VRC Assignment.pdf

ASSIGNMENT AGREEMENT

Contract No.: 78131804-17-01

This Assignment Agreement (Agreement), effective as of the date last signed by all Parties, to the Document Management Services No. 78131804-17-01 (Contract) is entered into by Archives Management Centers, Inc. (Assignor), having its principal office at 4385 SW Port Way Palm City, FL 34990; VRC Companies, LLC. (Assignee), having its principal office at 5400 Meltech Boulevard, Suite 101, Memphis, TN 38118; and the State of Florida Department of Management Services (Department), collectively referred to herein as the “Parties.”

Recitals

WHEREAS, the Assignor entered into the Contract referenced above with the Department on August 22, 2016; and, WHEREAS, the Assignor wishes to assign all of its rights and obligations under the Contract to Assignee; and, WHEREAS, Assignee has represented to the Department that Assignor and Assignee entered into a Purchase Agreement for the sale of Assignor’s respective assets to Assignee which closed on or about July 6, 2018 (Closing Date). Assignee has represented to the Department that Assignor is no longer operational and has no remaining assets and intends for the Department to rely upon those representations; and

WHEREAS, the Assignee represents that it can assume and fully perform the Contract.

THEREFORE, in consideration of the mutual promises contained below, and other good and valuable consideration, receipt, and sufficiency of which are hereby acknowledged, the Parties agree that the Contract shall be amended as follows:

1. The above recitals are hereby incorporated into this Agreement.

2. The term “Contract”, as used herein, whether capitalized or not, means the Contract for Document Management Services, (Contract No. 78131804-17-01), including any amendments or modifications to such Contract; and any purchase orders made pursuant to the Contract either before or after the effective date of this Agreement.

3. The Assignee accepts and agrees to be bound by and fully perform all of Assignor’s Contract obligations, duties, and responsibilities, and to abide by all terms and conditions specified in the Contract, and all amendments there to previously entered into in the name of the Assignor.

4. The Assignee agrees to assume all obligations and liabilities of, and all claims against, the

Assignor under the Participating Agreement as if the Assignee were the original party to the Participating Agreement.

5. The Assignor waives all rights under the Participating Agreement as of the effective date of this

Agreement.

6. The Parties agree that this Assignment Agreement operates as an assignment of the Contract, establishing a new contractual relationship hereby entered into by and between the Department and Assignee.

7. The Department consents to the assignment. The Assignee will be liable for claims arising from the effective Closing Date of the Purchase Agreement. The Assignee also agrees to be liable for any claims or remedies arising prior to the Closing Date of the Purchase Agreement.

8. The Assignee by this Agreement becomes entitled to all rights, titles, and interests of the Assignor in and to the contract as if the Assignee were the original party to the Contract.

Following the effective date of this Agreement, the term “Contractor,” as used in the Contract, and purchase orders, shall refer to the Assignee.

9. To the extent any of the terms of this Assignment Agreement conflict with the terms of the Contract, the terms of this Assignment Agreement shall control. All other terms of the Contract remain in full force and effect.

10. This Assignment Agreement sets forth the understanding between the parties with regard to this subject matter hereof. Each person signing this Agreement warrants that he or she is duly authorized to do so and to bind the respective Party.

IN WITNESS WHEREOF, the Parties have executed this Agreement by their duly authorized representatives.

State of Florida:

Department of Management Services

Assignor:

Archives Management Centers, Inc.

By: _____________________________

Name: Cliff Nilson Name:

Title: Deputy Director of State Purchasing Title:

Date: Date:

Assignee:

VRC Companies, LLC.

Name:

Title:

Date:

STATE OF FLORIDA

DEPARTMENT OF MANAGEMENT SERVICES

DOCUMENT MANAGEMENT SERVICES

Contract No. 78131804-17-01 Page 1 of 2 Document Management Services

This Contract is between the State of Florida, Department of Management Services (Department), an agency of the State of Florida and Archive Management Centers, Inc., (Contractor).

