HomeMy WebLinkAboutAgreement A-23-061 with Graviton Consulting Services Inc..pdf Agreement No. 23-061
1 SERVICE AGREEMENT
2 This Service Agreement ("Agreement") is dated February 7, 2023 and is between
3 Graviton Consulting Services, Inc., a California corporation ("Contractor"), and the County of
4 Fresno, a political subdivision of the State of California ("County").
5 Recitals
6 A. The County has a need for maintenance, support, and training services provided by
7 Oracle Cloud Enterprise Performance Management ("Oracle Cloud EPM"). Enterprise
8 Performance Management refers to processes designed to help organizations plan, budget,
9 forecast, and report on business performance, as well as consolidate and finalize financial
10 results.
11 B. The County desires to engage Contractor to perform the Oracle Cloud EPM
12 maintenance, support, and training services, pursuant to the terms and conditions of this
13 Agreement.
14 C. The County previously entered into a potential five-year Purchasing Agreement, No. P-
15 22-051 (Original Agreement) with Contractor, for a total maximum compensation payable of
16 one-hundred ninety-nine thousand dollars ($199,000), effective March 1, 2022, for a potential
17 five-year term, not to exceed February 28, 2027. This Original Agreement was for the
18 implementation and consulting services of the Oracle Cloud EPM.
19 D. The Original Agreement was amended in July 2022 to add additional services, however
20 the contract price did not change. The Original Agreement, as amended, is incorporated herein
21 by Reference.
22 E. The County and Contractor now wish to replace the Original Agreement as amended
23 with this Agreement, subject to approval by the County's Board of Supervisors, which is
24 necessary to allow not only for additional services to be performed by Contractor, but for the
25 increase in the total maximum compensation payable to six-hundred thousand dollars
26 ($600,000). The term will remain a potential five-year maximum and this Agreement will be
27 retroactive to the Original Agreement's effective date of March 2, 2022.
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1
1 The parties therefore agree as follows:
2 Article 1
3 Contractor's Services
4 1.1 Scope of Services. Upon execution of this Agreement, Contractor shall perform all
5 of the services provided in Exhibit A to this Agreement, titled "Scope of Services." Services
6 provided by Contractor prior to the execution of this Contract are described in the Original
7 Agreement, as amended in July 2022.
8 1.2 Representation. The Contractor represents that it is qualified, ready, willing, and
9 able to perform all of the services provided in this Agreement.
10 1.3 Compliance with Laws. The Contractor shall, at its own cost, comply with all
11 applicable federal, state, and local laws and regulations in the performance of its obligations
12 under this Agreement, including but not limited to workers compensation, labor, and
13 confidentiality laws and regulations.
14 1.4 Patent Indemnity. Contractor shall hold County, its officers, agents, and employees,
15 harmless from liability of any nature or kind, including costs and expenses (including attorney's
16 fees and costs), for infringement or use of any copyrighted or uncopyrighted composition, secret
17 process, patented or unpatented invention, article or appliance furnished or used in connection
18 with this Agreement.
19 1.5 Data Security. Contractor shall employ adequate controls and data security
20 measures, both internally and externally, to ensure and protect the confidential information
21 and/or data provided to Contractor by County, thereby preventing 1) the potential loss,
22 misappropriation, and/or inadvertent access, viewing, use or disclosure of County data,
23 including sensitive or personal County information including any and all personal identifying
24 information of County employees 2) abuse of County resources; and/or 3) disruption to County
25 operations.
26 Contractor may not connect to or use County networks/systems via
27 personally owned mobile, wireless, or handheld devices, unless authorized by County for
28 telecommuting purposes and provide a secure connection; up-to-date virus protection and
2
1 mobile devices must have the remote wipe feature enabled. Computers or computer peripherals
2 including mobile storage devices may not be used (County or Contractor device) or brought in
3 for use into County's system(s) without prior authorization from the County's Director of Internal
4 Services/Chief Information Officer and/or designee(s) (CIO).
5 There shall be no storage of County's private, confidential, or sensitive data on any hard-
6 disk drive, portable storage device or remote storage installation, unless encrypted according to
7 advance encryption standards (AES of 128 bit or higher).
8 Contractor shall immediately notify County of any violations, breaches, or potential
9 breaches of security related to County's confidential information, data, and/or data processing
10 equipment which stores or processes County data, internally or externally. County shall provide
11 oversight to Contractor's response to all incidents arising from a possible breach of security
12 related to County's confidential client information. Contractor shall issue any notification to
13 affected individuals as required by law, or as deemed necessary by County, in its sole
14 discretion. Contractor will be responsible for all costs incurred as a result of providing the
15 required notification.
16 1.6 Confidentiality. All services performed by Contractor shall be in strict conformance
17 with all applicable Federal, State of California, and/or local laws and regulations relating to
18 confidentiality, including but not limited to, California Civil Code, California Welfare and
19 Institutions Code, California Health and Safety Code, California Code of Regulations, and the
20 Code of Federal Regulations.
21 1.7 Coordination of Work. Contractor shall coordinate all work with the County
22 Representative ("County Representative") to minimize any interruptions to the normal operation
23 of County operations.
24 1.8 Licensed Programs. Contractor hereby grants County a non-exclusive, royalty-free,
25 perpetual, non-transferable license to use the Licensed Programs ("Licensed Programs") in
26 object code solely for County's internal business purposes and to support County databases
27 and Contractor. Licensed Programs refers to the executable processing programs of licensed
28 information, which is composed of various modules in the licensed software package(s)
3
1 specified in this Agreement. The object code file contains a sequence of machine-readable
2 instructions that is processed by the Central Processing Unit (CPU) in a computer.
3 1.9 Warranties. Contractor warrants that all services performed under this Agreement
4 will conform in all material aspects with the requirements of this Agreement and its
5 specifications. Object code refers to the output, a compiled file, which is produced when the
6 source code is compiled with a C compiler. The object code file contains a sequence of
7 machine-readable instructions that is processed by the CPU in a computer.
