Item T7 County of Monroe BOARD OF COUNTY COMMISSIONERS
Mayor David Rice,District 4
Mayor Pro Tem Craig Cates,District I
The Florida Keys '
Y � ��F' Michelle Coldiron,District 2
Vacant,District 3
--' Holly Merrill Raschein,District 5
County Commission Meeting
January 21, 2022
Agenda Item Number: T.7
Agenda Item Summary #10168
BULK ITEM: Yes DEPARTMENT: Public Libraries
TIME APPROXIMATE: STAFF CONTACT: Kimberly Matthews (305) 292-4540
No
AGENDA ITEM WORDING: Approval to expend up to $300,000 in library funds for the
purchase of library lending materials from Baker & Taylor using the BOCC approved purchasing
contract and approval of delegation of the purchasing authority to Kimberly Matthews to sign
individual invoices for the Library's material collection, the cumulative value of which will not
exceed $300,000.
ITEM BACKGROUND: In accordance with Florida Statute 257.25 which states, "Free library
service.-Free library service shall constitute as a minimum the free lending of library materials that
are made available for circulation and the free provision of reference and information services." the
Monroe County Public Library System makes available print and non-print material to the
community.
The Monroe County Public Library System is requesting approval to expend it's materials budget
primarily with one vendor, Baker & Taylor, utilizing our BOCC approved agreement with them.
The Library utilizes Baker & Taylor to procure Books and Non-Print Library Materials and Related
Ancillary Services through an agreement under the terms of their Florida State Contract ACS No. 55000000-
20-NY-ACS (Approved by the BOCC on 9/16/2020- and expiring 5/31/2022 -Agenda Item ID 47262) Our
material allocation from ad valorum is $244,651.00. This is augement from various other library
cost centers as demand and need for additional material dictates including revenue from donations,
and state aid. As new titles are released, the Library seeks approval to continue to purchasing from
Baker & Taylor using the library materials budget's multiple cost centers. Over the entire fiscal year
there will likely be 500+ invoices that may range from $50 or less to thousands of dollars. However,
culminative these invoices will not exceed the available budget. Due to the nature of these
purchases spanning throughout the fiscal year, the Library seeks approval of delegation of the
purchasing authority to Kimberly Matthews to sign individual invoices, the cumulative value of
which will not exceed $300,000.
Building and maintaining the Library's collection is an ongoing process requiring 100's of staff
hours from selection to order to receipt. Even with these pieces in place, the unpredictable nature of
publishing release dates, material availability and prices that change from estimated prices prior to
release to a final publish cost. These complexities further extend to ongoing calculations on amount
of linear shelving available in each facility, size of the books once published and how a collection
will be organized within the library. Despite all these factors, the primary focus is always to
purchase material that will appeal to and meet the needs of the community.
PREVIOUS RELEVANT BOCC ACTION:
9/16/2020 BOCC granted approval of an Agreement with Baker & Taylor to procure Books and Non-Print
Library Materials and Related Ancillary Services under the terms of their Florida State Contract ACS No.
55000000-20-NY-ACS (Agenda Item ID 47262)
12/19/2001 BOCC granted approval and authorized execution of a License Agreement between Monroe
County and Baker & Taylor, Inc. to subscribe to the Title Source II product which is an online automated
system that provides library materials ordering, inventory management and records downloading for the
Monroe County Public Libraries.
CONTRACT/AGREEMENT CHANGES:
Agreement
STAFF RECOMMENDATION:
DOCUMENTATION:
Baker and Taylor LLC ACS Contract with Florida
FINANCIAL IMPACT:
Effective Date: 1/21/2022
Expiration Date: 9/30/2022
Total Dollar Value of Contract: 0
Total Cost to County: Will not exceed $300,000
Current Year Portion: All in FY22
Budgeted: Yes
Source of Funds: Multiple Cost Centers not to exceed $300,000 total over the FY22
CPI: NA
Indirect Costs: None
Estimated Ongoing Costs Not Included in above dollar amounts: None
Revenue Producing: No If yes, amount:
Grant: No
County Match: None
Insurance Required: No
Additional Details:
Multiple Cost Centers not to exceed $300,000 total over the FY22
09/16/20 132-30000 - CTYWIDE LIBRARY PROJECTS ($250,000.00)
REVIEWED BY:
Kimberly Matthews Completed 01/19/2022 4:36 PM
James Molenaar Completed 01/20/2022 9:54 AM
Purchasing Completed 01/20/2022 10:34 AM
Budget and Finance Completed 01/20/2022 11:48 AM
Maria Slavik Completed 01/20/2022 1:06 PM
Liz Yongue Completed 01/20/2022 1:29 PM
Board of County Commissioners Pending 01/21/2022 9:00 AM
DocuSign Envelope ID: 15115E94-15A4-4OA5-996F-48AD1 E4FOB34
Department of
MANAGEMENT
SERVICES I
We serve those who serve Florida
Alternate Contract Source (ACS)
No. 55000000-20-NY-ACS
For
Books and Non-Print Library Materials, and Related Ancillary Services
This Contract is made by and between the State of Florida, Department of Management
Services (Department), an agency of the State of Florida (State), and Baker and Taylor, LLC,
2550 West Tyvola Road, Suite 300, Charlotte, NC 28217 (Contractor), collectively referred
to herein as the "Parties."
The Department is authorized by section 287.042(16), Florida Statutes, "To evaluate
contracts let by the Federal Government, another state, or a political subdivision for the
provision of commodities and contract services, and, if it is determined in writing to be cost-
effective and in the best interest of the state, to enter into a written agreement authorizing an
agency to make purchases under such contract."
The State of New York competitively procured Books and Non-Print Library Materials, and
Related Ancillary Services, and signed contract award number 22868 with the Contractor,
attached hereto as Exhibit D (Master Agreement). The Master Agreement became effective
on June 1, 2015, and is scheduled to expire on May 31, 2022. No renewal options are
available.
The Department evaluated the Master Agreement, and hereby acknowledges that use of the
Master Agreement as an alternative source contract is cost-effective and in the best interest
of the State.
Accordingly, the Parties agree as follows:
1. Term and Effective Date.
The initial term of this Contract will begin June 30, 2020, or on the date the Contract is
fully signed by all Parties and will expire May 31, 2022, consistent with the Master
Agreement, unless terminated earlier in accordance with the Special Contract Conditions
or Additional Special Contract Conditions.
2. Modifications or Additions to Master Agreement.
a) As used in this document, Contract (whether or not capitalized) will, unless the
context requires otherwise, mean this document and all incorporated Exhibits,
which set forth the entire understanding of the Parties and supersedes any and all
Page 1 of 4
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Alternate Contract Source (ACS)
No. 55000000-20-NY-ACS
For
Books and Non-Print Library Materials, and Related Ancillary Services
prior agreements. This Contract may only be modified or amended upon mutual
written agreement by the Parties. If amendments are made to the Master
Agreement, the Contractor shall: 1) notify the Department of such amendments;
and 2) provided the Department is amenable to incorporating the amendments into
this Contract, enter into a written amendment with the Department reflecting the
addition of such amendments to this Contract.
b) All Exhibits attached or listed below are incorporated in their entirety into, and will
form part of, this Contract. Exhibits A, B,and C modify or supplement the terms
and conditions of the Master Agreement. In the event of a conflict, the following
order of precedence shall apply:
i. This Contract and amendments, with the latest issued having priority.
ii. Exhibit A: Additional Special Contract Conditions (Florida)
iii. Exhibit B: Special Contract Conditions (Florida)
iv. Exhibit C: Price Sheet
v. Exhibit D: Master Agreement
c) Where the laws and regulations of a state other than the State of Florida are cited
or referenced in the Master Agreement, such citation or reference shall be replaced
by the comparable Florida law or regulation.
d) The first line of the "Price" section of the Master Agreement is modified as follows:
Price shall include all customs duties and charges and shall be net, F.O.B.
destination, any point in Nlev.g York the State of Florida and shall include
inside delivery inside doors of Authorized User's receiving platform.