The Contractor submitted a bid to the Department’s solicitation, ITB 07-78131804-U for Document

Management Services. After verification of bids, the Department has accepted the Contractor’s bid as lowest price and best value to the State of Florida and enters into this Contract in accordance with the terms and conditions of the solicitation.

Awarded Counties

Region 4: Broward, Charlotte, Collier, Dade, Glades, Hendry, Lee, Martin, Monroe, Palm Beach, and St. Lucie counties.

Accordingly, the Parties agree as follows:

Initial Contract Term

The Initial Contract Term will be for five (5) years. The Initial Contract Term shall begin on August

22, 2016 or the last date upon which this Contract is signed by all Parties.16.3

Renewal Term(s)

Upon mutual written agreement, the Department and the Contractor may renew this Contract, in whole or in part, for a Renewal Term not to exceed the Initial Contract Term of five (5) years, pursuant to the incorporated General Contract Conditions.

Contract

As used in this document, the term “Contract” (whether or not capitalized) shall, unless the context requires otherwise, be considered to be references to this Contract, including all Exhibits attached, which set forth the entire understanding of the Parties and supersedes all prior agreements, whether written or oral, with respect to such subject matter.

All Exhibits attached to this Contract are incorporated in their entirety into, and form part of, this

Contract. The Contract has the following Exhibits:

• Exhibit A: Definitions.

• Exhibit B: General Contract Conditions.

• Exhibit C: Special Contract Conditions.

• Exhibit D: Statement of Work.

• Exhibit E: Price Sheet(s)

• The Contractor’s Bid to this solicitation.

In case of conflict, the terms of this Contract shall control. If a conflict exists among any of the attached documents, the documents shall have priority in the order listed:

• Exhibit A: Definitions.

• Exhibit C: Special Contract Conditions.

• Exhibit B: General Contract Conditions.

• Exhibit D: Statement of Work.

Contract No. 78131804-17-01 Page 2 of 2

• Exhibit E: Price Sheet(s)

• The Contractor’s Bid to this solicitation

Amendments

No oral modifications to this Contract are acceptable. All modifications to this Contract must be in writing and signed by all Parties. Any future amendments of the Contract which alter the definition of the Statement of Work shall define the Services or Solution in the same format as

Exhibit D, Statement of Work.

IN WITNESS THEREOF, the Parties hereto have caused this Contract, which includes any referenced attachments, to be executed by their undersigned officials as duly authorized. This

Contract is not valid until signed and dated by the Parties.

ARCHIVE MANAGEMENT STATE OF FLORIDA,

CENTERS, INC. DEPARTMENT OF MANAGEMENT SERVICES

Dale A. Poston, President Debra Forbess, Director of Finance and

Administration

DATE: DATE:

List of Exhibits

Exhibit A: Definitions

Exhibit B: General Contract Conditions

Exhibit C: Special Contract Conditions

Exhibit D: Statement of Work

Exhibit E: Price Sheet(s)

Contract No. 78131804-17-01 Page 1 of 2

Exhibit A: Definitions

Definitions contained in section 287.012, Florida Statutes, Rule 60A-1.001, Florida Administrative Code, Form PUR 1000 and Form PUR 1001 are incorporated by reference, and apply to this solicitation. These definitions apply in both their singular and plural sense.

Acid Free Carton – An acid-free, 1.2 cubic feet carton made from materials with a pH level of eight (8) or above used to transport and suitable for permanent archival storage of records.

Ceiling Price – The maximum cost the Department has assigned to a service or commodity.

Ceiling prices are “not to exceed” prices and lower pricing may be negotiated by the Customer(s).

Confidential Information - Any portion of a company’s documents, data, or records disclosed relating to its bid that the Contractor claims is confidential and not subject to disclosure pursuant to Chapter 119, Florida Statutes, the Florida Constitution, or any other authority that is clearly marked “Confidential”.

Contract - The written agreement resulting from ITB 07-78131804-U.

Contractor - The business entity that has been awarded a contract resulting from ITB 07- 78131804-U.

