HomeMy WebLinkAboutResolution No. 2026-53 Pro Energy Fleet Fueling LLC Fuel Services Agreement - September 8, 2026CITY OF AVENTURA RESOLUTION NO. 2026-53
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF
AVENTURA, FLORIDA, APPROVING A PIGGYBACK AGREEMENT
WITH PRO ENERGY FLEET FUELING LLC FOR BULK FUEL,
GASOLINE, DIESEL, MARINE, AND BIODIESEL SERVICES UTILIZING
THE STATE OF FLORIDA, DEPARTMENT OF MANAGEMENT
SERVICES, STATE TERM CONTRACT NO. 15100000-25-STC;
RATIFYING PURCHASE ORDER NO. 20260129-001 IN THE AMOUNT
OF $250,000 FOR EXISTING FUEL SERVICES; AUTHORIZING THE
CITY MANAGER TO EXECUTE THE AGREEMENT; AND PROVIDING
FOR AN EFFECTIVE DATE.
WHEREAS, the City of Aventura (the "City") is authorized to enter into agreements
to provide services and products in accordance with its Charter; and
WHEREAS, the City requires bulk fuel, gasoline, diesel, marine, and biodiesel
services to support City operations, including Police, Public Works, and City facilities;
and
WHEREAS, the State of Florida, Department of Management Services
("Department"), through a competitive solicitation process, awarded State Term Contract
No. 15100000-25-STC for Bulk Fuel, Gasoline, Diesel, Marine, and Biodiesel Services,
with an initial term from December 31, 2025 through December 30, 2028; and
WHEREAS, Pro Energy Fleet Fueling LLC ("Contractor") was awarded the State
Term Contract and is authorized to provide fuel and related services to eligible users
under the terms, conditions, pricing, and fee schedule established therein; and
WHEREAS, the City desires to obtain bulk fuel services by entering into a
piggyback agreement adopting the terms of State Term Contract No. 15100000-25-STC;
and
WHEREAS, in accordance with Section 2-253(2)(b) of the City's Purchasing Code,
an exemption from competitive bidding is permitted when piggybacking on State, County,
municipal, and other governmental entity contracts, subject to the approval thresholds of
the City Manager or City Commission, as applicable; and
WHEREAS, the City previously issued Purchase Order No. 20260129-001 in the
amount of $250,000 for existing fuel services provided by the Contractor, and the
Purchase Order indicates that prior expenditures exceeded the procurement threshold
and must be ratified by the City Commission at its next scheduled meeting; and
City of Aventura Resolution No. 2026-53
WHEREAS, the City Commission deems approval of this Resolution and
ratification of fuel expenditures under Purchase Order No. 20260129-001 to be in the
best interest of the City, its operations, and its residents.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF AVENTURA, FLORIDA THAT:
Section 1. The foregoing recitals are hereby affirmed and ratified.
Section 2. The City Commission of the City of Aventura has reviewed and hereby
approves the Agreement between the City and Contractor, attached hereto and
incorporated herein as Exhibit "A".
Section 3. The City Commission hereby ratifies Purchase Order No.
20260129-001, issued to Pro Energy Fleet Fueling LLC in the amount of $250,000 for
existing fuel services.
Section 4. The City Manager is authorized to execute the contract and any related
documents, subject to legal approval.
Section 5. This Resolution shall take effect immediately upon adoption.
The foregoing resolution was offered by Commissioner Bloom, who moved its
adoption. The motion was seconded by Commissioner Blachman, and upon being put to
a vote, the vote was as follows:
Commissioner Gustavo Blachman
Yes
Commissioner Amit Bloom
Yes
Commissioner Rachel S. Friedland
Yes
Commissioner Paul A. Kruss
Absent
Commissioner Cindy Orlinsky
Yes
Vice Mayor Clifford B. Ain
Yes
Mayor Howard S. Weinberg
Yes
PASSED AND ADOPTED this 8th day of September, 2026.
Page 2 of 3
City of Aventura Resolution No. 2026-53
WARD S. WEINBERG, ES
MAYOR
ATTEST:
ELLISA L. HORVA H, MMC
CITY CLERK
APPROVED AS TO LEGAL SUFFICIENCY:
ROBERT MEYERS
CITY ATTORNEY
WEISS SEROTA HELFMAN COLE + BIERMAN, P.L.
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Docusign Envelope ID: CD0BAEA0-FB60-80F1-8274-CD638371 D704
P26-002 — Bulk Fuel, Gasoline, Diesel, Marine, and Biodiesel
PIGGYBACK AGREEMENT FOR BULK FUEL, GASOLINE, DIESEL, MARINE, AND
BIODIESEL SERVICES
This Agreement (the "Agreement") is entered into on this 15 day of September, 2026,
(the "Execution Date") by and between the City of Aventura, a municipal corporation organized
and existing under the laws of the State of Florida, whose address is 19200 West Country Club
Drive, Aventura, Florida 331801 (the "City") and PRO ENERGY, LLC., a Florida limited
liability company whose address is 9780 NW 115th Way, Medley, Florida, 3378 (the
"Contractor").
WITNESSETH
WHEREAS, September 22, 2025, the State of Florida, Department of Management
Services (the "Department"), issued Invitation to Bid No. 25-15100000-ITBv2 (the "ITB") to
competitively solicit bids from qualified firms for the provision of Bulk Fuel, Gasoline, Diesel,
Marine, and Biodiesel services on a statewide or regional basis, as further described in the ITB
and resulting State Term Contract No. 15100000-25-STC ("State Term Contract"); and
WHEREAS, on November 4, 2025, the Department selected Contractor as one of the most
qualified firms with respect to cost, expertise, and relevant experience to provide the requested
Bulk Fuel, Gasoline, Diesel, Marine, and Biodiesel services, and awarded State Term Contract No.
15100000-25-STC with an initial three-year term ending December 30, 2028, with the
understanding that customer purchases made under the State Term Contract may continue for up
to forty-eight (48) months beyond the contract's expiration, as permitted under Section 5.3.1 of
the State Term Contract; and
WHEREAS, the Services to be provided by the Contractor will be as requested by the City
and are more specifically described in the Scope of Work contained in Exhibit "A" to the State
Term Contract, which is incorporated herein by reference; and
WHEREAS, the City is seeking to contract with the Contractor to provide the Services
based upon the terms and conditions of the Department's Invitation to Bid No.
25-15100000-ITBv2, the Contractor's bid response, and State Term Contract No.
15100000-25-STC, dated December 31, 2025, including the Contractor's pricing and rates for the
Services, all of which are attached and incorporated herein as Composite Exhibit "A" (collectively,
the "State Term Contract"); and
WHEREAS, the parties wish to incorporate the Department Agreement, including the
Contractor's rates for the Services, into this Agreement as Exhibit "A"; and
WHEREAS, Section 2-253(2)(b) of the City Code authorizes the City to acquire goods or
services by utilizing a competitively procured contract from another governmental entity as an
exemption from the City's otherwise required competitive selection process; and
WHEREAS, on September 8 2026, the City Commission adopted Resolution No.
2026/ 53 , approving a piggyback agreement with the Contractor in an amount not to exceed
$50,000.00 annually for the Services; and
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Docusign Envelope ID: CD0BAEA0-FB60-80F1-8274-CD638371 D704
P26-002 — Bulk Fuel, Gasoline, Diesel, Marine, and Biodiesel
WHEREAS, the City desires to enter into an agreement with Contractor for Bulk Fuel,
Gasoline, Diesel, Marine, and Biodiesel Services based upon the terms and pricing of the
Department Agreement.
NOW THEREFORE, in consideration of the mutual covenants set forth in this
Agreement, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree
as follows:
Section 1. Term. The term of this Agreement begins on the Execution Date and will
remain in effect until December 30, 2028, consistent with the State Term Contract. The State Term
Contract does not include renewal options; however, in accordance with Section 5.3.1 of the State
Term Contract, purchases made under this Agreement prior to the State Term Contract's expiration
may continue for up to forty-eight (48) months beyond December 30, 2028. If the State Term
Contract expires or is terminated prior to December 30, 2028, this Agreement shall terminate
forty-eight (48) months after such expiration or termination, unless otherwise required by law or
the State Term Contract.
Section 2. Contract Terms. The Contractor agrees to perform the Services in
accordance with the requirements, specifications, and obligations set forth in the State Term
Contract, attached and incorporated herein as Composite Exhibit "A," except as otherwise
modified or supplemented by this Agreement. All recitals, representations, and warranties made
by the Contractor in its Bid response to the Department's Invitation to Bid No.
25-15100000-ITBv2, and incorporated into the State Term Contract, are hereby reaffirmed as
though fully set forth herein, made for the benefit of the City, and incorporated by reference. For
purposes of this Agreement, any reference in the Contractor's Bid response or the State Term
Contract to the "Department" shall be deemed to refer instead to the "City of Aventura."
2.1 PUBLIC RECORDS.
IF CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF
CHAPTER 119, FLORIDA STATUTES, TO CONTRACTOR'S DUTY TO PROVIDE
PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN
OF PUBLIC RECORDS.
Custodian of Public Records: ELLISA L. HORVATH, CITY CLERK
Mailing address: 19200 WEST COUNTRY CLUB DRIVE
AVENTURA, FL 33180
Telephone number: 305-466-8901
Email: HORVATHECITYOFAVENTURA.GOV
2.2 VERIFICATION OF EMPLOYMENT ELIGIBILITY
Contractor shall comply with Sections 448.09 and 448.095, Fla. Stat., "Employment
Eligibility," including the registration and use of the E -Verify system to verify the work
authorization status of employees. Failure to comply with Section 448.095, Fla. Stat. shall result
in termination of this Agreement. Any challenge to termination under this provision must be filed
in the Circuit Court no later than 20 calendar days after the date of termination. All costs incurred
to initiate and sustain the aforementioned program shall be the responsibility of the Contractor in
accordance with Sections 448.09 and 448.095, Florida Statutes. Contractor is liable for additional
costs incurred by the City as a result of termination of this Agreement. If this Agreement is
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P26-002 — Bulk Fuel, Gasoline, Diesel, Marine, and Biodiesel
terminated for a violation of the statute by Contractor, Contractor may not be awarded a public
contract for a period of one (1) year after the date of termination.
2.3 SCRUTINIZED COMPANIES.
Contractor certifies that it and its subconsultants are not on the Scrutinized
Companies that Boycott Israel List. Pursuant to Section 287.135, F.S., the City may immediately
terminate this Agreement at its sole option if the Contractor or its subconsultants are found to have
submitted a false certification; or if Contractor, or its subconsultants are placed on the Scrutinized
Companies that Boycott Israel List or is engaged in the boycott of Israel during the term of the
Agreement.
b. If this Agreement is for more than one million dollars, Contractor certifies that it
and its subconsultants are also not on the Scrutinized Companies with Activities in Sudan,
Scrutinized Companies with Activities in the Iran Petroleum Energy Sector List, or engaged with
business operations in Cuba or Syria as identified in Section 287.135, F.S. Pursuant to Section
287.135, F. S., the City may immediately terminate this Agreement at its sole option if Contractor,
its affiliates, or its subconsultants are found to have submitted a false certification; or if Contractor,
its affiliates, or its subconsultants are placed on the Scrutinized Companies with Activities in
Sudan List, or Scrutinized Companies with Activities in the Iran Petroleum Energy Sector List, or
engaged with business operations in Cuba or Syria during the term of the Agreement.
c. Contractor agrees to observe the above requirements for applicable subcontracts
entered into for the performance of work under this Agreement.
d. As provided in Subsection 287.135(8), F.S., if federal law ceases to authorize the
above -stated contracting prohibitions then they shall become inoperative.
