HomeMy WebLinkAboutA7172 - VITAC CORPORATIONSCITY OF PALM SPRINGS' SUPPLEMENTAL AGREEMENT
TO "AGREEMENT FOR CLOSED CAPTIONTNG SERVICES"
BETWEEN COUNTY OF VOLUSIA, FLORIDA AND
PENNSYLVANIA VITAC CORPORATION
This "City of Palm Springs' Supplemental Agreement to 'Agreement for Closed Captioning
Serviees' between County of Volusia. Florida and Pennsylvania VITAC Corporation"
("Supplemental Agreement") is made, entered into, and effective this ^ j ^ day of June. 2018.
by and between the City of Palm Springs, a California charter city and municipal eoiporation
("City") and VITAC Corporation, a Pennsylvania corporation duly authorized to do business in
California as "Pennsylvania VITAC Coiporation." with its principal place of business located at
8300 E. Maplewood Avenue, Suite 300. Greenwood Village CO 80111 ("VITAC"). The City and
VITAC are sometimes referenced below as the "Parties." and each a "Party."
RECITALS
A. WHEREAS, in this Supplemental Agreement, the City is authorizing the acquisition of
services to be provided by VITAC. pursuant to Palm Springs Municipal Code ("PSMC")
Section 7.09.010 and Section 300 of the Charter of the City of Palm Springs; and
B. WHEREAS, VITAC acquired certain assets of Caption Colorado, L.L.C., a Colorado limited
liability company ("CC"). and its subsidiaries, on or about Januaiy 25. 2017; and
C. WHEREAS, on or about July 20, 2017, CC assigned to VITAC the entirety of its interest in
that certain "AGREEMENT FOR PROFESSIONAL REAL-TIME CLOSED
CAPTIONING SERVICES." dated September 18. 2014. by and between the County of
Volusia, State of Florida ("Volusia"). and CC (the "Volusia Agreement"). The Volusia
Agreement, without its attendant e.xhibits, is EXHIBIT A to this Supplemental Agreement,
and the assignment of the Volusia Agreement to VITAC (the "Assignment") is EXHIBIT B
to this Supplemental Agreement. Both e.xhibits are is attached hereto and incoiporated herein
by this reference herein; and
D. WHEREAS, on or about September 22, 2017, Volusia and VITAC entered into
"AMENDMENT NO. I TO AGREEMENT FOR PROFESSIONAL REAL-TIME CLOSED
C.APTIONING SERVICES BETWEEN COUNTY OF VOLUSIA, FLORIDA AND VITAC
CORPORATION," extending the terni of the Volusia Agreement until October I, 2018 (the
"Volusia Amendment"), attached hereto and incoiporated herein by this reference as
EXHIBIT C; and
E. WHEREAS, the City's Procurement & Contracting Manager ("Manager"), in his capacity as
the designee of the City Manager and Director of Procurement under Title 7 of the PSMC
("Title 7"). reviewed the Volusia Agreement as amended by the Volusia Amendment and
assigned to VITAC by the Assignment, and also reviewed the request for proposals issued
by the County of Volusia in relation thereto; and
Without The Express Written
I Authorization Of The City
Not to Exceed
The Expr '
ation Of
Manager
F. WHEREAS, the Manager has determined that (a) VITAC seeured the Volusia Agreement
upon the completion of a competitive process similar to that rellected in Title 7, and adequate
to protect the public interest, (b) due to economies of scale, the nature ol the product, or
market conditions, the price of the services to be provided by VITAC hereunder is likely to
be less through a purchase in accordance with PSMC Section 7.09.010. than through the
City's independent purchasing requirements pursuant to Title 7. and (c) the terms ot the
Volusia Amendment and the Assignment are not material with respect to the issues relevant
pursuant to Title 7.
G. The Parties anticipate that within a short period of time subsequent to execution ol this
Supplemental Agreement, VITAC will change its legal name with respect to operations
in the State of California to "VITAC Corporation." (the "Newly Named Company") but
will remain a Pennsylvania coiporation duly authorized to do business in California.
H. Upon CITY receipt of documentation of this name change, this Supplemental Agreement
will be automatically assigned to the Newly Named Company for all purposes. The
Newly Named Company shall be entitled to receive all benefits, and shall also be bound
to fulfill all duties under this Supplemental Agreement. Accordingly, all references to
VITAC herein shall apply to the Newly Named Company thi'oughout the term of this
Supplemental Agreement and any extensions thereto.
In consideration of these promises and mutual agreements. City agrees as follows:
.AGREEMENT
1. VITAC SERVICES
1.1 Scope of Services. In compliance with all temis and conditions of this Agreement.
VITAC shall provide real-time professional closed captioning services to City as described in the
Scope of Work attached to this Supplemental Agreement as EXHIBIT D and incoiporated by this
reference (the "services" or "work"). EXHIBIT D is identified as a "Real-time Captioning
Serv ices Agreement," and also includes various terms and conditions pertaining to deliver}' of
sen ices, fees, licensure, use, proprietary protection of software, compliance with law and
confidentiality. To the extent any provision of EXHIBIT D may be deemed inconsistent with any
other provision in this Supplemental Agreement, the provision of EXHIBIT D shall prevail and
control. VITAC wan*ants that all services and work shall be performed in a competent,
professional, and satisfactoiy manner consistent with prevailing industry standards.
1.2 Compliance with Law. VITAC services rendered under this Agreement shall
comply with all applicable federal, state, and local laws, statutes and ordinances and all lawful
orders, rules, and regulations.
1.3 Licenses and Permits. VITAC shall obtain at its sole cost and expense such
licenses, permits, and approvals as may be required by law for the performance of the services
required by this Agreement.
6.1 S IS
1.4 Familiarity with Work. By executing this Agreement. VITAC warrants that it has
carefully considered how the work should be performed and fully understands the facilities,
difficulties, and restrictions attending performance of the work under this Agreement.
2. COMPENSATION OF VITAC
2.1 Compensation of \TT.AC. VITAC shall be compensated and reimbursed for the
serv ices rendered under this Supplemental .Agreement in accordance with the schedule of fees set
forth in EXHIBIT E, the fee schedule for VITAC's seiwices to Volusia pursuant to the Volusia
Agreement as amended and assigned to VIT.AC, originally identified as Exhibit '"B" to the Volusia
Agreement. The City has approved this Supplemental Agreement pursuant to PSMC Section
7.03.020(7). and the total amount of compensation to VITAC hereunder shall not exceed twenty-
five thousand dollars ($25,000.00)
3.2 Method of Payment, in any month in which VITAC wishes to receive payment,
VIT.AC shall submit to City an invoice for sen ices rendered prior to the date of the invoice, no
later than the tenth (10^^) day of such month, in the form approved by City's finance director.
Payments shall be based on the hourly rates set forth in EXHIBIT E for authorized services
performed. City shall pay VITAC for all expenses stated in the invoice that are approved by City
and consistent with this Agreement, within thirty (30) days of receipt of VITAC's invoice.
3.3 Changes. In the event any change or changes in the Scope of Services/Work is
requested by City. Parties shall execute a written amendment to this Agreement, specifying all
proposed amendments, including, but not limited to. any additional fees. .'\n amendment may be
entered into:
A. To provide for revisions or modifications to documents, work product, or
work, when required by the enactment or revision of any subsequent law: or
B. To provide for additional services not included in this Agreement or not
customarily furnished in accordance with generally accepted practice in VITAC's profession.
3.4 Appropriations. This .Agreement is subject to. and contingent upon, funds being
appropriated by the City Council of City for each fiscal year. If such appropriations are not made,
this Agreement shall automatically terminate without penalty to City.
4. PERFORMANCE SCHEDULE
4.1 Time of Essence. Time is of the essence in the pcrfonTiance of this Agreement.
4.2 Schedule of Performance. All services rendered under this Agreement shall be
performed under the agreed upon schedule of performance set forth in Exhibit "A." Any time
period extension must be approved in writing by the Contract Officer.
4.3 Force Maieure. The time for performance of serv ices to be rendered under this
Agreement may be extended because of any delays due to unforeseeable causes beyond the control
and without the fault or negligence of VITAC. if VITAC notifies the Contract Officer within ten
(10) days of the commencement of such condition. Unforeseeable causes include, but are not
fj.ls.is
limited to. acts of God or of a public enemy, acts of the government, tires, earthquakes, floods,
epidemic, quarantine restrictions, riots, strikes, freight embargoes, and unusually severe weather.
After VITAC notification, the Contract OfTicer shall inv estigate the facts and the extent of any
necessaiy delay, and extend the time for performing the services for the period of the enforced
delay when and ill in the Contract Officer's judgment, such delay is justified. The Contract
Officer's determination shall be final and conclusive upon the parties to this Agreement.
4.4 Term. Unless earlier terminated in accordance with Section 4.5 of this Agreement,
this Agreement shall continue in full force and effect for a period of one (1) year, commencing on
this Supplemental Agreement's effective date, unless terminated earlier by City, or extended by
mutual written agreement of the parties.
4.5 Termination Prior to Expiration of Term. City may tenninate this Agreement
at any time, with or without cause, upon thirty (30) days written notice to VITAC. Where
termination is due to the fault of VITAC and constitutes an immediate danger to health, safety,
and general welfare, the period of notice shall be such shorter time as may be determined by the
City. Upon receipt of the notice of termination. VITAC shall immediately cease all services e.xcept
such as may be specifically approved by the Contract Officer. VITAC shall be entitled to
compensation for all sendees rendered prior to receipt of the notice of tennination and for any
services authorized by the Contract Officer after such notice. VITAC may terminate this
Agreement, with or without cause, upon thirty (30) days written notice to City.
5. COORDINATION OF WORK
5.1 Representative of VTTAC. The following principal of VITAC is designated as
being the principal and representative of VITAC authorized to act and make all decisions in its
behalf with respect to the specified services and work; Dave Battineri. Vice President of Sales,
direct dial (267) 822-7834, email davc.battineiri c/ \ itac.com. It is e.xpressly understood that the
experience, knowledge, education, capability, and reputation of the foregoing principal is a
substantial inducement for City to enter into this Agreement. Therefore, the foregoing principal
shall be responsible during the term of this Agreement for directing all activities of VITAC and
devoting sufficient time to personally supeiwise the services under this Agreement. The foregoing
principal may not be changed by VITAC without prior written approval of the Contract Officer.
5.2 Contract Officer. The Contract Officer shall be the City Manager or his/her
designee ("Contract Officer"). VITAC shall be responsible for keeping the Contract Officer fully
infonned of the progress of the performance of the scr\ ices. VITAC shall refer any decisions that
must be made by City to the Contract Officer. Unless otherwise specified, any approval of City
shall mean the approval of the Contract Officer.
5.3 Prohibition against Subcontracting or Assignment. The experience, knowledge,
education, capability, and reputation of VITAC. its principals and employees, were a substantial
inducement for City to enter into this Agreement. Therefore, VITAC shall not contract with any
other individual or entity to perform any sendees required under this Agreement without the City's
express written approval. In addition, neither this Agreement nor any interest may be assigned or
transferred, voluntarily or by operation of law, without the prior written approval of City.
6.IS.IS
5.4 Independent VITAC. Neither City nor any of its employees shall have any control
over the manner, mode, or means by which V'lTAC. its agents or employees, perfonii the services
required, except as otherwise specified. V'lTAC shall perform all required seiwices as an
independent VITAC of City and shall not be an employee of City and shall remain at all times as
to City a wholly independent VITAC with only such obligations as are consistent with that role;
however, City shall have the right to review VITAC's work product, result, and advice. VITAC
shall not at any time or in any manner represent that it or any of its agents or employees are agents
or employees of City.
6. INSUR.ANCE. VITAC shall provide and maintain in force at all times during the
Supplemental Agreement with the City, such insurance, including Workers' Compensation.
Comprehensive General Liability Insurance. Automobile Liability Insurance, and EiTors and
Omissions Insurance to assure the protection contained in the foregoing indemnification
undertaken by Consultant.
6.1. Workers' Compensation subject to statutory requirements for the State of
California.
6.2. Commercial General Liability Insurance with limits of no less than SI.000.000 per
occurrence. S2.000.000 policy aggregate, affording co\'erage for bodily injuiy. including
death, and property damage. The certificate of insurance shall insure exposures arising out
of premises and operations, products and completed operations, personal injury and
advertising liability, and include coverage for contingent and contractual exposures.
6.3. Business Auto Liability protecting against bodily injury and property damage
arising out of operation, maintenance or use of any auto, including owned, non-owned and
hired automobiles exposures, with limits of not less than $1,000,000 per accident. The City
shall appear listed as an additional insured on this coverage.
6.4. Professional Liability/Errors and Omissions Insurance with limits of liability
provided by such policy of no less than $1,000,000 per claim. $2,000,000 policy aggregate
including retro date coverage.
6.5. A certificate of insurance acceptable to the City shall be provided listing the above
coverages and providing 30 days prior written notice to the City in the case of cancellation.
All insurance hereunder shall be primaiy and non-contributoiy o\'er any City insurance or
self-insurance, and shall list the City of Palm Springs together with its officials, employees,
and agents as additional insureds. The City shall be named as an additional insured on all
liabilities, except professional liability and workers' compensation coverage. A copy of the
certificate shall be mailed to the City Attorney prior to the time VITAC executes this
Supplemental Agreement.
7. INDEMNIFICATION.
7.1 Indemnification. To the fullest extent permitted by law. VITAC shall defend
(at VITAC's sole cost and expense), indemnify, protect, and hold harmless City, its elected
officials, officers, employees, agents, and volunteers (collectively the "Indemnified Parties"), from
and against any and all liabilities, actions, suits, claims, demands, losses, costs, judgments.
arbitration awards, settlements, actual damages, demands, orders, penalties, and expenses
including legal costs and attorney fees (collectively "Claims"), including but not limited to Claims
arising from injuries to or death of persons (VITAC's employees included), for damage to
property, including property owned by City, from any violation of any federal, state, or local law
or ordinance, and from en-ors and omissions committed by VITAC, its officers, employees,
representatives, and agents, that arise out of or relate to VITAC's performance under this
Agreement. This indemnification clause excludes Claims arising from the sole negligence or
willful misconduct of the City, its elected officials, officers, employees, agents, and volunteers.
Under no circumstances shall the insurance requirements and limits set forth in this Agreement be
construed to limit VITAC's indemnification obligation or other liability under this Agreement.
