HomeMy WebLinkAboutDocumentation_Regular Council_Tab 27_07/11/2019Agenda Item #27.
Regular Council
STAFF MEMO
Meeting: Regular Council - 11 Jul 2019
Staff Contact: Jim Weinand, Acting Village Department: Manager
Manager
RESOLUTION NO. 24-19, A RESOLUTION OF THE VILLAGE COUNCIL OF THE VILLAGE OF
TEQUESTA, FLORIDA, INCREASING THE FISCAL YEAR 2018/2019 GENERAL FUND #001
BUDGET BY APPROPRIATING FUND BALANCE IN THE AMOUNT OF $8,896.00 TO FUND A
WEBSITE REMEDIATION PROJECT; PROVIDING FOR SEVERABILITY; PROVIDING AN
EFFECTIVE DATE, AND FOR OTHER PURPOSES.
Requesting to increase the Fiscal Year 2018/2019 General Fund #001 Budget by appropriating fund
balance in the amount of $8,896.00 to fund a website remediation project.
20190711 -ADA Compliance Services for Website -M EMO
20190711 -ADA Compliance Services for Website-Resolution.pdf
20190711 -ADA Compliance Services for Webs ite-Contract
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Agenda Item #27.
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.41
Memorandum
To: Honorable Mayor and Village Council
Thru: James M. Weinand, Acting Village Manager
From: Lori McWilliams, MMC, Village Clerk
Date: 6/19/19
Subject: ADA Site Compliance — Website and Document Remediation Company
During the June 3, 2019 Workshop, Council agreed to hire ADA Site Compliance to
remediate the 2,252 pages found on the Village's website that require ADA accessibility.
The cost is $3.95 per page (the lowest cost I could locate) - 2,252 X $3.95 = $8,895.40.
This remediation project would only cover the website files and documents and not the
files and documents that are stored in Laserfiche — our official records repository.
As a reminder to the June 3, 2019 backup memo, if we were to do the ADA remediation
in-house of the website files/documents, the cost would run approximately $81,072 to hire
a part-time staffer to remediate the files. It would take at a minimum of 2 hours per page
X $18/hour = $81,072. This estimate is on the low end. Larger and more technical files
(such as tables and graphs, budget documents, ect.) would take significantly longer.
The attached Resolution appropriates the $8,895.40 to remediate the necessary website
files. Additionally, as we go forward, staff will be able to utilize ADA Site Compliance to
remediate any internal files that they are unable to make ADA accessible at a cost oi
$3.95 per page.
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Agenda Item #27.
RESOLUTION NO. 24-19
A RESOLUTION OF THE VILLAGE
COUNCIL OF THE VILLAGE OF
TEQUESTA, FLORIDA, INCREASING THE
FISCAL YEAR 2018/2019 GENERAL FUND
#001 BUDGET BY APPROPRIATING FUND
BALANCE IN THE AMOUNT OF $8,896.00
TO FUND A WEBSITE REMEDIATION
PROJECT; PROVIDING AN EFFECTIVE
DATE, AND FOR OTHER PURPOSES.
WHEREAS, the American Disabilities Act (ADA)
requires access and accommodations for individuals with
disabilities; and.
WHEREAS, in 2010, the ADA was amended to include
websites; and,
WHEREAS, the Village desires to enter into a contract
with ADA Site Compliance, LLC in order to make its
website ADA compliant; and,
WHEREAS, the transaction to record the appropriation in
the General Fund #001 would be as follows:
Dr. 001-160-534.300 Other Contractual Services
$8,896.00
Cr. 001-990-399.999 Appropriate Fund
Balance $8.896.00
NOW, THEREFORE, BE IT RESOLVED BY THE
VILLAGE COUNCIL OF THE VILLAGE OF TEQUESTA,
PALM BEACH COUNTY, FLORIDA, AS FOLLOWS:
Section 1 Resolution No. 24-19 is hereby approved
increasing the Fiscal Year 2018/2019 General Fund 4001
Budget by appropriating fund balance in the amount of
$8,896.00 to fund a website remediation project.
Section 2 This Resolution shall become effective
immediately upon passage.
Page 496 of 537
Agenda Item #27.