2.4 NON -COERCION AFFIDAVIT FOR LABOR OR SERVICES. In accordance
with Section 787.06(13), Florida Statutes, as Contractor is a nongovernmental entity doing
business with the City, Contractor is required to attest that it does not use coercion for labor or
services. At the time of execution of this Agreement, Contractor shall submit the required
Affidavit, which will be provided by the City's Procurement Office.
2.5 FOREIGN COUNTRIES OF CONCERN AFFADAVIT. In accordance with
Section 287.138, Florida Statutes, the Contractor is required to attest that it does not meet any of
the criteria set forth in Paragraph 2 (a) -(c) of Section 287.138, Florida Statutes, as such terms are
defined therein, as updated. At the time of execution of this Agreement, Contractor shall submit
the required Affidavit, which will be provided by the City's Procurement Office.
Section 3. Compensation. The City shall compensate the Contractor for Bulk Fuel,
Gasoline, Diesel, Marine, and Biodiesel products in accordance with the pricing methodology and
authorized charges set forth in the State Term Contract, incorporated herein as Composite Exhibit
"A." Fuel pricing shall be calculated using the applicable DTN FastRacks Average Price for the
relevant fuel type on the date of delivery, plus the Contractor's Markup for the applicable Region
as identified in Exhibit C (Markup Sheet). The City shall also pay only those fuel -related fees
expressly permitted in the State Term Contract, including: Delivery Charges, Freight Charges (for
transport deliveries only), Pump -Off Charges (transport deliveries only), Delay Charges, Back
Page 3 of 6
Docusign Envelope ID: CD0BAEA0-FB60-80F1-8274-CD638371 D704
P26-002 — Bulk Fuel, Gasoline, Diesel, Marine, and Biodiesel
Haul Charges, Top -Off Charges, and any applicable fuel taxes or petroleum -associated fees as
determined by the county in which delivery is made. No other fees, surcharges, or costs may be
assessed unless expressly authorized in the State Term Contract or by law. Consistent with Section
1 of this Agreement, all payments made by the City for fuel delivered from the Execution Date
through December 30, 2028, or during any authorized extension period, shall be contingent upon
an annual appropriation by the City Commission. If the City Commission does not approve the
necessary appropriation for any fiscal year, the City may terminate this Agreement for convenience
without penalty.
Section 4. Assignment. Neither party may assign its rights or obligations under this
Agreement without the written consent of the other.
Section 5. Notice. Notwithstanding anything to the contrary in the City of North
Miami Agreement, notice hereunder shall be provided in writing by certified mail return receipt
requested, or customarily used overnight transmission with proof of delivery, to the following
parties, with mandatory copies, as provided below:
For City: Bryan Pegues, City Manager
City of Aventura
19200 West Country Club Drive
Aventura, Florida 33180
Copy to: Robert Meyers, Esq., City Attorney
Weiss Serota Helfman Cole & Bierman, P.L.
2255 Glades Road, Suite 200-E
Boca Raton, Florida 33431
For Contractor: CJ Cruz
Pro Energy, LLC
9780 NW 115th Way
Medley, Florida 33178
cj @proenergy.us
954-661-6707
Section 6. Severability. If any provision of this Agreement or the application thereof
to any person or situation shall to any extent, be held invalid or unenforceable, the remainder of
this Agreement, and the application of such provisions to persons or situations other than those as
to which it shall have been held invalid or unenforceable shall not be affected thereby, and shall
continue in full force and effect, and be enforced to the fullest extent permitted by law.
Section 7. Entire Agreement. This Agreement, including the Department
Agreement, sets forth the entire agreement between Contractor and City with respect to the subject
matter of this Agreement. This Agreement supersedes all prior and contemporaneous negotiations,
understandings and agreements, written or oral, between the parties. This Agreement may not be
modified except by the parties' mutual agreement set forth in writing and signed by the parties.
[THIS SPACE LEFT INTENTIONALLY BLANK]
Page 4 of 6
Docusign Envelope ID: CD0BAEA0-FB60-80F1-8274-CD638371D704
P26-002 — Bulk Fuel, Gasoline, Diesel, Marine, and Biodiesel
IN WITNESS WHEREOF, the parties have made and executed this Agreement on the
respective dates under each signature.
CITY OF AVENTURA, FLORIDA
Signed by:
By: 4AO4S
Bryan Pegues, City Manager
Date: 9/15/2026
Attest: APPROVED AS TO FORM AND LEGAL
SUFFICIENCY for use and reliance by the
City of Aventura, Florida, only:
Signed by:
Lw
M-&W1M 1E= 34F1-411...
Ellisa L. Horvath, MMC, City Clerk
Date: 9/15/2026
WITNESS:
Signed by:
By: �—hfcltls
2TFTCFHTSA&d
Print Name: Nicholas Cruz
DocuSigned by:
By:r
Print Name: Clemente Cruz
Signed by:
Robert Meyers, Esq. City Attorney
Date: 9/15/2026
CONTRACTOR:
PRO ENERGY, LLC.
Signed b,�y::
By: v,.,
C�--GF4FO..
Print Name: CJ Cruz
Date: 9/14/2026
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Docusign Envelope ID: CD0BAEA0-FB60-80F1-8274-CD638371 D704
P26-002 — Bulk Fuel, Gasoline, Diesel, Marine, and Biodiesel
COMPOSITE EXHIBIT "A"
STATE TERM CONTRACT NO. 15100000-25-STC, INCLUDING EXHIBIT A (SCOPE
OF WORK), EXHIBIT B (ENTERPRISE STANDARD TERMS AND CONDITIONS),
EXHIBIT C (MARKUP SHEET), AND THE CONTRACTOR'S BID RESPONSE TO
ITB NO. 25-15100000-ITBV2
Page 6 of 6
Docusign Envelope ID: CD0BAEA0-FB60-80F1-8274-CD638371D704
Department of
MANAGEN
SERVICES
We serve those wh
State Term Contract
No. 15100000-25-STC
For
Bulk Fuel, Gasoline, Diesel, Marine, and Biodiesel
This State Term Contract No. 15100000-25-STC ("Term Contract") is between the Department
of Management Services ("Department"), an agency of the State of Florida, located at
4050 Esplanade Way, Tallahassee, Florida 32399; and Pro Energy, LLC ("Contractor") with
its principal place of business located at 9780 NW 115th Way, Medley, Florida 33178;
collectively referred to herein as the "Parties."
WHEREAS, the Department issued a competitive solicitation for Bulk Fuel, Gasoline, Diesel,
Marine, and Biodiesel; and
WHEREAS, the Contractor was awarded as a result of such competitive solicitation.
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 initial term of the Term Contract shall be for three years. The Term Contract will become
effective on D e c e m b e r 3 1, 2025 or on the date signed by all Parties, whichever is later.
The Term Contract shall expire on December 30, 2028 unless terminated earlier or renewed
in accordance with Exhibit B, Enterprise Standard Terms and Conditions.
2. Order of Precedence.
This contract document and the attached exhibits constitute the Term Contract and the entire
understanding of the Parties. All Exhibits listed below are incorporated into this Term Contract
by reference herein. In the event of a conflict, the Term Contract document and Exhibits shall
have priority in the following order:
a. This contract document
b. Exhibit A, Scope of Work
c. Exhibit B, Enterprise Standard Terms and Conditions
d. Exhibit C, Markup Sheet
Page 1 of 2
Docusign Envelope ID: CD0BAEA0-FB60-80F1-8274-CD638371D704
State Term Contract No. 15100000-25-STC For
Bulk Fuel, Gasoline, Diesel, Marine, and Biodiesel
3. Purchases off this Term Contract.
Upon execution of this Term Contract, Customers, as defined in Exhibit B, Enterprise
Standard Terms and Conditions, may purchase products and services under this Term
Contract. Any entity making a purchase off of this Term Contract acknowledges and agrees
to be bound by the terms and conditions of this Term Contract. The Contractor shall adhere
to the terms included in any contract or purchase orders issued pursuant to this Term 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
Telephone: (850) 922-9867
Email: christopher.mcmullen(c�dms.fl.gov
Contractor's Contract Manager:
CJ Cruz
Pro Energy, LLC
9780 NW 115111 Way
Medley, Florida 33178
Telephone: (954) 661-6707
Email: ck proenergy.us
Either party may notify the other by email of a change to a designated Contract Manager
providing the contact information for the newly designated contact, and such notice is
sufficient to effectuate this change without requiring a written amendment to the Term
Contract.
IN WITNESS THEREOF, the Parties hereto have caused this Term Contract to be executed by
the undersigned duly authorized officials.
State of Florida:
Depa '1g,!bPVlanagement Services
�ad1d 4lGanda
By:
Name: Pedro Allende
Title: Secretary
Date:12/18/2025 I 10:17 AM EST
Contractor:
Pro Energy, LLC
Signe
By: C9
0C271AACB3D048A...
Name: CJ Cruz
Title: Contract Manager
Date:12/16/2025 1 3:27 PM EST
Page 2 of 2
Docusign Envelope ID: CD0BAEA0-FB60-80F1-8274-CD638371D704
EXHIBIT A
SCOPE OF WORK
1. PURPOSE
To provide Customers with Bulk Fuel on a statewide or regional basis, pursuant to the terms set
forth in this Scope of Work.
2. DEFINITIONS
Definitions contained in section 287.012, Florida Statutes (F.S.); Rule 60A-1.001, Florida
Administrative Code (F.A.C.); and Attachment D, Enterprise Standard Terms and Conditions; are
incorporated by reference. In the event of aconflict, the definitions listed in this section supersede
the incorporated definitions for the purposes of this Scope of Work. All definitions apply in both
their singular and plural sense.
ASTM International (ASTM) - ASTM International, formerly known as the American Society for
Testing and Materials, is a globally recognized organization that develops and publishes voluntary
consensus standards for a wide range of materials, products, systems, and services.
Back Haul Charge — A fee assessed when a Customer orders more Fuel than their storage
tank(s) can safely accommodate, requiring the Contractor to return the excess Fuel to
Contractor's facility.
Bid — The document(s) submitted by a Bidder in response to this ITB.
Business Day — Each day during which the State and its agencies are open for business,
from 8:00 a.m. to 5:00 p.m. at the Customer's location, Monday through Friday.
Cetane — The rating of diesel Fuel as a standard measure of the Fuel's ability to ignite
quickly and cleanly under compression in a diesel engine. It is expressed as a number (e.g.,
40, 45, 50) and indicates the Fuel's ignition quality — with higher numbers representing
shorter ignition delays and more efficient combustion.
Contractor — A vendor that enters into a Term Contract with the Department as a result of
this solicitation.
Customer — A State agency or Eligible User.
Data Transmission Network (DTN) FastRacks Average Price — The Fuel pricing service
provided by the Data Transmission Network, an industry benchmark for pricing Fuel and
other commodities.
Delay Charge — A fee assessed for each thirty -minute increment that the Contractor is
delayed (beyond the initial thirty -minute period, which is not subject to a delay charge) in
commencing Delivery of Fuel due solely to the Customer's failure to provide access,
authorization, or other necessary conditions for Delivery.
15100000-25-STC
Bulk Fuel, Gasoline, Diesel, Marine, and Biodiesel Page 1 of 10
Docusign Envelope ID: CD0BAEA0-FB60-80F1-8274-CD638371D704
Delivery — The act of transporting and offloading Fuel at a Customer's designated location or
site.
