HomeMy WebLinkAboutResolution - 2011-R0463 - Contract - HOV Services Inc.- Microfilming And Scanning Services - 10/27/2011Resolution No. 2011-RO463
October 27, 2011
Item No. 5.19
RESOLUTION
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
THAT the Mayor of the City of Lubbock is hereby authorized and directed to
execute for and on behalf of the City of Lubbock, Contract No. 10378 for microfilming
and scanning services, by and between the City of Lubbock and HOV Services, Inc., and
related documents. Said Contract is attached hereto and incorporated in this resolution as
if fully set forth herein and shall be included in the minutes of the City Council.
Passed by the City Council on
ATTEST:
—Q-4'oe� - - '%
Rebec6 Garza, City Secretary ('�)
APPROVED AS TO CONTENT:
Reblea Garza, City Secret
APPROVED AS TO FORM:
Chad Weaver, Assistant City Attorney
vw:ccdocslRES.Contract-HOV Services, Inc.
September 12, 2011
October 27, 2011
TOM MARTIN, MAYOR
HO'Vservices Resolution No. 2011—RO463
Exceed Expectations
_HOV Services, Inc
MASTER SERVICES AGREEMENT
This Professional Services Agreement ("Agreement") is between HOV Services, Inc. ("HOVS") a
Delaware Corporation with its principal offices located at 1305 Stephenson Highway, Troy, Michigan 48083 and
the City of Lubbock, Texas, ("CUSTOMER"). This Agreement shall be effective on October 1, 2011(the "Effective
Date").
HOVS agrees to supply to CUSTOMER, and CUSTOMER agrees to purchase from HOVS microfilming
and scanning service pursuant to the TXMAS Contract 10-36010 and other services as may be outlined herein.
The PARTIES agree to be bound by the following Exhibits to this Agreement which are attached hereto
and incorporated herein by reference:
A. STATEMENT OF WORK, attached hereto as Exhibit A (the "SOW") and which fully and completely
describes the services (the "Services") to be provided by HOVS to CUSTOMER.
B. ASSUMPTIONS, attached hereto as Exhibit B (the "Assumptions") which form the basis for the SOW and
Pricing Schedule.
C. PRICING SCHEDULE, attached hereto as Exhibit C (the "Pricing Schedule") for the Services to be
provided to CUSTOMER.
D. STANDARD TERMS AND CONDITIONS, attached hereto as Exhibit D and which describe in detail all
responsibilities, obligations, liabilities and warranties of each party hereto.
E. INSURANCE, Exhibit E
BUSINESS ASSOCIATE AGREEMENT, Exhibit F.
The Services to be provided to CUSTOMER under this Agreement are:
Project
Repetitive
X Both Project and Repetitive
AGREED AND ACCEPTED:
Customer: City of Lubbock
1625 13'' Street
Lubbock, Texas 794
13y.
r��
Name & Title: Tom Martin, Mayor
ATTEST:
Reber a Garza, City Secretary
APPROVED AS TO CONTENT:
Reb cca Garza, City Secretary
HOV Services, Inc
1305 Stephenson H° way
Troy, Michigan 4 083
By:
Name & Title: Suresh Yannamani, President
APP V AS .ORM:
Chad Weaver, Assistant City Attorney
Customer Initials"
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Resolution No. 2011-RO463
EXHIBIT A
STATEMENT OF WORK
This SOW describes the Services to be provided by HOVS to CUSTOMER.
1. Document Shipping. HOVS will provide transportation to our facility once per month at no
charge. Additional shipments will be billed at $104 each. CUSTOMER agrees to notify
HOVS within 24 hours if the pickup schedule is to be revised or be subject to a $175
shipping fee.
2. Document Preparation. Original documents may require preparation prior to microfilming
or scanning. Preparation consists of any procedures necessary to make those documents
camera or scanner -ready. HOVS will provide normal document preparation procedures. This
does not include any special handling for fragile, torn or other poor quality pages or books.
3. Microfilming. HOVS will microfilm all documents to 16mm or 35mm film as determined
by document size. The microfilm process for 16mm film will be accomplished on Kodak
Archive Writer equipment in duo mode and have blipping to denote indexing as required by
the CUSTOMER. Large format 35mm filming will be done on a planetary camera.
Microfilm will be jacket and indexed as required by each department.
4. Microfilm Standards. HOVS will meet all Texas State Library and ANSI standards for
every microfilm roll and be processed according to Kodak certified processing standards.
Images will be accessible by a Minolta 6062 or Kodak Starvue Reader -Printer.
5. Microfilm Housing. HOVS will place original microfilm on a plastic core spool with a film
anchor and place in a cardboard box to be labeled according to CUSTOMER specifications.
6. Duplication. HOVS will produce two diazo duplicate copies of all microfilm in either roll or
fiche.
7. Scanning. HOVS will provide document or microfilm scanning services as needed by
CUSTOMER. Images will be scanned at either 200 or 300 dpi depending on the
requirements of CUSTOMER.
8. Microfiche Scanning. HOVS equipment will pre -scan fiche in order to map exact
coordinates of each image frame on the sheet to facilitate automatic scanning of microfiche.
9. Indexing. HOVS will provide indexing of images scanned from documents or microfilm.
The requirements of each indexing field will be determined by CUSTOMER and HOVS will
bill at rates per keystroke listed in pricing below.
10. CDs/DVDs. HOVS will provide all images in TIF file format with indexing in an open
architecture database format. Each disk will have software allowing the user to search, view
and print images and files. Two master copies of each disk will be provided at no additional
cost.