Customer Portal and Repository – A secure, Internet-based records and information management system that permits Customer access to their inventory of physical records, electronic records and their storage account information.

Destruction – Certified Shredding – The process of securely and certifying the shredding of paper contents and other products.

Document Management Services – The professional practice of managing the records of an organization throughout their life cycle, from the time they are created to their eventual disposal.

This includes identifying, classifying, storing, securing, retrieving, transporting, tracking, copying and destroying or permanently preserving records.

JPEG (Joint Photographic Experts Group) – An open or universal compression algorithm for image files.

Physical Destruction - The physical destruction of storage devices as referenced in Exhibit D Statement of Work, Section 2.5, Electronic Media Storage.

Record – Documented information, regardless of its physical form, characteristics, format, medium, and the manner it is stored, that memorializes and provides objective evidence of activities performed, events occurred, results achieved, or statements made or received by an organization in routine transaction of its business.

Region – Service area (counties) defined in the Regional Map in Exhibit D, Section 2.35.

Scanning-Large Documents – The scanning of a large document(s) greater in size than 8.5” x 14” at 300 DPI in grayscale or color.

Contract No. 78131804-17-01 Page 2 of 2

Searchable PDF (Portable Document Format) – A searchable file format standard that provides a way of distributing, viewing, and printing documents with consistent appearance across a number of computer platforms and allows for Adobe Acrobat search functionality within the file.

Files created from printed documents closely match the paper version including graphics, photographs, and fonts and are compressed for easy downloading and distribution. This file format can be used to present documents in a manner independent of application software, hardware, and operating systems.

Sensitive Records - Records that must be protected from damage and degradation and may also have a heightened sense of security, be exempt from public record requirements or may be considered confidential under law. These records also may contain personal health information or other privacy information.

Service Price – The purchase amount for the indicated service or commodity.

Standard Carton – A standard, 1.2 cubic feet carton used to transport and store non-permanent records.

TIFF (Tagged Image File Format) - A computer file format for storing bit-mapped images and data. Includes several types and groups, which are compressed and uncompressed.

Remainder of Page Intentionally Left Blank

Contract No. 78131804-17-01 Page 1 of 17

Exhibit B: General Contract Conditions

Table of Contents

SECTION 1. DEFINITIONS

SECTION 2. STATE TERM CONTRACT

SECTION 3. PAYMENT AND FEES

SECTION 4. CONTRACT DOCUMENT

SECTION 5. CONTRACT MANAGEMENT

SECTION 6. COMPLIANCE WITH LAWS

SECTION 7. CONTRACTOR REQUIREMENTS

SECTION 8. WORKERS’ COMPENSATION AND GENERAL LIABILITY INSURANCE

SECTION 9. PUBLIC RECORDS AND TRADE SECRETS

SECTION 10. INTELLECTUAL PROPERTY

SECTION 11. SCRUTINIZED COMPANY LIST

SECTION 12. DATA SECURITY AND SERVICES

SECTION 13. RECORDS RETENTION

SECTION 14. GIFTS AND LOBBYING

SECTION 15. INSPECTION AND VENDOR OMBUDSMAN

SECTION 16. CONTRACT MONITORING

SECTION 17. CONTRACT AUDITS

SECTION 18. BACKGROUND SCREENING AND SECURITY

These General Contract Conditions supersede and replace in their entirety all General

Contract Conditions, PUR 1000, which is incorporated by Rule 60A-1.002, F.A.C.

SECTION 1. DEFINITIONS.

The following definitions apply in addition to the definitions in Chapter 287, F.S., and Rule Chapter 60A-1, F.A.C.:

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

1.2 State - The State of Florida.

Contract No. 78131804-17-01 Page 2 of 17

SECTION 2. STATE TERM CONTRACT.

2.1 Initial Term.

The Initial Contract Term will be for five (5) years. The Initial Contract Term shall begin on August 22, 2016 or the last date upon which this Contract is signed by all Parties.