VITAC's indemnification obligation shall survive the e.xpiration or earlier temiination of this
Agreement until all actions against the Indemnified Parties for such matters indemnified are fully
and finally barred by the applicable statute of limitations or. if an action is timely filed, until such
action is final. This provision is intended for the benefit of third party Indemnified Parties not
otherwise a party to this Agreement.
8. RECORDS AND REPORTS
8.1 Reports. VITAC shall periodically prepare and submit to the Contract Officer
reports concerning the performance of the services required by this Agreement, or as the Contract
Officer shall require.
8.2 Records. VITAC shall keep complete, accurate, and detailed accounts of all time,
costs, expenses, and expenditures pertaining in any way to this Agreement. VITAC shall keep
such books and records as shall be necessary to properly perform the services required by this
Agreement and enable the Contract Officer to evaluate the performance of such services. The
Contract Officer shall have full and free access to such books and records at all reasonable times,
including the right to inspect, copy, audit, and make records and transcripts from such records.
8.3 Ownership of Documents. All drawings, specifications, reports, records,
documents, and other materials prepared by VITAC in the perfomiance of this Agreement shall be
the property of City. VITAC shall deliver all above-referenced documents to City upon request of
the Contract Officer or upon the tenuination of this Agreement. VITAC shall have no claim for
further employment or additional compensation as a result of the exercise by City of its full rights
or ownership of the documents and materials. VITAC may retain copies of such documents for
VITAC's own use. VITAC shall have an unrestricted right to use the concepts embodied in such
documents.
8.4 Release of Documents. All drawings, specifications, reports, records, documents,
and other materials prepared by VITAC in the performance of seiwices under this Agreement shall
not be released publicly without the prior written approval of the Contract Officer.
8.5 Cost Records. VITAC shall maintain all books, documents, papers, employee time
sheets, accounting records, and other evidence pertaining to costs incurred while performing under
this Agreement. VITAC shall make such materials available at its offices at all reasonable times
during the term of this Agreement and for three (3) years from the date of final payment for
inspection by City and copies shall be promptly furnished to City upon request.
6.IS.1S
9. ENFORCEMENT OF AGREEMENT
9.1 California Law. This Agreement shall be construed and inteipreted both as to
validity and to performance of the parties in accordance with the laws of the State of California.
Legal actions concerning any dispute, claim, or matter arising out of or in relation to this
Agreement shall be instituted in the Superior Court of the County of Riverside. State of California,
or any other appropriate court in such county, and VITAC covenants and agrees to submit to the
personal jurisdiction of such court in the event of such action.
9.2 Interpretation. This Agreement shall be construed as a whole according to its fair
language and common meaning to achieve the objectives and puiposes of the Parties. The tenns
of this Agreement are contractual and the result of negotiation between the Parties. Accordingly,
any rule of construction of contracts (including, without limitation. California Civil Code Section
1654) that ambiguities are to be constmed against the drafting party, shall not be employed in the
interpretation of this Agreement. The caption headings of the various sections and paragraphs of
this Agreement are for convenience and identification puiposes only and shall not be deemed to
limit, expand, or define the contents of the respective sections or paragraphs.
9.3 Waiver. No delay or omission in the exercise of any right or remedy of a non-
defaulting party on any default shall impair such right or remedy or be constmed as a waiver. No
consent or approval of City shall be deemed to waive or render unnecessary City's consent to or
approval of any subsequent act of VITAC. Any waiver by either party of any default must be in
writing. No such waiver shall be a waiver of any other default concerning the same or any other
provision of this Agreement.
9.4 Rights and Remedies arc Cumulative. Except with respect to rights and remedies
expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are
cumulative. The exercise by either party of one or more of such rights or remedies shall not
preclude the exercise by it. at the same or different times, of any other rights or remedies for the
same default or any other default by the other party.
9.5 Legal Action. In addition to any other rights or remedies, either party may take
legal action, in law or in equity, to cure, correct, or remedy any default, to recover damages for
any default, to compel specific performance of this Agreement, to obtain injunctive relief, a
declaratory judgment, or any other remedy consistent with the puiposes of this Agreement.
10. CITY OFFICERS AND EMPLOYEES; NON-DISCRIMINATION
10.1 Non-Liability of Cit\ Officers and Employ ees. No officer or employee of City
shall be personally liable to the VITAC, or any successor-in-interest. in the event of any default or
breach by City or for any amount which may become due to the VITAC or its successor, or for
breach of any obligation of the terms of this Agreement.
10.2 Conflict of Interest. VITAC acknowledges that no officer or employee of the City
has or shall have any direct or indirect financial interest in this Agreement nor shall VITAC enter
into any agreement of any kind with any such officer or employee during the term of this
Agreement and for one year thereafter. VITAC warrants that VITAC has not paid or given, and
6.1S.iS
will not pay or give, any third party any money or other consideration in exchange for obtaining
this Agreement.
10.3 Covenant against Discrimination. In connection with its perfonnance under this
Agreement. VITAC shall not discriminate against any employee or applicant for employment
because of actual or perceived race, religion, color, sex. age. marital status, ancestiy, national
origin {i.e.. place of origin, immigration status, cultural or linguistic characteristics, or ethnicity),
se.xual orientation, gender identity, gender expression, physical or mental disability, or medical
condition (each a ''prohibited basis"), VITAC shall ensure that applicants are employed, and that
employees are treated during their employment, without regard to any prohibited basis. As a
condition precedent to City's lawful capacity to enter this Agreement, and in executing this
Agreement. VITAC certifies that its actions and omissions hereunder shall not incoiporate any
discrimination arising from or related to any prohibited basis in any VITAC activity, including but
not limited to the following: employment, upgrading, demotion or transfer; recmitment or
recruitment advertising: layoff or tennination; rates of pay or other forms of compensation; and
selection for training, including apprenticeship; and funher, that VITAC is in full compliance with
the provisions of Palm Springs Municipal Code Section 7.09.040. including without limitation the
provision of benefits, relating to non-discrimination in city contracting.
11. MISCELLAiNEOUS PROVISIONS
11.1 Notice. Any notice, demand, request, consent, approval, or communication that
either party desires, or is required to give to the other party or any other person shall be in writing
and either seiwed personally or sent by pre-paid, first-class mail to the address set forth below.
Notice shall be deemed communicated seventy-two (72) hours from the time of mailing if mailed
as provided in this Section. Either party may change its address by notifying the other party of the
change of address in writing.
TO THE CITY: David H. Ready. Esq., Ph.D.
City Manager
3200 E. Tahquitz Canyon Way
Palm Springs, California 92262
Edward Z. Kotkin
City Attorney
SAME
Arron Brown
Director of Information Technology
SAME
To VITAC: Dave Battincri
8300 E. Maplewood Ave., Ste. 300,
Greenwood Village, Colorado 80111
11.2 Integrated Agreement. This Agreement contains all of the agreements of the
parties and supersedes all other written agreements.
6.IS.1,S
11.3 Amendment. No amendments or other modifications of this Agreement shall be
binding unless thi'ough written agreement by all Parties.
11.4 Severabilit\. Whenever possible, each provision of this Agreement shall be
interpreted in such a manner as to be effective and valid under applicable law. In the event that
any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this
Agreement shall be declared invalid or unenforceable by valid judgment or decree of a court of
competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining
phrases, sentences, clauses, paragraphs, or sections of this Agreement, which shall be interpreted
to caiTy out the intent of the parties.
11.5 Successors in Interest. This Agreement shall be binding upon and inure to the
benefit of the Parties' successors and assignees.
11.6 Third Party Beneficiary. E.xcept as may be expressly provided for in this
Agreement, nothing contained in this Agreement is intended to confer, nor shall this Agreement
be construed as conferring, any rights, including, without limitation, any rights as a third-party
beneficiary or otherwise, upon any entity or person not a party to this Agreement.
11.7 Recitals. The true and correct recitals above, including all defined tenns and
exhibits, are incoiporated by this reference herein as a material part of this Agreement
11.8 .Authority . The persons executing this .Agreement on behalf of the Parties waiTant
that they are duly authorized to execute this Agreement on behalf of Parties and that by so
executing this Agreement the Parties are fomially bound to the provisions of this Agreement.
THIS SPACE INTENTIONALL YLEETBLANK
6.1S.IH
IN WITNESS WHEREOF, the Parties have executed this Supplemental Agreement as of
the dates stated below.
"CITY"
Cit> of Palm Springs
Dale;
David H. Ready
City Manager
APPROVED ASJtO FORM:
Edward Z. Kotkin,
City Attorney
ATTEST
Dmc: ti/zA
'VITAC"
Doug iCarlov its.
Chief Business Development Officer
^2.5"*^ A ^ I
Not to Exceed
Without The Exprd'ss Written
Authorization Of The City
Manager
<4^
I^ II Ml
IN WITNESS WHEREOF, the Parties hav e exeeuled this Supplemental Agreement as of
the dates stated below.
..CITY"
Cit\ of Palm Springs
Date:
APPROVED ASJCO FORM
Edward Z. Kotkin,
City Attorney
David H. Readv
Citv Manauer
ATTEST
tfPKtraJBVCny MANAGER
fikA9i.iWm
"VTTAC"
Date:By:iV\
Doug Kaiiovits,
Chief Business Development Officer
-4^
Not to Exceed
Without The Express Written
Authorization Of The City
Manager
6.IS.1S 10
EXHIBIT A
5.31. IS
Volusia County
FLORIDA
AGREEMENT
FOR
PROFESSIONAL REAL-TIME CLOSED CAPTIONING
SERVICES
Between
THE COUNTY OF VOLUSIA
AND
CAPTION COLORADO. LLC
County of Volusia
Purchasing & Agreements Division
123 West Indiana Avenue, Suite 302
DeLand, Florida 32720-4608
386-736-5935
AGREEMENT FOR PROFESSIONAL REAL-TIME CLOSED CAPTIONING SERVICES
This Agreement For Professional Real-Time Closed Captioning Sen/ices
(hereinafter "Agreement") made and entered by and between CAPTION COLORADO, duly
authorized to conduct business in the State of Florida, whose principal place of business is
located at 5690 DTC Blvd. Suite 500W Blvd., Greenwood Village, CO 80111 (hereinafter the
"Contractor") and COUNTY OF VOLUSIA, a body corporate and politic and a subdivision of the
State of Florida, whose address is County of Volusia, 123 West Indiana Avenue, DeLand,
Florida 32720 (hereinafter the "County").
RECITALS:
Whereas, the County desires to retain the services of a competent and qualified
Contractor to provide real-time closed captioning; and
Whereas, the County has propounded Request for Proposals 14-P-52BB (the "RFP")
seeking a qualified firm to perform real-time closed captioning. and has received responses
from various potential vendors; and
Whereas, the County has determined that the Contractor is fully qualified to render the
required service; and
Whereas, it has been determined that the execution of this Agreement is beneficial to
the people of County of Volusia, Florida.
NOW. THEREFORE, in consideration of the foregoing recitals which are incorporated
herein by reference, and other specific consideration set forth in this Agreement, the receipt and
sufficiency of which is acknowledged by the Contractor and County, the parties agree and
stipulate as follows:
1 DEFINJTIONS
For this Agreement and any incorporated exhibits, certain terms, phrases, words and their
respective derivations shall have the meaning set forth and defined therein and shall be
applicable in both. Definition of terms in the Agreement shall first be govemed by this
Agreement, second by the incorporated Scope of Senrices/Work (Exhibit A), third by the
Supplemental Scope of Service/Work (Exhibit A1) and fourth by the incorporated Fee
Schedule (Exhibit B). In the event of any conflict among the foregoing, the conflict shall be
resolved in the order of priority set forth in the preceding sentence. If there is no applicable
definition as described above, the terms, phrases, and words, and their respective
derivations when used in this Agreement and the Scope of Service, shall have the meanings
ascribed to them in Webster's New Collegiate Dictionary (G & C Merriam Co., 11th ed., July
2003, or any subsequent edition).
1.1 Amendment: An amendment to this Agreement in writing by the County, approved
by the Director of Purchasing and Contracts, and signed by the County authorizing
an addition, deletion, or revision in the Scope of Services/Work, or an adjustment in
this Agreement or a statement of work. Agreement price, or extension of the
Agreement. The terms "Amendmenf and "Change Order" may be used
interchangeably in the Agreement.
P:\BECKI\20I4 Solicitalions\14-P-52BB, Closed CaptioningXContractVCoiitract.docx Page 2 of 29
1.2 Compensation: The amount paid by the County to Contractor for Services
regardless of whether stated as compensation or stated as hourly rates, overhead rates,
or other figures or formulas from which compensation can be calculated which
includes the total monies payable to the Contractor which includes all Services, labor,
materials, supplies, travel, training, profit, overhead, costs, expenses, and any other
costs necessary to complete work under the Scope of Services/Work.
1.3 Contractor: The person or entity qualified to perform Services/Work under this
Agreement.
1.4 Contractor's Services: Those Services within the Scope of ServicesA/Vork of this
Agreement or any exhibit, attachment or addendum thereto which relates to the
General Scope of Services in Section 4.1 to be performed by Contractor in
connection with Contractor's employment or practice.
1.5 Conventional Rounding: Bill to the closest quarter hour (eg. if a meeting runs until
4:07, round to 4:00; if until 4:08, round to 4:15).
1.6 County: The County of Volusia, Florida, and shall be synonymous with the term
"County."
1.7 County Project Manager: Also known as the person designated by the County to
review, approve and make decisions regarding the Scope of Services/Work in this
Agreement.
1.8 Contract Administrator: The Director of Purchasing and Contracts or his/her
designee responsible for addressing any concerns within this Agreement.
1.9 Deliverable: The result(s) or end products or services of that meet the requirements
and functional parameters articulated in the Scope of Services/Work for this
Agreement including but not limited to: services, reports, written documentation,
training, systems or processes.
1.10 Effective Date: The date that this Agreement is fully executed by Contractor and the
County.
1.11 Project: The project that Is described in Exhibits A - A1 of this Agreement.
1.12 Project Manager: An employee of the Contractor who is responsible for the day-to
day administration and coordination of the Scope of Services/Work for the
Contractor.
1.13 Scope of Services/Work: The sen/ices or work, herein defined in this Agreement
under the Scope of Services (e.g., Exhibit A) that is agreed to by the parties in
writing, which includes responsibility for performing and complying with all incidental
matters pertaining thereto.
