Appendix I- Draft CSA.pdf

FDACS-01085 Rev. 01/23

Florida Department of Agriculture and Consumer Services Division of Administration

CONTRACTUAL SERVICES AGREEMENT

This AGREEMENT, made and entered into on______________________, by and between the FLORIDA DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, the DEPARTMENT, and _________________________________, the CONTRACTOR.

ARTICLE 1: TERM

1.1 Contract Period: _________________________________________.

1.2 Extension and Renewal.

1.2.1 Extension of a contract for contractual services shall

be in writing for a single period only not to exceed six (6) months and shall be subject to the same terms and conditions set forth in the initial contract.

There shall be only one extension of a contract unless the failure to meet the criteria set forth in the contract for completion of the contract is due to events beyond the control of the CONTRACTOR.

1.2.2 Contracts for commodities or contractual services may

be renewed on a yearly basis for no more than three

(3) years, or for a period no longer than the term of the original contract, whichever period is longer.

Renewal of a contract for commodities or contractual services shall be in writing and shall be subject to the same terms and conditions set forth in the initial contract. Renewals shall be contingent upon satisfactory performance evaluations by the DEPARTMENT and subject to the availability of funds. Renewal costs may not be charged by the CONTRACTOR.

Exceptional purchase contracts (single source and emergency contracts) pursuant to Section 287.057(3)(a) and (c), Florida Statutes, may not be renewed.

ARTICLE 2: SERVICES

2.1 Scope of Work. The CONTRACTOR agrees to provide the

following commodities and/or services:

WILTON SIMPSON

COMMISSIONER

2.2 The Department of Management Services' designated United

Nations Standard Products and Services Code (UNSPSC) is:

2.3 Deliverables. The CONTRACTOR must provide the following

quantifiable, measurable and verifiable units of deliverables which must be received and accepted in writing by the contract manager before payment. These deliverables are directly related to the Scope of Work specifying minimum levels of service to be performed and criteria for evaluating the successful completion of each deliverable.

2.4 Financial Consequences. Failure to meet the deliverables of this AGREEMENT shall result in a financial consequence. The CONTRACTOR shall perform all deliverables within the time frame established in this AGREEMENT. The DEPARTMENT shall reduce payment by:

2.5 Department Services. The DEPARTMENT agrees to provide the following services:

ARTICLE 3: COMPENSATION & EXPENSES

3.1 The DEPARTMENT will pay the CONTRACTOR as follows:

3.1.1 The DEPARTMENT may make partial payments to the

CONTRACTOR upon partial delivery of services when a request for such partial payment is made by the CONTRACTOR and approved by the DEPARTMENT.

3.2 Travel Expenses. Justified and reasonable travel expenses which are directly and exclusively related to the services rendered under this AGREEMENT will be reimbursed in accordance with Section 112.061, Florida Statutes.

Authorization for travel expenses must be specified in this

AGREEMENT.

3.3 Invoices. Bills for services shall be submitted to the

DEPARTMENT in detail sufficient for a proper pre-audit and post-audit thereof.

3.3.1 Section 215.422, Florida Statutes, provides that

agencies have five (5) working days to inspect and approve goods and services, unless bid specifications or the purchase order specifies otherwise. With the exception of payments to health care providers for hospital, medical or other health care services, if payment is not available within 40 days, measured from the latter of the date the invoice is received or the date the goods or services are received, inspected and approved, a separate interest penalty set by the Chief Financial Officer pursuant to Section 55.03, Florida Statutes, will be due and payable in addition to the invoice amount. To obtain the applicable interest rate, please contact the Agency's Fiscal Section at

(850) 617-7200 or Purchasing Office at (850) 617-7181.

3.3.2 Invoices returned to a vendor due to preparation

errors will result in a payment delay. Invoice payment requirements do not start until a properly completed invoice is provided to the DEPARTMENT.

3.4 Transaction Fee. CONTRACTOR shall be pre-qualified as

meeting mandatory requirements and qualifications and shall remit fees pursuant to Section 287.057(22), F.S., and any rules implementing Section 287.057, F.S.

3.5 Dispute Resolution. If a dispute over fees invoiced under this AGREEMENT arises, the parties shall work to resolve the dispute informally at first. Should the parties be unable to resolve the dispute informally, the DEPARTMENT and CONTRACTOR shall participate in mandatory binding arbitration.

3.5.1 Pursuant to Section 215.422(5), Florida Statutes the

Department of Financial Services has established a Vendor Ombudsman to act as an advocate for vendors.

The Vendor Ombudsman may be reached at (850) 413-5516 or by calling the Department of Financial Services’ Hotline, 1-877-693-5236.

3.6 Contingency. In accordance with Section 287.0582, Florida

Statutes, the DEPARTMENT’s performance and obligation to pay under this AGREEMENT is contingent upon an annual appropriation by the Legislature. Payments under this

AGREEMENT are further subject to the approval of the State Chief Financial Officer (Department of Financial Services).

ARTICLE 4: INTELLECTUAL PROPERTY

4.1 Anything by whatsoever designation it may be known, that is produced by, or developed in connection with this contract shall become the exclusive property of the DEPARTMENT and may be copyrighted, patented or otherwise restricted as provided by Florida or federal law. Neither the CONTRACTOR nor any individual employed under this contract shall have any proprietary interest in the product.

4.2 With respect to each deliverable that constitutes a work of authorship within the subject matter and scope of U.S.

Copyright Law, 17 U.S.C. Sections 102-105, such work shall be a “work for hire” as defined in 17 U.S.C. Section 101 and all copyrights subsisting in such work for hire shall be owned exclusively by the DEPARTMENT.

4.3 In the event it is determined as a matter of law that any such work is not a “work for hire,” CONTRACTOR shall immediately assign to the DEPARTMENT all copyrights subsisting therein for the consideration set forth in the contract and with no additional compensation.

4.4 The foregoing shall not apply to any preexisting software, or other work of authorship used by CONTRACTOR to create a deliverable, but which exists as work independent of the deliverable, unless the preexisting software or work was developed by CONTRACTOR pursuant to a previous contract with the DEPARTMENT or a purchase by the DEPARTMENT under a State Term Contract.

4.5 The CONTRACTOR shall fully indemnify, defend, and hold

harmless the DEPARTMENT from any suits, actions, damages and costs of every name and description, including attorneys’ fees, arising from or relating to violation or infringement of a trademark, copyright, patent, trade secret or intellection property right, provided, however, the foregoing obligation shall not apply to the DEPARTMENT’s misuse or modification of CONTRACTOR’s products or DEPARTMENT’s operation or use of CONTRACTOR’s product in a manner not contemplated by the AGREEMENT. If any product is the subject of an infringement suit, or in the CONTRACTOR’s opinion is likely to become the subject of such a suit, the CONTRACTOR at its sole expense shall procure for the DEPARTMENT the right to continue using the product or to modify it to become non-infringing. If the CONTRACTOR is not reasonably able to modify or otherwise secure for the DEPARTMENT the right to continue using the product, the CONTRACTOR shall remove the product and refund the DEPARTMENT the amounts paid in excess of a reasonable rental for past use. The DEPARTMENT shall not be liable for any royalties.

4.6 The CONTRACTOR’s obligations under the preceding paragraph with respect to any legal action are contingent upon the DEPARTMENT giving CONTRACTOR (1) written notice of any action or threatened action, (2) the opportunity to take over and settle or defend any such action at the CONTRACTOR’s sole expense, and (3) assistance in defending the action at the CONTRACTOR’s sole expense. The CONTRACTOR shall not be liable for any cost, expense, or compromise incurred or made by the DEPARTMENT in any legal action without the CONTRACTOR’s prior written consent, which shall not be unreasonably withheld.