MASTER SERVICES AGREEMENT
ADA SITE COMPLIANCE, LLC
This Master Services Agreement (this "Agreement I') is entered into as of
2019 between The Village of Tequesta, a local government, established and existing with
a place of business and notice address at 345 Tequesta Drive Tequesta Fl, 33469
("Customer" or "District") and ADA Site Compliance, LLC, a Delaware limited liability
company authorized to do business in Florida, with a place of business and notice address
at 640o Boynton Beach Boulevard, No. 742721, Boynton Beach, FL 33474 ("ADASC"),
and shall become effective upon Customer and ADASC executing a Statement of Work,
which shall be attached to this Agreement and incorporated herein by this reference.
Customer and ADASC may also each be referred to herein individually as a 'T and
collectively as the "Parties."
In consideration of the mutual covenants contained herein, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties, wishing to be legally bound by this Agreement, agree as follows:
i. PRODUCTS AND SERVICES.
i.i. Statement(s) of Work. Pursuant to this Agreement, ADASC shall
provide Customer with ADASC's website and web application technological
and/or human expert accessibility auditing and related Americans with
Disabilities Act ("ADA") website accessibility remediation services
("Remediation Services") and products and/or software (collectively, as
applicable, the "Products") set forth in one or more statements of work to be
mutually executed by the Parties that reference and are subject to the terms of
this Agreement (each, a "SOW'). In return for such Remediation Services,
Products, and Deliverables (hereinafter defined) (collectively, the "Services"),
Customer shall pay ADASC the fees and expenses set forth in the applicable
SOW/Proposal in accordance with the payment terms set forth herein.
1.2. Customer Requested Changes. At any time, Customer may request a
change to the Services that have been described in a SOW (in each case, a
"Change"). Upon receipt of a Change request from Customer, ADASC agrees
to respond in writing within five (5) business days of its receipt thereof,
advising Customer of any additional cost, scheduling, or other impacts on the
Services arising from the requested Change. If the Parties agree to proceed with
any requested Change, the terms associated with such Change must be
incorporated into an amendment to the applicable SOW that is mutually
executed by the Parties prior to ADASC's implementation of the Change. If the
Parties do not agree to proceed with any requested Change, the Parties shall
continue to operate in accordance with the terms of the then -existing SOW.
1.3. Deliverables. Unless otherwise provided in a SOW, with respect to any
compliance audit reports, data, software, tools, remediation services or other
works of any kind designated to be made, conceived, or developed by ADASC
in connection with a SOW (collectively, as applicable, the "Deliverables"),
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Agenda Item #27.
Customer shall have the right to review such Deliverables upon their
completion by ADASC only to determine if they conform to the applicable
written specifications stated in the SOW (collectively, the "Acceptance
Criteria"). Customer will notify ADASC within seven (7) business days of
delivery of the Deliverables if, in Customer's good faith determination, the
Deliverables have not met the Acceptance Criteria, and that therefore
acceptance has not occurred. In the event acceptance of any Deliverables does
not occur, ADASC will, at its cost, make any necessary changes to the
Deliverable within a commercially reasonable time frame so that they conform
to the Acceptance Criteria, and resubmit the Deliverables to Customer. If
Customer does not, however, notify ADASC within seven (7) business days of
the delivery of any Deliverables that such Deliverables have not met the
Acceptance Criteria, the Deliverable shall be deemed to conform to the
specifications in the applicable SOW, and to have been accepted by Customer,
subject to the representations, terms and warranties provided herein. However,
any oversight by the Customer of ADASC's Services is not intended to mean
that the Customer shall underwrite, guarantee, or ensure that the Services are
properly done by ADASC. It is ADASC's responsibility to perform the Services
in accordance with the terms of this Agreement, including all representations,
terms, and warranties provided herein. Acceptance does not waive any rights
the Customer has against ADASC for failure to perform the terms of this
Agreement or any applicable SOW.
