25-SQ-158LS,_Ballot_Printing_DRAFT_Contract.pdf

25-SQ-158LS, Ballot Printing DRAFT Contract Page 1 of 24

AGREEMENT

FOR

BALLOT PRINTING FOR THE

VOLUSIA COUNTY SUPERVISOR OF ELECTIONS

Between

THE VOLUSIA COUNTY SUPERVISOR OF ELECTIONS

AND

CONTRACTOR

Volusia County Supervisor of Elections C/O County of Volusia

Purchasing & Contracts Division 123 West Indiana Avenue, Suite 302

DeLand, Florida 32720-4608 386-736-5935

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AGREEMENT FOR BALLOT PRINTING

This Agreement for Ballot Printing for the Supervisor of Elections (hereinafter “Agreement”) made and entered by and between Contractor Name, duly authorized to conduct business in the State of Florida, whose principal place of business is located at Contractor Address (hereinafter the “Contractor”) and Volusia County Supervisor of Elections, a constitutional office whose address is Volusia County Supervisor of Elections, 123 West Indiana Avenue, DeLand, Florida 32720 (hereinafter the “Supervisor of Elections”).

RECITALS:

Whereas, the Supervisor of Elections desires to retain the services of a competent and qualified Contractor to provide Ballot Printing for the Supervisor of Elections; and

Whereas, a Request for Statement of Qualifications 25-SQ-158LS (the “RSQ”) was issued seeking a qualified firm to perform ballot printing and responses from various potential vendors were received; and

Whereas, the Supervisor of Elections requested and received expressions of interest for the retention of services of the Contractor; and

Whereas, the Supervisor of Elections 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 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 Supervisor of Elections, the parties agree and stipulate as follows:

1 DEFINITIONS

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 governed by this Agreement, second by the incorporated Scope of Services/Work, and third by the incorporated Insurance Requirements (Exhibit A). 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 Work, shall have the meanings ascribed to them in the following order of precedence: first, in the most current edition Black’s Law Dictionary and last, in the most current edition of the Oxford English Dictionary, if a term is not defined in the Agreement or Black’s Law Dictionary.

1.1. Agreement: This Agreement, including its articles, exhibits, and attachments.

1.2. Amendment: An amendment to this Agreement in writing, approved by the Director of

Purchasing and Contracts, and signed by the Supervisor of Elections and the Contractor authorizing a modification or revision to one or more terms or conditions of this Agreement.

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1.3. Change Order: A written change or modification to this Agreement approved by the Supervisor of Elections Project Manager or Contract Administrator to the Contractor signed by the Supervisor of Elections and the Contractor authorizing an addition, deletion, or revision in the Scope of Work (SOW), or an adjustment in the Agreement price or time, without change to any other terms or conditions of the Agreement.

1.4. Compensation: The amount paid by the Supervisor of Elections 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.

1.5. Contractor: Contractor Name.

1.6. Contractor's Services: Those Services within the Scope of Services/Work 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.

1.7. Constitutional Officers: Shall mean The Clerk of the Circuit Court of Volusia County, Volusia County Property Appraiser, Volusia Sheriff’s Office, Volusia County Supervisor of Elections, and Volusia County Tax Collector. For the purposes of this Agreement the “Constitutional Officer’’ referred to in the singular is Volusia County Supervisor of Elections.

1.8. County: Shall mean the County of Volusia (a body corporate and politic and a subdivision of the State of Florida) including its districts, authorities, separate units of government established by law (constitutional), ordinance or resolution, partners, elected and non-elected officials, employees, agents, volunteers, and any party with whom the County has agreed by contract to provide additional insured status.

1.9. Director of Purchasing and Contracts Division: The designee of the County to assist the Supervisor of Elections with contract administration.

1.10. Contract Administrator: The Supervisor of Elections’ designee, which is (for the purposes of this Agreement) the County’s Director of Purchasing and Contracts or his/her designee. The Contract Administrator is responsible for addressing any concerns within this Agreement.

1.11. 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.

1.12. Effective Date: The date that this Agreement is fully executed by Contractor and the

Supervisor of Elections.

