HomeMy WebLinkAboutAgreement A-19-130 with CalSAWS MOU.pdf1741055.5 14448-006 Page 1 of 73
MEMORANDUM OF UNDERSTANDING
BETWEEN
THE CALSAWS CONSORTIUM AND THE COUNTY OF FRESNO
This MEMORANDUM OF UNDERSTANDING ("MOU") is made and entered into by and
between the CalSAWS Consortium ("Consortium"), a California Joint Powers
Authority, and the County of Fresno ("County"), a member county ("Member" or
collectively with other members of the Consortium, "Members") of the Consortium
(collectively, "the Parties").
RECITALS
I.WHEREAS, the Consortium was previously known as the California Statewide
Automated Welfare System Consortium IV ("C-IV Consortium") with thirty-nine (39)
county members (collectively, "39 Counties"); and
II.WHEREAS, Los Angeles County joined the 39 Counties pursuant to the Amended
and Restated Joint Exercise of Powers Agreement ("JPA Agreement"), with an
effective date of September 1, 2017, pursuant to which the name of the Consortium
was changed to the California Automated Consortium Eligibility System
Consortium ("CalACES Consortium"); and
III.WHEREAS, the C-IV Consortium previously entered into an agreement with a
primary vendor ("C-IV Agreement") to provide the necessary equipment and
services for an automated system ("C-IV System") utilized by the 39 Counties; and
IV.WHEREAS, Los Angeles County previously entered into an agreement with a
primary vendor ("LRS Agreement") to provide the necessary equipment and
services for an automated system known as the Leader Replacement System
("LRS"); and
V.WHEREAS, 18 counties ("WCDS Counties") previously entered into an agreement
with a primary vendor ("CalWIN Agreement") to provide the necessary equipment
and services for an automated system known as the CalWORKS Information
Network and related systems ("CalWIN"); and
VI.WHEREAS, the Centers for Medicare and Medicaid Services and the Food and
Nutrition Services agencies of the United States Department of Agriculture directed
California to move to a single statewide automated welfare system ("CalSAWS")
by 2023. In moving toward that goal, the WCDS Counties and the CalACES
Consortium have joined together to form the CalSAWS Consortium, pursuant to
the JPA Agreement; and
VII.WHEREAS, Los Angeles County will continue to use the LRS, the 39 Counties will
continue to use the C-IV System, and the WCDS Counties will continue to use
CalWIN until the migration of the Members to CalSAWS is complete; and
Agreement No. 19-130
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VIII. WHEREAS, the purpose of this MOU is to delineate the areas of understanding
and agreement among the Consortium and the Members regarding matters related
to the administration and fulfillment of the Consortium’s purpose; and
IX. WHEREAS, this MOU is conditioned on the Consortium entering into the same
MOU terms and conditions with all other Members, and supersedes all prior MOUs
concerning the same subject matter contained herein.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the
Parties agree as follows:
I. DEFINITIONS
As used in this MOU, the following words and terms shall have the meanings
described below, unless otherwise defined elsewhere in this MOU:
1.1. "Advance Planning Document" (APD): A federally required document that
is used by states to inform the federal agencies of their intentions related to federally
funded programs, and request approval and funding to accomplish their needs and
objectives. The term APD refers to a Planning APD, Implementation APD, or to an
Advance Planning Document Update.
1.2. "Central Equipment": Is that equipment for which the Consortium is
authorized by the State of California to assume responsibility for refresh. The
Consortium shall have responsibility to refresh (replace or upgrade) all such
equipment. All equipment not designated as "Local Equipment" is Central Equipment.
The physical location of the equipment is not relevant to the designation "Central."
1.3. "Consortium – Auditor-Controller Agreement": Is any agreement, as
may be revised from time to time, between the Consortium and one of its Members to
fulfill the fiscal and audit function as Auditor-Controller for the Consortium.
1.4. "Consortium Staff": Consists of employees of the Consortium,
employees of Members contributed to the Consortium, and contractors and agents
designated by the Consortium.
1.5. "Consortium's Secretary": The Secretary of the Consortium's Board of
Directors in charge of all records of the Consortium.
