Exhibit 12
MASTER SERVICES AGREEMENT
FOR
INFORMATION TECHNOLOGY OUTSOURCED SERVICES
BETWEEN
LEE COUNTY, FLORIDA, U.S.A.
AND
_______________________________
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Information Technology Outsourced Services
TABLE OF CONTENTS
Article
Title
Page
1
Recitals and Relationship
3
2
Definitions
4
3
Working Relationship
9
4
Compensation
30
5
Intellectual Property Rights and Confidentiality
33
6
Insurance and Indemnification
41
7
Representations
45
8
Equal Employment Opportunity
46
9
Term and Termination
47
10
Disentanglement Services
50
11
General
54
12
Legal Matters
55
13
Dispute Resolution
57
14
Miscellaneous
57
Schedule Index
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MASTER SERVICES AGREEMENT
FOR
INFORMATION TECHNOLOGY OUTSOURCED SERVICES
THIS AGREEMENT (“Agreement”) is made and entered into this ____ day of
______________, 2018, by and between Lee County, a political subdivision of the State of
Florida, hereinafter referred to as the “County” and __________, a __________ corporation
authorized to do business in the State of Florida, whose address is _______________, and
whose federal tax identification number is _____________, hereinafter referred to as “Service
Provider.”
RECITALS:
WHEREAS, the County is a political subdivision of the State of Florida established to provide
governmental services for the use and benefit of the residents of Lee County, Florida; and
WHEREAS, the Service Provider is in the business of providing comprehensive computing
management services to large private-sector and public-sector entities; and
WHEREAS, the County has identified the need to procure outsourced information technology
services and has issued a request for proposals for outsourced information technology services,
Request for Proposal No. ____, advertised on ____, 2018 (the “Solicitation”); and
WHEREAS, the Service Provider has reviewed the scope of services sought by the County’s
Solicitation and described in this Agreement and represents and warrants to the County that it
is qualified, willing and able to provide all such products and services in accordance with the
terms and provisions of this Agreement; and
WHEREAS, the County has received and evaluated responses to its Solicitation and has
determined Service Provider to be the most qualified to provide the outsourced information
technology services sought by the County; and
WHEREAS, the Service Provider and County desire to enter into this Agreement, pursuant to
which Service Provider will plan, manage and operate the County’s administrative systems
environments all in accordance with the terms and conditions of this Agreement and as more
fully set forth and described in the Schedules attached hereto.
OPERATIVE PROVISIONS
NOW, THEREFORE, for and in consideration of the mutual covenants and agreements set
forth herein, and for other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the County and the Service Provider, intending to be legally bound,
covenant and agree as follows:
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Article 1
RECITALS AND RELATIONSHIP
1.1 Recitals. The recitals set forth above are true and correct and are incorporated herein by
reference in their entirety.
1.2 Relationship. The Service Provider accepts the relationship of trust and confidence
established between it and the County by this Agreement. The Service Provider covenants with
the County to furnish its best skill and judgment and to cooperate with the County in furthering
the interests of the County. The Service Provider agrees to provide efficient, competent On-
site services and management and to use its best efforts to deliver its services in the best and
soundest way and in the most expeditious and economical manner consistent with the interests
of the County.
Article 2
DEFINITIONS
The following definitions shall apply to the terms used in this Agreement.
2.1 “Affiliate” means, with respect to any specified person or entity, any other person or entity that
directly or indirectly through one or more intermediaries, Controls or is Controlled by, or is
under common Control with, the specified person or entity.
2.2 “Agreement” shall mean this Agreement and any Schedules, Exhibits, or other written
amendments to this Agreement.
2.3 “Agreement Term” shall mean that period of time beginning with the Effective Date and
continuing until the Expiration Date.
2.4 “Appendices” or “Schedules” means any appendix, schedule, exhibit, agreement, Service
Agreement, or other document either (i) attached to this Master Agreement and incorporated
by reference herein, (ii) attached and incorporated into a Service Agreement which is
incorporated by reference herein; or (iii) executed by the Parties at any time hereafter and
incorporated into this Master Agreement, or any Service Agreement, pursuant to the provisions
of this Master Agreement or the Service Agreement.
2.5 “Business Day” means any day during which County Administration is generally conducting
business.
2.6 “Change Order” means a mutual written agreement between, and executed by, the Parties (1)
authorizing changes in the scope of Services and tasks, compensation, methods of payment,
time and schedule of performance, or any other project resources; or (2) authorizing the Service
Provider to perform additional or supplemental work, with all labor charges outlined. All
Change Orders shall be processed in accordance with the Change Order Process defined herein.
2.7 “Commencement Date” means the date established by the County’s notice to proceed.
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2.8 “Commercially Reasonable Efforts” means a prompt, diligent, and cost-effective effort, made
in a professional manner, using qualified, experienced individuals.
2.9 “Commercially Reasonable Pricing” means the industry-specific average level of pricing used
by other experienced outsourcing companies providing services similar to the Services.
Commercially Reasonable Pricing always assumes the use of prompt, diligent, cost-effective
efforts, made in a professional manner, using qualified, experienced individuals.
2.10 “Configure” shall mean to set up hardware or software for operation in a particular way.
2.11 “Control” and its derivatives means the power to cause, either directly or indirectly, the
direction of the management and policies of a person or entity, whether through the ownership
of securities, by Contract, or otherwise.
2.12 “County Data” means all County information, irrespective of where it is stored, such as
records, notes, computer files, databases, reports, etc., specifically prepared, developed or
managed by the Service Provider, whether in written or electronic form.
2.13 “County Equipment” means any hardware or equipment owned by County.
2.14 “County Software” means any Software owned by or licensed to County and used in
conjunction with any of the Services.
2.15 “Dedicated Staff” shall mean staff that works exclusively on Lee County Technology Services
projects, dedicated to the support of the Lee County enterprise. Please see definition for On-
site staff.
2.16 “Defect” shall mean any Defective Performance, excluding events totally beyond Contractor’s
control that do not arise, in whole or in part, from the negligence or intentional misconduct of
Contractor or any of its agents or employees.
2.17 “Demand Management” shall mean the prioritization and fulfillment of both strategic projects
and day-to-day activities.
2.18 “Effective Date” shall mean the date the
Lee County Board of County Commissioners
awarded the Solicitation to the Service Provider.
2.19 “End User” shall refer to the recipient of the services provided by the Service Provider within
this Agreement.
2.20 “Exempt Information” refers to the relevant information described in Article 5 of this Master
Agreement.
2.21 “Expiration Date” shall mean the date on which this Agreement expires or is otherwise
terminated.
2.22 “Facilitate” shall mean to assist in the fulfillment of a technical solution or goal.
2.23 “Incident” shall mean any situation where any equipment or software normally in operation is
no longer in service due to a breakdown.
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2.24 “Install, Move, Add and Change (IMAC) New Configuration or Reconfiguration shall mean
to install new equipment, add hardware or software to existing equipment, or cascade personal
computers (PCs) from one area to another. Add is defined as adding hardware or software to
existing equipment. A move, change or new configuration or reconfiguration is defined as
existing equipment that is moved from one location to another or existing software that is
moved from one machine to another. Installations, moves, adds and changes are generally
scheduled tasks.
2.25 “Intellectual Property Rights” means patents (and the rights relating thereto), copyrights and
copyright registrations (and the rights relating thereto), trade secrets (and the rights relating
thereto), trademarks, service marks, and trademark and service mark registrations (and the
rights and goodwill relating thereto), and Confidential Information (and the rights relating
thereto).
2.26 “Local Area Network” (LAN) shall mean a network that connects computers/devices that are
close to each other, usually in the same building, linked by a cable or a wireless network
connection.
2.27 “Location” means County’s data processing facilities, including, but not limited to, the
facilities located throughout the County.
2.28 “Losses” means all losses, liabilities, damages and claims, and all related costs and expenses
(including any and all reasonable legal fees and reasonable costs of investigation, litigation,
settlement, judgment, appeal, interest and penalties).
2.29 “Maintenance” shall mean the upkeep of hardware or software, to keep the hardware or
software in an existing state of repair or service.
2.30 “Master Agreement” or “Agreement” or “Contract” means this Master Services Agreement for
Information Technology Outsourced Services and, where the meaning so requires, all
Schedules incorporated by reference herein.
2.31 “Network Infrastructure” shall mean a data communications system, which includes the
backbones, routers, switches, wireless access points, access methods and protocols used for
connectivity between computing devices.
2.32 “Non-Recurring Initiative” shall mean a discrete unit of non-recurring work that is not
described or provided for in any Service Tower, not an inherent, necessary or customary part
of the day-to-day Services in any Service Tower and not required to be performed by the
Service Provider to meet its obligations under an Agreement for services. All Non-Recurring
Initiatives require County written approval before proceeding.
2.33 “Normal Hours of Support” shall mean a working day, Monday through Friday, excluding
County holidays, starting at 7:00AM EST and ending at 5:30PM EST. The County Libraries
are open until 9:00PM Monday through Saturday.
2.34 “On-site” shall refer to Dedicated Staff physically performing work on County premises
(Locations), within the boundaries of the County.
2.35 “Operating System” shall mean the master control programs that run the computer system.
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2.36 “Parties” means County and Service Provider; “Party” means either County or Service
Provider.
2.37 “Pass-Through Expenses” means the actual invoiced amounts charged to Service Provider by
third parties that the County has agreed to pay directly or for which it has agreed to reimburse
Service Provider. Pass-Through Expenses shall not include any Service Provider profit,
administrative fee or overhead charges.
2.38 “Performance Indicators” shall mean the measures defined in the various Towers of Service.
2.39 “Problem Escalation” shall mean the agreed procedure for alerting and notifying increasingly
senior members of the Service Provider’s management of the non-resolution of problems.
2.40 “Repair” shall mean to restore or mend hardware or the functionality of software, including
by replacement of a component part or defective software.
2.41 “Response” shall mean technical staff assigned to a support request that arrives On-site, or
makes contact with the End User via telephone to gather additional information regarding the
request, and establishes an estimated time to repair or complete the service.
2.42 “Response Time” shall mean the length of time between the initiation of a County Service
Request for a technical or non-technical issue and the point at which the Service Provider
responds to such a Service Incident, initiated via phone, email or other methods.
2.43 “Service Agreement” shall mean all agreements entered into between the parties pertaining to
any of the seven Service Towers referenced in this Agreement.
2.44 “Service Agreement Commencement Date” means the date on which Service Provider begins
providing Services under a Service Agreement.
2.45 “Service Agreement Term” shall refer to both the original term of the applicable Service
Agreement and any renewal of the Service Agreement.
2.46 “Service Incident” shall mean any situation where any equipment or software normally in
operation is no longer in service due to a breakdown.
2.47 “Service Level Agreement” (SLA) shall mean a contract between a service provider (either
internal or external) and the End User that defines the level of service expected from the service
provider. SLAs are output-based in that their purpose is specifically to define what the customer
will receive.
2.48 “Service Level,” “Service Level Measurement,” “Service Level Standard,” and “Service Level
Credits” defined as specifics regarding how the Service Level Agreement commitments are
monitored and measured.
2.49 “Service Provider Equipment” means the computer, communications and other equipment
owned or leased by Service Provider and used by Service Provider to provide the Services.
Equipment includes, without limitation, all associated accessories and peripheral devices used
in the provision of Services.
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2.50 “Service Provider Facilities” means the facilities owned or leased by Service Provider and from
which the Service Provider will provide any Services as specifically identified in a Services
Agreement.
2.51 “Service Provider Personnel” means employees of Service Provider and its subcontractors
assigned to perform Services or who will have access to County computer systems, either
through on-site or remote access.
2.52 “Service Provider Software” means any Software owned by or licensed to Service Provider
and used in conjunction with any of the Services.
2.53 “Service Request” shall mean a request submitted by County to Service Provider for effort
related to any activity considered under the scope of services for a particular Service Tower.
2.54 “Service Tower” means a self-contained subset of the technological services to be provided
under this Agreement that can be identified, measured, priced and benchmarked.
2.55 “Services” shall mean those services more particularly described in this Agreement and all
associated Service Agreements.
2.56 “Shared Staff” shall mean Service Provider staff that works on projects for other clients in
addition to projects for the County.
2.57 “Software” means any computer software and associated documentation that relates to Services
provided under a Service Agreement, and includes any County Software, Service Provider
Software and Third Party Software.
2.58 “Support” shall mean to provide assistance in using, maintaining or operating information
technology systems.
2.59 “Systems” means the hardware and Software operating together as a system.
2.60 “Target Resolution Time” shall mean the measurement of time it takes to resolve an End User’s
issue or answer their question. It is measured from the time a Service Incident record is created,
until the time that the End User is advised their problem has been resolved.
2.61 “Term” shall refer to both the original term of the Master Agreement and any renewal of the
Master Agreement.
2.62 “Termination Date” shall mean the date on which the termination of this Agreement is
effective.
2.63 “Third Party” means any party, person, service provider, company or entity not a party to this
Contract.
2.64 “Third Party Contracts” means any contract that is a Third Party Software License or Third
Party Service contract.
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2.65 “Third Party Service Contracts” means, collectively, (i) the agreements between County and a
third party pursuant to which the third party is providing to County, immediately before a
Service Agreement Effective Date, any services included within the Services, and (ii) the
agreements between Service Provider and a third party pursuant to which the third party is
providing to County or Service Provider, at any time during the applicable Service Agreement
Term, any services included within the Services.
2.66 “Third Party Software” means any Software that is owned by a party other than Service
Provider or County and used to provide the Services.
2.67 “Third Party Software License” means a license agreement that authorizes County or Service
Provider to use Third Party Software.
2.68 “Tower” means a Service Tower as identified in each Service Agreement. Each Service
Agreement will address a Tower.
2.69 “VIP” or “VIP List” shall mean a predefined list of End Users established by the County for
the purposes of establishing elevated service priorities for key County staff.
2.70 “Virus” shall mean files, programs or program code designed to cause any action not authorized
including, for example, to affix themselves to, bury themselves within, or send instructions to,
other files, programs or program code in order to cause malfunctions, errors or destruction or
corruption of data when affixed or at a later time.
2.71 “Wide Area Network” (WAN) shall mean a network in which computers are connected to each
other over a long distance.
2.72 “Wireless LAN” shall mean a network in which a mobile user can connect to a local area
network (LAN) through a wireless (radio) connection.
2.73 “Work-week” means forty hours of time expended by a single individual.
Article 3
WORKING RELATIONSHIP
3. SERVICES
3.1.1 Service Towers. The Services to be provided by Service Provider are divided into seven (7)
Service Towers. The Service Towers consist of the following:
3.1.1.1 Tower One: Information Technology (IT) Governance and Management. This Tower extends
throughout the entire County organization and involves strategy and decision making relative
to IT. This Tower ensures that IT initiatives are aligned with the overall strategy and plans of
the County organization. This Tower also involves tactical planning and execution of specific
projects identified by the County’s strategy and decision making relative to IT.
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3.1.1.2 Tower Two: Infrastructure Services. This Tower involves operation, maintenance and support
of the enterprise technology infrastructure which includes the collection of hardware, software,
networks, data centers, facilities and related equipment used to develop, test and deliver
information technology services to the County.
3.1.1.3 Tower Three: Cyber Security Services. This Tower encompasses cyber security controls and
systems, along with the development and ongoing administration of a cyber security network.
This Tower spans the entirety of the technology environment, helping to secure a proper
security posture that reduces risk and provides for appropriate counter measures and mitigation
approaches.
3.1.1.4 Tower Four: Telecommunications Services. This Tower involves the maintenance and support
of telephone services and Wide Area Network (WAN) environment. Within this Tower is the
support and maintenance of the fiber network owned and issued by the County.
Telecommunication services for the County supports the Board of County Commissioners
(BoCC) and all other constitutional officers in the County.
3.1.1.5 Tower Five: Application Services. This Tower involves the deployment, maintenance and
support of software applications which enable business and data management services.
Application development, application maintenance and application support are the three sub-
Tower components. System administration and upkeep of enterprise resource planning (ERP)
system(s) is not included in the Services provided under this Agreement.
3.1.1.6 Tower Six: End User Technology Services. This Tower involves direct support of the
County’s End Users and End User computing devices such as desktops, laptops and tablets.
Key aspects of this Tower include help desk, field services and asset management.
3.1.1.7 Tower Seven: Disaster Recovery and Emergency Operations. This Tower encompasses
disaster recovery and business continuity for all, or most, of the County’s critical business
applications and related infrastructure. Included in this Tower is the support of the Emergency
Operations Center (EOC) in the event of a disaster.
3.1.2 Service Agreements. A Service Agreement shall be issued by the County, pursuant to this
Agreement, for each Service Tower. The terms of this Agreement are incorporated by reference
into each Service Agreement issued by the County and shall form an integral part of each such
Service Agreement. In the event of a conflict or discrepancy between the terms of this
Agreement and any Service Agreement issued pursuant to the terms of this Agreement, the
terms of this Agreement shall control.
3.1.2.1 Use of Service Agreements. This Master Agreement contains general contractual terms for
the Services to be provided to County by Service Provider. Separate Service Agreements shall
be entered into between the Parties for the discrete Services related to each individual Service
Tower.
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3.1.2.2 Contents of Service Agreements. Each Service Agreement shall describe the specific services
to be provided by the Service Provider for a Service Tower, the compensation to be paid and
provisions for payment, the term for performance, the applicable Service Level Measurements
and Service Level Standards (if any), and such other provisions that are specific to the Service
Agreement. A form of Service Agreement Contract is attached hereto and incorporated herein
as Schedule “A.” Schedule “A” describes the information to be contained and the requirements
that apply to all Service Agreements unless the parties expressly agree otherwise in writing in
a specific Service Agreement.