1.14 Services: Those services defined in the Scope of Services/Work to be performed by
the Contractor pursuant to this Agreement and Its attached exhibits, including: the
work, duties and obligations to be carried out and performed by Contractor under the
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Agreement and pursuant to Exhibits A - B, attached hereto and made a part of this
Agreement.
1.15 State: State of Florida.
1.16 Subcontractor: A person other than a materialman or laborer who enters into an
Agreement with a Contractor for the performance of any part of the basic agreement.
1.17 Work: Any and all obligations, Services, duties and responsibilities necessary to the
successful completion of the Scope of ServicesA/Vork assigned to or undertaken by
Contractor under the Agreement, including the furnishing of all labor, materials,
equipment and other incident.
2 EXHIBITS
2.1 The exhibits listed below are incorporated into and made a part of this Agreement.
2.1.1 Exhibit A - Scope of Services/Work,
2.1.2 Exhibit A-1 - Supplemental Scope of Services/Work
2.1.3 Exhibit B - Fee Schedule
3 ORDER OF PRECEDENCE
3.1 If Contractor finds a conflict, error or discrepancy in the Agreement, it shall call it to
the County Project Manager's attention, in writing and request the County Project
Manager's interpretation and direction before proceeding with the work affected
thereby. Such notice shall be provided by the Contractor to the County's Project
Manager in a timely fashion so as not to cause additional costs due to delay. In
resolving such conflicts, errors and discrepancies, the documents shall be given
precedence in the following order:
3.1.1 In the event of any conflicts or inconsistencies between provisions of the
exhibits or attachments to this Agreement, the following order of precedence
shall govern.
This Agreement with its exhibits and attachments in the following order
3.1.1.1 First: The terms and conditions in the main body of this Agreement.
3.1.1.2 Second: Exhibit A - Scope of ServtcesA/Vork
3.1.1.3 Third: Exhibit A1 - Supplemental Scope of Services/Work
3.1.1.4 Fourth: Exhibit B - Fee Schedule
4 SCOPE OF SERVICES/WORK. The Contractor shall provide Services under this
Agreement and act as Contractor to the County in accordance to the Scope of
Services/Work as specifically set forth in this Agreement and its exhibits.
4.1 Contractor shall provide Closed Captioning Services to Volusia County in
accordance with the Scope of Services/Work attached as Exhib'rts A and A1.
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4.2 Performance Criteria:
4.2.1 All services or work shall be performed in accordance with the Agreement
and carried out under the direction of the County's Project Manager.
4.2.2 All labor necessary to complete the Scope of Services/Work shall be
performed in a good and competent workmanlike manner to the satisfaction
of the County.
4.2.3 Independent Contractor. The Contractor shall provide the services
required herein strictly in an Independent contractual relationship with the
County and, except as expressly set forth herein, is not, nor shall be,
construed to be an agent or employee of the County. Nothing herein shall
create any association, partnership, joint venture or agency relationship
between them. The County shall not provide vehicles or equipment to the
Contractor to perform the duties required under this Agreement nor will the
County pay for any business, travel, office, or training expense or any other
Agreement performance expense not specifically set forth in the Scope of
ServicesA/Vork of this Agreement. The Contractor is not exclusively bound
to the County and may provide Services or Work to other private and public
entities, but agrees and covenants that any such Service provided by the
Contractor to or for such entities will not conflict or otherwise interfere with
the Contractor's provision of Services or Work to the County under this
Agreement.
4.2.4 Changes to Scope of Work/Services bv County. It is the specific intent of
the parties that the Work required is to be performed at the firm prices
stated under this Agreement and that no extras or changes in the Work
whether additions or deletions involving a change in the Agreement price
shall be undertaken nor performed by the Contractor, without the prior
written consent of the County. The County may at any time, by written
Change Order or Amendment, make changes to the Service to be
performed under this Agreement. Except as otherwise provided in this
Agreement, if any such change causes an increase or decrease in the
Contractor's cost or the time required for performance, an equitable
adjustment shall be made and this Agreement shall be amended in writing
signed by both parties stating the equitable adjustment.
4.2.5 Changes to Scope of Work/Services Reauested bv Contractor. The
parties acknowledge that Exhibits A and A1 may not delineate every detail
and minor Work task required to be performed by Contractor to complete its
Services and provide the Deliverables. If, during the course of the
performance of the Services, Contractor believes that additional Work
should be performed to complete the Services which, in Contractor's
opinion, is outside the level of effort originally anticipated in Exhibits A and
A1, whether or not Exhibits A and A1 identifies the Work items. Contractor
shall notify the Contract Administrator in writing in a timely manner, with
such notification being made pursuant to Section 4.24 and senring as
Contractor's request for a Change Order. If Contractor proceeds with
said Work without notifying the Contract Administrator, said Work
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shall be deemed to be within the original level of effort, whether or not
specifically addressed in Exhibits A and A1. Notice for such additional
Work that is inconsistent with Section 4.2.4 to the Agreement Administrator
by Contractor shall not constitute authorization or approval by County to
perform said Work. Accordingly, performance of Work by Contractor
outside the originally anticipated level of effort without prior written County
approval is at Contractor's sole risk and County shall not be liable for
payment of said additional Work.
4.2.6 Time is of the Essence. Time is of the essence for all Work and Services
performed under this Agreement and ail Projects performed in accordance
herewith.
4.3 Authority to Act on Behalf of Countv. County's Purchasing and Contracts Director
or such other proper authority pursuant to County policies and procedures shall have
the authority to approve, award, and execute all documents or other instruments
required to effectuate changes, modifications, or additional service, so long as the
then cumulative financial obligation of County for such additional items does not
exceed the Director of Purchasing and Contracts' authority under the County Code of
Ordinances or policies and procedures. Any change, modification or additional
service that causes the cumulative financial obligation of County for such additional
items to exceed the Purchasing Director's or County Manager's authority under the
Procurement Code shall be presented to the Volusia County Council for approval.
5 RESPONSIBILITY OF CONTRACTOR
5.1 Where questions exist as to the Scope of Services to be provided. Contractor shall
confer with the Project Manager to ascertain the functional or design criteria of the
Scope of Services/Work. The Services of the Contractor shall also include of the
following:
5.1.1 Contractor covenants and agrees that there are no obligations,
commitments, or impediments of any kind that shall limit or prevent
Contractor's performance of the Work or Services.
5.1.2 Contractor shall keep the County informed of any changes or
advancements in technology occurring any time prior to or during actual
implementation of the Services to the extent that such changes and
advancements may increase efficiency or otherwise allow for better
services or reductions in costs to the County.
5.1.3 Contractor covenants and agrees as follows:
5.1.3.1 That Contractor recognizes that its special talent, training, and
experience caused the County to select Contractor to be the prime
professional;
5.1.3.2 That Contractor comprehends the specifications and requirements
of the Scope of ServicesA/Vork and the use of the same in their
entirety to provide Deliverables;
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5.1.3.3 That Contractor possesses the special skills to recognize material
errors or omissions that would result in failures to appropriately
perform in accordance with the Scope of Services/Work; and
5.1.3.4 That Contractor shall adhere to the standard of care applicable to
a contractor with the degree of skills and diligence normally
employed by a licensed professional in his field or practice
performing the same or similar Services or Work in compliance
with all applicable federal, state, and municipal laws, regulations,
codes, and ordinances.
5.1.4 Accuracy of Documentation. Contractor covenants and agrees that any
Project data, summaries, reports, or studies, submitted by the Contractor to
the County shall be competently drafted and accurate with regard to the
information contained therein. County's acceptance, approval, or reliance
on any such documentation shall not release Contractor from any liability if
such information is incorrect or inaccurate, it being understood that the
County is relying on the Contractor's status as an industry professional In
accepting such documentation..
5.1.5 Notification of Errors or Defects. Contractor covenants and agrees to
call notify the County if It discovers or has knowledge of anything of any
nature in any reports, studies, bulletins, schedules, documentation,
requirements or instructions prepared by Contractor or data or instructions
supplied to Contractor by the County or any other party, Contractor regards
in Contractor's professional opinion as unsuitable, improper, or inaccurate.
5.1.6 Administration. Contractor covenants and agrees to efficiently administer
and perform all Work or Services economically and expeditiously in a
competent and workmanlike manner.
5.2 Supervision. The Contractor shall direct and supervise competent and qualified
personnel and shall devote ti me and attention to the direction of the operation to
ensure performance of obligations and duties as set forth herein. The Contractor
shall hire, compensate, supervise, and terminate members of Its work force, and the
Contractor shall direct and control the manner in which work is performed including
conditions under which individuals shall be assigned duties, how individuals shall
report, and the hours Individuals shall perform. The Contractor shall be responsible
for all income tax, social security and Medicare taxes, federal unemployment taxes,
and any other withholdings from the company's employees' and/or subcontractors'
wages or salaries. Benefits, if any, for the Contractor's employees and/or
subcontractors shall be the responsibility of the Contractor including, but not limited
to, health and life insurance, retirement, liability/risk coverage, and worker's and
unemployment compensation. Contractor shall be solely responsible for the means,
methods, techniques, sequences and procedures in delivering services or work
pursuant to this Agreement. Further, Contractor shall be responsible for assuring the
County that finished or completed Deliverables accurately comply with the
requirements of this Agreement and the Scope of Services contained therein.
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5.3 Assurance. Contractor gives County Its assurance that all Work or Services
performed under this Agreement shall be timely performed in a competent and
workmanlike manner and in accordance with the specifications and requirements of
the Agreement and any approvals required under the Agreement. All Work not
conforming to the specifications and requirements of the Scope of Services/Work
shall be considered materially defective and constitute a breach of this Agreement.
5.4 Accuracy of Reports I Summaries. The Contractor shall be responsible for the
professional and technical accuracy and the coordination of all data, reports,
summaries, and any other Services or Work famished by the Contractor under this
Agreement. The Contractor shall, without additional cost to the County, correct or
revise any errors or deficiencies in its Work or Services for which it is responsible.
5.5 Services and Work to Compiv with Specifications and Law. All Work performed
by Contractor including all general provisions, special provisions, job specifications,
drawings, addendum, amendments to the basic Agreement, written interpretations,
and written orders for minor changes in Work, shall comply with the Scope of
Services/Work and all applicable local laws, codes, ordinances and statutes.
5.6 Subcontractors.
5.6.1 Employment or Substitution of Subcontractors. Contractor shall not
employ any Subcontractor, or sut>-subcontractor other person or
organization of against whom the County may have reasonable objection,
nor shall Contractor be required to employ any Subcontractor or sub-
subcontractor against whom it has reasonable objection. Contractor shall
not make any substitution for any Subcontractor or sub-subcontractor who
has been accepted by the County without the County's approval.
5.6.2 Disapproval of Subcontractors. County's disapproval or requirement of
removal or replacement of Contractor's employee or Subcontractor or sub-
subcontractor shall be deemed for lawful reasons if in County's reasonable
judgment, such Contractor's employee or Subcontractor or sub-
subcontractor poses a threat or causes harm to the health, welfare, or
safety, or morale of the County or its agencies, personnel or property or
who falls any drug test administered in connection with this Agreement, or
who has been convicted of a felony or a misdemeanor involving "moral
turpitude" or has been released or dishonorably discharged or separated
under conditions other than honorable under other than honorable
conditions from any of the Armed Forces of the United States.
5.6.3 Contractor Responsible for Subcontractors. Contractor shall be fully
responsible for all negligent acts and omissions of its Subcontractor or sub-
subconstractor and of persons directly or indirectly employed by them and
of persons for whose negligent acts any of them may be liable to the same
extent that it is responsible for the negligent acts and omissions of persons
directly employed by it. Nothing in the Agreement shall create any
contractual relationship between any Subcontractor or sub-subcontractor
and the County or any obligation on the part of the County to pay or to see
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to the payment of any moneys due any Subcontractor or sub-subcontractor,
except as may otherwise be required by law. County may furnish to any
Subcontractor or sub-subcontractor to the extent practicable, evidence of
amounts paid to Contractor on account of specific Work done in
accordance with the schedule of values.
5.6.4 Subcontractors to Act Pursuant to this Agreement. Contractor agrees
to bind specifically every Subcontractor to the applicable terms and
conditions of the Agreement for the benefit of the County, and shall require
all Subcontractors and sub-subcontractors or other outside associates
employed in connection with this Agreement to comply fully with the terms
and conditions of this Agreement as such may apply to the Work or
Services being performed for the Contractor.
5.6.5 Consent Required for Substitution. Any Subcontractor or sub-
subcontractors and/or outside associates required by the Contractor in
connection with the Services covered by the Agreement will be limited to
such individuals or firms as are specifically identified for the Scope of
Services/Work assigned under this Agreement. Any substitution of such
Sulxjontractors, sub-subcontractors or associates will be subject to the prior
written approval of the County Project Manager.
6 TERM OF AGREEMENT
6.1 The Term of this Agreement shall commence on the Effective Date of this Agreement
or when It is fully executed by all parties and shall terminate three (3) years from the
Effective Date. Two (2) one (1) year renewals are permissible upon mutual written
agreement between the parties and County Council approval.
6.2 The Work or Services to be rendered by the Contractor shall be commenced, as
specified in this Agreement or as may be requested by the County and shall be
completed within the time specified therein.
7 AGREEMENT PRICE AND COMPENSATION
7.1 Payment Pursuant to Fee Schedule. The Contractor shall be paid Compensation
for all Work or Services. Total Compensation or Guaranteed Maximum-Not-To-
Exceed Fees for this Agreement shall be comprised of the total cost of all projects,
materials, equipment, labor, expenses (including reimbursable expenses), all mark
ups for overhead and profit more particularly described in Exhibit "B" - Fee Schedule
attached hereto and incorporated herein. The County agrees to pay the Contractor
in current funds, as compensation for its Services.
7.2 Errors and Omissions in Pricing. Compensation shall not be adjusted because of
errors or omissions which are not the fault of the County in computing the Work or
Services costs which result in an increase in the cost of this Agreement or because
the time for completion varies from the original estimate, including completion or
substantial completion of this Agreement prior to the scheduled or Agreement
completion date or on account of County's election to furnish any of the Work or
Services. In addition. Contractor shall certify that the original Agreement price or
Compensation for the Scope of ServicesA/Vork and any additions thereto shall be
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adjusted to exclude any significant sums by which the County determines the price
or Compensation was increased due to inaccurate, incomplete, or noncurrent wage
rates and other factual unit costs.