1.6. "Consortium's Treasurer": The treasurer of the Consortium shall be as
specified in the JPA Agreement. The Consortium’s Treasurer is responsible for the
depository, disbursements, and accountability of all the accounts, funds, and money
and all records relating thereto.
1.7. "Cost Allocation Plan": A methodology for distributing costs to benefiting
programs in accordance with federal, state, and county sharing ratios.
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1.8. "County Personnel": County employees, contractors or agents
responsible for task(s) necessary to the Project.
1.9. "County-Purchased Software": Licenses to software applications
purchased separately by County and installed upon Local Equipment. County-
Purchased Software does not include Original Equipment Manufacturing (OEM)
operating system software provided by the Consortium for use in the System(s), as
defined below. All County-Purchased Software must be configured to be compatible
with Consortium-purchased software and shall be approved by Consortium prior to its
installation and use on Local Equipment purchased or provided under this MOU.
Maintenance of County-Purchased Software and management of its use in a manner
consistent with its licensing is the sole responsibility of County.
1.10. "County Site(s)": The location(s) in the County for the equipment,
software, and Project Staff activities designated as necessary to the Project.
1.11. "Data": The Consortium and County records, files, forms, and other
information that are currently or will be processed on the System(s).
1.12. "Deliverables": Products, including, but not limited to, equipment and
software, provided to the Consortium and the County pursuant to agreements with
vendors or otherwise necessary to the Project.
1.13. "Executive Director": The individual chosen by the Consortium with
responsibilities for the management of the Project for the Consortium.
1.14. "Impaired Device(s)": Any equipment that is used by a Member on the
System(s) and which has become, whether by damage or other reason, incapable of
performing its intended purpose.
1.15. "Local Equipment": Is that equipment that (a) was obtained for the
System's(s') use, (b) is located on County Sites, and (c) for which the Consortium is
not authorized by the State of California to assume responsibility for refresh, replace
or upgrade.
1.16. "Network(s)": The telecommunications lines, equipment, software, and
services for transmitting Data and other information as required by the needs of the
System(s).
1.17. "Original Equipment Manufacturing" or "OEM": Is that operating
system software license that is provided with the workstation and laptop equipment,
for which the right to use the license is vested with the owner of the applicable
equipment.
1.18. "Primary Project Vendor": The vendor who is working or will be working on the
System(s) pursuant to the applicable agreement(s), as approved by the Consortium.
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1.19. "Primary Project Vendor Staff": Employees, contractors, and agents of
the Primary Project Vendor dedicated to the Project who are working on the
System(s).
1.20. "Project": Work related to the design, development, implementation,
operation, maintenance of the System(s), and migration of the Members to
CalSAWS, and the related activities of the Parties thereto.
1.21. "Project Staff": The Consortium Staff, County Personnel, and vendor
staff performing task(s) necessary to the Project.
1.22. "Quality Assurance and Other Agreements": Those agreements
between the Consortium and its quality assurance vendor(s) or other Project vendors
to provide quality assurance, Project management, planning, support, verification,
and validation services for the System(s).
1.23. "Region": County or Counties grouped together for purposes of
representation as defined in the Consortium’s Bylaws.
1.24. "Regional Manager(s)": The person(s) responsible for the day-to-day
oversight of the Project in a particular Region.
1.25. "Separate Services": Services which are related to the System(s),
obtained by Counties from the Primary Project Vendor, or other Project vendors.
1.26. "Software": Software and software licenses purchased by the Consortium
for the System's(s') use, and software and software licenses procured under Section
4.2 (County Hardware and Software License Purchases). The Consortium retains
possession of and title for, and responsibility for refresh of, all Software licensing
agreements purchased by the Consortium but may grant use permission to Member
in a manner consistent with this MOU.
1.27. "System(s)": Individually or collectively, the complete collection of
equipment, Software, other required software, and Networks for the C-IV System,
LRS, CalWIN and/or CalSAWS.
1.28. "Work Plan(s)": The plan and delineation of tasks, subtasks, activities
and events to be performed, Deliverables to be produced and associated resource
requirements with regard to the Project as accepted and agreed upon between the
Primary Project Vendor and the Consortium, subject to modification from time to time.
