Attachment C - Contractual Services Agreement.pdf

STATE OF FLORIDA

DIVISION OF EMERGENCY MANAGEMENT

Contract Number:

ITN#, RFP#, ITB#, RFQ#:

CONTRACT

THIS AGREEMENT is entered into by and between the State of Florida, Division of

Emergency Management, (hereinafter, "Division"), and (hereinafter, “Contractor" or “Vendor”), an entity duly authorized to conduct business in the State of Florida. In consideration of the mutual promises contained in this Agreement (the terms “Agreement” and “Contract” are used interchangeably herein), the parties agree as follows:

1. PURPOSE OF THE AGREEMENT

A. The purpose of this Agreement is to provide products and/or services as described in the Scope of Work attached hereto as Exhibit “A” and made part hereof.

B. No work shall commence until both parties have signed the Agreement.

C. Order of Precedence. The following exhibits, including the entirety of request for proposal (“Solicitation”), are incorporated into and made a part of this Agreement. In the event of a conflict in terms or provisions of these exhibits or between any of the components of this Agreement, the order of precedence for resolving such conflict shall be as follows with 1) being the highest:

1) The express terms of this Agreement, minus Exhibits;

2) Additional Contract Terms and Conditions (“Special Conditions”), if any, Modifying Florida PUR 1000 General Contract Conditions;

3) State of Florida PUR 1000 General Contract Conditions;

4) Exhibit A - "Scope of Work";

5) Exhibit B - "Price Sheet";

6) Exhibit C - [ FOR ADDITIONAL EXHIBITS ];

7) Addenda, in reverse order of issuance.

2. TERM

A. The term shall begin upon execution of the Agreement by both parties and, unless terminated earlier in accordance with the provisions of section 10 of this Agreement, shall end on .

B. If the parties relied upon a State Term Contract in order to enter into this Agreement, then: (1) any renewal or extension shall not exceed the expiration of the underlying State Term Contract by more than twelve (12) months; and, (2) no renewal or extension shall occur if the underlying State Term Contract expires prior to the effective date of any renewal or extension.

RFP-DEM-22-23-025

C. In accordance with section 287.057(14), Florida Statutes, and subject to the limitations outlined above in subsection 2.B. of this Agreement (except where reserved), the Division and the Contractor may renew this Agreement, in whole or in part, for a period that may not exceed three (3) years or the term of this Agreement, whichever is longer.

Any renewal shall specify the renewal price, as set forth in the solicitation response.

Additionally, any renewal: must be in writing and signed by both parties; is contingent upon satisfactory performance evaluations; and, is subject to availability of funds.

OR

C. Because the procurement solicitation did not specify prices for renewal years, this Agreement, pursuant to section 287.057(13), Florida Statutes, may not be renewed for any period of time. Pursuant to section 287.057(12), Florida Statutes, the Division may extend this Agreement for a period not to exceed 6 months. Any extension is subject to the same terms and conditions as set forth in this Agreement.

The Division may only extend this Agreement once, unless events beyond the control of the Contractor cause the Contractor’s failure to meet the criteria for contract completion.

C. Because this Agreement resulted from an emergency procurement under section 287.057(3)(a), Florida Statutes, this Agreement may not be renewed. See Section 287.057(13), Florida Statutes.

C. Because this Agreement resulted from single source procurement under section 287.057(3)(c), Florida Statutes, this Agreement may not be renewed. See Section 287.057(13), Florida Statutes.

C. This Agreement was procured under the authority of Executive Order and may not be renewed.

3. PERFORMANCE

A. Time is of the essence with regard to each and every obligation of the Contractor.

Each such obligation is deemed material, and a breach of any such obligation (including a breach resulting from untimely performance) is a material breach.

B. The Contractor shall immediately notify the Division in writing if its ability to perform is compromised in any manner during the term of this Agreement.

C. The Contractor agrees to perform all tasks and provide deliverables as set forth in the Scope of Work and all contractual documents attached to this Agreement. The Division shall be entitled at all times to be advised, at its request, as to the status of work being done by the Contractor and of the details thereof. Coordination shall be maintained by the Contractor with representatives of the Division, or of other agencies interested in the project on behalf of the Division.

