MASTER SERVICES AGREEMENT FOR INFORMATION

Exhibit 12

MASTER SERVICES AGREEMENT

FOR

INFORMATION TECHNOLOGY OUTSOURCED SERVICES

BETWEEN

LEE COUNTY, FLORIDA, U.S.A.

AND

_______________________________

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TABLE OF CONTENTS

Article

Title

Page

Recitals and Relationship

Definitions

Working Relationship

Compensation

Intellectual Property Rights and Confidentiality

Insurance and Indemnification

Representations

Equal Employment Opportunity

Term and Termination

Disentanglement Services

General

Legal Matters

Dispute Resolution

Miscellaneous

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

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

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;

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

Provider’s obligations with respect to the provision of any disaster recovery services as set

forth in any Service Agreement). Events meeting the criteria set forth above are referred to as

“Force Majeure Events.” (b) Upon the occurrence of a Force Majeure Event, the non-

performing party shall be excused from any further performance for as long as such

circumstances prevail and such party continues to attempt to recommence performance

whenever and to whatever extent possible without delay. Any party so delayed in its

performance will immediately notify the other and describe in detail the circumstances causing

such delay. (c) If a Force Majeure Event causes a material failure or delay in the performance

of any Services for more than seven (7) consecutive calendar days, County may, at its option,

and in addition to any rights County may have pursuant to this section of this Agreement,

suspend all service under this Agreement and procure such Services from an alternate source

until Service Provider is again able to provide such Services, and Service Provider shall be

liable for all payments made and costs incurred by County required to obtain the Services from

such alternate source. County shall continue to pay Service Provider the charges established

hereunder during such period, but Service Provider shall not be entitled to any additional

payments as a result of the Force Majeure Event. (d) Notwithstanding any other provision of

this Section, a Force Majeure Event shall not relieve Service Provider of its obligation to

implement successfully all of the Services relating to disaster recovery services that are

included in any Service Agreement within the time period described in such Service

Agreement.

12.6 Actions of Other Party. 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 such

failure or delay is caused by the actions or omissions of the other party or breaches of this

Master Agreement or a Service Agreement by the other party provided that the party which is

unable to perform has provided the other party with reasonable notice of such non-performance

and has used Commercially Reasonable Efforts to perform notwithstanding the actions,

omissions or breaches of the other party.

12.7 Consents and Approvals. Whenever consent or approval of a party under this Agreement is

required, unless otherwise provided, the consent and approval, if required to be obtained from

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Service Provider, must be given by the President of the Service Provider, or other authorized

representative, and, if required from County, must be given by the Board of County

Commissioners, County Manager or County Designee.

Article 13

DISPUTE RESOLUTION

13.1 General. Any dispute between the Parties with respect to this Master Agreement shall be

resolved as provided in this Article.

13.2 In the event of a dispute or claim arising out of this Agreement, the parties agree first to try in

good faith to settle the dispute by direct discussion. If this is unsuccessful, the parties may

enter into mediation in Lee County, Florida, with the parties sharing equally in the cost of such

mediation. In the event mediation, if attempted, is unsuccessful in resolving a dispute, the

parties may proceed to litigation as set forth below.

13.2.1 Any dispute, action or proceeding arising out of or related to this Agreement will be exclusively

commenced in the state courts of Lee County, Florida, or where proper subject matter

jurisdiction exists in the United States District Court for the Middle District of Florida. Each

party irrevocably submits and waives any objections to the exclusive personal jurisdiction and

venue of such courts, including any objection based on forum non conveniens.

13.2.2 Unless otherwise agreed in writing, Service Provider shall be required to continue all

obligations under this Agreement during the pendency of claim or dispute including, but not

limited to, actual period of mediation or judicial proceedings.

Article 14

MISCELLANEOUS

14.1 No modification, waiver, amendment, discharge, or change of this Agreement shall be valid

unless the same is in writing, signed by the parties against whom the enforcement of such

modification, waiver, amendment, discharge, or change is sought.

14.2 Except as provided in paragraph 3.2.13.6 of this Agreement, nothing contained in this

Agreement shall create a contractual relationship or cause of action in favor of a third party

against either County or Service Provider.

