CN-550000-BE885.pdf

AGREEMENT

BETWEEN DEPARTMENT AND CONTRACTOR

FOR CONSTRUCTION CONTRACT

Contract No.: BE885 F.E.I.D. No: 13-4226271 Appropriation No.:

Procurement No: DOT-RFP-20-5001-FNC D.M.S. Catalog Class No.: 30152000, 72154013, 72154069

BY THIS AGREEMENT, effective as of this date ____________________________ , the STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION (hereinafter called “Department”) and KMG Fence, LLC._____ , (hereinafter called “Contractor”), of 505 Johns Rd. Apopka, Florida 32703, authorized to do business in the State of Florida, agree as follows:

ARTICLE 1 – WORK

1.01 Contractor shall complete all Work as specified or indicated in the Contract Documents.

The Work is generally described as follows: Furnish and install fencing with required hardware in multiple segments along the Central Florida Rail Corridor (CFRC) and install signage provided at the locations specified along the CFRC Corridor.

ARTICLE 2 – THE PROJECT

The Projects for which the Work under the Contract Documents may be the whole or only a part is generally identified by the Department as shown in the Scope of Services, and:

ARTICLE 3 – CONTRACT TIME

3.01 Time of the Essence

A. Time is of the essence to each and every obligation under this Agreement.

3.02 Days to Achieve Completion of Work and Contract Term

A. The Work will be completed within 120 calendar days after the date when the Contract Time commences to run. It is understood and agreed that the date on which calendar days will begin to be charged to the project shall be either (1) the 30 calendar days from the date of issuance of the initial notice to begin work, or (2) the date on which the Contractor actually begins work, whichever date is the earlier. The Service period shall not commence until written Notice to Proceed has been issued.

B. The Initial Term of the Contract will begin upon execution and terminate on December 31, 2020.

Agreement Page 1

DocuSign Envelope ID: 4962D16D-6643-4768-BB3A-C0EFC1E8D4C7

12/11/2019 | 10:02 AM EST

3.03 Liquidated Damages

A. Contractor and Department recognize that time is of the essence as stated in Paragraph 3.01 above and that Department will suffer financial loss if the Work is not completed within the time specified in Paragraph 3.02 above, plus any extensions thereof allowed in writing by the Department. The parties also recognize the delays, expense, and difficulties involved in proving the actual loss suffered by Department if the Work is not completed on time. Accordingly, instead of requiring any such proof, Department and Contractor agree that as liquidated damages for delay (but not as a penalty), Contractor shall pay Department $100.00 for each calendar day that expires after the time specified in Paragraph 3.02 above, plus any extensions allowed in writing by the Department. The amounts for Liquidated damages shown in Section 8-7.3 of the FDOT Standard Specifications for Road and Bridge Construction are hereby replaced with the amount shown above.

ARTICLE 4 – CONTRACT PRICE

4.01 Department shall pay Contractor the Contract Price of $443,282.00, for completion of the Work in accordance with the Contract Documents as a lump sum price, payable in accordance with the Exhibit “B”, Method of Compensation.

Prior to commencement of work the Vendor shall provide a Schedule of Values based on the segments shown in Attachment “F”, Proposed Fence Locations.

ARTICLE 5 – CONTRACT DOCUMENTS

5.01 Contents

A. The Contract Documents which comprise the entire agreement between Department and Contractor concerning the Work and which are incorporated herein by this reference consist of the following:

1. This Agreement

2. Exhibit A, Scope of Services, to include The Division I Section of the FDOT Standard Specifications for Road and Bridge Construction, Design Indices 800 and 802, and Standard Specifications for Road and Bridge Construction sections 347, 550, 901, 902, 921, 923, 924, and 929 as modified and attached.

3. Exhibit B, Method of Compensation

4. Exhibit C, FTA Terms and Conditions

5. Exhibit D, Insurance Requirements

6. Exhibit E, Davis Bacon Wage Rates

7. Exhibit F, Proposed Fence Locations, (shown on aerial photos provided on CD at Pre-proposal Conference).

Agreement Page 2

8. Exhibit G, Typical Fencing Installation

9. The PUR 1000 terms and conditions, which are deemed to be part of Exhibit “A”, Scope of Services

10. Contract Bond (Form No. 9)

11. The following which may be delivered or issued on or after the Effective Date of the Agreement and are not attached hereto:

a. All written Amendments, Supplemental Agreements, and other documents modifying or supplementing the Contract Documents.

