Item K7 K7
BOARD OF COUNTY COMMISSIONERS
COUNTY of MONROE �� i Mayor Holly Merrill Raschein,District 5
The Florida Keys Mayor Pro Tern James K.Scholl,District 3
Craig Cates,District 1
Michelle Lincoln,District 2
' David Rice,District 4
Board of County Commissioners Meeting
November 19, 2024
Agenda Item Number: K7
2023-3294
BULK ITEM: No DEPARTMENT: Airports
TIME APPROXIMATE: STAFF CONTACT: Richard Strickland
N/A
AGENDA ITEM WORDING:
Approval to issue a Purchase Order to Agati Furniture in the amount of $554,228.73 for furniture for
the new EYW Concourse A under State of Florida Alternate Contract Source No. 56120000-24-NY-
ACS Furniture, All Types. The seating will be paid 100% from PFC Application#25-21.
ITEM BACKGROUND:
Due to a long production and delivery schedule, and to be ready when the new Concourse A is opened,
staff recommends the purchase of new furniture from Agati under the State of Florida alternate contract.
PREVIOUS RELEVANT BOCC ACTION:
N/A
INSURANCE REQUIRED:
No
CONTRACT/AGREEMENT CHANGES:
N/A
STAFF RECOMMENDATION: Approval.
DOCUMENTATION:
Agati State of FL Contract Discounting.pdf
Agati, Inc Executed ACS.pdf
FINANCIAL IMPACT:
TOTAL COST: $554,228.73
3996
BUDGETED: Yes X No
COST TO COUNTY: $-0-
SOURCE OF FUNDS: 100%PFC Application#25-21
3997
AGATI
F 0 R N I T U R F
Agati Contract 56120000-24-NY-ACS, The Best Purchasing Option in
the State of Florida
Agati Furniture has a statewide contract with the State of Florida. Agati products
can be purchased through a variety of contracting vehicles (cooperative purchasing
organizations, countywide contracts, school district contracts). However, our contract
with the State of Florida provides the best pricing option for state and local government
agencies. First, I must explain the State's approach to furniture contracts in general.
In 2019, the State decided to replace their existing furniture contracts with
contracts from various sources outside the State. One of the contracts used by Florida was
the furniture contract from the State of New York. New York's contract had language like
many agencies within the State of Florida, giving agencies permission to use contracts
outside of the agency's governing territory[Piggybacking], if the contracting terms are
agreed upon by both states.
In 2023, the State of New York's furniture contract ended, and a new contract was
solicited the state. The new contract took effect in December 2023.Agati was awarded a
contract in December, and in February, approached the State of Florida regarding the
State's desire to create a new furniture contract, like the 2019 contract. Florida reviewed
the State of New York's contract and the discounting terms Agati presented to New York.
The State of Florida and Agati entered a new contract on February 201", 2024. This contract
can be used by any state or local government entity in the State of Florida. Under this
contract, Agati furniture can be purchased either through a list of authorized resellers or
directly from Agati.
AGATI 451 N CLAREMONT ave CHICAGO, IL 60612 T. 312.829.1977 F. 312.829.8249 www.agati.com
3998
AGATI
F U R N I T U R I
The Agati contract with the State of Florida has one of the more aggressive
discounting structures we offer to government entities. This is due to the contract rules
dictated by the State of New York. This is outlined in Section 4.1 of the State of New York
contract.
Pricing shall be a discounifirom Maniffiacturer's List Price and shall be equal
to or better than any other offe
red to another Government Entity,for the same
type qfproducls. Discounts will be cot?,firmed by comparison with other
Government Entity contracts held by the Bidder. The Bidder must supply
copies of their current contract Price Lists with other Government Entities
indicating the discount percentage, as per Section 2.1 - (Qualifications. if a
Bidder holds another contract that requires them to (?f,fer a better discount
than to any other entity, then, the Bidder will be required to provide a copy of
the contract language. If a Bidder holds another contract in which the price is
F.O.B. origin, then, OGS will allow up to a three (3)percent diff
erence in the
discount structure. -4fier the Bid Opening, each Bid will be screened,for
completeness and conformance with the stated Bidder Qualiflcatiollsfior Bid
submission, as set forth in Section 2 of this Solicitation. Any Bid not meeting
these requirements may be deemed non-responsive and denied further
consideration fir award.
Agati Furniture has two GSA contracts, and the GSA receives our best discount.