14.3 This Agreement and the schedules attached hereto constitute the entire Agreement between the

parties relating to the transactions contemplated hereby and all prior or contemporaneous

agreements, understandings, representations, and statements, oral or written, are merged

herein.

14.4 This Agreement shall be executed in any number of counterparts, each of which shall be

deemed an original, but all of which together shall constitute a single instrument.

14.5 All pronouns and any variations thereof shall be deemed to refer to the masculine, feminine,

neuter, singular, or plural as the identity of the person(s) or entity may require.

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14.6 If any provision or any portion of any provision of this Agreement or the application of any

such provision or portion thereof to any person or circumstance shall be held invalid or

unenforceable, the remaining portion of such provision and the remaining provisions of this

Agreement, or the application of such provision held invalid, or unenforceable to persons or

circumstances other than those to which it has been invalid or unenforceable, shall not be

effected thereby.

14.7 In the event of any dispute as to the precise meaning of any term contained herein, the principles

of construction and interpretations that written instruments be construed against the drafter

shall not apply.

14.8 All articles, titles, or captions contained in this Agreement are for convenience only and shall

not be deemed a part of this Agreement and shall not affect the meaning or interpretation of

this Agreement.

14.9 All notices, demands, or other communications made pursuant to this Agreement shall be in

writing and copies thereof shall be simultaneously directed to the parties listed below. Further,

all notices, demands, or other communications shall be deemed to have been duly given by

mailing, unless otherwise specified, by United States registered or Certified Mail, Return

Receipt Requested, with proper postage prepaid, or sent by recognized overnight delivery

service , at the following address:

If to County:

Roger Desjarlais

County Manager

P.O. Box 398

Fort Myers, FL 33902

-0398

With copies to:

Mary Tucker

Director of Procurement Management

P.O. Box 398

Fort Myers, FL 33902

-0398

If to Service Provider:

________________________

With copies to:

________________________

Or to such other address or to such other persons as any party may designate to the other for

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such purpose in the manner herein above set forth.

14.10 The parties hereto shall, at any time and from time to time following the execution hereof,

execute and deliver all such further instruments and take all such further action as may be

reasonably necessary or appropriate in order to carry out more effectively the purposes of this

Agreement.

14.11 Every covenant, term, and provision of this Agreement shall be construed simply according to

its fair meaning and shall not be strictly construed for or against any party.

[Remainder of this page intentionally left blank.]

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IN WITNESS WHEREOF, the parties have executed this Agreement effective the day and year

first written above.

ATTEST: COUNTY: LEE COUNTY, FLORIDA

CLERK OF CIRCUIT COURT BOARD OF COUNTY COMMISSIONERS

Linda Doggett, Clerk

BY: BY:

Chairman

DATE:

APPROVED AS TO FORM FOR THE

RELIANCE OF LEE COUNTY ONLY

BY:

County Attorney’s Office

ATTEST:

(SERVICE PROVIDER)

BY:

(Witness) (Authorized Signature)

______________________________

(Title)

DATE:

CORPORATE SEAL:

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SCHEDULE A: FORM OF SERVICE TOWER AGREEMENT

There shall be a single Service Tower Agreement for each area of discrete services (Service Towers)

as described in Article 2. The following terms will be addressed in the Service Agreement:

1. Definitions. Any significant terms used specifically in the Service Agreement and not

otherwise defined in the Master Agreement will be defined.

2. Acceptance Criteria, Tests. The Acceptance Criteria and Acceptance Tests that will be used

to evaluate the acceptability of any deliverables tendered pursuant to the Service Agreement.

3. Appendices. The Service Agreement may, if the parties deem it appropriate, include one or

more attached appendices or schedules, such as Third Party Software; County Software;

Service Provider Software; Measurement and Monitoring Tools; or Insurance.

4. Charges. The specific Service Provider charges applicable to the Services will be included

with reference to the terms set forth in the Master Agreement. Any other financial obligations

of County must be expressly included in the Service Agreement and Service Provider will

retain responsibility for all other costs.

5. Facilities, Equipment and Software Terms. Specific terms with respect to facilities,

Equipment, software and other assets will be included with reference to the Master Agreement.