Delivery Charge — A flat fee assessed for each completed Delivery of Fuel, regardless of the
quantity delivered. This charge covers the basic costs associated with transportation, handling,
equipment, and labor required to perform the Delivery.
Eligible User— As defined in Rule 60A-1.001, F.A.C.
Ethanol — Arenewable, bio-based alcohol commonly used as a Fuel additive to reduce emissions
and enhance Octane levels in gasoline. Ethanol used in motor Fuels must meet applicable
standards such as ASTM D4806 to ensure quality, performance, and compatibility with engines.
Freight Charge — A transportation fee that may be applied to all shipments and is set by local
authorities which means this fee may apply to both import or export shipments.
Fuel — Any fuel product obtained through this Term Contract. Fuel products shall consist of:
Gasoline E10, Unleaded 87 Octane; Diesel Fuel, Grade No. 2-D Ultra Low Sulfur; Diesel Fuel,
Red Dye Grade No. 2 Ultra Low Sulfur; Marine Grade Gasoline — Ethanol -Free (90 Octane
Minimum); Marine Diesel Fuel, Grade No. 2 with Biocide Additive; and Biodiesel Blend. Fuel may
also be referred to in this Scope of Work as "Bulk Fuel."
Group — A collection of Bulk Fuel that is described in this Scope of Work and Attachment C,
Markup Sheet.
Markup — The Contractor's price (per gallon) to be added to the DTN FastRacks Average Price
to cover all costs associated with providing Fuel to the Customer's location, except for the costs
set forth in Section 3.3 of this Scope of Work. As shown on Attachment C, Markup Sheet, Markups
may differ based on the Region in which Delivery of Fuel is made and actual product of Fuel
ordered. Markup for Fuel shall be on a price per gallon basis. Markup may be expressed as a
negative number if the Contractor is offering a discount off the DTN FastRacks Average Price.
The Contractor shall assess no other fees associated with the Delivery of Fuel except as
expressly provided herein.
Non -Transport Delivery — A Delivery by Tank Wagon or other means with a minimum Delivery
of 250 gallons and a maximum Delivery of 5,999 gallons for all Fuel products.
Octane — The rating of gasoline as a standard measure of the Fuel's ability to resist engine
knocking or pinging during combustion, caused by the air/Fuel mixture detonating prematurely in
the engine. It is expressed as a number (e.g., 87, 89, 91) and indicates the Fuel's anti -knock
properties.
Order — Written agreement between the Customer and Contractor which establishes the products
agreed upon by the Customer and Contractor and may be used interchangeably with purchase
order.
Pump Off Charge — A fee charged when Fuel must be offloaded from the Delivery truck to one
or more tanks at the Customer's designated location or site using a pump, rather than relying on
gravity or standard unloading methods.
15100000-25-STC
Bulk Fuel, Gasoline, Diesel, Marine, and Biodiesel Page 2 of 10
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Region — Service area compromised of specific Florida counties, as defined in Attachment C,
Markup Sheet.
Tank Wagon — A Delivery method utilizing a smaller -capacity Fuel truck capable of servicing
locations with limited access or lower volume needs. This Delivery method requires a minimum
volume of 250 gallons per Delivery and a maximum volume of 5,999 gallons per Delivery.
Term Contract — The legally enforceable State Term Contract, as defined in section 287.012,
F.S., between the Department and the Contractor.
Top Off Charge — To bring Fuel to the maximum tank level of 1,000 gallons or less.
Transport Delivery — A Delivery by a transport truck with a minimum Delivery of 6,000 gallons
for gasoline, 6,000 gallons for diesel, and 7,500 gallons for a combination load of gasoline and
diesel.
3. SCOPE OF WORK
3.1 Description of Scope
The Bulk Fuel available for purchase through this Term Contract is classified under the following
Groups:
Group
Product
Description
A
Gasoline E10, Unleaded 87
The product shall meet ASTM D4814 for automotive
Octane
spark -ignition engine fuel and shall comply with the
standards in Rule 5J-21.001, F.A.C.
B
Diesel Fuel, Grade No. 2-D
Grade no. 2-D (.0015 mass Percentage sulfur, 40
Ultra Low Sulfur
Cetane min.), for use in over the road diesel engine,
per ASTM D975, complying with Rule 5J-21.001,
F.A.C.
C
Diesel Fuel, Red Dye Grade
For use in off -road diesel engine, minimum Cetane
No. 2 Ultra Low Sulfur
number of 40 using ASTM D613, ASTM D975, Grade
# 2 S15. The product shall comply with the standards
in Rule 5J-21.001, F.A.C.
D
Marine Grade Gasoline —
The product shall be Unleaded Gasoline, 90 Octane
Ethanol -Free (90 Octane
(Anti -Knock Index minimum) and Ethanol -free,
Minimum)
formulated specifically for use in marine engines.
Product shall meet ASTM D4814 for automotive spark -
ignition engine Fuel and comply with the standards in
Rule 5J-21.001, F.A.C.
E
Marine Diesel Fuel, Grade
The product shall be Grade No. 2-D Ultra Low Sulfur
No. 2 with Biocide Additive
Diesel Fuel (maximum 0.0015 mass percent sulfur,
minimum Cetane number of 40), meeting ASTM D975.
It shall be suitable for use in marine diesel engines
and treated with a Fuel -compatible biocide additive to
control microbial growth, biofilm formation, and Fuel
degradation. The biocide additive shall meet the
Environmental Protection Agency (EPA) registration
requirements under Federal Insecticide, Fungicide,
15100000-25-STC
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and Rodenticide Act (FIFRA) for use in diesel fuels
and be compatible with engine components and fuel
system materials. The final product shall comply with
the standards in Rule 5J-21.001, F.A.C.
F
Biodiesel Blend
Blend of grade no. 2-D ultra -low sulfur diesel and up to
20% biodiesel, for use in over the road diesel engine,
meeting the ASTM D7467 for biodiesel blends (6% —
20%). The biodiesel component shall consist of mono -
alkyl esters of long chain fatty acids derived from new
and used vegetable oils, designated B100, B99.9, or
B99, meeting the ASTM D6751 and be certified under
the BQ9000 quality program. The diesel component
(grade no. 2-D ultra -low sulfur diesel) and any blends
with less than 6% biodiesel shall meet ASTM D975.
The final product shall comply with the standards in
Rule 5J-21.001, F.A.C. The Contractor must deliver
any blend requested by the Customer.
Upon Customer request, Contractor must provide all certificates concerning product quality of all
commodities listed in this Scope of Work.
3.2 Pricing Elements for Purchase of Fuels
Prices will be calculated for each Fuel product using the following information:
3.2.1 Group A - Gasoline E10, Unleaded 87 Octane
• DTN FastRacks Average Price for Gasoline E-10 10% Ethanol.
• Contractor's Markup as determined in Attachment C, Markup Sheet for
the Region in which Delivery of Fuel is made.
• All applicable Fuel taxes and/or petroleum associated fees as determined
by the county in which Delivery of Fuel is made.
3.2.2 Group B - Diesel Fuel, Grade No. 2-D Ultra Low Sulfur
• DTN FastRacks Average Price for Ultra Low No. 2.
• Contractor's Markup as determined in Attachment C, Markup Sheet for
the Region in which Delivery of Fuel is made.
• All applicable Fuel taxes and/or petroleum associated fees as determined
by the county in which Delivery of Fuel is made
3.2.3 Group C - Diesel Fuel, Red Dye Grade No. 2 Ultra Low Sulfur
• DTN FastRacks Average Price for Ultra Low Red No. 2.
• Contractor's Markup as determined in Attachment C, Markup Sheet for
the Region in which Delivery of Fuel is made.
• All applicable Fuel taxes and/or petroleum associated fees as determined
by the county in which Delivery of Fuel is made.
3.2.4 Group D - Marine Grade Gasoline — Ethanol -Free (90 Octane
Minimum)
• DTN FastRacks Average Price for Ethanol -Free Unleaded Gasoline
(Marine Grade) or the closest available benchmark for non -Ethanol
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recreational/marine gasoline as published for the terminal location
nearest the Delivery point*.
Contractor's Markup, as determined in Attachment C, Markup Sheet for
the Region in which Delivery of Fuel is made.
All applicable Fuel taxes and/or petroleum associated fees as determined
by the county in which Delivery of Fuel is made.
*Note: If the DTN FastRacks Average Price report does not publish a distinct Ethanol -Free
gasoline price at a nearby terminal, the Contractor shall use the nearest available non -Ethanol
gasoline rack price from the closest terminal location from the approved list below, with prior
approval by the Customer. Contractor must provide supporting documentation showing the
benchmark source used in invoicing.
3.2.5 Group E — Marine Diesel Fuel, Grade No. 2 with Biocide Additive
• DTN FastRacks Average Price for Ultra Low Sulfur Diesel No. 2, as
published for the terminal location nearest the Delivery point.
• Contractor's Markup, as determined in Attachment C, Markup Sheet for
the Region in which Delivery of Fuel is made.
• All applicable Fuel taxes and/or petroleum -associated fees as determined
by the county in which Delivery of Fuel is made.
3.2.6 Group F - Biodiesel Blend
• DTN FastRacks Average Price for Ultra Low No. 2. The daily price will be
used to calculate the diesel portion for Biodiesel.
• The Wall Street Journal's published Monday closing price for soybean oil,
as printed in the Tuesday edition under "Fats and Oils" in the "Cash
Prices" column. This weekly price will be used to calculate the bio portion
of the Biodiesel. This method of calculating the bio portion will be used
unless the Contractor receives prior written consent from the Customer to
an alternate method of getting the weekly price. If no Monday price is
published in the Wall Street Journal, then the next available published
price will apply (Tuesday, Wednesday, etc.).
• Contractor's Markup as determined in Attachment C, Markup Sheet for
the Region in which Delivery of Fuel is made.
• All applicable Fuel taxes and/or petroleum associated fees as determined
by the county in which Delivery of Fuel is made.
Sample Calculations:
B20 wholesale price = 0.80 times the price for ultra -low sulfur no. 2 diesel
plus 0.20 times the price for soybean oil.
B10 wholesale price = 0.90 times the price for ultra -low sulfur no. 2 diesel
plus 0.10 times the price for soybean oil.
B5 wholesale price = 0.95 times the price for ultra -low sulfur no. 2 diesel
plus 0.05 times the price for soybean oil.
The Contractor is prohibited from negotiating or billing in a manner that
exceeds the stated prices included in the Term Contract. The Contractor
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agrees that the price charged to the Customer shall be subject to audit,
and the Contractor shall make all records supporting the invoiced prices
available for inspection, upon written request by the Customer.
The DTN FastRacks Average Price used above will be that of the closest appropriate terminal,
on the date of Delivery to the Customer, regardless of when or where the Contractor obtained
the Fuel. The Contractor must subscribe to the DTN FastRacks Averages by calling DTN's
Sales Department at 1-800-475-4755 or by creating an account at https://www.dtn.com/refined-
Fuels/wholesaler/fastracks/.
The following terminals are used to refer to the DTN FastRacks Average Prices:
• Pensacola, FL
• Panama City, FL
• Jacksonville, FL
• Orlando, FL
• Tampa, FL
• Miami, FL
• Bainbridge, GA
3.3 Fuel Fees, Taxes, and Other Costs
The Contractor may assess the following charges at the rates set forth in Attachment C, Markup
Sheet, for the county in which Delivery of Fuel is made:
• Delivery Charge.