2.2 Renewal Term.

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 in its sole discretion suspend any or all activities under the Contract, at any time, when in the best interest of the State to do so. A Customer may suspend a 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 the reason for suspension include, but are not limited to, budgetary constraints, declaration of emergency, or other such circumstances. After receiving a suspension notice, the Contractor shall comply with the notice and shall not accept any purchase orders. Within 90 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 shall resume, or (2) terminate the Contract or purchase order. Suspension of work shall not entitle the Contractor to any additional compensation.

2.3.2 Termination for Convenience.

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

2.3.3 Termination for Cause.

If the Department determines that the performance of the Contractor is not satisfactory, the Department shall have the option of (a) immediately terminating the Contract, or (b) notifying the Contractor of the deficiency with a requirement that the deficiency be corrected within a specified time, otherwise the Contract will be terminated 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 shall adhere to the ceiling prices, which are incorporated by reference into the Contract. Ceiling prices are “not to exceed” prices and lower pricing may be negotiated by the Customer under this Contract.

Contract No. 78131804-17-01 Page 3 of 17

3.2 Price Decreases.

The following price decrease terms will apply to the Contract:

(a) Quantity Discounts. Contractor may offer additional discounts for one-time delivery of large single orders.

(b) 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 price/fees over the course of the Contract period. To that end, the price indicated in this Contract is a maximum guarantee. Contractor’s fee or price under this Contract will not exceed the Contractor’s total fees or price then in effect for substantially the same commodities or contractual services to any organization with similar services to those in this Contract. During the term of the Contract, if Contractor implements or provides any other client, whether a public or private entity, such pricing more favorable than the pricing in this Contract, then Contractor agrees to offer equivalent pricing terms to the Department and if the Department accepts then the Department and Contractor will execute an amendment of this Contract.

The Contractor shall submit to the Department a completed Preferred Pricing affidavit form annually.

(c) Sales Promotions. In addition to decreasing prices for the balance of the Contract term due to a change in market conditions, a Contractor may conduct sales promotions involving price reductions for a specified lesser period. A Contractor shall submit 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 properly certified invoice(s) to the Customer after delivery and acceptance of commodities or contractual services is confirmed in writing by the Customer. Invoices shall contain detail sufficient for an audit and shall 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. The

Contractor shall 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 shall not exceed the expiration of the Contract by more than 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 or 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.

Contract No. 78131804-17-01 Page 4 of 17

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), Florida Statutes. All payments issued by Agencies or Eligible Users to registered Vendors for purchases of commodities or contractual services shall be assessed Transaction Fees as prescribed by rule 60A-1.031, Florida Administrative Code, or as may otherwise be established by law. Vendors shall pay the Transaction Fees and agree to automatic deduction of the Transaction Fees, when automatic deduction becomes available. Vendors shall submit any monthly reports required pursuant to the rule. All such reports and payments shall be subject to audit. Failure to comply with the payment of the Transaction Fees or reporting of transactions shall constitute grounds for declaring the Vendor in default and subject the Vendor to exclusion from business with the State of Florida.

3.8 Taxes.

The State of Florida is not required to pay any taxes, including customs and tariffs, on commodities or contractual services purchased under the Contract.

3.9 Return of Funds.

Contractor will return to the Department or Customer any overpayments due to unearned funds or funds disallowed pursuant to the terms of the Contract that were disbursed to the Contractor by the Department or Customer. The Contractor shall return any overpayment to the Department or Customer within 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 DOCUMENT.

4.1 Composition and Priority.

The Contractor agrees to provide commodities or contractual services to the Customer within the manner and at the location specified in the Contract, and any attachments to 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 shall be delivered to the designated Contract Manager by certified mail, return receipt requested, by reputable air courier service, email, or by personal delivery, or as otherwise identified by the Department.

SECTION 5. CONTRACT MANAGEMENT.