6. Incorporation by Reference. Each Service Agreement shall reference the Master Agreement

between County and Service Provider and shall expressly state that (i) the Service Agreement

is entered into by the parties pursuant to the terms of the Master Agreement, and (ii) except to

the extent expressly provided otherwise in the Service Agreement, all the terms and definitions

of the Master Agreement are incorporated by reference into the Service Agreement.

7. Notices; Signatures. The Service Agreement will indicate whether any individuals or entities

are to receive formal notices under the Service Agreement other than as set forth in the Master

Agreement. The Service Agreement will be signed by authorized representatives of Service

Provider and the County.

8. Personnel Matters. The Service Agreements will identify the Service Provider and County

key personnel. Any specific terms applicable to Service Provider or County personnel matters

related to the Services will be included, including matters related to transferred employees

consistent with the Master Agreement.

9. Services. The Services to be provided under the Service Agreement will be described. This

Section of the Service Agreement will state that the “Services,” as defined, include all Services

and tasks related to or inherent in performance of the Services specifically described. County’s

exclusive responsibilities will be clearly described in this Section of the Service Agreement.

10. Term. The term of the Service Agreement will be specified, including any County renewal or

extension rights.

11. Transition Services. Any specific terms related to Service Provider termination assistance

with respect to the Services will be included with reference to the Master Agreement.

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12. Service Levels. Service levels for the Services will be included with reference to the Master

Agreement.

(a) Definitions.

(1) Service Level Measurement: For any Service identified in this Service

Agreement, Service Level Measurements are specified measurements for

quantitatively calculating the Service Provider’s actual performance. Service

Level Measurements are compared with required Service Level Standards to

appraise performance. Service Level Measurement and Service Level

Standards information is attached to this Service Agreement in Schedules D

through J.

(2) Service Level Standards (also known as “Required Service Levels”).

i) Service Level Measurement Method: The Service Level

Measurement Method is the specific, agreed-upon method for

calculating the Service Level Measurement.

ii) Required Service Level: The Required Service Level is the

minimally acceptable ordinary-course value for a Service Level

Measurement. Any failure to meet or exceed a Required Service Level

may constitute, depending upon the facts and circumstances, a

material breach of Service Provider’s obligations under the Service

Agreement.

(3) Service Level Credits: The amounts that County shall recover, in addition to

any other monetary remedies County may have, each time Service Provider

fails to meet the Required Service Levels. The parties acknowledge that

Service Level Credits are intended to roughly reflect the diminished value of

the Services as a result of service level-related failures; they are not intended

to compensate the County for breach and do not constitute liquidated damages,

damages, penalties, or other compensation for any such breach or default.

Service Level Credits are calculated in the manner described in this section.

(b) Time. The Required Service Levels provided shall be applicable beginning as

specifically provided in a Service Agreement. Unless otherwise stated, each Service

Level Measurement shall be calculated on a complete calendar month, quarter, or

annual basis. Performance results shall be measured and reported based on actual

results.

good faith to modify Service Level Measurements, Service Level Measurement

Methods, and Service Level Standards to reflect changes in County’s business. All

such changes shall be adopted in the form of a Change Order executed by both parties.

(d) Remedies. At all times during the Term, Service Provider shall provide the Services

in a manner that meets or exceeds the then-existing Service Level Standards. The

remedies for failure to do so shall include the remedies defined in this Service

Agreement and the Master Agreement.

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(e) Service Level Measurement Method. For each service provided and each reporting

period, the Service Provider shall report on the state of the Required Service Levels

indicating whether the level was or was not satisfied for the reporting period. Required

Service Levels that are not satisfied for the measurement and reporting period will

result in “SLA Violations.” The quantity of Violations is aggregated for each Service

Tower resulting in three “SLA States.” An “SLA State” is defined for each Service

Tower separately for each measurement and reporting period and is used in the

calculation of Service Level Credits. The SLA State is dependent upon the quantity of

SLA Violations during the measurement period as follows: (a) “Achieved” has zero

(0) SLA Violations, (b) “At Risk” has more one (1) or two (2) SLA Violation (c)

“Missed” has three (3) or more SLA Violations.