• Freight Charge (Transport Deliveries only).
• Pump Off Charge (Transport Deliveries only).
• Delay Charge.
• Back Haul Charge.
• Top Off Charge.
• Tank maintenance, but only in the event the Contractor receives priorwritten consent
from the Customer agreeing to pay a tank maintenance fee and the amount thereof.
• Any applicable Fuel taxes and petroleum -associated fees as determined by the
county in which Delivery of Fuel is made.
No other fees, taxes, or costs may be assessed by the Contractor unless expressly allowed by
the Term Contract or by law.
3.4 Delivery to Customers
A map of the four geographical Regions (Western, Northern, Central, and Southern) can be
located in Attachment C, Markup Sheet.
3.4.1 Delivery Requirements
The following replaces section 5.e., Transportation and Delivery, of the PUR 1000.
NOTE: Gallons listed below may be converted to liters.
3.4.1.1 Transport Delivery on this Term Contract shall be for a minimum of:
• 6,000 gallons for a Delivery of gasoline;
• 6,000 gallons for a Delivery of diesel; and
• 7,500 gallons for a combination load of gasoline and diesel.
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3.4.1.2 Delivery options on the Term Contract for less than the Transport Delivery
minimum amounts listed above may be made via Non -Transport Delivery.
3.4.1.3 In the event of an emergency, gasoline and/or diesel Deliveries can be made
by a transport truck for gasoline or diesel Deliveries less than the Transport
Delivery minimum amounts listed above.
3.4.1.4 Delivery shall be Free on Board (F.O.B.) destination to the Customer's
location throughout the State of Florida.
3.4.1.5 Delivery shall be made available to all Customers and their locations. Imperial
measurements appearing are not intended to preclude Bids for Fuel with
equivalent metric measurements.
3.4.1.6 Delivery of Fuel will be delivered to the Customer's tank(s) within 48 hours
after a Customer's Order is received unless specified otherwise in writing by
the Customer. For new accounts, the Contractor will be allowed additional
time to enter all required account information into their ordering/billing system
to establish the new account. This time will be agreed upon by the Customer
and the Contractor. The State prefers that vehicles equipped with meters
make Delivery. If non -metered vehicles are used, the driver shall leave with
the Customer a metered loading report from the terminal. If temperature
corrected billing is used, the loading report shall give all pertinent information.
Customer may agree to a higher Delivery Charge than that which is set forth
in Attachment C, Markup Sheet, if Customer requests same day Delivery.
3.4.1.7 Before unloading of Fuel begins, Customer personnel and Contractor
personnel shall measure the Customer's tank(s) to receive Fuel and shall
again measure the tank(s) after Delivery.
3.5 Invoices
The Contractor shall submit timely and accurate invoices to the Customer. The Contractor shall
have the ability to accept Customer Orders in writing, including electronically.
3.5.1 At a minimum the invoices are to provide the following information:
• Contractor's name, contract number, actual date of Delivery, location of Delivery,
Fuel manufacturer, and Fuel quantity delivered;
• DTN FastRacks Average Price based on the actual Delivery date and named
closest terminal used for price;
• Exempted taxes, fees, credits, Markup, and other charges consisting of Delivery,
Freight, Pump Off, Delay, Back Haul, Top Off, or tank maintenance charge;
• Downward adjustments due to unforeseen circumstances including but not limited
to erroneous orders, Fuel spills, Delivery of incorrect Fuel, and cross -fueling; and
• Total invoice price.
3.5.2 To encourage transparency, all line item costs on all invoices shall include a
description of each cost sufficient for a Customer to understand and audit.
4. WARRANTY
The Contractor warrants that all Fuel delivered under this Term Contract shall conform to the
specifications stated in this Scope of Work, and all applicable federal and state regulations,
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including Rule 5J-21.001, F.A.C.
4.1 The Fuel shall be free from contamination, water, sediments, or other impurities that
could impair vehicle or equipment performance. The Contractor shall be fully responsible
for any damages, costs, or losses arising from Delivery or supplying of non -conforming
or contaminated Fuel, including equipment repairs and remediation.
4.2 If any Fuel delivered under this Term Contract is found to be non -compliant, the
Contractor shall, at their own expense:
4.2.1 Promptly replace the non -conforming Fuel;
4.2.2 Remove and dispose of the defective product in compliance with applicable federal
and state regulations; and
4.2.3 Reimburse the Customer for any damages and reasonable expenses resulting from
the Delivery, handling, or use of such Fuel.
The warranty shall extend for a period of at least 90 days from the date of each Delivery
5. CUSTOMER SERVICE
The Contractor shall designate at least one authorized representative to serve as the primary
point of contact for all matters related to this Term Contract, including ordering, Delivery
coordination, billing inquiries, and quality concerns. The representative must be available by
phone and email during Business Days and must respond to inquiries within one Business Day.
The Contractor's representative shall maintain courteous and professional communication with
the Department and Customers at all times.
6. COMPLIANCE AND COMPATIBILITY
It is the Contractor's responsibility to ensure that all Fuel supplied is compliant with the Term
Contract requirements, specifications, terms, and conditions. The Contractor's acceptance of the
Customer's Order shall indicate that the Contractor agrees to deliver Fuel that is fully compliant
and compatible with the Customer's Order requirements, specifications, terms, and conditions.
7. PUNCHOUT CATALOG AND ELECTRONIC INVOICING
The Contractor is encouraged to provide an MFMP punchout catalog.
The punchout catalog provides an alternative mechanism for suppliers to offer the State access
to products awarded under the Term 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.
The punchout catalog enables Florida buyers to "punch out" to a supplier's website. Using the
search tools on the supplier's Floridapunchoutcatalog 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, deleting, and editing 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.
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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 Customer
through one of the mechanisms as listed below:
1) EDI (Electronic Data Interchange)
This standard establishes the data contents of the Invoice Transaction Set (EDI 810) for use
within the context of an Electronic Data Interchange (EDI) environment. This transaction set can
be used for invoicing via the Business Network (formerly known as Ariba Network) for catalog
and non -catalog goods and services.
2) PO Flip via BN
This online process allows Contractors to submit invoices via the BN for catalog and non -catalog
goods and services. Contractors are able to create an invoice directly from their inbox in their BN
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 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 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 Term
Contract.
8. RECALLED COMMODITIES
In the event there is a recall of any commodity offered on the Term Contract, or any part or
component of a, or any parts incorporated into the commodity, the Contractor shall assist the
Department and Customers in developing a recall strategy and shall cooperate with the
Department and the Customers in monitoring the recall operation and in preparing such reports
as may be required. Each Contractor shall, at the request of the Department or any Customer,
assist the Department and each Customer in locating and obtaining any recalled commodities.
Each Contractor shall immediately notify and provide copies to the Department of any
communications, whether relating to recalls or otherwise, with any Customer. The Contractor shall
ensure recalled commodities are rectified, replaced and destroyed in compliance with all
applicable laws.
9. REQUEST FOR QUOTES REQUIREMENT
Customers shall use a Request for Quotes in accordance with section 287.056(2), F.S., and Rule
60A-1.043, F.A.C., when making purchases off this State Term Contract (Term Contract). For any
purchases off the Term Contract, the Contractor recognizes its responsibility for all tasks and
deliverables contained in the Term Contract and any Customer Request for Quote, warrants that
it has fully informed itself of all relevant factors affecting accomplishment of the tasks and
deliverables and agrees to be fully accountable for the performance thereof.
10. FINANCIAL CONSEQUENCES
Failure to comply with the requirements of the Term Contract will result in the imposition of
financial consequences. The following financial consequences will apply for the Contractor's
failure to meet the performance metric standard and due date corresponding with the deliverables
under the Term Contract. The Customer may impose additional Financial Consequences beyond
those stated herein to apply to that Customer's purchase. The State of Florida reserves the right
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to withhold payment or implement other appropriate remedies, such as Term Contract termination,
or nonrenewal, when the Contractor has failed to comply with the provisions of the Term Contract.
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 Term Contract performance and every month or quarter,
respectively, thereafter.
Financial Consequences Chart
Financial
Deliverable
Performance Metric
Performance Due Date
Consequence for
Non -Performance
Contractor will timely
All Term Contract
Completed reports are
submit complete
Quarterly Sales
due on or before the
Term Contract
Reports will be
30th calendar day after
$250 per day late
Quarterly Sales
submitted timely with
the close of each State
Reports
the required
information
fiscal quarter
All MFMP
Contractor will timely
Transaction Fee
Completed reports are
submit complete
Reports will be
due on or before the
$100 per day late
MFMP Transaction
submitted timely with
15t calendar day after
Fee Reports
the required
the close of each month
information
Contractor will deliver
Fuel in a timely
All Fuel Deliveries will
manner as described
All Fuel Deliveries
be made within 48
$250 per day late
in the Delivery
will be on time
hours after Customer's
Requirements
Order is received
Section
No favorable action will be considered when Contractor has outstanding Term Contract
Quarterly Sales Reports, MFMP Transaction Fee Reports, or any other documentation
owed to the Department or Customer, to include fees / monies, that are required under this
Term Contract.
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EXHIBIT B
Department of
MANAGEM
SERVICES
We serve those wh
ENTERPRISE STANDARD
TERMS AND CONDITIONS
These Enterprise Standard Terms and Conditions set forth the terms and
conditions regarding the administration of the Term Contract, including the
provision of Products to Customers. Customer specific terms for purchases off
this Term Contract shall be set forth in the Customer specific agreement.
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SECTION 1. DEFINITIONS
Capitalized terms used herein are defined as follows
"Attachments" means the attachments, addenda, schedules, exhibits, and other documents,
however so titled, attached hereto or incorporated by reference herein.
"Business Days" means Monday through Friday, inclusive, excluding State holidays specified
in section 110.117, Florida Statutes ("F.S.").
"Contractor" means the person or entity that is a party to the Term Contract and is offering
Products for purchase.
"Customer" means the agency, as defined in section 287.012, F.S., or eligible user, as defined
in Rule 60A-1.001, Florida Administrative Code ("F.A.C."), that makes a purchase off the Term
Contract. For the avoidance of doubt, this also includes the Department when it purchases off the
Term Contract.
"Department" means the Department of Management Services, an agency as defined in section
287.012, F.S., responsible for the administration of this Term Contract.
"Enterprise Alternate Contract Source" means a contract authorized pursuant to section
287.042(16), F.S., or approved pursuant to section 287.057(3)(b), F.S., for statewide use.
"Product" means any deliverable under the Term Contract, which may include commodities and
contractual services, as each is defined in section 287.012, F.S. "Product" does not include, and
no State funding under the Term Contract is being provided for, promoting, advocating for, or
providing training or education on "Diversity, Equity, and Inclusion" ("DEI"). DEI is any program,
activity, or policy that classifies individuals on the basis of race, color, sex, national origin, gender
identity, or sexual orientation and promotes differential or preferential treatment of individuals on
the basis of such classification, or promotes the position that a group or an individual's action is
inherently, unconsciously, or implicitly biased on the basis of such classification.
"State" means the State of Florida
"State Term Contract" means a term contract that is competitively procured by the department
pursuant to section 287.057, F.S. and that is used by agencies and eligible users pursuant to
section 287.056, F.S.
"Term Contract" means the legally enforceable term contract, as defined in section 287.012,
F.S., between the Department and Contractor to which these Enterprise Standard Terms and
Conditions apply, including all Attachments thereto. The Term Contract is either a State Term
Contract or an Enterprise Alternate Contract Source.