8 1.10 Infringement. Contractor further represents and warrants to County that it has the
9 right to grant the licenses granted to County hereunder. Contractor further represents and
10 warrants to County that to the best of Contractor's knowledge, the services provided under this
11 Agreement do not infringe upon or violate the United States patent of rights of any third party
12 and do not infringe upon or violate the copyright, or trade secret right of any third party.
13 1.11 Viruses & Disabling Mechanisms. Contractor shall use commercially-reasonable
14 measures to screen the licensed programs provided in this Agreement, in order to avoid
15 introducing viruses or other destructive programming designed to permit unauthorized access
16 or use by third parties to the software installed on County's systems and/or to disable or
17 damage County's systems. Contractor shall not insert into any of the Licensed Programs
18 provided in this Agreement any code or other device that would have the effect of disabling
19 and/or otherwise shutting down all or any portion of the Licensed Programs. Contractor shall not
20 invoke such code or other device at any time, including upon expiration or termination of this
21 Agreement for any reason.
22 Article 2
23 County's Responsibilities
24 2.1 County shall provide a County representative to represent County, who will work with
25 Contractor to carry out Contractor's obligations under this Agreement. The County
26 Representative will be a County Information Technology Division Manager, and/or their
27 designees. Contractor shall provide a contact person to the County Representative upon
28 execution of this Agreement.
4
1 Article 3
2 Compensation, Invoices, and Payments
3 3.1 The County agrees to pay, and the Contractor agrees to receive, compensation for
4 the performance of its services under this Agreement as described in this section. County
5 agrees to pay Contractor, and Contractor agrees to receive compensation per the rates
6 specified in Exhibit B. In no event shall compensation paid for services performed under this
7 Agreement exceed the maximum compensation payable under Section 3.2 during the term of
8 this Agreement.
9 3.2 Maximum Compensation. The maximum compensation payable to the Contractor
10 under this Agreement shall not exceed six-hundred thousand dollars ($600,000).
11 3.3 The Contractor acknowledges that the County is a local government entity and does
12 so with notice that the County's powers are limited by the California Constitution and by State
13 law, and with notice that the Contractor may receive compensation under this Agreement only
14 for services performed according to the terms of this Agreement and while this Agreement is in
15 effect, and subject to the maximum amount payable under this section. The Contractor further
16 acknowledges that County employees have no authority to pay the Contractor except as
17 expressly provided in this Agreement.
18 3.4 Invoices. The Contractor shall submit monthly invoices to
19 ISDBusinessOffice(o-)fresnocountyca.gc or mailed to County of Fresno, ISD, ATTN: Business
20 Office, 333 W. Pontiac Way, Clovis, CA 93612. The Contractor shall submit each invoice within
21 60 days after the month in which the Contractor performs services and in any case within 60
22 days after the end of the term or termination of this Agreement. Contractor shall only invoice for
23 the milestones completed and expenses incurred.
24 3.5 Payment. The County shall pay each correctly completed and timely submitted
25 invoice within 45 days after receipt. The County shall remit any payment to the Contractor's
26 address specified in the invoice.
27 3.6 Incidental Expenses. The Contractor is solely responsible for all of its costs and
28 expenses that are not specified as payable by the County under this Agreement.
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1 Article 4
2 Term of Agreement
3 4.1 Term. This Agreement is effective on March 1, 2022 and terminates on February 28,
4 2024, except as provided in section 4.2, "Extension," or Article 6, "Termination and Suspension,"
5 below.
6 4.2 Extension. The term of this Agreement may be extended for no more than three,
7 one-year periods only upon written approval of both parties at least 30 days before the first day
8 of the next one-year extension period. The CIO or his or her designee is authorized to sign the
9 written approval on behalf of the County, based on the Contractor's satisfactory performance.
10 The extension of this Agreement by the County is not a waiver or compromise of any default or
11 breach of this Agreement by the Contractor existing at the time of the extension whether or not
12 known to the County.
13 Article 5
14 Notices
15 5.1 Contact Information. The persons and their addresses having authority to give and
16 receive notices provided for or permitted under this Agreement include the following:
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For the County:
18 Director of Internal Services/Chief Information Officer (CIO)
County of Fresno
19 333 W. Pontiac Way
Clovis, CA 93612
20 Email: ISDContracts(a)fresnocountyca.gov
21 For the Contractor:
President
22 Graviton Consulting Services, Inc.
8801 Folsom Blvd Ste 120
23 Sacramento, CA 95826
Phone: (916) 588-2655
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Email: vineet@gravitonconsulting.com
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5.2 Change of Contact Information. Either party may change the information in section
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5.1 by giving notice as provided in section 5.3.
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5.3 Method of Delivery. Each notice between the County and the Contractor provided
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for or permitted under this Agreement must be in writing, state that it is a notice provided under
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1 this Agreement, and be delivered either by personal service, by first-class United States mail, by
2 an overnight commercial courier service, or by Portable Document Format (PDF) document
3 attached to an email.
4 (A) A notice delivered by personal service is effective upon service to the recipient.
5 (B) A notice delivered by first-class United States mail is effective three County
6 business days after deposit in the United States mail, postage prepaid, addressed to the
7 recipient.
8 (C)A notice delivered by an overnight commercial courier service is effective one
9 County business day after deposit with the overnight commercial courier service,
10 delivery fees prepaid, with delivery instructions given for next day delivery, addressed to
11 the recipient.
12 (D)A notice delivered by PDF document attached to an email is effective when
13 transmission to the recipient is completed (but, if such transmission is completed outside
14 of County business hours, then such delivery is deemed to be effective at the next
15 beginning of a County business day), provided that the sender maintains a machine
16 record of the completed transmission.
17 5.4 Claims Presentation. For all claims arising from or related to this Agreement,
18 nothing in this Agreement establishes, waives, or modifies any claims presentation
19 requirements or procedures provided by law, including the Government Claims Act (Division 3.6
20 of Title 1 of the Government Code, beginning with section 810).
