HomeMy WebLinkAbout320381
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AGREEMENT
THIS AGREEMENT is made and entered into this __ day of _____ , 2015, by
and between the COUNTY OF FRESNO, a Political Subdivision of the State of California, hereinafter
referred to as "COUNTY", and Lexipol, LLC., a Delaware corporation whose address is 6B Liberty,
Suite 200, Aliso Viejo, California 92656, hereinafter referred to as "CONTRACTOR".
WITNESSETH:
WHEREAS, COUNTY desires to enter into an agreement to obtain law enforcement
policy manual and daily training bulletin services for Sheriff's Office personnel; and
WHEREAS, CONTRACTOR is qualified and willing to provide policy manual and daily
training bulletin services through access to the Lexipol Knowledge Management System;
NOW, THEREFORE, in consideration of the mutual promises, covenants and conditions
hereinafter set forth, the sufficiency of which consideration is hereby acknowledged, the parties
hereto agree as follows:
1. OBLIGATIONS OF THE CONTRACTOR
CONTRACTOR shall provide COUNTY access to customizable, state-specific law
enforcement policy content and daily training bulletin services through access to the Lexipol
Knowledge Management System, as well as assist the COUNTY in the customization of
CONTRACTOR's content to meet the needs of the COUNTY, as more specifically stated in
Exhibit "A", attached hereto and incorporated herein by reference.
A. CONTRACTOR agrees to provide up to 700 hours of implementation
services.
B. CONTRACTOR shall provide COUNTY subscriptions to the Lexipol Law
25 enforcement Policy Manual and Daily Training Bulletin Service, to include:
26 1. Policy manual content, document management, training content and
27 testing through web-based proprietary system tools.
28 2. Regular and urgent updates to content via web-based tools
259986.2 3002.000
3. Integrated Daily Training Bulletins (DBTs) 1
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4. Archiving of all versions of the Sheriff's Office policy manual
5. Reporting features -including exception reporting with export
capability to Microsoft Excel.
2. OBLIGATIONS OF COUNTY
7 A. COUNTY shall maintain the confidentiality of COUNTY'S password and
8 account. COUNTY agrees to notify Lexipol immediately of any unauthorized use of COUNTY'S
9 account or breach of security.
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11 B. COUNTY shall ensure that the COUNTY'S user name and password are for
12 the COUNTY'S sole use and COUNTY shall not share, distribute, sell or otherwise transfer its
13 password or username to other individuals.
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15 C. COUNTY shall ensure that administrator passwords permitting access to
16 Lexipol Forum pages, Release Notes, and guide sheets is for use of COUNTY Administrator and
17 may not be used by any other user.
18 3. TERM
19 This Agreement shall become effective the 1st day of February, 2015 and shall terminate on the
20 31th day of January, 2018. Thereafter, the term of this Agreement shall automatically extend for
21 two additional one-year ( 1 ) periods, from the 1st day of February 2018 to the 31st day of January
22 2019 and from 1st day of February, 20 19 to the 31st day of December, 2020, unless either party
23 provides written notice to the other of an intent not to extend the term of this Agreement, no later
24 than thirty (30) days prior to the first day of the next one-year period. In no event shall the term of
25 this Agreement extend beyond January 2020.
26 4. TERMINATION
27 A. Non-Allocation of Funds-The terms of this Agreement, and the services to
28 be provided thereunder, are contingent on the approval of funds by the appropriating
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1 government agency. Should sufficient funds not be allocated, the services provided may be
2 modified, or this Agreement terminated, at any time by giving CONTRACTOR thirty (30) days
3 advance written notice.
4 B. Breach of Contract-COUNTY may immediately suspend or terminate this
5 Agreement in whole or in part, where in the determination of COUNTY there is:
1 ) An illegal or improper use of funds;
2) A failure to comply with any term of this Agreement;
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8 3} A substantially incorrect or incomplete report submitted to COUNTY;
9 4) Improperly performed service.
1 0 In no event shall any payment by COUNTY constitute a waiver by COUNTY of any
11 breach of this Agreement or any default which may then exist on the part of CONTRACTOR.