II. COUNTY
2.1. Dedication of Personnel. The County, within its sole discretion, agrees
to undertake best efforts to provide County Personnel to the Project as required by
the Project’s needs, applicable Work Plan(s) or as otherwise necessary to fulfill the
Consortium's purpose. County Personnel provided to the Project or the Consortium
under this provision will be provided subject to the following terms and conditions:
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2.1.1. The rendition of the services performed by County Personnel, the
standards of performance, the discipline of its employees, and other matters incident
to the performance of such services and the control of County Personnel so engaged
in these services shall remain with the County. The County and the Consortium shall
agree to the scope of services to be performed by each County Personnel.
2.1.2. The County will be responsible for all payroll, personnel, and other
administrative functions for its employees assigned to perform services for the
Consortium hereunder.
2.1.3. At the start of the Consortium assignment, the County, or the
Consortium, with consent from the County, will provide functional supervision of
County Personnel assigned, specify their duties, establish working hours, and other
matters incidental to the supervision of the County Personnel.
2.1.4. In the event of a dispute between the County and the Consortium as
to the extent of the duties and functions to be rendered hereunder, or the minimum
level or manner of performance of such service, the Consortium shall be consulted
and a mutual determination thereof shall be made by both the County and the
Consortium. However, the County, in an unresolved dispute, shall have final and
conclusive determination as between the Parties hereto.
2.1.5. For and in consideration of the services to be performed by the
County Personnel for the Consortium under this MOU, the Consortium shall pay the
County for said services according to the hourly prevailing direct salary and employee
benefit costs as determined by the County for the current applicable fiscal year.
Annual rate adjustments shall be made pursuant to methods employed according to
the policies and procedures established by the County.
2.1.6. The County shall render to the Consortium a summarized monthly
invoice which details all services performed under this MOU, and the Consortium shall
pay the County within sixty (60) days after date of said invoice.
2.1.7. Payment for said services shall be made by check or money order
payable as directed on the monthly invoice, or other method as determined by the
County.
2.1.8. If such payment is not delivered to the County office that is described
on said invoice within sixty (60) days after the date of the invoice, the invoice will be
deemed uncollectible and may be forwarded for appropriate action.
2.1.9. Both Parties hereto in the performance of this Agreement shall act
as independent contractors and not as agents, employees, partners, joint venturers,
or associates of one another.
2.1.10. The Consortium shall not assume any liability for the direct payment
of any salaries, wages, retirement benefits, workers' compensation insurance, or other
compensation to any County Personnel performing services hereunder.
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2.1.11. County and Consortium agree to be liable for the negligence and
willful misconduct of its employees, agents, and contractors as set forth in Section
6.03. (Member's Liability for Negligence of its Employees and Contractors) of the JPA
Agreement.
2.1.12. Notwithstanding any provision hereof to the contrary, the County or
the Consortium may return County Personnel back to County for any reason upon
notice in writing to the other party of not less than sixty (60) days prior thereto, unless
the Parties agree otherwise.
2.2. Access to County Site(s) and Facilities. County agrees to make available
and provide access to County Sites and facilities to Project Staff as necessary for the
operation and administration of the System(s) in accordance with the County's
administrative and security rules and regulations. County reserves the right to refuse
the Consortium Staff or Project Staff member access to County Site(s) or facilities
where, in its sole discretion, the County determines that access should be refused or
terminated for reasons of public health, welfare, and safety or to avoid disruptions to
County operations.
2.3. Release of Information to Auditor/Controller. The County acknowledges
that the Consortium - Auditor/Controller Agreement sets forth certain procedures for
the disclosure of records of the County to the Auditor/Controller and the Executive
Director as the Auditor/Controller deems necessary to resolve any funding, invoice,
records, accounting or audit-related issues, to the extent allowed by law. Therefore,
the County agrees to use commercially reasonable efforts to comply with these
procedures and, further, shall cooperate with the Consortium and Auditor/Controller
in complying with any changes or modifications of these procedures, as may be
necessary from time to time.
III. CONSORTIUM
3.1. Compliance with County Rules. The Consortium agrees that all Project
or other Consortium activities occurring at County Site(s) or facilities will occur in a
manner consistent with the County's rules and regulations.