If any Service Level Measurement for the measurement and reporting period is (a) less

than the Required Service Level by three (3) percent for SLA (measure) other than

“Availability” or (b) is less than the Required Service Level by one (1) percent for

“Availability” SLA (measure) shall constitute a SLA State of Missed for the Service

Tower.

(f) Service Level Credits. (1) In each case of a failure to satisfy a Required Service Level,

Service Provider will, within five (5) calendar days from the identification of the

deviation from the applicable Service Level Standard, provide to County a plan of

activities which will allow Service Provider to satisfy the applicable Service Level

Standard at the earliest date practicable. (2) In addition, County shall be entitled to

recover a Service Level Credit for such deviation calculated in the manner described

below, provided, however, that the Total Service Level Credits for any given month

will not exceed fifty percent (50%) of Service Provider’s monthly charges for the

Master Service Agreement (including all Service Agreements) for the applicable

month (excluding Pass-Through Expenses and Special Charges, if any); (3) If a single

event directly causes the failure to achieve more than one Required Service Level, all

applicable Service Level Credits (for each Service Tower) will apply. In such event,

and at the sole discretion of the County, the County may select a reduced quantity of

Service Level Measurements that will be used for the calculation of the Service Level

Credit. (4) At the County’s sole discretion, Service Level Credits may be provided in

the form of additional hours for non-recurring initiatives. (5) Should the County elect

for a monetary service credit, such credits will be reflected in the invoice following

month in which the SLA violation(s) occurred.

(g) Method of Calculation for Service Level Credits. (1) If Service Provider fails to

meet or exceed the Required Service Level, SLA Violations will occur and the SLA

State will be assessed as described Article 13. For each Service Tower the following

Service Level Credits will be calculated and represented as a percentage of the monthly

charges for that Service Tower (excluding Pass-Through Expenses and Special

Charges, if any):

Service Tower

SLA State

Achieved At Risk Missed

1 IT Governance and Management 0% 2% 3%

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2 Infrastructure Services 0% 3% 6%

3 Cybersecurity Services 0% 3% 5%

4 Telecommunication Services 0% 3% 6%

5 Application Services 0% 2% 4%

6 End User Technology Services 0% 2% 4%

7 DR & Emergency Operations 0% 1% 3%

(2) If three or more Services have a reported SLA State of “At Risk” or “Missed,” the

Service Level Credits are doubled for all Service Towers for the measurement

and reporting period. (3) For Service Towers having an “At Risk” SLA State, Service

Level Credits are applied after two consecutive measurement and reporting periods for

which the Service Tower’s SLA state is reported as “At Risk,” thus providing a

remediation period not to exceed thirty (30) calendar days. The Service Level Credits

will be applied to the second month of service (as opposed to both) during which the

SLA Violations occurred and SLA State reported as “At Risk.”

(h) Termination for Chronic Issues. The County has the right to begin the Dispute

Resolution Process if the Service Provider chronically fails to meet the established

Service Levels. The determination for chronic failure is as follows: (a) has any Service

Tower reported as At Risk for more than three (3) out of six (6) consecutive reporting

measurement periods or (b) has any Service Tower reported as Missed for more than

two (2) out of twelve (12) consecutive reporting measurement periods.

(i) Exceptions to Liability for Service Level Credits. Service Provider shall not be

liable to pay County Service Level Credits for any failure to meet a Service Level

Standard to the extent that such a failure is directly attributable to (i) a Force Majeure

Event; (ii) breaches of this Agreement by County, provided that Service Provider has

provided County with reasonable notice of such breach immediately after becoming

aware of it and Service Provider has used all Commercially Reasonable Efforts to

perform notwithstanding such breach; or (iii) acts or omissions of County or its

suppliers, provided that Service Provider has provided County with reasonable notice

of such act or omission immediately after becoming aware of it and Service Provider

has used all Commercially Reasonable Efforts to perform notwithstanding such acts or

omissions, or (iv) the first manifestation of an extraordinary latent error or defect in

Equipment used by Service Provider in providing the Services (and any related

repeated instances pending the applicable Service Provider’s correction of the defect)

if such defect was (1) unknown to Service Provider and (2) not disclosed in any

information distributed by the third party licensor, manufacturer, or distributor and (3)

not preventable or discoverable through normal testing or maintenance procedures.