5.1 Department’s Contract Manager.

The Department’s Contract Manager, who is primarily responsible for the Department’s oversight of the Contract:

Jennifer Hyatt

Division of State Purchasing Florida Department of Management Services 4050 Esplanade Way, Suite 360 Tallahassee, Florida 32399-0950 Telephone: (850) 414-6741

Contract No. 78131804-17-01 Page 5 of 17

Email: jennifer.hyatt@dms.myflorida.com

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.

5.2 Contractor’s Contract Manager.

The Contractor’s Contract Manager, who is primarily responsible for the Contractor’s oversight of the Contract:

Dale A. Poston Archives Management Centers, Inc.

4385 SW Port Way Palm City, FL 34990 Telephone: (772) 220-4820 Email: dposton@archives-amc.com

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

5.3 Diversity Reporting.

The State of Florida supports its diverse business community by creating opportunities for woman-, veteran-, and minority-owned small businesses 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 osdhelp@dms.myflorida.com.

The Contractor shall report to the Customer 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 Customer purchasing under the Contract.

5.4 RESPECT.

In accordance with subsection 413.036(3), F.S., if commodities or contractual services required for the performance of the Contract are on the procurement list established pursuant to subsection 413.035(2), 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:jennifer.hyatt@dms.myflorida.com mailto:dposton@archives-amc.com mailto:osdhelp@dms.myflorida.com http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0400-0499/0413/Sections/0413.036.html

Contract No. 78131804-17-01 Page 6 of 17

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

5.5 PRIDE.

Notwithstanding a purchasing authority making reasonable sourcing determinations of need, price, and quality for products or services comparable in performance specifications, price and quality and in accordance with subsection 946.515(6), F.S., if commodities or contractual services required for the performance of the Contract is certified by or is available from Prison Rehabilitative Industries and Diversified Enterprises, Inc. (PRIDE) and has been approved in accordance with subsection 946.515(2), 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 6. COMPLIANCE WITH LAWS.

6.1 Conduct of Business.

The Contractor shall 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 shall comply with Section 247A of the Immigration and Nationality Act, the Americans with Disabilities Act, Health Insurance Portability and Accountability Act, and all prohibitions against discrimination on the basis of race, religion, sex, creed, national origin, handicap, marital status, or veteran’s status.

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.

6.2 Notice of Legal Actions.

The Contractor shall notify the Department of any legal actions filed against it for a violation of any laws, rules, codes, ordinances or licensing requirements within 30 days of the action being filed. The Contractor shall notify the Department of any legal actions filed against it for a breach of a contract of similar size and scope to this Contract within 30 days of the action being filed. Failure to notify the Department of a legal action within 30 days of the action shall be grounds for termination for cause of the Contract.

http://www.respectofflorida.org/ http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0900-0999/0946/Sections/0946.515.html http://www.pride-enterprises.org/

Contract No. 78131804-17-01 Page 7 of 17

6.3 Governing Law and Venue.

The laws of the State of Florida shall 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.

6.4 Independent Contractor.

The Contractor and its employees, agents, representatives, and subcontractors are not employees or agents of the Department and are not entitled to the benefits of State of Florida employees. The Department shall 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.

6.5 Waiver.

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

6.6 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 shall not be affected, and the rights and obligations of the Parties shall be construed and enforced as if the Contract did not contain the provision held invalid.

6.7 Time is of the Essence.

Time is of the essence regarding each and every obligation of the Contractor. 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 Convicted and Discriminatory Vendor Lists.

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

6.9 Cooperation with Inspector General.

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 shall provide any type of information the Inspector General deems relevant to the Contractor's integrity or responsibility. Such information may include, but shall not be limited to, the Contractor's business or financial records, documents, or files of any type or form that refer to or relate to the Contract. The Contractor shall retain such records for five years after the expiration of the Contract, or the period required by the General Records Schedules maintained by the Florida Department of State (available at: http://dos.myflorida.com/library-http://dos.myflorida.com/library-archives/records-management/general-records-schedules/

Contract No. 78131804-17-01 Page 8 of 17 archives/records-management/general-records-schedules/), whichever is longer. The Contractor agrees to reimburse the State for the reasonable costs of investigation incurred by the Inspector General or other authorized State official for investigations of the Contractor's compliance with the terms of this or any other agreement between the Contractor and the State which results in the suspension or debarment of the Contractor.

