM MAINTENANCE SERVICES BY CONTRACTOR
CONTRACTOR may provide additional maintenance services (“Additional Maintenance and
Support Services” or “Additional Maintenance Services”) at an additional charge. Charges will be as
identified in Section 6 of this Agreement; or, if the Additional Maintenance and Support Services are not
specifically listed in this Agreement, charges will be at current prices in effect at the time goods or
services are provided. Any Additional Maintenance and Support Services requested by COUNTY and
determined by CONTRACTOR not to be specifically listed in this Agreement must be identified as a
chargeable service prior to the service being performed, and must be approved in writing in advance by
COUNTY’s Contract Administrator, as defined in Section 3, below. Additional Maintenance Services
include, but are not limited to, the following:
1)ADDITIONAL TRAINING
A specific amount of training is specified in Section 2(B)(2)(d) of this Agreement.
Additional training at a COUNTY facility is available upon request by COUNTY at an
additional charge under the terms of this Agreement. Requests for additional training will
be reviewed by CONTRACTOR, and must be requested in writing in advance by
COUNTY’s Contract Administrator.
1)DATA AND SYSTEM CORRECTIONS
CONTRACTOR shall provide data and system corrections that are necessary due
to COUNTY errors or unauthorized source code or data access by COUNTY.
CONTRACTOR shall provide such corrections . Unauthorized data access is defined as
any COUNTY editing of data through other than normal System Software usage, as
defined in System Documentation. Unauthorized source code access is defined as any
COUNTY access whatsoever to System Software source code. COUNTY will not pay any
compensation to CONTRACTOR for services that result from errors caused by QuickLink
or instruction provided by CONTRACTOR.
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E.SYSTEM UPDATES
1)SYSTEM UPDATES
From time to time, CONTRACTOR will develop and provide updates to the
System Software. CONTRACTOR shall provide updates to the System Software at no
additional charge to COUNTY during the term of this Agreement. Updates to the System
Software are subject to the terms and conditions of this Agreement, and shall be deemed
licensed System Software under this Agreement.
F.OPERATING SYSTEM UPDATES
The System Software must run on an operating system (O/S) that is consistently and currently
supported by the O/S vendor. The System Software version is expected to always be no more than one
year older than the current released O/S version.
COUNTY will notify CONTRACTOR when a critical security patch is released for the supported
O/S or related subsystems. CONTRACTOR will have thirty (30) days to ensure the System Software
can perform in the updated environment. With approval from CONTRACTOR, COUNTY will apply
patches to both the O/S and non-critical subsystems as releases are available from vendors. The
System Software must continue to perform as the O/S and other subsystems are updated.
1)ANTI-VIRUS MANAGEMENT
COUNTY will actively run anti-virus management, where appropriate, on all application servers
and PCs. The System Software is expected to perform adequately while anti-virus management is
active.
G.ADHERE TO CHANGE CONTROL PROCESS
CONTRACTOR must adhere to COUNTY’s Change Control Process, which is amended from
time to time, and which shall be provided to CONTRACTOR in writing. COUNTY employs a procedure
to implement updates, upgrades, and version releases to a system that is in production use.
CONTRACTOR must inform ISD a minimum of 1 week prior to any planned, non-emergency changes
so that the Change Control Process may be followed.
H.OTHER
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Unless otherwise specified, for third-party software that is required for COUNTY to use the
System Software, CONTRACTOR shall provide standard documentation in electronic form (via the
Internet or File Transfer Protocol (FTP)).
The System Software being provided runs in a Local Area Network and Web environment. As
such, the performance of the System Software is directly related to, among other things: available
network bandwidth, and the performance of other applications. For this reason, CONTRACTOR makes
no guarantees as to System Software response time.
COUNTY will not allow CONTRACTOR to access to COUNTY’s intranet, internal data, or email
system, and CONTRACTOR shall not require such access in order to provide the System to COUNTY.
I.Data Security
CONTRACTOR shall comply with all obligations in Exhibit A, “Data Security.”
J.Physical Goods
CONTRACTOR will deliver the physical goods described below:
Unit Description Quantity
4Post Archival Shelving
Unit Size: 85.25” H x 36” W x 20” D
Color: TBD
Unit Capacity: 45-50 Binders
9 Units
CONTRACTOR shall deliver the physical goods described above to the third floor of the Fresno
County Hall of Records building at 2281 Tulare St, Fresno, CA 93724 upon written request of the
COUNTY’s Contract Administrator. CONTRACTOR and the COUNTY’s Contract Administrator will then
coordinate delivery and installation at a date specified in writing by the COUNTY’s Contract
Administrator. CONTRACTOR shall provide all labor, materials, rigging services, and transportation
required to pack, load, unload, and install the physical goods described above. Before installation,
CONTRACTOR’s personnel shall check the goods for errors and damage. CONTRACTOR shall replace
erroneous or damaged components prior to installation. CONTRACTOR shall then assemble each
cabinet or shelving unit. After assembly, CONTRACTOR shall clean each shelf and install the physical
copies of the vital records. CONTRACTOR staff will take the materials off the current shelves and return
them to the new shelves at the conclusion of the installation of these physical goods. CONTRACTOR
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shall clean the area where the installation occurs, shall not leave any materials unshelved, and shall not
leave any refuse or debris.