3. Purchases off this Contract.
Upon execution of this Contract, agencies (as defined in section 287.012, Florida
Statutes) may purchase products and services under this Contract using this State of
Florida ACS No. 55000000-20-NY-ACS. State agencies acknowledge and agree to be
bound by the terms and conditions of the Master Agreement except as otherwise specified
in this Contract.
Page 2 of 4
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Alternate Contract Source (ACS)
No. 55000000-20-NY-ACS
For
Books and Non-Print Library Materials, and Related Ancillary Services
4. Primary Contacts
Department's Contract Manager:
Thomas Bower
Division of State Purchasing
Florida Department of Management Services
4050 Esplanade Way, Suite 360
Tallahassee, Florida 32399-0950
Telephone: (850) 488-6904
Email: Thomas. owerp_dms.my lorida.com
Contractor's Contract Manager:
Lee Ann Queen
Baker and Taylor, LLC
2550 West Tyvola Road, Suite 300
Charlotte, NC 28217
Telephone: (800) 775-7930
Email: idsCa,ba er-taylor.com
6. Warranty of Authority
Each person signing this document warrants that he or she is duly authorized to do so and
to bind the respective party.
7. Entire Agreement of the Parties
This document and the attached exhibits constitute the Contract and the entire
understanding of the Parties. Any amendments hereto must be in writing and signed by
the Parties.
Page 3 of 4
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Alternate Contract Source (ACS)
No. 55000000-20-NY-ACS
For
Books and Non-Print Library Materials, and Related Ancillary Services
IN WITNESS THEREOF, the Parties here to have caused this Contract, which includes the
attached and incorporated Exhibits, to be executed by their undersigned officials as duly
authorized. This Contract is not valid and binding until signed and dated by the Parties.
CONTRACTOR STATE OF FLORIDA,
Baker and Taylor, LLC DEPARTMENT OF
MANAGEMENT SERVICES
QocuSigned by:
DocuSigned by:
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EaZA9FdFfi9Ri1RdR?
Director-Pricing Services Tami Fillyaw
Chief of Staff
7/14/2020 2:47 PM EDT 7/14/2020 1 6:47 PM EDT
Date: Date:
MONROE COUNTY ATTORNEY
PPWVD AS TO FORM
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JAMES EN R
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Page 4 of 4
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Der)artmer)t of
MENT
MANAGE 7 A
SERVICES
Ill
Wes serve I hosc,who serve Florida
ADDITIONAL SPECIAL CONTRACT CONDITIONS
Exhibit A
The following changes are modifying or supplementing the Master Agreement terms and
conditions.
1. Vendor Registration: In order to complete any transaction between a Customer and the
Contractor, the Contractor must be registered in My loridaMarket lace.
2. Additional Customer Terms: If any additional ordinance, rule, or other local governmental
authority requires additional contract language before a Customer can make a purchase
under this Contract, the Customer is responsible for entering a separate agreement with
the Contractor and capturing that additional contract language therein.
3. The State of Florida's performance and obligation to pay under this Contract is contingent
upon an annual appropriation by the Legislature. The Contractor shall comply with section
11.062, Florida Statutes and section 216.347, Florida Statutes, prohibiting use of funds to
lobby the Legislature, Judicial, or state agencies.
4. Employment Eligibility Verification: The language of Subsection 13.2 of the Special
Contract Conditions regarding E-Verify shall apply to resellers as well as other
subcontractors.
5. Orders: Any Order placed by a Customer for a Product and/or Service available from this
Contract shall be deemed to be a sale under and governed by the terms and conditions of
the Contract. To the extent the Customer and the Contractor agree on additional terms, the
terms will be documented on the Customer Order, and signed by both parties.
Contractor must be able to accept purchase orders via fax, e-mail, or the
MyFloridaMarketPlace (MFMP).
6. Electronic Invoicing: The Contractor may supply electronic invoices in lieu of paper-based
invoices for those transactions processed through MFMP. Electronic invoices may be
submitted to the agency through one of the mechanisms as listed below:
• EDI (Electronic Data Interchange)
o This standard establishes the data contents of the Invoice Transaction Set
(810) for use within the context of an Electronic Data Interchange (EDI)
environment. This transaction set can be used for invoicing via the Ariba
Network (AN) for catalog and non-catalog goods and services.
• PO Flip via AN
o The online process allows Contractors to submit invoices via the AN for
catalog and non-catalog goods and services. Contractors have the ability to
create an invoice directly from their Inbox in their AN account by simply
"flipping" the PO into an invoice. This option does not require any special
software or technical capabilities.
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For the purposes of this section, the Contractor warrants and represents that it is
authorized and empowered to and hereby grants the State and the third-party provider of
MFMP, a state contractor, the right and license to use, reproduce, transmit, distribute, and
publicly display within the system the information outlined above. In addition, the
Contractor warrants and represents that it is authorized and empowered to and hereby
grants the State and the third-party provider the right and license to reproduce and display
within the system the Contractor's trademarks, system marks, logos, trade dress, or other
branding designation that identifies the products made available by the Contractor under
the contract.
The Contractor will work with the MFMP management team to obtain specific requirements
for the electronic invoicing if needed.
7. Contract Reporting: The Contractor shall report information on orders received from
Customers associated with this Contract.
The Contractor shall submit reports in accordance with the following schedule:
Report< Period Covered Due Dates
MFMP Transaction Calendar month 15th calendar day of the month following the receipt
Fee Report of payment for the vendor's good or services.
Quarterly Sales Report State's Fiscal 15 calendar days after close of the period
Quarter
No favorable action will be considered for any contractor who has outstanding Quarterly
Sales Reports, MFMP Transaction Fee Reports, or any other documentation, to include
fees/ monies that is required under this Contract.
• Quarterly Sales Report: The Contractor agrees to submit a Quarterly Sales Report to
the Department's Contract Manager within 15 calendar days after the close of each
State Fiscal quarter.
Quarterly reporting timeframes coincide with the State Fiscal Year as follows:
Quarter 1 - (July-September) —due 15 calendar days after close of the period
Quarter 2 - (October-December) — due 15 calendar days after close of the period
Quarter 3 - (January-March) — due 15 calendar days after close of the period
Quarter 4 - (April-June) —due 15 calendar days after close of the period
Quarterly Reporting periods should coincide with the Contract term and begin the
quarter following Contract execution. Reports must be submitted in MS Excel format
and can be retrieved by accessing the following link at FL DMS Quarterly Sales
e ort. The report will include all sales (orders) from Customers received (associated
with this Contract) during the period. Initiation and submission of the Quarterly Report
is the responsibility of the Contractor without prompting or notification from the
Department's Contract Manager. If no orders are received during the period, the
Contractor must submit a report stating that there was no activity. If the Contractor
fails to submit two consecutive quarterly sales reports, this Contract may be
terminated for convenience or the Department may choose to not renew the Contract.
