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HomeMy WebLinkAboutAgreement A-19-741 with Vesta Solutions Inc..pdf1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AGREEMENT THIS AGREEMENT (“Agreement”) is made and entered into this ______ day of December, 2019, by and between the COUNTY OF FRESNO, a political subdivision of the State of California ("COUNTY"), and Vesta Solutions, Inc., a California corporation, whose address is P.O. Box 9007, Temecula, CA 92590, ("CONTRACTOR"). RECITALS WHEREAS, COUNTY previously purchased from CONTRACTOR a Communicator NXT, GeoCAST, HC Mass Call, HC Mass DataSync system, ("VESTA COMMUNICATOR/ALERT"), which allows staff to alert and notify multiple individuals and/or agencies for various events, including map -based notification affected populations, and multi- modal notification of specific individuals, groups, and teams during an emergency event; and WHEREAS, CONTRACTOR desires to, and is able to, provide Hosted Services for the VESTA COMMUNICATOR/ALERT; and WHEREAS, COUNTY and CONT RACTOR desire to execute this Agreement for Hosted Services provided for VESTA COMMUNICATOR/ALERT, currently used by the Fresno County Public Health Department. NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions herein contained, the parties hereto agree as follows: WITNESSETH I. DEFINITIONS: The following terms used throughout this Agreement shall be defined as follows: Change Control Process: Process used by the Information Services Division of COUNTY’s Internal Services Department (ISD) to inform staff of new or updated production use systems. 10th Agreement No. 19-741 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Content: Means the audio and visual information, Documentation, Software, products and services contained or made available to COUNTY in the course of using the Service. COUNTY Data: Any data, information or material that COUNTY submits to the Service in the course of using the Service. First Production Use: Date of first use of the System in a production environment, or otherwise known as the date this Agreement is effective. Hosted Project Plan: The Hosted Project Plan, attached hereto and incorporated herein as Exhibit C, describes the schedule to transition COUNTY from an on-premise VESTA COMMUNICATOR/ALERT system to the hosted Service. License: The meaning assigned to the term 'License," as defined in Section II-A of this Agreement, and the rights and obligations it creates under the laws of the United States of America and the State of California, including without limitation, copyright and intellectual property law. Proposal: The Proposal, attached hereto and incorporated herein as Exhibit B, describes the Service that CONTRACTOR will provide to COUNTY under this Agreement. Service: The emergency notification system accessible via the Internet, and all associated applications and modules identified in the Proposal and purchased by COUNTY, and all ancillary online or offline products and services provided to COUNTY by Vesta Solutions hereafter. 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Supplier: The terms "Supplier", "Vendor", and "Vesta Solutions" all refer to CONTRACTOR, and are considered to be equivalent throughout this Agreement. System: The System Software and System Documentation collectively. Reference to the "System" shall include any component thereof. All modifications and enhancements to the System shall be deemed to be part of the System as defined herein, and shall be subject to all terms and conditions set forth herein. The System consists of VESTA COMMUNICATOR/ALERT, which supports the Fresno County Public Health Department, all interfaces, and third-party software required for the System to function. System Documentation: The online documentation relating to the System Software, and all manuals, reports, brochures, sample runs, specifications and other materials comprising such documentation provided by CONTRACTOR or its authorized reseller in connection with the System Software to assist COUNTY in the use of the Service pursuant to this Agreement. System Software: That certain application software programs and any updates, modifications and corrections thereto described in this Agreement, to which CONTRACTOR has granted access to COUNTY as part of the Service hereunder, and all interfaces, coding, tapes, disks, modules and similar materials comprising such software or on which it is stored. System Software shall not include operating system software, or any other third-party Software. User: The terms "User", "Customer" and "Licensee" all refer to COUNTY, and its employees, representatives, consultants, contractors, or agents who are 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 authorized to use the Service and have been supplied with the identifications and passwords by the COUNTY. Vesta Solutions Technology: The Vesta Solutions-provided technology (including but not limited to Documentation, Software, hardware, equipment, products, processes, algorithms, user interfaces, know-how, techniques, designs, and other tangible or intangible technical material or information), made available to COUNTY by Vesta Solutions in providing the Service. II. OBLIGATIONS AND RIGHTS OF THE CONTRACTOR A. SOFTWARE LICENSE 1. CUSTOMER PURCHASE In consideration of the fees described herein, CONTRACTOR or its authorized reseller shall provide COUNTY with access to the Service as described herein, and as governed by the terms and conditions of this Agreement, Vesta Solutions’ Technical Service Center Support Plan Technical Service Support Plan, accepted Proposal, and the Hosted Project Plan. 2. GRANT OF LICENSE CONTRACTOR grants to COUNTY, and COUNTY accepts, a non-exclusive, non-transferable, annual grant of license to use the Service that is subject to the terms and conditions set forth in this Agreement. 3. SCOPE OF LICENSE The license granted herein shall consist solely of the non-exclusive, non- transferable right of COUNTY to operate the System Software in support of COUNTY's Department of Public Health. All rights not expressly granted to COUNTY are reserved by CONTRACTOR and its licensors. 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4. OWNERSHIP The parties acknowledge and agree that, as between CONTRACTOR and COUNTY, title and full ownership of all rights in and to the System Software, System Documentation, and all other materials provided to COUNTY by CONTRACTOR under the terms of this Agreement shall remain with CONTRACTOR. COUNTY will take reasonable steps to protect trade secrets of the System Software and System Documentation. Ownership of all copies is retained by CONTRACTOR. COUNTY may not disclose or make available to third parties the System Software or System Documentation or any portion thereof. CONTRACTOR shall own all right, title, and interest in, and to all corrections, modifications, enhancements, programs, and work product conceived, created or developed, alone or with COUNTY or others, as a result of or related to the performance of this Agreement, including all proprietary rights therein and based thereon. Except and to the extent expressly provided herein, CONTRACTOR does not grant to COUNTY any right or license, express or implied, in or to the System Software and System Documentation or any of the foregoing. The parties acknowledge and agree that, as between CONTRACTOR and COUNTY, full ownership of all rights in and to all COUNTY data, information, or material that COUNTY submits to the Service in the course of using the Service, whether in magnetic or paper form, including without limitation printed output from the System, are the exclusive property of COUNTY. CONTRACTOR retains ownership of the System Software and Service, any portions or copies thereof, and all rights therein. CONTRACTOR reserves all rights not expressly granted to COUNTY. This Agreement does not grant COUNTY any rights in connection with any trademarks or service marks of Vesta Solutions, its suppliers or licensors. All right, title, interest and copyrights in and to the System Software, Service and System Documentation and any copies thereof are owned by CONTRACTOR, its suppliers or licensors. All title and intellectual property rights in 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and to the Content which may be accessed through use of the Service is the property of the respective Content owner and may be protected by applicable copyright or other intellectual property laws and treaties. This Agreement grants COUNTY no rights to use such Content. 5. POSSESSION, USE AND UPDATE OF SOFTWARE COUNTY agrees that only COUNTY will use the System Software for its own internal purposes. CONTRACTOR may, at reasonable times, inspect COUNTY's premises and equipment to verify that all of the terms and conditions of this license are being observed. CONTRACTOR may create, from time to time, updated versions of the System Software and System Documentation and CONTRACTOR shall make such System Updates available to COUNTY. All System Updates shall be licensed under the terms of this Agreement. COUNTY agrees to follow the prescribed instructions for updating System Software and System Documentation provided to COUNTY by CONTRACTOR. COUNTY must authorize all System Updates in writing. 6. TRANSFER OF SOFTWARE COUNTY shall not rent, lease, license, sublicense, distribute, sell, resell, transfer, or assign this license, the System Software, or the System Documentation, or the Content, or any of the information contained therein other than COUNTY data, to any other person or entity, whether on a permanent or temporary basis, and any attempt to do so will constitute a breach of this Agreement. No right or license is granted under this Agreement for the use or other utilization of the licensed programs, directly or indirectly, for the benefit of any other person or entity, except as provided in this Agreement. 7. POSSESSION AND USE OF SOURCE CODE Source code and other material that results from custom programming by CONTRACTOR released to COUNTY under this license shall be deemed 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CONTRACTOR software, subject to all of the terms and conditions of the software license set forth in this Agreement. The scope of COUNTY's permitted use of the custom source code under this license shall be limited to maintenance and support of the System Software. For purposes of this Section, the term "maintenance and support" means correction of System Software errors and preparation of System Software modifications and enhancements. 8. RESTRICTIONS ON USE: COUNTY shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service, System Software, the System Documentation, or the Content in any way; (ii) modify or make derivative works based upon the System Software or the System Documentation; (iii) create Internet "links" to the System Software or "frame" or "mirror" any System Documentation on any other server or wireless or Internet- based device; (iv) send spam or otherwise duplicative or unsolicited messages in violation of applicable law; (v) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iv) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (vii) interfere with or disrupt the integrity or performance of the System Software or the data contained therein, including but not limited to COUNTY Data; (viii) attempt to gain unauthorized access to the Service, System Software or its related systems or networks; (ix) reverse engineer or access the System Software in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the System Software, or (c) copy any ideas, features, functions or graphics of the System Software. 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9. INTELLECTUAL PROPERTY, TRADEMARK AND COPYRIGHT CONTRACTOR retains ownership of the System Software, any portions or copies thereof, and all rights therein. CONTRACTOR reserves all rights not expressly granted to COUNTY. This License does not grant COUNTY any rights in connection with any trademarks or service marks of CONTRACTOR, its suppliers or licensors. All rights, title, interest and copyrights in and to the System Software and the accompanying System Software Documentation and any copies of the System Software are owned by CONTRACTOR, its suppliers or licensors. All title and intellectual property rights in and to the content which may be accessed through use of the System Software are the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. This License grants COUNTY no rights to use such content. B. SERVICES TO BE PROVIDED BY CONTRACTOR TO COUNTY CONTRACTOR shall provide to COUNTY VESTA COMMUNICATOR/ALERT System Documentation, which shall consist of electronic media files. Additional documentation may be provided. The electronic media files must be printable using PC software normally available at COUNTY. CONTRACTOR shall provide new System Documentation corresponding to all new Software Upgrades. COUNTY may print additional copies of all documentation. All System Documentation shall be used by COUNTY only for the purposes identified within this Agreement. 