RFQ_25-391_Removal_and_Complete_Replacement_of_6-Ton_AC_System_COB_4_4-18-25.pdf

NEW SMYRNA BEACH UTILITIES

REQUEST FOR QUOTATION

25-391

RFQ 25-391 Removal and Replacement of 6-Ton Roof Top Unit

WE HEREBY INVITE YOUR COMPANY TO SUBMIT A FORMAL QUOTATION FOR A 6-TON

ROOF TOP A/C SYSTEM REPLACEMENT FOR NEW SMYRNA BEACH UTILITIES, PER THE

ATTACHED TERMS AND CONDITIONS.

SUBMIT COPIES OF YOUR QUOTES BY MAIL, E-MAIL OR HAND DELIVERING TO:

New Smyrna Beach Utilities

Attn: Erin Anderson

Purchasing Agent

(386) 424-3170 eanderson@nsbufl.com

MAILING ADDRESS: WALK IN DELIVERY ADDRESS

1151 Field Street 350 Slaton Street

New Smyrna Beach, FL 32168 New Smyrna Beach, FL 32168

QUOTATIONS DUE PRIOR TO: Thursday May 8, 2025, at 2:30 P.M.

mailto:eanderson@nsbufl.com

SCHEDULE

Distribution of the Request for Quotation April 21,2025

RFQ Return Deadline by 2:30PM

Location: NSBU Purchasing Dept.

1151 Field St. New Smyrna Beach

FL, 32168 May 8, 2025

TABLE OF CONTENTS

General Instructions 4-9

Terms and Conditions Governing Award 10-22

References

E-Verify Affidavit Form 24

Non-Collusion Affidavit

Foreign Country of Concern Attestation

Certification of Drug-Free Workplace Form 27

Common Carrier or Contracted Carrier

Attestation Form

Nongovernmental Entity Human Trafficking

Affidavit

Vendor Application 30

W-9 31

Scope of Work 32

Quote Tabulation 33

GENERAL INSTRUCTIONS

1. COMMISSION. The term Commission used herein refers to the New Smyrna Beach Utilities, or its duly authorized representative.

2. SOLICITATION. The term Solicitation used herein refers to this Request for Quotations.

3. VENDOR. The term Vendor used herein refers to the manufacturer or business organization submitting a quotation to the Commission in response to this Solicitation

4. FURNISHED ITEMS. No material, labor or facilities will be furnished by the Commission unless specifically stated.

5. COLLUSION. The Vendor hereby attests that the prices in this offer have been arrived at independently without consultation, communication, or agreement with any competitor for the purpose of restricting competition.

6. PRICE WARRANTY. The Vendor warrants that the prices of the items set forth herein do not exceed the prices charged by the Vendor under a contract with the State of Florida.

7. COMMERCIAL WARRANTY. The Vendor agrees that the supplies and services furnished under this award shall be covered by the most favorable commercial warranties the Vendor gives any customers for comparable quantities of such supplies or services and that the rights and remedies provided herein are in addition to and do not limit any rights afforded to the Commission by any other provision of this award.

8. PREPARATION OF QUOTATION. Carelessness in the preparation of the quotation will not relieve any vendor of its obligations. Vendors are expected to examine, when applicable, drawings, specifications, delivery schedule and requirements, extensions, performance sites, instructions, and all terms and conditions in the Solicitation to satisfy themselves of the conditions affecting the cost and performance of this Solicitation. Quotations having erasures or corrections must be initialed in ink by the Vendor. In the event of an extension error(s), the unit price will prevail. Written amounts shall take precedence over numerical amounts.

9. DELIVERY OF QUOTATIONS. Quotations shall be addressed and mailed or delivered as specified on page 1.

10. REJECTION OF QUOTATIONS. To ensure consideration of your quotation, please follow these instructions. Quotations not in compliance with conditions specified herein are subject to rejection.

The Commission reserves the right to reject quotations containing any additional terms or conditions not specifically requested in the original conditions and specifications.

11. BRAND OR TRADE NAMES. When brand or trade names are used in this Solicitation, it is for the purpose of item identification and to establish standards for quality, style, and features. Quotations including equivalent items will be considered unless items are noted as no substitutes. Quotations containing equivalent items must be accompanied by descriptive literature and/or specifications to receive consideration. Demonstrations and/or samples may be required and shall be at no charge to the Commission. The Commission reserves the right to determine if the proposed goods are equivalent to specified goods.

12. COMMISSION’S DISCRETION AS TO AWARD. Awards shall be made as required for the best interest of the Commission. The Commission has no obligation to accept the lowest quotation, rather, the Commission is entitled to award to the vendor and quotation that is in the best interest of the

Commission. The Commission reserves the right to make awards by individual items, group of items, all or none, or any combination thereof, with one or more vendors. The Commission reserves the right to cancel the solicitation, reject any and all quotes, or waive any irregularity or technicality in the quotations received. The Commission reserves the right not to make any award(s) under this

Solicitation.

13. QUESTIONS REGARDING QUOTATIONS. The Commission has made every effort to provide prospective vendors with the information needed to appropriately respond to this solicitation. The

Commission realizes that some clarification, interpretation, or additional information may be required.