ARTICLE 5: ACKNOWLEDGMENTS, REPRESENTATIONS, WARRANTIES AND

COVENANTS

5.1 CONTRACTOR acknowledges and agrees that any articles that are the subject of, or required to carry out this AGREEMENT, in accordance with Section 287.042, Florida Statutes, shall be purchased from a nonprofit agency for the blind or for the severely handicapped that is qualified pursuant to Chapter 413, Florida Statutes, in the same manner and under the same procedures set forth in Section 413.036(1) and (2), Florida Statutes; and for purposes of this contract the person, firm or other business entity carrying out the provisions of this contract shall be deemed to be substituted for the state agency insofar as dealings with such qualified nonprofit agency are concerned. Available products, pricing and delivery information may be obtained by contacting: RESPECT of Florida, 2475 Apalachee Parkway, Suite 205, Tallahassee, Florida 32301-4946, telephone number (850) 942-3555 and fax number (850) 942-7832.

5.2 CONTRACTOR acknowledges and agrees that any articles which are the subject of, or required to carry out this AGREEMENT, in accordance with Section 287.095(3), Florida Statutes, shall be purchased from the corporation identified under Chapter 946, Florida Statutes, in the same manner and under the same procedures set forth in Section 946.515(2) and (4), Florida Statutes; and for the purposes of this contract, the person, firm or other business entity carrying out the provisions of this contract shall be deemed to be substituted for the DEPARTMENT insofar as dealings with such corporation are concerned. The “corporation identified” is Prison Rehabilitative Industries and Diversified Enterprises, Incorporated. Available products, pricing and delivery schedules may be obtained by contacting: PRIDE Enterprises, 223 Morrison Road, Brandon, Florida 33511-4835, telephone number (813) 324-8700.

5.3 CONTRACTOR acknowledges and agrees that, pursuant to Section 287.133(2)(a), Florida Statutes, a person or affiliate who has been placed on the convicted vendor list following a conviction for a public entity crime 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 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 in excess of the threshold amount provided in Section 287.017, Florida Statutes, for CATEGORY TWO for a period of 36 months following the date of being placed on the convicted vendor list.

5.4 CONTRACTOR acknowledges and agrees that, pursuant to Section 287.134(2)(a), Florida Statutes, an entity or affiliate who has been placed on the discriminatory vendor list 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 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.

5.5 CONTRACTOR acknowledges and agrees that, pursuant to Section 287.137(2)(a), Florida Statutes, a person or an affiliate who has been placed on the antitrust violator vendor list following a conviction or being held civilly liable for an antitrust violation may not submit a bid, proposal, or reply for any new contract to provide any goods or services to a public entity; may not submit a bid, proposal, or reply for a new contract with a public entity for the construction or repair of a public building or public work; may not submit a bid, proposal, or reply on new leases of real property to a public entity; may not be awarded or perform work as a contractor, supplier, subcontractor, or consultant under a new contract with a public entity; and may not transact new business with a public entity.

5.6 CONTRACTOR acknowledges and agrees that the employment of unauthorized aliens by any person or entity is considered a violation of 8 U.S.C. § 1324a. If the CONTRACTOR knowingly employs unauthorized aliens, such violation shall be cause for unilateral cancellation of this AGREEMENT. CONTRACTOR avers that it is registered in the E-Verify system and further agrees to comply with the provisions of Section 448.095(2), Florida Statutes during the term of the contract, including receiving and maintaining required affidavits from subcontractors.

5.7 CONTRACTOR shall not discriminate on the basis of race, sex, gender identity, sexual orientation, religion, color, national origin, age or disability and shall comply with all applicable state and federal laws and regulations related thereto, including without limitation, the Americans with Disabilities Act (42 USC 12101 et. Seq.); Section 504 of the Rehabilitation Act of 1973 (29 USC 795); and the Age Discrimination Act of 1975 (42 USC 6101-6107).

5.8 CONTRACTOR shall comply with Section 20.055, Florida

Statutes.

5.9 CONTRACTOR represents and warrants that it has reviewed

Sections 215.4725, 287.135, F.S. and is not listed on either the Scrutinized Companies that Boycott Israel List, Scrutinized Companies with Activities in Sudan List or the Scrutinized Companies with Activities in the Iran Petroleum Energy Sector List. CONTRACTOR further represents and warrants that it does not have business operations in Cuba or Syria as proscribed by Section 287.135, F.S. Failure to certify or falsely certifying compliance with Sections

215.4725 and 287.135, F.S., may subject the CONTRACTOR to civil penalties, attorney’s fees, and other penalties and consequences provided for by law.

5.10 CONTRACTOR represents and warrants that it shall comply with the Federal Acquisition Regulation 52.204-25, prohibition on contracting for certain telecommunications and video surveillance services or equipment pursuant to the National Defense Authorization Act. Failure to comply or if the CONTRACTOR knowingly provides funds to any entity prohibited from receiving a contract or award pursuant to the Federal Acquisition Regulation 52.204-25 shall be cause for unilateral cancellation of this AGREEMENT. Subcontractors shall be verified by CONTRACTOR through the General Services Administration (GSA) Federal Excluded Parties List:

https://sam.gov/SAM/.

https://sam.gov/SAM/

ARTICLE 6: PUBLIC RECORDS

6.1 To the extent that CONTRACTOR meets the definition of

“Contractor” under Section 119.0701, Florida Statutes, all documents, including papers, letters, or any other record or materials prepared pursuant to this AGREEMENT are subject to Florida’s Public Records Law. CONTRACTOR must:

6.1.1 Keep and maintain public records required by the

DEPARTMENT to perform the service.

6.1.2 Upon request from the DEPARTMENT’s custodian of public

records, provide the DEPARTMENT 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.

6.1.3 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 the contract period and following completion or termination of the contract if the CONTRACTOR does not transfer the records to the

DEPARTMENT.

6.1.4 Upon completion or termination of the contract, transfer, at no cost, to the DEPARTMENT all public records in possession of the CONTRACTOR or keep and maintain public records required by the DEPARTMENT to perform the service. If the CONTRACTOR transfers all public records to the DEPARTMENT upon completion or termination of the contract, the CONTRACTOR shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the CONTRACTOR keeps and maintains public records upon completion or termination of the contract, the CONTRACTOR shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the DEPARTMENT, upon request from the DEPARTMENT’s custodian of public records, in a format that is compatible with the information technology systems of the DEPARTMENT.

6.2 The DEPARTMENT shall have the right of unilateral

cancellation for refusal by the CONTRACTOR to allow public access to all documents, papers, letters or other material made or received by the CONTRACTOR in conjunction with the contract, unless the records are exempt from s. 24(a) of

Article I of the State Constitution and s. 119.07(1), Florida Statutes.

6.3 Nothing in this Article shall be considered a waiver of the provisions of Section 119.0701, Florida Statutes.

IF THE CONTRACTOR HAS ANY QUESTIONS REGARDING THE

APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE

CONTRACTOR’S DUTY TO PROVIDE PUBLIC RECORDS RELATING

TO THIS AGREEMENT, CONTACT THE CUSTODIAN OF PUBLIC

RECORDS:

OFFICE OF GENERAL COUNSEL

407 SOUTH CALHOUN STREET, SUITE 520

TALLAHASSEE, FL 32399

PHONE: (850) 245-1000

EMAIL: PRCUSTODIAN@FDACS.GOV

ARTICLE 7: TERMINATION

7.1 For Convenience. The DEPARTMENT may terminate this AGREEMENT in whole or in part for its convenience by giving at least fifteen (15) days written notice by electronic or registered mail to the CONTRACTOR, specifying the effective date of termination.

7.2 For Cause. The DEPARTMENT may terminate this AGREEMENT for cause; provided, however, no right of default shall accrue until thirty (30) days after the defaulting party is notified in writing of the reason(s) for termination and has failed to cure or give adequate assurances of performance within the thirty (30) day period after notice of termination.

7.2.1 For cause termination shall be defined as default, breach or failure of the CONTRACTOR to fulfill any of its obligations hereunder.

7.2.2 Opportunity to cure. Prior to the exercise of any

remedy provided for herein, the DEPARTMENT shall provide thirty (30) calendar days written notice of default and shall provide the CONTRACTOR the opportunity to cure such failure or default within said thirty (30) day period. Upon the failure or inability to cure, the DEPARTMENT shall have all rights and remedies provided at law or in equity, including without limitation the following: (i) temporarily withhold cash payments pending correction of the deficiency by the CONTRACTOR; (ii)disallow all or part of the cost of the services not in compliance;

mailto:PRCUSTODIAN@FDACS.GOV and/or (iii)wholly or partly suspend or terminate this contract.

7.3. Obligations of parties upon termination.

7.3.1. The DEPARTMENT shall pay and/or reimburse CONTRACTOR

for services satisfactorily completed in accordance with the terms and conditions outlined herein, subject to any damages sustained by the DEPARTMENT. Upon the effective date of termination, the DEPARTMENT shall have no further obligation to make any payments, other than that which became due prior to the effective date of termination or during the notice period.

7.3.2. The CONTRACTOR shall:

7.3.2.1. Stop all work, make no further changes to

completed work, and place no further orders related to this AGREEMENT, except that which may be needed to wind-down the contract or may be directed by the DEPARTMENT during the notice period.

7.3.2.2. Furnish notice of termination to any and all

immediate subcontractors, suppliers, licensors or partners that may be affected by this termination.

7.3.2.3. Take actions necessary, or that the

DEPARTMENT may direct, for the protection and preservation of the work produced under this AGREEMENT.

7.3.2.4. Return and deliver to the DEPARTMENT its

property and/or inventoried items in the possession of CONTRACTOR and/or its employees or subcontractors.

7.3.2.5. Disclose, transfer and assign to the

DEPARTMENT all the rights, titles, and interests in licenses, copyrighted or patented work, as well as anything whatsoever constituting intellectual property produced within the subject matter and scope of this AGREEMENT.

7.3.2.6. Not be entitled to recover any cancellation

charges or lost profits.

7.4. Force Majeure. If either party fails to fulfill its

obligations hereunder, when such failure is due to an act of God, or other circumstances beyond its reasonable control, including but not limited to fire, flood, civil commotion, riot, war (declared and undeclared), revolution, or embargoes, then said failure shall be excused for the duration of such event and for such a time thereafter as is reasonable to enable the parties to resume performance under this AGREEMENT.

7.4.1. Upon occurrence of a Force Majeure Event, the

nonperforming party shall promptly notify the other party of occurrence of that Force Majeure Event, its effect on performance and its anticipated duration.

7.5. Notwithstanding the above, the CONTRACTOR shall not be

relieved of liability to the DEPARTMENT for damages sustained by the DEPARTMENT by virtue of any termination, default or breach of this AGREEMENT by the CONTRACTOR.

ARTICLE 8: GENERAL PROVISIONS

8.1 Independent Contractor. The CONTRACTOR, and any of its

employees, agents, or assigns, are independent contractors and are not employees or agents of the DEPARTMENT.

8.1.1 The CONTRACTOR shall not pledge the DEPARTMENT’S

credit or make the DEPARTMENT a guarantor of payment or surety for any contract, debt, obligation, judgment, lien, or any form of indebtedness.

8.2 Indemnification. The CONTRACTOR shall be fully liable for the actions of its agents, employees, partners, or subcontractors and shall fully indemnify, defend, and hold harmless the DEPARTMENT, and its officers, agents, and employees, from suits, actions, damages, and costs of every name and description, including attorneys’ fees, arising from or relating to personal injury and damage to real or personal tangible property alleged to be caused in whole or in part by the CONTRACTOR, its agent, employees, partners, or subcontractors, provided, however that the CONTRACTOR shall not indemnify for that portion of any loss or damages proximately caused by the negligent act or omission of the

DEPARTMENT.

8.2.1 The CONTRACTOR’s obligations under this paragraph with

respect to any legal action are contingent upon the DEPARTMENT giving the Contractor (1) written notice of any action or threatened action, (2) the opportunity to take over and settle or defend any such action at

CONTRACTOR’s sole expense, and (3) assistance in defending the action at CONTRACTOR’s sole expense. The CONTRACTOR shall not be liable for any cost, expense, or compromise incurred or made by the DEPARTMENT in any legal action without the CONTRACTOR’s prior written consent, which shall not be unreasonably withheld.

8.3 Liability. The DEPARTMENT shall not assume any liability for the acts, omissions to act or negligence of the CONTRACTOR, its agents, servants, and employees, nor shall the CONTRACTOR disclaim its own negligence to the DEPARTMENT or any third party.

8.3.1 The CONTRACTOR shall maintain, during the period of

this AGREEMENT, liability insurance for the services to be rendered in accordance with industry standards as appropriate.

8.4 Amendments. Any changes must be mutually agreed upon and

incorporated in written amendments to this AGREEMENT.

8.5 Entire AGREEMENT. The instrument, including any attachments, embodies the entire AGREEMENT of the parties. This AGREEMENT supersedes all previous oral or written communications, representations or agreements on this subject.

8.6 Applicable Law. This AGREEMENT shall be governed by the laws of the State of Florida.

8.7 Severability. In the event that any one or more of the

provisions of this AGREEMENT shall be determined to be void or unenforceable by a court of competent jurisdiction, or by law, such determination will not render this AGREEMENT invalid or unenforceable and the remaining provisions hereof shall remain in full force or effect. In the event that any clause or requirement of this AGREEMENT is contradictory to, or conflicts with the requirements of Florida law, including, but not limited to requirements regarding contracts with Florida's governmental agencies, the offending clause or requirement shall be without force and effect and the requirements of the Florida Statutes and rules promulgated thereunder on the same subject shall substitute for that clause or requirement and be binding on all parties to this contract.

8.8 Paragraph Headings. Paragraph headings contained in this

AGREEMENT are for convenience or reference only. They shall not be deemed to modify, limit, define or describe in any respect the provisions of this AGREEMENT.

8.9 Compliance. CONTRACTOR shall, at its sole cost and expense, comply with all requirements of all Municipal, County, State and Federal rules and regulations, statutes and/or ordinances now in force, or which hereafter come into force, pertaining to the duties and obligations arising from this AGREEMENT.

8.10 No Subcontracting. CONTRACTOR agrees that all services to be performed hereunder shall be performed solely by the CONTRACTOR and may not be subcontracted for or assigned without the prior written consent of DEPARTMENT, which may be withheld by DEPARTMENT for any reason or granted subject to CONTRACTOR’s compliance with one or more of the following:

(i) CONTRACTOR purchasing, at its sole expense, a payment bond in a form and amount that DEPARTMENT determines to be adequate to protect suppliers of labor and material; (ii) DEPARTMENT withholding, as retainage, 25% or the highest percent permitted by law, whichever is less, of all payments made to the CONTRACTOR until CONTRACTOR submits evidence satisfactory to DEPARTMENT that all subcontracts and outstanding indebtedness in connection with the services hereunder have been paid for by the CONTRACTOR; and (iii) CONTRACTOR disclosing information satisfactory to DEPARTMENT regarding each subcontractor to perform services hereunder, including a description of the subcontractor’s organization, ability to provide applicable services, cost to perform applicable services, previous work experience, and relationship to the CONTRACTOR. CONTRACTOR shall comply with all laws regarding prompt payment to subcontractors, including Section 287.0585, Florida Statutes.

8.11 Survival. The termination of this AGREEMENT (whether by

expiry, completion, the exercise of a termination right hereunder, or otherwise) will not relieve either party of any obligation, nor impair the exercise of rights, accrued hereunder prior to such termination. Without limiting the foregoing, the terms of Sections 4.5, 6.1, 8.2, and 8.9 hereof will survive the termination of this AGREEMENT.

8.12 Administration of AGREEMENT.

The contract manager for the DEPARTMENT is___________________ and is located at____________________________________________

The contract manager for the CONTRACTOR is___________________ and is located at____________________________________________

Signed by parties to this AGREEMENT:

FLORIDA DEPARTMENT OF AGRICULTURE

AND CONSUMER SERVICES

CONTRACTOR

Signature Signature

Director of Administration

Title Title

Date Date