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SCHEDULE B: Migration Services

1. Migration Plan. If any migration of Services is to occur under a Service Agreement, Service

Provider shall be responsible for preparing a Migration Plan (as defined below) subject to

approval of the County in order to assure an orderly transition of the Services (and, if necessary,

the Equipment and Software). After any migration completion date (“Migration Completion

Date”), Service Provider shall obtain the written consent of the County prior to any subsequent

migration of the Services. Any such subsequent migration of Services shall be conducted by

Service Provider at its sole expense pursuant to a Migration Plan (as defined below) prepared

by Service Provider and approved by the County.

2. Content of Migration Plan. Within thirty (30) calendar days following a Service Agreement

Effective Date (a Service Agreement “completion date”), Service Provider shall submit for

approval by the County a final plan (the “Migration Plan”) for the migration of the Services.

The Migration Plan shall state in detail:

(a) the requirement that Service Provider create dedicated Migration teams;

(b) a detailed description of all Migration activities to be performed by Service Provider

and County (including any incumbent Service Provider currently providing services to

County), the significant components and subcomponents of each such activity and a

complete timetable for completion of such activities;

(d) the dates by which each such activity or deliverable are to be completed (the

“Migration Milestones”);

(e) a process for County to delay all or any part of the transition if County determines that

any part of the transition poses a risk or hazard to County or its operations (without

any increase in Service Provider’s charges to County);

(f) Service Provider’s plan for assuming operational responsibility for the Services on

each Service Agreement Commencement Date;

(g) a process and set of standards acceptable to County to which Service Provider will

adhere in the performance of the Transition Services, and that will enable County to

determine whether Service Provider has successfully completed the Migration Services

and the activities and deliverables associated with each Migration Milestone, including

measurable success criteria by each Service Agreement that Service Provider must

meet before transitioning the work any further;

(h) an assessment of risks associated with the Migration Services and the contingency or

risk mitigation strategies to be employed by Service Provider and County in the event

of disruption or delay; provided, however, that such assessment and plans will not

affect Service Provider’s obligation to meet the Migration Milestones; and

(i) a detailed work plan identifying the specific transition activities to be performed by

individual Service Provider Personnel on a weekly basis during the Migration Period.

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As part of the Services, Service Provider shall perform all functions and services, including the

functions and services described in the Migration Plan necessary to accomplish the migration

to the Service Provider as identified in the Migration Plan (the “Migration Services”). Service

Provider shall perform the Migration Services without causing a disruption to County’s

business or production environment.

3. County Facilities. As part of the Services and as directed by County, Service Provider shall

administer and manage the closing or opening of any County Facilities, if required, in

connection with a migration. In connection with such closures or openings and as part of the

Services, Service Provider shall, upon County’s request, identify and solicit, upon terms and

prices as favorable to County as Service Provider would obtain for its own account, purchasers

of County’s data processing assets at the applicable County Facilities.

4. Migration Services. Each Migration Plan shall include migration acceptance testing for each

Service that is migrated that will ensure a complete and satisfactory migration of Services. As

part of the Migration Services, and if requested by County, Service Provider shall provide (i)

parallel operation/testing environments and (ii) a training environment for the Service Provider

Environment using test data prepared by Service Provider. Subject to approval by the County

and where testing with data representative of the production environment is necessary, Service

Provider may use a copy of such County production data; provided, however, that such test

data shall not contain actual client names or addresses to the extent that the same is prohibited

by statutory or regulatory requirements.

5. Delay. Service Provider acknowledges that in the event any milestone (“Migration Milestone”)

is not achieved in the manner specified in a Migration Plan, County will suffer damages the

amounts of which are difficult to specify at this time. Accordingly, in addition to any

obligations under this Section, Service Provider shall pay to County, upon County’s election,

the following amounts if Service Provider fails by more than the number of days specified in

this Section to achieve a Migration Milestone: (i) In the event a Migration Milestone is not met

within ten (10) calendar days of the Migration Milestone date set forth in the applicable

Migration Plan, County may elect, and upon such election Service Provider shall pay to County

the amounts specified in the applicable Migration Plan for each Migration Milestone that is not

achieved. (ii) If the damages resulting from the failure to meet a Migration Milestone exceed

the amount specified in the Migration Plan, County may terminate the applicable Service

Agreement, upon notice to Service Provider within thirty (30) calendar days after such failure.