However, our GSA contracts'freight terms are FOB Origin. As stated in the above quote
from the State of NY's contract, Agati reduced the discount to New York by three (3)
percent to make up for the differing freight terms. This also brought Agati into compliance
with the State of Florida's Preferred Pricing Clause (Florida statute 216.0113).
216.0113 Preferred pricing clauses in state contracts; compliance
required—
(1) Each state agency, as defined in s. 216.011, shall review its contracts
and,for any contract with a preferred pricing clause, the agency shall ensure
that the contractor complies with such clause.
(2) Each contract executed, renewed, extended, or modified on or qf1er,filly
11 2010, which includes a preferred pricing clause, must require all, af
fidavit
firom an authorized representative of the contractor attesting that the contract
is in compliance with the preferred-pricing clause. h S11 c f qfldavil must be
submitted at least annually. A contractor's failure to comply with a preferred-
pricing clause is grounds,for terminating the contract at the state agency's
sole discretion.
AGATI 451 N CLAREMONT ave CHICAGO, IL 60612 T. 312.829.1977 F. 312.829.8249 www.agati.com
3999
AGATI
FURN | TUR 1
N As used in this section, the term, clause''means o
cox//oc/no/provi /ox under which the x/o/u � the most,favorable price
that the contractor offers to any client.
A second benefit of using the State of Florida's furniture contract is the competitive
process. The State of Florida reviewed the contracting process the State of New York
implemented for their statewide furniture contract bid. It was o competitive prnoeoo' and
the State of New York awa rded 139 f u rnitu re contracts. Of those contracts, as of May 16,
2024, the State of Florida has awarded 26 contracts. The State of Florida does not
automatically award furniture contracts to all State of NY furniture contract holders.Agati
had a contract with the State of New York in 2019, but the State of Florida did not grant
Agati a contract at that time. Rest assured, the State of Florida did (and is doing)their due
diligence for the benefit nf state and local agencies.
The State of New York created a statewide contract to ensure state and local
agencies receive the best available discounts. Their efforts give their state and inooi
agencies the ability to devote more time and resources to other pressing matters. The
oonne can be said for the State of Florida. With the implementation of Florida's statewide
contract, state and local agencies can purchase Agotifurniture, confident all nf otote`o
procurement requirements have been met.
Our contract went into effect nn February 2O' 2O24' and it has been used tn
purchase Agati furniture. The Greater Orlando Airport Authority(GOAA) has recently used
the contract to purchase furniture for Terminal 2, Levels 2, &6. Feet free to contact the
GC)AAif you have any questions regarding their use nf our contract.
TheAgoti contract with the State of Florida is available to dnvvninod for review frnnn
the Stote`o contracting vveboite'
https://www.dms.mvftorida.com/business operations/state Durchasing/state contracts
and a greem ents/a[tern ate contract source/furniture all WDes/coMD[ete contract -
—participating addenda/complete contract - agati inc.Agoti`o contract with the State nf
New York io also available tnreview,
. Pieooeonntoot
the contracting officers for each state if you have any questions regardingtheir respective
state's procurement and contracting processes. Feelfree to contactAgati if you have any
questions regarding our discounting determinations.
AGAT| 451 NCLAREK8ONTavo CH|CAGO. |L00012 T. 3128291977F 3128298249 vmww.o0oti.conn
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DocuSign Envelope ID:4F20043A-0546-41 B4-B697-A11042FFF18C
Department of
MANAGEMENT
SERVICES I
We serve those who serve Florida
Alternate Contract Source (ACS)
No. 56120000-24-NY-ACS
For
Furniture, All Types
This Alternate Contract Source No. 56120000-24-NY-ACS Furniture, All Types (Contract), is
between the Department of Management Services (Department), an agency of the State of
Florida (State), located at 4050 Esplanade Way, Tallahassee, FL 32399 and Agati, Inc.
(Contractor), located at 451 N Claremont Ave., Chicago, IL 60612-1440 collectively referred to
herein as the "Parties."
WHEREAS, 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 by the Secretary of
Management Services in writing to be cost-effective and the best value to the state, to enter into
a written agreement authorizing an agency to make purchases under such contract;
WHEREAS, the State of New York, Office of General Services, competitively procured Group
20915 Furniture, All Types (except Hospital Room and Patient Handling), and awarded Contract
No. PC70155, Furniture, All Types (Master Contract), with the Contractor;
WHEREAS, the Secretary evaluated the Master Contract and determined that use of the Master
Contract is cost-effective and the best value to the state.