1. SYSTEM ACCESS CONTRACTOR shall provide COUNTY access to the Service in accordance with this Agreement. Such access shall include hardware/network review and recommendations, consultation, software installation and remote technical support to the extent applicable and agreed to. 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. TRAINING Training, if purchased by COUNTY, will be reflected on the corresponding invoice. Subject to the terms and conditions of this Agreement, and provided that COUNTY pays all applicable fees related to the Service, CONTRACTOR shall provide COUNTY with support described in this Agreement, and as more particularly described in Vesta Solutions’ Technical Service Center Support Plan (“Support Plan”), a copy of which is attached hereto as Exhibit A and incorporated herein by reference. CONTRACTOR reserves the right to modify the terms and conditions of the Technical Service Center Support Plan at any time, effective upon posting of an updated version. COUNTY is responsible for regularly reviewing the TSC Support Plan. Continued use of the Service after any such changes shall constitute COUNTY’s consent to such changes. 3. DOCUMENTATION CONTRACTOR shall provide to COUNTY product System Documentation, which shall consist of electronic media files. The electronic media files must be printable using PC software normally available at COUNTY. CONTRACTOR shall provide new System Documentation corresponding to all new Software Upgrades. COUNTY may print additional copies of all documentation. All System Documentation shall be used by COUNTY only for the purposes identified within this Agreement. C. SYSTEM MAINTENANCE AND SUPPORT BY CONTRACTOR System maintenance and support includes System Updates as they are released by CONTRACTOR, including Updates as required as a result of regulatory changes. CONTRACTOR will support day-to-day operation of the System including the following services: 1. SUPPORT HOURS/SCOPE: Provide unlimited technical assistance by phone during normal coverage hours (8:00 a.m. to 5:00 p.m. Pacific Standard Time (PST), Monday through Friday, except 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CONTRACTOR and COUNTY holidays), toll-free telephone assistance to keep the System in, or restored to, normal operating condition. The object of this support will be to answer specific questions related to the System Software and the application thereof. Support provided under this Agreement does not include training of new personnel (after initial staff is trained), operation of hardware, or solving other hardware/software problems unrelated to the System Software. 2. SUPPORT RESPONSE: During the term of this Agreement, CONTRACTOR will (a) correct any error or malfunctions in the System as supplied by CONTRACTOR which prevents it from operating in conformance with the specifications set forth in this Agreement or (b) provide a commercially reasonable alternative that will conform to the specifications set forth in this Agreement. If analysis by CONTRACTOR indicates a reported problem is caused by a reproducible error or malfunction in the then-current release of the System Software as supplied and maintained by CONTRACTOR that significantly impacts effective use of the System by COUNTY, CONTRACTOR will, if the System is inoperable, as reported by COUNTY, provide continuous effort to correct the error or to resolve the problem by providing a circumvention. In such cases, CONTRACTOR will provide COUNTY with corrective information, such as corrective documentation and/or program code. CONTRACTOR will endeavor to respond to COUNTY's service request no later than four (4) hours from the time a call has been received by CONTRACTOR. In the event a person with the necessary expertise is not available when the call is received, CONTRACTOR will endeavor to respond to the service request no later than within one (1) business day. 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3. REMOTE VIRTUAL PRIVATE NETWORK (VPN) DIAGNOSTICS If applicable, remote VPN Diagnostics Support includes: a) Diagnostic or corrective actions necessary to restore proper VESTA COMMUNICATOR/ALERT operation. b) Diagnostic actions which attempt to identify the cause of system problems. c) Correction of data file problems. d) VESTA COMMUNICATOR/ALERT modifications. CONTRACTOR product specialists will provide diagnostics via VPN on VESTA COMMUNICATOR/ALERT. COUNTY will provide any required hardware and equipment necessary at COUNTY for CONTRACTOR VPN support. 4. ERROR CORRECTION PROCESS If, during the term of this Agreement, COUNTY determines that software error(s) exist, COUNTY will first follow the error procedures specified in the System Documentation. If following the error procedures does not correct the software error, COUNTY shall immediately notify CONTRACTOR, setting forth the defects noted with specificity. Upon notification of a reported software error, CONTRACTOR shall have five (5) days to determine if any actual software error exist and, if so, endeavor to correct such software errors. At CONTRACTOR’s request, additional time to solve difficult problems will not be unreasonably withheld. Within fifteen (15) days of correction, COUNTY shall retest the System Software and report any other software errors. 5. TECHNICAL INFORMATION CONTRACTOR will provide technical information to COUNTY from time to time. Such information may cover areas such as Product usage, third party software, and other matters considered relevant to COUNTY by CONTRACTOR. Technical information will be provided at the discretion of CONTRACTOR, but will not be unreasonably withheld. 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D. ADDITIONAL SYSTEM MAINTENANCE SERVICES BY CONTRACTOR CONTRACTOR may provide additional maintenance services ("Additional License/Service Fees" or "Additional Services Fees") at an additional charge. Charges will be as identified in Section VlIl of this Agreement; or, if not included in this Agreement, charges will be at current prices in effect at the time goods or services are provided. Any Additional Maintenance and Support Services requested by COUNTY and determined by CONTRACTOR to be billable by CONTRACTOR must be identified as a chargeable service prior to the service being performed, and must be approved in writing in advance by the COUNTY Contract Administrator. Additional Maintenance Services include, but are not limited to, the following: 1. ADDITIONAL TRAINING A specific amount of training is specified in this Agreement. Additional training at a COUNTY facility is available upon request by COUNTY at an additional charge under the terms of this Agreement. Requests for additional training will be reviewed by CONTRACTOR and must be requested in writing in advance by COUNTY’s Contract Administrator. Charges will be at rates identified in this Agreement. 2. DATA AND SYSTEM CORRECTIONS Data and System Corrections include any corrective actions accomplished by CONTRACTOR on-site or via VPN which are necessary due to COUNTY errors or unauthorized source code or data access by COUNTY. Unauthorized access to the data is defined as any COUNTY editing of data through other than normal system usage as defined in System Documentation. Unauthorized access to source code is defined as any COUNTY access whatsoever to system source code. Services provided by CONTRACTOR are not billable when they result from errors caused by VESTA COMMUNICATOR/ALERT or instruction provided by CONTRACTOR. 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3. CUSTOMER SITE VISITS Site visits to COUNTY sites, as may be requested in writing by COUNTY and that are within the scope of the project services, are available for reasons such as, but not limited to, (a) additional System training on hardware or software usage; (b) resolution of System difficulties not resulting from actions by, or otherwise the responsibility of CONTRACTOR (as determined by mutual agreement between CONTRACTOR and COUNTY); (c) installation of Software Releases; and (d) assistance in equipment maintenance, movement or diagnosis. Site visits outside of the scope of project services will be reviewed by CONTRACTOR, and must be requested in writing in advance by the COUNTY Contract Administrator. Charges will be at rates identified in this Agreement. 4. CUSTOM PROGRAMMING Requests for supplemental programming or customization of system features not covered under this Agreement are available to COUNTY for the most current and future versions of VESTA COMMUNICATOR/ALERT. Such requests will be reviewed by CONTRACTOR and must be requested in writing in advance by the COUNTY Contract Administrator. Charges will be at rates identified in this Agreement. E. CONTRACTOR PROJECT COORDINATOR Upon execution of this Agreement, CONTRACTOR shall appoint a Project Coordinator, who will act as the primary contact person to interface with COUNTY for implementation, maintenance and support of VESTA COMMUNICATOR/ALERT. F. SYSTEM UPDATES AND NEW PRODUCTS 1. SYSTEM UPDATES From time to time, CONTRACTOR will develop and provide System Updates to COUNTY for the COUNTY'S licensed CONTRACTOR software. System Updates shall be subject to the terms and conditions of this Agreement and shall be deemed 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 licensed System Software hereunder and will be made available to COUNTY at no additional charge to COUNTY. System Updates will be made available to COUNTY at the discretion of CONTRACTOR, but will not be unreasonably wit hheld. 2. NEW PRODUCTS CONTRACTOR may, from time to time, release new software with capabilities substantially different from or greater than the System Software ("New Products") and which therefore do not constitute System Updates. These New Products will be made available to COUNTY at a cost not to exceed CONTRACTOR’s then-standard rates for customers similarly situated. G. OPERATING SYSTEM UPDATES The application must run on an operating system (O/S) that is consistently and currently supported by the operating system vendor. Applications hosted by CONTRACTOR require updates within one (1) year of current for the O/S, including security patches (including but not limited to Java, Chrome, etc.). H. ANTI-VIRUS MANAGEMENT COUNTY will actively run anti-virus management, where appropriate, on all COUNTY application servers and PCs. The application is expected to perform adequately while anti-virus management is active. I. ADHERE TO CHANGE CONTROL PROCESS The COUNTY acknowledges that the CONTRACTOR shall be providing the hosted environment and processes for the System application. When applicable, the CONTRACTOR must adhere to the COUNTY’s change control process (“Change Control Process”), which shall be provided to the CONTRACTOR in writing, and which, for purposes of clarity, may include email notification. COUNTY employs a procedure to implement updates, upgrades, and version releases to a system that is in production use. This forum allows COUNTY's ITSD to inform staff (Help Desk, Network, Server, Database, Security, and Analysts) of upcoming changes to a production system. 