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11. Quality Assurance. HOVS will provide quality assurance reviews of all images and
microfilm. An error rate of 1% or less will be maintained. Any images reprocessed will be
at no cost to the CUSTOMER
12. Destruction. HOVS will arrange third party destruction according to NAID standards.
CUSTOMER agrees to provide a signed letter of destruction after positive confirmation that
the images meet the satisfaction of the CUSTOMER. This affirmation will be within 60 days
of receipt of film or images.
13. File Request. HOVS will provide access to records within Fifteen (15) minutes by fax or
Twenty Four (24) hours for an original document. Each request will be made on a
CUSTOMER File Return Form to be signed and faxed to HOVS. HOVS will note on the
City of Lubbock Microfilm Log that a file has been returned prior to completion.
14. HIPAA. HOVS has revised its Security Policies and Procedures to incorporate HIPAA
requirements. HOVS will sign a Business Associate Agreement provided by the
CUSTOMER. (Exhibit F).
15. Term of Contract. The term of this contract is October 1, 2011 through September 31, 2012
The term shall be automatically extended for three (3) additional one (1) year terms unless
either party shall give written notice of its desire to terminate the agreement at least thirty
(30) days prior to the expiration.
HOVS reserves the right to adjust pricing beyond the first year due to increases in cost. This
increase will not exceed any current TXMAS state contract pricing or 3% per year.
JEND OF EXHIBIT A]
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Resolution No. 2011-RO463
EXHIBIT B
ASSUMPTIONS
The following are the Assumptions which form the basis for the SOW and Pricing Schedule.
HOVE reserves the right to increase the Fees set forth in the Pricing Schedule if the Assumptions
are materially different than the actual operating circumstances.
1.0 Documents to include, but not limited to, CUSTOMER's Payroll, Human
Resources, City Secretary, Building Inspection, Planning & Zoning, Cemetery
and Accounting departments.
2.0 Document sizes range from 8.5X 11 to 24"X36".
3.0 Documents are in good to fair condition with good contrast and do not require any
special handling to be processed by either a automatic microfilm camera or
standard production paper scanners.
4.0 Microfilm images from 16mm and 35 mm open spool reels, Jacket l6mm and
35mm film, aperture cards and fiche.
5.0 Film is in good condition and does not require special handling or processing for
extreme issues of poor contrast, poor media or out of focus images.
6.0 HOVS assumes that each file will have indexing information readily available and
readable on the first page.
7.0 Target Imaging Systems: PVER software provided by HOVS on CDs or DVDs.
8.0 Conversion/Capture Quantities: 200,000 images per year.
9.0 Conversion/Capture Schedule: Monthly
10.0 Scanning Requirements: Documents and film at either 200 or 300 dpi as required
by the CUSTOMER to provide a good quality image comparable to the original
images on documents or film.
11.0 Output Specifications: TIP file format with access database.
12.0 Destruction/Return Schedule for Documents: All documents will be destroyed per
the Statement of work unless the CUSTOMER asks that they be returned.
13.0 HOVS will deliver quality images from readable source material. A readable
source document is defined as any document which, when reproduced on a
standard copier or microfilm reader/printer, will produce a copy upon which all
characters can be recognized and understood by visual observation.
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Resolution No. 2011-RO463
EXHIBIT C
PRICING SCHEDULE
Pursuant to TXMAS 10-36010 Contract
The prices charged for the performance of the Services and HOVE expenses to be reimbursed
(the "Fees") are as follows:
1. Price Per Image. The CUSTOMER will be invoiced monthly in accordance with the
number of images converted by HOVS. An `image' is defined as a single sided page. Two
sided documents are considered to be two images.
2. Billing. Each bill for services will be forwarded to the City Secretary of the CUSTOMER
and will include the roll numbers and/or CD numbers, the number of images on each media
for each department
3. Pricing includes all normal prep to make files ready for filming or scanning.
4. Pricing includes one trip per month for transportation.
5. Additional round trips are $100.00. Scheduled at HOVS convenience.
6. Pricing includes two copies of all CD or DVDs.
7. All paper or film scanning is done in attended mode (operator views the images as they are
scanned. If there is an issue with the image, it is rescanned on the fly.
8. HOV MICROFILM AND SCANNING PRICES:
Microfilming Processes
Duplicate 16mm roll film 100 foot rolls $ 12.25 per roll
215 foot rolls $ 16.75 per roll
Duplicate 35mm roll film $ 16.75 per roll
Duplicate jackets to fiche $ .70 per fiche
Microfilmine
16mm DAW film 300 dpi up to 8.5X14
16mm DAW film 300 dpi up to 14X19
16mm DAW film and jacketing
Jacketing Duplicate film
35mm film up to 24X36
35mm film and jacketing
Scanning
300 dpi TIF images up to 8.5X14
300 dpi TIF images up to 24X36
$ .062
per image
$ .068
per image
$ .088
per image
$ 0167
per image
$ .25
per image
$ .295
per image
$ .049 per image
$ 1.05 per image
Customer Initials
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Indexinp-
Indexing of images files $ .09 per keystroke
L 7
200 dpi PDF with hidden text single pass
$
.039
per image
300 dpi PDF with hidden text single pass
$
.048
per image
Clean-up in USA to correct words
$
35.00
per hour
Clean-up in Mexico to correct words
$
15.00
per hour
Destruction
$
1.60
per thousand
Additional Prep Services/ film file breaking
$
15.00
per hour
Microfilm Scannin
16 mm roll film 300 dpi $ .025 per image
16 mm Jacketed film 300 dpi $ .027 per image
35 mm roll film 300 dpi $ .020 per image
35 mm jacketed 300 dpi $ .132 per image
Aperture Cards 300 dpi & auto read Hollerith $ .545 per image
Optional 100% thumbnail QC $ .035 per image
Setup fee per film type $ 350.00 per form
(The $350 setup fee will be charged ONCE for each film type such as 16mm, 35mm, jackets and
aperture cards and includes project programming and testing per film type for contrast.DAW-
(Digital-TO-FILM) all pages are scanned at 300 dpi for higher duality then printed to microfilm.