3.OBLIGATIONS OF COUNTY
A.COUNTY CONTRACT ADMINISTRATOR
COUNTY hereby appoints the Director of Internal Services/Chief Information Officer, or his or
her designee, as COUNTY's Contract Administrator with full authority to deal with CONTRACTOR in the
administration of this Agreement.
B.SYSTEM HARDWARE AND SYSTEM SOFTWARE
COUNTY will, at its own expense, provide and properly maintain and update on an ongoing
basis all necessary hardware required to operate the System Software. COUNTY’s hardware shall meet
or exceed CONTRACTOR’s recommendations, as provided in the System Documentation.
C.OTHER COUNTY OBLIGATIONS
1)COUNTY’s ISD staff will provide technical assistance to CONTRACTOR
during the installation of the System Software. In particular, COUNTY will
provide:
a.Network connectivity and troubleshooting assistance;
b.Ability for COUNTY staff to monitor network traffic and isolate
bottlenecks;
c.Technical assistance concerning the integration with existing COUNTY
systems (if applicable); and
d.Expertise to handle issues with COUNTY PCs, printers, and cabling
before, during, and after First Production Use.
4.TERM
The term of this Agreement shall be for a period of three (3) years, commencing on November 3,
2020, through and including November 2, 2023. This Agreement shall renew for two (2) additional
consecutive twelve (12) month periods unless the Director of Internal Services/Chief Information Officer or
his/her designee gives notice no later than thirty (30) days prior to the first day of the next twelve (12) month
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extension period.
5.TERMINATION
A.Non-Allocation of Funds - The terms of this Agreement, and the services to be provided
hereunder, 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 without penalty by giving the CONTRACTOR thirty (30) days
advance written notice.
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.
C.Without Cause - Under circumstances other than those set forth above, this Agreement may be
terminated by COUNTY by giving thirty (30) days advance written notice of an intention to
terminate to CONTRACTOR.
6.COMPENSATION/INVOICING: COUNTY agrees to pay CONTRACTOR, and
CONTRACTOR agrees to receive compensation, as follows:
A.Document preservation
COUNTY agrees to compensate CONTRACTOR for document preservation and restoration
services as described in this section 6.A.
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Record Series
Title Restoration Imaging Total Cost
Ordinances $33,040.00 $5,616.80 $38,656.80
Indexes to
Supervisors
Meetings
$39,500.00 $7,855.00 $47,355.00
Minutes $590,405.60 $99,667.60 $690,072.60
B.Indexing and implementation services for QuickLink:
COUNTY agrees to compensate CONTRACTOR for the System and for indexing services, as
described in this section 6.b. The COUNTY shall pay CONTRACTOR $6,500 for setting up the
System, and $141,050.00 for indexing services.
C.Maintenance and Support for QuickLink
The maximum total compensation payable for annual Maintenance and Support for QuickLink as
described in Section 2.C is $3,600 for each year of the Agreement.
D.Physical Goods & Supplies:
COUNTY agrees to compensate CONTRACTOR for physical goods, as described in this Section
6.D. The maximum total compensation payable for physical goods is $12,150.00, as provided in
the table below:
Unit Description Quantity Unit Price Total
4Post Archival Shelving
Unit Size: 85.25” H x 36” W x 20” D
Color: TBD
Unit Capacity: 45-50 Binders
9 Units $1,350.00 $12,150
E.Taxes & Fees
COUNTY agrees to pay up to $21,240.57 in taxes on restoration services and other goods as
required. Additionally, COUNTY agrees to pay a GSA fee of 0.75 % of the services provided
totaling $7,099.40 for the use of GSA pricing on this Agreement.
F.Additional Services:
COUNTY may request additional services, including additional training, additional document linking
services, or other services that COUNTY, in consultation with CONTRACTOR, deems necessary.
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CONTRACTOR will provide a written quotation for the required services for approval by the COUNTY’s
Contract Administrator. The maximum total compensation payable for these additional services is $20,000.
CONTRACTOR shall submit monthly invoices referencing the provided contract number via mail, to
the County of Fresno, Department of Internal Services, Attention: Director of Internal Services/Chief
Information Officer, 333 W. Pontiac Way, Clovis, CA 93612. COUNTY shall pay CONTRACTOR within
forty-five (45) days of receipt of an approved invoice. COUNTY shall remit payment to CONTRACTOR’s
address specified in the approved invoice.
The total maximum compensation payable to CONTRACTOR during the term of this Agreement is
$1,002,124.37. It is understood that all expenses incidental to CONTRACTOR's performance of services
under this Agreement shall be borne solely by CONTRACTOR.
