HomeMy WebLinkAboutbocc.con.105.248/30/2021 CDD
Contract Information
Contract Number
Project Name
Contractor
Budget Line Item 10022100.531000
Procurement Method:
Type:
Contract Start Date
Contract End Date
Contract Type
Retainage
If this is a new contractor, please enter the New Vendor information into Munis for workflow approval.
Contact Information:
Department
County Representative Carrie Labbe County Representative
Phone (970) 319-2513
Provide a brief description of the Contract or Change Order:
Contract Value Summary:
$ 70,000.00
$ -
$ -
$ 70,000.00
105.24
Pitkin County
Procurement Cover Sheet
Please complete the Contract Cover Sheet when the contract/task order is complete and fully executed.
Return all Contract Cover Sheets and Contracts/Change Orders/Amendments/Task Orders to Procurement
No
Accessibility and Compliance Services
Be Accessible
$ 70,000.00
Additional Budget Line
Item(s)
(Please fully allocate New Contract Total)
$ -
$ -
$ -
$ 70,000.00
Outside Agency
Services/Maintenance
5/1/2024
8/31/2024
New Contract
BITS
Outside Agency Contract for accessibility and compliance services. See Attachment "A" for Pitkin County's
services agreement. See Attachment "B" for City of Englewood and Be Accessible's service agreement.
Original Contract Amount
Previous Change Order/Amendment Amount
This Change order/Amendment amount
Contract Total
Rev. 2022.08.04 CDD OUTSIDE AGENCY/COOPERATIVE BID MEMORANDUM
TO: File
FROM: Carrie Labbe, Director of Information Technology RE: Be Accessible DATE: April 10, 2024
OUTSIDE AGENCY and/or COOPERATIVE BID
At the procurement officer’s discretion, a contract may be awarded for a property, service, or construction item on the terms and to the contractor that has been selected under the State of
Colorado's or other governmental jurisdiction’s competitive procurement process. The other jurisdiction’s process must maintain the spirit of the County’s procurement standards in order for the proposal to be accepted by the County (Pitkin County Procurement Code section 3-106.)
Contract #: 105.24
Budget: $70,000.00
Description of Project: Accessibility and Compliance Services
Outside Agency/Cooperative Procurement process used: (Include a copy of the outside agency bid with
the Contract file.): City of Englewood and Be Accessible Services Agreement (See Attachment B)
Vendor Name: Be Accessible Inc.
_________________________________________________
!#DEPARTMENT REPRESENTATIVE#! Date
RECOMMENDED FOR APPROVAL:
________________________________________________
COUNTY MANAGER:
________________________________________________ !#COUNTY MANAGER#! Date
Carrie Labbe
Apr-11-2024
Director of Information Technology
Apr-11-2024
Rich Englehart
Deputy County Manager
Apr-15-2024
CEO
David Gevorkian
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Accessibility and Compliance Services Agreement
This Services Agreement (this “Agreement”), dated as of April 2nd, 2024 (the “Effective Date”), is
by and between Be Accessible Inc., a California corporation with offices at 611 Wilshire Blvd. 9th
Floor #55, Los Angeles, CA 90017 (“Service Provider”) and Pitkin County, (“Customer”) with offices at 530 E. Main St., Aspen, CO 81611, and together with Service Provider, the “Parties”, and
each a “Party”.
WHEREAS Service Provider has the capability and capacity to provide certain services related to
accessibility and compliance with the Americans with Disabilities Act (“ADA”); and
WHEREAS Customer desires to retain Service Provider to provide the said services, and Service
Provider is willing to perform such services under the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set
forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Service Provider and Customer agree as follows:
1. Services. Service Provider shall provide to Customer the services (the “Services”) set out in one
or more statements of work to be issued by Customer and accepted by Service Provider (each, a
“Statement of Work”). The initial Statement of Work that is hereby acknowledged and agreed to by the Customer is attached hereto as Appendix A. Additional Statements of Work shall be
deemed issued and accepted only if signed by the Service Provider Contract Manager and the
Customer Contract Manager, appointed pursuant to Section 2.1(a) and Section 3.1, respectively.
2. Service Provider Obligations. Service Provider shall:
2.1 Designate employees or contractors that it determines, in its sole discretion, to be capable
of filling the following positions:
(a) A primary contact to act as its authorized representative with respect to all matters pertaining to this Agreement (the “Service Provider Contract Manager”).
(b) A number of employees or contractors that it deems sufficient to perform the Services
set out in each Statement of Work, (collectively, with the Service Provider Contract Manager, “Provider Representatives”)
2.2 Maintain complete and accurate records relating to the provision of the Services under this
Agreement.
3. Customer Obligations. Customer shall:
3.1 Designate one of its employees to serve as its primary contact with respect to this Agreement and to act as its authorized representative with respect to matters pertaining to
this Agreement (the “Customer Contract Manager”), with such designation to remain in
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force unless and until a successor Customer Contract Manager is appointed. 3.2 Require that the Customer Contract Manager respond promptly to any reasonable requests
from Service Provider for instructions, information, or approvals required by Service
Provider to provide the Services, subject to the terms of any applicable Statement of Work.
3.3 Cooperate with Service Provider in its performance of the Services and provide access to
Customer’s premises, information, employees, contractors, and equipment as required to enable Service Provider to provide the Services.
3.4 Take all steps necessary, including obtaining any required licenses or consents, to prevent
Customer-caused delays in Service Provider’s provision of the Services.
4. Fees and Expenses.
4.1 In consideration of the provision of the Services by the Service Provider and the rights granted to Customer under this Agreement, Customer shall pay the fees set out in [Service
Provider’s then current fee schedule/the applicable Statement of Work]. Payment to Service
Provider of such fees and the reimbursement of expenses pursuant to this Section 4 shall
constitute payment in full for the performance of the Services.
4.2 Customer shall reimburse Service Provider for all reasonable expenses incurred in
accordance with the Statement of Work, within ten (10) days of receipt by the Customer of
an invoice from Service Provider accompanied by receipts and reasonable supporting documentation.
4.3 Customer shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on
any amounts payable by Customer hereunder; provided, that, in no event shall Customer
pay or be responsible for any taxes imposed on, or regarding, Service Provider’s income,
revenues, gross receipts, personnel, or real or personal property or other assets.
4.4 Except for invoiced payments that the Customer has successfully disputed, all late payments
shall bear interest at the lesser of the rate of 5% per month or the highest rate permissible
under applicable law, calculated daily and compounded monthly. Customer shall also reimburse Service Provider for all costs incurred in collecting any late payments, including,
without limitation, attorneys’ fees. In addition to all other remedies available under this
Agreement or at law (which Service Provider does not waive by the exercise of any rights
hereunder), Service Provider shall be entitled to suspend the provision of any Services if the Customer fails to pay any amounts/fees when due hereunder and such failure continues for
three (3) days following written notice thereof.
5. Limited Warranty and Limitation of Liability.
5.1 Service Provider warrants that it shall perform the Services:
(a) In accordance with the terms and subject to the conditions set out in the respective Statement of Work and this Agreement.
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(b) Using personnel of required skill, experience, and qualifications.
(c) In a timely, workmanlike, and professional manner in accordance with generally
recognized industry standards for similar services.
5.2 Service Provider’s sole and exclusive liability and Customer’s sole and exclusive remedy for breach of this warranty shall be as follows:
(a) Service Provider shall use reasonable commercial efforts to promptly cure any such
breach; provided, that if Service Provider cannot cure such breach within a reasonable time (but no more than thirty (30 days) after Customer’s written notice of such breach,
Customer may, at its option, terminate the Agreement by serving written notice of
termination in accordance with Section 8.2.
(b) In the event the Agreement is terminated pursuant to Section 5.2(a) above, Service
Provider shall within thirty (30) days after the effective date of termination, refund to
Customer any fees paid by the Customer as of the date of termination for the Service or Deliverables (as defined in Section 6 below), less a deduction equal to the fees for
receipt or use of such Deliverables or Service up to and including the date of
termination on a pro-rated basis.