SECTION 2. CONTRACT AMENDMENT
2.1 Amendment. The Term Contract contains all the terms and conditions agreed upon by the
parties. Unless otherwise stated in Term Contract, the Term Contract may only be amended
upon mutual written agreement signed by the parties. No oral agreements or representations
will be valid or binding upon the Department or the Contractor. Unless explicitly agreed to by
the Department in the Term Contract, no unilateral alteration or modification of the Term
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Contract terms, including substitution of Product, will be valid or binding against the Customer.
The Department and Contractor may modify the Term Contract to alter, add to, or deduct from
the Term Contract specifications, provided that such changes are within the general scope of
the Term Contract. The parties may make an equitable adjustment in the Term Contract price
or delivery date if the change affects the cost or time of performance.
SECTION 3. CONTRACT CONSTRUCTION AND ADMINISTRATION
3.1 Construction. Unless the context requires otherwise, (i) the words "include," "includes," and
"including" are deemed to be followed by the words "without limitation;" (ii) the word "or" is not
exclusive; and (iii) the words "herein," "hereof," "hereby," "hereto," and "hereunder" refer to
the Term Contract as a whole, inclusive of all Attachments. Unless the context requires
otherwise, references herein to (i) sections or Attachments mean the sections of, or
Attachments to, the Term Contract; (ii) an agreement, instrument, or other document means
such agreement, instrument, or other document as amended, supplemented, and modified
from time to time to the extent permitted by the provisions thereof; and (iii) a statute, rule, or
other law or regulation means such statute, rule, or other law or regulation as amended from
time to time and includes any successor legislation thereto and any regulations promulgated
thereunder.
Unless the context requires otherwise, whenever the masculine is used in the Term Contract,
the same will include the feminine and whenever the feminine is used herein, the same will
include the masculine. Unless the context requires otherwise, whenever the singular is used
in the Term Contract, the same will include the plural, and whenever the plural is used herein,
the same will include the singular, where appropriate. All references to "$" or "dollars" means
the United States Dollar, the official and lawful currency of the United States of America.
The Term Contract will be construed without regard to any presumption or rule requiring
construction or interpretation against the party drafting an instrument or causing any
instrument to be drafted. The Attachments referred to herein will be construed with, and as an
integral part of, the Term Contract to the same extent as if they were set forth verbatim herein.
3.2 Administration. Execution in Counterparts. The Term Contract may be executed in
counterparts, each of which will be an original and all of which will constitute but one and the
same instrument.
3.2.1 Notices. Where the term "written notice" is used to specify a notice requirement
herein, said notice will be deemed to have been given (i) when personally delivered;
(ii) email (with confirmation of receipt) the day immediately following the day (except
if not a Business Day then the next Business Day) on which the notice or
communication has been provided prepaid by the sender to a recognized overnight
delivery service; or (iii) on the date actually received except where there is a date of
the certification of receipt.
Unless otherwise specified,
Contract Manager and the
Contract Manager.
the Contractor shall deliver all notices to the Department's
Department shall deliver all notices to the Contractor's
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3.2.2 Severability. If a court deems any non -material provision of the Term Contract void
or unenforceable, all other provisions will remain in full force and effect. Upon a
determination that any material provision is void or unenforceable, the parties shall
negotiate in good faith to modify this Term Contract to give effect to the original intent
of the parties as closely as possible in order that the transactions contemplated hereby
are consummated as originally contemplated to the greatest extent possible.
3.2.3 Waiver. The delay or failure by the Department to exercise or enforce any of its rights
under the Term Contract will not constitute or be deemed a waiver of the Department's
right thereafter to enforce those rights, nor will any single or partial exercise of any
such right preclude any other or further exercise thereof or the exercise of any other
right.
3.2.4 Survivability. The Term Contract and any and all promises, covenants, and
representations made herein are binding upon the parties hereto and any and all
respective heirs, assigns, and successors in interest. The respective obligations of the
parties, which by their nature would continue beyond the termination or expiration of
the Term Contract, including without limitation, the obligations regarding
confidentiality, proprietary interests, reporting, and public records, will survive
termination or expiration of the Term Contract.
3.2.5 Third Party Beneficiaries. The parties acknowledge and agree that the Term
Contract is for the benefit of the parties hereto. The Term Contract is not intended to
confer any legal rights or benefits on any other party, except such rights and benefits
associated with a purchase made by a Customer off this Term Contract.
SECTION 4. CONTRACT TERM, SUSPENSION, AND TERMINATION.
4.1 Term. The initial term will begin on the date set forth in the Term Contract documents or on
the date the Term Contract is signed by all parties, whichever is later.
Upon written agreement, the Department and the Contractor may renew the Term Contract
in whole or in part only as set forth in the Term Contract documents, and in accordance with
section 287.057(13), F.S. No costs may be charged for the renewals.
4.2 Suspension of Work and Termination.
4.2.1 Suspension of Work. The Department may, in its sole discretion, suspend any or all
activities under the Term Contract, at any time, when it is in the best interest of the
State of Florida to do so. The Department 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 Term
Contract. Suspension of work will not entitle the Contractor to any compensation for
services not performed or commodities not delivered during the suspension period
nor for any additional compensation.
4.2.2 Termination for Convenience. The Term Contract may be terminated by the
Department, by written notice to the Contractor thirty (30) calendar days in advance,
in whole or in part at any time, when the Department determines in its sole discretion
that it is in the Department's interest to do so. The Contractor shall not furnish any
Product after it receives the notice of termination, except as necessary to complete
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the continued portion of the Term Contract, or a continued purchase off the Term
Contract, if any. The Contractor will not be entitled to recover any cancellation
charges or lost profits. If the Term 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 any Customer 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.
4.2.3 Termination for Cause. The Department may terminate the Term Contract if the
Contractor fails to (i) on multiple occasions, timely deliver Products purchased by
Customers, (ii) on multiple occasions, maintain adequate progress on Customer
purchases, thus endangering performance, (iii) honor any term of the Term Contract,
or (iv) abide by any statutory, regulatory, or licensing requirement. The Department
may, at its sole discretion, (i) immediately terminate the Term Contract, (ii) notify the
Contractor of the deficiency and require that the deficiency be corrected within a
specified time, otherwise the Term Contract will terminate at the end of such time,
or (iii) take other action deemed appropriate by the Department. The Contractor shall
continue work on any work not terminated.
Except for defaults of subcontractors at any tier, the Contractor will not be liable for
any excess costs if the failure to perform arises from events completely beyond the
control, and without the fault or negligence, of the Contractor. If the failure to perform
is caused by the default of a subcontractor at any tier, and if the cause of the default
is completely beyond the control of both the Contractor and the subcontractor, and
without the fault or negligence of either, the Contractor will not be liable for any
excess costs for failure to perform, unless the subcontracted Products were
obtainable from other sources in sufficient time for the Contractor to meet the
required delivery schedule. If, after termination, it is determined that the Contractor
was not in default, or that the default was excusable, the rights and obligations of
the parties will be the same as if the termination had been issued for the convenience
of the Department. The rights and remedies of the Department in this clause are in
addition to any other rights and remedies provided by law or under the Term
Contract. The Customer will notify the Department of any vendor that has met the
grounds for placement of the vendor on the Department of Management Services'
Suspended Vendor List, as required in section 287.1351, F.S.
4.2.4 Termination for Non -Compliance with E -Verify. Pursuant to section
448.095(5)(c)1., F.S., the Department shall terminate the Term Contract if it has a
good faith belief that the Contractor has knowingly violated section 448.09(1), F.S.
Pursuant to section 448.095(5)(c)2., F.S., if the Department has a good faith belief
that a subcontractor knowingly violated section 448.09(1), F.S., the Department shall
promptly notify the Contractor and order the Contractor to immediately terminate the
contract with the subcontractor.
4.2.5 Termination Related to Statutory Certifications. At the Department's option, the
Term Contract may be terminated if the Contractor is placed on any of the lists
referenced in the attached PUR 7801, Vendor Certification Form, or would otherwise
be prohibited from entering into or renewing the Term Contract based on the
statutory provisions referenced therein.
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4.2.6 Termination for Refusing Access to Public Records. In accordance with section
287.058, F.S., the Department may unilaterally terminate the Term Contract for
refusal by the Contractor to allow public access to all documents, papers, letters, or
other material made or received by the Contractor in conjunction with the Term
Contract, unless the records are exempt from s. 24(a) of Art. I of the State
Constitution and section 119.071(1), F.S.
SECTION 5. PURCHASES OFF THE TERM CONTRACT.
5.1 Purchases. By executing the Term Contract, the Contractor agrees to allow Customers to
make purchases off the Term Contract. Purchases from Customers other than the
Department are independent of the agreement between the Department and the Contractor,
and the Department shall not be a party to such transaction. Customers' purchases off the
Term Contract are limited to Products offered under the Term Contract, and no additional
Products may be provided under a purchase off the Term Contract.
5.2 Purchase Submission. For any purchases off the Term Contract, either the contract (as
defined in Rule 60A-1.001, F.A.C.) must be executed between the Customer and Contractor,
or the purchase order (as defined in Rule 60A-1.001, F.A.C.) must be issued by the Customer
to the Contractor, no later than the last day of the Term Contract's term to be considered
timely. Contracts executed, or purchase orders issued, after the last day of the Term
Contract's term shall be considered void.
5.3 Terms. The terms of the Form PUR 1000, General Contract Conditions, incorporated in Rule
60A-1.002, F.A.C., and linked here http://www.flrules.org/Gateway/reference.asp?No=Ref-
16731, are hereby incorporated by reference herein and will apply to all purchases made by
a Customer off the Term Contract. The Customer may attach additional terms and conditions
specific to its particular purchase made off the Term Contract, which are considered Special
Conditions. The term "Special Conditions" does not include any Contractor -provided
documents, including attachments or standard preprinted forms, service agreements, end
user agreements, product literature, or "shrink wrap" terms accompanying or affixed to a
Product, whether written or electronic, or terms incorporated onto the Contractor's order or
fiscal forms or other documents forwarded by the Contractor for payment. Any Customer
Special Conditions shall not become a part of the Term Contract.
5.3.1 Term. The term of the Customer purchase off the Term Contract will be as specified
in the purchase, except that if renewals of the purchase are permitted, the Customer
and Contractor shall not renew the purchase if the Term Contract expires prior to the
effective date of the renewal. Any existing term of a purchase off the Term Contract
shall not extend more than forty-eight (48) months beyond the end of the Term
Contract. However, if an extended pricing plan offered in the Term Contract is agreed
upon by the Customer and Contractor and extends more than forty-eight (48) months
beyond the end of the Term Contract, the agreed upon extended pricing plan terms
shall govern the maximum duration of the purchase. The Contractor is required to
fulfill timely purchases that extend performance beyond the Term Contract term even
when such extended delivery will occur after expiration of the Term Contract. For
such purchases, all terms and conditions of the Term Contract shall survive the
termination or expiration of the Term Contract and apply to the Contractor's continued
performance.
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5.3.2 Additional Requirements. All Customer purchases off the Term Contract shall
contain the Term Contract name and number and shall be placed by the Customer.
Delivery or furnishing Products shall not occur until the Customer executes their
contract or transmits the purchase order, as defined in Rule 60A-1.001, F.A.C.
SECTION 6. PAYMENT AND FEES.