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.
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8.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.
9.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.
10.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 (including attorney’s fees and costs), 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
(including attorney’s fees and costs), 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, its officers, agents, or employees under this Agreement.
The provisions of this Section 10 survive the termination of this Agreement.
11.INSURANCE
A.Required Policies
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:
1.Commercial General Liability. Commercial general liability insurance with limits of not less
than Two Million Dollars ($2,000,000) per occurrence and an annual aggregate of Four Million
Dollars ($4,000,000). This policy must be issued on a per occurrence basis. CONTRACTOR shall
obtain an endorsement to this policy naming the County of Fresno, its officers, agents, employees,
and volunteers, individually and collectively, as additional insureds, but only insofar as the
operations under this Agreement are concerned. Such coverage for additional insureds will apply as
primary insurance and any other insurance, or self-insurance, maintained by COUNTY is excess
only and not contributing with insurance provided under CONTRACTOR’s policy.
2.Automobile Liability. Automobile liability insurance with limits of not less than One Million
Dollars ($1,000,000) per occurrence for bodily injury and for property damages. Coverage must
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include any auto used in connection with this Agreement.
3.Workers Compensation. Workers compensation insurance as required by the California
Labor Code.
4.Technology Professional Liability. Technology professional liability (errors and omissions)
insurance with limits of not less than Two Million Dollars ($2,000,000) per occurrence. Coverage
must encompass all of CONTRACTOR’s obligations under this Agreement, including but not limited
to claims involving Cyber Risks.
5.Cyber Liability. Cyber liability insurance with limits of not less than Two Million Dollars
($2,000,000) per occurrence. Coverage must include, but not be limited to, claims involving Cyber
Risks. The cyber liability policy must be endorsed to cover the full replacement value of damage to,
alteration of, loss of, or destruction of intangible property (including but not limited to information or
data) that is in the care, custody, or control of CONTRACTOR.
6.Definition of Cyber Risks. “Cyber Risks” include but are not limited to (i) Security Breaches,
which may include Disclosure of Personal Information to an Unauthorized Third Party; (ii) breach of
any of CONTRACTOR’s obligations under Exhibit A to this Agreement, “Data Security”; (iii)
infringement of intellectual property, including but not limited to infringement of copyright, trademark,
and trade dress; (iv) invasion of privacy, including release of private information; (v) information
theft; (vi) damage to or destruction or alteration of electronic information; (vii) extortion related to
CONTRACTOR’s obligations under this Agreement regarding electronic information, including
Personal Information; (viii) network security; (ix) data breach response costs, including Security
Breach response costs; (x) regulatory fines and penalties related to CONTRACTOR’s obligations
under this Agreement regarding electronic information, including Personal Information; and (xi)
credit monitoring expenses. Capitalized terms in this paragraph have the meaning given to them in
Exhibit A, “Data Security.”
B.Additional Requirements Relating to Insurance
1.Verification of Coverage. Within 30 days after CONTRACTOR signs this Agreement,
CONTRACTOR shall deliver, or cause its broker or producer to deliver, to the ISD Business Office
at 333 W. Pontiac Way, Clovis, CA 93612, or at ISDBusinessOffice@fresnocountyca.gov copies of
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insurance policies as produced by the broker or producer, and certificates of insurance and
endorsements for all of the coverages required under this Agreement.
a. All insurance certificates must state that: (1) the insurance coverage has been
obtained and is in full force; (2) COUNTY, its officers, agents, employees, and
volunteers are not responsible for any premiums on the policy; and (3)
CONTRACTOR has waived its right to recover from COUNTY, its officers, agents,
employees, and volunteers any amounts paid under any insurance policy required
by this Agreement and that waiver does not invalidate the insurance policy.
b. The commercial general liability insurance certificate must also state that: (1) the
County of Fresno, its officers, agents, employees, and volunteers, individually and
collectively, are additional insureds insofar as the operations under this Agreement
are concerned; (2) the coverage shall apply as primary insurance and any other
insurance, or self-insurance, maintained by COUNTY shall be excess only and not
contributing with insurance provided under CONTRACTOR’s policy.
c. The automobile liability insurance certificate must state that the policy covers any
auto used in connection with this Agreement.
d. The technology professional liability insurance certificate must also state that
coverage encompasses all of CONTRACTOR’s obligations under this Agreement,
including but not limited to claims involving Cyber Risks, as that term is defined in
this Agreement.
e. The cyber liability insurance certificate must also state that it is endorsed to cover
the full replacement value of damage to, alteration of, loss of, or destruction of
intangible property (including but not limited to information or data) that is in the care,
custody, or control of CONTRACTOR.
2. Acceptability of Insurers. All insurance policies required under this Agreement must
be issued by admitted insurers licensed to do business in the State of California and possessing
at all times during the term of this Agreement an A.M. Best, Inc. rating of A:VII or greater.
