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HomeMy WebLinkAboutC20-169 RealAuction1 AMENDED AND RESTATED AGREEMENT FOR SERVICES BETWEEN EAGLE COUNTY, COLORADO AND REALAUCTION.COM FOR INTERNET TAX LIEN SALE AUCTION This Agreement made on ____________ (the “Effective Date”), is between the Eagle County Treasurer (“Treasurer”) for Eagle County, Colorado ("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 tax liens (each a “Tax Certificate”). The Treasurer and County may collectively be referred to herein as the County. County and Contractor are collectively referred to herein as the “Parties.” The Parties hereby agree to the following terms and conditions: 1.Amendment and Restatement of Agreement; Term; Termination. A.The Parties intend to amend the terms of their agreement for the same services dated September 9, 2019 (the “September 2019 Agreement”) by deletion of all terms set forth therein and replacement with the terms set forth herein. As of the Effective Date set forth herein, the September 2019 Agreement shall be deemed terminated, and replaced and superseded in its entirety by the terms of this Agreement. B.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. C.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 the Treasurer to conduct the public tax lien sale(s) in accordance with C.R.S. § 39-11-108 (2). B.The Contractor shall provide a host server for the Web Site. As used herein, the term "Web Site" shall mean the “Eagle County Tax Certificate Web Site” that Contractor DocuSign Envelope ID: 8ED09D0D-AD41-48AC-9D58-22704B0C8793 4/30/2020 C20-169 2 will make available to and provide access to their web based program for the County under this Agreement. The Web Site will utilize Contractor's proprietary software, which is capable of accepting and processing competitive bids for Tax Certificates to be issued by the Treasurer to conduct a sale of Eagle County tax liens each year in accordance with Colorado law (each an “Eagle County Auction”). 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 and shall not schedule planned maintenance downtime to occur during Eagle County business hours (8 a.m.to 5 p.m. MST). C. During each Eagle County Auction, the Contractor shall facilitate the conduct of online auction sales of tax lien certificates, including providing technical support to users of the Real Auction site. D. Contractor will: i. Eagle County Auction set-up. Contractor will set up the Eagle County Auction format in the manner selected by the Treasurer 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 Treasurer. 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 Eagle County 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 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 business hours for the handling of bidder and County questions relating to the general operation of the Web Site. DocuSign Envelope ID: 8ED09D0D-AD41-48AC-9D58-22704B0C8793 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 with respect to the auction and bidding rules lies with the Treasurer. 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 Tax Certificates to be sold. Such services may include: i. Hyperlinks on the Web Site to third party sites that contain additional information about the delinquent accounts or properties that are the subject tax sale. 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 the Eagle County Auctions of Tax Certificates. ii. Accepting, processing and maintaining an ID number and DocuSign Envelope ID: 8ED09D0D-AD41-48AC-9D58-22704B0C8793 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 Eagle County Tax Certificates being offered for sale, along with, to the extent available, tax roll data and assessor information with respect to the applicable properties. iv. Providing users with the means to bid and to withdraw bids on tax certificates. 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 tax certificate. The Contractor’s software will act on the bidder's behalf, submitting only the maximum rate necessary to win the bidding for any given Certificate, 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 Auctioneers") 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 Auctioneers, 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 certificates purchased on the auction website through Automatic Clearing House (ACH) debiting of the bidder’s bank DocuSign Envelope ID: 8ED09D0D-AD41-48AC-9D58-22704B0C8793 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 Eagle County Auction and notify contractor of the actual date scheduled for each tax lien certificate sale on the Website at least 45 days prior to such date, and provide Contractor with all information concerning the properties for which tax certificates are being offered at auction at least 30 days prior to the date of each auction. Unless otherwise instructed by the Treasurer, the Eagle County Auction will remain open until all accounts are struck off to the County or sold, all tax lien sale proceeds are collected, and all reconciliation is completed by the County. 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 tax certificate 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 certificates that have been redeemed, purchased or transferred. DocuSign Envelope ID: 8ED09D0D-AD41-48AC-9D58-22704B0C8793 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 Tax Lien Certificate issued upon payment in full by the winning bidder through the Web Site, County shall pay to Contractor twelve dollars ($12.00). Contractor agrees that the twelve dollar fee is to be charged to the winning bidder of each Tax Certificate, and collected in addition to the purchase price of each Tax Certificate. ii. Payment for each Tax Certificate purchased by the winning bidder will be made directly to the County by winning bidder pursuant to County’s bidding policy (see attached Exhibit “B”). Such payment shall include the twelve dollar fee described in Paragraph 4B(i) herein. iii. For each individual Tax Certificate that is sold or cancelled by Contractor in error, Contractor will receive no fee. Contractor will be responsible for the cost of correcting such error (including staff time). C. The Contractor's request for payment shall be made one time per year within thirty days of the close of the Eagle County Auction for that year. Invoices must 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 Treasurer 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 DocuSign Envelope ID: 8ED09D0D-AD41-48AC-9D58-22704B0C8793 7 861 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 Treasurer 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 substantially as required in order to facilitate County’s online auction sales of tax certificates. 