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In addition, the Department may require additional sales information such as copies of
purchase orders, or ad hoc sales reports. The Contractor shall submit these specific
ad hoc requests within the specified amount of time as requested by the Department.
• MFMP Transaction Fee Report: The Contractor is required to submit monthly MFMP
Transaction Fee Reports in the Department's electronic format. Reports are due 15
calendar days after the end of the reporting period. For information on how to submit
MFMP Transaction Fee Reports online, please reference the detailed fee reporting
instructions and Vendor training presentations available online at the "Transaction Fee
Reporting" and "Vendor Training" subsections under "Vendor" on the MFMP website:
MFMP Transaction Fee and Reporting. Assistance is also available with the
Transaction Fee Reporting System from the MFMP Customer Service Desk by email
at feeprocessing@myfloridamarketplace.com or telephone 866-FLA-EPRO (866- 352-
3776) from 8:00 a.m. to 6:00 p.m. Eastern Time.
8. Ad hoc Reports: The Department reserves the right to require additional reports or
information pertaining to this Contract and any resulting purchase orders or contracts with
customers. The Contractor must submit a report or information within five (5) business
days after receipt of a Department request, unless otherwise approved by the Department.
9. Financial Consequences: The following financial consequences will apply for
nonperformance of the contract by a Contractor. The State reserves the right to withhold
payment or implement other appropriate remedies, such as contract termination or
nonrenewal, when the Contractor has failed to perform/comply with provisions of the
Contract. These consequences for non-performance are not to be considered penalties.
The financial consequences will be paid via check or money order and made out to the
Department of Management Services in US Dollars within 30 calendar days after the
required report submission date. These consequences are individually assessed for
failures over each target period beginning with the first full month or quarter of the contract
performance and every quarter thereafter.
Performance Financial
Target Consequence
Performance Metrics Description Frequency for Non-
Performance
Per Day Late
Quarterly Sales Report Quarterly Sales Report are due 100% Quarterly $250
Submission on or before the 15th calendar
day after close of a quarter.
Monthly MFMP MFMP Transaction Fee Report 100% Monthly $100
Transaction Fee Report are due on or before the 15th
calendar day after close of the
period.
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10. Financial Consequences for Non-Performance: If the Department determines that the
Contractor has failed in any quarter to meet requirements of the "Contract Reporting"
section for two or more standards, the Department may assess the Contractor a fee in
accordance with the table incorporated herein.
These consequences of non-performance shall not be considered penalties.
11. Business Review Meetings: The Department reserves the right to schedule business
review meetings as frequently as necessary. The Department will provide the format for
the Contractor's agenda. Prior to the meeting, the Contractor shall submit the completed
agenda to the Department for review and acceptance. The Contractor shall address the
agenda items and any of the Department's additional concerns at the meeting. At
minimum, the parties shall meet to discuss:
• Program compliance
• Program trending review
• Savings report: Hard dollar and soft dollar
• Spend report
• Subcontractor and contingent staff performance
• Recommendations for improved compliance and performance
Failure to comply with this section may result in the Contractor being found in default and
Contract termination.
12. Certification of Drug-Free Workplace: In executing this Contract, Contractor certifies that it
has implemented a drug-free workforce program.
13. Resellers: The Contractor may use resellers in order to provide equipment and services.
All resellers shall be the direct responsibility of the Contractor. The Contractor is
responsible for all liability, terms, and conditions within Master Agreement and this
Contract. The Contractor's resellers' participation will be in accordance with the terms and
conditions set forth in the aforementioned Master Agreement and this Contract. If a reseller
is authorized to conduct business on behalf of the Contractor and the reseller is to receive
compensation from the Contractor for its services, then any dispute between the
Contractor and the reseller shall be resolved between the Contractor and the reseller. The
State of Florida is not a party to any agreements entered into between the Contractor and
its resellers.
The Contractor shall be responsible to report all contract sales (and pay any associated
MFMP transaction fees), including those of any such subcontractors (which includes
resellers), and shall ensure that all such subcontractors meet the following requirements:
• Have an ACTIVE Registration with the Florida Department of State, Division of
Corporations https://dos.mvflorida.com/sunbiz/ (unless the subcontractor is
exempt from the registration requirements as set forth in Florida Statutes)
• Registered in the MFMP Vendor Information Portal
https://vendor.myfloridamarketr)lace.com
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* Not beon the State of Florida's Convicted, Suspended, orDisc
https://www.dms.myflorida.com/business operations/state purchasing/state agen
cv resources/vendor registration and vendor lists/discriminatory vendor list
* Have a copy ofa-Vehfv Status on file
* Have a current VV-S filed with the Florida Department ofFinancial Services
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Exhibit B-Special Contract Conditions(Florida)
SPECIAL CONTRACT CONDITIONS
JULY 1, 2019 VERSION
Table of Contents
SECTION 1. DEFINITION...........................................................................................................................2
SECTION 2. CONTRACT TERM AND TERMINATION.................................................................................2
SECTION 3. PAYMENT AND FEES.............................................................................................................3
SECTION 4. CONTRACT MANAGEMENT..................................................................................................4
SECTION 5. COMPLIANCE WITH LAWS....................................................................................................6
SECTION 6. MISCELLANEOUS..................................................................................................................7
SECTION 7. LIABILITY AND INSURANCE........................................................................................................... 9
SECTION 8. PUBLIC RECORDS,TRADE SECRETS, DOCUMENT MANAGEMENT,AND INTELLECTUAL
PROPERTY..............................................................................................................................................10
SECTION 9. DATA SECURITY..................................................................................................................12
SECTION 10.GRATUITIES, LOBBYING,AND COMMUNICATIONS..........................................................13
SECTION 11.CONTRACT MONITORING. ...............................................................................................14
SECTION 12. CONTRACT AUDITS...........................................................................................................15
SECTION 13. BACKGROUND SCREENING AND SECURITY......................................................................16
SECTION 14.WARRANTY OF CONTRACTOR'S ABILITY TO PERFORM....................................................17
In accordance with Rule 60A-1.002(7), F.A.C., Form PUR 1000 is included
herein by reference but is superseded in its entirety by these Special
Contract Conditions.
SP approved version 7-1-2019 1
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Exhibit B-Special Contract Conditions(Florida)
SECTION 1. DEFINITION.
The following definition applies in addition to the definitions in Chapter 287, Florida
Statutes (F.S.), and Rule Chapter 60A-1, Florida Administrative Code (F.A.C.):
1.1 Customer.
The agency or eligible user that purchases commodities or contractual services pursuant
to the Contract.
SECTION 2. CONTRACT TERM AND TERMINATION.
2.1 Initial Term.
The initial term will begin on the date set forth in the Contract documents or on the date
the Contract is signed by all Parties, whichever is later.
2.2 Renewal.
Upon written agreement, the Department and the Contractor may renew the Contract in
whole or in part only as set forth in the Contract documents, and in accordance with
section 287.057(13), F.S.
2.3 Suspension of Work and Termination.
2.3.1 Suspension of Work.
The Department may, at its sole discretion, suspend any or all activities under the
Contract, at any time, when it is in the best interest of the State of Florida to do so. The
Customer may suspend a resulting contract or purchase order, at any time, when in the
best interest of the Customer to do so. The Department or Customer will provide the
Contractor written notice outlining the particulars of the suspension. After receiving a
suspension notice, the Contractor must comply with the notice and will cease the
performance of the Contract or purchase order. Suspension of work will not entitle the
Contractor to any additional compensation. The Contractor will not resume performance
of the Contract or purchase order until so authorized by the Department.