2. INVOICES AND PAYMENTS.
2.1. Invoices. ADASC shall maintain records conforming to its usual
accounting practices, which are in keeping with generally acceptable
accounting practices. Further, ADASC agrees to render monthly invoices to the
Customer in writing, which shall be delivered or mailed to the Customer by the
fifth (5th) day of the next succeeding month. Each monthly invoice shall
contain, at a minimum, the Customer's name, ADASC's name, the invoice date,
an invoice number, an itemized listing of all costs billed on the invoice with a
description of each sufficient for the Customer to approve each cost, the time
frame within which the Services were provided, and the address or bank
information to which payment is to be remitted. Consistent with Florida's
Prompt Payment Act, Section 218.7o et al. of the Florida Statutes, these
monthly invoices are due and payable within forty-five (45) days of receipt by
the Customer.
2.2. Disputed Amounts. Customer may only withhold payment of amounts
that it in good faith disputes to be due or owing ("Disputed Amounts"). In
such case, Customer shall nonetheless pay any undisputed amounts and
provide to ADASC a sufficiently detailed written explanation of the basis for its
withholding of the Disputed Amounts no later than ten (1o) days after their due
date. Any controversy relating to amounts owed by Customer hereunder shall
be considered a "Dispute" (defined below) and subject to the resolution
procedures provided in this Agreement. If it is determined that any Disputed
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Amounts are in fact owed to ADASC, Customer shall pay to ACS such Disputed
Amounts within five (5) days of such resolution. To the extent the provisions of
this paragraph conflict with the Florida's Prompt Payment Act or the District's
adopted dispute resolution procedures pursuant thereto, the Prompt Payment
Act and such adopted procedures shall control.
3. TERM AND TERMINATION.
3.1. Term. This Agreement shall become effective when Customer and ADASC
first execute a SOW and shall remain in effect until terminated as provided
herein ("Term").
3.2. Termination by either Party for Cause. This Agreement and/or any
individual SOW may be terminated by either Party (i) in the event the other
Party fails to cure or take reasonable steps to cure a breach of any material term
of this Agreement or any applicable SOW within ten (1o) business days of
receipt of written notice describing such breach; (ii) immediately upon the
giving of written notice by such Party in the event the other Party is adjudged
insolvent or bankrupt, or upon the institution of any proceeding against the
other Party seeking relief, reorganization, or arrangement under any laws
relating to insolvency, or upon the appointment of a receiver, liquidator, or
trustee of any of the other Party's property or assets, or upon liquidation,
dissolution, or winding up of the other Party's business.
3.3 Termination Without Cause. Either Party may terminate without cause
upon sixty (6o) days' prior written notice to the other Party. However, upon
any termination of this Agreement, ADASC shall be entitled to payment for all
Services rendered up until the effective termination of this Agreement, subject
to any amounts being under Dispute, which shall be addressed in accordance
with Section 8.3 of this Agreement.
3.4 Transition Services. ADASC shall work with the Customer to ensure a
seamless and smooth transition in the event of termination, with or without
cause, to the Customer's contracted entity ("Contracted Ent ") assisting
with the transition of the Services after termination ("Transition Services");
provided however, that ADASC shall only be required to provide such
Transition Services for a reasonable amount of time, not to exceed one (1)
month after the effective date of the termination. Upon Customer's request,
ADASC shall include as part of its Transition Services: (i) consultations with
the Contracted Entity, provided that ADASC shall be entitled to payment for
such consultations in an amount not to exceed $225 for 3 hours of work; or (ii)
migration of the entirety of Customer's website and associated applications by
ADASC to Customer's new ADA template of choice, provided ADASC shall be
entitled to payment for such migration services in an amount not to exceed
$750 for lo hours of work, which amount shall also include consultation with
Customer's Contracted Entity such that the migration of Customer's website is
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seamless and uninterrupted. If any other Transition Services are provided,
ADASC shall be reimbursed for such services at a price mutually agreed to by
the Parties. The Transition Services shall include all commercial reasonable
steps required to transfer or otherwise allow the District to continue to use the
Single Use License as provided in Section 6 herein.
4. R-EPRESENTATIONS, WARRANTIES & COVENANTS
4.1. General. The essence of this Agreement is the following: ADASC
represents, warrants, and covenants that (a) the Services shall be performed
and/or provided by qualified personnel in a professional and workmanlike
manner in accordance with website accessibility compliance industry
standards, including but not limited to the ADA and WCAG 2.o A and AA
guidelines, as may be amended, updated or changed from time to time; and (b)
the Services provided by ADASC shall not infringe, misappropriate, or
otherwise violate the intellectual property rights of any third party. Each Party
also represents and warrants that it has the full right and authority to enter into
this Agreement and perform its obligations hereunder.
