CN-310000-D2811.pdf

STATE OF FLORIDA

DIVISION OF EMERGENCY MANAGEMENT

Contract Number: D2811

RFP# RFP-DEM-24-25-025

CONTRACT

THIS AGREEMENT is entered into by and between the State of Florida, Division of Emergency Management, (hereinafter, "Agency"), and IEM International Inc (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 Attachment “A” and made part hereof.

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

C. Order of Precedence. The following attachments, including the entirety of any request for proposal (“Solicitation”), are incorporated into and made a part of this Agreement. In the event of a conflict in the terms and/or provisions of these attachments 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 attachments;

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) PUR 7801 – Vendor Certification Form;

5) PUR 1355 – Foreign Country of Concern Attestation

6) PUR 2024 – Use of Coercion for Labor and Services / Provision of

Commodities Produced by Forced Labor (Part A)

7) FDEM Purchase Order and Conditions

8) Attachment A - Scope of Work;

9) Attachment B - Price Proposal;

10) Addenda, in reverse order of issuance;

2. TERM

A. The term shall begin upon the date last signed by all parties, or if the agreement is a purchase order, upon the date of issuance by the Agency to the Contractor and, unless terminated earlier in accordance with the provisions of section 9 of this Agreement, shall be for five (5) years.

B. 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 Agency 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.

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 Agency 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 Agency 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 Agency, or of other agencies interested in the project on behalf of the Agency.

D. If the Agency determines that the performance of the Contractor is unsatisfactory, the Agency will notify the Contractor in writing of the deficiency to be corrected within a timeframe specified by the Agency. The Contractor shall, within the time specified, provide the Agency with a written 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 contractual non-compliance. If the corrective action plan is unacceptable to the Agency, the Contractor may be assessed a financial consequence up to 10% of each monthly invoice until the deficiency is corrected. The financial consequence will be applied to the invoice for the then-current billing period and shall be prorated based on the value of the service/deliverable.

E. The Agency reserves the right to inspect, at any reasonable time with prior notice, the equipment, product, 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 Agency may require the Contractor to furnish, without additional cost to the Agency, a surety bond or irrevocable letter of credit or other form of security for the satisfactory performance of work hereunder. The Agency shall determine the type and amount of security.

G. 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 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 Agency’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 Agency places an Order. The Agency assumes no liability for merchandise shipped to any location other than the specified destination. Items received in excess of quantities specified may, at the Agency’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 Agency of any potential delivery delays. Evidence of inability or intentional delays shall be cause for Contract termination and Contractor suspension.

H. 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 Attachment “A” of this Agreement is shown in Attachment “B”.

B. Pursuant to section 287.0582, Florida Statutes, the Agency’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 must be included in the pricing and are not separately reimbursable, unless specifically authorized by the SOW or in writing by the Executive Director and shall be reimbursed only in accordance with section 112.061, Florida Statutes, except that the Agency may establish rates lower than the maximum provided in the applicable statute.

E. The Contractor shall be paid upon submission of properly certified invoice(s) to the Agency after delivery and acceptance of commodities or services is confirmed in writing by the Agency. 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 (FEIN) or Social Security Number (SSN).

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

1) Pursuant to section 215.422(1), Florida Statutes, an invoice submitted to the Agency shall be recorded in the financial systems of the State, approved for payment by the Agency, 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 Agency will make a good faith effort to abide by the five (5) working day requirement but shall not 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), Florida Statutes, the Agency shall issue payment to the Contractor within forty (40) days after the invoice has been received, and the goods/services inspected, and approved. Failure to issue the warrant within forty (40) days may result in the Agency paying interest at the rate established under section 55.03(1), Florida Statutes. The Agency 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, through the Department of Management

Services, has instituted MyFloridaMarketPlace (MFMP), a statewide eProcurement system pursuant to section 287.057(24), Florida Statutes. All payments issued by agencies to registered vendors for purchases of commodities or contractual services under chapter 287, Florida Statutes, shall be assessed a transaction fee equal to seven-tenths of one percent (0.7%) of the total amount of the payments received from the State or eligible users, as prescribed by Rule 60A-1.031, F.A.C., or as may otherwise be established by law. Effective July 1, 2024, through June 30, 2025, transaction fees imposed for the use of MFMP are equal to seven-tenths of one percent (0.7%) of the payment issued. Vendors shall pay the Transaction Fee and are subject to automatic deduction of the transaction fee, when automatic deduction becomes available. Vendors shall submit any monthly reports required pursuant to Rule 60A-1.031, F.A.C. All such reports and payments are subject to audit. The Customer will have grounds for declaring the vendor in default if the vendor fails to comply with the payment of the transaction fee or reporting of payments, which may subject the vendor to being suspended from business with the State.