3.2. Risk of Loss for Deliverables. Until accepted by County under the
procedures established by the Parties pursuant to Section 4.4 (Development of
Procedures for Acceptance/Rejection of Deliverables) herein, Consortium agrees that
any risk of loss or damage for the Deliverables shall be borne solely by the
Consortium.
3.3. Liability to County. The Consortium agrees to be liable for any loss,
destruction, or damage caused by the Consortium to County operation or property by
Consortium. Upon such loss, destruction of, or damage, the County shall notify the
Executive Director and shall take all reasonable steps to protect against further loss,
destruction, or damage caused by Consortium.
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3.4. Minimize Project Impact on County's Operations. The Consortium
agrees to ensure that Project activities at County Site(s) and facilities shall be done in
a manner that will minimize interference with the normal activities and operations of
the Member and shall keep County Site(s) and facilities safe, clean, and orderly at all
times.
3.5. Right to Use System(s) Information and Data. The Consortium agrees
that the County shall have unlimited rights to use, disclose, duplicate, or publish all
System(s) information and Data relating to County that is developed, derived,
documented, or furnished by Consortium, upon notification by County to the Executive
Director as to the reason for such use of said System(s) information and Data. Such
Data shall include all results, technical information, and materials developed for and/or
obtained by Consortium and retained to fulfill its purpose, including, but not limited to,
all reports, surveys, plans, charts recordings (video and/or sound), pictures, drawings,
analysis, source and object code, graphic representations, computer programs and
printouts, notes and memoranda, and documents whether finished or unfinished,
which result from or are prepared in connection with the Project, but only as it relates
to the County or is Data that is meant for distribution to, or for access by, all Members
of the Consortium. To the extent that County requires access to System(s) information
and Data relating to another Member(s) of the Consortium, County shall seek
permission from such Member(s) and shall enter into all appropriate confidentiality
and non-disclosure agreements, if required, and comply with all confidentiality and
security requirements of such Member(s). The County's use of Consortium
information and Data shall not apply, and the County shall have no right, to title and
interest in or to any Consortium’s vendor's confidential and proprietary information.
3.6. Cooperation with County Risk Management Assessment. The
Consortium agrees to cooperate and share its records and information with the County
as necessary for the County to conduct an adequate risk of liability assessment(s) and
develop an appropriate risk of liability management plan(s) as to Project activities
occurring at County Sites and facilities or otherwise in connection with the County’s
participation in the Consortium.
IV. MUTUAL RESPONSIBILITIES
4.1. Fiscal Responsibilities and Claiming.
4.1.1. The Consortium’s Auditor-Controller shall act as the fiscal agent for
the Consortium and perform accounts payable functions that relate to vendor billings
and overall Project costs, including Separate Services and hardware and/or Software
purchased by the County. The Consortium will invoice the County as agreed for the
specific costs incurred in accordance herewith. At a minimum, invoicing will be
quarterly, except by mutual agreement.
4.1.2. Unless otherwise agreed upon by the Consortium Executive Director
or designee, the County will be responsible for the costs of hardware, and/or Software
and associated maintenance for new County Sites or the expansion of existing County
1741055.5 14448-006 Page 8 of 73
Sites, changes in County network models, refresh of existing hardware and/or
Software (as deemed necessary by the County), Separate Services requested by the
County and other changes the County deems necessary. The County will prepare and
submit APDs to the State for approval of these items, except as otherwise agreed
upon by the Consortium, as above, subject to oversight by the Office of System
Integration (OSI) or applicable State APD department.
4.1.3. The Consortium will allocate the Project budget to each Member and
each of the Counties will be required to pay its applicable share of budget, in
accordance with Section 4.1.4 hereof and Section 5.02 (Statewide Automated Welfare
System Funding Allocations) of the JPA Agreement, at the time and in the manner
specified by the Consortium. Such County Project costs will be paid to the Consortium
or State as directed by the Consortium. The Consortium will continue to evaluate total
Consortium expenditures and budget variances. The annual budget requests and
updates will be prepared by the Consortium along with County Personnel.