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

SECTION 7. CONTRACTOR REQUIREMENTS.

7.1 Department of State Registration.

The Contractor and any subcontractors that assert corporate status must provide the Department with conclusive evidence, per section 607.0127, F.S., 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.

7.2 Subcontractors.

The Contractor shall not subcontract any work under the Contract without prior written consent of the Department. The Contractor is fully responsible for satisfactory completion of all subcontracted work. The Department supports diversity in its procurements and contracts, and requests that Contractors 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.

7.3 Assignment.

The Contractor shall not sell, assign or transfer any of its rights, duties or obligations under the Contract without the prior written consent of the Department. In the event of any assignment, the Contractor remains secondarily liable for performance of the Contract, unless the Department expressly waives such secondary liability. The Department may assign the Contract with prior written notice to the Contractor.

7.4 Risk of Loss.

Matters of inspection and acceptance are addressed in section 215.422, F.S. Until acceptance, risk of loss or damage shall remain with the Contractor. The Contractor shall be responsible for filing, processing, and collecting all damage claims. To assist the Contractor with damage claims, the Customer shall: record any evidence of visible damage on all copies of the delivering carrier’s Bill of Lading; report damages to the carrier and the Contractor; and provide the Contractor with a copy of the carrier’s Bill of Lading and damage inspection report. When a Customer or the Department rejects a commodity, Contractor shall remove the commodity from the premises within 10 days after notification of rejection and the risk of loss shall remain with the Contractor. Commodities not removed by the Contractor within 10 days shall be deemed abandoned by the Contractor and the Customer or the Department shall have the right to dispose of it as its own property. Contractor shall reimburse the Customer or the Department for costs and expenses incurred in storing or effecting removal or disposition of rejected commodities.

7.5 Safety Standards.

All manufactured items and fabricated assemblies subject to operation under pressure, operation by connection to an electric source, or operation involving connection to a manufactured, natural, or LP gas source shall be constructed and approved in a manner mailto:osdhelp@dms.myflorida.comf

Contract No. 78131804-17-01 Page 9 of 17 acceptable to the appropriate State inspector. Acceptability customarily requires, at a minimum, an identification marking of the appropriate safety standard organization, where such approvals of listings have been established for the type of device offered and furnished, for example: the American Society of Mechanical Engineers for pressure vessels; the Underwriters Laboratories and/or National Electrical Manufacturers’ Association for electrically operated assemblies; and the American Gas Association for gas-operated assemblies. In addition, all items furnished shall meet all applicable requirements of the Occupational Safety and Health Act and State of Florida and federal requirements relating to clean air and water.

SECTION 8. WORKERS’ COMPENSATION AND GENERAL LIABILITY INSURANCE.

8.1 Workers’ Compensation Insurance.

To the extent required by law, the Contractor shall be self-insured against, or shall 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 shall 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 shall 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 shall provide, and cause each subcontractor to provide, adequate insurance satisfactory to the Department, for the protection of employees not otherwise protected.

8.2 General Liability Insurance.

The Contractor shall secure and maintain Commercial General Liability Insurance including bodily injury, property damage, products, personal & advertising injury and completed operations. This insurance shall 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 shall include a Hold Harmless Agreement in favor of the State of Florida and also 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 shall be with insurers licensed or eligible to transact business in the State of Florida. The Contractor’s current certificate of insurance shall contain a provision that the insurance shall not be canceled for any reason except after thirty (30) days written notice to the Department’s Contract Manager.

The Contractor(s) shall submit insurance certificates evidencing such insurance coverage prior to execution of a contract with the Department.