2.3.2 Termination for Convenience.
The Contract may be terminated by the Department in whole or in part at any time, in the
best interest of the State of Florida. If the Contract is terminated before performance is
completed, the Contractor will be paid only for that work satisfactorily performed for
which costs can be substantiated. Such payment, however, may not exceed an amount
which is the same percentage of the Contract price as the amount of work satisfactorily
performed. All work in progress will become the property of the Customer and will be
turned over promptly by the Contractor.
2.3.3 Termination for Cause.
If the performance of the Contractor is not in compliance with the Contract requirements
or the Contractor has defaulted, the Department may:
(a) immediately terminate the Contract;
(b) notify the Contractor of the noncompliance or default, require correction, and specify
the date by which the correction must be completed before the Contract is terminated; or
(c) take other action deemed appropriate by the Department.
SP approved version 7-1-2019 2
DocuSign Envelope ID: 15115E94-15A4-4OA5-996F-48AD1 E4FOB34
Exhibit B-Special Contract Conditions(Florida)
SECTION 3. PAYMENT AND FEES.
3.1 Pricing.
The Contractor will not exceed the pricing set forth in the Contract documents.
3.2 Price Decreases.
The following price decrease terms will apply to the Contract:
3.2.1 Quantity Discounts. Contractor may offer additional discounts for one-time delivery
of large single orders;
3.2.2 Preferred Pricing. The Contractor guarantees that the pricing indicated in this
Contract is a maximum price. Additionally, Contractor's pricing will not exceed the pricing
offered under comparable contracts. Comparable contracts are those that are similar in
size, scope, and terms. In compliance with section 216.0113, F.S., Contractor must
annually submit an affidavit from the Contractor's authorized representative attesting that
the Contract complies with this clause.
3.2.3 Sales Promotions. In addition to decreasing prices for the balance of the Contract
term due to a change in market conditions, the Contractor may conduct sales
promotions involving price reductions for a specified lesser period. The Contractor must
submit documentation identifying the proposed: (1) starting and ending dates of the
promotion, (2) commodities or contractual services involved, and (3) promotional prices
compared to then-authorized prices.
3.3 Payment Invoicing.
The Contractor will be paid upon submission of invoices to the Customer after delivery
and acceptance of commodities or contractual services is confirmed by the Customer.
Invoices must contain sufficient detail for an audit and contain the Contract Number and
the Contractor's Federal Employer Identification Number.
3.4 Purchase Order.
A Customer may use purchase orders to buy commodities or contractual services
pursuant to the Contract and, if applicable, the Contractor must provide commodities or
contractual services pursuant to purchase orders. Purchase orders issued pursuant to
the Contract must be received by the Contractor no later than the close of business on
the last day of the Contract's term. The Contractor is required to accept timely purchase
orders specifying delivery schedules that extend beyond the Contract term even when
such extended delivery will occur after expiration of the Contract. Purchase orders shall
be valid through their specified term and performance by the Contractor, and all terms
and conditions of the Contract shall survive the termination or expiration of the Contract
and apply to the Contractor's performance. The duration of purchase orders for recurring
deliverables shall not exceed the expiration of the Contract by more than twelve months.
Any purchase order terms and conditions conflicting with these Special Contract
Conditions shall not become a part of the Contract.
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.
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Exhibit B-Special Contract Conditions(Florida)
3.6 Annual Appropriation.
Pursuant to section 287.0582, F.S., if the Contract binds the State of Florida or an
agency for the purchase of services or tangible personal property for a period in excess
of one fiscal year, the State of Florida's performance and obligation to pay under the
Contract is contingent upon an annual appropriation by the Legislature.
3.7 Transaction Fees.
The State of Florida, through the Department of Management Services, has instituted
MyFloridaMarketPlace, a statewide eProcurement system pursuant to section
287.057(22), F.S. All payments issued by Customers to registered Vendors for
purchases of commodities or contractual services will be assessed Transaction Fees as
prescribed by rule 60A-1.031, F.A.C., or as may otherwise be established by law.
Vendors must pay the Transaction Fees and agree to automatic deduction of the
Transaction Fees when automatic deduction becomes available. Vendors will submit any
monthly reports required pursuant to the rule. All such reports and payments will be
subject to audit. Failure to comply with the payment of the Transaction Fees or reporting
of transactions will constitute grounds for declaring the Vendor in default and subject the
Vendor to exclusion from business with the State of Florida.
3.8 Taxes.
Taxes, customs, and tariffs on commodities or contractual services purchased under the
Contract will not be assessed against the Customer or Department unless authorized by
Florida law.
3.9 Return of Funds.
Contractor will return any overpayments due to unearned funds or funds disallowed
pursuant to the terms of the Contract that were disbursed to the Contractor. The
Contractor must return any overpayment within forty (40) calendar days after either
discovery by the Contractor, its independent auditor, or notification by the Department or
Customer of the overpayment.
SECTION 4. CONTRACT MANAGEMENT.
4.1 Composition and Priority.
The Contractor agrees to provide commodities or contractual services to the Customer
as specified in the Contract. Additionally, the terms of the Contract supersede the terms
of all prior agreements between the Parties on this subject matter.
4.2 Notices.
All notices required under the Contract must be delivered to the designated Contract
Manager in a manner identified by the Department.
4.3 Department's Contract Manager.
The Department's Contract Manager, who is primarily responsible for the Department's
oversight of the Contract, will be identified in a separate writing to the Contractor upon
Contract signing in the following format:
Department's Contract Manager Name
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Department's Name
Department's Physical Address
Department's Telephone#
Department's Email Address
If the Department changes the Contract Manager, the Department will notify the
Contractor. Such a change does not require an amendment to the Contract.
4.4 Contractor's Contract Manager.
The Contractor's Contract Manager, who is primarily responsible for the Contractor's
oversight of the Contract performance, will be identified in a separate writing to the
Department upon Contract signing in the following format:
Contractor's Contract Manager Name
Contractor's Name
Contractor's Physical Address
Contractor's Telephone#
Contractor's Email Address
If the Contractor changes its Contract Manager, the Contractor will notify the
Department. Such a change does not require an amendment to the Contract.
4.5 Diversity.
4.5.1 Office of Supplier Diversity.
The State of Florida supports its diverse business community by creating opportunities
for woman-, veteran-, and minority-owned small business enterprises to participate in
procurements and contracts. The Department encourages supplier diversity through
certification of woman-, veteran-, and minority-owned small business enterprises and
provides advocacy, outreach, and networking through regional business events. For
additional information, please contact the Office of Supplier Diversity (OSD) at
osdinfo@dms.myflorida.com.
4.5.2 Diversity Reporting.
Upon request, the Contractor will report to the Department its spend with business
enterprises certified by the OSD. These reports must include the time period covered,
the name and Federal Employer Identification Number of each business enterprise
utilized during the period, commodities and contractual services provided by the
business enterprise, and the amount paid to the business enterprise on behalf of each
agency purchasing under the Contract.