3. Notice of Cancellation of Coverage. For each insurance policy required under this
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Agreement, CONTRACTOR shall provide to COUNTY, or ensure that the policy requires the
insurer to provide to COUNTY, written notice of any cancellation or change in the policy as
required in this paragraph. For cancellation of the policy for nonpayment of premium,
CONTRACTOR shall, or shall cause the insurer to, provide written notice to COUNTY not less
than 10 days in advance of cancellation. For cancellation of the policy for any other reason, and
for any other change to the policy, CONTRACTOR shall, or shall cause the insurer to, provide
written notice to COUNTY not less than 30 days in advance of cancellation or change.
COUNTY in its sole discretion may determine that the failure of CONTRACTOR or its insurer to
timely provide a written notice required by this paragraph is a breach of this Agreement.
4.COUNTY’s Entitlement to Greater Coverage. If CONTRACTOR has or obtains
insurance with broader coverage, higher limits, or both, than what is required under this
Agreement, then COUNTY requires and is entitled to the broader coverage, higher limits, or
both. To that end, CONTRACTOR shall deliver, or cause its broker or producer to deliver, to the
COUNTY’s Risk Manager copies of insurance policies that have such broader coverage, higher
limits, or both, as produced by the broker or producer, and certificates of insurance and
endorsements for all of the coverages that have such broader coverage, higher limits, or both,
as required under this Agreement.
5.Waiver of Subrogation. CONTRACTOR waives its right to recover from COUNTY,
its officers, agents, employees, and volunteers any amounts paid under the policy of worker’s
compensation insurance required by this Agreement. CONTRACTOR is solely responsible to
obtain any policy endorsement that may be necessary to accomplish that waiver, but
CONTRACTOR’s waiver of subrogation under this paragraph is effective whether or not
CONTRACTOR obtains such an endorsement.
6.County’s Remedy for Contractor’s Failure to Maintain. If CONTRACTOR fails to
keep in effect at all times any insurance coverage required under this Agreement, COUNTY
may, in addition to any other remedies it may have, suspend or terminate this Agreement upon
the occurrence of that failure, or purchase such insurance coverage, and charge the cost of that
coverage to CONTRACTOR. COUNTY may offset such charges against any amounts owed by
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COUNTY to CONTRACTOR under this Agreement.
12.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 California State Auditor for a period of three (3) years after final payment
under contract (Government Code Section 8546.7).
13.NOTICES: The persons and their addresses having authority to give and receive notices
under this Agreement include the following:
COUNTY CONTRACTOR
COUNTY OF FRESNO Kofile Technologies, Inc. Director of Internal Services/CIO S. Records333 W. Pontiac Way 6300 Cedar Springs RoadClovis, CA 93612 Dallas, TX 75235
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 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,
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including but not limited to the Government Claims Act (Division 3.6 of Title 1 of the Government Code,
beginning with section 810).
14.VENUE AND 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.
15.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 B and incorporated herein by
reference, and submitting it to the COUNTY prior to commencing with the self-dealing transaction or
immediately thereafter.
16.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
understanding of any nature whatsoever unless expressly included in this Agreement.
1 IN WITNESS WHEREOF , the parties hereto have executed this Agreement as of the day and year first
2 hereinabove written.
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CONTRACTOR
It;//~
Hubert P. Auburn , Senior VP
6300 Cedar Springs Road
Dallas , TX 75235
16 FOR ACCOUNTING USE ONLY:
17 Fund : 1020
18 Subciass : 10000
19 ORG: 8905
20 Account: 7311
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COUNTY OF FRESNO
£. Ern ~dy M{a.9(1;;;i,ma6 th
Board of Supervisors of the County of
Fresno
ATTEST:
Bernice E. Seidel
Clerk of the Board of Supervisors
County of Fresno , State of California
By : _ _,_ct.oo...........,,· _,._,_i -~=-De-p+-tY. ____ _
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Exhibit A
“Data Security”
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A. Definitions.
Capitalized terms used in this Exhibit A have the meanings set forth in this section A.
“Authorized Employees” means CONTRACTOR’s employees who have access to
Personal Information.
“Authorized Persons” means: (i) any and all Authorized Employees; and (ii) any
and all of CONTRACTOR’s subcontractors, representatives, agents, outsourcers, and
consultants, and providers of professional services to CONTRACTOR, who have access to
Personal Information and are bound by law or in writing by confidentiality obligations
sufficient to protect Personal Information in accordance with the terms of this Exhibit A.
“Director” means COUNTY’s Director of Internal Services-Chief Information Officer
or his or her designee.
“Disclose” or any derivative of that word means to disclose, release, transfer,
disseminate, or otherwise provide access to or communicate all or any part of any Personal
Information orally, in writing, or by electronic or any other means to any person.
“Person” means any natural person, corporation, partnership, limited liability
company, firm, or association.
