HomeMy WebLinkAbout2021 08 09 Consent 303 - Police Portable Radio Purchase • CONSENT AGENDA ITEM 303
,n m=ared CITY COMMISSION AGENDA I AUGUST 9, 2021 REGULAR MEETING
1959
TITLE
Police Portable Radio Purchase
SUMMARY
As of December of 2019, the Motorola XTS portable radios in use by some of our
personnel were no longer under factory repair warranty or support. The police
department is working under a replacement schedule to remove obsolete
communications equipment and replace them with new radios.
During this budget year, funding is available in the FY21 operating budget
and from the 3rd Generation Infrastructure Fund (121-4130) to replace old
portable radios. The police department is requesting the consent of the
Commission to purchase these radios using these dedicated funds via State
NASPO contract pricing.
As part of this purchase, we will be receiving a credit from the vendor for
obsolete portable radio units being traded in. A list of those radios is also
attached to this agenda item and we are also requesting consent from the
Commission to simultaneously dispose of these assets via "trade-in" method
through this purchase.
RECOMMENDATION
Staff recommends the Commission consent to the purchase of new portable
radios both from the approved FY21 3rd Generation Infrastructure Fund (121-
4130) using NASPO State of Florida contract (43190000-18-ACS-1) pricing and
existing FY21 budgeted funds not to exceed $185,000 and subsequent
concurrent disposal of trade-in portable radio assets.
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Department of
MANAGEMENT
SERVICES
P-We serve those who serve Florida
AMENDMENT NO.: 2 - Renewal
Alternate Contract Source No.: 43190000-18-NASPO-ACS-1
Alternate Contract Source Name: Public Safety Communication Equipment, Phase 1: Radios,
Consoles, Antennas, and Repeaters
This Amendment No. 2 ("Amendment"), effective on the date of the last signature below, to
Alternate Contract Source No. 43190000-18-NASPO-ACS-1, Public Safety Communication
Equipment, Phase 1: Radios, Consoles, Antennas, and Repeaters ("Participating Addendum,"
"ACS," or "Contract"), is made by and between the State of Florida ("State"), Department of
Management Services ("Department"), and Motorola Solutions ("Contractor'), collectively referred
to herein as the "Parties." All capitalized terms used herein have the meaning assigned to them
in the ACS, unless otherwise defined herein.
WHEREAS, the Parties entered into the ACS, effective January 1, 2018, through July 1, 2020,
for the provision of Public Safety Communication Equipment, pursuant to State of Washington
Master Agreement No. 06913 ("Master Agreement");
WHEREAS, the Parties entered into Amendment No. 1, on March 21, 2019, which revised the
July 1, 2020, end date of the ACS with the new end date, June 30, 2021;
WHEREAS, the State of Washington and Contractor agreed to extend the Master Agreement
through December 31, 2021;
WHEREAS, the Department has evaluated the ACS and determined that continuation of the ACS
is cost-effective and in the best interest of the State;
WHEREAS, the Parties agreed that the ACS may be amended as provided in Section 6,
Amendments, of the ACS; and
WHEREAS, the Parties wish to renew and amend the ACS as set forth herein.
THEREFORE, in consideration of the mutual promises contained below, and other good and
valuable consideration,the receipt and sufficiency of which are hereby acknowledged, the Parties
agree to the following:
I. Amendments.
a) Exhibit A: Florida General Contract Conditions is hereby deleted in its entirety and
replaced with the attached Exhibit B: Special Contract Conditions, July 1, 2019
Version.
b) Exhibit B: Florida Special Contract Conditions is hereby deleted in its entirety and
replaced with the attached Exhibit A: Additional Special Contract Conditions.
c) Section 3, Participating State Modifications or Additions to Master Agreement, of the
ACS is hereby deleted in its entirety and replaced with the following:
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Department of
MANAGEMENT
SERVICES
P-We serve those who serve Florida
AMENDMENT NO.: 2 - Renewal
Alternate Contract Source No.: 43190000-18-NASPO-ACS-1
Alternate Contract Source Name: Public Safety Communication Equipment, Phase 1: Radios,
Consoles, Antennas, and Repeaters
3. Contract Document and Order of Precedence. This Contract document and the
attached exhibits constitute the Contract and the entire understanding of the Parties.
All exhibits listed below are incorporated into and form part of this Contract. In the
event of a conflict, the following order of precedence shall apply:
1) The ACS and amendments, with latest issued having priority
2) Exhibit A, Additional Special Contract Conditions
3) Exhibit B, Special Contract Conditions
4) Exhibit C, NASPO ValuePoint Master Agreement Number 06913
II. Renewal. In accordance with Section 2.2, Renewal, of Exhibit B, Special Contract Conditions,
the ACS is hereby renewed for a period of six (6) months, effective July 1, 2021, with a new
expiration date of December 31, 2021.
III. Conflict. To the extent any of the terms of this Amendment conflict with the terms of the ACS,
the terms of this Amendment shall control.
IV. Effect. Unless otherwise modified by this Amendment, all terms and conditions contained in
the ACS, as previously amended, shall continue in full force and effect.
IN WITNESS WHEREOF, the Parties have executed this Amendment by their duly authorized
representatives.
State of Florida: Contractor:
Dep a nat'Management Services Moto ,UtmOns
By: By:
Name: Tami Fillyaw Name: e
Title: Chief of Staff Title: Account Executive
Date:
6/3/2021 13:07 PM EDT Date: 6/1/2021 13:32 PM EDT
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Department of
MANAGEMENT
SERVICES
We serve those who serve Florida
ADDITIONAL SPECIAL CONTRACT CONDITIONS
EXHIBIT A
The Contractor and Customers acknowledge and agree to be bound by the terms and
conditions of the Master Agreement except as otherwise specified in the Department's Contract
as modified and supplemented by the Special Contract Conditions and these Additional Special
Contract Conditions.
Contractor acknowledges that the Participating State is an agency of the State of Florida and as
such, the Contract will include the terms and conditions in these Additional Special Contract
Conditions. All references to the Contract in these Additional Special Contract Conditions
include the terms and conditions herein.
A. Orders: Contractor must be able to accept the State of Florida Purchasing Card and
MyFloridaMarketPlace (MFMP) purchase orders.
B. Contractor and Applicable Subcontractors, Affiliates, Partners, Resellers, Distributors,
and Dealers: By execution of a Contract, the Contractor acknowledges that it will not be
released of its contractual obligations to the Department because of any failure of a
subcontractor, reseller, distributor, or dealer. The Contract terms are applicable to
subcontractors, resellers, distributors, and dealers and shall apply to the Contractor's
Applicable Subcontractors, Affiliates, Partners, Resellers, Distributors, and Dealers
providing commodities and performing services in furtherance of the Contract. The
Contractor is fully responsible for satisfactory completion of all work performed under the
Contract.
C. Purchases Prerequisites: Before fulfilling any Customer purchases and receiving
payment, the Contractor and applicable Subcontractors, Affiliates, Partners, Resellers,
Distributors, and Dealers must have met the following requirements, unless further
notated below:
• Have an active registration with the Florida Department of State, Division of
Corporations (www.sunbiz.org), or, if exempt from the registration requirements,
provide the Department with the basis for such exemption.
• Be registered in the MFMP Vendor Information Portal
(https://vendor.mvfloridamarketplace.com) *only required by applicable
Subcontractors, Affiliates, Partners, Resellers, Distributors, and Dealers if
receiving payment.
• Not be on the State's Convicted, Suspended, or Discriminatory Vendor lists
(http://www.dms.myflorida.com/business operations/State purchasing/vendor in
formation/convicted suspended discriminatory complaints vendor lists)
• Have a copy of e-Verify Status on file
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• Have a current W-9 filed with the Florida Department of Financial Services
(https://flvendor.mvfloridacfo.com) *only required by applicable Subcontractors,
Affiliates, Partners, Resellers, Distributors, and Dealers if receiving payment.
D. MFMP Electronic Invoicing: The Contractor may supply electronic invoices in lieu of
paper-based invoices for those transactions processed through MFMP. Electronic
invoices may be submitted to the agency through one of the mechanisms as listed
below:
1) EDI (Electronic Data Interchange)
This standard establishes the data contents of the Invoice Transaction Set (810) for
use within the context of an Electronic Data Interchange (EDI) environment. This
transaction set can be used for invoicing via the Ariba Network (AN) for catalog and
non-catalog goods and services.
2) PO Flip via AN
This online process allows Contractors to submit invoices via the AN for catalog and
non-catalog goods and services. Contractors have the ability to create an invoice
directly from their inbox in their AN account by simply "flipping" the PO into an
invoice. This option does not require any special software or technical capabilities.
The Contractor warrants and represents that it is authorized and empowered to and
hereby grants the State and the third-party provider of MFMP, a State contractor, the
right and license to use, reproduce, transmit, distribute, and publicly display within
MFMP. In addition, the Contractor warrants and represents that it is authorized and
empowered to and hereby grants the State and the third-party provider the right and
license to reproduce and display within MFMP the Contractor's trademarks, system
marks, logos, trade dress, or other branding designation that identifies the products
made available by the Contractor under the Contract.
The Contractor will work with the MFMP management team to obtain specific
requirements for the electronic invoicing if needed.
E. Contract Reporting: The Contractor shall provide the following reports associated with
this Contract.
1) Contract Quarterly Sales Reports. The Contractor shall submit Quarterly Sales
Reports to the Department's Contract Manager within 30 calendar days after the
close of each State fiscal quarter (the State's fiscal quarters close on September 30,
December 31, March 31, and June 30). The Contractor's first Quarterly Sales Report
will be due 30 calendar days after the first full quarter following Contract execution.
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Reports must be submitted in MS Excel format and can be retrieved by accessing
the following link at FL DMS Quarterly Sales Report Form. The report shall include
all Customer sales received and associated with this Contract during the quarter.
Initiation and submission of the Quarterly Sales Report is the responsibility of the
Contractor without prompting or notification from the Department's Contract
Manager. If no orders are received during the period, the Contractor must submit a
report stating that there was no activity. If the Contractor fails to submit two
consecutive quarterly sales reports, the Contract may be terminated, or the
Department may choose to not renew the Contract.
2) Certified and Minority Business Enterprises Reports. Upon Customer request, the
Contractor shall report to each Customer, spend with certified and other minority
business enterprises in the provision of commodities or services related to the
Customer orders. These reports shall include the period covered; the name, minority
code, and Federal Employer Identification Number of each minority business
enterprise utilized during the period; commodities and services provided by the
minority business enterprise; and the amount paid to each minority business
enterprise on behalf of the Customer.
3) Ad Hoc Sales Reports. The Department may require additional Contract sales
information such as copies of purchase orders or ad hoc sales reports. The
Contractor shall submit these documents and reports within the timeframe specified
by the Department.
4) MFMP Transaction Fee Reports. The Contractor shall submit monthly MFMP
Transaction Fee Reports to the Department. Reports are due 15 calendar days after
the end of each month. Information on how to submit MFMP Transaction Fee
Reports online can be located on the Transaction Fee and Reporting website.
Assistance with the transaction fee reporting system is also available from the MFMP
Customer Service Desk by email at feeprocessing(amyfloridamarketplace.com or
telephone at 866-FLA-EPRO (866-352-3776) from 8:00 a.m. to 6:00 p.m. Eastern
Time.
F. Financial Consequences: The following financial consequences will apply for the
Contractor's non-performance of the provision of the Quarterly Sales Reports and the
MFMP Transaction Fee Reports. The State of Florida reserves the right to withhold
payment or implement other appropriate remedies, such as Contract termination or
nonrenewal, when the Contractor has failed to comply with these provisions of the
Contract. The Contractor and the Department agree that the financial consequences for
non-performance are an estimate of damages which are difficult to ascertain and are not
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penalties.
The financial consequences will be paid via check or money order and made out to the
Department of Management Services in U.S. dollars within 30 calendar days after the
required report submission date. These consequences are individually assessed for
failures over each target period beginning with the first full month or quarter of the
contract performance and every month or quarter, respectively, thereafter.
Financial Consequences Chart
Financial
Consequence for
Performance Non-
Due Date Performance
Deliverable Performance Metric (Per Calendar
Day Late/Not
Received by the
Contract
Manager)
Contractor will timely All Quarterly Sales Reports will Reports are $250
submit complete be submitted timely with the due on or
Quarterly Sales Reports required information before the
30th calendar
day after the
close of each
State fiscal
quarter
Contractor will timely All MFMP Transaction Fee Reports are $100
submit complete MFMP Reports will be submitted timely due on or
Transaction Fee Reports with the required information before the
15th calendar
day after the
close of each
month
Quarterly reporting timeframes coincide with the State Fiscal Year as follows:
Quarter 1 - (July-September) — due 30 calendar days after close of the period
Quarter 2 - (October-December) —due 30 calendar days after close of the period
Quarter 3 - (January-March) —due 30 calendar days after close of the period
Quarter 4 - (April-June) —due 30 calendar days after close of the period
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The Department may not consider renewal of a Contract or price adjustments if the
Contractor is late on submitting required reports or for outstanding fees owed.
G. Business Review Meetings: Both the Department and Customer reserve the right to
schedule business review meetings. The Department or Customer will provide the format
for the Contractor's agenda. In the event the Department or Customer schedules a
business review meeting, the Contractor shall submit the completed agenda to the
Department or Customer for review and acceptance prior to the meeting. The Contractor
shall address the agenda items and any of the Department's or Customer's additional
concerns at the meeting. At a minimum, the agenda items may include:
a. Contract compliance
b. Savings report (in dollar amount and cost avoidance)
c. Spend reports by Customer
d. Recommendations for improved compliance and performance
Failure to comply with this section may result in the Contractor being placed on a
Corrective Action Plan and possible termination of the Contract.
H. 13.2 E-Verify: The Contractor (and its subcontractors) have an obligation to utilize the
U.S. Department of Homeland Security's (DHS) E-Verify system for all newly hired
employees. By executing this Contract, the Contractor certifies that it is registered with,
and uses, the E-Verify system for all newly hired employees. The Contractor must obtain
an affidavit from its subcontractors in accordance with paragraph (2)(b) of section
448.095, F.S., and maintain a copy of such affidavit for the duration of the Contract. In
order to implement this provision, the Contractor shall provide a copy of its DHS
Memorandum of Understanding (MOU) to the Department's Contract Manager within
five (5) days of Contract execution.
This section serves as notice to the Contractor regarding the requirements of section
448.095, F.S., specifically sub-paragraph (2)(c)1, and the Department's obligation to
terminate the Contract if it has a good faith belief that the Contractor has knowingly
violated section 448.09(1), F.S. If terminated for such reason, the Contractor will not be
eligible for award of a public contract for at least one (1) year after the date of such
termination. The Department reserves the right to order the immediate termination of any
contract between the Contractor and a subcontractor performing work on its behalf
should the Department develop a good faith belief that the subcontractor has knowingly
violated section 448.095(1), F.S.
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Exhibit B
SPECIAL CONTRACT CONDITIONS
JULY 1, 2019 VERSION
Table of Contents
SECTION 1. DEFINITION...........................................................................................................................2
SECTION 2. CONTRACT TERM AND TERMINATION.................................................................................2
SECTION 3. PAYMENT AND FEES.............................................................................................................3
SECTION 4. CONTRACT MANAGEMENT..................................................................................................4
SECTION 5. COMPLIANCE WITH LAWS....................................................................................................6
SECTION 6. MISCELLANEOUS..................................................................................................................7
SECTION 7. LIABILITY AND INSURANCE........................................................................................................... 9
SECTION 8. PUBLIC RECORDS,TRADE SECRETS, DOCUMENT MANAGEMENT,AND INTELLECTUAL
PROPERTY..............................................................................................................................................10
SECTION 9. DATA SECURITY..................................................................................................................12
SECTION 10.GRATUITIES, LOBBYING,AND COMMUNICATIONS..........................................................13
SECTION 11.CONTRACT MONITORING. ...............................................................................................14
SECTION 12. CONTRACT AUDITS...........................................................................................................15
SECTION 13. BACKGROUND SCREENING AND SECURITY......................................................................16
SECTION 14.WARRANTY OF CONTRACTOR'S ABILITY TO PERFORM....................................................17
In accordance with Rule 60A-1.002(7), F.A.C., Form PUR 1000 is included
herein by reference but is superseded in its entirety by these Special
Contract Conditions.
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SECTION 1. DEFINITION.
The following definition applies in addition to the definitions in Chapter 287, Florida
Statutes (F.S.), and Rule Chapter 60A-1, Florida Administrative Code (F.A.C.):
1.1 Customer.
The agency or eligible user that purchases commodities or contractual services pursuant
to the Contract.
SECTION 2. CONTRACT TERM AND TERMINATION.
2.1 Initial Term.
The initial term will begin on the date set forth in the Contract documents or on the date
the Contract is signed by all Parties, whichever is later.
2.2 Renewal.
Upon written agreement, the Department and the Contractor may renew the Contract in
whole or in part only as set forth in the Contract documents, and in accordance with
section 287.057(13), F.S.
2.3 Suspension of Work and Termination.
2.3.1 Suspension of Work.
The Department may, at its sole discretion, suspend any or all activities under the
Contract, at any time, when it is in the best interest of the State of Florida to do so. The
Customer may suspend a resulting contract or purchase order, at any time, when in the
best interest of the Customer to do so. The Department or Customer will provide the
Contractor written notice outlining the particulars of the suspension. After receiving a
suspension notice, the Contractor must comply with the notice and will cease the
performance of the Contract or purchase order. Suspension of work will not entitle the
Contractor to any additional compensation. The Contractor will not resume performance
of the Contract or purchase order until so authorized by the Department.
2.3.2 Termination for Convenience.
The Contract may be terminated by the Department in whole or in part at any time, in the
best interest of the State of Florida. If the Contract is terminated before performance is
completed, the Contractor will be paid only for that work satisfactorily performed for
which costs can be substantiated. Such payment, however, may not exceed an amount
which is the same percentage of the Contract price as the amount of work satisfactorily
performed. All work in progress will become the property of the Customer and will be
turned over promptly by the Contractor.
2.3.3 Termination for Cause.
If the performance of the Contractor is not in compliance with the Contract requirements
or the Contractor has defaulted, the Department may:
(a) immediately terminate the Contract;
(b) notify the Contractor of the noncompliance or default, require correction, and specify
the date by which the correction must be completed before the Contract is terminated; or
(c) take other action deemed appropriate by the Department.
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SECTION 3. PAYMENT AND FEES.
3.1 Pricing.
The Contractor will not exceed the pricing set forth in the Contract documents.
3.2 Price Decreases.
The following price decrease terms will apply to the Contract:
3.2.1 Quantity Discounts. Contractor may offer additional discounts for one-time delivery
of large single orders;
3.2.2 Preferred Pricing. The Contractor guarantees that the pricing indicated in this
Contract is a maximum price. Additionally, Contractor's pricing will not exceed the pricing
offered under comparable contracts. Comparable contracts are those that are similar in
size, scope, and terms. In compliance with section 216.0113, F.S., Contractor must
annually submit an affidavit from the Contractor's authorized representative attesting that
the Contract complies with this clause.
3.2.3 Sales Promotions. In addition to decreasing prices for the balance of the Contract
term due to a change in market conditions, the Contractor may conduct sales
promotions involving price reductions for a specified lesser period. The Contractor must
submit documentation identifying the proposed: (1) starting and ending dates of the
promotion, (2) commodities or contractual services involved, and (3) promotional prices
compared to then-authorized prices.
3.3 Payment Invoicing.
The Contractor will be paid upon submission of invoices to the Customer after delivery
and acceptance of commodities or contractual services is confirmed by the Customer.
Invoices must contain sufficient detail for an audit and contain the Contract Number and
the Contractor's Federal Employer Identification Number.
3.4 Purchase Order.
A Customer may use purchase orders to buy commodities or contractual services
pursuant to the Contract and, if applicable, the Contractor must provide commodities or
contractual services pursuant to purchase orders. Purchase orders issued pursuant to
the Contract must be received by the Contractor no later than the close of business on
the last day of the Contract's term. The Contractor is required to accept timely purchase
orders specifying delivery schedules that extend beyond the Contract term even when
such extended delivery will occur after expiration of the Contract. Purchase orders shall
be valid through their specified term and performance by the Contractor, and all terms
and conditions of the Contract shall survive the termination or expiration of the Contract
and apply to the Contractor's performance. The duration of purchase orders for recurring
deliverables shall not exceed the expiration of the Contract by more than twelve months.
Any purchase order terms and conditions conflicting with these Special Contract
Conditions shall not become a part of the Contract.
3.5 Travel.
Travel expenses are not reimbursable unless specifically authorized by the Customer in
writing and may be reimbursed only in accordance with section 112.061, F.S.
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3.6 Annual Appropriation.
Pursuant to section 287.0582, F.S., if the Contract binds the State of Florida or an
agency for the purchase of services or tangible personal property for a period in excess
of one fiscal year, the State of Florida's performance and obligation to pay under the
Contract is contingent upon an annual appropriation by the Legislature.
3.7 Transaction Fees.
The State of Florida, through the Department of Management Services, has instituted
MyFloridaMarketPlace, a statewide eProcurement system pursuant to section
287.057(22), F.S. All payments issued by Customers to registered Vendors for
purchases of commodities or contractual services will be assessed Transaction Fees as
prescribed by rule 60A-1.031, F.A.C., or as may otherwise be established by law.
Vendors must pay the Transaction Fees and agree to automatic deduction of the
Transaction Fees when automatic deduction becomes available. Vendors will submit any
monthly reports required pursuant to the rule. All such reports and payments will be
subject to audit. Failure to comply with the payment of the Transaction Fees or reporting
of transactions will constitute grounds for declaring the Vendor in default and subject the
Vendor to exclusion from business with the State of Florida.
3.8 Taxes.
Taxes, customs, and tariffs on commodities or contractual services purchased under the
Contract will not be assessed against the Customer or Department unless authorized by
Florida law.
3.9 Return of Funds.
Contractor will return any overpayments due to unearned funds or funds disallowed
pursuant to the terms of the Contract that were disbursed to the Contractor. The
Contractor must return any overpayment within forty (40) calendar days after either
discovery by the Contractor, its independent auditor, or notification by the Department or
Customer of the overpayment.
SECTION 4. CONTRACT MANAGEMENT.
4.1 Composition and Priority.
The Contractor agrees to provide commodities or contractual services to the Customer
as specified in the Contract. Additionally, the terms of the Contract supersede the terms
of all prior agreements between the Parties on this subject matter.
4.2 Notices.
All notices required under the Contract must be delivered to the designated Contract
Manager in a manner identified by the Department.
4.3 Department's Contract Manager.
The Department's Contract Manager, who is primarily responsible for the Department's
oversight of the Contract, will be identified in a separate writing to the Contractor upon
Contract signing in the following format:
Department's Contract Manager Name
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Department's Name
Department's Physical Address
Department's Telephone#
Department's Email Address
If the Department changes the Contract Manager, the Department will notify the
Contractor. Such a change does not require an amendment to the Contract.
4.4 Contractor's Contract Manager.
The Contractor's Contract Manager, who is primarily responsible for the Contractor's
oversight of the Contract performance, will be identified in a separate writing to the
Department upon Contract signing in the following format:
Contractor's Contract Manager Name
Contractor's Name
Contractor's Physical Address
Contractor's Telephone#
Contractor's Email Address
If the Contractor changes its Contract Manager, the Contractor will notify the
Department. Such a change does not require an amendment to the Contract.
4.5 Diversity.
4.5.1 Office of Supplier Diversity.
The State of Florida supports its diverse business community by creating opportunities
for woman-, veteran-, and minority-owned small business enterprises to participate in
procurements and contracts. The Department encourages supplier diversity through
certification of woman-, veteran-, and minority-owned small business enterprises and
provides advocacy, outreach, and networking through regional business events. For
additional information, please contact the Office of Supplier Diversity (OSD) at
osdinfo@dms.myflorida.com.
4.5.2 Diversity Reporting.
Upon request, the Contractor will report to the Department its spend with business
enterprises certified by the OSD. These reports must include the time period covered,
the name and Federal Employer Identification Number of each business enterprise
utilized during the period, commodities and contractual services provided by the
business enterprise, and the amount paid to the business enterprise on behalf of each
agency purchasing under the Contract.
4.6 RESPECT.
Subject to the agency determination provided for in section 413.036, F.S., the following
statement applies:
IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT ANY ARTICLES THAT ARE
THE SUBJECT OF, OR REQUIRED TO CARRY OUT, THIS CONTRACT SHALL BE
PURCHASED FROM A NONPROFIT AGENCY FOR THE BLIND OR FOR THE
SEVERELY HANDICAPPED THAT IS QUALIFIED PURSUANT TO CHAPTER 413,
FLORIDA STATUTES, IN THE SAME MANNER AND UNDER THE SAME
PROCEDURES SET FORTH IN SECTION 413.036(1) AND (2), FLORIDA STATUTES;
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AND FOR PURPOSES OF THIS CONTRACT THE PERSON, FIRM, OR OTHER
BUSINESS ENTITY CARRYING OUT THE PROVISIONS OF THIS CONTRACT SHALL
BE DEEMED TO BE SUBSTITUTED FOR THE STATE AGENCY INSOFAR AS
DEALINGS WITH SUCH QUALIFIED NONPROFIT AGENCY ARE CONCERNED.
Additional information about RESPECT and the commodities or contractual services it
offers is available at https://www.respectofflorida.org.
4.7 PRIDE.
Subject to the agency determination provided for in sections 287.042(1) and 946.515,
F.S., the following statement applies:
IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT ANY ARTICLES WHICH ARE
THE SUBJECT OF, OR REQUIRED TO CARRY OUT, THIS CONTRACT SHALL BE
PURCHASED FROM THE CORPORATION IDENTIFIED UNDER CHAPTER 946, F.S.,
IN THE SAME MANNER AND UNDER THE SAME PROCEDURES SET FORTH IN
SECTION 946.515(2) AND (4), F.S.; AND FOR PURPOSES OF THIS CONTRACT THE
PERSON, FIRM, OR OTHER BUSINESS ENTITY CARRYING OUT THE PROVISIONS
OF THIS CONTRACT SHALL BE DEEMED TO BE SUBSTITUTED FOR THIS
AGENCY INSOFAR AS DEALINGS WITH SUCH CORPORATION ARE CONCERNED.
Additional information about PRIDE and the commodities or contractual services it offers
is available at https://www.pride-enterprises.org.
SECTION 5. COMPLIANCE WITH LAWS.
5.1 Conduct of Business.
The Contractor must comply with all laws, rules, codes, ordinances, and licensing
requirements that are applicable to the conduct of its business, including those of
federal, state, and local agencies having jurisdiction and authority. For example, the
Contractor must comply with section 274A of the Immigration and Nationality Act, the
Americans with Disabilities Act, Health Insurance Portability and Accountability Act, if
applicable, and all prohibitions against discrimination on the basis of race, religion, sex,
creed, national origin, handicap, marital status, or veteran's status. The provisions of
subparagraphs 287.058(1)(a)-(c), and (g), F.S., are hereby incorporated by reference.
5.2 Dispute Resolution, Governing Law, and Venue.
Any dispute concerning performance of the Contract shall be decided by the
Department's designated Contract Manager, who will reduce the decision to writing and
serve a copy on the Contractor. The decision of the Contract Manager shall be final and
conclusive. Exhaustion of this administrative remedy is an absolute condition precedent
to the Contractor's ability to pursue legal action related to the Contract or any other form
of dispute resolution. The laws of the State of Florida govern the Contract. The Parties
submit to the jurisdiction of the courts of the State of Florida exclusively for any legal
action related to the Contract. Further, the Contractor hereby waives all privileges and
rights relating to venue it may have under Chapter 47, F.S., and all such venue
privileges and rights it may have under any other statute, rule, or case law, including, but
not limited to, those based on convenience. The Contractor hereby submits to venue in
the county chosen by the Department.
5.3 Department of State Registration.
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Consistent with Title XXXVI, F.S., the Contractor and any subcontractors that assert
status, other than a sole proprietor, must provide the Department with conclusive
evidence of a certificate of status, not subject to qualification, if a Florida business entity,
or of a certificate of authorization if a foreign business entity.
5.4 Suspended, Convicted, and Discriminatory Vendor Lists.
In accordance with sections 287.042, 287.133, and 287.134, F.S., an entity or affiliate
who is on the Suspended Vendor List, Convicted Vendor List, or Discriminatory Vendor
List may not perform work as a contractor, supplier, subcontractor, or consultant under
the Contract. The Contractor must notify the Department if it or any of its suppliers,
subcontractors, or consultants have been placed on the Suspended Vendor List,
Convicted Vendor List, or Discriminatory Vendor List during the term of the Contract.
5.5 Scrutinized Companies - Termination by the Department.
The Department may, at its option, terminate the Contract if the Contractor is found to
have submitted a false certification as provided under section 287.135(5), F.S., or been
placed on the Scrutinized Companies with Activities in Sudan List or the Scrutinized
Companies with Activities in the Iran Petroleum Energy Sector List, or been engaged in
business operations in Cuba or Syria, or to have been placed on the Scrutinized
Companies that Boycott Israel List or is engaged in a boycott of Israel.
5.6 Cooperation with Inspector General and Records Retention.
Pursuant to section 20.055(5), F.S., the Contractor understands and will comply with its
duty to cooperate with the Inspector General in any investigation, audit, inspection,
review, or hearing. Upon request of the Inspector General or any other authorized State
official, the Contractor must provide any information the Inspector General deems
relevant to the Contractor's integrity or responsibility. Such information may include, but
will not be limited to, the Contractor's business or financial records, documents, or files
of any type or form that refer to or relate to the Contract. The Contractor will retain such
records for the longer of five years after the expiration of the Contract, or the period
required by the General Records Schedules maintained by the Florida Department of
State, at the Department of State's Records Management website. The Contractor
agrees to reimburse the State of Florida for the reasonable costs of investigation
incurred by the Inspector General or other authorized State of Florida official for
investigations of the Contractor's compliance with the terms of this or any other
agreement between the Contractor and the State of Florida which results in the
suspension or debarment of the Contractor. Such costs will include but will not be limited
to: salaries of investigators, including overtime; travel and lodging expenses; and expert
witness and documentary fees. The Contractor agrees to impose the same obligations to
cooperate with the Inspector General and retain records on any subcontractors used to
provide goods or services under the Contract.
SECTION 6. MISCELLANEOUS.
6.1 Subcontractors.
The Contractor will not subcontract any work under the Contract without prior written
consent of the Department. The Contractor is fully responsible for satisfactory
completion of all its subcontracted work. The Department supports diversity in its
procurements and contracts, and requests that the Contractor offer subcontracting
opportunities to certified woman-, veteran-, and minority-owned small businesses. The
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Contractor may contact the OSD at osdhelp@dms.myflorida.com for information on
certified small business enterprises available for subcontracting opportunities.
6.2 Assignment.
The Contractor will not sell, assign, or transfer any of its rights, duties, or obligations
under the Contract without the prior written consent of the Department. However, the
Contractor may waive its right to receive payment and assign same upon notice to the
Department. In the event of any assignment, the Contractor remains responsible for
performance of the Contract, unless such responsibility is expressly waived by the
Department. The Department may assign the Contract with prior written notice to the
Contractor.
6.3 Independent Contractor.
The Contractor and its employees, agents, representatives, and subcontractors are
independent contractors and not employees or agents of the State of Florida and are not
entitled to State of Florida benefits. The Department and Customer will not be bound by
any acts or conduct of the Contractor or its employees, agents, representatives, or
subcontractors. The Contractor agrees to include this provision in all its subcontracts
under the Contract.
6.4 Inspection and Acceptance of Commodities.
6.4.1 Risk of Loss.
Matters of inspection and acceptance are addressed in section 215.422, F.S. Until
acceptance, risk of loss or damage will remain with the Contractor. The Contractor will
be responsible for filing, processing, and collecting all damage claims. To assist the
Contractor with damage claims, the Customer will: record any evidence of visible
damage on all copies of the delivering carrier's bill of lading; report damages to the
carrier and the Contractor; and provide the Contractor with a copy of the carrier's bill of
lading and damage inspection report.
6.4.2 Rejected Commodities.
When a Customer rejects a commodity, Contractor will remove the commodity from the
premises within ten (10) calendar days after notification of rejection, and the risk of loss
will remain with the Contractor. Commodities not removed by the Contractor within ten
(10) calendar days will be deemed abandoned by the Contractor, and the Customer will
have the right to dispose of such commodities. Contractor will reimburse the Customer
for costs and expenses incurred in storing or effecting removal or disposition of rejected
commodities.
6.5 Safety Standards.
Performance of the Contract for all commodities or contractual services must comply
with requirements of the Occupational Safety and Health Act and other applicable State
of Florida and federal requirements.
6.6 Ombudsman.
A Vendor Ombudsman has been established within the Department of Financial
Services. The duties of this office are found in section 215.422, F.S., which include
disseminating information relative to prompt payment and assisting contractors in
receiving their payments in a timely manner from a Customer. The Vendor Ombudsman
may be contacted at (850) 413-5516.
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6.7 Time is of the Essence.
Time is of the essence regarding every obligation of the Contractor under the Contract.
Each obligation is deemed material, and a breach of any such obligation (including a
breach resulting from untimely performance) is a material breach.
6.8 Waiver.
The delay or failure by the Department or the Customer to exercise or enforce any rights
under the Contract will not constitute waiver of such rights.
6.9 Modification and Severability.
The Contract may only be modified by written agreement between the Department and
the Contractor. Should a court determine any provision of the Contract is invalid, the
remaining provisions will not be affected, and the rights and obligations of the Parties will
be construed and enforced as if the Contract did not contain the provision held invalid.
6.10 Cooperative Purchasing.
Pursuant to their own governing laws, and subject to the agreement of the Contractor,
governmental entities that are not Customers may make purchases under the terms and
conditions contained herein, if agreed to by Contractor. Such purchases are independent
of the Contract between the Department and the Contractor, and the Department is not a
party to these transactions. Agencies seeking to make purchases under this Contract
are required to follow the requirements of Rule 60A-1.045(5), F.A.C.
SECTION 7. LIABILITY AND INSURANCE.
7.1 Workers' Compensation Insurance.
The Contractor shall maintain workers' compensation insurance as required under the
Florida Workers' Compensation Law or the workers' compensation law of another
jurisdiction where applicable. The Contractor must require all subcontractors to similarly
provide workers' compensation insurance for all of the latter's employees. In the event
work is being performed by the Contractor under the Contract and any class of
employees performing the work is not protected under Workers' Compensation statutes,
the Contractor must provide, and cause each subcontractor to provide, adequate
insurance satisfactory to the Department, for the protection of employees not otherwise
protected.
7.2 General Liability Insurance.
The Contractor must secure and maintain Commercial General Liability Insurance,
including bodily injury, property damage, products, personal and advertising injury, and
completed operations. This insurance must provide coverage for all claims that may
arise from performance of the Contract or completed operations, whether by the
Contractor or anyone directly or indirectly employed by the Contractor. Such insurance
must include the State of Florida as an additional insured for the entire length of the
resulting contract. The Contractor is responsible for determining the minimum limits of
liability necessary to provide reasonable financial protections to the Contractor and the
State of Florida under the resulting contract.
7.3 Florida Authorized Insurers.
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All insurance shall be with insurers authorized and eligible to transact the applicable line
of insurance business in the State of Florida. The Contractor shall provide
Certification(s) of Insurance evidencing that all appropriate coverage is in place and
showing the Department to be an additional insured.
7.4 Performance Bond.
Unless otherwise prohibited by law, the Department may require the Contractor to
furnish, without additional cost to the Department, a performance bond or irrevocable
letter of credit or other form of security for the satisfactory performance of work
hereunder. The Department shall determine the type and amount of security.
7.5 Indemnification.
To the extent permitted by Florida law, the Contractor agrees to indemnify, defend, and
hold the Customer and the State of Florida, its officers, employees, and agents harmless
from all fines, claims, assessments, suits, judgments, or damages, including
consequential, special, indirect, and punitive damages, including court costs and
attorney's fees, arising from or relating to violation or infringement of a trademark,
copyright, patent, trade secret, or intellectual property right or out of any acts, actions,
breaches, neglect, or omissions of the Contractor, its employees, agents,
subcontractors, assignees, or delegates related to the Contract, as well as for any
determination arising out of or related to the Contract that the Contractor or Contractor's
employees, agents, subcontractors, assignees, or delegates are not independent
contractors in relation to the Customer. The Contract does not constitute a waiver of
sovereign immunity or consent by the Customer or the State of Florida or its subdivisions
to suit by third parties. Without limiting this indemnification, the Customer may provide
the Contractor (1) written notice of any action or threatened action, (2) the opportunity to
take over and settle or defend any such action at Contractor's sole expense, and (3)
assistance in defending the action at Contractor's sole expense.
7.6 Limitation of Liability.
Unless otherwise specifically enumerated in the Contract or in the purchase order,
neither the Department nor the Customer shall be liable for special, indirect, punitive, or
consequential damages, including lost data or records (unless the Contract or purchase
order requires the Contractor to back-up data or records), even if the Department or
Customer has been advised that such damages are possible. Neither the Department
nor the Customer shall be liable for lost profits, lost revenue, or lost institutional
operating savings. The Department or Customer may, in addition to other remedies
available to them at law or equity and upon notice to the Contractor, retain such monies
from amounts due Contractor as may be necessary to satisfy any claim for damages,
penalties, costs, and the like asserted by or against them. The State may set off any
liability or other obligation of the Contractor or its affiliates to the State against any
payments due the Contractor under any contract with the State.
SECTION 8. PUBLIC RECORDS, TRADE SECRETS, DOCUMENT MANAGEMENT,
AND INTELLECTUAL PROPERTY.
8.1 Public Records.
8.1.1 Termination of Contract.
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The Department may terminate the Contract for refusal by the Contractor to comply with
this section by not allowing access to all public records, as defined in Chapter 119, F. S.,
made or received by the Contractor in conjunction with the Contract.
8.1.2 Statutory Notice.
Pursuant to section 119.0701(2)(x), F.S., for contracts for services with a contractor
acting on behalf of a public agency, as defined in section 119.011(2), F.S., the following
applies:
IF THE CONTRACTOR HAS QUESTIONS REGARDING THE
APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE
CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS
RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN OF
PUBLIC RECORDS AT THE TELEPHONE NUMBER, EMAIL
ADDRESS, AND MAILING ADDRESS PROVIDED IN THE
RESULTING CONTRACT OR PURCHASE ORDER.
Pursuant to section 119.0701(2)(b), F.S., for contracts for services with a contractor
acting on behalf of a public agency as defined in section 119.011(2), F.S., the Contractor
shall:
(a) Keep and maintain public records required by the public agency to perform the
service.
(b) Upon request from the public agency's custodian of public records, provide the public
agency with a copy of the requested records or allow the records to be inspected or
copied within a reasonable time at a cost that does not exceed the cost provided in
Chapter 119, F.S., or as otherwise provided by law.
(c) Ensure that public records that are exempt or confidential and exempt from public
records disclosure are not disclosed except as authorized by law for the duration of the
Contract term and following the completion of the Contract if the Contractor does not
transfer the records to the public agency.
(d) Upon completion of the Contract, transfer, at no cost, to the public agency all public
records in possession of the Contractor or keep and maintain public records required by
the public agency to perform the service. If the Contractor transfers all public records to
the public agency upon completion of the Contract, the Contractor shall destroy any
duplicate public records that are exempt or confidential and exempt from public records
disclosure requirements. If the Contractor keeps and maintains public records upon
completion of the Contract, the Contractor shall meet all applicable requirements for
retaining public records. All records stored electronically must be provided to the public
agency, upon request from the public agency's custodian of public records, in a format
that is compatible with the information technology systems of the public agency.
8.2 Protection of Trade Secrets or Otherwise Confidential Information.
8.2.1 Contractor Designation of Trade Secrets or Otherwise Confidential Information.
If the Contractor considers any portion of materials to be trade secret under section
688.002 or 812.081, F.S., or otherwise confidential under Florida or federal law, the
Contractor must clearly designate that portion of the materials as trade secret or
otherwise confidential when submitted to the Department. The Contractor will be
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responsible for responding to and resolving all claims for access to Contract-related
materials it has designated trade secret or otherwise confidential.
8.2.2 Public Records Requests.
If the Department receives a public records request for materials designated by the
Contractor as trade secret or otherwise confidential under Florida or federal law, the
Contractor will be responsible for taking the appropriate legal action in response to the
request. If the Contractor fails to take appropriate and timely action to protect the
materials designated as trade secret or otherwise confidential, the Department will
provide the materials to the requester.
8.2.3 Indemnification Related to Confidentiality of Materials.
The Contractor will protect, defend, indemnify, and hold harmless the Department for
claims, costs, fines, and attorney's fees arising from or relating to its designation of
materials as trade secret or otherwise confidential.
8.3 Document Management.
The Contractor must retain sufficient documentation to substantiate claims for payment
under the Contract and all other records, electronic files, papers, and documents that
were made in relation to this Contract. The Contractor must retain all documents related
to the Contract for five (5) years after expiration of the Contract or, if longer, the period
required by the General Records Schedules maintained by the Florida Department of
State available at the Department of State's Records Management website.
8.4 Intellectual Property.
8.4.1 Ownership.
Unless specifically addressed otherwise in the Contract, the State of Florida shall be the
owner of all intellectual property rights to all property created or developed in connection
with the Contract.
8.4.2 Patentable Inventions or Discoveries.
Any inventions or discoveries developed in the course, or as a result, of services in
connection with the Contract that are patentable pursuant to 35 U.S.C. § 101 are the
sole property of the State of Florida. Contractor must inform the Customer of any
inventions or discoveries developed or made through performance of the Contract, and
such inventions or discoveries will be referred to the Florida Department of State for a
determination on whether patent protection will be sought. The State of Florida will be
the sole owner of all patents resulting from any invention or discovery made through
performance of the Contract.
8.4.3 Copyrightable Works.
Contractor must notify the Department or State of Florida of any publications, artwork, or
other copyrightable works developed in connection with the Contract. All copyrights
created or developed through performance of the Contract are owned solely by the State
of Florida.
SECTION 9. DATA SECURITY.
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The Contractor will maintain the security of State of Florida data including, but not limited
to, maintaining a secure area around any displayed visible data and ensuring data is
stored and secured when not in use. The Contractor and subcontractors will not perform
any of the services from outside of the United States, and the Contractor will not allow
any State of Florida data to be sent by any medium, transmitted, or accessed outside the
United States due to Contractor's action or inaction. In the event of a security breach
involving State of Florida data, the Contractor shall give notice to the Customer and the
Department within one business day. "Security breach" for purposes of this section will
refer to a confirmed event that compromises the confidentiality, integrity, or availability of
data. Once a data breach has been contained, the Contractor must provide the
Department with a post-incident report documenting all containment, eradication, and
recovery measures taken. The Department reserves the right in its sole discretion to
enlist a third party to audit Contractor's findings and produce an independent report, and
the Contractor will fully cooperate with the third party. The Contractor will also comply
with all HIPAA requirements and any other state and federal rules and regulations
regarding security of information.
SECTION 10. GRATUITIES, LOBBYING, AND COMMUNICATIONS.
10.1 Gratuities.
The Contractor will not, in connection with this Contract, directly or indirectly (1) offer,
give, or agree to give anything of value to anyone as consideration for any State of
Florida officer's or employee's decision, opinion, recommendation, vote, other exercise
of discretion, or violation of a known legal duty, or (2) offer, give, or agree to give to
anyone anything of value for the benefit of, or at the direction or request of, any State of
Florida officer or employee.
10.2 Lobbying.
In accordance with sections 11.062 and 216.347, F.S., Contract funds are not to be used
for the purpose of lobbying the Legislature, the judicial branch, or the Department.
Pursuant to section 287.058(6), F.S., the Contract does not prohibit the Contractor from
lobbying the executive or legislative branch concerning the scope of services,
performance, term, or compensation regarding the Contract after the Contract is
executed and during the Contract term.
10.3 Communications.
10.3.1 Contractor Communication or Disclosure.
The Contractor shall not make any public statements, press releases, publicity releases,
or other similar communications concerning the Contract or its subject matter or
otherwise disclose or permit to be disclosed any of the data or other information
obtained or furnished in compliance with the Contract, without first notifying the
Customer's Contract Manager and securing the Customer's prior written consent.
10.3.2 Use of Customer Statements.
The Contractor shall not use any statement attributable to the Customer or its
employees for the Contractor's promotions, press releases, publicity releases,
marketing, corporate communications, or other similar communications, without first
notifying the Customer's Contract Manager and securing the Customer's prior written
consent.
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SECTION 11. CONTRACT MONITORING.
11.1 Performance Standards.
The Contractor agrees to perform all tasks and provide deliverables as set forth in the
Contract. The Department and the Customer will be entitled at all times, upon request, to
be advised as to the status of work being done by the Contractor and of the details
thereof.
11.2 Performance Deficiencies and Financial Consequences of Non-Performance.
11.2.1 Proposal of Corrective Action Plan.
In addition to the processes set forth in the Contract (e.g., service level agreements), if
the Department or Customer determines that there is a performance deficiency that
requires correction by the Contractor, then the Department or Customer will notify the
Contractor. The correction must be made within a time-frame specified by the
Department or Customer. The Contractor must provide the Department or Customer with
a corrective action plan describing how the Contractor will address all performance
deficiencies identified by the Department or Customer.
11.2.2 Retainage for Unacceptable Corrective Action Plan or Plan Failure.
If the corrective action plan is unacceptable to the Department or Customer, or
implementation of the plan fails to remedy the performance deficiencies, the Department
or Customer will retain ten percent (10%) of the total invoice amount. The retainage will
be withheld until the Contractor resolves the performance deficiencies. If the
performance deficiencies are resolved, the Contractor may invoice the Department or
Customer for the retained amount. If the Contractor fails to resolve the performance
deficiencies, the retained amount will be forfeited to compensate the Department or
Customer for the performance deficiencies.
11.3 Performance Delay.
11.3.1 Notification.
The Contractor will promptly notify the Department or Customer upon becoming aware
of any circumstances that may reasonably be expected to jeopardize the timely and
successful completion (or delivery) of any commodity or contractual service. The
Contractor will use commercially reasonable efforts to avoid or minimize any delays in
performance and will inform the Department or the Customer of the steps the Contractor
is taking or will take to do so, and the projected actual completion (or delivery) time. If
the Contractor believes a delay in performance by the Department or the Customer has
caused or will cause the Contractor to be unable to perform its obligations on time, the
Contractor will promptly so notify the Department and use commercially reasonable
efforts to perform its obligations on time notwithstanding the Department's delay.
11.3.2 Liquidated Damages.
The Contractor acknowledges that delayed performance will damage the
DepartmentCustomer, but by their nature such damages are difficult to ascertain.
Accordingly, the liquidated damages provisions stated in the Contract documents will
apply. Liquidated damages are not intended to be a penalty and are solely intended to
compensate for damages.
11.4 Force Majeure, Notice of Delay, and No Damages for Delay.
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The Contractor will not be responsible for delay resulting from its failure to perform if
neither the fault nor the negligence of the Contractor or its employees or agents
contributed to the delay, and the delay is due directly to fire, explosion, earthquake,
windstorm, flood, radioactive or toxic chemical hazard, war, military hostilities, terrorism,
civil emergency, embargo, riot, strike, violent civil unrest, or other similar cause wholly
beyond the Contractor's reasonable control, or for any of the foregoing that affect
subcontractors or suppliers if no alternate source of supply is available to the Contractor.
The foregoing does not excuse delay which could have been avoided if the Contractor
implemented any risk mitigation required by the Contract. In case of any delay the
Contractor believes is excusable, the Contractor will notify the Department in writing of
the delay or potential delay and describe the cause of the delay either (1) within ten (10)
calendar days after the cause that created or will create the delay first arose, if the
Contractor could reasonably foresee that a delay could occur as a result, or (2) if delay is
not reasonably foreseeable, within five (5) calendar days after the date the Contractor
first had reason to believe that a delay could result. The foregoing will constitute the
Contractor's sole remedy or excuse with respect to delay. Providing notice in strict
accordance with this paragraph is a condition precedent to such remedy. No claim for
damages will be asserted by the Contractor. The Contractor will not be entitled to an
increase in the Contract price or payment of any kind from the Department for direct,
indirect, consequential, impact or other costs, expenses or damages, including but not
limited to costs of acceleration or inefficiency, arising because of delay, disruption,
interference, or hindrance from any cause whatsoever. If performance is suspended or
delayed, in whole or in part, due to any of the causes described in this paragraph, after
the causes have ceased to exist the Contractor will perform at no increased cost, unless
the Department determines, in its sole discretion, that the delay will significantly impair
the value of the Contract to the State of Florida or to Customers, in which case the
Department may (1) accept allocated performance or deliveries from the Contractor,
provided that the Contractor grants preferential treatment to Customers and the
Department with respect to commodities or contractual services subjected to allocation,
or (2) purchase from other sources (without recourse to and by the Contractor for the
related costs and expenses) to replace all or part of the commodity or contractual
services that are the subject of the delay, which purchases may be deducted from the
Contract quantity, or (3) terminate the Contract in whole or in part.
SECTION 12. CONTRACT AUDITS.
12.1 Performance or Compliance Audits.
The Department may conduct or have conducted performance and/or compliance audits
of the Contractor and subcontractors as determined by the Department. The Department
may conduct an audit and review all the Contractor's and subcontractors' data and
records that directly relate to the Contract. To the extent necessary to verify the
Contractor's fees and claims for payment under the Contract, the Contractor's
agreements or contracts with subcontractors, partners, or agents of the Contractor,
pertaining to the Contract, may be inspected by the Department upon fifteen (15)
calendar days' notice, during normal working hours and in accordance with the
Contractor's facility access procedures where facility access is required. Release
statements from its subcontractors, partners, or agents are not required for the
Department or its designee to conduct compliance and performance audits on any of the
Contractor's contracts relating to this Contract. The Inspector General, in accordance
with section 5.6, the State of Florida's Chief Financial Officer, the Office of the Auditor
General also have authority to perform audits and inspections.
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12.2 Payment Audit.
Records of costs incurred under terms of the Contract will be maintained in accordance
with section 8.3 of these Special Contract Conditions. Records of costs incurred will
include the Contractor's general accounting records, together with supporting documents
and records of the Contractor and all subcontractors performing work, and all other
records of the Contractor and subcontractors considered necessary by the Department,
the State of Florida's Chief Financial Officer, or the Office of the Auditor General.
SECTION 13. BACKGROUND SCREENING AND SECURITY.
13.1 Background Check.
The Department or Customer may require the Contractor to conduct background checks
of its employees, agents, representatives, and subcontractors as directed by the
Department or Customer. The cost of the background checks will be borne by the
Contractor. The Department or Customer may require the Contractor to exclude the
Contractor's employees, agents, representatives, or subcontractors based on the
background check results. In addition, the Contractor must ensure that all persons have
a responsibility to self-report to the Contractor within three (3) calendar days any arrest
for any disqualifying offense. The Contractor must notify the Contract Manager within
twenty-four (24) hours of all details concerning any reported arrest. Upon the request of
the Department or Customer, the Contractor will re-screen any of its employees, agents,
representatives, and subcontractors during the term of the Contract.
13.2 E-Verify.
The Contractor must use the U.S. Department of Homeland Security's E-Verify system
to verify the employment eligibility of all new employees hired during the term of the
Contract for the services specified in the Contract. The Contractor must also include a
requirement in subcontracts that the subcontractor must utilize the E-Verify system to
verify the employment eligibility of all new employees hired by the subcontractor during
the Contract term. In order to implement this provision, the Contractor must provide a
copy of its DHS Memorandum of Understanding (MOU) to the Contract Manager within
five (5) calendar days of Contract execution. If the Contractor is not enrolled in DHS E-
Verify System, it will do so within five (5) calendar days of notice of Contract award and
provide the Contract Manager a copy of its MOU within five (5) calendar days of
Contract execution. The link to E-Verify is https://www.uscis.gov/e-verify. Upon each
Contractor or subcontractor new hire, the Contractor must provide a statement within
five (5) calendar days to the Contract Manager identifying the new hire with its E-Verify
case number.
13.3 Disqualifying Offenses.
If at any time it is determined that a person has been found guilty of a misdemeanor or
felony offense as a result of a trial or has entered a plea of guilty or nolo contendere,
regardless of whether adjudication was withheld, within the last six (6) years from the
date of the court's determination for the crimes listed below, or their equivalent in any
jurisdiction, the Contractor is required to immediately remove that person from any
position with access to State of Florida data or directly performing services under the
Contract. The disqualifying offenses are as follows:
(a) Computer related crimes;
(b) Information technology crimes;
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(c) Fraudulent practices;
(d) False pretenses;
(e) Frauds;
(f) Credit card crimes;
(g) Forgery;
(h) Counterfeiting;
(i) Violations involving checks or drafts;
0) Misuse of medical or personnel records; and
(k) Felony theft.
13.4 Confidentiality.
The Contractor must maintain confidentiality of all confidential data, files, and records
related to the commodities or contractual services provided pursuant to the Contract and
must comply with all state and federal laws, including, but not limited to sections
381.004, 384.29, 392.65, and 456.057, F.S. The Contractor's confidentiality procedures
must be consistent with the most recent version of the Department security policies,
protocols, and procedures. The Contractor must also comply with any applicable
professional standards with respect to confidentiality of information.
SECTION 14. WARRANTY OF CONTRACTOR'S ABILITY TO PERFORM.
The Contractor warrants that, to the best of its knowledge, there is no pending or
threatened action, proceeding, or investigation, or any other legal or financial condition,
that would in any way prohibit, restrain, or diminish the Contractor's ability to satisfy its
Contract obligations. The Contractor warrants that neither it nor any affiliate is currently
on the Suspended Vendor List, Convicted Vendor List, or the Discriminatory Vendor List,
or on any similar list maintained by any other state or the federal government. The
Contractor shall immediately notify the Department in writing if its ability to perform is
compromised in any manner during the term of the Contract.
SP approved version 7-1-2019 17
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FLORIDA DEPARTMENT OF MANAGEMENT SERVICES
dms Matepurchasing
We serve those who serve Florida
AMENDMENT NO.: 1
Participating Addendum No: 43190000-18-NASPO-ACS-1
Public Safety Communication Equipment- Phase One#06913
This Amendment ("Amendment"), effective as of February 5, 2019, or the last date signed by
both parties, to the Participating Addendum ("PA") adopting the Public Safety Communication
Equipment, Phase One Contract No. 43190000-18-NASPO-ACS-1 (Alternate Contract Source,
"ACS", or"Contract"), between the State of Florida, Department of Management Services
("Department") and Motorola Solutions ("Contractor'), are collectively referred to herein as the
"Parties". All capitalized terms used herein shall have the meaning assigned to them in the ACS
unless otherwise defined herein.
WHEREAS, on January 1, 2018, the Department originally entered into the PA with Motorola
Solutions for the provision of a Public Safety Communication Equipment, Phase One; and,
WHEREAS, the Parties agreed that the PA may be amended by mutual agreement as provided
in section 6.10, Modification and Severability, of Exhibit A, Florida General Contract
Conditions,incorporated into the PA; and,
WHEREAS, the Parties agree to amend the PA, section 2.1,Term and Effective Date, of Exhibit
A,Florida General Contract Conditions, incorporated into the PA; and,
THEREFORE, in consideration of the mutual promises contained below, and other good and
valuable consideration, receipt, and sufficiency of which are hereby acknowledged, the Parties
agree to the following:
I. Contract Amendment. The PA is amended to replace section 2.1, Term and Effective
Date, of Exhibit A, Florida General Contract Conditions, in its entirety to correct the
expiration date of the PA to reflect the original intent of the parties to have the PA expire
on the same date as the NASPO Master Agreement. Section 2.1 of Exhibit A, Florida
General Contract Conditions, is hereby replaced in its entirety as follows:
2.1 Term and Effective Date.
The term of this Participating Addendum will become effective on January 1, 2018, and
shall be effective through June 30, 2021, unless terminated earlier in accordance with
the Florida General Contract Conditions.
II. Conflict. To the extent any of the terms of this Amendment conflict with the terms of the
ACS, the terms of this Amendment shall control.
III. Warrant of Authority. Each person signing this Amendment warrants that he or she is
duly authorized to do so and to bind the respective party.
Public Safety Communication Equipment- Phase One Page 1 of 2
Alternate Contract Source No.: 43190000-18-NASPO-ACS-1
81
IV. Effect. Unless as otherwise modified by this Amendment, all terms and conditions
contained in the ACS shall continue in full force and effect. This Amendment sets forth the
entire understanding between the parties with regard to this subject matter hereof.
IN WITNESS WHEREOF, the Parties have executed this Amendment by their duly authorized
representatives.
State of Florida: Contractor:
Department of Management Services Motorola Solutions
By: By:
Name: Rosalyn Ingram Name:
Title: Director and Chief Procurement Officer Title:
Date: Date:
Public Safety Communication Equipment- Phase One Page 2 of 2
Alternate Contract Source No.: 43190000-18-NASPO-ACS-1
82
IV. Effect. Unless as otherwise modified by this Amendment, all terms and conditions
contained in the ACS shall continue in full force and effect. This Amendment sets forth the
entire understanding between the parties with regard to this subject matter hereof.
IN WITNESS WHEREOF, the Parties have executed this Amendment by their duly authorized
representatives.
State of Florida: Contractor:
Departmen f Ma agement Services Motorola Solut s
By: By: sir
Name: Ros vn In m Name: Rand nson
Title: Director ind ief Procurement Officer Title: MSSSI Vice President
Date: �'� I Date: 2-20-2099
Public Safety Communication Equipment-Phase One Page 2 of 2
Alternate Contract Source No.:43190000-18-NASPO ACS-1
83
NASPO ValuePoint
PARTICIPATING ADDENDUM
Public Safety Communication Equipment- Phase One#06913
Lead by the State of Washington (hereinafter "Lead State")
Participating Addendum No: 43190000-18-NASPO-ACS-1
Motorola Solutions
(hereinafter"Contractor')
And
Florida Department of Management Services
(Hereinafter "Participating State/Entity")
Page 1 of 19
1. Scope: This addendum covers the purchase of public safety communication equipment and is for
use by state agencies and other entities located in the Participating State/Entity authorized by that
state's statutes to utilize state/entity contracts with the prior approval of the state's chief procurement
official.
Contractor has been awarded the following categories:
Radios
Subcategory: Portable, Dual-Band
Subcategory: Portable, Single-Band tier I
Subcategory: Portable, Single-Band tier 11
Subcategory: Portable, Single-Band tier III
Subcategory: Mobile, Dual-Band
Subcategory: Mobile, Single-Band tier I
Subcategory: Mobile, Single-Band tier 11
Subcategory: Mobile, Single-Band tier III
Subcategory: Desktop, Dual-Band
Subcategory: Desktop, Single-Band tier I
Subcategory: Desktop, Single-Band tier 11
Base Stations/Repeaters:
Single-Band tier I
Single-Band tier 11
Mobile Radio Antennas
2. Participation: Use of specific NASPO ValuePoint cooperative contracts by agencies, political
subdivisions and other entities (including cooperatives) authorized by an individual state's statutes to
use state/entity contracts are subject to the prior approval of the respective State Chief Procurement
Official. Issues of interpretation and eligibility for participation are solely within the authority of the
State Chief Procurement Official.
3. Participating State Modifications or Additions to Master Agreement: These modifications or
additions apply only to actions and relationships within the Participating State. The following changes
are modifying or supplementing the Master Agreement terms and conditions.
a. Participating Addendum: As used in this document, "Participating Addendum" (whether or
not capitalized) shall, unless the context requires otherwise, include this document and all
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incorporated Exhibits, which set forth the entire understanding of the Parties and supersedes
all prior agreements. All modifications to this Participating Addendum must be in writing and
signed by all Parties.
b. Exhibits: All Exhibits attached and listed below are incorporated in their entirety into, and
form part of this Participating Addendum:
1) Exhibit A: Contract Conditions, Florida General
2) Exhibit B. Contract Conditions, Florida Special
3) Exhibit C: NASPO ValuePoint Master Agreement Number 06913
If a conflict exists among any of the Participating Addendum documents, the documents
shall have priority in the order listed below:
1) The Addendum
2) Florida Special Contract Conditions, Exhibit B
3) Florida General Contract Conditions, Exhibit A
4) NASPO ValuePoint Master Agreement Number, 06913, Exhibit C.
4. Orders: Upon execution of this Participating Addendum, customers in the Participating State, may
purchase products and services under the Master Agreement using this State of Florida alternate
contract source number 43190000-18-NASPO-ACS-1.
Any order placed by a customer in the Participating State for a product and/or service available from
the Master Agreement, shall be deemed to be a sale under (and governed by the prices and other
terms and conditions) of the Master Agreement, unless the parties to the order agree in writing that
another contract or agreement applies to such order.
5. Warranty of Authority: Each Person signing this document warrants that he or she is dully
authorized to do so and to bind the respective party.
6. Amendments: No oral modifications to this Participating Addendum are permitted. All modifications
to this Participating Addendum must be in writing and signed by both parties.
Notwithstanding the order listed in section III (b), amendments executed after the Participating
Addendum is executed may expressly change the provisions of the Participating Addendum. If they
do so expressly, then the most recent amendment will take precedence over anything else that is part
of the Participating Addendum.
IN WITNESS WHEREOF, the parties have executed this Addendum as of the date of execution by
both parties below.
Partici ati Sto-Florift C ntra r:
By: y:
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Name:910 I a m
vrk�avrt�
Title:Director o tate Purchasin4lghid
Chief Procureme t 2&62r ! / ll Cj
Date: // LAE Date: /
85
Page 3 of 19
Alternate Contract Source No. 43190000-18-NASPO-ACS-1
Exhibit A
FLORIDA GENERAL CONTRACT CONDITIONS
Table of Contents
SECTION 1. DEFINITIONS. ......................................................................................................3
SECTION 2. CONTRACT TERM AND TERMINATION. ............................................................3
SECTION 3. PAYMENT AND FEES..........................................................................................4
SECTION 4. CONTRACT MANAGEMENT................................................................................6
SECTION 5. COMPLIANCE WITH LAWS. ................................................................................7
SECTION 6. MISCELLANEOUS................................................................................................8
SECTION 7. WORKERS' COMPENSATION AND GENERAL LIABILITY INSURANCE,
AND INDEMNIFICATION .........................................................................................................10
SECTION 8. PUBLIC RECORDS, TRADE SECRETS, DOCUMENT MANAGEMENT AND
INTELLECTUAL PROPERTY...................................................................................................11
SECTION 9. DATA SECURITY AND SERVICES. ...................................................................12
SECTION 10. GRATUITIES AND LOBBYING.........................................................................13
SECTION 11. CONTRACT MONITORING. .............................................................................14
SECTION 12. CONTRACT AUDITS. .......................................................................................15
SECTION 13. BACKGROUND SCREENING AND SECURITY. ..............................................16
These General Contract Conditions supersede and replace in their entirety all
General Contract Conditions, Form PUR 1000, which is incorporated by reference in
Rule 60A-1.002, Florida Administrative Code (F.A.C.)
SECTION 1. DEFINITIONS.
The following definition applies in addition to the definitions in Chapter 287, Florida
Statutes, (F.S.) and Rule Chapter 60A-1, F.A.C.:
1.1 Customer.
The agency or eligible user that purchases commodities or contractual services pursuant to
the Contract.
SECTION 2. CONTRACT TERM AND TERMINATION.
2.1 Term and Effective Date.
The term of this Participating Addendum will become effective on January 1, 2018, and shall be
effective through July 01, 2020, unless terminated earlier in accordance with the General
Contract Conditions or if not renewed by the Lead State.
2.2 Renewal.
There are no renewals on this Participating Addendum.
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2.3 Suspension of Work and Termination.
2.3.1 Suspension of Work.
The Department may, at its sole discretion, suspend any or all activities under the
Contract, at any time, when it is in the best interest of the State of Florida to do so.
A Customer may, at its sole discretion, suspend a resulting contract or purchase
order, at any time, when in the best interest of the Customer to do so. The
Department or Customer will provide the Contractor written notice outlining the
particulars of suspension. Examples of the reason for suspension include, but are
not limited to, budgetary constraints, declaration of emergency, or other such
circumstances. After receiving a suspension notice, the Contractor must comply
with the notice and will cease the activities associated with any resulting contract or
purchase order. Within 90 days, or any longer period agreed to by the Contractor,
the Department or Customer will either (1) issue a notice authorizing resumption of
work, at which time activity will resume, or (2) terminate the Contract or a resulting
contract or purchase order. Suspension of work will not entitle the Contractor to any
additional compensation.
2.3.2 Termination for Convenience.
The Contract may be terminated by the Department in whole or in part at any time,
in the best interest of the State of Florida. If the Contract is terminated before
performance is completed, the Contractor will be paid only for that work satisfactorily
performed for which costs can be substantiated. Such payment, however, may not
exceed an amount which is the same percentage of the Contract price as the
amount of work satisfactorily performed. All work in progress will become the
property of the Customer and will be turned over promptly by the Contractor.
2.3.3 Termination for Cause.
If the Department determines that the performance of the Contractor is not
satisfactory, the Department may, at its sole discretion, (a) immediately terminate
the Contract, (b) notify the Contractor of the deficiency with a requirement that the
deficiency be corrected within a specified time, otherwise the Contract will terminate
at the end of such time, or (c) take other action deemed appropriate by the
Department.
SECTION 3. PAYMENT AND FEES.
3.1 Pricing.
The Contractor will not exceed the pricing set forth in the Contract.
3.2 Price Decreases.
The following price decrease terms will apply to the Contract:
(a) Quantity Discounts. Contractor may offer additional discounts for one-time
delivery of large single orders.
(b) Preferred Pricing. Consistent with the goals of section 216.0113, F.S., Contractor
acknowledges and recognizes that the Department wants to take advantage of any
improvements in pricing over the course of the Contract period. To that end, the
pricing indicated in this Contract is a maximum guarantee under the terms of this
clause. Contractor's pricing will not exceed, on an aggregate basis, the pricing
offered under comparable contracts for public entities. Comparable contracts are
those which are similar in size, scope and terms. The Contractor shall submit to the
Department a completed Preferred Pricing affidavit form annually.
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(c) Sales Promotions. In addition to decreasing prices for the balance of the
Contract term due to a change in market conditions, a Contractor may conduct sales
promotions involving price reductions for a specified lesser period. A Contractor
must submit documentation identifying the proposed (1) starting and ending dates of
the promotion, (2) commodities or contractual services involved, and (3) promotional
prices compared to then-authorized prices.
3.3 Payment Invoicing.
The Contractor will be paid upon submission of properly certified invoices to the Customer
after delivery and acceptance of commodities or contractual services is confirmed by the
Customer. Invoices must contain detail sufficient for an audit and contain the Contract
Number and the Contractor's Federal Employer Identification Number.
3.4 Purchase Order.
A Customer may use purchase orders to buy commodities or contractual services pursuant
to the Contract. The Contractor must provide commodities or contractual services pursuant
to purchase orders. The purchase order period of performance survives the expiration of
the Contract. The duration of purchase orders must not exceed the expiration of the
Contract by more than 12 months.
3.5 Travel.
Travel expenses are not reimbursable unless specifically authorized by the Customer in
writing, and may be reimbursed only in accordance with section 112.061, F.S.
3.6 Annual Appropriation.
Pursuant to section 287.0582, F.S., if the Contract binds the State of Florida or an
agency for the purchase of services or tangible personal property for a period in excess
of one fiscal year, the State of Florida's performance and obligation to pay under the
Contract is contingent upon an annual appropriation by the Legislature.
3.7 Transaction Fees.
The State of Florida, through the Department of Management Services, has instituted
MyFloridaMarketPlace, a statewide eProcurement system pursuant to section 287.057(22),
Florida Statutes. All payments issued by Customers to registered Vendors for purchases of
commodities or contractual services will be assessed Transaction Fees as prescribed by
rule 60A-1.031, Florida Administrative Code, or as may otherwise be established by law.
Vendors must pay the Transaction Fees and agree to automatic deduction of the
Transaction Fees, when automatic deduction becomes available. Vendors will submit any
monthly reports required pursuant to the rule. All such reports and payments will be subject
to audit. Failure to comply with the payment of the Transaction Fees or reporting of
transactions will constitute grounds for declaring the Vendor in default and subject the
Vendor to exclusion from business with the State of Florida.
3.8 Taxes.
The State of Florida is not required to pay any taxes, including customs and tariffs, on
commodities or contractual services purchased under the Contract.
3.9 Return of Funds.
Contractor will return any overpayments due to unearned funds or funds disallowed
pursuant to the terms of the Contract that were disbursed to the Contractor by the
Department or Customer. The Contractor must return any overpayment within 40 calendar
days after either discovery by the Contractor, its independent auditor, or notification by the
Department or Customer of the overpayment.
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SECTION 4. CONTRACT MANAGEMENT.
4.1 Composition and Priority.
The Contractor agrees to provide commodities or contractual services to the Customer
within the manner and at the location specified in the Contract and any attachments to the
Contract. Additionally, the terms of the Contract supersede the terms of any and all prior or
contemporaneous agreements between the Parties.
4.2 Notices.
All notices required under the Contract must be delivered to the designated Contract
Manager by certified mail, return receipt requested, by reputable air courier service, email,
or by personal delivery, or as otherwise identified by the Department.
4.3 Department's Contract Manager.
The Department's Contract Manager, is primarily responsible for the Department's
oversight of the Contract. In the event that the Department changes the Contract Manager,
the Department will notify the Contractor. Such a change does not require an amendment
to the Contract.
4.4 Contractor's Contract Manager.
The Contractor's Contract Manager is primarily responsible for the Contractor's oversight of
the Contract performance. In the event that the Contractor changes its Contract Manager,
the Contractor will notify the Department. Such a change does not require an amendment
to the Contract.
4.5 Diversity Reporting.
The State of Florida supports its diverse business community by creating opportunities for
woman-, veteran-, and minority-owned small business enterprises to participate in
procurements and contracts. The Department encourages supplier diversity through
certification of woman-, veteran-, and minority-owned small business enterprises, and
provides advocacy, outreach, and networking through regional business events. For
additional information, please contact the Office of Supplier Diversity (OSD) at
osdinfo@dms.myflorida.com.
Upon request, the Contractor will report to the Department its spend with business
enterprises certified by the OSD. These reports must include the time period covered, the
name and Federal Employer Identification Number of each business enterprise utilized
during the period, commodities and contractual services provided by the business
enterprise, and the amount paid to the business enterprise on behalf of each Customer
purchasing under the Contract.
4.6 RESPECT.
Subject to the agency determination provided for in Section 413.036, F.S., the following
statement applies:
IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT ANY ARTICLES THAT ARE THE
SUBJECT OF, OR REQUIRED TO CARRY OUT, THIS CONTRACT SHALL BE
PURCHASED FROM A NONPROFIT AGENCY FOR THE BLIND OR FOR THE
SEVERELY HANDICAPPED THAT IS QUALIFIED PURSUANT TO CHAPTER 413,
FLORIDA STATUTES, IN THE SAME MANNER AND UNDER THE SAME PROCEDURES
SET FORTH IN SECTION 413.036(1) AND (2), FLORIDA STATUTES; AND FOR
PURPOSES OF THIS CONTRACT THE PERSON, FIRM, OR OTHER BUSINESS ENTITY
CARRYING OUT THE PROVISIONS OF THIS CONTRACT SHALL BE DEEMED TO BE
SUBSTITUTED FOR THE STATE AGENCY INSOFAR AS DEALINGS WITH SUCH
QUALIFIED NONPROFIT AGENCY ARE CONCERNED.
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Additional information about the designated nonprofit agency and the commodities or
contractual services it offers is available at http://www.respectofflorida.or-Q.
4.7 PRIDE.
Subject to the agency determination provided for in Sections 946.515 and 287.042(1), F.S.,
the following statement applies:
IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT ANY ARTICLES WHICH ARE
THE SUBJECT OF, OR REQUIRED TO CARRY OUT, THIS CONTRACT SHALL BE
PURCHASED FROM THE CORPORATION IDENTIFIED UNDER CHAPTER 946, F.S., IN
THE SAME MANNER AND UNDER THE SAME PROCEDURES SET FORTH IN
SECTION 946.515(2) AND (4), F.S.; AND FOR PURPOSES OF THIS CONTRACT THE
PERSON, FIRM, OR OTHER BUSINESS ENTITY CARRYING OUT THE PROVISIONS
OF THIS CONTRACT SHALL BE DEEMED TO BE SUBSTITUTED FOR THIS AGENCY
INSOFAR AS DEALINGS WITH SUCH CORPORATION ARE CONCERNED.
Additional information about PRIDE and the commodities or contractual services it offers is
available at http://www.pride-enterprises.org.
SECTION 5. COMPLIANCE WITH LAWS.
5.1 Conduct of Business.
The Contractor must comply with all laws, rules, codes, ordinances, and licensing
requirements that are applicable to the conduct of its business, including those of federal,
state, and local agencies having jurisdiction and authority. For example, the Contractor
must comply with Section 274A of the Immigration and Nationality Act, the Americans with
Disabilities Act, Health Insurance Portability and Accountability Act, and all prohibitions
against discrimination on the basis of race, religion, sex, creed, national origin, handicap,
marital status, or veteran's status.
Pursuant to subsection 287.058(1), F.S., the provisions of subparagraphs 287.058(1)(a)-(c),
F.S., are hereby incorporated by reference, to the extent applicable.
5.2 Governing Law and Venue.
The laws of the State of Florida govern the Contract. The Parties submit to the jurisdiction
of the courts of the State of Florida exclusively for any legal action related to the Contract.
Further, the Contractor hereby waives any and all privileges and rights relating to venue it
may have under Chapter 47, F.S., and any and all such venue privileges and rights it may
have under any other statute, rule, or case law, including, but not limited to those based on
convenience. The Contractor hereby submits to venue in the county chosen by the
Department.
5.3 Department of State Registration.
The Contractor and any subcontractors that assert corporate status must provide the
Department with conclusive evidence, per section 607.0127, F.S., of a certificate of status,
not subject to qualification, if a Florida business entity, or of a certificate of authorization if a
foreign business entity and maintain such status or authorization through the life of the
Contract and any resulting contract or purchase order.
5.4 Convicted and Discriminatory Vendor Lists.
In accordance with sections 287.133 and 287.134, F.S., an entity or affiliate who is on the
Convicted Vendor List or the Discriminatory Vendor List may not perform work as a
contractor, supplier, subcontractor, or consultant under the Contract. The Contractor must
notify the Department if it or any of its suppliers, subcontractors or consultants have been
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placed on the Convicted Vendor List or the Discriminatory Vendor List during the term of
the Contract.
5.5 Contractor Certification.
If the Contract exceeds $1,000,000.00 in total, not including renewal years, Contractor
certifies that it is not listed on either the Scrutinized Companies with Activities in Sudan List,
the Scrutinized Companies with Activities in the Iran Petroleum Energy Sector List, or the
Scrutinized Companies that Boycott Israel List created pursuant to sections 215.473, F.S.
and 215.4725 F.S, respectively. Pursuant to section 287.135(5), F.S., and 287.135(3),
F.S., Contractor agrees the Department may immediately terminate the Contract for cause
if the Contractor is found to have submitted a false certification or if Contractor is placed on
the Scrutinized Companies with Activities in Sudan List, the Scrutinized Companies with
Activities in the Iran Petroleum Energy Sector List, or the Scrutinized Companies that
Boycott Israel List, or is engaged in a boycott of Israel during the term of the Contract.
5.6 Cooperation with Inspector General.
Pursuant to subsection 20.055(5), F.S., Contractor, and any subcontractor to the
Contractor, understand and will comply with their duty to cooperate with the Inspector
General in any investigation, audit, inspection, review, or hearing. Upon request of the
Inspector General or any other authorized State official, the Contractor must provide any
type of information the Inspector General deems relevant to the Contractor's integrity or
responsibility. Such information may include, but will not be limited to, the Contractor's
business or financial records, documents, or files of any type or form that refer to or relate
to the Contract. The Contractor will retain such records for five years after the expiration of
the Contract, or the period required by the General Records Schedules maintained by the
Florida Department of State (available at: http://dos.myflorida.com/library-archives/records-
management/general-records-schedules/), whichever is longer. The Contractor agrees to
reimburse the State of Florida for the reasonable costs of investigation incurred by the
Inspector General or other authorized State of Florida official for investigations of the
Contractor's compliance with the terms of this or any other agreement between the
Contractor and the State of Florida which results in the suspension or debarment of the
Contractor. Such costs will include, but will not be limited to: salaries of investigators,
including overtime; travel and lodging expenses; and expert witness and documentary fees.
5.7 Inspection.
Section 215.422, F.S., provides that agencies have five working days to inspect and
approve commodities or contractual services. Items may be tested for compliance with
specifications. Items delivered not conforming to specifications may be rejected and
returned at the Contractor's expense.
SECTION 6. MISCELLANEOUS.
6.1 Notice of Legal Actions.
The Contractor will use its best efforts to notify the Department of any legal actions filed
against it for a violation of any laws, rules, codes, ordinances or licensing requirements
occurring within the U.S., within 30 days of the action being filed. The Contractor must
notify the Department of any legal actions filed against it in the U.S. for a breach of a
contract of similar size and scope to this Contract within 30 days of the action being filed.
Failure to notify the Department of a legal action within 30 days of the action may be
grounds for termination for cause of the Contract pursuant to section 2.3.3(b) herein.
6.2 Subcontractors.
The Contractor will not subcontract any work under the Contract without prior written
consent of the Department. The Contractor is fully responsible for satisfactory completion of
all subcontracted work. The Department supports diversity in its procurements and
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contracts, and requests that Contractor offer subcontracting opportunities to certified
woman-, veteran-, and minority-owned small businesses. The Contractor may contact the
OSD at osdhelp(a)dms.myflorida.com for information on certified small business enterprises
available for subcontracting opportunities.
6.3 Assignment.
The Contractor will not sell, assign or transfer any of its rights, duties or obligations under
the Contract without the prior written consent of the Department. In the event of any
assignment, the Contractor remains secondarily liable for performance of the Contract. The
Department may assign the Contract to another state agency.
6.4 Independent Contractor.
The Contractor and its employees, agents, representatives, and subcontractors are not
employees or agents of the Department and are not entitled to the benefits of State of
Florida employees. The Department will not be bound by any acts or conduct of the
Contractor or its employees, agents, representatives, or subcontractors. The Contractor
agrees to include this provision in all of its subcontracts under the Contract.
6.5 Risk of Loss.
Until acceptance of delivery, risk of loss or damage will remain with the Contractor. The
Contractor will be responsible for filing, processing, and collecting all damage claims. To
assist the Contractor with damage claims, the Customer will: record any evidence of visible
damage on all copies of the delivering carrier's Bill of Lading; report damages to the carrier
and the Contractor; and provide the Contractor with a copy of the carrier's Bill of Lading and
damage inspection report. When a Customer or the Department rejects a commodity,
Contractor will remove the commodity from the premises within 10 days after notification of
rejection, and the risk of loss will remain with the Contractor. Commodities not removed by
the Contractor within 10 days will be deemed abandoned by the Contractor and the
Customer or the Department will have the right to ship the equipment back to the
Contractor and bill the Contractor for the cost of shipping and time spent. Contractor will
reimburse the Customer or the Department for costs and expenses incurred in storing or
effecting removal or disposition of rejected commodities.
6.6 Safety Standards.
All manufactured items and fabricated assemblies subject to operation under pressure,
operation by connection to an electric source, or operation involving connection to a
manufactured, natural, or LP gas source shall be constructed and approved in a manner
acceptable to the appropriate State of Florida inspector. Acceptability customarily requires,
at a minimum, an identification marking of the appropriate safety standard organization,
where such approvals of listings have been established for the type of device offered and
furnished, for example: the American Society of Mechanical Engineers for pressure
vessels; the Underwriters Laboratories, and National Electrical Manufacturers' Association
for electrically operated assemblies; and the American Gas Association for gas-operated
assemblies. In addition, all items furnished must meet all applicable requirements of the
Occupational Safety and Health Act and State of Florida and federal requirements relating
to clean air and water.
6.7 Ombudsman.
A Vendor Ombudsman has been established within the Department of Financial Services.
The duties of this office are found in section 215.422, F.S., which include disseminating
information relative to prompt payment and assisting contractors in receiving their payments
in a timely manner from a Customer. The Vendor Ombudsman may be contacted at (850)
413-5516.
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6.8 Waiver.
The delay or failure by the Department or Customer to exercise or enforce any rights under
the Contract will not constitute waiver of such rights.
6.9 Modification and Severability.
The Contract may only be modified by written agreement between the Department and the
Contractor. Should a court determine any provision of the Contract is invalid, the remaining
provisions will not be affected, and the rights and obligations of the Parties will be construed
and enforced as if the Contract did not contain the provision held invalid.
SECTION 7. WORKERS' COMPENSATION AND GENERAL LIABILITY INSURANCE,
AND INDEMNIFICATION
7.1 Workers' Compensation Insurance.
To the extent required by law, the Contractor must be self-insured against, or must secure
and maintain during the life of the contract, Worker's Compensation Insurance for all its
employees connected with the work of this project, and in case any work is subcontracted,
the Contractor must require the subcontractor similarly to provide Worker's Compensation
Insurance for all of the latter's employees unless such employees engaged in work under
the resulting contract are covered by the Contractor's insurance program. Self-insurance or
insurance coverage must comply with the Florida Worker's Compensation law. In the event
hazardous work is being performed by the Contractor under the resulting contract or
purchase order and any class of employees performing the hazardous work is not protected
under Worker's Compensation statutes, the Contractor must provide, and cause each
subcontractor to provide adequate insurance satisfactory to the Department for the
protection of employees not otherwise protected.
7.2 General Liability Insurance
The Contractor must secure and maintain Commercial General Liability Insurance including
bodily injury, property damage, product-liability, personal & advertising injury and completed
operations. This insurance must provide coverage for all claims that may arise from the
services, and operations completed under the Contract and any resulting contract or
purchase order, whether such services or operations are by the Contractor or anyone
directly or indirectly employed by them. Such insurance must include the State of Florida
as an Additional Insured for the entire length of the Contract and any resulting contract or
purchase order. The Contractor is responsible for determining the minimum limits of liability
necessary to provide reasonable financial protections to the Contractor and the State of
Florida under the Contract and any resulting contract or purchase order.
All insurance policies must be with insurers licensed or eligible to transact business in the
State of Florida. The Contractor's current certificate of insurance will contain a standard
notice of cancellation provision that should the policy be cancelled before the expiration
date, notice will be delivered in accordance with policy provisions to the Department's
Contract Manager.
The Contractors must submit insurance certificates evidencing such insurance coverage
prior to execution of a contract with the Department.
The Contractor must require its insurance carrier to include the Department as an additional
insured, as provided below:
Florida Department of Management Services
c/o Division of State Purchasing
4050 Esplanade Way, Suite 36060
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Tallahassee, Florida 32399-0950
7.3 Indemnification.
The Contractor agrees to indemnify, defend, and hold the Department, Customer, the State
of Florida, its officers, employees and agents harmless from all fines, claims, assessments,
suits, judgments, or direct damages, arising from or relating to violation or infringement of a
trademark, copyright, patent, or intellectual property right or out of any acts, actions,
breaches, neglect or omissions of the Contractor, its employees, agents, subcontractors,
assignees or delegates related to the Contract, as well as for any determination arising out
of or related to the Contract that the Contractor or Contractor's employees, agents,
subcontractors, assignees or delegates are not independent contractors in relation to the
Department. The Contract does not constitute a waiver of sovereign immunity or consent by
the Department or the State of Florida or its subdivisions to suit by third parties.
Without limiting this indemnification, the Department or Customer may provide the
Contractor (1) written notice of any action or threatened action, (2) the opportunity to take
over and settle or defend any such action at Contractor's sole expense, and (3) assistance
in defending the action at Contractor's sole expense.
SECTION 8. PUBLIC RECORDS, TRADE SECRETS, DOCUMENT MANAGEMENT AND
INTELLECTUAL PROPERTY.
8.1 Public Records.
The Department may unilaterally cancel this Contract for refusal by the Contractor to
comply with this section by not allowing public access to all documents, papers, letters or
other material made or received by the Contractor in conjunction with the Contract, unless
the records are exempt from section 24(a) of Article I of the State Constitution and section
119.07(1), F.S.
Solely for the purposes of this section the contract manager is the agency custodian of
public records, unless another is designated per (e), below.
If, under a resulting contract or purchase order, the Contractor is providing services and is
acting on behalf of a public agency, as provided by section 119.0701, Florida Statutes. The
Contractor shall:
(a) Keep and maintain public records required by the public agency to perform the
service;
(b) Upon request from the public agency's custodian of public records, provide the
public agency with a copy of the requested records or allow the records to be
inspected or copied within reasonable time and at a cost that does not exceed the
cost provided in Chapter 119, Florida Statutes, or as otherwise provided by law;
(c) Ensure that public records that are exempt or confidential and exempt from
public records disclosure are not disclosed except as authorized by law for the
duration of the contract term and following the completion of the contract if the
contractor does not transfer the records to the public agency;
(d) Upon completion of the contract, transfer, at no cost, to the public agency all
public records in possession of the Contractor or keep and maintain public records
required by the public agency to perform the service. If the contractor transfers all
public records to the public agency upon completion of the contract, the contractor
shall destroy any duplicate public records that are exempt or confidential and
exempt from public records disclosure requirements. If the contractor keeps and
maintains public records upon completion of the contract, the contractor shall meet
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all applicable requirements for retaining public records. All records stored
electronically must be provided to the public agency, upon request from the public
agency's custodian of public records, in a format that is compatible with the
information technology systems of the public agency; and
(e) IF THE CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION
OF CHAPTER 119, FLORIDA STATUTES, TO THE CONTRACTOR'S DUTY TO
PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTACT THE
CUSTODIAN OF PUBLIC RECORDS AT THE TELEPHONE NUMBER, EMAIL
ADDRESS AND MAILING ADDRESS PROVIDED IN THE RESULTING
CONTRACT OR PURCHASE ORDER.
8.2 Protection of Trade Secrets or Confidential Information.
If the Contractor considers any portion of materials made or received in the course of
performing the Contract ("contract-related materials") to be trade secret under section
812.081, F.S., or otherwise confidential under Florida or federal law, the Contractor must
clearly designate that portion of the materials as "confidential" when submitted to the
Department.
If the Department receives a public records request for contract-related materials
designated by the Contractor as "confidential," the Department will provide only the portions
of the contract-related materials not designated as "confidential." If the requester asserts a
right to examine contract-related materials designated as "confidential," the Department will
notify the Contractor. The Contractor will be responsible for responding to and resolving all
claims for access to contract-related materials it has designated "confidential."
If the Department is served with a request for discovery of contract-related materials
designated "confidential," the Department will promptly notify the Contractor about the
request. The Contractor will be responsible for filing the appropriate motion or objection in
response to the request for discovery. The Department will provide materials designated
"confidential" only if the Contractor fails to take appropriate action, within timeframes
established by statute and court rule, to protect the materials designated as "confidential"
from disclosure.
The Contractor will protect, defend, and indemnify the Department for claims, costs, fines,
and attorney's fees arising from or relating to its designation of contract-related materials as
"confidential."
8.3 Document Management.
The Contractor must retain sufficient documentation to substantiate claims for payment
under the Contract and all other records, electronic files, papers and documents that were
made in relation to this Contract. Contractor must retain all documents related to the
Contract for five years after expiration of the Contract, or, if longer, the period required by
the General Records Schedules maintained by the Florida Department of State available at:
http://dos.myflorida.com/library-archives/records-management/general-records-schedules/.
SECTION 9. DATA SECURITY AND SERVICES.
9.1 Duty to Provide Secure Data.
The Contractor will maintain the security of State of Florida Data including, but not limited
to, a secure area around any display of such Data or Data that is otherwise visible. The
Contractor will also comply with all HIPAA requirements and any other state and federal
rules and regulations regarding security of information.
9.2 Warranty of Security.
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Unless otherwise agreed in writing, the Contractor and its subcontractors will not perform
any of the services from outside of the United States, and the Contractor will not allow any
State of Florida Data to be sent by any medium, transmitted or accessed outside of the
United States.
Notwithstanding any provision of this Contract to the contrary, the Contractor must notify
the Department as soon as possible, in accordance with the requirements of section
501.171, F.S., and in all events within one (1) business day in the event Contractor
discovers any Data is breached, any unauthorized access of Data occurs (even by persons
or companies with authorized access for other purposes), any unauthorized transmission of
Data or any credible allegation or suspicion of a material violation of the above. This
notification is required whether the event affects one agency/customer or the entire
population. The notification must be clear and conspicuous and include a description of the
following:
(a) The incident in general terms.
(b) The type of information that was subject to the unauthorized access and
acquisition.
(c) The type and number of entities who were, or potentially have been affected by
the breach.
(d) The actions taken by the Contractor to protect the Data from further
unauthorized access. However, the description of those actions in the written notice
may be general so as not to further increase the risk or severity of the breach.
9.3 Remedial Measures.
Upon becoming aware of an alleged security breach, Contractor's Contract Manager must
set up a conference call with the Department's Contract Manager. The conference call
invitation must contain a brief description of the nature of the event. When possible, a 30
minute notice will be given to allow Department personnel to be available for the call. If the
designated time is not practical for the Department, an alternate time for the call will be
scheduled. All available information must be shared on the call. The Contractor must
answer all questions based on the information known at that time and answer additional
questions as additional information becomes known. The Contractor must provide the
Department with final documentation of the incident including all actions that took place. If
the Contractor becomes aware of a security breach or security incident outside of normal
business hours, the Contractor must notify the Department's Contract Manager and in all
events, within one business day.
9.4 Indemnification (Breach of Warranty of Security).
The Contractor agrees to defend, indemnify and hold harmless the Department, Customer,
the State of Florida, its officers, directors and employees for any claims, suits or
proceedings related to a breach of the Warranty of Security. The Contractor will include
credit monitoring services at its own cost for those individuals affected or potentially
affected by a breach of this warranty for a two year period of time following the breach.
9.5 Annual Certification.
The Contractor is required to submit an annual certification demonstrating compliance with
the Warranty of Security to the Department by December 31 of each Contract year.
SECTION 10. GRATUITIES AND LOBBYING.
10.1 Gratuities.
The Contractor will not, in connection with this Contract, directly or indirectly (1) offer, give,
or agree to give anything of value to anyone as consideration for any State of Florida officer
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or employee's decision, opinion, recommendation, vote, other exercise of discretion, or
violation of a known legal duty, or (2) offer, give, or agree to give to anyone anything of
value for the benefit of, or at the direction or request of, any State of Florida officer or
employee.
10.2 Lobbying.
In accordance with sections 11.062 and 216.347, F.S., Contract funds are not for the
purpose of lobbying the Legislature, the judicial branch, or the Department. Pursuant to
subsection 287.058(6), F.S., the Contract does not prohibit the Contractor from lobbying the
executive or legislative branch concerning the scope of services, performance, term, or
compensation regarding the Contract, after the Contract execution and during the
Contract's term.
SECTION 11. CONTRACT MONITORING.
11.1 Performance Standards.
The Contractor agrees to perform all tasks and provide deliverables as set forth in the
Statement of Work and attachments to the Contract. The Department and the Customer
will be entitled at all times, upon request, to be advised as to the status of work being done
by the Contractor and of the details thereof. Coordination must be maintained by the
Contractor with representatives of the Customer, the Department, or of other agencies
involved in the Contract on behalf of the Department.
11.2 Performance Deficiency.
The Department or Customer may, in its sole discretion, notify the Contractor of the
deficiency to be corrected, which correction must be made within a time-frame specified by
the Department or Customer. The Contractor must provide the Department or Customer
with a corrective action plan describing how the Contractor will address all issues of
contract non-performance, unacceptable performance, and failure to meet the minimum
performance levels, deliverable deficiencies, or contract non-compliance.
11.3 Financial Consequences of Non-Performance.
If the corrective action plan is unacceptable to the Department or Customer, or fails to
remedy the performance deficiencies, the Contractor will be assessed a non-performance
retainage equivalent to 10% of the total invoice amount or as specified in the Contract. The
retainage will be applied to the invoice for the then-current billing period. The retainage will
be withheld until the Contractor resolves the deficiency. If the deficiency is subsequently
resolved, the Contractor may invoice the Customer for the retained amount during the next
billing period. If the Contractor is unable to resolve the deficiency, the funds retained will be
forfeited.
11.4 Liquidated Damages.
The Contractor will promptly notify the Department or Customer upon becoming aware of
any circumstances that may reasonably be expected to jeopardize the timely and
successful completion (or delivery) of any commodity or contractual service. The
Contractor will use commercially reasonable efforts to avoid or minimize any delays in
performance and will inform the Department or Customer of the steps the Contractor is
taking or will take to do so, and the projected actual completion (or delivery) time. If the
Contractor believes a delay in performance by the Department or Customer has caused or
will cause the Contractor to be unable to perform its obligations on time, the Contractor will
promptly so notify the Department or Customer and use commercially reasonable efforts to
perform its obligations on time notwithstanding the Department or Customer's delay.
The Contractor acknowledges that untimely performance or other material noncompliance
will damage the Department or Customer, but by their nature such damages may be difficult
to ascertain. Accordingly, any liquidated damages provisions stated in the solicitation will
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apply to this Contract. Liquidated damages are not intended to be a penalty and are solely
intended to compensate for damages.
11.5 Force Majeure, Notice of Delay, and No Damages for Delay.
The Contractor will not be responsible for delay resulting from its failure to perform if neither
the fault nor the negligence of the Contractor or its employees or agents contributed to the
delay and the delay is due directly to acts of God, wars, acts of public enemies, strikes,
fires, floods, or other similar cause wholly beyond the Contractor's control, or for any of the
foregoing that affect subcontractors or suppliers if no alternate source of supply is available
to the Contractor. In case of any delay the Contractor believes is excusable, the Contractor
will notify the Department or Customer in writing of the delay or potential delay and describe
the cause of the delay either (1) within 10 days after the cause that creates or will create
the delay first arose, if the Contractor could reasonably foresee that a delay could occur as
a result, or (2) if delay is not reasonably foreseeable, within five days after the date the
Contractor first had reason to believe that a delay could result. The foregoing will constitute
the Contractor's sole remedy or excuse with respect to delay. Providing notice in strict
accordance with this paragraph is a condition precedent to such remedy. No claim for
damages will be asserted by the Contractor. The Contractor will not be entitled to an
increase in the Contract price or payment of any kind from the Department or Customer for
direct, indirect, consequential, impact or other costs, expenses or damages, including but
not limited to costs of acceleration or inefficiency, arising because of delay, disruption,
interference, or hindrance from any cause whatsoever. If performance is suspended or
delayed, in whole or in part, due to any of the causes described in this paragraph, after the
causes have ceased to exist the Contractor will perform at no increased cost, unless the
Department or Customer determines, in its sole discretion, that the delay will significantly
impair the value of the Contract to the State of Florida or to Customers, in which case the
Department or Customer may (1) accept allocated performance or deliveries from the
Contractor, provided that the Contractor grants preferential treatment to Customers with
respect to commodities or contractual services subjected to allocation, or (2) purchase from
other sources (without recourse to and by the Contractor for the related costs and
expenses) to replace all or part of the commodity or contractual services that are the
subject of the delay, which purchases may be deducted from the Contract quantity, or (3)
terminate the Contract in whole or in part.
SECTION 12. CONTRACT AUDITS.
12.1 Performance or Compliance Audits.
The Department may conduct, or cause to have conducted, either or both performance and
compliance audits of the Contractor and subcontractors as determined by the Department.
The Department may conduct an audit and review all the Contractor's and subcontractor's
data and records that directly relate to the Contract. To the extent necessary to verify the
Contractor's claims for payment under the Contract, the Contractor's agreements or
contracts with subcontractors, partners or agents of the Contractor, pertaining to this
Contract, may be inspected by the Department upon 15 days' notice, during normal working
hours and in accordance with the Contractor's facility access procedures where facility
access is required. Release statements from its subcontractors, partners or agents are not
required for the Department or its designee to conduct compliance and performance audits
on any of the Contractor's contracts relating to this Contract. The State of Florida's Chief
Financial Officer and the Office of the Auditor General also have authority to perform audits
and inspections.
12.2 Payment Audit.
Records of costs incurred under terms of the Contract will be maintained. Records of costs
incurred will include the Contractor's general accounting records, together with supporting
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documents and records of the Contractor and all subcontractors performing work, and all
other records of the Contractor and subcontractors considered necessary by the
Department, State of Florida's Chief Financial Officer or the Office of the Auditor General
for audit.
SECTION 13. BACKGROUND SCREENING AND SECURITY.
13.1 Background Check.
The Department may require the Contractor and its employees, agents, representatives
and subcontractors to provide fingerprints and be subject to such background checks as
directed by the Department. The cost of the background checks will be borne by the
Contractor. The Department may require the Contractor to exclude the Contractor's
employees, agents, representatives or subcontractors based on the background check
results. In addition, the Contractor must ensure that all persons have a responsibility to
self-report to the Contractor within three calendar days any arrest for any Disqualifying
Offense. The Contractor must notify the Contract Manager within 24 hours of all details
concerning any reported arrest. The Contractor will ensure that all background screening
will be refreshed upon the request of the Department for each person during the term of the
Contract.
13.2 E-Verify.
In accordance with Executive Order 11-116, the Contractor agrees to utilize the U.S.
Department of Homeland Security's E-Verify system to verify the employment eligibility of
all new employees hired during the term of the Contract for the services specified in the
Contract. The Contractor must also include a requirement in subcontracts that the
subcontractor must utilize the E-Verify system to verify the employment eligibility of all new
employees hired by the subcontractor during the Contract term. In order to implement this
provision, the Contractor must provide a copy of its DHS Memorandum of Understanding
(MOU) to the Contract Manager within five days of Contract execution. If the Contractor is
not enrolled in DHS E-Verify System, it will do so within five days of notice of Contract
award, and provide the Contract Manager a copy of its MOU within five days of Contract
execution. The link to E-Verify is provided below. http://www.uscis.gov/e-verify. Upon each
Contractor or subcontractor new hire, the Contractor must provide a statement within five
days to the Contract Manager identifying the new hire with its E-Verify case number.
13.3 Disqualifying Offenses.
If at any time it is determined that a person has a criminal misdemeanor or felony record
regardless of adjudication (e.g., adjudication withheld, a plea of guilty or nolo contendere,
or a guilty verdict) within the last six years from the date of the court's determination for the
crimes listed below, or their equivalent in any jurisdiction, the Contractor is required to
immediately remove that person from any position with access to State of Florida Data or
directly performing services under the Contract. The disqualifying offenses are as follows:
(a) Computer related or information technology crimes
(b) Fraudulent practices, false pretenses and frauds, and credit card crimes
(c) Forgery and counterfeiting
(d) Violations involving checks and drafts
(e) Misuse of medical or personnel records
(f) Felony theft
13.4 Communications and Confidentiality.
The Contractor agrees that it will make no statements, press releases, or publicity releases
concerning the Contract or its subject matter or otherwise disclose or permit to be disclosed
any of the data or other information obtained or furnished in compliance with the Contract,
or any particulars thereof, during the period of the Contract, without first notifying the
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Department's Contract Manager or the Department designated contact person and securing
prior written consent. The Contractor must maintain confidentiality of all confidential data,
files, and records related to the services and commodities provided pursuant to the
Contract and must comply with all state and federal laws, including, but not limited to
sections 381.004, 384.29, 392.65, and 456.057, F.S. The Contractor's confidentiality
procedures must be consistent with the most recent version of the Department security
policies, protocols, and procedures. The Contractor must also comply with any applicable
professional standards with respect to confidentiality of information.
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EXHIBIT B
FLORIDA SPECIAL CONTRACT CONDITIONS
This Exhibit contains the Special Contract Conditions. If a conflict exists between the
Special Contract Conditions and the General Contract Conditions, the Special Contract
Conditions shall take precedence over the General Contract Conditions unless the
conflicting term in the General Contract Conditions is required by Florida law, in which case
the General Contract Conditions term will take precedence.
Special Contract Conditions are as follows:
Section 1 Scope
All products and services offered under this addendum must be in compliance with the
Master Agreement scope. Failure to adhere to Master Agreement scope, may result in
addendum termination and the reimbursement of reprocurement costs in accordance to
60A-1.006 F.A.C..
Section 2 Information Technology (IT) Standards
Pursuant to sections 282.0051 and 282.318, F.S., the Agency for State Technology (AST) has
established information technology standards for security, project management and oversight. State
agencies shall ensure compliance with AST standards as established in Rule Chapter 74-1 and 74-2,
F.A.C, as applicable.
Section 3 Delays and Complaints
Delivery delays and service complaints will be monitored on a continual basis.
Documented inability to perform under the conditions of the contract, via the established
Complaint to Vendor process (PUR 7017 form), may result in default proceedings and
cancellation.
Section 4 Monthly Transaction Fee Report
The Contractor is required to submit monthly Transaction Fee Reports electronically
through MFMP VIP. All such reports and payments shall be subject to audit. Failure to
comply with the payment of the Transaction Fees or reporting of transactions shall
constitute grounds for declaring the Contractor in default and subject the Contractor to
exclusion from business with the State of Florida.
For information on how to submit Transaction Fee Reports online, please reference the
detailed fee reporting instructions and Vendor training presentations available online
through MFMP U on the MyFloridaMarketPlace website (located at
http://dms.myflorida.com/mfmp). Assistance is also available from the
MyFloridaMarketPlace Customer Service Desk at
feeprocessing@myfloridamarketplace.com or 866-FLA-EPRO (866-352-3776) between the
hours of 8:00 AM to 6:00 PM, Eastern Time.
Section 5 Quarterly Sales Reports
Each Contractor shall submit a sales report to the Department on a Quarterly basis.
Contract Sales Reports must include the Contractor's name, the dates of Quarter covered,
each Customer's name, services provided, and the amount paid by the Customer.
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Initiation and submission of the Contract Sales Reports are to be the responsibility of the
Contractor. The Contractor will submit the completed Sales Report forms by email to the
Department Contract Manager no later than the due date indicated in Section 10.
Submission of these reports is considered a material requirement of this Contract and the
Contractor.
Failure to provide quarterly sales reports, including those indicating no sales, within thirty
(30) calendar days following the end of each quarter (January, April, July and October) is
considered as Non-Performance by the Contractor. Exceptions may be made if a delay in
submitting reports is attributable to circumstances that are clearly beyond the control of the
Contractor. The burden of proof of unavoidable delay shall rest with the Contractor and
shall be supplied in a written form and submitted to the Department.
The Department reserves the right to request additional sales information as needed.
Section 6 Quarterly Reporting Timeframes
Quarterly reporting timeframes coincide with the State Fiscal Year as follows:
Quarter 1 - (July-September) — Due by October 10
Quarter 2 - (October-December) — Due by January 10
Quarter 3 - (January-March) — Due by April 10
Quarter 4 - (April-June) — Due by July 10
Section 7 Business Review Meetings
The Department reserves the right to schedule business review meetings as frequently as
necessary. The Department will provide the format for the Contractor's agenda. Prior to
the meeting, the Contractor shall submit the completed agenda to the Department for
review and acceptance. The Contractor shall address the agenda items and any of the
Department's additional concerns at the meeting. Failure to comply with this section may
result in the Contractor being found in default and contract termination.
Section 8 Contract Revisions
Notwithstanding General Contract Conditions the following types of revisions can be
made to the Contract upon written authorization by the Department:
a. Contractor's Information and Contacts
b. Contract Manager
C. Contract Report Forms
Only the above listed provisions can be made without a formal Contract amendment.
Florida General Contract Conditions, section 6.10, applies to all other modifications to
the Contract.
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102
DocuSign Envelope ID:845D5B2D-BEB9-4A2F-8C74-2C95D2085692
Department of
MANAGEMENT
SERVICES
P-We serve those who serve Florida
AMENDMENT NO.: 2 - Renewal
Alternate Contract Source No.: 43190000-18-NASPO-ACS-1
Alternate Contract Source Name: Public Safety Communication Equipment, Phase 1: Radios,
Consoles, Antennas, and Repeaters
This Amendment No. 2 ("Amendment"), effective on the date of the last signature below, to
Alternate Contract Source No. 43190000-18-NASPO-ACS-1, Public Safety Communication
Equipment, Phase 1: Radios, Consoles, Antennas, and Repeaters ("Participating Addendum,"
"ACS," or "Contract"), is made by and between the State of Florida ("State"), Department of
Management Services ("Department"), and Motorola Solutions ("Contractor'), collectively referred
to herein as the "Parties." All capitalized terms used herein have the meaning assigned to them
in the ACS, unless otherwise defined herein.
WHEREAS, the Parties entered into the ACS, effective January 1, 2018, through July 1, 2020,
for the provision of Public Safety Communication Equipment, pursuant to State of Washington
Master Agreement No. 06913 ("Master Agreement");
WHEREAS, the Parties entered into Amendment No. 1, on March 21, 2019, which revised the
July 1, 2020, end date of the ACS with the new end date, June 30, 2021;
WHEREAS, the State of Washington and Contractor agreed to extend the Master Agreement
through December 31, 2021;
WHEREAS, the Department has evaluated the ACS and determined that continuation of the ACS
is cost-effective and in the best interest of the State;
WHEREAS, the Parties agreed that the ACS may be amended as provided in Section 6,
Amendments, of the ACS; and
WHEREAS, the Parties wish to renew and amend the ACS as set forth herein.
THEREFORE, in consideration of the mutual promises contained below, and other good and
valuable consideration,the receipt and sufficiency of which are hereby acknowledged, the Parties
agree to the following:
I. Amendments.
a) Exhibit A: Florida General Contract Conditions is hereby deleted in its entirety and
replaced with the attached Exhibit B: Special Contract Conditions, July 1, 2019
Version.
b) Exhibit B: Florida Special Contract Conditions is hereby deleted in its entirety and
replaced with the attached Exhibit A: Additional Special Contract Conditions.
c) Section 3, Participating State Modifications or Additions to Master Agreement, of the
ACS is hereby deleted in its entirety and replaced with the following:
Page 1 of 2
103
DocuSign Envelope ID:845D5B2D-BEB9-4A2F-8C74-2C95D2085692
Department of
MANAGEMENT
SERVICES
P-We serve those who serve Florida
AMENDMENT NO.: 2 - Renewal
Alternate Contract Source No.: 43190000-18-NASPO-ACS-1
Alternate Contract Source Name: Public Safety Communication Equipment, Phase 1: Radios,
Consoles, Antennas, and Repeaters
3. Contract Document and Order of Precedence. This Contract document and the
attached exhibits constitute the Contract and the entire understanding of the Parties.
All exhibits listed below are incorporated into and form part of this Contract. In the
event of a conflict, the following order of precedence shall apply:
1) The ACS and amendments, with latest issued having priority
2) Exhibit A, Additional Special Contract Conditions
3) Exhibit B, Special Contract Conditions
4) Exhibit C, NASPO ValuePoint Master Agreement Number 06913
II. Renewal. In accordance with Section 2.2, Renewal, of Exhibit B, Special Contract Conditions,
the ACS is hereby renewed for a period of six (6) months, effective July 1, 2021, with a new
expiration date of December 31, 2021.
III. Conflict. To the extent any of the terms of this Amendment conflict with the terms of the ACS,
the terms of this Amendment shall control.
IV. Effect. Unless otherwise modified by this Amendment, all terms and conditions contained in
the ACS, as previously amended, shall continue in full force and effect.
IN WITNESS WHEREOF, the Parties have executed this Amendment by their duly authorized
representatives.
State of Florida: Contractor:
Dep a nat'Management Services Moto ,UtmOns
By: By:
Name: Tami Fillyaw Name: e
Title: Chief of Staff Title: Account Executive
Date:
6/3/2021 13:07 PM EDT Date: 6/1/2021 13:32 PM EDT
Page 2 of 2
104
DocuSign Envelope ID:845D5B2D-BEB9-4A2F-8C74-2C95D2085692
Department of
MANAGEMENT
SERVICES
We serve those who serve Florida
ADDITIONAL SPECIAL CONTRACT CONDITIONS
EXHIBIT A
The Contractor and Customers acknowledge and agree to be bound by the terms and
conditions of the Master Agreement except as otherwise specified in the Department's Contract
as modified and supplemented by the Special Contract Conditions and these Additional Special
Contract Conditions.
Contractor acknowledges that the Participating State is an agency of the State of Florida and as
such, the Contract will include the terms and conditions in these Additional Special Contract
Conditions. All references to the Contract in these Additional Special Contract Conditions
include the terms and conditions herein.
A. Orders: Contractor must be able to accept the State of Florida Purchasing Card and
MyFloridaMarketPlace (MFMP) purchase orders.
B. Contractor and Applicable Subcontractors, Affiliates, Partners, Resellers, Distributors,
and Dealers: By execution of a Contract, the Contractor acknowledges that it will not be
released of its contractual obligations to the Department because of any failure of a
subcontractor, reseller, distributor, or dealer. The Contract terms are applicable to
subcontractors, resellers, distributors, and dealers and shall apply to the Contractor's
Applicable Subcontractors, Affiliates, Partners, Resellers, Distributors, and Dealers
providing commodities and performing services in furtherance of the Contract. The
Contractor is fully responsible for satisfactory completion of all work performed under the
Contract.
C. Purchases Prerequisites: Before fulfilling any Customer purchases and receiving
payment, the Contractor and applicable Subcontractors, Affiliates, Partners, Resellers,
Distributors, and Dealers must have met the following requirements, unless further
notated below:
• Have an active registration with the Florida Department of State, Division of
Corporations (www.sunbiz.org), or, if exempt from the registration requirements,
provide the Department with the basis for such exemption.
• Be registered in the MFMP Vendor Information Portal
(https://vendor.mvfloridamarketplace.com) *only required by applicable
Subcontractors, Affiliates, Partners, Resellers, Distributors, and Dealers if
receiving payment.
• Not be on the State's Convicted, Suspended, or Discriminatory Vendor lists
(http://www.dms.myflorida.com/business operations/State purchasing/vendor in
formation/convicted suspended discriminatory complaints vendor lists)
• Have a copy of e-Verify Status on file
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• Have a current W-9 filed with the Florida Department of Financial Services
(https://flvendor.mvfloridacfo.com) *only required by applicable Subcontractors,
Affiliates, Partners, Resellers, Distributors, and Dealers if receiving payment.
D. MFMP Electronic Invoicing: The Contractor may supply electronic invoices in lieu of
paper-based invoices for those transactions processed through MFMP. Electronic
invoices may be submitted to the agency through one of the mechanisms as listed
below:
1) EDI (Electronic Data Interchange)
This standard establishes the data contents of the Invoice Transaction Set (810) for
use within the context of an Electronic Data Interchange (EDI) environment. This
transaction set can be used for invoicing via the Ariba Network (AN) for catalog and
non-catalog goods and services.
2) PO Flip via AN
This online process allows Contractors to submit invoices via the AN for catalog and
non-catalog goods and services. Contractors have the ability to create an invoice
directly from their inbox in their AN account by simply "flipping" the PO into an
invoice. This option does not require any special software or technical capabilities.
The Contractor warrants and represents that it is authorized and empowered to and
hereby grants the State and the third-party provider of MFMP, a State contractor, the
right and license to use, reproduce, transmit, distribute, and publicly display within
MFMP. In addition, the Contractor warrants and represents that it is authorized and
empowered to and hereby grants the State and the third-party provider the right and
license to reproduce and display within MFMP the Contractor's trademarks, system
marks, logos, trade dress, or other branding designation that identifies the products
made available by the Contractor under the Contract.
The Contractor will work with the MFMP management team to obtain specific
requirements for the electronic invoicing if needed.
E. Contract Reporting: The Contractor shall provide the following reports associated with
this Contract.
1) Contract Quarterly Sales Reports. The Contractor shall submit Quarterly Sales
Reports to the Department's Contract Manager within 30 calendar days after the
close of each State fiscal quarter (the State's fiscal quarters close on September 30,
December 31, March 31, and June 30). The Contractor's first Quarterly Sales Report
will be due 30 calendar days after the first full quarter following Contract execution.
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Reports must be submitted in MS Excel format and can be retrieved by accessing
the following link at FL DMS Quarterly Sales Report Form. The report shall include
all Customer sales received and associated with this Contract during the quarter.
Initiation and submission of the Quarterly Sales Report is the responsibility of the
Contractor without prompting or notification from the Department's Contract
Manager. If no orders are received during the period, the Contractor must submit a
report stating that there was no activity. If the Contractor fails to submit two
consecutive quarterly sales reports, the Contract may be terminated, or the
Department may choose to not renew the Contract.
2) Certified and Minority Business Enterprises Reports. Upon Customer request, the
Contractor shall report to each Customer, spend with certified and other minority
business enterprises in the provision of commodities or services related to the
Customer orders. These reports shall include the period covered; the name, minority
code, and Federal Employer Identification Number of each minority business
enterprise utilized during the period; commodities and services provided by the
minority business enterprise; and the amount paid to each minority business
enterprise on behalf of the Customer.
3) Ad Hoc Sales Reports. The Department may require additional Contract sales
information such as copies of purchase orders or ad hoc sales reports. The
Contractor shall submit these documents and reports within the timeframe specified
by the Department.
4) MFMP Transaction Fee Reports. The Contractor shall submit monthly MFMP
Transaction Fee Reports to the Department. Reports are due 15 calendar days after
the end of each month. Information on how to submit MFMP Transaction Fee
Reports online can be located on the Transaction Fee and Reporting website.
Assistance with the transaction fee reporting system is also available from the MFMP
Customer Service Desk by email at feeprocessing(amyfloridamarketplace.com or
telephone at 866-FLA-EPRO (866-352-3776) from 8:00 a.m. to 6:00 p.m. Eastern
Time.
F. Financial Consequences: The following financial consequences will apply for the
Contractor's non-performance of the provision of the Quarterly Sales Reports and the
MFMP Transaction Fee Reports. The State of Florida reserves the right to withhold
payment or implement other appropriate remedies, such as Contract termination or
nonrenewal, when the Contractor has failed to comply with these provisions of the
Contract. The Contractor and the Department agree that the financial consequences for
non-performance are an estimate of damages which are difficult to ascertain and are not
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penalties.
The financial consequences will be paid via check or money order and made out to the
Department of Management Services in U.S. dollars within 30 calendar days after the
required report submission date. These consequences are individually assessed for
failures over each target period beginning with the first full month or quarter of the
contract performance and every month or quarter, respectively, thereafter.
Financial Consequences Chart
Financial
Consequence for
Performance Non-
Due Date Performance
Deliverable Performance Metric (Per Calendar
Day Late/Not
Received by the
Contract
Manager)
Contractor will timely All Quarterly Sales Reports will Reports are $250
submit complete be submitted timely with the due on or
Quarterly Sales Reports required information before the
30th calendar
day after the
close of each
State fiscal
quarter
Contractor will timely All MFMP Transaction Fee Reports are $100
submit complete MFMP Reports will be submitted timely due on or
Transaction Fee Reports with the required information before the
15th calendar
day after the
close of each
month
Quarterly reporting timeframes coincide with the State Fiscal Year as follows:
Quarter 1 - (July-September) — due 30 calendar days after close of the period
Quarter 2 - (October-December) —due 30 calendar days after close of the period
Quarter 3 - (January-March) —due 30 calendar days after close of the period
Quarter 4 - (April-June) —due 30 calendar days after close of the period
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The Department may not consider renewal of a Contract or price adjustments if the
Contractor is late on submitting required reports or for outstanding fees owed.
G. Business Review Meetings: Both the Department and Customer reserve the right to
schedule business review meetings. The Department or Customer will provide the format
for the Contractor's agenda. In the event the Department or Customer schedules a
business review meeting, the Contractor shall submit the completed agenda to the
Department or Customer for review and acceptance prior to the meeting. The Contractor
shall address the agenda items and any of the Department's or Customer's additional
concerns at the meeting. At a minimum, the agenda items may include:
a. Contract compliance
b. Savings report (in dollar amount and cost avoidance)
c. Spend reports by Customer
d. Recommendations for improved compliance and performance
Failure to comply with this section may result in the Contractor being placed on a
Corrective Action Plan and possible termination of the Contract.
H. 13.2 E-Verify: The Contractor (and its subcontractors) have an obligation to utilize the
U.S. Department of Homeland Security's (DHS) E-Verify system for all newly hired
employees. By executing this Contract, the Contractor certifies that it is registered with,
and uses, the E-Verify system for all newly hired employees. The Contractor must obtain
an affidavit from its subcontractors in accordance with paragraph (2)(b) of section
448.095, F.S., and maintain a copy of such affidavit for the duration of the Contract. In
order to implement this provision, the Contractor shall provide a copy of its DHS
Memorandum of Understanding (MOU) to the Department's Contract Manager within
five (5) days of Contract execution.
This section serves as notice to the Contractor regarding the requirements of section
448.095, F.S., specifically sub-paragraph (2)(c)1, and the Department's obligation to
terminate the Contract if it has a good faith belief that the Contractor has knowingly
violated section 448.09(1), F.S. If terminated for such reason, the Contractor will not be
eligible for award of a public contract for at least one (1) year after the date of such
termination. The Department reserves the right to order the immediate termination of any
contract between the Contractor and a subcontractor performing work on its behalf
should the Department develop a good faith belief that the subcontractor has knowingly
violated section 448.095(1), F.S.
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Exhibit B
SPECIAL CONTRACT CONDITIONS
JULY 1, 2019 VERSION
Table of Contents
SECTION 1. DEFINITION...........................................................................................................................2
SECTION 2. CONTRACT TERM AND TERMINATION.................................................................................2
SECTION 3. PAYMENT AND FEES.............................................................................................................3
SECTION 4. CONTRACT MANAGEMENT..................................................................................................4
SECTION 5. COMPLIANCE WITH LAWS....................................................................................................6
SECTION 6. MISCELLANEOUS..................................................................................................................7
SECTION 7. LIABILITY AND INSURANCE........................................................................................................... 9
SECTION 8. PUBLIC RECORDS,TRADE SECRETS, DOCUMENT MANAGEMENT,AND INTELLECTUAL
PROPERTY..............................................................................................................................................10
SECTION 9. DATA SECURITY..................................................................................................................12
SECTION 10.GRATUITIES, LOBBYING,AND COMMUNICATIONS..........................................................13
SECTION 11.CONTRACT MONITORING. ...............................................................................................14
SECTION 12. CONTRACT AUDITS...........................................................................................................15
SECTION 13. BACKGROUND SCREENING AND SECURITY......................................................................16
SECTION 14.WARRANTY OF CONTRACTOR'S ABILITY TO PERFORM....................................................17
In accordance with Rule 60A-1.002(7), F.A.C., Form PUR 1000 is included
herein by reference but is superseded in its entirety by these Special
Contract Conditions.
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SECTION 1. DEFINITION.
The following definition applies in addition to the definitions in Chapter 287, Florida
Statutes (F.S.), and Rule Chapter 60A-1, Florida Administrative Code (F.A.C.):
1.1 Customer.
The agency or eligible user that purchases commodities or contractual services pursuant
to the Contract.
SECTION 2. CONTRACT TERM AND TERMINATION.
2.1 Initial Term.
The initial term will begin on the date set forth in the Contract documents or on the date
the Contract is signed by all Parties, whichever is later.
2.2 Renewal.
Upon written agreement, the Department and the Contractor may renew the Contract in
whole or in part only as set forth in the Contract documents, and in accordance with
section 287.057(13), F.S.
2.3 Suspension of Work and Termination.
2.3.1 Suspension of Work.
The Department may, at its sole discretion, suspend any or all activities under the
Contract, at any time, when it is in the best interest of the State of Florida to do so. The
Customer may suspend a resulting contract or purchase order, at any time, when in the
best interest of the Customer to do so. The Department or Customer will provide the
Contractor written notice outlining the particulars of the suspension. After receiving a
suspension notice, the Contractor must comply with the notice and will cease the
performance of the Contract or purchase order. Suspension of work will not entitle the
Contractor to any additional compensation. The Contractor will not resume performance
of the Contract or purchase order until so authorized by the Department.
2.3.2 Termination for Convenience.
The Contract may be terminated by the Department in whole or in part at any time, in the
best interest of the State of Florida. If the Contract is terminated before performance is
completed, the Contractor will be paid only for that work satisfactorily performed for
which costs can be substantiated. Such payment, however, may not exceed an amount
which is the same percentage of the Contract price as the amount of work satisfactorily
performed. All work in progress will become the property of the Customer and will be
turned over promptly by the Contractor.
2.3.3 Termination for Cause.
If the performance of the Contractor is not in compliance with the Contract requirements
or the Contractor has defaulted, the Department may:
(a) immediately terminate the Contract;
(b) notify the Contractor of the noncompliance or default, require correction, and specify
the date by which the correction must be completed before the Contract is terminated; or
(c) take other action deemed appropriate by the Department.
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SECTION 3. PAYMENT AND FEES.
3.1 Pricing.
The Contractor will not exceed the pricing set forth in the Contract documents.
3.2 Price Decreases.
The following price decrease terms will apply to the Contract:
3.2.1 Quantity Discounts. Contractor may offer additional discounts for one-time delivery
of large single orders;
3.2.2 Preferred Pricing. The Contractor guarantees that the pricing indicated in this
Contract is a maximum price. Additionally, Contractor's pricing will not exceed the pricing
offered under comparable contracts. Comparable contracts are those that are similar in
size, scope, and terms. In compliance with section 216.0113, F.S., Contractor must
annually submit an affidavit from the Contractor's authorized representative attesting that
the Contract complies with this clause.
3.2.3 Sales Promotions. In addition to decreasing prices for the balance of the Contract
term due to a change in market conditions, the Contractor may conduct sales
promotions involving price reductions for a specified lesser period. The Contractor must
submit documentation identifying the proposed: (1) starting and ending dates of the
promotion, (2) commodities or contractual services involved, and (3) promotional prices
compared to then-authorized prices.
3.3 Payment Invoicing.
The Contractor will be paid upon submission of invoices to the Customer after delivery
and acceptance of commodities or contractual services is confirmed by the Customer.
Invoices must contain sufficient detail for an audit and contain the Contract Number and
the Contractor's Federal Employer Identification Number.
3.4 Purchase Order.
A Customer may use purchase orders to buy commodities or contractual services
pursuant to the Contract and, if applicable, the Contractor must provide commodities or
contractual services pursuant to purchase orders. Purchase orders issued pursuant to
the Contract must be received by the Contractor no later than the close of business on
the last day of the Contract's term. The Contractor is required to accept timely purchase
orders specifying delivery schedules that extend beyond the Contract term even when
such extended delivery will occur after expiration of the Contract. Purchase orders shall
be valid through their specified term and performance by the Contractor, and all terms
and conditions of the Contract shall survive the termination or expiration of the Contract
and apply to the Contractor's performance. The duration of purchase orders for recurring
deliverables shall not exceed the expiration of the Contract by more than twelve months.
Any purchase order terms and conditions conflicting with these Special Contract
Conditions shall not become a part of the Contract.
3.5 Travel.
Travel expenses are not reimbursable unless specifically authorized by the Customer in
writing and may be reimbursed only in accordance with section 112.061, F.S.
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3.6 Annual Appropriation.
Pursuant to section 287.0582, F.S., if the Contract binds the State of Florida or an
agency for the purchase of services or tangible personal property for a period in excess
of one fiscal year, the State of Florida's performance and obligation to pay under the
Contract is contingent upon an annual appropriation by the Legislature.
3.7 Transaction Fees.
The State of Florida, through the Department of Management Services, has instituted
MyFloridaMarketPlace, a statewide eProcurement system pursuant to section
287.057(22), F.S. All payments issued by Customers to registered Vendors for
purchases of commodities or contractual services will be assessed Transaction Fees as
prescribed by rule 60A-1.031, F.A.C., or as may otherwise be established by law.
Vendors must pay the Transaction Fees and agree to automatic deduction of the
Transaction Fees when automatic deduction becomes available. Vendors will submit any
monthly reports required pursuant to the rule. All such reports and payments will be
subject to audit. Failure to comply with the payment of the Transaction Fees or reporting
of transactions will constitute grounds for declaring the Vendor in default and subject the
Vendor to exclusion from business with the State of Florida.
3.8 Taxes.
Taxes, customs, and tariffs on commodities or contractual services purchased under the
Contract will not be assessed against the Customer or Department unless authorized by
Florida law.
3.9 Return of Funds.
Contractor will return any overpayments due to unearned funds or funds disallowed
pursuant to the terms of the Contract that were disbursed to the Contractor. The
Contractor must return any overpayment within forty (40) calendar days after either
discovery by the Contractor, its independent auditor, or notification by the Department or
Customer of the overpayment.
SECTION 4. CONTRACT MANAGEMENT.
4.1 Composition and Priority.
The Contractor agrees to provide commodities or contractual services to the Customer
as specified in the Contract. Additionally, the terms of the Contract supersede the terms
of all prior agreements between the Parties on this subject matter.
4.2 Notices.
All notices required under the Contract must be delivered to the designated Contract
Manager in a manner identified by the Department.
4.3 Department's Contract Manager.
The Department's Contract Manager, who is primarily responsible for the Department's
oversight of the Contract, will be identified in a separate writing to the Contractor upon
Contract signing in the following format:
Department's Contract Manager Name
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Department's Name
Department's Physical Address
Department's Telephone#
Department's Email Address
If the Department changes the Contract Manager, the Department will notify the
Contractor. Such a change does not require an amendment to the Contract.
4.4 Contractor's Contract Manager.
The Contractor's Contract Manager, who is primarily responsible for the Contractor's
oversight of the Contract performance, will be identified in a separate writing to the
Department upon Contract signing in the following format:
Contractor's Contract Manager Name
Contractor's Name
Contractor's Physical Address
Contractor's Telephone#
Contractor's Email Address
If the Contractor changes its Contract Manager, the Contractor will notify the
Department. Such a change does not require an amendment to the Contract.
4.5 Diversity.
4.5.1 Office of Supplier Diversity.
The State of Florida supports its diverse business community by creating opportunities
for woman-, veteran-, and minority-owned small business enterprises to participate in
procurements and contracts. The Department encourages supplier diversity through
certification of woman-, veteran-, and minority-owned small business enterprises and
provides advocacy, outreach, and networking through regional business events. For
additional information, please contact the Office of Supplier Diversity (OSD) at
osdinfo@dms.myflorida.com.
4.5.2 Diversity Reporting.
Upon request, the Contractor will report to the Department its spend with business
enterprises certified by the OSD. These reports must include the time period covered,
the name and Federal Employer Identification Number of each business enterprise
utilized during the period, commodities and contractual services provided by the
business enterprise, and the amount paid to the business enterprise on behalf of each
agency purchasing under the Contract.
4.6 RESPECT.
Subject to the agency determination provided for in section 413.036, F.S., the following
statement applies:
IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT ANY ARTICLES THAT ARE
THE SUBJECT OF, OR REQUIRED TO CARRY OUT, THIS CONTRACT SHALL BE
PURCHASED FROM A NONPROFIT AGENCY FOR THE BLIND OR FOR THE
SEVERELY HANDICAPPED THAT IS QUALIFIED PURSUANT TO CHAPTER 413,
FLORIDA STATUTES, IN THE SAME MANNER AND UNDER THE SAME
PROCEDURES SET FORTH IN SECTION 413.036(1) AND (2), FLORIDA STATUTES;
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AND FOR PURPOSES OF THIS CONTRACT THE PERSON, FIRM, OR OTHER
BUSINESS ENTITY CARRYING OUT THE PROVISIONS OF THIS CONTRACT SHALL
BE DEEMED TO BE SUBSTITUTED FOR THE STATE AGENCY INSOFAR AS
DEALINGS WITH SUCH QUALIFIED NONPROFIT AGENCY ARE CONCERNED.
Additional information about RESPECT and the commodities or contractual services it
offers is available at https://www.respectofflorida.org.
4.7 PRIDE.
Subject to the agency determination provided for in sections 287.042(1) and 946.515,
F.S., the following statement applies:
IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT ANY ARTICLES WHICH ARE
THE SUBJECT OF, OR REQUIRED TO CARRY OUT, THIS CONTRACT SHALL BE
PURCHASED FROM THE CORPORATION IDENTIFIED UNDER CHAPTER 946, F.S.,
IN THE SAME MANNER AND UNDER THE SAME PROCEDURES SET FORTH IN
SECTION 946.515(2) AND (4), F.S.; AND FOR PURPOSES OF THIS CONTRACT THE
PERSON, FIRM, OR OTHER BUSINESS ENTITY CARRYING OUT THE PROVISIONS
OF THIS CONTRACT SHALL BE DEEMED TO BE SUBSTITUTED FOR THIS
AGENCY INSOFAR AS DEALINGS WITH SUCH CORPORATION ARE CONCERNED.
Additional information about PRIDE and the commodities or contractual services it offers
is available at https://www.pride-enterprises.org.
SECTION 5. COMPLIANCE WITH LAWS.
5.1 Conduct of Business.
The Contractor must comply with all laws, rules, codes, ordinances, and licensing
requirements that are applicable to the conduct of its business, including those of
federal, state, and local agencies having jurisdiction and authority. For example, the
Contractor must comply with section 274A of the Immigration and Nationality Act, the
Americans with Disabilities Act, Health Insurance Portability and Accountability Act, if
applicable, and all prohibitions against discrimination on the basis of race, religion, sex,
creed, national origin, handicap, marital status, or veteran's status. The provisions of
subparagraphs 287.058(1)(a)-(c), and (g), F.S., are hereby incorporated by reference.
5.2 Dispute Resolution, Governing Law, and Venue.
Any dispute concerning performance of the Contract shall be decided by the
Department's designated Contract Manager, who will reduce the decision to writing and
serve a copy on the Contractor. The decision of the Contract Manager shall be final and
conclusive. Exhaustion of this administrative remedy is an absolute condition precedent
to the Contractor's ability to pursue legal action related to the Contract or any other form
of dispute resolution. The laws of the State of Florida govern the Contract. The Parties
submit to the jurisdiction of the courts of the State of Florida exclusively for any legal
action related to the Contract. Further, the Contractor hereby waives all privileges and
rights relating to venue it may have under Chapter 47, F.S., and all such venue
privileges and rights it may have under any other statute, rule, or case law, including, but
not limited to, those based on convenience. The Contractor hereby submits to venue in
the county chosen by the Department.
5.3 Department of State Registration.
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Consistent with Title XXXVI, F.S., the Contractor and any subcontractors that assert
status, other than a sole proprietor, must provide the Department with conclusive
evidence of a certificate of status, not subject to qualification, if a Florida business entity,
or of a certificate of authorization if a foreign business entity.
5.4 Suspended, Convicted, and Discriminatory Vendor Lists.
In accordance with sections 287.042, 287.133, and 287.134, F.S., an entity or affiliate
who is on the Suspended Vendor List, Convicted Vendor List, or Discriminatory Vendor
List may not perform work as a contractor, supplier, subcontractor, or consultant under
the Contract. The Contractor must notify the Department if it or any of its suppliers,
subcontractors, or consultants have been placed on the Suspended Vendor List,
Convicted Vendor List, or Discriminatory Vendor List during the term of the Contract.
5.5 Scrutinized Companies - Termination by the Department.
The Department may, at its option, terminate the Contract if the Contractor is found to
have submitted a false certification as provided under section 287.135(5), F.S., or been
placed on the Scrutinized Companies with Activities in Sudan List or the Scrutinized
Companies with Activities in the Iran Petroleum Energy Sector List, or been engaged in
business operations in Cuba or Syria, or to have been placed on the Scrutinized
Companies that Boycott Israel List or is engaged in a boycott of Israel.
5.6 Cooperation with Inspector General and Records Retention.
Pursuant to section 20.055(5), F.S., the Contractor understands and will comply with its
duty to cooperate with the Inspector General in any investigation, audit, inspection,
review, or hearing. Upon request of the Inspector General or any other authorized State
official, the Contractor must provide any information the Inspector General deems
relevant to the Contractor's integrity or responsibility. Such information may include, but
will not be limited to, the Contractor's business or financial records, documents, or files
of any type or form that refer to or relate to the Contract. The Contractor will retain such
records for the longer of five years after the expiration of the Contract, or the period
required by the General Records Schedules maintained by the Florida Department of
State, at the Department of State's Records Management website. The Contractor
agrees to reimburse the State of Florida for the reasonable costs of investigation
incurred by the Inspector General or other authorized State of Florida official for
investigations of the Contractor's compliance with the terms of this or any other
agreement between the Contractor and the State of Florida which results in the
suspension or debarment of the Contractor. Such costs will include but will not be limited
to: salaries of investigators, including overtime; travel and lodging expenses; and expert
witness and documentary fees. The Contractor agrees to impose the same obligations to
cooperate with the Inspector General and retain records on any subcontractors used to
provide goods or services under the Contract.
SECTION 6. MISCELLANEOUS.
6.1 Subcontractors.
The Contractor will not subcontract any work under the Contract without prior written
consent of the Department. The Contractor is fully responsible for satisfactory
completion of all its subcontracted work. The Department supports diversity in its
procurements and contracts, and requests that the Contractor offer subcontracting
opportunities to certified woman-, veteran-, and minority-owned small businesses. The
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Contractor may contact the OSD at osdhelp@dms.myflorida.com for information on
certified small business enterprises available for subcontracting opportunities.
6.2 Assignment.
The Contractor will not sell, assign, or transfer any of its rights, duties, or obligations
under the Contract without the prior written consent of the Department. However, the
Contractor may waive its right to receive payment and assign same upon notice to the
Department. In the event of any assignment, the Contractor remains responsible for
performance of the Contract, unless such responsibility is expressly waived by the
Department. The Department may assign the Contract with prior written notice to the
Contractor.
6.3 Independent Contractor.
The Contractor and its employees, agents, representatives, and subcontractors are
independent contractors and not employees or agents of the State of Florida and are not
entitled to State of Florida benefits. The Department and Customer will not be bound by
any acts or conduct of the Contractor or its employees, agents, representatives, or
subcontractors. The Contractor agrees to include this provision in all its subcontracts
under the Contract.
6.4 Inspection and Acceptance of Commodities.
6.4.1 Risk of Loss.
Matters of inspection and acceptance are addressed in section 215.422, F.S. Until
acceptance, risk of loss or damage will remain with the Contractor. The Contractor will
be responsible for filing, processing, and collecting all damage claims. To assist the
Contractor with damage claims, the Customer will: record any evidence of visible
damage on all copies of the delivering carrier's bill of lading; report damages to the
carrier and the Contractor; and provide the Contractor with a copy of the carrier's bill of
lading and damage inspection report.
6.4.2 Rejected Commodities.
When a Customer rejects a commodity, Contractor will remove the commodity from the
premises within ten (10) calendar days after notification of rejection, and the risk of loss
will remain with the Contractor. Commodities not removed by the Contractor within ten
(10) calendar days will be deemed abandoned by the Contractor, and the Customer will
have the right to dispose of such commodities. Contractor will reimburse the Customer
for costs and expenses incurred in storing or effecting removal or disposition of rejected
commodities.
6.5 Safety Standards.
Performance of the Contract for all commodities or contractual services must comply
with requirements of the Occupational Safety and Health Act and other applicable State
of Florida and federal requirements.
6.6 Ombudsman.
A Vendor Ombudsman has been established within the Department of Financial
Services. The duties of this office are found in section 215.422, F.S., which include
disseminating information relative to prompt payment and assisting contractors in
receiving their payments in a timely manner from a Customer. The Vendor Ombudsman
may be contacted at (850) 413-5516.
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6.7 Time is of the Essence.
Time is of the essence regarding every obligation of the Contractor under the Contract.
Each obligation is deemed material, and a breach of any such obligation (including a
breach resulting from untimely performance) is a material breach.
6.8 Waiver.
The delay or failure by the Department or the Customer to exercise or enforce any rights
under the Contract will not constitute waiver of such rights.
6.9 Modification and Severability.
The Contract may only be modified by written agreement between the Department and
the Contractor. Should a court determine any provision of the Contract is invalid, the
remaining provisions will not be affected, and the rights and obligations of the Parties will
be construed and enforced as if the Contract did not contain the provision held invalid.
6.10 Cooperative Purchasing.
Pursuant to their own governing laws, and subject to the agreement of the Contractor,
governmental entities that are not Customers may make purchases under the terms and
conditions contained herein, if agreed to by Contractor. Such purchases are independent
of the Contract between the Department and the Contractor, and the Department is not a
party to these transactions. Agencies seeking to make purchases under this Contract
are required to follow the requirements of Rule 60A-1.045(5), F.A.C.
SECTION 7. LIABILITY AND INSURANCE.
7.1 Workers' Compensation Insurance.
The Contractor shall maintain workers' compensation insurance as required under the
Florida Workers' Compensation Law or the workers' compensation law of another
jurisdiction where applicable. The Contractor must require all subcontractors to similarly
provide workers' compensation insurance for all of the latter's employees. In the event
work is being performed by the Contractor under the Contract and any class of
employees performing the work is not protected under Workers' Compensation statutes,
the Contractor must provide, and cause each subcontractor to provide, adequate
insurance satisfactory to the Department, for the protection of employees not otherwise
protected.
7.2 General Liability Insurance.
The Contractor must secure and maintain Commercial General Liability Insurance,
including bodily injury, property damage, products, personal and advertising injury, and
completed operations. This insurance must provide coverage for all claims that may
arise from performance of the Contract or completed operations, whether by the
Contractor or anyone directly or indirectly employed by the Contractor. Such insurance
must include the State of Florida as an additional insured for the entire length of the
resulting contract. The Contractor is responsible for determining the minimum limits of
liability necessary to provide reasonable financial protections to the Contractor and the
State of Florida under the resulting contract.
7.3 Florida Authorized Insurers.
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All insurance shall be with insurers authorized and eligible to transact the applicable line
of insurance business in the State of Florida. The Contractor shall provide
Certification(s) of Insurance evidencing that all appropriate coverage is in place and
showing the Department to be an additional insured.
7.4 Performance Bond.
Unless otherwise prohibited by law, the Department may require the Contractor to
furnish, without additional cost to the Department, a performance bond or irrevocable
letter of credit or other form of security for the satisfactory performance of work
hereunder. The Department shall determine the type and amount of security.
7.5 Indemnification.
To the extent permitted by Florida law, the Contractor agrees to indemnify, defend, and
hold the Customer and the State of Florida, its officers, employees, and agents harmless
from all fines, claims, assessments, suits, judgments, or damages, including
consequential, special, indirect, and punitive damages, including court costs and
attorney's fees, arising from or relating to violation or infringement of a trademark,
copyright, patent, trade secret, or intellectual property right or out of any acts, actions,
breaches, neglect, or omissions of the Contractor, its employees, agents,
subcontractors, assignees, or delegates related to the Contract, as well as for any
determination arising out of or related to the Contract that the Contractor or Contractor's
employees, agents, subcontractors, assignees, or delegates are not independent
contractors in relation to the Customer. The Contract does not constitute a waiver of
sovereign immunity or consent by the Customer or the State of Florida or its subdivisions
to suit by third parties. Without limiting this indemnification, the Customer may provide
the Contractor (1) written notice of any action or threatened action, (2) the opportunity to
take over and settle or defend any such action at Contractor's sole expense, and (3)
assistance in defending the action at Contractor's sole expense.
7.6 Limitation of Liability.
Unless otherwise specifically enumerated in the Contract or in the purchase order,
neither the Department nor the Customer shall be liable for special, indirect, punitive, or
consequential damages, including lost data or records (unless the Contract or purchase
order requires the Contractor to back-up data or records), even if the Department or
Customer has been advised that such damages are possible. Neither the Department
nor the Customer shall be liable for lost profits, lost revenue, or lost institutional
operating savings. The Department or Customer may, in addition to other remedies
available to them at law or equity and upon notice to the Contractor, retain such monies
from amounts due Contractor as may be necessary to satisfy any claim for damages,
penalties, costs, and the like asserted by or against them. The State may set off any
liability or other obligation of the Contractor or its affiliates to the State against any
payments due the Contractor under any contract with the State.
SECTION 8. PUBLIC RECORDS, TRADE SECRETS, DOCUMENT MANAGEMENT,
AND INTELLECTUAL PROPERTY.
8.1 Public Records.
8.1.1 Termination of Contract.
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The Department may terminate the Contract for refusal by the Contractor to comply with
this section by not allowing access to all public records, as defined in Chapter 119, F. S.,
made or received by the Contractor in conjunction with the Contract.
8.1.2 Statutory Notice.
Pursuant to section 119.0701(2)(x), F.S., for contracts for services with a contractor
acting on behalf of a public agency, as defined in section 119.011(2), F.S., the following
applies:
IF THE CONTRACTOR HAS QUESTIONS REGARDING THE
APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE
CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS
RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN OF
PUBLIC RECORDS AT THE TELEPHONE NUMBER, EMAIL
ADDRESS, AND MAILING ADDRESS PROVIDED IN THE
RESULTING CONTRACT OR PURCHASE ORDER.
Pursuant to section 119.0701(2)(b), F.S., for contracts for services with a contractor
acting on behalf of a public agency as defined in section 119.011(2), F.S., the Contractor
shall:
(a) Keep and maintain public records required by the public agency to perform the
service.
(b) Upon request from the public agency's custodian of public records, provide the public
agency with a copy of the requested records or allow the records to be inspected or
copied within a reasonable time at a cost that does not exceed the cost provided in
Chapter 119, F.S., or as otherwise provided by law.
(c) Ensure that public records that are exempt or confidential and exempt from public
records disclosure are not disclosed except as authorized by law for the duration of the
Contract term and following the completion of the Contract if the Contractor does not
transfer the records to the public agency.
(d) Upon completion of the Contract, transfer, at no cost, to the public agency all public
records in possession of the Contractor or keep and maintain public records required by
the public agency to perform the service. If the Contractor transfers all public records to
the public agency upon completion of the Contract, the Contractor shall destroy any
duplicate public records that are exempt or confidential and exempt from public records
disclosure requirements. If the Contractor keeps and maintains public records upon
completion of the Contract, the Contractor shall meet all applicable requirements for
retaining public records. All records stored electronically must be provided to the public
agency, upon request from the public agency's custodian of public records, in a format
that is compatible with the information technology systems of the public agency.
8.2 Protection of Trade Secrets or Otherwise Confidential Information.
8.2.1 Contractor Designation of Trade Secrets or Otherwise Confidential Information.
If the Contractor considers any portion of materials to be trade secret under section
688.002 or 812.081, F.S., or otherwise confidential under Florida or federal law, the
Contractor must clearly designate that portion of the materials as trade secret or
otherwise confidential when submitted to the Department. The Contractor will be
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responsible for responding to and resolving all claims for access to Contract-related
materials it has designated trade secret or otherwise confidential.
8.2.2 Public Records Requests.
If the Department receives a public records request for materials designated by the
Contractor as trade secret or otherwise confidential under Florida or federal law, the
Contractor will be responsible for taking the appropriate legal action in response to the
request. If the Contractor fails to take appropriate and timely action to protect the
materials designated as trade secret or otherwise confidential, the Department will
provide the materials to the requester.
8.2.3 Indemnification Related to Confidentiality of Materials.
The Contractor will protect, defend, indemnify, and hold harmless the Department for
claims, costs, fines, and attorney's fees arising from or relating to its designation of
materials as trade secret or otherwise confidential.
8.3 Document Management.
The Contractor must retain sufficient documentation to substantiate claims for payment
under the Contract and all other records, electronic files, papers, and documents that
were made in relation to this Contract. The Contractor must retain all documents related
to the Contract for five (5) years after expiration of the Contract or, if longer, the period
required by the General Records Schedules maintained by the Florida Department of
State available at the Department of State's Records Management website.
8.4 Intellectual Property.
8.4.1 Ownership.
Unless specifically addressed otherwise in the Contract, the State of Florida shall be the
owner of all intellectual property rights to all property created or developed in connection
with the Contract.
8.4.2 Patentable Inventions or Discoveries.
Any inventions or discoveries developed in the course, or as a result, of services in
connection with the Contract that are patentable pursuant to 35 U.S.C. § 101 are the
sole property of the State of Florida. Contractor must inform the Customer of any
inventions or discoveries developed or made through performance of the Contract, and
such inventions or discoveries will be referred to the Florida Department of State for a
determination on whether patent protection will be sought. The State of Florida will be
the sole owner of all patents resulting from any invention or discovery made through
performance of the Contract.
8.4.3 Copyrightable Works.
Contractor must notify the Department or State of Florida of any publications, artwork, or
other copyrightable works developed in connection with the Contract. All copyrights
created or developed through performance of the Contract are owned solely by the State
of Florida.
SECTION 9. DATA SECURITY.
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The Contractor will maintain the security of State of Florida data including, but not limited
to, maintaining a secure area around any displayed visible data and ensuring data is
stored and secured when not in use. The Contractor and subcontractors will not perform
any of the services from outside of the United States, and the Contractor will not allow
any State of Florida data to be sent by any medium, transmitted, or accessed outside the
United States due to Contractor's action or inaction. In the event of a security breach
involving State of Florida data, the Contractor shall give notice to the Customer and the
Department within one business day. "Security breach" for purposes of this section will
refer to a confirmed event that compromises the confidentiality, integrity, or availability of
data. Once a data breach has been contained, the Contractor must provide the
Department with a post-incident report documenting all containment, eradication, and
recovery measures taken. The Department reserves the right in its sole discretion to
enlist a third party to audit Contractor's findings and produce an independent report, and
the Contractor will fully cooperate with the third party. The Contractor will also comply
with all HIPAA requirements and any other state and federal rules and regulations
regarding security of information.
SECTION 10. GRATUITIES, LOBBYING, AND COMMUNICATIONS.
10.1 Gratuities.
The Contractor will not, in connection with this Contract, directly or indirectly (1) offer,
give, or agree to give anything of value to anyone as consideration for any State of
Florida officer's or employee's decision, opinion, recommendation, vote, other exercise
of discretion, or violation of a known legal duty, or (2) offer, give, or agree to give to
anyone anything of value for the benefit of, or at the direction or request of, any State of
Florida officer or employee.
10.2 Lobbying.
In accordance with sections 11.062 and 216.347, F.S., Contract funds are not to be used
for the purpose of lobbying the Legislature, the judicial branch, or the Department.
Pursuant to section 287.058(6), F.S., the Contract does not prohibit the Contractor from
lobbying the executive or legislative branch concerning the scope of services,
performance, term, or compensation regarding the Contract after the Contract is
executed and during the Contract term.
10.3 Communications.
10.3.1 Contractor Communication or Disclosure.
The Contractor shall not make any public statements, press releases, publicity releases,
or other similar communications concerning the Contract or its subject matter or
otherwise disclose or permit to be disclosed any of the data or other information
obtained or furnished in compliance with the Contract, without first notifying the
Customer's Contract Manager and securing the Customer's prior written consent.
10.3.2 Use of Customer Statements.
The Contractor shall not use any statement attributable to the Customer or its
employees for the Contractor's promotions, press releases, publicity releases,
marketing, corporate communications, or other similar communications, without first
notifying the Customer's Contract Manager and securing the Customer's prior written
consent.
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SECTION 11. CONTRACT MONITORING.
11.1 Performance Standards.
The Contractor agrees to perform all tasks and provide deliverables as set forth in the
Contract. The Department and the Customer will be entitled at all times, upon request, to
be advised as to the status of work being done by the Contractor and of the details
thereof.
11.2 Performance Deficiencies and Financial Consequences of Non-Performance.
11.2.1 Proposal of Corrective Action Plan.
In addition to the processes set forth in the Contract (e.g., service level agreements), if
the Department or Customer determines that there is a performance deficiency that
requires correction by the Contractor, then the Department or Customer will notify the
Contractor. The correction must be made within a time-frame specified by the
Department or Customer. The Contractor must provide the Department or Customer with
a corrective action plan describing how the Contractor will address all performance
deficiencies identified by the Department or Customer.
11.2.2 Retainage for Unacceptable Corrective Action Plan or Plan Failure.
If the corrective action plan is unacceptable to the Department or Customer, or
implementation of the plan fails to remedy the performance deficiencies, the Department
or Customer will retain ten percent (10%) of the total invoice amount. The retainage will
be withheld until the Contractor resolves the performance deficiencies. If the
performance deficiencies are resolved, the Contractor may invoice the Department or
Customer for the retained amount. If the Contractor fails to resolve the performance
deficiencies, the retained amount will be forfeited to compensate the Department or
Customer for the performance deficiencies.
11.3 Performance Delay.
11.3.1 Notification.
The Contractor will promptly notify the Department or Customer upon becoming aware
of any circumstances that may reasonably be expected to jeopardize the timely and
successful completion (or delivery) of any commodity or contractual service. The
Contractor will use commercially reasonable efforts to avoid or minimize any delays in
performance and will inform the Department or the Customer of the steps the Contractor
is taking or will take to do so, and the projected actual completion (or delivery) time. If
the Contractor believes a delay in performance by the Department or the Customer has
caused or will cause the Contractor to be unable to perform its obligations on time, the
Contractor will promptly so notify the Department and use commercially reasonable
efforts to perform its obligations on time notwithstanding the Department's delay.
11.3.2 Liquidated Damages.
The Contractor acknowledges that delayed performance will damage the
DepartmentCustomer, but by their nature such damages are difficult to ascertain.
Accordingly, the liquidated damages provisions stated in the Contract documents will
apply. Liquidated damages are not intended to be a penalty and are solely intended to
compensate for damages.
11.4 Force Majeure, Notice of Delay, and No Damages for Delay.
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The Contractor will not be responsible for delay resulting from its failure to perform if
neither the fault nor the negligence of the Contractor or its employees or agents
contributed to the delay, and the delay is due directly to fire, explosion, earthquake,
windstorm, flood, radioactive or toxic chemical hazard, war, military hostilities, terrorism,
civil emergency, embargo, riot, strike, violent civil unrest, or other similar cause wholly
beyond the Contractor's reasonable control, or for any of the foregoing that affect
subcontractors or suppliers if no alternate source of supply is available to the Contractor.
The foregoing does not excuse delay which could have been avoided if the Contractor
implemented any risk mitigation required by the Contract. In case of any delay the
Contractor believes is excusable, the Contractor will notify the Department in writing of
the delay or potential delay and describe the cause of the delay either (1) within ten (10)
calendar days after the cause that created or will create the delay first arose, if the
Contractor could reasonably foresee that a delay could occur as a result, or (2) if delay is
not reasonably foreseeable, within five (5) calendar days after the date the Contractor
first had reason to believe that a delay could result. The foregoing will constitute the
Contractor's sole remedy or excuse with respect to delay. Providing notice in strict
accordance with this paragraph is a condition precedent to such remedy. No claim for
damages will be asserted by the Contractor. The Contractor will not be entitled to an
increase in the Contract price or payment of any kind from the Department for direct,
indirect, consequential, impact or other costs, expenses or damages, including but not
limited to costs of acceleration or inefficiency, arising because of delay, disruption,
interference, or hindrance from any cause whatsoever. If performance is suspended or
delayed, in whole or in part, due to any of the causes described in this paragraph, after
the causes have ceased to exist the Contractor will perform at no increased cost, unless
the Department determines, in its sole discretion, that the delay will significantly impair
the value of the Contract to the State of Florida or to Customers, in which case the
Department may (1) accept allocated performance or deliveries from the Contractor,
provided that the Contractor grants preferential treatment to Customers and the
Department with respect to commodities or contractual services subjected to allocation,
or (2) purchase from other sources (without recourse to and by the Contractor for the
related costs and expenses) to replace all or part of the commodity or contractual
services that are the subject of the delay, which purchases may be deducted from the
Contract quantity, or (3) terminate the Contract in whole or in part.
SECTION 12. CONTRACT AUDITS.
12.1 Performance or Compliance Audits.
The Department may conduct or have conducted performance and/or compliance audits
of the Contractor and subcontractors as determined by the Department. The Department
may conduct an audit and review all the Contractor's and subcontractors' data and
records that directly relate to the Contract. To the extent necessary to verify the
Contractor's fees and claims for payment under the Contract, the Contractor's
agreements or contracts with subcontractors, partners, or agents of the Contractor,
pertaining to the Contract, may be inspected by the Department upon fifteen (15)
calendar days' notice, during normal working hours and in accordance with the
Contractor's facility access procedures where facility access is required. Release
statements from its subcontractors, partners, or agents are not required for the
Department or its designee to conduct compliance and performance audits on any of the
Contractor's contracts relating to this Contract. The Inspector General, in accordance
with section 5.6, the State of Florida's Chief Financial Officer, the Office of the Auditor
General also have authority to perform audits and inspections.
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