APD PO Terms and Conditions 9.9.24 v2.pdf

Rev. 09/2024

Agency for Persons with Disabilities Purchase Order Terms and Conditions

For good and valuable consideration, received and acknowledged sufficient, the parties agree to the following, in addition to terms and conditions expressed in the MyFloridaMarketPlace Purchase Order:

1. In performing its obligations under this Purchase Order, the Vendor shall at all times be acting in the capacity of an independent contractor and not as an officer, employee, or agent of the State of Florida, except where the Vendor is a state agency. Neither the Vendor nor its agents, employees, subcontractors or assignees shall represent to others that it has the authority to bind the Agency (or APD) unless specifically authorized in writing to do so.

2. This Purchase Order is executed and entered into in the State of Florida, and shall be construed, performed and enforced in all respects in accordance with Florida law, without regard to Florida provisions for conflict of laws. Courts of competent jurisdiction in Florida shall have exclusive jurisdiction in any action regarding this Purchase Order and venue shall be as provided in PUR 1000. The PUR 1000 form, as amended from time to time, is hereby incorporated by reference and made a part of this Purchase Order as if fully recited herein. In the event of any conflict between PUR 1000 and any terms or conditions of this Purchase Order, the terms and conditions of this Purchase Order shall take precedence, unless such term or condition is required by Florida Statutes, in which case the Florida Statute shall take precedence.

3. The Vendor shall 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. By way of non-exhaustive example, the Vendor shall comply with section 247A(e) of the Immigration and Nationalization Act, the Americans with Disabilities Act, and all prohibitions against discrimination on the basis of race, religion, sex, creed, national origin, handicap, marital status, or veteran’s status. Violation of such laws shall be grounds for termination or cancellation of this Purchase Order.

4. The vendor shall maintain insurance as required by Section 8, Subsection e., of PUR

1000, as amended from time to time. The Vendor shall maintain continuous adequate liability insurance coverage during the term of this Purchase Order.

5. The Vendor shall keep and maintain public records required by the Agency to perform the services specified in this Purchase Order.

Upon request from the Agency’s Custodian of Public Records, the Vendor shall provide the 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, Florida Statutes or as otherwise provided by law.

The Vendor shall ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of this Purchase Order and following completion of the Purchase Order if the Vendor does not transfer the records to the Agency. Upon completion of the Purchase Order, the Vendor shall transfer, at no cost, to the Agency all public records in possession of the Vendor or keep and maintain public records required by the Agency to perform the service. If the Vendor transfers all public records to the Agency upon completion of the Purchase Order, the Vendor shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the Vendor keeps and maintains public records upon completion of the Purchase Order, the Vendor shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the Agency, upon request from the Agency’s Custodian of Public Records, in a format that is compatible with the information technology systems of the Agency.

If the Vendor does not comply with a public records request, this shall constitute an immediate breach of contract for which the Agency may unilaterally and without prior notice terminate the Purchase Order.

A request to inspect or copy public records relating to the Purchase Order must be made directly to the Agency. If the Agency does not possess the requested records, the Agency shall immediately notify the Vendor of the request, and the Vendor must provide the records to the Agency or allow the records to be inspected or copied within a reasonable time. If the Vendor does not comply with the Agency’s request for records, the Agency shall enforce the Purchase Order provisions in accordance with the Purchase Order.

If the Vendor fails to provide the public records to the Agency within a reasonable time, the Vendor may be subject to penalties under section 119.10, F.S. If a civil action is filed against the Vendor to compel the production of public records relating to the Purchase Order, the court shall assess and award against the Vendor the reasonable costs of enforcement, including reasonable attorney fees, if (i) the court determines that the Vendor unlawfully refused to comply with the public records request within a reasonable time; and (ii) at least 8 business days before filing the action, the plaintiff provided written notice of the public records request, including a statement that the Vendor has not complied with the request, to the Agency and to the Vendor. A Vendor who complies with a public records request within 8 business days after the notice is sent is not liable for the reasonable costs of enforcement.

If the Vendor has questions regarding the application of Chapter 119, F.S., to the Vendor’s duty to provide public records relating to this Purchase Order, contact the Custodian of Public Records at:

Agency’s Public Records Coordination Office Agency for Persons with Disabilities 4030 Esplanade Way, Suite 335 Tallahassee, FL 32399-0950 (850)410-1309 publicrecords@apdcares.org

Subject to Section 5 above, Vendor shall maintain confidentiality of all data, files, and records related to the services/commodities provided pursuant to this Purchase Order and shall comply with all state and federal laws, including, but not limited to Sections

381.004, 384.29, 392.65, and 456.057, Florida Statutes. Vendor shall also comply with any applicable professional standards of practice with respect to confidentiality of information.

6. If the Vendor is an agency or subdivision of the State, its obligation to indemnify, defend, and hold harmless the Agency shall be to the extent permitted by § 768.28, F.S. or other applicable law, and without waiving the limits of sovereign immunity.

Vendor agrees to indemnify, defend, and hold the State of Florida, its officers, employees and agents harmless, to the full extent allowed by law, from all fines, claims, assessments, suits, judgments, or damages, consequential or otherwise, including court costs and attorneys’ fees, arising out of any acts, actions, breaches, neglect or omissions of Vendor, its employees and agents, related to this Purchase Order, as well as for any determination arising out of or related to this Purchase Order, that Vendor or Vendor’s employees, agents, subcontractors, assignees are not independent contractors in relation to the Agency. This Purchase Order does not constitute a waiver of sovereign immunity or consent by APD or the State of Florida or its subdivisions to suit by third parties in any matter arising here from, provided that the Vendor shall have no indemnification obligation where it is found that the Agency’s actions to omissions led to such determination.

7. Excluding State Universities, all patents, copyrights, and trademarks arising, developed or created in the course or as a result hereof are APD property and nothing resulting from Vendor’s services or provided by APD to Vendor may be reproduced, distributed, licensed, sold or otherwise transferred without prior written permission of APD. This paragraph does not apply to APD purchase of a license for Vendor’s intellectual property.

8. If this Purchase Order is for direct personal services by Vendor, all Vendor’s staff must meet Level Two Background Screening requirements in accordance with section

393.0655 and Chapter 435, F.S., as a condition of employment and continued employment. The screening includes fingerprinting for statewide criminal history records checks through the Department of Law Enforcement, national criminal history records checks through the Federal Bureau of Investigation, and local criminal records checks through local law enforcement agencies. The cost of the background screen(s) shall be borne by the Vendor. APD, solely at its discretion, reserves the right to terminate this agreement if the background screen(s) reveal arrests or criminal convictions. Vendor, its employees, or agents shall have no right to challenge the APD’s determination pursuant to this paragraph.

9. Unless otherwise prohibited by law, the APD, at its sole discretion, may require the Vendor to furnish, without additional cost to APD, a performance bond or negotiable irrevocable letter of credit or other form of security for the satisfactory performance of work hereunder. The type of security and amount is solely within the discretion of APD. Should the APD determine that a performance bond is needed to secure the agreement, it shall notify potential Vendors at the time of solicitation.

10. Section 287.057(17)(c), Florida Statutes, provides, “A person who receives a contract that has not been procured pursuant to subsections (1)-(3) to perform a feasibility study of the potential implementation of a subsequent contract, who participates in the drafting of a solicitation or who develops a program for future implementation, is not eligible to contract with the agency for any other contracts dealing with that specific subject matter, and any firm in which such person has any interest is not eligible to receive such contract. However, this prohibition does not prevent a vendor who responds to a request for information from being eligible to contract with an agency.”

The Agency for Persons with Disabilities, considers participation through decision, approval, disapproval, recommendation, preparation of any part of a purchase request, influencing the content of any specification or procurement standard, rendering of advice, investigation, or auditing or any other advisory capacity to constitute participation in the drafting of the solicitation.

11. Items received in excess of quantities specified may, at purchaser’s option, be returned at the Vendor’s expense. Substitutions are not permitted unless expressly authorized by the Agency prior to delivery. Section 215.422(1), F.S., provides that agencies have 5 working days to inspect and approve goods and services, unless bid specifications or the Purchase Order specifies otherwise.

12. The Vendor shall provide units of deliverables that are quantifiable, measurable, and verifiable, as specified in this Purchase Order. Each deliverable must be directly related to the scope of work and specify a performance measure. These deliverables must be received and accepted in writing prior to payment, subject to subsequent audit and review and to the satisfaction of the Agency. The Vendor shall also provide required reports, plans, findings, and drafts, as specified in this Purchase Order.

The Vendor shall submit bills for fees or other compensation for services or expenses in sufficient detail for proper pre audit and post audit; where itemized payment for travel expenses are permitted in this Purchase Order, submit bills for any travel expenses in accordance with section 112.061, F.S., or at such lower rates as may be provided in this Purchase Order. The Vendor shall allow public access to all documents, papers, letters, or other public records as defined in subsection 119.011(12), F.S. and as prescribed by sections 119.07 and 119.0701, F.S., made or received by the Vendor in conjunction with this Purchase Order except that public records which are made confidential by law must be protected from disclosure.

13. The Vendor shall, where applicable, comply with the Health Insurance Portability and Accountability Act (42 U. S. C. 1320d.) as well as all regulations promulgated there under 45 CFR Parts 160, 162, and 164. If applicable, the Vendor shall execute the Business Associate Agreement.

14. Financial Consequences:

a. Corrective action plans and/or financial consequences must be required for noncompliance, nonperformance, unacceptable performance, or failure to meet the minimum level of service or performance under this Purchase Order.

Financial consequences must be imposed for failures to implement or to make acceptable progress on such corrective action plans.

b. Financial consequences must include, but are not limited to the financial consequences set forth below.

c. The increments of financial consequences that shall apply must be based upon the severity of the noncompliance, nonperformance, or unacceptable performance that generated the need for a corrective action plan. The financial consequences shall not exceed ten percent (10%) of the total Purchase Order payments during the period in which the corrective action plan has not been implemented or in which acceptable progress toward implementation has not been made.

Noncompliance that is determined to have a direct effect on client health and safety shall result in the imposition of a ten percent (10%) financial consequence of the total Purchase Order payments during the period in which the corrective action plan has not been implemented or in which acceptable progress toward implementation has not been made.

d. Noncompliance involving the provision of service not having a direct effect on client health and safety must result in the imposition of a five percent (5%) financial consequence. Noncompliance as a result of unacceptable performance of administrative tasks must result in the imposition of a two percent (2%) financial consequence.

e. The deadline for payment shall be as stated in the notification imposing the financial consequences. In the event of nonpayment, the Agency may deduct the amount of the financial consequences from invoices submitted by the Vendor.

f. Any payment made in reliance on the Vendor’s evidence of performance, which evidence is subsequently determined to be erroneous, will be immediately due as an overpayment.

15. TERMINATION: This Purchase Order agreement may be terminated by either party without cause upon no less than thirty (30) calendar days notice in writing to the other party unless a lesser time is mutually agreed upon in writing.

Said notice shall be sent by U.S. Postal Service or any expedited delivery service that provides verification of delivery. In the event funds to finance this Purchase Order agreement become unavailable, the Agency may terminate the agreement upon no less than twenty-four (24) hours notice in writing to the Vendor. Said notice shall be sent by U.S. Postal Service or any expedited delivery service that provides verification of delivery. The Agency shall be the final authority as to the availability and adequacy of funds. In the event of termination of this Purchase Order, the Vendor will be compensated for any work satisfactorily completed prior to the effective date of the termination. In the event the Vendor fails to fully comply with the terms and conditions of this Purchase Order, the Agency may terminate the Purchase Order upon no less than twenty-four (24) hours (excluding Saturday, Sunday, and Holidays) notice in writing to the Vendor after Vendor’s failure to fully cure such noncompliance within the time specified in a written notice of noncompliance issued by the Agency specifying the nature of the noncompliance and the actions required to cure such noncompliance. In addition, the Agency may, if applicable, employ the default provisions in Rule 60A-1.006(3), Florida Administrative Code (F.A.C.), but is not required to do so in order to terminate the Purchase Order. The Agency’s failure to demand performance of any provision of this Purchase Order shall not be deemed a waiver of such performance. The Agency’s waiver of any one breach of any provision of this Purchase Order shall not be deemed to be a waiver of any other breach and neither event shall be construed to be a modification of the terms and conditions of this Purchase Order. The provisions herein do not limit the Agency’s right to remedies at law or in equity.

Failure to have performed any contractual obligations under any other contract with the Agency in a manner satisfactory to the Agency will be a sufficient cause for termination. To be terminated as a vendor under this provision, the Vendor must have: (i) previously failed to satisfactorily perform in a contract with the Agency, been notified by the Agency of the unsatisfactory performance, and failed to correct the unsatisfactory performance to the satisfaction of the Agency; or (ii) had a contract terminated by the Agency for cause. Termination pursuant to this Section 15, shall be upon no less than twenty-four (24) hours notice in writing to the Vendor (excluding Saturday, Sunday, and State Holidays).

16. Pursuant to sections 287.133 and 287.134, F.S., the following restrictions are placed on the ability of persons convicted of public entity crimes to transact business with the Agency. When a person or affiliate has been placed on the Convicted Vendor List following a conviction for a public entity crime, or an entity or affiliate has been placed on the Discriminatory Vendor List, such person, entity or affiliate may not submit a bid, proposal, or reply on a contract to provide any goods or services to a public entity; may not submit a bid, proposal, or reply on a contract with a public entity for the construction or the repair of a public building or public work; may not submit bids, proposals, or replies on leases of real property to a public entity; may not be awarded or perform work as a contractor, supplier, subcontractor, or consultant under a contract with any public entity; and may not transact business with any public entity;

provided, however, that the prohibition on persons or affiliates placed on the Convicted Vendor List shall be limited to business in excess of the threshold amount provided in section 287.017, F.S., for CATEGORY TWO for a period of thirty-six (36) months from the date of being placed on the Convicted Vendor List.

17. The terms of this Purchase Order will supersede the terms of any and all prior or subsequent agreements you may have with the Agency with respect to this purchase.

Accordingly, in the event of any conflict, the terms of this Purchase Order shall govern.

18. In accordance with Executive Order No. 11-116 all Vendors must utilize the U.S.

Department of Homeland Security’s E-Verify system to verify the employment of all new employees hired by the Vendor during the term of the Purchase Order. The Vendor shall include in related subcontracts a requirement that subcontractors performing work or providing services pursuant to this Purchase Order utilize the E- Verify system to verify employment of all new employees hired by the subcontractor during the Contract term. Information on registration for and use of the E-Verify program can be obtained via the Internet at the Department of Homeland Security Web site: <http://www.dhs.gov/E-Verify>.

Evidence of the use of the E-Verify system shall be maintained in the employee’s personnel file.

19. Chapter 442, F.S., requires a Material Safety Data Sheet to accompany each container of toxic material. Delivery will not be accepted without the required documentation.

20. Information Security Obligations: The Vendor shall comply with the provisions of section 501.171, F.S. In the event of a breach of security of a system maintained by the Vendor, the Vendor shall notify the Agency of the breach of security, or reason to believe a breach has occurred, within 10 days following determination of the breach of security, or reason to believe a breach has occurred. The Vendor shall provide the Agency with all information the Agency needs to comply with the Agency’s notice requirements under section 501.171, F.S. The Vendor shall comply with the provisions of the Health Information Technology for Economic and Clinical Health (HITECH) Act of 2009, Subtitle D – Privacy, Sections 13400 – 13411(42 U.S.C.A.

17921 – 17940). The Vendor shall require the same notification requirements of all subcontractors.

The Vendor agrees to notify Information Security Management at APD.ISM@apdcares.org and the Purchase Order Manager immediately and without delay, but no later than ten (10) days following the discovery of any breach, potential breach, or unauthorized release of personal and confidential Agency data.

The Vendor shall require the same notification requirements of all subcontractors.

21. The Vendor shall establish and maintain books, records and documents (including electronic storage media) sufficient to reflect all income and expenditures of funds provided by the Agency under this Purchase Order. Retention of all client records, financial records, supporting documents, statistical records and any other documents (including electronic storage media) pertinent to this Purchase Order shall be maintained by the Vendor for a period of six (6) years after completion or termination of the Purchase Order or the resolution of any pending action (i.e., audit, legal, etc.), or longer when required by law. In the event an audit is required by this Purchase order, records shall be retained for a period of six (6) years after the audit report is issued or until resolution of any audit findings or litigation based on the terms and conditions of the Purchase Order, at no additional cost to the Agency.

Upon demand, at no additional cost to the Agency, the Vendor will facilitate the duplication and transfer of any records or documents during the required retention period. These records shall be made available at all reasonable times for inspection, review copying, or audit by Federal, State, or other personnel duly authorized by the Agency.

Pursuant to section 20.055(5), F.S., the Vendor and any subcontractors understand and shall comply with their duty to cooperate with the Agency’s Inspector General in any investigation, audit, inspection, review or hearing.