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C20-152 RealAuction
1 REALAUCTION.COM, LLC 861 SW 78TH AVENUE SUITE #102, PLANTATION FLORIDA 33324 AGREEMENT FOR SERVICES BETWEEN EAGLE COUNTY, COLORADO AND REALAUCTION.COM FOR INTERNET REAL PROPERTY FORECLOSURE AUCTION This Agreement made on ____________, between the Eagle County Public Trustee, (Public Trustee”) for Eagle County, Colorado ("County")(collectively “County”), and Realauction.com, L.L.C., a Florida limited liability company ("Contractor"), for Internet-based electronic processing of bid information related to the auction sale of County's Foreclosure Sales. Contractor and County are collectively referred to as the “Parties.” The Parties hereby agree to the following terms and conditions: 1. Length of Agreement; Cancellation; Termination. A.The term of this Agreement shall terminate one year from the above date, with the option to renew at the same terms for two (2) additional one-year periods upon written agreement of the parties. Any amendments or modifications shall be in writing signed by both parties. B.Termination: This Agreement may be terminated by either party for any reason. Any such termination shall be effected by delivery of a written notice of termination specifying the reason and date upon which termination becomes effective, which date shall not be less than ninety (90) days from the date of the written notice. Notwithstanding the foregoing, this Agreement may be sooner terminated by any party for default or breach upon the failure of the other to comply with any provision or requirement of this Agreement, provided that written notice of such failure is given to the defaulting party and is not cured within thirty (30) days of the date of receipt of written notice. A party's decision not to take action upon failure of the other party to perform shall not be construed as a waiver of the ability of non-breaching party to take additional action at a later date and time. 2.Services to be Provided by Contractor. A.The Contractor shall furnish Internet Auction Services for Foreclosure Property Sales for Eagle County, Colorado in accordance with C.R.S. § 38-38-110. The County has real property that it wishes to sell by online auction on a regular basis, however the County provides no guarantee of quantity or frequency. B.The Contractor shall provide a host server for the Web Site. As used herein, the DocuSign Envelope ID: 79F4189D-13AD-4401-B42C-5FFF5C48A836 4/23/2020 C20-152 2 term "Web Site" shall mean an Internet web site that Contractor will make available to County under this Agreement. The Web Site will utilize Contractor's proprietary software, which is capable of accepting and processing competitive bids for Real Property to be sold by County. The County acknowledges that the Contractor's Server may not be dedicated exclusively to the Web Site. The Contractor shall use its best efforts to make the Web Site available during all Eagle County business hours (8 a.m. to 5 p.m. MST) and shall not schedule planned maintenance downtime to occur during Eagle County business hours. C. During each auction, the Contractor shall provide the office of the Eagle County Public Trustee with the technical support necessary to facilitate the conduct of online auction Foreclosure sales of real property. D. Contractor will: i. Auction set-up. Contractor will set up the auction format in the manner selected by the Eagle County Public Trustee e.g., sealed, proxy, etc., and will implement the auction start date, end date and batch size as well as the auction’s administration and execution, including but not limited to management or retrieval of user registration information and auction results all in accordance with the requirements of the Eagle County Public Trustee. ii. Provide various degrees of access privileges to users and County’s employees to the Web Site. Before any County representative is given privileges to access the Web Site and its information, County must provide Contractor with written authorization directing Contractor to give such employees such authority. iii. Monitor network performance while auctions are in progress. iv. Provide technical support to resolve questions related to hardware, software or network problems encountered by the County or third party users. Such support will be made in a timely manner, in accordance with the provisions of Section 5 of this Agreement. v. At no additional cost to the County, provide telephone and/or on-site training sessions for County personnel designated by the County as having a thorough knowledge of the transactions to be consummated through the use of the Web Site at times to be mutually determined. vi. At no additional cost to the County, providing personal and telephonic support during Eagle County’s normal business hours for the handling of bidder and County questions relating to the general operation of the Web Site. DocuSign Envelope ID: 79F4189D-13AD-4401-B42C-5FFF5C48A836 3 vii. At no additional cost to the County, provide web-based training sessions to county staff and end-users. The training sessions will be designed to instruct and inform users about how to efficiently and properly use the Web Site. E. Contractor and the County will agree upon the Website terms and conditions, with appropriate disclaimers, (See attached Exhibit “A”). Contractor and the County will agree upon bidders rules to be posted on the Website (See attached Exhibit “B”). Each party will have the right to reasonably approve a change to the terms and conditions or disclaimers that are included within the Web Site, but the ultimate decision making authority with respect to the auction and bidding rules lies with the Eagle County Public Trustee. F. The Contractor may, in its sole discretion, provide additional ancillary services through the Web Site to third party users that are intended to assist such third party users in evaluating any or all of the real property to be sold. Such services may include: i. Hyperlinks on the Web Site to third party sites that contain additional information about the properties that are the subject of sale; and ii. Analytical tools, such as search, sort, upload, download and other report customization features. iii. If such services and/or tools are offered by Contractor thru Web Site, these services shall be provided at no charge to the bidders and auction participants. G. Contractor shall record and maintain records of all activity occurring on the Web Site, and shall retain these records for a period of 5 years from the