4.6 RESPECT.
Subject to the agency determination provided for in section 413.036, F.S., the following
statement applies:
IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT ANY ARTICLES THAT ARE
THE SUBJECT OF, OR REQUIRED TO CARRY OUT, THIS CONTRACT SHALL BE
PURCHASED FROM A NONPROFIT AGENCY FOR THE BLIND OR FOR THE
SEVERELY HANDICAPPED THAT IS QUALIFIED PURSUANT TO CHAPTER 413,
FLORIDA STATUTES, IN THE SAME MANNER AND UNDER THE SAME
PROCEDURES SET FORTH IN SECTION 413.036(1) AND (2), FLORIDA STATUTES;
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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.
Additional information about RESPECT and the commodities or contractual services it
offers is available at tts:Ilwww.resectofflorida.or .
4.7 PRIDE.
Subject to the agency determination provided for in sections 287.042(1) and 946.515,
F.S., the following statement applies:
IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT ANY ARTICLES WHICH ARE
THE SUBJECT OF, OR REQUIRED TO CARRY OUT, THIS CONTRACT SHALL BE
PURCHASED FROM THE CORPORATION IDENTIFIED UNDER CHAPTER 946, F.S.,
IN THE SAME MANNER AND UNDER THE SAME PROCEDURES SET FORTH IN
SECTION 946.515(2) AND (4), F.S.; AND FOR PURPOSES OF THIS CONTRACT THE
PERSON, FIRM, OR OTHER BUSINESS ENTITY CARRYING OUT THE PROVISIONS
OF THIS CONTRACT SHALL BE DEEMED TO BE SUBSTITUTED FOR THIS
AGENCY INSOFAR AS DEALINGS WITH SUCH CORPORATION ARE CONCERNED.
Additional information about PRIDE and the commodities or contractual services it offers
is available at bl!pl://www.j2(ide-enterprises.org.
SECTION 5. COMPLIANCE WITH LAWS.
5.1 Conduct of Business.
The Contractor must comply with all laws, rules, codes, ordinances, and licensing
requirements that are applicable to the conduct of its business, including those of
federal, state, and local agencies having jurisdiction and authority. For example, the
Contractor must comply with section 274A of the Immigration and Nationality Act, the
Americans with Disabilities Act, Health Insurance Portability and Accountability Act, if
applicable, and all prohibitions against discrimination on the basis of race, religion, sex,
creed, national origin, handicap, marital status, or veteran's status. The provisions of
subparagraphs 287.058(1)(a)-(c), and (g), F.S., are hereby incorporated by reference.
5.2 Dispute Resolution, Governing Law, and Venue.
Any dispute concerning performance of the Contract shall be decided by the
Department's designated Contract Manager, who will reduce the decision to writing and
serve a copy on the Contractor. The decision of the Contract Manager shall be final and
conclusive. Exhaustion of this administrative remedy is an absolute condition precedent
to the Contractor's ability to pursue legal action related to the Contract or any other form
of dispute resolution. The laws of the State of Florida govern the Contract. The Parties
submit to the jurisdiction of the courts of the State of Florida exclusively for any legal
action related to the Contract. Further, the Contractor hereby waives all privileges and
rights relating to venue it may have under Chapter 47, F.S., 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.
5.3 Department of State Registration.
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Consistent with Title XXXVI, F.S., the Contractor and any subcontractors that assert
status, other than a sole proprietor, must provide the Department with conclusive
evidence of a certificate of status, not subject to qualification, if a Florida business entity,
or of a certificate of authorization if a foreign business entity.
5.4 Suspended, Convicted, and Discriminatory Vendor Lists.
In accordance with sections 287.042, 287.133, and 287.134, F.S., an entity or affiliate
who is on the Suspended Vendor List, Convicted Vendor List, or Discriminatory Vendor
List may not perform work as a contractor, supplier, subcontractor, or consultant under
the Contract. The Contractor must notify the Department if it or any of its suppliers,
subcontractors, or consultants have been placed on the Suspended Vendor List,
Convicted Vendor List, or Discriminatory Vendor List during the term of the Contract.
5.5 Scrutinized Companies - Termination by the Department.
The Department may, at its option, terminate the Contract if the Contractor is found to
have submitted a false certification as provided under section 287.135(5), F.S., or been
placed on the Scrutinized Companies with Activities in Sudan List or the Scrutinized
Companies with Activities in the Iran Petroleum Energy Sector List, or been engaged in
business operations in Cuba or Syria, or to have been placed on the Scrutinized
Companies that Boycott Israel List or is engaged in a boycott of Israel.
5.6 Cooperation with Inspector General and Records Retention.
Pursuant to section 20.055(5), F.S., the Contractor understands and will comply with its
duty to cooperate with the Inspector General in any investigation, audit, inspection,
review, or hearing. Upon request of the Inspector General or any other authorized State
official, the Contractor must provide any information the Inspector General deems
relevant to the Contractor's integrity or responsibility. Such information may include, but
will not be limited to, the Contractor's business or financial records, documents, or files
of any type or form that refer to or relate to the Contract. The Contractor will retain such
records for the longer of five years after the expiration of the Contract, or the period
required by the General Records Schedules maintained by the Florida Department of
State, at the Department of State's Records Management website. The Contractor
agrees to reimburse the State of Florida for the reasonable costs of investigation
incurred by the Inspector General or other authorized State of Florida official for
investigations of the Contractor's compliance with the terms of this or any other
agreement between the Contractor and the State of Florida which results in the
suspension or debarment of the Contractor. Such costs will include but will not be limited
to: salaries of investigators, including overtime; travel and lodging expenses; and expert
witness and documentary fees. The Contractor agrees to impose the same obligations to
cooperate with the Inspector General and retain records on any subcontractors used to
provide goods or services under the Contract.
SECTION 6. MISCELLANEOUS.
6.1 Subcontractors.
The Contractor will not subcontract any work under the Contract without prior written
consent of the Department. The Contractor is fully responsible for satisfactory
completion of all its subcontracted work. The Department supports diversity in its
procurements and contracts, and requests that the Contractor offer subcontracting
opportunities to certified woman-, veteran-, and minority-owned small businesses. The
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Contractor may contact the OSD at osdhelp@dms.myflorida.com for information on
certified small business enterprises available for subcontracting opportunities.
6.2 Assignment.
The Contractor will not sell, assign, or transfer any of its rights, duties, or obligations
under the Contract without the prior written consent of the Department. However, the
Contractor may waive its right to receive payment and assign same upon notice to the
Department. In the event of any assignment, the Contractor remains responsible for
performance of the Contract, unless such responsibility is expressly waived by the
Department. The Department may assign the Contract with prior written notice to the
Contractor.
6.3 Independent Contractor.
The Contractor and its employees, agents, representatives, and subcontractors are
independent contractors and not employees or agents of the State of Florida and are not
entitled to State of Florida benefits. The Department and Customer will not be bound by
any acts or conduct of the Contractor or its employees, agents, representatives, or
subcontractors. The Contractor agrees to include this provision in all its subcontracts
under the Contract.
6.4 Inspection and Acceptance of Commodities.
6.4.1 Risk of Loss.
Matters of inspection and acceptance are addressed in section 215.422, F.S. Until
acceptance, risk of loss or damage will remain with the Contractor. The Contractor will
be responsible for filing, processing, and collecting all damage claims. To assist the
Contractor with damage claims, the Customer will: record any evidence of visible
damage on all copies of the delivering carrier's bill of lading; report damages to the
carrier and the Contractor; and provide the Contractor with a copy of the carrier's bill of
lading and damage inspection report.