21 Article 6
22 Termination and Suspension
23 6.1 Termination for Non-Allocation of Funds. The terms of this Agreement are
24 contingent on the approval of funds by the appropriating government agency. If sufficient funds
25 are not allocated, then the County, upon at least 30 days' advance written notice to the
26 Contractor, may:
27 (A) Modify the services provided by the Contractor under this Agreement; or
28 (B) Terminate this Agreement.
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1 6.2 Termination for Breach.
2 (A) Upon determining that a breach (as defined in paragraph (C) below) has
3 occurred, the County may give written notice of the breach to the Contractor. The written
4 notice may suspend performance under this Agreement, and must provide at least 30
5 days for the Contractor to cure the breach.
6 (B) If the Contractor fails to cure the breach to the County's satisfaction within the
7 time stated in the written notice, the County may terminate this Agreement immediately.
8 (C) For purposes of this section, a breach occurs when, in the determination of the
9 County, the Contractor has:
10 (1) Obtained or used funds illegally or improperly;
11 (2) Failed to comply with any part of this Agreement;
12 (3) Submitted a substantially incorrect or incomplete report to the County; or
13 (4) Improperly performed any of its obligations under this Agreement.
14 6.3 Termination without Cause. In circumstances other than those set forth above, the
15 CIO may terminate this Agreement by giving at least 30 days advance written notice to the
16 Contractor.
17 6.4 No Penalty or Further Obligation. Any termination of this Agreement by the County
18 under this Article 6 is without penalty to or further obligation of the County.
19 6.5 County's Rights upon Termination. Upon termination for breach under this Article
20 6, the County may demand repayment by the Contractor of any monies disbursed to the
21 Contractor under this Agreement that, in the County's sole judgment, were not expended in
22 compliance with this Agreement. The Contractor shall promptly refund all such monies upon
23 demand. This section survives the termination of this Agreement.
24 Article 7
25 Independent Contractor
26 7.1 Status. In performing under this Agreement, the Contractor, including its officers,
27 agents, employees, and volunteers, is at all times acting and performing as an independent
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1 contractor, in an independent capacity, and not as an officer, agent, servant, employee, joint
2 venturer, partner, or associate of the County.
3 7.2 Verifying Performance. The County has no right to control, supervise, or direct the
4 manner or method of the Contractor's performance under this Agreement, but the County may
5 verify that the Contractor is performing according to the terms of this Agreement.
6 7.3 Benefits. Because of its status as an independent contractor, the Contractor has no
7 right to employment rights or benefits available to County employees. The Contractor is solely
8 responsible for providing to its own employees all employee benefits required by law. The
9 Contractor shall save the County harmless from all matters relating to the payment of
10 Contractor's employees, including compliance with Social Security withholding and all related
11 regulations.
12 7.4 Services to Others. The parties acknowledge that, during the term of this
13 Agreement, the Contractor may provide services to others unrelated to the County.
14 Article 8
15 Indemnity and Defense
16 8.1 Indemnity. The Contractor shall indemnify and hold harmless and defend the
17 County (including its officers, agents, employees, and volunteers) against all claims, demands,
18 injuries, damages, costs, expenses (including attorney fees and costs), fines, penalties, and
19 liabilities of any kind to the County, the Contractor, or any third party that arise from or relate to
20 the performance or failure to perform by the Contractor (or any of its officers, agents,
21 subcontractors, or employees) under this Agreement. The County may conduct or participate in
22 its own defense without affecting the Contractor's obligation to indemnify and hold harmless or
23 defend the County.
24 8.2 Survival. This Article 8 survives the termination of this Agreement.
25 Article 9
26 Insurance
27 9.1 The Contractor shall comply with all the insurance requirements in Exhibit D to this
28 Agreement.
9
1 Article 10
2 Confidentiality and Ownership of Data
3 10.1 Confidentiality. The County and the Contractor may have access to information that
4 is a-trade secret, as defined under California Public Records Act (California Government Code,
5 Title 1, Division 10, Chapter 3, beginning with section 7920.200) ("CPRA"). This information may
6 include, but is not limited to, County data or other data, including personal identification
7 information of individuals, as well as the Software, technical know-how, technical specifications,
8 and software code (collectively referred to herein as "Information").
9 10.2 Each party shall use the other's Information only to perform its obligations under and
10 for the purposes of this Agreement. Neither party shall use the Information of the other for the
11 benefit of a third party. Both County and Contractor shall maintain the confidentiality of all
12 Information in the same manner in which each protects its own information of like kind, but in no
13 event shall either County or Contractor take less than reasonable precautions to prevent the
14 unauthorized disclosure or use of the other's Information.
15 10.3 Upon termination of the Agreement, or immediately upon a party's request, each
16 party shall return to the other all Information of the other in its possession. All provisions of the
17 Agreement relating to confidentiality, ownership, and limitations of liability shall survive the
18 termination of the Agreement.
19 10.4 Ownership of Data. The parties acknowledge and agree that all the County's data
20 ("County's Data") is and shall remain the exclusive property of the County. The Contractor
21 acknowledges that in performing its obligations under the Agreement it may have access to the
22 County's networks and Data. The Contractor shall use and access such Data only as necessary
23 for the purpose of providing the services and supporting the Software as agreed.
24 Article 11
25 Inspections, Audits, and Public Records
26 11.1 Inspection of Documents. The Contractor shall make available to the County, and
27 the County may examine at any time during business hours and as often as the County deems
28 necessary, all of the Contractor's records and data with respect to the matters covered by this
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1 Agreement, excluding attorney-client privileged communications. The Contractor shall, upon
2 request by the County, permit the County to audit and inspect all of such records and data to
3 ensure the Contractor's compliance with the terms of this Agreement.
4 11.2 State Audit Requirements. If the compensation to be paid by the County under this
5 Agreement exceeds $10,000, the Contractor is subject to the examination and audit of the
6 California State Auditor, as provided in Government Code section 8546.7, for a period of three
7 years after final payment under this Agreement. This section survives the termination of this
8 Agreement.
9 11.3 Public Records. The County is not limited in any manner with respect to its public
10 disclosure of this Agreement or any record or data that the Contractor may provide to the
11 County. The County's public disclosure of this Agreement or any record or data that the
12 Contractor may provide to the County may include but is not limited to the following:
13 (A) The County may voluntarily, or upon request by any member of the public or
14 governmental agency, disclose this Agreement to the public or such governmental
15 agency.
