3-ITN Attachment B- Contract Terms and Conditions.pdf

Attachment B- Contract Terms and Conditions

1. General Terms.

The following are the terms and conditions that will become part of any agreement consummated between the University and the awarded Respondent. In the event of a conflict between any provisions contained in any of the documents governing this transaction, the following will be the order of precedence: the Agreement; the Solicitation; the final response.

2. Actions of Awarded Respondent.

The University is under no obligation whatsoever to be bound by the actions of the awarded Respondent with respect to third parties. The awarded Respondent is not an agent of the University.

3. Americans with Disabilities Act.

The awarded Respondent must comply with all applicable provisions of the Americans with Disabilities Act and applicable federal regulations under the Act.

4. Availability of Funds.

The State of Florida’s and University’s performance and obligation to pay under this agreement is contingent upon sufficient appropriation by the Florida Legislature and other entities’ allowance of the University to use such funds. University's financial obligations continue under this Agreement are conditioned upon the appropriation of funds on an annual basis, which is not controlled by the University. In the event that the entities controlling such funding fail to appropriate funds or to allow University to use funds and University has determined, in University's sole discretion, that there are insufficient funds available to cover University's obligation under this Agreement, University will have the right to terminate this Agreement for the upcoming year without damage, penalty, cost, or further obligation.

University will notify Contractor at least 30 day in advance of a termination pursuant to this provision; University must pay for all services rendered until the date of termination.

5. Assignment.

The awarded Respondent may not assign any obligations or rights under the agreement without express written permission from the University and any attempted assignment is void.

6. Background Check.

All of Respondent’s employees who enter the University campus or premises must have passed an employer background check and must not be listed on the Florida or National Sex Offenders Registry.

7. Confidentiality of Information.

If awarded Respondent is exposed to University’s confidential information (such as donor information), awarded Respondent will keep such information confidential and will act in accordance with any guidelines and applicable laws including the Family Educational Rights and Privacy Act (FERPA) and the Gramm-Leach Bliley Act

8. Contractor.

Awarded Respondent is retained by University only for those purposes and to the extent set forth in this Agreement, and awarded Respondent’s relationship to University will, during the term of this Agreement, be that of independent Contractor. Awarded Respondent is not and will not be considered as having an employee status. Awarded Respondent is responsible for the payment of any taxes on any monies received by awarded Respondent.

9. Copyright and Intellectual Property.

a. If awarded Respondent uses copyrighted materials or documents not owned by University (“Copyrighted Materials”) in its performance of the Agreement, awarded Respondent represents and warrants that it owns, or is licensed to use and to authorize others to use, the Copyrighted Materials.

b. Awarded Respondent will, at its expense, defend any suit brought against University and will indemnify University against an award of damages and costs, including attorney’s fees, made against University by a settlement or final judgment that is based on a claim that University’s use of the Copyrighted Materials infringes a trademark or copyright of a third party.

c. Any reports or deliverables provided to the University pursuant to this agreement are considered as works for hire, and the University may use such reports or deliverables for any purposes.

10. Default.

The University reserves the right to terminate the agreement in whole or in part due to the failure of the awarded Respondent to comply with any term or condition of the agreement, to acquire and maintain all required insurance policies, bonds, licenses and permits, or to make satisfactory progress in performing the agreement. The University shall provide written notice of the termination and the reasons for it to the awarded Respondent.

11. Equal Opportunity Statement.

The awarded Respondent and any subcontractors must abide by the requirements of 41 CFR 60-1.4(a), 60-300.5(a), and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as qualified protected veterans or individuals with disabilities and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity, or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, disability, or veteran status.

12. E-Verify.

All terms defined in section 448.095, Florida Statutes are adopted and incorporated into this provision. Pursuant to section 448.095, Florida Statutes, Contractor certifies that it is registered with and uses the U.S. Department of Homeland Security's E-Verify system to verify the employment eligibility of all new employees hired by the Contractor during the term of this agreement. If Contractor enters into a contract with a subcontractor to perform work or provide services pursuant to this agreement, Contractor must also require the subcontractor to comply with the requirements of section 448.095, Florida Statutes. The subcontractor must provide to Contractor an affidavit stating that the subcontractor does not employ, contract with, or subcontract with or to any unauthorized alien. Contractor must maintain a copy of such affidavit for the duration of the contract. University may terminate this agreement immediately upon notice to Contractor for any violation of this provision.

13. Federal, State, Local Laws, and Regulation.

The awarded Respondent and any subcontractors must comply with all laws, ordinances, and regulations that apply to the University and awarded Respondent. The awarded Respondent is solely responsible for keeping itself fully informed of and faithfully observing all laws, ordinances, and regulations and agrees to protect and indemnify the University, its officers, and agents against any claims of liability arising from or based on any violation thereof.

14. Force Majeure.

In the event compliance with any obligation under the agreement is impractical or impossible due to any Event of Force Majeure, then the time for performance of such obligation shall be extended for a period equivalent to the duration of the Event of Force Majeure. The provisions of this section shall not operate to excuse either party’s inability to perform its obligations hereunder because of inadequate finances. “Event of Force Majeure:” means any strike, lockout, labor dispute, embargo, flood, earthquake, storm, dust storm, lightning, fire, epidemic, act of God, war, national emergency, civil disturbance or disobedience, riot, sabotage, terrorism, restraint by governmental order or any other occurrence beyond the reasonable control of the party in question.

15. Governing Law.

This Agreement and any amendments to it are governed by the laws of the State of Florida and venue for any actions arising out of this agreement must be in the state courts in Polk County, Florida.

16. Indemnification/Hold Harmless.

a. The awarded Respondent agrees to indemnify, defend, and hold harmless the Board of Trustees, Florida Polytechnic University, the State of Florida and the Florida Board of Governors, and their officers, agents, and employees from any and all claims, demands, suits, actions, proceedings, loss, cost, and damages of every kind and description, including attorneys’ fees and/or litigation expenses, which may be brought or made against or incurred on account of loss of or damage to any property or for injuries to or death of any person, caused by, arising out of, or contributed to, in whole or in part, by reasons of any act, omission, professional error, fault, mistake, or negligence of awarded Respondent, its employees, agents, representatives, or subcontractors, their employees, agents, or representatives in connection with or incident to the performance of the Agreement.

b. The awarded Respondent’s obligation under this provision does not extend to any liability caused by the sole negligence of the Florida Polytechnic University, or its officers, agents, and employees.

c. Nothing in this agreement may be construed as an indemnification of the Contractor by the University or as a waiver of sovereign immunity beyond that provided in section 768.28, Florida Statutes.

d. This provision will survive the termination of this agreement.

e. Due to its sovereign immunity, University will not indemnify Contractor.

17. Insurance.

During the term of this contract, awarded Respondent must maintain at its own expense amounts of insurance as described in the ITN. If no specific amounts are listed in the ITN, awarded Respondent must maintain at its own expense amounts of insurance that at a minimum cover the awarded Respondent’s (or subcontractors’) exposure in performing this Agreement. University is self-insured and will provide its Certificate of Insurance upon request; University is not required to obtain additional insurance for this Agreement.

18. Licensing Requirements.

To the extent applicable, awarded Respondent must have all appropriate licenses to conduct business in the State of Florida and Polk County at or prior to award of a Contract/Lease and maintain such licenses for so long as necessary or required. Respondent must provide proof of such to the University as a condition of award of a Contract/Lease Agreement and provide proof of such license to the University upon request thereafter.

19. Notices.

a. Any notice to either party must be in writing and signed by the party giving it, and served:

i. By hand notice; or

ii. Through the United States Mail, postage prepaid, registered or certified, return receipt requested; or

iii. Through expedited mail or package service, if a receipt showing the delivery has been retained; or

iv. By e-mail and addressed as follows:

To UNIVERSITY: To Awarded Respondent:

The Florida Polytechnic University Name:

Board of Trustees Address: 4700 Research Way Address:

Lakeland, FL 33805

Attn: Procurement Department Attn:

E-mail: procurement@floridapoly.edu E-mail:

CONTRACT MANAGER:

Attn:

Email:

20. Parking.

The awarded Respondent will ensure that all of the Respondent’s and Respondent’s employees’, agents’, and subcontractors’ vehicles parked on the University premises have proper parking permits. All such vehicles must be registered with and have parking permits purchased from the University’s Parking and Transportation Services. Respondent and Respondent’s employees, agents and subcontractors will observe all parking regulations. The failure to comply with the University’s parking regulations could result in the ticketing and/or the towing of the vehicles.

21. Public Records Contract for Services: Compliance with section 119.0701, Florida Statutes.

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:

Florida Polytechnic University Attention: General Counsel

4700 Research Way Lakeland, FL 33805 ogc@floridapoly.edu (863) 874-8412

To the extent that Respondent meets the definition of “contractor” under section 119.0701, Florida Statutes, in addition to other contract requirements provided by law, Respondent must comply with public records laws, including the following provisions of section 119.0701, requiring Respondent to:

mailto:procurement@floridapoly.edu mailto:ogc@floridapoly.edu

A. Keep and maintain public records required by University to perform the service.

B. Upon request from the University’s custodian of public records, provide the University 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, Florida Statutes, or as otherwise provided by law.

C. Ensure that confidential information or records that are exempt from public records disclosure are not disclosed except as authorized by law for the duration of this agreement, renewals, and following completion of the contract if Respondent does not transfer the records to University.

D. Upon completion of this Agreement, transfer, at no cost, to University all public records in possession of Respondent or keep and maintain public records required by University to perform the service.

1) If Respondent transfers all public records to University upon completion of the contract, Respondent must destroy any duplicate confidential information or records that are exempt from public records disclosure.

2) If Respondent keeps and maintains public records upon completion of this Agreement, Respondent must meet all applicable requirements for retaining public records.

3) All records stored electronically must be provided to University, upon request from the University’s custodian of public records, in a format that is compatible with the information technology systems of the University.

E. Third parties requesting to inspect or copy public records relating to this agreement must be made directly to University. If University does not possess the requested records, University will notify Respondent of the request, and Respondent must provide the records to the public agency or allow the records to be inspected or copied within a reasonable time.

F. The University may inspect the:

1) Financial records, papers, and documents of the Respondent that are directly related to the performance of the contract or the expenditure of state funds.

2) Respondent’s programmatic records, papers, and documents which the University determines are necessary to monitor the performance of this agreement or to ensure that the terms of this agreement are being met.

3) The Respondent must provide such records, papers, and documents requested by the University within 10 business days after the request is made.

4) The right of access in this provision is not limited to the required retention period but lasts as long as the records are retained.

G. The terms of section 6 are material terms of this agreement, and failure to comply may result in termination and/or civil penalties.

22. Remedies and Applicable Law.

The Agreement and any disputes thereunder will be governed by the laws of the State of

Florida and will be deemed to have been executed and entered into in the State of Florida. The

Agreement will be construed, performed, and enforced in all respects in accordance with the laws and rules of the State of Florida, and any provision in the agreement in conflict with

Florida law and rules will be void and of no effect. The University and the awarded Respondent hereby agree that the agreement will be enforced in the courts of the State of Florida and that venue will always be in Polk County, Florida.

23. Safety.

The University seeks to furnish its students and employees with a place of work and study that is free from recognized hazards that are causing or are likely to cause death or serious physical harm, and one that complies with occupational health and safety standards promulgated under

Occupational Safety and Health Act of 1970 (OSH ACT). Therefore, the awarded Respondent is required to comply with the occupational safety and health standards and all rules, regulations and orders issued pursuant to the OSH ACT while on the University’s premises. The University has not found and is not aware of any hazardous materials on the site; however, The University recommends awarded Respondent perform an environmental assessment prior to the pre-development phase of the project to investigate subsurface soil conditions in order to ascertain if any hazardous materials may exist. The University will make available any of its geotechnical engineering reports upon request. The University accepts no liability for any hazards on the land; awarded Respondent accepts all risks.

24. Sales and Use Tax.

The State of Florida and its agencies (including the University) are tax-immune and exempt from the payment of taxes. The awarded Respondent will be responsible to pay any such taxes imposed on taxable activities/services under the agreement.

25. Small Business Minority Enterprise (SMBE) Reporting.

Awarded Respondent must report all minority subcontractors, identifying the Name, Address, Type of Certification and Dollar Amount to the University with each invoice submitted for payment.

26. Software.

If awarded Respondent is providing software, University may create and retain a copy of the software and related documentation for backup and disaster-recovery purposes, and for archival purposes for use after this agreement is terminated.

27. Subcontractors.

The awarded Respondent is fully responsible for all work performed under the related to the agreement. The awarded Respondent may enter into written subcontract(s) for performance of certain of its functions under the agreement, subject to the terms and provisions of the agreement. Respondent’s subcontracts will not be implemented or effective until and unless approved in writing by the University, as applicable. No subcontract which the Respondent enters into related to the agreement will in any way relieve the awarded Respondent of any responsibility for performance of its duties under the agreement. Awarded Respondent will fully notify any subcontractors of Respondent’s responsibilities pursuant to the agreement in

Respondent’s subcontract(s) with a subcontractor(s) for work related to the agreement.

Respondent is solely responsible for all payments to its subcontractors. Awarded Respondent will require all of its subcontractors to provide the required insurance coverage as well as any other coverage that the awarded Respondent may consider necessary, and any deficiency in coverage or policy limits of said subcontractor will be the sole responsibility of the awarded

Respondent.

28. Suspension or Debarment.

The University may by written notice to the awarded Respondent immediately terminate the agreement if the University determines that the awarded Respondent has been debarred, suspended, or otherwise lawfully prohibited from participating in any public procurement activity, including but not limited to, being disapproved as a subcontractor respondent of any public procurement unit or other governmental body.

29. Termination.

a. Termination at Will. This Agreement may be terminated by University by providing written notice to awarded Respondent of such intent to terminate at least 10 days prior to the effective date of such termination.

b. Termination for Cause. Notwithstanding the provisions of subsection 22.a. above, University may termination this Agreement for cause upon 5 days’ written notice to awarded Respondent that specifies the basis for termination. For purposes of this

Agreement, “cause” is defined as awarded Respondent’s failure to perform the Services within the time specified herein or any extension thereof or awarded Respondent’s failure to adhere to any of the material terms of this Agreement.

c. If this Agreement is terminated, University is liable only for payment of goods received and services rendered prior to the date of termination and accepted by University.

30. Wok for Hire.

a. Any work specifically created for the University under this Agreement by the awarded

Respondent is considered a “work for hire.” All designs, prints, paintings, artwork, sketches, etchings, drawings, writings, photographs, or any other work or material or property produced, developed or fabricated and any other property created hereunder, including all material incorporated therein and all preliminary or other copies thereof, (the "Materials") are and remain the property of the University, and, unless otherwise specifically set forth herein, are considered specially ordered for the University as a

"work made for hire," or, if for any reason held not to be a "work for hire,” the awarded

Respondent who created, produced, developed or fabricated the Materials hereunder assigns all of his/her right, title and interest in the Materials to the University.

b. The University owns all right, title and interest in the Materials. Awarded Respondent agrees upon request to execute any documents necessary to perfect the transfer of such title to the University.

c. The Materials must be to the University’s satisfaction and are subject to the University’s approval. Awarded Respondent bears all risk of loss or damage to the Materials until the

University has accepted delivery of the Materials.

d. The University is entitled to return, at awarded Respondent’s expense, any Materials which the University deems to be unsatisfactory.

e. On or before completion of the awarded Respondent’s services hereunder, the awarded

Respondent must furnish the University with valid and adequate releases necessary for the unrestricted use of the Materials for advertising or trade purposes, including model and property releases relating to the Materials and releases from any persons whose names, voices or likenesses are incorporated or used in the Materials.

f. Awarded Respondent hereby represents and warrants that the Materials may be used or reproduced for advertising or trade purposes or any commercial purposes without violating any laws or the rights of any third parties and that no third party has any rights in, to, or arising out of, or in connection with the Materials, including without limitation any claims for fees, royalties or other payments.

31. Waiver of Rights and Breaches.

No right conferred on the University by the agreement, will be deemed waived and no breach of any such agreement excused, unless such waiver of right or excuse of breach is in writing and signed by the University. The University’s waiver of a right or breach does not constitute a waiver or excuse of any other right or breach.

32. Term.

This Agreement is effective on [insert date or upon being fully executed by both parties] and remains in effect for [insert time frame].