Attachment F - Revised Draft Contract.pdf

EOG Draft Contract. Revised 6-27-22

Attachment F Draft Contract

STATE OF FLORIDA

Executive Office of the Governor

Contract Number: _______________________

ITN#, RFP#, ITB#, RFQ#: EOG-RFP-23-01

CONTRACT

THIS AGREEMENT is entered into by and between the State of Florida, Executive Office of the Governor, (hereinafter, "EOG"), 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 may 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) Addenda, in reverse order of issuance.

2) RFP Solicitation

3) Exhibit A - "Scope of Services";

4) Exhibit B - "Cost Sheet";

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

6) Other RFP attachments;

7) State of Florida PUR 1000 General Contract Conditions;

8) State of Florida PUR 1001 Instructions to Respondents

2. TERM

A. The Initial Contract term will be for two (2) years. The term will begin upon execution of the Agreement by both parties and, unless terminated earlier in accordance with the provisions of section 8 of this Agreement, will end on .

B. Because the procurement solicitation did not specify prices for renewal years, this Agreement, pursuant to section 287.057(14), Florida Statutes, may not be renewed for any period of time. Pursuant to section 287.057(13), Florida Statues, the EOG 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 EOG 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.

3. PERFORMANCE

A. Time is of the essence with regard to each and every key milestone and deliverable 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 must immediately notify the EOG 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 Services and all contractual documents attached to this Agreement. The EOG will 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 must be maintained by the Contractor with representatives of the EOG, or of other agencies interested in the project on behalf of the EOG.

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

EOG will notify the Contractor of the deficiency to be corrected, and that correction must be made within a time-frame specified by the EOG. The Contractor must, within the time specified in the contractual documents after notice from the EOG, provide the EOG 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 EOG, the Contractor will be assessed the financial consequences outlined in Attachment A, Scope of Services.

E. The EOG 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 EOG may require the Contractor to furnish, without additional cost to the EOG, a performance bond or irrevocable letter of credit or other form of security for the satisfactory performance of work hereunder. The EOG shall determine the type and amount of security.

G. Upon request, the Contractor must 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 must immediately notify the EOG in writing, indicating the specific restriction. The EOG reserves the right and the complete discretion to accept any such alteration or to cancel the Contract at no further expense to the EOG.

I. Prices must include all charges for packing, handling, freight, distribution, and inside delivery. Tangible product must 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 may be applied for boxing, crating, packing, or insurance. All containers and packaging will become and remain the EOG’s property. All purchases are F.O.B. destination, transportation charges prepaid. A complete packing list must accompany each shipment. Transportation of goods must be F.O.B Destination to any point within thirty

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

Evidence of inability or intentional delays will 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 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 EOG must: 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 EOG rejects a product, the Contractor must 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 will remain with the Contractor. Rejected product not removed by the Contractor within ten days will be deemed abandoned by the Contractor, and the EOG will have the right to dispose of it as its own property. The Contractor must reimburse the EOG for costs and expenses incurred in storing or effecting removal or disposition of rejected product.

K. Where installation is required, the Contractor will 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 must clearly and separately identify any additional installation charges. All materials used in the installation must be of good quality and 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 must protect the site from damage and 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 must promptly restore the structure or site to its original condition. The Contractor must perform installation work so as to cause the least inconvenience and interference with the EOG and with proper consideration of others on site. Upon completion of the installation, the location and surrounding area of work must be left clean and in a neat and unobstructed condition, with everything in satisfactory repair and order.

L. As applicable, the Contractor must comply with all state and Federal rules and regulations when performing 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. The Vendor must submit an invoice upon completion of each deliverable specified in Exhibit “B” in a format acceptable to the Agency. The contract unit rates must include the costs of salaries, incidental travel, overhead, fringe benefits and operating margin.

C. As required by section 287.0582, Florida Statutes, if this Agreement binds the EOG 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."

D. 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.”).

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

F. No payment requirements will start until a properly completed invoice is provided to the EOG, 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 EOG should be aware of the following time frames:

1) Pursuant to section 215.422(1), Florida Statutes, an invoice submitted to the EOG will be recorded in the financial systems of the State, approved for payment by the EOG, 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 will 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), to inspect and approve goods or services rendered under this Agreement will not apply. The EOG will make a good faith effort to abide by the five (5) working day requirement but cannot be 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), the EOG must 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 EOG paying interest at the rate established under section 55.03(1), Florida Statutes. The EOG will not be held to the five (5) working day inspection and approval requirement in section 215.442(1).

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(24c), all payments must be assessed a transaction fee of one percent (1%), which the Contractors must 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 must, when possible, be automatically deducted from payments to the Contractor. If automatic deduction is not possible, the Contractor must 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 will be subject to audit by the State or its designee. The Contractor will 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 will 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 must 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 will be punishable under law, including but not limited to: 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 EOG is responsible for all payments under the Agreement. The EOG’s failure to pay, or delay in payment, will not constitute a breach of the Agreement and will not relieve the Contractor of its obligations to the

EOG.

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 EOG, during any fiscal year, may 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 Office of Policy and Budget must release a statement 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 must 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 EOG under this Agreement must be made payable to the order of the “Executive Office of the Governor” and mailed directly to the attention of: Attn: Administration Office, Executive Office of the Governor, 400 S Monroe St. Suite LL05. The Contractor must also notify the EOG Contract Manager (identified in section 17. B.) that it has issued a refund to the EOG.

5. SURETY BOND

☐ This provision applies.

☒ This provision does not apply.

A. A surety bond will be required of the successful Respondent in an amount equal to

___________ dollars ($______). If the total value of the Agreement later exceeds the initial surety bond amount, the Contractor must timely increase the surety bond amount to match that new amount. The surety bond must comply with section 287.0935. The surety on such bond must be a surety company authorized to do business in the state. The Surety Bond will be at no cost to the EOG. All bonds must be payable to the EOG 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 must 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 will the surety bond be construed as a penalty bond.

C. Before beginning any work under the Agreement, the Contractor must 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 must 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 EOG by making a request pursuant to 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 EOG in any expense.

D. A claimant, except a laborer, who is not in privity with the Contractor must, 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 must 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 EOG. 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 EOG will have no liability for anticipated profits for unfinished work on an

Agreement which has been determined to be in default.

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

H. The bond will be subject to the additional obligation that the principal and surety executing the same will be liable to the state in a civil action instituted by the EOG, 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 must provide the EOG 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 EOG, the Contractor may use an irrevocable letter of credit on an annually renewable basis, which in the reasonable judgment of the EOG effectuates a surety bond. By March 1st of each year following the Effective Date of this Agreement, the EOG 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

☒ This provision applies.

☐ This provision does not apply.

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

Manager, a Performance Bond or Irrevocable Letter of Credit in the amount equal to the total cost of the Proposal at no cost to the EOG. The bond or letter of credit will 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) at the EOG’s discretion.

B. The bond must 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 EOG, and must include the following conditions:

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

2) Notice of Attempted Change: The Contractor must provide the EOG 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 EOG will not be responsible for any premiums or assessments on the bond.

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

7. INDEMNITY AND PAYMENT FOR CLAIMS

A. INDEMNITY. The Contractor will be fully liable for the actions of its agents, employees, partners, assignees, or subcontractors and must fully indemnify, defend, and hold harmless the State and the EOG, 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 may not indemnify for that portion of any loss or damages proximately caused by the negligent act or omission of the State or the EOG.

Further, the Contractor must 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 need not apply to the EOG’s misuse or modification of the Contractor’s products or the EOG’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 EOG 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 EOG the right to continue using the product, the Contractor must remove the product and refund to the EOG the amounts paid in excess of a reasonable rental for past use. The EOG will 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 will not be liable for any cost, expense, or compromise incurred or made by the EOG in any legal action without the Contractor’s prior written consent, which may not be unreasonably withheld.

Any Contractor that 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 EOG, 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 may 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 this Agreement, and regardless of the basis on which the claim is made, the Contractor’s liability under this Agreement for direct damages will 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 will 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 will 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 will be liable for lost profits, lost revenue, or lost institutional operating savings. The State and EOG 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 must 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 $200,000.00 per person and $300,000.00 minimum each occurrence, and property damage insurance of at least $200,000.00 each occurrence, for the services to be rendered in accordance with this Agreement.

The insurance policy must also include contractual liability coverage insuring activities of Contractor under this Agreement.

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

E. WORKERS COMPENSATION. The Contractor must maintain Workers’

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

8. COMPLIANCE WITH LAWS:

A. The laws of the State of Florida will govern this Agreement. The EOG 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 § 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 Leon County, Florida.

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

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

C. The Contractor must allow public access to all documents, papers, letters, or other material subject to the provisions of § 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 EOG 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) 717-9248, desantis.opengov@eog.myflorida.com, or 400 S Monroe St. Suite 209, Tallahassee, FL 32399.

D. Pursuant to section 287.058(1)(c), the EOG 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 will 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 EOG’s Contract Manager or the EOG’s designated contact person and securing prior written consent. The Contractor must maintain confidentiality of all confidential data, files, and records related to the services and/or commodities provided pursuant to this Agreement and must 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 must be consistent with the most recent version of the EOG’s security policies, protocols, and procedures. The Contractor must also comply with any applicable professional standards with respect to confidentiality of information.

F. 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. For example, the Contractor must 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. Section 287.058(1)(a)- (c), and (i), 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 must 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 mailto:desantis.opengov@eog.myflorida.com furnished must 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 will 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 sections 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 paragraph 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, 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. A person or an affiliate who has been placed on the antitrust violator vendor list following a conviction or being held civilly liable for an antitrust violation may not submit a bid, proposal, or reply for any new contract to provide any goods or services to a public entity; may not submit a bid, proposal, or reply for a new contract with a public entity for the construction or repair of a public building or public work; may not submit a bid, proposal, or reply on new leases of real property to a public entity; may not be awarded or perform work as a contractor, supplier, subcontractor, or consultant under a new contract with a public entity; and may not transact new business with a public entity.

M. The EOG will 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.

N. The EOG will verify the Contractor and any subcontractor’s is not on the Florida Suspended Vendor List.

O. In accordance with the contract, the Contractor hereby acknowledges and certifies compliance with section 448.095, Florida Statutes. The Contractor must register with and use the E-Verify system to verify the work authorization status of all newly hired employees. The Contractor must utilize the U.S. Department of Homeland Security’s E-Verify system, in accordance with the terms governing use of the system. The Vendor/Consultant/Contractor must also comply with section 448.095, for the duration of the contract term, including any extensions or renewal periods.

P. Pursuant to section 216.347, Florida Statutes, the Contractor may not expend any State funds for the purpose of lobbying the State Legislature, the Judiciary, or an Agency.

Q. In accordance with section 20.055(5), the Contractor must 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 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 this Agreement. The Contractor must 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 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 must include, but will not be limited to: salaries of investigators, including overtime, travel and lodging expenses, and expert witness and documentary fees. The Contractor will not be responsible for any costs of investigations that do not result in the Contractor’s suspension or debarment.

R. In accordance with section 216.1366, F.S., the EOG is authorized to inspect the: (a) financial records, papers, and documents of the Contractor that are directly related to the performance of the Contract or the expenditure of state funds; and (b) programmatic records, papers, and documents of the Contractor which the EOG determines are necessary to monitor the performance of the Contract or to ensure that the terms of the Contract are being met. The Contractor shall provide such records, papers, and documents requested by the EOG within 10 Business Days after the request is made.

S. The Contractor may 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), http://dos.myflorida.com/library-archives/records-management/general-records-schedules/ http://dos.myflorida.com/library-archives/records-management/general-records-schedules/

“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.

T. The EOG 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), 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.

U. Pursuant to section 287.05805, 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 CONTRACTOR 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 will be the exclusive property of the EOG without restriction or limitation on their use and must be made available, upon request, to the EOG at any time during the performance of such services and/or upon completion or termination of this Agreement.

B. The Contractor may not copyright any material and products or patent any invention developed under this Agreement. Any and all patent rights and any and all copyright accruing under or in connection with the performance of this Agreement are hereby reserved to the State of Florida. If the Contractor brings to the performance of this Agreement a pre-existing patent or copyright, the Contractor will retain all rights and entitlements to that pre-existing patent or copyright unless the Agreement provides otherwise.

C. If any discovery or invention arises or is developed in the course of or as a result of work or services performed under this Agreement, or in any way connected with this Agreement, the Contractor must refer the discovery or invention to the EOG for a determination whether patent protection will be sought in the name of the State of Florida. Any and all patent rights accruing under or in connection with the performance of this Agreement are reserved to the State of Florida. If any books, manuals, films, or other copyrightable material are produced, the Contractor must notify the EOG.

Any and all copyrights accruing under or in connection with the performance under this Agreement are transferred by the Contractor to the State of Florida.

D. Within thirty days (30) of execution of this Agreement, the Contractor must disclose all intellectual properties relevant to the performance of this Agreement which he or she knows or should know could give rise to a patent or copyright. The Contractor will retain all rights and entitlements to any pre-existing intellectual property which is disclosed. Failure to disclose will indicate that no such property exists. The EOG will then, under subsection C, have the right to all patents and copyrights which occur during performance of the Agreement.

10. SUSPENSION OF WORK AND TERMINATION OF THE AGREEMENT

A. SUSPENSION. The EOG may in its sole discretion suspend any or all activities under this Agreement, at any time, when in the best interests of the State to do so. The EOG must provide the Contractor written notice outlining the particulars of suspension.

Examples of the reason for suspension include, but are not limited to: budgetary constraints; declaration of emergency; or, other such circumstances. After receiving a suspension notice, the Contractor must comply with the notice and cease all work.

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

B. TERMINATION FOR CONVENIENCE. This Agreement may be terminated by the EOG in whole or in part at any time in the best interest of the EOG upon no less than thirty (30) calendar days’ notice to the Contractor. The Contractor may not furnish any product after it receives the notice of termination (whether for convenience or for cause), except as necessary to complete the continued portion of the Contract, if any.

If this Agreement is terminated before performance is completed, then the Contractor may be paid only for that work satisfactorily performed for which costs can be substantiated. Such payment, however, may not exceed an amount equal to the percentage of the total work called for by this Agreement that was satisfactorily performed multiplied by the total amount of the Proposal. All work in progress, including any data provided by the EOG, will become the property of the EOG and must be turned over by the Contractor to the EOG within 15 days of any termination, including but not limited to a termination for convenience. The Contractor will not be entitled to recover any cancellation charges or lost profits.

C. TERMINATION FOR CAUSE. The EOG may terminate the Agreement if the

Contractor fails to: (1) deliver the product within the time specified in the Agreement or any extension; (2) maintain adequate progress, thus endangering performance of the Agreement; (3) honor any term of the Agreement; (4) timely cure a default; or,

(5) abide by any statutory, regulatory, or licensing requirement. The Contractor must continue work on any work not terminated. Except for defaults of subcontractors at any tier, the Contractor will not be liable for any excess costs if the failure to…