4.1.4. Administrative Costs (also known as unfunded costs) are costs
properly incurred by the Consortium but designated by the State of California as
ineligible for reimbursement to the Consortium by the State, including the County's
share as determined by the appropriate Cost Allocation Plan to be applied to that cost
as approved by the State. On or before April 1 of each year, the Consortium, with the
concurrence of the Consortium’s Member representatives as defined in Section 2.07
(Quorum; Required Votes; Approvals) of the JPA Agreement, will approve a schedule
of Administrative Costs for the upcoming fiscal year (July 1 through June 30). The
Consortium will give the County notice of the approved schedule within ten (10) days
after such approval.
A. County hereby agrees to contribute to the Consortium its share of
Administrative Costs, as determined by the Consortium, in advance pursuant to
California Government Code section 6504.
B. County shall also contribute an amount equal to any penalties, fines,
finance charges, interest or other costs that may result in the event County's tardy
payment(s) result in insufficient funds to pay the Consortium's expenses when due.
4.1.5. If, during the term of this MOU, the County is unable to appropriate
sufficient funds, or is otherwise unable to meet its financial obligations under this
MOU, and there are no other legal procedures or available funds by or with which
such obligations can be met, County shall have the right to terminate this MOU and
withdraw its membership from the Consortium effective as of the end of that fiscal year
by adoption of a resolution of withdrawal by County’s Board of Supervisors, provided
that a copy of said resolution has been served on all other Members by May 31 of that
fiscal year, as provided for in Section 2.11 (Withdrawal of Member) of the JPA
Agreement. Withdrawal under this subsection shall not relieve the County of any
financial obligations or liabilities arising prior to the effective date of the withdrawal.
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4.1.6. Section 17.1.1 of the "Amended and Restated Agreement for a
California Statewide Automated Welfare System" between the Consortium and
Accenture LLP provides as follows:
17.1.1 Consortium Member Demand for Indemnification
CONTRACTOR's obligation to indemnify CONSORTIUM Members shall only be
exercised through the CONSORTIUM and upon written demand by the
CONSORTIUM. Any demand for indemnification by a CONSORTIUM Member shall
be tendered to the CONSORTIUM, which shall have the authority to make the demand
for indemnification to CONTRACTOR. The obligation on CONSORTIUM Members to
submit demands for indemnification to the CONSORTIUM rather than directly to the
CONTRACTOR shall not apply to L A COUNTY so long as L A COUNTY remains the
sole county utilizing the LRS System in actual production. Once a second county
migrates into the LRS System and from that point forward, all indemnification claims
must go through the CONSORTIUM.
County claims covered by this provision shall be referred to the Consortium’s
Executive Director for action in accordance with this provision. The Consortium will be
entering into other vendor contracts on behalf of the Member counties and anticipates
including comparable language in some or all of those contracts. County claims arising
under those other contracts shall also be referred to the Consortium’s Executive
Director for action in accordance with the requirements set forth in those contracts.
4.2. County Hardware and Software License Purchases.
4.2.1. This section pertains to County hardware and software purchases
initiated by the County, that enable the County to acquire Local Equipment and/or
Software through the Consortium and to contribute to the cost of Central Equipment
needed for County use. Any applicable terms, conditions, and limitations of any
agreements that provide for such purchases shall remain applicable.
4.2.2. Unless otherwise agreed by the Executive Director or designee, the
County will prepare and submit to the Consortium a change order to request a cost
estimate for hardware and/or Software licenses and associated maintenance. This
request will identify the number of units of hardware and/or Software licenses
anticipated for each County Site. The request will specify any special needs or
considerations for the items requested. These special needs may include, but are not
limited to, monitor sizes, configurations, ergonomics, specialized software, or color
printers. The request will also identify whether the County will install all, some, or none
of the items requested and whether the County will provide any ongoing technical
support that may be necessary.
4.2.3. Upon receiving a change order request from the County for hardware
and/or Software licenses, the Consortium will forward the change order to the Primary
Project Vendor for a cost estimate that will be provided in accordance with the
procedures in the Consortium agreements with the Primary Project Vendor, including
estimates with all appropriate costs for the items specified in the request as well as all
other hardware and/or Software licenses and hardware maintenance that is necessary
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to ensure compliance with Consortium specifications. Such other hardware may
include, but is not limited to, network and Central Equipment, such as switches,
routers, and servers. The Consortium Staff will forward the estimate to the appropriate
County Staff following receipt of the estimate from the Primary Project Vendor Staff.