4.2. Disclaimer of All Other Warranties. CUSTOMER
ACKNOWLEDGES THAT ASSESSING ACCESSIBILITY AND REMEDIATION
IS HIGHLY COMPLEX, SUBJECTIVE AND CHANGEABLE, AND AS SUCH,
ACHIEVING ABSOLUTE OR TOTAL COMPLIANCE IS DIFFICULT
WITHOUT CLEAR REGULATORY GUIDANCE. THEREFORE, ADASC
STRONGLY RECOMMENDS THAT CUSTOMER REGULARLY ENGAGE IN
HUMAN EXPERT AUDITING AND TECHNOLOGICAL AUDITING OF ITS
WEBSITE(S), APPLICATION(S), AND SERVER(S) IN ORDER TO ASSURE
THE HIGHEST POSSIBLE LEVEL OF ACCESSIBILITY, COMPLIANCE, AND
USABILITY; NEVERTHELESS CUSTOMER ACKNOWLEDGES THAT EVEN
WITH THE RECOMMENDED UTILIZATION OF BOTH TECHNOLOGICAL
AUDITING SERVICES AND ROUTINE HUMAN AUDITS, ABSOLUTE OR
TOTAL COMPLIANCE REMAINS DIFFICULT WITHOUT CLEAR
REGULATORY GUIDANCE.
4-3. Customer's Covenant of Compliance with Laws. Except for the
ADA and those laws related to accessibility as well as requirements of Chapter
189, which may be amended from time to time, and those requirements of this
Agreement, Customer is responsible for complying with applicable laws
pertaining to Customer's website, web applications, and business, including,
without limitation, tax laws, laws governing electronic commerce, and US
Export laws.
5. CONFIDENTLALITY.
5.1 Confidentiality. Customer and ADASC each agrees to hold Confidential
Information in confidence and not to disclose it to any third party without the
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prior written consent of the other party. Customer and ADASC agree to use the
Confidential Information only for the purpose of performing under this
Agreement. Further, the receiving party shall use the same degree of care it uses
with respect to its own Confidential Information to prevent the unauthorized
disclosure to a third party of any Confidential Information of the disclosing
party, but in no event less than reasonable care. As used in this Agreement,
"Confidential Information" shall mean non-public, proprietary ADASC
Material identified by ADASC to Customer as non-public and confidential, and
which is considered non-public and confidential under Chapter 119, Florida
Statutes, and other Florida law, and which is disclosed by ADASC or on its
behalf whether before, on or after the date hereof, directly or indirectly, in
writing, orally, by visual inspection or otherwise, to Customer -or any of its
employees or agents. The ADASC Theme (as defined herein) is deemed
Confidential Information. Customer Confidential Information shall mean any
material made confidential pursuant to Chapter 119, Florida Statutes. The
obligations to protect Confidential Information under this section shall not
apply to information which: (a) is or becomes publicly known through no act or
failure to act on the part of the receiving party; (b) was rightfully in the receiving
party's possession prior to disclosure by the disclosing party; (c) became
rightfully known to the receiving party, without confidentiality restrictions,
from a source other than the disclosing party; (d) is approved by the disclosing
party for disclosure; (e) is or was developed independently by the receiving
party without use of the Confidential Information and without violation of any
confidentiality restriction; (f) is required to be disclosed by law; or (g) is work
product paid for by the Customer pursuant to this Agreement and not deemed
ADASC Material hereunder.
6. INTELLECvIUAL PROPERTY.
6.1. ADASC Materials. Except as provided herein, as between the Parties,
ADASC shall retain all right, title, and interest in and to (i) all patents,
trademarks, service marks, copyrights, trade secrets, know-hows, and other
intellectual property or proprietary rights (collectively, "W') of ADASC used in
or otherwise associated with the Services provided to Customer hereunder, and
(ii) all trade secrets, technical specifications, and data to the extent they are IP
and inventions which are authored, conceived, devised, developed, reduced to
practice, or otherwise performed by ADASC, none of which shall be deemed a
"work made for hire" under the Copyright Act Of 1976 (collectively "ADASC
Materials"), and nothing contained herein shall be construed to restrict,
impair, transfer, license, convey, or otherwise alter or deprive ADASC of any of
its intellectual property or other proprietary interests associated therewith.