NOW THEREFORE, in consideration of the mutual promises contained herein, the receipt and
sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Term and Effective Date.
The Master Contract became effective December 5, 2023, and its term currently ends on
December 1, 2028. The Master Contract has up to five years of renewals available. The
Contract will become effective on February 1, 2024 or on the date signed by all Parties,
whichever is later. The Contract will expire on December 1, 2028 unless terminated earlier or
renewed in accordance with Exhibit B, Special Contract Conditions.
2. Order of Precedence.
This Contract document and the attached exhibits constitute the Contract and the entire
understanding of the Parties. Exhibits A, B, and C and this Contract document constitute the
Enterprise Alternate Contract Source to the Master Contract and modify or supplement the
terms and conditions of the Master Contract. All exhibits listed below are incorporated by
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Alternate Contract Source (ACS)
No. 56120000-24-NY-ACS
For
Furniture, All Types
reference into, and form part of, this Contract. In the event of a conflict, the following order of
precedence shall apply:
a) This Contract document
b) Exhibit A: Additional Special Contract Conditions (Florida)
c) Exhibit B: Special Contract Conditions (Florida)
d) Exhibit C: Price Sheet
e) Exhibit D: Preferred Pricing Affidavit
f) Exhibit E: Master Contract (including any amendments made prior to the effective date
of this Contract and any subsequent amendments added to this Contract in accordance
with the Modifications Section listed below)
Where the laws and regulations of a state other than the State of Florida are cited or
referenced in the Master Contract, such citation or reference shall be replaced by the
comparable Florida law or regulation.
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. Any entity making a purchase off of
this Contract acknowledges and agrees to be bound by the terms and conditions of this
Contract.The Contractor shall adhere to the terms included in any contract or purchase orders
issued pursuant to this Contract.
4. Primary Contacts.
Department's Contract Manager:
Christopher McMullen
Division of State Purchasing
Florida Department of Management Services
4050 Esplanade Way, Suite 360
Tallahassee, Florida 32399-0950
Telephone: (850) 922-9867
Email Christopher.Mcmullen dms.fl.aov
Contractor's Contract Manager:
Nathaniel Hawkins
Agati, Inc.
451 N. Claremont Ave.
Chicago, IL 60612-1440
Telephone: (312) 632-6201
Email: NHawkins agati.com
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Alternate Contract Source (ACS)
No. 56120000-24-NY-ACS
For
Furniture, All Types
5. Modifications.
Any amendments to this Contract must be in writing and signed by the Parties. If amendments
are made to the Master Contract after the effective date of this Contract, 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.
IN WITNESS THEREOF, the Parties hereto have caused this Contract to be executed by their
duly authorized undersigned officials.
AGATI, INC. DEPARTMENT OF MANAGEMENT SERVICES
DocuSigned by: L
uSigned by:
lac. S. Q��a�i
Joe S. Agati, COO Pedro Allende, Secretary
2/20/2024 1 3:00 PM CST 2/21/2024 1 3:10 PM EST
Date: Date:
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Department of
MANAGEMENT
SERVICES I
We serve those who serve Florida
EXHIBIT A
ADDITIONAL SPECIAL CONTRACT CONDITIONS
The Contractor and agencies, as defined in section 287.012, Florida Statutes acknowledge and
agree to be bound by the terms and conditions of the Master Contract except as otherwise
specified in the Contract, which includes the Special Contract Conditions and these Additional
Special Contract Conditions.
A. Orders: Contractor must be able to accept the State of Florida Purchasing Card and
MyFloridaMarketPlace (MFMP) purchase orders.
B. Contractor and Subcontractors, Affiliates, Partners, Resellers, Distributors, and Dealers:
By execution of a Contract, the Contractor acknowledges that it will not be released of its
contractual obligations to the Department or state agencies because of any failure of an
affiliate, partner, subcontractor, reseller, distributor, or dealer. The Contractor is
responsible for ensuring that its affiliates, partners, subcontractors, resellers, distributors,
and dealers providing commodities and performing services in furtherance of the Contract
do so in compliance with the terms and conditions of the Contract. The Contractor is fully
responsible for satisfactory completion of all work performed under the Contract.