“Personal Information” means any and all information, including any data,
provided, or to which access is provided, to CONTRACTOR by or upon the authorization of
COUNTY, under this Agreement, including but not limited to vital records, that: (i) identifies,
describes, or relates to, or is associated with, or is capable of being used to identify,
describe, or relate to, or associate with, a person (including, without limitation, names,
physical descriptions, signatures, addresses, telephone numbers, e-mail addresses,
education, financial matters, employment history, and other unique identifiers, as well as
statements made by or attributable to the person); (ii) is used or is capable of being used to
authenticate a person (including, without limitation, employee identification numbers,
government-issued identification numbers, passwords or personal identification numbers
(PINs), financial account numbers, credit report information, answers to security questions,
and other personal identifiers); or is personal information within the meaning of California
Exhibit A
“Data Security”
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Civil Code section 1798.3, subdivision (a), or 1798.80, subdivision (e). Personal Information
does not include publicly available information that is lawfully made available to the general
public from federal, state, or local government records.
“Privacy Practices Complaint” means a complaint received by COUNTY relating
to CONTRACTOR’s (or any Authorized Person’s) privacy practices, or alleging a Security
Breach. Such complaint shall have sufficient detail to enable CONTRACTOR to promptly
investigate and take remedial action under this Exhibit A.
“Security Safeguards” means physical, technical, administrative or organizational
security procedures and practices put in place by CONTRACTOR (or any Authorized
Persons) that relate to the protection of the security, confidentiality, value, or integrity of
Personal Information. Security Safeguards shall satisfy the minimal requirements set forth in
subsection C.(5) of this Exhibit A.
“Security Breach” means (i) any act or omission that compromises either the
security, confidentiality, value, or integrity of any Personal Information or the Security
Safeguards, or (ii) any unauthorized Use, Disclosure, or modification of, or any loss or
destruction of, or any corruption of or damage to, any Personal Information.
“Use” or any derivative thereof means to receive, acquire, collect, apply, manipulate,
employ, process, transmit, disseminate, access, store, disclose, or dispose of Personal
Information.
B. Standard of Care.
(1) CONTRACTOR acknowledges that, in the course of its engagement by COUNTY
under this Agreement, CONTRACTOR, or any Authorized Persons, may Use Personal
Information only as permitted in this Agreement.
(2) CONTRACTOR acknowledges that Personal Information is deemed to be
confidential information of, or owned by, COUNTY (or persons from whom COUNTY
receives or has received Personal Information) and is not confidential information of, or
owned or by, CONTRACTOR, or any Authorized Persons. CONTRACTOR further
acknowledges that all right, title, and interest in or to the Personal Information remains in
Exhibit A
“Data Security”
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COUNTY (or persons from whom COUNTY receives or has received Personal Information)
regardless of CONTRACTOR’s, or any Authorized Person’s, Use of that Personal
Information.
(3) CONTRACTOR agrees and covenants in favor of COUNTY that CONTRACTOR
shall: (i) keep and maintain all Personal Information in strict confidence, using such degree
of care under this Subsection B as is reasonable and appropriate to avoid a Security
Breach; (ii) Use Personal Information exclusively for the purposes for which the Personal
Information is made accessible to CONTRACTOR pursuant to the terms of this Exhibit A;
(iii) not Use, Disclose, sell, rent, license, or otherwise make available Personal Information
for CONTRACTOR’s own purposes or for the benefit of anyone other than COUNTY,
without COUNTY’s express prior written consent, which the COUNTY may give or withhold
in its sole and absolute discretion; and (iv) not, directly or indirectly, Disclose Personal
Information to any person (an “Unauthorized Third Party”) other than Authorized Persons
pursuant to this Agreement, without the Director’s and the Recorder’s express prior written
consent.
Notwithstanding the foregoing paragraph, in any case in which CONTRACTOR
believes it, or any Authorized Person, is required to disclose Personal Information to
government regulatory authorities, or pursuant to a legal proceeding, or otherwise as may
be required by applicable law, Contractor shall (a) immediately notify COUNTY of the
specific demand for, and legal authority for the disclosure, including providing County with a
copy of any notice, discovery demand, subpoena, or order, as applicable, received by
CONTRACTOR, or any Authorized Person, from any government regulatory authorities, or
in relation to any legal proceeding, and (b) promptly notify COUNTY before such Personal
Information is offered by CONTRACTOR for such disclosure so that COUNTY may have
sufficient time to obtain a court order or take any other action COUNTY may deem
necessary to protect the Personal Information from such disclosure, and CONTRACTOR
shall cooperate with COUNTY to minimize the scope of such disclosure of such Personal
Information.
Exhibit A
“Data Security”
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CONTRACTOR shall remain liable to COUNTY for the actions and omissions of any
Unauthorized Third Party concerning its Use of such Personal Information as if they were
CONTRACTOR’s own actions and omissions.