date of each auction. Storage of such data shall be in accordance with Paragraphs 14 and 15 of this Agreement. County shall have access, upon request, to all records pertaining to activities occurring on the website with respect to Eagle County Auction. The provisions of this Paragraph 2G and Paragraphs 14 through 18 shall survive expiration or early termination of this Agreement. H. Contractor shall ensure that the Web Site will provide the following functions: i. Accepting, processing and displaying bid information and other data related to auctions of real property. ii. Accepting, processing and maintaining an ID number and DocuSign Envelope ID: 79F4189D-13AD-4401-B42C-5FFF5C48A836 4 password from users before users enter any auction, which they may obtain free of charge by simply registering on the Site. iii. Providing users with the means for reviewing the list of all Properties being offered for sale, along with, to the extent available, assessor information with respect to the applicable properties. iv. Providing users with the means to bid and to withdraw bids on properties. v. Permitting the use, at the County’s election, a proxy bidding system, whereby a user will submit the minimum rate that he/she would be willing to receive for the applicable property. The Contractor’s software will act on the bidder's behalf, submitting only the maximum rate necessary to win the bidding for any given Property, but in no event less than the minimum rate specified by the bidder. When the auction is over, third party users will see only the higher of the minimum rate submitted by each bidder or their winning bid. vi. Allowing users to view auction results after they are approved for release by County. vii. Allowing Contractor's Auction Administrators and County's internal auction administrators (the "County Administrators") to observe auctions in progress and retrieve information immediately upon completion of each auction, and to release the final results of auctions so that they can be viewed by all users with authorized access to the Web Site. viii. Enabling the County’s Administrator, or the Contractor Auction Administrator at County's direction, to establish and modify auction parameters; to modify registration information pertaining to a particular third party user or County user; and to limit or prohibit a user's access privileges to the site. County will provide Contractor with the names of County personnel who are permitted to access and/or authorize modifications. In the event County directs Contractor to effect such modifications, County will be required to give Contractor reasonable advance notice before such modifications are to go into effect. ix. County may elect to allow bidders to initiate security deposits and payments for properties purchased on the auction website through Automatic Clearing House (ACH) debiting of the bidder’s bank DocuSign Envelope ID: 79F4189D-13AD-4401-B42C-5FFF5C48A836 5 account. Contractor will contract directly with an ACH transaction process servicer (the “ACH Servicer”) to cover any fees that may be associated with services provided by the ACH Servicer. Contractor shall ensure that the ACH Servicer agrees to comply with all applicable federal and state regulations relating to privacy and security of non-public consumer financial information, including requirements under Gramm Leach Bliley Act, the NACHA Rules and PCI Data Security Standards. Contractor’s agreement with the ACH Servicer will ensure that bidders will be able to transfer funds to County by entering their bank account and routing information on the website. The account information will be transmitted directly to the financial institution the County has chosen. County acknowledges that County will be required to accept the terms and conditions of the ACH Servicer in order for funds to be directly deposited into the County account. 3. Cooperation by County. Notwithstanding any other provision herein, the County shall: A. The County will schedule the foreclosure sale and notify contractor of the actual date scheduled for each property sale on the Website at least 45 days prior to such date, and provide Contractor with all information concerning the properties which are being offered at auction at least 30 days prior to the date of each auction. Unless otherwise instructed by the Public Trustee, the online foreclosure sale will remain open from 10:00 a.m. until 11:00 a.m. on the day of the auction. B. Providing Contractor with the names, titles and contact information for all County employees who will have decision-making authority of any kind in the auction process or access to the Contractor’s Web Site, as well as the names and contact information of all County employees who are responsible for processing Contractor’s requests for payment and supporting documentation. C. The Web Site shall bear County's name and such other trade dress (e.g., logos, introductory statement from the County etc.) as reasonably directed by the County. The County acknowledges and agrees that every page of the Web Site may also display the Contractor’s name and company logo. D. County will reasonably cooperate with Contractor to ensure that Contractor has access to and is provided with all the information it needs to effectuate the real property auctions described in this Agreement and for preparation and delivery of the Contractor’s requests for payment. The information provided will include the initial data load and timely updates of properties that have been purchased. DocuSign Envelope ID: 79F4189D-13AD-4401-B42C-5FFF5C48A836 6 4. Payment for Services. A. The Contractor will be paid within thirty days of a properly submitted invoice to the County by the Contractor. B. In consideration of the Services set forth in this Agreement, County shall pay (or cause to be paid) the following fees to Contractor in the manner described: i. For each individual foreclosure property case that is listed through the website, the County shall pay to Contractor a fee of $ 59 dollars. C. The Contractor's request for payment shall be supported by reports or other documents reasonably required by the County, and shall show the Contractor's County Contract number, and the Contractor's federal identification number, in addition to any other information that may be required by the County. Additionally, all requests for payment shall have attached a copy of the original bill, containing an original signature of an authorized representative of the Contractor. Requests for payment (and all other written