Contract-Pro Energy.pdf

State Term Contract No. 15100000-19-1 For

Bulk Fuel, Gasoline, and Diesel

This Contract is between the State of Florida, Department of Management Services (Department), an agency of the State of Florida and Pro Energy Fleet Fueling LLC (Contractor), collectively referred to herein as the “Parties.”

Accordingly, the Parties agree as follows:

I. Contract Award

The Contractor has been awarded the follwoing regions, fuel groups, and fuel types:

Northern and Central Regions

Diesel Fuel, Grade No. 2-D Ultra Low Sulfur- Transport

Diesel Fuel, Red Dye Grade No. 2 Ultra Low Sulfur- Transport Gasoline E10, Unleaded 87 Octane- Transport

Southern Region

Diesel Fuel, Grade No. 2-D Ultra Low Sulfur- Transport and Non-Transport Diesel Fuel, Red Dye Grade No. 2 Ultra Low Sulfur- Transport and Non-Transport Gasoline E10, Unleaded 87 Octane- Transport and Non-Transport

II. Initial Contract Term.

The Initial Contract Term shall be for three years. The Initial Contract Term shall begin on July 1, 2019. The Contract shall expire on June 30, 2022, unless terminated earlier in accordance with the Special Contract Conditions.

III. Renewal Term.

Upon mutual written agreement, the Parties may renew this Contract, in whole or in part, for a Renewal Term not to exceed the Initial Contract Term, pursuant to the incorporated Special Contract Conditions.

IV. Contract.

As used in this document, “Contract” (whether or not capitalized) shall, unless the context requires otherwise, include this document and all incorporated Attachments, which set forth the entire understanding of the Parties and supersedes all prior agreements. All modifications to this Contract must be in writing and signed by all Parties.

State Term Contract No. 15100000-19-1

All Attachments listed below are incorporated in their entirety into, and form part of this Contract. The Contract Attachments shall have priority in the order listed:

a) Exhibit A: Scope of Work, Attachment A

b) Exhibit B Markup Sheet

c) Exhibit C: Special Contract Conditions, Attachment C

d) Exhibit D: Addenda to Solicitation

e) Exhibit E: ITB and other ITB Attachments

V. Amendment to Exhibit E (ITB)

ITB Section 2.1 Definitions; is hereby amended to replace two definiations for Transport and Non transport delivery to the definitions listed below:

Transport Delivery - A delivery by a transport truck or other means with a minimum delivery of 6,000 gallons and a maximum delivery of; 8,500 gallons for gasoline, 7,500 gallons for diesel, and 7,500 gallons for a combination load of gasoline and diesel.

Non-Transport Delivery - A delivery by tank wagon or other means with a minimum delivery of 500 gallons and a maximum delivery of; 5,999 gallons for gasoline, 5,999 gallons for diesel, and 5,999 gallons for a combination load of gasoline and diesel.

VI. Contract Management.

Department’s Contract Manager:

Frank MIller Division of State Purchasing Florida Department of Management Services 4050 Esplanade Way, Suite 360 Tallahassee, Florida 32399-0950 Telephone: (850) 488-8855 Email: Frank.Miller2@dms.myflorida.com

Contractor’s Contract Manager:

Chas DeFelice Pro Energy Fleet Fueling LLC.

1093 Shotgun Rd.

Sunrise, FL 33326 Telephone: (954) 431-5389 Email: chas@proenergy.us

State Term Contract No. 15100000-19-1

IN WITNESS THEREOF, the Parties hereto have caused this Contract, which includes the incorporated Attachments, to be executed by their undersigned officials as duly authorized. This Contract is not valid and binding until signed and dated by the Parties.

PRO ENERGY FLEET FUELING LLC STATE OF FLORIDA,

DEPARTMENT OF MANAGEMENT SERVICES

Patrick Gillespie, Deputy Secretary

Date: Date:

Invitation to Bid (ITB) No: 16-15100000-W

Exhibit A Scope of Work

A. General Statement

1. Purpose

The State of Florida Department of Management Services’ Division of State Purchasing (Department) is issuing this Invitation to Bid (ITB) to establish a state term contract for Bulk Fuel, Gasoline, and Biodiesel. Customers for this contract include all state agencies and eligible users. (It is anticipated that Customers will use approximately 10,000,000 gallons annually under the resulting Contract, if any).

2. Commodity Code List

UNSPSC Commodity Description 15101505 Diesel fuel 15101506 Gasoline or Petrol 15101513 Diesel fuel off road 15101801 Biodiesel

B. Definitions

1. Back Haul- Return of unused fuel.

2. Contractor - The successful bidder/Vendor who is awarded the resultant contract under this solicitation. Contractor is also known as the “Shipper”.

3. Contract Manager - Person designated by the Department of Management Services (the Department) to be responsible for managing the performance of a contract.

4. Customer - An ordering entity including state agencies and eligible users, as defined in Rule 60A-1.001, Florida Administrative Code (F.A.C.).

5. Eligible User - A governmental entity defined in Rule 60A-1.001, F.A.C.

6. Emergency Delivery- When a delivery is required to help immediate risk to health, life, or property.

7. Freight Charge- The fee is applied to all shipments and is set by local authorities which means this fee may apply to both import or export shipments.

8. Pump Off- Using a pump to pull the fuel from the truck/trailer and pushes the fuel to its destination.

9. Top Off- To bring fuel to the maximum tank level of 1,000 gallons or less.

C. Commodity Specifications

1. Biodiesel Blend: Blend of grade no. 2-D ultra-low sulfur diesel and up to 20% biodiesel, for use in over the road diesel engine, meeting the American Society for Testing and Materials (A.S.T.M.) specification D7467 for biodiesel blends (6% – 20%). The biodiesel component shall consist of mono-alkyl esters of long chain fatty acids derived from new and used vegetable oils, designated B100, B99.9, or B99, meeting the A.S.T.M. specification D6751 and be certified under the BQ9000 quality program. The diesel component (grade no. 2-D ultra-low sulfur diesel) and any blends with less than 6% biodiesel shall meet A.S.T.M. specification D975. The final product shall comply with the standards in Rule 5J-21.001, F.A.C. The Contractor must deliver any blend requested by the Customer.

2. Diesel Fuel, Grade No. 2-D Ultra Low Sulfur: Grade no. 2-D (.0015 mass

Percentage sulfur, 40 cetane min.), for use in over the road diesel engine, per A.S.T.M. specification D975, complying with Rule 5J-21.001, F.A.C.

3. Gasoline E10, Unleaded 87 Octane: The product shall comply with the standards in

Rule 5J-21.001, F.A.C.

4. Diesel Fuel, Red Dye Grade No. 2 Ultra Low Sulfur: for use in off-road diesel engine, minimum cetane number of 40 using A.S.T.M. D613, A.S.T.M specification D975, Grade # 2 S15. The product shall comply with the standards in Rule 5J- 21.001, F.A.C.

Upon Customer request, Contractor must provide all certificates concerning product quality of all commodities listed in Section C (1-4) inclusive in this Scope of Work.

D. Pricing Elements for Purchase of Fuels

1. Cost of Fuel

Prices will be calculated for each fuel type using the following information:

1.1 Biodiesel Blend

1.1.1 Data Transmission Network (DTN) FastRacks Average Price for Ultra

Low No. 2. The daily price will be used to calculate the diesel portion for Biodiesel.

1.1.2 The Wall Street Journal’s published Monday closing price for soybean oil, as printed in the Tuesday edition under “Fats and Oils” in the “Cash Prices” column. This weekly price will be used to calculate the bio portion of the Biodiesel. This method will be used unless vendor(s) can show a better way of getting the price weekly. If no Monday price is published, then the next available published price will apply (Tuesday, Wednesday, etc.).

1.1.3 Contractor’s Markup as determined by the Price Sheet for the region in which delivery of Fuel is made.

1.1.4 All applicable Fuel taxes and/or petroleum associated fees as determined by the county in which delivery of Fuel is made.

Sample Calculations:

B20 wholesale price = 0.80 times the price for ultra-low sulfur no. 2 diesel plus

0.20 times the price for soybean oil.

B10 wholesale price = 0.90 times the price for ultra-low sulfur no. 2 diesel plus

0.10 times the price for soybean oil.

B5 wholesale price = 0.95 times the price for ultra-low sulfur no. 2 diesel plus

0.05 times the price for soybean oil.