C. Information Security.
(1) CONTRACTOR covenants, represents and warrants to COUNTY that
Contractor’s Use of Personal Information under this Agreement does and shall at all times
comply with all applicable federal, state, and local, privacy and data protection laws, as well
as all other applicable regulations and directives, including but not limited to California Civil
Code, Division 3, Part 4, Title 1.81 (beginning with section 1798.80), and the Song-Beverly
Credit Card Act of 1971 (California Civil Code, Division 3, Part 4, Title 1.3, beginning with
section 1747). If CONTRACTOR Uses credit, debit or other payment cardholder information,
CONTRACTOR shall at all times remain in compliance with the Payment Card Industry Data
Security Standard (“PCI DSS”) requirements, including remaining aware at all times of
changes to the PCI DSS and promptly implementing and maintaining all procedures and
practices as may be necessary to remain in compliance with the PCI DSS, in each case, at
CONTRACTOR’s sole cost and expense.
(2) CONTRACTOR covenants, represents and warrants to COUNTY that, as of the
Effective Date, CONTRACTOR has not received notice of any violation of any privacy or
data protection laws, as well as any other applicable regulations or directives, and is not the
subject of any pending legal action or investigation by, any government regulatory authority
regarding same.
(3) Without limiting CONTRACTOR’s obligations under subsection C.(1) of this
Exhibit A, CONTRACTOR’s (or Authorized Person’s) Security Safeguards shall be no less
rigorous than accepted industry practices and, at a minimum, include the following: (i)
limiting Use of Personal Information strictly to CONTRACTOR’s and Authorized Persons’
technical and administrative personnel who are necessary for the CONTRACTOR’s, or
Authorized Persons’, Use of the Personal Information pursuant to this Agreement; (ii)
ensuring that all of CONTRACTOR’s connectivity to County computing systems will only be
Exhibit A
“Data Security”
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through COUNTY’s security gateways and firewalls, and only through security procedures
approved upon the express prior written consent of the Director; (iii) to the extent that they
contain or provide access to Personal Information, (a) securing business facilities, data
centers, paper files, servers, back-up systems and computing equipment, operating
systems, and software applications, including, but not limited to, all mobile devices and other
equipment, operating systems, and software applications with information storage capability;
(b) employing adequate controls and data security measures, both internally and externally,
to protect (1) the Personal Information from potential loss or misappropriation, or
unauthorized Use, and (2) the COUNTY’s operations from disruption and abuse; (c) having
and maintaining network, device application, database and platform security; (d) maintaining
authentication and access controls within media, computing equipment, operating systems,
and software applications; and (e) installing and maintaining in all mobile, wireless, or
handheld devices a secure internet connection, having continuously updated anti-virus
software protection and a remote wipe feature always enabled, all of which is subject to
express prior written consent of the Director; (iv) encrypting all Personal Information at
advance encryption standards of Advanced Encryption Standards (AES) of 128 bit or higher
(a) stored on any mobile devices, including but not limited to hard disks, portable storage
devices, or remote installation, or (b) transmitted over public or wireless networks (the
encrypted Personal Information must be subject to password or pass phrase, and be stored
on a secure server and transferred by means of a Virtual Private Network (VPN) connection,
or another type of secure connection, all of which is subject to express prior written consent
of the Director); (v) strictly segregating Personal Information from all other information of
CONTRACTOR, including any Authorized Person, or anyone with whom CONTRACTOR or
any Authorized Person deals so that Personal Information is not commingled with any other
types of information; (vi) having a patch management process including installation of all
operating system/software vendor security patches; (vii) maintaining appropriate personnel
security and integrity procedures and practices, including, but not limited to, conducting
Exhibit A
“Data Security”
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background checks of Authorized Employees consistent with applicable law; and (viii)
providing appropriate privacy and information security training to Authorized Employees.
(4) During the term of each Authorized Employee’s employment by CONTRACTOR,
CONTRACTOR shall cause such Authorized Employees to abide strictly by
CONTRACTOR’s obligations under this Exhibit A. CONTRACTOR further agrees that it shall
maintain a disciplinary process to address any unauthorized Use of Personal Information by
any Authorized Employees.
(5) CONTRACTOR shall, in a secure manner, backup daily, or more frequently if it is
CONTRACTOR’s practice to do so more frequently, Personal Information received from
COUNTY, and the COUNTY shall have immediate, real time access, at all times, to such
backups via a secure, remote access connection provided by CONTRACTOR, through the
Internet.
(6) CONTRACTOR shall provide COUNTY with the name and contact information for
each Authorized Employee (including such Authorized Employee’s work shift, and at least
one alternate Authorized Employee for each Authorized Employee during such work shift)
who shall serve as COUNTY’s primary security contact with CONTRACTOR and shall be
available to assist COUNTY twenty-four (24) hours per day, seven (7) days per week as a
contact in resolving CONTRACTOR’s and any Authorized Persons’ obligations associated
with a Security Breach or a Privacy Practices Complaint.