16 (B) The County may voluntarily, or upon request by any member of the public or
17 governmental agency, disclose to the public or such governmental agency any record or
18 data that the Contractor may provide to the County, unless such disclosure is prohibited
19 by court order.
20 (C)This Agreement, and any record or data that the Contractor may provide to the
21 County, is subject to public disclosure under the Ralph M. Brown Act (California
22 Government Code, Title 5, Division 2, Part 1, Chapter 9, beginning with section 54950).
23 (D)This Agreement, and any record or data that the Contractor may provide to the
24 County, is subject to public disclosure as a public record under the CPRA (California
25 Government Code, Title 1, Division 10, Chapter 3, beginning with section 7920.200)
26 ("CPRA").
27 (E) This Agreement, and any record or data that the Contractor may provide to the
28 County, is subject to public disclosure as information concerning the conduct of the
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1 people's business of the State of California under California Constitution, Article 1,
2 section 3, subdivision (b).
3 (F) Any marking of confidentiality or restricted access upon or otherwise made with
4 respect to any record or data that the Contractor may provide to the County shall be
5 disregarded and have no effect on the County's right or duty to disclose to the public or
6 governmental agency any such record or data, with the exception of trade secret
7 information recognized under CPRA California Public Records Act (California
8 Government Code, Title 1, Division 10, Chapter 3, beginning with section 7920.200.
9 11.4 Public Records Act Requests. If the County receives a written or oral request
10 under the CPRA to publicly disclose any record that is in the Contractor's possession or control,
11 and which the County has a right, under any provision of this Agreement or applicable law, to
12 possess or control, then the County may demand, in writing, that the Contractor deliver to the
13 County, for purposes of public disclosure, the requested records that may be in the possession
14 or control of the Contractor. Within five business days after the County's demand, the
15 Contractor shall (a) deliver to the County all of the requested records that are in the Contractor's
16 possession or control, together with a written statement that the Contractor, after conducting a
17 diligent search, has produced all requested records that are in the Contractor's possession or
18 control, or (b) provide to the County a written statement that the Contractor, after conducting a
19 diligent search, does not possess or control any of the requested records. The Contractor shall
20 cooperate with the County with respect to any County demand for such records. If the
21 Contractor wishes to assert that any specific record or data is exempt from disclosure under the
22 CPRA or other applicable law, it must deliver the record or data to the County and assert the
23 exemption by citation to specific legal authority within the written statement that it provides to
24 the County under this section. The Contractor's assertion of any exemption from disclosure is
25 not binding on the County, but the County will give at least 10 days' advance written notice to
26 the Contractor before disclosing any record subject to the Contractor's assertion of exemption
27 from disclosure. The Contractor shall indemnify the County for any court-ordered award of costs
28 or attorney's fees under the CPRA that results from the Contractor's delay, claim of exemption,
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1 failure to produce any such records, or failure to cooperate with the County with respect to any
2 County demand for any such records.
3 Article 12
4 Disclosure of Self-Dealing Transactions
5 12.1 Applicability. This Article 12 applies if the Contractor is operating as a corporation,
6 or changes its status to operate as a corporation.
7 12.2 Duty to Disclose. If any member of the Contractor's board of directors is party to a
8 self-dealing transaction, he or she shall disclose the transaction by completing and signing a
9 "Self-Dealing Transaction Disclosure Form" (Exhibit C to this Agreement) and submitting it to
10 the County before commencing the transaction or immediately after.
11 12.3 Definition. "Self-dealing transaction" means a transaction to which the Contractor is
12 a party and in which one or more of its directors, as an individual, has a material financial
13 interest.
14 Article 13
15 General Terms
16 13.1 County. The County of Fresno, State of California, as represented by the Fresno
17 County Board of Supervisors.
18 13.2 Director of Internal Services/Chief Information Officer (CIO). Acting either
19 directly or through properly authorized agents, such agents acting within the scope of the
20 particular duties entrusted to them in this Agreement.
21
22 13.3 Modification. Except as provided in Article 6, "Termination and Suspension," this
23 Agreement may not be modified, and no waiver is effective, except by written agreement signed
24 by both parties. The Contractor acknowledges that County employees have no authority to
25 modify this Agreement except as expressly provided in this Agreement.
26 13.4 Non-Assignment. Neither party may assign its rights or delegate its obligations
27 under this Agreement without the prior written consent of the other party.
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1 13.5 Governing Law. The laws of the State of California govern all matters arising from
2 or related to this Agreement.
3 13.6 Jurisdiction and Venue. This Agreement is signed and performed in Fresno
4 County, California. Contractor consents to California jurisdiction for actions arising from or
5 related to this Agreement, and, subject to the Government Claims Act, all such actions must be
6 brought and maintained in Fresno County.
7 13.7 Severability. If anything in this Agreement is found by a court of competent
8 jurisdiction to be unlawful or otherwise unenforceable, the balance of this Agreement remains in
9 effect, and the parties shall make best efforts to replace the unlawful or unenforceable part of
10 this Agreement with lawful and enforceable terms intended to accomplish the parties' original
11 intent.
12 13.8 Nondiscrimination. During the performance of this Agreement, the Contractor shall
13 not unlawfully discriminate against any employee or applicant for employment, or recipient of
14 services, because of race, religious creed, color, national origin, ancestry, physical disability,
15 mental disability, medical condition, genetic information, marital status, sex, gender, gender
16 identity, gender expression, age, sexual orientation, military status or veteran status pursuant to
17 all applicable State of California and federal statutes and regulation.
18 13.9 No Waiver. Payment, waiver, or discharge by the County of any liability or obligation
19 of the Contractor under this Agreement on any one or more occasions is not a waiver of
20 performance of any continuing or other obligation of the Contractor and does not prohibit
21 enforcement by the County of any obligation on any other occasion.