D. If the Division determines that the performance of the Contractor is unsatisfactory, the

Division will notify the Contractor of the deficiency to be corrected, which correction shall be made within a time-frame specified by the Division. The Contractor shall, within the time specified in the contractual documents after notice from the Division, provide the Division with a corrective action plan describing how the Contractor will address all issues of contract non-performance, unacceptable performance, and failure to meet the minimum performance levels, deliverable deficiencies, or contract non-compliance. If the corrective action plan is unacceptable to the Division, the Contractor will be assessed a non-performance retainage equivalent to 10% of the total invoice amount or as specified in the contractual documents. The retainage will be applied to the invoice for the then-current billing period. The retainage will be withheld until the Contractor resolves the deficiency. If the deficiency is subsequently resolved, the Contractor may bill the Division for the retained amount during the next billing period. If the Contractor is unable to resolve the deficiency, the funds retained may be forfeited at the end of the agreement period.

E. The Division reserves the right to inspect, at any reasonable time with prior notice, the equipment or product or plant or other facilities of the Contractor to assess conformity with Contract requirements and to determine whether they are adequate and suitable for proper and effective Contract performance.

F. Unless otherwise prohibited by law, the Division may require the Contractor to furnish, without additional cost to the Division, a performance bond or irrevocable letter of credit or other form of security for the satisfactory performance of work hereunder.

The Division shall determine the type and amount of security.

G. Upon request, the Contractor shall furnish literature reasonably related to the product offered, for example, user manuals, price schedules, catalogs, descriptive brochures, etc.

H. If the Contractor believes that any governmental restrictions have been imposed that require alteration of the material, quality, workmanship or performance of the products offered under the Contract, then the Contractor shall immediately notify the Division in writing, indicating the specific restriction. The Division reserves the right and the complete discretion to accept any such alteration or to cancel the Contract at no further expense to the Division.

I. Prices shall include all charges for packing, handling, freight, distribution, and inside delivery. Tangible product shall be securely and properly packed for shipment, storage, and stocking in appropriate, clearly labeled, shipping containers and according to accepted commercial practice, without extra charge for packing materials, cases, or other types of containers; additionally, no extra charges shall be applied for boxing, crating, packing, or insurance. All containers and packaging shall become and remain the Division’s property. All purchases are F.O.B. destination, transportation charges prepaid. A complete packing list must accompany each shipment. Transportation of goods shall be F.O.B Destination to any point within thirty

(30) days after the Division places an Order. The Division assumes no liability for merchandise shipped to other than the specified destination. Items received in excess of quantities specified may, at the Division’s option, be returned at the Contractor’s expense. Substitutions are not permitted. The Contractor, within five (5) days after receiving a purchase order, shall notify the Division of any potential delivery delays.

Evidence of inability or intentional delays shall be cause for Contract cancellation and Contractor suspension.

J. Matters of inspection and acceptance are addressed in section 215.422, Florida

Statutes. Until acceptance, risk of loss or damage shall remain with the Contractor.

The Contractor shall be responsible for filing, processing, and collecting all damage claims. To assist the Contractor with damage claims, the Division shall: 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 Division rejects a product, the Contractor shall remove it from the premises within ten days after notification or rejection. Upon rejection notification, the risk of loss of rejected or non-conforming product shall remain with the Contractor. Rejected product not removed by the Contractor within ten days shall be deemed abandoned by the Contractor, and the Division shall have the right to dispose of it as its own property. The Contractor shall reimburse the Division for costs and expenses incurred in storing or effecting removal or disposition of rejected product.

K. Where installation is required, the Contractor shall be responsible for placing and installing the product in the required locations at no additional charge, unless otherwise designated in this Agreement. The Contractor’s authorized product and price list shall clearly and separately identify any additional installation charges. All materials used in the installation shall be of good quality and shall be free of defects that would diminish the appearance of the product or render it structurally or operationally unsound. Installation includes the furnishing of any equipment, rigging, and materials required to install or replace the product in the proper location. The Contractor shall protect the site from damage and shall repair damages or injury caused during installation by the Contractor or its employees or agents. If any alteration, dismantling, excavation, etc., is required to achieve installation, the Contractor shall promptly restore the structure or site to its original condition. The Contractor shall perform installation work so as to cause the least inconvenience and interference with the Division and with proper consideration of others on site. Upon completion of the installation, the location and surrounding area of work shall be left clean and in a neat and unobstructed condition, with everything in satisfactory repair and order.

L. As applicable, the Contractor shall comply with all state and Federal rules and regulations when performing under this Agreement. The Contractor shall comply with all Federal Emergency Management Agency (FEMA) rules and regulations applicable to services rendered under this Agreement

4. COMPENSATION AND PAYMENT

A. The total funding amount of this Agreement for the purchase of commodities or the performance of services as described in Exhibit “A” of this Agreement is shown in Exhibit “B”.

B. As required by section 287.0582, Florida Statutes, if this Agreement binds the Division for the purchase of services or tangible personal property for a period in excess of one fiscal year, "The State of Florida's performance and obligation to pay under this contract is contingent upon an annual appropriation by the Legislature."