4.2.4. Once the applicable APD is approved, the County will be responsible
for providing written approval, from the State, of the cost estimate to the Consortium.
The Consortium will not take any steps to authorize the procurement of the hardware
and/or Software licenses until such written authorization is provided. Any increases in
the cost estimate must also be approved in writing by the County.
4.2.5. The Consortium Staff will authorize the purchase of the hardware
and/or Software licenses after approval of the cost estimate from the Member. The
Project Staff will ensure that the requested items are ordered in a timely manner and
in compliance with the approved cost estimate.
4.2.6. All Local Equipment and hardware procured under this MOU will
become County property unless otherwise agreed to by the Executive Director or
designee and County. All software licenses which are purchased by Consortium for
use with the System(s) shall be retained by the Consortium and County will be granted
permission to use the software pursuant to such licenses, unless otherwise agreed to
by the Executive Director or designee and County. County shall be responsible to
Consortium for costs associated with acquisition of Software licenses required for
County use which are purchased through the Consortium. The County will track and
manage property in accordance with mutually agreed upon inventory and accounting
practices and procedures identified in the System Operations and Support Plan
("SOSP"). If County and Consortium are unable to agree upon inventory and
accounting practices and procedures, County shall track and manage property in
accordance with its inventory and accounting practices and procedures. The
Consortium shall provide operational support of all hardware in accordance with
Consortium procedures and the County network model, unless otherwise agreed to
by the Executive Director or designee and Member.
4.2.7. The County will be responsible for the installation of all electrical and
Data cabling to support any necessary additional hardware at the County Site(s)
unless otherwise agreed to by the Executive Director or designee. Electrical cabling
will be installed in compliance with the County’s current practices for such installations.
Data cabling will be installed and tested per the standards identified in the SOSP. Data
cabling test results will be provided to the Consortium for its review.
4.2.8. The County will be responsible for the costs associated with the
ordering and installation of Data circuits between the local County Site(s) and the
applicable Data centers, unless otherwise agreed to by the Executive Director or
designee. The County will work with Primary Project Vendor Staff to ensure that the
Data circuit is of appropriate bandwidth in accordance with Consortium specifications.
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4.2.9. Following the receipt, installation, and acceptance of the hardware
and/or Software licenses, the County will transfer to the Consortium an amount
sufficient to satisfy the Consortium’s actual expenditures for the hardware and/or
Software licenses based on invoice documentation provided by the Consortium.
4.3. Separate Services.
4.3.1. The County may, at its sole discretion, prepare and submit to the
Consortium a change order to request Separate Services to be performed by the
Primary Project Vendor or other Project vendors. This request will identify the type(s)
of Separate Services sought for each County Site and specify any special needs or
considerations for the requested Separate Services. The Consortium, upon receiving
a change order request, will forward the change order to the Primary Project Vendor
or other Project vendors for a cost estimate, including estimates with all appropriate
costs for the services specified in the request. The Consortium will also ensure that
such services are appropriately related to the System(s). Any applicable terms,
conditions, and limitations of any agreements that provide for such services shall
remain applicable.
4.3.2. The County and the Consortium will ensure that such Separate
Services are performed in a timely manner and in compliance with the cost estimate
provided by the Primary Project Vendor or other Project vendors. The County will
communicate with the Consortium regarding the progress of the Separate Services
and any issues that may affect the Consortium or the System(s).
4.4. Development of Procedures for Acceptance/Rejection of Deliverables.
The Parties agree to develop and implement procedures for the timely acceptance or
rejection of Deliverables that may need to be reviewed by Member as necessary for
the Project.
4.5. Ownership of Accepted Deliverables. The Parties agree that all rights,
titles, and interests to Deliverables accepted by County pursuant to the procedures
developed as called for under Section 4.4 (Development of Procedures for
Acceptance/Rejection of Deliverables) shall not pass to County except as defined by
this MOU or further agreed to in writing.