6. Breach. A breach of any Migration Plan shall constitute a breach of the applicable Service

Agreement. Unless otherwise expressly provided in a Service Agreement or Migration Plan,

all of Service Provider’s obligations contained in the Master Agreement and the applicable

Service Agreement shall continue to apply during the applicable migration of Services.

7. Migration Completion. Upon the date of the successful completion of the migration

acceptance testing, the Transition Services shall be complete and Service Provider shall assume

operational responsibility for, and commence providing, the Services as set forth in the

applicable Service Agreement and in accordance with the Commencement Date. For each

Service Agreement, the Service Agreement Commencement Date shall occur in one of the

following ways:

(a) Within one (1) Business Day following the date of successful completion of all

Migration Services in accordance with the applicable standards set forth in this

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Agreement, the approved Migration Plan, and the Service Agreement for the applicable

service:

i. Service Provider shall deliver a written notice to County certifying

such successful completion, which written notice shall: (1) specify

that Service Provider reasonably believes that the Transition has been

successfully completed in accordance with the applicable standards

set forth in this Agreement and the Service Agreement for the

applicable service, and the approved Migration Plan; and (2)

document the basis for Service Provider’s conclusion that successful

completion of the Migration has occurred (the “Service Provider

Migration Notice”).

ii. County shall have ten (10) Business Days following County’s receipt

of the Service Provider Migration Notice to confirm whether

Migration has been successfully completed, which confirmation shall

be based upon Service Provider’s completion of the applicable criteria,

standards and milestones set forth in this Agreement and the Services

Agreement for the applicable services, and the Migration Plan

attached thereto. Upon County’s written acceptance of such

certification that the Migration has been successfully completed, the

date on which the Service Provider Migration Notice was delivered to

County shall be the Service Agreement Commencement Date for the

purposes of respective Service Agreement.

(b) If County determines that all material elements of all Migration Milestones have been

successfully completed, and if Service Provider has not provided a Service Provider

Migration Notice stating that the Migration has been successfully completed as set

forth in subsection (i) above, then County shall have the right to declare the Service

Agreement Commencement Date for the purposes of the applicable Services based

upon Service Provider’s material completion of the applicable criteria, standards and

milestones set forth in this Agreement and the Statement of Work for the applicable

Service Agreement, and the approved Migration Plan and County shall provide written

notice to Service Provider of the same. Upon such determination, Service Provider

shall begin the provision of the Services and complete any remaining identified

Transition elements as quickly as possible as part of the Services.

8. Termination for Cause. Notwithstanding the foregoing, County may terminate this

Agreement, in whole or in part, for cause if (i) Service Provider fails to comply with its

obligations with respect to the provision of Migration Services and such failure causes or will

cause a material disruption to or otherwise has or will have a material adverse impact on the

operations of County, (ii) Service Provider materially breaches its obligations with respect to

the provision of Migration Services and fails to cure such breach within fifteen (15) calendar

days after its receipt of notice thereof or (iii) Service Provider fails to meet a Migration

Milestone and Service Provider fails to cure such breach within fifteen (15) calendar days after

its receipt of notice thereof. In addition, unless otherwise agreed, if Service Provider fails to

meet the Migration Milestone for the completion of the transition of all Services to Service

Provider by more than forty-five (45) calendar days, County may terminate this Agreement, in

whole or in part, for cause. In all such events County may recover the damages suffered by

County in connection with such a termination.

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SCHEDULE C

FORM - CHANGE ORDER DOCUMENT

CHANGE ORDER AUTHORIZATION

Change Order No.:

(A Change Order Authorization Requires Approval by the Department Director for Expenditures

Under $25,000 or Approval by the County Manager for Expenditures Between $25,000 and $50,000

or Approval by the Board of County Commissioners for Expenditures over $50,000)

CONTRACT NAME:

INFORMATION TECHNOLOGY OUTSOURCING SERVICES

FOR PROJECT PROVIDER:

SOLICIT NO.: CN-02-28 CONTRACT NO.:

ACCOUNT NO.