B. There are no Contract Documents other than those listed above in this Article 5. The Contract Documents may only be amended, modified, or supplemented as deemed necessary by the Department in accordance with the Specifications, as applicable.

ARTICLE 6 – MISCELLANEOUS

6.01 Department and Contractor each binds itself, its partners, successors, assigns, and legal representatives to the other party hereto, its partners, successors, assigns, and legal representatives in respect to all covenants, agreements, and obligations contained in the Contract Documents.

6.02 Assignment of the Contract Subletting or Assigning of Contracts.

Do not, sell, transfer, assign or otherwise dispose of the Contract or Contracts or any portion thereof, or of the right, title, or interest therein, without written consent of the Department. If the Contractor chooses to sublet any portion of the Contract, the Contractor must submit a written request to sublet work on the Certification of Sublet Work form developed by the Department for this purpose. With the Departments acceptance of the request, the Contractor may sublet a portion of the work, but shall perform with its own organization work amounting to not less than 40% of the total Contract amount. The Certification of Sublet Work request will be deemed acceptable by the Department, for purposes of the Department’s consent, unless the Department notifies the Contractor within 5 business days of receipt of the Certification of Sublet Work that the Department is not consenting to the requested subletting. Include in the total Contract amount the cost of materials and manufactured component products, and their transportation to the project site. For the purpose of meeting this requirement the Department will not consider off-site commercial production of materials and manufactured component products that the Contractor purchases, or their transportation to the project, as subcontracted work. If the Contractor sublets a part of a Contract item, the Department will use only the sublet proportional cost in determining the percentage of subcontracted normal work. Execute all agreements to sublet work in writing and include all pertinent provisions and requirements of the Contract. All other agreements must be in writing and reference all applicable Contract provisions. Upon request, submit to the Department a copy of the subcontract and agreement. The subletting of work does not relieve the Contractor or the surety of their respective liabilities under the Contract. The Department recognizes a subcontractor only in the capacity of an employee or agent of the

Agreement Page 3

Contractor, and the Department may require the Contractor to remove the subcontractor as in the case of an employee.

6.03 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 Department's Project Manager and securing the Department’s prior written consent.

6.04 The Contractor shall comply with all federal, state, and local laws and ordinances applicable to the work or payment for work thereof, and will not discriminate on the grounds of race, color, religion, sex, national origin, age, or disability in the performance of work under this Agreement.

6.05 If the Contractor is licensed by the Department of Business and Professional Regulation to perform the services herein contracted, then Section 337.162, Florida Statutes, applies as follows:

A. If the Department has knowledge or reason to believe that any person has violated the provisions of state professional licensing laws or rules, it shall submit a complaint regarding the violations to the Department of Business and Professional Regulation. The complaint shall be confidential.

B. Any person who is employed by the Department and who is licensed by the Department of Business and Professional Regulation and who, through the course of the person's employment, has knowledge to believe that any person has violated the provisions of state professional licensing laws or rules shall submit a complaint regarding the violations to the Department of Business and Professional Regulation.

Failure to submit a complaint about the violations may be grounds for disciplinary action pursuant to Chapter 455, Florida Statutes, and the state licensing law applicable to that licensee. The complaint shall be confidential.

C. Any complaints submitted to the Department of Business and Professional Regulation are confidential and exempt from Section 119.07(1), Florida Statutes, pursuant to Chapter 455, Florida Statutes, and applicable state law.

6.06 The Contractor covenants and agrees that it and its employees and agents shall be bound by the standards of conduct provided in applicable law 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 shall require that strict adherence by the former state employee to Sections 112.313 and 112.3185, Florida Statutes, is 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 with reference to the work performed pursuant to this Agreement.

Agreement Page 4

6.07 A person or affiliate who has been placed on the convicted vendor list following a conviction for a public entity crime may not submit a bid, proposal, or reply on a contract to provide any goods or services to a public entity; may not submit a bid, proposal, or rely on a contract with a public entity for the construction or repair of a public building or public work; may not submit bids, proposals, or replies on leases of real property to a public entity, may not be awarded or perform work as a contractor, supplier, subcontractor, or consultant under a contract with any public entity; and may not transact business with any public entity in excess of the threshold amount provided in Section 287.017, Florida Statutes, for CATEGORY TWO for a period of 36 months from the date of being placed on the convicted vendor list.