(c) The foregoing remedy shall not be available unless Customer provides written notice of
such breach within 5 days after delivery or provision of such Service or Deliverable to
Customer.
5.3 SERVICE PROVIDER MAKES NO WARRANTIES EXCEPT FOR THAT
PROVIDED IN SECTION 5.1, ABOVE. ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, ARE EXPRESSLY DISCLAIMED.
6. Intellectual Property. All intellectual property rights, including copyrights, patents, patent
disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names
and domain names, together with all of the goodwill associated therewith, derivative works and
all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work
product and other materials that are delivered to Customer under this Agreement or prepared by or on behalf of the Service Provider in the course of performing the Services, including any
items identified as such in the Statement of Work (collectively, the “Deliverables”) except for
any Confidential Information of Customer or customer materials, provided that each has been
identified as such in writing by the Customer notwithstanding the provisions of Section 7.1 hereof, shall be owned by Service Provider. Upon the receipt of payment of any and all fees set
out in the applicable Statement of Work, provided that Customer has complied with all of the
terms and obligations of this Agreement, Service Provider hereby grants Customer a license to
use all Intellectual Property Rights in the Deliverables free of additional charge and on a non-exclusive, , non-transferable, non-sublicensable, fully paid-up, royalty-free and perpetual basis to
the extent necessary to enable Customer to make reasonable use of the Deliverables and the
Services.
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7. Confidentiality.
7.1 From time to time during the Term of this Agreement, either Party (as the “Disclosing
Party”) may disclose or make available to the other Party (as the “Receiving Party”), non-
public, proprietary, and confidential information of Disclosing Party, including but not
limited to this Agreement and the terms hereof, that, if disclosed in writing or other tangible form either should be known or understood to be confidential or proprietary by a person
exercising reasonable commercial judgement in the circumstances, is clearly labeled as
“confidential,” or if disclosed orally, is identified as confidential when disclosed, is
summarized in writing and confirmed as confidential (”Confidential Information”); provided, however, that Confidential Information does not include any information that: (a)
is or becomes generally available to the public other than as a result of Receiving Party’s
breach of this Section 7; (b) is or becomes available to the Receiving Party on a non-
confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in Receiving Party’s
possession prior to Disclosing Party’s disclosure hereunder; or (d) was or is independently
developed by Receiving Party without using any Confidential Information. The Receiving
Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would
protect its own Confidential Information, but in no event with less than a commercially
reasonable degree of care; (y) not use the Disclosing Party’s Confidential Information, or
permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information
to any person or entity, except to the Receiving Party’s Group who reasonably need to
know the Confidential Information to assist the Receiving Party, or act on its behalf, to
exercise its rights or perform its obligations under this Agreement.
7.2 If the Receiving Party is required by applicable law or legal process to disclose any
Confidential Information, it shall, prior to making such disclosure, use commercially
reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party’s sole cost and expense, a protective order
or other remedy. For purposes of this Section 7 only, Receiving Party’s Group shall mean
the Receiving Party’s affiliates and its or their employees, officers, directors, shareholders,
partners, members, managers, agents, independent contractors, service providers, sublicensees, subcontractors, attorneys, accountants, and financial advisors.
8. Term, Termination, and Survival.
8.1 This Agreement shall commence as of the Effective Date and shall continue thereafter until
the earlier of the payment of all fees and amounts due for the completion of the Services
under all applicable Statements of Work and a period of one (1) year unless sooner
terminated pursuant to Section 8.2 or Section 8.3.
8.2 Either Party may terminate this Agreement, effective upon written notice to the other Party
(the “Defaulting Party”) if the Defaulting Party:
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(a) Materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such
breach within 30 days after receipt of written notice of such breach.
(b) Becomes insolvent or admits its inability to pay its debts generally as they become due.
(c) Becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within five (5) business
days or is not dismissed or vacated within thirty (30) business days after filing.
(d) Is dissolved or liquidated or takes any corporate action for such purpose.
(e) Makes a general assignment for the benefit of creditors.
(f) Has a receiver, trustee, custodian, or similar agent appointed by order of any court of
competent jurisdiction to take charge of or sell any material portion of its property or
business.
8.3 Notwithstanding anything to the contrary in Section 8.2(a), Service Provider may terminate
this Agreement before the expiration date of the Term on written notice (including via email) if Customer fails to pay any amount when due hereunder: (a) and such failure
continues for three (3) business days after Customer’s receipt of written notice (including via email) of nonpayment; or (b) more than two (2) times in any three (3) month period;
8.4 The rights and obligations of the parties set forth in this Section 8.4 and any right or
obligation of the parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this
Agreement.
9. Limitation of Liability
9.1 IN NO EVENT SHALL SERVICE PROVIDER BE LIABLE TO CUSTOMER OR TO
ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS
OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL,
INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING
NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH
DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SERVICE PROVIDER
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY
OF ITS ESSENTIAL PURPOSE.
9.2 IN NO EVENT SHALL SERVICE PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING
OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING
NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS
PAID TO SERVICE PROVIDER PURSUANT TO THIS AGREEMENT AND
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PURSUANT TO THE APPLICABLE STATEMENT OF WORK IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
10. Entire Agreement. This Agreement, including and together with any related Statements of Work,
exhibits, schedules, attachments and appendices, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and
contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter. The parties acknowledge and agree that if there is any
conflict between the terms and conditions of this Agreement and the terms and conditions of any related Statement of Work, the terms and conditions of this Agreement shall supersede and
control unless otherwise explicitly provided in the related Statement of Work.
11. Notices. All notices, requests, consents, claims, demands, waivers and other communications under this Agreement (each, a “Notice”, and with the correlative meaning “Notify”) must be in
writing and addressed to the other Party at its address set forth below (or to such other address, including an email address, that the receiving Party may designate from time to time in
accordance with this Section). Unless otherwise agreed herein, all Notices must be delivered by personal delivery, nationally recognized overnight courier or certified or registered mail (in each
case, return receipt requested, postage prepaid) except for electronic mail (email). Except as otherwise provided in this Agreement, a Notice is effective only (a) on receipt by the receiving
Party; and (b) if the Party giving the Notice has complied with the requirements of this Section 11.
Notice to Customer:
530 E. Main St., Aspen, CO 81611
Attention: Carrie Labbe, IT Director
Notice to Service Provider:
611 Wilshire Blvd Suite 9th Floor #55, Los
Angeles CA 90017
Attention: David Gevorkian, CEO
12. Severability. If any term or provision of this Agreement is found by a court of competent
jurisdiction to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or
render unenforceable such term or provision in any other jurisdiction; provided, however, that if any fundamental term or provision of this Agreement. Upon a determination that any term or
provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to, or the court may, modify this Agreement to affect the original intent of the Parties as closely as
possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
13. Amendments. No amendment to or modification of or rescission, termination or discharge of
this Agreement is effective unless it is in writing, identified as an amendment to or rescission,
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termination or discharge of this Agreement and signed by an authorized representative of each Party.
14. Waiver. No waiver by any Party of any of the provisions of this Agreement shall be effective
unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or
privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
15. Assignment. Customer shall not assign, transfer, delegate or subcontract any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Service
Provider. Any purported assignment or delegation in violation of this Section 15 shall be null
and void. No assignment or delegation shall relieve the Customer of any of its obligations under
this Agreement. Service Provider may assign any of its rights or delegate any of its obligations to any affiliate or to any person acquiring all or substantially all of service provider’s assets without
customer’s consent.
16. Successors and Assigns. This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns.
17. Relationship of the Parties. The relationship between the parties is that of independent contractors. The details of the method and manner for performance of the Services by Service
Provider shall be under its own control, Customer being interested only in the results thereof.
The Service Provider shall be solely responsible for supervising, controlling and directing the
details and manner of the completion of the Services. Nothing in this Agreement shall give the Customer the right to instruct, supervise, control, or direct the details and manner of the
completion of the Services. The Services must meet the Customer’s final approval and shall be
subject to the Customer’s general right of inspection throughout the performance of the
Services and to secure satisfactory final completion. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise,
employment or fiduciary relationship between the parties, and neither party shall have authority
to contract for or bind the other party in any manner whatsoever.