notice required under this Agreement) shall be addressed as follows: Eagle County Public Trustee P.O. Box 479 Eagle, CO 81631 D. Unless otherwise provided on Contractor's invoice or other Instructions that Contractor provides subsequent to the execution of this Agreement, payments shall be made to: Realauction.com, LLC Attn: Lloyd McClendon 861 SW 78th Ave., Suite 102 Plantation FL, 33324 E. Contractor shall not be obligated to provide any Services hereunder in the event County is more than 60 days delinquent in paying any invoices, provided, however, that Contractor has advised the County Public Trustee in writing that it will cease performing services unless delinquent invoices are paid in full. 5. Limited Warranty; Disclaimer of Implied Warranties; Limitation of Liability; Consequential Damages or Incidental Damages. A. Contractor warrants that the Web Site, when provided with accurate and properly formatted data by County and third party bidders, and when accessed by properly functioning software and equipment of third party bidders, will perform DocuSign Envelope ID: 79F4189D-13AD-4401-B42C-5FFF5C48A836 7 substantially as required in order to facilitate County’s online auction sales of real property. Contractor will, at no charge to County, make corrections to the Web Site so that the Web Site performs substantially as required, and will use its best efforts to make such corrections available within 24 hours, provided that County reports to Contractor any failures or defects in the Web Site. In the event Contractor is not able to make such corrections available within 24 hours, the Contractor's chief executive officer and/or chief operating officer will confer with County to advise County with respect to the status of problem resolution and anticipated time of correction. In addition, Contractor will make all reasonable efforts to correct any payment processing errors that may occur under this Agreement as a result of faulty programming or other issue with the Website. B. Except for the express limited warranty set forth in the preceding section of this Contract, Contractor makes no warranty, representation, promise or guarantee, either express or implied, statutory or otherwise, with respect to the Web Site provided hereunder, including their quality, performance, merchantability or fitness for a particular purpose, or whether any of the transactions to be conducted using the Web Site comply with any applicable federal, state, county or other law or regulations. Contractor will have no responsibility for any actual or purported loss resulting from damages associated with the auction format (e.g., Proxy Bidding) selected by County for any particular auction conducted on the Web Site. In no event will Contractor be liable for indirect, special, incidental, economic, consequential, (including damages or costs relating to the loss of profits, business, goodwill, or computer programs, even if advised of the possibility of such damages), without regard to the legal theory of such damages, arising out of the use of or inability to use the Web Site. Except as provided in this paragraph, in no event will Contractor's liability to County arising out of or related to this Contract exceed the limits of Contractor’s insurance as required by this Agreement. 6. Confidentiality; Proprietary Information. A. The format in which Contractor stores data provided by County and its end users will be proprietary to Contractor. County's retrieval and use of the data compiled by Contractor on the Web Site shall be limited to County's internal use only, and County agrees that it will not, unless otherwise required by law, transmit to third parties, or permit other third parties to access the data in the format and compilation created by Contractor. B. Except upon prior written approval by the County, the Contractor, or its subcontractors, shall not furnish or disclose to any person and/or organization, any non-public information that County designates as confidential. C. It is expressly understood and agreed that the software used to develop and DocuSign Envelope ID: 79F4189D-13AD-4401-B42C-5FFF5C48A836 8 operate the Web Site; any related materials and documentation provided by Contractor, including without limitation information related to security or other technical aspects of the Web Site; and the non-public pages of the Web Site constitute a valuable proprietary product and trade secret of Contractor embodying substantial creative efforts and confidential information, ideas, and expressions (collectively for the purposes of this section "Contractor's Confidential Information"). County agrees to hold all such Contractor's Confidential Information in strictest confidence and take such steps as are reasonably necessary to protect the confidentiality of the Contractor's Confidential Information and other materials designated by Contractor as confidential. Such steps shall include, without limitation, refraining from taking any action in derogation of Contractor's ownership rights and taking actions similar to those taken by County with respect to protecting other third party confidential information in its possession. County shall not disclose or otherwise make available the Contractor's Confidential Information in any form to any person except to those employees of County or Contractor who need access to the information to facilitate County's authorized use of the Web Site. Nothing herein shall be construed, however, to prohibit County from making any disclosures required of County pursuant to any legal process or request from any governmental authority having jurisdiction over County, or from making disclosure required by Colorado law, provided however that prior to disclosure to any such governmental authority, County shall provide notice to Contractor in order to enable Contractor to seek relief. D. Each party agrees to treat any information they receive that is submitted to the Web Site by third party users, including without limitation, deposit amounts, social security numbers, federal tax identification numbers, etc., in accordance with applicable law and the "privacy policy" set forth in the attached Exhibit C, incorporated herein by this reference. Contractor will not change the "privacy policy" without County's consent, which will not be unreasonably withheld. 