Attachment B - Draft Contract.pdf

ITN No.: EOG-ITN-24-01

Attachment B: Draft Contract

Grants Management Solution

ATTACHMENT B

DRAFT CONTRACT FOR

GRANTS MANAGEMENT SOLUTION PLATFORM, DEVELOPMENT, AND

IMPLEMENTATION SERVICES

CONTRACT NO: EOG-ITN-24-01

BETWEEN

THE STATE OF FLORIDA

EXECUTIVE OFFICE OF THE GOVERNOR

AND

<<PARTY NAME>>

Attachment B: Draft Contract Page 2 of 61

DRAFT CONTRACT

SECTION 1. CONTRACT TERM AND TERMINATION

SECTION 2. CONTRACT DOCUMENTS AND HIERARCHY

SECTION 3. PAYMENT AND FEES

SECTION 4. CONTRACT ADMINISTRATION

SECTION 5. CONTRACT MANAGEMENT

SECTION 6. COMPLIANCE WITH LAWS

SECTION 7. MISCELLANEOUS

SECTION 8. WORKERS’ COMPENSATION AND GENERAL LIABILITY INSURANCE, AND

INDEMNIFICATION

SECTION 9. PUBLIC RECORDS, TRADE SECRETS, DOCUMENT MANAGEMENT AND

INTELLECTUAL PROPERTY

SECTION 10. DATA SECURITY

SECTION 11. OWNERSHIP AND USE RIGHTS

SECTION 12. GRATUITIES AND LOBBYING

SECTION 13. CONTRACT MONITORING

SECTION 14. CONTRACT AUDITS

SECTION 15. BACKGROUND SCREENING AND SECURITY

SECTION 16. E-VERIFY

SECTION 17. COMMUNICATIONS AND CONFIDENTIALITY

SECTION 18. PERFORMANCE BOND

SECTION 19. SPECIFIC APPROPRIATION

EXHIBIT A - REQUEST FOR BEST AND FINAL OFFER

EXHIBIT B - CONTRACTOR’S BEST AND FINAL OFFER

EXHIBIT C - EOG-ITN-24-01

EXHIBIT D – BUSINESS ASSOCIATE AGREEMENT

EXHIBIT E - FBI CRIMINAL JUSTICE INFORMATION SERVICES SECURITY ADDENDUM

EXHIBIT F - SERVICE LEVEL AGREEMENT

Exhibits:

Exhibit A – Request for Best and Final Offer to EOG-ITN-24-01 Exhibit B – Contractor’s Best and Final Offer to EOG-ITN-24-01 Exhibit C – EOG-ITN-24-01 including all attachments and any addenda in reverse order of issuance Exhibit D – Privacy, Security, and Confidentiality Business Associate Agreement Exhibit Exhibit E – FBI Criminal Justice Information Services Security Addendum Exhibit F – Service Level Agreements

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CONTRACT

This Contract is between the STATE OF FLORIDA, EXECUTIVE OFFICE OF THE GOVERNOR (Department), an executive branch of the State of Florida with offices at 400 South Monroe St, Tallahassee, Florida 32399, and <INSERT VENDOR NAME> (Contractor) with offices at <insert address>, each a “Party” and collectively referred to herein as the “Parties.”

The Parties enter into this Contract (hereinafter “the Contract”) in accordance with Chapter 282 Part II, and Chapter 287, Florida Statutes, and with the negotiated terms and conditions of Invitation to Negotiate, EOG-ITN-24-01, Grants Management Solution.

SECTION 1. CONTRACT TERM AND TERMINATION

1.1 Initial Term: The initial term of the Contract will be four (4) years and will begin on April 1, 2024, or the date the Contract is last signed by all Parties, whichever is later.

1.2 Renewal: Upon written agreement, the Department and the Contractor may renew the

Contract for up to two (2) two (2) year renewals, in accordance with section 287.057(14), Florida Statutes (F.S.), and Rule 60A-1.048, Florida Administrative Code (F.A.C.).

1.3 Dispute Resolution: The Department and the Contractor shall follow the Project’s issue resolution process specified in the Project Management Plan. If all avenues of resolution disputes concerning the performance of the Contract shall be decided by the Department, who shall reduce the decision to writing and serve a copy to the Contractor. The decision shall be final and conclusive unless within twenty-one (21) days from the date of receipt, the Contractor files with the Department a petition for administrative hearing. The Department’s final order on the petition shall be final, subject to any right of Contractor to judicial review pursuant to section 120.68, F.S. Exhaustion of administrative remedies is an absolute condition precedent to Contractor’s ability to pursue any other form of dispute resolution;

provided however, that the Parties may employ the alternative dispute resolution procedures outlined in chapter 120, F.S.