D. Security Breach Procedures.
(1) Immediately upon CONTRACTOR’s awareness or reasonable belief of a Security
Breach, CONTRACTOR shall (a) notify the Director of the Security Breach, such notice to
be given first by telephone at the following telephone number, followed promptly by email at
the following email address: (559) 600-6200 / ematthews@fresnocountyca.gov (which
telephone number and email address COUNTY may update by providing notice to
CONTRACTOR), and (b) preserve all relevant evidence (and cause any affected Authorized
Person to preserve all relevant evidence) relating to the Security Breach. The notification
shall include, to the extent reasonably possible, the identification of each type and the extent
Exhibit A
“Data Security”
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of Personal Information that has been, or is reasonably believed to have been, breached,
including but not limited to, compromised, or subjected to unauthorized Use, Disclosure, or
modification, or any loss or destruction, corruption, or damage.
(2) Immediately following CONTRACTOR’s notification to COUNTY of a Security
Breach, as provided pursuant to subsection D.(1) of this Exhibit A, the Parties shall
coordinate with each other to investigate the Security Breach. CONTRACTOR agrees to
fully cooperate with COUNTY, including, without limitation: (i) assisting COUNTY in
conducting any investigation; (ii) providing COUNTY with physical access to the facilities
and operations affected; (iii) facilitating interviews with Authorized Persons and any of
CONTRACTOR’s other employees knowledgeable of the matter; and (iv) making available
all relevant records, logs, files, data reporting and other materials required to comply with
applicable law, regulation, industry standards, or as otherwise reasonably required by
COUNTY. To that end, CONTRACTOR shall, with respect to a Security Breach, be solely
responsible, at its cost, for all notifications required by law and regulation, or deemed
reasonably necessary by COUNTY, and CONTRACTOR shall provide a written report of the
investigation and reporting required to the Director within thirty (30) days after the
CONTRACTOR’s discovery of the Security Breach.
(3) County shall promptly notify CONTRACTOR of the Director’s knowledge, or
reasonable belief, of any Privacy Practices Complaint, and upon CONTRACTOR’s receipt of
notification thereof, CONTRACTOR shall promptly address such Privacy Practices
Complaint, including taking any corrective action under this Exhibit A, all at
CONTRACTOR’s sole expense, in accordance with applicable privacy rights, laws,
regulations and standards. In the event CONTRACTOR discovers a Security Breach,
CONTRACTOR shall treat the Privacy Practices Complaint as a Security Breach. Within
twenty-four (24) hours of CONTRACTOR’s receipt of notification of such Privacy Practices
Complaint, CONTRACTOR shall notify COUNTY whether the matter is a Security Breach, or
otherwise has been corrected and the manner of correction, or determined not to require
corrective action and the reason therefor.
Exhibit A
“Data Security”
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(4) CONTRACTOR shall take prompt corrective action to respond to and remedy any
Security Breach and take mitigating actions, including but not limiting to, preventing any
reoccurrence of the Security Breach and correcting any deficiency in Security Safeguards as
a result of such incident, all at CONTRACTOR’s sole expense, in accordance with
applicable privacy rights, laws, regulations and standards. CONTRACTOR shall reimburse
COUNTY for all reasonable costs incurred by COUNTY in responding to, and mitigating
damages caused by, any Security Breach, including all costs of COUNTY incurred relation
to any litigation or other action described subsection D.(5) of this Exhibit A.
(5) CONTRACTOR agrees to cooperate, at its sole expense, with COUNTY in any
litigation or other action to protect COUNTY’s rights relating to Personal Information,
including the rights of persons from whom COUNTY receives Personal Information.
E. Oversight of Security Compliance.
(1) CONTRACTOR shall have and maintain a written information security policy that
specifies Security Safeguards appropriate to the size and complexity of CONTRACTOR’s
operations and the nature and scope of its activities.
(2) Upon COUNTY’s written request, to confirm CONTRACTOR’s compliance with
this Exhibit A, as well as any applicable laws, regulations and industry standards,
CONTRACTOR grants COUNTY or, upon COUNTY’s election, a third party on COUNTY’s
behalf, permission to perform an assessment, audit, examination or review of all controls in
CONTRACTOR’s physical and technical environment in relation to all Personal Information
that is Used by CONTRACTOR pursuant to this Agreement. CONTRACTOR shall fully
cooperate with such assessment, audit or examination, as applicable, by providing
COUNTY or the third party on COUNTY’s behalf, access to all Authorized Employees and
other knowledgeable personnel, physical premises, documentation, infrastructure and
application software that is Used by CONTRACTOR for Personal Information pursuant to
this Agreement. In addition, CONTRACTOR shall provide COUNTY with the results of any
audit by or on behalf of CONTRACTOR that assesses the effectiveness of CONTRACTOR’s
information security program as relevant to the security and confidentiality of Personal
Exhibit A
“Data Security”
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Information Used by CONTRACTOR or Authorized Persons during the course of this
Agreement under this Exhibit A.