7. Independent Contractor; No Third Party Beneficiaries Intended. For the purpose of providing auction services for the real property auction and other services specifically described herein, Contractor shall be an independent contractor providing services to the county and shall be required to take direction from the county as to the mechanism and effectuation of the sale. Other than with the respect to the handling of the real property auction and other services described herein, Contractor acknowledges that it does not have the authority to act on behalf of the County or its agencies. Contractor's personnel shall not be employees of the County. There are no intended third party beneficiaries, including without limitation any users of the Web Site described herein. 8. Force Majeure. Delay in performance or non-performance of any obligation contained herein shall be excused to the extent such failure or non-performance is caused by force majeure. For purposes of this Contract, "force majeure" shall mean any cause or agency preventing performance of an obligation which is beyond the reasonable control DocuSign Envelope ID: 79F4189D-13AD-4401-B42C-5FFF5C48A836 9 of either party hereto, including without limitation, fire, flood, sabotage, embargo, strike, explosion, labor trouble, accident, riot, acts of governmental authority (including, without limitation, acts based on laws or regulations now in existence as well as those enacted in the future ), and delays or failure in obtaining raw materials or transportation, acts of God, telephone line outages, Internet traffic slowdowns (including any Internet transmission problems incurred by either County's or Contractor's Internet service provider), down computer networks, down hardware, (head crashes, operating system hang-ups and the like), software or operating systems failure caused by a virus or other denial of service attack, and electricity outages. A party affected by a force majeure shall, upon notice to it of the force majeure, promptly notify the other party by the quickest means available, explaining the nature and expected duration thereof, and shall act diligently to remedy the interruption or delay if it is reasonably capable of being remedied. 9. Entire Understanding; Amendments. This Agreement constitutes the entire understanding and agreement between the parties hereto with respect to its subject matter and supersedes all prior or contemporaneous agreements, representations, warranties and understandings of such parties, whether oral or written. This Agreement may only be amended by a separate document, signed by both parties. 10. Place of Execution; Governing Law; Venue. This Agreement shall be deemed to be executed in Eagle County, State of Colorado, regardless of the Contractor's domicile, and shall be interpreted and construed in accordance with the laws of the State of Colorado. The Contractor agrees that the venue for any and all claims between the parties arising from this Agreement shall be in the state courts in and for Eagle County, Colorado. 11. Severability. If this Contract contains any provision found to be unlawful, the same shall be deemed to be of no effect and shall be deemed stricken from this Contract without affecting the binding force of this Contract as it shall remain after omitting such provision. 12. Insurance Requirements. Contractor agrees to provide and maintain at Contractor’s sole cost and expense, the following insurance coverage with limits of liability not less than those stated below: A. Types of Insurance. i. Workers’ Compensation insurance as required by law.= ii. Commercial General Liability coverage to include premises and operations, personal/advertising injury, products/completed operations, broad form property damage with limits of liability not less than $1,000,000 per occurrence and $1,000,000 aggregate limits. DocuSign Envelope ID: 79F4189D-13AD-4401-B42C-5FFF5C48A836 10 iii. Professional Liability (Errors and Omissions) including Cyber Liability with prior acts coverage for all deliverables, Services and additional services required hereunder, in a form and with insurer or insurers satisfactory to County, with limits of liability of not less than $2,000,000 per claim and $4,000,000 in the aggregate. The insurance shall provide coverage for (i) liability arising from theft, dissemination and/or use of confidential information stored or transmitted in electronic form; (ii) Network Security Liability arising from unauthorized access to, use of or tampering with computer systems including hacker attacks, inability of an authorized third party to gain access to your Software or Services including denial of access or Services unless caused by a mechanical or electrical failure; (iii) liability arising from the introduction of a computer virus into, or otherwise causing damage to, County or a third person’s computer, computer system, network or similar computer related property and the data, software and programs thereon. B. Other Requirements. i. The professional liability coverage shall be endorsed to include Eagle County, its associated or affiliated entities, its successors and assigns, elected officials, employees, agents and volunteers as additional insureds. A certificate of insurance consistent with the foregoing requirements is attached hereto as Exhibit B. ii. Contractor’s certificates of insurance shall include subcontractors, if any as additional insureds under its policies or Contractor shall furnish to County separate certificates and endorsements for each subcontractor. iii. The insurance provisions of this Agreement shall survive expiration or termination hereof. iv. The parties hereto understand and agree that the County is relying on, and does not waive or intend to waive by any provision of this Agreement, the monetary limitations or rights, immunities and protections provided by the Colorado Governmental Immunity Act, as from time to time amended, or otherwise available to County, its affiliated entities, successors or assigns, its elected officials, employees, agents and volunteers. v. Contractor is not entitled to workers’ compensation benefits except as provided by the Contractor, nor to unemployment insurance benefits unless unemployment compensation coverage is provided by Contractor or some other entity. The Contractor is obligated to pay all federal and state income tax on any moneys paid pursuant to this Agreement. 