Questions regarding any portion of this Solicitation shall be directed, in writing, to:

New Smyrna Beach Utilities

Erin Anderson/ Purchasing Agent eanderson@nsbufl.com or

VENDORLINK

https://www.myvendorlink.com/external/bids?a=358

Any additional information pertaining to this Solicitation or to the services being sought hereunder obtained in a manner other than as described in the preceding paragraph should be regarded as unofficial.

https://www.myvendorlink.com/external/bids?a=358

The Commission will not be bound in any way by information so obtained, or by a vendor’s reliance thereon

14. COMMUNICATIONS. Any communication between any potential vendor, Vendor, lobbyist or consultant and any Commission Member, staff member, or consultant of the Commission regarding this procurement is strictly prohibited from the date on which the Solicitation advertisement appears on the Commission website, Vendor Link or newspaper through the date of contract award. Also, from the date of the filing of any notice of protest of award through resolution for the parties involved in the protest or contract award, whichever is longer. The only exceptions to this are communications with the Commission Material Manager or the Commission-designated point of contact. Any violation shall constitute grounds for immediate and permanent disqualification of the offending firm and possible debarment or suspension. At the Commission General Manager/CEO and Director of Finance

(CFO)’s sole discretion, it may also serve as grounds for the voiding of any contract with the violator and/or to temporarily or permanently debarring the violator from future work with the Commission.

This process will safeguard the integrity of the Commission procurement and protest process and also provide an ethical, equitable, and transparent procurement process.

15. TRADE SECRETS AND CONFIDENTIAL INFORMATION: Trade secrets and information confidential and exempt from Subsection 119.07(1) of the Florida Statutes and Subsection 24(a) of

Article I of the Florida Constitution is not solicited nor desired as information to be submitted with quotes. The Florida Statutes and the State Constitution govern whether information in a quote is confidential or exempt from the Florida Public Records Act. If information is submitted in a quote which a vendor deems to be a trade secret or confidential and exempt from the Public Records Act, the information shall be submitted with the quote in a separate, clearly identifiable email referencing the specific statutory citation for such exemption. Submitted quotes which are marked “confidential”

(or other similar language) in their entirety or those in which a significant portion of the submitted quote is marked “confidential” may be deemed non-responsive by NSBU. The NSBU is not obligated to agree with the vendors claim of an exemption and, by submitting a quote, the consultant agrees to be responsible for defending its claim that each and every portion of the separately marked information is exempt from inspection and copying under the Public Records Act. The vendor agrees that it shall protect, defend, and indemnify, including attorney’s fees and costs, the NSBU for any and all claims and litigation (including litigation initiated by the NSBU) arising from or relating to the vendors claim that the separately marked portions of its quote are not subject to disclosure. If the vendor fails to separately mark portions of its quote or marks its quote “confidential” (or other similar language) in its entirety, the NSBU is authorized to produce the entire quote submitted by the quote in responding to a public records request.

16. AMENDED OR WITHDRAWN QUOTATIONS: Quotations may be amended or withdrawn by written notice to prior to the quotation opening. Amendments will only be accepted in the form of a new package. Vendor must pick up the original package and submit an amended quotation prior to the closing date and time. Amendments or withdrawals received after the quotation opening will not be effective, and the original quotation will be considered.

17. CONSIDERATION OF QUOTATIONS. Commission reserves the right to award the contract to the vendor(s) that Commission deems to offer the best overall quotation. The commission is therefore not bound to accept a quotation on the basis of the lowest price. In addition, Commission at its sole discretion reserves the right to cancel this Solicitation, to reject any and all quotations, to waive any and all informalities and/or irregularities, to re-advertise with either the identical or revised specifications, or not award a contract at all if it is deemed to be in the best interest of Commission to do so. Commission also reserves the right to make multiple or split awards if it is deemed to be in the

Commission's best interest. Commission shall not be responsible for any cost or expense incurred by the Vendor in preparing or submitting a quotation.

18. PURCHASING MANUAL. All responses to this Solicitation shall be in accordance with the

Commission’s Purchasing Policies and Procedures Manual.

19. E-VERIFY. By submitting a response to this Solicitation, you are obligated to comply with the provisions of Section 448.095, Florida Statutes, “Employment Eligibility.” Further, by submitting a response to this solicitation, you affirm and represent that you are registered with the E-Verify system using same and will continue to use same as required by Section 448.095, Florida Statutes.

Compliance with Section 448.095, Florida Statutes, includes, but is not limited to, utilization of the

E-Verify System to verify the work authorization status of all newly hired employees, and requiring all subcontractors to provide an affidavit attesting that the subcontractor does not employ, contract with, or subcontract with, an unauthorized alien. Failure to comply will lead to disqualifying you for award of this Solicitation, or if your subcontractor knowingly violates the statute, the subcontract must be terminated immediately. Any challenge to termination under this provision must be filed in the

Circuit Court no later than 20 calendar days after the date of termination. If disqualified for a violation of the statute by the Vendor, the Vendor may not be allowed to do business with the Commission or be awarded a solicitation or contract for a period of 1 year after the date of termination. All costs incurred to initiate and sustain the aforementioned programs shall be the responsibility of the Vendor.

20. PROHIBITION AGAINST CONSIDERATION OF SOCIAL, POLITICAL OR

IDEOLOGICAL INTEREST. Vendors are hereby notified of the provisions of section 287.05701, Florida Statutes, as amended, that the Commission will not request documentation of or consider a vendor’s social, political, or ideological interests when determining if the vendor is responsible.

Vendors are further notified that the Commission’s governing body may not give preference to a vendor based on the vendor’s social, political, or ideological interests.

21. COMPLIANCE WITH FOREIGN ENTITY LAWS. The Vendor hereby attests under penalty of perjury the following:

A. Entity is not owned by the government of a foreign country of concern as defined in Section

287.138, Florida Statutes.

B. The government of a foreign country of concern does not have a controlling interest in Entity.

C. Entity is not owned or controlled by the government of a foreign country of concern, as defined in Section 692.201, Florida Statutes.

D. Entity is not a partnership, association, corporation, organization, or other combination of persons organized under the laws of or having its principal place of business in a foreign country of concern, as defined in Section 692.201, Florida Statutes, or a subsidiary of such entity.

E. Entity is not a foreign principal as defined in Section 692.201, Florida Statutes.

F. Entity is in compliance with all applicable requirements of Sections 692.202, 692.203, and

692.204, Florida Statutes.

G. (Only applicable if purchasing real property) Entity is not a foreign principal prohibited from purchasing the subject real property. Entity is either (a) not a person or entity described in

Section 692.204(1)(a), Florida Statutes, or (b) authorized under Section 692.204(2), Florida

Statutes, to purchase the subject property. Entity is in compliance with the requirements of

Section 692.204, Florida Statutes

22. PUBLIC ENTITY CRIMES. Under Section 287.133(2)(a), Florida Statutes, 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 quotation to provide any goods or services to a public entity, may not submit a quotation on a contract with a public entity for the construction or repair of a public building or public work, may not submit quotations 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 287.0l7, Florida Statutes, for Category Two for a period of 36 months from the date of being placed on the convicted vendor list.

23. REQUIRED DISCLOSURE. At its sole discretion, the Commission may reject any quotations that the Commission finds to lack, or whose present or former executive employees, officers, directors, stockholders, partners or owners are found by the Commission to lack honesty, integrity, or moral responsibility. The discretion of the Commission may be exercised based on the Commission’s own investigation, public records, or any other reliable sources of information. By submitting a quotation, Vendor recognizes and accepts that the Commission may reject the quotation based upon the exercise of its sole discretion and Vendor waives any claim it might have for damages or other relief resulting from the rejection of its quotation based on these grounds.

TERMS AND CONDITIONS GOVERNING AWARD

VENDOR ACKNOWLEDGES AND AGREES THAT IF THE COMMISSION SELECTS ITS

QUOTATION, THEN THE TERMS AND CONDITIONS IDENTIFIED IN THIS SECTION

(“TERMS AND CONDITIONS”) ARE BINDING ON VENDOR AND SHALL GOVERN ANY

PURCHASE ORDER ISSUED PURSUANT TO THIS SOLICITATION.

SECTION 1. DESCRIPTION OF SERVICES. Vendor agrees to perform the services identified in the Scope of Work included in this Solicitation (“Services”).

SECTION 2. CHANGES IN THE SCOPE OF WORK.

2.1 The Commission may make changes in the Services at any time by giving written notice to Vendor. If such changes increase, decrease or eliminate any amount of work, Commission and

Vendor will negotiate any change in total cost or schedule modifications. If the Commission approves, the Commission shall amend the Scope of Services to reflect the modifications, and the Vendor shall be compensated for said Services in accordance with the terms of Section 3 herein. All change orders shall be in writing and executed by both the Commission-designated representative and the Vendor.

2.2 The Services and amendments thereto shall be performed in strict accordance with these Terms and Conditions.

SECTION 3. SCHEDULE AND PERIOD OF PERFORMANCE

3.1 Time is of the essence with respect to the obligations hereunder. The vendor shall perform its Services in conformance with the agreed-upon schedule. The vendor shall complete all of the said services in a timely manner and will keep the Commission apprised of the status of work on a monthly basis. Should the Vendor fall behind the agreed-upon schedule, it shall employ such resources as to comply with the agreed-upon schedule.

3.2 No extension for the completion of Services shall be granted to Vendor without

Commission prior written consent, except as provided in Section 2.1 herein.

SECTION 4. COMPENSATION FOR SERVICES. The Commission agrees to compensate

Vendor for services properly performed at the rates indicated on the Bid Tabulation.

SECTION 5. PAYMENT; INVOICES

5.1 Invoices for Vendor’s Services shall be submitted to the Commission at monthly intervals for Services rendered during the previous period. Each invoice shall delineate the period in which the Services were rendered; shall include a summary of the progress to date as a percentage of the major phases of the work. Each invoice shall be certified as correct by a duly authorized representative of Vendor. The bill[s] shall identify the services completed and the amount charged.

5.2 The Commission or its authorized representative shall have the right, at all reasonable times, at its own expense, to inspect and audit the books and records of Vendor insofar as they pertain to the direct charges payable by the Commission, and such audit must be performed within three (3) years after the expiration. The composition of fixed rates will not be subject to audit.

5.3 All invoices shall be due and payable thirty (30) days from receipt thereof by

Commission, subject to Commission right to contest, in good faith, all or any part of the charges set forth therein. Payment of invoices shall not be unreasonably withheld by Commission, but the

Commission reserves the right to reject any statement which fails to adequately describe the Services rendered by Vendor. Upon written notice to Vendor, payment may be withheld, in whole or in part, for

Vendor’s failure to comply with a term, condition or requirement of these Terms and Conditions. The vendor will help effect resolution and transmit a revised invoice as necessary. Thereafter, the withheld amount(s) shall be paid upon Vendor’s satisfactory demonstration of compliance to the Commission.

Amounts not disputed by Commission shall be promptly paid to Vendor in accordance with the above payment procedures.

SECTION 6. RIGHT TO INSPECTION. The Commission or its affiliates shall at all times have the right to review or observe the services performed by Vendor. No inspection, review, or observation shall relieve Vendor of its responsibility under these Terms and Conditions.

SECTION 7. WARRANTY AND ACCEPTANCE. The Vendor agrees that all materials shall be new, all Services shall be performed correctly and in accordance with all laws, rules, codes, and regulations, and workmanship shall be first class in every respect. The work shall be subject to inspection and acceptance by the Commission. Vendor guarantees the quality of its Services hereunder for a period of

24 months after completion and acceptance of the Services unless otherwise set forth herein. In the event

Commission discovers defects in material or workmanship at any time or discovers that the Services have not been performed correctly or in accordance with all laws, rules, codes, and regulations, before the expiration of the specified warranty period, Vendor shall, upon written notice from the Commission, repair, correct or replace any such defective materials or Services, at its sole expense. The Commission may perform such repairs, corrections, or replacements by other reasonable means and Vendor agrees to pay for such corrective measures. Neither acceptance of the work by the Commission nor payment shall relieve

Vendor from liability under these Terms and Conditions.

SECTION 8. INSPECTION AND ACCEPTANCE. A duly authorized representative of the

Commission will accomplish inspection and acceptance of the Services and shall have the right to reject

Services that were not performed correctly or in accordance with all laws, rules, codes, and regulations and demand reperformance at Vendor’s sole expense.

SECTION 9. SAFETY. The vendor agrees to comply with the Commission’s safety standards while on the Commission's property. The vendor shall have full responsibility and assume all liability for the safety and supervision of its employees while performing services provided hereunder. The vendor, and not the Commission, shall be solely responsible for ensuring that the performance of the Services complies with all applicable health and safety laws, rules, and regulations, including but not limited to

OSHA.

SECTION 10. INSURANCE.

10.1 Vendor shall maintain, at its own expense, public liability insurance and other insurance coverage as set forth in Attachment A which is hereby made a part of these Terms and Conditions.

10.2 Vendor and Commission waive all rights against each other and their respective directors, officers, partners, New Smyrna Beach Utilities, officials, agents, subcontractors, Vendors, and employees for damages covered by any type of property insurance during and after the completion of the Services. A similar provision shall be incorporated into all construction contractual arrangements entered into by Commission and shall protect Commission and Vendor to the same extent. All project contractors shall be required to include Commission and Vendor as additional insureds on their general liability insurance policies.

SECTION 11. STANDARDS OF CONDUCT; COMPLIANCE WITH FEDERAL, STATE,

AND LOCAL LAWS.

11.1 The Vendor warrants that it has not employed or retained any company or person, other than a bona fide employee working solely for the Vendor to solicit or secure this Agreement, and that he has not paid or agreed to pay any person, company, corporation, individual, or firm other than a bona fide employee working solely for the Vendor any fee, percentage, gift, or any other consideration, contingent upon or resulting from the award of this Agreement.

11.2 The Vendor covenants that it or any of its employees presently has no interest and shall not acquire any interest, direct or indirect, financial or otherwise, that would conflict in any manner or degree with the performance of Services hereunder.

11.3 The Vendor agrees that it and its employees shall be bound by the Standards of Conduct provided in Section 112.313, Florida Statutes, as it relates to the Services performed under this

Agreement, which standards will by reference be made a part of this Agreement as though set forth in full. The Vendor agrees to incorporate the provisions of this paragraph in any subcontract into which it might enter with reference to the Services performed.

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

11.5 The Vendor warrants that he has not employed or retained any company or person, other than a bona fide employee working solely for the Vendor to solicit or secure this agreement and that he has not paid or agreed to pay any person, company, corporations, individual, or firm, other than a bona fide employee working solely for the Vendor any fee, percentage, gift or other consideration contingent upon or resulting from the award or making of this agreement.

11.6 Vendor affirms that it is aware of the provisions of Section 287.133(2)(a), Florida

Statutes, and that at no time has Vendor been convicted of a Public Entity Crime. Vendor agrees that it shall not violate such law and further acknowledges and agrees that any conviction during the term of this Agreement may result in termination of this Agreement by the Commission.

11.7 As a condition precedent to entering into this Agreement, and in compliance with section 448.95, Florida Statutes, Vendor and its subcontractors shall register with and use the E-Verify system to verify work authorization status of all employees hired after January 1, 2021.

a. Vendor shall require each of its subcontractors to provide the Vendor with an affidavit stating that the subcontractor does not employ, contract with, or subcontract with any unauthorized alien. Vendor shall maintain a copy of the subcontractor’s affidavit as part of and pursuant to the records retention requirements of this Agreement.

b. The Commission, Vendor, or any subcontractor, upon good faith belief that a person or entity with which it is contracting knowingly violated section 448.09(1), Florida Statutes, or the provisions of this section, shall terminate the contract with the person or entity.

c. The Commission, upon good faith belief that a subcontractor knowingly violated the provisions of this section, but the Vendor otherwise complied, shall promptly notify the

Vendor and the Vendor shall immediately terminate the contract with the subcontractor.

d. A contract terminated under the provisions of this section is not a breach of contract and may not be considered as such. Any contract terminated under the provisions of this section may be challenged pursuant to section 448.095(2), Florida Statutes. Vendor acknowledges that upon termination of this Agreement by the Commission for a violation of this section by Vendor, Vendor may not be awarded a public contract for at least one (1) year. Vendor further acknowledges that Vendor is liable for any additional costs incurred by the

Commission as a result of any contract for a violation of this section.

e. Vendor or subcontractor shall insert in any subcontracts the clauses set forth in this section, including this subsection, requiring the subcontractors to include these clauses in any lower tier subcontracts. The vendor shall be responsible for compliance with any subcontractor or lower tier subcontractor with the clauses set forth in this section.

f. Information on registration for and use of the E-Verify Program can be obtained via the internet at the Department of Homeland Security website: http://www/dhs/gov/E-verify.

11.8 The Commission shall consider the knowing employment of unauthorized aliens, as described in Section 274A(e) of the Immigration and Nationality Act (codified at 8 U.S.C. §1324a), and

Section 448.09, Florida Statutes, by Vendor or any subcontractor cause for termination of this

Agreement.

11.9 In compliance with Subsection 787.06(13), Florida Statutes, the Human Trafficking affidavit attached hereto as Attachment C must be completed by an officer or representative of a nongovernmental entity that is executing, renewing, or extending a contract with the Commission or any of its direct support organizations (the “Governmental Entity”).

11.10 In compliance with Section 287.138, Florida Statutes, should the services to be performed under the Agreement grant the Vendor access to an individual’s personal identifying information, Vendor shall provide the Commission with an affidavit, attached hereto as Attachment D, signed by an officer or representative under penalty of perjury attesting that (a) the Vendor is not owned by the government of a foreign country of concern; (b) the government of a foreign country of concern does not have a controlling interest in the Vendor; and (c) the Vendor is not organized under the laws of, or has its principal place of business in a foreign country of concern. For purposes of this Section, “foreign country of concern” means the People’s Republic of China, the Russian Federation, the Islamic

Republic of Iran, the Democratic People’s Republic of Korea, the Republic of Cuba, the Venezuelan regime of Nicolás Maduro, or the Syrian Arab Republic, including any agency of or any other entity of significant control of such foreign country of concern.

11.11 Scrutinized Companies List.

a. By executing this Agreement, Vendor certifies that it is not: (a) listed on the Scrutinized

Companies that Boycott Israel List, created pursuant to Section 215.4725, Florida

Statutes, (b) engaged in a boycott of Israel, (c) listed on the Scrutinized Companies with Activities in Sudan List or the Scrutinized Companies with Activities in the Iran

Terrorism Sectors List, created pursuant to Section 215.473, Florida Statutes, or (d) engaged in business operations in Cuba or Syria.

b. Pursuant to Section 287.135(5), Florida Statutes, the Commission may immediately terminate this Agreement for cause if Vendor is found to have submitted a false certification as to the above or if Vendor is placed on the Scrutinized Companies that

Boycott Israel List, is engaged in a boycott of Israel, has been placed on the Scrutinized

Companies with Activities in Sudan List or the Scrutinized Companies with Activities in the Iran Terrorism Sectors List, or has been engaged in business operations in Cuba or Syria, during the term of the Agreement. If the Commission determines that Vendor has submitted a false certification, the Commission will provide a written notice to

Vendor. Unless Vendor demonstrates in writing, within 90 calendar days of receipt of the notice, that the Commission’s determination of false certification was made in error, the Commission shall bring a civil action against Vendor. If the Commission’s determination is upheld, a civil penalty equal to the greater of $2 million or twice the amount of this Agreement shall be imposed on Vendor, and Vendor will be ineligible to bid on any Agreement with a Florida agency or local governmental entity for three

(3) years after the date of the Commission’s determination of false certification by

Vendor.

c. If federal law ceases to authorize the states to adopt and enforce the contracting prohibition in this Section, this Section shall be null and void without further action of the parties.

11.12 Vendor affirms that it is aware of the provisions of Subsection 287.134(2)(a), Florida

Statutes, and that at no time has Vendor been placed on the Discriminatory Vendor List.

11.13 By executing this Agreement, Vendor certifies that to the best of his or her knowledge the commodities such company is offering to the Commission have not been produced, in whole or in part, by forced labor. Pursuant to Subsection 287.1346(4)(a)(2), Florida Statutes, the Commission may immediately terminate this Agreement for cause if the Vendor is placed on the Forced Labor Vendor

List. If it is found that Vendor has submitted a false certification and is subsequently placed on the

Forced Labor Vendor List, a fine of $1,000 or an amount equal to 20 percent of the value of the commodity provided to the Commission under the Agreement, whichever is greater, will be assessed.

Additionally, Vendor will be ineligible to bid on any Agreement with a public entity for a period of 365 days after placement on the Forced Labor Vendor List.

11.14 Vendor affirms that it is aware of the provisions of Subsection 287.137(2)(a), Florida

Statutes, and that at no time has Vendor been placed on the Antitrust Violator Vendor List.

11.15 Vendor is hereby notified of the provisions of section 287.05701, Florida Statutes, as amended, that the Commission will not request documentation of or consider a Vendor’s social, political, or ideological interests when determining if the Vendor is a responsible Vendor. Vendor is further notified that the Commission’s governing body may not give preference to a Vendor based on the Vendor’s social, political, or ideological interests.

11.16 If Vendor meets the definition of a “Common Carrier” under Section 908.111, Florida

Statutes, then Vendor must execute the attestation attached hereto as Attachment E that the common carrier or contracted carrier is not willfully providing and will not willfully provide any service during the contract term in furtherance of transporting a person into the State of Florida knowing that the person is an unauthorized alien, except to facilitate the detention, removal, or departure of the person from this

State or the United States. Such attestation must be provided to Commission prior to commencement of this Agreement. In accordance with Section 908.111, Florida Statutes, Commission may terminate this

Agreement for cause if Vendor is found to be in violation of this provision or its attestation.

SECTION 12. VENDOR’S REPRESENTATIONS.

On behalf of its employees, agents, servants and contractors, Vendor represents and warrants to the

Commission each of the following:

12.1 Vendor represents that the Services provided hereunder shall conform to all requirements of these Terms and Conditions; shall be consistent with recognized and sound consulting practices and procedures; and shall conform to the professional standards of care, skill, and diligence appropriate to the nature of the Services rendered.

12.2 Vendor represents that the personnel furnishing such Services shall be qualified and competent to perform the services assigned to them and that such guidance given by and the recommendations and performance of such personnel shall reflect their best personal knowledge and judgment.

12.3 Vendor represents that if Vendor, through its acts, errors, or omissions, causes any injury to Commission or causes any physical damage to, or destruction of, any of Commission property, it shall be liable for said injuries and/or damages, including reasonable attorney fees and costs incurred as a result therefrom.

12.4 Vendor represents that none of Vendor’s principals or the immediate family of Vendor’s principals has a compensation arrangement of any kind with the Commission. For purposes of this subsection, the term “immediate family” shall include a spouse, natural or adoptive parent, child or sibling, stepparent, stepchild, stepbrother or stepsister, father-in-law, mother-in-law, grandparent, grandchild or spouse of a grandparent or grandchild. For purposes of this subsection, compensation shall be defined as any type of remuneration directly or indirectly, overtly or covertly, paid in cash or in kind.

12.5 The vendor represents that it is not undergoing any type of audit by a public, private, state, regulatory, or auditing entity.

12.6 Vendor represents that it and its principals have not engaged in, and during the term of performance of the Services, agree not to engage in, any activities prohibited under the federal anti-kickback laws (42 U.S.C. 1320a-7, 1320a-7a, 1320a-7b), the regulations promulgated pursuant to such federal statutes, related state or local statutes or regulations, or rules of professional conduct.

12.7 Should Vendor breach the representations set forth above, Commission shall have such remedies as allowed under the laws of the State of Florida. Additionally, without limiting the generality of the foregoing, if prior to the expiration of two (2) years from the date Vendor completes its services hereunder, Vendor’s Services are negligent or erroneous and Commission notifies Vendor in writing that a negligent error or omission has been discovered in Vendor’s Services, Vendor shall correctly perform such negligent services at no additional cost to Commission and within a reasonable time period.

SECTION 13. GUARANTEE AGAINST INFRINGEMENT. Vendor guarantees that all

Services shall be free from claims of patent, copyright, and trademark infringement. Vendor shall indemnify, hold harmless, and defend Commission, its officers, directors, employees, agents, assigns, and servants from and against any and all liability, including expenses, legal or otherwise, for actual or alleged infringement of any patent, copyright, or trademark resulting from the use of any goods, services, or other item delivered by Vendor.