The ADASC Materials shall include (i) any website theme and specialized
coding for such theme authored, conceived, devised, developed, modified,
and/or reduced to practice by ADASC outside of ADASC's performance under
this Agreement (the "AIDASC Theme") and (ii) any specialized coding for the
ADASC Theme authored, conceived, devised, developed, modified, and/or
reduced to practice by ADASC under this Agreement, but shall not include any
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other website theme and the coding of such theme authored, conceived,
devised, developed, modified, and/or reduced to practice by ADASC pursuant
to an SOW or Customer as a derivative work. Subject to the foregoing, and
Customer's payment of the applicable fees set forth in an SOW, ADASC grants
Customer a non-exclusive, non -transferable worldwide perpetual limited right
and license to access and use the Deliverables and the ADASC Materials in
connection with the ordinary and intended use by Customer thereof as
provided hereunder and in the applicable SOW ("Single Use License"). The
Single Use License set forth in the immediately preceding sentence (x) includes
Customer's right to view, download, and print the Deliverables for Customer's
use, and without in any case removing ADASC's copyright, trademark, or other
intellectual property ownership notices; (y) is limited to only one Customer
website, and (z) includes Customer's right to use the ADASC Theme, in whole
or in part, to develop derivative works on Customer's one website.
Notwithstanding the Single Use License granted to Customer under this
Section, under no circumstances may the Products, Deliverables, or ADASC
Materials, or any portion thereof or any derivative work, be used as the basis
for creating a product that is intended for sale, license, or distribution to others
(regardless of whether such distribution is for profit or free) in a manner that
would compete, directly or indirectly, with ADASC in offering the Products,
Deliverables, or ADASC Materials for sale, license or distribution. Customer
has no right to distribute the ADASC Theme, whether modified or unmodified,
to any third party. The use of the Products, Deliverables and/or ADASC
Materials in contravention of the Single Use License granted under this Section
is strictly prohibited and will be deemed a material breach of this Agreement.
6.2. Customer Materials; Publicity and Trademarks. (A)
Notwithstanding anything else provided in this Agreement, Customer shall
own the website, the website's domain name and all related uniform resource
locators, and all website and application content, including without limit, all
documents, content, pictures, video, audio, and text on the website, authored,
conceived, devised, developed, modified, and/or reduced to practice by ADASC
pursuant to this Agreement, and all metadata associated therewith, created or
modified by ADASC pursuant to this Agreement and/or provided or made
available by Customer to ADASC, under all circumstances ("Customer
Materials"). In the event of a termination of this Agreement for any reason,
ADASC shall take all necessary steps to transfer, or otherwise allow the District
to retain such Customer Materials as further provided in Section 3.
(B) Notwithstanding anything provided in Section 6.2(A), the ADASC Theme
and any specialized coding for the ADASC Theme authored, conceived, devised,
developed, modified, and/or reduced to practice by ADASC under this
Agreement is ADASC Material. In the event of termination of this Agreement
for any reason, ADASC shall take all commercially reasonable steps to transfer,
or otherwise allow the District to continue to use the Single Use License granted
under Section 6.1; provided, ADASC will not continue to provide support for
the ADASC Theme as more particularly set forth in the SOW.
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(C) Additionally, to the extent applicable, ADASC shall take commercially
reasonable precautions consistent with industry standards to protect
confidential information, including, e.g., credit card information and other
sensitive information protected under Florida's Public Records Laws. ADASC
shall immediately notify the Customer of any breach or loss of data, and take
such steps as are reasonably necessary to address any such issue. Except as
provided herein, as between the Parties, Customer shall retain all right, title,
and interest in and to all IP of Customer provided or made available to ADASC
in connection with ADASC's Services (collectively in this paragraph,
"Customer IP") and nothing contained herein shall be construed to restrict,
impair, transfer, license, convey, or otherwise alter or deprive Customer of any
of its IP or other proprietary interests associated therewith, if any. Subject to
the foregoing, Customer grants ADASC a non-exclusive, non -transferable
worldwide limited right and license to access and use such Customer IP in
connection with the provision of the Services to Customer hereunder. Further,
Customer permits ADASC to identify Customer as a customer of ADASC in
ADASC's marketing materials (including using Customer's name and logo for
such limited purposes).
(D) Customer further acknowledges and agrees that for ADASC to perform the
Services, it must, in some cases, give ADASC remote access to areas behind
logins that are to be audited hereunder, including, without limitation to content
management systems and/or servers (collectively, the "System"), and agrees
that it will furnish to ADASC all necessary information and/or user names and
passwords required to do so. ADASC agrees to follow commercially reasonable
security policies for accessing Customer's System including any specific
security procedures as may be communicated to ADASC by Customer in writing
prior to ADASC accessing the System. ADASC shall on its own or through
coordination with Customer's website provider create a backup copy of all data
that may be affected by ADASC's access to the system. ADASC hereby
recognizes that all data may be a public record and therefore is required to be
retained unless otherwise directed in writing by the Customer.
6.3 Right to Display ADASC Compliance Shield / Accessibility Policy.
Customer may display an ADASC-provided compliance shield and customized
accessibility policy on its websites or web applications. The provided ADASC
compliance shield and customized accessibility policy shall remain under the
full ownership and control of ADASC. ADASC shall retain the right at any time
and in its sole discretion to withdraw its authorization to display such
compliance shield and customized accessibility policy. Customer is expressly
prohibited from using an ADASC compliance shield and customized
accessibility policy for any purpose not specifically authorized by this
Agreement or by an applicable SOW, and in no event may use such shield for
or on behalf of any other party or in connection with any domain name and/or
organization name other than those being scanned or serviced in connection
with the Services.
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6.4 Recording of Training Sessions. Customer shall not record any
training session(s) relating to the Services provided without the prior written
consent of ADASC. ADASC shall retain all intellectual property rights to the
recorded material and grants Customer a Limited License to display, share,
and/or incorporate into its own training material, the recorded material for
current and future employees of Customer. Customer shall not, including but
not limited to, display, share, assign, license, sell, or otherwise disseminate the
recorded material to any third party, including but not limited to, any parent
company, subsidiary, associated department, subdivision, affiliates,
committee, officer, board of directors, governing body, or any entity not in
direct privity of this Agreement, any recorded materials under this Limited
License.
This Limited License shall remain in effect in perpetuity, or so long as
Customer, as an entity, remains intact and has not altered its structure. In the
event of, including but not limited to, any merger, buy-out, acquisition, or any
event that may change, alter, or compromise the status of Customer, Customer
shall request and obtain a new license from ADASC prior to the continued use
of any and all recorded materials.
6.5 Derivative Works. All rights, title, copyright, and interest in all derivative
works and improvements created by, or on behalf of, Customer will be the
property of Customer. Customer shall be entitled to protect intellectual
property in all such derivative works and improvements as it may see fit,
including by seeking copyright or patent protection. Notwithstanding the
immediately preceding sentence, Customer may mark with its own copyright
notice and register copyrights in derivative works as works that constitute
original works of authorship, so long as such derivative works are identified in
such registration as based upon pre-existing works of ADASC.
7- INDEMNITY.
7.1 ADASC agrees to indemnify and hold harmless the Customer and its
officers, supervisors, staff, employees, successors, assigns, members, affiliates,
attorneys or representatives from any and all liability, claims, actions, suits,
liens, demands, costs, interest, expenses, damages, penalties, fines, or
judgments against the Customer, or loss or damage, whether monetary or
otherwise, including but not limited to an ADA website related claim by a third -
party, arising out of, wholly or in part by, ADASC's willfully reckless or willfully
negligent act or omission.
7.2 Neither Party shall be liable to the other Party for consequential damages
or lost profits pursuant to this Agreement.
7.3 Notwithstanding any provision to the contrary within this Agreement,
Customer does not waive any Sovereign Immunity or the limitations contained
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in section 768.28, Florida Statutes, or any successor statute or statutes thereto,
or other provisions of law.