12 Neither shall such payment impair or prejudice any remedy available to COUNTY with respect to
13 the breach or default. COUNTY shall have the right to demand of CONTRACTOR the repayment
14 to COUNTY of any funds disbursed to CONTRACTOR under this Agreement, which in the judgment
15 of COUNTY were not expended in accordance with the terms of this Agreement. CONTRACTOR
16 shall promptly refund any such funds upon demand.
17 C. Without Cause -Under circumstances other than those set forth above, this
18 Agreement may be terminated by COUNTY upon the giving of thirty (30) days advance written
19 notice of an intention to terminate to CONTRACTOR.
20 5. COMPENSATION/INVOICING: COUNTY agrees to pay CONTRACTOR and
21 CONTRACTOR agrees to receive compensation based on the rates listed in Exhibit "B", which is
22 attached hereto and incorporated herein by this reference. CONTRACTOR shall submit invoices
23 in triplicate to COUNTY's Sheriff's Office, 2200 Fresno Street, Fresno, California 93721.
24 In no event shall services performed under this Agreement be in excess of two
25 hundred seventy-five thousand three hundred and twenty-five dollars ($275,325} during the term
26 of this Agreement. It is understood that all expenses incidental to CONTRACTOR's performance of
27 services under this Agreement shall be borne by CONTRACTOR. Within forty-five (45) days after
28 receipt of the invoice, COUNTY will remit payment to CONTRACTOR. Such payment shall be sent
259986.2 3002.000
1 to:
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3 Lexipol
4 6B Liberty, Suite 200
5 Aliso Viejo, CA 92656
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7 6. INDEPENDENT CONTRACTOR: In performance of the work, duties and obligations
8 assumed by CONTRACTOR under this Agreement, it is mutually understood and agreed that
9 CONTRACTOR, including any and all of CONTRACTOR's officers, agents, and employees will at all
1 0 times be acting and performing as an independent contractor, and shall act in an independent
11 capacity and not as an officer, agent, servant, employee, joint venturer, partner, or associate of
12 the COUNTY. Furthermore, COUNTY shall have no right to control or supervise or direct the
13 manner or method by which CONTRACTOR shall perform its work and function. However,
14 COUNTY shall retain the right to administer this Agreement so as to verify that CONTRACTOR is
15 performing its obligations in accordance with the terms and conditions thereof.
16 CONTRACTOR and COUNTY shall comply with all applicable provisions of law and
17 the rules and regulations, if any, of governmental authorities having jurisdiction over matters the
18 subject thereof.
19 Because of its status as an independent contractor, CONTRACTOR shall have
20 absolutely no right to employment rights and benefits available to COUNTY employees.
21 CONTRACTOR shall be solely liable and responsible for providing to, or on behalf of, its employees
22 all legally-required employee benefits. In addition, CONTRACTOR shall be solely responsible and
23 save COUNTY harmless from all matters relating to payment of CONTRACTOR'S employees,
24 including compliance with Social Security withholding and all other regulations governing such
25 matters. It is acknowledged that during the term of this Agreement, CONTRACTOR may be
26 providing services to others unrelated to COUNTY or to this Agreement.
27 7. MODIFICATION: Any matters of this Agreement may be modified from time to time
28 by the written consent of all the parties without, in any way, affecting the remainder
259986.2 3002.000
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8. NON-ASSIGNMENT: Neither party shall assign, transfer or sub-contract this
Agreement nor their rights or duties under this Agreement without the prior written consent of the
other party.
9. HOLD HARMLESS: CONTRACTOR agrees to indemnify, save, hold harmless, and at
COUNTY'S request, defend the COUNTY, its officers, agents, and employees from any and all costs
and expenses, damages, liabilities, claims, and losses occurring or resulting to COUNTY in
connection with any third party claim that any Lexipol Content (as defined below) provided to
COUNTY by CONTRACTOR infringes any copyright, trade secret or other intellectual property right
of such third party, provided that COUNTY gives CONTRACTOR prompt written notice of such lh11d
party claim, and provided further that CONTRACTOR shall not indemnify COUNTY to the extent
the alleged infringement is caused by (a) COUNTY'S modification of the Lexipol Content, (b) use
of the Lexipol Content other than in accordance with this Agreement, or (c) COUNTY'S failure to
use acceptable non-infringing corrections made available by CONTRACTOR. COUNTY
understands that CONTRACTOR and its agents, employees and representatives have developed
policy guidelines and content in a good faith effort to comply with all applicable statutes, case
law and industry standards in effect at the time such polices were approved and adopted by
COUNTY. COUNTY acknowledges that CONTRACTOR shall not be responsible for updating these
policies to adhere to subsequent changes in the law or other conditions and those changes and
updates will only be provided by CONTRACTOR as a part of an annual subscription. While
CONTRACTOR has made a good faith effort to develop all policies and training in accordance
with existing law and standards, COUNTY acknowledges that neither CONTRACTOR nor any of its
agents, attorneys, employees or representatives are obligated to provide legal representation
defense of indemnification for any litigation in which said policies are subject to challenge
To the fullest extent permissible under applicable law, and except as otherwise herein
provided, CONTRACTOR and/or other persons creating or transmitting the information and the
service will in no event be liable to COUNTY or anyone else for any direct, indirect. consequential.
incidental, special, exemplary, or punitive damages for the information, even if CONTRACTOR or
other persons creating or transmitting the information or the service shall have been advised of
259986.2 .11!112 I IIIII
1 the possibility of such damages. To the fullest extent permitted by law, CONTRACTOR or other
2 persons creating or transmitting the information shall have no responsibility or liability to COUNTY or
3 anyone else under any tort, contract, negligence, strict liability, products liability or other theory
4 with respect to any subject matter of this agreement or terms and conditions of use thereto with
5 the exception of liability resulting from a finding of gross negligence, and/or willful and wanton
6 conduct of CONTRACTOR .
7 1 0. COPYRIGHT
8 COUNTY expressly acknowledges and agrees that each and every policy
9 provided by CONTRACTOR including, but not limited to, all updates, revisions to CONTRACTOR
10 content, Supplemental Policy Publications and/or Procedures Manuals, and Daily Training Bulletins
11 are expressly created for COUNTY'S exclusive use. COUNTY further agrees that CONTRACTOR
12 owns the copyright to all content created by CONTRACTOR which is incorporated into Policy
13 Manual(s), content created by CONTRACTOR which is incorporated into Supplemental Policy
14 Publications and/or Procedure Manuals, Policy and/or Procedure update content and Daily
15 Training Bulletins (hereinafter "Lexipol Content"). COUNTY further agrees that any content within
16 an Agency Policy Manual prepared by COUNTY based in whole or in part on content created by
17 CONTRACTOR, or based on any Supplemental Policy Publications and/or Procedure Manuals,
18 and Daily Training Bulletins copyrighted by CONTRACTOR shall be derivative works subject to the
19 copyright of CONTRACTOR. Subject to the provisions of this section 1 0, COUNTY shall have a
20 perpetual right and license to use all materials provided by CONTRACTOR for internal use under
21 this Agreement, and all derivative works based on such materials. COUNTY will not import any
22 subscription material or any derivative work prepared by or for COUNTY into any third party
23 knowledge/content management system or service which provides services comparable to the
24 services provided under this Agreement in competition with CONTRACTOR, regardless of
25 commercial purpose or compensation. The foregoing does not, however, prohibit or restrict
26 COUNTY from providing subscription material or derivative works prepared by or for COUNTY
27 pursuant to an order from a court or other governmental agency or other legal process or as
28 required by the California Public Records Act, nor does it prohibit or restrict COUNTY from
259986.2 3002.000
1 displaying the adopted/approved final policy document on a publicly accessible website for
2 official COUNTY purposes.
3 11. INSURANCE
4 Without limiting COUNTY's right to obtain indemnification from CONTRACTOR or any
5 third parties, CONTRACTOR, at its sole expense, shall maintain in full force and effect, the
6 following insurance policies or a program of self-insurance, including but not limited to, an
7 insurance pooling arrangement or Joint Powers Agreement (JPA) throughout the term of the
8 Agreement:
9 A. Commercial General Liability
10 Commercial General Liability Insurance with limits of not less than One
11 Million Dollars ($1 ,000,000) per occurrence and an annual aggregate of Two Million Dollars
12 ($2,000,000). This policy shall be issued on a per occurrence basis. COUNTY may require specific
13 coverages including completed operations, products liability, contractual liability, Explosion-
14 Collapse-Underground, fire legal liability or any other liability insurance deemed necessary
15 because of the nature of this contract.
16 B. Automobile Liability
17 Comprehensive Automobile Liability Insurance with limits for bodily injury of
18 not less than Two Hundred Fifty Thousand Dollars ($250,000.00) per person, Five Hundred Thousand
19 Dollars ($500,000.00) per accident and for property damages of not less than Fifty Thousand
20 Dollars ($50,000.00), or such coverage with a combined single limit of Five Hundred Thousand
21 Dollars ($500,000.00). Coverage should include owned and non-owned vehicles used in
22 connection with this Agreement.
23 C. Professional Liability
24 If CONTRACTOR employs licensed professional staff, (e.g., Ph.D., R.N.,
25 L.C.S.W., M.F.C.C.) in providing services, Professional Liability Insurance with limits of not less than
26 One Million Dollars ($1 ,000,000.00) per occurrence, Three Million Dollars ($3,000,000.00) annual
27 aggregate.
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259986.2 3002.000
1 D. Worker's Compensation
2 A policy of Worker's Compensation insurance as may be required by the
3 California Labor Code.
4 CONTRACTOR shall obtain endorsements to the Commercial General Liability
5 insurance naming the County of Fresno, its officers, agents, and employees, individually and
6 collectively, as additional insured, but only insofar as the operations under this Agreement are
7 concerned. Such coverage for additional insured shall apply as primary insurance and any other
8 insurance, or self-insurance, maintained by COUNTY, its officers, agents and employees shall be
9 excess only and not contributing with insurance provided under CONTRACTOR's policies herein.
10 This insurance shall not be cancelled or changed without a minimum of thirty {30) days advance
11 written notice given to COUNTY.
12 Within thirty {30) days from the date CONTRACTOR signs and executes this
13 Agreement, CONTRACTOR shall provide certificates of insurance and endorsement as stated
14 above for all of the foregoing policies, as required herein, to the County of Fresno, Sheriff's
15 Business Office, 2100 Fresno Street, Fresno, CA 93721, stating that such insurance coverage have
16 been obtained and are in full force; that the County of Fresno, its officers, agents and employees
17 will not be responsible for any premiums on the policies; that such Commercial General Liability
18 insurance names the County of Fresno, its officers, agents and employees, individually and
19 collectively, as additional insured, but only insofar as the operations under this Agreement are
20 concerned; that such coverage for additional insured shall apply as primary insurance and any
21 other insurance, or self-insurance, maintained by COUNTY, its officers, agents and employees,
22 shall be excess only and not contributing with insurance provided under CONTRACTOR's policies
23 herein; and that this insurance shall not be cancelled or changed without a minimum of thirty {30)
24 days advance, written notice given to COUNTY.
25 In the event CONTRACTOR fails to keep in effect at all times insurance
26 coverage as herein provided, the COUNTY may, in addition to other remedies it may have,
27 suspend or terminate this Agreement upon the occurrence of such event.
28 All policies shall be with admitted insurers licensed to do business in the State of
259986.2 3002.000
1 California. Insurance purchased shall be purchased from companies possessing a current A.M.·
2 Best, Inc. rating of A FSC VII or better.
3 12. AUDITS AND INSPECTIONS: CONTRACTOR shall at any time during business
4 hours, and as often as COUNTY may deem necessary, make available to COUNTY for
5 examination all of its records and data with respect to the matters covered by this Agreement.
6 CONTRACTOR shall, upon request by COUNTY, permit COUNTY to audit and inspect all of such
7 records and data necessary to ensure CONTRACTOR's compliance with the terms of this
8 Agreement.
9 If this Agreement exceeds ten thousand dollars {$1 0,000.00), CONTRACTOR
10 shall be subject to the examination and audit of the Auditor General for a period of three (3)
11 years after final payment under contract (Government Code Section 8546.7).