6.1 Pricing. The Contractor shall not exceed the pricing set forth in the Term Contract documents.
6.2 Best Pricing Offer. During the term of the Term Contract, if the Department or Customer
becomes aware of better pricing offered by the Contractor for substantially the same or a
smaller quantity of a Product outside the Term Contract, but upon the same or similar terms
of the Term Contract, then the Department or Customer may request that the Contractor
immediately reduce to the lower price.
6.3 Price Decreases. The following price decrease terms will apply to the Term Contract:
6.3.1 Quantity Discounts. The Contractor may offer additional discounts for one-time
delivery of large single orders. The Customer should seek to negotiate additional price
concessions on quantity purchases of any Products offered under the Term Contract.
6.3.2 Sales Promotions. In addition to decreasing prices for the balance of the Term
Contract term due to a change in market conditions, the Contractor may conduct sales
promotions involving price reductions for a specified lesser period. If conducting a
sales promotion, the Contractor must submit documentation to the Department's
Contract Manager identifying the proposed: (1) starting and ending dates of the
promotion, (2) Products involved, and (3) promotional prices compared to then -
authorized prices. The Contractor shall provide notice to Customers of the promotion
and shall make the promotional prices available to all Customers.
6.3.3 Equitable Adjustment. The Department may, in its sole discretion, make an equitable
adjustment in the Term Contract terms or pricing if pricing or availability of supply is
affected by extreme and unforeseen volatility in the marketplace, that is, by
circumstances that satisfy all the following criteria: (1) the volatility is due to causes
wholly beyond the Contractor's control, (2) the volatility affects the marketplace or
industry, not just the particular Term Contract source of supply, (3) the effect on pricing
or availability of supply is substantial, and (4) the volatility so affects the Contractor that
continued performance of the Term Contract would result in a substantial loss.
6.4 Purchase Prerequisites. The Contractor may be required to accept the State of Florida
Purchasing Card and MyFloridaMarketPlace (MFMP) purchase orders. The Contractor shall
not charge any fees for payments received via the State's P -Card. The Contractor must
ensure that entities receiving payment directly from Customers under this Term 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://vendor.
myfloridamarketplace.com).
• Have a current W-9 filed with the Florida Department of Financial Services
(https://flvendor. myfloridacfo.com)
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6.5 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), Florida Statutes (F.S.). All payments issued by Agencies to registered vendors
for purchases of Commodities or Contractual Services under Chapter 287, F.S., shall be
assessed the Transaction Fee of one percent (1.0%) of the total amount of the payments
received from the State or Eligible Users, as prescribed by Rule 60A-1.031, Florida
Administrative Code (F.A.C.), or as may otherwise be established by law. Vendors shall pay
the Transaction Fee and are subject to automatic deduction of the Transaction Fee, when
automatic deduction becomes available. Vendors shall submit any monthly reports required
pursuant to Rule 60A-1.031, F.A.C. All such reports and payments are subject to audit. The
Agency will have grounds for declaring the vendor in default if the vendor fails to comply
with the payment of the Transaction Fee or reporting of payments, which may subject the
vendor to being suspended from business with the State of Florida.
6.6 Exclusivity. The Term Contract is not an exclusive license to provide the Products
described in the Term Contract. The Department may, without limitation and without
recourse by the Contractor, contract with other vendors to provide the same or similar
Products.
SECTION 7. PERFORMANCE
7.1 Warranty of Ability to Perform. Upon the effective date of the Term Contract, and each
year on the anniversary date of the Term Contract, the Contractor shall submit to the
Department a completed PUR 7801, Vendor Certification Form. 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 Term Contract obligations.
Additionally, the Contractor shall promptly notify the Department in writing if its ability to
perform is compromised in any manner during the term of the Term Contract (including
potential inability to renew the Term Contract due to section 287.138 or 908.111, F.S.) or if
it or its suppliers, subcontractors, or consultants under the Term Contract are placed on the
Suspended Vendor, Convicted Vendor, Discriminatory Vendor, Forced Labor Vendor, or
Antitrust Violator Vendor Lists. The Contractor shall use commercially reasonable efforts to
avoid or minimize any delays in performance and shall inform the Department 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 has caused or
will cause the Contractor to be unable to perform its obligations on time, the Contractor shall
promptly so notify the Department and use commercially reasonable efforts to perform its
obligations on time notwithstanding the Department's delay.
7.2 Further Assurances. The parties shall, with reasonable diligence, do all things and
provide all reasonable assurances as may be necessary to complete the requirements of
the Term Contact, and each party shall provide such further documents or instruments
requested by the other party as may be reasonably necessary or desirable to give effect to
the Term Contract and to carry out its provisions. The Department is entitled at all times,
upon request, to be advised as to the status of work being done by the Contractor and the
details thereof.
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7.3 Assignment. The Contractor shall not sell, assign or transfer any of its rights, duties or
obligations under the Term Contract without the prior written consent of the Department. In
the event of any assignment, the Contractor remains secondarily liable for performance of
the Term Contract, unless the Department expressly waives such secondary liability. The
Department may assign the Term Contract with prior written notice to Contractor of its intent
to do so.
7.4 Employees, Subcontractors, and Agents.
7.4.1 Subcontractors. The Contractor will not subcontract any work under the Term
Contract without prior written consent of the Department. The Contractor shall
obtain prior written consent using the process identified on the Department's
website: Subcontractor/Dealer/Reseller Forms / Vendor Resources / State
Purchasing / Business Operations - Florida Department of Management Services
(myflorida.com). The use of the term "subcontractor" may refer to affiliates,
resellers, dealers, distributors, partners, teammates, and all other third parties
utilized by the Contractor at any tier under the Term Contract. The Contractor is
responsible for ensuring that its subcontractors providing commodities and
performing services in furtherance of the Term Contract do so in compliance with
the terms and conditions of the Term Contract. By execution of the Term Contract,
the Contractor acknowledges that it will not be released of its contractual obligations
to Customers because of any failure of a subcontractor. The Contractor is fully
responsible for satisfactory completion of all work performed under the Term
Contract. The Contractor's use of a subcontractor not approved by the Department
will be considered a material breach of the Term Contract.
7.4.2 Independent Contractor. The Contractor and its employees, agents,
representatives, and subcontractors are not employees or agents of the
Department or the State and are not entitled to the benefits of Department or State
employees. Neither the Customer nor the State will be bound by any acts or conduct
of the Contractor or its employees, subcontractors, or agents. The Contractor shall
include this provision in all of its subcontracts under the Term Contract.
7.5 Force Majeure, Notice of Delay, and No Damages for Delay. 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, subcontractors, or agents contributed to the
delay and the delay is due directly to acts of God, wars, acts of public enemies, lightning
strikes, fires, floods, or other similar cause wholly beyond the Contractor's control, or for
any of the foregoing that affect suppliers if no alternate source of supply is available to the
Contractor.
In case of any delay the Contractor believes is excusable, the Contractor shall notify the
Department in writing of the delay or potential delay and describe the cause of the delay
either (i) within ten (10) calendar days after the cause that creates or will create the delay
first arose, if the Contractor could reasonably foresee that a delay could occur as a result;
or (ii) if a 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
ANY DELAY except if such delay is caused by the fraud, bad faith, or active interference
of the Department. Providing notice in strict accordance with this paragraph is a condition
precedent to such remedy, and a rebuttable presumption of prejudice will exist based on
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Contractor's untimely notice. The Contractor shall not assert any claim for damages related
to such delay. The Contractor will not be entitled to an increase in the Term Contract price
or payment of any kind from the Department for direct, indirect, consequential, impact, or
other costs, expenses, or damages, including 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 subsection, the Department may unilaterally (and with no recourse on the
part of the Contractor) identify and use an alternate source to complete any work under the
Term Contract as the Department deems necessary, in its sole discretion. After the causes
have ceased to exist, the Contractor shall 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 Department or State, in which case the Department may (i)
accept allocated performance or deliveries from the Contractor, provided that the
Contractor grants preferential treatment to the Department with respect to Products
subjected to allocation; or (ii) terminate the Term Contract in whole or in part.
SECTION 8. CONTRACT MANAGEMENT
8.1 Department's Contract Manager. The Department's Contract Manager for the Term
Contract, who is primarily responsible for the Department's oversight of the Term Contract,
will be identified in a separate writing to the Contractor upon Term Contract signing in the
following format:
Department's Contract Manager Name
Department's Name
Department's Physical Address
Department's Telephone #
Department's Email Address
8.2 Contractor's Contract Manager. The Contractor's Contract Manager, who is primarily
responsible for the Contractor's oversight of the Term Contract performance, will be identified
in a separate writing to the Department upon Term 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
Either party may notify the other by email of a change to a designated contact providing the
contact information for the newly designated contact, and such notice is sufficient to effectuate
this change without requiring a written amendment to the Term Contract.
SECTION 9. COMPLIANCE WITH LAWS.
9.1 Conduct of Business. The Contractor shall comply with all laws, rules, codes, ordinances,
and licensing requirements that are applicable to the conduct of its business and that are
applicable to the Term Contract, including those of federal, state, and local agencies having
jurisdiction and authority, and shall ensure that any and all subcontractors utilized do the
same. The Contractor represents and warrants that no part of the funding under the Term
Contract will be used in violation of any state or federal law, including, but not limited to, 8
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U.S.C. § 1324 or 8 U.S.C. § 1325, or to aid or abet another in violating state or federal law.
The Department may terminate the Term Contract at any time if the Contractor violates, or
aids or abets another in violating, any state or federal law.
If the requirements of the Term Contract conflict with any governing law, codes or regulations,
the Contractor shall notify the Department in writing and the parties shall amend the Term
Contract to comply with the applicable code or regulation. Similarly, if the Contractor believes
that any governmental restrictions have been imposed that require alteration of the material,
quality, workmanship or performance of the Products offered under the Term Contract, the
Contractor shall immediately notify the Department in writing, indicating the specific restriction.
The Department reserves the right and the complete discretion to accept any such alteration
or to cancel the Term Contract at no further expense to the Department.
Pursuant to section 287.057(26), F.S., the Contractor shall answer all questions of, and
ensure a representative will be available to, a Customer's continuing oversight team for
purchases off this Term Contract.
9.2 Integrity. In addition to any applicable statutory restrictions, the Contractor shall not, in
connection with this or any other agreement with the State, directly or indirectly (i) offer, confer,
or agree to confer any pecuniary benefit on anyone as consideration for any State officer or
employee's decision, opinion, recommendation, vote, other exercise of discretion, or violation
of a known legal duty; or (ii) offer, give, or agree to give to anyone any gratuity for the benefit
of, or at the direction or request of, any State officer or employee. For purposes of clause (ii),
"gratuity" means any payment in the form of cash, travel, entertainment, gifts, meals, lodging,
loans, subscriptions, advances, deposits of money, services, employment, or contracts of any
kind.
SECTION 10. DISPUTES AND LIABILITIES.
10.1 Dispute Resolution. Should any disputes arise between the Department and the Contractor
with respect to the Term Contract, the Contractor and the Department shall act immediately
to resolve any such disputes. Time is of the essence in the resolution of disputes.
Exhaustion of this administrative remedy detailed in the Dispute Resolution Process
contemplated in this Term Contract is an absolute condition precedent to the Contractor's
ability to seek other remedies related to the Term Contract.
10.2 Dispute Resolution Process.
(a) Department Review. The parties shall resolve disputes through written submission of their
dispute to the Department's Contract Manager. The Department shall respond to the
dispute in writing within ten (10) Business Days from the date that the Department's
Contract Manager receives the dispute. The Department's decision shall be final unless a
party provides the other party with written notice of the party's disagreement with the
decision within ten (10) Business Days from the date of the Department's decision. If a
party disagrees with the Department's decision, the party may proceed to subsection (b)
below.