18. No Third-Party Beneficiaries. This Agreement benefits solely the Parties to this Agreement and
their respective permitted successors and assigns and nothing in this Agreement, express or
implied, confers on any other Person any legal or equitable right, benefit or remedy of any
nature whatsoever under or by reason of this Agreement.
19. Choice of Law. This Agreement and all related documents including all exhibits attached hereto, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort,
or statute are governed by, and construed in accordance with, the laws of the State of California, United States of America, without giving effect to the conflict of law’s provisions thereof to the
extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of California.
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20. Dispute Resolution.
20.1 Exclusive Dispute Resolution Mechanism. The Parties shall resolve any dispute,
controversy, or claim arising out of or relating to this Agreement, or the breach,
termination or invalidity hereof (each, a “Dispute”), under the provisions of Sections 20
through 21. The procedures set forth in Sections 20 through 21 shall be the exclusive
mechanism for resolving any Dispute that may arise from time to time and Sections 20.2
through 20.3 are express conditions precedent to litigation of the Dispute.
20.2 Negotiations. A party shall send written notice to the other party of any Dispute (“Dispute Notice”). The Parties shall first attempt in good faith to resolve any Dispute set
forth in the Dispute Notice by negotiation and consultation between themselves, including not fewer than 2 negotiation sessions attended by the Service Provider Contract
Manager for Service Provider and by the Customer Contract Manager for the Customer or such other persons of equivalent or superior position designated by each Party
respectively. In the event that such Dispute is not resolved on an informal basis within 10 business days after one Party delivers the Dispute Notice to the other party, whether the
negotiation sessions take place or not, either Party may, by written notice to the other Party (”Escalation to Executive Notice”), refer such Dispute to the executives of each
Party set forth below (or to such other person of equivalent or superior position designated by such Party in a written notice to the other Party) (“Executive(s)”).
Executive of Customer:
Carrie Labbe, IT Director
530 E. Main St., Aspen, CO 81611
Email: carrie.labbe@pitkincounty.com
Executive of Service Provider:
David Gevorkian, CEO
611 Wilshire Blvd, 9th Floor #55
Los Angeles CA 90017
Email: david@beaccessible.com
If the Executives cannot resolve any Dispute during the time period ending 15 business days
after the date of the Escalation to Executive Notice (the last day of such time period, the
“Escalation to Mediation/Arbitration Date”), either Party may initiate mediation under Section 21.3 of arbitration under section 21.4 hereof.
20.3 Mediation
(a) Subject to Section 21.2, the Parties may, at any time after the Escalation to Mediation
Date, submit the Dispute to any mutually agreed to mediation service for mediation by
providing to the mediation service a joint, written request for mediation, setting forth
the subject of the dispute and the relief requested. The Parties shall cooperate with one
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another in selecting a mediation service, and shall cooperate with the mediation service and with one another in selecting a neutral mediator and in scheduling the mediation
proceedings. The Parties covenant that they will use commercially reasonable efforts in
participating in the mediation. The Parties agree that the mediator’s fees and expenses
and the costs incidental to the mediation will be shared equally between the parties.
(b) The Parties further agree that all offers, promises, conduct, and statements, whether
oral or written, made in the course of the mediation by any of the Parties, their agents,
employees, experts, and attorneys, and by the mediator and any employees of the mediation service, are confidential, privileged, and inadmissible for any purpose,
including impeachment, in any litigation, arbitration or other proceeding involving the
parties, provided that evidence that is otherwise admissible or discoverable shall not be
rendered inadmissible or non-discoverable as a result of its use in the mediation.
20.4 Arbitration
(a) Either Party may submit the Dispute for final and binding arbitration in the State of California, before a single arbitrator who shall be a retired California Superior Court
Judge, a retired California Appellate Court or Supreme Court Justice, or a retired Federal Court Judge or Justice.
(b) If the parties are unable to agree to an arbitrator, the arbitration shall be submitted to
JAMS, Inc., dba JAMS – The Resolution Experts, pursuant to its then-current Arbitration Rules and Procedures (“Rules”), with the exception of any optional rules
not expressly provided for herein or agreed to by Employee and Company. If the parties are unable to agree on a retired judge from the JAMS panel, the arbitrator shall
be selected from JAMS’ panel pursuant to JAMS’ procedures.
(c) This agreement to arbitrate claims is governed by and enforceable under the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”). If for any reason the FAA is held not to
apply to this agreement to arbitrate or any portion of it, the agreement to arbitrate shall, to that extent, be governed by and enforceable under the California Arbitration Act,
California Code of Civil Procedure §§ 1280 et seq. Each party shall bear its, his or her own arbitration costs, attorneys’ fees, expert fees, and other expenses associated with
the preparation for and presentation of that party’s case in the arbitration, except that following issuance of the arbitration award, the arbitrator shall have authority to award
costs (including arbitration fees) and attorneys’ fees to the prevailing party to the same extent as would be permissible in a civil action in the state or federal court having
jurisdiction of the claim(s) asserted in the arbitration.
20.5 Litigation as a Final Resort. If the Parties cannot resolve any Dispute for any reason, including, but not limited to, the failure of either Party to agree to enter into mediation,
agree to any settlement proposed by the mediator, or submit the Dispute for arbitration, within 30 days after the Escalation to Mediation/Arbitration Date, either Party may file
suit in a court of competent jurisdiction in accordance with the provisions of Section 22 hereof.
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21. Choice of Forum. Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding of any kind whatsoever against the other Party in any way
arising from or relating to this Agreement, including all exhibits, schedules, attachments and
appendices attached to this Agreement, and all contemplated transactions, including contract,
equity, tort, fraud and statutory claims, in any forum other than the courts located in the State of California. Each Party agrees that a final judgment in any such action, litigation, or proceeding is
conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law.
22. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an
original, but all of which together are deemed to be one and the same agreement.
Notwithstanding anything to the contrary in Section 11, a signed copy of this Agreement
delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
23. Force Majeure. The Service Provider shall not be liable or responsible to Customer, nor be
deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by
or results from acts or circumstances beyond the reasonable control of Service Provider including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental
actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or
other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials,
materials or telecommunication breakdown or power outage, (each of the foregoing a “Force Majeure Event”), provided that, if the event in question continues for a continuous period in
excess of thirty (30) days, Customer shall be entitled to give notice in writing to Service Provider to terminate this Agreement.
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Appendix A
Statement of Work
SOW Number: 1
This Statement of Work (“SOW”), adopts and incorporates by reference the terms and conditions
of the master Accessibility and Compliance Services Agreement (“Master Agreement”), which was entered into on April 2nd, 2024, between Be Accessible Inc., a California corporation with offices at
611 Wilshire Blvd. 9th Floor #55, Los Angeles, CA 90017 (“Service Provider”) and Pitkin County,
with offices at 530 E. Main St., Aspen, CO 81611 (“Customer”), and together with Service
Provider, the “Parties”, and each, a “Party”). This SOW is effective beginning on April 8th, 2024 (“Effective Date”) and will remain in effect until June 10th, 2024 (“Expiration Date”), unless
earlier terminated in accordance with the Master Agreement. Transactions performed under this
SOW will be conducted in accordance with and be subject to the terms and conditions of this SOW
and the Master. Capitalized terms used but not defined in this Statement of Work shall have the meanings set out in the Master Agreement.
1. Defined Terms. For purposes of this SOW, the following terms shall have the following meanings:
“ADA compliant” shall mean conforming to the web accessibility standards established by the
U.S. Congress in the Section 508 Amendment to the Rehabilitation Act of 1973
“ADA standards” shall refer to the Americans with Disabilities Act Standards for Accessible Design, which states that all electronic and information technology (like websites) must be
accessible to people with disabilities.
“JAWS” shall refer to a computer screen reader program for Microsoft Windows that allows blind and visually impaired users to read the screen either with a text-to-speech output or by a
refreshable Braille display.