7.3 Reimbursable Expenses. County's payment to the Contractor pursuant to the Fee
Schedule, attached hereto and incorporated herein as Exhibit B, shall be full
compensation for Services and Work rendered and any expenses incurred in
connection therewith, and Contractor shall not be eligible for reimbursement for any
expenses incurred in connection with the performance of this Agreement.
7.4 Payments. Any payments shall be made in accordance with Exhibit B - Fee
Schedule. The hourly rates expressed in Exhibit B shall be govem Compensation
and provide for payments against specified Deliverables and performance.
7.4.1 Approval of Payment. If, on the basis of the County Project Manager's
observation and review of Contractor's Work or Services, the County
Project Manager is satisfied that the Work has been completed and the
Contractor has fulfilled all of its obligations under the Agreement, the
County Project Manager, after receipt of a proper invoice, shall indicate in
writing his or her approval of payment and present the invoice to Accounts
Payable for payment. Otherwise, the County Project Manager shall return
the invoice to the Contractor, indicating in writing the reasons for refusing to
approve final payment, in which case the Contractor will make the
necessary corrections and resubmit the invoice. Regardless of the
foregoing, approval of payment pursuant to this section shall not prevent
the County from recovering amounts paid when the County subsequently
discovers material defects or deficiendes in the services or work provided
by the Contractor, which defects or deficiencies would have otherwise
caused the County to withhold payment.
7.4.2 invoice Detail. The Contractor shall submit an invoice for which
professional Services were rendered to the County upon the completion
and acceptance of the Services. Each invoice shall show detailed
explanations of the Services accomplished in accordance with the
Agreement prices set forth by labor hours by classification, associated
rates, any material or subcontracted costs and any indirect rates or costs in
accordance with the Agreement prices set forth hereto. All of the above
shall sum to the total amount requested.
7.5 Invoices. Invoices or payment requests shall be addressed from the Contractor
and submitted to the County's Project Manager. All invoicing and payments,
including the practices and procedures pertaining thereto, shall be governed by the
applicable provisions of Part VII of Chapter 218, Florida Statutes.
7.5.1 Documentation. The Contractor's Invoice(s) shall be accompanied by
supporting data as may be required by the County Project Manager.
County Project Manager shall review the Contractor's Invoice and
supporting data and notify the Contractor in writing within twenty (20) days
from receipt of the statement if any amounts requested are disputed or lack
adequate support or documentation.
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^•5.2 Invoicing Pursuant to Agreement. Pursuant to Exhibit B, Contractor shall
invoice County for all payments due Contractor under this Agreement.
County shall pay invoices in accordance with this Agreement, invoices
shall be sent to the address specified by the County.
7-5.3 Withhoidlno. The County may withhold payment of any specific invoiced
charges that it disputes in good faith and pay all undisputed charges on the
invoice.
7.5.4 Payment Due. Within forty-five (45) days of acceptance by the County
Project Manager of all the Work or Services for which Contractor has
submitted an invoice of professional Services, the Contractor shall be paid
the unpaid balance of any money due for any undisputed Work or Services
covered by said statement.
7.5.5 Taxes. County is a tax exempt entity and shall not be charged or invoiced
for the payment of taxes for Work or Services performed under this
Agreement.
7.6 Contractor's Continuing Obligations. Contractor's obligation to perform Work or
Services in accordance with the Agreement shall be absolute. Neither approval of
any progress nor final payment to Contractor nor documentation confirming
acceptance of the Work or Services by the County, nor any payment by County to
Contractor under the Agreement nor any act of acceptance by the County nor any
failure to do so, nor any correction of defective Work by County shall constitute an
acceptance of Work or Sen/ices not in accordance with the Agreement
8 PAYMENT OF SUBCONTRACTORS
8.1 Payment. Contractor shall pay its Subcontractors and suppliers, within thirty (30)
days following receipt of payment from the County for such subcontracted Work or
supplies. Contractor agrees that if it withholds an amount as retainage from such
Subcontractors or suppliers, that it shall release such retainage and pay same within
thirty (30) days following receipt of payment of retained amounts from County.
8-2 indemnification as to Pavment of Subcontractors. Contractor shall save, defend,
and hold the County harmless from any and all claims and actions from Contractor's
Subcontractors for payment for Services and Deliverables provided by
Subcontractors for Contractor under this Agreement.
8.3 County not Liable for Pavment to Subcontractors. Nothing in this Agreement
shall create any obligation on the part of the County to pay directly to any
Subcontractor or sub-subcontractor of Subcontractor any monies due to such
Subcontractor, or claims of a Subcontractor or sub-subcontractor of Subcontractor
for amounts owed by Contractor to Subcontractor or Subcontractor to sub-
subcontractor for Work performed under this Agreement.
9 LIMITATION OF LIABILITY AND INDEMNIFICATION OF COUNTY
9.1 Personal Injury and Property Damage. The Contractor shall, at its own expense,
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indemnify and hold harmless County and its public officials (elected and appointed),
successors and successors in interest, officers, agents, attorneys, and employees
from and against all claims of every kind and nature (including losses incurred or
suffered in consequences either of bodily injury to any person or damage to
property), damages, losses and expenses including reasonable attomey's fees to the
extent caused by the negligence, recklessness, or intentionally wrongful conduct of
the Contractor and its Subcontractors or sub-subcontractors or agents performing
Work or Services under this Agreement or a work order or assignment issued
pursuant thereto, caused by any negligent act or omission of Contractor, any of
Contractor's Subcontractors or subconsultants, anyone employed by any of them or
anyone for whose acts any of them may be liable, except that the Contractor will not
t)e required to indemnify and hold the County harmless if such claim, damage, loss
and expense Is the result of the sole negligence of the County, or anyone employed
by the County or anyone for whose acts the County may be liable. Such obligation
shall not be construed to negate, abridge, or reduce other rights or obligations of
indemnity which would otherwise exist as to a party or person described in this
Agreement.
9.2 General Indemnification. The Contractor shall Indemnify, defend and hold
harmless the County and its agents, officers, and employees, from and against all
claims, damages, losses, and expenses, including, but not limited to attorney's fees,
arising out of or resulting from the performance of this Agreement provided that the
claim, damage, loss and expense is caused by any negligent act or omission of the
Contractor, anyone directly or indirectly employed by Contractor, except the
Contractor will not be required to indemnify and hold the County harmless if such
claim, damage, loss and expense is the result of the sole negligence of the County,
or of anyone directly or indirectly employed by the County or anyone for whose acts
the County may be liable.
9.3 Sovereign Immunity. The County expressly retains all rights, benefits and
immunities of sovereign immunity in accordance with Section 768.28, Florida
Statutes. Notwithstanding anything set forth in any section of this Agreement to the
contrary, nothing In this Agreement shall be deemed as a waiver of the County's
immunity or limits of liability beyond any statutory limited waiver of immunity or limits
of liability which may have been or may be adopted by the Florida Legislature, and
the cap on the amount and liability of the County for damages, regardless of the
number or nature of claims in tort, equity, or contract, shall not exceed the dollar
amount set by the legislature for tort. Nothing in this Agreement shall inure to the
benefit of any third party for the purpose of allowing any claim against the County,
which would otherwise be barred under the doctrine of sovereign immunity or by
operation of law.
10 INSURANCE
10.1 Required Types of Insurance:
10.1.1 The Contractor shall purchase and maintain at its own expense, during the
term of this Agreement the following types and amounts of insurance with
limits no less than those shown below, in the form and from companies
satisfactory to the County:
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SCHEDULE LIMITS
Workers' Compensation Florida Statutory Coverage
Employers Liability $100,000. Each Accident
(including Appropriate Federal Acts)....$500,000. Disease Policy Limit
$100,000. Each Employee/Disease
Commercial General Liability $2,000,000. General Aggregate -
$2,000,000. Products/CompOps Aggregate
Products-Completed Operation $1,000,000. Personal/Advertising Injury
$1,000,000. Each Occurrence
(The County of Volusia shall be named as an additional insured under all of the
above Commercial General Liability coverage.)
Professional Liability $1,000,000.
(Errors & Omissions)
10.1.2 Minimum underlying coverage shall include Commercial General Liability,
Automobile Liability and Workers' Compensation/Employer's Liability.
(Umbrella liability limit will not be required to be carried by Subcontractors.)
(If the Services provided require the disposal of any hazardous or non-
hazardous materials off the job site, the disposal site operator must furnish a
certificate of insurance for Pollution Legal Liability with coverage for bodily
injury and property damage for losses that arise from the facility that is
accepting the waste under this Agreement).
10.1.3 Workers' Compensation Insurance. Per Section 10.1.1, Workers'
Compensation Insurance Is required for all employees of the Contractor,
employed or hired to perform or provide Work or Sen/ices under this
Agreement or that is in any way connected with Work or Services
performed under this Agreement, without exclusion for any class of
employee, and shall comply fully with the Florida Workers' Compensation
Law (Chapter 440, Florida Statutes, Workers' Compensation Insurance)
and include Employers' Liability Insurance with limits no less than the
statutory amount shown above per occurrence.
10.1.3.1 Contractor and its Subcontractors, or any associated or subsidiary
company doing work on County property or under this Agreement
must be named in the Workers' Compensation coverage or
provide proof of their own Workers' Compensation coverage,
without exclusion of any class of employee, and with a minimum
of the statutory limits per occurrence for Employer's liability
coverage. Further, if the Contractor's Subcontractors fail to obtain
Workers' Compensation insurance and a claim is made against
the County by the uncovered employee of said Subcontractor of
the Contractor, the Contractor shall indemnify, defend, and hold
harmless the County from all claims for all costs including
attorney's fees and costs arising under said employee(s) Workers'
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Compensation insurance claim{s).
10.1.4 Commercial General Liability Insurance. Per Section 10.1.1, the
Commercial General Liability insurance, with a limit of not less than the
amounts shown above with an aggregate limit and per occurrence basis,
including coverage for the Contractor's operations, independent
contractors, Subcontractors and "broad form" property damage coverage
protecting itself, its employees, agents, contractors or subsidiaries, and
their employees or agents for claims for damages caused by bodily injury,
property damage, or personal or advertising injury, products
liability/completed operations including what is commonly known as groups
A, B, and C (libel, false arrest, slander). Such policies shall include
coverage for claims by any person as a result of actions directly or indirectly
related to the employment of such person or entity by the Contractor or by
any of its Subcontractors arising from Work or Sen/ices performed under
this Agreement. Public liability coverage shall include either blanket
contractual insurance or a designated contract contractual liability coverage
endorsement, indicating expressly the Contractor's contract to indemnify,
defend and hold harmless the County as provided in this Agreement. The
commercial general liability policy shall be endorsed to include the County
as an additional insured. The commercial general liability policy shall
provide exclusive coverage for the location or project site where the Work
or Sen/Ices are to be performed under this Agreement. In the alternative,
the commercial general liability policy shall be endorsed to provide the
designated aggregate per location endorsement or equivalent on a form
approved or requested by the County Risk Manager.
10.1.5 Motor Vehicle Liability. Per Section 10.1.1, the Contractor shall secure
and maintain during the term of this Agreement, motor vehicle coverage in
the split limit amounts of no less than the amounts shown above per
person, per occurrence for bodily injury and for property damage or a
combined single limit of the amount shown above with "Any Auto",
Coverage Symbol 1, providing coverage for all autos operated
regardless of ownership, and protecting itself, its employees, agents or
lessees, or subsidiaries and their employees or agents against claims
arising from the ownership, maintenance, or use of a motor vehicle
10.1.6 Professional Liability. Per Section 10.1.1, the Contractor shall ensure
that it secures and maintains, during the term of this Agreement,
Professional Liability insurance with limits of no less than the amount
shown above contemplated by this Agreement. Such policy shall cover all
the Contractor's or its Subcontractor's professional liabilities whether
occasioned by the Contractor or its Subcontractors, or their agents or
employees.
10.1.6.1 If the Contractor fails to secure and maintain the professional
liability insurance coverage required herein, the Contractor shall
be liable to the County and agrees to indemnify, defend, and hold
harmless the County against all claims, actions, losses, or
damages that would have been covered by such insurance.
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10.1.6.2 The Contractor must maintain a retroactive date prior to or equal
to the effective date of this Agreement. The Contractor shall
purchase a Supplemental Extended Reporting Period ("SERF")
with a minimum reporting period of not less than three (3) years in
the event a Subcontractor's policy Is canceled, not renewed,
switched to occurrence form, or any other event which requires a
purchase of SERF to cover a gap in insurance for claims which
may arise under or related to this Agreement. The Contractor's
purchase of the SERF shall not relieve the Contractor of the
obligation to provide replacement coverage. In addition, the
Contractor shall require that the Subcontractor's carrier
immediately inform the Contractor, the County of Volusia's Risk
Management Division, and the Purchasing and Contracts Division
of any contractual obligations that may alter its professional
liability coverage under this Agreement.
10.1.7 Additional Requirements. Coverage for professional liability shall be
provided on an occurrence form or a claims made form with a retroactive
date equal to at least the first date of this Agreement and with a three (3)
year reporting option beyond the expiration date of the Agreement including
any amendments to the Agreement term. County shall be included as an
additional named insured under the pollution liability insurance policy.
10.1.8 Primarv and Excess Coverage. Any insurance required may be provided
by primary and excess insurance policies.
10.2 General Insurance Requirements:
10.2.1 Licensing and Rating. All insurance policies shall be issued by insurers
licensed and/or duly authorized under Florida Law to do business in the
State of Florida and all insuring companies are required to have a minimum
rating of A- in the "Best Key Rating Guide" published by A.M. Best &
Company, Inc.
10.2.2 Contractor Responsible for Maintenance. Approval by County of any
policy of insurance shall not relieve Contractor from its responsibility to
maintain the insurance coverage required herein for the performance of
Work or Services by the Contractor or its Subcontractors for the entire term
of this Agreement and for such longer periods of time as may be required
under other clauses of this Agreement.
10.2.3 Waiver of Subrogation. The Contractor hereby waives all rights against
the County and its Subcontractors to the extent of the risk coverage by any
insurance policy required hereunder for damages by reason of any claim,
demand, suit or settlement (including workers' compensation) for any claim
for injuries or illness of anyone, or perils arising out of this Agreement. The
Contractor shall require similar waivers from all its Subcontractors. This
provision applies to all policies of insurance required under this Agreement
(including Workers' Compensation, and general liability).