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13. NOTICES: The persons and their addresses having authority to give and
receive notices under this Agreement include the following:
COUNTY
COUNTY OF FRESNO
Sheriff's Office
2200 Fresno Street
Fresno, CA 93721
CONTRACTOR
Lexipol
Attn: Ron Wilkerson
6B Liberty, Suite 200
Aliso Viejo, CA 92656
Any and all notices between COUNTY and CONTRACTOR provided for under
this Agreement shall be in writing and shall be deemed duly served when personally delivered to
one of the parties, or in lieu of such personal services, when deposited in the United States Mail,
postage prepaid, addressed to such party.
14. VENUE AND GOVERNING LAW: Venue for any action arising out of or related
to this Agreement shall only be in Fresno County, California. The rights and obligations of the
parties and all interpretation and performance of this Agreement shall be governed in all
respects by the laws of the State of California.
15. DISCLOSURE OF SELF-DEALING TRANSACTIONS: This provision is only applicable
if CONTRACTOR is operating as a corporation {a for-profit or non-profit corporation) or if during the
term of the agreement, CONTRACTOR changes its status to operate as a corporation.
259986.2 3002.000
1 Member of CONTRACTOR's Board of Directors shall disclose any self-dealing transactions
2 that they are a party to while CONTRACTOR is providing goods or performing services under this
3 Agreement. A self-dealing transaction shall mean a transaction to which CONTRACTOR is a party
4 and in which one or more of its directors has a material financial interest. Members of the Board
5 of Directors shall disclose any self-dealing transactions to which they are a party during the term
6 of this Agreement, by completing and signing a Self-Dealing Transaction Disclosure Form
7 (attached here to as the last page of Exhibit "C") hereto, which is incorporated herein by this
8 reference), and submitting it to COUNTY prior to commencing with the self-dealing transaction or
9 immediately thereafter.
10 16. ENTIRE AGREEMENT: This Agreement constitutes the entire agreement
11 between CONTRACTOR and COUNTY with respect to the subject matter hereof and supersedes
12 all previous Agreement negotiations, proposals, commitments, writings, advertisements,
13 publications, and understanding of any nature whatsoever unless expressly included in this
14 Agreement.
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259986.2 3002.000
1 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
2 the day and year first hereinabove written.
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Print Name & Title
FOR ACCOUNTING USE ONLY:
ORG No.:
Account No.:
259986.2
31114000
7205
Chairman, Board o
DATE:.-----=-0_,__::..._/~---1-~t_/5 ___ _
AlTEST:
BERNICE E. SEIDEL, Clerk
Board of Supervisors
By Su_s~~~
Deputy
REVIEWED & RECOMMENDED FOR
APPROVAL:
Margaret Mims, Sheriff
APPROVED AS TO ACCOUNTING FORM:
Controller /Treasurer:. Tax
APPROVED AS TO LEGAL FORM:
3002.000
/?4
Lexipol
Predictable is Preventable·
SUMMARY OF THE UNIQUE FEATURES OF THE LEXIPOL SYSTEM
Lexipol is America's leading provider of risk management services and resources for public
safety organizations, delivering its services through a unique, web-based development
system with an integrated training component. Lexipol has helped public safety agencies
reduce risk and stay ahead of litigation trends, while communicating clear and concise
policy guidance to their employees. Additionally, Lexipol has established a unique set of
risk management tools for public safety organizations by integrating agency-specific,
customized policy manuals with the Daily Training Bulletin service accessed through a web
browser. The comprehensive Lexipol service is not available through any other public or
private resources or organizations.
The program is unique in several ways, and there is no other system that offers the
following integration in one package:
1. Online (software-as-a-service) policy manual content, document
management, training content and testing through web-based proprietary
system tools.
2. Regular and urgent updates to content via web-based tools.
3. Daily Training Bulletins (DTBs) that are based on realistic scenarios and
written by public safety personnel, including online and real-time testing
modules.
4. Archiving of all versions of the agency's policy manual, as well as capturing of
user electronic signatures that acknowledge policy updates and Daily Training
Bulletin records and test results.