22 13.10 Entire Agreement. This Agreement, which supersedes the Original Agreement as
23 amended, including its exhibits, is the entire agreement between the Contractor and the County
24 with respect to the subject matter of this Agreement, and it supersedes all previous negotiations,
25 proposals, commitments, writings, advertisements, publications, and understandings of any
26 nature unless those things are expressly included in this Agreement. If there is any
27 inconsistency between the terms of this Agreement without its exhibits and the terms of the
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1 exhibits, then the inconsistency will be resolved by giving precedence first to the terms of this
2 Agreement without its exhibits, and then to the terms of the exhibits.
3 13.11 No Third-Party Beneficiaries. This Agreement does not and is not intended to
4 create any rights or obligations for any person or entity except for the parties.
5 13.12 Authorized Signature. The Contractor represents and warrants to the County that:
6 (A) The Contractor is duly authorized and empowered to sign and perform its
7 obligations under this Agreement.
8 (B) The individual signing this Agreement on behalf of the Contractor is duly
9 authorized to do so and his or her signature on this Agreement legally binds the
10 Contractor to the terms of this Agreement.
11 13.13 Electronic Signatures. The parties agree that this Agreement may be executed by
12 electronic signature as provided in this section.
13 (A) An "electronic signature" means any symbol or process intended by an individual
14 signing this Agreement to represent their signature, including but not limited to (1) a
15 digital signature; (2) an electronically scanned and transmitted (for example by PDF
16 document) version of an original handwritten signature.
17 (B) Each electronic signature affixed or attached to this Agreement (1) is deemed
18 equivalent to a valid original handwritten signature of the person signing this Agreement
19 for all purposes, including but not limited to evidentiary proof in any administrative or
20 judicial proceeding, and (2) has the same force and effect as the valid original
21 handwritten signature of that person.
22 (C)The provisions of this section satisfy the requirements of Civil Code section
23 1633.5, subdivision (b), in the Uniform Electronic Transaction Act (Civil Code, Division 3,
24 Part 2, Title 2.5, beginning with section 1633.1).
25 (D) Each party using a digital signature represents that it has undertaken and
26 satisfied the requirements of Government Code section 16.5, subdivision (a),
27 paragraphs (1) through (5), and agrees that each other party may rely upon that
28 representation.
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1 (E) This Agreement is not conditioned upon the parties conducting the transactions
2 under it by electronic means and either party may sign this Agreement with an original
3 handwritten signature.
4 13.14 Counterparts. This Agreement may be signed in counterparts, each of which is an
5 original, and all of which together constitute this Agreement.
6 [SIGNATURE PAGE FOLLOWS]
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1 The parties are signing this Agreement on the date stated in the introductory clause.
2
GRAVITON CONSULTING SERVICES, COUNTY OF FRESNO
3 INC.
4
Vineet Srivastava,
5 President, Graviton Consulting Services, Inc. Sal W
t o, hairman of the Board of
Supor he County of Fresno
6 8801 Folsom Blvd Ste 120
Sacramento, CA 95826 Attest:
7 Bernice E. Seidel
Clerk of the Board of Supervisors
8 County of Fresno, State of California
9
By:
10 Deputy
11 For accounting use only:
12 Org No.: 8905
Account No.: 7311
13 Fund No.: 1020
Subclass No.:
14 10000
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Exhibit A
1 Part I - Scope of Services
2 A.1. License Term. The term of the Software license is perpetual. However, the
3 County shall be entitled to Software updates, upgrades, enhancements, new versions, bug
4 fixes, other improvements to the Software and access to the Software, and to technical
5 assistance relating to the Software, for the Term described in this Agreement.
6 A.2. Contractor Intellectual Property Rights. The license is nontransferable and
7 Non-Assignable without the prior, written permission of the Contractor. The County may not
8 modify, enhance, or create derivative works, decompile, disassemble, or reverse engineer the
9 Software, or make copies other than as authorized in this Agreement. All rights not licensed are
10 reserved to the Contractor and no rights may be implied. The Contractor retains all intellectual
11 property rights in the Software, and the County agrees to implement software protection
12 measures designed to prevent unauthorized use and copying of the Software.
13 A.3. Notice to Proceed. County shall issue a Notice to Proceed for each Project,
14 mutually specified by the Parties, and shall issue any required subsequent Change Requests for
15 each Project.
16 A.4. Contractor Access. The County will ensure that Contractor's consultants
17 (employed by Contractor) have access to County's network and systems as required, subject to
18 this Agreement only.
19 A.5. Project Deadlines. It is understood and agreed by both parties to this
20 Agreement that if all the work specified or indicated in the Project is not completed within the
21 specified time frames set forth in the Project, or within such time limits as extended, County may
22 elect to terminate without cause as discussed in section 6.3.
23 A.6. Change Requests. Any Change Request to a Project will be jointly reviewed by
24 the County and Contractor and will be executed upon mutual approval.
25 A.7. Acceptance. The Software is Accepted upon the earlier of when (a) the County
26 determines that the Software performs in accordance with its request for services; and (b) the
27 Software has been installed for 30 days and the County has not advised the Contractor that the
28 Software fails. If the Software does not so perform for reasons inherent in the Software (and not,
A-1
Exhibit A
1 for example, third party hardware, software, equipment, or system configuration), the Contractor
2 shall promptly, and not later than fifteen (15) days, replace the Software with materially-
3 conforming Software. The County shall test the revised Software and, unless the parties agree
4 otherwise, the County may either (a) accept the Software as conforming, (b) accept the
5 Software as is, or (c) reject the Software. If the County rejects the Software, it shall delete the
6 Software from its computing system, shall certify in writing such deletion, and the Contractor
7 shall refund all Software license fees paid by the County within forty-five (45) days. The County
8 shall have sixty (60) days after initial delivery to finally Accept or reject the Software. The
9 foregoing is the sole remedy available in the event of nonconforming Software.
10 Part II — Scope of Services
11 A.8. Monthly Managed Services Support. The cost for Monthly Managed Services
12 Support include the following and also include the scope of services described on Attachment
13 B..
14 . As needed "Level 2" support for the County, provided per the County's
15 direction. Levels of support are defined in section A.14. below.