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10.2.4 County Not Liable for Paving Deductibles. For all insurance required by
Contractor, the County shall not be responsible or liable for paying
deductibles for any claim arising out of or related to the Contractor's
business or any Subcontractor performing Work or Services on behalf of the
Contractor or for the Contractor's benefit under this Agreement.
10.2.5 Cancellation Notices. During the term of this Agreement, Contractor shall
be responsible for promptly advising and providing the County's Risk
Management and the Purchasing and Contracts divisions with copies of
notices of cancellation or any other changes in the terms and conditions of
the original insurance policies approved by the County under this
Agreement within two (2) business days of receipt of such notice or change.
10.2.6 Additional insured. For any on-site work performed by or on behalf of
Contractor on County property, the County shall be named as an additional
insured or additional named insured subject to review and determination by
County's Risk Manager on all policies required under this Agreement except
professional liability and workers compensation.
10.3 Proof of Insurance
10.3.1 Certificates Required Prior to Commencing Work. The Contractor shall
fumish proof of insurance acceptable to the County prior to or at the time of
execution of this Agreement and the Contractor shall not commence Work
or provide any Sen/ice until the Contractor has obtained all the insurance
required under this Agreement and such insurance has been filed with and
approved by the County. All certificates of insurance shall clearly indicate
that the Contractor has obtained insurance of the type, amount, and
classification required by this section and outline all hazards covered as
itemized herein, the amounts of insurance applicable to each hazard, and
the expiration dates. Upon request from the County, the Contractor shall
fumish copies of the required insurance policies and any changes or
amendments thereto, immediately, to the County and County's Risk
Management and Purchasing and Contracts Divisions, prior to the
commencement of any contractual obligations.
10.3.2 Termination and Non-Pavment. This Agreement may be terminated by
the County, without penalty or expense to County, if at any time during the
term of this Agreement proof of any insurance required hereunder is not
provided to the County. Further, the Contractor agrees that the County shall
make no payments pursuant to the terms of this Agreement until all required
proof or evidence of insurance has been provided to the County.
10.3.3 Lapse. The Contractor shall file replacement certificates with the County at
the time of expiration or termination of the required insurance occurring
during the term of this Agreement. In the event such insurance lapses, the
County expressly reserves the right to renew the insurance policies at the
Contractor's expense or terminate this Agreement, but County has no
obligation to renew any policies.
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10.4 Survival. The provisions of this section shall survive the cancellation or termination
of this Agreement.
11 TERMINATION
11.1 General. The Agreement may be terminated by (a) either party upon the material
breach by the other party if such breach is not cured within sixty (60) days written
notice from the non-breaching party, or (b) by County upon at least thirty (30)
calendar days, prior written notice to Contractor whenever the County shall
determine that such termination is in the best interest of the County.
11.2 For Convenience bv the County. County may terminate the Agreement for
convenience or non-appropriation upon at least thirty (30) calendar days' prior written
notice to Contractor.
11.3 Contractor's Cancellation. The Contractor may cancel the Agreement with one-
hundred eighty (180) days written notice to the Director of Purchasing and Contracts.
Failure to provide proper notice to the County may result in the Respondent being
barred from future business with the County.
11.4 Effect of Notice of Termination. After Contractor's receipt of a notice of
termination pursuant to Paragraph A above (or to the extent Contractor has not
cured a material breach within sixty (60) days notice from County), and except as
othenA/ise directed by the County, the Contractor shall:
11.4.1 Stop work under the Agreement or applicable statement of work on the date
specified in the notice of termination;
11.4.2 Place no further orders or subcontracts for materials, services or facilities;
11.4.3 Terminate all orders and subcontracts to the extent that they relate to the
performance of work or services terminated by the notice of termination; and
11.4.4 With the approval of the County and to the extent required by the County,
settle all outstanding liabilities and all claims arising out of such termination of
orders and subcontracts. County's approval of such settlements shall be final
for all the purposes of Section 11, Termination.
11.5 Termination Claims. After receipt of a notice of termination, the Contractor shall
submit to the County its termination claim for amounts owed by County (which shall
include, without limitation, all amounts due for work or services performed through
the date of termination), in the form and with a certification as prescribed by the
County. Such claim shall be submitted promptly but In no event later than thirty (30)
days from the effective date of termination, unless one or more extensions in writing
are granted by the County, upon request of the Contractor made in writing within
such thirty (30) days period or authorized extension thereof. Upon failure of the
Contractor to submit its termination claim within the time allowed, the County may
determine on the basis of information available to it, the amount, if any, due to the
Contractor by reason of the termination and shall thereupon pay to the Contractor
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the amount so determined. In the event County terminates for convenience or non-
appropriation, Contractor shall not be obligated to refund to County any prepaid fees.
11.6 Non-Appropriatlon. The Agreement may be terminated by the County or
Contractor if the County does not appropriate the funding in any fiscal year
necessary to pay the compensation set forth In the Article entitled Compensation in
the Agreement.
11.7 Payment in Event of Non-Appropriation. In the event that the Agreement is
terminated by the County or Contractor for non-appropriation, Contractor shall be
paid in accordance with terms of the Article entitled Compensation in the Agreement.
Contractor shall be paid (i) to the date of termination on a prorated basis for any task
and deliverable designated for payment on the payment milestone schedule that was
started but not completed and/or (ii) for any work or deliverable that has been
completed but not yet been paid. County's obligation to pay Contractor under this
Section 11, Termination, and the Agreement is limited to the budgeted amount for
the fiscal year approved by the Volusia County Council for the then current fiscal
year of the Agreement. Contractor shall have no right to compel the Volusia County
Council to appropriate funds for any fiscal year to pay the compensation.
11.8 Duty to Mitigate. Upon being notified of County's election to terminate for default of
Contractor, non-appropriation or convenience, Contractor and its Subcontractors
shall refrain from performing further work or incurring additional expenses under the
terms of the Agreement which is not specifically authorized in the notice of
termination.
11.9 Obligations Upon Termination. If termination of the Agreement occurs for any
reason:
11.9.1 Except as otherwise provided in the Agreement, Contractor shall return to the
County, or destroy, all County confidential information in Contractor's
possession and shall certify the destruction or return of said information in a
written document signed by the duly authorized representative of the
Contractor that all such information has been destroyed or returned, provided
that Contractor shall be permitted to retain an archival copy of any such
confidential information (provided it continues to maintain the confidentiality of
such as prescribed herein) to the extent necessary to have a record of the
service performed hereunder.
11.9.2 For all undisputed outstanding invoices submitted to the County for work
completed or deliverables delivered prior to the effective date of the
termination, the County shall cause payments to be made to Contractor
within forty-five (45) days of receipt of invoice. Contractor shall invoice the
County for any sums Contractor claims to be owed by County under the
Agreement for work performed from the last invoice to the effective date of
termination. County shall review such Invoice for payment within fifteen (15)
days of receipt and County shall pay any undisputed amount within forty-five
(45) days, subject to the Article entitled Compensation in the Agreement.
Any disputed amounts on any invoices shall be subject to the dispute
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resolution process set forth in the Article entitled Dispute Resolution in the
Agreement.
12 DISPUTE RESOLUTION
12.1 Good Faith Efforts to Resolve. The parties to this Agreement shall exercise their
best efforts to negotiate and settle promptly any dispute that may arise with respect
to this Agreement in accordance with the provisions set forth in this Article 12
Dispute Resolution. The Contractor and County Project Manager shall use
reasonable efforts to arrange personal meetings and/or telephone conferences as
needed, at mutually convenient times and places, to address and work toward
resolution of issues that arise in performance of this Agreement and any applicable
statement of Work or Services. Issues shall be escalated to successive
management levels as needed.
12.2 Informal Dispute Resolution. If a dispute develops between the parties conceming
any provision of this Agreement, or the interpretation thereof, or any conduct by the
other party under these agreements, and the parties are unable to resolve such
dispute within five (5) business days or longer, that party, known as the Invoking
Party, through its applicable Project Manager, shall promptly bring the disputed
matter to the attention of the non-Invoking Party's Project Manager or designated
representative, as the case may be, of the other party in writing ("Dispute Notice") in
order to resolve such dispute.
12.3 Discovery and Negotiation / Recommended Procedures. Upon issuance of a
Dispute Notice, the Project Managers or designated representative shall furnish to
each other all non-privileged information with respect to the dispute believed by them
to be appropriate and germane. The Project Managers shall negotiate in an effort to
resolve the dispute without the necessity of any formal proceeding. If such dispute is
not resolved by the Project Managers or designated representative within five (5)
County Work Days of issuance of the Dispute Notice, or such other time as may be
mutually allowed by the Project Managers as being necessary given the scope and
complexity of the dispute, the Project Managers may, depending upon the nature,
scope, and severity of the dispute, escalate the dispute as Indicated below:
County Work
Days
Contracfor's Representative County Representative
10 Contractor's Project Manager County's Project Manager
10 Contractor's Sr. Vice Director of Purchasing and
President of Sales Contracts
20 Contractor's COO or President Deputy County Manager
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12.4 Formal Dispute Resolution. At any point after issuance of a Dispute Notice under
this section, either party may request and initiate formal non-binding mediation
before a single mediator, which mediation shall be completed within thirty (30) days
of initiation or such longer time as may be agreed upon by both parties as being
necessary for the mutual selection of a mediator and scheduling of such mediation.
Any such mediation shall be convened and conducted in accordance with the rules
of practice and procedure adopted by the Supreme Court of Florida for court-
ordered mediation, Rule 1.700 et seq. of the Florida Rules of Civil Procedure, and
Chapter 44, Florida Statutes. If the dispute remains unresolved after conducting
such mediation, then either party may proceed to finalize any pending termination
remedies and commence litigation in a court of competent jurisdiction. Each party
shall bear its own costs and attorney's fees for mediation or arbitration of an issue
arising under this Agreement.
12.5 Right to Terminate Reserved. Regardless of the dispute resolution procedures
provided for in this Article 12 Dispute Resolution, nothing herein shall affect, delay,
or otherwise preclude a party from terminating this Agreement in accordance with
the provisions of Article 11 Termination, it being understood that these dispute
resolution procedures are intended as a means of resolving disputes both during
the term of this Agreement and after termination or expiration thereof.
13 MISCELLANEOUS PROVISIONS
13.1 Independent Contractor. Contractor is an independent contractor under this
Agreement. Services provided by Contractor pursuant to this Agreement shall be
subject to the supervision of Contractor. In providing such Services, neither
Contractor nor its agents shall act as officers, employees, or agents of the County.
No partnership, joint venture, or other joint relationship is created hereby. County
does not extend to Contractor or Contractor's agents any authority of any kind to
bind County in any respect whatsoever.
13.2 Third Partv Beneficiaries. Neither Contractor nor County intends to directly or
substantially benefit a third party by this Agreement. The Parties expressly
acknowledge that it is not their intent to create any rights or obligations in any third
person or entity under this Agreement. Therefore, the Parties agree that there are no
third party beneficiaries to this Agreement and that no third party shall be entitled to
assert a claim against either of them based upon this Agreement, except as
otherwise provided in this Agreement.
13.3 Notice. All notice required under this Agreement shall be in writing and shall be sent
by certified United States Mail or national parcel service, postage prepaid, return
receipt requested, or by hand-delivery with a written receipt of delivery, addressed to
the party for whom it is intended at the place last specified. The place for giving
notice shall remain the same as set forth herein until changed in writing in the
manner provided in this section. For the present, the parties designate the following:
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in the case of County:with a copies of legal notices to:
County of Volusia
Attn: Director of Purchasing &
Contracts
Address: 123 W. Indiana Ave., Rm. 302
DeLand, Florida 32720
Phone: 386-736-5935
County of Volusia
Attn: County Attorney
Address: 123 W. Indiana Ave., Rm. 301
DeLand, Florida 32720
Phone: 386-736-5950
In the case of Contractor:with a copy of legal notices to:
Caption Colorado, LLC
Attn: Sr. Vice President of Sales
Address: 5690 DTC Blvd, Suite 500W
Greenwood Village, CO 80111
Phone: 800-775-7838
13.4 Assignment.
Contractor may not assign or otherwise convey Contractor's rights and/or obligations
under this Agreement without first providing County with a processing fee of FIVE
HUNDRED DOLLARS ($500) and obtaining County's prior written consent, which
consent County may withhold, limit and/or condition in County's sole discretion.
Failure by the Contractor to obtain the County's consent in accordance with this
section prior to assignment or other conveyance shall: 1) constitute a material breach
of the Agreement: and 2) entitle the County to retain any and all legal rights, claims
and defense to enforce this section, including, but not limited to, injunctive,
declaratory, damages and attorney's fees and costs. Payment of any sum by the
County in accordance with the Agreement to the Contractor or any person or entity
prior to the Contractor obtaining the County's consent to the assignment shall not
constitute a waiver of the rights of the County under this section.
Nothing herein shall preclude the right of the County to waive its rights under this
section, but no such waiver shall be granted by the County without amendment to
the Agreement. The Contractor is hereby placed on notice that the County may
demand a discount of up to ten percent (10%) from those rates or compensation for
the goods or Services established In the Agreement as a condition to execution of
the amendment.
13.5 Conflicts. Neither Contractor nor its employees shall have or hold any continuing or
frequently recurring employment or contractual relationship that is substantially
antagonistic or incompatible with Contractor's loyal and conscientious exercise of
judgment related to its performance under this Agreement. Contractor further agrees
that none of its officers or employees shall, during the term of this Agreement, serve
as an expert witness against County in any legal or administrative proceeding in
which he, she, or Contractor is not a party, unless compelled by court process.
Further, Contractor agrees that such persons shall not give swom testimony or issue
a report or writing, as an expression of his or her expert opinion, which is adverse or
prejudicial to the interests of County in connection with any such pending or
threatened legal or administrative proceeding unless compelled by court process.
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The limitations of this section shall not preclude Contractor or any persons In any
way from representing themselves. Including giving expert testimony in support
thereof, in any action or in any administrative or legal proceeding. In the event
Contractor Is permitted pursuant to this Agreement to utilize Subcontractors to
perform any Services required by this Agreement, Contractor agrees to require such
Subcontractors, by written Agreement, to comply with the provisions of this section to
the same extent as Contractor.
13.6 Audit Right and Retention of Records. County shall have the right to audit the
books, records, and accounts of Contractor and Its Subcontractors that are related to
this Agreement. Contractor and Its Subcontractors shall keep such books, records,
and accounts as may be necessary In order to record complete and correct entries
related to the Agreement. Contractor shall preserve and make available, at
reasonable times for examination and audit by County, all financial records,
supporting documents, statistical records, and any other documents pertinent to this
Agreement pursuant to the applicable public record retention schedules established
by the Florida Department of State, or. If such retention schedules are not applicable,
for a minimum period of three (3) years after termination of this Agreement. If any
audit has been Initiated and audit findings have not been resolved at the end of the
retention period or three (3) years, whichever Is longer, the lx)oks, records, and
accounts shall be retained until resolution of the audit findings. If the Florida Public
Records Act Is determined by County to t>e applicable to Contractor's and Its
Subcontractor's records. Contractor shall comply with all requirements thereof;
however, no confidentiality or non-disclosure requirement, of either federal or state
law shall be violated by Contractor or its Subcontractors. Contractor shall, by written
Agreement, require its Subcontractors to agree to the requirements and obligations
of this Section 13.6.
13.7 Location of Countv Data. Contractor shall not out-source any development and/or
support for this Agreement or transfer any County Data outside the territorial limits of
the United States of America, without the written approval of the Contract
Administrator.
13.8 Kev Personnel. The initial key personnel and any changes or substitutions In the
key personnel must be made known to County or specified in the Scope of
Services/Work or future Statement of Work, and County must grant approval before
any such Initial personnel or change or substitution can become effective. County
agrees not to unreasonably withhold any such approval. Contractor shall, except as
agreed by the parties, provide the key personnel as long as said staff are In
Contractor's employment. In the event of injury, illness, or death of Contractor's key
personnel, or If such key personnel leave Contractor's employ, Contractor shall
replace such Individual within thirty (30) County work Days after such Injury or
illness, or from the date of departure from employment or of death. Contractor shall
obtain prior written approval of the Contract Administrator to replace key personnel,
such approval not to be unreasonably withheld. Contractor shall provide the
Contract Administrator with such information as necessary for County to evaluate the
new key personnel. In the event the Contract Administrator has reasonable
objections to any replacement of key personnel, County shall notify Contractor in
writing regarding such objections. Promptly after its receipt of such objections.
Contractor shall Investigate the matters stated and discuss Its findings with County. If
County thereafter requests in good faith replacement of the key personnel,
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Contractor shall use its reasonable best efforts to replace the employee with a
person of suitable ability and qualification. Contractor shail use its best efforts to
avoid replacing or reassigning any key personnel under this Agreement. If,
notwithstanding this commitment, it becomes necessary for Contractor to replace
any key personnel under this Agreement, Contractor shall give County as much
reasonable detail as possible concerning the proposed replacement. At a minimum,
Contractor agrees, where reasonably possible, to provide County with at least thirty
(30) days notice of changes to Contractor's Project team participants. Contractor
agrees to provide County with resumes of new Project team participants and County
may choose to interview new Project team members.
13.8.1 Upon request to the Contractor in writing. County mav request that one
or more stenographers or transcribers be excluded from providing further
Services or Work in connection with this Agreement where such
stenographers or transcribers have performed poorly. Contractor shall
assist the County in Identifying the stenographer or transcriber responsible
for poor transcription or captioning and immediately remove such
stenographer or transcriber from providing further work in connection with
this Agreement as soon as practicable. In removing a stenographer or
transcriber pursuant to this paragraph, Contractor agrees to ensure that
aitemate stenographers or transcribers are available to substitute for such
removed stenographers and transcribers.
13.9 References to Countv or Contractor. Contractor agrees that during the term of
this Agreement, except as provided herein, Contractor may not reference County in
Contractor's website, and/or press releases, and, may not place County's name and
logo on Contractor's Web site or in collateral marketing materials relating to
Contractor's products and Services without prior review and written approvai by
County. Further, Contractor agrees that it may not use County's name, logo or any
trademarks (including in any press releases, customer "case studies," and the like)
without County's prior written consent. Termination or expiration of this Agreement
shali not affect Contractor's obligation in this regard and such obligation shall survive
the termination or cancellation of this Agreement.
13.10 Force Maieure. Neither party shall be liable for any failure or delay in the
performance of its obligations under the Agreement to the extent such failure or
delay necessarily results from the occurrence of a Force Majeure Event beyond the
control or reasonable anticipation of either party, including, but not limited to,
compliance with any unanticipated government law or regulation not othenA/ise in
effect at the time of execution of this Agreement, acts of God, unforeseeable
govemmental acts or omissions, fires, strikes, natural disasters, wars, riots,
transportation problems, and/or any other unforeseeable cause whatsoever beyond
the reasonable control of the parties (and such cause being referred to as a "Force
Majeure Event"). Accordingly, the parties further agree that:
13.10.1 Upon the occurrence of Force Majeure Event, the non-performing party shall
t)e excused from any further performance of those obligations under this
Agreement that are affected by the Force Majeure Event for as long as (a)
the Force Majeure Event continues; and (b) the non-performing party
continues to use commercially reasonable efforts to recommence
performance whenever and to whatever extent possible without delay.
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13.10.2 Upon the occurrence of a Force Majeure Event, the non-performing party
shall notify the other party of the occurrence of such event and describe In
reasonable detail the effect(s) of such event upon the party's performance of
its obligations and duties pursuant to this Agreement. Such notice shall be
delivered or otherwise communicated to the other party within two (2)
business days following the failure or delay caused by the Force Majeure
Event, or as soon as possible after such failure or delay If the Force Majeure
Event precludes the non-performing party from providing notice within such
time period.
13.10.3 In the event of a Force Majeure Event, the time for performance by the
parties under the applicable Statement of Work shall be extended for a
period of time equal to the time lost by reason of such cause through
execution of a change order pursuant to the terms of the Agreement.
13.11 Bankruptcy Rights of Countv. All rights and licenses granted under or pursuant to
this Agreement or any attachments hereto by Contractor to County are, and shall
otherwise be deemed to be, for purposes of Section 365 (n) of the United States
Bankruptcy Code (the "Code"), or replacement provision therefore, licenses to rights
to "intellectual property" as defined in the Code. The parties agree that County, as
licensee of such rights under this Agreement, shall retain and may fully exercise all
of its rights and elections under the Code. The parties further agree that, in the event
of the commencement of a bankruptcy proceeding by or against Contractor under
the Code, County shall be entitled to retain all of its rights under this Agreement.
13.12 Waiver of Breach and Materiality. Failure to enforce any provision of this
Agreement shall not be deemed a waiver of such provision or modification of this
Agreement. A waiver of any breach of a provision of this Agreement shall not be
deemed a waiver of any subsequent breach and shall not be construed to be a
modification of the terms of this Agreement.
13.13 Severance. In the event this Agreement or a portion of this Agreement is found by a
court of competent jurisdiction to be invalid, the remaining provisions shall continue
to be effective to the extent practiceable unless County or Contractor elects to
terminate this Agreement.
13.14 Entire Agreement. This Agreement contains the entire agreement between
Contractor and County. Any modifications to this Agreement shall not be binding
unless in writing and signed by both parties.
13.15 Applicable Law. Venue and Waiver of Jury Trial. This Agreement shall be
interpreted and construed in accordance with and governed by the laws of the state
of Florida. Jurisdiction over and venue for any controversies or legal issues arising
out of this Agreement shall be exclusively in the state courts of the Judicial Circuit of
County of Volusia, Florida, unless one or more causes of action are solely
cognizable in federal court, in which case, venue for and jurisdiction over such
dispute(s) shall be in the Middle District of Florida, Orlando Division. By entering into
this Agreement, Contractor and County hereby expressly waive any rights either
party may have to a trial by jury of any civil litigation related to this Agreement, and,
unless otherwise expressly provided herein, each agrees to bear its own costs and
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attorney's fees relating to any dispute arising under this Agreement.
Amendments. No modification, change order, amendment, or alteration in the
terms or conditions contained herein shall be effective unless contained In a written
document prepared with the same or similar formality as this Agreement and
executed by the award authority and Contractor.
Prior Agreements. This document represents the final and complete understanding
of the Parties and Incorporates or supersedes all prior negotiations, correspondence,
conversations, agreements, and understandings applicable to the matters contained,
herein. The Parties agree that there Is no commitment, agreement, or understanding
concerning the subject matter of this Agreement that Is not contained in this written
document. Accordingly, the Parties agree that no deviation from the terms hereof
shall be predicated upon any prior representation or agreement, whether oral or
written.
14 LOCAL GOVERNMENT REQUIREMENTS
''4.1 Public Records Law. Contractor acknowledges that the records generated,
maintained, or kept in the course of providing the Services and Work to be performed
pursuant to this Contract are subject to the public records requirements of Chapter
119, Florida Statutes and Article I, § 24 of the Florida Constitution. Given the
foregoing, the Contractor hereby agrees to:
14.1.1 Keep and maintain public records that ordinarily and necessarily would be
required by the County to perform the Services provided pursuant to this
Agreement:
14.1.2 Provide the public with access to public records on the same terms and
conditions that the County would provide the records and at a cost that does
not exceed the cost provided in Chapter 119, Florida Statutes, or as
otherwise may be provided by law;
14.1.3 Ensure that public records that are statutorily exempt or confidential and
exempt from public records disclosure requirements are not disclosed
except as authorized by law;
14.1.4 Meet all requirements for retaining public records and transfer, at no cost, to
the County all public records In the possession of the Contractor upon
termination of the Agreement and destroy any duplicate public records that
are statutorily exempt or confidential and exempt from statutory public
records disclosure requirements. For the purposes of complying with this
paragraph, all records stored electronically must be provided to the County
in a format that is compatible with the information technology systems of the
public agency;
14.1.5 In responding to any public records request. Contractor shall (i) notify the
County of the request and the Contractor's intentions with regard to such
request and (ii) provide the County with copies of all records requested and
produced, as well as copies of all correspondence between the Contractor
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and the requestor. Contractor further agrees not to release any records that
are statutorily exempt from disclosure or statutorily confidential and exempt
without first receiving prior written authorization from the County, it being
understood that the legislature has designated such records exempt or
otherwise confidential based upon important public policy or safety reasons.
Contractor shall, defend, indemnify, and hold the County harmless from and against
any and all claims, damage awards, and causes of action arising from the
Contractor's failure to perform or otherwise adhere to the requirements of this
section, Including, but not limited to, any third party claims or awards for attorneys
fees and costs arising therefrom, claims for negligent disclosure of confidential or
exempt records, and claims for failure to produce or otherwise timely produce
records subject to disclosure. County shall further be authorized to seek declaratory,
injunctive, or other appropriate relief from a court of competent jurisdiction on an
expedited basis to enforce the requirements of this section, it being understood that
the maintenance and production of public records is of paramount public importance
under Florida law. Regardless of the foregoing, the enumeration of the remedies
recited herein shall not be interpreted to limit or otherwise restrict the County from
seeking any other appropriate cause of action against or remedy from the
Contractor, whether in law or in equity, in the County's enforcement of the
requirements of this section.
14.2 Payments Subject to Appropriation. Notwithstanding any other term or provision
of this Agreement, the continuation of this Agreement beyond a single fiscal year of
County is subject to the appropriation and availability of funds in accordance with
Chapter 129, Florida Statutes. If at any time funds are not appropriated for the
Services and Deliverables provided or to be provided under this Agreement,
cancellation shall be accepted by Contractor with thirty (30) days prior written notice,
but failure to give such notice shall be of no effect. Termination by the County due to
nonappropriation shall be without a termination charge by Contractor. County shall
not be obligated to pay Contractor under this Agreement beyond the date of
termination except as set forth in Article 11 - Termination. Gount/s obligation to pay
Contractor is limited to the budgeted amount for a fiscal year approved by the
Volusia County Council for the then current fiscal year of this Agreement and is
otherwise limited to legally available non-ad valorem tax revenues. Contractor shall
have no right to compel the Volusia County Council to appropriate funds for any
fiscal year to pay the compensation set forth in Section 7 — Agreement Price and
Compensation.
14.3 No Code Violation or Past Due Debt. Contractor warrants and represents that
neither the business, nor any officer or significant stakeholder of the business is in
violation of the Volusia County Code of Ordinances, and does not owe the County
any past due debt. Any breach of the foregoing warranty and representation shall be
a material breach of this Agreement and the County shall have the right to terminate
this Agreement as set forth herein.
14.4 Changes Due to Public Welfare. The County and Contractor agree to enter into
good faith negotiations regarding modifications to this Agreement which may be
required in order to implement changes in the interest of the public welfare or due to
change in law or Ordinance.
P:\BECKI\2014 Solicitations\14-P-52BB, Closed Captionmg\Contract\Contract.docx Page 26 of 29
'•4.5 Compliance with Applicable Laws. Contractor shall perform Its obligations
hereunder in accordance with all applicable federal, state and local laws, ordinances,
Riles, regulations, and all orders and decrees of bodies or tribunals having
jurisdiction or authority which in any manner affect the performance of this
Agreement. Contractor shall protect and indemnify County and all its officers,
agents, servants and employees against any claim or liability arising from or based
on the violation of any such law, ordinance, rule, regulation, order or decree caused
or committed by Contractor, its representatives, subcontractors, professional
associates, agents, servants or employees. Additionally, Contractor shall obtain and
maintain at its own expense all applicable licenses and permits to conduct business
pursuant to this Agreement from the federal govemment, State of Florida, County of
Volusia or municipalities when legally required and maintain same in full force and
effect during the term of this Agreement.
14.6 Nondiscrimination and Americans with Disabilities Act. Contractor shall not
unlawfully discriminate against any person in the operations and activities in the use
or expenditure of the funds or any portion of the funds provided by this Contract.
Contractor agrees it shall affirmatively comply with all applicable provisions of the
Americans with Disabilities Act (ADA) In the course of providing all Services funded
by County, including Titles I, II and III of the ADA (regarding nondiscrimination on the
basis of disability), and all applicable regulations, guidelines, and standards. If the
County, the Department of Justice or other govemmental entity tasked with the
enforcement of the ADA ("Enforcement Agency") notes any deficiency in the
facilities, practices, services, or operations of the Contractor furnished or provided in
connection with this Contract, Contractor shall, at no additional charge or cost to the
County, Immediately cure any such deficiencies without delay to the satisfaction of
such Enforcement Agency. Contractor further agrees that It shall, to the extent
permitted by law, indemnify, defend, and hold harmless the County against any and
all claims, sanctions, or penalties assessed against the County, which claims,
sanctions, or penalties arise or otherwise result from Contractor's failure to comply
with the ADA. In performing under this Contract, Contractor agrees that it shall not
commit an unfair employment practice in violation of any state or federal law and that
it shall not discriminate against any member of the public, employee or applicant for
employment for work under this Contract because of race, color, religion, gender,
sexual orientation, age, national origin, political affiliation, or disability and will take
affirmative steps to ensure that applicants are employed and employees are treated
during employment without regard to race, color, religion, gender, sexual orientation,
age, national origin, political affiliation, or disability.