The Contractor shall require its insurance carrier to add the Department to the insurance policies as an additional insured, as provided below:

Florida Department of Management Services c/o Division of State Purchasing

Contract No. 78131804-17-01 Page 10 of 17

4050 Esplanade Way, Suite 360 Tallahassee, Florida 32399-0950

8.3 Indemnity.

To the extent permitted by Florida law, the Contractor agrees to indemnify, defend, and hold the Department, Customer, 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 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.

Further, the Contractor shall fully indemnify, defend, and hold harmless the Department from any suits, actions, damages, and costs of every name and description, including attorneys’ fees, arising from or relating to violation or infringement of a trademark, copyright, patent, trade secret or intellectual property right.

SECTION 9. PUBLIC RECORDS AND TRADE SECRETS.

9.1 Public Records.

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 CONTRACT

MANAGER.

(1) The Department may unilaterally cancel this Contract for refusal by the Contractor to comply with this section by not allowing public access to all documents, papers, letters or other material made or received by the Contractor in conjunction with the Contract, unless the records are exempt from section 24(a) of Article I of the State Constitution and section 119.07(1), F.S.

(2) If, under this Contract, the Contractor is providing services and is acting on behalf of a public agency as provided by section 119.0701, F.S., the Contractor shall:

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

(b) Upon request from the public agency, 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 requirements are not disclosed except as authorized by

Contract No. 78131804-17-01 Page 11 of 17 law for the duration of the contract term and following 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 in a format that is compatible with the information technology systems of the public agency.

9.2 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 812.081, F.S., or otherwise confidential under Florida or federal law, the Contractor must clearly designate that portion of the materials as “confidential” when submitted to the Department.

If the Department receives a public records request for contract-related materials designated by the Contractor as “confidential,” the Department will provide only the portions of the contract-related materials not designated as “confidential.” If the requester asserts a right to examine contract-related materials designated as “confidential,” the Department will notify the Contractor. The Contractor will be responsible for responding to and resolving all claims for access to contract-related materials it has designated “confidential.”

If the Department is served with a request for discovery of contract-related materials designated “confidential,” the Department will promptly notify the Contractor about the request. 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 “confidential” only if the Contractor fails to take appropriate action, within timeframes established by statute and court rule, to protect the materials designated as “confidential” from disclosure.

The Contractor shall protect, defend, and indemnify the Department for claims, costs, fines, and attorney’s fees arising from or relating to its designation of contract-related materials as “confidential.”

SECTION 10. INTELLECTUAL PROPERTY.

10.1 Intellectual Property.

Unless specifically addressed in the Contract, intellectual property rights to all property created or otherwise developed by the Contractor for the Department will be owned by the State of Florida through the Department at the completion of the Contract. Proceeds to the Department derived from the sale, licensing, marketing or other authorization related to any such Department-controlled intellectual property right shall be handled in the manner specified by applicable Florida statute.

Contract No. 78131804-17-01 Page 12 of 17

SECTION 11. SCRUTINIZED COMPANY LIST.

11.1 Certified Not Scrutinized.

If the Contract exceeds $1,000,000.00 in total, not including renewal years, Contractor certifies that it is not listed on either the Scrutinized Companies with Activities in Sudan List or the Scrutinized Companies with Activities in the Iran Petroleum Energy Sector List, created pursuant to section 215.473, F.S. Pursuant to section 287.135(5), F.S., Contractor agrees the Department may immediately terminate the Contract for cause if the Contractor is found to have submitted a false certification or if Contractor is placed on the Scrutinized Companies with Activities in Sudan List or the Scrutinized Companies with Activities in the Iran Petroleum Energy Sector List during the term of the Contract.

SECTION 12. DATA SECURITY AND SERVICES.

12.1 Duty to Provide Secure Data.

The Contractor will maintain the security of State of Florida Data including, but not limited to, a secure area around any display of such Data or Data that is otherwise visible. The Contractor will also comply with all HIPAA requirements and any other state and federal rules and regulations regarding security of information.

12.2 Warranty of Security.

Unless otherwise agreed in writing, the Contractor and its subcontractors will not perform any of the services from outside of the United States, and the Contractor will not allow any State of Florida Data to be sent by any medium, transmitted or accessed outside of the United States.