C. The parties acknowledge that Agency payments required pursuant to the terms of this

Agreement are subject to and contingent upon the review and approval of the Chief Financial Officer pursuant to his authority as set forth in article IV, section 4 of the Florida Constitution (“The chief financial officer shall serve as the chief fiscal officer of the state, and shall settle and approve accounts against the state, and shall keep all state funds and securities.”) as well as section 17.03, Florida Statutes (“The Chief Financial Officer of this state, using generally accepted auditing procedures for testing or sampling, shall examine, audit, and settle all accounts, claims, and demands, whatsoever, against the state, arising under any law or resolution of the Legislature, and issue a warrant directing the payment out of the State Treasury of such amount as he or she allows thereon.”).

D. Travel expenses are not reimbursable unless specifically authorized in writing, and shall be reimbursed only in accordance with section 112.061, Florida Statutes.

E. The Contractor will be paid upon submission of properly certified invoice(s) to the Division after delivery and acceptance of commodities or services is confirmed in writing by the Division. Invoices shall contain detail sufficient for a proper pre-audit and post audit thereof and shall contain any Purchase Order and the Vendor’s Federal Employer Identification Number or Social Security Number.

F. No payment requirements shall start until a properly completed invoice is provided to the Division, inspected, and approved. Invoices that must be returned to the Contractor due to preparation errors will result in a delay in payment.

G. The State does not pay Federal excise or sales taxes on direct purchases of tangible personal property. The State will not pay for any personal property taxes levied on the Contractor or for any taxes levied on employees’ wages. All taxes will be borne by the Contractor.

H. The Contractors providing goods and services to the Division should be aware of the following time frames:

1) Pursuant to section 215.422(1), Florida Statutes, an invoice submitted to the Division shall be recorded in the financial systems of the State, approved for payment by the Division, and filed with the Chief Financial Officer not later than twenty (20) days after receipt of the invoice and receipt, inspection, and approval of the goods or services, except that in the case of a bona fide dispute the invoice recorded in the financial systems of the State shall contain a statement of the dispute and authorize payment only in the amount not disputed.

2) Notwithstanding the 20-day requirement above, the five (5) working day requirement, set forth in section 215.422(1), Florida Statutes, to inspect and approve goods or services rendered under this Agreement shall not apply. The Division will make a good faith effort to abide by the five (5) working day requirement but shall not penalized if the inspection and approval take more than five (5) working days. Items may be tested for compliance with specifications.

Items delivered not conforming to specifications may be rejected and returned at the Contractor’s expense. Any resulting increase in cost will be charged against the Contractor.

3) Pursuant to section 215.422(3)(b), Florida Statutes, the Division shall issue payment to the Contractor within forty (40) days after the invoice has been received, inspected, and approved. Failure to issue the warrant within forty (40) days may result in the Division paying interest at the rate established under section 55.03(1), Florida Statutes. The Division shall not be held to the five (5) working day inspection and approval requirement in section 215.442(1), Florida Statutes.

I. Transaction Fee. The State of Florida, through the Department of Management

Services (DMS), has instituted MyFloridaMarketPlace, a statewide eProcurement system. Pursuant to section 287.057 (24), Florida Statutes, all payments shall be assessed a transaction fee of one percent (1.0%), which the Contractors shall pay to the State. On-line filing is available at http://dms.myflorida.com/mfmp. For payments within the State accounting system (FLAIR or its successor), the transaction fee shall, when possible, be automatically deducted from payments to the Contractor. If automatic deduction is not possible, the Contractor shall self-report and pay the transaction fee pursuant to rule 60A-1.031 (2), Florida Administrative Code. By submission of these reports and corresponding payments, the Contractor certifies their correctness. All such reports and payments shall be subject to audit by the State or its designee. The Contractor shall receive a credit for any transaction fee paid by the Contractor for the purpose of any item(s) if such item(s) are returned to the Contractor through no fault, act, or omission of the Contractor. Notwithstanding the foregoing, a transaction fee is non-refundable when an item is rejected or returned, or declined, due to the Contractor’s failure to perform or comply with specifications or requirements of this Agreement. Failure to comply with these requirements shall constitute grounds for declaring the Contractor in default and recovering reprocurement costs from the Contractor in addition to all outstanding fees. A

CONTRACTOR’S DELINQUENCY IN PAYING TRANSACTION FEES MAY RESULT

IN BEING EXCLUDED FROM CONDUCTING FUTURE BUSINESS WITH THE

STATE.