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CONTRACTOR must inform COUNTY with a minimum of (1) calendar week notice of any planned, non-emergency changes so that the Change Control process may be followed. Notwithstanding the forgoing, scheduled weekly System maintenance shall not be subject to the COUNTY’s Change Control Process. J. OTHER Unless otherwise specified, for third-party software, CONTRACTOR shall provide standard documentation in electronic form (via the Internet or File Transfer Protocol (FTP)). None of the provisions of this Agreement is intended by the parties, nor shall they be deemed, to confer any benefit on any person not a Party to this Agreement. The System runs in a Local Area Network and Web environment. As such, the performance of the System is directly related to, among other things: available network bandwidth, and the performance of other applications. For this reason, CONTRACTOR makes no guarantees as to System response time. III. OBLIGATIONS AND RIGHTS OF THE COUNTY A. COUNTY CONTRACT ADMINISTRATOR COUNTY appoints the Chief Information Officer (CIO) or his designee as COUNTY's Contract Administrator, with full authority to deal with CONTRACTOR in all matters concerning this Agreement. B. ACCESS COUNTY and Vesta Solutions shall agree upon, prior to COUNTY’s use of the Service, the offices and Users authorized to access the Service, and such Users shall be identified in writing in advance by COUNTY. COUNTY may modify the Users of the Service by providing advance written notice to Vesta Solutions. COUNTY may authorize access for the number of simultaneous, concurrent Users of the Service at any given time. Passwords provided for Service access may be used only by 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 authorized personnel. Neither COUNTY nor its authorized personnel shall divulge, sublicense, assign, or transfer to any third-party passwords established for access to the Service. COUNTY shall be responsible for the confidentiality and security of its User identifications and passwords. C. COUNTY DATA Vesta Solutions does not own any data, information, or material that COUNTY submits to the Service in the course of using the Service (“COUNTY Data”). COUNTY shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and intellectual property ownership or right to use of all COUNTY Data. Vesta Solutions shall not be responsible or liable for the deletion, correction, destruction, damage loss or failure to store any COUNTY Data. COUNTY shall maintain a copy of all COUNTY Data. COUNTY is solely responsible for adherence to any privacy act or regulation regarding such COUNTY Data, and Vesta Solutions will have no responsibility with respect to the same. In regards to any self-registration portal tool purchased or licensed by COUNTY through or with Vesta Solutions, COUNTY shall assume all duties, obligations and compliance with any applicable law regarding its use, including but not limited to the gathering, storage and dissemination of such COUNTY Data. COUNTY shall also be solely responsible for communicating any applicable notices or terms of use to its registrants. These duties and obligations are non- delegable by COUNTY to Vesta Solutions. D. FEES OF SERVICE For the term of this Agreement, COUNTY will pay Vesta Solutions or its authorized reseller the amount set forth in the Proposal, and as described in Section VIII, herein. Payment shall be made within forty-five (45) days from the date of the invoice. License rights granted hereunder, and Services shall renew as described in Section V, unless terminated by COUNTY’s written notice to CONTRACTOR not less than ninety (90) 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 days prior to the expiration of the then-in-effect term. Payment on the renewal invoice shall be due on or before the expiration of the current term. E. TAXES COUNTY will pay all taxes based on this Agreement or any product or services related thereto, excluding taxes based on Vesta Solutions’ income, but including personal property taxes, if any. All shipping and insurance charges for products shipped between Vesta Solutions and COUNTY will be paid by COUNTY. F. LATE CHARGE In addition to any other remedy available to CONTRACTOR, COUNTY shall pay a charge of 1.5% per month for any late payments by COUNTY, or the maximum percentage permitted by applicable law, whichever is less, on any amount not paid when due. G. SAFEGUARDING SYSTEM SOFTWARE COUNTY will follow its present practices to safeguard System Software made accessible to COUNTY by CONTRACTOR. A copy of COUNTY'S "Information Technology (IT) Standards and Preferences" will be made available to CONTRACTOR upon request. COUNTY is responsible for all activity occurring in its User accounts, and shall abide by all applicable local, state, national and foreign law, treaties and regulations in connection with COUNTY’s use of the Service, including but not limited to data privacy, security, international communications and the transmission of technical or personal data. COUNTY shall: (i) Prevent unauthorized access to the Service and notify Vesta Solutions immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Vesta Solutions immediately, and use reasonable efforts to stop immediately, any copying or distribution of Content that is known or suspected by COUNTY; and (iii) ensure that use of the Service by all of COUNTY’s Users is in compliance with this Agreement. 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1. Privacy and Security; Disclosure Vesta Solutions’ Data Security and Encryption Policy and Hosting Center Policy are available upon COUNTY request. Vesta Solutions reserves the right to modify these policies in its reasonable discretion from time to time. Because the Service is a hosted, online application, Vesta Solutions may need to notify all Users of the Service of important announcements regarding the operation of the Service, and will use COUNTY information for that purpose. H. BACKUP AND RECOVERY MANAGEMENT 1. CONTRACTOR shall utilize a backup and recovery system comparable to COUNTY Internal Services Department – Information Technology (ISD-IT) standards. 2. Upon request, CONTRACTOR will provide a descriptive overview of the backup and recovery system to assure database integrity. 3. CONTRACTOR, at all times, during and after the performance of the installation of the System Software, is responsible for maintaining adequate data backups to protect against loss of data. I. ACCEPTANCE TESTING COUNTY shall approve Final System Acceptance when all VESTA COMMUNICATOR/ALERT features and functions have been delivered to, and successfully tested by, the COUNTY, in accordance with a mutually agreed-upon hosted project plan executed by both parties. J. ACCEPTANCE TESTING PROCESS Following delivery and installation, CONTRACTOR shall test VESTA COMMUNICATOR/ALERT along with COUNTY personnel. K. FACILITIES AND PREPARATION COUNTY will, at its own expense, provide all necessary labor and materials for site preparation, electrical services, and cabling required for System Installation. COUNTY 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 shall receive the System Software and will follow instructions provided by CONTRACTOR to load it on COUNTY's System Hardware to prepare the System for processing. L. SYSTEM HARDWARE AND SYSTEM SOFTWARE COUNTY will, at its own expense, provide and properly maintain and update on an on-going basis all necessary COUNTY System Software and COUNTY System Hardware required to operate VESTA COMMUNICATOR/ALERT. Said COUNTY System Software and COUNTY System Hardware shall meet or exceed CONTRACTOR's recommendations. As part of COUNTY's responsibility for computer infrastructure, COUNTY is responsible for ensuring that data is secure and protected at all times. CONTRACTOR is not responsible for, and cannot be held liable for, inadvertent data disclosure or theft from COUNTY facilities. M. COUNTY PROJECT MANAGER Upon execution of this Agreement, COUNTY's Contract Administrator shall designate one individual from ISD-IT who will function as Project Manager with responsibility for day-to-day management of the project for implementation of VESTA COMMUNICATOR/ALERT. The Project Manager and COUNTY personnel shall have the necessary and appropriate training and experience to implement the terms of this Agreement. COUNTY acknowledges CONTRACTOR'S reliance on same. N. OTHER COUNTY OBLIGATIONS 1. Technical assistance from COUNTY's Information Technology staff will be provided during the performance of the installation of the System Software. In particular, COUNTY will provide: a) Network connectivity and troubleshooting assistance. b) Ability to monitor network traffic and isolate bottlenecks. 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 c) Technical assistance concerning the integration with existing COUNTY systems (if applicable). d) Expertise to handle issues with PCs, printers, and cabling before, during, and after rollout. 2. Unless otherwise specified, for third-party software, CONTRACTOR shall provide standard documentation in electronic form (via the Internet or File Transfer Protocol (FTP)). 3. The System being provided runs in a Local Area Network and Web environment. As such, the performance of the System is directly related to, among other things: available network bandwidth, and the performance of other applications. For this reason, CONTRACTOR makes no guarantees as to System response time. IV. WARRANTY A. Each Party represents and warrants that it has the legal power and authority to enter into this Agreement. CONTRACTOR represents and warrants that it will provide the System in a manner consistent with general industry standards reasonably applicable to the provision thereof, and that the System will perform substantially in accordance with the online Contractor Documentation under normal use and circumstances. The COUNTY represents and warrants that it has not falsely identified itself, or provided any false information to gain access to the Service. 1. During the term, Vesta Solutions will provide such assistance as is reasonably necessary to cause the Vesta Solutions Service to perform materially in accordance with the then current System Documentation, provided that COUNTY’s use is in accordance with this Agreement and the System Documentation. 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. COUNTY’S REMEDY: COUNTY’S EXCLUSIVE REMEDY, AND VESTA SOLUTIONS’ ENTIRE LIABILITY IN CONTRACT, TORT OR OTHERWISE FOR BREACH OF ANY OF THE ABOVE WARRANTIES WILL BE TO USE ITS COMMERCIALLY REASONABLE EFFORTS TO PROVIDE A CORRECTION OR WORK AROUND FOR ANY MATERIAL NONCONFORMITY WHICH IS (I) REPORTED TO VESTA SOLUTIONS BY COUNTY WHILE VESTA SOLUTIONS IS OBLIGATED TO PERFORM SUPPORT SERVICES AND (II) REPRODUCIBLE BY VESTA SOLUTIONS IN THE EXECUTION ENVIRONMENT. B. Disclaimer of Warranties. THE EXPRESS WARRANTIES CONTAINED IN THIS AGREEMENT ARE EXCLUSIVE AND IN LIEU OF ALL OTHER REPRESENTATIONS AND WARRANTIES. VESTA SOLUTIONS DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. VESTA SOLUTIONS DOES NOT WARRANT THAT THE SOFTWARE OR SERVICE IS ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION. C. IF THE VESTA SOLUTIONS SERVICE IS USED IN EMERGENCY SITUATIONS, THEN THE SERVICE IS INTENDED TO ONLY INCREASE THE NOTICE WHICH WILL BE GIVEN. THERE IS NOT AND CAN NOT BE ANY GUARANTEE THAT ALL PERSONS INTENDED TO BE CONTACTED WILL BE CONTACTED. VESTA SOLUTIONS ACCEPTS NO RESPONSIBILITY FOR ANY FAILURE OF THE VESTA SOLUTIONS SERVICE TO CONTACT ANY PERSON OR PERSONS AND IS NOT RESPONSIBLE FOR ANY DAMAGE OR INJURY WHICH RESULTS FROM ANY FAILURE TO CONTACT ANYONE. The warranties in this Section IV will not apply to any defects or problems caused in whole or part by (i) defects in any equipment, (ii) failure of any portion of equipment to function in accordance with 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 manufacturer’s specifications, (iii) modifications or enhancements made to the Service by anyone other than Vesta Solutions, (iv) any software, hardware, firmware, peripheral or communication devices used with the Service not provided by or approved of in writing by Vesta Solutions, (v) failure of COUNTY or any third party to follow Vesta Solutions’ most current instructions for proper use of the Service, (vi) negligence of COUNTY or any third party, or (vii) failure to install and use the updates, modifications and corrections provided by Vesta Solutions. If COUNTY falls within any of the foregoing exceptions, and requests Vesta Solutions to provide support services for such defect or problem, COUNTY will pay Vesta Solutions for such services at Vesta Solutions’ then current hourly rate. V. TERM The term of this Agreement shall be for a period of three (3) years, commencing on December 16, 2019, through and including December 15, 2022. This Agreement will renew for two (2) additional consecutive twelve (12) month periods, unless terminated by the COUNTY upon giving thirty (30) days prior written notice to CONTRACTOR. The Director of Internal Services/Chief Information Officer (CIO) or his or her designee is authorized to execute such written approval on behalf of COUNTY based on CONTRACTOR’S satisfactory performance. VI. TERMINATION A. NON-ALLOCATION OF FUNDS The terms of this Agreement, and the services to be provided thereunder, are contingent on the approval of funds by the appropriating government agency. Should sufficient funds not be allocated, the services provided may be modified, or this Agreement terminated, at any time without penalty by giving the CONTRACTOR ninety (90) days advance written notice. 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B. BREACH OF CONTRACT The CONTRACTOR may terminate this Agreement without further obligation or liability to COUNTY if: 1. COUNTY fails to timely pay any amounts due under this Agreement and fails to make such payments within ten (10) days of written notice from Vesta Solutions; 2. COUNTY commits any material breach of this Agreement and fails to remedy such breach within thirty (30) days of written notice from Vesta Solutions; or 3. COUNTY becomes the subject of a petition in bankruptcy; is or becomes insolvent; or admits a general inability to pay its debts as they become due. The COUNTY may immediately suspend or terminate this Agreement in whole or in part, where in the determination of the COUNTY there is: 1. If any material breach of this Agreement occurs, and CONTRACTOR fails to remedy such breach within thirty (30) days of written notice from COUNTY. 