SECTION 14. INDEMNIFICATION. Vendor shall defend, indemnify, and hold harmless the

Commission, its officers, agents and employees, from and against any and all demands, claims, losses, suits, liabilities, causes of action, judgment or damages, arising out of, related to, or any way connected with Vendor’s performance or non-performance of (1) the Services and/or (2) any provision of these

Terms and Conditions including, but not limited to, liabilities arising from agreements between the Vendor and third parties. Vendor shall reimburse the Commission for all its expenses including reasonable attorneys' fees and costs incurred in and about the defense of any such claim or investigation and for any judgment or damages arising out of, related to, or in any way connected with Vendor’s performance or non-performance. This section shall be interpreted and construed in a manner to comply with any applicable Florida Statutes, including without limitation Sections 725.06 and 725.08, Fla. Stat., if applicable. The provisions of this section shall survive termination. Ten dollars ($10) of the payments made by the Commission constitute separate, distinct, and independent consideration for the granting of this indemnification, the receipt and sufficiency of which is voluntary and knowingly acknowledged by the Vendor.

SECTION 15. AUDIT; PUBLIC RECORDS RETENTION; DOCUMENTS;

OWNERSHIP.

15.1 Upon Commission or its designated Project Leader's request, at any time during the term of the Services or upon completion or termination of the Services, Vendor shall provide Commission or its designated Project Leader with a copy of all documents prepared by Vendor. Documents shall be original and PDF versions.

15.2 The parties acknowledge that the Commission is a part of the government of the City of

New Smyrna Beach, Florida, and subject to the Florida Public Records Law. Vendor has been advised the Commission that all its activities are subject to the Public Records Law (Chapter 119, Florida

Statutes) and the Sunshine Law (Section 286.011, Florida Statutes), and agrees to maintain all records necessary to comply with the requirement of such laws, and for the proper supervision of the services performed. Vendor agrees to comply with all Commission policies and procedures in observing the requirement of said laws. Vendor shall allow public access to all documents, papers, letters, or other material subject to the provisions of Chapter 119, Florida Statutes, made or received by the Vendor in conjunction with the Services. Specifically, the Vendor must:

a. Keep and maintain public records that ordinarily and necessarily would be required by the

Commission in order to perform the services being performed by the Vendor.

b. Provide the public with access to public records on the same terms and conditions that the

Commission would provide the records and at a cost that does not exceed the cost provided in Chapter

119, Florida Statutes, or as otherwise provided by law.

c. Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law.

d. Meet all requirements for retaining public records and transfer, at no cost, to the

Commission all public records in possession of the Vendor upon termination of the Services and destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. All records stored electronically must be provided to the Commission in a format that is compatible with the information technology systems of the Commission.

e. The Vendor shall promptly provide the Commission with a copy of any request to inspect or copy public records in possession of the Vendor and shall promptly provide the Commission with a copy of the Vendor’s response to each such request. Failure to grant such public access will be grounds for immediate termination by the Commission.

IF THE VENDOR HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119,

FLORIDA STATUTES, TO THE VENDOR’S DUTY TO PROVIDE PUBLIC RECORDS

RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS

AT 386-424-3001, 200 CANAL ST, NEW SMYRNA BEACH, FL 32168,

DSIMMONS@NSBUFL.COM.

15.3 The Commission has the right to audit the books, records, and accounts of the Vendor that are related to the performance of Services. Vendors should keep such books, records and accounts as may be necessary in order to record complete and correct entries. Vendor shall preserve and make available, at reasonable times for examination and audit by Commission, all financial records, supporting documents, statistical records, and any other documents pertinent to the Services for the required retention period of the Florida Public Records Act (Chapter 119, Florida Statutes), if applicable, or if the Florida Public Records Act is not applicable for a minimum period of three (3) years after termination. If any audit has been initiated and audit findings have not been resolved at the end of the retention period or three (3) years, whichever is longer, the books, records and accounts shall be retained until resolution of the audit findings If the Florida Public Records Act is determined by Commission to be applicable to Vendor’s records, Vendor shall comply with all requirements thereof; however, no confidentiality or non-disclosure requirement of either federal or state law shall be violated by Vendor.

Any incomplete or incorrect entry in such books, records and accounts shall be a basis for Commission disallowance and/or recovery of any payment upon such entry. The Vendor should retain all records relating to the Services for five years after the Commission makes final payment and all other pending matters are closed.

15.4 Any and all reports, photographs, surveys, and other data and documents provided or created in connection with the Services are and shall remain the property of Commission. In the event of termination, any reports, photographs, surveys, and other data and documents prepared by Vendor, whether finished or unfinished, shall become the property of Commission and shall be delivered by

Vendor to the Commission within seven (7) days of termination by either party. Any compensation due to Vendor may be withheld until all documents are received as provided herein.

SECTION 16. ASSIGNMENT. Vendor shall not assign or subcontract its obligations under these

Terms and Conditions or any rights or any monies due or to become due hereunder without the prior, written consent of Commission.

SECTION 17. INDEPENDENT CONTRACTOR. The parties intend that an independent contractor relationship will be created. It is understood that the Commission does not agree to use the

Vendor exclusively. It is further understood that Vendor is free to contract for similar services to be performed for others while under contract with Commission. The parties expressly acknowledge that

Vendor is an independent Vendor, and nothing contained herein will be deemed or construed to create a partnership or joint venture between Commission and Vendor or any other relationship between the parties. Additionally, nothing herein is intended, nor shall it be construed to create an employer/employee relationship, or to allow Commission, or its agents, representative, or employees, to exercise control or direction over the manner or method by which Vendor performs any Services.