REQUESTED BY: DATE OF REQUEST:

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Upon the completion and execution of this Change Order Authorization by both parties the Service

Provider is authorized to and shall proceed with the following:

MASTER SERVICES AGREEMENT DATED:

SERVICE AGREEMENT: IT GOVERNANCE AND MANAGEMENT DATED:

SERVICE AGREEMENT 2: INFRASTRUCTURE SERVICES DATED:

SERVICE AGREEMENT 3: CYBERSECURITY SERVICES DATED:

SERVICE AGREEMENT 4: TELECOMMUNICATIONS SERVICES DATED:

SERVICE AGREEMENT 5: APPLICATION SERVICES DATED:

SERVICE AGREEMENT 6: END USER TECHNOLOGIES SERVICES DATED:

SERVICE AGREEMENT 7: DISASTER RECOVERY & EMERGENCY OPERATIONS

DATED:

It is understood and agreed that the acceptance of this modification by the SERVICE PROVIDER

constitutes an accord and satisfaction.

=========================================================================

RECOMMENDED:

ACCEPTED

COUNTY APPROVAL:

By: By: By:

Department Director Date Service Provider Department Director (Under

$25,000)

By: Date Accepted: Date Approved:

Contracts Management Date

By:

County Manager

(Between $25,000 and $50,000)

Date Approved:

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APPROVED AS TO FORM FOR

THE RELIANCE OF LEE COUNTY

ONLY

*County Attorney’s Office

__________________________

By:

* County Attorney signature needed

for over Board level expenditures

only

Chairman

Board of County Commissioners

(Over $50,000)

Date Approved:

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SERVICE ENHANCEMENT

SUPPLEMENTAL/CHANGE ORDER SERVICES

1.1.1 NAME OF END USER DEPARTMENT:

DATE OF REQUEST:

CHANGE TO: MASTER AGREEMENT

SERVICE AGREEMENT NO.

All terms defined in the agreement shall have the same meaning ascribed to them therein when used in

this Service Enhancement. The County hereby requests that Service Provider perform the

Supplement/Change Order Services described below. The parties acknowledge that any

Supplemental/Change Order Services to be performed pursuant to this Service Enhancement shall be

performed under the terms and conditions of the Agreement. In addition, unless otherwise set forth

below, any payments to be made by County to Service Provider under this Service Enhancement shall

be made pursuant to the terms and conditions of the Agreement. The amounts to be paid by County to

Service Provider under this Service Enhancement shall be in addition to any other amounts which

County is obligated to pay to Service Provider under the Agreement.

Description of Supplemental/Change Order:

Projected Start Date for Services:

Projected End Date for Services:

Total amount to be paid:

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SCHEDULE D

SERVICE AGREEMENT FOR TOWER 1 - IT GOVERNANCE AND MANAGEMENT

This Service Tower Agreement No. 1: Governance (“Service Agreement”) is entered into

pursuant to, and is expressly incorporated by reference into, that Master Services Agreement for

Information Technology Outsourced Services (“Master Agreement”) executed between Lee County,

Florida (“County”) and __________________________ (“Service Provider”), is hereby entered into

on the _____________, 2018 (the “Service Agreement Effective Date”).

Accordingly, the parties agree as follows:

1. Incorporation by Reference. The parties agree that this Service Agreement is entered into by

the parties pursuant to the terms of the Master Agreement, and except to the extent expressly

provided otherwise in this Service Agreement, all the terms, conditions, and definitions set

forth in the Master Agreement are hereby incorporated by reference with the same force and

effect as though fully set forth herein. To the extent the terms set forth in this Service

Agreement are inconsistent with the terms of the Master Agreement; the terms set forth herein

shall apply.

2. Term. The initial term of this Service Agreement shall begin on the Commencement Date of

the Master Agreement. The Term shall continue for a period of five (5) years after the

Commencement Date of the Master Agreement, unless earlier terminated or renewed in

accordance with the provisions of the Master Agreement.

Option to Renew. The County shall have the option to renew this Service Agreement for up

to three (3) additional one-year terms. 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 Service Agreement shall continue to apply without change,

unless mutually agreed to by both parties during any renewal Term and reduced to writing.