3.1.2.3 Service Agreements a part of Master Agreement. Except as may otherwise be provided in
a Service Agreement, each Service Agreement shall unambiguously incorporate by reference,
and shall be subject to, the terms and conditions of this Master Agreement. The parties
expressly intend that, by virtue of the execution of this Master Agreement, each and every
provision of this Master Agreement shall be viewed as being incorporated into each and every
Service Agreement. No Services shall be provided by Service Provider for a Service Tower
unless and until the appropriate discrete Service Agreement has been duly signed and delivered
by the County. Each Service Agreement shall generally be in the form, and shall contain the
information and terms, described in Schedule A.
3.1.3 Initial Service Agreements. As of the Effective Date of this Master Agreement, County and
Service Provider are entering into discrete Service Agreement contracts No. 1 through 7 (copies
of which are attached hereto as Schedules D through J).
3.1.4 Non-Recurring Initiatives. The Service Provider shall provide Non-Recurring Initiative
support at the County’s request as described herein:
3.1.4.1 Non-Recurring Initiatives Hour Bank. The Service Provider shall include within its service fee
established by each Service Agreement an annual hour bank of 400 hours per year. This hour
bank shall be utilized to perform Non-Recurring Initiatives initiated in writing by the County
and duly executed by the Service Provider. Hours expended by the Service Provider addressing
Non-Recurring Initiatives shall be charged against the hour bank. At the end of each calendar
year during the term of this Agreement, any unused hours shall be rolled over and added to the
hour bank established for the next year. In the event of a termination of the Agreement between
the County and the Service Provider, any unused hours will be credited against any sums due
the Service Provider. The Service Provider shall be responsible for maintaining an accurate
record as to the number of hours expended from the hour bank on Non-Recurring Initiatives.
The Service Provider shall be responsible for turning in to the County, on a monthly basis, all
hours expended by the Service Provider on Non-Recurring Initiatives and the Non-Recurring
Initiatives for which such hours have been expended.
3.1.4.2 Initiating Non-Recurring Initiatives. Non-Recurring Initiatives are commenced by the
County’s issuance to the Service Provider of a written Non-Recurring Initiative. The Non-
Recurring Initiative will define a formal scope of work that defines the key activities to be
completed, milestones, acceptance criteria, schedule and estimated hours. The scope of work
will be mutually agreed upon in writing and jointly developed by the County and the Service
Provider before the work commences.
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3.1.4.3 Existing Non-Recurring Initiatives. The Non-Recurring Initiatives in progress and planned as
of the Commencement Date are specified in Schedule K Application Project Listing attached
hereto and incorporated herein (the “On-Going Non-Recurring Initiatives”). If the Service
Provider desires to make any change to a Non-Recurring Initiative that is underway as of the
Commencement Date, or those that are planned and listed in Schedule K, then Service Provider
shall submit to County a written proposal describing such change and the potential impact of
such change, and the County may, in its sole discretion, approve or reject such proposal.
Notwithstanding anything contained herein to the contrary, Service Provider shall be
responsible for the completion of all On-Going Non-Recurring Initiatives existing as of the
Commencement Date unless the County has agreed in writing to amend or change the same in
the form of a Change Order executed by both Parties.
3.1.5 Qualified Resources. Except as otherwise expressly provided in a Service Agreement, Service
Provider shall provide, at its expense, all of the personnel, Equipment (except that which is
owned or retained by the County, including but not limited to, processing equipment and
monitoring tools), Software, services and other resources necessary to provide the Services.
Service Provider shall not implement any action or decision regarding such resources that
would have an adverse effect on the Services (including, without limitation, changes in
Equipment, Software and systems configurations), Service Level Measurements, Service Level
Standards, or County costs and expenses without the prior written consent in the form of a
Change Order executed by both Parties. Service Provider will provide and have On-site, its
Project Manager at the commencement and for the duration of the applicable Service
Agreement Term, and will timely provide additional trained and qualified personnel to meet
the Service Levels as specified in accordance with this Master Agreement and each Service
Agreement.
3.1.6 Inherent Services. Throughout each Service Agreement Term, Service Provider shall provide
the services described in the Service Agreements, as such Service Agreements may be amended
and supplemented from time to time. There may be services not specifically described in this
Master Agreement or a Service Agreement which are implicit in the Services as described. If
such services are determined to be reasonably required for the proper performance and
provisions of the Services, such services shall be deemed to be implied by and included within
the scope of the Services at no additional cost to the same extent and in the same manner as if
specifically described in the applicable Service Agreement. Service Provider shall provide the
Services in accordance with all of the terms of this Master Agreement and the applicable
Service Agreement. If such inherent services result in a substantial increase in Service
Provider resources as agreed to by both parties, either of personnel or other resources, such
increase may be addressed pursuant to the Change Order procedure.
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3.1.7 Knowledge Transfer and Best Practices. Service Provider shall implement a knowledge
transfer process which ensures that Service Provider Personnel share the knowledge they have
gained while performing the Services with County and the County’s authorized End Users.
The knowledge transfer process shall be designed to efficiently pass important knowledge,
information and practices from Service Provider and Service Provider Personnel to County and
County’s authorized users. At a minimum, such knowledge transfer processes shall include
Service Provider meetings with County and designated County authorized users at least once
every twelve (12) months, or more frequently as County may request, to (a) explain how the
County IT environment operates in connection with the provision of the Services; (b) explain
how the Services are provided; and (c) make proposals to County to provide such training,
documentation and other materials as County may require for County to understand and operate
the County IT environment, and understand and provide the Services after the expiration or
termination of the Agreement. As part of the regular performance reviews, Service Provider
shall report to the County Manager or designee on Service Provider-observed opportunities for
the introduction of best practices into County’s processes. Beginning in the second year of the
Agreement, and annually thereafter, Service Provider shall work with the County Manager or
designee to develop and present a yearly briefing to County (1) on Service Provider’s
recommended best practice improvements to targeted County processes, (2) on how the use of
such best practices is intended to align County’s technology investments with its objectives
and (3) on how to optimize County’s return on its technology investments/services. Service
Provider shall provide the Services using the appropriately skilled Service Provider Personnel
and without regard to the unit, line of business or division within Service Provider to which
such Service Provider Personnel are assigned.
3.1.8 Technology and Process Evolution. As part of the Services, Service Provider acknowledges
and agrees that: (a) the current information technology and business processes utilized by
Service Provider in the performance of the Service Agreements shall continue to evolve and
change over time; and (b) it shall continuously undertake, deploy, implement and support the
evolution of County technology and related business process throughout the Term.
3.1.9 Leading Standards. Throughout the Term, Service Provider shall remain consistent with the
practices generally followed by other providers of services similar to the Services and with the
objectives and needs of County. Service Provider shall provide the Services using current
information technology resources and processes that are designed to allow County to take
advantage of advances in the industry. Without limiting the generality of the foregoing, all
Service Provider Equipment and Service Provider Software used to provide the Services will
be kept at levels supportable by the respective manufacturers, and such Service Provider
Equipment will be upgraded or replaced as required to meet the Service Levels and
manufacturer-recommended requirements.
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3.1.10 Monitoring Trends. As part of the Services and with respect to the Services, Service Provider
shall use reasonable efforts to proactively and periodically monitor and analyze new
information technologies, business processes, shared service strategies and emerging trends
that may have interest or applicability to County and/or that reasonably could be expected to
have a positive impact on County, including in the areas of increased efficiency, increased
quality and/or reduced costs (“Enhanced Technology”). Service Provider shall meet with
County to formally brief County regarding such new processes, technologies, processes,
strategies and trends. Such briefing shall include Service Provider’s assessment of the business
impact, performance improvements and cost savings associated with such processes,
technologies, strategies and trends. If requested by County, Service Provider shall develop and
present to County proposals for: (a) implementing such new processes, strategies and trends
as part of the Technology and Process Evolution described in this Article 3; or (b) changing
the direction of County’s then-current information technology strategy, processes and
procedures.
3.1.11 Commercially Reasonable Pricing. Pricing proposed by Service Provider for Services shall
be Commercially Reasonable Pricing and, to the extent third party products or services are not
included, such products and services will be treated as Pass-Through Expenses so as to provide
County the benefit of any specialized pricing available to Service Provider.
3.1.12 Service Agreement Term. No Service Agreement Term shall extend beyond the Term of this
Master Agreement, or any renewal.
3.1.13 Acceptance. County shall have ten (10) Business Days or such other period as the County may
reasonably require to accept or reject any deliverables (“Acceptance Period”). In the event the
County rejects any deliverables within the Acceptance Period, Service Provider will perform
any necessary rework at no additional cost to the County within a delivery time acceptable to
the County and agreed to in writing. Upon completion, Service Provider shall resubmit the
deliverables for acceptance. If Service Provider fails to provide deliverables that are acceptable
to the County after the initial rework, the County may reject the work and bring in a third party
to complete the work at the Service Provider’s cost. The County may cancel the requested
work/deliverables and receive a refund equal to the work performed. In the event of a dispute,
the Service Provider and the County Manager or designee shall meet to discuss resolution in
good faith. In the event County fails to accept or reject the deliverables within the agreed upon
time period, Service Provider shall provide written notice to the County Manager or designee
of the County’s failure to provide such acceptance or rejection and the County shall reply within
three (3) Business Days of the status and any additional time required.
3.2 COOPERATION
3.2.1 Cooperation. Service Provider agrees to use Commercially Reasonable Efforts to comply with
County's reasonable requests for cooperation and assistance for the County and the County’s
third party service providers, subject to Change Order procedures. The parties acknowledge
and agree that, beyond the satisfaction of Service Level Standards, performance under this
Agreement will require the continued definition and setting of numerous priorities and the
balancing of competing tasks and schedules. Service Provider and the County agree that they
will each use good faith and reasonable efforts to define, plan, coordinate and execute the
different priorities, tasks and schedules agreed to by the parties within the scope of this
Agreement.
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3.2.2 3.2.2 Meetings, Reports. Service Provider personnel shall keep County personnel fully and
regularly informed about Service Provider activities as provided herein. Service Provider and
County representatives shall meet as frequently as County representatives reasonably deem
necessary. Service Provider shall prepare and deliver to County the reports described in each
Service Agreement (“Reports”) by the respective deadlines specified in each Service
Agreement. At no charge to County, Service Provider shall make minor modifications to the
Reports or provide supplemental Reports as reasonably requested by County from time to time
and as agreed upon by the Parties. Service Provider’s Program Manager shall provide a regular
monthly status report to the County Manager or designee no later than by the 5
th
Business Day
of the following month.
3.2.3 Use of County Facilities and Equipment. (a) During the Term of a Service Agreement,
County shall have the option, but not the obligation, to make available to Service Provider
furnished space in County’s office facilities as reasonably determined by County to be suitable
for Service Provider to carry out functions associated with the Services (the “County
Facilities”) and certain County Equipment identified in each Service Agreement that will
continue to be owned by County. (b) Service Provider shall: (i) use the space in the County
Facilities for the sole purpose of providing the Services; (ii) comply with the leases and other
agreements applicable to the County Facilities; (iii) comply with all policies and procedures
governing access to and use of County Facilities; and (iv) return such space to County in the
same condition it was in on the Service Agreement Effective Date, ordinary wear and tear
excepted. Except to the extent included in the Services and charges described in the applicable
Service Agreement (e.g., supplies and consumables used in providing the Services), County
shall provide the County Facilities at no charge to Service Provider; provided, however, that
Service Provider shall be responsible for costs associated with any County Facilities leased by
County. Service Provider shall remain responsible for any required personal computers and
peripherals, long distance charges and all other expenses incurred by Service Provider’s On-
site account management team; (c) Service Provider shall: (i) use the County Equipment for
the sole purpose of providing the Services; (ii) comply with any directions from County
concerning the location of the County Equipment; (iii) provide, or arrange for third parties to
provide, maintenance of the County Equipment; and (iv) return such equipment to County,
upon termination of the applicable Service Agreement, in the same condition it was in on the
Service Agreement Effective Date, ordinary wear and tear excepted. Service Provider shall be
responsible for costs associated with any facilities provided by Service Provider pursuant to
the provisioning of remote services. County shall at all times maintain ownership of any and
all County Equipment and County Software. Service Provider shall have no cost responsibility
of or ownership, leasehold or proprietary interest in existing County Equipment or County
Software. However, if the Parties agree that Service Provider shall provide one or more supplies
to County, the cost to County of such supplies shall be treated as a Pass-Through Expense.
County Facilities shall at all times be compliant with all applicable Federal, State and local
laws, regulations, and ordinances relating to occupational, safety, health and environment.
3.2.4 Dedicated Facilities. During any time Services are performed at the County Facilities, Service
Provider shall provide the Services using hardware, software and related resources dedicated
solely to supporting County. Unless otherwise expressly provided in a Service Agreement, all
Services provided from the offsite Service Provider’s Facilities may be provided using shared
Equipment and Software Service.
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3.2.5 Assumption of Equipment Leases. If specified in a Service Agreement, County shall assign
to Service Provider County’s obligations and any corresponding rights under the applicable
leases for equipment used to provide the Services as described in the Services Agreement or
County may sell equipment owned by it to Service Provider (the “Transferred Equipment”).
Service Provider shall obtain consents to such assignments and releases of County’s liability
under such leases as promptly as practicable. Any assignment of County’s interests in the
Transferred Equipment is made “AS IS, WHERE IS,” WITHOUT WARRANTIES OF ANY
KIND (EXCEPT AS EXPRESSLY STATED IN SUCH SERVICE AGREEMENT), AND
SPECIFICALLY WITHOUT ANY WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE. Notwithstanding the foregoing, Service
Provider shall not have any obligation to purchase or assume any such equipment leases. Any
assumption hereunder shall be governed by an applicable Service Agreement.
3.2.6 Service Agreement Proposals. During the Term of this Master Agreement, regardless of
whether one or more Service Agreements are in effect, Service Provider shall cooperate with
County in providing proposals at Service Provider expense for Service Agreements for
information technology and telecommunications Services reasonably requested by County
from time to time. Service Provider shall use Commercially Reasonable Efforts to provide
Service Agreement proposals featuring Commercially Reasonable Pricing at the earliest date
practicable.
3.2.7 Amendment of Master Agreement. From time to time during the Term, County or Service
Provider may propose changes to the Master Agreement. Any change to this Master
Agreement must be signed by each party and memorialized in a written amendment that
specifically identifies this Master Agreement, the section of this Agreement that is the subject
of the amendment, and the new or amended provision.
3.2.8 Modification of Services under a Service Agreement. If County desires to propose a change
in or addition to the Services under a Service Agreement, it shall deliver a written notice to the
Service Provider Program Manager describing the proposal. Service Provider shall respond to
such proposal as promptly as reasonably possible by preparing, at Service Provider’s expense,
and delivering to the County Manager or designee a written document (“Change Order”),
indicating: (i) the effect of the proposal, if any, on the amounts payable by County; (ii) the
effect of the proposal, if any, on Service Level Measurements in light of related Service Level
Standards; and (iii) any other information requested or reasonably necessary for County to
make an informed decision. If Service Provider desires to propose a change in or addition to
the Services or other aspects of this Agreement, it may do so by preparing at its expense a
Change Order for the County. A Change Order, once submitted to County, shall constitute an
offer by Service Provider to implement the proposal described therein on the terms set forth
therein. No change in or addition to the Services or any other aspect of this Agreement shall
become effective without the written, signed approval of the County and Service Provider. If
County elects to accept the offer set forth in the Change Order, as evidenced by the written,
signed approval of the County, any changes in the Services described in the Change Order shall
thereafter be deemed “Services,” any other changes described in the Change Order shall be
deemed to have amended this Agreement, and the Parties shall agree on any further
modifications to the Agreement required to reflect the Change Order.
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3.2.9 Other Provisioning of Services. County shall have the right to Contract with one or more
third parties (or use internal resources) to perform any services that are in addition to, within
or outside the scope of, the Services. If County contracts with a third party to perform any such
service, Service Provider shall cooperate with County and such third party to the extent
reasonably required by County including provision of (i) assistance and support services to
such third party at the rates specified in the applicable Service Agreement, and (ii) access to
the technical environment operated by Service Provider as reasonably necessary for such third
parties to perform their work. County shall require such third parties to comply with Service
Provider’s reasonable requirements regarding operations. Service Provider shall be obligated
to support and maintain such third party service provider’s work product at County’s request
and cost, if additional costs are incurred by Service Provider, provided the third party service
provider complies with any written, reasonable requirements for system operations provided to
County by Service Provider and agreed to by County.
3.2.10 Regulatory Environment. As part of the Services, Service Provider shall identify the impact,
if any, of changes in applicable laws or regulations as it pertains to Service Provider’s provision
of the Services. Service Provider shall notify County Manager or designee when it becomes
aware of such changes and shall work with County to identify the impact of such changes on
how County uses the Services. County shall notify Service Provider should it become aware of
such changes. Service Provider shall promptly make any resulting modifications to the Services
as reasonably necessary. Service Provider shall be responsible for, and shall pay for, the cost
of any such changes relating to Service Provider’s business. County shall be responsible for
the cost of any such changes relating to County’s business to the extent such changes require
computer resources in excess of the resources otherwise provided by Service Provider as part
of the Services. Service Provider shall be responsible for any fines and penalties imposed on
County or Service Provider arising from any noncompliance by Service Provider, its
subcontractors or agents with the laws and regulations in respect of the Services. In the event
that there is a change in the federal or state legislation of the county, state, or city where the
Services are performed, or in the interpretation of such legislation after the effective date of
this Agreement, the Service Provider shall immediately comply with such laws. Such changes,
including any increase or decrease of costs, shall be addressed in accordance with the Change
Order procedure described in this Agreement.