2. An illegal or improper use of funds; In no event shall any payment by the COUNTY constitute a waiver by the COUNTY of any breach of this Agreement or any default which may then exist on the part of the CONTRACTOR. Neither shall such payment impair or prejudice any remedy available to the COUNTY with respect to the breach or default. The COUNTY shall have the right to demand of the CONTRACTOR the repayment to the COUNTY of any funds disbursed to the CONTRACTOR under this Agreement, which were not expended in accordance with the terms of this Agreement. The CONTRACTOR shall promptly refund any such funds upon demand. CONTRACTOR may, upon thirty (30) days prior written notice to COUNTY, terminate this Agreement if COUNTY fails to comply with any material term or condition of this Agreement, unless COUNTY cures such failure within 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 such thirty (30) day period, or other such timeframe as may be mutually agreed upon in writing by the parties. C. EFFECT OF TERMINATION Upon termination of this Agreement, all amounts owed to CONTRACTOR through the date of termination will be immediately due and payable, and CONTRACTOR will cease performance of all obligations herein without liability to COUNTY. Sections of this Agreement that, by their nature, are reasonably intended to survive termination shall so automatically survive. Upon termination or expiration of this Agreement, COUNTY shall be prohibited from further use of the Service, and shall promptly return copies of any System Documentation in its possession, if any, to Vesta Solutions. All amounts owed to Vesta Solutions, including but not limited to amounts due for setup services provided by Vesta Solutions, shall be immediately due and payable, and Vesta Solutions will cease performance of all obligations hereunder without liability to COUNTY. Sections VI-C, VI-D, VI-E, IX, XII-A, XII-B, XII-C, and XVI will survive termination or expiration. Upon termination, COUNTY shall have sixty (60) days to notify Vesta Solutions if it opts to have COUNTY Data returned by Vesta Solutions at the expense of COUNTY. In the event termination is due to COUNTY’s failure to pay all fees due hereunder, Vesta Solutions reserves the right to withhold return of COUNTY Data until paid in full. If COUNTY does not contact Vesta Solutions during such 60-day timeframe, and/or all fees are not paid current during that timeframe, Vesta Solutions may restrict all access to COUNTY Data until required payments, including fees, incurred are paid in full. Vesta Solutions has no obligation to provide transition services in connection with COUNTY’s election to utilize an alternative vendor. 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D. OTHER REMEDIES CONTRACTOR’s rights and remedies under this Agreement will be cumulative and in addition to all other rights and remedies available to Vesta Solutions in law and in equity. E. PARTIAL INVALIDITY If any provision of this Agreement is ruled wholly or partly invalid or unenforceable by a court or other government body of competent jurisdiction, the validity and enforceability of all provisions of this Agreement not ruled to be invalid or unenforceable will be unaffected. F. WAIVER Failure or delay by either Party to exercise a right or power will not be a waiver of the right or power. For a waiver of a right or power to be effective, it must be in a writing signed by the waiving Party. An effective waiver of a right or power will not be construed as either a future or continuing waiver of that same right or power, or the waiver of any other right or power. G. FORCE MAJEURE In the event an act of government, war, strikes, labor disturbances, riots, fire, flood, act of God, extended power shortages or blackouts, breakdown of telephone lines and services, or complete failure of the Internet prevents CONTRACTOR from performing in accordance with the terms of this Agreement, such nonperformance shall be excused, and shall not be considered a breach or default for so long as such conditions prevail. CONTRACTOR’s SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. CONTRACTOR IS NOT RESPONSIBLE FOR, AND SHALL HAVE NO LIABILITY FOR SUCH DELAY, DELIVERY FAILURES OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VII. COUNTERPARTS This Agreement may be executed in one or more counterparts, all of which taken together shall constitute one instrument. Once fully executed, it will become effective as of the Effective Date stated above. Delivery of an executed signature page of this Agreement by facsimile transmission or electronic photocopy (i.e., “pdf”) shall be equally effective as manual delivery of an original signed counterpart hereof. VIII. COMPENSATION/INVOICING COUNTY agrees to pay CONTRACTOR, and CONTRACTOR agrees to receive compensation as follows for each individual year of the Agreement: A. ANNUAL MAINTENANCE AND SUPPORT FEES, WITH FULL HOSTING SERVICES, INCLUDING: x List and Map-Based Calling x 20,000 Universal Calling/SMS Units included annually o Optional Bundled Packages Available for purchase x Hosted Backup Service x Data Migration to hosted solution x Efax Service x 24/7/365 Technical Support, including access to Support Portal x Unlimited Administrators and Scenarios x Annually - Training for 1 participant at NSS University in Franklin, TN or WebEx training with an instructor (up to 10 participants) 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Year 1: 12/16/2019 – 12/15/2020 x Annual Service Support $26,802 x One-time setup fee $500.00 Year 2: 12/16/2020 – 12/15/2021 x Annual Service Support $26,802 Year 3: 12/16/2021 – 12/15/2022 x Annual Service Support $26,802 Year 4: 12/16/2022 – 12/15/2023 x Annual Service Support $26,802 Year 5: 12/16/2023 – 12/15/2024 x Annual Service Support $26,802 B. ADDITIONAL LICENSE/SERVICES FEES: 1. On-site System training/day $1,800.00 2. Hourly Rate for Additional Services a. Regular Hours (M-F, 8am-5pm CST, excluding holidays) $225/hour b. Outside of Regular Hours $450/hour $450/hour 3. Universal Calling/SMS Messaging $17,000 Annually Additional License/Services Fees shall only be paid to CONTRACTOR if any such services set forth hereinabove are performed by CONTRACTOR upon COUNTY's written request. In no event shall Additional License/Services Fees exceed $20,000, per year, for the overall term of this Agreement. 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C. TOTAL CONTRACT AMOUNT In no event shall services performed under this Agreement be in excess of $234,510.00 during the entire potential five (5) year term of this Agreement. It is understood that all expenses incidental to CONTRACTOR'S performance of services under this Agreement shall be borne by CONTRACTOR. D. INVOICING CONTRACTOR shall submit invoices, either electronically or via mail, to the County of Fresno ISD-IT, Accounts Payable, 2048 N. Fine Avenue, Fresno, CA 93727 or Accounts Payable (isdbusinessoffice@fresnocountyca.gov). COUNTY will pay CONTRACTOR within forty-five (45) days from the date of invoice, by mail addressed to CONTRACTOR's remittance address at P.O. Box 9007, Temecula, CA 92590. IX. INDEPENDENT CONTRACTOR In performance of the work, duties and obligations assumed by CONTRACTOR under this Agreement, it is mutually understood and agreed that CONTRACTOR, including any and all of the CONTRACTOR'S officers, agents, and employees will at all times be acting and performing as an independent contractor, and shall act in an independent capacity and not as an officer, agent, servant, employee, joint venturer, partner, or associate of the COUNTY. Furthermore, COUNTY shall have no right to control or supervise or direct the manner or method by which CONTRACTOR shall perform its work and function. However, COUNTY shall retain the right to administer this Agreement so as to verify that CONTRACTOR is performing its obligations in accordance with the terms and conditions thereof. CONTRACTOR and COUNTY shall comply with all applicable provisions of law and the rules and regulations, if any, of governmental authorities having jurisdiction over matters the subject thereof. Because of its status as an independent contractor, CONTRACTOR shall have absolutely no right to employment rights and benefits available to COUNTY employees. 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CONTRACTOR shall be solely liable and responsible for providing to, or on behalf of, its employees all legally-required employee benefits. In addition, CONTRACTOR shall be solely responsible and save COUNTY harmless from all matters relating to payment of CONTRACTOR'S employees, including compliance with Social Security withholding and all other regulations governing such matters. It is acknowledged that during the term of this Agreement, CONTRACTOR may be providing services to others unrelated to the COUNTY or to this Agreement. X. CONFIDENTIALITY A Party receiving Information (defined below) of the other will not disclose such Information other than to persons in its organization who have a need to know and who will be required to comply with this Section. All such confidential information must be clearly marked “Confidential.” The Party receiving Information will not use such Information for a purpose inconsistent with the terms of this Agreement. "Information" means the System Software, System Documentation and all information and intellectual property related thereto (including, but not limited to all databases provided to COUNTY by CONTRACTOR whether created by CONTRACTOR or its third-party licensors such as, without limitation, the mapping product databases). Information will not include: (i) information publicly known prior to disclosure; (ii) information coming into the lawful possession of the recipient without any confidentiality obligation; and (iii) information required to be disclosed pursuant to regulatory action, state law, or court order, provided prior written notice of any request to disclose is given to the Party whose information is to be disclosed. The terms of this Agreement are not confidential information, pursuant to this Section X. Each Party will exercise at least the same degree of care to safeguard the confidentiality of the other's Information as it does to safeguard its own proprietary confidential information, but not less than a reasonable degree of care. 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 XI. MODIFICATION Any matters of this Agreement may be modified from time to time by the written consent of all the parties without, in any way, affecting the remainder. XII. NON-ASSIGNMENT Neither party shall assign, transfer or sub-contract this Agreement nor their rights or duties under this Agreement without the prior written consent of the other party. Both parties’ rights and remedies under this Agreement will be cumulative and in addition to all other rights and remedies available to each party in law and in equity. XIII. HOLD HARMLESS A. INFRINGEMENT INDEMNITY With the exception of any third-party software, hardware or equipment that may be provided under this Agreement, CONTRACTOR agrees to hold COUNTY harmless from liability to third parties resulting from infringement of any United States patent or copyright by the CONTRACTOR software purchased hereunder, and CONTRACTOR further agrees to pay all damages and costs, including reasonable legal fees, which may be assessed against COUNTY under any such claim or action. CONTRACTOR shall be released from the foregoing obligation if COUNTY fails to reasonably cooperate with CONTRACTOR in defending or settling any such claim or action, or fails to provide CONTRACTOR with (i) prompt written notice once COUNTY first becomes aware of such a claim or action, or possibility thereof; (ii) control and authority over the defense or settlement thereof; and (iii) cooperation to settle and/or defend any such claim or action. Without limiting the foregoing, if a final injunction is, or CONTRACTOR believes, in its sole discretion, is likely to be, entered prohibiting the use of the software by COUNTY as contemplated herein, CONTRACTOR will, at its sole option and expense, either (a) procure for COUNTY the right to use the infringing software as provided 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 herein or (b) replace the infringing software with non-infringing, functionally equivalent products, or (c) suitably modify the infringing software so that it is not infringing; or (d) in the event (a), (b) and (c) are not commercially reasonable, terminate the license, accept return of the infringing software, and refund to COUNTY the prorated portion of the license fee for the unused term of this Agreement, paid therefore. Except as specified above, CONTRACTOR will not be