[END OF EXHIBIT C1
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EXHIBIT D
TERMS AND CONDITIONS
Resolution No. 2011-80463
1. Enga e�ment. HOVS hereby agrees to perform the Services in a professional manner,
consistent with industry standards, and in accordance with and subject to the terms and
conditions of this Agreement, including without limitation all exhibits to the Agreement.
CUSTOMER hereby agrees that during the term of this Agreement (including any renewal term),
HOVE shall provide to CUSTOMER of the types of services listed in pricing.
2. Term. Unless otherwise terminated as provided herein, the term of the Agreement shall
be as follows:
(a) Project based services. As it relates to any portion of the Services that are based
on completion of a defined task ("Project Based Services"), the term of this
Agreement shall begin on the Effective Date and shall continue until all such
Project Based Services are completed and the parties have satisfied all of their
respective responsibilities and obligations with respect to such Project Based
Services hereunder.
3. Billing and Payment. CUSTOMER shall pay HOVS for the Services the Fees set forth
on the Pricing Schedule.
(a) ZERO is CUSTOMER's initial pre -payment amount. HOVE is not obligated to
begin providing the Services until it receives such payment from CUSTOMER.
(b) Invoices for the Services performed hereunder are due and payable upon receipt.
HOVS reserves the right to charge CUSTOMER the costs of collecting delinquent
accounts, including filing fees and attorney fees.
(c) CUSTOMER shall be billed for and shall be responsible for paying all federal,
state, county, local or other excise, sales or use taxes in connection with the
provision of the Services unless CUSTOMER is Tax Exempt, except for those
taxes based on HOVS'S income, or which are HOVS'S responsibility as an
employer.
(d) CUSTOMER and HOVS agree that time is of the essence for payment of all
invoices. If CUSTOMER disagrees with an invoice, CUSTOMER shall timely
pay that portion of the invoiced amount not in dispute and, within five (5) days of
the invoice date, deliver written notice to HOVS, specifying in reasonable detail
the basis of CUSTOMER's dispute. HOVS and CUSTOMER agree to meet in
good faith to discuss a resolution to CUSTOMER's dispute. If, within ten (10)
days of CUSTOMER's dispute, the parties cannot agree, HOVS and
CUSTOMER shall have the right to resort to any legal or equitable remedies
available to them under law in order to finally resolve the dispute.
4. Change in Scope.
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(a) CUSTOMER hereby acknowledges that the Fees are based upon the SOW and the
Assumptions. HOVS, therefore, reserves the right to increase the Fees if the
Assumptions are materially different than the actual operating circumstances.
(b) In the event CUSTOMER requests in writing any change in the Services after the
date hereof, then the parties will either agree to revise the SOW and Pricing
Schedule as is needed to reflect such change or, if such agreement is not reached,
the terms and conditions of the original SOW will continue to govern.
5. CUSTOMER Content.
(a) CUSTOMER represents and warrants that all content and other materials it
discloses or delivers to HOVS for use in connection with this Agreement (the
"Content") are the property of CUSTOMER, or that CUSTOMER has the rights
to disclose or deliver the Content and other materials to HOVE, and that the
Content and other materials do not infringe any copyright, trademark, trade secret,
patent or other right of any third party.
(b) CUSTOMER represents, warrants and covenant that HOV Services use of the
Content in performing the Services does not and will not infringe any copyright,
trademark, trade secret, patent or other right of any third party.
(c) HOVS shall be entitled to rely on the accuracy, truthfulness, completeness and
appropriateness of all Content. If CUSTOMER submits Content in deviation
from the agreed upon specifications or format, or which contain extraneous data,
then HOVS will notify CUSTOMER of the deviation and CUSTOMER will
either (a) remedy the deviation at its cost; or (b) direct HOVS to remedy the
deviation, and CUSTOMER will pay HOVS at HOV Services
(d) then current hourly rate for such services.
(e) CUSTOMER shall have and retain all rights, title and interests, including all
intellectual property rights, in and to Content provided by CUSTOMER to HOVS
under this Agreement.
6. Confidentiality.
(a) During the term of this Agreement, each party may have access to information
that is considered confidential by the other. This information may include, but is
not limited to, documentation, technical know-how, technical specifications,
software object code and source code, protocols, strategic business plans, results
of testing, systems, financial information, product information, methods of
operation, supplier information, and compilations of data ("Confidential
Information").
(b) Each party shall use the other party's Confidential Information only for the
purposes of this Agreement. Each party shall maintain the confidentiality of the
other party's Confidential Information in the same manner in which it protects its
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own Confidential Information of like kind, but in no event shall either party take
less than reasonable precautions to prevent the unauthorized disclosure or use of
the other party's Confidential Information.
(c) Each party is permitted to disclose the other party's Confidential Information to
its employees, contractors and other third parties on a need to know basis only,
provided that such employees, contractors and/or third parties have written or
legal confidentiality obligations to that party no less stringent than those
contained in this Agreement. Each party shall be and remain fully liable and
responsible for its employees', contractors' and/or other third parties'
unauthorized disclosure or use of the other party's Confidential Information.
(d) The confidentiality provisions of this Agreement do not apply to information that
is or becomes generally available or known to the public through no act or
omission of the receiving party; was received lawfully from a third party through
no breach of any obligation of confidentiality owed to the disclosing party; or
created by a party independently of its access to or use of the other party's
Confidential Information.