The Contractor agrees that a violation of items listed above will result in immediate and irreparable harm to the Department and will entitle the Department to a credit of $50,000 per violation, with a total cap of $500,000 per event. This credit is intended only to cover the Department’s internal staffing and administrative costs as well as the diminished value of services provided under the Contract and will not preclude the Department from recovering other damages it may suffer as a result of such violation. For purposes of determining the damages due hereunder, a group of violations relating to a common set of operative facts (e.g., same location, same time period, same off-shore entity) will be treated as a single event. A violation of this provision will also entitle the Department to recover damages, if any, arising from a breach of this section and constitutes an event of default.

Notwithstanding any provision of this Contract to the contrary, the Contractor shall notify the Department as soon as possible, in accordance with the requirements of section 501.171, F.S., and in all events within one (1) business day in the event Contractor discovers any Data is breached, any unauthorized access of Data occurs (even by persons or companies with authorized access for other purposes), any unauthorized transmission of Data or any credible allegation or suspicion of a material violation of the above. This notification is required whether the event affects one agency/customer or the entire population. The notification shall be clear and conspicuous and include a description of the following:

(a) The incident in general terms.

(b) The type of information that was subject to the unauthorized access and acquisition.

Contract No. 78131804-17-01 Page 13 of 17

(c) The type and number of entities who were, or potentially have been affected by the breach.

(d) The actions taken by the Contractor to protect the Data from further unauthorized access. However, the description of those actions in the written notice may be general so as not to further increase the risk or severity of the breach.

12.3 Remedial Measures.

Upon becoming aware of an alleged security breach or security incident under section 12, the Contractor’s Contractor Manager shall set up a conference call with the Department’s Contract Manager. The conference call invitation shall contain a brief description of the nature of the event. When possible, a 30 minute notice shall be given to allow Department personnel to be available for the call. If the designated time is not practical for the Department, an alternate time for the call shall be scheduled. All available information shall be shared on the call. The Contractor shall answer all questions based on the information known at that time and shall answer additional questions as additional information becomes known. The Contractor shall provide the Department with final documentation of the incident including all actions that took place. If the Contractor becomes aware of a security breach or security incident outside of normal business hours, the Contractor shall notify the Contract Manager and in all events, within one business day.

12.4 Indemnification (Breach of Warranty of Security).

The Contractor agrees to defend, indemnify and hold harmless the Department, Customer, the State of Florida, its officers, directors and employees for any claims, suits or proceedings related to a breach of the Warranty of Security. The Contractor will include credit monitoring services at its own cost for those individuals affected or potentially affected by a breach of this warranty for a two year period of time following the breach.

12.5 Annual Certification.

The Contractor is required to submit an annual certification demonstrating compliance with the Warranty of Security to the Department by December 31 of each Contract year.

SECTION 13. RECORDS RETENTION

13.1 Document Management.

The Contractor shall retain sufficient documentation to substantiate claims for payment under the Contract and all other records, electronic files, papers and documents that were made in relation to this Contract. Contractor shall retain all documents related to the Contract for five (5) years after expiration of the Contract, or, if longer, the period required by the General Records Schedules maintained by the Florida Department of State available at:

http://dos.myflorida.com/library-archives/records-management/general-records-schedules/.

SECTION 14. GIFTS AND LOBBYING.

14.1 Gratuities.

The Contractor shall not, in connection with this Contract, directly or indirectly (1) offer, give, or agree to give anything of value to anyone as consideration for any State officer or

Contract No. 78131804-17-01 Page 14 of 17 employee’s decision, opinion, recommendation, vote, other exercise of discretion, or violation of a known legal duty, or (2) offer, give, or agree to give to anyone anything of value for the benefit of, or at the direction or request of, any State officer or employee.

14.2 Lobbying.

In accordance with sections 11.062 and 216.347, F.S., Contract funds are not for the purpose of lobbying the Legislature, the judicial branch, or the Department.