J. The Contractor shall report and pay the transaction fee on a quarterly calendar basis. Transaction Fee Reports (Form PUR3776) shall be completed and submitted using the MFMP online Billing and Collection System (BCS) in Vendor Information Portal. 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 Agency is responsible for all payments under the Agreement. The Agency’s failure to pay, or delay in payment, shall not constitute a breach of the Agreement and shall not relieve the Contractor of its obligations to the Agency.

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.

M. The Agency, 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 Agency 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 Agency under this Agreement shall be made payable to the order of the “Florida 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 Agency Contract Manager (identified in subsection 15.B. of this Agreement) that it has issued a refund to the Agency.

5. PAYMENT AND PERFORMANCE BOND. A payment and performance bond is required pursuant to section 255.05, Florida Statutes, for contracts exceeding $10,000 for the construction of a public building, for the prosecution and completion of a public work, or for repairs upon a public building or public work.

This provision applies.

This provision does not apply.

A. Contractor shall comply with the procedure set forth in section 255.05, Florida

Statutes.

B. No later than 30 days after the first purchase order issuance. The Agency will notify the Contractor of the required amount of the bond, which will be a percentage of the total amount of purchase orders issued within the first 30 days. From notice of bond amount, Contractor shall deliver to the Agency's Contract Manager, the Performance Bond, or Irrevocable Letter of Credit within 45 days. 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).

C. 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 Agency, and must include the following conditions:

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

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

4) Purpose of Bond: The payment and performance bond is to protect the Agency and the State against any loss sustained through failure of the Contractor's performance of the Services in accordance with the Contract.

No work shall begin nor shall payments be made to the Contractor until the performance bond has been executed and recorded and approved by the Agency in writing.

6. 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 Agency, 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 Agency.

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 Agency’s misuse or modification of the Contractor’s products or the Agency’s operation or use of the Contractor’s products in a manner not contemplated by the Agreement.

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 Agency 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 tortious acts or omissions which result in claims or suits against the Agency, 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 $200,000, the dollar amount of the contract or purchase order, or two (2) 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 Agreement (Section 6A) or any provision of the Contract relating to insurance required to be provided by the Contractor.

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 Agency 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 guarantees 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 issue insurance policies in Florida, affording public liability insurance with combined bodily injury limits of at least $200,000.00 per person and $300,000.00 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. Contractor shall also maintain workers compensation insurance as required by Chapter 440, Florida Statutes.

Providing and maintaining adequate insurance coverage is a material obligation of the Contractor. Prior to execution of the Agreement, the Contractor shall provide the applicable certificate(s) 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.

7. COMPLIANCE WITH LAWS:

A. The laws of the State of Florida shall govern this Agreement. The Agency 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 Agency, 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.

The Contractor or business entity must maintain “active” status with the Florida Department of State, Division of Corporations, throughout the duration of this contract, including any extensions thereof, with the Agency. Failure to maintain active status may result in termination for cause.

C. PUBLIC RECORDS REQUIREMENTS PURSUANT TO SECTION 119.0701,

FLORIDA STATUTES. The contractor shall comply with all the requirements of chapter 119, Florida Statutes, as referenced to in the PUR 1000. The Contractor shall, at the time of execution of this contract or within a reasonable time after execution of the same, provide redacted copies of all contractual documents to the Agency. Pursuant to section 287.058(1)(c), Florida Statutes, the Agency may unilaterally cancel a contract if the Contractor 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.

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. The Contractor shall attest in PUR1355 attached with this agreement, that it is not an entity owned by the government of a Foreign Country of Concern, no government of a Foreign Country of Concern has a controlling interest in the entity, and that the contracting or controlling entity of the Contractor has not been organized under the laws of or has its principal place of business in a Foreign Country of Concern pursuant to section 287.138, Florida Statutes.

E. Contractor shall attest in PUR7063 attached with this agreement, that it does not use coercion for labor or services, as defined in section 787.06(2)(a), Florida Statutes.

F. If applicable, pursuant to section 255.0993, Florida Statutes, the Contractor shall ensure that any iron or steel product, as defined in section 255.0993(1)(b), Florida Statutes, that is permanently incorporated in the deliverable(s) resulting from this project is produced in the United States.

G. 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 Agency’s Contract Manager or the Agency’s designated contact person and securing prior written consent. The Contractor shall 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 Agency’s security policies, protocols, and procedures. The Contractor shall also comply with any applicable professional standards with respect to confidentiality of information. The Contractor agrees that a violation of any of the aforementioned requirements may result in unilateral termination of the contract and the Contract agrees to forfeit any legal remedies following such a termination.

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

I. 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.

J. 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 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 subsection in any subcontract into which it might enter for the work performed under this Agreement. The Contractor further agrees that it will reassign or remove any former State Employee from working on or in relation to this Contract upon a written directive by the Agency.

K. Pursuant to section 287.133, Florida Statutes, 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.

L. Subject to section 287.134, Florida Statutes, an entity or affiliate who has been placed on the discriminatory Vendor list may not submit a bid, proposal, or reply on a contract to provide any goods or 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.

M. Pursuant to section 287.1346, Florida Statutes, an agency may not accept a bid, proposal, or reply from; award a contract to; or transact business pertaining to the provision of commodities with a company on the forced labor vendor list, or an entity under the control of such company, for a period of 365 days after the date the company was placed on the list, unless the company is removed from the list pursuant to 287.1346(5)(d), Florida Statutes.

N. The Agency shall verify the Contractor and any subcontractors against the

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

O. The Contractor shall E-Verify the employment status of all employees and subcontractors to the extent permitted by federal law and regulation. The Agency 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://everify.uscis.gov/, 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.

P. The Contractor shall not use funds provided under the Contract in a manner that violates the provisions of sections 11.062 and 216.347, Florida Statutes.

Pursuant to section 287.058(6), Florida Statutes, the Contract does not prohibit the Contractor from lobbying the executive or legislative branch concerning the scope of services, performance, term, or compensation regarding the Contract during the Contract’s term. In addition to any applicable statutory restrictions, the Contractor shall not, in connection with this or any other agreement with the State, directly or indirectly (i) 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 exercises of discretion, or violation of a known legal duty; or (ii) 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 (ii), “gratuity” means any payment in the form of cash, travel, entertainment, gifts, meals, lodging, loans, subscriptions, advances, deposits of money, services, employment, or contracts of any kind.

Q. 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 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.

R. 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.

S. The Agency may, at its option, terminate the Contract if the Contractor is found to have: submitted a false certification as provided under sections 287.135(5) or 287.1346, Florida Statutes; been placed on the Scrutinized Companies with Activities in Sudan List; been placed on the Scrutinized Companies with Activities in the Iran Terrorism Sectors List; been engaged in business operations in Cuba or Syria; been placed on the Scrutinized Companies that Boycott Israel List; or is engaged in a boycott of Israel.

T. 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 sub division 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.

8. 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 the Agency without restriction or limitation on their use and shall be made available, upon request, to the Agency at any time during the performance of such services and/or upon completion or termination of this Agreement.

B. The Contractor shall not copyright any material and products or patent any invention developed under this Agreement. Any and all patent rights and any and all copyrights 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 shall 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 shall refer the discovery or invention to the Agency for a determination as to 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 shall notify the Agency. 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 (30) days of execution of this Agreement, the Contractor shall 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 shall 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 Agency shall then, under subsection C, have the right to all patents and copyrights which occur during performance of the Agreement.

9. SUSPENSION OF WORK AND TERMINATION OF THE AGREEMENT

A. SUSPENSION. The Agency may in its sole discretion suspend any or all activities under this Agreement, at any time, when it is in the best interest of the State to do so. The Agency shall 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 shall comply with the notice and shall not accept any purchase orders. Within ninety (90) days, or any longer period agreed to by the Contractor, the Agency shall either: (1) issue a notice authorizing resumption of work, at which time activity shall resume; or, (2) terminate the Agreement. Suspension of work shall not entitle the Contractor to any additional compensation.

B. TERMINATION FOR CONVENIENCE. This Agreement may be terminated by the Agency in whole or in part at any time when in the best interest of the Agency. The Contractor shall not furnish any product after it receives the notice of termination (whether for convenience or for cause), except as necessary to complete any continued portion of the Contract, if any. If this Agreement is terminated before performance is completed, then the Contractor shall be paid only for that work satisfactorily performed for which costs can be substantiated.

Such payment, however, may not exceed an amount which is the same percentage of the agreement price as the amount of work satisfactorily completed as a percentage of the total work called for by this Agreement. All work in progress shall become the property of the Agency and shall be turned over promptly by the Contractor. The Contractor shall not be entitled to recover any cancellation charges or lost profits.

C. TERMINATION FOR CAUSE. The Agency 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. Section 287.1351 governs the procedure and consequences of default. The Contractor shall continue work on any work not terminated. Except for defaults of subcontractors at any tier, the Contractor shall not be liable for any excess costs if the failure to perform the Agreement arises from events completely beyond the control, and without the fault or negligence, of the Contractor. If the failure to perform is caused by the default of a subcontractor at any tier, and if the cause of the default is completely beyond the control of both the Contractor and the subcontractor, and without the fault or negligence of either, the Contractor shall not be liable for any excess costs for failure to perform, unless the subcontracted products were obtainable from other sources in sufficient time for the Contractor to meet the required delivery schedule. If, after termination, it is determined that the Contractor was not in default, or that the default was excusable, the rights and obligations of the parties shall be the same as if the termination had been issued for the convenience of the Agency. The rights and remedies of the Agency in this clause are in addition to any other rights and remedies provided by law or under the Contract.

D. The Contractors shall comply with section 287.1346, Florida Statutes. If the Contractor is placed on the forced labor vendor list, the Agency shall terminate the Agreement for cause. The Contractor shall terminate any agreements related to this Agreement with subcontractors that the Contractor knows or should know are placed on the forced labor vendor list.

10. REMEDIES

A. Any dispute concerning performance of this Agreement shall be decided by the Agency’s designated contract manager, who shall reduce the decision to writing and serve a copy on the Contractor. The decision shall be final and conclusive unless within twenty-one (21) days from the date of receipt, the Contractor files with the Agency a petition for administrative hearing. The Agency’s decision on the petition shall be final, subject to the parties’ right to review pursuant to chapter 120, Florida Statutes. Exhaustion of administrative remedies is an absolute condition precedent to the Contractor's ability to pursue any other form of dispute resolution; provided, however, that the parties may employ the alternative dispute resolution procedures outlined in chapter 120.

B. In the event the Contractor fails to satisfactorily perform or has failed to adhere to the terms and conditions under this Agreement, the Agency shall, upon fifteen (15) calendar days written notice to the Contractor and upon the Contractor's failure to cure within those fifteen (15) calendar days, exercise any one or more of the following remedies, either concurrently or consecutively:

1) Withhold or suspend payment of all or any part of a request for payment.

2) Require that the Contractor refund to the Agency any monies used for ineligible purposes under the laws, rules and regulations governing the use of these funds.

3) Exercise any corrective or remedial actions, to include but not be limited to:

a) Requesting additional information from the Contractor to determine the reasons for or the extent of non-compliance or lack of performance;

b) Issuing a written warning to advise that more serious measures may be taken if the situation is not corrected;

c) Advising the Contractor to suspend, discontinue or refrain from incurring costs for any activities in question; or,

d) Requiring the Contractor to reimburse the Agency for the amount of costs incurred for any items determined to be ineligible.

C. Pursuing any of the above remedies will not keep the Agency from pursuing any other rights or remedies which may be otherwise available under law or in equity. If the Agency waives any right or remedy in this Agreement or fails to insist on strict performance by the Contractor, it will not affect, extend, or waive any other right or remedy of the Agency, or affect the later exercise of the same right or remedy by the Agency for any other default by the Contractor.

D. The Contractor and the State of Florida recognize that in actual economic practice, overcharges resulting from antitrust violations are usually borne by the State of Florida. Therefore, the Contractor hereby assigns to the State of Florida any and all claims for such overcharges as to goods, materials or services purchased in connection with this Agreement.

E. Pursuant to section 252.505, Florida Statute, should a breach by Contractor occur during an emergency recovery period, Contractor shall pay a penalty of five thousand dollars ($5000) and any actual damages resulting from the breach. “Emergency recovery period” means a 1-year period that begins on the date that the Governor initially declared a state of emergency for a natural emergency. This penalty is in addition to and not in lieu of any other financial consequences or remedies provided in this Agreement.

11. LIQUIDATED DAMAGES

This provision applies.

This provision does not apply.

A. The Contractor shall be responsible for any and all consequential damages resulting from the breach of this Agreement, and if consequential damages are not calculable, then this Liquidated Damages provision shall apply.

B. NOTICE OF DEFAULT. The Contractor will promptly notify the Agency upon becoming aware of any circumstances that may reasonably be expected to jeopardize the timely and successful completion (or delivery) of any Service, Deliverable, or Project; or if the Contractor uses or authorizes a third party to use Agency Materials beyond the license for use. The Contractor will use commercially reasonable efforts to avoid or minimize any delays in performance, and will inform the Agency of the steps the Contractor is taking or will take to do so, and the projected actual completion (or delivery) time. If the Contractor believes a delay in performance by the Agency has caused or will cause the Contractor to be unable to perform its obligations on time, the Contractor will promptly so notify the Agency and use commercially reasonable efforts to perform its obligations on time notwithstanding the Agency's delay.

Provided that the Contractor satisfies the requirements of the immediately foregoing sentence, the Contractor will not be liable for liquidated damages if and only to the extent that the Contractor’s applicable failure to perform or delay in performing is caused by the Agency.

C. AMOUNT OF LIQUIDATED DAMAGES. Applicable liquidated damages are the amounts established in the following schedule:

Original Contract Amount Daily Charge Per Calendar Day $50,000 and under………………………………………………....$956 $50,000.01 to $249,999.99……………….……………………….$964 $250,000 to $499,999.99………………………………………..$1,241 $500,000 to $2,499,999.99……………………………………...$1,665 $2,500,000 to $4,999,999.99……………………………………$2,712 $5,000,000 to $9,999,999.99……………………………………$3,447 $10,000,000 to 14,999,999.99…………………………………..$4,866 $15,000,000 to $19,999,999.99…………………………………$5,818 $20,000,000 and over ............................................................ $9,198 plus

0.00005 of any amount over $20 million (round to nearest whole dollar)

D. DETERMINATION OF NUMBER OF DAYS OF DEFAULT. For all contracts, regardless of whether the Contract Time is stipulated in calendar days or working days, the Contractor will count default days in calendar days.

E. CONDITIONS UNDER WHICH LIQUIDATED DAMAGES ARE IMPOSED. If the Contractor, in the case of default, fails to complete the work within the time stipulated in the Contract, or within such extra time that the Agency may have granted the Contractor, then the surety shall pay to the Agency not as a penalty, but as liquidated damages, the amount so due as provided in the schedule above.

F. RIGHT OF COLLECTION. The Agency has the right to apply as payment on such liquidated damages any money the Agency owes the Contractor.

G. ALLOWING CONTRACTOR TO FINISH WORK. The Agency does not waive its right to liquidated damages due under the Contract by allowing the

Contractor to continue and to finish the work or any part of it after the expiration of the Contract Time.

H. COMPLETION OF WORK BY THE AGENCY. In the case of a default of the Contractor and the completion of the work by the Agency, the Contractor and its surety are liable for the liquidated damages under the Contract, but the Agency will not charge liquidated damages for any delay in the final completion of the Agency’s performance of the work due to any unreasonable action or delay on the part of the Agency.

12. EMPLOYEES, ASSIGNMENT, AND SUBCONTRACTS

A. INDEPENDENT CONTRACTOR. The Contractor and its employees, agents, representatives, assignees, and subcontractors are not employees or agents of…