14.7 Drug Free Workplace. The County of Volusia is a drug-free and smoke-free
workplace. Contractor agrees that it shall provide a drug-free environment to its
personnel during the Term of this Agreement and will comply, subject to the prior
receipt thereof, with the County's policies on drug-free and smoke-free work place
during the term of this Agreement.
14.8 Emplovment of Illegal Aliens. Contractor certifies that it does not knowingly or
willingly and will not during the performance of the Agreement employ illegal alien
workers or otherwise violate the provisions of the Federal Immigration Reform and
Control Act of 1986, as amended.
P:\BECKI\2014 Solicilations\I4-P-52BB, Closed Captioning\ConIract\Contract.docx Page 27 of 29
14.9 Prohibition Against Contingent Fees.
14.9.1 The Contractor warrants that he or she or it has not employed or retained
any company or person, other than a bona fide employee working solely for
the Contractor to solicit or secure this Agreement and that he or she or It
has not paid or agreed to pay any person, company, corporation, individual,
or firm, other than a bona fide employee working solely for the Contractor
any fee, commission, compensation, percentage, gift, or other
consideration contingent upon or resulting from the award or making of this
Agreement. For the breach or violation of this provision, the County shall
have the right to terminate this Agreement without liability and, at its sole
discretion, to deduct from the Agreement price or compensation, or
otherwise recover, the full amount of such fee, commission, percentage,
gift, or consideration.
14.9.2 Contractor understands and acknowledges that any individual, corporation,
partnership, firm, or company, other than a bona fide employee working
solely for the Contractor, who offers, agrees, or contracts to solicit or secure
County contracts for professional Services for any other individual,
company, corporation, partnership, or firm and to be paid, or is paid, any
fee, commission, percentage, gift, or other consideration contingent upon,
or resulting from, the award or the making of an agreement for professional
Services shall, upon conviction in a competent court of this State, be found
guilty of a first degree misdemeanor, punishable as provided in Sections
775.082 or 775.083 of the Florida Statutes.
14.9.3 Contractor understands and acknowledges that any individual, corporation,
partnership, firm, or company, other than a bona fide employee working
solely for the Contractor, who offers, agrees, or contracts to solicit or secure
County contracts for professional Services for any other individual,
company, corporation, partnership, or firm and to be paid, or is paid, any
fee, commission, percentage, gift, or other consideration contingent upon,
or resulting from, the award or the making of an agreement for professional
Services shall, upon conviction in a competent court of this State, be found
guilty of a first degree misdemeanor, punishable as provided in Sections
775.082 or 775.083 of the Florida Statutes.
14.9.4 Any County official, agent or employee who offers to solicit or secure, or
solicits or secures, an agreement for professional Services and to be paid,
or is paid, any fee, commission, percentage, gift, or other consideration
contingent upon the award or making of such an agreement for professional
Services between the County and any individual person, company, firm,
partnership, or corporation shall, upon conviction by a court of competent
authority, be found guilty of a first degree misdemeanor, punishable as
provided in Sections 775.082 or 775.083 of the Florida Statues.
14.10 Equal OPDortunitv: Disadvantaqed Business Enterprises.
The Contractor will not discriminate against any employee or applicant for
employment because of race, creed, color, sex or national origin. The Contractor will
P:\BECKJ\2014 Solicitations\14-P-52BB, Closed CaptioQmg\Contract\Contractdocx Page 28 of 29
take affirmative action to ensure that applicants are employed, and that employees
are treated during employment, without regard to their race, creed, color, sex or
national origin. Such action shall include, but not be limited to the following:
employment, upgrading, demotion or transfer; recruitment or recruitment advertising;
layoff or termination; rates of pay or other forms of compensation; and selection for
training, including apprenticeship.
15 All provisions of this Agreement which impose or contemplate continuing obligations
on a party shall survive the expiration or termination of this Agreement.
16 SIGNATURES
IN-'WrtN^St WHEREOF, the parties have made and executed this Agreement for Closed
CaptwAing Services on the date last written below.
n ^ V Pi
COUNTY OF VI
BY
Attest:
'■Date"
Attest:
Signatur
cTTitle
i-'h V?
Name ana Title
Date: ^P jf
CO Date:
P. Davis
County
►ate:
ORADO, LLC
Signature
Name and Title
Date:
P:\BECKI\2014 Soltci(atioiis\14-P-52BB, Closed Capdoning\Contract\Contractdocx Page 29 of 29
EXHIBIT B
5.31.1S
AGREEMENT FOR ASSIGNMENT OF CONTRACTS
FOR CLOSED CAPTION SERVICES AND CONSENT TO ASSIGNMENT
This Agreement for Assignment of Contracts for Closed Caption Services for Volusia
County to Assignment (hereinafter referred to as "Agreement") is entered into by and
among, Caption Colorado, LLC., a Colorado Corporation with its principal place of
business located at 8300 E Maplewood Ave, Ste 300, Plaza 25 BIdg, Greenwood Village,
CO 80111 (hereinafter referred to as "Assignor"), VITAC Corporation, a Colorado
Corporation with its principal place of business located at 8300 E Maplewood Ave, Suite
300, Greenwood Village, CO 80111 (hereinafter referred to as "Assignee"), and the
County of Volusia, a body corporate and politic and a political subdivision of the State of
Florida, with administrative offices at 123 West Indiana Avenue, Deland, Florida 32720-
4613 (hereinafter referred to as "Consenting Party").
RECITALS
WHEREAS, Assignor and Consenting Party entered into a Contract for Closed
Caption Services for the County of Volusia dated September 18,2014, which Contract is
composed of the Executed Contract and Master Agreement 6862 for Closed Caption
Services) (hereinafter collectively referred to as the "Contracf), copies of which are
attached hereto and Incorporated herein as composite Exhibit "A"; and,
WHEREAS, on January 23, 2017, Assignor assigned and Assignee accepted
assignment of the Contract by the Assignor, transferring the duties, responsibilities, and
obligations pursuant to the Contract to the Assignee (hereinafter referred to as
"Assignment"), as evidenced by the document attached hereto and incorporated herein as
Exhibit "B;" and
WHEREAS, Consenting Party agrees to consent to said Assignment subject to the
Page 1 of 5
conditions precedent and stipulations set forth in Paragraph 1 below.
NOW, THEREFORE, in consideration of the foregoing recitals which are
incorporated herein by reference as a material part of this Agreement, and other specific
consideration set forth herein, the receipt and sufficiency of which is acknowledged by the
Assignor, Assignee, and Consenting Party, the parties agree and stipulate as follows:
1. This Agreement: (a) shall in no way affect the liability or obligations of the Assignor
to the Consenting Party under the Contract up to and including the Effective Date of
this Agreement; (b) shall not constitute a consent to any future assignment and
assumption of the obligations of the Assignee under the Contract to a third party; (c)
shall not affect any Unit Prices, rates, or other compensation that may be due
pursuant to the Contract; (d) shall not affect the scope of work, performance, or
project specifications set forth in the Contract; (e) shall not constitute or be
construed as a waiver or the extinguishment of any right or claim of the Consenting
Party against the Assignor under such Contract prior to the date of this Agreement;
and, (f) shall be predicated on the Assignor's and Assignee's compliance with the
conditions and representations contained in this Agreement.
2. Assignor expressly acknowledges it has no claim against the Consenting Party and
expressly waives any and all claims and rights now and in the future against the
Consenting Party related in any way to the Contract.
3. The Assignee assumes all obligations and liabilities of and all claims against the
Assignor under the Contract as the successor entity to the Assignor.
4. The Assignee ratifies all previous actions taken by the Assignor under the Contract
and acknowledges that all such actions shall have the same force and effect as if
the action had been taken by the Assignee.
5. The Assignee, pursuant to this Agreement and the Assignment, agrees to be bound
Page 2 of 5
by and to perform all services in accordance with the terms and conditions
contained in the Contract. As such, the Assignor and Assignee agree that following
the effective date of this Agreement, the term "Contractor," as used in the Contract,
shall refer to the Assignee. The effective date of this Agreement is the date when
this Agreement is fully executed by all parties ("Effective Date").
6. Except as expressly provided in this Agreement, nothing herein shall be construed
as a waiver of any rights of the Consenting Party against the Assignor under the
Contract or the Consenting Party's rights, benefits, limitations, and immunities of
sovereign immunity in accordance with § 768.28, Florida Statutes, prior to the
Effective Date of this Agreement.
7. The Assignor and Assignee agree that the Consenting Party is not obligated to pay
or reimburse either of them for, or otherwise give effect to, any costs, taxes, or other
expenses, or any related increases directly or indirectly arising out of or resulting
from the Assignment or this Agreement, other than those that the Consenting Party,
in the absence of the Assignment, would have been obligated to pay or reimburse
under the terms of the Contract.
8. The Assignor and Assignee agree that the Consenting Party shall commence
paying the Assignee for ail services rendered under the Contracts on or after the
Effective Date of this Agreement.
9. Assignor affirms that all payments made by Consenting Party through the Effective
Date of this Agreement have been properly paid and received by Assignor.
10. Assignor and Assignee agree that all payments and reimbursements previously
made by the Consenting Party to Assignor, and all other previous actions taken by
the Consenting Party under the Contract, shall be considered to have discharged
the Consenting Party's obligations under the Contract to Assignor. Should any
Page 3 of 5
payments or reimbursements be made (improperly or otherwise) by the Consenting
Party before or after the date of this Agreement in the name of or to Assignor, any
such payments shall constitute a complete discharge of the Consenting Party's
obligations under the Contracts, and Assignor shall have an affirmative obligation to
pay Assignee for any monies improperly received by Assignor and Assignee's
recourse shall only be against Assignor.
11. This Agreement, together with any exhibits and amendments thereto constitute
the entire Agreement between Assignor, Assignee, and Consenting Party.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Page 4 of 5
IN WITNESS WHEREOF, the parties have made and executed this Agreement for
Assignment of Contracts for Closed Caption Services and Consent to Assignment the day
and year written below.
Assignor:
Caption Colorado, LLC.
ame:
Date: A
Witness/Attest:
Date:
Consenting Party
County of Volusia Florida
Coun
County Council Date:
Assignee:
VITAC Corporation.
By:
L .A
Name:
Title: ci-^o
Date:( I K ( (Tr-
Witness/Attest:
By: [^~f D
J
Date: LlKih 1
Attest
Dinneen
t^ounty Manager
Date:
Page 5 of 5
EXHIBIT C
5.31, is
AMENDMENT NO. 1 TO
AGREEMENT FOR CLOSED CAPTIONING SERVICES
BETWEEN
COUNTY OF VOLUSIA, FLORIDA
AND
VITAC CORPORATION
THIS AMENDMENT No. 1 ("Amendment No. 1") to the Agreement for Closed Captioning
Services between the County of Volusia and VITAC Corporation ("Amendment") is hereby made
and entered into by the County of Volusia, located at 123 West Indiana Avenue, DeLand, PL
32720, a body corporate and politic and a political subdivision of the State of Florida ("County")
and VITAC Corporation, with its principal place of business located at 8300 E Maplewood Ave,
Suite 300, Greenwood Village, CO 80111, licensed to do business in the State of Florida,
(hereinafter "Contractor").
WHEREAS, the County and the Contractor's predecessor in interest. Caption Colorado,
LLC, entered into the Agreement for a Closed Captioning Services as a result of the solicitation
process for the County's Request for Proposals, RFP 14-P-52BBF, with an effective date of
September 18, 2014 ("Agreement") under which Caption Colorado LLC, agreed to provide
services for an initial three (3) year term commencing starting on October 1, 2014, and two (2)
successive one (l)-year terms upon mutual agreement:
WHEREAS, on June 19, 2017, the County, Contractor and Caption Colorado LLC
entered into an Agreement for Assignment of Agreement for a Closed Captioning Services and
Consent to Assignment, following the acquisition of Caption Colorado LLC by Contractor, and
pursuant to which Contractor assumed all of the rights and obligations of the Agreement and
County consented to same;
WHEREAS, the County and the Contractor desire to amend the Agreement through this
Amendment No. 1 as necessary and mutually agreed to extend the term for a one (1) year period
to October 1, 2018; and,
WHEREAS, the County and the Contractor desire to amend the Agreement by modifying
the definition of "County", modifying Section 9.2 General Indemnification, and modifying ARTICLE
14. LOCAL GOVERNMENT REQUIREMENTS, Section 14.1 to reflect a change in Public
Records Law.
NOW, THEREFORE, in consideration of the foregoing recitals, which are incorporated
herein by reference, and other specific consideration set forth in this Amendment No. 1, the
receipt and sufficiency of which is acknowledged by the Contractor and County, the parties agree
to amend the Agreement as follows:
1. The parties agree that the foregoing recitals are true, correct and material to this
Amendment No. 1
2. The parties agree to extend the term of this Agreement, thus extending the Agreement
through October 1,2018.
3. The parties agree to delete Section 1.6 County and replace such in its entirety with the
P;\KENDRICK\Vcndors\VlTAC\AMENDMENT NO I - VITAC 09.05.l7.docx Page
following definition of "County;"
1.6 County: The County of Volusia, its employees, officers, elected and
appointed officials, agents, attorneys, representatives, volunteers,
divisions, departments, districts, authorities, and associated entities.
4. The parties agree to amend the Agreement by deleting Section 9.2 General
Indemnification and replacing such with new Section 9.2 General Indemnification, which
reads as follows:
9.2 General Indemnification. The Contractor shall indemnify,
defend and hold harmless the County and its and its employees, officers,
elected and appointed officials, agents, attorneys, representatives,
volunteers, divisions, departments, districts, authorities, and associated
entities from and against all claims, damages, losses, and expenses,
including, but not limited to attorney's fees, arising out of or resulting
from the performance of this Agreement to the extent that any such
claim, damage, loss and expense is caused by any negligent act or
omission of the Contractor, anyone directly or indirectly employed by
Contractor, except the Contractor will not be required to indemnify and
hold the County harmless if such claim, damage, loss and expense is
caused by any acts or omission of the Contractor or anyone directly or
indirectly employed by the Contractor.