(3) CONTRACTOR shall ensure that all Authorized Persons who Use Personal
Information agree to the same restrictions and conditions in this Exhibit A. that apply to
CONTRACTOR with respect to such Personal Information by incorporating the relevant
provisions of these provisions into a valid and binding written agreement between
CONTRACTOR and such Authorized Persons, or amending any written agreements to
provide same.
F. Return or Destruction of Personal Information.
Upon the termination of this Agreement, CONTRACTOR shall, and shall instruct all
Authorized Persons to, promptly return to COUNTY all Personal Information, whether in
written, electronic or other form or media, in its possession or the possession of such
Authorized Persons, in a machine readable form used by COUNTY at the time of such
return, or upon the express prior written consent of the Recorder and the Director, securely
destroy all such Personal Information, and certify in writing to the COUNTY that such
Personal Information have been returned to COUNTY or disposed of securely, as
applicable. If CONTRACTOR is authorized to dispose of any such Personal Information, as
provided in this Exhibit A, such certification shall state the date, time, and manner (including
standard) of disposal and by whom, specifying the title of the individual. CONTRACTOR
shall comply with all reasonable directions provided by the Recorder and the Director with
respect to the return or disposal of Personal Information and copies thereof. If return or
disposal of such Personal Information or copies of Personal Information is not feasible,
CONTRACTOR shall notify COUNTY according, specifying the reason, and continue to
extend the protections of this Exhibit A to all such Personal Information and copies of
Personal Information. CONTRACTOR shall not retain any copy of any Personal Information
after returning or disposing of Personal Information as required by this section F.
CONTRACTOR’s obligations under this section F survive the termination of this Agreement
Exhibit A
“Data Security”
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and apply to all Personal Information that CONTRACTOR retains if return or disposal is not
feasible and to all Personal Information that CONTRACTOR may later discover.
G. Equitable Relief.
CONTRACTOR acknowledges that any breach of its covenants or obligations set
forth in this Exhibit A may cause COUNTY irreparable harm for which monetary damages
would not be adequate compensation and agrees that, in the event of such breach or
threatened breach, COUNTY is entitled to seek equitable relief, including a restraining order,
injunctive relief, specific performance and any other relief that may be available from any
court, in addition to any other remedy to which COUNTY may be entitled at law or in equity.
Such remedies shall not be deemed to be exclusive but shall be in addition to all other
remedies available to COUNTY at law or in equity or under this Agreement.
H. Indemnification.
CONTRACTOR shall defend, indemnify and hold harmless COUNTY, its officers,
employees, and agents, (each, a “COUNTY Indemnitee”) from and against any and all
infringement of intellectual property including, but not limited to infringement of copyright,
trademark, and trade dress, invasion of privacy, information theft, and extortion,
unauthorized Use, Disclosure, or modification of, or any loss or destruction of, or any
corruption of or damage to, Personal Information, Security Breach response and remedy
costs, credit monitoring expenses, forfeitures, losses, damages, liabilities, deficiencies,
actions, judgments, interest, awards, fines and penalties (including regulatory fines and
penalties), costs or expenses of whatever kind, including attorneys’ fees and costs, the cost
of enforcing any right to indemnification or defense under this Exhibit A and the cost of
pursuing any insurance providers, arising out of or resulting from any third party claim or
action against any COUNTY Indemnitee in relation to CONTRACTOR’s, its officers,
employees, or agents, or any Authorized Employee’s or Authorized Person’s, performance
or failure to perform under this Exhibit A or arising out of or resulting from CONTRACTOR’s
failure to comply with any of its obligations under this section H. The provisions of this
section H do not apply to the acts or omissions of COUNTY. The provisions of this section H
Exhibit A
“Data Security”
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are cumulative to any other obligation of CONTRACTOR to, defend, indemnify, or hold
harmless any COUNTY Indemnity under this Agreement. The provisions of this section H
shall survive the termination of this Agreement.
I. Survival.
The respective rights and obligations of CONTRACTOR and COUNTY as stated in
this Exhibit A shall survive the termination of this Agreement.
J. No Third Party Beneficiary.
Nothing express or implied in the provisions of in this Exhibit A is intended to confer,
nor shall anything herein confer, upon any person other than COUNTY or CONTRACTOR
and their respective successors or assignees, any rights, remedies, obligations or liabilities
whatsoever.
L. No County Warranty.
COUNTY does not make any warranty or representation whether any Personal
Information in CONTRACTOR’s (or any Authorized Person’s) possession or control, or Use
by CONTRACTOR (or any Authorized Person), pursuant to the terms of this Agreement is or
will be secure from unauthorized Use, or a Security Breach or Privacy Practices Complaint.
Exhibit B
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 (hereinafter referred to as “County Contractor”), must
disclose any self-dealing transactions that they are a party to while providing goods, performing
services, or both for the County. A self-dealing transaction is defined below:
“A self-dealing transaction means a transaction to which the corporation is a party and in which one
or more of its directors has a material financial interest”
The definition above will be 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).
Exhibit B
(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: