Exhibit_F_-Agreement_23-P-118MC_Elevator_Escalator_Chairlift_Maint_Repair.pdf

AGREEMENT

FOR

ELEVATOR, ESCALATOR, AND CHAIRLIFT MAINTENANCE

AND REPAIR

Between

THE COUNTY OF VOLUSIA, FLORIDA

AND

ORACLE ELEVATOR HOLDCO, INC., d/b/a ORACLE ELEVATOR

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 ELEVATOR, ESCALATOR, AND CHAIRLIFT MAINTENANCE AND

REPAIR

This Agreement for Elevator, Escalator, and Chairlift Maintenance and Repair (hereinafter “Agreement” ) is made and entered by and between ORACLE ELEVATOR HOLDCO, INC., d/b/a ORACLE ELEVATOR, a Delaware corporation authorized to conduct business in the State of Florida, whose principal place of business is located at 8800 Grand Oak Circle, Suite 550, Tampa, Florida 33637 (“Contractor”) and the COUNTY OF VOLUSIA, FLORIDA, a body corporate and politic and a subdivision of the State of Florida, whose address is 123 West Indiana Avenue, DeLand, Florida 32720 (“County”).

RECITALS:

WHEREAS, the County desires to retain the services of a competent and qualified Contractor to provide Elevator, Escalator, and Chairlift Maintenance and Repair; and

WHEREAS, the County issued Request for Proposals 23-P-118MC (the “RFP”) seeking a qualified firm to perform elevator, escalator, and chairlift maintenance and repair, and has received responses from various potential vendors; and

WHEREAS, the County has determined that Contractor is fully qualified to render the required service; and

WHEREAS, in reliance on Contractor’s response to the RFP, the County 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 Contractor and County, 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 meanings set forth and defined herein 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 (Exhibit A), third by the Supplemental Scope of Service (Exhibit A-1), and fourth by the incorporated Pricing (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 Services, shall have the meanings ascribed to them in the following order of precedence: first, in the most current edition of Black’s Law Dictionary; and last, in the most current edition of the Merriam-Webster Collegiate Dictionary, if a term is not defined in the Agreement or Black’s Law Dictionary.

1.1. Agreement: This Agreement for elevator, escalator, and chairlift maintenance and repair, including its articles, exhibits, addenda, and attachments.

1.2. Amendment: An amendment to this Agreement in writing, approved by the Director of Purchasing and Contracts, and signed by the County and Contractor authorizing a

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1.3. Change Order: A written change or modification to this Agreement approved by the County Project Manager and Contractor, which is signed by the County and Contractor, authorizing an addition, deletion, or revision in the Scope of Services or Supplemental Scope of Services, 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 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 Contractor, under the terms of this Agreement, for all Services, labor, materials, supplies, travel, training, profit, overhead, costs, expenses, and any other costs necessary to complete work under the Scope of Services and Supplemental Scope of Services.

1.5. Contract Administrator: The Director of Purchasing and Contracts or his/her designee responsible for addressing any concerns within this Agreement.

1.6. Contractor: Oracle Elevator Holdco, Inc., d/b/a Oracle Elevator.

1.7. 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.

1.8. County Project Manager: The person designated by the County to review, approve and make decisions regarding the Scope of Services and Supplemental Scope of Services in this Agreement.

1.9. Deliverable(s): The products or services provided through the Scope of Services and

Supplemental Scope of Services for this Agreement, including, but not limited to, other 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. Key Personnel: Contractor’s personnel who are responsible for Contractor’s day-to-day Project operations as described in Contractor’s Proposal.

1.12. Project: The Project that is described in Exhibits A and A-1 of this Agreement.

1.13. Proposal: The document submitted by Contractor in response to a formal solicitation

(RFP No. 23-P-118MC), which is used to determine if Contractor is highly qualified.

1.14. Scope of Services: The Services defined in this Agreement under the Scope of Services in Exhibit A and the Supplemental Scope of Services in Exhibit A-1, which are hereby agreed to by the parties in writing, and which include Contractor’s responsibility for performing and complying with all incidental matters pertaining thereto.

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1.15. Services: Those services defined in the Scope of Services and the Supplemental

Scope of Services to be performed by 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 Exhibits A and A-1, attached hereto and made a part of this Agreement.

1.16. State: State of Florida.

1.17. 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 the basic Agreement.

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

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

2.1.2 Exhibit A-1—Supplemental Scope of Services

2.1.3 Exhibit B—Pricing

2.1.4 Exhibit C—Insurance Requirements

2.1.5 Exhibit D – Federal Contract Provisions

3 ORDER OF PRECEDENCE

3.1 If Contractor finds any potential or possible inconsistency, conflict, error, or discrepancy in the Agreement, the order of precedence, Contractor shall immediately 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 Services affected thereby.

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:

3.1.1 In the event of any conflicts or inconsistencies between Exhibit A – Scope of

Services and any other exhibit to this Agreement in regard to the Scope of Services, Project specifications, performance criteria, or management metrics, Exhibit A – Scope of Services shall be controlling.

3.1.2 In the event of any conflicts or inconsistencies between Exhibit A-1 Supplemental Scope of Services and any other exhibit to this Agreement in regard to the Supplemental Scope of Services, Project specifications, maintenance control plan, Exhibit A-1 – Supplemental Scope of Services shall be controlling.

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3.1.3 In the event of any conflicts or inconsistencies between Exhibit B – Pricing and any other exhibit in regard to the prices for Services to be provided under this Agreement, Exhibit B – Pricing shall be controlling.

3.1.4 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.

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

Contractor to the County in accordance with the Scope of Services and the Supplemental Scope of Services as specifically set forth in this Agreement and Exhibits A and A-1.

4.1 Contractor shall provide elevator, escalator, and chairlift maintenance and repair in accordance with the Scope of Services and the Supplemental Scope of Services attached as Exhibits A and A-1.

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 County 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 County.

4.2.3 Changes to Scope of Services. The County may, at any time, by written

Change Order, make changes within the general Scope of Services to be performed under this Agreement; unless otherwise allowed by the County in the written Change Order, such changes to the Scope of Services (or Contractor’s claim for adjustment, described below) shall not allow, permit, or excuse any delay in the performance of the Services. 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 Services, the County may make an equitable adjustment by amending this Agreement in writing and signed by the authorized representatives of the parties, 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 Services shall be in the County’s sole discretion. Any claim by Contractor for adjustment under this section must be asserted in writing within thirty (30) days from the date of the County’s 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 Services or materials shall be allowed or approved by the County. No additional Services shall be performed or extra materials purchased until a written Change Order has been approved by Contractor and County.

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.

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4.2.5 Authority to Act on Behalf of County. 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 Volusia 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 promptly confer with the County Project Manager to ascertain the functional criteria of the Scope of Services. The Services of Contractor shall also include the following:

5.1.1 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.

5.1.2 Contractor covenants and agrees as follows:

That its allegations and representations regarding its special talent, training, and experience caused the County to select Contractor to be the prime professional;

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;

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 its field or practice performing the same or similar Services in compliance with all applicable federal, state, and municipal laws, regulations, codes, and ordinances;

That Contractor shall provide any Project data, summaries, reports, or studies, pursuant to this Subsection 5.1.2.4, accurately 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 Contractor’s status as an industry professional in accepting such documentation.

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5.2 Supervision. Subject to Subsection 5.1.2.4, 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.

Contractor shall hire, compensate, supervise, and terminate members of its work force, and Contractor shall direct and control the manner in which Services are performed including conditions under which individuals shall be assigned duties, how individuals shall report, and the hours individuals shall perform. 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 Contractor’s employees and/or Subcontractors shall be the responsibility of 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 pursuant to this Agreement. Further, Contractor shall be responsible for assuring the County that finished or completed Deliverables comply with the requirements of this Agreement and the Scope of Services contained therein.

5.3 Assurance. Contractor gives the County its assurance that all 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 Services not conforming to the specifications and requirements of the Scope of Services shall be considered materially defective and constitute a breach of this Agreement.

5.4 Accuracy of Reports / Summaries. Contractor shall be responsible for the professional and technical accuracy and the coordination of all data, reports, summaries, and any other Services furnished by Contractor under this Agreement.

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

5.5 Services to Comply with Specifications and Law. All Services 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 Services, shall comply with the Scope of Services 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 against whom the County 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 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 shall be deemed for lawful reasons if in County’s reasonable judgment, such Contractor‘s employee or Subcontractor poses a threat or causes harm to the

Agreement for Elevator Escalator and Chairlift Maintenance and Repair, 23-P-118MC_Final.docx Page 8 of 28 health, welfare, safety, or morale of the County or its agencies, personnel or property or who fails 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 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 Subcontractors 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 County or any obligation on the part of the County to pay or to see to the payment of any monies due any Subcontractor, except as may otherwise be required by law. County may furnish to any Subcontractor to the extent practicable, evidence of amounts paid to Contractor on account of specific Services done in accordance with the schedule of prices.

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 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 Services being performed for Contractor.

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, whichever is later, and shall terminate three

(3) years from the Effective Date, except for those provisions which survive termination of the Agreement. Two (2) subsequent one (1) year renewals are permissible upon mutual written agreement between the parties.

6.2 The Services to be rendered by 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 Pricing. Contractor shall be paid Compensation for all Services. Compensation listed in Exhibit B – Pricing constitutes complete payment for all Services rendered under this Agreement, including the cost of all Projects, materials, equipment, labor, expenses (including reimbursable expenses), all mark-ups for overhead and profit more particularly described in Exhibit B – Pricing. The County agrees to pay 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 not the fault of the County in computing the prices for Services which result in an increase in the total price of this Agreement or because the time for

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7.3 Reimbursable Expenses. County’s payment to Contractor pursuant to the Pricing, set forth in Exhibit B, shall be full Compensation for Services rendered and any expenses incurred in connection therewith, and Contractor shall not be eligible for reimbursement for any additional expenses incurred in connection with the performance of this Agreement.

7.4 Payments. Any payments shall be made in accordance with Exhibit B – Pricing. The costs and rates expressed in Exhibit B shall govern 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 Services, the County Project Manager is satisfied that the Services have been completed and 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 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 County subsequently discovers material defects or deficiencies in the Services provided by Contractor, which defects or deficiencies would have otherwise caused the County to withhold payment.

7.5 Invoices. Invoices or payment requests shall be addressed from Contractor and submitted to the County 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 Invoice Detail. 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 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 Contractor’s Invoice(s) shall be accompanied by supporting data as may be required by the County Project Manager. The County Project Manager shall

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7.5.3 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.

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

7.5.5 Payment Due. Within forty-five (45) days of acceptance by the County Project

Manager of all the Services for which Contractor has submitted an invoice of professional Services, Contractor shall be paid the unpaid balance of any money due for any undisputed Services covered by said invoice.

7.5.6 Taxes. County is a tax-exempt entity and shall not be charged or invoiced for the payment of taxes for Services performed under this Agreement.

7.6 Contractor's Continuing Obligations. Contractor’s obligation to perform Services in accordance with the Agreement shall be absolute. Nothing, including without limitation, the following, shall constitute an acceptance of Services not in accordance with the Agreement: approval of any progress; final payment to Contractor;

documentation confirming acceptance of the Services by the County; any payment by the County to Contractor under the Agreement; any act of acceptance by the County or any failure to do so; or any correction of defective Services by the County.

7.7 Non-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. Termination by the County due to non-appropriation shall be without a termination charge by Contractor. The County shall not be obligated to pay Contractor under this Agreement beyond the date of termination except as set forth in this Agreement. County’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.

7.8 Price Redeterminations.

Once each year during the term of the Agreement, including any extension or renewal periods thereof, Contractor may, but is not obligated to, petition the Director of Purchasing and Contracts for one (1) or more price redeterminations where such price redetermination(s) is/are necessitated by documented increases in the cost of wages, fuel, or materials. Petitions for price redeterminations shall be made within thirty (30) days of the anniversary date of the Agreement (i.e., the calendar day and month when the Agreement became effective) and only after the Agreement has been in effect for at least one (1) year. Any such petition shall be made pursuant to the provisions of this Section and only for those price redetermination categories specified herein. Unless

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7.8.1 Basis for Price Redeterminations. Contractor may petition the Director of Purchasing and Contracts for price redetermination based on the increased costs of wages, fuel, or materials. Price redeterminations will be based solely upon changes in pricing or costs documented by either the Employment Cost Index (ECI) or Producer Price Index (PPI), whichever is applicable, as published by the U.S. Department of Labor Bureau of Labor Statistics. The base index number for the ECI will be for the quarter in which the RFP opens.

The base index number for the PPI will be for the month the RFP opens. Any subsequent price redeterminations will use the last price redetermination approved for that price redetermination category as the “base index number.”

The County shall have the right to audit Contractor’s records, including, but not limited to, payroll, materials, and fuel cost records, to verify or otherwise investigate the validity of any price redetermination request.

7.8.2 Wage Price Redetermination. When requesting a price redetermination based upon an increase in wage costs, Contractor shall refer to and utilize the Employment Cost Index, Total Compensation, Private Industry, Index Number, and Occupational Group as prepared by the Bureau of Labor Statistics in the U.S. Department of Labor at https://stats.bls.gov/data/. The base figure will be tied to installation, maintenance, and repair occupations. Wage price redetermination increases shall be granted only by reason of wage increases associated with Contractor’s employees or Subcontractors performing Services pursuant to the Agreement.

7.8.3 Minimum Wage Price Redetermination. If the minimum wage increases during the term of the Agreement, including any renewal or extension period thereunder, Contractor may petition the Director of Purchasing and Contracts for price redetermination for those job categories where the pay to Contractor’s employee(s) is the current minimum wage. Upon verification of the information provided, the County will grant an increase of exactly the amount of the minimum wage increase (not the percentage increase). Contractor must increase the pay to the employee(s) by the amount Contractor has requested, which shall not exceed the amount of the minimum wage increase. The amount paid to Contractor will be the increase plus any written and documented increase in FICA, Medicare, and Workers' Compensation insurance.

Contractor must supply written documentation of any other increase that is beyond the scope and control of Contractor. All written documentation must satisfy the reasonable expectations of the Director of Purchasing and Contracts and Internal Auditor.

Example: Minimum wage increases from $7.31 to $7.56 per hour.

Contractor may petition for an increase of $0.25 per hour to be paid to the affected employee(s) and shall provide written and documented cost increases for FICA, Medicare and Workers' Compensation. The resulting increase in prices or costs shall be incorporated into fees/rates billed to the County.

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If Contractor bills the County at a higher price according to any price redetermination granted by the County, and Contractor fails to increase the hourly rate paid to the employee(s) for the same period, Contractor will be considered in Agreement default and the Agreement will be immediately terminated.

7.8.4 Fuel Price Redetermination. If/when the price of fuel increases by a minimum of ten (10%) percent, Contractor may petition the Director of Purchasing and Contracts for a fuel price redetermination. As a condition of petitioning for a fuel price increase, Contractor shall be required to petition for a fuel price redetermination decrease if/when the price of fuel decreases by a minimum of ten (10%) percent. Failure to make such petition may be grounds for Agreement termination and shall entitle the County to a refund of the cumulative increase in pay to the Contractor due to any prior fuel price redetermination increase(s). Fuel price redetermination must be based solely upon changes as documented by the Producer Price Index (PPI) for the commodities “Unleaded Gasoline - WPU057104” or “#2 diesel fuel - WPU057303”, as such may be applicable to Contractor’s operations in connection with Contractor’s performance of the Agreement.

7.8.5 Materials Price Redetermination. At the anniversary date of the Agreement, Contractor may petition the Director of Purchasing and Contracts for a materials price redetermination. As a condition of petitioning for a materials price increase, Contractor shall be required to petition for a materials price redetermination decrease if/when the price of materials used by Contractor in connection with the Agreement decreases. Failure to make such petition may be grounds for Agreement termination and shall entitle the County to a refund of the cumulative increase in pay to Contractor due to any prior materials price redetermination increase(s). Materials price redetermination must be based solely upon changes as documented by the Producer Price Index (PPI) for the commodity “Parts and attachments for elevators and moving stairways – PCU3339213339213”, as published by the U.S. Department of Labor Bureau of Labor Statistics.

7.8.6 Price Redetermination Calculation. All Price Redeterminations shall be calculated as follows:

Example: Contractor indicated on the Submittal Form that thirty percent (30%) of the cost to provide the product/service is directly attributed to the redetermination category (wages, fuel, or materials).

Current applicable PPI = ........................................ $200.50 Base index PPI = .............................................. - $179.20 PPI increase dollars = ……………………………..… $21.30 PPI increase percentage ($21.30 x $179.20 = .1189)……...…………….11.9% Unit cost of the service is......................................... $100.00 30% of $100.00 is directly attributed to the redetermination category.... $30.00 $30.00 × 11.9% = ........................................................ $3.57

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New unit price for the product/service is ($100 + $3.57)....................... $103.57

7.8.7 Expiration Upon Failure to Agree to Price Redetermination. If the County and Contractor cannot agree on to a price redetermination pursuant to the terms and conditions of this section, then the Agreement will automatically expire without penalty or further expense to either party after a period of six (6) months following Contractor’s initial request for such price redetermination.

Requests for price redeterminations not made in accordance with the provisions of this section shall be deemed null and void and shall not be a valid reason or pretext for expiration or termination of the Agreement. If the Agreement expires pursuant to the terms and conditions of this section, the County reserves the right, at no expense, penalty, or consequence to the County, to award any remaining tasks thereunder to the next available most responsive and responsible Contractor.

7.9 Unusual Costs. Contractor may petition the County at any time for an additional rate adjustment on the basis of extraordinary and unusual changes in the costs of operation that could not reasonably be foreseen by a prudent operator and which, by all reasonable expectations, will continue for at least one (1) year. If Contractor petitions for such an increase, Contractor shall also petition for a rate reduction on the basis of extraordinary and unusual changes in the costs of operation that could not reasonably be foreseen by a prudent operator and which, by all reasonable expectations, will continue for at least one (1) year; failure to make such petition may be grounds for Agreement termination.

Contractor’s request shall contain substantial proof and justification to support the need for the rate adjustment. The County may request from Contractor and Contractor shall provide such further information as may be reasonably necessary in making its determination. The County shall approve or deny the request, in whole or in part, within sixty (60) days of receipt of the request and all other additional information required by the County. Any price redetermination shall be solely based upon the documentation provided and the County reserves the right to rescind any price relief granted should the circumstances change and prices decrease.

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 Services or supplies. Contractor agrees that if it withholds an amount as retainage from such Subcontractors or suppliers, it shall release such retainage and pay same within thirty

(30) days following receipt of payment of retained amounts from the County.

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

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9 LIMITATION OF LIABILITY AND INDEMNIFICATION OF COUNTY

9.1 Indemnification. Contractor shall indemnify, defend and hold harmless the County, 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 from and against all claims, damages, losses, and expenses, including, but not limited to, attorney’s fees and costs 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 County.

9.2 In all claims against the 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 expressly retains all rights, benefits, and immunities of sovereign immunity in accordance with Section 768.28, Florida Statutes (as amended). Notwithstanding anything set forth in any article or 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 that 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 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 County 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 one hundred twenty (120) days prior written notice to County.

11.3 Upon receipt of notice of termination by the County from Contractor or upon delivery of notice of termination from the County to Contractor, Contractor shall:

11.3.1 Stop work under the Agreement on the date and to the extent specified in the

County’s notice of termination.

11.3.2 Inform the County, in writing, of the extent to which performance is completed.

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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 Services under the Agreement that is in progress but not yet completed.

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

11.4 For all undisputed outstanding invoices submitted to the County 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 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 this Agreement for Services performed from the last invoice to the effective date of termination. County shall review such invoice for payment and County shall pay any undisputed amount within forty-five (45) days.

11.5 With the approval of the County and to the extent required by the County, Contractor shall settle all outstanding liabilities and all claims arising out of such termination. The County's 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 County, in the manner, at the times, and to the extent, if any, directed by the County of Deliverables, work-in-progress, reports, models, studies, and other materials produced as a part of, or acquired in connection with the performance of the Services terminated.

11.6 If Contractor fails to cure a breach within ten (10) calendar days after receipt of notice from the County of said breach, the County may take over the Services and complete the Services or have the Services completed, and Contractor shall be liable to the County for any increased cost of the Services reasonably incurred by the County to complete Contractor's unfinished Services. As such, the County may apply unpaid Compensation due and owing to Contractor prior to the default as a set off against the costs incurred by the County for taking over such Services.

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

11.8 All provisions of this Agreement that impose or contemplate 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. 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 Services.

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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 this Agreement, 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 representatives 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 representatives within ten (10) County Work Days (defined as weekdays [i.e. Monday, Tuesday, Wednesday, Thursday and Friday] not designated as holidays by the County) 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 County Representative

10 Contractor’s Project Manager County Project Manager 10 Contractor’s Sr. Vice President Director of Purchasing and

Contracts

20 Contractor’s COO or President Deputy County Manager

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

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13 COUNTY 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 from disclosure or proprietary under Florida Law (Chapter 119, Florida Statutes) 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 Agreement to the extent required by the laws of the State of Florida.

13.2 Upon any termination or expiration of this Agreement, Contractor, upon County’s written request, shall promptly deliver to the County, but not more than thirty (30) days after County’s request, an extract of County’s data hosted in the system in XML format or such other format as mutually agreed upon by County and Contractor.

13.3 THE ABOVE DUTIES AND OBLIGATIONS SHALL SURVIVE THE CANCELLATION

OR TERMINATION OF THIS AGREEMENT.

14 LOCAL GOVERNMENT REQUIREMENTS

14.1 Public Records Law. Pursuant to section 119.0701(2)(a), Florida Statutes, the County is required to provide Contractor with this statement and establish the following requirements as contractual obligations pursuant to the Agreement:

IF CONTRACTOR HAS QUESTIONS REGARDING THE

APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO

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 Agreement, 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 an agreement for services with the County is required to:

A. Keep and maintain public records required by the County to perform the services and work provided pursuant to this Agreement.

B. Upon request from the County’s custodian of public records, provide the

County…