(e) Upon termination of this Agreement, each party shall return the other party's
Confidential Information and shall not use the other party's Confidential
Information for its own, or any third party's, benefit. The provisions of this
Section shall survive the termination or non -renewal of this Agreement for so
long as the Confidential Information remains confidential. In the event that either
party determines that returning or destroying the Confidential Information is
infeasible, such party shall extend the protections of the agreement to such
Confidential Information and limit further use and disclosures of such information
to those purposes that make the return or destruction infeasible for as long as such
party maintains the Confidential Information.
7. Warranties.
(a) HOVE warrants that any deliverables it produces hereunder will be in substantial
conformance with the specifications in the SOW. HOVS warrants that it shall
provide all deliverables in accordance with the time -frames and milestones in the
SOW; provided, however, that CUSTOMER timely, accurately and completely
performs all of its obligations under this Agreement.
(b) HOVS MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED,
WITH RESPECT TO THE SERVICES PROVIDED HEREUNDER, AND
EXPRESSLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY
OR FITNESS FOR ANY PARTICULAR PURPOSE OR FUNCTION.
8. CUSTOMER'S Responsibilities.
(a) CUSTOMER, not HOVS, shall have sole responsibility for the accuracy, quality,
integrity, legality, reliability, and appropriateness of all Content that CUSTOMER
provides to HOVS or that HOVS has access to, in relation to the Services. HOVS
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shall not be responsible or liable for the deletion, correction, destruction, damage,
loss or failure to store any CUSTOMER Content, or for any actions or omissions
which HOVS takes in reliance upon CUSTOMER's Content.
(b) CUSTOMER warrants that it shall timely, completely and accurately perform all
of its obligations and responsibilities under this Agreement, including, without
limitation, the timely rendering of all required decisions and approvals. Should
CUSTOMER fail to comply with this warranty, HOVS shall receive an
appropriate extension of time to provide the deliverables under this Agreement,
shall not be held responsible or liable for any resulting delay in providing
deliverables under this Agreement.
9. Limitation of Liability. Except as provided below, in no event shall either party be liable
to the other party in connection with this Agreement and/or the Services, regardless of the form
of action or theory of recovery, for any: (a) indirect, incidental, consequential, special, punitive
or exemplary damages, regardless of whether that party is aware of their possibility; (b) lost
profits, lost revenue, loss of data, lost business expectancy or business interruption losses; and/or
(c) direct damages in an amount in excess of the fees paid by CUSTOMER to HOVS under this
Agreement during the twelve (12) month period immediately preceding the event giving rise to
the claim. The limitations set forth in Section I L(a)-(d) do not apply to a party's: (1)
indemnification obligations under this Agreement; (2) violation, misappropriation or
infringement of the other party's intellectual property rights; and/or (3) gross negligence or
willful misconduct. Any claims relating to this Agreement shall be brought within one (1) year
after the party asserting the claim knew, or reasonably should have known, of the existence of
the claim.
10. Indemnification.
(a) HOVS shall defend, at its sole expense, any third party claim, demand or suit
against CUSTOMER ("Claim") alleging and/or arising out of the following, and
shall indemnify and hold CUSTOMER harmless from and against any and all
losses, liabilities, damages, fines, penalties, costs, expenses and/or fees (including
reasonable attorneys' fees) awarded or assessed against CUSTOMER in
association with the Claim., or reached through a negotiated settlement of the
Claim:
(1) that any deliverable produced by HOVS hereunder infringes a third party's
patent, copyright, trademark, trade secret or other intellectual property
right and/or violates a third party's contract or other rights;
(2) that HOVS, its employees, or subcontractors was negligent or committed
an intentional act that caused injury to a person or damage to property, or
failed to comply with any applicable law, statute, regulation or ordinance;
and/or
(3) HOVS'S breach of this Agreement, including, without limitation, any
representation or warranty set forth in this Agreement.
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(b) If a deliverable is held to be infringing, or HOVS believes that it is likely to
infringe, then HOVS shall, at its sole expense and option, either (1) procure for
CUSTOMER the fright to continue using the deliverable; or (2) replace or modify
the deliverable such that it is non -infringing but maintains substantially the same
functionality as the applicable deliverable.
(c) To the extent allowed by law, the CUSTOMER shall defend, at its sole expense,
any Claim alleging and/or arising out of the following, and shall indemnify and
hold HOVS harmless from and against any and all losses, liabilities, damages,
fines, penalties, costs, expenses and/or fees (including reasonable attorneys' fees)
awarded or assessed against HOVS in association with the Claim, or reached
through a negotiated settlement of the Claim:
(1) that any CUSTOMER Content infringes a third party's patent, copyright,
trademark, trade secret or other intellectual property right and/or violates a
third party's contract or other rights;
(2) that CUSTOMER, its employees, or contractors was negligent or
committed an intentional act that caused injury to a person or damage to
property, or failed to comply with any applicable law, statute, regulation
or ordinance; and/or
(3) CUSTOMER'S breach of this Agreement, including, without limitation,
any representation or warranty set forth in this Agreement.
(d) In order to receive the indemnification in this Section, the party seeking the
indemnification must promptly notify the other party of the assertion of the
Claim; allow the other party to retain sole and exclusive control over the defense
and/or settlement of the Claim; and cooperate with the other party, at the other
party's expense, in the defense and/or settlement of the Claim. This Section sets
forth each party's sole indemnification obligations and remedies in connection
with the Claims described above.