8. GENERAL PROVISIONS.
8.1. Order of Precedence. The terms of this Agreement and any SOW are
intended to complement each other, and to the extent they conflict, the terms
of any SOW shall supersede conflicting terms and conditions in this Agreement,
but solely with respect to Services provided pursuant to such SOW.
8.2. Subcontractors. Unless otherwise provided in a SOW, ADASC may
provide Services hereunder through subcontractors and/or affiliates and such
subcontractors and/or affiliates shall be bound by the terms of this Agreement.
8.3. Dispute Resolution. Before initiating any legal claim or action (except
with respect to equitable relief), the Parties agree to attempt in good faith to
settle any dispute, controversy, or claim arising out of or related to this
Agreement or the Services (collectively, a "Dispute") through discussions
which shall be initiated upon written notice of a Dispute by either Party to the
other Party. If the Parties cannot resolve the Dispute within fifteen (15)
business days, then the Parties shall attempt to settle the Dispute by mediation.
If mediation is unsuccessful, the Parties may then proceed to filing a claim in
the appropriate jurisdictional court. The Parties hereby consent to the exclusive
jurisdiction of the federal and state courts in Palm Beach County, Florida for
purposes of any claims for equitable relief or claim in anyway related to this
Agreement and waive any defense of inconvenient forum or venue. The
prevailing party in any such dispute shall be entitled to claim its costs and fees
incurred in litigating any such dispute, including reasonable attorney's fees,
court, and experts' costs through all appeals.
8.4. Status. ADASC is an independent contractor and not an employee, agent
or representative of Customer. Nothing in this Agreement shall be construed as
creating an employer-employee, partnership, joint venture or agency
relationship.
8.5. Notices. Any notice required or permitted hereunder shall be in writing
and shall be deemed duly given if delivered to a Party at its address set forth in
the preamble of this Agreement (or the most recent address provided by such
Party for notice purposes) by (i) hand delivery, (ii) certified mail, postage
prepaid, return receipt requested, or (iii) recognized overnight delivery service.
A notice shall be deemed received on date of delivery, if hand delivered or
delivered by overnight delivery service (as reflected in the carrier's records), or
five (5) days from date of mailing, if mailed by certified mail.
8.6. Entire Agreement; Severability. This Agreement, together with any
SOWs, sets forth the entire agreement of the Parties, and supersedes any prior
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agreements or statements with respect to the subject matter hereof If any part
of this Agreement is determined to be invalid or unenforceable by a court of
competent jurisdiction, then the remaining provisions of this Agreement will
remain in full force and effect and the invalid or unenforceable provision will
be deemed superseded by a valid, enforceable provision that most closely
matches the intent of the original provision.
8.7. Assignment. This Agreement may not be assigned by Customer except
with the prior written consent of ADASC. ADASC may assign this Agreement
without Customer's consent to the purchaser in connection with a sale of
ADASC's business, provided the purchaser agrees to assume all obligations of
ADASC hereunder. This Agreement shall be binding upon and inure to the
benefit of the Parties' successors and lawful permitted assigns.
8.8. Amendments and Waivers. This Agreement may be amended or
modified only by a written instrument duly executed by each Party. No breach
of any term of this Agreement shall be deemed waived unless expressly waived
in writing by the Party who might assert such breach. Any failure or delay by
either Party to exercise any right, power, or privilege under the Agreement shall
not be deemed a waiver of any such right, power, or privilege under the
Agreement on that or any subsequent occasion.
8.9. Governing Law. This Agreement shall be governed by the laws of the
State of Florida, without reference to conflicts of law principles that would
cause the application of the law of any other jurisdiction.
8.1o. Force Majeure. If either Party is prevented from performing any of its
obligations under this Agreement due to any cause beyond the Party's
reasonable control, including, without limitations, an "act of God," fire, flood,
war, strike, government regulation, civil or military authority, acts or omissions
of transmitters, utilities, providers or hackers, the time for that Party's
performance will be extended for the period of the delay or inability to perform
due to such occurrence.