3.2.11 Regulatory Licenses, Permits. Service Provider shall be responsible, at its sole expense, for
obtaining all applicable governmental or regulatory licenses, authorizations, and permits
required in connection with the performance of Services and shall have financial responsibility
for, and shall pay, all fees and taxes associated with such licenses, authorizations, and permits.
3.2.12 Third Party Contracts.
3.2.12.1 Each Service Agreement shall provide for the treatment of all Third Party Contracts, as follows:
(i) all or certain of the Third Party Contracts may be assigned by County to Service Provider,
(ii) all or certain of the Third Party Contracts may be retained by County and, as necessary, any
required Third Party Consents shall be obtained by County (with Service Provider assistance),
Service Provider or both, as specified in the Service Agreement, and (iii) the respective
obligations of the Parties with respect to the Third Party Contracts shall be set forth in the
Service Agreement. Service Provider shall provide reasonable assistance to County to obtain
any Third Party Consents. If any such Third Party Consent cannot be obtained, Service
Provider shall adopt, subject to the prior approval of the County, such alternative approaches
as are necessary to provide the Services without such Third Party Consent.
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3.2.12.2 Subject to obtaining any required Third Party Consents, as of the applicable Service Agreement
Effective Date, County shall grant to Service Provider, for the sole purpose of providing the
Services, the same rights of use of the Third Party Contracts used by County immediately
before the applicable Service Agreement Effective Date.
3.2.12.3 On or before the applicable Service Agreement Effective Date, in the event the Service
Agreement requires Service Provider to assume any Third Party Contract, County shall, with
Service Provider’s reasonable assistance, obtain from each third party to a Third Party Contract
existing on the applicable Service Agreement Effective Date any required consents by such
third party to (i) the assignment to and assumption by Service Provider of Third Party
Contracts, and (ii) a complete release of County with respect to all obligations arising under
such Third Party Contracts on and after the applicable Service Agreement Effective Date
(collectively, the “Third Party Consents”). Service Provider shall pay all transfer, upgrade and
other fees necessary to obtain any Third Party Consents with respect to Third Party Contracts,
and County’s liability for any such payments is only to Service Provider as expressly set forth
in the applicable Service Agreement. Unless otherwise specified in a Service Agreement and
where possible, any assigned Third Party Contract shall include the right of County to re-
acquire the rights under the Third Party Contract upon any termination or expiration of a
Service Agreement.
3.2.12.4 With respect to any Third Party Contract which is not identified in a Service Agreement and
was not made known to Service Provider during the due diligence and negotiations preceding
the execution of a Service Agreement (an “Unidentified Third Party Contract”), the following
shall apply: (A) the Unidentified Third Party Contract shall be added to the appropriate Service
Agreement as soon as it has been identified; (B) County shall, with Service Provider’s
reasonable assistance, obtain any required Third Party Consents with respect to any
Unidentified Third Party Contract that is a Third Party Service Contract as soon as possible
after it has been identified; and (C) County shall pay all transfers, upgrade and other fees
necessary to obtain such Third Party Consent with respect to the Unidentified Third Party
Contracts. During the Term, County shall either retain financial responsibility for license,
maintenance or other financial obligations with respect to such Unidentified Third Party
Contracts or Service Provider shall charge such amounts to County on a Pass-Through Expense
basis.
3.2.13 Audit.
3.2.13.1 Record Keeping and Audit Rights. Service Provider shall maintain complete and accurate
records and supporting documentation for all financial and non-financial transactions under
all Service Agreements sufficient to permit a complete audit of such financial and non-
financial transactions relating to the Services provided. Such records shall include data and
documentation of third party charges invoiced to and paid by Service Provider. Service
Provider shall retain such records throughout the Term and for no less than five (5) years or
as otherwise required by Article 5 thereafter (including any records received by Service
Provider from County or County’s previous Service Provider).
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3.2.13.2 Audit Procedure. Service Provider shall provide County, at County’s request, with paper
and electronic copies of documents and information reasonably necessary to verify Service
Provider’s compliance with this Master Agreement and each Service Agreement. Regulatory
audits as well as audits required by litigation, Freedom of Information Act requests, EU
General Data Protection Regulations (GDPR), disputes with third parties, or audits as a result
of a breach by the Service Provider can be as frequently as required. County and its
authorized agents and representatives shall have access to such records for audit purposes
during normal business hours during the Term and hereafter for the period during which
Service Provider is required to maintain such records. Service Provider shall, at no additional
cost to County, provide to County, County’s internal and external auditors, inspectors,
regulators and such other representatives as the County may designate at any time access to
the facilities at which Service Provider is providing the Services, Service Provider Personnel
providing the Services, and all data and records relating to the Services, for the purpose of
performing audits and inspections of County and its business, to verify the integrity of County
Data, to examine the systems that process, store, support and transmit that data, and to
examine Service Provider’s charges and performance of the Services under this Master
Agreement and any Service Agreement.
3.2.13.3 Malfeasance. Notwithstanding the foregoing, if County has reason to suspect any dishonest
acts on the part of Service Provider in providing the Services under this Agreement, County
shall be entitled to undertake such audit of Service Provider as County reasonably deems
appropriate without the foregoing notice or other restrictions. If, in any audit, County
determines that any dishonest acts occurred, Service Provider shall reimburse County for any
costs incurred in such audit and County may conduct a follow-up audit when reasonably
deemed appropriate by County. Service Provider shall respond promptly to any conclusions
and recommendations reported as part of an audit.
3.2.13.4 Payments. If an audit reveals that Service Provider has overcharged County for Services
during the audited period in an amount equal to or in excess of three percent (3%), Service
Provider shall reimburse County for the cost of the audit in addition to the amount of any
overcharges that are due County. If the audit reveals that Service Provider has overcharged
County in an amount equal to or in excess of ten percent (10%), Service Provider shall
reimburse County for the cost of the audit in addition to the amount of any overcharges that
are due County and pay an additional amount equal to twenty-five percent (25%) of the
overcharged amount. The calculation of overcharges shall be calculated based upon each
Service Agreement, and not on a cumulative basis. Service Provider shall pay such amount
to County within thirty (30) calendar days following County’s written request.
3.2.13.5 Survival. This Article shall survive the expiration or earlier termination of the Term and
shall continue to the fifth (5th) anniversary of the expiration or termination of the Master
Agreement.
3.2.13.6 Third Party Beneficiary. The Lee County Clerk of Court shall be an intended third party
beneficiary of this Agreement with respect to the right to audit the records of the Service
Provider.
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3.3 SERVICE LEVELS
3.3.1 Service Level. Within each Service Agreement, the Parties shall specify such reasonable
quantitative levels of performance (“Service Level Standards”) for certain specified Services
as are deemed useful. Service Level Measurements and Service Level Standards shall be
specified as described in Schedule A. With respect to each Service which has one or more
associated Service Level Measurements, Service Provider shall provide such Service
throughout the Term in such a manner that the associated Service Level Measurements shall
meet or exceed the associated Service Level Standards. Service Provider shall be responsible
for meeting or exceeding Service Level standards effective February 25, 2019, 12:01 AM.
3.3.2 Review of Service Levels. Within six (6) months after the initiation of Services under a
Service Agreement, and every three (3) months thereafter (until such a time as the Parties
mutually agree that a less frequent review period is necessary), the parties shall jointly review
the Service Level Standards and adjust them to reflect any improved performance capabilities
associated with advances in the technology and methods used to perform the Services.
Throughout the Term, at least annually, Service Provider shall identify and notify County of
Commercially Reasonable Efforts to improve its performance as measured by the Service Level
Measurements and reduce its costs.
3.3.3 Measurement and Monitoring Tools. As part of the Services throughout the Term, and at no
additional cost to County, Service Provider shall implement any measurement and monitoring
tools and procedures necessary to measure its performance of the Services and compare such
performance to that required by the Service Agreements (including the calculation of Service
Level Measurements, the comparison of Service Level Measurements to Service Level
Standards, and the calculation of associated Service Level Credits, if any). Upon County's
written request, Service Provider shall provide County or its auditors with any information and
access to the measurement and monitoring tools necessary to verify compliance by Service
Provider with the Service Agreements. It is the sole responsibility of the Service Provider to
measure and accurately report on the SLA for each Tower of service. Service Provider shall
commence its calculation of all Service Level Measurements, and the reporting of such to the
County, no later than February 25, 2019.
3.3.4 County’s Validation. The County has the right and Service Provider agrees to provide access
and authorization to the County to independently track, audit and validate the service level
performance and service level reporting of the Service Provider. If errors, omissions or other
irregularities with the performance reporting (by Service Tower) are identified by the County,
the Service Provider will be given fifteen (15) calendar days from the date on which the Service
Provider was formally notified in writing to remediate any issues and provide updated
performance reporting information. If the Service Provider fails or is unable to respond during
this remediation period, Service Towers that were identified by the County as having errors,
omissions or irregularities will default to a state of “Missed” for the reporting period and will
be subject to applicable penalties.
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3.3.5 Root-Cause Analysis and Resolution. Promptly, but in no event later than five (5) calendar
days (unless otherwise agreed in writing) after Service Provider’s discovery of, or if earlier,
Service Provider’s receipt of a written notice or corrective action request from County
regarding Service Provider’s failure to provide any of the Services in accordance with the
Service Levels, Service Provider shall, as applicable under the circumstances: (i) perform a
problem analysis process undertaken to identify and quantify the underlying cause(s) of a SLA
failure or some other failure, and document the necessary corrective actions to be taken to
prevent recurring problems and/or trends (a “Root Cause Analysis”) to identify the cause of
such failure; (ii) provide County with a written report detailing the cause of, and procedure for
correcting, such failure; and (iii) provide County with satisfactory evidence that such failure
will not recur. The correction of any such failures shall be performed in accordance with the
time frames set forth in the applicable Service Agreement and entirely at Service Provider’s
expense unless it has been determined, by mutual agreement of the Parties or through the
Dispute Resolution process specified in this Agreement, that County (or one of its other
providers, agents or third party service providers) was the predominant contributing cause of
the failure and Service Provider could not have worked around the failure without expending a
material amount of additional time or cost. In such event: (iv) Service Provider shall be entitled
to temporary relief from its obligation to timely comply with the affected SLA, but only to the
extent and for the duration so affected; and (v) County shall reimburse Service Provider for
Service Provider’s reasonable, direct and documented expenses to correct such failure, but only
to the extent County caused such failure, unless the Parties otherwise mutually agree. For
purposes hereof, the preexisting condition of County’s properties, systems, processes and
methodologies shall not be deemed a contributing cause of any failures. The foregoing does
not limit other remedies available to County under this Agreement for such Service Level
failures.
3.3.6 Failure to Meet Service Levels. (a) Service Provider acknowledges that its failure to meet
one or more Service Level Standards may have a material adverse effect on the business and
operations of County. Accordingly, if Service Provider fails to meet a Service Level Standard,
County shall recover the applicable amount specified in each Service Agreement (“Service
Level Credits”); (b) Service Provider shall provide a deduction in an amount equivalent to the
calculated monthly Service Level Credit from the next succeeding invoice or other amounts
due to Service Provider, or, in the alternative, any service level credits due County shall be
allocated to the hour bank referred to in paragraph 3.1.4.1 of this Agreement. The County shall
make the foregoing election within ten (10) calendar days of determining that Service Level
Credits are owed it; (c) Regardless of whether County recovers Service Level Credits owed
with respect to any failure, County shall also have any remedies available to County under this
Master Agreement or any Service Agreement, at law or in equity, including the right to
terminate this Master Agreement or any Service Agreement for cause, less any Service Level
Credits allocated to County. Each time Service Provider fails to meet a Service Level Standard,
Service Provider shall: (i) promptly investigate the cause(s) of the failure and deliver to County
a written report identifying such cause(s) in the form requested by County or as specified in a
Service Agreement; (ii) use all Commercially Reasonable Efforts to correct the problem and to
begin meeting such Service Level Standard(s) as soon as practicable; and (iii) at County’s
request, advise County of the status of such corrective efforts; (d) All Service Level Standards
and applicable Service Level Credits remain in effect notwithstanding Service Provider’s use
of Commercially Reasonable Efforts to correct any performance problem; and (e) if any failure
to meet a Service Level Standard is directly and solely attributable to a Force Majeure Event
or negligent actions or negligent omissions of County or a breach by County of this Master
Agreement or a Service Agreement, County shall not be entitled to a Service Level Credit.
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3.3.7 Performance Standards. (a) With respect to any Service or obligation that does not have an
associated Service Level Standard, Service Provider shall perform such Service with a level of
quality, timeliness, and cost efficiency that meets (i) the level of performance by County or any
third party providing such services for County immediately before the applicable Service
Agreement Effective Date, and (ii) the level of performance expected for an experienced
outsourcing company providing services similar to the Services using prompt, diligent, cost-
effective efforts in a professional manner using qualified, experienced individuals
(“Performance Standards”). Each time Service Provider fails to meet any Performance
Standards, Service Provider shall: (i) promptly advise the County and investigate the causes;
and (ii) use all Commercially Reasonable Efforts to correct the problem and to begin
performing such obligation in the required manner as soon as practicable but in any event
within thirty (30) calendar days of such failure. All Performance Standards remain in effect
notwithstanding Service Provider’s use of Commercially Reasonable Efforts to correct any
performance problem. (b) Regardless of whether there exists an associated Service Level
Standard, Service Provider shall perform all Services and obligations promptly, diligently and
cost-effectively, in a professional manner, using qualified, experienced individuals and use
Commercially Reasonable Efforts to perform the Services and obligations in an effort to reduce
charges payable by County hereunder while still meeting the required levels of quality and
performance.
3.3.8 Continuous Improvement. Service Provider acknowledges that the quality of the Services
provided in certain Service Agreement Towers can and will be improved during the Term and
agrees that the Service Levels in such Service Agreement Towers will be enhanced periodically
in recognition of the anticipated improvement in service quality and advancement of
technology. The Service Provider shall improve the quality of the services provided in such
areas so as to meet or exceed the Required Service Levels and will do so at no additional charge
to County. The Required Service Levels can only be modified upon the mutual written
agreement of the Parties through the Change Order procedure.
3.4 SUBCONTRACTING
3.4.1 Approval required. Service Provider shall not delegate or subcontract any of its material
obligations under this Master Agreement or any Service Agreement by way of a material
subcontract (“Material Subcontract”) without the prior written consent of the County, which
may be withheld in County’s sole discretion. Notwithstanding the preceding sentence, but
subject to the provisions set forth below, Service Provider may use, in the ordinary course of
business, third party service providers or products pursuant to subcontracts which, when
combined with any related subcontracts, involve the payment of no more than $50,000 in any
twelve (12) month period. A subcontract involving the payment of more than $50,000 in any
twelve (12) month period shall be a “Material Subcontract.” Notwithstanding any other
provision in this Section, all subcontractors shall be required to execute documents binding the
subcontractor to confidentiality and non-disclosure agreements that are at least as protective as
this Agreement with respect to the confidentiality of County Confidential Information. The
availability of a subcontractor to provide Services shall be evaluated as if the owners, directors,
officers and employees of the subcontractor were employees of County and, as such, subject to
all of County’s rules and regulations. Service Provider shall provide to County a report listing
all current subcontracts on a quarterly basis.
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3.4.2 Approval Process. If Service Provider desires to enter into a Material Subcontract, it shall
submit to County in writing a proposal specifying the tasks Service Provider proposes to
subcontract, the reason for using a subcontractor, the identity and qualifications of the proposed
subcontractor, and any other information reasonably requested by County or necessary to fully
inform the County’s approval of the subcontractor. If the use of such subcontractor is approved
by the County, Service Provider shall include in such subcontract provisions naming County
as an intended third-party beneficiary, Confidentiality, Audit and Performance Standards
provisions substantially similar to those contained herein, and any other provisions necessary
for Service Provider to fulfill its obligations under this Master Agreement or any Service
Agreement and provide the County with a copy of each Material Subcontract. Such subcontract
provisions shall also include the option of County to assume each Material Subcontract in the
event County terminates this Master Agreement or a Service Agreement. In addition, Service
Provider shall not disclose any County Confidential Information to such subcontractor until
such subcontractor has agreed in writing to assume the Confidentiality obligations described
herein.
3.4.3 Revocation. County may revoke approval of a subcontractor previously approved, or object
to Service Provider’s use of a subcontractor for which County’s approval was not required, if
the subcontractor’s performance has been materially deficient, good-faith doubt exists
concerning the subcontractor’s ability to render future performance, or there have been material
misrepresentations by or concerning the subcontractor. Upon such revocation, Service Provider
shall prevent such subcontractor from performing the Services.
3.4.4 Liability. Service Provider shall remain liable for obligations performed by subcontractors to
the same extent as if a Service Provider employee had performed such obligations, and for
purposes of this Master Agreement such work shall be deemed work performed by Service
Provider. If a subcontractor breaches a Material Subcontract, or is alleged to have breached a
Material Subcontract, Service Provider shall notify County and provide County with such
information relating to the alleged breach as County may reasonably request.