13. Data Ownership: Contractor acknowledges and agrees that County owns all rights, title and interest in the County Data, which shall be defined for purposes here as all data created in or originating with the county and all data that is entered by third-party users of the Web Site. The Contractor shall not access County user accounts or County DocuSign Envelope ID: 79F4189D-13AD-4401-B42C-5FFF5C48A836 11 Data, except (1) in the course of data center operations, (2) in response to service or technical issues, (3) for proactive service and problem resolution, (4) as required by the express terms of this contract or (4) at the County’s written request. 14. Data Protection: Protection of County Data shall be an integral part of the business activities of Contractor to ensure there is no inappropriate or unauthorized use of County Data or user information at any time. To this end, the Contractor shall safeguard the confidentiality, integrity and availability of County Data and comply with the following conditions: A. The Contractor shall implement and maintain commercially reasonable and appropriate administrative, technical and organizational security measures to safeguard against unauthorized access, disclosure or theft of County Data. Such security measures shall be in accordance with recognized industry practice. B. All data obtained by the Contractor in the performance of this contract shall become and remain the property of the County. C. All County Data shall be encrypted at rest and in transit with controlled access, with the level of protection and encryption identified for County upon request. Unless otherwise stipulated, the Contractor is responsible for encryption of the County data. D. At no time shall any data or processes — that either belong to or are intended for the use of a County 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 County. E. The Contractor shall not use any information collected in connection with the service issued from this proposal for any purpose other than fulfilling this agreement. 15. Encryption of Data at Rest: 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 County approves in writing the storage of personal data on a service provider portable device in order to accomplish work as defined in the statement of work. 16. Data Location: The Contractor shall provide its services to the County and its end users solely from data centers in the U.S. Storage of County 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 County 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 County Data remotely only as required to fulfill this agreement. If the Contractor contracts with a third party for data- center or server storage, Contractor must promptly provide written notice to County regarding identity of said third party. Contractor acknowledges and agrees that Contractor DocuSign Envelope ID: 79F4189D-13AD-4401-B42C-5FFF5C48A836 12 will maintain all responsibilities for County Data and all Contractor agrees to ensure that all obligations, restrictions and conditions contained in this Agreement with respect to County Data also apply to said third party. 17. Security Incident or Data Breach Notification: Contractor shall inform the County of any security incident or data breach. A. As used herein, “Data Breach” means the unauthorized access by a non- authorized person(s) that results in the use, disclosure or theft of an End User’s personally identifiable data (PII) or County Data. B. “Security Incident” means the potentially unauthorized access by non-authorized persons to PII or non-public data the Contractor believes could reasonably result in the use, disclosure or theft of PII or County Data within the control or stored by or through Contractor. A security incident may or may not turn into a data breach. C. 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 County should be handled on an urgent as-needed basis, as part of Contractor communication and mitigation processes as mutually agreed upon, defined by law or contained in the contract. D. Security Incident Reporting Requirements: Contractor shall report a security incident to the appropriate County identified contact immediately. E. Breach Reporting Requirements: If Contractor has actual knowledge of a confirmed data breach that affects the security of any County Data or PII that is subject to applicable data breach notification provisions herein, Contractor shall (1) promptly notify the appropriate County identified contact within 24 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. 18. Breach Responsibilities: A. Contractor, unless stipulated otherwise, shall immediately notify County by telephone and email in accordance with the agreed upon security plan or security procedures if it reasonably believes there has been a security incident. B. Contractor, unless stipulated otherwise, shall promptly notify the County identified contact within 24 hours or sooner by telephone and email, unless shorter time is required by applicable law, if it confirms that there is, or reasonably believes that there has been a Data Breach. Contractor shall (1) cooperate with the County as reasonably DocuSign Envelope ID: 79F4189D-13AD-4401-B42C-5FFF5C48A836 13 requested by the County 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. C. Unless otherwise stipulated, if a data breach is a direct result of the Contractor’s breach of its contract obligation to encrypt personal data or otherwise prevent its release, the Contractor shall bear the costs associated with (1) the investigation and resolution of the data breach; (2) notifications to individuals, regulators or others required by state law; (3) a credit monitoring service required by state (or federal) law; (4) a website or a toll- free number and call center for affected individuals required by state law — all not to exceed the average per record per person cost calculated for data breaches in the United States (currently $201 per record/person) in the most recent Cost of Data Breach Study: Global Analysis published by the Ponemon Institute at the time of the data breach; and (5) complete all corrective actions as reasonably determined by Contractor based on root cause; all [(1) through (5)] subject to this contract’s limitation of liability. D. Notification of Legal Requests: Contractor shall contact the County upon receipt of any electronic discovery, litigation holds, discovery searches and expert testimonies related to the County Data under this contract, or which in any way might reasonably require access to the data of County. Contractor shall not respond to subpoenas, service of process and other legal requests related to the County without first notifying the County, unless prohibited by law from providing such notice. E. Termination and Suspension of Service: In the event of a termination of the contract, Contractor shall implement an orderly return of County data in a CSV or another mutually agreeable format at a time agreed to by the parties and the subsequent secure disposal of County Data. F. During any period of service suspension, the Contractor shall not take any action to intentionally erase any County Data. G. In the event of termination of any services or agreement in entirety, Contractor shall not take any action to intentionally erase any County Data for a period of 60 days after the effective date of termination. After such period, the Contractor shall have no obligation to maintain or provide any County Data and shall thereafter, unless legally prohibited, delete all County Data in its systems or otherwise in its possession or under its control. DocuSign Envelope ID: 79F4189D-13AD-4401-B42C-5FFF5C48A836 14 H. The County shall be entitled to any post-termination technical assistance generally made available with respect to the services. I. Contractor shall securely dispose of all requested data in all of its forms, such as disk, CD/ DVD, backup tape and paper, when requested by the County. 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 County. 19. Contract Audit: The Contractor shall allow the County to audit conformance to the contract terms. The County may perform this audit or contract with a third party at its discretion and at the County’s expense. 20. Data Center Audit and Vulnerability Scanning: The Contractor shall perform an independent audit of its data centers at least annually at its expense, and provide a redacted version of the audit report upon request. The Contractor may remove its proprietary information from the redacted version. A Service Organization Control (SOC) 2 audit report or approved equivalent sets the minimum level of a third-party audit. This audit shall include at minimum a scan of the organizations Internet perimeter, web application firewall, physical access to data center, crawling and testing web applications to identify vulnerabilities including for cross-site scripting and SQL injection. 21. Indemnification. Contractor shall indemnify and hold harmless County, and any of its officers, agents and employees against any losses, claims, damages or liabilities for which County may become subject to insofar as any such losses, claims, damages or liabilities arise out of, directly or indirectly, this Agreement, or are based upon any performance or nonperformance by Contractor or any of its subcontractors hereunder; and Contractor shall reimburse County for reasonable attorney fees and costs, legal and other expenses incurred by County in connection with investigating or defending any such loss, claim, damage, liability or action. This indemnification shall not apply: 1) to claims by third parties against the County to the extent that County is liable to such third party for such claims without regard to the involvement of the Contractor or 2) to the extent that such damages result from the negligence or actions of the County’s officers, agents and employees. This paragraph shall survive expiration or termination hereof. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written. DocuSign Envelope ID: 79F4189D-13AD-4401-B42C-5FFF5C48A836 15 CONTRACTOR: For Realauction.com, L.L.C.: __________________________ Printed Name:__________________________________ Title:__________________________________________ EAGLE COUNTY Eagle County :_________________________________ Jeff Shroll, Eagle County Manager ____________________________ Teak Simonton, Eagle County Public Trustee DocuSign Envelope ID: 79F4189D-13AD-4401-B42C-5FFF5C48A836 Lloyd McClendon C.E.O Foreclosure Sale Policy Foreclosure Sale Policy (Rules) By coming to this website, it is presumed that you intend to bid on property subject to foreclosure through the Public Trustee for the County of Eagle. If that is your intent, you will be referred to below as “Bidder”. As a Bidder, you are subject to the applicable state statutes on foreclosures and foreclosure sales as set forth in 38-37-101 et seq. and 38-38-101 et seq. of the Colorado Revised Statutes. Section 38-38-112, C.R.S., establishes the right of the Public Trustee to utilize electronic means to conduct a foreclosure sale and to require the Bidder to participate in bidding and other foreclosure sale procedures through such electronic means. It also recognizes the authority of the Public Trustee to establish uniformly written policies for conducting foreclosures and foreclosure sales. This document is one of those written policies directed at foreclosure sales. Your compliance, as a bidder, to the policies set forth below is a condition to your right to participate in bidding at a foreclosure sale conducted by the Public Trustee. The Office of the Public Trustee has contracted with Realauction.com to provide a website, services, applications and tools (collectively “Services”) for a Bidder to be able to bid at foreclosure sales held by the Public Trustee. The User Agreement posted on the Realauction.com website sets out the terms by which Realauction.com offers Bidder access to and use of the online auction capability for foreclosure sales. This User Agreement governs the relationship between the Bidder and Realauction.com, L.L.C. concerning the electronic process and requirements for participating in on-line foreclosure sales held by the Public Trustee. Before using Realauction.com’s website to access foreclosure sale information or to engage in bidding on foreclosed property, Bidder must agree to be legally bound by the terms and conditions of Realauction.com’s User Agreement. Any difficulties or concerns a Bidder may have with the Services offered by Realauction.com should be directed to Realauction.com at customerservice@realauction.com. Under section 38-38-110, C.R.S., the County of Eagle Public Trustee, acting in their official capacities in preparing, conducting, and executing a foreclosure sale by electronic means are not liable for the failure of a “device” that prevents a Bidder from participating in a sale. A “device” includes computer hardware, computer network, computer software application or a website. This includes the Services offered by Realauction.com. DocuSign Envelope ID: 79F4189D-13AD-4401-B42C-5FFF5C48A836 Rules for Bidders Participating in the Electronic Auction for Foreclosure Sales: 1. ID and Information. A Bidder must be identified by name and other information required by Realauction.com, including, but not limited to, driver’s license number, state ID, tax identification information or email addresses. A User ID and password will be provided by RealAuction.com. Only the Bidder itself/himself/herself or the Bidder’s authorized employees and agents may use this User ID or password when bidding at a foreclosure sale. The identity may not be transferred to or used by any third party. Bidder must notify Realauction.com immediately in the event of theft or unauthorized use of User ID and/or password. 