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. DocuSign Envelope ID: 8ED09D0D-AD41-48AC-9D58-22704B0C8793 8 A. The format in which Contractor stores data provided by County 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 the County designates as confidential. C. It is expressly understood and agreed that the software used to develop and 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 delinquent tax auction and other DocuSign Envelope ID: 8ED09D0D-AD41-48AC-9D58-22704B0C8793 9 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 Eagle County Auction. Other than with the respect to the handling of the Eagle County 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 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. DocuSign Envelope ID: 8ED09D0D-AD41-48AC-9D58-22704B0C8793 10 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. 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 DocuSign Envelope ID: 8ED09D0D-AD41-48AC-9D58-22704B0C8793 11 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 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 (5) 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, Contractor shall safeguard the confidentiality, integrity and availability of County Data and comply with the following conditions: A. 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 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, 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 Contractor for subsequent use in any transaction that does not include the County. E. 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 DocuSign Envelope ID: 8ED09D0D-AD41-48AC-9D58-22704B0C8793 12 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: 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. 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. Contractor shall permit its personnel and contractors to access County Data remotely only as required to fulfill this agreement. If 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 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 DocuSign Envelope ID: 8ED09D0D-AD41-48AC-9D58-22704B0C8793 13 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 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 DocuSign Envelope ID: 8ED09D0D-AD41-48AC-9D58-22704B0C8793 14 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. 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 DocuSign Envelope ID: 8ED09D0D-AD41-48AC-9D58-22704B0C8793 15 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. CONTRACTOR: For Realauction.com, L.L.C.: __________________________ Printed Name:__________________________________ Title:__________________________________________ EAGLE COUNTY Eagle County:_________________________________ Jeff Shroll, Eagle County Manager ________________________________ Teak Simonton, Eagle County Treasurer DocuSign Envelope ID: 8ED09D0D-AD41-48AC-9D58-22704B0C8793 C.E.O Lloyd McClendon “Exhibit A” Before using this web site (the "Web Site"), you must agree to the terms and conditions of this Basic Service User Agreement ("Agreement") User Agreement This User Agreement governs the relationships between the User (hereinafter "User," "You" or "Your"), Realauction.com, L.L.C. (hereinafter "Realauction") and the Treasurer of Eagle County, COLORADO, conducting sales of tax certificates or tax lien certificate (hereinafter "County" or "Seller"). Before using this site to bid on tax certificates or tax liens, you must agree to the terms and conditions of this User Agreement by clicking on the "I Agree" button below. 1. License for Use of Information. By completing the registration process and agreeing to the terms and conditions of this User Agreement, the User will be granted a non-exclusive license to access and use the information that appears on this website for the sole purpose of bidding on tax certificates or tax lien certificates offered by the Seller. This license is granted to the User personally and to the User's employees and agents, and may not be transferred to any third party other than the Seller and Realauction. The software used to create and maintain the information is the sole and exclusive property of Realauction, and neither the software nor the information presented by Realauction may be altered, sold or distributed by the User in any way. 2. User Representations and Warranties. (A) User shall be solely responsible for the protection and use of the User IDs and passwords obtained from Realauction, and will notify Realauction immediately in the event of theft or unauthorized use of IDs and passwords. (B) User will follow all instructions for use posted on the Web Site, as well as all state and federal laws and county ordinances pertaining to the purchase of tax certificates at auction. (C) User agrees to be bound and obligated to the Seller for the amount of delinquent taxes associated with each tax certificate for which User is the successful bidder. (D) User warrants that he/she is of legal age to enter into binding contracts, and/or that he/she is legally authorized to act as agent on behalf of any employer or principal to whom a license for use of the information presented by Realauction has been