11. Termination. This Agreement may be terminated prior to the end of the Initial Term or
any renewal term thereof only (a) by mutual agreement of CUSTOMER and HOVE, (b) in the
event CUSTOMER materially breaches this Agreement, by HOVS upon thirty (30) days written
notice to CUSTOMER provided that CUSTOMER has not, within such thirty day (30) period,
cured such breach, or (c) in the event HOVS materially breaches this Agreement, by
CUSTOMER upon thirty (30) days written notice to HOVS provided that HOVS has not, within
such thirty (30) day period, cured such breach or (d) by the other party immediately if a party is
adjudged insolvent or bankrupt, or upon the institution of any proceedings by a party seeking
relief, reorganization or arrangement under any laws relating to insolvency, or if an involuntary
petition in bankruptcy is filed against a party and the petition is not discharged within sixty (60)
days after filing, or upon any assignment for the benefit of a party's creditors, or upon the
appointment of a receiver, liquidator or trustee of any of a party's assets, or upon the liquidation,
dissolution or winding up of a party's business.
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12. Force Majeure. Other than with respect to failure to make payments due hereunder,
neither party shall be liable under this Agreement for delays, failure to perform, damages, losses
or destruction, or malfunction of any equipment, or any consequence thereof, caused or
occasioned by, or due to fire, earthquake, flood, water, the elements, labor disputes or shortages,
utility curtailments, power failures, explosions, civil disturbances, governmental actions,
shortages of equipment or supplies, unavailability of transportation, acts or omissions of third
parties, or any other cause beyond their reasonable control, provided that the party affect by such
event shall immediately begin or resume performance as soon as practicable after the event has
been abated.
13. Independent Contractor. The relationship between HOVE and CUSTOMER is that of
independent contractor. Nothing in this Agreement shall be construed as creating a relationship
between HOVS and CUSTOMER of joint venturers, partners, employer-employee, or agent.
Neither party has the authority to create any obligations for the other, or to bind the other to any
statement, representation or document. HOVS will be responsible for all personnel it may assign
to provide Services to CUSTOMER. Personnel furnished by HOVS shall be and will remain
HOVS'S employees, and under no circumstances are they to be considered CUSTOMER'S
employees or agents. Neither federal, state nor local income or payroll tax of any kind shall be
withheld or paid by CUSTOMER on behalf of HOVS or its employees. No HOVS employees
shall participate in any benefit of CUSTOMER, including health insurance, paid vacation or
other benefit provided by CUSTOMER to its employees.
14. Notices. All notices must be in writing and sent to the individual who executed this
Agreement on the other party's behalf, either by hand delivery; messenger; certified mail, return
receipt requested; overnight courier; or by facsimile or by e-mail (with a confirming copy by
regular mail) and shall be effective when received by such party at the address listed herein or
other address provided in writing.
15. Entire Agreement. This Agreement and the Exhibits thereto, contain the entire
understanding of the parties with respect to the subject matter addressed herein and supersede,
replace and merge all prior understandings, promises, representations and agreements, whether
written or oral, relating thereto. This Agreement may not be modified except by a writing signed
by both parties. Except as expressly provided herein, the remedies accorded the parties under
this Agreement are cumulative and in addition to those provided by law, in equity or elsewhere
in this Agreement. If CUSTOMER issues a purchase order or memorandum or other instrument
covering the Services provided herein, such purchase order, memorandum or other instrument
shall be for CUSTOMER'S internal purposes only, and any and all terms and conditions
contained therein, whether printed or written, shall not vary, modify or add to the terms and
conditions of this Agreement.
16. Governing Law. The law of the state within which the Services are to be provided shall
govern the validity, construction and effect of this Agreement. In the event Services are to be
provided in more than one state, the law of the State of Texas shall govern.
17. Assignability. CUSTOMER may not assign this Agreement, in whole or in part, without
HOVS'S prior express written consent, which shall not be unreasonably withheld or delayed.
Any attempted assignment without such written consent shall be void. Subject to the foregoing,
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this Agreement will be binding upon and will inure to the benefit of the parties and their
respective successors and assigns.
18. Severability. If any provision of this Agreement is held by a court of competent
jurisdiction to be invalid or unenforceable, such provision will be enforced to the fullest extent
that it is valid and enforceable under applicable law. All other provisions of this Agreement
shall remain in full force and effect.
19. Non Waiver. Any waiver of a party's right or remedy related to this Agreement must be
in writing, signed by that party to be effective. No waiver shall be implied from a failure of
either party to exercise a right or remedy. In addition, no waiver of a party's right or remedy will
effect the other provisions of this Agreement.
20. Execution of Agreement. This Agreement may be executed in one or more counterparts,
each of which will be deemed to be an original copy of this Agreement and all of which, when
taken together, will be deemed to constitute one and the same agreement. This Agreement shall
become effective when one or more counterparts have been executed by each of the parties and
delivered to the other party. The exchange of copies of this Agreement and of signature pages by
facsimile transmission shall constitute effective execution and delivery of this Agreement as to
the parties and may be used in lieu of the original Agreement for all purposes. Signatures of the
parties transmitted by facsimile shall be deemed to be their original signatures for all purposes.
21. Third Parties. Nothing in this Agreement, express or implied, is intended to or shall be
construed to confer upon or give any person other than the parties and their respective successors
and permitted assigns, any legal or equitable right, remedy or claim under or with respect to this
Agreement.
22, Electronic Media. Customer agrees that HOVS may scan, image or otherwise convert
this Contract into an electronic format of any nature. Customer also agrees that a copy of this
Contract produced from such electronic format is legally equivalent to the original for any and
all legal purposes, including litigation. Likewise, Customer agrees that HOV Services receipt by
fax of the Contract signed by you legally binds you and such fax copy is legally equivalent to the
original for any and all purposes, including litigation.
23. Survival. All provisions of this Agreement relating to confidentiality, ownership,
indemnification, non -solicitation and limitations of liability shall survive termination or non-
renewal of this Agreement.