8.11. Survival. In addition to such other provisions hereof which, by their
terms, survive any termination or expiration of this Agreement, Section 4
(Representations, Warranties & Covenants), Section 5 (Confidentiality) as it
relates to only to the ADASC Theme, Section 6 (Intellectual Property),
including specifically the Single -Use License granted therein, Section 7
(Indemnity), subsections 8.1, 8.3, 8.5, 8.6, 8.9, 8.11, 8.12, 8.14, 8.15 and 8.16
and Customer's payment obligations under any SOW shall survive any
termination or expiration of this Agreement.
8.12 Waiver Any waiver by either Party, whether express or implied, of any
provision of this Agreement, any waiver of default, or any course of dealing
hereunder, shall not affect such Party's right to thereafter enforce such
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Agenda Item #27.
provision or to exercise any right or remedy in the event of any other default or
breach, whether or not similar.
8.13 Counterparts. By using ADASC's Services, Customer consents to have
this Agreement provided in electronic/digital form. Please print a copy of this
document for your records. This Agreement and any modification may be
executed and delivered (including by facsimile, portable document format
(.pdf) transmission, or via any online e -signature platform) in one or more
counterparts, and by each Party in separate counterparts, each of which when
executed will be deemed to be an original, and all of which taken together will
constitute one and the same Agreement.
8-14 No Construction Against the Drafter. In the interpretation of this
Agreement, the 'contra proferentem' rule of contract construction shall not
apply, this Agreement being the product of negotiations between commercially
sophisticated Parties, and therefore shall not be interpreted in favor of or
against any Party by the sole reason of the extent to which such Party or its
professional advisors participated or did not participate in the drafting of this
Agreement.
8.15 Headings. Headings included herein are for convenience only, and shall not
be used to construe or interpret this Agreement.
8.16 Public Records. (A) ADASC understands and agrees that all documents
of any kind provided to the Customer in connection with this Agreement may
be public records, and accordingly, ADASC agrees to comply with all applicable
provisions of Florida law in handling such records, including, but not limited
to, Section 119-0701, Florida Statutes. ADASC acknowledges that the
designated public records custodian for the Customer is Lori McWilliams,
Village Clerk; 561-768-0443; Imcwilliams@tequesta.org. ("Public Records
Custodian"). Among other requirements and to the extent applicable by law,
ADASC shall: 1) keep and maintain public records required by the Customer to
perform the service; 2) upon request by the Public Records Custodian, provide
the Customer with the requested public records or allow the records to be
inspected or copied within a reasonable time period at a cost that does not
exceed the cost provided in Chapter 119, Florida Statutes; 3) ensure that public
records which 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 the contract term if Contractor does
not transfer the records to the Public Records Custodian of the District; and 4)
upon completion of the contract, transfer to the Customer, at no cost, all public
records in ADASC's possession or, alternatively, keep, maintain and meet all
applicable requirements for retaining public records pursuant to Florida laws.
When such public records are transferred by ADASC, ADASC shall destroy any
duplicate public records that are exempt or confidential and exempt from
public records disclosure requirements. All records stored electronically must
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Agenda Item #27.
be provided to the District in a format that is compatible with Microsoft Word
or Adobe PDF formats.
(B) Pursuant to Article XII of the Palm Beach County Charter, the Office of the
Inspector General has jurisdiction to investigate municipal matters, review and
audit municipal contracts and other transactions, and make reports and
recommendations to municipal governing bodies based on such audits,
reviews, or investigations. All parties doing business with the Village shall fully
cooperate with the inspector general in the exercise of the inspector general's
functions, authority, and power. The inspector general has the power to take
sworn statements, require the production of records, and to audit, monitor,
investigate and inspect the activities of the Village, as well as contractors and
lobbyists of the Village in order to detect, deter, prevent, and eradicate fraud,
waste, mismanagement, misconduct, and abuses.
IF ADASC HAS QUESTIONS REGARDING THE APPLICATION OF
CHAPTER 119, FLORIDA STATUTES, TO ADASC'S DUTY TO PROVIDE
PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTACT THE
PUBLIC RECORDS CUSTODIAN AT 1
.COM, OR
IN WITNESS WHEREOF , the Parties have, by their duly authorized representatives,
executed this Master Services Agreement as of the date first set forth above.
ADA SITE COMPLIANCE, LLC
By:
Name:
Title:
By:
Name:
Title:
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