16 . 34 hours of professional services per month, included in the Monthly
17 Managed Services Support. The available hours may be used in any
18 combination for the Workforce, Line item & Capital, and Narrative
19 modules.
20 . Unused hours will rollover into the subsequent month.
21 . Unused hours will expire at the end of the contract period.
22 . Access to Graviton's software tools: SharePoint, Smartsheet, and
23 LearnUpon LMS.
24 Contractor shall provide the following services for the term of the Agreement.
25 . Updating any additional job-aids as per County's approval, and
26 maintenance of the Learning Management System (LMS).
27 . Any additional training sessions conducted as per County's direction.
28
A-2
Exhibit A
1 ID ModuleDescription2 kEL Hours
IV
3 1.1 Workforce Monthly managed services 168 The hours assigned to
4 1.2 Line item Monthly managed services 120 any module may be
5 & Capital repurposed to the other
6 1.3 Narrative Monthly managed services 120 modules upon County
7 approval.
8 TOTAL 408
9
10 A.9. Additional Scope Items. Additional Scope Items will include the following
11 Enhancements. Contractor shall provide three hundred seventy-four hours (374). Cost for
12 Additional Scope Items are on Attachment B.
13
14 •
15 2.1 General ChartField Security - Budget string 6
16 info will be locked (no incorrect
17 org/fund/subclass combinations)
18 2.2 Planning Improve Transfers-In/Out process 14
19 2.3 Planning Dimensions - Special Revenue - This is included in the
20 Funds estimate for ID No. 2.2.
21 2.4 Workforce Do not use Requested Version 1
22 (Initial WF & Recommended only
23 2.5 Workforce Strip down options for Position 92 The effort estimate also
24 Status includes one training
25 session of 4 hours, and
26 creation of new job aids.
27 2.6 Workforce Seek solution to ensure any - This is included in the
28 changes to FTE/salary info estimate for ID No. 2.5.
A-3
Exhibit A
1 Descri�t�ionpEstimated Comments hEL -1 Hours
3 populate Projected Compensation
4 Reports immediately after
5 "Calculate Compensation/Push"
6 process
7 2.7 Workforce Updates to existing job aids for 4 This includes updates to
8 the Dimensions and Forms the 2 job aids.
9 2.8 Workforce Modify Projected Compensation 6
10 reports to include "Other
11 Expenses" that are not position-
12 specific
13 2.9 Workforce Split funded positions 24
14 2.10 Workforce Research default salaries and 60
15 implement changes
16 2.11 Narrative Separate Narrative File into 96
17 smaller report packages to
18 increase processing speed both in
19 online portal and in Word
20 2.12 Narrative Use Fiscal Summary & Regular 36
21 Salaries REPORTS instead of
22 embedded tables (eliminates
23 linking issues)
24 2.13 Narrative Fix the FS FTE Position Summary 6
25 to have Current for the second
26 column instead of Adopted
27 2.14 Narrative Look into RS version (mainly with 24
28 Requested vs Recommended)
A-4
Exhibit A
1 Description2
3 2.15 Narrative Org 8210 General 2 No changes from
4 Reserves/Contingencies Graviton are expected
5 for this. The effort
6 estimate is to support
7 the County's testing.
8 2.16 Narrative Remove the Review and Sign off - This is included in the
9 phase. estimate for ID No. 2.9.
10 2.17 Narrative Add 1191 to the Special Revenue 1 The effort to make the
11 Fund hierarchy in FRC change is negligible.
12 Departments by Fund. The effort estimate is to
13 support the County's
14 testing.
15 2.18 Narrative Review Secondary Hierarchy for 2 Graviton recommends
16 departments. that this task be done by
17 the County—to make
18 sure that all depts and
19 funds are in all
20 secondary hierarchies
21 they should be. The
22 effort estimate is only to
23 support the County in
24 discussing the
25 approach.
26 TOTAL 374
27
28 A.10. Additional Training. Additional Training includes the following. Costs are
identified on Attachment B. Contractor shall provide forty-two hours (42).
A-5
Exhibit A
1
. .
2
L16. Hours
4 3.1 Workforce Graviton will conduct 4 generic 32
"train the trainer" sessions, fo
5 r 4
hours each
6
7 3.2 Line item Graviton will conduct 1 generic 6
8 & Capital "train the trainer" session, for 3
hours
9
10 3.3 Narrative Graviton will conduct 1 generic 4
11 "train the trainer" session, for 2
12 hours
13 TOTAL 42
14 A.11. Software. Contractor shall provide the following software for the entire duration
15
of this Agreement.
16
• LMS license (Graviton's LearnUpon subscription);
17
• SharePoint site for maintaining project documents; and
18
19 • Smartsheet for tracking issues status.
20 At the end of each month, Graviton will provide a report with the following level of detail:
21 • Tasks performed in the month;
22 • Hours used in the month by category; and
23 • Balance hours available by category.
24
25 A.12. Out of Scope. Level 0, Level 1, and Level 3 support are Out of Scope, and at an
26 additional cost to County. Implementation of any new functionality introduced in the quarterly
27 releases is also Out of Scope. Cost for Out of Scope is on Attachment B.
28
A-6
Exhibit A
1
2 Level 0 - Self-help, via Oracle documentation and job-aids
3 Level 1 - Phone support/ helpdesk services, e.g., network password resets
4 Level 2 - Account maintenance for Oracle Cloud EPM or Graviton LMS:
unlock accounts, provision new accounts, manage application
5 security
6 - Help with any system functionality/transactions
- Technical or Application support for issues reported
7
Level 3 - Implementation of new features
8 - Technical development, e.g., new interfaces
- Enhancements to existing functionality
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
A-7
Exhibit B
1 Compensation
2 The Contractor will be compensated for performance of its services under this
3 Agreement as provided in this Exhibit B. The Contractor is not entitled to any compensation
4 except as expressly provided in this Exhibit B.