[END OF EXHIBIT D]
13
Detroit -630329-2
Resolution No. 241.1—RO463
EXHIBIT E
INSURANCE
SECTION A. Prior to the approval of this contract by the CUSTOMER, HOVS shall furnish a
completed Insurance Certificate, along with a copy of the additional insured endorsement, to the
CUSTOMER, which shall be completed by an agent authorized to bind the named underwriter(s)
to the coverages, limits, and termination provisions shown thereon, and which shall furnish and
contain all required information referenced or indicated thereon. THE CUSTOMER SHALL
HAVE NO DUTY TO PAY OR PERFORM UNDER THIS CONTRACT UNTIL SUCH
CERTIFICATE SHALL HAVE BEEN DELIVERED TO THE CUSTOMER.
SECTION B. The City reserves the right to review the insurance requirements of this section
during the effective period of the contract and to require adjustment of insurance coverages and
their limits when deemed necessary and prudent by the CUSTOMER based upon changes in
statutory law, court decisions, or the claims history of the industry as well as HOVS.
SECTION C. Subject to HOVS's right to maintain reasonable deductibles in such amounts as
are approved by the CUSTOMER, HOVS shall obtain and maintain in full force and effect for
the duration of this contract, and any extension hereof, at HOVS's sole expense, insurance
coverage written by companies approved to operate in the State of Texas in the following type(s)
and amount(s):
TYPE AMOUNT
Commercial General Liability insurance $300,000
General Aggregate
Product -Comp Op AGG
Persona & Adv. Injury
Automotive Liability
Any Auto 300,000
Workers Compensation
Statutory Amount
Employer's Liability or
Occupational Medical and Disability 500,000
Professional Liability 500,000
CUSTOMER shall be named as a primary additional insured on Auto/General Liability &
Waiver of subrogation in favor of CUSTOMER on all coverages.
14
Detroit -630329-2
SECTION D. REQUIRED PROVISIONS: HOVS agrees that with respect to the above
required insurance, all certificate(s) of insurance will contain and state, in writing, on the
certificate or its attachment, the following required provisions:
a. Name the CUSTOMER and its officers, employees, and elected representatives as
additional insureds, (as the interest of each insured may appear) as to all applicable
coverage;
b. Provide for notice to the CUSTOMER at the address shown below by registered mail;
c. HOVS agrees to waive subrogation against the CUSTOMER, its officers, employees, and
elected representatives for injuries, including death, property damage, or any other loss to
the extent same may be covered by the proceeds of insurance;
d. Provide that all provisions of this contract concerning liability, duty, and standard of care
together with the indemnification provision, shall be underwritten by contractual liability
coverage sufficient to include such obligations within applicable policies.
e. All copies of the Certificates of Insurance shall reference the project name or bid number
for which the insurance is being supplied.
SECTION E. NOTICES
HOVS shall notify the CUSTOMER in the event of any change in coverage and shall give such
notices not less than 30 days prior the change, which notice must be accompanied by a
replacement CERTIFICATE OF INSURANCE.
All notices shall be given to the CUSTOMER at the following address:
Marta Alvarez, Director of Purchasing & Contract Management
City of Lubbock
1625 13t" Street, Room 204
Lubbock, Texas 79401
SECTION F. Approval, disapproval, or failure to act by the CUSTOMER regarding any
insurance supplied by HOVS shall not relieve HOVS of full responsibility or liability for
damages and accidents as set forth in the contract documents. Neither shall the bankruptcy,
insolvency, or denial of liability by the insurance company exonerate HOVS from liability.
[END OF EXHIBIT El
15
Detroit -630329-2
Resolution No. 2011—RO463
EXHIBIT F
BUSINESS ASSOCIATE AGREEMENT
This BUSINESS ASSOCIATE AGREEMENT (this "Agreement") is entered into
this day of October, 2011, by and between the City of Lubbock, Texas (hereinafter
the "Covered Entity"), and HOV Services, Inc. (hereinafter the "Business Associate").
This Agreement is intended to comply with the applicable provisions of 45 CFR Parts
160 and 164, subparts A and E (the "Privacy Rules"), issued pursuant to the Health
Insurance Portability and Accountability Act of 1996, Public Law 104-191 ("HIPAA").
Business Associate recognizes that in the course of performing services for the
Covered Entity, it will have access to, create, and/or receive from the Covered Entity
Protected Health Information ("PHP'). For purposes herein, PHI shall be limited to the
information created or received from the Covered Entity or on its behalf by Business
Associate. Whenever used in this Agreement, other capitalized terms shall have the
respective meaning set forth below, unless a different meaning shall be clearly required
by the context. In addition, other capitalized terms used in this Agreement, but not
defined herein, shall have the same meaning as those terms are defined in the Privacy
Rules.
Covered Entity and Business Associate intend to protect the privacy and provide
for the security of PHI transmitted, maintained, created by, disclosed to or used by
Business Associate pursuant to this Agreement, in compliance with the Health Insurance
Portability and Accountability Act of 1996, Public Law 104-191, Title XIII of the
American Recovery and Reinvestment Act of 2009, Public Law 111-005, the regulations
promulgated thereunder by the U.S. Department of Health and Human Services, and
other applicable laws ("HIPAA"). "HITECH Act" shall mean the Health Information
Technology for Economic and Clinical Health Act, and Title XIII of Division A and Title
IV of Division B of the American Recovery and Reinvestment Act of 2009.
Definitions.
For purposes of this Agreement:
• `Business Associate" will include the Business Associate and any
successors and assigns, affiliates, subsidiaries (as applicable), and related
companies of the Business Associate that access to create or receive PHI
pursuant hereto.
• "Designated Record Set" will have the same meaning given to the term
"designated record set" in 45 C.F.R. 164.501.