SECTION 18. AUTHORIZATION. Vendor shall not, without authorization first being given by Commission: a) Use or pledge money or credit of the Commission, except in the usual and regular course of business and on account of or for the benefit of the Commission; b) Release or discharge any debt due to Commission without receiving the full amount thereof; c) Commit any act causing seizure or attachment of the Commission property; or d) Cause Commission to become a guarantor, surety, or endorser, or give any note which obligates the Commission.

SECTION 19. TAXES. Vendor shall assume full responsibility for payment of all federal, state, and local taxes or contributions imposed or required under unemployment insurance, Social Security, and income tax laws, with respect to Vendor’s performance of the Services.

SECTION 20. DEFAULT. If Vendor shall be in default of any provision of these Terms and

Conditions, the Commission may suspend its payment or performance hereunder until such delinquency or default has been corrected; provided, however, that no suspension shall be effective unless and until

Commission gives notice of the default to Vendor with at least ten (10) days to cure such default.

SECTION 21. TERMINATION. Commission may, upon fifteen (15) days written notice to

Vendor, terminate the Vendor if: (a) Vendor is adjudged to be bankrupt; (b) Vendor makes a general assignment for the benefit of its creditors; (c) Vendor fails to comply with any of the conditions or provisions of these Terms and Conditions; or (d) Vendor is experiencing a labor dispute which threatens to have a substantial, adverse impact upon performance of the Services, without prejudice to any other right or remedy Commission may have; or (e) when deemed by the Commission (in its sole discretion) is in the best interest of the Commission. In the event of such termination, Commission shall be liable only for the payment of all unpaid charges for Services properly performed prior to the effective date of termination.

SECTION 17. FORCE MAJEURE. Any delay or failure of either party in the performance of its required obligations hereunder shall be excused if and to the extent caused by acts of God; fire;

flood; windstorm; explosion; riot; war; sabotage; strikes; extraordinary breakdown or damage to

Commission generating plants, their equipment, or facilities; court injunction or order; federal and/or state law or regulation; order by any regulatory agency; but only if prompt notice of such delay is given by such party to the other and each of the parties hereunto shall be diligent in attempting to remove such cause or causes.

SECTION 18. GOVERNING LAW. These Terms and Conditions shall be interpreted, construed, governed, and enforced in accordance with the laws of the State of Florida.

SECTION 19. LIMITATION OF LIABILITY. The Commission’s limits of liability are set forth in Section 768.28, Florida Statutes, and nothing herein shall be construed to extend the liabilities of the

Commission beyond that provided in Section 768.28, Florida Statutes, as amended from time to time; nor will anything included herein be construed as consent to be sued by any third parties in any matter arising out of this Solicitation. Nothing herein is intended as a waiver of the Commission’s sovereign immunity under Section 768.28, Florida Statutes. Nothing hereby shall inure to the benefit of any third party for any purpose, including not limited to anything which might allow claims otherwise barred by sovereign immunity or operation of law. Furthermore, all of the Commission’s obligations are limited to the payment of no more than the per person amount limitation and the aggregate contained in Section 768.28, Florida

Statutes, even if the sovereign immunity limitations of that statute are not otherwise applicable to the matters as set forth herein. The provisions of this section shall survive the completion or termination.

SECTION 20. CONSEQUENTIAL DAMAGES. To the fullest extent permitted by law, Commission shall not be liable to Vendor for consequential damages, including but not limited to, loss of profits, revenue, use, opportunity, and goodwill; cost of substitute facilities, goods, and services; cost of capital; and increased operating costs.

Attachment A

INSURANCE REQUIREMENTS

I. INSURANCE: Except as otherwise specified in this contract, the Vendor and its subcontractors of any tier will be required at their own expense to maintain in effect at all times during the performance of the work insurance coverage with limits set forth below with insurers and under forms of policies satisfactory to the Commission. It shall be the responsibility of the Vendor and its subcontractors to maintain adequate insurance coverage and to assure that subcontractors are adequately insured at all times.

Failure of the Vendor and its subcontractors to maintain adequate coverage shall not relieve it of any contractual responsibility or obligation.

The Vendor and its subcontractors shall furnish to the Commission such Certificates of Insurance or endorsements required by the provisions set forth herein, which Certificates of Insurance shall name the

Commission as Additional Insured. All Certificates of Insurance must be provided by an acceptable insurance carrier to the Commission and that the carrier should have no less rating than A - X by A.M.

Best and Company. The commission reserves the right to accept or decline carrier providing coverage.

II. CERTIFICATES OF INSURANCE: At the time of the execution of this contract and each subcontract, but in any event, prior to commencing work, the Vendor and its subcontractors shall furnish the Commission with Certificates of Insurance as evidence that the policies providing the required coverages and limits of insurance are in full force and effect. The Certificates shall provide that any company issuing an insurance policy for the work under this contract shall provide not less than thirty

(30) days’ advance notice to the Commission in writing of cancellation, non-renewal, or material change in the policy of insurance. In addition, the Vendor shall immediately provide written notice to the

Commission upon receipt of notice of cancellation of an insurance policy or a decision to terminate or alter any insurance policy.