5 B.1. Monthly Managed Services Support. All professional fees related to the
6 Monthly Managed Services Support shall be on a fixed-price basis, which is sixty-one thousand
7 two hundred dollars ($61,200). The payment milestones for these services are as follows:
8 Milestone Id Description Amount
9 1 Monthly managed services — month 1 $5,100
10 2 Monthly managed services — month 2 $5,100
11 3 Monthly managed services — month 3 $5,100
12 4 Monthly managed services — month 4 $5,100
13 5 Monthly managed services — month 5 $5,100
14 6 Monthly managed services — month 6 $5,100
15 7 Monthly managed services — month 7 $5,100
16 8 Monthly managed services— month 8 $5,100
17 9 Monthly managed services — month 9 $5,100
18 10 Monthly managed services— month 10 $5,100
19 11 Monthly managed services — month 11 $5,100
20 12 Monthly managed services— month 12 $5,100
21 TOTAL $61,200
22
23
B.2. Additional Scope Items & Additional Training. All professional fees related to
24
the Additional Scope & Additional Training shall be on a fixed-price basis, which is fifty-seven
25
thousand five hundred ninety-six dollars ($57,596). The payment milestones for these services
26
are as follows:
27
28
B-1
Exhibit B
2 13 Enhancements — Development & unit testing complete $2,100
3 General & Planning
14 Enhancements — UAT complete $600
4 General & Planning
15 Enhancements — Production deployment $300
5 General & Planning
16 Enhancements — Development & unit testing complete $19,635
6 Workforce
7 17 Enhancements — UAT complete $5,610
Workforce
8 18 Enhancements — Production deployment $2,805
Workforce
9 19 Enhancements — Development & unit testing complete $14,613
Narrative
10 20 Enhancements — UAT complete $4,175
Narrative
11 21 Enhancements — Production deployment $2,088
12 Narrative
22 Additional Training Training sessions complete $4,320
13 —Workforce
23 Additional Training Training sessions complete $810
14 — Lineitem & Capital
24 Additional Training Training sessions complete $540
15 — Narrative
16 TOTAL $57,596
17
18 113.3. Out of Scope. Contractor will provide any additional services outside of the
19 scope of work on a Time and Materials basis, as per the following table. Such services will be
20 provided upon the County's request and approval by the County Board of Supervisors.
21 d7me
22 Project Manager $150/hour
23 Oracle Cloud Functional Consultant $150/hour
24 Oracle Cloud EPM Narrative Reporting $125/hour
25 Oracle Cloud Technical Consultant $125/hour
26
27 113.4. Travel. The estimated costs provided above do not include any travel estimates.
28 Any onsite services will be provided only upon County's prior written approval and charged at
actuals as per the County's policies.
B-2
Exhibit B
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-3
Exhibit C
Self-Dealing Transaction Disclosure Form
In order to conduct business with the County of Fresno ("County"), members of a
contractor's board of directors ("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 used 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.
The form must be signed by the board member that is involved in the self-dealing
transaction described in Sections (3) and (4).
C-1
Exhibit C
(1) Company Board Member Information:
Name: Date:
Job Title:
(2) Company/Agency Name and Address:
(3) Disclosure (Please describe the nature of the self-dealing transaction you are a
party to)
(4) Explain why this self-dealing transaction is consistent with the requirements of
Corporations Code § 5233 (a)
(5) Authorized Signature
Signature: Date:
C-2
Exhibit D
Insurance Requirements
1. Required Policies
Without limiting the County's right to obtain indemnification from the Contractor or any third
parties, Contractor, at its sole expense, shall maintain in full force and effect the following
insurance policies throughout the term of this Agreement.
(A) Commercial General Liability. Commercial general liability insurance with limits of not
less than Two Million Dollars ($2,000,000) per occurrence and an annual aggregate of
Four Million Dollars ($4,000,000). This policy must be issued on a per occurrence basis.
Coverage must include products, completed operations, property damage, bodily injury,
personal injury, and advertising injury. The Contractor shall obtain an endorsement to
this policy naming the County of Fresno, its officers, agents, employees, and volunteers,
individually and collectively, as additional insureds, but only insofar as the operations
under this Agreement are concerned. Such coverage for additional insureds will apply as
primary insurance and any other insurance, or self-insurance, maintained by the County
is excess only and not contributing with insurance provided under the Contractor's
policy.
(B) Automobile Liability. Automobile liability insurance with limits of not less than One
Million Dollars ($1,000,000) per occurrence for bodily injury and for property damages.
Coverage must include any auto used in connection with this Agreement.
(C)Workers Compensation. Workers compensation insurance as required by the laws of
the State of California with statutory limits.
(D) Employer's Liability. Employer's liability insurance with limits of not less than One
Million Dollars ($1,000,000) per occurrence for bodily injury and for disease.
(E) Professional Liability. Professional liability insurance with limits of not less than One
Million Dollars ($1,000,000) per occurrence and an annual aggregate of Three Million
Dollars ($3,000,000). If this is a claims-made policy, then (1) the retroactive date must
be prior to the date on which services began under this Agreement; (2) the Contractor
shall maintain the policy and provide to the County annual evidence of insurance for not
less than five years after completion of services under this Agreement; and (3) if the
policy is canceled or not renewed, and not replaced with another claims-made policy
with a retroactive date prior to the date on which services begin under this Agreement,
then the Contractor shall purchase extended reporting coverage on its claims-made
policy for a minimum of five years after completion of services under this Agreement.
(F) Molestation Liability. Sexual abuse/ molestation liability insurance with limits of not
less than Two Million Dollars ($2,000,000) per occurrence, with an annual aggregate of
Four Million Dollars ($4,000,000). This policy must be issued on a per occurrence basis.
(G)Technology Professional Liability (Errors and Omissions). Technology professional
liability (errors and omissions) insurance with limits of not less than Two Million Dollars
($2,000,000) per occurrence and in the aggregate. Coverage must encompass all of the
Contractor's obligations under this Agreement, including but not limited to claims
involving Cyber Risks.