“NVDA” shall refer to NonVisual Desktop Access, which is a free, open-source, portable screen reader for Microsoft Windows
“WCAG” shall refer to The Web Content Accessibility Guidelines that are a part of a series of
web accessibility guidelines published by the Web Accessibility Initiative of the World Wide Web Consortium, the main international standards organization for the Internet.
“VoiceOver” shall refer to a screen reader built into Apple Inc.'s macOS, iOS, tvOS, watchOS,
and iPod operating systems, which is used to allow a user to access their Macintosh or iOS
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device based on spoken descriptions and, in the case of the Mac, the keyboard.
2. Scope of Work.
Service Provider shall: (a) complete a full WCAG 2.2 AA audit of the websites using auditors and visually impaired;
(b) identify barriers to accessibility that may exist on the web pages and functionalities;
(c) produce a high-level report with all the accessibility issues found and recommended fixes; and
(d) repair all accessibility issues and provide accessibility statements
Service Provider auditing shall be limited to the following websites:
https://www.pitkincounty.com
https://www.pitkincoco.portal.civicclerk.com https://www.aspenairport.com
https://www.landfillrules.com
https://www.pitcolib.org
https://www.themotherlodemercantile.com https://www.pitkincountyrivers.com
https://www.pitkinemergency.org
https://www.pitkinseniors.com
https://www.telecoms.pitkincounty.com https://www.pitkinvotes.org
https://www.pitinwildfire.com
The larger strategy, not defined in or falling within the scope of this Statement of Work, will likely encompass not only remediation of existing properties, but also creation of policies and process,
adoption of tools, and training of staff to ensure conformance over the long term. The insights and
output of this work can be an input into the larger accessibility strategy.
3. Work Schedule and Deliverables. The relevant milestones, completion dates, and terms associated
with this SOW are as follows:
Line Item
Task
Completion Date
1
Automated and manual accessibility testing on website(s) completed by an experienced auditor using JAWS/NVDA/VoiceOver screen readers
May 15th, 2024
2
Provision of an Excel spreadsheets identifying the accessibility issues
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found on all websites and accessibility statements to be placed on all sites May 15th, 2024
3
Usability testing with visually impaired individuals on pitkincounty.com
May 15th, 2024
4
Repair the accessibility issues on all the websites (our developer team will
need full access to HTML/CSS on Weebly, Wix and Squarespace CMS)
June 10th, 2024
4. Pricing and Payment. All costs listed below are based on the scope and assumptions included in this SOW.
Item/Service
Price
Web Accessibility Audit and Repair
$70,000 (to be collected up front)
Total Fees:
$70,000
5. Miscellaneous Terms and Conditions. If, as a result of (i) a delay or interference with, or suspension
or stoppage of, Service Provider's obligations under this Agreement caused by the acts (including any
instruction) or omissions of Customer or Customer Contract Manager, (ii) an act or omission by
Customer or Customer Contract Manager in violation of this Agreement, or (iii) a Force Majeure
Event (each of (i), (ii), and (iii) an “Excusable Event”), the costs of Service Provider's performance
obligations hereunder increase or Service Provider's performance obligations hereunder are adversely
affected, in either case such that any Service Provider performance obligation is temporarily or
permanently prevented or delayed, then Service Provider: (a) shall give notice to Customer in
accordance with the notice provisions in Section 11 of the Master Agreement within five (5) days of
Service Provider becoming aware that such occurrence is an Excusable Event, stating the period of
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time the occurrence is expected to continue; (b) may adjust the Completion Date by the duration of any delay caused by an Excusable Event; (c) shall use diligent efforts to end the prevention or delay
and ensure the effects of such Excusable Event are minimized; and (d) shall resume the performance
of its obligations as soon as reasonably practicable after the removal of the cause and shall give
Customer written notice to that effect. Service Provider will not be in breach or default of its obligations to the extent that performance of such obligations or its efforts to cure are delayed or
prevented due to an Excusable Event.
[Signature Page Follows]
Page 15 of 15
IN WITNESS WHEREOF, the parties hereto have executed this SOW as of the date first above
written.
Service Provider, Be Accessible Inc.
By
Name: David Gevorkian, CEO
Pitkin County
By ________________
Name: Carrie Labbe, IT Director
onw
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Accessibility and Compliance Services Agreement
This Services Agreement (this “Agreement”), dated as of October 11th, 2022 (the “Effective Date”), is by and between Be Accessible Inc., a California corporation with offices at 811 Wilshire
Blvd. Suite 1700-245, Los Angeles, CA 90017 (“Service Provider”) and City of Englewood, with offices located at 1000 Englewood Parkway, 3rd Floor Englewood, CO 80110 (“Customer”) and
together with Service Provider, the “Parties”, and each a “Party”.
WHEREAS Service Provider has the capability and capacity to provide certain services related to
accessibility and compliance with the Americans with Disabilities Act (“ADA”); and
WHEREAS Customer desires to retain Service Provider to provide the said services, and Service
Provider is willing to perform such services under the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set
forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Service Provider and Customer agree as follows:
1. Services. Service Provider shall provide to Customer the services (the “Services”) set out in one
or more statements of work to be issued by Customer and accepted by Service Provider (each, a
“Statement of Work”). The initial Statement of Work that is hereby acknowledged and agreed to by the Customer is attached hereto as Appendix A. Additional Statements of Work shall be
deemed issued and accepted only if signed by the Service Provider Contract Manager and the
Customer Contract Manager, appointed pursuant to Section 2.1(a) and Section 3.1, respectively.
2. Service Provider Obligations. Service Provider shall:
2.1 Designate employees or contractors that it determines, in its sole discretion, to be capable
of filling the following positions:
(a) A primary contact to act as its authorized representative with respect to all matters pertaining to this Agreement (the “Service Provider Contract Manager”).
(b) A number of employees or contractors that it deems sufficient to perform the Services
set out in each Statement of Work, (collectively, with the Service Provider Contract Manager, “Provider Representatives”)
2.2 Maintain complete and accurate records relating to the provision of the Services under this
Agreement.
3. Customer Obligations. Customer shall:
3.1 Designate one of its employees to serve as its primary contact with respect to this Agreement and to act as its authorized representative with respect to matters pertaining to
this Agreement (the “Customer Contract Manager”), with such designation to remain in
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force unless and until a successor Customer Contract Manager is appointed.
3.2 Require that the Customer Contract Manager respond promptly to any reasonable requests
from Service Provider for instructions, information, or approvals required by Service
Provider to provide the Services, subject to the terms of any applicable Statement of Work.
3.3 Cooperate with Service Provider in its performance of the Services and provide access to Customer’s premises, information, employees, contractors, and equipment as required to
enable Service Provider to provide the Services.
3.4 Take all steps necessary, including obtaining any required licenses or consents, to prevent Customer-caused delays in Service Provider’s provision of the Services.
4. Fees and Expenses.
4.1 In consideration of the provision of the Services by the Service Provider and the rights
granted to Customer under this Agreement, Customer shall pay the fees set out in [Service
Provider’s then current fee schedule/the applicable Statement of Work]. Payment to Service
Provider of such fees and the reimbursement of expenses pursuant to this Section 4 shall constitute payment in full for the performance of the Services.
4.2 Customer shall reimburse Service Provider for all reasonable expenses incurred in
accordance with the Statement of Work, within ten (10) days of receipt by the Customer of an invoice from Service Provider accompanied by receipts and reasonable supporting
documentation.
4.3 Customer is not subject to taxation. No federal or other taxes (excise, luxury,
transportation, sales, etc.) shall be included in quoted prices. Customer shall not be
obligated to pay or reimburse Service Provider for any taxes attributable to the sale of any
Services which are imposed on or measured by net or gross income, capital, net worth,
franchise, privilege, any other taxes, or assessments, nor any of the foregoing imposed on or
payable by Service Provider. Upon written notification by Customer and subsequent
verification by Service Provider, Service Provider shall reimburse or credit, as applicable,
Customer in a timely manner, for any and all taxes erroneously paid by Customer.
Customer shall provide Service Provider with, and Service Provider shall accept in good
faith, resale, direct pay, or other exemption certificates, as applicable.
4.3 Except for invoiced payments that the Customer has successfully disputed, all late payments
shall bear interest at the lesser of the rate of 5% per month or the highest rate permissible
under applicable law, calculated daily and compounded monthly. Customer shall also reimburse Service Provider for all costs incurred in collecting any late payments, including,
without limitation, attorneys’ fees. In addition to all other remedies available under this
Agreement or at law (which Service Provider does not waive by the exercise of any rights
hereunder), Service Provider shall be entitled to suspend the provision of any Services if the Customer fails to pay any amounts/fees when due hereunder and such failure continues for
three (3) days following written notice thereof.
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5. Limited Warranty and Limitation of Liability.
5.1 Service Provider warrants that it shall perform the Services:
(a) In accordance with the terms and subject to the conditions set out in the respective Statement of Work and this Agreement.
(b) Using personnel of required skill, experience, and qualifications.
(c) In a timely, workmanlike, and professional manner in accordance with generally
recognized industry standards for similar services.
5.2 Service Provider’s sole and exclusive liability and Customer’s sole and exclusive remedy for breach of this warranty shall be as follows:
(a) Service Provider shall use reasonable commercial efforts to promptly cure any such
breach; provided, that if Service Provider cannot cure such breach within a reasonable
time (but no more than thirty (30 days) after Customer’s written notice of such breach,
Customer may, at its option, terminate the Agreement by serving written notice of termination in accordance with Section 8.2.
(b) In the event the Agreement is terminated pursuant to Section 5.2(a) above, Service Provider shall within thirty (30) days after the effective date of termination, refund to
Customer any fees paid by the Customer as of the date of termination for the Service
or Deliverables (as defined in Section 6 below), less a deduction equal to the fees for
receipt or use of such Deliverables or Service up to and including the date of termination on a pro-rated basis.
(c) The foregoing remedy shall not be available unless Customer provides written notice of
such breach within 5 days after delivery or provision of such Service or Deliverable to Customer.
5.3 SERVICE PROVIDER MAKES NO WARRANTIES EXCEPT FOR THAT
PROVIDED IN SECTION 5.1, ABOVE. ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, ARE EXPRESSLY DISCLAIMED.
6. Intellectual Property. All intellectual property rights, including copyrights, patents, patent
disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets,
know-how and other confidential information, trade dress, trade names, logos, corporate names
and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work
product and other materials that are delivered to Customer under this Agreement or prepared by
or on behalf of the Service Provider in the course of performing the Services, including any
items identified as such in the Statement of Work (collectively, the “Deliverables”) except for any Confidential Information of Customer or customer materials, provided that each has been
identified as such in writing by the Customer notwithstanding the provisions of Section 7.1
hereof, shall be owned by Service Provider. Upon the receipt of payment of any and all fees set
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out in the applicable Statement of Work, provided that Customer has complied with all of the terms and obligations of this Agreement, Service Provider hereby grants Customer a license to
use all Intellectual Property Rights in the Deliverables free of additional charge and on a non-
exclusive, , non-transferable, non-sublicensable, fully paid-up, royalty-free and perpetual basis to
the extent necessary to enable Customer to make reasonable use of the Deliverables and the Services.
7. Confidentiality.
7.1 From time to time during the Term of this Agreement, either Party (as the “Disclosing
Party”) may disclose or make available to the other Party (as the “Receiving Party”), non-public, proprietary, and confidential information of Disclosing Party, including but not
limited to this Agreement and the terms hereof, that, if disclosed in writing or other tangible form either should be known or understood to be confidential or proprietary by a person
exercising reasonable commercial judgement in the circumstances, is clearly labeled as “confidential,” or if disclosed orally, is identified as confidential when disclosed, is
summarized in writing and confirmed as confidential (”Confidential Information”); provided, however, that Confidential Information does not include any information that: (a)
is or becomes generally available to the public other than as a result of Receiving Party’s breach of this Section 7; (b) is or becomes available to the Receiving Party on a non-
confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in Receiving Party’s
possession prior to Disclosing Party’s disclosure hereunder; or (d) was or is independently developed by Receiving Party without using any Confidential Information. The Receiving
Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would
protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party’s Confidential Information, or
permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information
to any person or entity, except to the Receiving Party’s Group who reasonably need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to
exercise its rights or perform its obligations under this Agreement.
7.2 If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially
reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party’s sole cost and expense, a protective order
or other remedy. For purposes of this Section 7 only, Receiving Party’s Group shall mean the Receiving Party’s affiliates and its or their employees, officers, directors, shareholders,
partners, members, managers, agents, independent contractors, service providers, sublicensees, subcontractors, attorneys, accountants, and financial advisors.
7.3 The Parties acknowledge the Customer's legal requirement to disclose certain information
as required by the Colorado Open Records Act (“CORA”) in Article 72 of Title 24 of the
Colorado Revised Statutes (“C.R.S.”) governing the Customer. Any disclosure required by
CORA shall not be a breach of this Agreement.
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8. Term, Termination, and Survival.
8.1 This Agreement shall commence as of the Effective Date and shall continue thereafter until
the earlier of the payment of all fees and amounts due for the completion of the Services under all applicable Statements of Work and a period of one (1) year unless sooner
terminated pursuant to Section 8.2 or Section 8.3.
8.2 Either Party may terminate this Agreement, effective upon written notice to the other Party (the “Defaulting Party”) if the Defaulting Party:
(a) Materially breaches this Agreement, and such breach is incapable of cure, or with
respect to a material breach capable of cure, the Defaulting Party does not cure such
breach within 30 days after receipt of written notice of such breach.
(b) Becomes insolvent or admits its inability to pay its debts generally as they become due.
The Customer must be able to terminate a contract for non-appropriate of funds.
(c) Becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or
foreign bankruptcy or insolvency law, which is not fully stayed within five (5) business
days or is not dismissed or vacated within thirty (30) business days after filing.
(d) Is dissolved or liquidated or takes any corporate action for such purpose.
(e) Makes a general assignment for the benefit of creditors.
(f) Has a receiver, trustee, custodian, or similar agent appointed by order of any court of
competent jurisdiction to take charge of or sell any material portion of its property or business.
8.3 Notwithstanding anything to the contrary in Section 8.2(a), Service Provider may terminate this Agreement before the expiration date of the Term on written notice (including via
email) if Customer fails to pay any amount when due hereunder: (a) and such failure
continues for three (3) business days after Customer’s receipt of written notice (including
via email) of nonpayment; or (b) more than two (2) times in any three (3) month period;
8.4 The rights and obligations of the parties set forth in this Section 8.4 and any right or
obligation of the parties in this Agreement which, by its nature, should survive termination
or expiration of this Agreement, will survive any such termination or expiration of this Agreement.
8.5 Nothing in this Agreement is intended or shall be deemed or construed as creating any
multiple-fiscal year direct or indirect debt or financial obligation on the part of the Customer within the meaning of Colorado Constitution Article X, Section 20 or any other
constitutional or statutory provision. All financial obligations of Customer under this Agreement are subject to annual budgeting and appropriation, in its sole discretion.
Notwithstanding anything in this Agreement to the contrary, in the event of non-
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appropriation, Customer shall immediately notify Service Provider of such occurrence, and this Agreement shall terminate effective December 31 of the then-current fiscal year.
9. Limitation of Liability
9.1 IN NO EVENT SHALL SERVICE PROVIDER BE LIABLE TO CUSTOMER OR TO
ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL,
INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING
NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SERVICE PROVIDER
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY
OF ITS ESSENTIAL PURPOSE.
9.2 IN NO EVENT SHALL SERVICE PROVIDER’S AGGREGATE LIABILITY
ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING
OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS
PAID TO SERVICE PROVIDER PURSUANT TO THIS AGREEMENT AND
PURSUANT TO THE APPLICABLE STATEMENT OF WORK IN THE SIX (6)
MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
10. Entire Agreement. This Agreement, including and together with any related Statements of Work,
exhibits, schedules, attachments and appendices, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and
contemporaneous understandings, agreements, representations and warranties, both written and
oral, regarding such subject matter. The parties acknowledge and agree that if there is any
conflict between the terms and conditions of this Agreement and the terms and conditions of any related Statement of Work, the terms and conditions of this Agreement shall supersede and
control unless otherwise explicitly provided in the related Statement of Work.
11. Notices. All notices, requests, consents, claims, demands, waivers and other communications under this Agreement (each, a “Notice”, and with the correlative meaning “Notify”) must be in
writing and addressed to the other Party at its address set forth below (or to such other address,
including an email address, that the receiving Party may designate from time to time in
accordance with this Section). Unless otherwise agreed herein, all Notices must be delivered by personal delivery, nationally recognized overnight courier or certified or registered mail (in each
case, return receipt requested, postage prepaid) except for electronic mail (email). Except as
otherwise provided in this Agreement, a Notice is effective only (a) on receipt by the receiving
Party; and (b) if the Party giving the Notice has complied with the requirements of this Section 11.
Notice to Customers:
1000 Englewood Parkway, 3rd Floor Englewood,
CO 80110
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Shawn Lewis, City Manager
Chris Harguth, Director of Communications
Notice to Service Provider:
811 Wilshire Blvd Suite 1700-245, Los Angeles
CA 90017
David Gevorkian, CEO
12. Severability. If any term or provision of this Agreement is found by a court of competent
jurisdiction to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or
render unenforceable such term or provision in any other jurisdiction; provided, however, that if any fundamental term or provision of this Agreement. Upon a determination that any term or
provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to, or the court may, modify this Agreement to affect the original intent of the Parties as closely as
possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
13. Amendments. No amendment to or modification of or rescission, termination or discharge of
this Agreement is effective unless it is in writing, identified as an amendment to or rescission,
termination or discharge of this Agreement and signed by an authorized representative of each
Party.
14. Waiver. No waiver by any Party of any of the provisions of this Agreement shall be effective
unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set
forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall
any single or partial exercise of any right, remedy, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
15. Assignment. Customer shall not assign, transfer, delegate or subcontract any of its rights or
delegate any of its obligations under this Agreement without the prior written consent of Service
Provider. Any purported assignment or delegation in violation of this Section 15 shall be null and void. No assignment or delegation shall relieve the Customer of any of its obligations under
this Agreement. Service Provider may assign any of its rights or delegate any of its obligations to
any affiliate or to any person acquiring all or substantially all of service provider’s assets without
customer’s consent.
16. Successors and Assigns. This Agreement is binding on and inures to the benefit of the Parties to
this Agreement and their respective permitted successors and permitted assigns.
17. Relationship of the Parties. The relationship between the parties is that of independent
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contractors. The details of the method and manner for performance of the Services by Service Provider shall be under its own control, Customer being interested only in the results thereof.
The Service Provider shall be solely responsible for supervising, controlling and directing the
details and manner of the completion of the Services. Nothing in this Agreement shall give the
Customer the right to instruct, supervise, control, or direct the details and manner of the completion of the Services. The Services must meet the Customer’s final approval and shall be
subject to the Customer’s general right of inspection throughout the performance of the
Services and to secure satisfactory final completion. Nothing contained in this Agreement shall
be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority
to contract for or bind the other party in any manner whatsoever.
18. No Third-Party Beneficiaries. This Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or
implied, confers on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
19. Choice of Law. This Agreement and all related documents including all exhibits attached hereto,
and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the State of Colorado,
United States of America, without giving effect to the conflict of law’s provisions thereof to the
extent such principles or rules would require or permit the application of the laws of any
jurisdiction other than those of the State of Colorado.
20. Dispute Resolution.
20.1 Exclusive Dispute Resolution Mechanism. The Parties shall resolve any dispute,
controversy, or claim arising out of or relating to this Agreement, or the breach,
termination or invalidity hereof (each, a “Dispute”), under the provisions of Sections 20
through 21. The procedures set forth in Sections 20 through 21 shall be the exclusive
mechanism for resolving any Dispute that may arise from time to time and Sections 20.2
through 20.3 are express conditions precedent to litigation of the Dispute.
20.2 Negotiations. A party shall send written notice to the other party of any Dispute
(“Dispute Notice”). The Parties shall first attempt in good faith to resolve any Dispute set forth in the Dispute Notice by negotiation and consultation between themselves,
including not fewer than 2 negotiation sessions attended by the Service Provider Contract
Manager for Service Provider and by the Customer Contract Manager for the Customer
or such other persons of equivalent or superior position designated by each Party respectively. In the event that such Dispute is not resolved on an informal basis within 10
business days after one Party delivers the Dispute Notice to the other party, whether the
negotiation sessions take place or not, either Party may, by written notice to the other
Party (”Escalation to Executive Notice”), refer such Dispute to the executives of each Party set forth below (or to such other person of equivalent or superior position
designated by such Party in a written notice to the other Party) (“Executive(s)”).
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Executive of Customers: Shawn Lewis, City Manager,
Email: slewis@englewoodco.gov
Chris Harguth, Director of Communications
Email: charguth@englewoodco.gov
1000 Englewood Parkway, 3rd Floor
Englewood, CO 80110
Executive of Service Provider:
David Gevorkian, CEO
811 Wilshire Blvd Suite 1700-245
Los Angeles CA 90017
Email: david@beaccessible.com
If the Executives cannot resolve any Dispute during the time period ending 15 business days after the date of the Escalation to Executive Notice (the last day of such time period, the
“Escalation to Mediation/Arbitration Date”), either Party may initiate mediation under
Section 21.3 of arbitration under section 21.4 hereof.
20.3 Mediation
(a) Subject to Section 21.2, the Parties may, at any time after the Escalation to Mediation
Date, submit the Dispute to any mutually agreed to mediation service for mediation by providing to the mediation service a joint, written request for mediation, setting forth
the subject of the dispute and the relief requested. The Parties shall cooperate with one another in selecting a mediation service, and shall cooperate with the mediation service
and with one another in selecting a neutral mediator and in scheduling the mediation proceedings. The Parties covenant that they will use commercially reasonable efforts in
participating in the mediation. The Parties agree that the mediator’s fees and expenses and the costs incidental to the mediation will be shared equally between the parties.
(b) The Parties further agree that all offers, promises, conduct, and statements, whether
oral or written, made in the course of the mediation by any of the Parties, their agents, employees, experts, and attorneys, and by the mediator and any employees of the
mediation service, are confidential, privileged, and inadmissible for any purpose, including impeachment, in any litigation, arbitration or other proceeding involving the
parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation.
20.4 Arbitration
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(a) Either Party may submit the Dispute for final and binding arbitration in the State of Colorado, before a single arbitrator who shall be a retired Colorado District Court
Judge, a retired Colorado Appellate Court or Supreme Court Justice, or a retired
Federal Court Judge or Justice.
(b) If the parties are unable to agree to an arbitrator, the arbitration shall be submitted to
JAMS, Inc., dba JAMS – The Resolution Experts, pursuant to its then-current
Arbitration Rules and Procedures (“Rules”), with the exception of any optional rules
not expressly provided for herein or agreed to by Employee and Company. If the parties are unable to agree on a retired judge from the JAMS panel, the arbitrator shall
be selected from JAMS’ panel pursuant to JAMS’ procedures.
(c) This agreement to arbitrate claims is governed by and enforceable under the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”). Each party shall bear its, his or her own
arbitration costs, attorneys’ fees, expert fees, and other expenses associated with the
preparation for and presentation of that party’s case in the arbitration, except that
following issuance of the arbitration award, the arbitrator shall have authority to award costs (including arbitration fees) and attorneys’ fees to the prevailing party to the same
extent as would be permissible in a civil action in the state or federal court having
jurisdiction of the claim(s) asserted in the arbitration.
20.5 Litigation as a Final Resort. If the Parties cannot resolve any Dispute for any reason,
including, but not limited to, the failure of either Party to agree to enter into mediation, agree to any settlement proposed by the mediator, or submit the Dispute for arbitration,
within 30 days after the Escalation to Mediation/Arbitration Date, either Party may file suit in a court of competent jurisdiction in accordance with the provisions of Section 22
hereof.
21. Choice of Forum. Each Party irrevocably and unconditionally agrees that it will not commence
any action, litigation or proceeding of any kind whatsoever against the other Party in any way
arising from or relating to this Agreement, including all exhibits, schedules, attachments and appendices attached to this Agreement, and all contemplated transactions, including contract,
equity, tort, fraud and statutory claims, in any forum other than the courts located in the State of
Colorado. Each Party agrees that a final judgment in any such action, litigation, or proceeding is
conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
22. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an
original, but all of which together are deemed to be one and the same agreement. Notwithstanding anything to the contrary in Section 11, a signed copy of this Agreement
delivered by facsimile, email, or other means of electronic transmission is deemed to have the
same legal effect as delivery of an original signed copy of this Agreement.
23. Force Majeure. The Service Provider shall not be liable or responsible to Customer, nor be
deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or
performing any term of this Agreement when and to the extent such failure or delay is caused by
or results from acts or circumstances beyond the reasonable control of Service Provider
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including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot,
or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or
other labor disputes (whether or not relating to either party’s workforce), or restraints or delays
affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage, (each of the foregoing a “Force
Majeure Event”), provided that, if the event in question continues for a continuous period in
excess of thirty (30) days, Customer shall be entitled to give notice in writing to Service Provider
to terminate this Agreement.
24. Service Provider Indemnification. To the fullest extent permitted by law, Service Provider
agrees to indemnify, defend and hold harmless the Customer, its elected and appointed officers,
employees and agents (the “Customer Indemnitees”), from and against any and all loss, damage, injuries, claims, cause or causes of action, or any liability whatsoever resulting from, or arising
out of, or in connection with the Service Provider’s obligations or actions under this Agreement
caused by any willful or negligent error, omission or act or a failure to observe any applicable
standard of care by the Service Provider or any person employed by it or anyone for whose acts the Service Provider is legally liable. The Service Provider shall investigate, handle, respond to,
and provide defense for and defend against any such liability, claims, and demands. The Service
Provider shall further bear all other costs and expenses incurred by the Customer or Service
Provider and related to any such liability, claims and demands, including but not limited to court costs, expert witness fees and attorneys’ fees if the court determines that these incurred costs
and expenses are related to such negligent acts, errors, and omissions or other fault of the
Service Provider. The Customer shall be entitled to its costs and attorneys’ fees incurred in any
action to enforce the provisions of this Section. The Service Provider’s indemnification obligation shall not be construed to extend to any injury, loss, or damage which is caused by the
act, omission, or other fault of the Customer.
25. Immunity. Customer, its officers, and its employees, are relying on, and do not waive or intend to waive by any provision of this Agreement, the monetary limitations or any other rights,
immunities, and protections provided by the Colorado Governmental Immunity Act, C.R.S. 24-
10-101 et seq., as from time to time amended, or otherwise available to Customer, its officers, or
its employees.
Appendix A
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Statement of Work
SOW Number: 1
This Statement of Work (“SOW”), adopts and incorporates by reference the terms and conditions
of the master Accessibility and Compliance Services Agreement (“Master Agreement”), which was entered into on October 6th, 2022, between Be Accessible Inc., a California corporation with offices
at 811 Wilshire Blvd. Suite 1700-245, Los Angeles, CA 90017 (“Service Provider”) and City of Englewood, with offices at 1000 Englewood Parkway, 3rd Floor Englewood, CO 80110
(“Customer”) and together with Service Provider, the “Parties”, and each, a “Party”), as it may be amended from time to time. This SOW is effective beginning on October 11th, 2022 (“Effective
Date”) and will remain in effect until November 30th, 2022 (“Expiration Date”), unless earlier terminated in accordance with the Master Agreement. Transactions performed under this SOW will
be conducted in accordance with and be subject to the terms and conditions of this SOW and the Master. Capitalized terms used but not defined in this Statement of Work shall have the meanings
set out in the Master Agreement.
1. Defined Terms. For purposes of this SOW, the following terms shall have the following meanings:
“ADA compliant” shall mean conforming to the web accessibility standards established by the U.S. Congress in the Section 508 Amendment to the Rehabilitation Act of 1973
“ADA standards” shall refer to the Americans with Disabilities Act Standards for Accessible
Design, which states that all electronic and information technology (like websites) must be accessible to people with disabilities.
“JAWS” shall refer to a computer screen reader program for Microsoft Windows that allows
blind and visually impaired users to read the screen either with a text-to-speech output or by a refreshable Braille display.
“NVDA” shall refer to NonVisual Desktop Access, which is a free, open-source, portable
screen reader for Microsoft Windows
“WCAG” shall refer to The Web Content Accessibility Guidelines that are a part of a series of web accessibility guidelines published by the Web Accessibility Initiative of the World Wide
Web Consortium, the main international standards organization for the Internet.
“VoiceOver” shall refer to a screen reader built into Apple Inc.'s macOS, iOS, tvOS, watchOS, and iPod operating systems, which is used to allow a user to access their Macintosh or iOS
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device based on spoken descriptions and, in the case of the Mac, the keyboard.
2. Scope of Work.
Service Provider shall: (a) complete a full assessment of the website using auditors and the visually impaired;
(b) identify barriers to accessibility that may exist on the web pages and functionalities;
(c) produce a high-level report with all the accessibility issues found and recommendations; and
(d) repair all the accessibility issues on South Platte Renew website.
It is acknowledged that a “Kickoff Meeting” shall take place prior to any work being commenced and
that a “Wrap-Up” will be conducted upon the completed provision of all of the deliverables hereof.
During the Kickoff Meeting, which will be held on a mutually agreed upon date for a duration of one
hour and will be conducted via the Zoom videoconferencing platform, Service Provider will reiterate
the objectives and goals described herein, review the project schedule, and discuss deliverables. The Service Provider will provide an overview of the testing methods, including both manual and
automated testing, and will go over the deliverables and timeline.
Service Provider auditing shall be limited to the following websites: https://www.englewoodco.gov/
https://southplatterenewco.gov/
For the Wrap-Up, a one-hour wrap-up meeting will be conducted the Zoom videoconferencing platform upon completion the project and the provision of all deliverables by Be Accessible. The
purpose of the wrap up meeting is to review the results of the testing and answer any open questions
that Client may have.
The larger strategy, not defined in or falling within the scope of this Statement of Work, will
likely encompass not only remediation of existing properties, but also creation of policies and process,
adoption of tools, and training of staff to ensure conformance over the long term. The insights and
output of this work can be an input into the larger accessibility strategy.
3. Work Schedule and Deliverables. The relevant milestones, completion dates, and terms associated
with this SOW are as follows:
Line Item
Task
Completion Date
1
Automated and manual accessibility testing on website(s) completed by an
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experienced auditor using JAWS/NVDA/VoiceOver screen readers November 30th,
2022
2
Usability testing with three blind individuals;
November 30th,
2022
3
Provision of an Excel spreadsheet identifying the accessibility issues
found, usability lab feedback, and an accessibility statement to place on the
website
November 30th,
2022
4
Providing assistance to the development team to address the issues found
during audit and validate issues have been resolved on Englewood website
November 30th,
2022
5
Repair all the accessibility issues on South Platte Renew website
November 30th,
2022
4. Pricing and Payment. All costs listed below are based on the scope and assumptions included in this SOW.
Item/Service
Price
Website Audit and Repair
$18,500
Total Fees:
$18,500
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Customer shall send any electronic payments via Freshbooks or PayPal to: sales@beaccessible.com
Customer shall mail payments by check to: 633 N Central Ave #400, Glendale, CA 91203
5. Communication and Conditions Relating to Particular Circumstances. Customer and Service Provider acknowledge and further agree to the following terms and conditions:
(a) To the extent that the Scope of Work of section 2 hereof and the Deliverables of section 3
hereof include Service Provider providing accessibility repair services: (i) Service Provider shall request approval from Customer prior to making edits affecting
the visual appearance of Customer’s website;
(ii) Service Provider shall, on completion of accessibility repair services, provide Customer
a list of accessibility implementations that were completed; (iii) Customer shall provide Service Provider access to Customer’s content management
system within five (5) days of the execution of this Statement of Work; and
(iv) Customer shall substantively respond to telephonic or email inquiries from Service
Provider’s developers or other staff, employees, and contractors within forty-eight (48) hours of the receipt of such telephonic inquiries or the transmission of such email
inquiries, provided that, to the extent that Customer requires more time to provide
such substantive response or otherwise make a decision regarding such inquiry, the
Customer may request more time to provide the response upon making a written request to the Service Provider within twenty-four (24) hours of the receipt of such
telephonic inquiries or the transmission of such email inquiries which shall implicitly
be understood as an acknowledgement that the delay in making a response may cause
a delay in the completion of services by the Service Provider and that such delay will not be deemed a breach of this Scope of Work by the Service provider. Customer
agrees that, if Customer does not respond or request an extension of time in
accordance with this section 5(a)(iv), Customer shall pay a minimum of eighty five
percent (85%) of the remaining unpaid balance of the Total amount listed in section 4 hereof.
(b) To the extent that Customer currently has a developer actively maintaining the website that
subject to the Service Provider’s services, Service Provider shall:
(i) Repair HTML syntax errors in page content; (ii) Repair CSS syntax errors;
(iii) Add and/or edit alternative descriptions as needed for up to 50 images and reserve the
right to request accurate image descriptions as needed;
(iv) Remediate color contrast errors provided that, to the extent that color contrast errors exist in graphic images, Customer agrees to supply replacement images within five (5)
days of receipt of a request from Service Provider and further agrees that if
replacement images are not supplied within five (5) days, Service Provider is no longer
responsible for image remediation; (v) Communicate and consult with Customer’s developer and/or third-party plugin, app,
or extension provider to provide guidance on updates to custom code for the
implementation of accessibility updates; and
(c) Retest elements after recommended updates from your developer and/or third-party accessibility updates communicated by the Service Provider, Service Provider shall notify the
Customer and either (x) recommend another plugin, app, or extension, or (y) recommend
removing the plugin, app, or extension if functionality can be applied without the use of the
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plugin, app, or extension. Customer agrees that, if the accessibility updates communicated by Service Provider are not implemented within six (6) weeks of such communication by any
third party that is not under the control of the Service Provider, payment by Customer for all
of the work completed by Service Provider prior to that time shall become due and payable
immediately.
(vi) 6. Miscellaneous Terms and Conditions. If, as a result of (i) a delay or interference
with, or suspension or stoppage of, Service Provider's obligations under this
Agreement caused by the acts (including any instruction) or omissions of Customer or Customer Contract Manager, (ii) an act or omission by Customer or Customer
Contract Manager in violation of this Agreement, or (iii) a Force Majeure Event (each
of (i), (ii), and plugin, app, or extension provider are complete and provide further
guidance as needed (d) If a developer or provider is not responsive to Service Provider’s communication attempt
pursuant to section 5(b)(v) hereof or is otherwise unable to implement or apply the
(iii) an “Excusable Event”), the costs of Service Provider's performance obligations hereunder increase
or Service Provider's performance obligations hereunder are adversely affected, in either case such that any Service Provider performance obligation is temporarily or permanently prevented or delayed,
then Service Provider: (a) shall give notice to Customer in accordance with the notice provisions in
Section 11 of the Master Agreement within five (5) days of Service Provider becoming aware that such
occurrence is an Excusable Event, stating the period of time the occurrence is expected to continue; (b) may adjust the Completion Date by the duration of any delay caused by an Excusable Event; (c)
shall use diligent efforts to end the prevention or delay and ensure the effects of such Excusable Event
are minimized; and (d) shall resume the performance of its obligations as soon as reasonably
practicable after the removal of the cause and shall give Customer written notice to that effect. Service Provider will not be in breach or default of its obligations to the extent that performance of such
obligations or its efforts to cure are delayed or prevented due to an Excusable Event.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have executed this SOW as of the date first above
written.
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Service Provider, Be Accessible Inc.
By
Name: David Gevorkian
Title: CEO
City of Englewood
By ________________
Name: Shawn Lewis
Title: City Manager
By ________________
Name: Chris Harguth
Title: Director of Communications
DocuSign Envelope ID: CCBD810A-D380-42DF-9863-AAD4AA195336
10/17/2022
10/19/2022
Certificate Of Completion
Envelope Id: 9AA91DE0CD8948EA8F0D1A350DDE7FE2 Status: Completed
Subject: Be Accessible, Inc. | Pitkin County Contract 105.24 for Review and Signature
Source Envelope:
Document Pages: 34 Signatures: 3 Envelope Originator:
Certificate Pages: 5 Initials: 0 Pitkin County Procurement
AutoNav: Enabled
EnvelopeId Stamping: Disabled
Time Zone: (UTC-07:00) Mountain Time (US & Canada)
530 East Main Street
Suite 203
Aspen, CO 81611
Procurement@PitkinCounty.com
IP Address: 65.38.144.66
Record Tracking
Status: Original
4/10/2024 10:54:17 AM
Holder: Pitkin County Procurement
Procurement@PitkinCounty.com
Location: DocuSign
Signer Events Signature Timestamp
Carrie Labbe
carrie.labbe@pitkincounty.com
Director of Information Technology
Pitkin County
Security Level: Email, Account Authentication
(None)
Signature Adoption: Pre-selected Style
Using IP Address: 67.166.60.25
Sent: 4/10/2024 10:57:41 AM
Viewed: 4/11/2024 11:05:33 AM
Signed: 4/11/2024 11:07:22 AM
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
Rich Englehart
rich.englehart@pitkincounty.com
Deputy County Manager
Pitkin County
Signing Group: County Manager Group
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(None)
Signature Adoption: Pre-selected Style
Using IP Address: 172.103.36.129
Sent: 4/11/2024 11:07:23 AM
Viewed: 4/11/2024 11:10:24 AM
Signed: 4/11/2024 11:10:32 AM
Electronic Record and Signature Disclosure:
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David Gevorkian
david@beaccessible.com
CEO
Security Level: Email, Account Authentication
(None)Signature Adoption: Drawn on Device
Using IP Address: 47.39.102.226
Sent: 4/11/2024 11:10:35 AM
Resent: 4/15/2024 4:19:07 PM
Viewed: 4/15/2024 4:44:15 PM
Signed: 4/15/2024 4:45:51 PM
Electronic Record and Signature Disclosure:
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ID: c70c59dc-2509-4c50-9b1e-d549320be681
Company Name: Pitkin County, Colorado
In Person Signer Events Signature Timestamp
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Pitkin County Procurement
procurement@pitkincounty.com
Procurement Specialist
Pitkin County
Security Level: Email, Account Authentication
(None)
Sent: 4/11/2024 11:10:33 AM
Resent: 4/15/2024 4:45:55 PM
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
Accounts Payable
AP@pitkincounty.com
Accounts Payable
Pitkin County
Security Level: Email, Account Authentication
(None)
Sent: 4/11/2024 11:10:34 AM
Viewed: 4/11/2024 11:58:31 AM
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
Carrie Fleischman
Carrie.Fleischman@PitkinCounty.com
Security Level: Email, Account Authentication
(None)
Sent: 4/15/2024 4:45:52 PM
Viewed: 4/16/2024 12:28:59 PM
Electronic Record and Signature Disclosure:
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Envelope Sent Hashed/Encrypted 4/10/2024 10:57:42 AM
Envelope Updated Security Checked 4/11/2024 11:12:30 AM
Certified Delivered Security Checked 4/15/2024 4:44:15 PM
Signing Complete Security Checked 4/15/2024 4:45:51 PM
Completed Security Checked 4/15/2024 4:45:52 PM
Payment Events Status Timestamps
Electronic Record and Signature Disclosure
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Electronic Record and Signature Disclosure created on: 3/20/2020 3:28:13 PM
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