liable for any infringement claim-related costs or expenses incurred without its prior written authorization. Notwithstanding the foregoing, CONTRACTOR assumes no liability for infringement claims with respect to software (i) not supplied by CONTRACTOR, (ii) made in whole or in part in accordance to COUNTY's specifications, (iii) that is modified after delivery by CONTRACTOR, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where COUNTY continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where COUNTY's use of the software is not strictly in accordance with this Agreement. IN NO EVENT WILL VESTA SOLUTIONS BE LIABLE TO COUNTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF DATA, LOSS OF PROFITS, LOSS OF BUSINESS INFORMATION, BUSINESS INTERRUPTION OR ANY OTHER PECUNIARY LOSS ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICE OR SOFTWARE OR THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF VESTA SOLUTIONS HAS BEEN ADVISED OF, KNEW OF, OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. VESTA SOLUTIONS’ TOTAL LIABILITY TO CUSTOMER HEREUNDER, IF ANY, WILL IN NO EVENT EXCEED THE TOTAL AMOUNT PAID TO VESTA SOLUTIONS HEREUNDER IN THE 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING PROVISIONS OF THIS SECTION STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF CONTRACTOR AND THE EXCLUSIVE REMEDY OF COUNTY WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADE SECRET, TRADEMARK OR OTHER INTELLECTUAL PROPERTY RIGHT BY THE SOFTWARE. B. INJUNCTIVE RELIEF Each Party acknowledges that a violation or threatened violation by it of Section IX hereof would result in damage that is largely intangible but nonetheless real and that is incapable of complete remedy by award of damages. Thus, such violation or threatened violation will give the injured Party the right to a court-ordered injunction to specifically enforce such covenant or obligation. C. GENERAL INDEMNITY CONTRACTOR agrees to indemnify, save, hold harmless, and at COUNTY'S request, defend the COUNTY, its officers, agents, and employees from any and all costs and expenses, damages, liabilities, claims, and losses occurring or resulting to COUNTY in connection with any bodily injuries or damages incurred as a result of CONTRACTOR's negligence while traveling to or from COUNTY's premises or while performing services on COUNTY's premises. COUNTY shall indemnify, defend and hold Vesta Solutions, its licensors and each such Party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities, and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) A claim alleging that use of the COUNTY Data infringes the rights of, or has caused harm to a third party; (ii) a claim which if true, would constitute a violation by COUNTY of its representations and warranties contained herein; (iii) a claim arising 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 from the breach by COUNTY of this Agreement, provided in any such case that Vesta Solutions (a) gives COUNTY timely written notice of the claim; and (b) provides COUNTY all available information and assistance. COUNTY shall not settle or compromise any such claim without Vesta Solutions’ prior written consent. If Vesta Solutions fails to respond to COUNTY’S request to settle any such claim within thirty (30) days of the written notice from the COUNTY, then Vesta Solutions will be deemed to have consented. XIV. INSURANCE Without limiting the COUNTY's right to obtain indemnification from CONTRACTOR or any third parties, CONTRACTOR, at its sole expense, shall maintain in full force and effect, the following insurance policies or a program of self-insurance, including but not limited to, an insurance pooling arrangement or Joint Powers Agreement (JPA) throughout the term of the Agreement: A. COMMERCIAL GENERAL LIABILITY Commercial General Liability Insurance with limits of not less than Two Million Dollars ($2,000,000.00) per occurrence and an annual aggregate of Four Million Dollars ($4,000,000.00). This policy shall be issued on a per occurrence basis on standard ISO form CG 00 01 04 13. COUNTY may require specific coverages with written agreement including completed operations, products liability, contractual liability, Explosion- Collapse-Underground, fire legal liability or any other liability insurance deemed necessary because of the nature of this contract. B. AUTOMOBILE LIABILITY Comprehensive Automobile Liability Insurance with limits for bodily injury of not less than One Million Dollars ($1,000,000.00) per accident for bodily injury and for property damages. Coverage should include auto used in connection with this Agreement. 34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C. TECHNOLOGY PROFESSIONAL LIABILITY INCLUDING CYBER LIABILITY (ERRORS AND OMISSIONS) Technology Professional Liability (Errors and Omissions) Insurance appropriate to CONTRACTOR’s profession, with limits not less than Two Million Dollars ($2,000,000) per occurrence or claim, Two Million Dollars ($2,000,000) aggregate. Coverage shall be sufficiently broad to respond to the duties and obligations as is undertaken by CONTRACTOR in this Agreement and may include, but not be limited to infringement of copyright, trademark, trade dress (but excluding patents and trade secrets), invasion of privacy violations, information theft, damage to or destruction of electronic information, release of private information, alteration of electronic information, extortion and network security. The policy may provide coverage for breach response costs as well as regulatory fines and penalties as well as credit monitoring expenses with limits sufficient to respond to these obligations. For purposes of the technology professional liability insurance and the cyber liability insurance required under this Agreement, Cyber Risks include (i) security breaches, which include disclosure of, whether intentional or unintentional, information provided by COUNTY, information provided by or obtained from any inmate, or personal-identifying information relating to any inmate, to an unauthorized third party; (ii) breach of any of CONTRACTOR’s obligations under this Agreement relating to data security, protection, preservation, usage, storage, transmission, and the like; (iii) infringement of intellectual property including, but not limited to, infringement of copyright, trademark, and trade dress (but excluding patents and trade secrets); (iv) invasion of privacy, including any release of private information; (v) information theft by any person or entity, whatsoever; (vi) damage to or destruction or alteration of electronic information; (vii) extortion related to CONTRACTOR’s obligations under this Agreement regarding electronic information, including information provided by COUNTY, information provided by or obtained from any inmate, or personal-identifying information relating to any inmate; (viii) network 35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 security; (ix) data breach response costs, including security breach response costs; (x) regulatory fines and penalties related to CONTRACTOR’s obligations under this Agreement regarding electronic information, including information provided by COUNTY, information provided by or obtained from an inmate, or personal-identifying information relating to any inmate; and (xi) credit monitoring expenses. D. WORKER'S COMPENSATION A policy of Worker's Compensation insurance as may be required by the California Labor Code. E. ADDITIONAL REQUIREMENTS RELATING TO INSURANCE CONTRACTOR hereby waives its right to recover from COUNTY, its officers, agents, and employees any amounts paid by the policy of worker’s compensation insurance required by this Agreement. CONTRACTOR is solely responsible to obtain any endorsement to such policy that may be necessary to accomplish such waiver of subrogation, but CONTRACTOR’s waiver of subrogation under this paragraph is effective whether or not CONTRACTOR obtains such an endorsement. CONTRACTOR shall obtain endorsements to the Commercial General Liability insurance including the County of Fresno, its officers, applicable agents, and employees, individually and collectively, as additional insured, but only insofar as the operations under this Agreement are concerned. Such coverage for additional insured shall apply as primary insurance. This insurance shall not be cancelled or changed without a thirty (30) days advance written notice given to COUNTY. Within Thirty (30) days from the date CONTRACTOR executes this Agreement, CONTRACTOR shall provide certificates of insurance and endorsement as stated above for all of the foregoing policies, as required herein, to the County of Fresno, Chief Information Officer, 333 W Pontiac Way, Clovis, CA, 93612-5613, stating that such insurance coverages have been obtained and are in full force. County of Fresno, its officers, applicable agents and employees will not be responsible for any premiums on 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the policies and that for such worker’s compensation insurance the CONTRACTOR has waived its right to recover from the COUNTY, its officers, agents, and employees any amounts paid under the insurance policy and that waiver does not invalidate the insurance policy. Certificate of insurance shall state that Commercial General Liability insurance shall include the County of Fresno, its officers, applicable agents and employees, individually and collectively, as additional insured, but only insofar as the operations under this Agreement are concerned; that such coverage for additional insured shall apply as primary insurance. In the event CONTRACTOR fails to keep in effect at all times insurance coverage as herein provided, the COUNTY may suspend or terminate this Agreement upon the occurrence of such event. All policies shall be with admitted insurers licensed to do business in the State of California. Insurance purchased shall be purchased from companies possessing a current A.M. Best, Inc. rating of FSC VII or better. XV. AUDITS AND INSPECTIONS CONTRACTOR shall at any time during CONTRACTOR'S normal business hours, and upon reasonable prior written notice, not more often than once a year, make available to the COUNTY for examination all of its records and data specifically related to the matters covered by this Agreement. CONTRACTOR shall, upon request by the COUNTY, permit the COUNTY to audit and inspect all of such records and data necessary to ensure CONTRACTOR'S compliance with the terms of this Agreement. Any such examinations or audits shall be at the COUNTY'S expense. CONTRACTOR shall be subject to the examination and audit of the California State Auditor for a period of three (3) years after final payment under contract (Government Code Section 8546.7). 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Notwithstanding the forgoing, in no circumstances will CONTRACTOR be required to create or maintain documents not kept in the ordinary course of CONTRACTOR’S business operations, nor will CONTRACTOR be required to disclose any information, including but not limited to cost data, which is considers confidential or proprietary to CONTRACTOR, except as required by law. XVI. NOTICES A. AUTHORITY TO GIVE AND RECEIVE NOTICES The persons and their addresses having authority to give and receive notices under this Agreement include the following: COUNTY OF FRESNO CONTRACTOR Chief Information Officer 333 W Pontiac Way Clovis, CA 93612-5613 Chris Leonard Account Executive 117 Seaboard Ln, Ste D100 Franklin, TN 37067-2871 P.O. Box 9007 Temecula, CA 92590 All notices between the COUNTY and the CONTRACTOR provided for or permitted under this Agreement must be in writing and delivered either by personal service, by first-class United States mail, by an overnight commercial courier service, or by telephonic facsimile transmission. A notice delivered by personal service is effective upon service to the recipient. A notice delivered by first-class United States mail is effective three COUNTY business days after deposit in the United States mail, postage prepaid, addressed to the recipient. A notice delivered by an overnight commercial courier service is effective one 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COUNTY business day after deposit with the overnight commercial courier service, delivery fees prepaid, with delivery instructions given for next day delivery, addressed to the recipient. A notice delivered by telephonic facsimile is effective when transmission to the recipient is completed (but, if such transmission is completed outside of COUNTY business hours, then such delivery shall be deemed to be effective at the next beginning of a COUNTY business day), provided that the sender maintains a machine record of the completed transmission. For all claims arising out of or related to this Agreement, nothing in this section establishes, waives, or modifies any claims presentation requirements or procedures provided by law, including but not limited to the Government Claims Act (Division 3.6 of Title 1 of the Government Code, beginning with section 810). 