granted. (E) User represents and warrants that all information provided by User to the Seller and to Realauction for the purpose of bidding on tax certificates is truthful and accurate to the best of his/her knowledge. DocuSign Envelope ID: 8ED09D0D-AD41-48AC-9D58-22704B0C8793 (F) User warrants that he/she has read all information provided by the Seller and Realauction pertaining to the bidding process and that he/she understands and accepts the obligations incurred by bidders, before User participates in the bidding process. (G) User warrants that he/she is not an elected or appointed county official, a county employee, or a member of the immediate family of any such person, or the agent of any such county official or employee. County officials and employees may not acquire a tax lien or property by sale of a tax lien. Any county official, county employee, or member of the immediate family of any such person, or the agent of any such county official or employee, who knowingly PURCHASES ANY TAX LIEN OR receives a conveyance of property in violation of the provisions of this section commits a class 1 misdemeanor and shall be punished as provided in section 18-1- 106, C.R.S. 3. Seller's and Realauction's Disclaimer and Limitation of Liability and Disclaimer of Warranties. (A) All information provided by the Seller and Realauction is believed to be correct when posted. Seller and Realauction disclaim any warranty of merchantability or fitness for a particular purpose, subject to the Seller's and Realauction's maximum liability for errors and omissions provided for herein. (B) User agrees that (1) neither Seller nor Realauction shall be liable for damages in the event the User is unable to make a successful bid for any reason; (2) the maximum liability of Seller and/or Realauction shall be limited to the amount of delinquent taxes actually paid to the Seller by User following a successful bid; and (3) Seller and Realauction shall not be liable for consequential damages of any kind, including, but not limited to, any anticipated return of/on investment in the form of interest that may have been realized by a successful bidder. (C) Seller and Realauction disclaim any warranty that the website and information presented on it are free of viruses or other forms of malicious code. Neither Realauction nor Seller will be liable for any loss or damage resulting from voluntary shutdown of the Web Site by Realauction to address computer viruses, denial-of- service attacks, or other similar problems. Neither Realauction nor Seller shall not be liable for any damage to User's property alleged to have resulted from User's use of the website. (D) Seller nor Realauction shall not be liable for any loss resulting from a cause over which Seller and/or Realauction do not have direct and exclusive control, including but not limited to problems concerning the Internet; unauthorized interception of email; computer and communications equipment and software; malicious and/or criminal acts of unauthorized users and other third parties; acts of war, terrorism, insurrection or revolution; acts of God; or any similar event. (E) Seller and Realauction shall not be liable for interruptions to access of information or for suspensions in the bidding process caused by website maintenance or the need to alter and update information provided by the Seller. DocuSign Envelope ID: 8ED09D0D-AD41-48AC-9D58-22704B0C8793 Such interruptions and suspensions will occur at the sole discretion of Seller and Realauction. 4. Termination/Exclusion of Use. (A) The Seller maintains the right to terminate this User Agreement and to revoke the license granted to User in the event User breaches this User Agreement or fails to meet his/her obligations as a successful bidder. (B) Seller may exclude User from any auction and from access to the website if User fails to furnish any deposits and/or information required by Seller, including, but not limited to, tax identification information and email addresses. 5. Indemnity. User agrees to defend, indemnify and hold Seller harmless against all claims by third parties based on User's acts, for damages arising from the use of the license and information and the process of bidding on tax certificates, including all claims alleging that the Seller was solely negligent for those damages. 6. Governing Law/Venue/Jurisdiction. This Agreement shall be governed by and interpreted in accordance with the laws of the State of COLORADO without regard to its choice of law provisions. Exclusive venue for any litigation arising under this User Agreement shall be in the state and/or federal courts of Eagle County, COLORADO. User agrees to submit to the personal jurisdiction of the state and/or federal courts of Eagle County, COLORADO. 7. Assignment. This Agreement may not be assigned by User without the prior written consent of Seller, but may be assigned freely by Seller without consent of the User. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. 8. Disclaimer of Suitability of Investment. Neither Realauction nor Seller makes any representation with respect to the suitability of tax certificates as an investment vehicle. User is solely responsible for determining the suitability of an investment in tax certificates offered for sale by the Seller. 9. Entire Agreement/Severability. DocuSign Envelope ID: 8ED09D0D-AD41-48AC-9D58-22704B0C8793 This Agreement contains the entire agreement between the parties. In the event any one or more of the provisions of this Agreement shall be deemed to be invalid, illegal or unenforceable, the remaining provisions shall remain valid and enforceable. 