36_01132021%20Agenda%20Packet%20with%20page%20numbers — Newark City Council, January 13, 2022

AGENDA
Thursday, January 13, 2022
7:00 P.M.

THIS IS A MEETING BY VIRTUAL TELECONFERENCE ONLY
THAT WILL BE CONDUCTED PURSUANT TO ASSEMBLY BILL 361 (2021).

THE CITY COUNCIL CHAMBERS WILL NOT BE OPEN.

REFER TO THE END OF THE AGENDA TO REVIEW OPTIONS FOR PARTICIPATING IN THE MEETING REMOTELY OR TO SUBMIT PUBLIC COMMENT VIA EMAIL.

A. ROLL CALL
B. PRESENTATIONS

1. Introduction of employees
C. PUBLIC COMMENT
The public is invited to address the City Council on any item not listed on the agenda. Public Comments are generally limited to 5 minutes per speaker. Please note that State law prohibits the Council from acting on non-agenda items.

D. CONSENT CALENDAR
Consent Calendar items are considered to be routine and may be approved by one motion.

There will be no separate discussion on these items unless there is a request by a Council Member, a staff member, or a member of the public to remove an item for separate discussion and action.

1. Approval of Audited Demands

2. Approval of December 9, 2021, minutes

3. Adopt a Resolution authorizing the City Manager to execute a purchase order with ePlus Technology, Inc., in an amount not to exceed $62,000 and approving a budget appropriation of $62,000 from the equipment replacement reserve fund to Information Systems Division contractual services for Rubrik.

E. PUBLIC HEARINGS
F. OTHER BUSINESS

1. Adopt resolutions authorizing the application for Homekey Grant Funding and allocation of American Rescue Plan Act Recovery Plan and Housing Impact Fee Funds for the TownePlace Suites Homekey Project at 39802 Cedar Boulevard G. CITY COUNCIL MATTERS
City Council Members report on attendance at intergovernmental agency meetings, conferences, and seminars since the last meeting. City Council Members may also announce upcoming events and coordinate attendance; report on local events attended since the last meeting; and make brief comments on issues of concern.

H. CLOSED SESSION
I. ADJOURNMENT

IMPORTANT NOTICE REGARDING CITY COUNCIL MEETING
Due to the COVID-19 pandemic, the City of Newark made changes related to City Council meetings to protect the public's health and prevent the disease from spreading locally. As a result of the COVID-19 public health emergency, and pursuant to Assembly Bill 361 (2021), the City Council Chambers will be closed to the public.

Members of the public can observe and address the Council using the below technological processes.

This meeting is being conducted utilizing teleconferencing and electronic means as allowed by California Government Code Section 54953(e). The public may view the meeting via YouTube or Zoom.

Mayor Nagy, Vice Mayor Bucci, and Council Members Collazo, Hannon, and Freitas may attend this meeting via teleconference. Teleconference locations are not open to the public. All votes conducted during the teleconferencing session will be conducted by roll call vote.

How to view the meeting remotely:

Livestream online at YouTube: https://www.youtube.com/channel/UC383NGSxaPwZP1lkJbo2T8A Copy/paste the YouTube URL into your browser if the link does not automatically open.

How to participate in the meeting remotely, via Zoom Webinar:

From a PC, Mac, iPad, iPhone or Android device: Zoom Meeting https://us06web.zoom.us/j/87270625473 From a telephone dial 1- 669-900-9128, Webinar ID Number 872 7062 5473 Provide live, remote public comments, when the Mayor calls for comments. Use the raise your hand feature in Zoom to be called upon by the City Clerk.

For frequently asked Zoom questions, please go to Agendas and Minutes and select the Frequently Asked Questions link.

Submission of Public Comments: Public comments received by 4:00 p.m. on the Council meeting date will be provided to the City Council and considered before Council action. Comments may be submitted by email to City Clerk. Comments may also be submitted via email to the City Clerk at any time prior to closure of the public comment portion of the item(s) under consideration.

Reading of Public Comments: The City Clerk will read aloud email comments received during the meeting that Packet Page 2
include the subject line "FOR THE RECORD" as well as the item number for comment, provided that the reading shall not exceed five (5) minutes, or such other time as the Council may provide, consistent with the time limit for speakers at a Council meeting and consistent with all applicable laws. Matters brought before the Council that require Council action may be referred to staff or placed on a future Council agenda.

No question shall be asked of a council member, city staff, or an audience member except through the Mayor. No person shall use vulgar, profane, loud or boisterous language that interrupts a meeting. Any person who refuses to carry out instructions given by the Mayor for the purpose of maintaining order may be guilty of an infraction and may result in removal from the meeting.

Council Meeting Access/Materials:

The agenda packet is available for review at Agendas and Minutes. The packet is typically posted to the City website the Friday before the meeting, but no later than 72 hours before the meeting.

Pursuant to Government Code 54957.5, supplemental materials distributed less than 72 hours before this meeting, to a majority of the City Council, will be made available for public inspection at this meeting and will be posted, if time allows, at Agendas and Minutes. Materials prepared by City staff and distributed during the meeting are available for public inspection at the meeting or after the meeting if prepared by some other person. Documents related to closed session items or are exempt from disclosure will not be made available for public inspection. For those persons who require special accommodations, please contact the City Clerk at least two days prior to the meeting at City Clerk or 510-578-4266.

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Item B. 1.

DATE 01/13/2022
TO Honorable Mayor and City Council Members
FROM Sheila Harrington, City Clerk
SUBJECT Introduction of employees
The following employees will be introduced at the City Council meeting:

Chief Building Official Matthew Farrell
Sergeant Matthew Warren
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Item D. 1.

DATE 01/13/2022
TO Honorable Mayor and City Council Members
FROM Krysten Lee, Finance Director
SUBJECT Approval of Audited Demands
Attachments
Audited Demands
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Item D. 2.

DATE 01/13/2022
TO Honorable Mayor and City Council Members
FROM Sheila Harrington, City Clerk
SUBJECT Approval of December 9, 2021, minutes
Attachments
Minutes
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City of Newark | Newark City Council
Mayor Alan L. Nagy | Vice Mayor Mike Bucci | Council Members: Luis L. Freitas, Maria “Sucy” Collazo, & Michael K. Hannon Thursday, December 9, 2021
7:00 P.M.

ROLL CALL
Mayor Nagy called the meeting to order at 7:00 p.m. Present were Council Member Hannon, Collazo, Freitas, and Vice Mayor Bucci.

PRESENTATIONS
Commending Planning Commissioner Karen Bridges
Mayor Nagy presented a commendation to Karen Bridges for her 28 years of service on the Planning Commission.

Presentation of Certificates of Appreciation to Judy Tokubo, Charlie Mensinger, and Elwood "Woody" Ballard
Mayor Nagy presented Certificates of Appreciation to: Judy Tokubo for her volunteer service with the Newark Optimist Club and Newark Library League; Charlie Mensinger for creating COVID-19 charts specific to the City of Newark; and Elwood “Woody” Ballard for 60 years of service as a Scout Leader, School Board Member, and community volunteer.

Presentation of commendations to retiring city employees Mayor Nagy presented retirement commendations to Police Sergeant Samuel Ackerman, Communications Supervisor Matthew Breen, Police Captain Chomnan Loth, and Recreation and Community Services Director David Zehnder.

PUBLIC COMMENT
No one requested to speak
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CONSENT CALENDAR
Council Member Hannon requested that item D.9 be pulled for separate consideration.

Vice Mayor Bucci moved, Council Member Hannon seconded, to approve Consent Calendar items D.1 through D.8 and D.10 through D.18, that the resolutions be numbered consecutively, and that reading of the titles suffice for adoption. The motion passed, 5 AYES.

Approval of Audited Demands
Approval of minutes of November 18, 2021
Adopt a Resolution confirming the continued existence of a local emergency due to the COVID-19 Pandemic
Resolution No. 11281
Adopt a Resolution Finding That There is a Proclaimed State of Emergency; Finding That Meeting in Person Would Present Imminent Risks to the Health or Safety of Attendees as a Result of the State of Emergency; and Authorizing Continued Remote Teleconferenced Meetings of the Legislative Bodies of the City of Newark for the 30 Day Period Beginning December 9 Pursuant to AB 361
Resolution No. 11282
Motion approving the 2022 Local Appointments List and distribution Motion Approved
Adopt resolutions establishing the City Council meeting calendar for 2022 and authorizing the City Manager to take administrative actions during the August Recess Resolution No. 11283 Calendar
Resolution No. 11284 August Recess
Adopt a resolution reappointing John Becker to the Planning Commission Resolution No. 11285
Adopt two resolutions for (1) class specification changes for the Building inspector series and (2) a personnel allocation change from two (2) Building Inspector I and one (1) Building Inspector II to three (3) Building Inspector I-II in the 2020-2022 Biennial Budget and Capital Improvement Plan
Resolution No. 11286 Class Specifications
Resolution No. 11287 Biennial Budget

PULLED FOR SEPARATE CONSIDERATION
Adopt a Resolution authorizing the City Manager to execute Task Order No. 24 to the Joint Powers Agreement with the City of Fremont for Case Management Services Resolution No. 11288
Contract No. 09044
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Adopt a resolution authorizing the City Manager to execute a five-year contract with Syserco, Inc. for energy management systems program support at the Silliman Center and the Civic Center, declaration of Syserco, Inc. as the single source vendor, and amendment of the 2020- 2022 Biennial Budget and Capital Improvement Plan
Resolution No. 11289
Contract No. 21059
Adopt a resolution authorizing the City Manager to execute Task Order No. 25 to the Joint Powers Agreement with the City of Fremont for Paratransit Services Resolution No. 11290
Contract No. 09044
Adopt a resolution authorizing a 3.3% increase to the solid waste collection, recycling and organics services maximum rates for Calendar Year 2022
Resolution No. 11291
Adopt two resolutions initiating proceedings for annexation of Tract 8453 to Zone 7 – Harbor Pointe of Landscaping and Lighting District No. 19, ordering and approving the preliminary Engineer’s Report, declaring intent to order annexation of Tract 8453 to the assessment district, and setting public hearing date on January 27, 2022 Resolution No. 11292 Initiate Proceedings
Resolution No. 11293 Preliminary Engineer’s Report
Consideration of claims of Lenika Howard, Khaylum Richard-Howard, Terry Franklin, Rameria Appleton, and Rameria Appleton for Ta’Meia Franklin Motion approved
Adopt a resolution Authorizing the City Manager to Execute the Third Amendment to the Contractual Services Agreement with Metropolitan Planning Group to Provide Project Review Services Associated with the proposed development referred to as FMC Willow Resolution No. 11294
Contract No. 20025
Adopt a resolution accepting Annual Impact Fee Reports for Fiscal Years 2018-2021 Resolution No. 11295
Adopt a Resolution Approving a Contractual Services Agreement with R.L. Banks & Associates, Inc. for Professional Consultant Services for Railroad Quiet Zone Study, Project 1276
Resolution No. 11296
Contract No. 21060

PULLED FOR SEPARATE CONSIDERATION
D.9 Adopt a resolution approving an amendment to the City's salary schedule for certain positions in the Exempt Service Employee Group to amend the Hourly Wage Rate Schedule for PartTime, Seasonal, and Temporary classifications, and revoking the previous resolution.

Resolution No. 11297
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that the annual review of the hourly wages for the Exempt Service Employee Group ensures compliance with minimum wage increases and commensurate increases to related classifications and supervisory wage relationships.

No one from the public requested to speak.

Council Member Hannon moved, Council Member Freitas seconded to adopt a resolution approving an amendment to the City's salary schedule for certain positions in the Exempt Service Employee Group to amend the Hourly Wage Rate Schedule for Part-Time, Seasonal, and Temporary classifications, and revoking the previous resolution. The motion passed, 5 AYES.

PUBLIC HEARINGS

OTHER BUSINESS
Adopt a resolution authorizing the City Manager to execute Task Order No. 2 with Quincy Engineering, Inc. for additional design services for the Central Avenue Overpass, Project 1014 Resolution No. 11298
Contract No. 15044
Public Works Director Fajeau and Assistant City Engineer Imai gave the staff report recommending approval. Presentation on file with City Clerk.

No one from the public requested to speak.

Council Member Freitas moved, Vice Mayor Bucci seconded to adopt a resolution authorizing the City Manager to execute Task Order No. 2 with Quincy Engineering, Inc. for additional design services for the Central Avenue Overpass, Project 1014. The motion passed, 5 AYES Presentation on Local Preference for Affordable Housing Consultant Paul Peninger recommended that the City create a live/work policy to apply to all projects receiving city support, Create a policy that will apply to 100% of available units, subject to regulatory and legal limitations and study findings, Implement a lottery-based selection process to equalize all households within each preference category to be managed by developer consistent with city guidelines, and require developers to establish and manage a wait list for each property.

Mr. Peninger stated that the next steps would be to prepare a displacement and disparate impact study, based on study findings and partner agency review, design a live/work policy, and then present to the City Council for review and adoption No one from the public requested to speak.

Mr. Peninger responded to Council questions regarding the study timeline, the lottery model, eligibility requirements/verification, and potential litigation concerns.

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This item was Informational only – no action was requested.

CITY COUNCIL MATTERS
Approval of Motion appointing Vice Mayor and Resolution authorizing the Vice Mayor to execute financial documents
Resolution No. 11299
Mayor Nagy thanked Vice Mayor Bucci for his service as Vice Mayor. Mayor Nagy nominated Council Member Hannon as Vice Mayor.

No one from the public requested to speak.

Vice Mayor Bucci moved, Council Member Collazo seconded to appoint Michael Hannon as Vice Mayor and to adopt a resolution authorizing the Vice Mayor to execute financial documents. The motion passed, 4 AYES, 1 ABSTENTION (Bucci).

Adopt a resolution confirming the Mayor's appointments to various agencies, boards, commissions, and committees
Resolution No. 11300
Mayor Nagy asked if there was any interest in changing the current council assignments.

None of the City Council Members requested changes. The assignments remained the same for the 2022 calendar year.

No one from the public requested to speak.

Council Member Hannon moved, Council Member Collazo seconded to adopt the resolution confirming the Mayor’s appointments to various agencies, boards, commissions, and committees. The motion passed, 5 AYES.

The 2022 Council Assignments:

Alameda County Fire Advisory Commission Council Members Bucci and Collazo – delegate and alternate
Alameda County Library Advisory
Commission
Council Members Collazo and Mayor
Nagy – delegate and alternate
Alameda-Contra Costa Transit District Policy
Advisory Committee
Council Members Bucci and Hannon –
delegates
Alameda County Transportation
Commission
Council Members Freitas and Collazo –
delegate and alternate
Alameda County Waste Management
Authority Board/Stopwaste.org
Council Members Hannon and Freitas –
delegate and alternate
Association of Bay Area Governments
(ABAG)
Council Member Bucci and Mayor Nagy –
delegate and alternate
Community Development Advisory Mayor Nagy and Council Member Freitas Packet Page 45
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Committee – delegates
Dumbarton Rail Policy Advisory Committee Mayor Nagy and Council Member Bucci – delegate and alternate
East Bay Community Energy Board of
Directors
Council Member Hannon and Mayor Nagy
– delegate and alternate
Newark City Council –Board of Education
Liaison Committee
Council Members Hannon and Collazo –
delegates
Tri-City Elder Coalition Mayor Nagy - delegate
Senior Citizen Standing Advisory Committee Mayor Nagy delegate and chairperson Southern Alameda County Geographic
Information System Authority
Mayor Nagy – delegate Council Member
Bucci - alternate
Tri-City Waste Facility Financing Mayor Nagy and Council Member Hannon – Authority delegates
The entire City Council wished everyone a happy and safe holiday season and thanked the retirees who were honored earlier in the meeting.

Mayor Nagy announced that he would adjourn the City Council meeting in memory of Vincent and Maureen Dobson, they were instrumental in the formation of the Newarks of the World Organization. He stated that there would be a DUI checkpoint in Newark.

Vice Mayor Hannon commended city staff for the tree lighting ceremony.

Council Member Freitas thanked Judy Tokubo, Charlie Mensinger and Woody Ballard for their service to the community.

Council Member Bucci thanked Karen Bridges for her 28 years of service on the Planning Commission.

Council Member Collazo thanked everyone who gives their time to our great city. Shop Newark.

CLOSED SESSION
Conference With Legal Counsel - Anticipated Litigation - Initiation of litigation pursuant to paragraph (4) of subdivision (d) of Section 54956.9: 2 cases.

At 8:57 p.m. the City Council recessed to a closed session.

At 9:07 p.m. the City Council convened in closed session.

At 9:47 p.m. the City Council reconvened in open session with all Council Members present.

Interim City Attorney Kokotaylo announced that the City Council voted unanimously to initiate litigation in two matters. The first matter was moved by Councilmember Bucci and seconded by Councilmember Collazo. The second matter was moved by Councilmember Bucci and Packet Page 46
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seconded by Vice-Mayor Hannon. Once litigation is formally commenced, the action, the defendants, and other particulars will be disclosed to any person upon inquiry unless doing so would jeopardize effective service of process or settlement negotiations.

ADJOURNMENT
At 9:47 p.m., Mayor Nagy adjourned the meeting in memory of Vincent and Maureen Dobson.

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Item D. 3.

DATE 01/13/2022
TO Honorable Mayor and City Council Members
FROM Skiff Sumner, Information Systems Specialist
SUBJECT Adopt a Resolution authorizing the City Manager to execute a purchase order with ePlus Technology, Inc., in an amount not to exceed $62,000 and approving a budget appropriation of $62,000 from the equipment replacement reserve fund to Information Systems Division contractual services for Rubrik.

RECOMMENDATION
Staff recommends that the City Council adopt a Resolution authorizing the purchase of Rubrik through ePlus Technology, in an amount not to exceed $62,000 and approving a budget appropriation of $62,000 from the equipment replacement reserve fund to Information Systems Division contractual services for Rubrik, a software solution that immediately backs up all data when it detects potential malware.

EXECUTIVE SUMMARY
The City continuously seeks resources to enhance network security and prevent data loss. Information Systems Division staff recently identified a more powerful software solution, Rubrik, that immediately backs up all data when it detects potential malware.

The cost of Rubrik through ePlus Technology will not exceed $62,000 and requires City Council approval.

BACKGROUND
Ransomware events are an unfortunate reality in today's technological world. Local municipalities have been attacked, causing major disruption to City operations. While data is being held for ransom, some organizations must suddenly find new ways of doing business with no access to systems or information. Recovery from a ransomware event can not only be expensive, but can take months to get back to business as usual, and important data could possibly never be restored.

City Council approved the Information Systems Division Strategic Framework on November 12, 2020, recognizing the importance of upgrading our hardware and software systems for network security and customer experience. One Security action item in the Strategic Framework is having an immutable backup solution that monitors for ransomware and minimizes data loss in a data breech event. (An immutable backup secures data by making it fixed and unchangeable. This backup type prevents data deletion and makes it recoverable at any time.) The Information Systems Division maintains a data storage and backup environment designed to minimize risk to the City of data loss due to system corruption, user error and catastrophic system or data Packet Page 48
of data loss due to system corruption, user error and catastrophic system or data center failure. Current systems in place to provide backup services have been in operation for many years and have faithfully provided a basic level of protection.

DISCUSSION/ANALYSIS
Information Systems Division staff reviewed the City's current data backup solution and compared it with those currently being offered and used by other local municipalities.

The City's current system does not offer a Government Community Cloud solution, nor does it claim that it is immutable, an important feature that dramatically decreases the likelihood of a data encryption event. Staff found competitive solutions with enhanced security features that better addressed our Strategic Framework goals, adding additional ability to protect data, prevent ransomware infection, recover from ransomware, and prepare for catastrophic failure. Once two solutions were identified as the most secure and cost-effective, staff contacted cities, including Fremont and Union City, to understand their experiences with these solutions. After evaluating and performing a proof of concept on the backup solution, staff feels confident that Rubrik is the best solution for our current and future data security needs. Staff contacted authorized vendors offering Rubrik and identified a cooperative agreement the City could use to satisfy the procurement process (Attachment A). ePlus Technology was then identified as the lowest cost solution.

Information Systems Division staff utilized analysis from Gartner and Infotech along with reviewing technical documentation, participating in product demonstrations, and interviewing technical staff from other cities. A combined approach of data storage, protection and cloud storage was identified to meet our Strategic Framework goals. By enhancing the depth of daily backups through replacement of the main storage platform, data corruption concerns are mitigated. Adding a backup solution that will provide immutable system copies for a minimum of 30 days and that will also transport data offsite will serve to protect against ransomware threats and physical disasters affecting the City Data Center.

FISCAL IMPACT
ePlus Technology provided a quote for Rubrik in the amount of $61,241.53, that includes one-time hardware and installation start-up costs, and three years of hardware and service support (Attachment B). An additional amount of $758.47 was added to cover the potential shipping and handling costs and round up to the nearest thousand, bringing the total not to exceed amount to $62,000. The Equipment Replacement reserve fund was identified as the funding source for the initial three year period. The annual cost of future years with Rubrik is estimated at $5,500 after the initial three years, and will be paid from the Information Systems Division operating budget.

REVIEW AND APPROVAL
Prepared by – Skiff Sumner, Information Systems Specialist Reviewed by – Lenka Hovorka, Assistant City Manager
Reviewed by – Kristopher J. Kokotaylo, Interim City Attorney Approved by – David J. Benoun, City Manager
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Attachments
NASPO Agrmt
Rubrik quote
Rubrik Resolution
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STATE OF UTAH COOPERATIVE CONTRACT AMENDMENT
AMENDMENT #: 8
CONTRACT #: AR2472
Starting Date: Unchanged
Expiration Date: Unchanged
TO BE ATTACHED AND MADE PART OF the specified contract by and between the State of Utah Division of Purchasing and Carahsoft Technology Corporation (Referred to as CONTRACTOR).

BOTH PARTIES AGREE TO AMEND THE CONTRACT AS FOLLOWS:

The following is hereby amended into Attachment E:
-- Okata, Inc. Master Subscription Agreement, attached herein; and -- those additional Service Provider Terms and Conditions, End User License Agreements, etc. provided on the Carahsoft designated webpage of the NASPO ValuePoint website here - http://naspovaluepoint.org/portfolios/portfolio-contractor/440/, under document “Carahsoft – Attachment E Additional Service Provider Terms and Conditions” as may be updated from time to time.

Nothing within this amendment is to be construed to amend any term or condition provided outside Attachment E.

Effective Date of Amendment: 6/30/2018
All other terms and conditions of the contract, including those previously modified, shall remain in full force and effect.

IN WITNESS WHEREOF, the parties sign and cause this contract to be executed.

CONTRACTOR STATE OF UTAH
Contractor’s Signature Date Director, State of Utah Division of Purchasing Date Contractor’s Name (Print)
Title (Print)
For Division of Purchasing Internal Use
Purchasing Agent Phone # E-mail Address Contract #
Solomon Kingston 801-538-3228 [email protected] AR2488 Kristina Smith
7/11/2018
Contracts Manager
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Attachment A1: NASPO ValuePoint Master Agreement Terms and Conditions

3. Term of the Master Agreement: The initial term of this Master Agreement is for ten (10) years with no renewal options.

4. Amendments: The terms of this Master Agreement shall not be waived, altered, modified, supplemented or amended in any manner whatsoever without prior written approval of the Lead State and Contractor.

5. Assignment/Subcontracts: Contractor shall not assign, sell, transfer, or sublet rights, or delegate responsibilities under this Master Agreement, in whole or in part, without the prior written approval of the Lead State.

The Lead State reserves the right to assign any rights or duties, including written assignment of contract administration duties to the NASPO Cooperative Purchasing Organization LLC, doing business as NASPO ValuePoint.

7. Termination: Unless otherwise stated, this Master Agreement may be terminated by either party upon 60 days written notice prior to the effective date of the termination.

Further, any Participating Entity may terminate its participation upon 30 days written notice, unless otherwise limited or stated in the Participating Addendum. Termination may be in whole or in part. Any termination under this provision shall not affect the rights and obligations attending orders outstanding at the time of termination, including any right of any Purchasing Entity to indemnification by the Contractor, rights of payment for Services delivered and accepted, data ownership, Contractor obligations regarding Purchasing Entity Data, rights attending default in performance an applicable Service Level of Agreement in association with any Order, Contractor obligations under Termination and Suspension of Service, and any responsibilities arising out of a Security Incident or Data Breach. Termination of the Master Agreement due to Contractor default may be immediate.

10. Defaults and Remedies
a. The occurrence of any of the following events shall be an event of default under this Master Agreement:
(1) Nonperformance of contractual requirements; or
(2) A material breach of any term or condition of this Master Agreement; or (3) Any certification, representation or warranty by Contractor in response to the Packet Page 60
solicitation or in this Master Agreement that proves to be untrue or materially misleading; or
(4) Institution of proceedings under any bankruptcy, insolvency, reorganization or similar law, by or against Contractor, or the appointment of a receiver or similar officer for Contractor or any of its property, which is not vacated or fully stayed within thirty (30) calendar days after the institution or occurrence thereof; or (5) Any default specified in another section of this Master Agreement. b. Upon the occurrence of an event of default, Lead State shall issue a written notice of default, identifying the nature of the default, and providing a period of 30 calendar days in which Contractor shall have an opportunity to cure the default. The Lead State shall not be required to provide advance written notice or a cure period and may immediately terminate this Master Agreement in whole or in part if the Lead State, in its sole discretion, determines that it is reasonably necessary to preserve public safety or prevent immediate public crisis. Time allowed for cure shall not diminish or eliminate Contractor’s liability for damages.
c. If Contractor is afforded an opportunity to cure and fails to cure the default within the period specified in the written notice of default, Contractor shall be in breach of its obligations under this Master Agreement and Lead State shall have the right to exercise any or all of the following remedies:
(1) Exercise any remedy provided by law; and
(2) Terminate this Master Agreement and any related Contracts or portions thereof; and
(3) Suspend Contractor from being able to respond to future bid solicitations; and
(4) Suspend Contractor’s performance; and
(5) Withhold payment until the default is remedied.
d. Unless otherwise specified in the Participating Addendum, in the event of a default under a Participating Addendum, a Participating Entity shall provide a written notice of default as described in this section and have all of the rights and remedies under this paragraph regarding its participation in the Master Agreement, in addition to those set forth in its Participating Addendum. Nothing in these Master Agreement Terms and Conditions shall be construed to limit the rights and remedies available to a Purchasing Entity under the applicable commercial code.

12. Force Majeure: Neither party shall be in default by reason of any failure in performance of this Contract in accordance with reasonable control and without fault or negligence on their part. Such causes may include, but are not restricted to, acts of nature or the public enemy, acts of the government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes and unusually severe weather, but in every case the failure to perform such must be beyond the reasonable control and without the fault or negligence of the party.

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13. Indemnification and Limitation of Liability
a. The Contractor shall defend, indemnify and hold harmless NASPO, NASPO ValuePoint, the Lead State, Participating Entities, and Purchasing Entities, along with their officers, agents, and employees as well as any person or entity for which they may be liable, from and against claims, damages or causes of action including reasonable attorneys’ fees and related costs for any death, bodily injury, or damage to real or tangible property arising directly or indirectly from the negligent or wrongful act(s), error(s), or omission(s) of the Contractor, its employees or subcontractors or volunteers, at any tier, relating to the performance under the Master Agreement. b. Indemnification – Intellectual Property. The Contractor shall defend, indemnify and hold harmless NASPO, NASPO ValuePoint, the Lead State, Participating Entities, Purchasing Entities, along with their officers, agents, and employees as well as any person or entity for which they may be liable ("Indemnified Party"), from and against claims, damages or causes of action including reasonable attorneys’ fees and related costs arising out of the claim that the Product or its use, infringes Intellectual Property rights ("Intellectual Property Claim") of another person or entity. (1) The Contractor’s obligations under this section shall not extend to:
a. Any use of the Services provided hereunder not contemplated in the product documentation.
b. Any use of the Services provided hereunder in combination with other products not contemplated hereunder or in the documentation, any use of modification of the Services provided hereunder except as permitted by this Agreement.
(2) The Indemnified Party shall notify the Contractor within a reasonable time after receiving notice of an Intellectual Property Claim. Even if the Indemnified Party fails to provide reasonable notice, the Contractor shall not be relieved from its obligations unless the Contractor can demonstrate that it was prejudiced in defending the Intellectual Property Claim resulting in increased expenses or loss to the Contractor and then only to the extent of the prejudice or expenses. If the Contractor promptly and reasonably investigates and defends any Intellectual Property Claim, it shall have control over the defense and settlement of it.

However, the Indemnified Party must consent in writing for any money damages or obligations for which it may be responsible. The Indemnified Party shall furnish, at the Contractor’s reasonable request and expense, information and assistance necessary for such defense. If the Contractor fails to vigorously pursue the defense or settlement of the Intellectual Property Claim, the Indemnified Party may assume the defense or settlement of it and the Contractor shall be liable for all costs and expenses, including reasonable attorneys’ fees and related costs, incurred by the Indemnified Party in the pursuit of the Intellectual Property Claim. Unless otherwise agreed in writing, this section is not Packet Page 62
subject to any limitations of liability in this Master Agreement or in any other document executed in conjunction with this Master Agreement. c. Except as otherwise set forth in the Indemnification Paragraphs above, the limit of liability shall be as follows:
(1) Contractor’s liability for any claim, loss or liability arising out of, or connected with the Services provided, and whether based upon default, or other liability such as breach of contract, warranty, negligence, misrepresentation or otherwise, shall in no case exceed direct damages in:
(i) an amount equal to two (2) times the charges specified in the Purchase Order for the Services, or parts thereof forming the basis of the Purchasing Entity’s claim, (said amount not to exceed a total of twelve (12) months charges payable under the applicable Purchase Order) or (ii) two million dollars ($2,000,000), whichever is greater. (2) The Purchasing Entity may retain such monies from any amount due Contractor as may be necessary to satisfy any claim for damages, costs and the like asserted against the Purchasing Entity unless Contractor at the time of the presentation of claim shall demonstrate to the Purchasing Entity’s satisfaction that sufficient monies are set aside by the Contractor in the form of a bond or through insurance coverage to cover associated damages and other costs. (3) Notwithstanding the above, neither the Contractor nor the Purchasing Entity shall be liable for any consequential, indirect or special damages of any kind which may result directly or indirectly from such performance, including, without limitation, damages resulting from loss of use or loss of profit by the Purchasing Entity, the Contractor, or by others.
d. The limitations of liability in Section 13(c) do not apply to claims for bodily injury or death as set forth in Section 13(a) or Intellectual Property Claims as set forth in Section 13(b).

14. Independent Contractor: The Contractor shall be an independent contractor.

Contractor shall have no authorization, express or implied, to bind the Lead State, Participating States, other Participating Entities, or Purchasing Entities to any agreements, settlements, liability or understanding whatsoever, and agrees not to hold itself out as agent except as expressly set forth herein or as expressly agreed in any Participating Addendum.

15. Individual Customers: Except to the extent modified by a Participating Addendum, each Purchasing Entity shall follow the terms and conditions of the Master Agreement and applicable Participating Addendum and will have the same rights and responsibilities for their purchases as the Lead State has in the Master Agreement, Packet Page 63
including but not limited to, any indemnity or right to recover any costs as such right is defined in the Master Agreement and applicable Participating Addendum for their purchases. Each Purchasing Entity will be responsible for its own charges, fees, and liabilities. The Contractor will apply the charges and invoice each Purchasing Entity individually.

18. No Waiver of Sovereign Immunity: In no event shall this Master Agreement, any Participating Addendum or any contract or any Purchase Order issued thereunder, or any act of a Lead State, a Participating Entity, or a Purchasing Entity be a waiver of any form of defense or immunity, whether sovereign immunity, governmental immunity, immunity based on the Eleventh Amendment to the Constitution of the United States or otherwise, from any claim or from the jurisdiction of any court.

This section applies to a claim brought against the Participating State only to the extent Congress has appropriately abrogated the Participating State’s sovereign immunity and is not consent by the Participating State to be sued in federal court. This section is also not a waiver by the Participating State of any form of immunity, including but not limited to sovereign immunity and immunity based on the Eleventh Amendment to the Constitution of the United States.

19. Ordering
a. Master Agreement order and purchase order numbers shall be clearly shown on all acknowledgments, shipping labels, packing slips, invoices, and on all correspondence. b. This Master Agreement permits Purchasing Entities to define project-specific requirements and informally compete the requirement among other firms having a Master Agreement on an “as needed” basis. This procedure may also be used when requirements are aggregated or other firm commitments may be made to achieve reductions in pricing. This procedure may be modified in Participating Addenda and adapted to Purchasing Entity rules and policies. The Purchasing Entity may in its sole discretion determine which firms should be solicited for a quote. The Purchasing Entity may select the quote that it considers most advantageous, cost and other factors considered.
c. Each Purchasing Entity will identify and utilize its own appropriate purchasing procedure and documentation. Contractor is expected to become familiar with the Purchasing Entities’ rules, policies, and procedures regarding the ordering of supplies and/or services contemplated by this Master Agreement.
d. Contractor shall not begin providing Services without a valid Service Level Agreement or other appropriate commitment document compliant with the law of the Purchasing Entity.
e. Orders may be placed consistent with the terms of this Master Agreement during the term of the Master Agreement.
f. All Orders pursuant to this Master Agreement, at a minimum, shall include:

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(1) The services or supplies being delivered;
(2) The place and requested time of delivery;
(3) A billing address;
(4) The name, phone number, and address of the Purchasing Entity representative;
(5) The price per unit or other pricing elements consistent with this Master Agreement and the contractor’s proposal;
(6) A ceiling amount of the order for services being ordered; and (7) The Master Agreement identifier and the Participating State contract identifier. g. All communications concerning administration of Orders placed shall be furnished solely to the authorized purchasing agent within the Purchasing Entity’s purchasing office, or to such other individual identified in writing in the Order. h. Orders must be placed pursuant to this Master Agreement prior to the termination date of this Master Agreement. Contractor is reminded that financial obligations of Purchasing Entities payable after the current applicable fiscal year are contingent upon agency funds for that purpose being appropriated, budgeted, and otherwise made available.
i. Notwithstanding the expiration or termination of this Master Agreement, Contractor agrees to perform in accordance with the terms of any Orders then outstanding at the time of such expiration or termination. Contractor shall not honor any Orders placed after the expiration or termination of this Master Agreement. Orders from any separate indefinite quantity, task orders, or other form of indefinite delivery order arrangement priced against this Master Agreement may not be placed after the expiration or termination of this Master Agreement, notwithstanding the term of any such indefinite delivery order agreement.

21. Payment: Unless otherwise stipulated in the Participating Addendum, Payment is normally made within 30 days following the date of a correct invoice is received.

Purchasing Entities reserve the right to withhold payment of a portion (including all if applicable) of disputed amount of an invoice. After 45 days the Contractor may assess overdue account charges up to a maximum rate of one percent per month on the outstanding balance. Payments will be remitted by mail. Payments may be made via a State or political subdivision “Purchasing Card” with no additional charge.

25. Purchasing Entity Data: Purchasing Entity retains full right and title to Data provided by it and any Data derived therefrom, including metadata.

Contractor shall not collect, access, or use user-specific Purchasing Entity Data except as strictly necessary to provide Service to the Purchasing Entity. No information regarding Purchasing Entity’s use of the Service may be disclosed, provided, rented or sold to any third party for any reason unless required by law or regulation or by an order of a court of competent jurisdiction. The obligation shall extend beyond the term of this Master Agreement in perpetuity.

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Contractor shall not use any information collected in connection with this Master Agreement, including Purchasing Entity Data, for any purpose other than fulfilling its obligations under this Master Agreement.

33. Waiver of Breach: Failure of the Lead State, Participating Entity, or Purchasing Entity to declare a default or enforce any rights and remedies shall not operate as a waiver under this Master Agreement or Participating Addendum. Any waiver by the Lead State, Participating Entity, or Purchasing Entity must be in writing. Waiver by the Lead State or Participating Entity of any default, right or remedy under this Master Agreement or Participating Addendum, or by Purchasing Entity with respect to any Purchase Order, or breach of any terms or requirements of this Master Agreement, a Participating Addendum, or Purchase Order shall not be construed or operate as a waiver of any subsequent default or breach of such term or requirement, or of any other term or requirement under this Master Agreement, Participating Addendum, or Purchase Order.

34. Assignment of Antitrust Rights: Contractor irrevocably assigns to a Participating Entity who is a state any claim for relief or cause of action which the Contractor now has or which may accrue to the Contractor in the future by reason of any violation of state or federal antitrust laws (15 U.S.C. § 1-15 or a Participating Entity’s state antitrust provisions), as now in effect and as may be amended from time to time, in connection with any goods or services provided to the Contractor for the purpose of carrying out the Contractor's obligations under this Master Agreement or Participating Addendum, including, at a Participating Entity's option, the right to control any such litigation on such claim for relief or cause of action.

36. Performance and Payment Time Frames that Exceed Contract Duration: All maintenance or other agreements for services entered into during the duration of an SLA and whose performance and payment time frames extend beyond the duration of this Master Agreement shall remain in effect for performance and payment purposes (limited to the time frame and services established per each written agreement). No new leases, maintenance or other agreements for services may be executed after the Master Agreement has expired. For the purposes of this section, renewals of maintenance, subscriptions, SaaS subscriptions and agreements, and other service agreements, shall not be considered as “new.”

38. No Guarantee of Service Volumes: The Contractor acknowledges and agrees that the Lead State and NASPO ValuePoint makes no representation, warranty or condition as to the nature, timing, quality, quantity or volume of business for the Services or any other products and services that the Contractor may realize from this Master Agreement, or the compensation that may be earned by the Contractor by offering the Services. The Contractor acknowledges and agrees that it has conducted its own due diligence prior to entering into this Master Agreement as to all the foregoing matters.

39. NASPO ValuePoint eMarket Center: In July 2011, NASPO ValuePoint entered into a multi-year agreement with SciQuest, Inc. whereby SciQuest will provide certain electronic catalog hosting and management services to enable eligible NASPO Packet Page 66
ValuePoint’s customers to access a central online website to view and/or shop the goods and services available from existing NASPO ValuePoint Cooperative Contracts.

The central online website is referred to as the NASPO ValuePoint eMarket Center.

The Contractor will have visibility in the eMarket Center through Ordering Instructions.

These Ordering Instructions are available at no cost to the Contractor and provided customers information regarding the Contractors website and ordering information.

At a minimum, the Contractor agrees to the following timeline: NASPO ValuePoint eMarket Center Site Admin shall provide a written request to the Contractor to begin Ordering Instruction process. The Contractor shall have thirty (30) days from receipt of written request to work with NASPO ValuePoint to provide any unique information and ordering instructions that the Contractor would like the customer to have.

41. Government Support: No support, facility space, materials, special access, personnel or other obligations on behalf of the states or other Participating Entities, other than payment, are required under the Master Agreement.

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Attachment A: NASPO ValuePoint Master Agreement Terms and Conditions

1. Master Agreement Order of Precedence
a. Any Order placed under this Master Agreement shall consist of the following documents:
(1) A Participating Entity’s Participating Addendum1(“PA”); (2) NASPO ValuePoint Master Agreement Terms & Conditions, including the applicable Exhibits2 to the Master Agreement;
(3) The Solicitation;
(4) Contractor’s response to the Solicitation, as revised (if permitted) and accepted by the Lead State; and
(5) A Service Level Agreement issued against the Participating Addendum. b. These documents shall be read to be consistent and complementary. Any conflict among these documents shall be resolved by giving priority to these documents in the order listed above. Contractor terms and conditions that apply to this Master Agreement are only those that are expressly accepted by the Lead State and must be in writing and attached to this Master Agreement as an Exhibit or Attachment.

2. Definitions - Unless otherwise provided in this Master Agreement, capitalized terms will have the meanings given to those terms in this Section.

Confidential Information means any and all information of any form that is marked as confidential or would by its nature be deemed confidential obtained by Contractor or its employees or agents in the performance of this Master Agreement, including, but not necessarily limited to (1) any Purchasing Entity’s records, (2) personnel records, and (3) information concerning individuals, is confidential information of Purchasing Entity.

Contractor means the person or entity providing solutions under the terms and conditions set forth in this Master Agreement. Contractor also includes its employees, subcontractors, agents and affiliates who are providing the services agreed to under the 1 A Sample Participating Addendum will be published after the contracts have been awarded. 2 The Exhibits comprise the terms and conditions for the service models: PaaS, IaaS, and PaaS.

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Master Agreement.

Data means all information, whether in oral or written (including electronic) form, created by or in any way originating with a Participating Entity or Purchasing Entity, and all information that is the output of any computer processing, or other electronic manipulation, of any information that was created by or in any way originating with a Participating Entity or Purchasing Entity, in the course of using and configuring the Services provided under this Agreement.

Data Breach means any actual or reasonably suspected non-authorized access to or acquisition of computerized Non-Public Data or Personal Data that compromises the security, confidentiality, or integrity of the Non-Public Data or Personal Data, or the ability of Purchasing Entity to access the Non-Public Data or Personal Data.

Data Categorization means the process of risk assessment of Data. See also “High Risk Data”, “Moderate Risk Data” and “Low Risk Data”.

Disabling Code means computer instructions or programs, subroutines, code, instructions, data or functions, (including but not limited to viruses, worms, date bombs or time bombs), including but not limited to other programs, data storage, computer libraries and programs that self-replicate without manual intervention, instructions programmed to activate at a predetermined time or upon a specified event, and/or programs purporting to do a meaningful function but designed for a different function, that alter, destroy, inhibit, damage, interrupt, interfere with or hinder the operation of the Purchasing Entity’s’ software, applications and/or its end users processing environment, the system in which it resides, or any other software or data on such system or any other system with which it is capable of communicating.

Fulfillment Partner means a third-party contractor qualified and authorized by Contractor, and approved by the Participating State under a Participating Addendum, who may, to the extent authorized by Contractor, fulfill any of the requirements of this Master Agreement including but not limited to providing Services under this Master Agreement and billing Customers directly for such Services. Contractor may, upon written notice to the Participating State, add or delete authorized Fulfillment Partners as necessary at any time during the contract term. Fulfillment Partner has no authority to amend this Master Agreement or to bind Contractor to any additional terms and conditions.

High Risk Data is as defined in FIPS PUB 199, Standards for Security Categorization of Federal Information and Information Systems (“High Impact Data”).

Infrastructure as a Service (IaaS) as used in this Master Agreement is defined the capability provided to the consumer to provision processing, storage, networks, and other fundamental computing resources where the consumer is able to deploy and run Packet Page 70
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arbitrary software, which can include operating systems and applications. The consumer does not manage or control the underlying cloud infrastructure but has control over operating systems, storage, deployed applications; and possibly limited control of select networking components (e.g., host firewalls).

Intellectual Property means any and all patents, copyrights, service marks, trademarks, trade secrets, trade names, patentable inventions, or other similar proprietary rights, in tangible or intangible form, and all rights, title, and interest therein.

Lead State means the State centrally administering the solicitation and any resulting Master Agreement(s).

Low Risk Data is as defined in FIPS PUB 199, Standards for Security Categorization of Federal Information and Information Systems (“Low Impact Data”).

Master Agreement means this agreement executed by and between the Lead State, acting on behalf of NASPO ValuePoint, and the Contractor, as now or hereafter amended.

Moderate Risk Data is as defined in FIPS PUB 199, Standards for Security Categorization of Federal Information and Information Systems (“Moderate Impact Data”).

NASPO ValuePoint is the NASPO ValuePoint Cooperative Purchasing Program, facilitated by the NASPO Cooperative Purchasing Organization LLC, a 501(c)(3) limited liability company (doing business as NASPO ValuePoint) is a subsidiary organization the National Association of State Procurement Officials (NASPO), the sole member of NASPO ValuePoint. The NASPO ValuePoint Cooperative Purchasing Organization facilitates administration of the cooperative group contracting consortium of state chief procurement officials for the benefit of state departments, institutions, agencies, and political subdivisions and other eligible entities (i.e., colleges, school districts, counties, cities, some nonprofit organizations, etc.) for all states and the District of Columbia. The NASPO ValuePoint Cooperative Development Team is identified in the Master Agreement as the recipient of reports and may be performing contract administration functions as assigned by the Lead State.

Non-Public Data means High Risk Data and Moderate Risk Data that is not subject to distribution to the public as public information. It is deemed to be sensitive and confidential by the Purchasing Entity because it contains information that is exempt by statute, ordinance or administrative rule from access by the general public as public information.

Participating Addendum means a bilateral agreement executed by a Contractor and a Participating Entity incorporating this Master Agreement and any other additional Participating Entity specific language or other requirements, e.g. ordering procedures Packet Page 71
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specific to the Participating Entity, other terms and conditions.

Participating Entity means a state, or other legal entity, properly authorized to enter into a Participating Addendum.

Participating State means a state, the District of Columbia, or one of the territories of the United States that is listed in the Request for Proposal as intending to participate.

Upon execution of the Participating Addendum, a Participating State becomes a Participating Entity.

Personal Data means data alone or in combination that includes information relating to an individual that identifies the individual by name, identifying number, mark or description can be readily associated with a particular individual and which is not a public record. Personal Information may include the following personally identifiable information (PII): government-issued identification numbers (e.g., Social Security, driver’s license, passport); financial account information, including account number, credit or debit card numbers; or Protected Health Information (PHI) relating to a person.

Platform as a Service (PaaS) as used in this Master Agreement is defined as the capability provided to the consumer to deploy onto the cloud infrastructure consumercreated or -acquired applications created using programming languages and tools supported by the provider. This capability does not necessarily preclude the use of compatible programming languages, libraries, services, and tools from other sources.

The consumer does not manage or control the underlying cloud infrastructure including network, servers, operating systems, or storage, but has control over the deployed applications and possibly application hosting environment configurations.

Product means any deliverable under this Master Agreement, including Services, software, and any incidental tangible goods.

Protected Health Information (PHI) means individually identifiable health information transmitted by electronic media, maintained in electronic media, or transmitted or maintained in any other form or medium. PHI excludes education records covered by the Family Educational Rights and Privacy Act (FERPA), as amended, 20 U.S.C. 1232g, records described at 20 U.S.C. 1232g(a)(4)(B)(iv) and employment records held by a covered entity in its role as employer. PHI may also include information that is a subset of health information, including demographic information collected from an individual, and (1) is created or received by a health care provider, health plan, employer or health care clearinghouse; and (2) relates to the past, present or future physical or mental health or condition of an individual; the provision of health care to an individual; or the past, present or future payment for the provision of health care to an individual; and (a) that identifies the individual; or (b) with respect to which there is a reasonable basis to believe the information can be used to identify the individual.

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Purchasing Entity means a state, city, county, district, other political subdivision of a State, and a nonprofit organization under the laws of some states if authorized by a Participating Addendum, who issues a Purchase Order against the Master Agreement and becomes financially committed to the purchase.

Services mean any of the specifications described in the Scope of Services that are supplied or created by the Contractor pursuant to this Master Agreement.

Security Incident means the possible or actual unauthorized access to a Purchasing Entity’s Non-Public Data and Personal Data the Contractor believes could reasonably result in the use, disclosure or theft of a Purchasing Entity’s Non-Public Data within the possession or control of the Contractor. A Security Incident also includes a major security breach to the Contractor’s system, regardless if Contractor is aware of unauthorized access to a Purchasing Entity’s Non-Public Data. A Security Incident may or may not turn into a Data Breach.

Service Level Agreement (SLA) means a written agreement between both the Purchasing Entity and the Contractor that is subject to the terms and conditions in this Master Agreement and relevant Participating Addendum unless otherwise expressly agreed in writing between the Purchasing Entity and the Contractor. SLAs should include: (1) the technical service level performance promises, (i.e. metrics for performance and intervals for measure), (2) description of service quality, (3) identification of roles and responsibilities, (4) remedies, such as credits, and (5) an explanation of how remedies or credits are calculated and issued.

Software as a Service (SaaS) as used in this Master Agreement is defined as the capability provided to the consumer to use the Contractor’s applications running on a Contractor’s infrastructure (commonly referred to as ‘cloud infrastructure). The applications are accessible from various client devices through a thin client interface such as a Web browser (e.g., Web-based email), or a program interface. The consumer does not manage or control the underlying cloud infrastructure including network, servers, operating systems, storage, or even individual application capabilities, with the possible exception of limited user-specific application configuration settings.

Solicitation means the documents used by the State of Utah, as the Lead State, to obtain Contractor’s Proposal.

Statement of Work means a written statement in a solicitation document or contract that describes the Purchasing Entity’s service needs and expectations.

6. Discount Guarantee Period: All discounts must be guaranteed for the entire term of the Master Agreement. Participating Entities and Purchasing Entities shall receive the immediate benefit of price or rate reduction of the services provided under this Master Agreement. A price or rate reduction will apply automatically to the Master Agreement Packet Page 73
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and an amendment is not necessary.

8. Confidentiality, Non-Disclosure, and Injunctive Relief a. Confidentiality. Contractor acknowledges that it and its employees or agents may, in the course of providing a Product under this Master Agreement, be exposed to or acquire information that is confidential to Purchasing Entity’s or Purchasing Entity’s clients. Any reports or other documents or items (including software) that result from the use of the Confidential Information by Contractor shall be treated in the same manner as the Confidential Information. Confidential Information does not include information that (1) is or becomes (other than by disclosure by Contractor) publicly known; (2) is furnished by Purchasing Entity to others without restrictions similar to those imposed by this Master Agreement; (3) is rightfully in Contractor’s possession without the obligation of nondisclosure prior to the time of its disclosure under this Master Agreement; (4) is obtained from a source other than Purchasing Entity without the obligation of confidentiality, (5) is disclosed with the written consent of Purchasing Entity or; (6) is independently developed by employees, agents or subcontractors of Contractor who can be shown to have had no access to the Confidential Information. b. Non-Disclosure. Contractor shall hold Confidential Information in confidence, using at least the industry standard of confidentiality, and shall not copy, reproduce, sell, assign, license, market, transfer or otherwise dispose of, give, or disclose Confidential Information to third parties or use Confidential Information for any purposes whatsoever other than what is necessary to the performance of Orders placed under this Master Agreement. Contractor shall advise each of its employees and agents of their obligations to keep Confidential Information confidential. Contractor shall use commercially reasonable efforts to assist Purchasing Entity in identifying and preventing any unauthorized use or disclosure of any Confidential Information. Without limiting the generality of the foregoing, Contractor shall advise Purchasing Entity, applicable Participating Entity, and the Lead State immediately if Contractor learns or has reason to believe that any person who has had access to Confidential Information has violated or intends to violate the terms of this Master Agreement, and Contractor shall at its expense cooperate with Purchasing Entity in seeking injunctive or other equitable relief in the name of Purchasing Entity or Contractor against any such person. Except as directed by Purchasing Entity, Contractor will not at any time during or after the term of this Master Agreement disclose, directly or indirectly, any Confidential Information to any person, except in accordance with this Master Agreement, and that upon termination of this Master Agreement or at Purchasing Entity’s request, Contractor shall turn over to Purchasing Entity all documents, papers, and other matter in Contractor's possession that embody Confidential Information. Notwithstanding the foregoing, Contractor may keep one copy of such Confidential Information necessary for quality assurance, audits and evidence of the performance of this Master Agreement. c. Injunctive Relief. Contractor acknowledges that breach of this section, including disclosure of any Confidential Information, will cause irreparable injury to Purchasing Packet Page 74
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Entity that is inadequately compensable in damages. Accordingly, Purchasing Entity may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies that may be available.

Contractor acknowledges and agrees that the covenants contained herein are necessary for the protection of the legitimate business interests of Purchasing Entity and are reasonable in scope and content.
d. Purchasing Entity Law. These provisions shall be applicable only to extent they are not in conflict with the applicable public disclosure laws of any Purchasing Entity.

9. Right to Publish: Throughout the duration of this Master Agreement, Contractor must secure prior approval from the Lead State or Participating Entity for the release of any information that pertains to the potential work or activities covered by the Master Agreement , including but not limited to reference to or use of the Lead State or a Participating Entity’s name, Great Seal of the State, Coat of Arms, any Agency or other subunits of the State government, or any State official or employee, for commercial promotion which is strictly prohibited. News releases or release of broadcast e-mails pertaining to this Master Agreement or Participating Addendum shall not be made without prior written approval of the Lead State or a Participating Entity.

The Contractor shall not make any representations of NASPO ValuePoint’s opinion or position as to the quality or effectiveness of the services that are the subject of this Master Agreement without prior written consent. Failure to adhere to this requirement may result in termination of the Master Agreement for cause.

11. Changes in Contractor Representation: The Contractor must notify the Lead State of changes in the Contractor’s key administrative personnel, in writing within 10 calendar days of the change. The Lead State reserves the right to approve changes in key personnel, as identified in the Contractor’s proposal. The Contractor agrees to propose replacement key personnel having substantially equal or better education, training, and experience as was possessed by the key person proposed and evaluated in the Contractor’s proposal.

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person or entity for which they may be liable ("Indemnified Party"), from and against claims, damages or causes of action including reasonable attorneys’ fees and related costs arising out of the claim that the Product or its use, infringes Intellectual Property rights ("Intellectual Property Claim") of another person or entity. (1) The Contractor’s obligations under this section shall not extend to:
a. Any use of the Services provided hereunder not contemplated in the product documentation.
b. Any use of the Services provided hereunder in combination with other products not contemplated hereunder or in the documentation, any use of modification of the Services provided hereunder except as permitted by this Agreement.
(2) The Indemnified Party shall notify the Contractor within a reasonable time after receiving notice of an Intellectual Property Claim. Even if the Indemnified Party fails to provide reasonable notice, the Contractor shall not be relieved from its obligations unless the Contractor can demonstrate that it was prejudiced in defending the Intellectual Property Claim resulting in increased expenses or loss to the Contractor and then only to the extent of the prejudice or expenses. If the Contractor promptly and reasonably investigates and defends any Intellectual Property Claim, it shall have control over the defense and settlement of it. However, the Indemnified Party must consent in writing for any money damages or obligations for which it may be responsible. The Indemnified Party shall furnish, at the Contractor’s reasonable request and expense, information and assistance necessary for such defense. If the Contractor fails to vigorously pursue the defense or settlement of the Intellectual Property Claim, the Indemnified Party may assume the defense or settlement of it and the Contractor shall be liable for all costs and expenses, including reasonable attorneys’ fees and related costs, incurred by the Indemnified Party in the pursuit of the Intellectual Property Claim. Unless otherwise agreed in writing, this section is not subject to any limitations of liability in this Master Agreement or in any other document executed in conjunction with this Master Agreement.
b. Except as otherwise set forth in the Indemnification Paragraphs above, the limit of liability shall be as follows:
i. Contractor’s liability for any claim, loss or liability arising out of, or connected with the Services provided, and whether based upon default, or other liability such as breach of contract, warranty, negligence, misrepresentation or otherwise, shall in no case exceed direct damages in: (i) an amount equal to two (2) times the charges specified in the Purchase Order for the Services, or parts thereof forming the basis of the Purchasing Entity’s claim, (said amount not to exceed a total of twelve (12) months charges payable under the applicable Packet Page 76
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Purchase Order) or (ii) two million dollars ($2,000,000), whichever is greater. ii. The Purchasing Entity may retain such monies from any amount due Contractor as may be necessary to satisfy any claim for damages, costs and the like asserted against the Purchasing Entity unless Contractor at the time of the presentation of claim shall demonstrate to the Purchasing Entity’s satisfaction that sufficient monies are set aside by the Contractor in the form of a bond or through insurance coverage to cover associated damages and other costs. iii. Notwithstanding the above, neither the Contractor nor the Purchasing Entity shall be liable for any consequential, indirect or special damages of any kind which may result directly or indirectly from such performance, including, without limitation, damages resulting from loss of use or loss of profit by the Purchasing Entity, the Contractor, or by others.
iv. The limitations of liability in Section 43 will not apply to claims for bodily injury or death as set forth in Section 13, and Section 30 when made applicable under a specific purchase order.

16. Insurance
a. Unless otherwise agreed in a Participating Addendum, Contractor shall, during the term of this Master Agreement, maintain in full force and effect, the insurance described in this section. Contractor shall acquire such insurance from an insurance carrier or carriers licensed to conduct business in each Participating Entity’s state and having a rating of A-, Class VII or better, in the most recently published edition of Best’s Reports.

Failure to buy and maintain the required insurance may result in this Master Agreement’s termination or, at a Participating Entity’s option, result in termination of its Participating Addendum.
b. Coverage shall be written on an occurrence basis. The minimum acceptable limits shall be as indicated below, with no deductible for each of the following categories:
(1) Commercial General Liability covering premises operations, independent contractors, products and completed operations, blanket contractual liability, personal injury (including death), advertising liability, and property damage, with a limit of not less than $1 million per occurrence/$3 million general aggregate;
(2) CLOUD MINIMUM INSURANCE COVERAGE:

Level of
Risk
Data Breach and Privacy/Cyber
Liability including Technology
Errors and Omissions
Minimum Insurance Coverage
Crime Insurance
Minimum Insurance
Coverage
Low $2,000,000 $2,000,000
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Moderate $5,000,000 $5,000,000
High $10,000,000 $10,000,000
(3) Contractor must comply with any applicable State Workers Compensation or Employers Liability Insurance requirements.
(4) Professional Liability. As applicable, Professional Liability Insurance Policy in the minimum amount of $1,000,000 per occurrence and $1,000,000 in the aggregate, written on an occurrence form that provides coverage for its work undertaken pursuant to each Participating Addendum.
c. Contractor shall pay premiums on all insurance policies. Such policies shall also reference this Master Agreement and shall have a condition that they not be revoked by the insurer until thirty (30) calendar days after notice of intended revocation thereof shall have been given to Purchasing Entity and Participating Entity by the Contractor. d. Prior to commencement of performance, Contractor shall provide to the Lead State a written endorsement to the Contractor’s general liability insurance policy or other documentary evidence acceptable to the Lead State that (1) names the Participating States identified in the Request for Proposal as additional insureds, (2) provides that no material alteration, cancellation, non-renewal, or expiration of the coverage contained in such policy shall have effect unless the named Participating State has been given at least thirty (30) days prior written notice, and (3) provides that the Contractor’s liability insurance policy shall be primary, with any liability insurance of any Participating State as secondary and noncontributory. Unless otherwise agreed in any Participating Addendum, the Participating Entity’s rights and Contractor’s obligations are the same as those specified in the first sentence of this subsection. Before performance of any Purchase Order issued after execution of a Participating Addendum authorizing it, the Contractor shall provide to a Purchasing Entity or Participating Entity who requests it the same information described in this subsection.
e. Contractor shall furnish to the Lead State, Participating Entity, and, on request, the Purchasing Entity copies of certificates of all required insurance within thirty (30) calendar days of the execution of this Master Agreement, the execution of a Participating Addendum, or the Purchase Order’s effective date and prior to performing any work. The insurance certificate shall provide the following information: the name and address of the insured; name, address, telephone number and signature of the authorized agent; name of the insurance company (authorized to operate in all states); a description of coverage in detailed standard terminology (including policy period, policy number, limits of liability, exclusions and endorsements); and an acknowledgment of the requirement for notice of cancellation. Copies of renewal certificates of all required insurance shall be furnished within thirty (30) days after any renewal date.

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may, at sole option of the Lead State, or any Participating Entity, result in this Master Agreement’s termination or the termination of any Participating Addendum. f. Coverage and limits shall not limit Contractor’s liability and obligations under this Master Agreement, any Participating Addendum, or any Purchase Order.

17. Laws and Regulations: Any and all Services offered and furnished shall comply fully with all applicable Federal and State laws and regulations.

The federal and state laws, regulations, policies, standards, and guidelines that Contractors doing business with the Participating Entities must be aware of, include, but not limited to: Criminal Justice Information Services (CJIS) Security Policy; Federal Educational Rights and Privacy Act (FERPA); Federal Information Security Management Act (FISMA); National Institute of Technology Standards; Gramm-LeachBliley Act (GLB) Act; Health Insurance Portability and Accountability Act (HIPAA); Health Information Technology for Economic and Clinical Health Act (HITECH); IRS Publication 1075; Payment Card Industry Data Security Standard (PCI DSS); SarbanesOxley Act (SOX); Electronic Communications Privacy Act, Stored Communications Act and the PATRIOT Act. The list is intentionally United States-centric, and is not intended to be all-inclusive. Further, since laws, regulations, requirements and industry guidelines change, consulting definitive sources to assure a clear understanding of compliance requirements is critical. Many State Entities have additional program compliance requirements that must be considered in addressing compliance. (e.g., DMV Privacy Act, Public Service Law, etc.).

20. Participants and Scope
a. Contractor may not deliver Services under this Master Agreement until a Participating Addendum acceptable to the Participating Entity and Contractor is executed. The NASPO ValuePoint Master Agreement Terms and Conditions are applicable to any Order by a Participating Entity (and other Purchasing Entities covered by their Participating Addendum), except to the extent altered, modified, supplemented or amended by a Participating Addendum. By way of illustration and not limitation, this authority may apply to unique delivery and invoicing requirements, confidentiality requirements, defaults on Orders, governing law and venue relating to Orders by a Participating Entity, indemnification, and insurance requirements. Statutory or constitutional requirements relating to availability of funds may require specific language in some Participating Addenda in order to comply with applicable law. The expectation is that these alterations, modifications, supplements, or amendments will be addressed in the Participating Addendum or, with the consent of the Purchasing Entity and Contractor, may be included in the ordering document (e.g. purchase order or contract) used by the Purchasing Entity to place the Order.
b. Subject to subsection 20c and a Participating Entity’s Participating Addendum, the use of specific NASPO ValuePoint cooperative Master Agreements by state agencies, political subdivisions and other Participating Entities (including cooperatives) authorized Packet Page 79
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by individual state’s statutes to use state contracts is subject to the approval of the respective State Chief Procurement Official.
c. Unless otherwise stipulated in a Participating Entity’s Participating Addendum, specific services accessed through the NASPO ValuePoint cooperative Master Agreements for Cloud Services by state executive branch agencies, as required by a Participating Entity’s statutes, are subject to the authority and approval of the Participating Entity’s Chief Information Officer’s Office3 .
d. Obligations under this Master Agreement are limited to those Participating Entities who have signed a Participating Addendum and Purchasing Entities within the scope of those Participating Addenda. Financial obligations of Participating States are limited to the orders placed by the departments or other state agencies and institutions having available funds. Participating States incur no financial obligations on behalf of political subdivisions.
e. NASPO ValuePoint is not a party to the Master Agreement. It is a nonprofit cooperative purchasing organization assisting states in administering the NASPO ValuePoint cooperative purchasing program for state government departments, institutions, agencies and political subdivisions (e.g., colleges, school districts, counties, cities, etc.) for all 50 states, the District of Columbia and the territories of the United States.
f. Participating Addenda shall not be construed to amend the terms of this Master Agreement between the Lead State and Contractor.

g. Participating Entities who are not states may under some circumstances sign their own Participating Addendum, subject to the approval of participation by the Chief Procurement Official of the state where the Participating Entity is located. Coordinate requests for such participation through NASPO ValuePoint. Any permission to participate through execution of a Participating Addendum is not a determination that procurement authority exists in the Participating Entity; they must ensure that they have the requisite procurement authority to execute a Participating Addendum. h. Resale. Subject to any explicit permission in a Participating Addendum, Purchasing Entities may not resell goods, software, or Services obtained under this Master Agreement. This limitation does not prohibit: payments by employees of a Purchasing Entity as explicitly permitted under this agreement; sales of goods to the general public as surplus property; and fees associated with inventory transactions with other governmental or nonprofit entities under cooperative agreements and consistent with a Purchasing Entity’s laws and regulations. Any sale or transfer permitted by this

3 Chief Information Officer means the individual designated by the Governor with Executive Branch, enterprisewide responsibility for the leadership and management of information technology resources of a state.

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subsection must be consistent with license rights granted for use of intellectual property.

22. Data Access Controls: Contractor will provide access to Purchasing Entity’s Data only to those Contractor employees, contractors and subcontractors (“Contractor Staff”) who need to access the Data to fulfill Contractor’s obligations under this Agreement.

Contractor shall not access a Purchasing Entity’s user accounts or Data, except on the course of data center operations, response to service or technical issues, as required by the express terms of this Master Agreement, or at a Purchasing Entity’s written request.

Contractor may not share a Purchasing Entity’s Data with its parent corporation, other affiliates, or any other third party without the Purchasing Entity’s express written consent.

Contractor will ensure that, prior to being granted access to the Data, Contractor Staff who perform work under this Agreement have successfully completed annual instruction of a nature sufficient to enable them to effectively comply with all Data protection provisions of this Agreement; and possess all qualifications appropriate to the nature of the employees’ duties and the sensitivity of the Data they will be handling.

23. Operations Management: Contractor shall maintain the administrative, physical, technical, and procedural infrastructure associated with the provision of the Product in a manner that is, at all times during the term of this Master Agreement, at a level equal to or more stringent than those specified in the Solicitation. Contractor must maintain any certifications required under the Solicitation.

24. Public Information: This Master Agreement and all related documents are subject to disclosure pursuant to the Purchasing Entity’s public information laws.

26. Records Administration and Audit.
a. The Contractor shall maintain books, records, documents, and other evidence pertaining to this Master Agreement and orders placed by Purchasing Entities under it to the extent and in such detail as shall adequately reflect performance and administration of payments and fees. Contractor shall permit the Lead State, a Participating Entity, a Purchasing Entity, the federal government (including its grant awarding entities and the U.S. Comptroller General), and any other duly authorized agent of a governmental agency, to audit, inspect, examine, copy and/or transcribe Contractor's books, documents, papers and records directly pertinent to this Master Agreement or orders placed by a Purchasing Entity under it for the purpose of making audits, examinations, excerpts, and transcriptions. This right shall survive for a period of six (6) years following termination of this Agreement or final payment for any order placed by a Purchasing Entity against this Agreement, whichever is later, to assure compliance with the terms hereof or to evaluate performance hereunder. b. Without limiting any other remedy available to any governmental entity, the Packet Page 81
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Contractor shall reimburse the applicable Lead State, Participating Entity, or Purchasing Entity for any overpayments inconsistent with the terms of the Master Agreement or orders or underpayment of fees found as a result of the examination of the Contractor’s records.
c. The rights and obligations herein exist in addition to any quality assurance obligation in the Master Agreement requiring the Contractor to self-audit contract obligations and that permits the Lead State to review compliance with those obligations. d. The Contractor shall allow the Purchasing Entity to audit conformance to the Master Agreement and applicable Participating Addendum terms. The purchasing entity may perform this audit or contract with a third party at its discretion and at the purchasing entity’s expense.

27. Administrative Fees: The Contractor shall pay to NASPO ValuePoint, or its assignee, a NASPO ValuePoint Administrative Fee of one-quarter of one percent (0.25% or 0.0025) no later than 60 days following the end of each calendar quarter. The NASPO ValuePoint Administrative Fee shall be submitted quarterly and is based on sales of the Services. The NASPO ValuePoint Administrative Fee is not negotiable. This fee is to be included as part of the pricing submitted with proposal.

Additionally, some states may require an additional administrative fee be paid directly to the state on purchases made by Purchasing Entities within that state. For all such requests, the fee level, payment method and schedule for such reports and payments will be incorporated into the Participating Addendum that is made a part of the Master Agreement. The Contractor may adjust the Master Agreement pricing accordingly for purchases made by Purchasing Entities within the jurisdiction of the state. All such agreements shall not affect the NASPO ValuePoint Administrative Fee percentage or the prices paid by the Purchasing Entities outside the jurisdiction of the state requesting the additional fee. The NASPO ValuePoint Administrative Fee shall be based on the gross amount of all sales at the adjusted prices (if any) in Participating Addenda.

28. System Failure or Damage: In the event of system failure or damage caused by Contractor or its Services, the Contractor agrees to use its best efforts to restore or assist in restoring the system to operational capacity.

29. Title to Product: If access to the Product requires an application program interface (API), Contractor shall convey to Purchasing Entity an irrevocable and perpetual license to use the API.

30. Data Privacy: When required by a specific purchase order issued under this Agreement or a Participating Addendum and accepted by the Contractor, the Contractor must comply with all applicable laws related to data privacy and security, including IRS Pub 1075. Prior to entering into a SLA with a Purchasing Entity, the Contractor and Packet Page 82
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Purchasing Entity must cooperate and hold a meeting to determine the Data Categorization to determine whether the Contractor will hold, store, or process High Risk Data, Moderate Risk Data and Low Risk Data. The Contractor must document the Data Categorization in the SLA or Statement of Work.

31. Warranty: At a minimum the Contractor must warrant the following:
a. Contractor has acquired any and all rights, grants, assignments, conveyances, licenses, permissions, and authorization for the Contractor to provide the Services described in this Master Agreement.
b. Contractor will perform materially as described in this Master Agreement, SLA, Statement of Work, including any performance representations contained in the Contractor’s response to the Solicitation by the Lead State. c. Contractor represents and warrants that the representations contained in its response to the Solicitation by the Lead State.
d. The Contractor will not interfere with a Purchasing Entity’s access to and use of the Services it acquires from this Master Agreement.
e. The Services provided by the Contractor are compatible with and will operate successfully with any environment (including web browser and operating system) specified by the Contractor in its response to the Solicitation by the Lead State. f. The Contractor warrants that the Products it provides under this Master Agreement are free of malware. The Contractor must use industry-leading technology to detect and remove worms, Trojans, rootkits, rogues, dialers, spyware, etc.

32. Transition Assistance:
a. The Contractor shall reasonably cooperate with other parties in connection with all Services to be delivered under this Master Agreement, including without limitation any successor service provider to whom a Purchasing Entity’s Data is transferred in connection with the termination or expiration of this Master Agreement. The Contractor shall assist a Purchasing Entity in exporting and extracting a Purchasing Entity’s Data, in a format usable without the use of the Services and as agreed by a Purchasing Entity, at no additional cost to the Purchasing Entity. Any transition services requested by a Purchasing Entity involving additional knowledge transfer and support may be subject to a separate transition Statement of Work.
b. A Purchasing Entity and the Contractor shall, when reasonable, create a Transition Plan Document identifying the transition services to be provided and including a Statement of Work if applicable.

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c. The Contractor must maintain the confidentiality and security of a Purchasing Entity’s Data during the transition services and thereafter as required by the Purchasing Entity.

35. Debarment : The Contractor certifies, to the best of its knowledge, that neither it nor its principals are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction (contract) by any governmental department or agency. This certification represents a recurring certification made at the time any Order is placed under this Master Agreement. If the Contractor cannot certify this statement, attach a written explanation for review by the Lead State.

37. Governing Law and Venue
a. The procurement, evaluation, and award of the Master Agreement shall be governed by and construed in accordance with the laws of the Lead State sponsoring and administering the procurement. The construction and effect of the Master Agreement after award shall be governed by the law of the state serving as Lead State (in most cases also the Lead State). The construction and effect of any Participating Addendum or Order against the Master Agreement shall be governed by and construed in accordance with the laws of the Participating Entity’s or Purchasing Entity’s State. b. Unless otherwise specified in the RFP, the venue for any protest, claim, dispute or action relating to the procurement, evaluation, and award is in the Lead State. Venue for any claim, dispute or action concerning the terms of the Master Agreement shall be in the state serving as Lead State. Venue for any claim, dispute, or action concerning any Order placed against the Master Agreement or the effect of a Participating Addendum shall be in the Purchasing Entity’s State.
c. If a claim is brought in a federal forum, then it must be brought and adjudicated solely and exclusively within the United States District Court for (in decreasing order of priority): the Lead State for claims relating to the procurement, evaluation, award, or contract performance or administration if the Lead State is a party; the Participating State if a named party; the Participating Entity state if a named party; or the Purchasing Entity state if a named party.
d. This section is also not a waiver by the Participating State of any form of immunity, including but not limited to sovereign immunity and immunity based on the Eleventh Amendment to the Constitution of the United States.

40. Contract Provisions for Orders Utilizing Federal Funds: Pursuant to Appendix II to 2 Code of Federal Regulations (CFR) Part 200, Contract Provisions for Non-Federal Entity Contracts Under Federal Awards, Orders funded with federal funds may have Packet Page 84
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additional contractual requirements or certifications that must be satisfied at the time the Order is placed or upon delivery. These federal requirements may be proposed by Participating Entities in Participating Addenda and Purchasing Entities for incorporation in Orders placed under this master agreement.

42. NASPO ValuePoint Summary and Detailed Usage Reports: In addition to other reports that may be required by this solicitation, the Contractor shall provide the following NASPO ValuePoint reports.
a. Summary Sales Data. The Contractor shall submit quarterly sales reports directly to NASPO ValuePoint using the NASPO ValuePoint Quarterly Sales/Administrative Fee Reporting Tool found at http://www.naspo.org/WNCPO/Calculator.aspx. Any/all sales made under the contract shall be reported as cumulative totals by state. Even if Contractor experiences zero sales during a calendar quarter, a report is still required.

Reports shall be due no later than 30 day following the end of the calendar quarter (as specified in the reporting tool).
b. Detailed Sales Data. Contractor shall also report detailed sales data by: (1) state; (2) entity/customer type, e.g. local government, higher education, K12, non-profit; (3) Purchasing Entity name; (4) Purchasing Entity bill-to and ship-to locations; (4) Purchasing Entity and Contractor Purchase Order identifier/number(s); (5) Purchase Order Type (e.g. sales order, credit, return, upgrade, determined by industry practices); (6) Purchase Order date; (7) Ship Date; (8) and line item description, including product number if used. The report shall be submitted in any form required by the solicitation.

Reports are due on a quarterly basis and must be received by the Lead State and NASPO ValuePoint Cooperative Development Team no later than thirty (30) days after the end of the reporting period. Reports shall be delivered to the Lead State and to the NASPO ValuePoint Cooperative Development Team electronically through a designated portal, email, CD-Rom, flash drive or other method as determined by the Lead State and NASPO ValuePoint. Detailed sales data reports shall include sales information for all sales under Participating Addenda executed under this Master Agreement. The format for the detailed sales data report is in shown in Attachment F. c. Reportable sales for the summary sales data report and detailed sales data report includes sales to employees for personal use where authorized by the solicitation and the Participating Addendum. Report data for employees should be limited to ONLY the state and entity they are participating under the authority of (state and agency, city, county, school district, etc.) and the amount of sales. No personal identification numbers, e.g. names, addresses, social security numbers or any other numerical identifier, may be submitted with any report.
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of states with an active Participating Addendum, states that Contractor is in negotiations with and any PA roll out or implementation activities and issues. NASPO ValuePoint Cooperative Development Coordinator and Contractor will determine the format and content of the executive summary. The executive summary is due 30 days after the conclusion of each calendar quarter.
e. Timely submission of these reports is a material requirement of the Master Agreement. The recipient of the reports shall have exclusive ownership of the media containing the reports. The Lead State and NASPO ValuePoint shall have a perpetual, irrevocable, non-exclusive, royalty free, transferable right to display, modify, copy, and otherwise use reports, data and information provided under this section. f. If requested by a Participating Entity, the Contractor must provide detailed sales data within the Participating State.

43. Entire Agreement: This Master Agreement, along with any attachment, contains the entire understanding of the parties hereto with respect to the Master Agreement unless a term is modified in a Participating Addendum with a Participating Entity. No click-through, or other end user terms and conditions or agreements required by the Contractor (“Additional Terms”) provided with any Services hereunder shall be binding on Participating Entities or Purchasing Entities, even if use of such Services requires an affirmative “acceptance” of those Additional Terms before access is permitted.

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Exhibit 1 to the Master Agreement: Software-as-a-Service

1. Data Ownership: The Purchasing Entity will own all right, title and interest in its data that is related to the Services provided by this Master Agreement. The Contractor shall not access Purchasing Entity user accounts or Purchasing Entity data, except (1) in the course of data center operations, (2) in response to service or technical issues, (3) as required by the express terms of this Master Agreement, Participating Addendum, SLA, and/or other contract documents, or (4) at the Purchasing Entity’s written request.

Contractor shall not collect, access, or use user-specific Purchasing Entity Data except as strictly necessary to provide Service to the Purchasing Entity. No information regarding a Purchasing Entity’s use of the Service may be disclosed, provided, rented or sold to any third party for any reason unless required by law or regulation or by an order of a court of competent jurisdiction. This obligation shall survive and extend beyond the term of this Master Agreement.

2. Data Protection: Protection of personal privacy and data shall be an integral part of the business activities of the Contractor to ensure there is no inappropriate or unauthorized use of Purchasing Entity information at any time. To this end, the Contractor shall safeguard the confidentiality, integrity and availability of Purchasing Entity information and comply with the following conditions:
a. The Contractor shall implement and maintain appropriate administrative, technical and organizational security measures to safeguard against unauthorized access, disclosure or theft of Personal Data and Non-Public Data. Such security measures shall be in accordance with recognized industry practice and not less stringent than the measures the Contractor applies to its own Personal Data and Non-Public Data of similar kind. b. All data obtained by the Contractor in the performance of the Master Agreement shall become and remain the property of the Purchasing Entity. c. All Personal Data shall be encrypted at rest and in transit with controlled access. Unless otherwise stipulated, the Contractor is responsible for encryption of the Personal Data. Any stipulation of responsibilities will identify specific roles and responsibilities and shall be included in the service level agreement (SLA), or otherwise made a part of the Master Agreement.
d. Unless otherwise stipulated, the Contractor shall encrypt all Non-Public Data at rest and in transit. The Purchasing Entity shall identify data it deems as Non-Public Data to the Contractor. The level of protection and encryption for all Non-Public Data shall be identified in the SLA.
e. At no time shall any data or processes — that either belong to or are intended for the use of a Purchasing Entity or its officers, agents or employees — be copied, disclosed or retained by the Contractor or any party related to the Contractor for subsequent use in any transaction that does not include the Purchasing Entity.

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f. The Contractor shall not use any information collected in connection with the Services issued from this Master Agreement for any purpose other than fulfilling the Services.

3. Data Location: The Contractor shall provide its services to the Purchasing Entity and its end users solely from data centers in the U.S. Storage of Purchasing Entity data at rest shall be located solely in data centers in the U.S. The Contractor shall not allow its personnel or contractors to store Purchasing Entity data on portable devices, including personal computers, except for devices that are used and kept only at its U.S. data centers. The Contractor shall permit its personnel and contractors to access Purchasing Entity data remotely only as required to provide technical support. The Contractor may provide technical user support on a 24/7 basis using a Follow the Sun model, unless otherwise prohibited in a Participating Addendum.

4. Security Incident or Data Breach Notification:
a. Incident Response: Contractor may need to communicate with outside parties regarding a security incident, which may include contacting law enforcement, fielding media inquiries and seeking external expertise as mutually agreed upon, defined by law or contained in the contract. Discussing security incidents with the Purchasing Entity should be handled on an urgent as needed basis, as part of Contractor’s communication and mitigation processes as mutually agreed upon, defined by law or contained in the Master Agreement. b. Security Incident Reporting Requirements: The Contractor shall report a security incident to the Purchasing Entity identified contact immediately as soon as possible or promptly without out reasonable delay, or as defined in the SLA. c. Breach Reporting Requirements: If the Contractor has actual knowledge of a confirmed data breach that affects the security of any purchasing entity’s content that is subject to applicable data breach notification law, the Contractor shall (1) as soon as possible or promptly without out reasonable delay notify the Purchasing Entity, unless shorter time is required by applicable law, and (2) take commercially reasonable measures to address the data breach in a timely manner.

5. Personal Data Breach Responsibilities: This section only applies when a Data Breach occurs with respect to Personal Data within the possession or control of the Contractor. a. The Contractor, unless stipulated otherwise, shall immediately notify the appropriate Purchasing Entity identified contact by telephone in accordance with the agreed upon security plan or security procedures if it reasonably believes there has been a security incident.
b. The Contractor, unless stipulated otherwise, shall promptly notify the appropriate Purchasing Entity identified contact within 48 hours or sooner by telephone, unless shorter time is required by applicable law, if it has confirmed that there is, or reasonably believes that there has been a Data Breach. The Contractor shall (1) cooperate with the Purchasing Entity as reasonably requested by the Purchasing Entity to investigate and resolve the Data Breach, (2) promptly implement necessary remedial measures, if necessary, and (3) Packet Page 88
document responsive actions taken related to the Data Breach, including any post-incident review of events and actions taken to make changes in business practices in providing the services, if necessary.

6. Notification of Legal Requests: If legally permissible, the Contractor shall contact the Purchasing Entity upon receipt of any electronic discovery, litigation holds, discovery searches and expert testimonies related to the Purchasing Entity’s data under the Master Agreement, or which in any way might reasonably require access to the data of the Purchasing Entity. The Contractor shall not respond to subpoenas, service of process and other legal requests related to the Purchasing Entity without first notifying and obtaining the approval of the Purchasing Entity, unless prohibited by law. .

7. Termination and Suspension of Service:
a. In the event of a termination of the Master Agreement or applicable Participating Addendum, the Contractor shall implement an orderly return of purchasing entity’s data in a CSV or another mutually agreeable format at a time agreed to by the parties or allow the Purchasing Entity to extract it’s data and the subsequent secure disposal of purchasing entity’s data.
b. During any period of service suspension, the Contractor shall not take any action to intentionally erase or otherwise dispose of any of the Purchasing Entity’s data. c. In the event of termination of any services or agreement in entirety, the Contractor shall not take any action to intentionally erase purchasing entity’s data for a period of:
• 10 days after the effective date of termination, if the termination is in accordance with the contract period
• 30 days after the effective date of termination, if the termination is for convenience
• • 60 days after the effective date of termination, if the termination is for cause After such period, the Contractor shall have no obligation to maintain or provide any purchasing entity’s data and shall thereafter, unless legally prohibited, delete all purchasing entity’s data in its systems or otherwise in its possession or under its control.

d. The purchasing entity shall be entitled to any post termination assistance generally made available with respect to the services, unless a unique data retrieval arrangement has been established as part of an SLA.
e. Upon termination of the Services or the Agreement in its entirety, Contractor shall securely dispose of all Purchasing Entity’s data in all of its forms, such as disk, CD/ DVD, Packet Page 89
backup tape and paper, unless stipulated otherwise by the Purchasing Entity. Data shall be permanently deleted and shall not be recoverable, according to National Institute of Standards and Technology (NIST)-approved methods. Certificates of destruction shall be provided to the Purchasing Entity.

8. Background Checks: Upon the request of the Purchasing Entity, the Contractor shall conduct criminal background checks and not utilize any staff, including subcontractors, to fulfill the obligations of the Master Agreement who have been convicted of any crime of dishonesty, including but not limited to criminal fraud, or otherwise convicted of any felony or misdemeanor offense for which incarceration for up to 1 year is an authorized penalty. The Contractor shall promote and maintain an awareness of the importance of securing the Purchasing Entity’s information among the Contractor’s employees and agents. If any of the stated personnel providing services under a Participating Addendum is not acceptable to the Purchasing Entity in its sole opinion as a result of the background or criminal history investigation, the Purchasing Entity, in its’ sole option shall have the right to either (1) request immediate replacement of the person, or (2) immediately terminate the Participating Addendum and any related service agreement.

9. Access to Security Logs and Reports: The Contractor shall provide reports on a schedule specified in the SLA to the Purchasing Entity in a format as specified in the SLA agreed to by both the Contractor and the Purchasing Entity. Reports shall include latency statistics, user access, user access IP address, user access history and security logs for all public jurisdiction files related to this Master Agreement and applicable Participating Addendum.

10. Contract Audit: The Contractor shall allow the Purchasing Entity to audit conformance to the Master Agreement terms. The Purchasing Entity may perform this audit or contract with a third party at its discretion and at the Purchasing Entity’s expense.

11. Data Center Audit: The Contractor shall perform an independent audit of its data centers at least annually at its expense, and provide an unredacted version of the audit report upon request to a Purchasing Entity. The Contractor may remove its proprietary information from the unredacted version. A Service Organization Control (SOC) 2 audit report or approved equivalent sets the minimum level of a third-party audit.

12. Change Control and Advance Notice: The Contractor shall give a minimum forty eight (48) hour advance notice (or as determined by a Purchasing Entity and included in the SLA) to the Purchasing Entity of any upgrades (e.g., major upgrades, minor upgrades, system changes) that may impact service availability and performance. A major upgrade is a replacement of hardware, software or firmware with a newer or better version in order to bring the system up to date or to improve its characteristics. It usually includes a new version number.

Contractor will make updates and upgrades available to Purchasing Entity at no additional costs when Contractor makes such updates and upgrades generally available to its users.

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No update, upgrade or other charge to the Service may decrease the Service’s functionality, adversely affect Purchasing Entity’s use of or access to the Service, or increase the cost of the Service to the Purchasing Entity.

Contractor will notify the Purchasing Entity at least sixty (60) days in advance prior to any major update or upgrade.

13. Security: As requested by a Purchasing Entity, the Contractor shall disclose its non-proprietary system security plans (SSP) or security processes and technical limitations to the Purchasing Entity such that adequate protection and flexibility can be attained between the Purchasing Entity and the Contractor. For example: virus checking and port sniffing — the Purchasing Entity and the Contractor shall understand each other’s roles and responsibilities.

14. Non-disclosure and Separation of Duties: The Contractor shall enforce separation of job duties, require commercially reasonable non-disclosure agreements, and limit staff knowledge of Purchasing Entity data to that which is absolutely necessary to perform job duties.

15. Import and Export of Data: The Purchasing Entity shall have the ability to import or export data in piecemeal or in entirety at its discretion without interference from the Contractor at any time during the term of Contractor’s contract with the Purchasing Entity. This includes the ability for the Purchasing Entity to import or export data to/from other Contractors. Contractor shall specify if Purchasing Entity is required to provide its’ own tools for this purpose, including the optional purchase of Contractors tools if Contractors applications are not able to provide this functionality directly.

16. Responsibilities and Uptime Guarantee: The Contractor shall be responsible for the acquisition and operation of all hardware, software and network support related to the services being provided. The technical and professional activities required for establishing, managing and maintaining the environments are the responsibilities of the Contractor. The system shall be available 24/7/365 (with agreed-upon maintenance downtime), and provide service to customers as defined in the SLA.

17. Subcontractor Disclosure: Contractor shall identify all of its strategic business partners related to services provided under this Master Agreement, including but not limited to all subcontractors or other entities or individuals who may be a party to a joint venture or similar agreement with the Contractor, and who shall be involved in any application development and/or operations.

18. Right to Remove Individuals: The Purchasing Entity shall have the right at any time to require that the Contractor remove from interaction with Purchasing Entity any Contractor representative who the Purchasing Entity believes is detrimental to its working relationship with the Contractor. The Purchasing Entity shall provide the Contractor with notice of its determination, and the reasons it requests the removal. If the Purchasing Entity signifies that a potential security violation exists with respect to the request, the Contractor shall immediately Packet Page 91
remove such individual. The Contractor shall not assign the person to any aspect of the Master Agreement or future work orders without the Purchasing Entity’s consent.

19. Business Continuity and Disaster Recovery: The Contractor shall provide a business continuity and disaster recovery plan upon request and ensure that the Purchasing Entity’s recovery time objective (RTO) of XXX hours/days is met. (XXX hour/days shall be provided to Contractor by the Purchasing Entity.) Contractor must work with the Purchasing Entity to perform an annual Disaster Recovery test and take action to correct any issues detected during the test in a time frame mutually agreed between the Contractor and the Purchasing Entity.

20. Compliance with Accessibility Standards: The Contractor shall comply with and adhere to Accessibility Standards of Section 508 Amendment to the Rehabilitation Act of 1973, or any other state laws or administrative regulations identified by the Participating Entity.

21. Web Services: The Contractor shall use Web services exclusively to interface with the Purchasing Entity’s data in near real time.

22. Encryption of Data at Rest: The Contractor shall ensure hard drive encryption consistent with validated cryptography standards as referenced in FIPS 140-2, Security Requirements for Cryptographic Modules for all Personal Data, unless the Purchasing Entity approves in writing for the storage of Personal Data on a Contractor portable device in order to accomplish work as defined in the statement of work.

23. Subscription Terms: Contractor grants to a Purchasing Entity a license to: (i) access and use the Service for its business purposes; (ii) for SaaS, use underlying software as embodied or used in the Service; and (iii) view, copy, upload and download (where applicable), and use Contractor’s documentation.

No Contractor terms, including standard click through license or website terms or use of privacy policy, shall apply to Purchasing Entities unless such terms are included in this Master Agreement.

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Exhibit 2 to the Master Agreement: Platform-as-a-Service

Contractor shall not collect, access, or use user-specific Purchasing Entity Data except as strictly necessary to provide Service to the Purchasing Entity. No information regarding a Purchasing Entity’s use of the Service may be disclosed, provided, rented or sold to any third party for any reason unless required by law or regulation or by an order of a court of competent jurisdiction. This obligation shall survive and extend beyond the term of this Master Agreement.

Any stipulation of responsibilities will identify specific roles and responsibilities and shall be included in the service level agreement (SLA), or otherwise made a part of the Master Agreement.
d. Unless otherwise stipulated, the Contractor shall encrypt all Non-Public Data at rest and in transit. The Purchasing Entity shall identify data it deems as Non-Public Data to the Contractor. The level of protection and encryption for all Non-Public Data shall be identified in the SLA.
e. At no time shall any data or processes — that either belong to or are intended for the use of a Purchasing Entity or its officers, agents or employees — be copied, disclosed or retained by the Contractor or any party related to the Contractor for subsequent use in any transaction that does not include the Purchasing Entity.

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f. The Contractor shall not use any information collected in connection with the Services issued from this Master Agreement for any purpose other than fulfilling the Services.

4. Security Incident or Data Breach Notification: The Contractor shall inform the Purchasing Entity of any security incident or data breach within the possession and control of the Contractor and related to the service provided under the Master Agreement, Participating Addendum, or SLA.

Such notice shall include, to the best of Contractor’s knowledge at that time, the persons affected, their identities, and the Confidential Information and Data disclosed, or shall include if this information is unknown.
a. Incident Response: The Contractor may need to communicate with outside parties regarding a security incident, which may include contacting law enforcement, fielding media inquiries and seeking external expertise as mutually agreed upon, defined by law or contained in the Master Agreement, Participating Addendum, or SLA. Discussing security incidents with the Purchasing Entity should be handled on an urgent as-needed basis, as part of Contractor’s communication and mitigation processes as mutually agreed, defined by law or contained in the Master Agreement, Participating Addendum, or SLA.
b. Security Incident Reporting Requirements: Unless otherwise stipulated, the Contractor shall immediately report a security incident related to its service under the Master Agreement, Participating Addendum, or SLA to the appropriate Purchasing Entity. c. Breach Reporting Requirements: If the Contractor has actual knowledge of a confirmed data breach that affects the security of any Purchasing Entity data that is subject to applicable data breach notification law, the Contractor shall (1) promptly notify the appropriate Purchasing Entity within 48 hours or sooner, unless shorter time is required by applicable law, and (2) take commercially reasonable measures to address the data breach in a timely manner

5. Breach Responsibilities: This section only applies when a Data Breach occurs with respect to Personal Data within the possession or control of the Contractor. a. The Contractor, unless stipulated otherwise, shall immediately notify the appropriate Purchasing Entity identified contact by telephone in accordance with the agreed upon security plan or security procedures if it reasonably believes there has been a security incident.

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b. The Contractor, unless stipulated otherwise, shall promptly notify the appropriate Purchasing Entity identified contact within 24 hours or sooner by telephone, unless shorter time is required by applicable law, if it has confirmed that there is, or reasonably believes that there has been a data breach. The Contractor shall (1) cooperate with the Purchasing Entity as reasonably requested by the Purchasing Entity to investigate and resolve the data breach, (2) promptly implement necessary remedial measures, if necessary, and (3) document responsive actions taken related to the data breach, including any post-incident review of events and actions taken to make changes in business practices in providing the services, if necessary.

In the event of either termination for cause, the Contractor will impose no fees for access and retrieval of digital content to the Purchasing Entity. d. The Purchasing Entity shall be entitled to any post termination assistance generally made available with respect to the services, unless a unique data retrieval arrangement has been established as part of an SLA.
e. Upon termination of the Services or the Agreement in its entirety, Contractor shall securely dispose of all Purchasing Entity’s data in all of its forms, such as disk, CD/ DVD, backup tape and paper, unless stipulated otherwise by the Purchasing Entity. Data shall be permanently deleted and shall not be recoverable, according to National Institute of Packet Page 95
Standards and Technology (NIST)-approved methods. Certificates of destruction shall be provided to the Purchasing Entity.

8. Background Checks:
a. Upon the request of the Purchasing Entity, the Contractor shall conduct criminal background checks and not utilize any staff, including subcontractors, to fulfill the obligations of the Master Agreement who have been convicted of any crime of dishonesty, including but not limited to criminal fraud, or otherwise convicted of any felony or misdemeanor offense for which incarceration for up to 1 year is an authorized penalty. The Contractor shall promote and maintain an awareness of the importance of securing the Purchasing Entity’s information among the Contractor’s employees and agents.
b. The Contractor and the Purchasing Entity recognize that security responsibilities are shared. The Contractor is responsible for providing a secure infrastructure. The Purchasing Entity is responsible for its secure guest operating system, firewalls and other logs captured within the guest operating system. Specific shared responsibilities are identified within the SLA.
c. If any of the stated personnel providing services under a Participating Addendum is not acceptable to the Purchasing Entity in its sole opinion as a result of the background or criminal history investigation, the Purchasing Entity, in its’ sole option shall have the right to either (1) request immediate replacement of the person, or (2) immediately terminate the Participating Addendum and any related service agreement.

9. Access to Security Logs and Reports:
a. The Contractor shall provide reports on a schedule specified in the SLA to the Purchasing Entity in a format as specified in the SLA and agreed to by both the Contractor and the Purchasing Entity. Reports will include latency statistics, user access, user access IP address, user access history and security logs for all Purchasing Entity files related to the Master Agreement, Participating Addendum, or SLA.
b. The Contractor and the Purchasing Entity recognize that security responsibilities are shared. The Contractor is responsible for providing a secure infrastructure. The Purchasing Entity is responsible for its secure guest operating system, firewalls and other logs captured within the guest operating system. Specific shared responsibilities are identified within the SLA.

11. Data Center Audit: The Contractor shall perform an independent audit of its data centers at least annually at its expense, and provide an unredacted version of the audit report upon Packet Page 96
request to a Purchasing Entity. The Contractor may remove its proprietary information from the unredacted version. A Service Organization Control (SOC) 2 audit report or approved equivalent sets the minimum level of a third-party audit.

Contractor will make updates and upgrades available to Purchasing Entity at no additional costs when Contractor makes such updates and upgrades generally available to its users.

No update, upgrade or other charge to the Service may decrease the Service’s functionality, adversely affect Purchasing Entity’s use of or access to the Service, or increase the cost of the Service to the Purchasing Entity.

Contractor will notify the Purchasing Entity at least sixty (60) days in advance prior to any major update or upgrade.

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18. Business Continuity and Disaster Recovery: The Contractor shall provide a business continuity and disaster recovery plan upon request and ensure that the Purchasing Entity’s recovery time objective (RTO) of XXX hours/days is met. (XXX hour/days shall be provided to Contractor by the Purchasing Entity.) Contractor must work with the Purchasing Entity to perform an annual Disaster Recovery test and take action to correct any issues detected during the test in a time frame mutually agreed between the Contractor and the Purchasing Entity.

19. Compliance with Accessibility Standards: The Contractor shall comply with and adhere to Accessibility Standards of Section 508 Amendment to the Rehabilitation Act of 1973 or any other state laws or administrative regulations identified by the Participating Entity..

20. Web Services: The Contractor shall use Web services exclusively to interface with the Purchasing Entity’s data in near real time.

21. Encryption of Data at Rest: The Contractor shall ensure hard drive encryption consistent with validated cryptography standards as referenced in FIPS 140-2, Security Requirements for Cryptographic Modules for all Personal Data as identified in the SLA, unless the Contractor presents a justifiable position that is approved by the Purchasing Entity that Personal Data, is required to be stored on a Contractor portable device in order to accomplish work as defined in the scope of work.

22. Subscription Terms: Contractor grants to a Purchasing Entity a license to: (i) access and use the Service for its business purposes; (ii) for PaaS, use underlying software as embodied or used in the Service; and (iii) view, copy, upload and download (where applicable), and use Contractor’s documentation.

No Contractor terms, including standard click through license or website terms or use of privacy policy, shall apply to Purchasing Entities unless such terms are included in this Master Agreement.

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Exhibit 3 to the Master Agreement: Infrastructure-as-a-Service

Contractor shall not collect, access, or use user-specific Purchasing Entity Data except as strictly necessary to provide Service to the Purchasing Entity. No information regarding a Purchasing Entity’s use of the Service may be disclosed, provided, rented or sold to any third party for any reason unless required by law or regulation or by an order of a court of competent jurisdiction. This obligation shall survive and extend beyond the term of this Master Agreement.

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f. The Contractor shall not use any information collected in connection with the Services issued from this Master Agreement for any purpose other than fulfilling the Services.

4. Security Incident or Data Breach Notification: The Contractor shall inform the Purchasing Entity of any security incident or data breach related to Purchasing Entity’s Data within the possession or control of the Contractor and related to the service provided under the Master Agreement, Participating Addendum, or SLA. Such notice shall include, to the best of Contractor’s knowledge at that time, the persons affected, their identities, and the Confidential Information and Data disclosed, or shall include if this information is unknown. a. Security Incident Reporting Requirements: The Contractor shall report a security incident to the Purchasing Entity identified contact immediately as soon as possible or promptly without out reasonable delay, or as defined in the SLA. b. Breach Reporting Requirements: If the Contractor has actual knowledge of a confirmed data breach that affects the security of any purchasing entity’s content that is subject to applicable data breach notification law, the Contractor shall (1) as soon as possible or promptly without out reasonable delay notify the Purchasing Entity, unless shorter time is required by applicable law, and (2) take commercially reasonable measures to address the data breach in a timely manner.

5. Breach Responsibilities: This section only applies when a Data Breach occurs with respect to Personal Data within the possession or control of the Contractor and related to the service provided under the Master Agreement, Participating Addendum, or SLA. a. The Contractor, unless stipulated otherwise, shall immediately notify the appropriate Purchasing Entity identified contact by telephone in accordance with the agreed upon security plan or security procedures if it reasonably believes there has been a security incident.
b. The Contractor, unless stipulated otherwise, shall promptly notify the appropriate Purchasing Entity identified contact within 48 hours or sooner by telephone, unless shorter time is required by applicable law, if it has confirmed that there is, or reasonably believes that there has been a data breach. The Contractor shall (1) cooperate with the Purchasing Entity as reasonably requested by the Purchasing Entity to investigate and resolve the Data Breach, (2) promptly implement necessary remedial measures, if necessary, and (3) document responsive actions taken related to the Data Breach, including any post-incident Packet Page 100
review of events and actions taken to make changes in business practices in providing the services, if necessary.

7. Termination and Suspension of Service:
a. In the event of an early termination of the Master Agreement, Participating or SLA, Contractor shall allow for the Purchasing Entity to retrieve its digital content and provide for the subsequent secure disposal of the Purchasing Entity’s digital content. b. During any period of service suspension, the Contractor shall not take any action to intentionally erase or otherwise dispose of any of the Purchasing Entity’s data. c. In the event of early termination of any Services or agreement in entirety, the Contractor shall not take any action to intentionally erase any Purchasing Entity’s data for a period of 1) 45 days after the effective date of termination, if the termination is for convenience; or 2) 60 days after the effective date of termination, if the termination is for cause. After such day period, the Contractor shall have no obligation to maintain or provide any Purchasing Entity data and shall thereafter, unless legally prohibited, delete all Purchasing Entity data in its systems or otherwise in its possession or under its control. In the event of either termination for cause, the Contractor will impose no fees for access and retrieval of digital content to the Purchasing Entity.
d. The Purchasing Entity shall be entitled to any post termination assistance generally made available with respect to the services, unless a unique data retrieval arrangement has been established as part of an SLA.
e. Upon termination of the Services or the Agreement in its entirety, Contractor shall securely dispose of all Purchasing Entity’s data in all of its forms, such as disk, CD/ DVD, backup tape and paper, unless stipulated otherwise by the Purchasing Entity. Data shall be permanently deleted and shall not be recoverable, according to National Institute of Standards and Technology (NIST)-approved methods. Certificates of destruction shall be provided to the Purchasing Entity.

8. Background Checks:
a. Upon the request of the Purchasing Entity, the Contractor shall conduct criminal background checks and not utilize any staff, including subcontractors, to fulfill the obligations of the Master Agreement who have been convicted of any crime of dishonesty, Packet Page 101
including but not limited to criminal fraud, or otherwise convicted of any felony or misdemeanor offense for which incarceration for up to 1 year is an authorized penalty. The Contractor shall promote and maintain an awareness of the importance of securing the Purchasing Entity’s information among the Contractor’s employees and agents. b. The Contractor and the Purchasing Entity recognize that security responsibilities are shared. The Contractor is responsible for providing a secure infrastructure. The Purchasing Entity is responsible for its secure guest operating system, firewalls and other logs captured within the guest operating system. Specific shared responsibilities are identified within the SLA.
c. If any of the stated personnel providing services under a Participating Addendum is not acceptable to the Purchasing Entity in its sole opinion as a result of the background or criminal history investigation, the Purchasing Entity, in its’ sole option shall have the right to either (1) request immediate replacement of the person, or (2) immediately terminate the Participating Addendum and any related service agreement.

9. Access to Security Logs and Reports:
a. The Contractor shall provide reports on a schedule specified in the SLA to the Contractor directly related to the infrastructure that the Contractor controls upon which the Purchasing Entity’s account resides. Unless otherwise agreed to in the SLA, the Contractor shall provide the public jurisdiction a history or all API calls for the Purchasing Entity account that includes the identity of the API caller, the time of the API call, the source IP address of the API caller, the request parameters and the response elements returned by the Contractor. The report will be sufficient to enable the Purchasing Entity to perform security analysis, resource change tracking and compliance auditing b. The Contractor and the Purchasing Entity recognize that security responsibilities are shared. The Contractor is responsible for providing a secure infrastructure. The Purchasing Entity is responsible for its secure guest operating system, firewalls and other logs captured within the guest operating system. Specific shared responsibilities are identified within the SLA.

11. Data Center Audit: The Contractor shall perform an independent audit of its data centers at least annually and at its own expense, and provide an unredacted version of the audit report upon request. The Contractor may remove its proprietary information from the unredacted version. For example, a Service Organization Control (SOC) 2 audit report would be sufficient.

12. Change Control and Advance Notice: The Contractor shall give a minimum forty eight (48) hour advance notice (or as determined by a Purchasing Entity and included in the SLA) to the Purchasing Entity of any upgrades (e.g., major upgrades, minor upgrades, system changes) that Packet Page 102
may impact service availability and performance. A major upgrade is a replacement of hardware, software or firmware with a newer or better version in order to bring the system up to date or to improve its characteristics. It usually includes a new version number.

Contractor will make updates and upgrades available to Purchasing Entity at no additional costs when Contractor makes such updates and upgrades generally available to its users.

Contractor will notify the Purchasing Entity at least sixty (60) days in advance prior to any major update or upgrade.

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19. Subscription Terms: Contractor grants to a Purchasing Entity a license to: (i) access and use the Service for its business purposes; (ii) for IaaS, use underlying software as embodied or used in the Service; and (iii) view, copy, upload and download (where applicable), and use Contractor’s documentation.

No Contractor terms, including standard click through license or website terms or use of privacy policy, shall apply to Purchasing Entities unless such terms are included in this Master Agreement via amendment.

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Attachment B に Identification of Service Models Matrix
Offerors must complete the following form to identify the service models your firm offers under this RFP. You may provide a list of the different SaaS, IaaS, and/or PaaS services that you offer, including the Categorization of Risk that you have the ability to store and secure. This document is to provide purchasing entities and eligible users a quick snap shot of the cloud solutions your firm provides.

Service Model: Low Risk Data Moderate Risk Data High Risk Data Deployment Models Offered:

Saas Varies by
Manufacturer Offer
Varies by
Manufacturer Offer
Varies by
Manufacturer Offer
AODocs, CA Technologies, DocuSign, FireEye,
Google, QTS, Salesforce, SAP, ServiceNow,
Virtru, VMware
IaaS Varies by
Manufacturer Offer
Varies by
Manufacturer Offer
Varies by
Manufacturer Offer
FireEye, Google, QTS, Virtustream, VMware
PaaS Varies by
Manufacturer Offer
Varies by
Manufacturer Offer
Varies by
Manufacturer Offer
Google, QTS, Salesforce, SAP, ServiceNow,
Virtustream
C;ヴ;ｴゲﾗaデろゲゲﾗﾉ┌デｷﾗﾐヮヴﾗ┗ｷSWヴゲ W;Iｴｴ;┗W SｷaaWヴWﾐデ aﾗヴﾏゲ ;ﾐS ヮヴﾗIWS┌ヴWゲ aﾗヴヮヴﾗ┗ｷSｷﾐｪゲﾗﾉ┌デｷﾗﾐゲ ;ﾐS ゲWヴ┗ｷIWゲ ┘ｷデｴ ┗;ヴ┞ｷﾐｪﾉW┗Wﾉゲﾗa S;デ; ﾏ;ﾐ;ｪWﾏWﾐデ aﾗヴ W;Iｴゲﾗﾉ┌デｷﾗﾐく PﾉW;ゲW ゲWW C;ヴ;ｴゲﾗaデろゲ TWIｴﾐｷI;ﾉ RWゲヮﾗﾐゲW aﾗヴ ;SSｷデｷﾗﾐ;ﾉｷﾐaﾗヴﾏ;デｷﾗﾐヴWｪ;ヴSｷﾐｪヴｷゲﾆ S;デ; ﾏ;ﾐ;ｪWﾏWﾐデﾗa ﾉﾗ┘がﾏﾗSWヴ;デWが ;ﾐS ｴｷｪｴヴｷゲﾆ S;デ;く
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Attachment C – Cost Schedule
_________________________________________________________________________________________________ Solicitation Number CH16012
NASPO ValuePoint Cloud Solutions RFP
Cloud Solutions By Category. Specify Discount Percent % Offered for products in each category. Highest discount will apply for products referenced in detail listings for multiple categories. Provide a detailed product offering for each category.

Software as a Service Discount % 0-21.60
Infrastructure as a Service Discount % _0-10__
Platform as a Services Discount % _0-11__
Value Added Services Discount % _0-13__
-------------------------------------------------------------------------------------------------------------------------- Additional Value Added Services:

Maintenance Services
Onsite Hourly Rate $ _250________
Remote Hourly Rate $ _175_______
Professional Services
 Deployment Services Onsite Hourly Rate $ __350_______ Remote Hourly Rate $ _275_______
 Consulting/Advisory Services Onsite Hourly Rate $ __300_______ Remote Hourly Rate $ _225_______
 Architectural Design Services Onsite Hourly Rate $ __300_______ Remote Hourly Rate $ _225_______
 Statement of Work Services Onsite Hourly Rate $ __250_______ Remote Hourly Rate $ _175_______
Partner Services Onsite Hourly Rate $ ___250______
Remote Hourly Rate $ __175______
Training Deployment Services Onsite Hourly Rate $ ___250______ Online Hourly Rate $ ___175______
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Quote: 22611614-1 Quote Date: 11/29/2021
Terms: Net 30 Expiration: 12/29/2021
Customer: City of Newark
Attention:

Item Qty Part Number Description Unit Cost Ext. Cost
Rubrik 6404 - 3 Years $0.00 $0.00
1 1 RBK-R6404S-HW-01 r6404s Appliance, 4-node, 48TB raw HDD, 1.6TB SSD, SFP+ NIC $16,000.00 $16,000.00
2 1 RBK-CMPLT-R6404 1MO OF RUBRIK COMPLETE EDITION LICS FOR R6404 INCL RCDM $28,000.00 $28,000.00
3 1 RBK-F3M-CBL-01 Fiber Optic OM3 LC/LC Cable, 3M, pack of 4 $300.00 $300.00 4 1 RBK-SFP-TSR-01 10G/1G Dual Rate SFP+ Transceiver, pack of 4 $2,000.00 $2,000.00 5 1 RBK-SVC-BASIC-HW
BASIC SUP FOR HW PREPAY SVCS M-F 8AM-8PM
SUPProduct stocked by
manufacturer. Delivery times vary
$4,532.26 $4,532.26
6 14 RBK-POL-O365 One (1) month OF RCDM FOR OFFICE 365 10 LICS USERS INCL BASIC SUP SUB PREPAY MF $508.93 $7,125.02
7 1 RBK-SVC-CMPLT-RMOT REMOTE CONSULTING FOR COMPLETE SVCS ED MUST BE USED WITHIN 6M OF $1,500.00 $1,500.00
SUB TOTAL: $59,457.28
EST S&H: $0.00
EST TAX (+S&H): $1,784.25
Grand Total: $61,241.53
Prepared For You By:

Brittani Neff
Account Executive
ePlus Technology, Inc
233 Technology Way, Suite 5
Rocklin, CA 95765
(916) 897-4667 (Cell)
(916) 251-3953 (Office)
[email protected]
Sabrina S. Jordan
Inside Sales Representative
ePlus Headquarters
13595 Dulles Technology Drive
Herndon, VA 20171-3413
949.930.7366 (Direct)
[email protected]
FEID # : 54-1904151 RESELLER PERMIT #: 97-955982
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Item Qty Part Number Description Unit Cost Ext. Cost
Thank you for your inquiry. Please note the following about this quotation: It will expire on the date stated above. Unless freight amount is indicated, or is zero, freight will be added to the invoice. Unless Bill-To company is exempt from Sales Tax, it will be added to the invoice. Extended Warranties and Professional Services are available.

By placing an order with ePlus for products or services you agree to comply with the Terms and Conditions for Purchasing Products and Services located at http://www.eplus.com/terms-andconditions/Pages/Products-Services-Terms-and-Conditions.aspx (the "Order Terms"). Unless there is a separate written agreement signed on behalf of both you and ePlus by a duly authorized officer, the Order Terms shall be the only terms and conditions applicable to transactions between you and ePlus, and no additional or contrary terms referenced in a purchase order, document, or electronic communication shall apply. In no event shall ePlus performance under a purchase order be deemed to constitute acceptance of any terms and conditions set forth therein.

This quotation is confidential for your internal use only.

This is a solicitation for an offer and is subject to credit approval. No contract is formed unless a purchase order or other offer is received and accepted by our office. If you accept this quotation with the intent to have your chosen leasing company to pay the costs directly, please note that if the Lessor does not pay ePlus for any reason, you will be responsible for payment to ePlus. * Shipping and Tax are only an estimate. Final costs will appear on the Invoice. Laptops, Monitors and Tablets are subject to California eWaste Fees.

Ship To Address:
___________________________________________________
___________________________________________________
Bill To Address:
_______________________________________________
_______________________________________________
Customer Purchase Acceptance:

Signature:_________________________________ Date: _____________________ Printed Name: _____________________________ PO# ______________________ Title: _____________________________________ Ship Via: __________________ Packet

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RESOLUTION NO.

RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

NEWARK AUTHORIZING THE CITY MANAGER TO

EXECUTE A PURCHASE ORDER WITH EPLUS
TECHNOLOGY INC., IN THE AMOUNT NOT TO EXCEED
$62,000 AND APPROVING A BUDGET APPROPRIATION OF
$62,000 TO THE INFORMATION SYSTEMS DIVISION

CONTRACTUAL SERVICES BUDGET
WHEREAS, the City Council adopted the Information Systems Division Strategic Framework on November 12, 2020; and
WHEREAS, an action item in the Strategic Framework includes having an immutable backup solution that monitors for ransomware and minimizes data loss in a data breech event; and
WHEREAS, the current service provider cannot provide the enhanced security features to implement this action item; and
WHEREAS, staff identified Rubrik as the best ransomware monitoring and data loss mitigation solution; and
WHEREAS, a cooperative agreement exists, satisfying the City’s procurement process (Utah NASPO ValuePoint Master Agreement No. AR2472 and State of California Participating Addendum No. 7-17-70-40-05); and
WHEREAS, ePlus Technology, Inc. offers cost-effective Rubrik products and support services; and
WHEREAS, ePlus Technology Inc. submitted a quote in the amount of $61,241.53, that includes one-time hardware and installation start-up costs, and three years of hardware and service support.

NOW THEREFORE, BE IT RESOLVED that the City Council of the City of Newark does hereby authorize the City Manager to execute a purchase order with ePlus Technology, Inc. in the amount not to exceed $62,000.

BE IT FURTHER RESOLVED that the City Council of the City of Newark does hereby approve the appropriation of $62,000 of unallocated equipment replacement fund balance (GL:
104.3000) to Information Systems Division contractual services (GL: 110.21.021.200.6221) in the fiscal year 2021-22 budget.

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Item F. 1.

DATE 01/13/2022
TO Honorable Mayor and City Council Members
FROM Steven Turner, Community Development Director
SUBJECT Adopt resolutions authorizing the application for Homekey Grant Funding and allocation of American Rescue Plan Act Recovery Plan and Housing Impact Fee Funds for the TownePlace Suites Homekey Project at 39802 Cedar Boulevard

RECOMMENDATION
Staff recommends that the City Council:

By resolution, authorize a joint application with Allied Housing, Inc. for participation in the State’s Homekey grant program, and

1. By resolution, appropriate $1.5 million of American Rescue Plan Act (ARPA) Recovery Plan funds, as well as $4.5 million from the City’s Housing Impact Fee fund to have Allied Housing, Inc. acquire TownePlace Suites (TPS) through the Homekey program with Abode Services to provide resident services and property management.

2. EXECUTIVE SUMMARY
The owner of Towne Place Suites hotel in Newark has indicated an interest in selling the property and converting 125 hotel suites into residential units and community space through the State’s Homekey grant program, which is an effort to provide affordable housing in existing hotels and other buildings to low-income California households and those who are experiencing homelessness or at-risk of becoming homeless. A local funding commitment would demonstrate support for the proposal and reduce any financing gap that may remain and would make the project financially feasible.

Staff recommends that the City Council authorize a one-time, $1.5 million allocation of ARPA funds, and $4.5 million allocation of Housing Impact Fee funds to be used for site acquisition and resident services purposes for the TPS Homekey project. The total City investment would be $6 million, or approximately $48,000 per unit.

Should the grant application be approved, and all other financing sources secured, staff would prepare an affordable housing agreement between the City and Allied Housing to establish the terms of the City’s financial contributions and, to the extent possible, establish a priority preference for future tenants who live and work within Newark. City Council would consider the affordable housing agreement at a future City Council meeting.

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BACKGROUND
Homekey Program and Abode Services/Allied Housing
Building on the success of Project Roomkey (a COVID-19 response from the state to provide temporary shelter options at hotels), Homekey is the next phase in the state’s response to protect low-income households and those who are experiencing homelessness.

Administered by the California Department of Housing and Community Development (HCD), approximately $1.4 billion in grant funding is available to local public entities, including cities, counties, or other local public entities within California to purchase and rehabilitate hotels, motels, vacant apartment buildings, and other buildings and convert them into interim or permanent, long-term housing. The Homekey program requires grant funds to be used to provide housing for individuals and families experiencing homelessness or at risk of experiencing homelessness and who were impacted by the COVID-19 pandemic. The 2021 Homekey program Notice of Funding Availability was released on September 9, 2021, and provides program information, grant award amounts, and the application process.

Abode Services, a Fremont-based non-profit focusing on homeless services and low-income housing, has identified a Newark hotel owner who will consider the sale of TownePlace Suites (TPS) at 39802 Cedar Boulevard to be converted to a residential apartment use. TPS is an extended-stay hotel containing 125 suites (57 studios, 38 1-bedroom, and 30 2-bedroom units) with 134 parking spaces on a 2.7-acre site. TPS was built in 2000 and renovated in 2015 at the cost of approximately $2.6M. Allied Housing, Inc. (Abode’s development division) would partner with the City to acquire TPS. If successful, Allied would convert the hotel suites to residential apartment units.

Abode Services has proposed that the minimum, 50% of the units would be available to very-low-income households (<30% AMI) and the remaining 50% would be made available to individuals and households who are experiencing homelessness. The final unit type and count must be consistent with the Homekey program parameters. As part of the renovations and conversion from a hotel use to an apartment use, existing units may be converted to residential amenities and services programming, such as a resident’s community room and/or office spaces for property management and service staff, and one of the existing units will be used for an on-site resident manager to live on the property. In addition, Abode would provide support services to address the unique needs of all of the resident households and Housing for Independent People, Abode’s property management division, would manage the day-day functions on the site.

The Homekey 2021 program offers a substantial grant for site acquisition purposes and limited funds for operational subsidies and services. Grants for acquisition are valued at up to $200,000 per unit (depending on unit size). Grants for operating subsidies and services are valued between $1,000 and $1,400 per unit for up to three years (dependent on a variety of factors). HCD is also offering a 1 to 1 local matching grant of up to an additional $100,000 per unit. Commitment of local match funding is Packet Page 121
important to demonstrate support for the project and reduce the expected financing and services cost gap in order to acquire and convert TPS to housing and provide resident services. In total, the TPS Homekey project could be eligible for approximately $39 million in grant funds. Funding for eligible projects with complete applications is provided on a first-come, first served basis until the grant funds are exhausted or May 2, 2022, whichever comes first. The resolution authorizing the joint application for grants funds not-to-exceed $39 million is contained in Attachment 1.

If the TPS Homekey project is successfully funded, the hotel could be converted for residential use in a short time period. Projects using Homekey grants funds are eligible for streamlined land use and zoning determinations, as well as streamlined environmental review. This reduces the need for extensive discretionary review and entitlements. As a result, Newark would gain 123 units of affordable housing with resident services within the next 12 months and leases to eligible households could begin in 2022. In comparison, most affordable housing projects take several years to entitle and construct before leasing activity begins.

Local funding for Homekey would support a community-based effort to provide affordable housing opportunities for very-low income and homeless households. The City would partner with Allied Housing on the Homekey grant application to HCD. Other partners may include the Housing Authority of the County of Alameda, Alameda County Housing and Community Development, and the Alameda County Health Care Services Agency. Each partner would bring their own unique service expertise and resources to serve people with significant barriers to housing and services.

DISCUSSION/ANALYSIS
Funding Request
Staff recommends a one-time, $1.5 million allocation of ARPA Recovery Plan funds and $4.5 million allocation of Housing Impact Fee funds to be used for site acquisition and resident services purposes for the TPS Homekey project. The total City investment would be approximately $48,000 per unit. In comparison, the City allocated a total of $8.2 million (or approximately $103,600 per unit) to Eden Housing for the 79-unit Timber Street affordable senior housing project and the equivalent of approximately $186,200 per unit for the 29 affordable units at the NewPark Place Phase A residential project.

ARPA funds used for certain project categories must demonstrate whether those projects are targeted to economically disadvantaged communities, as defined by federal HUD's Qualified Census Tract or by specific income levels as described in the "Compliance and Reporting Guidance, State and Local Fiscal Recovery Funds" document (Version 1.0, June 17, 2021, Part II, Section B.3.d). Funds for a project count as being targeted towards economically disadvantaged communities if the project funds are spent on a program or service for which the eligibility criteria are such that the primary intended beneficiaries earn less than 60 percent of the median income of the relevant jurisdiction. The Homekey project would meet this qualification.

Funding the TPS Homekey project would be a one-time cost to the City. It is Packet Page 122
anticipated that Allied Housing would be identified as the site owner. Funding and regulatory agreements between the City and Abode/Allied Housing can be structured to establish terms and performance requirements that would restrict the sale of the site, unit affordability levels, duration, and, to the extent possible, establish a priority preference for future tenants who live and work within Newark, discussed further below.

Abode would provide on-site services that would be funded through rent revenues and other local funding sources.

The City would work with its potential local Homekey partners to identify additional funding opportunities to bridge any remaining gap. If the Homekey project is not selected by HCD for funding in 2021, staff will recommend that the $6 million City contribution be reallocated to other eligible projects.

The funding request resolution is contained in Attachment 2.

General Plan and Housing Element Conformance
The Homekey project is consistent with the 2015-2023 Housing Element programs of the General Plan, including:

Program 1: The City will continue ongoing work with non-profit and for-profit housing developers and organizations to support efforts to create new housing for seniors, people with disabilities, formerly homeless people, households with moderate incomes or below, especially including extremely low-income households, and other special needs populations. Funding will be prioritized for housing for people with special needs and very low-income people.

Program 2: The City will continue support for regional efforts to end homeless, such as the Alameda County EveryOne Home Program, which prioritizes supportive housing.

Program 8: Seek Federal, State, County and Regional Funds for Affordable Housing. The City shall apply for state, County, regional and Federal funds to construct housing for low income and special needs households. Funding to provide infrastructure that would support housing development will also be sought.

Housing Impact Fee Fund and Affordable Housing Work Plan Conformance The use of the Housing Impact Fee fund (Fund) for the Homekey program is consistent with the implementing ordinance and resolution for the Fund. Use of the Fund is also consistent with the 2021-2023 Affordable Housing Work plan (Work plan) recently adopted by the City Council. The Work plan includes site acquisition activities for developing affordable housing. Up to 40% of the Fund (or approximately $12M based on the current Fund balance) could be used for site acquisition purposes.

Newark Local Preference Policy and Live/Work Preference At the December 16, 2021 meeting, the City Council expressed support for a local preference policy that would establish a Newark “live/work” priority preference when City funds are used to support affordable housing. The intent of this preference is to provide a first opportunity for Newark residents and workers to be considered for available affordable units within a residential project. The City or developer can always engage in early marketing and notice of available units to the Newark community, or the City can formally establish a preference through the adoption of a local preference Packet Page 123
policy that is supported by a displacement study and disparate impact analysis approved by Alameda County. Many communities across the Bay Area are interested in developing policies to allow local residents and workers to receive preferential status in applications for affordable housing. Such policies must be structured and enacted in a manner that complies with applicable law, including fair housing laws. Efforts are currently underway to link the need for such local preferences to anti-displacement strategies. Staff has established an agreement with a consultant to prepare the displacement study and disparate impact analysis to support Newark's potential local preference policy with the intent to adopt and implement a policy for the TPS Homekey project at the time of initial leasing activities later this year.

Staff’s current understanding is that there may be some challenges in implementing a formal local preference for the TPS Homekey project. First, it is expected that the units set aside for homeless households may be able to utilize various housing vouchers issued by the Housing Authority of Alameda County that subsidize monthly rental rates.

These vouchers have requirements that limit the ability to prioritize one household over another household. The units set aside for at-risk homeless households are not expected to utilize rental subsidy vouchers and are therefore more flexible in terms of the use of a local preference policy (subject to all applicable laws). Second, although Staff and our consultants will work quickly to complete the necessary studies required for the County's review and approval of a local preference policy, the timeline for the County's review is uncertain. As a result, our ability to establish a Newark preference for the initial leasing activities may be limited, but if approved, could certainly apply to the project over the long-term. Staff will continue exploring all available options to establish a Newark live and work preference for the TPS Homekey project as quickly as possible and will work with the applicant to include a Newark preference in the affordable housing agreement, which would have to be approved by the Council at a later date.

The City has other affordable housing support options for Newark residents. On May 13, 2021, the City Council adopted Resolution 11,201 approving an affordable housing workplan (Workplan). The Workplan includes initiatives meant to create affordable housing opportunities in the City for Newark residents. In addition to the establishment of a local preference policy, the Workplan includes an initiative to create a first time homebuyer program. Many Bay Area cities either manage their own first-time homebuyer programs or partner with nonprofit partners to manage local programs. City staff will conduct a thorough analysis of suitable first-time homebuyer programs and will recommend a program for implementation.

Community Outreach
Abode Services and Allied Housing hosted a community meeting via Zoom on Wednesday, November 10, 2021 for residents within the vicinity of the TPS site. The community meeting was an opportunity to learn more about the project.

FISCAL IMPACT
As stated above, the City’s $6 million commitment, comprising $1.5 million in ARPA Packet Page 124
As stated above, the City’s $6 million commitment, comprising $1.5 million in ARPA funds and $4.5 million in Housing Impact Fee funds, is consistent with the requirements of each funding source, the Housing Element, and the Affordable Housing Workplan.

Homekey grant application authorization, if provided by the City Council, would allow the City to be eligible for approximately $39 million in Homekey grant funds.

ENVIRONMENTAL REVIEW
The staff recommendation is not a “Project” under the California Environmental Quality Act. A CEQA determination is not required. Per State statute, Homekey projects are eligible for CEQA streamlining and would be considered statutorily exempt from CEQA.

In addition, a National Environmental Policy Act (NEPA) determination would be required due to the expected use of project-based affordable housing vouchers.

However, the use of housing vouchers is an exempt action under NEPA.

PLANNING COMMISSION
A Planning Commission recommendation was not required for the staff recommendation.

REVIEW AND APPROVAL
Prepared by – Steven Turner, Community Development Director Reviewed by – Kristopher J. Kokotaylo, Interim City Attorney Approved by – David J. Benoun, City Manager
Attachments
Homekey Funding Resolution
Homekey Application Resolution
Presentation
Packet Page 125
RESOLUTION NO.____

RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
NEWARK AUTHORIZING THE ASSIGNMENT OF: (1) UP TO
$1,500,000 OF AMERICAN RESCUE PLAN ACT RECOVERY
PLAN FUNDS AND (2) UP TO $4,500,000 OF CITY OF

NEWARK AFFORDABLE HOUSING FUNDS FOR

DEVELOPMENT OF AFFORDABLE HOUSING THROUGH

THE HOMEKEY PROGRAM AT TOWNE PLACE SUITES
LOCATED AT 39802 CEDAR BOULEVARD
WHEREAS, the Department of Housing and Community Development (“Department”) has issued a Notice of Funding Availability, dated September 9, 2021 (“NOFA”), for the Homekey Program (“Homekey” or “Program”). The Department has issued the NOFA for Homekey grant funds pursuant to Health and Safety Code section 50675.1.3 (Assem. Bill No. 140 (2021-2022 Reg. Sess.), § 20.); and
WHEREAS, the Department is authorized to administer Homekey pursuant to the Multifamily Housing Program (Chapter 6.7 (commencing with Section 50675) of Part 2 of Division 31 of the Health and Safety Code). Homekey funding allocations are subject to the terms and conditions of the NOFA, the Application, the Department-approved STD 213, Standard Agreement (“Standard Agreement”), and all other legal requirements of the Homekey Program’ and
WHEREAS, on January 13, 2022, the City Council of the City of Newark adopted a Resolution on file with the City Clark authorizing the City Manager or their designee to apply for Homekey grants funds in an amount not-to-exceed $39,000,000 from the Department on behalf of the City of Newark; and
WHEREAS, the City of Newark, together with Allied Housing, Inc. as its co-applicant, will submit an application for Homekey grant funds to enable the purchase, renovate, and provide resident services at the Towne Place Suites Extended Stay Hotel located at 39802 Cedar Boulevard for permanent supportive housing (the “Project”); and
WHEREAS, the Towne Place Suites Extended Stay Hotel is an existing, 125-room hotel used as transient occupancy, containing 57 studios, 38 one-bedroom, and 30 two-bedroom suites.

One hundred twenty-three (123) suites would be converted into affordable residential units for households at risk of homelessness and homelessness households; and WHEREAS, if the Project application is approved, the Department will issue an award to the City of Newark in an amount not-to-exceed $39,000,000, subject to the terms and conditions of the Department’s Standard Agreement; and
Packet Page 126
WHEREAS, Allied Housing, Inc. and Holiday Garden NW Corp., a California corporation, have agreed to enter into a purchase option agreement providing Allied Housing, Inc. with an option to acquire the Project site; and
WHEREAS, Allied Housing, Inc.as co-applicant, upon securing financing for the Project and completion of site acquisition activities, would renovate and prepare the Project site for residential use and provide supportive housing services to residents; and WHEREAS, the City and Allied Housing, Inc. would enter into an affordable housing agreement to restrict the Project as permanent supportive housing; and WHEREAS, on October 28, 2021, the City adopted Resolution 11,275 approving the American Recuse Plan Act (“ARPA”) Recovery Plan and assignment of $1,500,000 for an affordable housing project; and
WHEREAS, the City staff recommends amending the 2020-2022 Biennial Budget for Fiscal Year 2022 appropriating $1,500,000 from the ARPA Fund (382) to the Project; and WHEREAS, the City staff recommends amending the 2020-2022 Biennial Budget for Fiscal Year 2022 appropriating up to $4,500,000 from the City of Newark Affordable Housing Fund (623) to the Project; and
WHEREAS, the City’s total contribution to the Project would be $6,000,000, which would be used to leverage the maximum amount of available Homekey grant funds from the Department.

NOW, THEREFORE, BE IT IS RESOLVED by the City Council of the City of Newark as follows:

Section 1. The City Council authorizes the assignment of $1,500,000 from the City of Newark ARPA Recovery Plan and $4,500,000 from the Affordable Housing Fund for a total of $6,000,000 to the Project.

Section 2. The City Manager or their designee is authorized to submit to the Department this resolution or other administrative documents as may be required for Homekey grant consideration of the affordable housing project as described above and to take all actions necessary to effectuate the intent of this Resolution.

Section 3. To the extent permitted by law and consistent with program regulations for funding sources used for the development of the Project and subject to an adopted City of Newark local preference policy, Allied Housing shall give a preference in the rental of units in the Project to eligible households in which at least one member lives and/or works in the City. Furthermore, a resident referral system shall be established for Project rental units designated for extremely-low income households and implement marketing strategies that will result in more referrals of eligible Newark households to the Project.

Packet Page 127
RESOLUTION NO. ______

RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWARK

AUTHORIZING JOINT APPLICATION FOR PARTICIPATION IN,

AND SUBSEQUENT CITY COUNCIL APPROVAL, RECEIPT OF

HOMEKEY PROGRAM GRANT FUNDS FOR THE DEVELOPMENT

OF AFFORDABLE HOUSING
WHEREAS, the Department of Housing and Community Development (“Department”) has issued a Notice of Funding Availability, dated September 9, 2021 (“NOFA”), for the Homekey Program (“Homekey” or “Program”). The Department has issued the NOFA for Homekey grant funds pursuant to Health and Safety Code section 50675.1.3 (Assem. Bill No. 140 (2021-2022 Reg.

Sess.), § 20.); and
WHEREAS, the City of Newark (“Co-Applicant”) desires to jointly apply for Homekey grant funds with Allied Housing, Inc., a California nonprofit public benefit corporation, (“Corporation”).

Therefore, Co-Applicant is joining Corporation in the submittal of an application for Homekey funds (“Application”) to the Department for review and consideration; and WHEREAS, the Department is authorized to administer Homekey pursuant to the Multifamily Housing Program (Chapter 6.7 (commencing with Section 50675) of Part 2 of Division 31 of the Health and Safety Code). Homekey funding allocations are subject to the terms and conditions of the NOFA, the Application, the Department-approved STD 213, Standard Agreement (“Standard Agreement”), and all other legal requirements of the Homekey Program.

NOW, THEREFORE, BE IT IS RESOLVED by the City Council of the City of Newark as follows:

Section 1: The City Manager of the City of Newark or their designee, on behalf of the Co-Applicant, is hereby authorized and directed to submit a joint Application to the Department in response to the NOFA, and to jointly apply for Homekey grant funds in a total amount not to exceed $39,000,000.

Section 2: If the Application is approved, the City Manager of the City of Newark or his/her designee, on behalf of the Co-Applicant, subject to subsequent City Council approval, is hereby authorized and directed to enter into, execute, and deliver a Standard Agreement in a total amount not to exceed $39,000,000, any and all other documents required or deemed necessary or appropriate to secure the Homekey funds from the Department and to participate in the Homekey Program, and all amendments thereto (collectively, the “Homekey Documents”).

Section 3: Co-Applicant acknowledges and agrees that it shall be subject to the terms and conditions specified in the Standard Agreement, and that the NOFA and Application will be incorporated in the Standard Agreement by reference and made a part thereof. Any and all activities, expenditures, information, and timelines represented in the Application are enforceable through the Standard Agreement. Funds are to be used for the allowable expenditures and activities identified in the Standard Agreement.

Packet Page 128
Section 4: The City Manager of the City of Newark, or their designee, subject to subsequent City Council approval, is authorized to execute the Application and the Homekey Documents on behalf of Co-Applicant for participation in the Homekey Program.

Packet Page 129
City Council: January 11, 2022
Homekey Project Funding
Packet Page 130
City Council: November 18, 2021
Homekey Project Funding
Agenda
• Background – Homekey Program
• City’s Partners – Abode Services/Allied Housing
• Towne Place Suites – Project Site
• Funding Request
• Policy & Program Conformance
• Staff Recommendation and Next Steps
Packet Page 131
1 Background – Homekey Program
Protection for low-income & homeless households
• Builds on success of Project Roomkey
• $1.4 billion in available grant funding
• Purchase/rehab existing buildings
• Convert to permanent housing
Grant Process and Amount
• Notice of funding availability- September 9
• Funds available on a first come-first served basis
Packet Page 132
2 Towne Place Suites - Newark
39802 Cedar Boulevard
Existing Extended Stay Hotel
• Built in 2000, renovated in 2015
• 125 rooms (studios, 1BR, 2BR)
• 134 parking spaces
• Owner will consider sale to Allied Housing
Packet Page 133
3 Partners: Abode Services & Allied Housing
Homekey Grant Program
Abode Services
• Homeless services/affordable housing
• Project Roomkey partner with County
• Operating partner of two Homekey sites
Allied Housing
• Development Division – Abode
• Homekey Co-Applicant with City
Packet Page 134
4 Towne Place Suites - Newark
39802 Cedar Boulevard
Conversion to affordable housing
• 123 rooms converted to residential units
• One ground floor unit converted to community
space
• One unit for on-site manager
• Minor interior/exterior improvements
• Land Use & CEQA Streamlining
• Units available six months after site control
Packet Page 135
5 Towne Place Suites - Newark
39802 Cedar Boulevard
Affordable Housing Program
• 50% units for very low-income households
(<30% AMI)
• 50% units for homeless households
• Permanent housing for eligible households
• Final unit count subject to Homekey grant
requirements
Packet Page 136
6 Towne Place Suites - Newark
39802 Cedar Boulevard
Local Preference Policy (LLP)
• Per Council direction- a LPP and studies are in-process • Affordable funding housing agreement with Allied
Housing/Abode will set LPP requirements
• Referrals for homeless households would occur via a
coordinated AC system
• Specific funding types may limit a local preference
policy
Packet Page 137
7 Funding Request - $6 million
Towne Place Suites Homekey Project
$1.5 million – ARPA Recovery Plan Fund
• $1.5 million identified for affordable housing
• An approved use of ARPA funds
$4.5 million – Affordable Housing Fund
• Consistent with purpose of the Affordable
Housing Fund
Packet Page 138
8 Other Funding & Service Partners
Towne Place Suites Homekey Project
Housing Authority – County of Alameda
• Project-based vouchers
Alameda County Housing & Comm Development
• Local grant funding for Homekey projects
Alameda County Health Care Services Agency
• Resident support programs
Packet Page 139
9 Policy & Program Conformance
Towne Place Suites Homekey Project
General Plan – Housing Element
• Program 1: Create affordable housing w/developers
• Program 2: Support efforts to end homelessness
• Program 8: Seek funds for affordable housing
Affordable Housing Work Plan
• Site acquisition activities and funding for affordable housing development
Packet Page 140
10 Staff Recommendation
Towne Place Suites Homekey Project
Grant Application Authorization
By resolution, authorize a joint application with Allied Housing, Inc. for participation in the State’s Homekey
grant program
Funding Resolution
By resolution, assign $1.5 million of ARPA Recovery Plan funds; $4.5 million from Housing Impact Fee fund to
the Towne Place Suites Homekey program
Packet Page 141
Application submitted to State HCD
Grant decision/award
Site purchase/transfer; funding agreements
Site/ building improvements; pre-leasing prep
Leasing begins
11 Next Steps
Towne Place Suites Homekey Project
Packet Page 142
City Council: January 11, 2022
Homekey Project Funding
Thank You/
Questions
Packet Page 143

Newark City CouncilJanuary 13, 2022

Newark City Council
January 13, 2022