“Term” shall refer to both the initial term of the Service Agreement and any renewal of the

Service Agreement. “Service Agreement Term” shall refer to both the original term of the

applicable Service Agreement and any renewal of the Service Agreement.

3. Exhibits. All exhibits attached hereto are incorporated by reference.

4. Key Positions: Key County and Key Service Provider Positions are specified in Exhibit A

attached hereto.

5. Services. The Services to be provided by the Service Provider under this Service Agreement

are described in Exhibit B attached hereto.

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6. Inherent Services. Subject to the Master Agreement Article 3 entitled “Working

Relationship,” any services that are implicit within the Services, and are not specifically

described, and which are determined to be reasonably required for the proper performance and

provisioning of the Services, shall be deemed to be implied by and included within the scope

of the Services to the same extent and in the same manner as if specifically described in this

Service Agreement. If such inherent services result in a substantial increase in Service Provider

resources, either of personnel or other resources, such increase will be addressed pursuant to

the Change Order procedures of the Master Agreement.

7. Responsibilities of Lee County. The responsibility matrix included in Exhibit B to this Service

Agreement identifies the responsibilities of Lee County during the Term of this Service

Agreement. Exhibit B may be amended and supplemented from time to time pursuant to the

terms of the Master Agreement. The responsibilities of Lee County shall be limited to those

items listed in the matrix.

8. Notices. All notices, demands, or other communications made pursuant to this Service

Agreement shall be in writing and copies thereof shall be simultaneously directed to the parties

listed below. Further, all notices, demands, or other communications shall be deemed to have

been duly given by mailing, unless otherwise specified, by United States registered or Certified

Mail, Return Receipt Requested, with proper postage prepaid, or sent by recognized overnight

delivery service , at the following address:

If to County:

Roger Desjarlais

County Manager

P.O. Box 398

Fort Myers, FL 33902

-0398

With copies to:

Mary Tucker

Director of Procurement Management

P.O. Box 398

Fort Myers,

FL 33902-0398

If to Service Provider:

________________________

With copies to:

________________________

9. Service Levels. Service levels for the Services will be included with reference to the Master

Agreement.

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Information Technology Outsourced Services

(a) Definitions.

(1) Service Level Measurement: For any Service identified in this Service

Agreement, Service Level Measurements are specified measurements for

quantitatively calculating the Service Provider’s actual performance. Service

Level Measurements are compared with required Service Level Standards to

appraise performance. Service Level Measurement and Service Level

Standards information is attached to this Service Agreement in Exhibit C.

(2) Service Level Standards (also known as “Required Service Levels”).

i) Service Level Measurement Method: The Service Level

Measurement Method is the specific, agreed-upon method for

calculating the Service Level Measurement.

ii) Required Service Level: The Required Service Level is the

minimally acceptable ordinary-course value for a Service Level

Measurement. Any failure to meet or exceed a Required Service Level

may constitute, depending upon the facts and circumstances, a

material breach of Service Provider’s obligations under the Service

Agreement.

(3) Service Level Credits: The amounts which County shall recover, in addition

to any other monetary remedies County may have, each time Service Provider

fails to meet the Required Service Levels. The Parties acknowledge that

Service Level Credits are intended to roughly reflect the diminished value of

the Services as a result of service level - related failures; they are not intended

to compensate the County for breach and do not constitute liquidated damages,

damages, penalties, or other compensation for any such breach or default.

Service Level Credits are calculated in the manner described in this section.

(b) Time. The Required Service Levels provided shall be applicable beginning as

specifically provided in a Service Agreement. Unless otherwise stated, each Service

Level Measurement shall be calculated on a complete calendar month, quarter, or

annual basis. Performance results shall be measured and reported based on actual

results.

good faith to modify Service Level Measurements, Service Level Measurement

Methods, and Service Level Standards to reflect changes in County’s business. All

such changes shall be adopted in the form of a signed written amendment executed by

both parties.

(d) Remedies. At all times during the Term, Service Provider shall provide the Services

in a manner that meets or exceeds the then-existing Service Level Standards. The

remedies for failure to do so shall include the remedies defined in this Service

Agreement and the Master Agreement.

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