C. All Contractor's Florida Resellers authorized to provide commodities under this ACS can
be found on the Department's contract website. The Resellers are approved to provide
sales and service support to State of Florida Customers. Contractors may request to
add/delete Resellers to the ACS on a quarterly basis, by the 15th of each month listed:
January, April, July, October of each year. Contractors must receive written approval from
the Department prior to adding Resellers to this ACS.
D. Preferred Pricing: It is the responsibility of the Contractor to provide a completed Preferred
Pricing Affidavit upon Contract execution and annually thereafter throughout the Contract
term in accordance with the Special Contract Conditions.
E. Purchases Prerequisites: Contractor must ensure that entities receiving payment directly
from Customers under this Contract must have met the following requirements:
• Have an active registration with the Florida Department of State, Division of
Corporations (www.sunbiz.org), or, if exempt from the registration requirements,
provide the Department with the basis for such exemption.
• Be registered in the MFMP Vendor Information Portal (https:Hvendor.
myfloridamarketplace.com).
• Have a current W-9 filed with the Florida Department of Financial Services
(https://fivendor.myfloridacfo.com)
F. Punchout Catalog and Electronic Invoicing.
The Contractor is encouraged to provide a MFMP punchout catalog. The punchout catalog
provides an alternative mechanism for suppliers to offer the State access to Products
1
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awarded under the Contract. The punchout catalog also allows for direct communication
between the MFMP eProcurement System and a supplier's Enterprise Resource Planning
(ERP) system, which can reflect real-time Product inventory/availability information.
Through utilization of the punchout catalog model, a Florida buyer will "punch out" to a
supplier's website. Using the search tools on the supplier's Florida punchout catalog site,
the user selects the desired Products. When complete, the user exits the supplier's
punchout catalog site and the shopping cart (full of Products) is "brought back" to MFMP.
No orders are sent to a supplier when the user exits the supplier's punchout catalog site.
Instead, the chosen Products are "brought back" to MFMP as line items in a purchase
order. The user can then proceed through the normal workflow steps, which may include
adding/editing the Products (i.e., line items) in the purchase order. An order is not
submitted to a supplier until the user approves and submits the purchase order, at which
point the supplier receives an email with the order details.
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:
1) EDI (Electronic Data Interchange)
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.
2) PO Flip via AN
This 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.
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
MFMP. 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 MFMP 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.
G. Contract Reporting: The Contractor shall provide the Department the following accurate
and complete reports associated with this Contract.
1) Contract Quarterly Sales Reports. The Contractor shall submit Quarterly Sales
Reports in the manner and format required by the Department within 30 calendar
days after the close of each State fiscal quarter (the State's fiscal quarters close on
September 30, December 31, March 31, and June 30).
The Quarterly Sales Report template can be found here: Quarterly Sales Report
Format / Vendor Resources / State Purchasing / Business Operations / Florida
Department of Management Services - DMS (myflorida.com). Initiation and
Additional Special Contract Conditions (approved by State Purchasing, 1/18/2024)
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submission of the most recent version of the Quarterly Sales Report posted on the
DMS website is the responsibility of the Contractor without prompting or notification
from the Department. Sales will be reviewed on a quarterly basis. If no sales are
recorded in two consecutive quarters, the Contractor may be placed on probationary
status, or the Department may terminate the Contract. Failure to provide the Quarterly
Sales Report, or other reports requested by the Department, will result in the
imposition of financial consequences and may result in the Contractor being found in
default and the termination of the Contract.
2) Certified and Minority Business Enterprises Reports. Upon Customer request, the
Contractor shall report to each Customer spend with certified and other minority
business enterprises in the provision of commodities or services related to the
Customer orders. These reports shall include the period covered; the name, minority
code, and Federal Employer Identification Number of each minority business
enterprise utilized during the period; commodities and services provided by the
minority business enterprise; and the amount paid to each minority business
enterprise on behalf of the Customer.
3) Ad Hoc Sales Reports. The Department may require additional Contract sales
information such as copies of purchase orders or ad hoc sales reports. The Contractor
shall submit these documents and reports in the format acceptable to the Department
and within the timeframe specified by the Department.
4) MFMP Transaction Fee Reports. The Contractor shall submit complete monthly MFMP
Transaction Fee Reports to the Department. Reports are due 15 calendar days after
the end of each month. Information on how to submit MFMP Transaction Fee Reports
online can be located at
https://www.dms.myflori a.com/business operations/state /my floridamarketr�lace/mf
mp vendors/transaction fee and reporting. Assistance with transaction fee reporting
is also available by email at feeprocessinci myfloridamarketplace.corn or telephone
at 866-FLA-EPRO (866-352-3776) from 8:00 a.m. to 6:00 p.m. Eastern Time.