3.5 PERSONNEL
3.5.1 Project Manager. County and Service Provider shall each designate an individual as the
primary contact for such party with respect to all matters relating to this Master Agreement.
County and Service Provider shall also designate an individual as the primary contact for such
party with respect to each Service Agreement. The County may designate an individual
Contract Manager for one or more Service Tower Agreements. County and Service Provider
may change these designations from time to time, providing such advance notice as the
circumstances require to avoid adverse impact upon the Services.
3.5.2 Employment. Service Provider shall invite the employees of any existing outsourcing service
providers to interview for potential employment with Service Provider.
3.5.3 Service Provider Positions.
The Service Provider shall assign employees necessary to effectively deliver services to the
County as described herein. While individual roles will vary based on the technologies
supported and duties assigned, the following position descriptions (“Service Provider
Positions”) apply to all Service Towers:
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3.5.3.1 Service Lead – This individual should have demonstrated managerial experience in their
area of practice and an understanding of IT operations management (ITIL) certified, project
management and public sector budgeting and funding models. This individual typically
possesses a Bachelor’s or Master’s degree in a related area of study and may also possess
some industry technical certifications. This individual will have significant supervisory
duties of other staff, and is accountable for the delivery of services in their assigned Service
Tower. Desired experience is 7-10 years in such role within Information Technology.
3.5.3.2 Level 3 – Such individual serves as the highest level technical resource in the Service
Provider organization. This individual is often the escalation point for complex issues and
works with vendors as necessary to resolve issues and perform Root Cause Analysis where
applicable. This individual may have some minor supervisory duties of other staff, but that
is not this individual’s primary focus. This individual typically possesses industry
certifications for the technologies they support or equivalent industry experience. Desired
experience is 5-7 years in a similar role.
3.5.3.3 Level 2 – This individual serves as a skilled technical resource in the Service Provider
organization. This individual is often the initial escalation point for issues working to
resolve them without assistance from Level 3 resources. This individual does not have
supervisory duties of other staff. This individual may possesses some industry
certifications for the technologies they support or equivalent industry experience. Desired
experience is 2-3 years in a similar role.
3.5.3.4 Level 1 – This individual serves as the initial technical resource in the Service Provider
organization and is often the first point of contact for support. This individual is focused
primarily on End User support and as such should have good interpersonal and
communication skills. This individual typically does not possesses industry certifications
for the technologies they support. Desired experience is 1-3 years in a similar role.
3.5.3.5 Service Provider shall reasonably consider any concerns expressed by County with respect
to terminating or transferring any employees assigned to provide Services under this
Agreement. Before assigning an individual to fill a Service Provider Position, Service
Provider shall notify County of the proposed assignment, shall introduce the individual to
appropriate County representatives, and shall provide County with a resume and such other
information as County may reasonably request. If County objects to the proposed
assignment within ten (10) Business Days after being notified thereof, Service Provider
shall discuss such objections with County and attempt to resolve them on a mutually
agreeable basis. If County continues to object to the proposed assignment, Service Provider
shall not assign the individual to that position and shall promptly propose another
individual to fill the Service Provider Position.
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3.5.4 Minimum Proficiency Levels and Training for Service Provider Personnel. Service
Provider agrees that Service Provider Personnel assigned to the County for the purposes of
performing this Agreement must have experience in the areas and technologies for which they
are responsible under this Agreement. All costs and expenses associated with providing,
equipping, training and retaining Service Provider Personnel are the responsibility of the
Service Provider. In the event that, as a result of the actions or inaction of any member of the
Service Provider Personnel (including subcontractors or Affiliates), additional work is required
to perform the Services under this Agreement, Service Provider shall perform all such work at
no additional charge to County. County shall not be required to pay for Services provided by
any Service Provider Personnel who do not possess the required levels of experience and
expertise. The Service Provider shall provide the County with an annual personnel training
plan that identifies the types, levels and frequency of training, both planned for the upcoming
year and completed in the prior year.
3.5.5 Service Provider Employees Assigned to County Account.
3.5.5.1 Under any Service Agreement, County shall have the right to notify Service Provider if County
determines that the continued assignment to the County account of any Service Provider
employee is not in the best interests of the County. Upon receipt of such notice, Service
Provider shall have a ten (10) Business Day period to investigate the matters stated therein,
discuss its findings with County, and attempt to resolve such matters in a manner acceptable to
County. Upon County’s subsequent written request, Service Provider shall promptly remove
any Service Provider employee, including the Service Provider’s Contract Manager or Service
Agreement Managers, from the County account and, if appropriate or necessary, replace such
Service Provider employee with an equivalent replacement in a prudent manner so as not to
interrupt or adversely affect the Services.
3.5.5.2 Under this Master Agreement or any Service Agreement, County shall have the right to notify
Service Provider if County determines that the continued assignment to the County account of
any Service Provider Contract Manager (“Master Agreement Manager”), or Project Manager
(“Service Agreement Manager”) is not in the best interests of the County. Upon receipt of such
notice, Service Provider shall have a ten (10) Business Day period to replace such Service
Provider employee with an equivalent replacement so as not to interrupt or adversely affect the
Services. Before assigning an individual to fill a Service Provider Contract Manager, or Project
Manager Position, Service Provider shall notify County of the proposed assignment, shall
introduce the individual to appropriate County representatives, and shall provide County with
a resume and such other information as County may reasonably request. If County objects to
the proposed assignment within ten (10) Business Days after being notified thereof, Service
Provider shall discuss such objections with County and attempt to resolve them on a mutually
agreeable basis. If County continues to object to the proposed assignment, Service Provider
shall not assign the individual to that position and shall within a ten (10) Business Day period
propose another individual to fill the Service Provider Position.
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3.5.5.3 If Service Provider fails to meet the Performance Standards or Service Level Standards
persistently or continuously, and if County reasonably believes such failure is attributable in
whole or in part to Service Provider’s assignment, reassignment, or other changes in the human
resources allocated by Service Provider to the delivery of the Services, County will notify
Service Provider of such belief. Upon receipt of such notice from County, Service Provider (i)
will promptly meet with County to discuss the matters raised by County in its notice and
Service Provider’s positions with regard to such matters; and (ii) will diligently work to
eliminate, with respect to the Services, any such Service Provider human resource practices
identified and agreed to by the Parties as adversely impacting the delivery of the Services by
Service Provider.
3.5.6 Designation of Service Provider Key Employees. As of the Commencement Date and from
time to time as County and Service Provider may agree during the Term, but no less frequently
than annually, County and Service Provider shall designate certain employees of Service
Provider as key employees (collectively, the “Service Provider Key Employees,” and,
individually, each “Service Provider Key Employee”). Without County’s prior written consent,
Service Provider shall not: undertake any action with respect to any Service Provider Key
Employee that would result in the alteration or reduction of time expended by such Service
Provider Key Employee in performance of Service Provider’s duties under this Agreement.
The foregoing does not prohibit or restrict Service Provider Key Employee from participating
in general corporate duties applicable to other similarly situated employees nor does the
foregoing prohibit or restrict Service Provider Key Employee from exercising employee
benefits in accordance with Service Provider guidelines/polices (e.g., taking vacation in
accordance with Service Provider guidelines/policies).
3.5.7 Reassignment and Replacement. Service Provider shall not reassign or replace any Service
Provider Key Employees from the Commencement Date unless: (1) County consents in writing
to such reassignment or replacement or (2) the individual (a) voluntarily resigns from Service
Provider, (b) is unable to work due to his or her disability or (c) takes a leave of absence from
Service Provider for illness or under the Family and Medical Leave Act. Subparts (1) and (2)
are collectively referred to as “Approved Reassignments.”
Except for a replacement or reassignment of the Service Provider Key Employees due to the
occurrence of an Approved Reassignment, Service Provider shall not reassign or replace any
Service Provider Key Employee, if such reassignment or replacement would materially disrupt
County’s operations, until the completion of any projects to which the Service Provider Key
Employee is assigned. No Approved Reassignment of a Service Provider Key Employee shall
occur without at least sixty (60) calendar days’ prior written notice to County. If any time from
the Commencement Date, any Service Provider Key Employee becomes incapacitated,
disabled, takes a leave of absence, voluntarily terminates his/her employment with Service
Provider, is terminated by Service Provider, or is transferred, reassigned or redeployed with
the consent of County, within forty-eight (48) hours (unless additional time is granted by
County), Service Provider shall replace such person with another person approved by County.
Service Provider shall permanently replace such person with another person approved by
County within thirty (30) calendar days of the assignment of a temporary person. The
permanent replacement employee shall be equivalent to or exceed the original employee
relative to skill set, training and job duties assigned.
If the Service Provider fails to provide a satisfactory replacement employee within (30) thirty
calendar days, the County shall be entitled to a credit of $15,000 per Service Provider Key
Employee per month against sums owed the Service Provider until a satisfactory replacement
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is provided and approved by the County. If said position goes unfilled by a qualified employee
for more than ninety (90) calendar days, the County shall have the option to begin the Dispute
Resolution process during which the $15,000 shall still accrue.
3.5.8 Assignment of On-Site Personnel. The Service Provider shall provide dedicated Service
Provider Personnel to work directly at County sites to deliver the Services within this
Agreement. Accordingly, (a) such personnel are required to have primary residence within
reasonable proximity to Lee County, Florida for the purpose of performing their primary work
activities and effectively responding to after-hours and emergency support issues; (b) the
Service Provider is solely responsible for any and all costs associated with the assignment of
On-site Dedicated Staff; and (c) the required On-site positions and staffing levels shall be
mutually agreed upon between the Service Provider and the County and shall not change more
than once every twelve (12) months unless otherwise approved in writing by the County. Any
On-site Service Provider Personnel changes shall follow the provisions of the Reassignment
and Replacement section of this Agreement.
3.5.9 Succession Plans Required. Service Provider shall maintain active succession plans for each
of the Service Provider Key Employee positions, including plans to effectively transfer
knowledge from the Service Provider Key Employee in the event that it becomes necessary to
replace such Service Provider Key Employee.
3.5.10 Turnover Rate and Data for Service Provider Personnel. To ensure consistency of Services
delivery and minimize Service Provider Personnel learning curves, Service Provider shall make
reasonable efforts to minimize the turnover in Service Provider Personnel so as to not exceed
a ten percent (10%) turnover rate per year. If County determines that the turnover rate of the
Service Provider Personnel is unacceptable and so notifies Service Provider, the Service
Provider shall within ten (10) business days: (i) provide County with data concerning Service
Provider’s turnover rate; (ii) meet with County to discuss the reasons for the turnover rate; and
(iii) submit a plan for reducing the turnover rate for County’s review and written approval.
Notwithstanding any transfer or turnover of Service Provider Personnel, Service Provider shall
remain obligated to perform the Services without degradation and in accordance with the
Service Levels and the other terms and conditions of this Agreement.
3.5.11 Independent Contractor Relationship. Service Provider’s relationship to County in the
performance of this Agreement is that of an independent contractor. The personnel performing
Services under this Contract shall at all times be under Service Provider’s exclusive direction
and control and shall be employees or subcontractors of Service Provider and not employees
of County. Service Provider shall be fully liable for all acts and omissions of its employees,
subcontractors, and their suppliers and shall be specifically responsible for sufficient
supervision and inspection to assure compliance in every respect with the requirements of this
Agreement and any Service Agreements. There shall be no contractual relationship between
any subcontractor or supplier of Service Provider and County by virtue of this Agreement. No
provision of this Agreement shall be for the benefit of any party except County and Service
Provider and their respective assignees or beneficiaries. It is the Parties’ intention that Service
Provider is an independent contractor and not the County’s employee for all purposes,
including, but not limited to, the application of the Fair Labor Standards Act minimum wage
and overtime payments, Federal Insurance Contribution Act, the Social Security Act, the
Federal Unemployment Tax Act, the provisions of the Internal Revenue Code, Florida revenue
and taxation law, Florida Worker’s Compensation law and Florida Unemployment Insurance
Law. The Service Provider will retain sole and absolute discretion in the judgment of the
manner and means of carrying out the Service Provider’s activities and responsibilities
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hereunder. The Service Provider agrees that it is a separate and independent enterprise from
the County, that it has made its own investment in its business, and thus it will utilize a high
level of skill necessary to perform the work. This Agreement shall not be construed as creating
any joint employment relationship between the Service Provider and the County, and the
County will not be liable for any obligation incurred by the Service Provider, including but not
limited to unpaid minimum wages and/or overtime premiums.
3.5.12 Service Provider Employees. During this Agreement and any extension Service Provider
Personnel are permitted to apply for County IT employment positions.
3.5.13 Non-Hiring of Service Provider Employees. Except as specifically provided in this
Agreement or any Service Agreement, during the term of this Agreement and any extension
hereof, neither party, nor any related or affiliated organization over which a party has control,
shall offer to hire, hire or in any way employ or compensate, any employee of, or persons who
have been employed during any term hereof by, the other party without the prior written
consent of the other party. Notwithstanding the foregoing, the following exceptions shall
apply:
(a) At the termination of this Master Agreement and for six (6) months prior to the end of the
Term or any Renewal, County may solicit, interview, offer to hire, hire or employ Service
Provider employees who are, at the time of termination, permanently assigned to, or who
previously worked at, the County’s site;
(b) Either Service Provider or the County may hire or solicit for hiring any employee who is
no longer employed by the other and whose employment with the other had ended for a period
of one (1) month or more prior to the date of the offer of employment by such other party and;
(c) The County may hire any Service Provider employee who is fully assigned to the County
and works at the County’s site, if deemed in the best interests of the County or employee under
consideration. The parties can waive the covenant not to compete relating to employees.
3.5.14 SERVICE PROVIDER SHALL INDEMNIFY, DEFEND AND HOLD THE COUNTY
HARMLESS FROM ALL LOSSES, INJURIES OR DAMAGES, AND WAGES OR
OVERTIME COMPENSATION DUE ITS EMPLOYEES IN RENDERING SERVICES
PURSUANT TO THIS AGREEMENT, INCLUDING PAYMENT OF REASONABLE
ATTORNEY’S FEES AND COSTS IN THE DEFENSE OF ANY CLAIM MADE UNDER
THE FAIR LABOR STANDARDS ACT OR ANY OTHER FEDERAL OR STATE LAW.
3.5.15 MIGRATION OF SERVICES: If any migration of Services is to occur under a Service
Agreement, they will occur pursuant to migration plans approved by the County pursuant to
Schedule B.3.5.15
3.5.16 Physical Location of Employees. All of Service Providers employees providing Services under
this Agreement shall be located in the United States.
3.5.17 Background Check.
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Service Provider, at its expense, must conduct a background check for each of its employees,
as well as for the employees of its subcontractors, who will provide services to the County or
who will have access to County computer systems, either through on-site or remote access. The
minimum background check process for all Service Provider Personnel shall include, but not
be limited to, the following checks:
1. Social Security Number (SSN) validation and address history
2. State criminal and sex offender registry search
3. National Crime Information Center search
4. FBI fingerprint check using Integrated Automated Fingerprint Identification System
5. County Felony and Misdemeanor search
6. National Sexual Offender Registry search
The background check must be conducted prior to initial access by Service Provider Personnel.
The Service Provider shall provide proof of a satisfactory background check to the County
Manager or designee prior to assignment of any Service Provider Personnel. The County retains
the right to reject assignment of any Service Provider Personnel based on the results of a
background check.
Service Provider Personnel who separate employment from the Service Provider for any reason
whatsoever, and for any length of time, must undergo another background check prior to
renewed access to the County. Background checks must be repeated not less than every five
(5) years. At the County’s discretion, background checks for Service Provider Personnel
holding sensitive positions (e.g., working with or around children, or within high-security
areas) may be required more frequently. The County shall have the ability to audit the Service
Provider’s background check process to ensure compliance with County standards, at any time.
Additionally, all Service Provider Personnel have the responsibility to self-disclose any
misdemeanor or felony convictions that occur while assigned to the County within three (3)
Business Days of the conviction or upon return to a County assignment. The conviction must
be reported to the Service Provider, who shall then notify the County Manager or designee.
If at any time it is discovered that any Service Provider Personnel has a criminal record that
includes a felony or misdemeanor, the Service Provider is required to inform the County and
the County will assess the circumstances surrounding the conviction, time frame, nature,
gravity, and relevancy of the conviction to the job duties to determine whether that Service
Provider employee will be placed or remain on a County assignment. The County may withhold
consent at its sole discretion. Failure of the Service Provider to comply with the terms of this
paragraph may result in the termination of its Agreement with the County.
3.5.18 Conduct. Service Provider agrees that all of its officers, employees and representatives shall
conduct themselves in a professional manner and shall communicate with County employees
and members of the public in a civil manner whenever conducting County business. All aspects
of Service Provider’s performance, including complaints received from the public, may impact
the County’s decision to renew or terminate this Agreement in accordance with the provision
contained here. Service Provider will remove or suspend, or further investigate their employees
for any act of violence, sexual harassment, substance abuse, or act of bigotry/prejudice.