5. The parties agree to amend the Agreement by deleting Section 14.1 of ARTICLE 14.
LOCAL GOVERNMENT REQUIREMENTS, in its entirety and replacing same with the
following new Section 14.1, which reads as follows:
14. LOCAL GOVERNMENT REQUIREMENTS
14.1 Public Records Law.
The Contractor acknowledges that the County and the Contractor are required to
comply with the Florida Constitution, and Chapter 119, Florida Statutes, in the
handling of the materials created under this Agreement and that said statute
controls over the terms of this Agreement. To the extent practicable, the County
agrees to notify the Contractor of any public records request concerning the
Contractor or matters relating to the services provided under this Agreement.
Pursuant to section 119.0701 (2){a), Florida Statutes (as amended), the County is
required to provide the Contractor with this statement and establish the following
requirements as contractual obligations pursuant to the Agreement:
IF THE CONTRACTOR HAS QUESTIONS REGARDING
THE APPLICATION OF CHAPTER 119, FLORIDA
STATUTES, TO THE CONTRACTOR'S DUTY TO
PROVIDE PUBLIC RECORDS RELATING TO THIS
AGREEMENT , CONTACT THE CUSTODIAN OF
PUBLIC RECORDS AT 386-736-5935,
purchasing@volusla.org, by mail. Purchasing and
Contracts Division, Attn: Public Records Custodian,
123 W. Indiana Ave. RM 302 DeLand, FL 32720.
P;\KENDRICK\Vendors\VITAC\AMENDMENT NO 1 - VITAC 09.05 17 docx Page
By entering into this Agreement , the Contractor acknowledges and agrees that
any records maintained, generated, received, or kept in connection with, or related
to the performance of services provided under, this Agreement are public records
subject to the public records disclosure requirements of section 119.07(1), Florida
Statutes, and Article I, section 24 of the Florida Constitution. Pursuant to section
119.0701, Florida Statutes, any contractor entering into a contract for services with
the County is required to:
(1) Keep and maintain public records required by the County to perform the
services and work provided pursuant to this Agreement.
(2) Upon request from the County's custodian of public records, provide the
County with a copy of the requested records or allow the records to be
Inspected or copied within a reasonable time at a cost that does not
exceed the cost provided in Chapter 119, Florida Statutes, or as otherwise
provided by law.
(3) Ensure that public records that are exempt or confidential and exempt from
public records disclosure requirements are not disclosed except as
authorized by law for the duration of the Agreement term and following
completion of the Agreement if the Contractor does not transfer the records
to the County.
(4) Upon completion of the Agreement, transfer, at no cost, to the County all
public records in the possession of the Contractor or keep and maintain
public records required by the County to perform the service. If the
Contractor transfers all public records to the County upon completion of the
Agreement, the Contractor shall destroy any duplicate public records that
are exempt or confidential and exempt from public records disclosure
requirements. If the Contractor keeps and maintains public records upon
completion of the Agreement, the Contractor shall meet all applicable
requirements for retaining public records. All records stored electronically
must be provided to the County, upon request from the County's custodian
of public records, in a format that is compatible with the information
technology systems of the County.
(5) Requests to inspect or copy public records relating to the County's
Agreement for services must be made directly to the County. If the
Contractor receives any such request, the Contractor shall instruct the
requestor to contact the County. If the County does not possess the
records requested, the County shall immediately notify the Contractor of
such request, and the Contractor must provide the records to the County or
othenwise allow the records to be inspected or copied within a reasonable
time.
The Contractor acknowledges that failure to provide the public records to the
County within a reasonable time may be subject to penalties under section 119.10,
Florida Statutes. The Contractor further agrees not to release any records that are
statutorily confidential or otherwise exempt from disclosure without first receiving
prior written authorization from the County. The Contractor shall indemnify, defend,
and hold the County harmless for and against any and all claims, damage awards,
and causes of action arising from the Contractor's failure to comply with the public
records disclosure requirements of section 119.07(1), Florida Statutes, or by the
Contractor's failure to maintain public records that are exempt or confidential and
exempt from the public records disclosure requirements, including, but not limited
P;\KENDRICK\Vendors\VlTAC\AMENDMENT NO I - VITAC 09.05.17.docx Page
to, any third party claims or awards for attorneys' fees and costs arising therefrom.
The Contractor authorizes County to seek declaratory, injunctive, or other
appropriate relief against the Contractor from a Circuit Court in Volusia County on
an expedited basis to enforce the requirements of this section.
6. This Amendment No. 1, including any exhibits, sets forth the entire modification to the
Agreement with respect to the products and services provided under this Amendment No.
1, unless the Agreement is otherwise amended or modified as set forth in the Agreement,
and supersedes all prior proposals, agreements, and communications, both written and
oral.
7. This Amendment No. 1 is incorporated by reference into the Agreement as if fully set
forth therein. Except as provided herein, all other terms and conditions of the Agreement
shall remain unchanged and in full force and effect and are hereby ratified and reaffirmed
by the parties hereto. In the event of any conflict or inconsistency between the provisions
set forth in this Amendment No. 1 and the Agreement, this Amendment No. 1 shall
govern and control.
IN WITNESS WHEREOF, the parties have made and executed this Amendment No. 1 to the
Agreement for Closed Captioning Services between County of Volusia, Florida and VITAC
Corporation on the respective dates under each signature.
VITAC CORPORATION
LaBy;
Name:
Title:
Date:
Attest:
Name:
Title:
Date:
]a n i.\ fi
tSe mrw q m-V
oi/s/aon
COUNTY OF VOLUSIA
By:
County
./s " t ;
: - M
J: •v.. ,'* V r*,V
d'-t. . .,<*
James T. Dinneen
County Manager '
Date:
Council Date:qai-/7
PAKENDRlCKWcndorsWri AOAMl-NDMnNT NO 1 - VITAC 09 05 l7 docx Page
a iiaiHxa
VITAC
ACCESSIBILITY FOR UFE
Real-time Captloning Service Agreement
Dated: April 16, 2018Submitted to:
Arron Brown
IT Director
City of Palm Springs
3200 E. Tahquitz Canyon Way
Palm Springs, CA 92262
Submitted by:
Dave Battinieri
Vice President of Sales
VITAC Corporation
About Us: VITAC is the nation's leading provider of remote real-time captioning and post-event transcription
sen/ice. VITAC captions over 1000 hours/events daily and transcribe hundreds of thousands of lines of text
annually. VITAC appreciates this opportunity to be of sen/ice. Please visit us at: wvm.vitac.com.
Email;aiTon.brown@palmspring
Our contact infor
sca.gov
Telephone: (760) 322-8394
mation:
Direct: 267.822.7834
E-mail: Dave.Battineiri@vitac.com
SCOPE OF WORK - ENGLISH REAL-TIME CAPTIONING
VITAC Corporation will provide remote real-time English captioning
to City of Palm Springs ("Customer") for live captioning for webinars
and other events as desired.
VITAC will call in/log in 10 minutes prior to the start of an event and
will stay on until the scheduled end time of the call. VITAC strives
to stay on if the event runs longer than the scheduled time, however
it is not guaranteed. For the most efficient captioning, VITAC
requests that Customer provide preparation materials.
Customer agrees that dictionary preparation with words,
terms, jargon and proper names will be provided to VITAC's
captioner for preparation at no additional charge. The
captioner will need clear audio and captions will be impacted
by poor audio or accents.
For guaranteed captioning service, VITAC requires Customer to
request service for events 48 hours or more in advance of event
start time. VITAC strives to use commercially reasonable efforts to
reserve a captioner less than 48 hours, but cannot guarantee.
Unedited transcripts are included at no additional charge and can
be downloaded directly to Customer's desktop at the conclusion of
each session for Customer's convenience.
Events that are cancelled with 48 hours or more advance notice are
not billed. Events cancelled with less than 48 hours advance notice
are billed for 50% the scheduled time. Events cancelled with less
than 24 hours advance notice are billed for 100% the scheduled
time.
VITAC offers 24/7 operational support for scheduling, last minute
emergency and online ordering assistance.
VITAC provides 24/7 technical assistance for captioning.
Fees: Rates for Enalish Real-time
CaDtionlna
Remote captioning: $88/hour
Pricing to be piggybacked off the contract
of Volusia County, PL
Fees are based on scheduled event times.
Additional charge for overruns and
standby.
Fees billed in 15 minute increments with
Va-hour minimum charge per event.
Billing Terms: Net 30 - Date of Invoice
Other, Optional Services:
Post production edited transcript:
$95/event hour
Offline captioning services: $265/event
hour
.xml, .smil. .sami File Production:
add $95/event hour
CUSTOMER SERVICE
Operations:
800-590-4197
cc@captionedtext.com
Technical:
800-590-4203
VITAC Corporation Plaza 25, 8300 E. Maplewood Avenue, Suite 300, Greenwood Village, CO 80111 800.775.7838
ALL RATES ARE CONFIDENTIAL BETWEEN VITAC AND help@captionedtext.com
CUSTOMER
CUSTOMER SERVICE
Operations:
800-590-4197
cc@captlonedtext.com
Technical:
800-590-4203
help@captionedtext.com
Ordering and Billing: VITAC will give a secured ordering site for ordering events through a unique log in and pass
code. VITAC will Invoice monthly. Standard payment terms are Net 30. An electronic copy of our invoice can be e-
malled and Customer may pay for service by check or securely by credit card online.
ADDITIONAL TERMS AND CONDITIONS
Grant of License. VITAC grants the Customer a limited non-exclusive, non-transferable, non-sub-licensable license to use the
Software Program(s) and related End-User Materials in support of its use of the Services provided hereunder. The Customer
agrees to include all copyright, trademarks, and other proprietary notices of VITAC in each copy of the Software Program{s) as
they appear in the versions provided by VITAC. The Customer may not copy, make derivative works of, or othen/vise reproduce
any Software Program(s) except as consistent with its use of Services in accordance with this Agreement. Upon termination of
this Agreement for any reason or upon expiration of the Term, the license granted to the Customer will terminate and the
Customer is required to return or destroy, as requested by VITAC, all copies of the Software Program(s) in its possession and all
other materials pertaining to the Software Program(s), including all copies thereof. The Customer agrees to certify compliance
with such requirement upon VITAC's request.
Use. Unless otherwise provided in this Agreement, the rights and licenses granted hereunder shall be limited to the Customer's
use only and services are between the Customer and VITAC. The license granted hereunder may not be transferred, leased,
assigned, or sublicensed without VITAC prior written consent, except for a transfer of this Agreement in its entirety to a successor
in interest of Customer's entire business that assumes the obligations of this Agreement.
Proprietary Protection. VITAC shall have sole and exclusive ownership of all right, title, and interest in and to the Software
Program(s) and related documentation, all copies thereof, and all modifications, enhancements and Derivative Works thereto
(including ownership of all copyrights and other intellectual property rights pertaining thereto), subject only to the right and license
expressly granted to the Customer herein. This Agreement does not provide the Customer with title or ownership of the Software
Program(s), but only a right of limited use. The Customer acknowledges that the Software Program(s) are the proprietary
information and a trade secret of VITAC and this Agreement shall grant the Customer no title or rights of ownership in the
Software Program(s). The Customer also agrees not to (a) make or assist in making any changes to the Software Program(s),
(b) reverse-engineer the Software Program(s), or (c) incorporate any portion of the Software Program(s) (or concepts thereof)
into another product, code or software program.
Compliance with Law. Each party is responsible for complying with all local, state, and federal laws.
Governing Law. This Agreement shall be govemed by and construed in accordance with the internal laws of the State of
DaDftsrflja without regards to conflict of laws or principles of such state.
Confidentiality. Each party agrees to maintain in confidence the terms of this Agreement and any proprietary or non-public
information, including technical information and rates, which may be disclosed to it under this Agreement by using at least the
same physical and other security measures as it uses for its own confidential technical information and documentation. Each
party further agrees not to disclose such information to anyone other than employees, affiliates or contractors who have a need to
know or obtain access to such infonnation in order to support its performance pursuant to this Agreement, including the
authorized use of the Software Program(s) and are bound to protect such information against any other use or disclosure. These
obligations shall not apply to any information generally available to the public, or independently developed or obtained without
reliance on such information, whether pursuant to the California Public Records Act or in accordance with other applicable law.
IN WITNESS WHEREOF, intending to be legally bound, the parties have caused this Agreement to be signed by their
authorized representatives.
VITAC Corporation Plaza 25, 8300 E. Maplewood Avenue, Suite 300, Greenwood Village, CO 80111 800.775.7838
VITAC CORPORATION
By:
Name:
Gity^of Palm jrings'
VITAC Corporation Plaza 25, 8300 E. Maplewood Avenue, Suite 300, Greenwood Village, CO 80111 800.775.7838
EXHIBIT E
5..H.1S
Volusia County
FLORIDA
Exhibit E
Fee Schedmle
Real-Time Closed Captioning
Contract Term Year One Year Two Year three Year four Year five
Real-Time Closed
Captioning Hourly
Rates $88.00 $88.00 $88.00 $88.00 $88.00
Monthly Account
Management Fee $0.00 $0.00 $0.00 $0.00 $0.00
fully edited
Transcription per
Meeting
(as requested)
$95/
meeting hour
$95/
meeting hour
$95/
meeting hour
$95/
meeting hour
$95/
meeting hour
Minimum hourly
requirements;
between 8:30 a.m. -
5:00 p.m.0.5 hours 0.5 hours 0.5 hours 0.5 hours 0.5 hours
Minimum hourly
requirements; after
5:00 p.m.0.5 hours 0.5 hours 0.5 hours 0.5 hours 0.5 hours
Charge for meeting
cancellation without
24 hours notice 2 hours 2 hours 2 hours 2 hours 2 hours
Mimimum billing session of 4 hours for events scheduled to run 8 hours or longer, but that end
early. For meetings that are scheduled for 8 hours and run longer than 4 hours but less than 8 hours,
billing will be amended to charge in 1 hour increments. Meetings that run over the scheduled time are
billed in 1/4 hour increments, based on conventional rounding.
Examples:
8 hours scheduled, 3.5 hours actual: 4 hours billed
8 hours scheduled, 4.5 hours actual: 5.5 hours billed
8 hours scheduled, 6.5 hours actual: 7.5 hours billed
8 hours scheduled, 8.5 hours actual: 8.5 hours billed