J. The Contractor shall report and pay the transaction fee on a quarterly calendar basis using the Department of Management Service’s Form PUR 3776, which is incorporated by reference. Any misrepresentation shall be punishable under law, including but not limited to chapter 817, Florida Statutes.

K. The Contractor may call (850) 413-7269 Monday through Friday to inquire about the status of payments by State Agencies. The Division is responsible for all payments under the Agreement. The Division’s failure to pay, or delay in payment, shall not http://dms.myflorida.com/mfmp constitute a breach of the Agreement and shall not relieve the Contractor of its obligations to the Division.

L. A Vendor Ombudsman, whose duties include acting as an advocate for Vendors who may be experiencing problems in obtaining timely payment(s) from an Agency may be contacted at 850-413-5516 or by calling the State Comptroller’s Hotline, 1-800- 848-3792.

M. The Division, during any fiscal year, shall not expend money, incur any liability, or enter into any contract which, by its terms, involves the expenditure of money in excess of the amounts budgeted as available for expenditure during such fiscal year.

Any contract, verbal or written, made in violation of this subsection is null and void, and no money may be paid on such contract. The Division shall require a statement from the Office of Policy and Budget that funds are available prior to entering into any such contract or other binding commitment of funds. Nothing herein contained shall prevent the making of contracts for periods exceeding one (1) year, but any contract so made shall be executed only for the value of the services to be rendered or agreed to be paid for in succeeding fiscal years.

N. All refunds or repayments due to the Division under this Agreement shall be made payable to the order of the “Division of Emergency Management” and mailed directly to the attention of: Cashier, Division Finance, 2555 Shumard Oak Boulevard, Tallahassee, Florida 32399. The Contractor shall also notify the Division Program Manager (identified in subsection 16.B. of this Agreement) that it has issued a refund to the Division.

5. SURETY BOND

☐ This provision applies.

☐ This provision does not apply.

A. A surety bond shall be required of the successful bidder in an amount equal to dollars ($ ). If the total value of the Agreement later exceeds the initial surety bond amount, the Contractor shall timely increase the surety bond amount to match that new amount. The surety bond must comply with section 287.0935, Florida Statutes. The surety on such bond shall be a surety company authorized to do business in the state. The Surety Bond will be at no cost to the Division. All bonds shall be payable to the Division and conditioned for the prompt, faithful, efficient, and full performance of the Agreement to provide products and services specified in the Agreement during an emergency declared pursuant to section 252.36, Florida Statutes, and within the time period specified in the Agreement.

B. The surety bond provided under this section shall be used to the extent necessary to satisfy the damage claims made by the State, to ensure timely performance by the Contractor of the Agreement, and to ensure prompt payment of all persons defined in section 713.01, Florida Statutes, furnishing labor, materials, equipment, supplies, services, and licenses to or for the Contractor in its performance of this Agreement.

In no event shall the surety bond be construed as a penalty bond.

C. Before beginning any work under the Agreement, the Contractor shall maintain a copy of the payment and performance bond required under this section at its principal place of business and at the job-site office, if one is established, and the Contractor shall provide a copy of the payment and performance bond within 5 days after receiving a written request for the bond. A copy of the payment and performance bond required under this section may also be obtained directly from the Division by making a request pursuant to chapter 119, Florida Statutes. A claimant has a right of action against the Contractor and surety for the amount due him or her, including unpaid finance charges due under the claimant’s Agreement. The action may not involve the Division in any expense.

D. A claimant, except a laborer, who is not in privity with the Contractor shall, before commencing or not later than 90 days after commencing to furnish labor, materials, or supplies for the prosecution of the work, furnish the Contractor with a notice that he or she intends to look to the bond for protection. A claimant who is not in privity with the Contractor and who has not received payment for his or her labor, materials, or supplies shall deliver to the Contractor and to the surety written notice of the performance of the labor or delivery of the materials or supplies and of the nonpayment. The notice of nonpayment may be served at any time during the progress of the work or thereafter but not before 45 days after the first furnishing of labor, services, or materials, and not later than 90 days after the final furnishing of the labor, services, or materials by the claimant or, with respect to rental equipment, not later than 90 days after the date that the rental equipment was last on the job site available for use. An action by a claimant, except a laborer, who is not in privity with the Contractor for the labor, materials, or supplies may not be instituted against the Contractor or the surety unless both notices have been given. Notices required or permitted under this section may be served in any manner provided in section 713.18, Florida Statutes.

E. An action must be instituted by a claimant, whether in privity with the Contractor or not, against the Contractor or the surety on the payment bond or the payment provisions of a combined payment and performance bond within 365 days after the final acceptance of the Contractor’s work by the Division. A claimant may not waive in advance his or her right to bring an action under the bond against the surety. In any action brought to enforce a claim against a payment bond under this section, the prevailing party is entitled to recover a reasonable fee for the services of his or her attorney for trial and appeal or for arbitration, in an amount to be determined by the court, which fee must be taxed as part of the prevailing party’s costs, as allowed in equitable actions.

F. The Division shall have no liability for anticipated profits for unfinished work on an

Agreement which has been determined to be in default.

G. The Division may recover from the Contractor, amounts paid by the Division for damages suffered by third parties as a result of the Contractor’s failure to complete the project within the time stipulated in the Agreement or within such additional time as may have been granted by the Division, unless the failure to timely complete the project was caused by the Division’s act or omission. This provision is in addition to of the liquidated damages resulting from the failure of the Contractor to complete the dollars ($ ) project within the time stipulated in the Agreement or within such additional time as may have been granted by the Division. However, nothing herein shall create a cause of action against the Division.

H. The bond shall be subject to the additional obligation that the principal and surety executing the same shall be liable to the state in a civil action instituted by the Division, or any officer of the state authorized in such cases, for double any amount in money or property the state may lose or be overcharged or otherwise defrauded of, by reason of any wrongful or criminal act, if any, of the Contractor, the Contractor’s agent, or employees.

I. Within 30 days of the execution of this Agreement, and by March 1st of each year following the Effective Date of this Agreement, the Contractor shall provide the Division with a surety bond continuation certificate or other acceptable verification that the bond is valid and has been renewed for an additional year.

J. As an alternative to the surety bond described in this section and at the sole discretion of the Division, the Contractor may use an irrevocable letter of credit on an annually renewable basis, which in the reasonable judgment of the Division effectuates a surety bond. By March 1st of each year following the Effective Date of this Agreement, the Division may determine in its sole discretion whether to discontinue the irrevocable letter of credit in favor of the surety bond described in this section.

6. PERFORMANCE BOND

A. Within 30 days of contract execution, Contractor will deliver to the Division's Contract

Manager, a Performance Bond or Irrevocable Letter of Credit in the amount equal to the lesser of or the average annual price of the contract (averaged from the initial contract term pricing) at no cost to the Division. The bond or letter of credit shall be used to guarantee at least satisfactory performance by Contractor throughout the term of the contract (including renewal years). At any time after contract execution, the Contractor's bond may be reduced, or the requirement removed, for the remainder of the term (including any renewal periods).

B. The bond shall be maintained throughout the term of the Contract, issued by a reliable surety company which is licensed to do business in the State of Florida, as determined by the Division, and must include the following conditions:

1) Obligee: The Division shall be named as the beneficiary of the bond. The insurer or bonding company shall pay losses suffered by the State directly to the Division.

2) Notice of Attempted Change: The Contractor shall provide the Division prior written notice or immediate notice upon knowledge of any attempt to cancel or to make any other material change in the status, coverage or scope of the required bond or of the Contractor's failure to pay bond premiums.

3) Premiums: The Division shall not be responsible for any premiums or assessments on the bond.

4) Purpose of Bond: The performance bond is to protect the Division and the State against any loss sustained through failure of the Contractor's performance of the Services in accordance with the Contract. No payments shall be made to the Contractor until the performance bond is in place and approved by the Division in writing.

7. INDEMNITY AND PAYMENT FOR CLAIMS

A. INDEMNITY. The Contractor shall be fully liable for the actions of its agents, employees, partners, assignees, or subcontractors and shall fully indemnify, defend, and hold harmless the State and the Division, and their officers, agents, and employees, from suits, actions, damages, and costs, 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 agents, employees, partners, or subcontractors; provided, however, the Contractor shall not indemnify for that portion of any loss or damages proximately caused by the negligent act or omission of the State or the Division.

Further, the Contractor shall fully indemnify, defend, and hold harmless the State 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 intellectual property right; provided, however, that the foregoing obligation shall not apply to the Division’s misuse or modification of the Contractor’s products or the Division’s operation or use of the Contractor’s products 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 may at its sole expense procure for the Division 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 Division the right to continue using the product, the Contractor shall remove the product, and refund to the Division the amounts paid in excess of a reasonable rental for past use. The Division shall not be liable for any royalties.

The Contractor’s obligations under the preceding paragraphs with respect to any legal action are contingent upon the State 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 Division in any legal action without the Contractor’s prior written consent, which shall not be unreasonably withheld.

Any Contractor which is a State agency or subdivision, as defined in section 768.28, Florida Statutes, agrees to be fully responsible for its negligent or tortuous acts or omissions which result in claims or suits against the Division, and agrees to be liable for any damages proximately caused by the acts or omissions to the extent set forth in section 768.28, Florida Statutes. Nothing herein is intended to serve as a waiver of sovereign immunity by any Contractor to which sovereign immunity applies.

Nothing herein shall be construed as consent by a State agency or subcontractor of the State of Florida to be sued by third parties in any matter arising out of any contract.

B. LIMITATION OF LIABILITY. For all claims against the Contractor under any contract or purchase order, and regardless of the basis on which the claim is made, the Contractor’s liability under a contract or purchase order for direct damages shall be limited to the greater of $100,000, the dollar amount of the contract or purchase order, or two times the charges rendered by the Contractor under the purchase order. This limitation shall not apply to claims arising under the Indemnity subsection of this

Unless otherwise specifically enumerated in this Agreement or resulting purchase order, no party shall be liable to another for special, indirect, punitive, or consequential damages, including lost data or records (unless the contract or purchase order requires the Contractor to back-up data or records), even if the party has been advised that such damages are possible. No party shall be liable for lost profits, lost revenue, or lost institutional operating savings. The State and Division may, in addition to other remedies available to them at law or equity and upon notice to the Contractor, retain such monies from amounts due Contractor as may be necessary to satisfy any claim for damages, penalties, costs and the like asserted by or against them. The State may set off any liability or other obligation of the Contractor or its affiliates to the State against any payments due the Contractor under any contract with the State.

LIMITATION OF LIABILITY. For all claims against the Contractor under this Agreement, and regardless of the basis on which the claim is made, the Contractor’s liability under this Agreement for direct damages shall be limited to the greater of $1,000,000, the dollar amount of the Agreement, the dollar amount of the purchase order(s) issued to Contractor under this Agreement, or two times the charges rendered by the Contractor under any purchase order(s) issued under this Agreement. This limitation shall not apply to claims arising under the Indemnity paragraph contained in this Agreement.

Unless otherwise specifically enumerated in this Agreement or resulting purchase order, no party shall be liable to another for special, indirect, punitive, or consequential damages, including lost data or records (unless the contract or purchase order requires the Contractor to back-up data or records), even if the party has been advised that such damages are possible. No party shall be liable for lost profits, lost revenue, or lost institutional operating savings. The State and Division may, in addition to other remedies available to them at law or equity and upon notice to the Contractor, retain such monies from amounts due Contractor as may be necessary to satisfy any claim for damages, penalties, costs and the like asserted by or against them. The State may set off any liability or other obligation of the Contractor or its affiliates to the State against any payments due the Contractor under any contract with the State.

C. PAYMENT OF CLAIMS. The Contractor guaranties the payment of all just claims for materials, supplies, tools, or labor and other just claims against the Contractor or any subcontractor, in connection with the Agreement.

D. LIABILITY INSURANCE. The Contractor shall carry and keep in force during the term of this Agreement a general liability insurance policy or policies with a company or companies authorized to do business in Florida, affording public liability insurance with combined bodily injury limits of at least $150,000.00 per person and $300,000.00 each occurrence, and property damage insurance of at least $150,000.00 each occurrence, for the services to be rendered in accordance with this Agreement.

Providing and maintaining adequate insurance coverage is a material obligation of the Contractor. Upon request, the Contractor shall provide certificate of insurance. The limits of coverage under each policy maintained by the Contractor shall not be interpreted as limiting the Contractor liability and obligations under the Agreement. All insurance policies shall be through insurers authorized or eligible to write policies in Florida.

LIABILITY INSURANCE. The Contractor shall carry and keep in force during the term of this Agreement insurance policies with a company or companies authorized to do business in Florida. For the services to be rendered in accordance with this Agreement, the Contractor agrees to provide the following proof of insurance:1. General liability insurance in the amount of at least five million dollars ($5,000,000) per occurrence; 2. Business motor vehicle liability insurance with combined bodily injury limits of at least $250,000 per person and $500,000 each occurrence, and property damage insurance of at least $250,000 each occurrence; 3.

Pollution liability insurance in the amount of at least one million dollars ($1,000,000);

and 4. Other insurance policies necessary for the services to be rendered in accordance with this Agreement.

Providing and maintaining adequate insurance coverage is a material obligation of the Contractor. Upon request, the Contractor shall provide certificate of insurance. The limits of coverage under each policy maintained by the Contractor shall not be interpreted as limiting the Contractor liability and obligations under the Agreement. All insurance policies shall be through insurers authorized or eligible to write policies in Florida.

E. WORKERS COMPENSATION. The Contractor shall maintain Workers’

Compensation insurance as required under the Florida Workers’ Compensation Law.

8. COMPLIANCE WITH LAWS:

A. The laws of the State of Florida shall govern this Agreement. The Division and the Contractor submit to the jurisdiction of the courts of the State of Florida exclusively for any legal action related to this Agreement. Further, the Contractor hereby waives any and all privileges and rights relating to venue it may have under chapter 47, Florida Statutes, and any and all such venue privileges and rights it may have under any other statute, rule, or case law, including, but not limited to those grounded on convenience.

The Contractor hereby submits to venue in the county chosen by the Division, to wit:

Leon County, Florida.

B. The Contractor must be registered with the Florida Department of State, Division of

Corporations. Online-filing is available at: http://www.sunbiz.org.

C. The Contractor shall allow public access to all documents, papers, letters, or other material subject to the provisions of chapter 119, Florida Statutes, and made or received by the Contractor in conjunction with this Agreement. In accordance with section 119.0701(2), Florida Statutes, a vendor providing contractual services and acting on behalf of the Division must:

1) Keep and maintain public records that ordinarily and necessarily would be required by the public agency in order to perform the service.

2) Provide the public with access to public records on the same terms and conditions that the public agency would provide the records and at a cost that does not exceed the cost provided in this chapter or as otherwise provided by law.

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.

4) Meet all requirements for retaining public records and transfer, at no cost, to the public agency all public records in possession of the contractor upon termination of the contract and destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. All records stored electronically must be provided to the public agency 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: (850) 815-7671, Records@em.myflorida.com, or 2555 Shumard Oak Boulevard, Tallahassee, FL 32399.

D. Pursuant to section 287.058(1)(c), Florida Statutes, the Division may unilaterally cancel a contract if the vendor refuses to allow public access to all non-exempt documents, papers, letters, or other material made or received by the contractor in conjunction with the contract.

E. The Contractor agrees that it shall make no statements, press releases, or publicity releases concerning this Agreement or its subject matter or otherwise disclose or permit to be disclosed any of the data or other information obtained or furnished in compliance with this Agreement, or any particulars thereof, during the period of the Agreement, without first notifying the Division’s Contract Manager or the Division’s designated contact person and securing prior written consent. The Contractor shall http://www.sunbiz.org/ mailto:Records@em.myflorida.com maintain confidentiality of all confidential data, files, and records related to the services and/or commodities provided pursuant to this Agreement 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. The Contractor’s confidentiality procedures shall be consistent with the most recent version of the Division’s security policies, protocols, and procedures. The Contractor shall also comply with any applicable professional standards with respect to confidentiality of information.

F. The Contractor 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. For example, the Contractor shall comply with section 247A of the Immigration and Nationality Act, the Americans with Disabilities Act, Health Insurance Portability and Accountability Act, and all prohibitions against discrimination on the basis of race, religion, sex, creed, national origin, handicap, marital status, or veteran’s status. Pursuant to section 287.058(1), Florida Statutes, the provisions of section 287.058(1)(a)-(c), and (i), Florida Statutes, are hereby incorporated by reference, to the extent applicable.

G. The Contractor should identify any products that may be used or adapted for use by visually, hearing, or other physically impaired individuals.

H. All manufactured items and fabricated assemblies subject to operation under pressure, operation by connection to an electric source, or operation involving connection to a manufactured, natural, or LP gas source shall be constructed and approved in a manner acceptable to the appropriate State inspector. Acceptability customarily requires, at a minimum, identification marking of the appropriate safety standard organization, where such approvals of listings have been established for the type of device offered and furnished, for example: the American Society of Mechanical Engineers for pressure vessels; the Underwriters Laboratories and/or National Electrical Manufacturers’ Association for electrically operated assemblies;

and the American Gas Association for gas-operated assemblies. In addition, all items furnished shall meet all applicable requirements of the Occupational Safety and Health Act and state and federal requirements relating to clean air and water pollution.

I. If regulated by the Florida Department of Business and Professional Regulation, the

Contractor and its employees shall be bound by the standard of conduct provided in applicable Florida Statutes and applicable rules of the Board of Business and Professional Regulation as they relate to work performed under this Agreement. The Contractor further covenants and agrees that when a former State employee is employed by the Contractor, the Contractor will require strict adherence by a former State employee to section(s) 112.313 and 112.3185, Florida Statutes, as a condition of employment for said former State employee. These statutes will by reference be made a part of this Agreement as though set forth in full. The Contractor agrees to incorporate the provisions of this subsection in any subcontract into which it might enter for the work performed under this Agreement.

J. A person or affiliate who has been placed on the convicted Contractor 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 thirty-six (36) months following the date of being placed on the convicted Contractor list.

K. 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 service 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 Vendor, supplier, subcontractor, or consultant under a contract with any public entity, and may not transact business with any public entity.

L. The Division shall verify the Contractor and any subcontractor’s against the Federal

Excluded Parties List System to ensure the Contractor or subcontractor is not disbarred or excluded from receiving Federal contracts.

M. The Contractor shall E-Verify the employment status of all employees and subcontractors to the extent permitted by federal law and regulation. The Division shall consider the employment by any Contractor of unauthorized aliens a violation of section 274A (e) of the Immigration and Nationality Act. If the Contractor knowingly employs unauthorized aliens, such violation shall be cause for unilateral cancellation of this Agreement. Furthermore, the Contractor agrees to utilize the U.S. Agency of Homeland Security’s E-Verify system, https://e-verify.uscis.gov/emp, to verify the employment eligibility of all new employees hired during the term of this Agreement for the services specified in this Agreement. The Contractor shall also include a requirement in subcontracts that the subcontractor shall utilize the E-Verify system to verify the employment eligibility of all new employees hired by the subcontractor during the term of this Agreement.

N. Pursuant to section 216.347, Florida Statutes, the Contractor shall not expend any

State funds for the purpose of lobbying the State Legislature, the Judiciary, or an Agency.

O. In accordance with section 20.055(5), Florida Statutes, the Contractor shall cooperate fully with the Inspector General in any investigation, audit, inspection, review, or hearing conducted pursuant to the Inspector General’s statutory authority.

Additionally, upon request of the Inspector General or any other authorized State official, the Contractor shall provide any type of information the Inspector General deems relevant to the Contractor’s integrity or responsibility. Such information may include, but shall 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 this Agreement. The Contractor shall retain such records in accordance with the General Records Schedules maintained by the Florida Department of State (available at:

http://dos.myflorida.com/library-archives/records-management/general-records-schedules/). The Contractor agrees to reimburse the State for the reasonable costs https://e-verify.uscis.gov/emp http://dos.myflorida.com/library-archives/records-management/general-records-schedules/ http://dos.myflorida.com/library-archives/records-management/general-records-schedules/ of investigation incurred by the Inspector General or other authorized State official for investigations of the Contractor’s compliance with the terms of this or any other agreement between the Contractor and the State which results in the suspension or debarment of the Contractor. Such costs shall include, but shall not be limited to:

salaries of investigators, including overtime; travel and lodging expenses; and expert witness and documentary fees. The Contractor shall not be responsible for any costs of investigations that do not result in the Contractor’s suspension or debarment.

P. The Contractor shall not, in connection with this or any other agreement with the State, directly or indirectly (1) offer, confer, or agree to confer any pecuniary benefit on anyone as consideration for any State officer or employee’s decision, opinion, recommendation, vote, other exercise of discretion, or violation of a known legal duty, or (2) offer, give, or agree to give to anyone any gratuity for the benefit of, or at the direction or request of, any State officer or employee. For purposes of clause (2), “gratuity” means any payment of more than nominal monetary value in the form of cash, travel, entertainment, gifts, meals, lodging, loans, subscriptions, advances, deposits of money, services, employment, or contracts of any kind.

Q. The Division 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), Florida Statutes, 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.

R. Pursuant to section 287.05805, Florida Statutes, if state funds are being used for the purchase of or improvements to real property pursuant to the terms of this Agreement, the state funds are contingent upon the Contractor or political subdivision granting to the state a security interest in the property at least to the amount of state funds provided for at least five (5) years from the date of purchase or the completion of the improvements or as further required by law.

9. COPYRIGHT, PATENT AND TRADEMARK

EXCEPT AS PROVIDED BELOW, ANY AND ALL PATENT RIGHTS

ACCRUING UNDER OR IN CONNECTION WITH THE PERFORMANCE

OF THIS AGREEMENT ARE HEREBY RESERVED TO THE STATE OF

FLORIDA; AND, ANY AND ALL COPYRIGHTS ACCRUING UNDER OR

IN CONNECTION WITH THE PERFORMANCE OF THIS AGREEMENT

ARE HEREBY TRANSFERRED BY THE SUB-RECIPIENT TO THE STATE

OF FLORIDA.

A. All plans, specifications, computer files, and reports prepared or obtained under this

Agreement, as well as all data collected, together with summaries and charts derived from them shall be the exclusive property of…