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Article 4
COMPENSATION
4.1 Payment Subject to the other provisions of this Master Agreement, County shall pay to Service
Provider the amounts set forth in each Service Agreement as payment in full for the Services
under such Service Agreement performed by Service Provider during the Term (the
“Charges”). Except as otherwise expressly set forth in this Master Agreement, County shall not
be obligated to pay any amounts to Service Provider for its performance of the Services and its
other obligations under this Master Agreement other than the amounts set forth in the Service
Agreements. Without limiting the foregoing, County shall not be required to reimburse Service
Provider for any expenses Service Provider incurs in performing the Services and such
obligations, including, without limitation, travel and lodging, document reproduction and
shipping. If a Service Agreement Term is renewed pursuant to the applicable terms of such
Service Agreement, the Charges last set forth in such Service Agreements shall continue to
apply during the renewal period(s).
4.2 Pass-Through Expenses. (a) Service Provider shall review for accuracy each third party
invoice for any Pass-Through Expenses and shall pay when due to such third party all valid
amounts set forth on such invoice. Service Provider shall include the amount of such payment
on its next invoice to County and shall include with such invoice a copy of the third party
invoice. Service Provider shall not charge County any profit, administrative fee, or overhead
charge with respect to such Pass-Through Expenses. Pass-Through Expenses must be approved
in advance by County Manager or designee. (b) Service Provider shall use all Commercially
Reasonable Efforts to minimize the amount of Pass-Through Expenses, including, with respect
to any materials or supplies supplied by Service Provider to County, providing to County the
benefit of any specialized pricing/economies of scale available to Service Provider. Third Party
Pass-Through purchases must follow County procurement rules. County shall have the right
to: (i) obtain such materials or services directly from a third party; (ii) designate the third party
source for such materials or services; (iii) designate the particular materials or services Service
Provider shall obtain; (iv) request Service Provider to identify and consider multiple sources
for such materials or services; and (v) review, approve or reject the Pass-Through Expense for
such materials or services before Service Provider enters into a subcontract for such materials
or services. County shall be responsible for all approved Pass-Through Expenses and Service
Provider shall be responsible for all non-approved Pass-Through Expenses. No Pass-Through
Expenses shall be submitted to the County for reimbursement more than ninety (90) calendar
days after the date such expenses were incurred.
4.3 Travel Reimbursables. For reimbursement of any travel costs or travel-related expenses
permitted under this Agreement, Service Provider agrees to comply with Section 112.061,
Florida Statutes. County shall not be liable for any such expenses that have not been approved
in advance, in writing, by the County Manager or designee.
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4.4 Charges Pursuant to Service Agreement Modifications. (a) To the extent the proposed
change or addition can be accommodated within the existing level of resources then being used
by Service Provider to provide the Services and without degradation to existing performance
in relation to Service Level Standards (unless otherwise agreed by the County in writing), the
Charges payable by County under the applicable Service Agreement shall not be increased. (b)
To the extent the proposed change or addition will lower Service Provider’s cost to provide the
Services thereafter, the applicable Charges payable by County shall be equitably adjusted to
reflect such projected cost savings. (c) To the extent the proposed change or addition will
require the addition or subtraction of resources for which a pricing basis exists under this
Master Agreement, the resulting change to the Charges payable by County hereunder shall be
recalculated higher or lower in accordance with that pricing basis.
4.5 Interest. Without waiving any other right, balances of any kind past due in excess of thirty
(30) calendar days shall bear interest at the statutory interest rate established by Florida law.
4.6 Invoices. Service Provider shall issue to County, on a monthly basis in arrears, one (1)
consolidated invoice for all amounts due under each Service Agreement with respect to
Services rendered in the previous month, less any service credits. Each invoice shall separately
state Charges for each category of Service, reimbursable expenses and taxes payable, and shall
otherwise be in such detail as County may require for its internal accounting needs.
4.7 Process of Invoices. Subject to the section entitled “Setoff and Withholding,” each properly
documented and approved invoice shall be due and payable within thirty (30) calendar days
after the date such invoice is received by the County Manager or designee. County reserves
the right to correct any error that may be discovered in any invoice that may have been
previously paid to Service Provider and to adjust the same to meet the requirements of the
Master Agreement or any Service Agreement. To the extent County is entitled to a credit
pursuant to this Master Agreement or any Service Agreement, Service Provider shall provide
County with such credit on the first invoice delivered after such credit is earned.
4.8 Proration. All periodic charges under this Master Agreement (excluding charges based upon
actual usage or consumption of Services) shall be computed on a calendar month basis and
shall be prorated for any partial month. Any charges associated with each Service Agreement
shall be equally prorated monthly over the term of the Contract. All periodic charges under any
Service Agreement (excluding charges based upon actual usage or consumption of services)
shall be computed on a calendar month basis and shall be prorated for any partial month to be
paid in arrears.
4.9 Refunds. If either party should receive a refund, credit or other rebate for goods or services
paid for by the other party, the recipient of such refund, credit or rebate shall promptly notify
the other party and shall pay such amount to the other party (or, if applicable, provide a credit
on the next delivered invoice) within thirty (30) calendar days after receipt thereof.
4.10 Royalties. If Service Provider uses any design, device or materials covered by letters, patent
or copyright, it is mutually understood and agreed without exception that the Charges shall
include all royalties or costs arising from the use of such design, device or materials in any way
involved in the work.
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4.11 No Charge for Re-performance. At no additional cost or expense to County, Service Provider
shall re-perform (including any required backup or restoration of data from scheduled backups
or, if not available on such backups, restoration by other means with County’s reasonable
cooperation) any Services that result in incorrect outputs due to an error or breach by Service
Provider, and the resources required for such performance shall not be counted in calculating
the Charges payable or resources utilized by County hereunder.
4.12 Sharing Opportunities. Each party may identify potential savings opportunities with respect
to the Services and/or potential opportunities for improving the quality of the Services (each,
an “Opportunity”). If either party identifies an Opportunity, the Parties shall discuss such
Opportunity, including the likelihood that such Opportunity will result in savings to County
and/or improved quality as to the Services and, if approved by County, Service Provider shall
further research the Opportunity and present a written proposal to County within a mutually
agreed time frame. Service Provider’s proposal shall include, as applicable, the estimated
current costs, the recommended changes, the anticipated savings and/or improvements in the
Services that will be achieved and a proposed Change Order (including a project plan) setting
forth each party’s responsibilities if the Opportunity is to be realized. In the case of improved
quality of Services, a mutually agreed value shall be ascribed to such improved Services and
used as the basis for any gain sharing as hereinafter described. Subject to the County’s
procurement rules, policies and procedures, if County agrees with Service Provider’s proposal,
the Parties shall execute the Change Order, and the Parties thereafter shall proceed to
implement the Opportunity. The parties shall specify in the Change Order the gain sharing
formula (if any) that will be applicable in order to compensate Service Provider with respect to
the Opportunity. The County shall not be obligated to pay for any gain sharing opportunities
unless such gain sharing opportunities are memorialized in a Change Order executed by both
parties.
4.13 Revenue Sharing. The County and Service Provider may agree to provide joint services and
products to other municipalities and entities and share in the fees and revenues collected for
such services and products. Such revenue sharing ventures shall only be conducted in
accordance with the following.
4.13.1 Under no circumstances can either the County or Service Provider propose services or products
to other municipalities or entities, that would obligate the other party to deliver or provide such
services or products, without the written prior consent of both parties.
4.13.2 For each such venture, a Memorandum of Understanding shall be executed between the
authorized representatives of the County and Service Provider that lists all the terms and
conditions for such venture.
4.14 Setoff and Withholding. Notwithstanding any other provision of this Master Agreement, a
party who is owed any amount by the other party may, at its option, set off that amount as a
credit against any amounts it otherwise owes to the other party. If County disputes in good faith
any portion of an invoice, County shall pay the undisputed dollar amount of such invoice when
due and may, at its option, withhold the disputed portion pending resolution of the dispute by
mutual agreement or pursuant to the subpart entitled “Dispute Resolution.” To the extent
allowed by law, no interest shall become due on amounts to be paid by County which are
disputed by County in good faith. If County withholds any payment pursuant to this section,
County shall notify Service Provider of the basis for such withholding. Upon resolution of the
dispute, County shall pay to Service Provider such portion, if any, of the disputed amount
determined to be owing to Service Provider.
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4.15 Taxes
4.15.1 Service Provider shall pay any real property taxes or personal property taxes on property it
owns or any other taxes, fees or costs related to Equipment used as a part of any Service
Agreement. If County purchases any Equipment from Service Provider on the expiration or
earlier termination of a Service Agreement, all unpaid personal property taxes shall be paid by
Service Provider, with such Service Provider paying the taxes allocable to the period before
the date County purchases the Equipment.
4.15.2 Absent applicability (and perfection, if necessary) of any exemption, Service Provider shall
pay any sales, use, excise, value-added, services, consumption, and other taxes and duties
imposed on any goods and services acquired, used or consumed by Service Provider in
connection with the Services.
4.15.3 The parties shall cooperate with each other to enable the parties to determine accurately their
respective tax liabilities, if any, and to reduce such liabilities to the extent permitted by law.
Service Provider shall provide to County any resale certificates, exemption certificates,
information regarding out-of-state or out-of-country sales or use of Equipment and services,
and such other similar information as County may reasonably request.
Article 5
INTELLECTUAL PROPERTY RIGHTS AND CONFIDENTIALITY
5.1 PUBLIC RECORDS EXEMPTION
5.1.1 Definition. “Exempt Information” means information which is exempt from the provisions of
Florida Statute Section 119.07 (1) and Section 24(a), Article I of the Florida State Constitution.
Exempt Information includes, without limiting the generality of the foregoing, Service Provider
Software, County Data, County Software, and information: (i) relating to the disclosing party’s
current or planned software (whether in object code or source code form) or hardware products
or services, technical and non-technical information, formulae, tools, patterns, compilations,
programs, devices, techniques, drawings, methodologies and processes; (ii) relating to the
disclosing party’s business, policies, strategies, operations, finances, plans or opportunities,
including the identity of, or particulars about, the disclosing party’s clients, customers or
Service Providers; or (iii) marked or otherwise identified as exempt, or sensitive including,
without limiting the generality of the foregoing, information acquired by inspection or oral
disclosure provided such information was identified as exempt at the time of disclosure or
inspection.
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5.1.2 Exceptions. Notwithstanding the foregoing, Confidential Information does not include
information that the receiving party can establish: (a) has become generally available to the
public or commonly known in either party's business other than as a result of a breach by the
receiving party of any obligation to the disclosing party; (b) was known to the receiving party
prior to disclosure to the receiving party by the disclosing party by reason other than having
been previously disclosed in confidence to the receiving party; (c) was disclosed to the
receiving party on a non-confidential basis by a third party who did not owe an obligation of
confidence to the disclosing party with respect to the disclosed information; (d) was
independently developed by the receiving party without any recourse to any part of the
Confidential Information; or (e) in the case of County, any information related to the Services
which County has publicly disclosed in connection with this competitive negotiations process
for information technology and telecommunications services, including, without limitation,
information of an operational, technical or financial nature related to County.
5.1.3 Use of Exempt Information. (a) During the Term, the receiving party may: (i) disclose
Exempt Information received from the disclosing party only to its employees, officers,
directors, attorneys, and subcontractors who have a need to know such information exclusively
for the purpose of performing this Master Agreement and who have executed a nondisclosure
agreement containing provisions no less restrictive than those contained herein, or who are
subject to other equivalent means to ensure confidentiality; (ii) reproduce the Exempt
Information received from the disclosing party only as required to perform this Master
Agreement; and (iii) disclose Exempt Information as required by law, provided the receiving
party gives the disclosing party prompt notice prior to such disclosure to allow the disclosing
party to make a reasonable effort to obtain a protective order or otherwise protect the
confidentiality of such information. (b) Except as otherwise specifically provided in this Master
Agreement, the receiving party shall not during the Term and after expiration or earlier
termination hereof: (i) disclose, in whole or in part, any Exempt Information received directly
or indirectly from the disclosing party; or (ii) sell, rent, lease, transfer, encumber, pledge,
reproduce, publish, transmit, translate, modify, reverse engineer, compile, disassemble or
otherwise use the Exempt Information in whole or in part.
5.1.4 Care. The receiving party shall exercise the same care in preventing unauthorized disclosure
or use of the Exempt Information that it takes to protect its own information of a similar nature,
but in no event less than reasonable care.
5.1.5 Return of Exempt Information. Immediately upon the disclosing party’s request, and at the
expiration or earlier termination of this Master Agreement or any applicable Service
Agreement, pursuant to Florida Division of Library record retention, the receiving party shall
return or destroy all materials containing Exempt Information, including, without limitation,
all originals, copies, reproductions and summaries, and all copies of Exempt Information
present on magnetic media, optical disk, volatile memory or other storage device, in a manner
that assures the Exempt Information is rendered unrecoverable.
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5.1.6 Ownership of County Data. All County Data shall remain the property of County. The
County Data shall not be used by Service Provider other than in connection with providing the
Services, disclosed, sold, assigned, leased or otherwise provided to third parties by Service
Provider, or commercially exploited by or on behalf of Service Provider, its employees or
agents. Service Provider will not delete or destroy any County Data or media on which County
Data resides without prior written authorization from the County. At no cost to County, Service
Provider shall upon request promptly return to County, in the format and on the media in use
as of the date of request, all or any requested portion of any County Data it may possess or
control. Upon completion or termination of the Agreement, all County Data to the extent
requested by the County, shall be delivered to the County or to any subsequent provider within
to ten (10) calendar days in a format acceptable to the County (or subsequent provider) and,
when multiple acceptable formats exist, as agreed upon between the parties. Service Provider
shall deliver these materials at no additional cost or expense to the County to allow the County
to conduct operations uninterrupted and to be available for general access and reporting going
forward.
Where possible, Service Provider shall deliver the materials in a non-proprietary format. If
unavoidable to supply in a proprietary format, then a perpetual license shall be granted by
Service Provider to the County to access and use, and report on the County’s materials.
In the event of a dispute regarding payment, the parties shall negotiate in good faith to resolve.
Under no circumstances shall Service Provider withhold access to any County Data so as to
adversely affect the County or any of the County’s operations.
5.1.7 Public Records. Service Provider specifically acknowledges its obligations to comply with
Section 119.0701, Florida Statutes, with regard to public records, and shall:
5.1.7.1 Keep and maintain public records that ordinarily and necessarily would be required by the
Service Provider in order to perform the services required under this Agreement;
5.1.7.2 Upon request from the County, provide the County with a copy of the requested records or
allow the records to be inspected or copied within a reasonable time at a cost that does not
exceed the cost provided in Chapter 119, Florida Statutes, or as otherwise provided by law;
5.1.7.3 Ensure that public records that are exempt or confidential and exempt from public records
disclosure requirements are not disclosed, except as authorized by law; and
5.1.7.4 Meet all requirements for retaining public records and transfer, at no cost to the County, all
public records in possession of Service Provider upon termination of this Agreement and
destroy any duplicate public records that are exempt or confidential and exempt from public
records disclosure requirements. All records stored electronically must be provided to the
County in a format that is compatible with the information technology system of the County.
IF THE SERVICE PROVIDER HAS QUESTIONS REGARDING
THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES,
TO THE SERVICE PROVIDER’S DUTY TO PROVIDE PUBLIC
RECORDS RELATING TO THE CONTRACT, CONTACT THE
CUSTODIAN OF PUBLIC RECORDS AT 239-533-2221, 2115
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SECOND STREET, FORT MYERS, FL 33901,
publicrecords@leegov.com; http://www.leegov.com/publicrecords.
5.1.8 Security. Service Provider will comply with the security procedures that are in effect during
the Term of this Master Agreement for the security of County’s facilities and County Data, as
provided to Service Provider in writing. Since Service Provider personnel may have the ability
to defeat systems security provisions on devices containing attorney-client privileged or
attorney work product materials, Service Provider covenants that it shall not access such
County Data or assert waiver of these protections by virtue of its access.
5.1.9 Safeguarding County Data. Safeguarding Procedures. Service Provider shall establish and
maintain environmental, safety and facility procedures, data security procedures and other
safeguards against the destruction, loss, unauthorized access or alteration of County Data in the
possession or under the control of Service Provider that are (i) no less rigorous than those
maintained by County as of the Commencement Date (or implemented by County in the future
to the extent deemed necessary by County), including the security and control requirements
under this Agreement, (ii) no less rigorous than those maintained by Service Provider for its
own information of a similar nature, (iii) no less rigorous than accepted security standards in
the industry (such as ISO/IEC 27001:2013, 17799 and/or BS 7799) and (iv) adequate to meet
the requirements of County’s privacy, security and records retention policies and applicable
laws. After the Commencement and as requested by County, Service Provider shall evaluate
the then-current County security policy and shall prepare and submit for County review and
approval recommendations with respect to changes or modifications to such policy. Service
Provider shall maintain and enforce the then-current County security policy until any changes
or modifications are approved in writing by County for implementation. County shall have the
right to establish backup security for County Data and to keep backup copies of the County
Data in County’s possession at County’s expense, if County so chooses. If requested, Service
Provider shall provide County with downloads of County Data, as requested by County, to
enable County to maintain such backup security or backup copies of County Data. Service
Provider shall remove all County Data from any media taken out of service and shall destroy
or securely erase such media in accordance with County standards and the Policy and
Procedures Manual. No media on which County Data is stored may be used or re-used to store
data of any other customer of Service Provider or to deliver data to a third party, including
another Service Provider customer, unless securely erased in accordance with the County
standards and the Policy and Procedures Manual. In the event Service Provider discovers or is
notified of a breach or potential breach of security relating to County Data, Service Provider
shall, in addition to any other obligations it may have under this Agreement, expeditiously (a)
notify County of such breach or potential breach, (b) investigate (with County’s participation,
if so desired by County) such breach or potential breach and perform a risk assessment, Root
Cause Analysis and corrective action plan thereon, (c) provide a written report to County of
such risk assessment, Root Cause Analysis and action plan (d) remediate the effects of such
breach or potential breach of security, (e) provide County with such assurances as County shall
request that such breach or potential breach will not recur and (f) provide periodic updates
during the investigation to County and provide County the Root Cause Analysis reports.