1.13. Key Personnel: Contractor’s personnel, designated by Contractor, who are responsible for Contractor’s day-to-day Project operations as described in the Contractor’s Proposal.

1.14. Project: The project that is described in this Agreement.

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1.15. Purchasing and Contracts Division of Volusia County: A County service division that facilitates the procurement of materials, supplies, equipment, and professional, technical, and contractual services required for County operation.

1.16. Scope of Services/Work: The services or work, herein defined in this Agreement under the Scope of Services that is agreed to by the Parties in writing, which includes responsibility for performing and complying with all incidental matters pertaining thereto.

1.17. 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 Agreement and pursuant to Exhibit A, attached hereto and made a part of this Agreement.

1.18. State: State of Florida.

1.19. Subcontractor: A person other than a material man or laborer who enters into an agreement with a Contractor for the performance of any part of this Agreement.

1.20. Supervisor of Elections Project Manager: Also known as the person designated by the Supervisor of Elections to act on its behalf to review, approve and make decisions regarding the Scope of Services/Work in this Agreement.

1.21. Warranty: The warranty or warranties as set forth in this Agreement including any warranties required by State Law or regulation.

1.22. Work: Any and all obligations, Services, duties and responsibilities necessary to the successful completion of the Scope of Services/Work 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 Work

2.1.2 Exhibit B – Human Trafficking Affidavit

2.1.3 Exhibit C – Insurance

3 ORDER OF PRECEDENCE

3.1 If Contractor finds any inconsistency, conflict, error, or discrepancy in the Agreement, the order of precedence, Contractor shall immediately call it to the Supervisor of Elections Project Manager’s attention, in writing, and request the Supervisor of Elections Project Manager’s interpretation and direction before proceeding with the Work affected thereby.

3.2 In the event of any conflicts or inconsistencies between any Exhibit to the Agreement and the Agreement itself, such conflict or inconsistency shall be resolved by giving precedence in the following order:

3.2.1 Modifications (i.e., amendments or change orders) to the Agreement;

3.2.2 Agreement;

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3.2.3 Scope of Work;

3.2.4 Specifications; and

3.2.5 Other documents, exhibits, and attachments.

3.3 In the event of any conflicts or inconsistencies between the Agreement and any exhibit to the Agreement in regard to all terms and conditions addressed in the Agreement, the Agreement shall be controlling.

3.4 With regard to any task assignment or master agreement issued pursuant to this

Agreement, such task assignment or master agreement shall govern and control with regard to the specifications, special instructions, product quantities, and pricing for the specific work or services ordered pursuant to such task assignment or master agreement;

however, the primary Agreement (i.e., this document) shall govern and control with regard to general conditions and all other matters.

4 SCOPE OF SERVICES. Contractor shall provide Services under this Agreement and act as

Contractor to the Supervisor of Elections in accordance with the Scope of Services as specifically set forth in this Agreement and its exhibits.

4.1 Contractor shall provide Ballot Printing in accordance with this section and the attached

Scope of Work Exhibit A.

4.2 Performance Criteria:

4.2.1 All services shall be performed in accordance with the Agreement and carried out under the direction of the Supervisor of Elections’ Project Manager.

4.2.2 All labor necessary to complete the Scope of Services shall be performed in a good and competent workmanlike manner, in accordance with industry standards and to the satisfaction of the Supervisor of Elections.

4.2.3 Changes to Scope of Services. The Supervisor of Elections may, at any time, by written change order, make changes within the general Scope of Work to be performed under this Agreement; unless otherwise allowed by the Supervisor of Elections in the written change order, such changes to the Scope of Work (or Contractor’s claim for adjustment, described below) shall not allow, permit, or excuse any delay in the performance of the Work. Except as otherwise stated herein, if any such change causes an increase or decrease in Contractor's cost of the Services or the time required for performance of the Work, the Supervisor of Elections may make an equitable adjustment by amending this Agreement and stating the equitable adjustment in such amendment. Determination of whether an increase or decrease in cost was caused by the change to the scope of work shall be in the Supervisor of Elections’ sole discretion. Any claim by Contractor for adjustment under this article must be asserted in writing within thirty (30) days from the date of the Supervisor of Elections’ notification to Contractor (whether made orally or in writing) of the change that caused the claim for adjustment;

otherwise, the claim shall be deemed waived. Except as otherwise provided in this Agreement, no charge for any extra work or materials shall be allowed or approved by the Supervisor of Elections. No additional Work shall be performed or extra materials purchased until a written Change Order has been approved by Contractor and Supervisor of Elections.

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4.2.4 Time is of the Essence. Time is of the essence for all Services performed under this Agreement and all Projects performed in accordance herewith.

4.2.5 Authority to Act on Behalf of Supervisor of Elections. 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 Supervisor of Elections 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 Supervisor of Elections for such additional items to exceed the Purchasing Director's or County Manager’s authority under the Procurement Code shall be presented to the Supervisor of Elections or 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 Supervisor of Elections’ Project Manager to ascertain the functional or design criteria of the Scope of Work. The Services of the Contractor shall also include the following:

5.1.1 Contractor Covenants and Agrees as Follows:

5.1.1.1 That Contractor shall keep the Supervisor of Elections and Supervisor of Elections Project Manager 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 Supervisor of Elections;

5.1.1.2 That there are no obligations, commitments, or impediments of any kind that shall limit or prevent Contractor’s performance of the Work or Services;

5.1.1.3 That Contractor recognizes that its special talent, training, and experience caused the Supervisor of Elections to select Contractor to be the prime professional;

5.1.1.4 That Contractor comprehends the specifications and requirements of the Scope of Services/Work and the use of the same in their entirety to provide Deliverables;

5.1.1.5 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

5.1.1.6 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

25-SQ-158LS, Ballot Printing DRAFT Contract Page 7 of 24 or similar Services or Work in compliance with all applicable federal, state, and municipal laws, regulations, codes, and ordinances.

5.1.2 Accuracy of Documentation. Subject to Subsection 5.1.1.6, Contractor covenants and agrees that any Project data, summaries, reports, or studies submitted by the Contractor to the Supervisor of Elections shall be competently drafted and accurate with regard to the information contained therein. Supervisor of Elections’ 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 Supervisor of Elections is relying on the Contractor’s status as an industry professional in accepting such documentation.

5.1.3 Notification of Errors or Defects. Contractor covenants and agrees to notify the

Supervisor of Elections and Supervisor of Elections’ Project Manager 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 Supervisor of Elections or any other party, Contractor regards in Contractor’s professional opinion as unsuitable, improper, or inaccurate.

5.1.4 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 time 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 Supervisor of Elections that finished or completed Deliverables accurately comply with the requirements of this Agreement and the Scope of Services contained therein.

5.3 Assurance. Subject to Subsection 5.1.1.6, Contractor gives Supervisor of Elections 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

5.4 Accuracy of Reports / 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 furnished by the Contractor under this Agreement. The

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Contractor shall, without additional cost to the Supervisor of Elections, correct or revise any errors or deficiencies in its Work or Services for which it is responsible.

5.5 Services and Work to Comply with Specifications and Law. All Work performed by

Contractor including all general provisions, special provisions, job specifications, drawings, addendum, amendments to the 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, other person, or organization of against whom the Supervisor of Elections may have reasonable objection, nor shall Contractor be required to employ any Subcontractor against whom it has reasonable objection. Contractor shall not make any substitution for any Subcontractor who has been accepted by the Supervisor of Elections without the Supervisor of Elections’ approval.

5.6.2 Disapproval of Subcontractors. Supervisor of Elections’ disapproval or requirement of removal or replacement of Contractor‘s employee or Subcontractor shall be deemed for lawful reasons if, in Supervisor of Elections’ reasonable judgment, such Contractor‘s employee or Subcontractor (i) poses a threat or causes harm to the health, welfare, or safety, or morale of the Supervisor of Elections or its agencies, personnel or property, (ii) fails any drug test administered in connection with this Agreement, or (iii) has been convicted of a felony or a misdemeanor involving “moral turpitude.”