39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B. PRIMARY ESCALATION CONTACT INFORMATION The persons and their contact information that the COUNTY or CONTRACTOR can use to escalate problems or situations are as follows: COUNTY OF FRESNO CONTRACTOR Contact #1 Contact #1 Application Information Technology Manager Office Phone: (559) 600-5800 helpdesk@fresnocountyca.gov 333 W Pontiac Way Clovis, CA 93612-5613 Chris Leonard Account Executive (615) 550-0270 chris.leonard@motorolasolutions.com 105 West Park Drive, Suite 200 Brentwood, TN 37027 Contact #2 Contact #2 Sheri Walden Information technology Division Manager swalden@fresnocountyca.gov Michael Anderson Sales Director (435)-830-2547 michael.anderson@motorolasolutions.com XVII. GOVERNING LAW Venue for any action arising out of or related to this Agreement shall only be in Fresno County, California. The rights and obligations of the parties and all interpretation and performance of this Agreement shall be governed in all respects by the laws of the State of California. All parties agree that venue regarding any action arising hereunder will be exclusively in Fresno County, California. 40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 XVIII. DISCLOSURE OF SELF-DEALING TRANSACTIONS This provision is only applicable if the CONTRACTOR is operating as a corporation (a for-profit or non-profit corporation) or if during the term of this agreement, the CONTRACTOR changes its status to operate as a corporation. Members of the CONTRACTOR's Board of Directors shall disclose any self-dealing transactions that they are a party to while CONTRACTOR is providing goods or performing services under this agreement. A self-dealing transaction shall mean a transaction to which the CONTRACTOR is a party and in which one or more of its directors has a material financial interest. Members of the Board of Directors shall disclose any self-dealing transactions that they are a party to by completing and signing a Self-Dealing Transaction Disclosure Form (Exhibit 1) and submitting it to the COUNTY prior to commencing with the self-dealing transaction or immediately thereafter. XIX. ENTIRE AGREEMENT This Agreement constitutes the entire agreement between the CONTRACTOR and COUNTY with respect to the subject matter hereof, and supersedes all previous Agreement negotiations, proposals, commitments, writings, advertisements, publications, and understandings of any nature whatsoever, unless expressly included in this Agreement. The terms of any COUNTY-provided invoice concerning any product or service provided hereunder will not serve to replace, modify or supersede the terms of this Agreement. The terms of this Agreement shall prevail for any and all purposes. 1 IN WITNESS WHEREOF , the parties hereto have executed the Agreement as of 2 the day and year first herein above written . 3 CONTRACTOR 4 5 6 7 8 9 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (Authorized Signature) Michael Anderson Vesta Solutions , Inc. P.O. Box 9007 , Temecula , CA By: FOR ACCOUNTING USE ONLY: Org. No.: 56204605 Account No./Fund: 7295/0001/10000 41 COUNTY OF FRESNO :::z Nathan Magsig , Chairman of the Board of Supervisors of the County of Fresno ATTEST: Bernice E . Seidel Clerk of the Board of Supervisors County of Fresno , State of Californ ia Deputy 9/20/2019 Support Plan https://support.vestapublicsafety.com/index.php?option=com_content&view=article&id=170:support-plan&catid=58&tmpl=component&print=1&layout=…1/5 Technical Services Center Support Plan Vesta Solutions, Inc. offers Software support to purchasers (“Licensee” or “Customer”) of its application Software, in accordance with the terms and conditions of this Technical Services Center Support Plan (“Support Plan”), which is made a part of and is incorporated by reference into the License and Support Agreement entered into by Customer and Vesta Solutions, Inc.. Defined terms as set forth in the License and Support Agreement shall have the same meaning in this Support Plan. This Support Plan does not apply to system software or any other third party software. Conditions of the Support Plan In order to keep the Support Plan active, the Customer is required to: 1. Pay all applicable Hosting Fees; and 2. Comply with all terms and conditions of this Support Plan and the License and Support Agreement. Definitions TSC Technical Services Center TSS Technical Services Specialist TSA Technical Services Analyst Response Time is the period of time that it takes the TSC to call the Customer back when a voice mail has been left or to provide an update on the call ticket. Response times are only implemented when the call is not resolved on the first call. Response Time does not mean Resolution Time. Resolution Time is the period of time it takes to solve a problem. The resolution time is different for each situation and cannot be determined until the appropriate TSC personnel have evaluated the problem and are able to determine an approximate resolution time. Support Services Provided Supported Products The TSC will only support Software approved and installed by Vesta Solutions, Inc.. The TSC will not resolve requests associated with software other than that provided by Vesta Solutions, Inc.; the requests will, however, be logged into the database. Pursuant to this Support Plan, Vesta Solutions, Inc., as coordinated by its Technical Exhibit A 42 9/20/2019 Support Plan https://support.vestapublicsafety.com/index.php?option=com_content&view=article&id=170:support-plan&catid=58&tmpl=component&print=1&layout=…2/5 Service Center, will provide issue resolution and updates to supported Software as further described below. Hours of Operation Normal Business Hours (NBH): Monday through Friday, excluding holidays, from 8:00AM to 5:00PM, Central Time. After hours Emergency support only - see Call Levels Issue Resolution The TSC works with Customers to resolve issues related to supported Software that does not perform materially in accordance with the then current Documentation for such Software. This service is designed to support the Customer’s technician who is adequately trained in the product about which they are calling and listed as an approved Customer Contact with NSS TSC. To be adequately trained the Customer’s technician must have received training directly through an Vesta Solutions, Inc. training program or have been trained by a Customer Technician that has received training directly through Vesta Solutions, Inc.. A trained Customer’s technician is responsible for attempting to troubleshoot issues prior to calling TSC. If the Customer’s technician is not adequately trained, based on the description above, in the product about which he or she is calling, and thus not listed as an approved Customer Contact, NSS TSC personnel will attempt to contact an approved Customer contact for problem resolution. For security purposes, only Customer contacts that are listed with TSC will receive support unless a listed contact provides approval to do so. In the event of an emergency TSC may make a special allowance if TSC personnel are unable to reach one of the listed contacts for verification. To better facilitate high first call resolution for on premise solutions, the TSC will utilize remote control software. This will allow the TSC to connect to the Customer’s system via a dial-up or network connection and “take control” of the system to perform troubleshooting and/or resolution services. The TSS/TSA will at all times advise the Customer of their intention to access the system, and upon completion will advise the Customer that they have left the system, relaying to them what steps were taken to resolve an issue. The TSC will maintain a database of all calls received from the Customer, the steps taken to resolve and the resolution. The database will show dates when a call was received and dates of all contacts related to call. TSC will work with the Customer to identify errors or defects in the Software, and if the TSC is unable to confirm that such error or defect exists through independent testing, it will then escalate the issue to the NSS R&D Department. The TSC will remain as the Customer contact and will work with the R&D Department to provide updated information to the Customer through resolution of the issue. Contacting the NSS Technical Services Center Exhibit A 43 9/20/2019 Support Plan https://support.vestapublicsafety.com/index.php?option=com_content&view=article&id=170:support-plan&catid=58&tmpl=component&print=1&layout=…3/5 During Normal Business Hours (NBH): Customers may call a dedicated ACD at 888.322.4200 or 615.794.2307. If all TSC personnel are busy assisting other customers, the call will go to voice mail. If the caller is experiencing an emergency (see Call Levels below) they may press 0 for the operator and a TSC manager will be paged to assist. If the call is not an emergency (as defined below), the caller should leave a message with their name, company name and ID, telephone number and a brief description of the reason for the call. Messages are checked frequently and calls are returned in the order in which they are received, but always within four (4) hours. After Hours Emergency: If the Customer is experiencing an emergency (as defined below) they should call the TSC at 888.322.4200 or 615.794.2307. The call will be routed to an answering service where the Customer should leave a clear message with their name, company name and ID, telephone number and a brief description of the reason for the call. The on-call TSS will be paged and will return the call within 15 minutes of receipt of the page. E-mail Requests: The TSC will respond to e-mail requests within eight (8) business hours. Note: Emergency or very important requests should always be phoned into the TSC. E-mail can sometimes be unreliable and the TSC has no control over the timely delivery of requests. E-mail service level commitments are based on the time the requests actually reach the TSC. Call Levels Applied to This Support Plan Emergency Call - Immediate Response during NBH; within 15 minutes of page outside NBH Server Applications will not start. Site is experiencing an actual emergency and the system will not send out notifications to one or more device types. Site initiates activation, attempts to stop it, and experiences difficulty doing so. Routine Call - 4 hour Response Time Reports are not functioning properly. Testing system and needs help making adjustments. Assistance with modifying roster members or groups. Assistance with speech recording done by Site. Assistance creating template scenarios. Services that require advanced scheduling Installation of software or hardware updates or additional configurations. Modifications to the system to accommodate telephony changes. Vesta Solutions provided speech recording. GIS Updates. Exhibit A 44 9/20/2019 Support Plan https://support.vestapublicsafety.com/index.php?option=com_content&view=article&id=170:support-plan&catid=58&tmpl=component&print=1&layout=…4/5 Call Procedures & Escalation The Technical Service Center will maintain call ownership throughout the entire request process. The TSC will address incoming calls as follows. 1. Capture the Request - The TSS/TSA will capture all requests by phone, e-mail, or voice mail and verify the right to service based on the Customer's name, support contract status and the approved software support list. If the request relates to unsupported software, the Customer will be notified. Otherwise, the analyst will continue with Step 2. 2. Log Request into the Database - The TSS/TSA will open a ticket in the call management system. Information included on the ticket will include the Customer's name, location, description of problem, severity of problem, and time of request and person reporting the issue. 3. Troubleshoot the Request - The TSS/TSA responsible for resolving the call will acknowledge the open ticket and work with the Customer to resolve the issue. 4. Escalate to Second Level - The TSS will escalate the request to second level support when the first contact is unable to make progress in the resolution of the issue in a timely manner. 5. Log Resolution into the Database - The TSS/TSA will log the resolutions to requests in the call management database. 6. Verify Customer Satisfaction - The TSS/TSA will follow up and verify that the Customer is satisfied with the resolution. 