10. Amendments. This User Agreement may be amended at any time by the Seller, through a written or electronic notice to users. User will be required to agree to any such amendment(s) to this User Agreement as a condition of future access and use when such amendments are posted on the website, and failure to agree to such amendments will terminate this User Agreement and will exclude User from participating in future tax certificate auctions. By using this web site, you agree to be bound by this User Agreement and you also agree to receive communications from Realauction and Eagle County concerning your account and auction status. I have read and agree to abide by this User Agreement. DocuSign Envelope ID: 8ED09D0D-AD41-48AC-9D58-22704B0C8793 Eagle County Colorado Bidding Rules for Annual Public Auction of Delinquent Real Estate Taxes 2020 Tax Lien Sale (For Tax Year 2019) SALE • The Eagle County Tax Lien Sale will be held via the Internet on November 19, 2020 • The web site will open for registration, research and deposits beginning November 2, 2020. Deposits must be completed by November 18, 2020 at 4:00 PM MT. Formal Bidding and modification of bids begins November 16, 2020 and can be done up till the closing hour of each batch on the day of the tax lien sale (November 19, 2020). More detailed instructions can be found on the FAQ (Frequently Asked Questions) page of this web site. • A 10% deposit of your total intended winnings will be required via ACH transfer. Deposits must be completed by November 18, 2020 at 4:00 PM MT. • Each Buyer will be required to register online to participate. Buyers are responsible to assure that their information is correct as IRS W-9 forms, tax lien certificates, refunds and redemptions are prepared from this information. • The sequence of the published list in the local newspaper will be followed as closely as possible. BIDDING • Employees and officials of Eagle County, members of their immediate families, or their agents may not acquire a tax lien at the Eagle County Tax Lien Sale per C.R.S. 39-11-151. • The minimum starting bid for each tax lien certificate is equal to the amount of the unpaid taxes, interest, penalties and fees. This includes an auction fee of $12 per certificate. • Bid increments shall be one dollar ($1). • Premiums on winning bids are a cost of securing the tax lien and are not returned nor do they draw interest. TERMS • It is the Buyers’ responsibility to know the quality of the property on which they are paying the taxes and receiving a lien. • At the close of the auction, all successful bids are final. No changes in, or cancellation of, liens purchased can be made after the lien is sold. INTEREST • Premiums do not draw interest. DocuSign Envelope ID: 8ED09D0D-AD41-48AC-9D58-22704B0C8793 • When redeemed, your certificate will pay nine points over the Federal Reserve Discount Rate as of September 1st. Certificates will earn X% for the current year’s sale, except for erroneous sales which will receive two points above the Discount Rate but no lower than 8%. PAYMENT • Each winning bidder shall make a payment of funds sufficient to cover the total amount of the bidder’s winning bids by ACH on the Auction Website no later than November 20, 2020, at 4:30 p.m. (MDT). • If a winning bidder fails to make such a payment by this time, the Treasurer may, in the Treasurer’s sole discretion, award the tax certificates to another bidder or may offer the tax lien for sale in accordance with C.R.S. 39-11-116. • The Treasurer may prohibit a person, who fails to pay the amount due from bidding, from participating in any tax lien sales for up to five years in accordance with C.R.S 39-11-116. TAX LIEN • You do not have ownership rights to the property, simply a property tax lien. SUBSEQUENT TAXES • If the owner does not pay future taxes before August 1st each year, you will be notified of the amount due and you may pay them if you wish. Your payment will be endorsed onto your lien and will accrue interest at the same rate as your certificate. • If the property is in bankruptcy, subsequent taxes cannot be endorsed. TREASURER’S DEED • The majority of properties are redeemed. • A Treasurer’s Deed may be applied for three years after the date of the sale if the property remains unredeemed. A deposit shall be required to cover expenses. CERTIFICATE OF OWNERSHIP • If a mobile home is located on leased land, the tax lien holder is eligible to apply for a Certificate of Ownership one year after the date of sale. • If a mobile home is located on land owned by the same owner as the mobile home, the tax lien holder is • eligible to apply for a Certificate of Ownership three years after the date of sale. DocuSign Envelope ID: 8ED09D0D-AD41-48AC-9D58-22704B0C8793 PLEASE NOTE! • Those investing in tax liens do so at their own risk and are advised to exercise due diligence in carefully analyzing which tax liens to bid on. There are no guarantees express or implied regarding whether a tax lien will prove to be a profitable investment. • The property information accessible on the bid pages was obtained from the Assessor’s office prior to the start of the current auction and is for reference only (please note that this property information, provided by the Assessor’s office, represents the most current assessment year, not the year associated with this tax lien sale, as taxes are paid one year in arrears). It is the buyer’s responsibility to research auction items thoroughly prior to placing bids. SUMMARY OF IMPORTANT DATES AND INFORMATION Auction Type Premium Bid Bidding Type Proxy Bid Increments $1.00 Deposit Required / Minimum Deposit Amount 10% of estimated winnings / No Minimum Deposit Types Accepted ACH Only Payment Types Accepted ACH Electronic Redemption Available No Website Training Class Weekly Online Webinars Site Opens for Registration and Deposits November 2, 2020 Bidding Officially Begins November 16, 2020, 8:00 AM MT Deposits Due November 18, 2020, 4:00 PM MT Auction Starts (First batch closes) November 19, 2020, 9:00 AM MT Batches Closing Interval Every 60 minutes(at the top of the hour) Auction Ends (Last batch closes) November 19, 2020, 12:00 PM MT Payments Due November 20, 2020, 4:30 PM MT DocuSign Envelope ID: 8ED09D0D-AD41-48AC-9D58-22704B0C8793