2. Competency/Authority. Bidder and Bidder’s authorized employees or agents must be of legal age to enter into binding contracts. Any authorized employee or agent must be legally authorized to act on behalf of Bidder. Failure to comply with these requirements will result in immediate disqualification of Bidder at a foreclosure sale. 3. Truthfulness. All information provided or representations made by Bidder to the Public Trustee must be truthful, accurate and complete to the best of his/her knowledge. Any material misinformation or misrepresentation will result in the immediate disqualification of Bidder at a foreclosure sale. 4. Manipulation. Bidder must not engage in activities that result in a manipulation of the foreclosure sale adverse to the public interest. Such manipulation would include but are not limited to; bid-rigging, intimidation, computer hacking or other misuse of the Services provided by Realauction.com, and actions intended to adversely influence the decision of a public official. Any manipulation will result in the immediate disqualification of Bidder at a foreclosure sale and, if the manipulation is criminal, in the possible referral of the matter to the Fifth Judicial District Attorney’s Office. 5. Deposit of Funds. As a condition to the right to bid at the foreclosure sale, Bidder shall deposit with the Public Trustee, an amount equal to or greater than ten percent of the Bidder’s anticipated high bid on each foreclosed property on which the Bidder intends to bid. The deposit shall be made either by electronic means or delivered in person. In order for funds to be available for the auction, all Cash, Certified Funds (i.e. certified check, cashier’s check, or teller’s check) and Wires must be verified as having been received by our bank no later than 5:00 p.m. (Mountain Time), the day before the auction. All ACH Transfers must be received by 5:00 p.m. (Mountain Time), the Monday immediately preceding Wednesday auctions. All funds must be drawn from a US Financial institution and no foreign currency is accepted by the Public Trustee. 6. Cancelling a Bid. Lowering or cancelling a bid must be done prior to the official start of the foreclosure sale. Once a sale officially commences, no bid retractions will be accepted. DocuSign Envelope ID: 79F4189D-13AD-4401-B42C-5FFF5C48A836 7. Sale Procedure. All procedures, protocols and requirements for conducting a sale shall be determined by the Public Trustee. Bidder shall have no right to direct or control such procedures, protocols and requirements. 8. Payment for Purchase. All purchases must be completed via the Realauction.com website using the bidder’s available funds. If a remaining balance is due (an amount beyond the amount of the deposited funds described above), all final payments must be delivered to the Public Trustee’s office by wire transfer, cash, or certified funds (certified check, cashier’s check, or teller’s check) in a timely manner to allow for the receipt of funds and the update of the bidder’s account balance to complete the purchase by 5:00 p.m. (Mountain Time) the day of the auction. All funds must be drawn from a US Financial institution and no foreign currency is accepted. 9. Failure to complete a purchase. Failure to pay the balance of the winning bid or complete the purchase by 5:00 p.m. (Mountain Time) the day of the auction will result in a forfeited bid. The 10% deposit used to participate in the auction will be removed from the bidder’s available balance and held in a Public Trustee’s non- interest-bearing account for 30 business days or longer at the discretion of the office of the Public Trustee. At that time, the funds will be released back to the Bidder’s Realauction.com account. If the first bidder fails to complete the transaction, an email will be sent to the second highest bidder. The second highest bidder will have the opportunity to purchase the property for their last highest bid amount. The second highest bidder has until 5:00 p.m. the next business day following the auction to submit the required funds. In the event that neither the first bidder nor the second highest bidder purchase the property, the property will go back to the lender for the lender’s bid at auction. A successful bidder who does not complete a purchase within the allotted timeframe three times within any twenty four month period will be banned from bidding on foreclosed properties at the Public Trustee auction for two years from the last failure-to-pay date at the discretion of the Public Trustee’s Office. 10. Fund Transfers and Handling. All procedures, protocols and requirements regarding the appropriateness and completeness of fund transfers and the handling of funds received shall be determined solely by the Public Trustee. Bidder shall have no right to direct or control such procedures, protocols and requirements. 11. Name on Certificate of Purchase/Confirmation Deed.The successful bidder is solely responsible for providing to the Public Trustee, in writing, the complete and DocuSign Envelope ID: 79F4189D-13AD-4401-B42C-5FFF5C48A836 accurate name of the entity or person to which or whom Bidder wishes the Certificate of Purchase and, if applicable, the Confirmation Deed to be issued. 12. Reserved Rights. The Public Trustee reserves the right to correct, revise, add to, delete and/or modify any information regarding any foreclosed property being offered for sale, and may cancel the sale of any foreclosed property at any time, including after the bidding has been completed. 13. Risks. The Bidder assumes the risks associated with bidding and acquiring foreclosed property at foreclosure sale. Foreclosure sales may be cancelled, set aside or deemed void by a court of law through no fault of the Bidder. However, absent Public Trustee error, if the sale is set aside or voided, all fees and charges paid by the Bidder shall be retained. 