H. Financial Consequences: The Department reserves the right to impose financial
consequences when the Contractor fails to comply with the requirements of the Contract.
The following financial consequences will apply for the Contractor's non-performance
under the Contract. The Customer and the Contractor may agree to add additional
Financial Consequences on an as-needed basis beyond those stated herein to apply to
that Customer's resultant contract or purchase order. The State of Florida reserves the
right to withhold payment or implement other appropriate remedies, such as Contract
termination or nonrenewal, when the Contractor has failed to comply with the provisions
of the Contract. The Contractor and the Department agree that financial consequences for
non-performance are an estimate of damages which are difficult to ascertain and are not
penalties.
The financial consequences below will be paid and received by the Department of
Management Services within 30 calendar days from the due date specified by the
Department. These financial consequences below are individually assessed for failures
over each target period beginning with the first full month or quarter of the Contract
performance and every month or quarter, respectively, thereafter.
Additional Special Contract Conditions (approved by State Purchasing, 1/18/2024)
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Financial Consequences Chart
Financial
Performance Performance Due Consequence for Non-
Deliverable Metric Date Performance/Not
Received by the
Contract Manager
Contractor will All Quarterly Sales Completed reports $250 per day late
timely submit Reports will be are due on or
complete Quarterly submitted timely before the 301n
Sales Reports with the required calendar day after
information the close of each
State fiscal quarter
Contractor will All MFMP Completed reports $100 per day late
timely submit Transaction Fee are due on or
complete MFMP Reports will be before the 15tn
Transaction Fee submitted timely calendar day after
Reports with the required the end of each
information month
No favorable action will be considered when Contractor has outstanding Contract
Quarterly Sales Reports, MFMP Transaction Fee Reports, or any other
documentation owed to the Department or Customer, to include fees / monies, that
is required under this Contract.
I. Business Review Meetings: Both the Department and Customer reserve the right to
schedule business review meetings. The Department or Customer may specify the format
or agenda for the meeting. At a minimum, the Business Review Meeting may include the
following topics:
a. Contract compliance
b. Contract savings (in dollar amount and cost avoidance)
c. Spend reports by Customer
d. Recommendations for improved compliance and performance
J. Special Contract Conditions revisions: the corresponding subsections of the Special
Contract Conditions referenced below are replaced in their entirety with the following:
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(14), F.S.
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
Additional Special Contract Conditions (approved by State Purchasing, 1/18/2024)
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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. However, if an extended pricing plan
offered in the state term or agency contract is selected by the ordering entity, the contract
terms on pricing plans and renewals shall govern the maximum duration of purchase orders
reflecting such pricing plans and renewals. Any purchase order terms and conditions
conflicting with these Special Contract Conditions shall not become a part of the Contract.
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(24),
F.S., all payments shall be assessed a Transaction Fee of one percent (1.0%), or as may
otherwise be established by law, which the vendor shall pay to the State.
For payments within the State accounting system (FLAIR or its successor), the Transaction Fee
shall, when possible, be automatically deducted from payments to the vendor. If automatic
deduction is not possible, the vendor shall pay the Transaction Fee pursuant to subsection 60A-
1.031(2), F.A.C. By submission of these reports and corresponding payments, vendor certifies
their correctness. All such reports and payments shall be subject to audit by the State or its
designee.
The vendor shall receive a credit for any Transaction Fee paid by the vendor for the purchase of
any item(s) if such item(s) are returned to the vendor through no fault, act, or omission of the
vendor. Notwithstanding the foregoing, a Transaction Fee is non-refundable when an item is
rejected or returned, or declined, due to the vendor's failure to perform or comply with
specifications or requirements of the agreement.
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 submission of required reporting of transactions shall constitute grounds for
declaring the Vendor in default.
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.
Nothing contained within this Contract shall be construed to prohibit the Contractor from
disclosing information relevant to performance of the Contract or purchase order to members
or staff of the Florida Senate or Florida House of Representatives.
Pursuant to section 287.057(26), F.S., the Contractor shall answer all questions of, and
ensure a representative will be available to, a continuing oversight team.
The Contractor will comply with all applicable disclosure requirements set forth in section
286.101, F.S. In the event the Department of Financial Services issues the Contractor a final
Additional Special Contract Conditions (approved by State Purchasing, 1/18/2024)
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order determining a third or subsequent violation pursuant to section 286.101(7)(c), F.S., the
Contractor shall immediately notify the Department and applicable Customers and shall be
disqualified from Contract eligibility.
5.4 Convicted, Discriminatory, Antitrust Violator, and Suspended Vendor Lists.
In accordance with sections 287.133, 287.134, and 287.137, F.S., the Contractor is hereby
informed of the provisions of sections 287.133(2)(a), 287.134(2)(a), and 287.137(2)(a), F.S.
For purposes of this Contract, a person or affiliate who is on the Convicted Vendor List, the
Discriminatory Vendor List, or the Antitrust Violator 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 Convicted Vendor List, the Discriminatory Vendor List, or the Antitrust Violator
Vendor List during the term of the Contract.
In accordance with section 287.1351, F.S., a vendor placed on the Suspended Vendor List
may not enter into or renew a contract to provide any goods or services to an agency after its
placement on the Suspended Vendor List.
A firm or individual placed on the Suspended Vendor List pursuant to section 287.1351, F.S.,
the Convicted Vendor List pursuant to section 287.133, F.S., the Antitrust Violator Vendor List
pursuant to section 287.137, F.S., or the Discriminatory Vendor List pursuant to section
287.134, F.S., is immediately disqualified from Contract eligibility.
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 Terrorism Sectors 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. 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 or termination
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.
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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(6), F.A.C.
8.1.1 Termination of Contract.
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 unless the records are exempt
from s. 24(a) of Art. I of the State Constitution and section 119.071(1), F.S.
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 DEPARTMENT'S CUSTODIAN
OF PUBLIC RECORDS AT , (850)
487-1082 OR 4050 ESPLANADE WAY, SUITE 160, TALLAHASSEE,
FLORIDA 32399-0950.
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
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public agency's custodian of public records, in a format that is compatible with the information
technology systems of the public agency.
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, and the Office of the Auditor General
shall also have authority to perform audits and inspections.
13.2 E-Verify.
The Contractor and its subcontractors shall register with and use the U.S. Department of
Homeland Security's (DHS) E-Verify system to verify the work authorization status of all new
employees of the contractor or subcontractor in accordance with section 448.095, F.S. The
Contractor shall obtain an affidavit from its subcontractors in accordance with paragraph (5)(b)
of section 448.095, F.S., and maintain a copy of such affidavit for the duration of the Contract.
Special Contract Conditions additions: the following subsections are added to the Special
Contract Conditions:
5.7 Foreign Country of Concern Attestation.
If the Contract or Customer's purchase order issued pursuant to this Contract grants the
Contractor access to an individual's personal identifying information as defined in section
501.171, Florida Statutes, the Contractor must, prior to execution, extension, or renewal of
this Contract or Customer purchase order, complete and submit to the applicable
Governmental Entity the Form PUR 1355, "Foreign Country of Concern Attestation Form,"
available at: Ref-15958.
5.8 Common Carrier Attestation.
The Contractor as a Common Carrier, as defined in section 908.111, Florida Statutes, or
contracted carrier must, prior to execution, amendment, or renewal of this Contract or
Customer purchase order issued pursuant to this Contract, complete and submit to the
applicable Governmental Entity the Form PUR 1808, "Common Carrier or Contracted
Carrier Attestation Form," available at:
http://www.flrules.org/Gateway/reference.as ?No®Ref-14614.
This Contract or a Customer purchase order may be terminated if the Contractor is found to
be in violation of the submitted attestation.
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12.3 Document Inspection.
In accordance with section 216.1366, F.S., the Department or a state agency is authorized to
inspect the: (a) financial records, papers, and documents of the Contractor that are directly
related to the performance of the Contract or the expenditure of state funds; and (b)
programmatic records, papers, and documents of the Contractor which the Department or
state agency determines are necessary to monitor the performance of the Contract or to
ensure that the terms of the Contract are being met. The Contractor shall provide such
records, papers, and documents requested by the Department or a state agency within 10
Business Days after the request is made.
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Exhibit B
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.
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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.
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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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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 lip,tt11�,.................................................w,,,,!r ,a; , !2ff1, irii, ,,,,,q!g,
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
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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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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(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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