5.6.3 Contractor Responsible for Subcontractors. Contractor shall be fully responsible for all negligent acts and omissions of its Subcontractor 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 and the Supervisor of Elections or any obligation on the part of the Supervisor of Elections or Supervisor of Elections’ Project Manager to pay or to see to the payment of any monies due any Subcontractor, except as may otherwise be required by law.

Supervisor of Elections may furnish to any 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 Supervisor of Elections, and shall require all 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 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

25-SQ-158LS, Ballot Printing DRAFT Contract Page 9 of 24 substitution of such Subcontractors associates will be subject to the prior written approval of the Supervisor of Elections or Supervisor of Elections Project Manager.

6 TERM OF AGREEMENT

6.1 The term of this Agreement shall commence on the Effective Date of this Agreement, and shall terminate five (5) years from the Effective Date.

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 Supervisor of Elections and shall be completed within the time specified therein.

7 AGREEMENT PRICE AND COMPENSATION

7.1 No Guarantee as to Purchases of Work or Services. The purpose of this Agreement is to govern transactions for professional printing services as between the Supervisor of Elections and the Contractor, who has been deemed qualified to provide the professional printing services. Neither this Agreement nor the Supervisor of Elections’ determination that the Contractor is qualified to perform the professional printing services described herein shall operate as a guarantee that the Supervisor of Elections will purchase or procure any minimum amount of work or services from the Contractor or that the Contractor will have an exclusive right to provide professional printing services to the Supervisor of Elections. Rather, execution of this Agreement makes the Contractor eligible to perform professional printing services for the Supervisor of Elections as such work may be needed or requested by the Supervisor of Elections.

7.2 Covenant to Abide by the County’s Procurement Procedures and Processes. As a qualified provider of professional printing services, Contractor hereby covenants and agrees to abide by the County’s purchasing policies and ordinances. Contractor further agrees and understands that it may be required to provide quotes and/or bids against other qualified contractors for professional printing services.

7.3 Purchases. As required, orders for work and services pursuant to this Agreement shall be procured through the issuance of Master Agreement documents, which shall constitute the payment vehicle for each order.

7.4 Errors and Omissions in Pricing. Compensation shall not be adjusted because of errors or omissions which are not the fault of the Supervisor of Elections 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 Supervisor of Elections’ 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 Services/Work and any additions thereto shall be adjusted to exclude any significant sums by which the Supervisor of Elections determines the price or Compensation was increased due to inaccurate, incomplete, or noncurrent wage rates and other factual unit costs.

7.5 Invoices. Invoices or payment requests shall be addressed from the Contractor and submitted to the Supervisor of Elections’ Project Manager. All invoicing and payments, including the practices and procedures pertaining thereto, with a copy to the Purchasing and Contracts Division of Volusia County shall be governed by the applicable provisions

25-SQ-158LS, Ballot Printing DRAFT Contract Page 10 of 24 of Part VII of Chapter 218, Florida Statutes.

7.5.1 Invoice Detail. Contractor shall submit an invoice for which professional Services were rendered to the Supervisor of Elections upon the completion and acceptance of the Services. Each invoice shall show detailed explanations of the Services accomplished and, if requested, provide substantiation for same. Invoices shall be 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.

7.5.2 Documentation. The Contractor’s Invoice(s) shall be accompanied by supporting data as may be required by the Supervisor of Elections’ Project Manager and Purchasing and Contract’s Division of Volusia County which shall review the Contractor's Invoice and supporting data and notify the Contractor in writing within fifteen (15) calendar days from receipt of the statement if any amounts requested are disputed or lack adequate support or documentation.

7.5.3 Invoicing Pursuant to Agreement. Contractor shall invoice Supervisor of

Elections for all payments due Contractor under this Agreement. Supervisor of Elections shall pay invoices in accordance with this Agreement. Invoices shall be sent to the address specified by the Supervisor of Elections.

7.5.4 Approval of Payment. If, on the basis of the Supervisor of Elections’ Project Manager ’s observation and review of Contractor’s Services, the Supervisor of Elections’ Project Manager is satisfied that the Services has been completed and Contractor has fulfilled all of its obligations under the Agreement, the Supervisor of Elections’ 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 Supervisor of Elections’ Project Manager shall return the invoice to Contractor, indicating in writing the reasons for refusing to approve final payment. Subsequent to receiving a returned invoice, Contractor will make the necessary corrections and resubmit the invoice and, if requested, provide explanation or substantiation for said invoice. Regardless of the foregoing, approval of payment pursuant to this section shall not prevent the County from recovering amounts paid when the Supervisor of Elections subsequently discovers material defects or deficiencies in the services or work provided by Contractor, which defects or deficiencies would have otherwise caused the Supervisor of Elections to withhold payment.

7.5.5 Withholding. The Supervisor of Elections may withhold payment of any specific invoiced charges that it disputes in good faith and pay all undisputed charges on the invoice.

7.5.6 Payment Due. Within forty-five (45) days of acceptance by the Supervisor of

Elections or Supervisor of Elections’ 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.

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7.5.7 Taxes. Supervisor of Elections is a tax exempt entity and shall not be charged or invoiced for the payment of taxes for Work or Services performed under this

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 Supervisor of Elections, nor any payment by Supervisor of Elections or County to Contractor under the Agreement, nor any act of acceptance by the Supervisor of Elections, nor any failure to do so, nor any correction of defective Work by Supervisor of Elections shall constitute an acceptance of Work or Services 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 Supervisor of Elections 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 the Supervisor of

8.2 Indemnification as to Payment of Subcontractors. Contractor shall save, defend, and hold the Supervisor of Elections and 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. Regardless of the foregoing, nothing in this Agreement shall create any contractual relationship between any Subcontractor and the Supervisor of Elections or County or any obligation on the part of the Supervisor of Elections or County to pay or to see the payment of any moneys due any Subcontractor, except as may otherwise be required by law.

9 LIMITATION OF LIABILITY AND INDEMNIFICATION OF COUNTY AND SUPERVISOR OF

ELECTIONS

9.1 Indemnification. Contractor shall indemnify, defend and hold harmless the Supervisor of

Elections and County, including their districts, authorities, separate units of government established by law (constitutional offices), ordinance or resolution, partners, elected and non-elected officials, employees, agents, volunteers, and any party with whom the Supervisor of Elections or County has agreed by contract to provide additional insured status from and against all claims, damages, losses, and expenses, including, but not limited to, attorney’s fees arising out of, resulting from, or incident to Contractor’s performance of its obligations in whole or part of this Agreement, unless such injury or damage is occasioned solely by the fault, negligence, or willful misconduct of the Supervisor of Elections and County.

9.2 In all claims against the Supervisor of Elections and/or County, Contractor’s indemnification obligation shall not be limited in any way by any limitation on the amount or type of damages, compensation or any benefits payable by or for Contractor, or its employees, agents, contractors, or subcontractors.

9.3 Sovereign Immunity. The County and the Supervisor of Elections expressly retain 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

25-SQ-158LS, Ballot Printing DRAFT Contract Page 12 of 24 the contrary, nothing in this Agreement shall be deemed as a waiver of the Supervisor of Elections’ or County’s immunity or limits of liability beyond any statutory limited waiver of immunity or limits of liability that may have been or may be adopted by the Florida Legislature, and the cap on the amount and liability of the Supervisor of Elections or 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 Supervisor of Elections or County, which claim would otherwise be barred under the doctrine of sovereign immunity or by operation of law.

10 INSURANCE

Contractor shall provide the required insurance detailed in Exhibit C for the entire Term of the Agreement. Regardless of anything submitted as proof of insurance, Contractor shall comply with all requirements of Exhibit C.

11 TERMINATION

11.1 Supervisor of Elections may terminate this Agreement upon at least thirty (30) days prior written notice to Contractor.

11.2 Contractor may terminate this Agreement upon at least sixty (60) days prior written notice to Supervisor of Elections and Supervisor of Elections’ Project Manager with a copy of such notice provided to the Purchasing and Contracts Division of Volusia County.

11.3 Upon receipt of notice of termination by the Supervisor of Elections and Supervisor of

Elections Project Manager from Contractor or upon delivery of notice of termination from the Supervisor of Elections or County to Contractor, Contractor shall:

11.3.1 Stop work under the Agreement on the date and to the extent specified with written notice to the Purchasing and Contracts Division of Volusia County in the Notice of Termination.

11.3.2 Inform the Supervisor of Elections and Supervisor of Elections’ Project Manager with written notice to the Purchasing and Contracts Division of Volusia County of the extent to which performance is completed.

11.3.3 Place no further orders or subcontracts for materials, services or facilities except as may be necessary for completion of such portion of the work under the Agreement that is in progress but not yet completed.

11.3.4 Assign to the Supervisor of Elections, in the manner, at the times, and to the extent directed by the Supervisor of Elections, all of the right, title and interest of the Contractor under the orders and subcontracts so terminated.

11.3.5 With the approval of the Supervisor of Elections and to the extent required by the

Supervisor of Elections, settle all outstanding liabilities and all claims arising out of such termination. Supervisor of Elections’ approval of such settlements shall be final for all the purposes of a termination under this Article 11 - Termination. In addition, Contractor shall transfer title and deliver to the Supervisor of Elections, in the manner, at the times, and to the extent, if any, directed by the Supervisor of Elections of Deliverables, work-in-progress, reports, models, studies, and other

25-SQ-158LS, Ballot Printing DRAFT Contract Page 13 of 24 materials produced as a part of, or acquired in connection with the performance of the Services terminated.

11.4 For all undisputed outstanding invoices submitted to the Supervisor of Elections or

Supervisor of Elections Project Manager prior to the effective date of the termination and subject to Article 6 - Term of Agreement, Article 7 – Agreement Price and Compensation, and this Article 11 - Termination, the Supervisor of Elections shall cause payments to be made to Contractor within forty five (45) days of receipt of invoice. Contractor shall invoice the Supervisor of Elections for any sums Contractor claims to be owed by the Supervisor of Elections under this Agreement for work performed from the last invoice to the effective date of termination. Supervisor of Elections shall review such invoice for payment and the Supervisor of Elections shall pay any undisputed amount within forty-five (45) days.

11.5 If the Supervisor of Elections announces its intention to terminate for cause based upon a breach of the Contract, the Supervisor of Elections shall provide the Contractor with written notice of such breach. If the Contractor fails to cure the breach within ten (10) calendar days after receipt of notice from the Supervisor of Elections of said breach, the Supervisor of Elections may take over the Services and complete the Services, and Contractor shall be liable to the Supervisor of Elections for any increased cost of the Project reasonably incurred by the Supervisor of Elections to complete the Contractor's unfinished Services. As such, Supervisor of Elections may apply unpaid Compensation due and owing to the Contractor prior to the default as a set off against the costs incurred by the Supervisor of Elections for taking over such Services.

11.6 The right of termination provided to the Supervisor of Elections and the Contractor herein shall be cumulative of all other remedies available at law.

11.7 All provisions of this Agreement which imposes or contemplates continuing obligations on a party will survive the expiration or termination of this 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 Section 12, Dispute Resolution. The Contractor and Tac Collector’s Project Manager and Supervisor of Elections Designee 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 concerning 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 parties’ respective, project managers or designated representatives shall furnish to each other all non-privileged information with respect to the dispute believed by

25-SQ-158LS, Ballot Printing DRAFT Contract Page 14 of 24 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

Contractor’s Representative Supervisor of Elections Representative

10 Contractor’s Project Manager Supervisor of Elections’

Project Manager and County

Designated Project Manager

10 Contractor’s Sr. Vice

President of Sales

Supervisor of Elections’

Project Manager

Director or designee

20 Contractor’s COO or President Supervisor of Elections or designee

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 Section 12, Dispute Resolution, nothing herein shall affect, delay, or otherwise preclude a party from terminating this Agreement in accordance with the provisions of Section 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.