14. Duty to Review. Bidder is solely responsible for reviewing all information made available regarding a foreclosure sale and foreclosed properties prior to bidding at a foreclosure sale and for inquiring with the Public Trustee and Realauction.com as to any potential errors, omissions or inaccuracies of said information. The County of Eagle Public Trustee and RealAuction.com shall not be liable for any claim of loss alleged to have resulted from any errors, omissions or inaccuracies concerning any of such information. 15. Title Defects. Under state statutes, all foreclosed property is sold “as is, where is.” The County of Eagle Public Trustee, and Realauction.com hold no title or other property interest in foreclosed property being sold at foreclosure sale and, therefore, cannot, and do not, make any express or implied warranties or representation about the condition, marketability, value, existing or potential uses, title, outstanding liens, mortgages or other encumbrances which may survive the foreclosure sale of foreclosed property, zoning regulations or laws that may affect current or future uses of the foreclosed property, or existence of any physical or environmental conditions affecting the value or use of foreclosed property. It is the sole responsibility of Bidder to perform any and all research necessary regarding the condition, marketability, use of, and current state of the title to any foreclosed property offered at foreclosure sale. 16. Data Usage Disclaimer: During the course of business, the Eagle Public Trustee may choose to use data provided to us through registration with Realauction to contact you regarding our auctions. The information may also be provided to foreclosing lenders and/or their attorneys in the normal conduct of their business. Additionally, as a government agency, the Eagle County Public Trustee is subject to the Colorado Open Records Act (CORA). Any information provided to us in the course of normal business using Realauction may be subject to CORA Requests, including DocuSign Envelope ID: 79F4189D-13AD-4401-B42C-5FFF5C48A836 but not necessarily limited to Name, Company Name, Company Aliases, Addresses, Phone Numbers and Emails. DocuSign Envelope ID: 79F4189D-13AD-4401-B42C-5FFF5C48A836 Eagle County Public Trustee Foreclosure Sales Frequently Asked Questions Foreclosure properties are offered for sale to the highest bidder. This website provides information for each item to be auctioned, including the name of the owner, the legal description of the property, and the opening or base bid. The property being auctioned may be worth less than the assessed value. The Public Trustee’s Office conducts online foreclosure auctions in accordance with Colorado Revised Statute 38-38-110. Please see the Policies for foreclosure auctions. All times used on this website are Mountain time zone. Colorado observes daylight savings time on the Federal calendar http://aa.usno.navy.mil/faq/docs/daylight_time.php. How Online Foreclosure Auctions Work Anyone may bid on the properties by registering here at least one business day before the auction. One account will be established for each bidder. Because of auction deadlines and the time for deposits to clear, please plan ahead. Prior to auction deadlines, bidders must deposit 10 percent of their anticipated high bid with the Public Trustee’s Office. A 10 percent deposit is required for each property on which a bidder wants to bid. For example, a deposit of $10,000, will allow you to participate up to $100,000 when bidding. Auctions are held each Wednesday at 10 a.m. (Mountain Time). Properties are auctioned in foreclosure file number order and sold to the highest bidder. All purchases must be completed by the relevant deadlines. The Public Trustee will issue a Certificate of Purchase within five business days from the sale. If the Certificate of Purchase is assigned, the assignment must be received by the office of the Public Trustee prior to the end of the eighth business day to be valid. DocuSign Envelope ID: 79F4189D-13AD-4401-B42C-5FFF5C48A836 The ACORD name and logo are registered marks of ACORD CERTIFICATE HOLDER © 1988-2014 ACORD CORPORATION. All rights reserved. ACORD 25 (2014/01) AUTHORIZED REPRESENTATIVE CANCELLATION DATE (MM/DD/YYYY)CERTIFICATE OF LIABILITY INSURANCE LOCJECTPRO-POLICY GEN'L AGGREGATE LIMIT APPLIES PER: OCCURCLAIMS-MADE COMMERCIAL GENERAL LIABILITY PREMISES (Ea occurrence)$DAMAGE TO RENTED EACH OCCURRENCE $ MED EXP (Any one person) $ PERSONAL & ADV INJURY $ GENERAL AGGREGATE $ PRODUCTS - COMP/OP AGG $ $RETENTIONDED CLAIMS-MADE OCCUR $ AGGREGATE $ EACH OCCURRENCE $ UMBRELLA LIAB EXCESS LIAB DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) INSRLTR TYPE OF INSURANCE POLICY NUMBER POLICY EFF(MM/DD/YYYY)POLICY EXP(MM/DD/YYYY)LIMITS PERSTATUTE OTH-ER E.L. EACH ACCIDENT E.L. DISEASE - EA EMPLOYEE E.L. DISEASE - POLICY LIMIT $ $ $ ANY PROPRIETOR/PARTNER/EXECUTIVE If yes, describe under DESCRIPTION OF OPERATIONS below (Mandatory in NH) OFFICER/MEMBER EXCLUDED? WORKERS COMPENSATION AND EMPLOYERS' LIABILITY Y / N AUTOMOBILE LIABILITY ANY AUTO ALL OWNED SCHEDULED HIRED AUTOS NON-OWNEDAUTOSAUTOS AUTOS COMBINED SINGLE LIMIT BODILY INJURY (Per person) BODILY INJURY (Per accident) PROPERTY DAMAGE $ $ $ $ THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSD ADDL WVD SUBR N / A $ $ (Ea accident) (Per accident) OTHER: THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). COVERAGES CERTIFICATE NUMBER:REVISION NUMBER: INSURED PHONE(A/C, No, Ext): PRODUCER ADDRESS:E-MAIL FAX(A/C, No): CONTACTNAME: NAIC # INSURER A : INSURER B : INSURER C : INSURER D : INSURER E : INSURER F : INSURER(S) AFFORDING COVERAGE SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. 4/22/2020 Wilson,Washburn &Forster Insurance 16505 NW 13th Ave Miami FL 33169 305-666-6636 305-662-7778 certificates@wwfins.com Covington Specialty Ins Co 13027 REALA-1 Bridgefield Employers Ins.Co.10701RealAuction.com,LLC 861 SW 78th AVE Suite 102 Plantation FL 33324 Indian Harbor Insurance Co.36940 1524525465 A X 2,000,000 X 100,000 5,000 2,000,000 2,000,000 X VBA720863 10/1/2019 10/1/2020 EXCLUDED B 0830-50716 4/16/2020 4/16/2021 X 1,000,000 1,000,000 1,000,000 C Professional/Cyber Liability Y MTP 0033134 09 10/1/2019 10/1/2020 Aggregate Each Occurrence 4,000,000 2,000,000 Property Address:861 SW 78th Ave Suite 102 Plantation,FL 33324 Employee Theft: Policy:BDJ1027544 Insurance Company:Hanover Insurance Company Effective Date:10/1/19-10/1/20 Limit:$25,000 Additional Insured status applies for Eagle County,its associated or affiliated entities,its successors and assigns,elected officials,employees,agents and volunteers respects to Professional Liability. Eagle County Treasurer 500 Broadway Eagle CO 81631 DocuSign Envelope ID: 79F4189D-13AD-4401-B42C-5FFF5C48A836