7. Close the Request or Ticket - All tickets will be closed after Customer satisfaction has been verified. Customer Responsibilities The Customer shall maintain the current version of the Vesta Solutions, Inc. application software, or one version back from the most current version. The Customer Site should have at least one system administrator that has attended Vesta Solutions, Inc. training, either at the Customer Site or at the Vesta Solutions, Inc. Training Center. The Customer shall provide the administrator’s contact information to Vesta Solutions, Inc.. Customer will schedule install of all updates in a timely manner. Customer will work with TSC staff to maintain an accurate database of contact names. Customer will respond to requests for information in a timely manner. Support Limitations Vesta Solutions’s support obligations hereunder will not apply to any Vesta Solutions, Inc. supported application Software if correction of an error, adjustment, repair, or parts replacement is required because of: Damage or destruction caused by natural or man-made acts or disasters. The operation of the software in a manner other than that currently specified by Vesta Solutions, Inc.. The failure of the Customer to provide suitable qualified and adequately trained operating and maintenance staff. Exhibit A 45 9/20/2019 Support Plan https://support.vestapublicsafety.com/index.php?option=com_content&view=article&id=170:support-plan&catid=58&tmpl=component&print=1&layout=…5/5 Print (/index.php?option=com_content&view=article&id=170:support- plan&catid=58&tmpl=component&print=1&layout=default&Itemid=279) Email (/index.php? option=com_mailto&tmpl=component&template=vg_progressive&link=db495a4b0de2b31c710a427c95fafdd616aac415) Incompatible or faulty Customer equipment. Modifications made without Vesta Solutions, Inc.’s written approval to the OS, network, hardware or software environment or software applications. Further, support described herein does not include cosmetic repairs, refurbishment, furnishing consumables, supplies or accessories, making accessory changes or adding additional devices or software applications. Telephone support and/or field engineering necessary to rectify such unsupported failures as described above may be obtained from Vesta Solutions, Inc. on a time & materials basis as set forth in the applicable price list. The labor rate charged will be the then current Vesta Solutions, Inc. labor rate (plus expenses) at the time service is requested. Software Updates Vesta Solutions, Inc. will provide application Software updates. Application Software updates are defined as minor enhancements to the already purchased product feature / functionality set. A program update is classified as minor, in the discretion of Vesta Solutions, Inc., based upon the impact of the change to the core functionality of the product. Notice of all Software updates available during the term of the Support Plan will be posted under the “latest Updates and Patches” section for each product on the Vesta Solutions, Inc. Support Website located at http://support.vestapublicsafety.com (http://support.vestapublicsafety.com) (login required). Application Software program updates will roll into the existing Support Plan, thereby not extending the term of the Support Plan. Any change in the two numbers following the decimal point within the product version number constitutes an application software program update (for example a change from product version 1.10 to 1.20, or 2.11 to 2.12, or 3.20 to 3.30, etc. will represent an application software program update). Other Services Other services not specifically identified as being included in this Support Plan, including but not limited to training, implementation services, and custom development, are not included. Exhibit A 46 Proposal to Fresno County Health Services Agency Page 1 © 2018 Vesta Solutions, Inc., a wholly owned subsidiary of Motorola Solutions, Inc. This document is protected by copyright law and international treaties, and is the CONFIDENTIAL AND PROPRIETARY information of Vesta Solutions, Inc. All trademarks, service marks, product names, brands, company names and logos appearing in this document are the property of their respective owners. VESTA® is a registered trademark of Vesta Solutions, Inc. PROPOSAL FOR FRESNO COUNTY HEALTH SERVICES AGENCY 10/24/19 Exhibit B Proposal 47 Vesta Solutions, Inc. 105 Westpark Drive Suite 200, Brentwood, TN U.S.A. VestaPublicSafety.com Motorola Solutions, Inc. 500 West Monroe Street, Chicago, IL 60661 U.S.A. MotorolaSolutions.com October 24th, 2019 Jack Curtis Ref: Proposal #75213 Dear Jack, Motorola Solutions is committed to helping people be their best in the moments that matter. We appreciate the opportunity to propose our industry renowned Notification Solutions and Services (NSS). To meet the communications needs of the Fresno County Health Services Agency, we are providing this proposal for the continuation of services provided by the company’s web-based solutions, the VESTA ® Communicator and VESTA® Alert solutions, in the hosted environment. Through the technology’s use, your organization gains unprecedented calling capacity for reaching recipients, while eliminating costs and maintenance associated with on-site hardware and phone lines. This offer shall remain valid for 120 days from the date of this Proposal. We thank you for the opportunity to furnish Fresno County Health Services Agency with critical emergency notification technology. Our goal is to provide you with the best solutions and services available in the industry. If you have any questions regarding this proposal, please do not hesitate to contact me. Best regards, Chris Leonard Regional Account Manager Chris.Leonard@MotorolaSolutions.com m: 615.947.8390 Motorola Solutions, Inc. 48 Proposal to Fresno County Health Services Agency Page 3 © 2018 Vesta Solutions, Inc., a wholly owned subsidiary of Motorola Solutions, Inc. This document is protected by copyright law and international treaties, and is the CONFIDENTIAL AND PROPRIETARY information of Vesta Solutions, Inc. All trademarks, service marks, product names, brands, company names and logos appearing in this document are the property of their respective owners. VESTA® is a registered trademark of Vesta Solutions, Inc. TABLE OF CONTENTS 1. Overview ------------------------------------------------------------------------------------ 4 2. VESTA Alert ------------------------------------------------------------------------------ 5 3. VESTA Communicator ----------------------------------------------------------------- 7 4. Installation, Support and Training ------------------------------------------------ 8 5. Pricing --------------------------------------------------------------------------------------- 9 49 Proposal to Fresno County Health Services Agency Page 4 MOTOROLA, MOTO, MOTOROLA SOLUTIONS and the Stylized M Logo are trademarks or registered trademarks of Motorola Trademark Holdings, LLC and are used under license. All other trademarks are the property of their respective owners. © 2018 Motorola Solutions, Inc. All rights reserved. 03-2018 Vesta Solutions, Inc. is a wholly owned subsidiary of Motorola Solutions, Inc. VESTA® is a registered trademark of Vesta Solutions, Inc. OVERVIEW Vesta Solutions, Inc., a wholly owned subsidiary of Motorola Solutions, is committed to helping people be their best in the moments that matter. We appreciate the opportunity to propose our industry renowned Notification Solutions and Services (NSS). Throughout our history, we have engineered premiseǦbased and hosted platforms to consistently perform in situations impacting operational resiliency and personal safety. Our solutions are scalable in design, supporting simple to highly complex communications and budgets of every size. As a result, thousands of public and private sector clients worldwide look to us for the experience, choice and performance essential to executing their rapid notification strategies. Experience. With almost 30 years in the industry, our growing list of clients speaks volumes toward the integrity and commitment of Vesta Solutions, and demonstrates our continued investment in people, business processes, applications and global presence. Other key points include: ƒ Highly diverse customer community spanning multiple industries, including defense, security, finance, healthcare, utility, retail, oil and chemical, as well as public safety and government ƒ Detailed knowledge and integration with commonly used incident management tools, databases and technologies ƒ Thorough understanding of emerging communications standards, alerting protocols and emergency notification pitfalls Choice. Only Vesta Solutions offers discrete deployment options adaptable to any environment or operational need, yet fully engineered to support the unique communications needs of our clients. Our broad range of offerings, coupled with invaluable customer input, allows us to be active consultants in the design, deployment and support of our notification solutions and services. ƒ PremiseǦbased, hosted (SaaS model) and hybrid platforms ƒ ListǦ and mapǦbased applications ƒ API integration with various applications, databases and/or technologies ƒ Complete scalability across jurisdictions or through publicǦprivate partnerships Performance. Vesta Solutions’ Notification Solutions and Services have proven secure and reliable in the most extreme situations. Our people, systems and business processes help organizations to reduce risk, shorten recovery time, maintain public confidence and enhance regulatory compliance. Their success drives our ongoing development efforts and customer service initiatives, allowing us to continually raise the bar in the notification industry. ƒ SecurityǦhardened offerings; passing of rigorous vulnerability assessments ƒ Multiple Tier III, geographically dispersed and SSAE 16 (formerly SAS 70) certified data centers ƒ ISO 9001:2015 certified organization 50 Proposal to Fresno County Health Services Agency Page 5 MOTOROLA, MOTO, MOTOROLA SOLUTIONS and the Stylized M Logo are trademarks or registered trademarks of Motorola Trademark Holdings, LLC and are used under license. All other trademarks are the property of their respective owners. © 2018 Motorola Solutions, Inc. All rights reserved. 03-2018 Vesta Solutions, Inc. is a wholly owned subsidiary of Motorola Solutions, Inc. VESTA® is a registered trademark of Vesta Solutions, Inc. VESTA ALERT VESTA® Alert is a highly intuitive map-based solution that quickly and accurately identifies an area at risk to rapidly deliver critical information to the impacted population. The intuitive, easy- to-use interface can reduce costly training time for public saf ety organizations. Citizens must be able to rely on Public Safety officials to notify them of dangerous and in some instances life-threatening events. Public Safety officials must be able to rely on a sophisticated yet easily managed solution to notify the community at a moment’s notice. The VESTA Alert solution from Vesta Solutions does just that. Map-based and optimized for population warning and mass notification, this state-of-the-art solution delivers citizens and public safety officials a system they can rely on with the quality and reliability that Public Safety has come to expect from the VESTA® portfolio. EASY TO USE AND MANAGE One of the most attractive features of the VESTA Alert solution is the fact that it is extremely intuitive and easy to use. Users can quickly and accurately identify the area at risk and issue an alert. The intuitive user interface reduces costly training time. Once you open your web browser and sign-in to the secure web-portal, you are connected to the robust map-based application displaying your local geographical area. You can immediately begin the tasks you need to get done - whether that includes planning or initiating a notification, drawing notification zones for future use or checking on a status of existing notification. 51 Proposal to Fresno County Health Services Agency Page 6 MOTOROLA, MOTO, MOTOROLA SOLUTIONS and the Stylized M Logo are trademarks or registered trademarks of Motorola Trademark Holdings, LLC and are used under license. All other trademarks are the property of their respective owners. © 2018 Motorola Solutions, Inc. All rights reserved. 03-2018 Vesta Solutions, Inc. is a wholly owned subsidiary of Motorola Solutions, Inc. VESTA® is a registered trademark of Vesta Solutions, Inc. EFFECTIVE, RESPONSIVE AND DETAILED The VESTA Alert solution is highly responsive and offers a rich mapping experience. Users can quickly navigate using detailed street level maps and overlay high-quality aerial imagery and easily pan, zoom, search and navigate the map using a variety of mapping tools. The solution delivers the software through secure web browser-based access, which eliminates the need to install software locally or download a large GIS data set to each user’s computer. MASSCALL® CAPABILITY The VESTA Alert solution includes our MassCall® service, a state-of-the-art telecommunications network that provides the capability to generate hundreds of thousands of calls per hour. This service can also automatically detect and deliver messages to telecommunications devices (TTY/TDD). Moreover, MassCall can customize a Caller ID for your organization, making calls appear to come directly from you and increasing the likelihood recipients will answer. INTEGRATION WITH EXISTING VESTA NOTIFICATION PRODUCTS The VESTA Alert solution integrates seamlessly with other Vesta Solutions products including the VESTA Communicator solution, to send and receive messages to phone, email and text devices and our Self-Registration Portal (SRP), where citizens can self-subscribe to alerts ensuring they receive notifications. VESTA ALERT CAN BE DEPLOYED IN ONE OF THREE OPTIONS. 