The Contractor is prohibited from negotiating or billing in a manner that exceeds the stated prices included in the Contract. The Contractor agrees that the price charged to the Customer shall be subject to audit, and the Contractor shall make all records supporting the invoiced prices available for inspection, upon written request by the Customer.

1.2 Diesel Fuel, Grade No. 2-D Ultra Low Sulfur

1.2.1 DTN FastRacks Average Price for Ultra Low No. 2.

1.2.2 Contractor’s Markup as determined by the Price Sheet for the region in which delivery of Fuel is made.

1.2.3 All applicable Fuel taxes and/or petroleum associated fees as

1.3 Gasoline E10, Unleaded 87 Octane

1.3.1 DTN FastRacks Average Price for Gasoline E-10 10% Ethanol.

1.3.2 Contractor’s Markup as determined by the Price Sheet for the region in which delivery of Fuel is made.

1.3.3 All applicable Fuel taxes and/or petroleum associated fees as

1.4 Diesel Fuel, Red Dye Grade No. 2 Ultra Low Sulfur

1.4.1 DTN FastRacks Average Price for Ultra Low Red No. 2.

1.4.2 Contractor’s Markup as determined by the Price Sheet for the region in which delivery of Fuel is made.

1.4.3 All applicable Fuel taxes and/or petroleum associated fees as

The DTN FastRacks Average Price used above will be that of the closest appropriate terminal, on the date of delivery to the Customer, regardless of when or where the Contractor obtained fuel. The Contractor must subscribe to the DTN FastRacks Averages by calling DTN’s Sales Department at 1-800-779-5775.

The following terminals are used to refer to the DTN FastRacks Average Prices:

• Pensacola

• Panama City

• Jacksonville

• Orlando

• Tampa

• Miami

• Bainbridge, GA

2. Fuel Fees, Taxes, and Other Costs

The Contractor may assess the following charges as determined by the price sheet for the county in which delivery of Fuel is made:

2.1. Delivery charges are allowed.

2.2. Freight charges will apply on all Transport Deliveries.

2.3. Pump off charge for Transport Delivery. This may be charged more than once if

Transport Delivery truck is required to relocate to deliver to additional tanks.

2.4. Excessive delay charge if Contractor should wait more than 30 minutes to begin Fuel delivery.

2.5. Back haul charge if Customer orders more than tanks can hold.

2.6. Top off charge.

2.7. Tank maintenance, if customer and vendor agree.

2.8. Other fees were permitted by paragraph 215.422(3)(b), Florida Statutes.

This space left intentionally blank.

E. Delivery to Customers

Map of Four Geographic Regions for Delivery to Customers

Identification of Counties within Four Geographic Regions

WESTERN (W) NORTHERN (N) CENTRAL (C) SOUTHERN (S)

Bay Alachua Brevard Broward Calhoun Baker Charlotte Collier

Dixie Bradford Citrus Glades Escambia Clay Desoto Hendry Franklin Columbia Hardee Martin Gadsden Duval Hernando Miami-Dade

Gulf Flagler Highlands Monroe Holmes Gilchrist Hillsborough Palm Beach Jackson Hamilton Indian River Jefferson Levy Lake Lafayette Marion Lee

Leon Nassau Manatee Liberty Putnam Okeechobee

WESTERN (W) NORTHERN (N) CENTRAL (C) SOUTHERN (S)

Madison St. Johns Orange Okaloosa Suwannee Osceola

Santa Rosa Union Pasco Taylor Volusia Pinellas

Wakulla Polk Walton Sarasota

Washington Seminole St. Lucie Sumter

NOTE: Gallons listed below may be converted to liters.

1. Normal delivery on this Contract shall be from 6,000 to 8,500 gallons for a Delivery of gasoline; 6,000 to 7,500 gallons for a Delivery of diesel; and 7,500 gallons for a combination load Transport Delivery of gasoline and diesel.

2. Delivery options on the contract for less than the normal delivery can be made via a tank wagon, LPG trucks, or other means to receive less than 6,000 gallons.

3. In the event of an emergency, gas and/or diesel deliveries/top offs can be made by a tank wagon or other available transportation for gas or diesel deliveries less than the normal delivery load.

4. Delivery shall be made available to all state agencies and their locations.

Imperial measurements appearing are not intended to preclude bids for commodities with metric measurements.

5. Normal delivery of fuel will be delivered to the Customer’s tank(s) within 48 hours after telephone notification is received unless specified otherwise by the Customer.

For new accounts, the Contractor will be allowed additional time to enter all required account information into their ordering/billing system to establish the new account.

This time will be agreed upon by the Customer and the Contractor. The State prefers that vehicles equipped with meters make delivery. If non-metered vehicles are used, the driver shall leave a metered loading report from the terminal with the Customer. If temperature corrected billing is used, the loading report shall give all pertinent information. Customer may be subject to a service charge if request is for same day delivery.

6. Before unloading of Fuel begins, Customer personnel and Contractor personnel shall measure the Customer’s tank(s) to receive Fuel and shall again measure the tank(s) after delivery. Customer may be subject to a back-haul charge if the Customer orders more Fuel than the Customer’s tank(s) can hold upon delivery and a portion of the Fuel ordered has to be returned.

F. Emergency Fuel Plan Within thirty days of contract signing, the Contractor and the State shall jointly develop an Emergency Fuel Plan (Plan). The emergency purchases under the Plan shall include the use of equipment and tools, and all services and responsibilities prescribed or implied which are necessary for the complete performance by the Contractor of its obligations under the Plan.

This Plan shall include but not be limited to:

• Commodities and services available to Customers during emergencies

• An assessment of risks

• Operational assignments (Who does what, when and how)

• Procedures for Emergency notification (How do we tell people there's a problem?)

• Procedures for activation in the event of an emergency to protect and/or recover critical assets and functions

• Procedures for Plan testing

• Procedures for an annual review, updating, altering and re-writing that results in a document that is fully functional and operational

• The plan must be able to work with the State’s Fuel Card program

G. Invoices

1. The Contractor shall submit timely invoices to the Customer.

2. At a minimum the invoices are to provide the following information:

2.1. Contractor’s name, contract number, actual date of delivery, location of delivery, fuel manufacturer, and fuel quantity delivered;

2.2. DTN FastRacks Average Price based on the actual delivery date and named closest terminal used for price;

2.3. Exempted taxes, fees, credits, markup, and other fees consisting of freight, pump-off, excessive delay, back-haul, top-off, tank maintenance pump off fee;

2.4. Adjustments due to unforeseen circumstances including but not limited to erroneous orders, fuel spills, delivery of incorrect fuel, and cross-fueling; and

2.5. Total invoice price.

3. To encourage transparency, all line item costs on all invoices shall include a description of each cost sufficient for a Customer to understand and audit.

H. Punch-out Catalog and Electronic Invoicing The Contractor will be required to provide an MFMP punch-out catalog. The punch-out catalog provides an alternative mechanism for suppliers to offer the State of Florida access to products awarded under the Contract. The punch-out catalog also allows for direct communication between the MFMP eProcurement System and a supplier’s Enterprise Resource Planning (ERP) system, which can reflect real-time product inventory/availability information.

Through utilization of the punch-out catalog model, a Florida buyer will “punch out” to a supplier’s website. Using the search tools on the supplier’s Florida punch-out catalog site, the user selects the desired products and services. When complete, the user exits the supplier’s punch-out catalog site and the shopping cart (full of products and services) is “brought back” to MFMP. No orders are sent to a supplier when the user exits the supplier’s punch-out catalog site. Instead, the chosen products and services are “brought back” to MFMP as Contract line items. The user can then proceed through the normal workflow steps, which may include adding/editing the products to a requisition or a purchase order. An order is not submitted to a supplier until the buyer actually adds the line items to a requisition and the purchase order is approved and sent to the supplier.

At the State's option, the Contractor holds the option to invoice electronically pursuant to guidelines of the Department of Management Services. Electronic invoices will be submitted to the agency through the Ariba Network (AN) in one of three mechanisms as listed below. The Contractors may select the method that best meets their capabilities from the following list:

• cXML (commerce eXtensible Markup Language)

• This standard establishes the data contents required for invoicing via cXML within the context of an electronic environment. This transaction set can be used for invoicing via the Ariba Network (AN) for catalog and non-catalog products and services. The cXML format is the Ariba preferred method for eInvoicing.

• 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 AN, for catalog and non-catalog products and services.

• PO Flip via AN

• The online process allows suppliers to submit invoices via the AN, for catalog and non-catalog products and services. Suppliers 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.

For the purposes of this section, 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 the system the information outlined above. 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 the system 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 punch-out catalog and electronic invoicing.

I. Contract Reporting The Contractor shall report information on orders received from state agencies and eligible users associated with this contract. The Contractor shall supply to the Department all the data, calculations, and documents used in computing all costs associated with the supply and delivery of Fuel.

No favorable action will be considered for any contractor who has outstanding Contract Quarterly Sales Reports, MFMP Transaction Fee Reports, or any other documentation, to include fees / monies that is required under this Contract.

The Contractor shall submit reports in accordance with the following schedule:

Report Period Covered Due Dates

MFMP Transaction Report Calendar month

15th calendar day of the month following the receipt of payment for the vendor’s good or services.

Contract Quarterly Sales Report

State’s Fiscal Quarter

10 calendar days after close of the period

Savings / Price Reductions Annual 10 business days after each action that adjusts prices

Diversity Report (submitted to the Customer)

State Fiscal Year

10 business days after close of the period

Preferred Pricing Affidavit Annual Contract anniversary date

J. MFMP Transaction Fee Report The Contractor is required to submit monthly Transaction Fee Reports in the Department’s electronic format. Reports are due 15 calendar days after the end of the reporting period. For information on how to submit Transaction Fee Reports online, please reference the detailed fee reporting instructions and Vendor training presentations available online at the Transaction Fee Reporting and Vendor Training subsections under Vendor on the MFMP website: MFMP Transaction Fee and Reporting. Assistance is also available with the Transaction Fee Reporting System from the MFMP Customer Service Desk by email at feeprocessing@myfloridamarketplace.com or telephone 866-FLA-EPRO (866-352-3776) from 8:00 a.m. to 6:00 p.m. ET.

K. Quarterly Sales Report The Contractor agrees to submit a Quarterly Sales Report to the Department’s Contract Manager within 10 calendar days after the close of each State Fiscal quarter (September 30, December 31, March 31, and June 30).

Quarterly Reporting periods should coincide with the contract term and should begin the quarter following contract execution. Reports must be submitted in MS Excel format. The report will include all sales (orders) from state agencies and eligible users received (associated with this contract) during the period. Initiation and submission of the Quarterly 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 for convenience or the Department may choose to not renew the Contract.

The Contractor shall report to each Customer (ordering entity), spend with certified and other minority business enterprises. These reports shall include the period covered, the name, minority code and Federal Employer Identification Number of each minority business utilized during the period, commodities and services provided by the minority business enterprise, and the amount paid to each minority business on behalf of each purchasing agency ordering under the terms of this Contract.

In addition, the Department may require additional Contract sales information such as copies of purchase orders, or ad hoc sales reports. The Contractor shall submit these specific ad hoc requests within the specified amount of time as requested by the Department.

mailto:feeprocessing@myfloridamarketplace.com

The Contractor is required to submit ad hoc reports within the specified amount of time as requested by the Department.

L. Business Review Meetings In order to maintain the partnership between the Department and the Contractor, each quarter the Department may request a business review meeting. The business review meeting may include, but is not limited to, the following:

• Successful completion of deliverables

• Review of the Contractor’s performance

• Review of minimum required reports

• Addressing of any elevated Customer issues

• Review of continuous improvement ideas that may help lower total costs and/or improve business efficiencies

M. Financial and Other Consequences The following financial consequences will apply for nonperformance of the contract by a Contractor. The State reserves the right to withhold payment or implement other appropriate remedies, such as contract termination or nonrenewal, when the Contractor has failed to perform/comply with provisions of the Contract. These consequences for non-performance are not to be considered penalties.

The financial consequences will be paid via check or money order and made out to the Department of Management Services in US 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 quarter thereafter.

Performance Metrics Description Frequency Financial

Consequences Trigger for Non-Performance

Per Day Late Submission of complete and accurate Contract Quarterly Sales Report

Submit Quarterly Sales Report 10 calendar days after close of the period

Each quarter

$250

Submission of complete and accurate Contract Monthly Transaction Fee Report

Submit Monthly Transaction Fee Report 15 calendar days after close of the period

Each month

$100

N. Service Level Agreement (SLA) Performance State agencies and eligible users may add SLA requirements and additional financial consequences in their statements of work for failing to meet performance requirements within any negotiated SLA or purchase order.

STC # 15100000-19-1

Exhibit C Special Contract Conditions

Table of Contents

SECTION 1. DEFINITION

SECTION 2. CONTRACT TERM AND TERMINATION

SECTION 3. PAYMENT AND FEES

SECTION 4. CONTRACT MANAGEMENT

SECTION 5. COMPLIANCE WITH LAWS

SECTION 6. MISCELLANEOUS

SECTION 7. WORKERS’ COMPENSATION AND GENERAL LIABILITY INSURANCE,

AND INDEMNIFICATION

SECTION 8. PUBLIC RECORDS, TRADE SECRETS, DOCUMENT MANAGEMENT

AND INTELLECTUAL PROPERTY

SECTION 9. DATA SECURITY AND SERVICES

SECTION 10. GRATUITIES, LOBBYING, AND COMMUNICATIONS

SECTION 11. CONTRACT MONITORING

SECTION 12. CONTRACT AUDITS

SECTION 13. BACKGROUND SCREENING AND SECURITY

SECTION 14. INFORMATION TECHNOLOGY

In accordance with Rule 60A-1.002(5), F.A.C., Form PUR 1000 is included herein by reference and is superseded in its entirety by these Special Contract Conditions.

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 suspension. Examples of a 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 active or new purchase orders. Within ninety (90) calendar 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 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 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 and require correction 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 documents.

3.2 Price Decreases.

The following price decrease terms will apply to the Contract:

(a) 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 the pricing offered under comparable contracts. Comparable contracts are those which are similar in size, scope, and terms.

Contractor must annually submit an affidavit from an authorized representative attesting that the Contract is in compliance with this clause.

(b) 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 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. If applicable, 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 twelve (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), 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 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 any and all prior 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; reputable air courier service; email;

personal delivery; or as otherwise 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 provided in a separate writing to the Contractor upon Contract signing in the following format:

Jane Doe Address

Telephone # Email

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, who is primarily responsible for the Contractor’s oversight of the Contract performance, will be provided in a separate writing to the Department upon Contract signing in the following format:

Jane Doe <Insert Contractor name> <Insert Contractor’s physical address> Telephone: (XXX) 555-XXXX Email: jane.doe@business.gmail.com

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 Department 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

mailto:jane.doe@business.gmail.com mailto:osdinfo@dms.myflorida.com

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 http://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 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, if applicable, 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), and (g), F.S., are hereby incorporated by reference, to the extent applicable.

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 any and all http://www.respectofflorida.org/ http://www.pride-enterprises.org/ 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.

Consistent with Chapters 605 through 623, 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 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 placed on the Suspended Vendor List, Convicted Vendor List or the 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 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 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, at the Department of State’s Records Management website, 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 (5) working days, unless the contract specifies otherwise, 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.

Interest penalties for late payment are also limited according to section 215.422, F.S.

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 Contractor offer subcontracting opportunities to certified woman-, veteran-, and minority-owned small businesses. The 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 Department and are not entitled to State of Florida benefits. 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.

6.4 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. 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.

6.7 Time is of the Essence.

Time is of the essence regarding each and 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.

Agencies wishing to make purchases under this Contract are required to follow the requirements of section 287.042(16) or 287.057(3) (b), F.S., and rule 60A-1.045, F.A.C.

These provisions require the Department to determine that the requesting agency’s use of the Contract is cost-effective and in the best interest of the State.

Pursuant to their own governing laws, and subject to the agreement of the Contractor, government entities may make purchases under the terms and conditions contained herein, if agreed to by Contractor. Non-Customer purchases are independent of the Contract between the Department and the Contractor. The Department is not a party to any transaction between the Contractor and any purchaser.

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 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, products, personal & advertising injury, and completed operations. This insurance must provide coverage for all claims that may arise from the services and/or operations completed under the Contract, 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 named 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.

All insurance policies must be with insurers licensed or eligible to transact business in the State of Florida. The Contractor must submit via email, to the Department’s contract manager, insurance certificates evidencing such insurance coverage prior to execution of a contract with the Department and provide Department notice of any cancellation or nonrenewal at least ten (10) calendar days prior to cancellation or nonrenewal.

7.3 Indemnification.

To the extent permitted by Florida law, the Contractor agrees to indemnify, defend, and hold the Department, 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,…