6.4.2 Rejected Commodities.
When a Customer rejects a commodity, Contractor will remove the commodity from the
premises within ten (10) calendar days after notification of rejection, and the risk of loss
will remain with the Contractor. Commodities not removed by the Contractor within ten
(10) calendar days will be deemed abandoned by the Contractor, and the Customer will
have the right to dispose of such commodities. Contractor will reimburse the Customer
for costs and expenses incurred in storing or effecting removal or disposition of rejected
commodities.
6.5 Safety Standards.
Performance of the Contract for all commodities or contractual services must comply
with requirements of the Occupational Safety and Health Act and other applicable State
of Florida and federal requirements.
6.6 Ombudsman.
A Vendor Ombudsman has been established within the Department of Financial
Services. The duties of this office are found in section 215.422, F.S., which include
disseminating information relative to prompt payment and assisting contractors in
receiving their payments in a timely manner from a Customer. The Vendor Ombudsman
may be contacted at (850) 413-5516.
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6.7 Time is of the Essence.
Time is of the essence regarding every obligation of the Contractor under the Contract.
Each obligation is deemed material, and a breach of any such obligation (including a
breach resulting from untimely performance) is a material breach.
6.8 Waiver.
The delay or failure by the Department or the Customer to exercise or enforce any rights
under the Contract will not constitute waiver of such rights.
6.9 Modification and Severability.
The Contract may only be modified by written agreement between the Department and
the Contractor. Should a court determine any provision of the Contract is invalid, the
remaining provisions will not be affected, and the rights and obligations of the Parties will
be construed and enforced as if the Contract did not contain the provision held invalid.
6.10 Cooperative Purchasing.
Pursuant to their own governing laws, and subject to the agreement of the Contractor,
governmental entities that are not Customers may make purchases under the terms and
conditions contained herein, if agreed to by Contractor. Such purchases are independent
of the Contract between the Department and the Contractor, and the Department is not a
party to these transactions. Agencies seeking to make purchases under this Contract
are required to follow the requirements of Rule 60A-1.045(5), F.A.C.
SECTION 7. LIABILITY AND INSURANCE.
7.1 Workers' Compensation Insurance.
The Contractor shall maintain workers' compensation insurance as required under the
Florida Workers' Compensation Law or the workers' compensation law of another
jurisdiction where applicable. The Contractor must require all subcontractors to similarly
provide workers' compensation insurance for all of the latter's employees. In the event
work is being performed by the Contractor under the Contract and any class of
employees performing the work is not protected under Workers' Compensation statutes,
the Contractor must provide, and cause each subcontractor to provide, adequate
insurance satisfactory to the Department, for the protection of employees not otherwise
protected.
7.2 General Liability Insurance.
The Contractor must secure and maintain Commercial General Liability Insurance,
including bodily injury, property damage, products, personal and advertising injury, and
completed operations. This insurance must provide coverage for all claims that may
arise from performance of the Contract or completed operations, whether by the
Contractor or anyone directly or indirectly employed by the Contractor. Such insurance
must include the State of Florida as an additional 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.
7.3 Florida Authorized Insurers.
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All insurance shall be with insurers authorized and eligible to transact the applicable line
of insurance business in the State of Florida. The Contractor shall provide
Certification(s) of Insurance evidencing that all appropriate coverage is in place and
showing the Department to be an additional insured.
7.4 Performance Bond.
Unless otherwise prohibited by law, the Department may require the Contractor to
furnish, without additional cost to the Department, a performance bond or irrevocable
letter of credit or other form of security for the satisfactory performance of work
hereunder. The Department shall determine the type and amount of security.
7.5 Indemnification.
To the extent permitted by Florida law, the Contractor agrees to indemnify, defend, and
hold the Customer and the State of Florida, its officers, employees, and agents harmless
from all fines, claims, assessments, suits, judgments, or damages, including
consequential, special, indirect, and punitive damages, including court costs and
attorney's fees, arising from or relating to violation or infringement of a trademark,
copyright, patent, trade secret, or intellectual property right or out of any acts, actions,
breaches, neglect, or omissions of the Contractor, its employees, agents,
subcontractors, assignees, or delegates related to the Contract, as well as for any
determination arising out of or related to the Contract that the Contractor or Contractor's
employees, agents, subcontractors, assignees, or delegates are not independent
contractors in relation to the Customer. The Contract does not constitute a waiver of
sovereign immunity or consent by the Customer or the State of Florida or its subdivisions
to suit by third parties. Without limiting this indemnification, the Customer may provide
the Contractor (1) written notice of any action or threatened action, (2) the opportunity to
take over and settle or defend any such action at Contractor's sole expense, and (3)
assistance in defending the action at Contractor's sole expense.
7.6 Limitation of Liability.
Unless otherwise specifically enumerated in the Contract or in the purchase order,
neither the Department nor the Customer shall be liable for special, indirect, punitive, or
consequential damages, including lost data or records (unless the Contract or purchase
order requires the Contractor to back-up data or records), even if the Department or
Customer has been advised that such damages are possible. Neither the Department
nor the Customer shall be liable for lost profits, lost revenue, or lost institutional
operating savings. The Department or Customer may, in addition to other remedies
available to them at law or equity and upon notice to the Contractor, retain such monies
from amounts due Contractor as may be necessary to satisfy any claim for damages,
penalties, costs, and the like asserted by or against them. The State may set off any
liability or other obligation of the Contractor or its affiliates to the State against any
payments due the Contractor under any contract with the State.
SECTION 8. PUBLIC RECORDS, TRADE SECRETS, DOCUMENT MANAGEMENT,
AND INTELLECTUAL PROPERTY.
8.1 Public Records.
8.1.1 Termination of Contract.
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The Department may terminate the Contract for refusal by the Contractor to comply with
this section by not allowing access to all public records, as defined in Chapter 119, F. S.,
made or received by the Contractor in conjunction with the Contract.
8.1.2 Statutory Notice.
Pursuant to section 119.0701(2)(a), F.S., for contracts for services with a contractor
acting on behalf of a public agency, as defined in section 119.011(2), F.S., the following
applies:
IF THE CONTRACTOR HAS QUESTIONS REGARDING THE
APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE
CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS
RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN OF
PUBLIC RECORDS AT THE TELEPHONE NUMBER, EMAIL
ADDRESS, AND MAILING ADDRESS PROVIDED IN THE
RESULTING CONTRACT OR PURCHASE ORDER.
Pursuant to section 119.0701(2)(b), F.S., for contracts for services with a contractor
acting on behalf of a public agency as defined in section 119.011(2), F.S., the Contractor
shall:
(a) Keep and maintain public records required by the public agency to perform the
service.
(b) Upon request from the public agency's custodian of public records, provide the public
agency with a copy of the requested records or allow the records to be inspected or
copied within a reasonable time at a cost that does not exceed the cost provided in
Chapter 119, F.S., or as otherwise provided by law.
(c) Ensure that public records that are exempt or confidential and exempt from public
records disclosure are not disclosed except as authorized by law for the duration of the
Contract term and following the completion of the Contract if the Contractor does not
transfer the records to the public agency.
(d) Upon completion of the Contract, transfer, at no cost, to the public agency all public
records in possession of the Contractor or keep and maintain public records required by
the public agency to perform the service. If the Contractor transfers all public records to
the public agency upon completion of the Contract, the Contractor shall destroy any
duplicate public records that are exempt or confidential and exempt from public records
disclosure requirements. If the Contractor keeps and maintains public records upon
completion of the Contract, the Contractor shall meet all applicable requirements for
retaining public records. All records stored electronically must be provided to the public
agency, upon request from the public agency's custodian of public records, in a format
that is compatible with the information technology systems of the public agency.
8.2 Protection of Trade Secrets or Otherwise Confidential Information.
8.2.1 Contractor Designation of Trade Secrets or Otherwise Confidential Information.
If the Contractor considers any portion of materials to be trade secret under section
688.002 or 812.081, F.S., or otherwise confidential under Florida or federal law, the
Contractor must clearly designate that portion of the materials as trade secret or
otherwise confidential when submitted to the Department. The Contractor will be
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responsible for responding to and resolving all claims for access to Contract-related
materials it has designated trade secret or otherwise confidential.
8.2.2 Public Records Requests.
If the Department receives a public records request for materials designated by the
Contractor as trade secret or otherwise confidential under Florida or federal law, the
Contractor will be responsible for taking the appropriate legal action in response to the
request. If the Contractor fails to take appropriate and timely action to protect the
materials designated as trade secret or otherwise confidential, the Department will
provide the materials to the requester.
8.2.3 Indemnification Related to Confidentiality of Materials.
The Contractor will protect, defend, indemnify, and hold harmless the Department for
claims, costs, fines, and attorney's fees arising from or relating to its designation of
materials as trade secret or otherwise confidential.
8.3 Document Management.
The Contractor must 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. The Contractor must 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 the Department of State's Records Management website.
8.4 Intellectual Property.
8.4.1 Ownership.
Unless specifically addressed otherwise in the Contract, the State of Florida shall be the
owner of all intellectual property rights to all property created or developed in connection
with the Contract.
8.4.2 Patentable Inventions or Discoveries.
Any inventions or discoveries developed in the course, or as a result, of services in
connection with the Contract that are patentable pursuant to 35 U.S.C. § 101 are the
sole property of the State of Florida. Contractor must inform the Customer of any
inventions or discoveries developed or made through performance of the Contract, and
such inventions or discoveries will be referred to the Florida Department of State for a
determination on whether patent protection will be sought. The State of Florida will be
the sole owner of all patents resulting from any invention or discovery made through
performance of the Contract.
8.4.3 Copyrightable Works.
Contractor must notify the Department or State of Florida of any publications, artwork, or
other copyrightable works developed in connection with the Contract. All copyrights
created or developed through performance of the Contract are owned solely by the State
of Florida.
SECTION 9. DATA SECURITY.
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The Contractor will maintain the security of State of Florida data including, but not limited
to, maintaining a secure area around any displayed visible data and ensuring data is
stored and secured when not in use. The Contractor and 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 the
United States due to Contractor's action or inaction. In the event of a security breach
involving State of Florida data, the Contractor shall give notice to the Customer and the
Department within one business day. "Security breach" for purposes of this section will
refer to a confirmed event that compromises the confidentiality, integrity, or availability of
data. Once a data breach has been contained, the Contractor must provide the
Department with a post-incident report documenting all containment, eradication, and
recovery measures taken. The Department reserves the right in its sole discretion to
enlist a third party to audit Contractor's findings and produce an independent report, and
the Contractor will fully cooperate with the third party. The Contractor will also comply
with all HIPAA requirements and any other state and federal rules and regulations
regarding security of information.
SECTION 10. GRATUITIES, LOBBYING, AND COMMUNICATIONS.
10.1 Gratuities.
The Contractor will 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 of
Florida officer's or employee's decision, opinion, recommendation, vote, other exercise
of discretion, or violation of a known legal duty, or (2) offer, give, or agree to give to
anyone anything of value for the benefit of, or at the direction or request of, any State of
Florida officer or employee.
10.2 Lobbying.
In accordance with sections 11.062 and 216.347, F.S., Contract funds are not to be used
for the purpose of lobbying the Legislature, the judicial branch, or the Department.
Pursuant to section 287.058(6), F.S., the Contract does not prohibit the Contractor from
lobbying the executive or legislative branch concerning the scope of services,
performance, term, or compensation regarding the Contract after the Contract is
executed and during the Contract term.
10.3 Communications.
10.3.1 Contractor Communication or Disclosure.
The Contractor shall not make any public statements, press releases, publicity releases,
or other similar communications concerning the Contract or its subject matter or
otherwise disclose or permit to be disclosed any of the data or other information
obtained or furnished in compliance with the Contract, without first notifying the
Customer's Contract Manager and securing the Customer's prior written consent.
10.3.2 Use of Customer Statements.
The Contractor shall not use any statement attributable to the Customer or its
employees for the Contractor's promotions, press releases, publicity releases,
marketing, corporate communications, or other similar communications, without first
notifying the Customer's Contract Manager and securing the Customer's prior written
consent.
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SECTION 11. CONTRACT MONITORING.
11.1 Performance Standards.
The Contractor agrees to perform all tasks and provide deliverables as set forth in the
Contract. The Department and the Customer will be entitled at all times, upon request, to
be advised as to the status of work being done by the Contractor and of the details
thereof.
11.2 Performance Deficiencies and Financial Consequences of Non-Performance.
11.2.1 Proposal of Corrective Action Plan.
In addition to the processes set forth in the Contract (e.g., service level agreements), if
the Department or Customer determines that there is a performance deficiency that
requires correction by the Contractor, then the Department or Customer will notify the
Contractor. The correction must be made within a time-frame specified by the
Department or Customer. The Contractor must provide the Department or Customer with
a corrective action plan describing how the Contractor will address all performance
deficiencies identified by the Department or Customer.
11.2.2 Retainage for Unacceptable Corrective Action Plan or Plan Failure.
If the corrective action plan is unacceptable to the Department or Customer, or
implementation of the plan fails to remedy the performance deficiencies, the Department
or Customer will retain ten percent (10%) of the total invoice amount. The retainage will
be withheld until the Contractor resolves the performance deficiencies. If the
performance deficiencies are resolved, the Contractor may invoice the Department or
Customer for the retained amount. If the Contractor fails to resolve the performance
deficiencies, the retained amount will be forfeited to compensate the Department or
Customer for the performance deficiencies.
11.3 Performance Delay.
11.3.1 Notification.
The Contractor will promptly notify the Department or Customer upon becoming aware
of any circumstances that may reasonably be expected to jeopardize the timely and
successful completion (or delivery) of any commodity or contractual service. The
Contractor will use commercially reasonable efforts to avoid or minimize any delays in
performance and will inform the Department or the Customer of the steps the Contractor
is taking or will take to do so, and the projected actual completion (or delivery) time. If
the Contractor believes a delay in performance by the Department or the Customer has
caused or will cause the Contractor to be unable to perform its obligations on time, the
Contractor will promptly so notify the Department and use commercially reasonable
efforts to perform its obligations on time notwithstanding the Department's delay.
11.3.2 Liquidated Damages.
The Contractor acknowledges that delayed performance will damage the
DepartmentCustomer, but by their nature such damages are difficult to ascertain.
Accordingly, the liquidated damages provisions stated in the Contract documents will
apply. Liquidated damages are not intended to be a penalty and are solely intended to
compensate for damages.