4.6. Sharing of Business Records. Notwithstanding Section 4.1 (Fiscal
Responsibilities and Claiming), to ensure financial accountability of the Consortium
and County the Parties agree to cooperate in the disclosure to the other Members of
all business records (including, but not limited to, certified copies of records of all
accounts, funds, and monies for the Project) except to the extent limited, restricted,
or prohibited by law or applicable privilege.
4.7. Access to Books and Records by Regulatory Agencies. The Parties
agree to maintain and make available for inspection sufficient records, files, and
documentation that are not otherwise limited/restricted/prohibited by law or applicable
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privilege, necessary in the case of audit by the State or federal agency, or other
regulatory agency.
4.8. Dispute Resolution. The Parties agree that the resolution of any dispute
between them related to Consortium business, whatsoever, shall be sought through
the following procedures:
4.8.1. The Parties shall use their reasonable best efforts to resolve
disputes arising in the normal course of business at the lowest organizational level
between the Party's staff with appropriate authority to resolve the disputes. When a
dispute arises between the Consortium and the County that cannot be resolved in the
normal course of business, the Executive Director and County Director will work in
good faith to resolve the dispute. If the Executive Director and the County Director
cannot resolve the disputed issue(s) within five (5) business days, the matter shall be
escalated to the Board of Directors of the Consortium for resolution.
4.9. No Alteration of JPA Agreement. The Parties agree that entering into this
MOU or performing as provided hereunder shall not in any way change the
obligations, rights or authority of the Parties as set forth in the JPA Agreement
establishing the Consortium between the counties. Should any provision of this MOU
conflict with any provision of the JPA Agreement, the provision of the JPA Agreement
shall prevail.
4.10. Transfer of Impaired Devices.
4.10.1. Transfer of Impaired Devices.
A. Transfer of Impaired Devices. County conveys, assigns, and
transfers to Consortium, and Consortium hereby accepts from County, all rights, titles,
and interests of County in and to all of the Impaired Devices on the terms and
conditions set forth herein. County is responsible for removing all County-Purchased
Software and Data prior to the transfer of an Impaired Device to the Consortium, to
the extent possible. County hereby authorizes Consortium to remove any and all
County-Purchased Software and Data if County is unable to remove prior to transfer.
B. Liability for Impaired Devices. Consortium shall be responsible for
any liabilities or obligations associated with or related to the Impaired Devices that
occur after the Impaired Device transfer date.
4.10.2. Transfer Events.
A. County to Consortium. The transfer of each Impaired Device from
County to Consortium shall be effective on an ongoing basis, when Consortium and
County execute an equipment transfer.
4.10.3. Disclaimers of Representations and Warranties.
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A. County. COUNTY IS TRANSFERRING, ASSIGNING, AND
CONVEYING THE IMPAIRED DEVICES ON AN "AS IS" BASIS TO CONSORTIUM.
COUNTY MAKES NO REPRESENTATIONS OR WARRANTIES, EITHER EXPRESS
OR IMPLIED, REGARDING THE IMPAIRED DEVICES AND EXPRESSLY
DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR
A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE FOR THE
IMPAIRED DEVICES, AS WELL AS ANY IMPLIED WARRANTIES ARISING FROM
STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR
TRADE. COUNTY DOES NOT REPRESENT OR WARRANT THAT THE IMPAIRED
DEVICES WILL MEET CONSORTIUM’S REQUIREMENTS, OR THAT THE
IMPAIRED DEVICES WILL BE FREE FROM DEFECTS, DEFICIENCIES,
PROBLEMS OR ERRORS.
THIS DISCLAIMER IS NOT INTENDED TO VOID ANY W ARRANTIES THAT MAY
BE AVAILABLE FROM THE MANUFACTURER OR SELLER OF THE IMPAIRED
DEVICES, WHICH SHALL PASS TO THE CONSORTIUM AS APPROPRIATE.
B. Manufacturers’ Warranties. The disclaimers in Section 4.10.3,
above, notwithstanding each party assigns to the other party all of the manufacturer’s
warranties and indemnities relating to the Impaired Devices transferred pursuant to
the provisions set forth herein. Such assignment shall take effect upon the applicable
transfer date and is subject to all of the terms and conditions imposed by the
manufacturers.