Nothing in this Agreement will be construed as a limitation on County’s right to use County
Data for its own purposes.
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5.1.10 Reconstruction Procedures. As part of the Services, Service Provider shall be responsible
for developing and maintaining procedures for the reconstruction of lost County Data which
are (i) no less rigorous than those maintained by County as of the Commencement Date (or
implemented by County in the future to the extent deemed necessary by County) and (ii) no
less rigorous than those maintained by Service Provider for its own information of a similar
nature. Service Provider shall restore all destroyed, lost or altered County Data using generally
accepted data restoration techniques. In addition, if Service Provider, its Affiliates or
subcontractors or other Service Provider Personnel has caused the destruction, loss or alteration
of any County Data, Service Provider shall be responsible for the Loss and cost of restoring
such data. Service Provider shall at all times adhere to the procedures and safeguards specified
in this Section and shall correct (including any required back-up or restoration of data from
scheduled backups, or if not available on such backups, restoration by other means with
County’s reasonable cooperation), at no charge to County, any destruction, loss or alteration of
any County Data attributable to any error or breach of this Agreement due to Service Provider
or Service Provider Personnel. Service Provider shall promptly correct any errors or
inaccuracies in the County Data and the reports (1) caused by Service Provider, its Affiliates
or subcontractors or (2) as required to comply with applicable Service Levels.
5.1.11 Electronic Incident Reporting. For purposes of this provision, “Electronic Incident” means
any unauthorized action by a known or unknown person which, if successfully completed,
attempted, or threatened, could reasonably be considered one of the following: an attack,
penetration, denial of service, disclosure of Proprietary or Confidential Information, misuse of
system access, unauthorized access or intrusion (hacking), Virus intrusion, scan of the Systems,
networks, technology, content or websites of County (or another County Authorized User) or
Service Provider (or its Affiliates or subcontractors), or any other activity that could adversely
affect Proprietary or Confidential Information. Service Provider shall report to County all
known or suspected Electronic Incidents. If an Electronic Incident occurs, Service Provider
shall, as soon as possible, notify County as specified in the Policy and Procedures Manual and
provide the following information, to the extent known to or ascertainable by Service Provider:
the nature and impact of the Electronic Incident; actions already taken by Service Provider;
Service Provider’s assessment of immediate risk; and corrective measures to be taken,
evaluation of alternatives and next steps. Service Provider shall continue providing appropriate
status reports to County regarding the resolution of the Electronic Incident and prevention of
future such Electronic Incidents. In consultation with Service Provider, County may, in its
reasonable discretion, require that Service Provider’s ability to access, process, or store County
Proprietary or Confidential Information be suspended, connectivity with Service Provider be
terminated, or other appropriate action be taken pending such resolution, provided that upon
any such action by County, Service Provider shall be temporarily relieved of its obligations
under this Agreement to the extent it is unable to perform under such circumstances and so
notifies County at the time of such suspension by County.
5.1.12 County Personal Data
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5.1.12.1 Compliance with Privacy Laws. Service Provider shall comply with the provisions of and
the obligations imposed on Service Provider under applicable Privacy Laws. In addition,
Service Provider shall provide County with such assistance as County may reasonably
require to fulfill the responsibilities of County and the other County Authorized User under
such Privacy Laws. Service Provider also shall comply with the other data privacy policies
of County, as well as the data privacy policies of any self-regulatory organizations to which
County or the other County Authorized User belong which are applicable to Service Provider
in its role as a data processor and third party service provider to County and the other County
Authorized User in relation to County Personal Data. No County Personal Data may be
transmitted or stored outside of the United States of America without the written
authorization of the County Manager or designee.
5.1.12.2 Return of Personal Data. All or any requested portion of County Personal Data acquired
by Service Provider shall be promptly returned to the County upon request and at no cost to
the County, in the format and on the media in use as of the date of the request, unless and to
the extent such County Personal Data is required by Service Provider to discharge its
obligations hereunder or under applicable Privacy Laws.
5.1.12.3 Service Provider Responsible for Third Parties. Service Provider shall be responsible for
the acts and omissions of any Affiliates, subcontractors or Third Party Service Providers it
has engaged to process (within the meaning of the applicable Privacy Laws) County Personal
Data on Service Provider’s behalf in the same manner and to the same extent as it is
responsible for its own acts and omissions with respect to such County Personal Data.
5.1.12.4 Personal Data Security. Without limiting Service Provider’s obligations under this
Agreement or respective Service Agreements with respect to data security, Service Provider
shall:
(i) regarding the state of technological development and the cost of implementing any
measures, provide a level of security (including appropriate technical and
organizational measures (e.g., encryption)) appropriate to: (A) the harm that might
result from unauthorized or unlawful processing of such County Personal Data, or
accidental loss, destruction or damage of such County Personal Data; and (B) the
nature of the County Personal Data;
(ii) take commercially reasonable steps to ensure the reliability of Service Provider
Personnel who have access to the County Personal Data;
(iii) provide County with such information, assistance and cooperation, and execute
such documents and additional terms, as County may reasonably require from time
to time to establish Service Provider’s and/or County’s compliance with the
obligations relating to security contained in the Privacy Laws; and
(iv) inform County as soon as reasonably practicable of any particular risk to the
security of any of Service Provider’s computer networks of which it becomes
aware and of the categories of County Personal Data and individuals that may be
affected.
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5.1.13 Data and Privacy. Service Provider shall comply with all applicable data and privacy laws
and regulations, including without limitation, the Florida Information Protection Act of 2014,
Florida Statutes Section 501.171, and shall ensure that County data transmitted and stored in
connection with this Agreement is not transmitted or stored outside of the continental United
States. Service Provider may not sell, market, publicize, distribute, or otherwise make available
to any third party any personal identification information (as defined by Florida Statutes
Section 817.568 or Section 817.5685) that Service Provider may receive or otherwise have
access to in connection with this Agreement unless expressly authorized in advance by County.
If requested by County, Service Provider shall ensure that all hard drives or other storage
devices and media that contain County Data have been wiped in accordance with the then–
current best industry practices, including without limitations DOD 5220.22-M, and then an
appropriate data wipe certification is provided to the satisfaction of the County Manager or
designee.
5.1.14 Indemnity. THE SERVICE PROVIDER SHALL INDEMNIFY, DEFEND, SAVE AND
HOLD HARMLESS COUNTY FROM ANY AND ALL LOSS RESULTING FROM A
BREACH BY SERVICE PROVIDER OR ITS EMPLOYEES, AGENTS OR
CONTRACTORS OF THE TERMS OF ARTICLE 5 OF THE AGREEMENT.
5.1.15 Injunctive Relief. The parties represent and agree that neither damages nor any other legal
remedy is adequate to remedy any breach of this article, and that the injured party shall
therefore be entitled to injunctive relief to restrain or remedy any breach or threatened breach
of this Article.
5.1.16 Survival; Severability. The provisions of this section shall survive termination or expiration
of this Agreement or any determination that this Agreement or any portion hereof is void,
voidable, invalid or unenforceable.
5.1.17 Service Provider Confidential Information. Any materials submitted to the County that
Service Provider contends constitutes or contains trade secrets or is otherwise exempt from
production under Florida Public Record Laws (including Florida Statutes Chapter 119) (“Trade
Secret Materials”) must be separately submitted and conspicuously labeled “EXEMPT FROM
PUBLIC RECORD-TRADE SECRET.” In the event that a third-party submits a request to
County for records designated by the Service Provider as a Trade Secret Materials, County
shall refrain from disclosing the Trade Secret Materials, unless otherwise ordered by Court of
competent jurisdiction or authorized in writing by Service Provider. Service Provider shall
indemnify and defend County and its employees and agents from any and all claims, causes of
action, Losses, fines, penalties, damages, judgments, and liabilities of any kind, including
attorneys’ fees, litigation expenses, court costs, relating to the non-disclosure of any Trade
Secret Materials in response to a records request by a third-party caused by the act or omission
of the Service Provider.
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5.1.18 County Proprietary Rights. Service Provider acknowledges and agrees that County retains
all rights, title, interest in and to all materials, data, documentation, and copies thereof furnished
by County to Service Provider under this Agreement, including all copyright and other
proprietary rights therein, which Service Provider as well as its employees, agents,
subconsultants, end suppliers may use only in connection with the performance of its
obligations under this Agreement. All rights, title, and interest in and to certain ideas, designs,
and methods, specifications, and other documentation related thereto developed by Service
Provider specifically for County (collectively the “Developed Works”) shall be and remain the
property of County. Accordingly, neither Service Provider nor its employees, agents,
subconsultants, or suppliers shall have any proprietary interest in such Developed Works.
Developed Works may not be utilized, reproduced, or distributed by or on behalf of Service
Provider, or any employee, agent, subconsultants, or supplier thereof, without prior written
consent of County, except as required for the Service Provider’s performance hereunder.
5.2 INTELLECTUAL PROPERTY RIGHTS
5.2.1 County Software. Each Service Agreement shall identify the County Software, if any, that
Service Provider is authorized to use to perform the Services and specify the rights of Service
Provider to use the County Software for the benefit of the County.
5.2.2 Third Party Software. Each Service Agreement shall identify any Third Party Software, and,
unless otherwise stated in such Service Agreement, Service Provider shall, to the extent
necessary to provide the Services: (i) maintain (and upgrade as necessary) licenses and
maintenance agreements for Third Party Software Licenses used by County on the Service
Agreement Effective Date; (ii) obtain licensed authorization for use and disclosure of Third
Party Software by and to Service Provider’s employees or agents; and (iii) install fixes,
modifications, releases or versions of Third Party Software which are identified by the licensor
of Third Party Software as required to make the Third Party Software function as intended.
Service Provider shall not use in performing the Services any Third Party Software unless the
fully informed consent of the County has been tendered and such Third Party Software was
commercially available to County when selected.
5.2.3 Work Product. (a) Service Provider shall be the sole and exclusive owner of all work product
owned by it as of each applicable Service Agreement Effective Date (“Service Provider Work
Product”). (b) County shall be the sole and exclusive owner of any reports, manuals and other
work product prepared by Service Provider pursuant to a Service Agreement and of any
enhancements to and modifications of County Software implemented pursuant to a Service
Agreement (“County Work Product”). In addition, as between County and Service Provider, to
the extent possible, County shall be the sole and exclusive owner of any enhancements to and
modifications of Third Party Software implemented pursuant to a Service Agreement. All
County Work Product described in this subsection (b) shall be considered instantly vested and
fully owned by County as fully and completely as if a proper, enforceable work for hire under
the copyright laws. If any such County Work Product is not considered a work made for hire
under applicable law, Service Provider hereby irrevocably assigns to County all of Service
Provider’s right, title and interest in and to such County Work Product. Service Provider shall
execute any documents and take any other actions reasonably requested by County to
accomplish the purposes of this Section. If for any reason County fails to obtain ownership of
the County Work Product and such ownership is vested in Service Provider or its employees
or agents, Service Provider agrees to (i) promptly and legally transfer such work product to
County wherever possible and (ii) wherever not possible, promptly grant to County a perpetual,
exclusive, royalty-free and world-wide license to use the County Work Product for any
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purpose, and to assign and sublicense its license rights.
5.2.4 Use of Concepts. Nothing in this Master Agreement shall restrict a party from the use of any
ideas, concepts, know-how, methods or techniques relating to information technology and
telecommunications services that such party, individually or jointly, develops or discloses
under this Master Agreement or any Service Agreement or obtains from third parties, except
to the extent that such use infringes the other party’s patent rights, copyrights or other
intellectual property rights or involves a disclosure or use of the other party’s Confidential
Information.
5.2.5 Non-Infringement. Both Parties shall perform their respective obligations under this Master
Agreement and all Service Agreements in a manner that does not infringe, or constitute an
infringement or misappropriation of, any patent, copyright, trademark, trade secret or other
proprietary rights of any third party. Service Provider represents that, to its knowledge, as
advised by counsel, the Service Provider Software and the Services performed by Service
Provider do not, and will not, infringe any patent, copyright, trade secret or any other
intellectual property interest owned or controlled by any other person.
5.2.6 Viruses. Service Provider shall use all Commercially Reasonable Efforts to ensure that no
Viruses are coded or introduced into the systems used to provide the Services. If a Virus is
introduced either by Service Provider or as a result of the negligent performance of the Services
by Service Provider, Service Provider shall at its expense eliminate the Virus and assume all
liability for Losses caused by the Virus.
5.2.7 Disabling Code. Service Provider shall not knowingly insert into any Software any code that
would have the effect of disabling any Software, Equipment or Services. With respect to any
disabling code that may be part of the Software, Service Provider shall not invoke such
disabling code at any time for any reason. If, at any time, the licensor of any Third Party
Software shall invoke or threaten to invoke any disabling code in Third Party Software licensed
to Service Provider which could adversely affect the Services, Service Provider shall use its
best efforts to preclude such action on the part of such licensor.
Article 6
INSURANCE AND INDEMNIFICATION
6.1. INSURANCE COVERAGES REQUIRED. Service provider shall, at all times during the
duration of this Agreement, and to the extent required thereafter, provide and maintain on a
primary and non-contributory basis, the following types of insurance protecting the interest of
Service Provider and County with limits of liability no less than those set forth below or
otherwise maintained by the Service Provider, whichever limits of liability are greater:
6.1.1. Commercial Liability Insurance. Service Provider shall maintain Commercial General
Liability Insurance which shall include coverage on an “occurrence basis” and afford the
following coverages:
6.1.1.1. Premises-Operations;
6.1.1.2. Products/Completed Operations Hazard;
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6.1.1.3. Contractual Insurance;
6.1.1.4. Independent Contractors;
6.1.1.5. Personal Injury;
6.1.1.6. Advertising Injury;
6.1.1.7. Premises Medical Payments;
6.1.1.8. Broad Form Property Damage;
6.1.1.9. Additional Insureds; and
6.1.1.10. Independent Contractors
The Commercial General Liability Insurance to be maintained by Service Provider must be
endorsed with a broad form property damage endorsement (including completed operations).
The County shall be named as an additional insured on the Service Provider’s comprehensive
general liability policy on a form no more restrictive than ISO Form CG 20 10 (additional
insured-owners, lessees, or contractor). The policy must be endorsed to waive the insurer’s
right to subrogate against the County. The limits of liability associated with the Service
Provider’s comprehensive general liability insurance shall not be less than the following:
Four Million and No/100 Dollars ($4,000,000.00) each occurrence; and
Six Million and No/100 Dollars ($6,000,000.00) aggregate. Use of umbrella and excess liability
policy permitted to meet the minimum required coverage.
Notwithstanding anything contained herein to the contrary, the insurance coverages under the
general liability policy to be furnished by the Service Provider must be afforded on a policy
form no more restrictive than the last edition of the commercial general liability policy filed by
the Insurance Services Office, Inc. (ISO).
6.1.2. Workers Compensation/Employers Liability Insurance. Such insurance shall be no more
restrictive than that provided by the latest edition of the standard Workers Compensation
Policy, as filed for use in Florida by the National Counsel on Compensation Insurance (NCCI),
with the exception of endorsements required by NCCI or the State of Florida. The policy must
be endorsed to waive the insurer’s subrogate rights against the County in the manner which
would result from the attachment of the NCCI Form “Waiver of our Right to Recover from
Others Endorsement” (Advisor Form WC 00 03 13) with the County scheduled thereon. The
employer’s liability coverage afforded under the Worker’s Compensation/ Employers Liability
Insurance shall have minimum limits of:
$500,000.00 per accident
$500,000.00 disease limit
$500,000.00 disease-policy limit
6.1.3. Professional Liability Insurance. Such insurance shall cover Service Provider for those
sources of liability arising out of the rendering or failure to render professional services in the
performance of the services required under this Agreement. If the policy provides coverage on
a claims-made basis, such coverage must respond to all claims reported within at least three (3)
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years following the period for which coverage is required. The professional liability insurance
shall have a $2,000,000.00 combined single limit (CSL).
6.1.4. Cyber Liability, or Technology Errors and Omissions Insurance. Coverage is required for
any system connected to, and, or accessible from the internet. Coverage may be included as
part of the required Professional Liability Insurance the limits of liability associated with the
professional liability insurance shall not be less than Five Million and No/100 Dollars
($5,000,000.00) per occurrence. If the policy provides coverages on a claims-made basis, such
coverage must respond to all claims reported within at least three (3) years following the period
for which coverage is required. Such policy shall cover, at a minimum, the following:
Data Loss and System Damage Liability;
Security Liability;
Privacy Liability; and
Privacy/Security Breach Response Coverage including Notification Expenses.
The limits of liability associated with the Service Provider’s Cyber Liability, or Technology
Errors and Omissions coverage shall not be less than the Five Million and No/100 Dollars
($5,000,000.00) each occurrence. The County shall be included on the Cyber Liability, or
Technology Errors and Omissions Insurance as an “additional insured.”
6.1.5. Business Automobile Liability Insurance. The Service Provider shall maintain Business
Automobile Liability Insurance covering all owned, non-owned, and hired vehicles used by the
Service Provider in connection with this Agreement with a combined minimum limit of One
Million and No/100 Dollars ($1,000,000.00), single limit for bodily injury and property damage
liability for each person/each occurrence.