D-1
Exhibit D
(H) Cyber Liability. Cyber liability insurance with limits of not less than Two Million Dollars
($2,000,000) per occurrence. Coverage must include claims involving Cyber Risks. The
cyber liability policy must be endorsed to cover the full replacement value of damage to,
alteration of, loss of, or destruction of intangible property (including but not limited to
information or data) that is in the care, custody, or control of the Contractor.
Definition of Cyber Risks. "Cyber Risks" include but are not limited to (i) Security
Breach, which may include Disclosure of Personal Information to an Unauthorized Third
Party; (ii) data breach; (iii) breach of any of the Contractor's obligations under section 1.5
of this Agreement; (iv) system failure; (v) data recovery; (vi) failure to timely disclose
data breach or Security Breach; (vii) failure to comply with privacy policy; (viii) payment
card liabilities and costs; (ix) infringement of intellectual property, including but not
limited to infringement of copyright, trademark, and trade dress; (x) invasion of privacy,
including release of private information; (xi) information theft; (xii) damage to or
destruction or alteration of electronic information; (xiii) cyber extortion; (xiv) extortion
related to the Contractor's obligations under this Agreement regarding electronic
information, including Personal Information; (xv)fraudulent instruction; (xvi) funds
transfer fraud; (xvii) telephone fraud; (xviii) network security; (xix) data breach response
costs, including Security Breach response costs; (xx) regulatory fines and penalties
related to the Contractor's obligations under this Agreement regarding electronic
information, including Personal Information; and (xxi) credit monitoring expenses.
2. Additional Requirements
(A) Verification of Coverage. Within 30 days after the Contractor signs this Agreement,
and at any time during the term of this Agreement as requested by the County's Risk
Manager or the County Administrative Office, the Contractor shall deliver, or cause its
broker or producer to deliver, to the County Risk Manager, at 2220 Tulare Street, 16th
Floor, Fresno, California 93721, or HRRiskManagement@fresnocountyca.gov, and by
mail or email to the person identified to receive notices under this Agreement,
certificates of insurance and endorsements for all of the coverages required under this
Agreement.
(i) Each insurance certificate must state that: (1) the insurance coverage has been
obtained and is in full force; (2) the County, its officers, agents, employees, and
volunteers are not responsible for any premiums on the policy; and (3) the
Contractor has waived its right to recover from the County, its officers, agents,
employees, and volunteers any amounts paid under any insurance policy
required by this Agreement and that waiver does not invalidate the insurance
policy.
(ii) The commercial general liability insurance certificate must also state, and include
an endorsement, that the County of Fresno, its officers, agents, employees, and
volunteers, individually and collectively, are additional insureds insofar as the
operations under this Agreement are concerned. The commercial general liability
insurance certificate must also state that the coverage shall apply as primary
insurance and any other insurance, or self-insurance, maintained by the County
shall be excess only and not contributing with insurance provided under the
Contractor's policy.
D-2
Exhibit D
(iii) The automobile liability insurance certificate must state that the policy covers any
auto used in connection with this Agreement.
(iv) The professional liability insurance certificate, if it is a claims-made policy, must
also state the retroactive date of the policy, which must be prior to the date on
which services began under this Agreement.
(v) The technology professional liability insurance certificate must also state that
coverage encompasses all of the Contractor's obligations under this Agreement,
including but not limited to claims involving Cyber Risks, as that term is defined in
this Agreement.
(vi) The cyber liability insurance certificate must also state that it is endorsed, and
include an endorsement, to cover the full replacement value of damage to,
alteration of, loss of, or destruction of intangible property (including but not limited
to information or data) that is in the care, custody, or control of the Contractor.
(B) Acceptability of Insurers. All insurance policies required under this Agreement must be
issued by admitted insurers licensed to do business in the State of California and
possessing at all times during the term of this Agreement an A.M. Best, Inc. rating of no
less than A: VI I.
(C) Notice of Cancellation or Change. For each insurance policy required under this
Agreement, the Contractor shall provide to the County, or ensure that the policy requires
the insurer to provide to the County, written notice of any cancellation or change in the
policy as required in this paragraph. For cancellation of the policy for nonpayment of
premium, the Contractor shall, or shall cause the insurer to, provide written notice to the
County not less than 10 days in advance of cancellation. For cancellation of the policy
for any other reason, and for any other change to the policy, the Contractor shall, or shall
cause the insurer to, provide written notice to the County not less than 30 days in
advance of cancellation or change. The County in its sole discretion may determine that
the failure of the Contractor or its insurer to timely provide a written notice required by
this paragraph is a breach of this Agreement.
(D) County's Entitlement to Greater Coverage. If the Contractor has or obtains insurance
with broader coverage, higher limits, or both, than what is required under this
Agreement, then the County requires and is entitled to the broader coverage, higher
limits, or both. To that end, the Contractor shall deliver, or cause its broker or producer
to deliver, to the County's Risk Manager certificates of insurance and endorsements for
all of the coverages that have such broader coverage, higher limits, or both, as required
under this Agreement.
(E) Waiver of Subrogation. The Contractor waives any right to recover from the County, its
officers, agents, employees, and volunteers any amounts paid under the policy of
worker's compensation insurance required by this Agreement. The Contractor is solely
responsible to obtain any policy endorsement that may be necessary to accomplish that
waiver, but the Contractor's waiver of subrogation under this paragraph is effective
whether or not the Contractor obtains such an endorsement.
D-3
Exhibit D
(F) County's Remedy for Contractor's Failure to Maintain. If the Contractor fails to keep
in effect at all times any insurance coverage required under this Agreement, the County
may, in addition to any other remedies it may have, suspend or terminate this
Agreement upon the occurrence of that failure, or purchase such insurance coverage,
and charge the cost of that coverage to the Contractor. The County may offset such
charges against any amounts owed by the County to the Contractor under this
Agreement.
(G)Subcontractors. The Contractor shall require and verify that all subcontractors used by
the Contractor to provide services under this Agreement maintain insurance meeting all
insurance requirements provided in this Agreement. This paragraph does not authorize
the Contractor to provide services under this Agreement using subcontractors.
D-4