(b) Meeting between the Principals. If either party disagrees with the Department's decision,
such disagreeing party shall notify the other party of the disagreement within ten (10)
Business Days. The parties shall then schedule a meeting between each party's principal
(for the Department, the Department head or designee; for the Contractor, the Chief
Executive Officer or designee) on a mutually agreed upon date, no later than ten (10)
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Business Days after the provision of the notice. The principals shall attempt to mutually
resolve the disagreement at such meeting.
(c) Mediation. If the dispute is not resolved through a meeting of the Principals, the parties,
upon mutual agreement, may mediate such dispute. If such mediation is not completed
within 100 calendar days from receipt of the Department's decision, then either party may
seek other remedies.
If the dispute is not resolved through the full process in subsections (a) - (c) above (or
(a) — (b), if mediation is not agreed to), either party may pursue any other remedies.
10.3 Contractor's Obligation to Perform While Disputes are Pending. The Contractor shall
proceed diligently with performance under the Term Contract pending the final resolution of
any dispute or request for relief, claim, appeal, or action arising under the Term Contract and
shall comply with directions to perform from the Department. Should the Contractor not
perform while a dispute is pending, including by not performing disputed work, such
nonperformance by the Contractor may be deemed to be an unexcused breach of the Term
Contract which is separate and apart from any other dispute.
10.4 Governing Law and Venue. The Term Contract will be governed by, and construed in
accordance with, the laws of the State. Jurisdiction and venue for suit arising under the terms
of the Term Contract will exclusively be in the appropriate State court located in Leon County,
Florida. Except as otherwise provided by law, the parties agree to be responsible for their own
attorney's fees and costs incurred in connection with disputes arising under the terms of the
Term Contract.
10.5 Remedies Cumulative. No remedy herein conferred upon or reserved to either party is
intended to be exclusive of any other remedy or remedies, and each and every such remedy
will be cumulative, and will be in addition to every other remedy given hereunder or now or
hereafter existing at law or in equity.
10.6 JURY WAIVER. THE PARTIES, ON BEHALF OF THEMSELVES AND ASSIGNS, WAIVE
ALL RIGHT TO TRIAL BY JURY FOR ANY ACTION, APPEAL, CLAIM, OR PROCEEDING,
WHETHER IN LAW IN OR IN EQUITY, WHICH IN ANY WAY ARISES OUT OF OR
RELATES TO THE TERM CONTRACT OR ITS SUBJECT MATTER.
10.7 Indemnification. For any and all third -party claims, actions, demands, liabilities, and
expenses of any kind which are caused by, related to, growing out of or happening in
connection with the Term Contract (including any determination arising out of or related to the
Term Contract that the Contractor or its employees, agents, subcontractors, assignees, or
delegates are not independent contractors in relation to the Department or State), the
Contractor shall be fully liable for the actions of its employees, subcontractors, and agents
and shall fully indemnify, defend, and hold harmless the Department and the State (including
each of their current and former officers, agents, and employees) for any and all loss, damage,
injury, costs, reasonable expenses, or other casualty to person or property. Without limiting
this indemnification requirement, the Department may provide the Contractor (i) written notice
of any action or threatened action, (ii) the opportunity to take over and settle or defend any
such action at the Contractor's sole expense, and (iii) assistance in defending the action at
the Contractor's sole expense. The above indemnity requirement does not apply to that
portion of any loss or damages proximately caused by the negligent act or omission of the
Department or the State. Nothing herein is intended to act as a waiver of the Department's or
State's sovereign immunity or to be deemed consent by the Department or State or its
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subdivisions to suit by third parties.
SECTION 11. MISCELLANEOUS.
11.1 Department of State Registration. Consistent with Title XXXVI, F.S., if the Contractor asserts
status other than that of a sole proprietor, it must provide the Department with i) conclusive
evidence of a certificate of status, not subject to qualification, if a Florida business entity; ii) a
certificate of authorization if a foreign business entity; or iii) if exempt from the registration
requirements, a basis for such exemption.
11.2 Time is of the Essence. Time is of the essence regarding every obligation of the Contractor
under the Term Contract. Each obligation is deemed material, and a breach of any such
obligation (including a breach resulting from untimely performance) is a material breach.
11.3 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 the Contractor. Such purchases are
independent of the Term Contract between the Department and the Contractor, and the
Department is not a party to these transactions.
SECTION 12. PUBLIC RECORDS, TRADE SECRETS, DOCUMENT MANAGEMENT, AND
INTELLECTUAL PROPERTY.
12.1 General Record Management and Retention. The Contractor shall retain all records that
were made in relation to the Term Contract for the longer of five (5) years after expiration of
the Term Contract or the period required by the General Records Schedules maintained by
the Florida Department of State available at: https://dos.fl.gov/library-archives/records-
management/general-records-schedules/.
12.2 Identification and Protection of Confidential Information. Article 1, section 24, of the
Florida Constitution, guarantees every person access to public records, and section 119.011,
F.S., provides a broad definition of "public record." As such, records submitted to the
Department (or any other State agency) are public records and are subject to disclosure
unless exempt from disclosure by law. If the Contractor considers any portion of a record it
provides to the Department (or any other State agency) to be trade secret or otherwise
confidential or exempt from disclosure under Florida or federal law ("Confidential
Information"), the Contractor shall mark as "confidential" each page of a document or specific
portion of a document containing Confidential Information and simultaneously provide the
Department (or other State agency) with a separate, redacted copy of the record. The
Contractor shall state the basis of the exemption that the Contractor contends is applicable to
each portion of the record redacted, including the specific statutory citation for such
exemption. The Contractor shall only redact portions of records that it claims contains
Confidential Information. If the Contractor fails to mark a record it claims contains Confidential
Information as "confidential," or fails to submit a redacted copy in accordance with this section
of a record it claims contains Confidential Information, the Department (or other State agency)
shall have no liability for release of such record. The foregoing will apply to every instance in
which the Contractor fails to both mark a record "confidential" and redact it in accordance with
this section, regardless of whether the Contractor may have properly marked and redacted
the same or similar Confidential Information in another instance or record submitted to the
Department (or any other State agency).
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In the event of a public records request, to which records the Contractor marked as
"confidential" are responsive to the request, the Department shall provide the Contractor -
redacted copy to the requestor. If the Contractor has marked a record as "confidential" but
failed to provide a Contractor -redacted copy to the Department, the Customer may notify the
Contractor of the request and the Contractor may have up to ten (10) Business Days from
the date of the notice to provide a Contractor -redacted copy, or else the Department may
release the unredacted record to the requestor without liability. If the Department provides a
Contractor- redacted copy of the documents and the requestor asserts a right to the
Contractor -redacted Confidential Information, the Department shall promptly notify the
Contractor such an assertion has been made. The notice will provide that if the Contractor
seeks to protect the Contractor -redacted Confidential Information from release it must, within
thirty (30) days after the date of the notice and at its own expense, file a cause of action
seeking a declaratory judgment that the information in question is exempt from section
119.07(1), F.S., or other applicable law and an order prohibiting the Department from publicly
disclosing the information. The Contractor shall provide written notice to the Department of
any cause of action filed. If the Contractor fails to file a cause of action within thirty (30) days
the Department may release the unredacted copy of the record to the requestor without
liability.
If the Department is requested or compelled in any legal proceeding to disclose documents
that are marked as "confidential" (whether by oral questions, interrogatories, requests for
information or documents, subpoena, or similar process), unless otherwise prohibited by law,
the Department shall give the Contractor prompt written notice of the demand or request
prior to disclosing any Confidential Information to allow the Contractor to seek a protective
order or other appropriate relief at the Contractor's sole discretion and expense. If the
Contractor fails to take appropriate and timely action to protect the Confidential Information
contained within documents it has marked as "confidential" or fails to provide a redacted
copy that may be disclosed, the Department may provide the unredacted records in response
to the demand without liability.
The Contractor shall protect, defend, and indemnify the Department for all claims, costs,
fines, settlement fees, and attorneys' fees, at both the trial and appellate levels, arising from
or relating to the Contractor's determination that its records contain Confidential Information.
In the event of a third -party claim brought against the Department for failure to release the
Contractor's redacted Confidential Information, the Contractor shall assume, at its sole
expense, the defense or settlement of such claim, including attorney's fees and costs at both
the trial and appellate levels. If the Contractor fails to continuously undertake the defense or
settlement of such claim or if the Contractor and Department mutually agree that the
Department is best suited to undertake the defense or settlement, the Department will have
the right, but not the obligation, to undertake the defense or settlement of such claim, at its
discretion. The Contractor shall be bound by any defense or settlement the Department may
make as to such claim, and the Contractor agrees to reimburse the Department for the
expense, including reasonable attorney's fees and costs at both the trial and appellate levels
associated with any defense or settlement that the Department may undertake to defend
Contractor's Confidential Information. The Department will also be entitled to join the
Contractor in any third -party claim for the purpose of enforcing any right of indemnity under
this section.
If at any point the Department is reasonably advised by its counsel that disclosure of the
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Confidential Information is required by law, including but not limited to Florida's public
records laws, the Department may disclose such Confidential Information without liability
hereunder.
12.3 Public Records Requirements Pursuant to Section 119.0701, F.S. Solely for the purpose
of this section, the Department's Contract Manager is the agency custodian of public records.
If, under the Term Contract, the Contractor is providing services and is acting on behalf of the
public agency, as provided in section 119.0701, F.S., the Contractor shall:
Keep and maintain public records required by the Department to perform the service.
Upon request from the Department's custodian of public records, provide the
Department 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.
iii. 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 Term Contract term and following the completion of the Term Contract if the
Contractor does not transfer the records to the Department.
iv. Upon completion of the Term Contract, transfer, at no cost, to the Department all
public records in possession of the Contractor or keep and maintain public records
required by the Department to perform the service. If the Contractor transfers all
public records to the Department 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 Term Contract, the Contractor shall
meet all applicable requirements for retaining public records. All records stored
electronically must be provided to the Department, upon request from the
Department's custodian of public records, in a format that is compatible with the
information technology systems of the Department.
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 TERM CONTRACT,
CONTACT THE DEPARTMENT'S CUSTODIAN OF PUBLIC RECORDS AT
PUBLICRECORDSO-DMS.FL.GOV, (850) 487-1082 OR 4050 ESPLANADE WAY,
SUITE 160, TALLAHASSEE, FLORIDA 32399-0950.
12.4 Advertising. Subject to Chapter 119, Florida Statutes, the Contractor shall not publicly
disseminate any information concerning the Term Contract without prior written approval from
the Department, including mentioning the Term Contract in a press release or other
promotional material, identifying the Department or the State as a reference, or otherwise
linking the Contractor's name and either a description of the Term Contract or the name of the
Department or the State in any material published, either in print or electronically, to any entity
that is not a party to the Term Contract, except potential or actual Customers or authorized
distributors, dealers, resellers, or service representatives.
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12.5 Intellectual Property.
12.5.1 Ownership. Unless specifically addressed otherwise in the Customer's contract, the
State of Florida shall be the owner of all intellectual property rights to all new property
created or developed in connection with the Customer's contract. This shall not apply
to intellectual property developed prior to the execution of the Term Contract.