• "Individual" will have the same meaning as the term "individual" in 45
C.F.R. §160.103 and will include a person who qualifies as a personal
representative in accordance with 45 C.F.R. §I64.502(g).
• "Privacy Rule" will mean the Standards for Privacy of Individually
Identifiable Health Information at 45 C.F.R. Part 160 and Part 164,
Subparts A and E.
• "Protected Health Information" will have the same meaning as the term
"protected health information" in 45 C.F.R. §160.103, limited to the
information created or received by the Business Associate from or on
behalf of the Covered Entity.
• "Representative" will include the Business Associate's managing
members (as applicable), trustees, general partners (as applicable) and
financial and legal advisors.
• "Required by Law" will have the same meaning as the term "required by
law" in 45 C.F.R. § 164.103.
• "Secretary" will mean the Secretary of the Department of Health and
Human Services or his designee.
1. Confidentiality. At all times, both during and after the termination of its
relationship with the Covered Entity for any reason, the Business Associate and its
Representatives will not use, disclose, or give others any of the Protected Health
Information in any manner whatsoever, except as provided in paragraphs 2 and 3 of this
Agreement, and will hold and maintain the Protected Health Information in confidence.
The Business Associate will ensure that appropriate safeguards are in place to prevent the
use or disclosure of the Protected Health Information otherwise than as permitted by this
Agreement.
2. Permitted Uses and Disclosures.
(a) Except as otherwise limited in this Agreement, the Business Associate may
use or disclose Protected Health Information on behalf of the Covered Entity for the
purposes set forth on Appendix A. Notwithstanding the foregoing, Covered Entity will
not request that Business Associate use or disclose Protected Health Information in any
manner that would not be permissible under the Privacy Rule if such disclosure or use
were done by the Covered Entity itself.
(b) The Business Associate further agrees to document any disclosures of
Protected Health Information by Business Associate and the information related to such
disclosures necessary to allow Covered Entity to respond to an accounting of disclosures
of Protected Health Information if requested by the Covered Entity in accordance with 45
C.F.R. §164.528, and to provide such documentation to the Covered Entity as it may
reasonably request from time to time.
(c) In the event that Business Associate maintains PHI in a Designated Record
Set, Business Associate agrees to provide access to such PHI that it maintains in a
Designated Record Set to Covered Entity so that Covered Entity may make available
such information to the Individual to whom the PHI relates in accordance with 45 CFR §
-2—
164.524. Furthermore, at the request of Covered Entity, Business Associate agrees to
make amendments to PHI that it maintains in a Designated Record Set as reasonably
directed by Covered Entity and to incorporate any amendments to PHI in accordance
with 45 CFR § 164.526.
(d) The Business Associate may disclose Protected Health Information to its
agents or subcontractors with a bona fide need to know such Protected Health
Information, but only if, prior to such disclosure, such agents or subcontractors provide
reasonable assurances that they will agree to the same restrictions and conditions that
apply to the Business Associate with respect to such Protected Health Information under
this Agreement.
3. Required Disclosures and Use. The Business Associate may disclose the
Protected Health Information revealed to it by the Covered Entity if and to the extent that
such disclosure is Required by Law or court order or as otherwise permitted by law.
Further, the Business Associate agrees to make its internal practices, books, and records,
including policies and procedures, relating to the use and disclosure of Protected Health
Information received from, or created or received by the Business Associate on behalf of
the Covered Entity available to the Secretary, as reasonably requested by the Covered
Entity or designated by the Secretary, for purposes of the Secretary determining the
Covered Entity's compliance with the Privacy Rule, subject to any applicable legal
privilege.
4. Required Notice to the Business Associate. In accordance with 45 C.F.R.
§ 164.520, and to the extent that such a limitation may affect the Business Associate's use
or disclosure of Protective Health Information, the Covered Entity will notify the
Business Associate of any limitation(s) in its notice of privacy practices of the Covered
Entity, including, without limitation, any changes in, or revocation of, permission by an
Individual to use or disclose Protected Health Information. Covered Entity will also
notify the Business Associate of any restriction to the use or disclosure of Protected
Health Information that Covered Entity has agreed to in accordance with 45 C.F.R. §
164.522, to the extent that such restriction may affect the Business Associate's use or
disclosure of Protected Health Information.
5. Required Notice to the Covered Entity. The Business Associate will report to the
Covered Entity any use or disclosure of Protected Health Information by Business
Associate or its Representatives otherwise than as provided by this Agreement within ten
(10) days of becoming aware of such use or disclosure.
6. Electronic Data Interchange. In the event that Business Associate conducts any
Transactions on behalf of Covered Entity it will comply with the provisions of the
Standards for Electronic Transactions Rule (as set forth in 45 CFR Parts 160 and 162)
when it conducts such Transactions. Notwithstanding the provisions of Section 8. 1,
Business Associate will not comply with the Standards for Electronic Transactions Rule
until October 16, 2003.
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7. Term/Termination.
7.1 Term. This Agreement shall be effective as of the date set forth above, and
shall terminate as provided in Section 7.2.
7.2 Termination for Cause. Upon Covered Entity's knowledge of a material
breach of this Agreement by Business Associate, the Covered Entity shall either:
(1) Provide an opportunity for Business Associate to cure the breach or
end the violation and terminate this Agreement and any agreement
between the parties with respect to the services set forth on Appendix
A if Business Associate does not cure the breach or end the violation
within the time specified by the Covered Entity; or
(2) Immediately terminate this Agreement any agreement between the
parties with respect to the services set forth on Appendix A if
Business Associate has breached a material term of this Agreement
and cure is not possible; or
(3) If neither termination nor cure is feasible, Covered Entity shall report
the violation to the Secretary.