6.08 An entity or affiliate placed on the discriminatory vendor list may not submit a bid, proposal, or reply on a contract to provide any goods or services to a public entity, may not submit a bid, proposal, or reply on a contract with a public entity for the construction or repair of a public building or public work, may not submit bids, proposals, or replies on leases of real property to a public entity, may not be awarded or perform work as a contractor, supplier, subcontractor, or consultant under a contract with a public entity;, and may not transact business with any public entity.

6.09 The Department shall consider the employment by any contractor of unauthorized aliens a violation of Section 274 A (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.

6.10 Pursuant to Section 216.347, Florida Statutes, the Contractor may not expend any State funds for the purpose of lobbying the Legislature, the judicial branch, or a state agency.

6.11 This Agreement involves the expenditure of federal funds and Section 946.515, Florida Statutes does not apply.

6.12 This Agreement will not be renewed.

6.13 The Contractor and its employees, agents, representatives, or subcontractors are not employees of the Department and are not entitled to the benefits of State of Florida employees. Except to the extent expressly authorized herein, Contractor and its employees, agents, representatives, or subcontractors are not agents of the Department or the State for any purpose or authority such as to bind or represent the interests thereof, and shall not represent that it is an agent or that it is acting on the behalf of the Department or the State. The Department shall not be bound by any unauthorized acts or conduct of the Contractor or its employees, agents, representatives, or subcontractors. Contractor agrees to include this provision in all its subcontracts under this Agreement.

6.14 This Agreement embodies the whole agreement of the parties. There are no promises, terms, conditions, or obligations other than those contained herein, and this Agreement shall supersede all previous communications, representations, or agreements, either verbal or written, between the parties hereto. The State of Florida terms and conditions, whether general or specific, shall take precedence over and supersede any inconsistent or conflicting provision in any attached terms and conditions of the Contractor.

Agreement Page 5

6.15 It is understood and agreed by the parties hereto that if any part, term or provision of this Agreement is by the courts held to be illegal or in conflict with any law of the State of Florida, the validity of the remaining portions or provisions shall not be affected, and the rights and obligations of the parties shall be construed and enforced as if the Agreement did not contain the particular part, term, or provision held to be invalid.

6.16 This Agreement shall be governed by and construed in accordance with the laws of the State of Florida.

6.17 In any legal action related to this Agreement, instituted by either party, the Contractor hereby waives any and all privileges and rights it may have under Chapter 47 and Section 337.19, Florida Statutes, relating to venue, as it now exists or may hereafter be amended, and any and all such privileges and rights it may have under any other statute, rule, or case law, including, but not limited to those grounded on convenience. Any such legal action may be brought in the appropriate Court in the county chosen by the Department and in the event that any such legal action is filed by the Contractor, the Contractor hereby consents to the transfer of venue to the county chosen by the Department upon the Department filing a motion requesting the same.

IN WITNESS WHEREOF, the parties hereto have caused these presents to be executed the day and year first above written.

STATE OF FLORIDA

DEPARTMENT OF TRANSPORTATION

Name of Contractor

By: _____________________________ By: _______________________________ (Authorized Signature) (Authorized Signature)

________________________________ Charles M. Heffinger Jr., P.E.

(Print/Type) (Print/Type)

Title: ___________________________ Title: SunRail Chief Operating Officer

FOR DEPARTMENT USE ONLY

APPROVED: LEGAL APPROVAL:

Procurement Services Office

Agreement Page 6

KMG Fence, LLC.

DocuSign Envelope ID: 4962D16D-6643-4768-BB3A-C0EFC1E8D4C7

Manager

Karen Grimsley

EXHIBIT A – SCOPE OF SERVICES

DOT-RFP-20-5001-FNC

CENTRAL FLORIDA RAIL CORRIDOR (CFRC)

SunRail Fencing and Sign Install

The Contractor shall provide the services detailed in this Exhibit “A”, Scope of Services. The services include furnishing and installing chain link fence and installing No Trespassing signs within the limits of the CFRC in Seminole and Orange Counties.

SCOPE REQUIREMENTS:

1. For all fence locations, the Department shall place steel rods and survey flags in the ground at the following locations:

a. At the South end of each fence segment.

b. At the North end of each fence segment.

c. At each deflection point, if applicable.

d. On line, at intervals of no more than 300’ between rods and flags.

e. On curves, at intervals of no more than 100’ between rods and flags.

f. At the South end and North end of each proposed gate.

2. All fence installations shall comply with the following:

Contractor shall furnish and install all necessary fence and gate components in accordance with Division I of the FDOT Standard Specifications for Road and Bridge Construction, Standard Plans 550-002 – 550.004, Standard Specifications for Road and Bridge Construction Sections 110, 347, 550, 901, 902, 921, 923, 924, and 929 as applicable, and Exhibit G Typical Fencing Installation.

i. Line Post Options

1. Contractor will use Line Post Option 1, galvanized steel pipe as described in

Standard Plans 550-002.

2. Contractor shall use Exhibit G Typical Fencing Installation for fencing post installation.

ii. Corner, End and Pull Post Options

1. Contractor shall use Option 1, galvanized steel pipe as described Standard Plans 550-002.

iii. Rail Options

1. Contractor shall use Option 1, galvanized steel pipe as described in Standard

Plans 550-002.

iv. Chain Link Fabric Options

1. Contractor shall use Option 1, AASHTO M181 Type I, zinc coated steel as described in Standard Plans 550-002.

v. Tension Wire Options

1. Contractor shall use Option 1, Steel wire no. 7 gauge as described in Standard

Plans 550-002.

vi. Tie Wire and Hog Ring Options

1. Contractor shall use Option 1, Steel wire no. 9 gauge as described in Standard Plans 550-002

vii. Chain Link Swing Gates Type B Fence

A-1

BE885

1. Contractor shall furnish and install chain link swing gates per Standard Plans index 550-002. Sheet 2 of 3, General Note #11

viii. Clearing and Grubbing

1. The contractor is responsible for clearing and grubbing for fence installation as described in Standard Specifications Section 110.

3. All sign installations shall comply with the following:

a. FDOT shall furnish No Trespassing signs. The Department shall provide a minimum of 61 signs at

Notice to Proceed. The signs are 1/8” thick, 18” high by 24” wide aluminum sheets. The signs are pre-drilled for mounting to the steel U-channel sign posts that FDOT shall provide.

b. FDOT shall furnish steel U-channel sign posts. The Department shall provide a minimum of 61 sign posts at Notice to Proceed. The posts are seven (7) feet long, pre-drilled with 3/8” diameter holes on 1” centers. The bottom of each post is tapered.

c. FDOT shall furnish all necessary hardware for Contractor to bolt the signs to the U-channel posts.

d. Contractor shall install the signs inside the CFRC right of way.

e. Contractor shall place the bottom 24” to 30” of the U-channel post into the ground. Contractor is not required to place concrete in the sign post holes or around the base of the sign posts.

f. Contractor shall place the top of each 18” high by 24” wide No Trespassing sign 2” to 4” above the top of the U-channel post.

4. It is the Contractor’s responsibility to perform all work in a manner that prevents damage to any underground utilities or underground facilities that exist within the limits of the CFRC. The contractor shall take all necessary precautions to prevent any damage to any utilities or underground facilities within the work area.

Before excavating, boring holes or driving posts into the ground, the Contractor shall be responsible for contacting all railroad signal and communication facilities in the corridor within the project limits to request that the responsible parties mark their underground facilities In the event the Contractor encounters underground facilities not previously identified, the Contractor shall stop work at that location and notify the Department.

Contacts for known facility owners in the corridor include:

a. CFRC Communications fiber optic cable, Location Services

Contact Bombardier Mass Transit Company Telephone No. (407) 732-6735

b. CFRC Signal Facilities, Location Services Contact Herzog Technologies, Inc.

Telephone No. (407) 562-4702

Herzog Technologies charges a fee for this service. The Department will pay for the cost of locating the Underground Facilities. It is still the Contractors responsibility to contact and schedule these services.

Please do not include the cost of locating Underground Facilities in your Price Proposal.

Before excavating, boring holes or driving posts into the ground, the Contractor shall be responsible for contacting all utility owners in the corridor within the project limits to request that the responsible parties

A-2 mark their underground utilities. In the event the Contractor encounters underground utilities not previously identified, the Contractor shall stop work at that location and notify the Department.

c. Sunshine One Call of Florida, Utility Location Services Call for Locates 811 or (800) 432-4770

5. Requirements for Working Within the CFRC: All workers who enter the CFRC (Contractor’s employees, subcontractor’s employees) must comply with the following requirements:

a. Every worker must possess a current CFRC Roadway Worker Protection (RWP) certification. The Contractor shall obtain Roadway Worker Protection Services training from Bombardier Mass Transit Company under the Departments Operations and Maintenance contract. Training shall be provided at a rate of $100.00 per person. To schedule RWP training, contact

Bombardier Mass Transit Company Mass Transit Company Telephone 407-732-6708 or 407-504-8978 Email to: Natasha.Furniss@Rail.Bombardier.com

All workers shall have the Contractor’s background investigation completed and have met the Contractor’s minimum requirements. The Department has the option to request documentation from the Contractor of the background investigations completed for all employees working in the CFRC right-of-way.

b. On-Track Protection Services The Contractor shall be responsible for scheduling the requisite on-track Protection Services at all times when workers are located within the CFRC Right-of-Way. In no event shall the Contractor be within the CFRC right-of-way without on-track protection. The Contractor shall not be authorized to enter the CFRC (railroad right of way) until on-track protection has been established, the Roadway Worker in Charge (RWIC) is on site and the RWIC has authorized workers to enter the CFRC, under the supervision of the RWIC.

The Contractor is required to schedule on-track protection services a minimum of two weeks in advance of the planned work. On-track protection services are to be provided by a separate contractor to the Department. On-track protection services shall be scheduled through:

Bombardier Mass Transit Company Telephone 407-732-6708 or 407-504-8978 Email to: Natasha.Furniss@Rail.Bombardier.com

On-Track Protection Services shall be provided by Bombardier Mass Transit Company in accordance with the Departments Operations and Maintenance contract at a daily rate of $970.00 for up to 10 hours per day, and an overtime rate of $97.00 per hour for each additional hour over the ten-hour daily unit rate. The Contractor shall pay Bombardier Mass Transit Company directly for all On-Track Protection Services.

c. Department CEI on-site The Contractor shall not be within the CFRC right-of-way without the Department’s Construction Engineering and Inspection (CEI) consultant staff at the work site. The Contractor is required to schedule the CEI services a minimum of two weeks in advance of the planned work. The

A-3 p

Contractor shall coordinate with the Department for these services. CEI services are to be provided under a separate contract with the Department at the Department’s expense.

d. Prior to Notice to Proceed, the Department shall hold a Pre-construction meeting with the Contractor to review the work, schedule, contract, invoicing requirements, and coordination procedures between the Contractor, CFRC, and the Department and its CEI consultant.

6. Warranty Any item or material furnished and/or installed under this contract found to be defective within one year after final acceptance, shall be repaired, remedied or replaced by the Contractor free of all charges to the Department, including transportation, removal of defective material, and installation of new material.

FENCE AND SIGN LOCATIONS

Fencing and No Trespassing Signs Installation locations are provided in Exhibit F, “Fencing Plan”.

Scope of Services– Installation of Fencing and No Trespassing Signs and Posts for Segments 1 through 6 and 8 through 28 as shown in Exhibit F in Seminole and Orange Counties FIN. No. 412994-4-52-18, IOS Fencing.

1. Contractor shall furnish all labor, tools, materials, equipment, facilities and transportation required to perform the services described in this Scope of Services except for the 61 No Trespassing signs, posts, and hardware.

2. Contractor shall furnish and install all necessary fence components, including, but not limited to, gates, fence posts, concrete for posts, fence fabric and hardware as specified for FDOT Type B, galvanized chain link fence, six (6) feet in height.

3. Contractor shall furnish and install FDOT Type B galvanized chain link fence, six (6) feet in height at the twenty-seven (27) locations cited above. Approximately 23,027 Linear feet.

4. Contractor shall furnish and install the following galvanized chain link gates:

a. In fence segment 14, Contractor shall furnish and install all necessary components for one (1) single swing gate with a five (5) foot wide opening.

b. In fence segment 16, Contractor shall furnish and install all necessary components for one (1) single swing gate with a five (5) foot wide opening.

5. Contractor shall provide all labor, tools, equipment, facilities and transportation necessary for installation of the No Trespassing signs and osts at the locations identified in Exhibit F. Contractor shall place the bottom 24” to 30” of the U-channel post into the ground. Contractor is not required to place concrete in the sign post holes or around the base of the sign posts.

6. Contractor shall place the top of each 18” high by 24” wide No Trespassing sign 2” to 4” above the top of the U-channel post.

POTENTIAL ADDITIONAL SERVICES

At the Department’s request a Supplemental Agreement may be issued for additional fencing, gates, signs and installation as required by the CFRC.

A-4

State of Florida

Department of Transportation

FDOT Standard Specifications for Road and Bridge

Construction, July 2019

For

District Five Central Florida Rail Corridor (CFRC) SunRail Corridor Fencing and Sign Installation

Financial Projects Number(s): 412994-4-52-18

The FDOT Standard Specifications for Road and Bridge Construction, July 2019 can be found at the following link:

https://fdotwww.blob.core.windows.net/sitefinity/docs/default-source/programmanagement/implemented/specbooks/july-2019/719ebook.pdf?sfvrsn=bf366a48_2

FDOT STANDARD SPECS-ROAD & BRIDGE CONSTRUCTION PAGE 1 OF 1

A-1

STANDARD CONTRACT TERMS AND CONDITIONS

The following form PUR 1000 is a standard contract terms form that the Department includes in all procurements, except that paragraphs 5, 11, 19, 20, 22, 23, 25, 26, 27, 29, 31, 35, 40, 41, and 42 do not apply to this Request for Proposal. Deletion of these paragraphs shall not be deemed to be deletion of content contained elsewhere and the substance of these excepted paragraphs may be addressed in other locations in the procurement documents. That substance located elsewhere continues to apply regardless of this exception paragraph.

State of Florida

PUR 1000

Contents

1. Definitions.

2. Purchase Orders.

3. Product Version.

4. Price Changes Applicable only to Term Contracts.

5. Additional Quantities.

6. Packaging.

7. Inspection at Contractor’s Site.

8. Safety Standards.

9. Americans with Disabilities Act.

10. Literature.

11. Transportation and Delivery.

12. Installation.

13. Risk of Loss.

14. Transaction Fee.

15. Invoicing and Payment.

16. Taxes.

17. Governmental Restrictions.

18. Lobbying and Integrity.

19. Indemnification.

20. Limitation of Liability.

21. Suspension of Work.

22. Termination for Convenience.

23. Termination for Cause.

24. Force Majeure, Notice of Delay, and No Damages for Delay.

25. Changes.

26. Renewal.

27. Purchase Order Duration.

28. Advertising.

29. Assignment.

30. Antitrust Assignment

31. Dispute Resolution.

32. Employees, Subcontractors, and Agents.

33. Security and Confidentiality.

34. Contractor Employees, Subcontractors, and Other Agents.

35. Insurance Requirements.

36. Warranty of Authority.

37. Warranty of Ability to Perform.

38. Notices.

39. Leases and Installment Purchases.

40. Prison Rehabilitative Industries and Diversified Enterprises, Inc. (PRIDE).

41. Products Available from the Blind or Other Handicapped.

42. Modification of Terms.

43. Cooperative Purchasing.

44. Waiver.

45. Annual Appropriations.

46. Execution in Counterparts.

47. Severability.

A-2

1. Definitions. The definitions contained in s. 60A-1.001, F.A.C. shall apply to this agreement.

The following additional terms are also defined:

(a) “Contract” means the legally enforceable agreement that results from a successful solicitation.

The parties to the Contract will be the Customer and Contractor.

(b) “Customer” means the State agency or other entity identified in a contract as the party to receive commodities or contractual services pursuant to a contract or that orders commodities or contractual services via purchase order or other contractual instrument from the Contractor under the Contract. The “Customer” may also be the “Buyer” as defined in the PUR 1001 if it meets the definition of both terms.

(c) “Product” means any deliverable under the Contract, which may include commodities, services, technology or software.

(d) “Purchase order” means the form or format a Customer uses to make a purchase under the Contract (e.g., a formal written purchase order, electronic purchase order, procurement card, contract or other authorized means).

2. Purchase Orders. In contracts where commodities or services are ordered by the Customer via purchase order, Contractor shall not deliver or furnish products until a Customer transmits a purchase order. All purchase orders shall bear the Contract or solicitation number, shall be placed by the Customer directly with the Contractor, and shall be deemed to incorporate by reference the Contract and solicitation terms and conditions. Any discrepancy between the Contract terms and the terms stated on the Contractor’s order form, confirmation, or acknowledgement shall be resolved in favor of terms most favorable to the Customer. A purchase order for services within the ambit of section 287.058(1) of the Florida Statutes shall be deemed to incorporate by reference the requirements of subparagraphs (a) through (f) thereof. Customers shall designate a contract manager and a contract administrator as required by subsections 287.057(14) and (15) of the Florida Statutes.

3. Product Version. Purchase orders shall be deemed to reference a manufacturer’s most recently release model or version of the product at the time of the order, unless the Customer specifically requests in writing an earlier model or version and the contractor is willing to provide such model or version.

4. Price Changes Applicable only to Term Contracts. If this is a term contract for commodities or services, the following provisions apply.

(a) Quantity Discounts. Contractors are urged to offer additional discounts for one time delivery of large single orders. Customers should seek to negotiate additional price concessions on quantity purchases of any products offered under the Contract. State Customers shall document their files accordingly.

(b) Best Pricing Offer. During the Contract term, if the Customer becomes aware of better pricing offered by the Contractor for substantially the same or a smaller quantity of a product outside the Contract, but upon the same or similar terms of the Contract, then at the discretion of the Customer the price under the Contract shall be immediately reduced to the lower price.

(c) Sales Promotions. In addition to decreasing prices for the balance of the Contract term due to a change in market conditions, a Contractor may conduct sales promotions involving price reductions for a specified lesser period. A Contractor shall submit to the Contract Specialist documentation identifying the proposed (1) starting and ending dates of the promotion, (2)

A-3 products involved, and (3) promotional prices compared to then-authorized prices. Promotional prices shall be available to all Customers. Upon approval, the Contractor shall provide conspicuous notice of the promotion.

(d) Trade-In. Customers may trade-in equipment when making purchases from the Contract. A trade-in shall be negotiated between the Customer and the Contractor. Customers are obligated to actively seek current fair market value when trading equipment, and to keep accurate records of the process. For State agencies, it may be necessary to provide documentation to the Department of Financial Services and to the agency property custodian pursuant to Chapter 273, F.S.

(e) Equitable Adjustment. The Customer may, in its sole discretion, make an equitable adjustment in the Contract terms or pricing if pricing or availability of supply is affected by extreme and unforeseen volatility in the marketplace, that is, by circumstances that satisfy all the following criteria: (1) the volatility is due to causes wholly beyond the Contractor’s control, (2) the volatility affects the marketplace or industry, not just the particular Contract source of supply, (3) the effect on pricing or availability of supply is substantial, and (4) the volatility so affects the Contractor that continued performance of the Contract would result in a substantial loss.

5. Additional Quantities. For a period not exceeding ninety (90) days from the date of solicitation award, the Customer reserves the right to acquire additional quantities up to the amount shown on the solicitation but not to exceed the threshold for Category Two at the prices submitted in the response to the solicitation.

6. Packaging. Tangible product shall be securely and properly packed for shipment, storage, and stocking in appropriate, clearly labeled, shipping containers and according to accepted commercial practice, without extra charge for packing materials, cases, or other types of containers. All containers and packaging shall become and remain Customer’s property.

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

8. Safety Standards. 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.

9. Americans with Disabilities Act. Contractors should identify any products that may be used or adapted for use by visually, hearing, or other physically impaired individuals.

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

11. Transportation and Delivery. Prices shall include all charges for packing, handling, freight, distribution, and inside delivery. Transportation of goods shall be FOB Destination to any point within thirty (30) days after the Customer places an Order. A Contractor, within five (5) days after receiving a purchase order, shall notify the Customer of any potential delivery delays. Evidence

A-4 of inability or intentional delays shall be cause for Contract cancellation and Contractor suspension.

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

13. Risk of Loss. Matters of inspection and acceptance are addressed in s. 215.422, F.S. Until acceptance, risk of loss or damage shall remain with the Contractor. The Contractor shall be responsible for filing, processing, and collecting all damage claims. To assist the Contractor with damage claims, the Customer shall: record any evidence of visible damage on all copies of the delivering carrier’s Bill of Lading; report damages to the carrier and the Contractor; and provide the Contractor with a copy of the carrier’s Bill of Lading and damage inspection report. When a Customer rejects a product, Contractor shall remove it from the premises within ten days after notification or rejection. Upon rejection notification, the risk of loss of rejected or non-conforming product shall remain with the Contractor. Rejected product not removed by the Contractor within ten days shall be deemed abandoned by the Contractor, and the Customer shall have the right to dispose of it as its own property. Contractor shall reimburse the Customer for costs and expenses incurred in storing or effecting removal or disposition of rejected product.

14. Transaction Fee. The State of Florida has instituted MyFloridaMarketPlace, a statewide eProcurement System (“System”). Pursuant to section 287.057(22), Florida Statutes, all payments shall be assessed a Transaction Fee of one percent (1.0%), which the Contractor shall pay to the State, unless exempt pursuant to 60A-1.032, F.A.C.

For payments within the State accounting system (FLAIR or its successor), the Transaction Fee shall, when possible, be automatically deducted from payments to the Contractor. If automatic deduction is not possible, the Contractor shall pay the Transaction Fee pursuant to Rule 60A- 1.031(2), F.A.C. By submission of these reports and corresponding payments, Contractor certifies their correctness. All such reports and payments shall be subject to audit by the State or its designee.

Contractor shall receive a credit for any Transaction Fee paid by the Contractor for the purchase 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 the agreement.

Failure to comply with these requirements shall constitute grounds for declaring the Contractor in default and recovering reprocurement costs from the Contractor in addition to all outstanding fees.

CONTRACTORS DELINQUENT IN PAYING TRANSACTION FEES MAY BE SUBJECT TO

BEING REMOVED FROM THE DEPARTMENT OF MANAGEMENT SERVICES’ VENDOR LIST

AS PROVIDED IN RULE 60A-1.006, F.A.C.

15. Invoicing and Payment. Invoices shall contain the Contract number, purchase order number if applicable, and the appropriate vendor identification number. The State may require any other

A-5 information from the Contractor that the State deems necessary to verify any purchase order placed under the Contract.

At the State's option, Contractors may be required to invoice electronically pursuant to guidelines of the Department of Management Services. Current guidelines require that Contractor supply electronic invoices in lieu of paper-based invoices for those transactions processed through the system. Electronic invoices shall be submitted to the Customer through the Ariba Supplier Network (ASN) in one of the following mechanisms – EDI 810, cXML, or web-based invoice entry within the ASN.

Payment shall be made in accordance with sections 215.422 and 287.0585 of the Florida Statutes, which govern time limits for payment of invoices. Invoices that must be returned to a Contractor due to preparation errors will result in a delay in payment. The Customer is responsible for all payments under the Contract. A Customer’s failure to pay, or delay in payment, shall not constitute a breach of the Contract and shall not relieve the Contractor of its obligations to the Department or to other Customers. A vendor ombudsman has been established within the Department of Financial Services. The duties of this individual include acting as an advocate for vendors who may be experiencing problems in obtaining timely payment(s) from a state agency.

The Vendor Ombudsman may be contacted at (850) 413-5516 or by calling the Division of Consumer Services at 1-877-693-5236.

16. Taxes. 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. Any exceptions to this paragraph shall be explicitly noted by the Customer in the special contract conditions section of the solicitation or in the Contract or purchase order.

17. Governmental Restrictions. 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, the Contractor shall immediately notify the Customer in writing, indicating the specific restriction. The Customer reserves the right and the complete discretion to accept any such alteration or to cancel the Contract at no further expense to the Customer.

18. Lobbying and Integrity. Customers shall ensure compliance with Section 11.062, FS and Section 216.347, FS.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.

Upon request of the Customer’s Inspector General, or 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 the Contract. The Contractor shall retain such records for the longer of (1) three years after the expiration of the Contract or (2) the period required by the General Records Schedules maintained by the Florida Department of State (available at:

http://dlis.dos.state.fl.us/barm/genschedules/gensched.htm). 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

A-6 documentary fees. The Contractor shall not be responsible for any costs of investigations that do not result in the Contractor’s suspension or debarment.

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

Further, the Contractor shall fully indemnify, defend, and hold harmless the State and Customers 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 a Customer’s misuse or modification of Contractor’s products or a Customer’s operation or use of Contractor’s products in a manner not contemplated by the Contract or the purchase order. 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 Customer 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 the Customer the right to continue using the product, the Contractor shall remove the product and refund the Customer the amounts paid in excess of a reasonable rental for past use. The customer shall not be liable for any royalties.

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

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

Unless otherwise specifically enumerated in the Contract or in the 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 Customer 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.

21. Suspension of Work. The Customer may in its sole discretion suspend any or all activities under the Contract or purchase order, at any time, when in the best interests of the State to do

so. The Customer shall provide the Contractor written notice outlining the particulars of…