12.5.2 Patentable Inventions or Discoveries. Any inventions or discoveries developed in
the course, or as a result, of services in connection with the Customer's 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 and the Department of any inventions or
discoveries developed or made through performance of the Customer's 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 Customer's contract. This shall not apply to any invention or
discovery made prior to the execution of the Term Contract.
12.5.3 Copyrightable Works. Contractor must notify the Customer and the Department of
any publications, artwork, or other copyrightable works developed in connection with
the Customer's contract. All copyrights created or developed through performance of
the Customer's contract are owned solely by the State of Florida. This shall not apply
to any copyrightable works created or developed prior to the execution of the Term
Contract.
SECTION 13. DATA SECURITY.
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. "State of Florida data" means data collected by, transmitted from,
created for, or provided by the Department or the Customer. 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 Incident involving State of Florida
data, the Contractor shall give notice to the Customer and the Department within one business
day of becoming aware of the Security Incident. "Security Incident" for purposes of this section
will refer to an actual or imminent threat of a violation of information technology resources,
security, policies, or practices, unauthorized access of State of Florida data, or occurrences that
compromise the confidentiality, integrity, or availability of State of Florida data. An imminent threat
refers to a situation in which the Contractor has a factual basis for believing that a specific incident
is about to occur. Once a data breach has been contained, the Contractor must provide the
Department and the Customer 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 current state and federal rules and regulations regarding security of
information.
SECTION 14. CONTRACT MONITORING.
14.1 Performance Standards. The Contractor agrees to perform all tasks and provide
deliverables as set forth in the Term Contract. The Customer will be entitled at all times,
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upon request, to be advised as to the status of work being done by the Contractor and of
the details thereof.
14.2 Contract Reporting. The Contractor shall provide the Department the following accurate
and complete reports associated with this Term Contract.
14.2.1 Term 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
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 Term 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 Term Contract.
14.2.2 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 Vendor Identification Information 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.
14.2.3 Ad Hoc Sales Reports. The Department may require additional Term 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.
14.2.4 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.myflorida.com/business operations/state /myfloridamarketplace/
mfmp vendors/transaction fee and reporting. Assistance with transaction fee
reporting is also available by email at feeprocessing(myfloridamarketplace.com or
telephone at 866-FLA-EPRO (866-352-3776) from 8:00 a.m. to 6:00 p.m. Eastern
Time.
14.3 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:
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• Term Contract or Customer contract compliance
• Term Contract savings (in dollar amount and cost avoidance)
• Spend reports by Customer
• Recommendations for improved compliance and performance
14.4 Performance Deficiencies.
14.4.1 Proposal of a Corrective Action Plan. In addition to the processes set forth in the
Term Contract (e.g., service level agreements), if the Customer or the Department
determines that there is a performance deficiency that requires correction by the
Contractor, then the Customer or the Department will notify the Contractor. The
correction must be made within a timeframe specified by the Customer or the
Department. The Contractor must provide the Customer or the Department with a
corrective action plan describing how the Contractor will address all performance
deficiencies identified by the Customer or the Department.
14.4.2 Retainage for Unacceptable Corrective Action Plan or Plan Failure. For
Customer -requested Corrective Action Plans, if the corrective action plan is
unacceptable to the Customer, or implementation of the plan fails to remedy the
performance deficiencies, the 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 Customer for the retained amount. If the Contractor fails
to resolve the performance deficiencies, the retained amount will be forfeited to
compensate the Customer for the performance deficiencies.
14.5 Inspection.
14.5.1 Inspection at Contractor's Site. The Department reserves the right to inspect, or
enlist a third -party to perform, at any reasonable time with prior notice, the
equipment, product, plant or other facilities of the Contractor to assess conformity
with Term Contract requirements and to determine whether they are adequate and
suitable for proper and effective Term Contract performance.
14.5.2 Statutory Inspection Rights. If services are to be provided pursuant to the Term
Contract, in accordance with section 216.1366, F.S., the Department is authorized
to inspect the: (i) financial records, papers, and documents of the Contractor that
are directly related to the performance of the Term Contract or the expenditure of
State funds; and (ii) programmatic records, papers, and documents of the
Contractor which the Department determines are necessary to monitor the
performance of the Term Contract or to ensure that the terms of the Term Contract
are being met. The Contractor shall provide such records, papers, and documents
requested by the Department within ten (10) Business Days after the request is
made.
Further, for any Term Contract for services with a nonprofit organization as defined
in section 215.97(2)(m), F.S., the Contractor must provide documentation that
indicates the amount of state funds:
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1. Allocated to be used during the full term of the Term Contract for remuneration
to any member of the board of directors or an officer of the contractor; and
2. Allocated under each payment by the public agency to be used for remuneration
of any member of the board of directors or an officer of the contractor.
The documentation must indicate the amounts and recipients of the remuneration.
14.5.3 Inspection Compliance. The Contractor understands its, and its subcontractors (if
any), duty, pursuant to section 20.055(5), F.S., to cooperate with the Inspector
General in any investigation, audit, inspection, review, or hearing. Upon request of
the Department's Inspector General, or other authorized State official, the
Contractor shall provide any type of information the State official deems relevant to
the Contractor's integrity or responsibility. Such information may include the
Contractor's business or financial records, documents, or files of any type or form
that refer to or relate to the Term Contract. The Contractor agrees to reimburse the
State for the reasonable costs of investigation incurred by the Inspector General or
other authorized State official for investigations of the Contractor's compliance with
the terms of the Term Contract or any other agreement between the Contractor and
the State which results in the suspension or debarment of the Contractor. Such
costs will include salaries of investigators, including overtime; travel and lodging
expenses; and expert witness and documentary fees. The Contractor shall not be
responsible for any costs of investigations that do not result in the Contractor's
suspension or debarment.
SECTION 15. 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 Term Contract. To the extent necessary to verify the Contractor's fees and claims for
payment under the Term Contract, the Contractor's agreements or contracts with subcontractors,
partners, or agents of the Contractor, pertaining to the Term 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 Term Contract.
SECTION 16. CONFIDENTIALITY.
The Contractor shall not divulge to third parties any confidential information obtained by the
Contractor or its employees, subcontractors, or agents in the course of performing Term Contract
work, including security procedures, business operations information, or commercial proprietary
information in the possession of the Customer or State. The Contractor will not be required to
keep confidential information or material that is publicly available through no fault of the
Contractor, material that the Contractor developed independently without relying on the
Customer's or State's confidential information, or material that is otherwise obtainable under State
law as a public record. To ensure confidentiality, the Contractor shall take appropriate steps as to
its employees, subcontractors, and agents.
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SECTION 17. SUPPLIER DEVELOPMENT.
17.1 Office of Supplier Development. The State of Florida supports its business community by
creating opportunities for business enterprises to participate in procurements and contracts.
The Department encourages supplier development through certain certifications and
provides advocacy, outreach, and networking through regional business events. For
additional information, please contact the Office of Supplier Development (OSD) at
OSDHelp(a)dms.fl.gov.
17.2 Reporting Certified Business Enterprises. 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 vendor identification information 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 Term Contract.
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Exhibit C - Markup Sheet (Central Region)
State Term Contract No. 15100000-25-STC for
Bulk Fuel, Gasoline, Diesel, Marine, and Biodiesel
PRO ENERGY LLC
Initial Term
Price Per Gallon
Renewal Term
Price Per Gallon
Transport Delivery (6,000 - 8,500 gallons)
$
-
$
-
Non -Transport Delivery (1,000- 5,999 gallons)
$
0.25
$
0.25
Non -Transport Delivery (250 - 999 gallons)
$
0.25
$
0.25
Transport Delivery (6,000 - 7,500 gallons)
$
-
$
-
Non -Transport Delivery 1,000-5,999 gallons)
$
0.25
$
0.25
Non -Transport Delivery (250 - 999 gallons)
$
0.25
$
0.25
Transport Delivery (6,000 - 7,500 gallons)
$
-
$
-
Non -Transport Delivery 1,000-5,999 gallons)
$
0.25
$
0.25
Non -Transport Delivery (250 - 999 gallons)
$
0.25
$
0.25
•�
Transport Delivery (6,000 - 7,500 gallons)
•
Non -Transport Delivery 1,000-5,999 gallons)
Non -Transport Delivery (250 - 999 gallons)
Transport Delivery (6,000 - 7,500 gallons)
Non -Transport Delivery 1,000-5,999 gallons)
Non -Transport Delivery (250 - 999 gallons)
:ItTransport
Delivery (6,000 - 7,500 gallons)
Non -Transport Delivery 1,000-5,999 gallons)
Non -Transport Delivery (250 - 999 gallons)
Allowable Charges
for
TransportDelivery and Non-TransportDelivery
Initial Term
Renewal Term
Delivery Charge (per gallon)
$ 0.03
$ 0.03
Delay Charge (per 30 minutes)
$ 32.50
$ 32.50
Back Haul Charge (per gallon)
$ -
$ -
ToOff Charge (flat rate, not to exceed)
$ -
$ -
Allowable Charges
for
TransportDelivery Only
Initial Term
Renewal Term
Freight Charge (flat rate, not to exceed)
$ -
$ -
Pump Off Charge (per delivery, not to exceed)
$ 50.00
$ 50.00
Docusign Envelope ID: CD0BAEA0-FB60-80F1-8274-CD638371D704
Exhibit C - Markup Sheet (Southern Region)
State Term Contract No. 15100000-25-STC for
Bulk Fuel. Gasoline. Diesel. Marine. and Biodiesel
Initial Term
Price Per Gallon
Renewal Term
Price Per Gallon
Transport Delivery 6,000-8,500 gallons)
$
(0.01)
$
(0.01)
Non -Transport Delivery 1,000-5,999 gallons)
$
0.25
$
0.25
Non -Transport Delivery (250 - 999 gallons)
$
0.25
$
0.25
Transport Delivery 6,000-7,500 gallons)
$
(0.01)
$
(0.01)
Non -Transport Delivery 1,000-5,999 gallons)
$
0.25
$
0.25
Non -Transport Delivery (250 - 999 gallons)
$
0.25
$
0.25
Transport Delivery 6,000-7,500 gallons)
$
(0.01)
$
(0.01)
Non -Transport Delivery 1,000-5,999 gallons)
$
0.25
$
0.25
Non -Transport Delivery (250 - 999 gallons)
$
0.25
$
0.25
•�
Transport Delivery (6,000 - 7,500 gallons)
•
$
0.05
$
(0.05)
Non -Transport Delivery 1,000-5,999 gallons)
$
0.05
$
0.05
Non -Transport Delivery (250 - 999 gallons)
$
0.05
$
0.05
Trans ort Delivery (6,000 - 7,500 gallons)
Non -Transport Delivery 1,000-5,999 gallons)
Non -Transport Delivery (250 - 999 gallons)
Transport Delivery (6,000 - 7,500 gallons)
Non -Transport Delivery 1,000-5,999 gallons)
Non -Transport Delivery (250 - 999 gallons)
Allowable Charges
for
TransportDelivery and Non-TransportDelivery
Initial Term
Renewal Term
Delivery Charge (per gallon)
$ 0.03
$ 0.03
Delay Charge (per 30 minutes)
$ 32.50
$ 32.50
Back Haul Charge (per gallon)
$ -
$ -
ToOff Charge (flat rate, not to exceed)
$ -
$ -
Allowable Charges
for
TransportDelivery Only
Initial Term
Renewal Term
Freight Charge (flat rate, not to exceed)
$ -
$ -
Pump Off Charge (per delivery, not to exceed)
$ 50.00
$ 50.00