4.10.4. Limitations of Liability and Exclusive Remedies.
A. Limitations and Disclaimers of Liability. In no event shall County,
Consortium, the Members comprising Consortium, or their contractors, agents,
officers, directors, or employees be liable for any losses, expenses, claims or
damages of any kind or nature including, but not limited to, direct, indirect,
consequential, special or incidental damages whatsoever (including, without
limitation, damages for loss of business profits, business interruption, loss of business
opportunity, loss of business information, or other pecuniary loss) arising out of the
use or inability to use the Impaired Devices, any breach of this property transfer by
either party, or any other matter hereunder, even if a party has been advised of the
possibility of such damages.
The waiver stated above only relates to matters covered by Section 10.4 (Transfer of
Impaired Devices) and extends to any rights such person or entity may have under
California Civil Code section 1542 (and other similar statutes and
regulations). Section 1542 states:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER
FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF
KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR
HER SETTLEMENT WITH THE DEBTOR.
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B. Exclusive Remedy of Consortium. Consortium acknowledges that
County is providing the Impaired Devices as required under applicable state policy
and Consortium agrees that Consortium’s sole and exclusive remedy for any inability
to use an Impaired Device or any other matter under this property transfer shall be
that Consortium shall pursue any remedy that has been transferred or assigned by
County from the Impaired Device’s manufacturer.
4.10.5. Responsibility for Software Licenses.
A. County. County is responsible for removing all County-Purchased
Software prior to the transfer of an Impaired Device to the Consortium, to the extent
possible. County hereby appoints Consortium as County’s agent for the sole purpose
of removing any County-Purchased Software contained on any and all Impaired
Devices County transfers to Consortium, if County is unable to remove prior to
transfer.
Subject to the provisions of Section 4.2.6 herein, County shall retain all rights and
obligations associated with any license to County-Purchased Software contained on
any and all Impaired Devices that County transfers to Consortium.
B. Consortium. Consortium shall, acting as agent of the County, remove
any and all County-Purchased Software from Impaired Devices that Consortium
receives from County, if County is unable to remove prior to transfer. Consortium shall
not acquire any rights or obligations associated with any license to County-Purchased
Software contained on any and all Impaired Devices that Consortium receives from
County.
4.10.6. Expenses. Each party shall pay its own expenses and fees
incidental to the preparation and execution of this property transfer and the obtaining
of necessary approvals thereof, including fees and expenses of its counsel,
accountants, and other experts.
V. TERM/TERMINATION/MODIFICATIONS
5.1 Term. This MOU shall commence on June 28, 2019 ("Effective Date") and
shall remain in effect so long as the Member is a member of the Consortium, unless
terminated as specified herein.
5.2 Condition Precedent--State and Federal Funding. The Parties agree
that their respective obligations under this MOU are contingent upon state and federal
financial participation in the Project and the Consortium. In the event that such funds
are not forthcoming for any reason, either Party shall notify the other and shall have
the right to terminate this MOU.
5.3 Termination of Consortium or County's Consortium Membership. This
MOU shall immediately terminate upon the termination of the Consortium's Joint
Powers Authority or County's membership in the Consortium's Joint Powers Authority.
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5.4 Debts and Liabilities Upon Termination. Should this MOU terminate as
provided herein, the debts, liabilities, and/or obligations of the Consortium shall remain
those of the Consortium.
5.5 Entire Agreement/Amendments. This MOU constitutes the entire MOU
between the Parties hereto with respect to the subject matter hereof and all prior or
contemporaneous MOUs or other agreements of any kind or nature relating to the
same shall be deemed merged herein. Except as provided herein, any modifications
to, or termination of, this MOU must be in writing and signed by the Parties.
VI. MISCELLANEOUS PROVISIONS
6.1 Notices. Written notices provided hereunder shall be sufficiently addressed
to the offices listed below and shall be deemed given upon deposit in the U.S. mail,
first class, postage prepaid.
SIGNATURES ON FOLLOWING PAGES