1.4 Suspension of Work and Termination:

1.4.1 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. The Department may, at its sole discretion, suspend the Contract at any time, when in the best interest of the Department. The Department will provide the Contractor with written notice outlining the particulars of suspension and the effective date of the suspension. After receiving a suspension notice, the Contractor must comply with the notice and will cease the activities associated with the Contract.

Within ninety (90) days, or any longer period agreed to by the Contractor, the Department will either (1) issue a notice authorizing resumption of work, at which time activity will resume, or (2) terminate the Contract. Suspension of work will not entitle the Contractor to any additional compensation.

1.4.2 Termination for Convenience: The Contract may be terminated by the Department in whole or in part at any time, when it is 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, prior to the termination, 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

Attachment B: Draft Contract Page 4 of 61 satisfactorily performed. All work in progress will become the property of the Department and will be turned over promptly by the Contractor.

1.4.3 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, at its sole discretion, (a) immediately terminate the Contract, (b) notify the Contractor of the deficiency with a requirement that the deficiency be corrected within a specified time, otherwise the Contract will terminate at the end of such time, or (c) take other action deemed appropriate by the Department.

1.4.4 Termination Assistance: In case of termination, whether for cause or for convenience, the Contractor will provide prompt and thorough transition assistance and cooperation, including as specified in Attachment A – Scope of Work.

SECTION 2. CONTRACT DOCUMENTS AND HIERARCHY

2.1 The Contract sets forth the entire understanding of the Parties and consists of the documents listed below. In the event any of these documents conflict, the conflict will be resolved in the following order of priority (highest to lowest):

1. This Contract document;

2. Exhibit A – Request for Best and Final Offer to EOG-ITN-24-01, which includes the final negotiated Scope of Work;

3. Exhibit B – Contractor’s Best and Final Offer to EOG-ITN-24-01

4. Exhibit C – EOG-ITN-24-01 including all attachments and any addenda in reverse order of issuance.

2.2 In accordance with Rule 60A-1.002(7), F.A.C., Form PUR 1000, is included herein by reference, but is superseded in its entirety by the Contract.

SECTION 3. PAYMENT AND FEES

3.1 This Contract shall not exceed XXX ($XXX) which shall be paid by the Department in consideration for Contractor’s provision of goods and/or services as set forth by the terms and conditions of this Contract. The State of Florida and the Department’s performance and obligation to pay under this Contract is contingent upon an annual appropriation by the Legislature and availability of any and all applicable federal funds. The Department shall be the final authority as to the availability of funds for this Contract, and as to what constitutes an “annual appropriation” of funds to complete this Contract. If such funds are not appropriated or available for the Contract purpose, such event will not constitute a default on the Department or the State. The Department agrees to notify Contractor in writing at the earliest possible time if funds are not appropriated or available. The cost for services rendered under any other Contract or to be paid from any other source is not eligible for reimbursement under this Contract.

3.2 Pricing: The Contractor shall adhere to the prices as stated in Exhibit B – Contractor’s Best and Final Offer, an attachment to the Department’s Request for Best and Final Offer, which is incorporated by reference into the Contract.

3.3 Price Adjustments: During the term of the Contract (including renewal years), the Department encourages the Contractor to offer price decreases that are in line with increased efficiencies and added infrastructure enhancements. The Department reserves the right to further

Attachment B: Draft Contract Page 5 of 61 negotiate reduction in pricing for the renewal years. Pricing may be updated in accordance with the procedures identified in the final SOW negotiated between the parties.

3.4 Preferred Pricing: The pricing indicated in the Contract is guaranteed, by the Contractor, to be a maximum price. Additionally, Contractor’s pricing will not exceed the pricing offered under comparable contracts. Comparable contracts are those that are similar in size, scope and terms. In compliance with section 216.0113, F.S., Contractor must annually submit an affidavit from the Contractor’s authorized representative attesting that the Contract complies with this clause.

3.5 Transaction Fee: The State of Florida has instituted MyFloridaMarketPlace, a statewide eProcurement System. Pursuant to section 287.057(24), Florida Statutes (2002), all payments shall be assessed a Transaction Fee of the then-current percentage, which the Contractor shall pay to the State, unless exempt pursuant to 60A-1.031, F.A.C.

3.6 Payments: The Contractor will be paid upon submittal of an invoice to the Department after delivery and acceptance of commodities or contractual services is confirmed, and the invoice is accepted by the Department. The Contractor shall submit invoices for fees or other compensation for services or expenses in detail sufficient enough for a proper pre-audit and post-audit and which will contain the Contract Number and the Contractor’s Federal Employer Identification Number. The Department reserves the right to request additional documentation as needed and Contractor will follow all invoice directives in the Scope of Work and this Contract.

3.7 Travel: Travel expenses are not reimbursable unless specifically authorized by the

Department in writing, and may be reimbursed only in accordance with section 112.061, F.S.

3.8 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 (1) fiscal year, the State of Florida’s performance and obligation to pay under the Contract is contingent upon an annual appropriation by the Legislature.

3.9 Taxes: Taxes, customs, and tariffs on commodities or contractual services purchased under the Contract will not be assessed against the Department unless authorized by Florida law.

3.10 Return of Funds: Contractor will return any overpayments due to unearned funds or funds disallowed pursuant to the terms of the Contract that were disbursed to the Contractor by the Department. 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 of the overpayment.

SECTION 4. CONTRACT ADMINISTRATION

4.1. Department’s Contract Manager: The Department’s Contract Manager, whose primary responsibility will be to maintain the Contract file, is as follows:

TBD

Florida Executive Office of the Governor 400 South Monroe St Tallahassee, Florida 32399-0950 Telephone: (850) TBD Email: TBD

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In the event that the Department changes the Department’s Contract Manager, the Department will notify the Contractor’s Contract Manager in writing via email, and document such in the Contract file. Such changes do not require a formal written amendment to the Contract.

4.2. Contractor’s Contract Manager:

The individual(s) identified below as the Contractor’s Authorized Representatives shall have the authority to make binding commitments on the Contractor’s behalf. The Contractor’s Contract Manager is the sole point of contact with regard to all contractual matters under this Contract, including payments. The Contractor reserves the right to replace its Contract Manager without a Contract Amendment. Such changes will be documented in writing to the Department’s Contract Manager

<Insert Contractor name> <Insert Contractor’s physical address> Telephone: (XXX) XXX-XXXX Email: contractorname@contractor.com

4.3. Assignment of Key Staff: At the Project’s inception, the Contractor shall provide the Key Staff identified in Attachment A – Scope of Work. Key staff are to include:

A) Project Manager B) Functional Lead C) System Architect D) Technical Lead E) Testing Lead F) Training Lead

Thereafter, the Department may designate a reasonable number of other Project roles as those to be occupied by Key Staff. The Department’s Contract Manager will have the right to approve in writing the initial assignment, as well as any proposed reassignment or replacement of any Key Staff. Before assigning any Key Staff to the Project, the Contractor will notify the Department of the proposed assignment, introduce the individual to the appropriate Department representatives, and provide the Department with a resume and any other information about the individual reasonably requested by the Department. The Department reserves the right to interview the individual before granting written approval.

The Contractor will maintain a reasonable backup plan designed to ensure continuity of Project activities in the event any Key Staff leaves or is removed from the Project for any reason.

4.4. Replacement of Key Staff

4.4.1. Except in cases where the timing of the replacement is outside the Contractor’s control (including illness, disability, and resignation or, for cause, termination of Key Staff), the Contractor will not remove or reassign any Key Staff until a replacement with equal or superior experience and qualifications has been reviewed and approved by the Department, the replacement has completed all required onboarding, knowledge transfer, and training activities, including training the replacement on the Department’s and the Project’s policies and procedures, and the replacement has shadowed (i.e., accompanied and observed the individual full time while performing the targeted job) the Key Staff he or she is replacing for a period of at least 20 Business Days prior to the replacement taking effect, at no additional cost mailto:contractorname@contractor.com

Attachment B: Draft Contract Page 7 of 61 to the Department. To that end, whenever possible, the Contractor will give the Department notice at least 60 Business Days in advance of a proposed change in Key Staff.

4.4.2. If the Contractor removes any Key Staff from his or her assigned role or the Project without the prior written consent of the Department, it shall be considered an Unauthorized Removal unless the removal or replacement is outside the Contractor’s control (including illness, disability, and resignation or, for cause, termination of Key Staff). It is acknowledged that career advancement of Key Staff may be considered a legitimate reason for reassignment and the Department’s consent to such reassignment will not be unreasonably withheld. Any Unauthorized Removal may be considered by the Department to be a material breach of the Contract, which shall entitle the Department to impose all penalties, as set forth in Exhibit F – Service Level Agreement or terminate the Contract for cause.

4.4.3. The Department reserves the right to require removal of Contractor Staff or

Subcontractor Staff (including Key Staff) found, in the judgment of the Department, to be unacceptable.

SECTION 5. CONTRACT MANAGEMENT

5.1. Composition and Priority

The Contractor agrees to provide commodities or contractual services within the manner and at the location specified in the Contract and any exhibits or attachments to the Contract.

Additionally, the terms of the Contract supersede the terms of any and all prior or contemporaneous agreements between the Parties on the same subject matter.

5.2. 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, or personal delivery, or as otherwise identified by the Department.

5.3. Changes to the Services

5.3.1 The Department and the Contractor shall follow the Project’s change management process specified below until further supplemented in the PMP (collectively “Change Process”). If the Contractor or the Department initiates a change, the Contractor shall, without undue delay, examine and identify to the Department the implications of the requested change on Deliverables including scope, schedule, and pricing, and furnish a proposed Contract Amendment, if applicable. The Department shall review the proposed change to examine the implications of the requested change.

The Department may accept the Contractor’s proposal for change, reject it, or reach another agreement with the Contractor. If the Contractor proposes functional equivalents or substitutions, the Department shall determine in its sole discretion whether the modified Solution is acceptable as an equivalent. Substitutions shall meet or exceed the applicable requirements set forth in the Contract unless otherwise agreed to by the Parties in writing.

5.3.2 If the Contractor believes the Department’s requested change should not be implemented, the Contractor will make a recommendation to the Department Contract Manager in writing but shall nevertheless follow the Change Process and carry out the change as directed by the Department.

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5.3.3 The Contractor shall not begin performing services pursuant to a change before receiving the Department’s written approval of the change or the Contract Amendment has been executed. If the Contractor begins such services prior to the approval of the change or the execution of the Contract Amendment, such activities shall be considered to be performed gratuitously by the Contractor, and the Contractor shall not have any right thereafter to assert any claim for additional compensation or time for the performance of such activities. Any Contract Amendment resulting from a Change Process under this Contract shall list (or indicate by reference to the appropriate Contract Attachment) the prices for all Services, equipment, and commodities to be provided thereunder. The most recent Contract Amendment will take precedence over other conflicting provisions of this Contract and any previous Contract Amendments.

5.4 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 the Department under the Contract.

SECTION 6. COMPLIANCE WITH LAWS

6.1 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, including but not limited to, Chapters 282 and 287 of the Florida Statutes, Chapter 60GG of the Florida Administrative Code, the Payment Card Industry DSS, IRS Publication 1045, Section 274A of the Immigration and Nationality Act, the Americans with Disabilities Act, Health Insurance Portability and Accountability Act (HIPAA) (including executing any Business Associate Agreements as requested by the Department’s SDC customers), 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.

6.2 Oversight:

6.2.1 Florida Digital Service (FDS): The Contractor understands its duty to comply with the Florida Information Technology Project Management and Oversight Standards as defined in Chapter 60GG-1, F.A.C. The Contractor will ensure the FDS has access to the necessary data and reports to support compliance.

mailto:osdinfo@dms.myflorida.com

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6.2.2 Independent Verification and Validation (IV&V): The Department reserves the right to contract for third-party consultant services to deliver IV&V in accordance with Rule Chapter 60GG-1, F.A.C. The Department will use reasonable efforts to minimize the disruption to the business operations of the Contractor, its Affiliates, and its Subcontractors by IV&V.

6.2.3 Project Management Oversight (PMO): The Department reserves the right to contract for third-party consultant services to deliver Project Management Oversight in accordance with Rule Chapter 60GG-1, F.A.C. The Department will use reasonable efforts to minimize the disruption to the business operations of the Contractor, its Affiliates, and its Subcontractors by Project Management Oversight

6.3 Exit Transition:

6.3.1 Circumstances will arise during or at the end of the Contract’s term in which ongoing responsibility for Services or functions previously performed (or to be performed) by the Contractor or its Subcontractor(s) will be assumed by the Department or designee, whether in connection with the Contractor’s completion of certain Services or in the event of the Contract’s expiration or early termination. The Contractor acknowledges that, in all such circumstances, a smooth transfer of affected functions to the Department or designee is vital to the State’s continued business operations and that such transfers must proceed with minimal disruption and adverse effect. The Contractor will be responsible for developing an Exit Transition Plan per Attachment A – Scope of Work.

6.3.2 In order to afford the Department a sufficient opportunity to complete the necessary exit transition, the Department will have the right to extend the Contract’s term and the period of any associated Services beyond its otherwise applicable termination or expiration date The Department will exercise this option by giving the Contractor written notice to that effect and will use reasonable efforts to provide such notice at least 20 Business Days before the impending expiration or termination date.

6.4 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.

6.5 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.

6.6 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. Notwithstanding the foregoing, the Parties are aware of the

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Eleventh Circuit Court’s decision in Odbrecht Constr. v. Sec’y, Fla. DOT, 715 F.3d 1268 (11th Cir. Fla. 2013), and agree that the provisions of sections 287.135(1)-(5), F.S., pertaining to a company engaged in business operations in Cuba or Syria shall not apply to this contract unless and until the Eleventh Circuit Court’s decision in Odebrecht Constr.

v. Sec’y, Fla.DOT, 715 F.3d 1268 (11th Cir. Fla. 2013) is overturned.

6.7 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 type of information the Inspector General deems relevant to the Contractor's integrity or responsibility. Such information may include, but will not be limited to, the Contractor's business or financial records, documents, or files of any type or form that refer to or relate to the Contract.

The Contractor will retain such records for five (5) years after the expiration of the

Contract, or the period required by the General Records Schedules maintained by the Florida Department of State (available at: http://dos.myflorida.com/library-archives/records-management/general-records- schedules/ ), whichever is longer.

The Contractor agrees to reimburse the State of Florida for the reasonable costs of investigation incurred by the Inspector General or other authorized State of Florida official for investigations of the Contractor's compliance with the terms of this or any other agreement between the Contractor and the State of Florida which results in the suspension or debarment of the Contractor. Such costs will include but will not be limited to: salaries of investigators, including overtime; travel and lodging expenses; and expert witness and documentary fees.

6.8 Acceptance Of Deliverables:

6.8.1 Acceptance Criteria for Deliverables: During the Contract Term, the Parties will work together in good faith to develop and refine Acceptance Criteria for the Deliverables to be incorporated into the Project Management Plan (PMP). The Department’s Acceptance of a Deliverable shall not constitute a waiver of the Department’s rights or remedies for any deficiencies that were present in the Deliverable at the time of the Department’s Acceptance or were subsequently introduced by the Contractor or Subcontractor; nor shall it preclude the Department from declining to accept a subsequent Deliverable that does not operate properly due to deficiencies in a previously accepted Deliverable. For the avoidance of doubt, the preceding sentence does not give the Department the right to reject a previously accepted Deliverable.

6.8.2 Deliverable Acceptance: All Deliverables will be evaluated against the defined Acceptance Criteria for Deliverables that are established within or pursuant to Section 6.8.1. The Deliverable management procedures including roles, responsibilities, and review cycles will be defined in the Project Management Plan (PMP). Prior to the Acceptance of the PMP, the Department anticipates utilizing the following Deliverable management process:

A) The Department will complete its review of Deliverables within 10 Business

Days after receiving the Deliverable.

B) The Department may return a Deliverable for modification if it fails to meet any Acceptance Criteria.

http://dos.myflorida.com/library-archives/records-management/general-records-http://dos.myflorida.com/library-archives/records-management/general-records-http://dos.myflorida.com/library-archives/records-management/general-records-schedules/

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C) The Contractor will have up to 10 Business Days after receiving request for modification to cure and return Deliverable to the Department. If additional cure and review cycles are needed, the Contractor and the Department will have seven (7) to ten (10) Business Days to review, request revisions, or make modifications. If either the Contractor or the Department needs additional time to review, modify, or cure the Deliverables, the Contractor or Department will submit a request in writing by email to the Contract Manager for consideration.

6.8.3 Non-Acceptance of Deliverables: Unless specifically provided for elsewhere in this

Contract, the Department Contract Manager has the responsibility to communicate Acceptance of Deliverables to the Contractor in writing. In the case of non- Acceptance, the Department Contract Manager will provide written notice to the Contractor that includes reasons for non-Acceptance. The Contractor will cure the deficiencies for non-Acceptance within the timeline specified by Section 6.8.1 or, if applicable, in the PMP (or a longer period of time agreed to in writing by the Department Contract Manager).

SECTION 7. MISCELLANEOUS

7.1. Warranty of Contractor’s Ability to Perform: The Contractor warrants that, to the best of its knowledge, there is no pending or threatened action, proceeding, or investigation, or any other legal or financial condition, that would in any way prohibit, restrain, or diminish the Contractor’s ability to satisfy its Contract obligations. The Contractor warrants that neither it nor any affiliate is currently on the Suspended Vendor List, Convicted Vendor List, Discriminatory Vendor List, or on any similar list maintained by any other state or the federal government.

The Contractor shall notify the Department of any regulatory or legal actions filed by any federal, state, or local government entity and any other litigation that could impact the Contractor’s ability to perform under this contract within thirty (30) days of the action being filed. The Contractor must notify the Department of any legal actions filed against it for a breach of a contract of similar size and scope to this Contract within thirty (30) days of the action being filed. Failure to notify the Department of a legal action within thirty (30) days of the action will be grounds for termination for cause of the Contract.

The Contractor shall immediately notify the Department in writing if its ability to perform is compromised in any manner during the term of the Contract.

7.2. Subcontractors: The Contractor will not subcontract any work under the Contract without prior written consent of the Department. The Contractor is fully responsible for satisfactory completion of all subcontracted work. The Department supports diversity in its procurements and 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. To subcontract any services to a subcontractor not originally identified in the Reply, the Contractor shall submit a written request to the Department’s Contract Manager identified in the Contract. The written request shall include, but is not limited to, the following:

A) The name, address and other information identifying the subcontractor;

B) Type of services to be performed by the subcontractor;

mailto:osdhelp@dms.myflorida.comf

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C) Time of performance for the identified service;

D) How the Contractor plans to monitor the subcontractor’s performance of the identified services;

E) Certification that the subcontractor has all licenses and county authority, as applicable, and/or has satisfied all legal requirements to provide the services to the Department. Also, the Contractor shall certify that the subcontractor is approved by the Florida Department of State to transact business in the State of Florida.

If the subcontractor is an out-of-state company, it must have a Florida Certificate of Authority from the Department of State, Division of Corporations, to transact business in the State of Florida. For additional information, please visit the following website: www.sunbiz.org

A copy of the written subcontract agreement; and Acknowledgement from the subcontractor of the Contractor’s contractual obligation to the Department and that the subcontractor agrees to comply with all terms and conditions of the resulting Contract.

The Contractor acknowledges that it shall not be released of its contractual obligation to the Department because of any subcontract. The Contractor is solely responsible for ensuring the subcontractor maintains the insurance as required. The Department shall treat the Contractor’s use of a subcontractor not contained herein and/or approved by the Department as a breach of Contract.

7.3 Assignment: The Contractor will not sell, assign, or transfer any of its rights, duties, or obligations under the Contract without the prior written consent of the Department. 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.

7.4 Independent Contractor: The Contractor and its employees, agents, representatives, and subcontractors are not employees or agents of the Department and are not entitled to the benefits of State of Florida employees. The Department will not be bound by any acts or conduct of the Contractor or its employees, agents, representatives, or subcontractors. The Contractor agrees to include this provision in all of its subcontracts under the Contract.

7.5 Risk of Loss: Matters of inspection and approval 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 Department 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 the Department rejects a commodity, Contractor will remove the commodity from the premises within ten (10) days after notification of rejection, and the risk of loss will remain with the Contractor.

Commodities not removed by the Contractor within ten (10) days will be deemed abandoned by the Contractor and the Department will have the right to dispose of it as its own property.

Contractor will reimburse the Department for costs and expenses incurred in storing or effecting removal or disposition of rejected commodities.

http://www.sunbiz.org/

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7.6. 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.

7.7. Ombudsman: A Vendor Ombudsman has been established within the Department of Financial Services. The duties of this office are found in section 215.422, F.S., which include disseminating information relative to prompt payment and assisting contractors in receiving their payments in a timely manner from the Department. The Vendor Ombudsman may be contacted at (850) 413-5516.

7.8. Time is of the Essence: Time is of the essence regarding each and every obligation of the Contractor. Each obligation is deemed material, and a breach of any such obligation (including a breach resulting from untimely performance) is a material breach.

7.9. Waiver: The delay or failure by the Department to exercise or enforce any rights under the Contract will not constitute waiver of such rights.

7.10. Modification and Severability: The Contract may only be modified by written agreement between the Department and the Contractor. Should a court determine any provision of the Contract is invalid, the remaining provisions will not be affected, and the rights and obligations of the Parties will be construed and enforced as if the Contract did not contain the provision held invalid.

SECTION 8. WORKERS’ COMPENSATION AND GENERAL LIABILITY INSURANCE, AND

INDEMNIFICATION

8.1 Workers’ Compensation Insurance: The Contractor shall maintain Workers’ Compensation insurance as required under the Florida Workers’ Compensation Law or the workers’ compensation law of another jurisdiction where applicable. The Contractor must require all subcontractors to similarly provide Workers’ Compensation Insurance for all of the latter’s employees. In the event work is being performed by the Contractor under the resulting contract and any class of employees performing the 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.

8.2 General Liability Insurance: The Contractor shall maintain insurance sufficient to adequately protect the Department from all claims or liability for personal injury or property damage arising out of, resulting from the performance of, or in connection with the operation of, the Contract. All insurance shall be with insurers authorized to transact the applicable line of insurance business in the State of Florida. The Contractor shall provide Certification(s) of Insurance evidencing that all appropriate coverage is in place and showing the Department to be an additional insured. The Contractor must submit via email to the Department’s Contract Manager notice of any cancellation or nonrenewal at least ten (10) calendar days prior to cancellation or nonrenewal. In the event of cancellation or nonrenewal, the Contractor will be responsible for securing a replacement insurance policy in accordance with this section.

Attachment B: Draft Contract Page 14 of 61

8.3 Professional Liability Insurance: The Contractor shall maintain insurance sufficient to cover liability for errors or omissions committed by the Contractor, its agents and employees, in the performance of this Contract. The policy shall have limits of liability of not less than $1,000,000 per claim. If such insurance is written on a claims-made basis, the Contractor shall maintain and keep in force and effect such insurance for five (5) years after the later of the completion of the Services, final payment, or earlier termination of this Contract.

8.4 Employee Fidelity and Computer Crime Insurance: The Contractor shall maintain insurance sufficient to cover losses arising from fraudulent or dishonest acts committed by the employees of the Contractor or its agents, acting alone or in collusion with others, in a minimum amount of $1,000,000 per loss. The Department and the State will be added to this coverage as joint loss payees for all claims arising out of, or related to, this Contract. The Contractor may satisfy the Employee Fidelity and Computer Crime Insurance coverage requirements by acquiring a policy with broader coverage that meets the minimum coverage requirements of this Sections 8.2 - 8.3.

8.5 Umbrella Liability Insurance: The Contractor shall maintain Umbrella Liability insurance with minimum limits equal to the greater of: (i) the limits set forth in the Contractor’s umbrella liability policy; or (ii) $15,000,000 per occurrence and in the aggregate. Such insurance shall be in excess of, following form to, and otherwise satisfying the requirements of, the insurance coverages described in Sections 8.2 – 8.4

8.6 Property Insurance: The Contractor shall maintain Property Insurance for all risks of physical loss of or damage to business personal property or other property of the Contractor and its Subcontractors (including Affiliates) used in performing the Services, including electronic data processing equipment. Such insurance will have a minimum limit adequate to cover risks on a replacement cost basis. Such policy will provide primary coverage, without contribution from other insurance, for all losses and damages caused by the perils or causes of loss covered thereby. The Contractor agrees to have included in such policy a waiver of the insurer’s rights of subrogation against the Department, Authorized Users, any other indemnified parties under the Contract, and their respective insurers.

8.7 Privacy Liability and Network Security Insurance: The Contractor shall maintain insurance sufficient to cover liability and expenses incurred as a result of acts, errors, and omissions in connection with performance of the Services under this Contract. Such insurance shall, at a minimum, cover: data security breaches (including, without limitation, unauthorized loss, access, use, or theft of information); violation of laws relating to the care, custody, control or use of such information; data damage, destruction, or corruption; or any act, omission, or failure to act that results in a failure of network security (including unauthorized access to, unauthorized use of, a denial of service attack by a third party against, or transmission of Malware or other type of malicious code to the State’s computer systems). The insurance shall cover the Department and the State for all expenses for which the Contractor is liable under this Contract that the Department or the State incurs as a result of any such actual or alleged event, including: costs of defending, settling, and paying judgments resulting from claims; costs of responding to regulatory or administrative investigations and legal advice therefor; regulatory fines; costs of computer forensic analysis and investigation; notification of impacted individuals; public relations, call center services, fraud consulting services, credit monitoring and protection services; and identity restoration services. The foregoing insurance shall: (i) have a minimum limit of $5,000,000.00 (ii) address all of the foregoing without limitation if caused by an employee of the Contractor or an independent contractor working on behalf of the Contractor in connection with the Contract; (iii) have a retroactive date no later than the Effective Date; and (iv) provide coverage for wrongful acts, claims, Attachment B: Draft Contract Page 15 of 61 and lawsuits anywhere in the world. The Contractor will maintain the foregoing policy in force during the term of the Contract and for a period of five years after the termination or expiration of this Contract (either as a policy in force or extended reporting period). Such insurance shall not include an insured versus insured exclusion applicable to claims against the Contractor arising out of the Services. The Department and the State will be added by endorsement or included under a blanket endorsement to this coverage as additional insureds on a primary and non-contributory basis.

8.8 Indemnification: The Contractor agrees to indemnify, defend, and hold the Department, the State of Florida, its officers, employees and agents harmless from all fines, claims, assessments, suits, judgments, or damages, including consequential, special, indirect, and punitive damages, including court costs and attorney’s fees, arising from or relating to violation or infringement of a trademark, copyright, patent, trade secret or intellectual property right or out of any acts, actions, breaches, neglect or omissions of the Contractor, its employees, agents, subcontractors, assignees or delegates related to the Contract, as well as for any determination arising out of or related to the Contract that the Contractor or Contractor’s employees, agents, subcontractors, assignees or delegates are not independent contractors in relation to the Department. The Contract does not constitute a waiver of sovereign immunity or consent by the Department or the State of Florida or its subdivisions to suit by third parties.

Without limiting this indemnification, the Department may provide the Contractor (1) written notice of any action or threatened action, (2) the opportunity to take over and settle or defend any such action at Contractor’s sole expense, and (3) assistance in defending the action at Contractor’s sole expense.

SECTION 9. PUBLIC RECORDS, TRADE SECRETS, DOCUMENT MANAGEMENT AND

INTELLECTUAL PROPERTY

9.1 Public Records: Solely for the purpose of this section, the Contract Manager is the agency custodian of public records. If, under this Contract, the Contractor is providing services and is acting on behalf of the public agency, as provided in section 119.0701, Florida Statutes, the Contractor shall:

9.1.1 Keep and maintain public records required by the public agency to perform the service.

Upon request from the public agency’s custodian of public records, provide the public agency with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in Chapter 119, F.S., or as otherwise provided by law.

9.1.2 Ensure that public records that are exempt or confidential and exempt from public records disclosure are not disclosed except as authorized by law for the duration of the contract term and following the completion of the Contract if the Contractor does not transfer the records to the public agency.

9.1.3 Upon completion of the Contract, transfer, at no cost, to the public agency all public records in possession of the Contractor or keep and maintain public records required by the public agency to perform the service. If the Contractor transfers all public records to the public agency upon completion of the contract, the contractor shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the Contractor keeps and maintains public records upon completion of the contract, the Contractor shall meet all applicable

Attachment B: Draft Contract Page 16 of 61 requirements for retaining public records. All records stored electronically must be provided to the public agency, upon request from the public agency’s custodian of public records, in a format that is compatible with the information technology systems of the public agency.

IF THE CONTRACTOR HAS QUESTIONS REGARDING THE

APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE

CONTRACTOR’S DUTY TO PROVIDE PUBLIC RECORDS RELATING

TO THIS CONTRACT, CONTACT THE CUSTODIAN OF PUBLIC

RECORDS AT THE TELEPHONE NUMBER, EMAIL ADDRESS AND

MAILING ADDRESS PROVIDED FOR THE CONTRACT MANAGER.

9.2 Protection of Trade Secrets or Confidential Information: If the Contractor considers any portion of materials made or received in the course of performing the Contract (“contract-related materials”) to be trade secret under section 688.002 or 812.081, F.S., or otherwise confidential under Florida or federal law, the Contractor must clearly designate that portion of the materials as trade secret or otherwise confidential when submitted to the Department.

The Contractor will be responsible for responding to and resolving all claims for access to contract-related materials it has designated trade secret or otherwise confidential.

9.2.1 If the Department is served with a request for discovery of contract-related materials designated by the Contractor as trade secret or otherwise confidential, the Contractor will be responsible for filing the appropriate motion or objection in response to the request for discovery. The Department will provide materials designated trade secret or otherwise confidential if the Contractor fails to take appropriate and timely action to protect the materials designated as trade secret or otherwise confidential.

9.2.2 The Contractor will protect, defend, indemnify, and hold harmless the Department for claims, costs, fines, and attorney’s fees arising from or relating to its designation of contract-related materials as trade secret or otherwise confidential.

9.3 Document Management: The Contractor must retain sufficient documentation to substantiate claims for payment under the Contract and all other records, electronic files, papers and documents that were made in relation to the Contract. Contractor must retain all documents related to the Contract for five years after expiration of the Contract, or, if longer, the period required by the General Records Schedules maintained by the Florida Department of State available at: http://dos.myflorida.com/library-archives/records-management/general-records- schedules/.

SECTION 10. DATA SECURITY

10.1. Duty to Provide Secure Data: The Contractor will maintain the security of State of Florida confidential data, exempt data, or personal health data (hereinafter “State Data”) including, but not limited to, a secure area around any display of such State of Florida Data or State Data that is otherwise visible.