6.1.6. Crime and Fidelity Insurance. The Service Provider shall maintain a policy of Crime and
Fidelity Insurance in an amount not less than Five Million and No/100 Dollars ($5,000,000.00)
per occurrence.
6.1.7. Umbrella (Excess) Liability Insurance. The Service Provider shall maintain an Umbrella
(Excess) Liability Insurance policy in an amount not less than Ten Million and No/100 Dollars
($10,000,000.00) combined single limit bodily injury/ property damage, in excess of the
commercial general liability insurance and business automobile insurance described above.
6.1.8. Property Insurance. Service Provider shall provide insurance on all property owned by
Service Provider and used to perform Services under this Agreement. Such policy shall provide
“all risk” perils, including flood, and shall be written on a basis of the lesser of the cost of
complete repair or one hundred percent (100%) replacement value of the property. Coverage
shall include all business personal property, tenant improvements, business interruption,
property of others, in care, custody, and control of the insured and in transit. Service Provider
shall be responsible for any deductible or self-insured retention associated with such insurance
coverage.
6.2. INSURANCE REQUIREMENTS
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6.2.1. Rating of Insurance Companies. All companies issuing the policies of insurance provided for
herein shall be licensed or approved by the Department of Insurance, State of Florida, and shall
have a financial rating no lower than II, and a policy holders surplus rating no lower than (A)
as listed in the most current edition of A. M. Best TK Rating Guide. Companies with ratings
lower than those specified herein shall only be acceptable upon the written consent of the
County.
6.2.2. Waiver of Subrogation. Service Providers insurance policies shall be endorsed to provide that
the insurers waive their rights of subrogation against the County and also to provide that the
policies afford primary coverage over any other applicable insurance coverages.
6.2.3. Extent of Coverages. The required insurance coverages referred to above are set forth in full
in their respective policy forms, and the foregoing descriptions of such policies are not intended
to be complete nor to limit any of the provisions of the actual policies and should such
descriptions be narrower than the coverages afforded under the actual policies of insurance, the
provisions of the actual policies of insurance shall govern.
6.2.4. Advance Notice of Cancellation. Service Provider shall provide the County with thirty (30)
calendar days advance notice of any cancellation of the policy except in case of cancellation
for non-payment for which the County shall be given ten (10) calendar days advance notice.
6.2.5. Request for Policy Forms. The Service Provider shall provide, within thirty (30) calendar
days after receipt of a request from the County, copies of the policies providing the insurance
coverages required under this Agreement.
6.2.6. Subcontractors. If the Service Provider utilizes a subcontractor, the Service Provider shall
require each subcontractor to endorse the County as an “additional insured” on the
subcontractor’s commercial general liability policy.
6.2.7. Maintenance of Coverage. The coverages provided for under this Agreement are not to cease
and are to remain in full force and effect until the County determines that all performance
required of the Service Provider is completed. If any of the insurance coverages are terminated
prior to the completion of the Services, the County shall be entitled to replace such insurance
at the expense of the Service Provider and the Service Provider shall reimburse the County for
all such forced replaced insurance.
6.2.8. Financial Resources. Service Provider shall be required to provide written documentation that
is acceptable to the County establishing that the Service Provider has the financial resources
readily available to cover damages, injuries and/or Losses which are not covered by the policies
deductible amount or under any self-insurance program maintained by the Service Provider.
6.2.9. Verification of Coverage. Coverage shall be in place prior to the commencement of any work
and throughout the duration of the Contract and for such additional periods as are provided for
herein. A certificate of insurance will be provided to the County’s Risk Manager for review
and approval. The certificate shall provide for the following:
6.2.9.1. The certificate holder shall read as follows:
Lee County Board of County Commissioners, P.O. Box 398, Fort Myers, Florida 33902
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6.2.9.2. “Lee County, a Political Subdivision and Charter County of the State of Florida, its agents,
employees and public officials” will be named as an “Additional Insured” on all policies other
than the professional liability policy on which the County shall be named as a certificate holder.
Subcontractors. It is the responsibility of the Service Provider to ensure that all subcontractors
comply with all insurance requirements and maintain levels of coverage acceptable to the
County.
6.3. Indemnification. Service Provider shall be fully liable for the actions of its current and former
officers, employees, subcontractors and other agents under this Agreement. Service Provider
shall at all times hereafter indemnify, hold harmless and defend County and all of County’s
current and former officers, employees and other agents (collectively, “Indemnified Party”)
from and against any and all lawsuits, causes of action, demands, claims, Losses, fines,
penalties, damages, judgments, liabilities and expenditures of any kind, including attorneys’
fees, litigation expenses, and court costs (collectively, “Claim”), raised or asserted by any
person or entity that is not a party to this Agreement, which Claim is caused or alleged to be
caused, in whole or in part, by any intentional, reckless, or negligent act or omission of Service
Provider or any current or former officer, employee, subcontractor, or other agent of Service
Provider, arising from, relating to, or in connection with any obligation or performance under
this Agreement. In the event any Claim is brought against an Indemnified Party, Service
Provider shall, upon written notice from County, defend each Indemnified Party against each
such Claim through counsel satisfactory to County or, at County’s option, pay for an attorney
selected by the County to defend the Indemnified Party. The provisions and obligations of this
section shall survive the expiration or earlier termination of this Agreement. To the extent
considered necessary by the County, in its sole and reasonable discretion, any sums due Service
Provider under this Agreement may be retained by County until all Claims subject to this
indemnification obligation have been resolved. Any sums so withheld shall not be subject to
the payment of interest by County.
Article 7
REPRESENTATIONS
7.1. Mutual Representations. Each party represents and warrants that it has all necessary
corporate power and authority to enter into this Master Agreement and all associated Service
Agreements and to perform its obligations thereunder.
7.2. Service Provider Representations. The Service Provider represents and warrants to the
County that:
7.2.1. It has and shall have the right and authority to use the Service Provider Software and Third
Party Software to provide Services and to grant to County licenses to the Service Provider
Software and Third Party Software described in each Service Agreement.
7.2.2. It is not a party to, and is not bound or affected by or subject to, any instrument, agreement,
charter or by-law provision, rule, regulation, judgment or order which would be contravened
or breached as a result of the execution of this Master Agreement, consummation of the
transactions contemplated by this Master Agreement, or execution of any Service Agreement.
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7.2.3. It is not the subject of any pending or threatened litigation (including claims subject to
mediation or arbitration) arising from an outsourcing relationship similar to the relationship
contemplated by this Master Agreement or any Service Agreement.
7.2.4. Service Provider (a) has, and each of the Service Provider’s employees and subcontractors
possesses the necessary knowledge, skills, experience, rights and resources to provide and
perform the Services in accordance with the Agreement; (b) it has successfully provided and
performed the Services that are substantially equivalent to the Services for other customers of
Service Provider; and (c) the services will be performed in a prompt, diligent and professional
manner using qualified, experienced individuals, and in accordance with preferred industry
standards applicable to the performance of such Services.
7.2.5. It is a corporation duly incorporated, validly existing and in good standing under the laws of
the state in which it is incorporated, and is in good standing in each other jurisdiction where
the failure to be in good standing would have a material adverse effect on its business and
ability to perform its obligations under this Master Agreement.
7.3. Public Entity Crime Act. Service Provider represents that it is familiar with the requirements
and prohibitions under the Public Entity Crime Act, Section 287.133, Florida Statutes, and
represents that its entry into this Agreement will not violate that Act. In addition to the
foregoing, Service Provider further represents that there has been no determination that it has
committed a “Public Entity Crime” as defined by Section 287.133, Florida Statutes, and that it
has not been formally charged with committing an act defined as a “Public Entity Crime”
regardless of the amount of money involved or whether Service Provider has been placed on
the convicted vendor list. Notwithstanding any provision in this Agreement to the contrary, if
any representation stated in this section is false, County shall have the right to immediately
terminate this Agreement without liability, at its discretion, and recover all damages
attributable to that false representation.
7.4. Contingency Fee. Service Provider warrants that it has not employed or retained any company
or person, other than a bona fide employee working solely for Service Provider, to solicit or
secure this Agreement and that it has not paid or agreed to pay any person, company,
corporation, individual or firm, other than a bona fide employee working solely for Service
Provider, any fee, commission, percentage, gift or other consideration contingent upon, or
resulting from, the award or making of this Agreement. For a breach or violation of this
provision, the County shall have the right to immediately terminate this Agreement without
liability, at its discretion, and to recover all damages attributable to such a misrepresentation.
Article 8
EQUAL EMPLOYMENT OPPORTUNITY
8.1. No party to this Agreement may discriminate on the basis of race, color, sex, religion, national
origin, disability, age, marital status, political affiliation, sexual orientation, pregnancy or
gender identification and expression in the performance of this Agreement. Service Provider
shall include the foregoing or similar, but equally restrictive, language in its contracts with any
subcontractors. Failure by Service Provider to carry out any of the requirements of this section
shall constitute a material breach of this Agreement which shall permit County to terminate
this Agreement or to exercise any other remedy provided under this Agreement or under other
applicable law, all such remedies being cumulative.
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8.2. By execution of this Agreement, Service Provider represents that it has not been placed on the
discriminatory vendor list as provided in Section 287.134, Florida Statutes. County hereby
materially relies on such representation in entering into this Agreement. An untrue
representation of the foregoing shall entitle the County to terminate this Agreement or to
exercise any other remedy provided for under this Agreement and may result in the Service
Provider being barred from the County’s procurement activities.
Article 9
TERM AND TERMINATION
9.1. Term of Agreement.
9.1.1. Initial Term. The initial term of this Master Agreement shall begin on the Commencement
Date. The Term shall continue for a period of five (5) years after the Commencement Date,
unless earlier terminated or renewed in accordance with the provisions of this Master
Agreement. Each Service Agreement contemplated hereunder shall set forth the applicable
Service Agreement Term, but in no event shall the term of any Service Agreement exceed the
Term of this Master Agreement.
9.1.2. Option to Renew. The County shall have the option to renew this Master Agreement for up
to three (3) additional one-year terms, for desired Service Towers, upon the mutual written
agreement of both Parties. The County can elect to avail itself of one, two or all of the renewal
terms. The County shall exercise this option to renew for an additional Term by delivering
written notice of such renewal to the Service Provider at least three (3) months prior to the
expiration of the then-current Term. The Service Provider shall provide the County with notice
of the need to make a renewal election four (4) months before the expiration of each Term. All
of the terms of this Master Agreement, and any applicable Service Agreements, shall continue
to apply without change, unless mutually agreed to by both parties during any renewal Term.
9.2. Termination of Agreement
9.2.1. Termination for Cause.
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9.2.1.1. County shall have the option to terminate any Service Agreement, or one or more categories of
Services under a Service Agreement, for cause in the event of any of the following: (i) a
material breach of such Service Agreement by Service Provider that is not cured by Service
Provider within fifteen (15) calendar days of the date on which County provides written notice
of such breach; (ii) a material breach of such Service Agreement by Service Provider that is
not reasonably subject to cure within fifteen (15) calendar days after its occurrence; (iii) if it is
determined by County that there exists a plurality of non-material breaches by Service Provider
that have a material adverse impact on the Services; (iv) immediately upon a material failure
by Service Provider to provide any Services pertaining to disaster recovery services required
under any Service Agreement; (vi) upon Service Provider’s failure to satisfactorily complete a
migration under a Service Agreement by the scheduled Migration Completion Date; (vii) upon
Service Provider’s failure to provide adequate assurances of performance within seven (7)
calendar days of Service Provider’s receipt of County’s demand for such assurances; or (viii)
upon any change in control of Service Provider or any sale of all or substantially all the assets
of Service Provider, except in the event of a merger or other form of combination between
Service Provider and its parent or a wholly owned subsidiary of its parent provided that the
County is satisfied, in the exercise of its reasonable discretion, that such a merger or
combination will not adversely affect Service Provider’s creditworthiness or ability to provide
the Services.
9.2.1.2. County shall have the option to terminate this Master Agreement and all Service Agreements
for cause (i) at any time if County has terminated one or more Service Agreement for cause; or
(ii) upon any change in control of Service Provider or any sale of substantially all the assets of
Service Provider, except in the event of a merger or other form of combination between Service
Provider and its parent or a wholly owned subsidiary of its parent, consented to by County,
which consent shall not be unreasonably withheld or delayed.
9.2.1.3. County shall exercise its termination option by delivering to Service Provider written notice of
such termination identifying the termination date which shall be at least thirty (30) calendar
days from the date such termination notice is delivered to Service Provider.
9.2.1.4. Service Provider shall have the option to terminate a Service Agreement if County fails to pay
in accordance with the Prompt Payment Act and if the County owes undisputed amounts to
Service Provider under such Service Agreement and County fails to cure such failure within
thirty (30) calendar days after receipt of written notice specifically stating that Service Provider
is exercising its rights under this section. Service Provider hereby waives any rights it may have
under this Master Agreement or any Service Agreement, at law or in equity, to terminate this
Master Agreement or any Service Agreement for any other reason. Service Provider shall
exercise its termination option by delivering to County written notice of such termination
identifying the termination date which shall be at least ninety (90) calendar days from the date
such termination notice is delivered and served upon the County as required by law.
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9.2.2. Non-Appropriation. All funds for payment by the County under this Agreement are subject
to the availability of an annual appropriation for this purpose by the Lee County Board of
County Commissioners. In the event of non-appropriation of funds by the County for the
services provided under this Agreement, the County will terminate the Contract, without
termination charge or other liability, on the last day of the then current fiscal year or when the
appropriation made for the then-current year for the services covered by this Agreement is
spent, whichever event occurs first. If at any time funds are not appropriated for the
continuance of this Agreement, cancellation shall be accepted by Service Provider on thirty
(30) calendar days’ prior written notice, but failure to give such notice shall be of no effect and
the County shall not be obligated under this Agreement beyond the date of termination.
9.2.2.1. Termination for Convenience. County shall have the option to terminate for convenience this
Master Agreement or one or more Service Agreements or one or more categories of Services
under a Service Agreement. County shall exercise its termination option by delivering to
Service Provider written notice of such termination identifying the termination date which shall
be at least thirty (30) calendar days after the date of such notice. In connection with any such
termination, County shall have no liability to Service Provider for amounts in excess of the
normal charges through the date of termination except for payment of any termination fees
referenced in a Service Agreement. Any termination fee included within a Service Agreement
shall not include any reimbursement for lost profit and shall be strictly limited to any sums that
are owed the Service Provider as of the date of the termination and the actual demobilization
costs the Service Provider incurs as a result of such termination. Service Provider shall be
deemed to have waived and released any other claims against the County it possesses.
9.2.2.2. County shall have the option to terminate this Master Agreement without cause at any time if
no Services are being provided under any Service Agreement.
9.2.2.3. If a purported termination for cause by County is determined not to be a proper termination for
cause, such termination shall be deemed, at County’s option, to be a termination for
convenience subject to this Section.
9.2.3. Termination for Insolvency. County shall have the option to terminate this Master Agreement
in its entirety without payment of any termination fees if Service Provider (i) becomes insolvent
or is unable to meet its debts as they mature, (ii) files a voluntary petition in bankruptcy or
seeks reorganization or to effect a plan or other arrangement with creditors, (iii) files an answer
or other pleading admitting, or fails to deny or contest, the material allegations of an involuntary
petition filed against it pursuant to any applicable statute relating to bankruptcy or
reorganization, (iv) shall be adjudicated bankrupt or shall make an assignment for the benefit
of its creditors generally, (v) shall apply for, consent to or acquiesce in the appointment of any
receiver or trustee for all or a substantial part of its property, or (vi) any such receiver or trustee
shall be appointed and shall not be discharged within thirty (30) calendar days after the date of
such appointment.
9.2.4. Termination Upon Force Majeure Event. County shall have the option to terminate this
Master Agreement or one or more affected Service Agreements or categories of Services, if
Service Provider fails to perform any Services in any material respect because of the occurrence
of a Force Majeure Event and: (a) Service Provider does not cure such failure within seven (7)
calendar days after the occurrence of the Force Majeure Event; or (b) such failure is not
reasonably subject to cure within seven (7) calendar days after such occurrence. County shall
exercise its termination option by delivering to Service Provider written notice of such
termination identifying the termination date.
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9.2.5. Effect of Termination. Termination of this Master Agreement or any Service Agreement or
categories of Services for any reason under this Article shall not affect (i) any liabilities or
obligations of either party arising before the termination date; (ii) continuing obligations under
this Agreement or any Service Agreement; or (iii) any damages or other remedies to which a
party may be entitled under this Master Agreement or any Service Agreement, at law or in
equity, arising from any breaches of obligations occurring before the termination date.
9.2.6. Support in Managing Termination/Expiration. Upon County’s delivery to Service Provider
of any written notice of breach or termination of this Master Agreement or any Service
Agreement, Service Provider shall provide to County or County’s designee the assistance
reasonably requested by County to facilitate the orderly transfer of the Services to County or
its designee, including, without limitation, preparation of a mutually agreeable, reasonable
Migration Plan and the delivery of any assistance specifically described in any Service
Agreement(s) (“Support in Managing Termination/Expiration”). Such Migration Plan would
include an identification of key positions requiring transition management, and important
procedures to be performed regarding County Data, documentation, projects and activities so
that County’s business is not adversely affected during transition. County may also request
that Service Provider begin providing support in managing termination/expiration at any time
within the six-month period prior to expiration of any Service Agreement Term. Unless
otherwise provided in a Service Agreement, the Support in Managing Termination/Expiration
referenced in a Service Agreement shall be provided to County at no additional cost.