1. As on premise, with VESTA Communicator, where all server hardware is installed at your location. If you choose this option, Vesta Solutions can provide a local or hosted back-up service. 2. As software-as-a-service (SaaS), where all hardware is located in the Vesta Solutions’ secure data centers. 3. As a fully dedicated SaaS solution, where all server hardware is dedicated to your account and hosted in the Vesta Solutions’ secure data centers. KEY BENEFITS ƒ Fast, accurate notifications ƒ IPAWS capability including sending messages to Wireless Emergency Alerts (WEA), Emergency Alert System (EAS), Non-Weather Emergency Message (NWEM), COG-to- COG ƒ IPAWS Alert areas for VESTA Alert notifications ƒ Weather Alerts displayed on the map; can be used as the basis for a Notification ƒ Hazmat ERG - Notification areas can be defined using a Hazmat ERG tool based on the latest Emergency Response Guide ƒ Self-Registration Portal (SRP) integration - Registrants from the SRP are automatically updated within the VESTA Alert application ƒ MassCall service that provides the capability to generate hundreds of thousands of calls per hour ƒ ArcGIS Server 10.2 – VESTA Alert solution is based on ArcGIS Server and can consume customer-provided ArcGIS Server map services 52 Proposal to Fresno County Health Services Agency Page 7 MOTOROLA, MOTO, MOTOROLA SOLUTIONS and the Stylized M Logo are trademarks or registered trademarks of Motorola Trademark Holdings, LLC and are used under license. All other trademarks are the property of their respective owners. © 2018 Motorola Solutions, Inc. All rights reserved. 03-2018 Vesta Solutions, Inc. is a wholly owned subsidiary of Motorola Solutions, Inc. VESTA® is a registered trademark of Vesta Solutions, Inc. VESTA COMMUNICATOR The VESTA® Communicator is an industry-renowned critical communications software solution from Vesta Solutions. Available on-premise, hosted or hybrid (combination), it is a web-based application that enables easy and quick delivery of messages to virtually any communications device. The software, accessible using a web browser (via the Internet, LAN or WAN), provides rules-based staff and group notifications. Only the VESTA Communicator solution possesses the speed and intelligence required to mobilize groups of any size or type. The application easily fills positions based on specified criteria such as skill, certification and availability. It also integrates with third-party tools and databases through a simple yet robust Application Programming Interface (API). With the VESTA Communicator solution, notifications can be activated directly from the desktop or remotely by phone. Users can modify contacts, prepare messages and assess results, easily managing communications from start to finish. 53 Proposal to Fresno County Health Services Agency Page 8 MOTOROLA, MOTO, MOTOROLA SOLUTIONS and the Stylized M Logo are trademarks or registered trademarks of Motorola Trademark Holdings, LLC and are used under license. All other trademarks are the property of their respective owners. © 2018 Motorola Solutions, Inc. All rights reserved. 03-2018 Vesta Solutions, Inc. is a wholly owned subsidiary of Motorola Solutions, Inc. VESTA® is a registered trademark of Vesta Solutions, Inc. INSTALLATION, SUPPORT AND TRAINING Vesta Solutions provides a variety of resources to assist you in the successful use of your emergency notification solution, to include: INSTALLATION ƒ Assignment of project manager to successfully lead installation and coordination of your solution deployment ƒ Guidance and project coordination/planning to ensure the solution is configured to function correctly within your infrastructure ƒ Premise-based configurations include on-site installation and readiness testing by technicians ƒ Assistance with importing of data and creation of initial notification scenarios SUPPORT ƒ Multi-tier Technical Services Help Desk made up of a team of full-time professionals, dedicated to providing the highest level of technical support ƒ 24/7 telephone support (including Business Hours and After Hours on-call for emergencies) plus Business Hours Email and select Chat Support ƒ Includes software upgrades/updates as released by Vesta Solutions’ Quality Assurance team (dependent on deployment option) ƒ Newsletters and information on Vesta Solutions products and services ƒ Technical website available at Support.VESTAPublicSafety.com providing access to manuals, best practices, tips and tricks and more TRAINING Vesta Solutions offers a variety of training options, covering all topics necessary for optimum system performance and meeting any scheduling need. ƒ In-house: In this two-and-a-half-day course held at Vesta Solutions’ Brentwood TN location, subject matter experts will guide users on how to can comfortably share ideas and network, exploring best practices for utilizing the technology within their operations. ƒ On-site: Clients can elect to have an experienced member of the training team come to your location, providing flexibility for multiple teams/shifts to take part and accommodating the most demanding of schedules. ƒ Web-based: This option enables you to take part in real-time, instructor-led training specific to your organization and needs. ƒ Computer-based: Through Vesta Solutions’ online Learning Management System (LMS), you can view recorded training sessions at your convenience. 54 Proposal to Fresno County Health Services Agency Page 9 MOTOROLA, MOTO, MOTOROLA SOLUTIONS and the Stylized M Logo are trademarks or registered trademarks of Motorola Trademark Holdings, LLC and are used under license. All other trademarks are the property of their respective owners. © 2018 Motorola Solutions, Inc. All rights reserved. 03-2018 Vesta Solutions, Inc. is a wholly owned subsidiary of Motorola Solutions, Inc. VESTA® is a registered trademark of Vesta Solutions, Inc. PRICING Solution: Hosted – The Communicator! NXT & VESTA Alert Includes: x List and Map Based Calling x 20,000 Universal Calling/SMS Units included annually o Optional Bundled Packages Available for purchase x Hosted Backup Service x Data Migration to hosted solution x Efax Service x 24/7/365 Technical Support, including access to Support Portal x Unlimited Administrators and Scenarios x Annually - Training for 1 participant at NSS University in Franklin, TN or WebEx training with an instructor (up to 10 participants) TERM: 5 Years* - 12/16/2019 – 12/15/2024 Annually $26,802 + 1 time $500 setup fee Optional Unlimited Messaging = $17,500 Annually Please note that on March 7, 2018 Motorola Solutions, Inc. completed its acquisition of Airbus DS Communications, Inc.’s parent company, Plant Holdings, Inc. That same day, Airbus DS Communications, Inc. changed its name to Vesta Solutions, Inc. All new contracts and purchase orders should bear the name of Vesta Solutions, Inc. 55 IDTask Name Duration Start Finish Predecessors Resource Names1VESTA Communicator and VESTA Alert Shared Hosted Project Plan47.25 days?Tue 1/1/19Thu 3/7/192Project Preparation0.31 daysTue 1/1/19Tue 1/1/193Prepare Project Package0.06 daysTue 1/1/19Tue 1/1/19Project Manager4Review and Analyze 0.25 daysTue 1/1/19Tue 1/1/193Project Manager5Project Kickoff12 days?Tue 1/1/19Wed 1/16/196Contact POC to Kickoff Project and Review1 day?Tue 1/1/19Tue 1/1/19Project Manager7Follow up with Email/Conference Call Correspondence10 days?Wed 1/2/19Tue 1/15/192,6Project Manager8Submit Work Request Documentation12 days?Tue 1/1/19Wed 1/16/199Submit System Setup Information to Hosting Infrastructure1 day?Wed 1/16/19Wed 1/16/197Project Manager10Collect and Submit Speech Request as needed1 day?Wed 1/16/19Wed 1/16/197Project Manager11Confirm Map Data (maps and telephone) Source10 days?Tue 1/1/19Mon 1/14/19Project Manager12Resources & Data Preparation5 days?Thu 1/17/19Wed 1/23/1913Hosting Infrastructure Request Completed1 day?Thu 1/17/19Thu 1/17/199Hosting Infrastructure14Schedule Data Freeze for Premise Systems1 day?Mon 1/21/19Mon 1/21/19Project Manager,Customer15Schedule WebEx to pull backup copy of premise databases1 day?Tue 1/22/19Tue 1/22/1914Project Manager; Customer16Receive GeoCoded Map Data (from InfoCode or Customer)1 day?Tue 1/22/19Tue 1/22/1914Project Manager17Migrate customer data to Hosted Systems2 days?Tue 1/22/19Wed 1/23/191418Testing & Configuration17 days?Tue 1/1/19Wed 1/23/1919Finalize Customer Configurations0.75 days?Wed 1/23/19Wed 1/23/1917FS-1 dayProject Manager; CustomerProjecProjecProMTW0, '18TaskSplitMilestoneSummaryProject SummaryExternal TasksExternal MilestoneInactive TaskInactive MilestoneInactive SummaryManual TaskDuration-onlyManual Summary RollupManual SummaryStart-onlyFinish-onlyProgressDeadlineVESTA CommunicatorVESTA AlertShared HostingBase TemplateVersion: 1.0.0Last Updated: Thu 10/24/19Page 1© 2019 Vesta Solutions, Inc., a wholly owned subsidiary of Motorola Solutions, Inc. This document is protected by copyright law and international treaties, and is the CONFIDENTIALAND PROPRIETARY information of Vesta Solutions, Inc. 56Exhibit CHosted Project Plan IDTask Name Duration Start Finish Predecessors Resource Names20Final Internal Testing0.25 days?Wed 1/23/19Wed 1/23/1917FS-1 dayProject Manager21Final Customer Testing1 day?Wed 1/23/19Wed 1/23/1917FS-1 day22Coordinate Training Dates (optional)10 days?Tue 1/1/19Mon 1/14/19Training Manager; Customer23Project Close & Transition31 days?Wed 1/23/19Thu 3/7/1924Complete Project Documentation and send Customer Online Notifications1 day?Wed 1/23/19Thu 1/24/1920Project Manager25Decommission existing Premise sysetm and premise DataSync Backup system (typically 30 days from Account Online)30 days?Thu 1/24/19Thu 3/7/1924Project Manager26Transition account from Implemenation to Techncical Support1 day?Wed 1/23/19Thu 1/24/1920MTW0, '18TaskSplitMilestoneSummaryProject SummaryExternal TasksExternal MilestoneInactive TaskInactive MilestoneInactive SummaryManual TaskDuration-onlyManual Summary RollupManual SummaryStart-onlyFinish-onlyProgressDeadlineVESTA CommunicatorVESTA AlertShared HostingBase TemplateVersion: 1.0.0Last Updated: Thu 10/24/19Page 2© 2019 Vesta Solutions, Inc., a wholly owned subsidiary of Motorola Solutions, Inc. This document is protected by copyright law and international treaties, and is the CONFIDENTIALAND PROPRIETARY information of Vesta Solutions, Inc. 57Exhibit CHosted Project Plan 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Exhibit D 58 SELF-DEALING TRANSACTION DISCLOSURE FORM In order to conduct business with the County of Fresno (hereinafter referred to as “County”), members of a contractor’s board of directors (hereinafter referred to as “County Contractor”), must disclose any self-dealing transactions that they are a party to while providing goods, performing services, or both for the County. A self-dealing transaction is defined below: “A self-dealing transaction means a transaction to which the corporation is a party and in which one or more of its directors has a material financial interest” The definition above will be utilized for purposes of completing this disclosure form. INSTRUCTIONS (1) Enter board member’s name, job title (if applicable), and date this disclosure is being made. (2) Enter the board member’s company/agency name and address. (3) Describe in detail the nature of the self-dealing transaction that is being disclosed to the County. At a minimum, include a description of the following: a. The name of the agency/company with which the corporation has the transaction; and b. The nature of the material financial interest in the Corporation’s transaction that the board member has. (4) Describe in detail why the self-dealing transaction is appropriate based on applicable provisions of the Corporations Code. (5) Form must be signed by the board member that is involved in the self-dealing transaction described in Sections (3) and (4). 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Exhibit D 59 (1) Company Board Member Information: Date: (2) Company/Agency Name and Address: (3) Disclosure (Please describe the nature of the self-dealing transaction you are a party to): (4) Explain why this self-dealing transaction is consistent with the requirements of Corporations Code 5233 (a): (5) Authorized Signature Signature Date: