Natural Gas Supply_DMS_PESCO_ Executed Contract.pdf

State Term Contract

No. 83101601-19-1

For

Natural Gas Supply

This Contract is between the State of Florida, Department of Management Services (Department), an agency of the State of Florida and Peninsula Energy Services Company, Inc. (Contractor), collectively referred to herein as the “Parties.”

Accordingly, the Parties agree as follows:

I. Initial Contract Term.

The Initial Contract Term shall be for three (3) years. The Initial Contract Term shall begin on

July 1, 2019. The Contract shall expire on June 30, 2022, unless terminated earlier in accordance with the Special Contract Conditions.

II. Renewal Term.

Upon mutual written agreement, the Parties may renew this Contract, in whole or in part, for a Renewal Term not to exceed the Initial Contract Term, pursuant to the Special Contract

Conditions.

III. Contract.

As used in this document, “Contract” (whether or not capitalized) shall, unless the context requires otherwise, include this document and all incorporated Exhibits, which set forth the entire understanding of the Parties and supersedes all prior agreements. All modifications to this Contract must be in writing and signed by all Parties.

All Attachments listed below are incorporated in their entirety into, and form part of this

Contract. The Contract Attachments shall have priority in the order listed:

a) Scope of Work, Attachment A

b) Markup Sheet, Attachment B

c) Special Contract Conditions, Attachment C

d) Addenda to Solicitation, if issued (in reverse order of issuance)

e) ITB and ITB attachments

State Term Contract No. 83101601-19-1 State Term Contract No. Insert Contract Number For For

Natural Gas Supply Insert Contract Name

IV. Contract Management.

Department’s Contract Manager:

Frank Miller

Division of State Purchasing

Florida Department of Management Services

4050 Esplanade Way, Suite 360

Tallahassee, Florida 32399-0950

Telephone: (850) 488-8855

Email: frank.miller2@dms.myflorida.com

Contractor’s Contract Manager:

Fred Schur

PESCO

331 W. Central Ave, Suite 200

Winter Haven, Florida 33880

Telephone: 813-917-9280

Email: Fschur@chpk.com

IN WITNESS THEREOF, the Parties hereto have caused this Contract, to be executed by their undersigned officials as duly authorized. This Contract is not valid and binding until signed and dated by the Parties.

PENINSULA ENERGY SERVICES STATE OF FLORIDA,

COMPANY, INC. DEPARTMENT OF

MANAGEMENT SERVICES

Bill Hancock, Associate VP Rosalyn Ingram, Director of State

Purchasing and Chief Procurement Officer

Date: Date:

mailto:frank.miller2@dms.myflorida.com mailto:Fschur@chpk.com

STC# 83101601-19-1

Attachment A Scope of Work

A. General Statement

1.0 Purpose

The State of Florida Department of Management Services’ Division of State Purchasing (Department) is issuing this Invitation to Bid (ITB) to establish a state term contract for purchase and delivery of Natural Gas supply. Customers for this contract will include state agencies and eligible users.

2.0 Commodity Code List

United Nations Standard Products and Services Code Commodity

83101601 Supply of Natural Gas

B. Definitions

1.0 Baseload – The volume of Natural Gas requested for purchase and communicated by Shipper or Shipper’s agent at least six (6) business days prior to the start of each month, a portion of which may include Shipper’s fixed price volumes for such month.

This volume will be divided equally among all the days in a month.

2.0 British thermal unit (Btu or BTU) is a traditional unit of heat; it is defined as the amount of heat required to raise the temperature of one pound of water by one-degree Fahrenheit.

3.0 Contractor – The successful vendor who is awarded a contract following this solicitation. Contractor is also known as the “Shipper”.

4.0 Contract Manager – A person designated by the Department of Management

Services (the Department) to be responsible for managing the performance of a contract.

5.0 Customer - An ordering entity including state agencies and other eligible users, as defined in Rule 60A-1.001, Florida Administrative Code.

6.0 Customer’s location – The site where the Contractor delivers the Natural Gas to the Customer.

7.0 Dekatherm (DTH) – A unit of energy used primarily to measure Natural Gas; equal to 10 therms or one million British thermal units (MMBtu).

8.0 Direct connection – The point in which Natural Gas is delivered directly to the

Customers from the interstate pipeline (direct connection) or the point in which the

Natural Gas is delivered from the interstate pipeline to the Local Distribution

Company for transportation to the customer’s location.

9.0 Eligible User (EU) - A governmental entity defined in Rule 60A-1.001, Florida

Administrative Code.

10.0 Firm Markup – The delivery adder that may include fuel and other delivery charges associated with the acquisition of Natural Gas. The Firm Markup as shown on the

Markup Sheet (Attachment J) shall not change during the term of the contract.

11.0 Federal Energy Regulatory Commission (FERC) – Federal agency that monitors and establishes index prices for Natural Gas.

12.0 Florida Gas Transmission Company (FGT) – The Company that uses a Natural

Gas interstate pipeline network to transport Natural Gas to Florida.

13.0 Imbalance – The difference between Customer requested volumes of Natural Gas and volumes of Natural Gas consumed.

14.0 In-Day Gas – Includes any volume of Natural Gas requested between 9:30 am EST, and 4:00 pm EST on the business day of Natural Gas flow. Availability of the purchase or sale of In-Day Gas is not assured and must be confirmed before availability is guaranteed.

15.0 Local Distribution Company (LDC) – A state regulated Natural Gas utility which owns the Natural Gas lines and equipment necessary to deliver Natural Gas to the consumer.

16.0 MMBtu – One million British thermal units; see 1.0 British thermal unit (Btu or BTU).

17.0 Natural Gas – A fossil energy source that formed deep beneath the earth’s surface.

Natural gas is made up of a mixture of four naturally occurring gases, all of which have different molecular structures. This mixture consists primarily of methane, which makes up 70-90% of natural gas along with ethane, butane, and propane.

18.0 Nomination – A request for a physical quantity of Natural Gas under a specific purchase, sale or transportation agreement or for all contracts at a specific point.

19.0 Swing Natural Gas – Volume of Natural Gas above the Baseload volume of Natural

Gas on any day that Customer(s) request delivery of by 9:30 am EST on the business day immediately the day before the Natural Gas is to flow.

20.0 Therm – A unit of heat equal to 100,000 BTU.

21.0 Turnback Natural Gas – Volume of Natural Gas that the Customer elects to turn back to the Contractor.

C. Natural Gas Commodity Specifications

1.0 Quantity, Quality, and Regulatory Compliance

1.1 The measurement, testing, heating value, delivery pressure, and quality of

Natural Gas delivered shall be in accordance with terms and conditions of the delivery specifications of the applicable tariffs and in accordance with the

Department’s FTS-1 and FTS-2 Service Agreements with FGT, attached hereto in the Appendix to this Attachment and incorporated as if fully set forth herein.

1.2 The Contractor must have a minimum current capacity of 2,100 MMBtu of

Natural Gas daily made available during the initial and, if applicable, renewal terms. Contractor will make this volume available on a firm basis pursuant to the Department’s FTS-1 and FTS-2 Service Agreements with FGT.

1.3 The Contractor shall file and pay for any filings covering this proposed Contract with the applicable Federal, State, or local regulatory authority, and shall prosecute diligently all applications, notices, or reports required to be filed on behalf of the State and itself to comply with all legal requirements to purchase and deliver Natural Gas to all Customers that request Natural Gas during the contract term.

2.0 Pricing elements

2.1 Firm Markup

The firm markup price is defined as a price per DTH, consisting of all charges necessary for the Contractor to fully complete and invoice the business transaction, inclusive of delivery, profit, and any other fees and charges. The

Firm Markup as shown on the Markup Sheet (Attachment J) shall not change during the term of this contract.

2.2 Cost of Natural Gas

The cost of Natural Gas to be paid by the Customer for each month in which deliveries occur shall be fixed by the Index Price published in the first-of-each-month issue of the “Inside FERC’s Natural Gas Market Report – Prices of Spot

Natural Gas Delivered to Pipelines”, under the applicable FGT, Zones 1, 2, or 3 depending on the Customer’s location.

2.3 Unit of Measurement at Metering Base

The unit of measurement for billing purposes shall be per MMbtu for each

Customer as provided to the Contractor by the LDCs or the Transportation

Pipelines.

2.4 Fuel Fees, Usage Fees, Taxes, and other costs

The fuel fees, usage fees, permitted taxes, and any other costs incurred by the

Contractor will be passed through without markup or adjustment to the

Customer.

2.5 Conversion Fees

Conversion Fees are the costs associated with converting the existing facility from other sources of energy to Natural Gas. These charges may include installation of pipe or other plumbing fixtures to facilitate the delivery of Natural

Gas to the Customer’s final location. The amount and extent of these charges shall be determined through mutual agreement of the Customer and the

Contractor at the time the individual Customer order is placed and shall not be included in the Firm Markup.

2.6 Balancing of Quantities

The Customer shall be allowed a ±10% imbalance tolerance. All volumes consumed with a ±10% of volumes requested by Purchase Order will be billed at the Contract price. Customer(s) will be responsible to pay for all imbalance costs if their consumption falls outside of the ±10% imbalance tolerance between requested and consumed volumes. Contractor will reimburse

Customer(s) for any imbalance costs and/or penalties that may be charged to

Customer(s) due solely to Contractor’s failure to schedule volumes requested by Purchase Order.

The Contractor shall be responsible for and shall submit nominations for

Customer(s) Natural Gas requirements directly to FGT, based upon monthly or daily volume specified by Customer(s).

The Customer may request that Natural Gas be purchased or sold on

Customer(s) behalf, in order to avoid imbalance and/or penalties. Contractor shall use its best efforts to purchase or sell Natural Gas on Customer(s) behalf.

Any In-Day Natural Gas purchased or sold on behalf of Customer(s) shall be purchased or sold at the then current market price.

2.7 Credit for Turnback Natural Gas

For Turnback Natural Gas that the Customer elects to turn back by the deadline for Swing Gas for the same day of flow, the amount credited to

Customer’s account shall be lowest of the published Natural Gas Daily

Midpoint Index prices for FGT Zones 1, 2 or 3 for the day the Natural Gas is to be turned back, reduced by an additional $0.5 per MMbtu. This amount is then increased by the pipeline fuel percentage, and any applicable Transporter’s usage. (Refer to the FGT) https://fgttransfer.energytransfer.com/ipost/FGT/tariff/entire-tariff

For Turnback Natural Gas that Customer notifies the Contractor after the deadline (for Swing Natural Gas for the same day of flow) the amount credited to Customer’s account shall be either (i) the daily Market Price reduced by an additional $0.5 per MMbtu for the day the Natural Gas is to be turned back, or

(ii) shall be included on the Customer’s monthly imbalance. Customer must choose either of these options at the time Turnback Natural Gas is requested.

3.0 Delivery to the Customer

3.1 The Contractor shall be responsible for the scheduling and delivery of Natural

Gas, including completing all arrangements for transportation services for delivery of the Natural Gas to the Customer’s Location. Delivery shall be F.O.B.

Destination, FREIGHT INCLUDED and unloaded to the Customer’s Location.

3.2 The Contractor warrants that it has or will secure good and marketable title to the Natural Gas being provided under this Contract, that it has or will have the https://fgttransfer.energytransfer.com/ipost/FGT/tariff/entire-tariff right without restriction to sell such Natural Gas, and that such Natural Gas is free from liens and adverse claims of any kind.

3.3 The Contractor shall be in exclusive control and possession of the Natural Gas prior to the delivery thereof to the Customer’s Location. The Department or the

Customer will not be responsible for damages occurring during control and possession by the Contractor. The Contractor will be responsible for making any and all claims against carriers for missing or damaged items.

3.4 The Contractor shall serve as the Department’s designee to perform the duties of Invoicing/Payment Obligations, Nominations, Confirmations, and Imbalance

Resolutions in accordance with the Terms and Conditions. To fulfill this duty, the Contractor shall sign documents titled “Designee Request Form” where

Department as shipper under FTS-1 and FTS-2 Service Agreements assigns its responsibilities for the shipping of Natural Gas to the Contractor. This Form is found at http://fgttransfer.energytransfer.com/ipost/FGT/posted-documents/show-document/41277.

4.0 Invoice Requirements

4.1 The Contractor shall provide and submit timely, monthly invoices to the

Customer listed on each Purchase Order issued pursuant to this Contract.

4.2 The Contractor shall invoice based on volumes ordered by the Customer and delivered. Any imbalances shall be reconciled monthly (cashed out) and applied to the Customer(s) invoice according to the rules shown in the applicable FGT Tariff.

4.3 At any time during the Contract term, the Department may conduct a spot-check. Upon Department’s request, the Contractor shall supply to the

Department all the data, calculations, and documents used in computing all costs associated with the supply and delivery of Natural Gas for any particular

Customer invoice.

4.4 The Contractor shall attach with each Customer invoice a copy of the Index

Price referenced in Section 2.2 of this ITB.

4.5 At a minimum the monthly invoices are to provide the following information:

4.5.1 Customer’s Name and Location

4.5.2 Invoice Number, Invoice Date, Meter number, Ship To, Remit To, Bill

To, Account number, PO number

4.5.3 FERC index price

4.5.4 FGT Fuel Fee

4.5.5 FGT Usage Fee

4.5.6 Firm Markup Price

4.5.7 Total Unit Price (per DTH)

http://fgttransfer.energytransfer.com/ipost/FGT/posted-documents/show-document/41277 http://fgttransfer.energytransfer.com/ipost/FGT/posted-documents/show-document/41277

4.5.8 DTH Supplied

4.5.9 LDC Passthrough Charge

4.5.10 Any and all other costs not otherwise enumerated in this subsection with an explanation of the costs

4.5.11 Total invoice price

D. Reporting

1.0 Contract Reporting: The Contractor shall report information on orders received from all customers associated with this contract. DMS will not process any request, while the Contractor is not in compliance with all of the contract’s term and conditions to include Contract Quarterly Sales Reports, MFMP Transaction Fee Reports, or any other documentation, to include fees / monies.

The Contractor shall submit reports in accordance with the following schedule:

Report Period Covered Due dates

MFMP Transaction Report Calendar month 15 calendar days of the month following the receipt of payment for the Contractor’s good or services.

Contract Quarterly Sales Report State’s Fiscal Quarter

10 calendar days after close of the period

Preferred Pricing Affidavit Annual Contract anniversary date

Proof of Insurance Annual Upon policy renewal

2.0 MFMP Transaction Fee Report: The Contractor is required to submit monthly

Transaction Fee Reports in the Department’s electronic format. Reports are due fifteen calendar days after the end of the reporting period. For information on how to submit Transaction Fee Reports online, please reference the detailed fee reporting instructions and Contractor training presentations available online at the Transaction

Fee Reporting and Contractor Training subsections under Contractors on the MFMP website: MFMP Transaction Fee and Reporting. Assistance is also available with the

Transaction Fee Reporting System from the MFMP Customer Service Desk by email at feeprocessing@myfloridamarketplace.com or telephone 866-FLA-EPRO (866-

352-3776) from 8:00 a.m. to 6:00 p.m. Eastern Time.

3.0 Contract Quarterly Report: The Contractor agrees to submit a Quarterly Sales

Report to the Department’s Contract Manager within 10 calendar days after the close of each State Fiscal quarter (September 30, December 31, March 31, and June 30).

Quarterly Reporting periods should coincide with the contract term and should begin the quarter following contract execution. Reports must be submitted in MS Excel format. The report will include all sales (orders) from State Agencies and EUs mailto:feeprocessing@myfloridamarketplace.com received (associated with this contract) during the period. Initiation and submission of the Quarterly Report is the responsibility of the Contractor without prompting or notification from the Department’s Contract Manager. If no orders are received during the period, the Contractor must submit a report stating that there was no activity. If the Contractor fails to submit two consecutive quarterly sales reports, the

Contract may be terminated for convenience or the Department may choose to not renew the Contract.

The report shall include but is not limited to:

Customer (Ordering Entity)

Customer Type

Dates delivered

Unit of Measure

UNSPSC

Description of Commodity or Service

Actual Savings Amount

Total Price

4.0 Diversity Reporting: The Contractor shall report to each Customer (ordering entity), spend with certified and other minority business enterprises. These reports shall include the period covered, the name, minority code and Federal Employer

Identification Number of each minority business utilized during the period, commodities and services provided by the minority business enterprise, and the amount paid to each minority business on behalf of each purchasing agency ordering under the terms of this Contract.

5.0 Ad-hoc Report: The Contractor is required to submit ad hoc reports within the specified amount of time as requested by the Department.

In addition, the Department may require additional Contract sales information such as copies of purchase orders, or ad hoc sales reports. The Contractor shall submit these specific ad hoc requests within the specified amount of time as requested by the Department.

6.0 Business Review Meetings: Each quarter the Department may request, and the

Contractor must participate in a business review meeting. The business review meeting may include, but is not limited, the following:

6.1.1 A review of the Contractor’s successful completion of deliverables;

6.1.2 A review of the Contractor’s performance;

6.1.3 A review of the Contractor’s required reports;

6.1.4 A discussion of any elevated Customer issues; and

6.1.5 A discussion of continuous improvement ideas that may help lower total costs and/or improve business efficiencies.

E. Financial Consequences: The Department will review Contractor’s performance and assess financial consequences for failure to meet the performance metrics in the table described below.

Performance Metrics

Description Frequency

Financial Consequences for Non- Performance Per

Day Late

Submission of complete and accurate Contract Quarterly Sales Report

Submit complete and accurate Quarterly Sales Report 10 calendar days after close of the period

Each quarter $250

Submission of complete and accurate Contract Monthly Transaction Fee Report

Submit complete and accurate Monthly Transaction Fee Report 15 calendar days after close of the period

Each month $100

Appendix

Full-text FTS-1 Service Agreement

FTS-1 K 5085

Extension 09-27-2012pdf.pdf

Full-text FTS-2 Service Agreement

FTS-2 K 5626

Extension 05-14-2014.pdf

Attachment C

Special Contract Conditions

Table of Contents

SECTION 1. DEFINITION

SECTION 2. CONTRACT TERM AND TERMINATION

SECTION 3. PAYMENT AND FEES

SECTION 4. CONTRACT MANAGEMENT

SECTION 5. COMPLIANCE WITH LAWS

SECTION 6. MISCELLANEOUS

SECTION 7. WORKERS’ COMPENSATION AND GENERAL LIABILITY INSURANCE,

AND INDEMNIFICATION

SECTION 8. PUBLIC RECORDS, TRADE SECRETS, DOCUMENT MANAGEMENT

AND INTELLECTUAL PROPERTY

SECTION 9. DATA SECURITY AND SERVICES

SECTION 10. GRATUITIES, LOBBYING, AND COMMUNICATIONS

SECTION 11. CONTRACT MONITORING

SECTION 12. CONTRACT AUDITS

SECTION 13. BACKGROUND SCREENING AND SECURITY

SECTION 14. INFORMATION TECHNOLOGY

In accordance with Rule 60A-1.002(5), F.A.C., Form PUR 1000 is included herein by reference and is superseded in its entirety by these Special Contract Conditions.

Invitation to Bid ITB No. 19-83101601-T

SECTION 1. DEFINITION.

The following definition applies in addition to the definitions in Chapter 287, Florida Statutes, (F.S.) and rule Chapter 60A-1, Florida Administrative Code (F.A.C.):

1.1 Customer.

The agency or eligible user that purchases commodities or contractual services pursuant to the Contract.

SECTION 2. CONTRACT TERM AND TERMINATION.

2.1 Initial Term.

The initial term will begin on the date set forth in the Contract documents or on the date the Contract is signed by all Parties, whichever is later.

2.2 Renewal.

Upon written agreement, the Department and the Contractor may renew the Contract in whole or in part only as set forth in the Contract documents, and in accordance with section 287.057(13), F.S.

2.3 Suspension of Work and Termination.

2.3.1 Suspension of Work.

The Department may, at its sole discretion, suspend any or all activities under the Contract, at any time, when it is in the best interest of the State of Florida to do so. The Customer may suspend a resulting contract or purchase order, at any time, when in the best interest of the Customer to do so. The Department or Customer will provide the Contractor written notice outlining the particulars of suspension. Examples of a reason for suspension include, but are not limited to, budgetary constraints, declaration of emergency, or other such circumstances. After receiving a suspension notice, the Contractor must comply with the notice and will cease the activities associated with any active or new purchase orders. Within ninety (90) calendar days, or any longer period agreed to by the Contractor, the Department or Customer will either (1) issue a notice authorizing resumption of work, at which time activity will resume, or (2) terminate the Contract or purchase order. Suspension of work will not entitle the Contractor to any additional compensation.

2.3.2 Termination for Convenience.

The Contract may be terminated by the Department in whole or in part at any time, in the best interest of the State of Florida. If the Contract is terminated before performance is completed, the Contractor will be paid only for that work satisfactorily performed for which costs can be substantiated. Such payment, however, may not exceed an amount which is the same percentage of the Contract price as the amount of work satisfactorily performed. All work in progress will become the property of the Customer and will be turned over promptly by the Contractor.

2.3.3 Termination for Cause.

If the performance of the Contractor is not in compliance with the Contract requirements or the Contractor has defaulted, the Department may: (a) immediately terminate the

Contract; (b) notify the Contractor of the noncompliance or default and require correction within a specified time, otherwise the Contract will terminate at the end of such time; or

(c) take other action deemed appropriate by the Department.

SECTION 3. PAYMENT AND FEES.

3.1 Pricing.

The Contractor will not exceed the pricing set forth in the Contract documents.

3.2 Price Decreases.

The following price decrease terms will apply to the Contract:

(a) Preferred Pricing. Consistent with the goals of section 216.0113, F.S., Contractor acknowledges and recognizes that the Department wants to take advantage of any improvements in pricing over the course of the Contract period. To that end, the pricing indicated in this Contract is a maximum guarantee under the terms of this clause. Contractor’s pricing will not exceed the pricing offered under comparable contracts. Comparable contracts are those which are similar in size, scope, and terms.

Contractor must annually submit an affidavit from an authorized representative attesting that the Contract is in compliance with this clause.

(b) Sales Promotions. In addition to decreasing prices for the balance of the Contract term due to a change in market conditions, the Contractor may conduct sales promotions involving price reductions for a specified lesser period. The Contractor must submit documentation identifying the proposed (1) starting and ending dates of the promotion, (2) commodities or contractual services involved, and (3) promotional prices compared to then-authorized prices.

3.3 Payment Invoicing.

The Contractor will be paid upon submission of invoices to the Customer after delivery and acceptance of commodities or contractual services is confirmed by the Customer.

Invoices must contain detail sufficient for an audit and contain the Contract Number and the Contractor’s Federal Employer Identification Number.

3.4 Purchase Order.

A Customer may use purchase orders to buy commodities or contractual services pursuant to the Contract. If applicable, the Contractor must provide commodities or contractual services pursuant to purchase orders. The purchase order period of performance survives the expiration of the Contract. The duration of purchase orders must not exceed the expiration of the Contract by more than twelve (12) months.

3.5 Travel.

Travel expenses are not reimbursable unless specifically authorized by the Customer in writing, and may be reimbursed only in accordance with section 112.061, F.S.

3.6 Annual Appropriation.

Pursuant to section 287.0582, F.S., if the Contract binds the State of Florida or an agency for the purchase of services or tangible personal property for a period in excess of one fiscal year, the State of Florida’s performance and obligation to pay under the Contract is contingent upon an annual appropriation by the Legislature.

3.7 Transaction Fees.

The State of Florida, through the Department of Management Services, has instituted MyFloridaMarketPlace, a statewide eProcurement system pursuant to section 287.057(22), F.S. All payments issued by Customers to registered Vendors for purchases of commodities or contractual services will be assessed Transaction Fees as prescribed by rule 60A-1.031, F.A.C., or as may otherwise be established by law.

Vendors must pay the Transaction Fees and agree to automatic deduction of the Transaction Fees when automatic deduction becomes available. Vendors will submit any monthly reports required pursuant to the rule. All such reports and payments will be subject to audit. Failure to comply with the payment of the Transaction Fees or reporting of transactions will constitute grounds for declaring the Vendor in default and subject the Vendor to exclusion from business with the State of Florida.

3.8 Taxes.

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

3.9 Return of Funds.

Contractor will return any overpayments due to unearned funds or funds disallowed pursuant to the terms of the Contract that were disbursed to the Contractor. The Contractor must return any overpayment within forty (40) calendar days after either discovery by the Contractor, its independent auditor, or notification by the Department or Customer of the overpayment.

SECTION 4. CONTRACT MANAGEMENT.

4.1 Composition and Priority.

The Contractor agrees to provide commodities or contractual services to the Customer as specified in the Contract. Additionally, the terms of the Contract supersede the terms of any and all prior agreements between the Parties.

4.2 Notices.

All notices required under the Contract must be delivered to the designated Contract Manager by certified mail, return receipt requested; reputable air courier service; email;

personal delivery; or as otherwise identified by the Department.

4.3 Department’s Contract Manager.

The Department’s Contract Manager, who is primarily responsible for the Department’s oversight of the Contract, will be provided in a separate writing to the Contractor upon Contract signing in the following format:

Jane Doe Address Telephone # Email

In the event that the Department changes the Contract Manager, the Department will notify the Contractor. Such a change does not require an amendment to the Contract.

4.4 Contractor’s Contract Manager.

The Contractor’s Contract Manager, who is primarily responsible for the Contractor’s oversight of the Contract performance, will be provided in a separate writing to the Department upon Contract signing in the following format:

Jane Doe <Insert Contractor name> <Insert Contractor’s physical address> Telephone: (XXX) 555-XXXX Email: jane.doe@business.gmail.com

In the event that the Contractor changes its Contract Manager, the Contractor will notify the Department. Such a change does not require an amendment to the Contract.

4.5 Diversity Reporting.

The State of Florida supports its diverse business community by creating opportunities for woman-, veteran-, and minority-owned small business enterprises to participate in procurements and contracts. The Department encourages supplier diversity through certification of woman-, veteran-, and minority-owned small business enterprises, and provides advocacy, outreach, and networking through regional business events. For additional information, please contact the Office of Supplier Diversity (OSD) at osdinfo@dms.myflorida.com.

Upon request, the Contractor will report to the Department its spend with business enterprises certified by the OSD. These reports must include the time period covered, the name and Federal Employer Identification Number of each business enterprise utilized during the period, commodities and contractual services provided by the business enterprise, and the amount paid to the business enterprise on behalf of each Department purchasing under the Contract.

4.6 RESPECT.

Subject to the agency determination provided for in section 413.036, F.S., the following statement applies:

IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT ANY ARTICLES THAT ARE

THE SUBJECT OF, OR REQUIRED TO CARRY OUT, THIS CONTRACT SHALL BE

PURCHASED FROM A NONPROFIT AGENCY FOR THE BLIND OR FOR THE

SEVERELY HANDICAPPED THAT IS QUALIFIED PURSUANT TO CHAPTER 413,

FLORIDA STATUTES, IN THE SAME MANNER AND UNDER THE SAME

PROCEDURES SET FORTH IN SECTION 413.036(1) AND (2), FLORIDA STATUTES;

AND FOR PURPOSES OF THIS CONTRACT THE PERSON, FIRM, OR OTHER

BUSINESS ENTITY CARRYING OUT THE PROVISIONS OF THIS CONTRACT SHALL

BE DEEMED TO BE SUBSTITUTED FOR THE STATE AGENCY INSOFAR AS

DEALINGS WITH SUCH QUALIFIED NONPROFIT AGENCY ARE CONCERNED.

mailto:jane.doe@business.gmail.com mailto:osdinfo@dms.myflorida.com

Additional information about RESPECT and the commodities or contractual services it offers is available at http://www.respectofflorida.org.

4.7 PRIDE.

Subject to the agency determination provided for in sections 287.042(1) and 946.515, F.S., the following statement applies:

IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT ANY ARTICLES WHICH ARE

THE SUBJECT OF, OR REQUIRED TO CARRY OUT, THIS CONTRACT SHALL BE

PURCHASED FROM THE CORPORATION IDENTIFIED UNDER CHAPTER 946, F.S.,

IN THE SAME MANNER AND UNDER THE SAME PROCEDURES SET FORTH IN

SECTION 946.515(2) AND (4), F.S.; AND FOR PURPOSES OF THIS CONTRACT THE

PERSON, FIRM, OR OTHER BUSINESS ENTITY CARRYING OUT THE PROVISIONS

OF THIS CONTRACT SHALL BE DEEMED TO BE SUBSTITUTED FOR THIS

AGENCY INSOFAR AS DEALINGS WITH SUCH CORPORATION ARE CONCERNED.

Additional information about PRIDE and the commodities or contractual services it offers is available at http://www.pride-enterprises.org.

SECTION 5. COMPLIANCE WITH LAWS.

5.1 Conduct of Business.

The Contractor must comply with all laws, rules, codes, ordinances, and licensing requirements that are applicable to the conduct of its business, including those of federal, state, and local agencies having jurisdiction and authority. For example, the Contractor must comply with section 274A of the Immigration and Nationality Act, the Americans with Disabilities Act, Health Insurance Portability and Accountability Act, if applicable, and all prohibitions against discrimination on the basis of race, religion, sex, creed, national origin, handicap, marital status, or veteran’s status.

Pursuant to subsection 287.058(1), F.S., the provisions of subparagraphs 287.058(1)(a)- (c), and (g), F.S., are hereby incorporated by reference, to the extent applicable.

5.2 Dispute Resolution, Governing Law, and Venue.

Any dispute concerning performance of the Contract shall be decided by the Department's designated Contract Manager, who will reduce the decision to writing and serve a copy on the Contractor. The decision of the Contract Manager shall be final and conclusive. Exhaustion of this administrative remedy is an absolute condition precedent to the Contractor's ability to pursue legal action related to the Contract or any other form of dispute resolution. The laws of the State of Florida govern the Contract. The Parties submit to the jurisdiction of the courts of the State of Florida exclusively for any legal action related to the Contract. Further, the Contractor hereby waives any and all privileges and rights relating to venue it may have under Chapter 47, F.S., 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 based on convenience. The Contractor hereby submits to venue in the county chosen by the Department.

http://www.respectofflorida.org/ http://www.pride-enterprises.org/

5.3 Department of State Registration.

Consistent with Chapters 605 through 623, F.S., the Contractor and any subcontractors that assert status, other than a sole proprietor, must provide the Department with conclusive evidence of a certificate of status, not subject to qualification, if a Florida business entity, or of a certificate of authorization if a foreign business entity.

5.4 Suspended, Convicted and Discriminatory Vendor Lists.

In accordance with sections 287.042, 287.133, and 287.134, F.S., an entity or affiliate who is on the Suspended Vendor List, Convicted Vendor List or the Discriminatory Vendor List may not perform work as a contractor, supplier, subcontractor, or consultant under the Contract. The Contractor must notify the Department if it or any of its suppliers, subcontractors or consultants have been placed on the Suspended Vendor List, Convicted Vendor List or the Discriminatory Vendor List during the term of the Contract.

5.5 Scrutinized Companies—Termination by the Department.

The Department may, at its option, terminate the Contract if the Contractor is found to have submitted a false certification as provided under section 287.135(5), F.S., or been placed on the Scrutinized Companies with Activities in Sudan List or the Scrutinized Companies with Activities in the Iran Petroleum Energy Sector List, or been engaged in business operations in Cuba or Syria, or to have been placed on the Scrutinized Companies that Boycott Israel List or is engaged in a boycott of Israel.

5.6 Cooperation with Inspector General and Records Retention.

Pursuant to subsection 20.055(5), F.S., Contractor, and any subcontractor to the Contractor, understand and will comply with their duty to cooperate with the Inspector General in any investigation, audit, inspection, review, or hearing. Upon request of the Inspector General or any other authorized State official, the Contractor must provide any information the Inspector General deems relevant to the Contractor's integrity or responsibility. Such information may include, but will not be limited to, the Contractor's business or financial records, documents, or files of any type or form that refer to or relate to the Contract. The Contractor will retain such records for five years after the expiration of the Contract, or the period required by the General Records Schedules maintained by the Florida Department of State, at the Department of State’s Records Management website, whichever is longer. The Contractor agrees to reimburse the State of Florida for the reasonable costs of investigation incurred by the Inspector General or other authorized State of Florida official for investigations of the Contractor's compliance with the terms of this or any other agreement between the Contractor and the State of Florida which results in the suspension or debarment of the Contractor.

Such costs will include, but will not be limited to: salaries of investigators, including overtime; travel and lodging expenses; and expert witness and documentary fees.

5.7 Inspection.

Section 215.422, F.S., provides that agencies have five (5) working days, unless the contract specifies otherwise, to inspect and approve commodities or contractual services. Items may be tested for compliance with specifications. Items delivered not conforming to specifications may be rejected and returned at the Contractor’s expense.

Interest penalties for late payment are also limited according to section 215.422, F.S.

SECTION 6. MISCELLANEOUS.

6.1 Subcontractors.

The Contractor will not subcontract any work under the Contract without prior written consent of the Department. The Contractor is fully responsible for satisfactory completion of all its subcontracted work. The Department supports diversity in its procurements and contracts, and requests that Contractor offer subcontracting opportunities to certified woman-, veteran-, and minority-owned small businesses. The Contractor may contact the OSD at osdhelp@dms.myflorida.com for information on certified small business enterprises available for subcontracting opportunities.

6.2 Assignment.

The Contractor will not sell, assign, or transfer any of its rights, duties, or obligations under the Contract without the prior written consent of the Department. However, the Contractor may waive its right to receive payment and assign same upon notice to the Department. In the event of any assignment, the Contractor remains responsible for performance of the Contract, unless such responsibility is expressly waived by the Department. The Department may assign the Contract with prior written notice to the Contractor.

6.3 Independent Contractor.

The Contractor and its employees, agents, representatives, and subcontractors are independent contractors and not employees or agents of the Department and are not entitled to State of Florida benefits. The Department will not be bound by any acts or conduct of the Contractor or its employees, agents, representatives, or subcontractors.

The Contractor agrees to include this provision in all of its subcontracts under the Contract.

6.4 Risk of Loss.

Matters of inspection and acceptance are addressed in section 215.422, F.S. Until acceptance, risk of loss or damage will remain with the Contractor. The Contractor will be responsible for filing, processing, and collecting all damage claims. To assist the Contractor with damage claims, the Customer will: record any evidence of visible damage on all copies of the delivering carrier’s Bill of Lading; report damages to the carrier and the Contractor; and provide the Contractor with a copy of the carrier’s Bill of Lading and damage inspection report. When a Customer rejects a commodity, Contractor will remove the commodity from the premises within ten (10) calendar days after notification of rejection, and the risk of loss will remain with the Contractor.

Commodities not removed by the Contractor within ten (10) calendar days will be deemed abandoned by the Contractor and the Customer will have the right to dispose of such commodities. Contractor will reimburse the Customer for costs and expenses incurred in storing or effecting removal or disposition of rejected commodities.

6.5 Safety Standards.

Performance of the Contract for all commodities or contractual services must comply with requirements of the Occupational Safety and Health Act and other applicable State of Florida and federal requirements.

6.6 Ombudsman.

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

6.7 Time is of the Essence.

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

6.8 Waiver.

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

6.9 Modification and Severability.

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

6.10 Cooperative Purchasing.

Agencies wishing to make purchases under this Contract are required to follow the requirements of section 287.042(16) or 287.057(3) (b), F.S., and rule 60A-1.045, F.A.C.

These provisions require the Department to determine that the requesting agency’s use of the Contract is cost-effective and in the best interest of the State.

Pursuant to their own governing laws, and subject to the agreement of the Contractor, government entities may make purchases under the terms and conditions contained herein, if agreed to by Contractor. Non-Customer purchases are independent of the Contract between the Department and the Contractor. The Department is not a party to any transaction between the Contractor and any purchaser.

SECTION 7. WORKERS’ COMPENSATION AND GENERAL LIABILITY INSURANCE,

AND INDEMNIFICATION

7.1 Workers’ Compensation Insurance.

To the extent required by law, the Contractor must be self-insured against, or must secure and maintain during the life of the contract, Worker’s Compensation Insurance for all its employees connected with the work of this project, and in case any work is subcontracted, the Contractor must require the subcontractor similarly to provide Worker’s Compensation Insurance for all of the latter’s employees unless such employees engaged in work under the resulting contract are covered by the Contractor’s insurance program. Self-insurance or insurance coverage must comply with the Florida Worker’s Compensation law. In the event hazardous work is being performed by the Contractor under the resulting contract and any class of employees performing the hazardous work is not protected under Worker’s Compensation statutes, the Contractor must provide, and cause each subcontractor to provide adequate insurance satisfactory to the Department for the protection of employees not otherwise protected.

7.2 General Liability Insurance.

The Contractor must secure and maintain Commercial General Liability Insurance, including bodily injury, property damage, products, personal & advertising injury, and completed operations. This insurance must provide coverage for all claims that may arise from the services and/or operations completed under the Contract, whether such services or operations are by the Contractor or anyone directly or indirectly employed by them. Such insurance must include the State of Florida as an additional named insured for the entire length of the resulting contract. The Contractor is responsible for determining the minimum limits of liability necessary to provide reasonable financial protections to the Contractor and the State of Florida under the resulting contract.

All insurance policies must be with insurers licensed or eligible to transact business in the State of Florida. The Contractor must submit via email, to the Department’s contract manager, insurance certificates evidencing such insurance coverage prior to execution of a contract with the Department and provide Department notice of any cancellation or nonrenewal at least ten (10) calendar days prior to cancellation or nonrenewal.

7.3 Indemnification.

To the extent permitted by Florida law, the Contractor agrees to indemnify, defend, and hold the Department, the Customer, and the State of Florida, its officers, employees, and agents harmless from all fines, claims, assessments, suits, judgments, or damages, including consequential, special, indirect, and punitive damages, including court costs and attorney’s fees, arising from or relating to violation or infringement of a trademark, copyright, patent, trade secret, or intellectual property right or out of any acts, actions, breaches, neglect, or omissions of the Contractor, its employees, agents, subcontractors, assignees, or delegates related to the Contract, as well as for any determination arising out of or related to the Contract that the Contractor or Contractor’s employees, agents, subcontractors, assignees, or delegates are not independent contractors in relation to the Department. The Contract does not constitute a waiver of sovereign immunity or consent by the Department or the State of Florida or its subdivisions to suit by third parties. Without limiting this indemnification, the Department or Customer may provide the Contractor (1) written notice of any action or threatened action, (2) the opportunity to take over and settle or defend any such action at Contractor’s sole expense, and (3) assistance in defending the action at Contractor’s sole expense.

SECTION 8. PUBLIC RECORDS, TRADE SECRETS, DOCUMENT MANAGEMENT

AND INTELLECTUAL PROPERTY.

8.1 Public Records.

The Department may unilaterally cancel this Contract for refusal by the Contractor to comply with this section by not allowing access to all public records, as defined in Chapter 119, Florida Statutes, made or received by the Contractor in conjunction with the Contract.

Pursuant to section 119.0701(2) (a), F.S., for contracts for services with a contractor acting on behalf of a public agency, as defined in section 119.011(2), F.S., the following applies:

IF THE CONTRACTOR HAS QUESTIONS REGARDING THE

APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE

CONTRACTOR’S DUTY TO PROVIDE PUBLIC RECORDS

RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN OF

PUBLIC RECORDS AT THE TELEPHONE NUMBER, EMAIL

ADDRESS AND MAILING ADDRESS PROVIDED IN THE

RESULTING CONTRACT OR PURCHASE ORDER.

Pursuant to section 119.0701(2)(b), F.S., for contracts for services with a contractor acting on behalf of a public agency as defined in section 119.011(2), F.S., the Contractor shall:

(a) Keep and maintain public records required by the public agency to perform the service.

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

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

(d) Upon completion of the Contract, transfer, at no cost, to the public agency all public records in possession of the Contractor or keep and maintain public records required by the public agency to perform the service. If the contractor transfers all public records to the public agency upon completion of the contract, the contractor shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the contractor keeps and maintains public records upon completion of the contract, the contractor shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the public agency, upon request from the public agency’s custodian of public records, in a format that is compatible with the information technology systems of the public agency.

8.2 Protection of Trade Secrets or Confidential Information.

If the Contractor considers any portion of materials made or received in the course of performing the Contract (“contract-related materials”) to be trade secret under section

688.002 or 812.081, F.S., or otherwise confidential under Florida or federal law, the Contractor must clearly designate that portion of the materials as trade secret or otherwise confidential when submitted to the Department. The Contractor will be responsible for responding to and resolving all claims for access to contract-related materials it has designated trade secret or otherwise confidential.

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

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