8.3 Effect of Termination.
(I) Upon termination of this Agreement, for any reason, Business
Associate shall return or destroy all Protected Health Information
received from Covered Entity, or created or received by Business
Associate on behalf of Covered Entity. This provision shall apply to
Protected Health Information that is in the possession of
subcontractors or agents of Business Associate and Business
Associate shall retain no copies of the Protected Health Information.
(2) In the event that Business Associate determines, in its sole discretion,
that returning or destroying the Protected Health information is
infeasible, Business Associate shall provide to Covered Entity
notification of the conditions that make return or destruction
infeasible. In the event that Business Associate determines that return
or destruction of the Protected Health Information is infeasible,
Business Associate will continue to extend the protections of this
Agreement to such Protected Health Information and limit further
uses and disclosures of such Protected Health Information to those
purposes that make the return or destruction infeasible, for so long as
the Business Associate maintains such Protected Health Information.
-4—
8. No Third Party Beneficiaries. Nothing express or implied in this Agreement is
intended to confer, nor shall anything herein confer, upon any person other than Covered
Entity, Business Associate and their respective successors or assigns, any rights, remedies
or obligations whatsoever.
9. Successors and Assigns. This Agreement and each party's obligations hereunder
will be binding on the representatives, assigns, and successors of such party and will
inure to the benefit of the assigns and successors of such party; provided, however, that
the rights and obligations of the Business Associate hereunder are not assignable.
10. Notices. All notices, requests, consents and other communications hereunder will
be in writing, will be addressed to the receiving party's address set forth below or to such
other address as a party may designate by notice hereunder, and will be either (i)
delivered by hand, (ii) made facsimile transmission, (iii) sent by overnight courier, or (iv)
sent by registered or certified mail, return receipt requested, postage prepaid.
If to the Covered Entity
If to the Business Associate:
Rebecca Garza, City Secretary
P. Q. 2000
1625 13th Street
Lubbock, TX 79457
Jerry Haltom, Account Executive
1305 Stephonson Highway
Troy, Michigan 48083
11. Entire Agreement. This Agreement, including the appendices hereto, embodies
the entire agreement and understanding between the parties hereto with respect to the
subject matter hereof and supersedes all prior oral or written agreements and
understandings relating to the subject matter hereof. No statement, representation,
warranty, covenant or agreement of any kind not expressly set forth in this Agreement
will affect, or be used to interpret, change or restrict, the express terms and provisions of
this Agreement.
12. Modifications and Amendments. The terms and provisions of this Agreement
may be modified or amended only by written agreement executed by the parties hereto
and any such amendment will comply with the requirements of the Privacy Rule and the
Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191.
13. Severability. The parties intend this Agreement to be enforced as written.
However, (i) if any portion or provision of this Agreement will to any extent be declared
illegal or unenforceable by a duly authorized court having jurisdiction, then the
remainder of this Agreement, or the application of such portion or provision in
-5—
circumstances other than those as to which it is so declared illegal or unenforceable, will
not be affected thereby, and each portion and provision of this Agreement will be valid
and enforceable to the fullest extent permitted by law; and (ii) if any provision, or part
thereof, is held to be unenforceable because of the duration of such provision, the
Covered Entity and the Business Associate agree that the court making such
determination will have the power to reduce the duration of such provision, and/or to
delete specific words and phrases, and in its reduced form such prevision will then be
enforceable and will be enforced.
14. Interpretation. The parties hereto acknowledge and agree that both (i) the rule of
construction to the effect that any ambiguities are resolved against the drafting party and
(ii) the terms and provisions of this Agreement, will be construed fairly as to all parties
hereto and not in favor of or against a party, regardless of which party was generally
responsible for the preparation of this Agreement.
15. Headings and Captions. The headings and captions of the various subdivisions of
this Agreement are for convenience of reference only and will in no way modify, or
affect the meaning or construction of any of the terms or provisions hereof.
16. filo Waiver of Rights, Powers and Remedies. No failure or delay by a party
hereto in exercising any right, power or remedy under this Agreement, and no course of
dealing between the parties hereto, will operate as a waiver of any such right, power or
remedy of the party. No single or partial exercise of any right, power or remedy under
Ns Agreement by a party hereto, nor any abandonment or discontinuance of steps to
enforce any such right, power or remedy, will preclude such party from any other or
further exercise thereof or the exercise of any other right, power or remedy hereunder.
The election of any remedy by a party hereto will not constitute a waiver of the right of
such party to pursue other available remedies. No notice to or demand on a party not
expressly required under this Agreement will entitle the party receiving such notice or
demand to any other or further notice or demand in similar or other circumstances or
constitute a waiver of the rights of the party giving such notice or demand to any other or
further action in any circumstances without such notice or demand. The terms and
provisions of this Agreement may be waived, or consent for the departure therefrom
granted, only by written document executed by the party entitled to the benefits of such
terms or provisions. No such waiver or consent will be deemed to be or will constitute a
waiver or consent with respect to any other terms or provisions of this Agreement,
whether or not similar. Each such waiver or consent will be effective only in the specific
instance and for the purpose for which it was given, and will not constitute a continuing
waiver or consent.
17. Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the State of Texas.
18. Counterparts. This Agreement may be signed in counterparts, which together will
constitute one agreement.
M
IN WITNESS WHEREOF, the parties have caused this Agreement to be signed
by their duly authorized representatives or officers, effective as of the date first listed
above in the preamble to this Agreement.
COVERED ENTITY:
City of Lubbock, Texas
B 0'cwt
Rebecca Oarza, City Secretary
BUSINESS AS OCIATE:
HOV Services Inc.
B .�
Authorized Signature
res6 Ya ii t yum"Pe-- li ek*
Print Name and Title
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APPENDIX A
Letter of Engagement and Contract
-8—