9.2.7. Software Licenses. Upon expiration or earlier termination of any Service Agreement and
unless provided otherwise in such Service Agreement, Service Provider shall grant to County
a worldwide, royalty-free, nonexclusive license to County to use the Service Provider Software
used to provide the applicable Services at the end of the Service Agreement at Service
Provider’s then-current fees. Service Provider may offer to maintain such Service Provider
Software on terms at least as favorable as those offered to other similarly situated Service
Provider Customers. The scope of any such license grant will be for the sole and exclusive
purpose of supporting County’s technology requirements covered by such Service Agreement
that has been terminated and any such Service Provider Software or derivative works thereof
may only be used by County or by a third party on County’s behalf for such purpose.
9.2.8. Contracts. Upon expiration or earlier termination of any Service Agreement, Service Provider
shall, at County’s request and sole discretion, and to the extent permitted by the applicable
Third Party Contract, assign to County or its designee any Third Party Software Licenses and
any Third Party Service Contracts used to provide Services to County at the end of the Term.
Concurrently with the assignment, County shall expressly assume all financial liabilities
associated with such Third Party Service Contracts and Third Party Software Licenses.
Article 10
DISENTANGLEMENT SERVICES
10.1. General Obligations. Service Provider shall accomplish a complete transition of any
terminated Services, whether in their entirety or on a Service Agreement-by-Service
Agreement basis, as applicable, from Service Provider to County and/or to any replacement
provider designated by County (the “Replacement Service Provider”) as directed by County,
without any material interruption of, or adverse impact on, the Services. As part of the
Services, Service Provider shall perform the obligations set forth in this Article 10 (collectively,
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the “Disentanglement Services”).
10.2. Disentanglement Process and Performance
10.2.1. Initiation of Disentanglement Services. The Disentanglement Services shall begin on any of
the following dates: (a) the date designated by County in connection with the expiration of the
Term, which date shall not be earlier than one hundred eighty (180) calendar days prior to the
Expiration Date; (b) the Termination Date specified in any Termination Notice delivered by
County to Service Provider pursuant to and in compliance with County’s termination rights as
set forth in this Agreement; or (c) the Termination Date specified in any Termination Notice
delivered by Service Provider to County.
10.2.2. End of Disentanglement Services. Disentanglement Services shall continue until the
Termination Date or Expiration Date, as applicable. County may extend the Disentanglement
Services as set forth in paragraph 10.6 for the fees and on such terms negotiated and agreed
upon by the Parties in writing.
10.2.3. Firm Commitment. Service Provider shall provide the Disentanglement Services to County
and/or the Replacement Service Provider regardless of the reason for the expiration or
termination of this Agreement. At County’s request, Service Provider shall provide the
Disentanglement Services directly to the Replacement Service Provider; provided, however
that, unless otherwise agreed by the Parties in writing, all such Disentanglement Services shall
be performed subject to and in accordance with the terms and conditions of this Agreement.
10.3. Disentanglement Services Plan. Within thirty (30) calendar days’ written notice from County
to Service Provider requesting a plan for Disentanglement Services, Service Provider shall
provide for County’s review, comment and approval a plan for implementing the provision of
the Disentanglement Services set forth in this Article 10 (Disentanglement Services) (the
“Disentanglement Plan”). Service Provider understands and agrees that County’s operations
are dependent on the Services and that County’s inability to receive the Services would result
in irreparable damages to County. Therefore, upon the expiration of this Agreement or its
termination by either party for any reason, including the breach of this Agreement by the other
party, the rights of County shall in any and all events (except as provided in Section 10.4) be
provided as set forth in this Article. If no Disentanglement Plan has yet been agreed to at the
time of termination, the rights of County upon any termination shall be as set forth in this
Article 10. If a Disentanglement Plan has been agreed to, then the rights of County upon any
expiration or termination of this Agreement shall be as set forth in the most recent approved
Disentanglement Plan, and also as set forth in this Article 10. In the event of any inconsistency
between this Article 10 and the applicable Disentanglement Plan, this Section shall govern. If
no Disentanglement Plan has been agreed to by the parties at the time of any termination of
this Agreement, then Service Provider shall provide the professional services staff necessary
to provide the Services, at performance standards and Service Levels in effect at the time of
termination or expiration, as well as the transition support services, which services shall be
provided as set forth in and in accordance with this Article 10.
10.4. Performance of Services. Service Provider shall provide County with all of the Services and
all of the Disentanglement Services as provided in this Article and in the then most recent
version of the Disentanglement Plan. All Disentanglement Services shall be provided subject
to and in accordance with the terms and conditions of this Agreement. After the expiration or
termination of the Term, Service Provider shall perform the Disentanglement Services with at
least the same degree of accuracy, quality, completeness, timeliness, responsiveness and
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resource efficiency as it provided and was required to provide with respect to the Services
during the Term. The quality and level of performance of the Disentanglement Services
provided by Service Provider following the expiration or termination of this Agreement shall
continue to meet or exceed the Service Levels (and SLA Credits shall still apply) and shall not
be degraded or deficient in any respect. Service Provider Personnel (including all Service
Provider Key Personnel) reasonably considered by County to be critical to the performance of
the Services and Disentanglement Services shall be retained on the County account through the
completion of all relevant Disentanglement Services in accordance with and subject to the
Designation of Service Provider Key Employees section and the Reassignment and
Replacement section. The duty of Service Provider to provide such Disentanglement Services
shall be conditioned on County paying Service Provider as to the Services received during the
Disentanglement Period. Service Provider shall have no right to withhold or limit any of the
Services or any of such Disentanglement Services on the basis of any alleged breach of this
Agreement by County, other than a failure by County to timely pay the amounts due for
Services rendered during the Disentanglement Period or the amounts due for such
Disentanglement Services under this Section. County shall have the right to immediately seek
specific performance of this Section in any court of competent jurisdiction, without engaging
in pre-suit negotiations and mediation as provided in Article 13 hereof, and Service Provider
hereby waives any defense that damages are an adequate remedy.
10.5. Cooperation. Service Provider shall (i) meet with County as soon as practicable after a notice
of termination or notice of a decision to not extend this Agreement has been given to discuss
any potential modifications to the then most current Disentanglement Plan; (ii) use all
Commercially Reasonable Efforts to assist County in effecting a transition of the Services, in
accordance with industry best practices, to County or another vendor chosen by County; (iii)
provide the number and types of resources necessary to complete the transition in accordance
with the Disentanglement Plan; and (iv) be compensated for all transition related services and
costs by payment by County in accordance with the rates set forth in this Agreement for
Services. Service Provider and County acknowledge and agree that their mutual cooperation is
important to an effective transition of technology services provided by Service Provider to
County or its designated provider(s). Each of the Parties agrees that acts, conduct, statements
or other participation by a party in efforts relating to the transition of services, on or after the
termination or expiration date, shall (i) not be deemed an admission of liability by either party
with regard to any claims arising from the termination of this Agreement; (ii) not be deemed a
compromise, release or waiver of any disputed claims between the Parties hereto or an estoppel
of the right to advance any such claims; or (iii) prejudice either party’s right to seek damages
from the other.
10.6. Period for Performance of Disentanglement Services. Unless otherwise directed by County,
commencing (i) six (6) months prior to the expiration or ceasing of the Agreement; (ii) upon
any notice of termination or non-renewal of the Agreement; or (iii) continuing for a period
defined in the Disentanglement Plan, but in no event less than twelve (12) months following
the expiration or termination of this Agreement (unless a shorter time period is requested by
County), Service Provider shall continue to provide the Services as well as any and all services.
After such twelve (12) month period (or such shorter time period as requested by County),
unless otherwise directed by County, Service Provider shall provide extensions of transition
support services as requested by County in serial thirty (30) calendar day extension terms for
up to an additional six (6) months provided that written notice of each serial thirty (30) calendar
day extension is issued at least thirty (30) calendar days prior to the commencement of the
requested thirty (30) calendar day extension.
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The total period of transition support services, including all extensions provided for herein,
shall not exceed eighteen (18) months. In addition to the Services as set forth in this Agreement,
the Disentanglement Services shall include, at a minimum, converting data, providing parallel
services until transition to a new system, providing On-site technical support, cooperating with
County or its designated Service Provider in developing required interfaces and such other
services as shall be necessary or appropriate to facilitate, without interruption to the Services,
the orderly transition of Services to County or its new provider of services in accordance with
industry best practices
10.7. Specific Disentanglement Services Obligations. The Disentanglement Services shall include
at a minimum and as requested by County, the following Services, functions and
responsibilities:
10.7.1. During the provision of the Disentanglement Services, the Parties shall cooperate fully with
one another to facilitate a smooth transition of the terminated Services from Service Provider
to County and/or the Replacement Service Provider. Without limiting the generality of the
foregoing, Service Provider shall: (a) cooperate with County and/or the Replacement Service
Provider and otherwise promptly take all steps required to assist County in effectuating the
Disentanglement Services; (b) provide to County and/or the Replacement Service Provider full,
complete, detailed and sufficient information (including all information then being utilized by
Service Provider with respect to data conversions, interface specification, programs, tools,
utilities and other resources used to provide the Services) and knowledge transfer with respect
to all such information in order to enable County’s and/or the Replacement Service Provider’s
personnel (or that of Third Parties) to fully assume and become self-reliant with respect to, and
continue without interruption, the provision of the Services; and (c) provide for the prompt and
orderly conclusion of all work, as County may direct, including completion or partial
completion of Services, documentation of work in progress, and other measures to assure an
orderly transition to County and/or the Replacement Service Provider.
10.7.2. Service Provider shall (i) perform programming and consulting services as requested to assist
in implementing the transition plan; (ii) train personnel designated by County in the use of any
Equipment, Software, materials or processes to be transferred; (iii) catalog all Software, County
Data and Equipment used to provide the Services, provide machine readable and printed
listings of Source Materials for Software and assist in its reconfiguration; (iv) analyze and
report on the space required for the County Data and the Software needed to provide the
Services; (v) assist in the execution of a parallel operation, data migration and testing process
until the transition to County has been successfully completed; (vi) create and provide copies
of the County Data in the format and on the media reasonably requested by County and, when
directed by County to do so, delete (and certify in writing such deletion) all County Data and
Documentation in Service Provider’s possession or control from any tapes or other data storage
media, including written records, in Service Provider’s possession or control except archival
records as necessary for documentation of Service Provider’s engagement with County; (vii)
provide such services as requested by County so that important knowledge, information and
practices pass from Service Provider and Service Provider personnel to County, County’s Third
Party Service Providers and/or County authorized users; and (viii) provide other technical
assistance as requested by County.
10.7.3. In addition to and/or as part of the Procedures Manual, Service Provider shall provide to County
complete information, including complete documentation, in accordance with the standards
and methodologies to be implemented by Service Provider, for all Software (including
applications developed as part of the Services) and Equipment sufficient to enable County
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and/or the Replacement Service Provider to fully assume the provision of the Services to
County.
10.7.4. Service Provider shall return to County, if not previously returned, all County Equipment, in
condition at least as good as the condition thereof on the reference date, ordinary wear and tear
excepted. Such County Equipment shall be returned at the expiration or termination date or the
completion of any Services or Transition Services associated with such County Equipment
requested by County under this Agreement, whichever is later.
10.7.5. Service Provider shall inform County of any subcontractor or Third Party Service Provider
contracts primarily dedicated by Service Provider, Service Provider subcontractors or Service
Provider Affiliates to perform the Services. County shall retain the right to contract directly
with any such subcontractor or Third Party Service Provider. In addition, Service Provider shall
use Commercially Reasonable Efforts to provide County with the right to contract directly with
any subcontractor or Third Party Service Provider previously, but no longer, utilized by Service
Provider to perform any Services or to assume Service Provider’s Contract with such
subcontractor or Third Party Service Provider.
10.7.6. Service Provider agrees that, during the period in which the Disentanglement Services are being
provided, it will meet with any vendors chosen by County to provide the Services to discuss
the hiring by such vendors, on terms acceptable to Service Provider, of Service Provider’s
employees who are then providing the Services to County.
Article 11
GENERAL
11.1 No Authority. Neither party shall have any authority, and neither party shall represent that it
has any authority, to assume or create any obligation, express or implied, on behalf of the other
party, except as provided in this Agreement. Each party is an independent contractor, and this
Agreement shall not be construed as creating a partnership, joint venture or employment
relationship between the parties or as creating any other form of legal association that would
impose liability on one party for the act or failure to act of the other party.
11.2 No Implied or Exclusive Agreements. Except as expressly required in a Service Agreement,
nothing in this Master Agreement requires the County to purchase products or services from
Service Provider. The County may request information, proposals or competitive bids from
third parties on the same or different terms than as provided in this Master Agreement.
11.3 Publicity. All media releases, public announcements and other disclosures by Service
Provider relating to this Master Agreement or any Service Agreement or the subject matter
hereof, including promotional and marketing materials, but excluding announcements intended
solely for internal distribution, or to meet legal or regulatory requirements, shall be coordinated
with, and approved by, the County prior to release of the same. No license or right, either
directly or by implication, is granted to Service Provider to use County’s name or any of
County’s tradenames, trademarks, service marks, slogans, logos or designs for any advertising,
promotional or other purpose without the prior, written permission of the County.
11.4 Technical Sufficiency of Services Provided by Service Provider.
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11.4.1 Notwithstanding anything contained herein to the contrary, it is understood and agreed between
the parties that neither the review, approval, nor acceptance by the County of data or any other
documents furnished hereunder by Service Provider shall in any way release the Service
Provider of its responsibility for the adequacy, completeness and accuracy of its work, and in
no event shall the County’s review, approval, acceptance of or payment for Service Provider’s
services be construed to operate as a waiver of any of the County’s rights under this Agreement
or any cause of action it may have, arising out of the performance of this Agreement.
11.4.2 The Service Provider hereby acknowledges that the County does not make any representations
or warranties to the Service Provider by virtue of the information contained in the Solicitation
or program descriptions. The Service Provider further acknowledges that it, alone, is
responsible for the accuracy, completeness and technical sufficiency of all work performed by
it under this Agreement, and the information contained in the County’s Solicitation and
program descriptions does not relieve, release or in any way whatsoever diminish the Service
Provider’s ultimate responsibility for the accuracy, completeness and technical sufficiency of
the Services or any work to be performed hereunder.
11.5 Disclosure to Third Parties. Except as otherwise provided in this Agreement and under Florida
law, Service Provider agrees not to divulge, furnish or make available to any third parties, firms
or organizations, without County’s prior written consent, or unless in connection with the
proper performance of Service Provider’s obligations hereunder, or in the course of any judicial
or legislative proceedings where such information has been properly subpoenaed, any
information concerning services to be rendered by Service Provider or any of its subcontractors
under this Agreement.
11.6 Expertise. Service Provider affirmatively represents to the County that it is an expert in
providing services of the nature to be provided under the terms of this Agreement.
Article 12
LEGAL MATTERS
12.1 HIPAA Compliance. It is understood by the Parties that County personnel or their agents
have access to protected health information (hereinafter known as “PHI”) that is subject to the
requirements of 45 C.F.R. §160, 162 and 164, and related statutory and regulatory provisions.
It is deemed to be a covered entity or business associate or otherwise required to comply with
the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) or the Health
Information Technology for Economic and Clinical Health Act (“HITECH”). Service Provider
shall fully protect individually identifiable health information as required by HIPAA and
HITECH. Service Provider agrees to be bound by the terms of the Business Associate
Agreement attached hereto as Schedule L, which is fully incorporated herein. Where required,
Service Provider shall handle and secure such PHI in compliance with HIPAA, HITECH and
its related regulations and, if required HIPAA, HITECH or other laws, shall include in its
“Notice of Privacy Practices” notice of Service Provider and County’s uses of a client’s PHI.
The requirement to comply with this provision, HIPAA and HITECH shall survive the
expiration or termination of this Agreement.
12.2 Drug Free Workplace. It is a requirement of County that it enter into contracts only with
firms that certify the establishment of a drug free workplace in accordance with Florida law.
Execution of this Agreement by Service Provider shall also serve as Service Provider’s required
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certification that it either has, or that it will establish, a drug free workplace in accordance with
Florida law.
12.3 Sovereign Immunity. The parties acknowledge that the County is entitled to sovereign
immunity under the provisions of Section 768.28, Florida Statutes with respect to any claims
for damages made against it. Nothing in this Agreement shall be construed as a waiver of the
County’s sovereign immunity.
12.4 Legal Compliance. Service Provider shall comply with all federal, state and local laws,
regulations and ordinances relating to the delivery of the Services provided under the terms of
this Agreement.
12.5 Force Majeure. (a) Neither party shall be liable for any failure or delay in the performance
of its obligations under this Master Agreement or any Service Agreement, if any, to the extent
such failure or delay: (i) is caused, without fault by such party, by fire, flood, earthquake, or
acts of God; labor disruptions or strikes; acts of war, terrorism, riots, rebellions or revolutions;
quarantines or embargoes; or any other similar cause beyond the reasonable control of such
party; and (ii) could not have been prevented by reasonable precautions and cannot reasonably
be circumvented by the non-performing party through the use of alternate sources, work-around
plans or other means (including, in the case of Service Provider, compliance with Service