5. Linking between the Daily Training Bulletins and policy sections to which the
DTB applies.
6. Robust reporting features, including exception reporting with export to MS
Excel capabilities.
7. Contemporary policy content that may be modified by the agency via
proprietary online tools, thus reducing policy development time significantly.
LEXIPOL LLC
68 Liberty, Suite 200 • Aliso Viejo, CA 92656
949.484.4444 • Fax: 949.484.4443
ADDITIONAL FEATURES INCLUDE:
Proprietary System and Software Tools: Over 150 core policies based on federal
standards and case law, state statutes and case law, regulatory actions and law
enforcement best practices. The client agency has full editing capability to customize the
manual to reflect the agency's mission and philosophy.
Updates: Lexipol provides regular semi-annual electronic and interactive updates in
response to legislative mandates, case law and evolution in best practices. It also provides
client alerts and urgent updates in response to precedent-setting court decisions or events
that call for immediate changes to policy.
Policy Training: The integrated Daily Training Bulletin component is a customized,
scenario-based daily training program that links directly to the policy manual and is
accessed online via a web browser. DTB records are also archived for easy retrieval.
Adaptability: Our clients range from small agencies to large agencies with more than
3,500 sworn personnel, including municipal police departments, county sheriff offices,
county district attorneys, port police, probation departments, school district and university
police, tribal police, fire departments and a diverse group of state regulatory agencies.
Scale: More than 1,600 public safety agencies with 100,000 officers or deputies in 16
states use the Lexipol system. Our subscriber base is one of the largest private networks of
law enforcement policy collaborators in the nation.
Archiving: Each version of the agency's policy manual is archived on the Lexipol servers,
which allows for easy retrieval by the agency. This is an invaluable resource in defense
litigation or personnel matters that call for authenticated copies of policy or training records
years after an incident.
For additional information or to obtain assistance please contact Lexipol at 949.484.4444 or
visit www.lexipol.com.
LEXJPOL LLC
68 Liberty, Suite 200 • Aliso Viejo, CA 92656
949.484.4444 • Fax: 949.484.4443
www.lexipol.com
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EXHIBIT "B"
IMPLEMENTATION AND SUBSCRIPTION SERVICES
All labor, materials, equipment, expenses, etc.,
to provide Law Enforcement Policy Manual.
Implementation Services. Not to exceed 700 hours.
Development tools and first year subscription.
Subscription for second through fifth year
259986.2
Hourly
One Time
Annual
$ 150
$ 35,505
$ 33,705
3002.000
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EXHIBIT "C"
SElf-DEAUNG TRANSACTION DISCLOSURE FORM
In order to conduct business with the County of Fresno {hereinafter referred to as "County"), members of a
contractor's board of directors (hereinafter referred to as "County Contractor"), must disclose any self-dealing
transactions that they are a party to while providing goods, performing services, or both for the County. A self-
dealing transaction is defined below:
"A self-dealing transaction means a transaction ta which the corporation is a party and in which one or more of
its directors has a material financial interest"
The definition above will be utilized for purposes of completing this disclosure form.
INSTRUCTIONS
{1) Enter board member's name, job title (if applicable), and date this disclosure is being made.
{2) Enter the board member's company/agency name and address.
{3) Describe in detail the nature of the self-dealing transaction that is being disclosed to the County. At a
minimum, include a description of the following:
a. The name of the agency/company with which the corporation has the transaction; and
b. The nature of the material financial interest in the Corporation's transaction that the board
member has.
{4) Describe in detail why the self-dealing transaction is appropriate based on applicable provisions of the
Corporations Code.
{5) Form must be signed by the board member that is involved in the self-dealing transaction described in
Sections {3) and {4).
259986.2 3002.000
1 (1) Company Board Member Information:
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Name:
Job Title:
4 (2) Company/Agency Name and Address:
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Date:
9 (3) Disclosure (Please describe the nature of the self-dealing transaction you are a party to):
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20 {4) Explain why this self-dealing transaction is consistent with the requirements of Corporations Code 5233 (a):
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(5) Authorized Signature
Signature: J
259986.2
Date: I
3002.000