11.4 Force Majeure, Notice of Delay, and No Damages for Delay.
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The Contractor will not be responsible for delay resulting from its failure to perform if
neither the fault nor the negligence of the Contractor or its employees or agents
contributed to the delay, and the delay is due directly to fire, explosion, earthquake,
windstorm, flood, radioactive or toxic chemical hazard, war, military hostilities, terrorism,
civil emergency, embargo, riot, strike, violent civil unrest, or other similar cause wholly
beyond the Contractor's reasonable control, or for any of the foregoing that affect
subcontractors or suppliers if no alternate source of supply is available to the Contractor.
The foregoing does not excuse delay which could have been avoided if the Contractor
implemented any risk mitigation required by the Contract. In case of any delay the
Contractor believes is excusable, the Contractor will notify the Department in writing of
the delay or potential delay and describe the cause of the delay either (1) within ten (10)
calendar days after the cause that created or will create the delay first arose, if the
Contractor could reasonably foresee that a delay could occur as a result, or (2) if delay is
not reasonably foreseeable, within five (5) calendar days after the date the Contractor
first had reason to believe that a delay could result. The foregoing will constitute the
Contractor's sole remedy or excuse with respect to delay. Providing notice in strict
accordance with this paragraph is a condition precedent to such remedy. No claim for
damages will be asserted by the Contractor. The Contractor will not be entitled to an
increase in the Contract price or payment of any kind from the Department for direct,
indirect, consequential, impact or other costs, expenses or damages, including but not
limited to costs of acceleration or inefficiency, arising because of delay, disruption,
interference, or hindrance from any cause whatsoever. If performance is suspended or
delayed, in whole or in part, due to any of the causes described in this paragraph, after
the causes have ceased to exist the Contractor will perform at no increased cost, unless
the Department determines, in its sole discretion, that the delay will significantly impair
the value of the Contract to the State of Florida or to Customers, in which case the
Department may (1) accept allocated performance or deliveries from the Contractor,
provided that the Contractor grants preferential treatment to Customers and the
Department with respect to commodities or contractual services subjected to allocation,
or (2) purchase from other sources (without recourse to and by the Contractor for the
related costs and expenses) to replace all or part of the commodity or contractual
services that are the subject of the delay, which purchases may be deducted from the
Contract quantity, or (3) terminate the Contract in whole or in part.
SECTION 12. CONTRACT AUDITS.
12.1 Performance or Compliance Audits.
The Department may conduct or have conducted performance and/or compliance audits
of the Contractor and subcontractors as determined by the Department. The Department
may conduct an audit and review all the Contractor's and subcontractors' data and
records that directly relate to the Contract. To the extent necessary to verify the
Contractor's fees and claims for payment under the Contract, the Contractor's
agreements or contracts with subcontractors, partners, or agents of the Contractor,
pertaining to the Contract, may be inspected by the Department upon fifteen (15)
calendar days' notice, during normal working hours and in accordance with the
Contractor's facility access procedures where facility access is required. Release
statements from its subcontractors, partners, or agents are not required for the
Department or its designee to conduct compliance and performance audits on any of the
Contractor's contracts relating to this Contract. The Inspector General, in accordance
with section 5.6, the State of Florida's Chief Financial Officer, the Office of the Auditor
General also have authority to perform audits and inspections.
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DocuSign Envelope ID: 15115E94-15A4-4OA5-996F-48AD1 E4FOB34
Exhibit B-Special Contract Conditions(Florida)
12.2 Payment Audit.
Records of costs incurred under terms of the Contract will be maintained in accordance
with section 8.3 of these Special Contract Conditions. Records of costs incurred will
include the Contractor's general accounting records, together with supporting documents
and records of the Contractor and all subcontractors performing work, and all other
records of the Contractor and subcontractors considered necessary by the Department,
the State of Florida's Chief Financial Officer, or the Office of the Auditor General.
SECTION 13. BACKGROUND SCREENING AND SECURITY.
13.1 Background Check.
The Department or Customer may require the Contractor to conduct background checks
of its employees, agents, representatives, and subcontractors as directed by the
Department or Customer. The cost of the background checks will be borne by the
Contractor. The Department or Customer may require the Contractor to exclude the
Contractor's employees, agents, representatives, or subcontractors based on the
background check results. In addition, the Contractor must ensure that all persons have
a responsibility to self-report to the Contractor within three (3) calendar days any arrest
for any disqualifying offense. The Contractor must notify the Contract Manager within
twenty-four (24) hours of all details concerning any reported arrest. Upon the request of
the Department or Customer, the Contractor will re-screen any of its employees, agents,
representatives, and subcontractors during the term of the Contract.
13.2 E-Verify.
The Contractor must use the U.S. Department of Homeland Security's E-Verify system
to verify the employment eligibility of all new employees hired during the term of the
Contract for the services specified in the Contract. The Contractor must also include a
requirement in subcontracts that the subcontractor must utilize the E-Verify system to
verify the employment eligibility of all new employees hired by the subcontractor during
the Contract term. In order to implement this provision, the Contractor must provide a
copy of its DHS Memorandum of Understanding (MOU) to the Contract Manager within
five (5) calendar days of Contract execution. If the Contractor is not enrolled in DHS E-
Verify System, it will do so within five (5) calendar days of notice of Contract award and
provide the Contract Manager a copy of its MOU within five (5) calendar days of
Contract execution. The link to E-Verify is https://www.uscis.gov/e-verify. Upon each
Contractor or subcontractor new hire, the Contractor must provide a statement within
five (5) calendar days to the Contract Manager identifying the new hire with its E-Verify
case number.
13.3 Disqualifying Offenses.
If at any time it is determined that a person has been found guilty of a misdemeanor or
felony offense as a result of a trial or has entered a plea of guilty or nolo contendere,
regardless of whether adjudication was withheld, within the last six (6) years from the
date of the court's determination for the crimes listed below, or their equivalent in any
jurisdiction, the Contractor is required to immediately remove that person from any
position with access to State of Florida data or directly performing services under the
Contract. The disqualifying offenses are as follows:
(a) Computer related crimes;
(b) Information technology crimes;
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DocuSign Envelope ID: 15115E94-15A4-4OA5-996F-48AD1 E4FOB34
Exhibit B-Special Contract Conditions(Florida)
(c) Fraudulent practices;
(d) False pretenses;
(e) Frauds;
(f) Credit card crimes;
(g) Forgery;
(h) Counterfeiting;
(i) Violations involving checks or drafts;
0) Misuse of medical or personnel records; and
(k) Felony theft.
13.4 Confidentiality.
The Contractor must maintain confidentiality of all confidential data, files, and records
related to the commodities or contractual services provided pursuant to the Contract and
must comply with all state and federal laws, including, but not limited to sections
381.004, 384.29, 392.65, and 456.057, F.S. The Contractor's confidentiality procedures
must be consistent with the most recent version of the Department security policies,
protocols, and procedures. The Contractor must also comply with any applicable
professional standards with respect to confidentiality of information.
SECTION 14. WARRANTY OF CONTRACTOR'S ABILITY TO PERFORM.
The Contractor warrants that, to the best of its knowledge, there is no pending or
threatened action, proceeding, or investigation, or any other legal or financial condition,
that would in any way prohibit, restrain, or diminish the Contractor's ability to satisfy its
Contract obligations. The Contractor warrants that neither it nor any affiliate is currently
on the Suspended Vendor List, Convicted Vendor List, or the Discriminatory Vendor List,
or on any similar list maintained by any other state or the federal government. The
Contractor shall immediately notify the Department in writing if its ability to perform is
compromised in any manner during the term of the Contract.
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