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13 SUPERVISOR OF ELECTIONS DATA

13.1 Contractor agrees and understands that all files and other information and data created in connection with the administration of this Agreement constitute a public record, except to the extent it is exempt or proprietary under Florida Law (Chapter 119, Florida Statutes) from disclosure or as preempted by federal law. Contractor agrees to maintain for public record access such files and to maintain for public access such files after termination of this Contract to the extent required by the laws of the State of Florida.

13.2 Upon any termination or expiration of this Agreement, Contractor, upon Supervisor of

Elections’ written request, shall promptly deliver, but not more than thirty (30) days after Supervisor of Elections’ request, to Supervisor of Elections an extract of Supervisor of Elections’ data hosted in the System in XML format or such other format as mutually agreed upon by Supervisor of Elections and Contractor.

13.3 THE ABOVE DUTIES AND OBLIGATIONS SHALL SURVIVE THE CANCELLATION OR

TERMINATION OF THIS CONTRACT.

14 LOCAL GOVERNMENT REQUIREMENTS

14.1 Public Records Law. Pursuant to section 119.0701(2)(a), Florida Statutes, the Supervisor of Elections is required to provide 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 CONTRACT, CONTACT THE CUSTODIAN OF

PUBLIC RECORDS AT 386-736-5935, purchasing@volusia.org, by mail, Purchasing and Contracts Division, Attn: Public Records Custodian, 123 W. Indiana Ave. RM 302 DeLand, FL 32720.

By entering into this Contract, 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 Contract 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 Supervisor of Elections is required to:

A. Keep and maintain public records required by the Supervisor of Elections to perform the services and work provided pursuant to this Contract.

B. Upon request from the Supervisor of Elections’ custodian of public records, provide the Supervisor of Elections 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.

C. 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 Contract term and following completion or termination of the

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Contract if the Contractor does not transfer the records to the Supervisor of

D. Upon completion or termination of the Contract, transfer, at no cost, to the

Supervisor of Elections all public records in the possession of the Contractor or keep and maintain public records required by the Supervisor of Elections to perform the service. If the Contractor transfers all public records to the Supervisor of Elections upon completion or termination of the Contract, 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 or termination of the Contract, the Contractor shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the Supervisor of Elections, upon request from the Supervisor of Elections’ custodian of public records, in a format that is compatible with the information technology systems of the Supervisor of

Requests to inspect or copy public records relating to the Supervisor of Elections’ Contract for services must be made directly to the Supervisor of Elections. If Contractor receives any such request, Contractor shall instruct the requestor to contact the Supervisor of Elections and Supervisor of Elections’ Project Manager. If the Supervisor of Elections does not possess the records requested, the Supervisor of Elections shall immediately notify the Contractor of such request, and the Contractor must provide the records to the Supervisor of Elections or otherwise allow the records to be inspected or copied within a reasonable time.

Contractor acknowledges that failure to provide the public records to the Supervisor of Elections within a reasonable time may be subject to penalties under section 119.10, Florida Statutes. 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 Supervisor of Elections. Contractor shall indemnify, defend, and hold the Supervisor of Elections and 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 Contractor’s failure to maintain the exempt or confidential status of public records that are exempt or confidential and exempt from the public records disclosure requirements, including, but not limited to, any third party claims or awards for attorneys’ fees and costs arising therefrom. Contractor authorizes Supervisor of Elections to seek declaratory, injunctive, or other appropriate relief against Contractor from a Circuit Court in Volusia County on an expedited basis to enforce the requirements of this section.

14.2 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 Supervisor of Elections any past due debt. Any breach of the foregoing warranty and representation shall be a material breach of this Agreement and the Supervisor of Elections shall have the right to terminate this Agreement as set forth herein.

14.3 Changes Due to Public Welfare. The Supervisor of Elections 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.

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14.4 Compliance with Applicable Laws. Contractor shall perform its obligations hereunder in accordance with all applicable federal, state and local laws, ordinances, rules, 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 Supervisor of Elections and County and all of their 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 government, 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.

14.5 Nondiscrimination and Americans with Disabilities Act. Contractor shall not unlawfully discriminate against any person in the operations and activities in its provision of services pursuant to this Agreement.