R24-155 RESOLUTION NO. R24-155
2
3 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOYNTON
4 BEACH, FLORIDA, APPROVING A PIGGYBACK AGREEMENT WITH ERGOFLEX
5 SYSTEMS, INC. D/B/A XYBIX SYSTEMS, INC., FOR WORKSTATIONS TO BE
6 INSTALLED AT THE 911 COMMUNICATIONS CENTER LOCATED AT FIRE
7 STATION NO. 5; PROVIDING AN EFFECTIVE DATE; AND FOR ALL OTHER
8 PURPOSES.
9
10 WHEREAS, the State of Washington, acting by and through National Association of State
11 Procurement Officials (NASPO) ValuePoint, competitively procured Public Safety Communication
12 Products, Services and Solutions ("Public Safety Radio") and executed Master Agreement 00318,
13 Public Safety Communications Products, Services, and Solutions; and
14 WHEREAS, on January 1, 2022, the State of Florida signed a Participating Agreement for
15 an Alternate Contract Source with Ergoflex Systems, Inc. d/b/a Xybix Systems, Inc., ("Vendor") to
16 utilize the National Association of State Procurement Officials (NASPO) ValuePoint and awarded
17 a five (5) year agreement No. 43190000-22-NASPO-ACS (collectively the "State of Florida
18 Agreement"), commencing January 1, 2022, with two (2) additional one-year renewal options; and
19 WHEREAS, the City desires to obtain workstations based on Quote No. 33942 and may
20 obtain other products and services upon amendment to this Agreement; and
21 WHEREAS, the City's Purchasing Policy Section X — Alternatives to Formal Sealed Bids,
22 provides authority for the City to acquire or contract for services without utilizing a sealed
23 competitive method or the written quotations methods where the desired services are the subject
24 of an agreement that utilizes another government entity's contract, provided that the contract
25 was awarded based strictly on competitive bidding; and
26 WHEREAS, in order to acquire workstations to be installed at the 911 Communications
27 Center located at Fire Station No. 5, the City's Communication Department is requesting the City
28 enter into a Piggyback Agreement with the Vendor to obtain workstations; and
29 WHEREAS, the City and Vendor have agreed to allow the City to piggyback the State of
30 Florida Agreement; and
31
32
33 WHEREAS, the City Commission, upon recommendation of staff, has deemed it to be in
34 the best interests of the citizens and residents of the City to approve a Piggyback Agreement with
35 Ergoflex Systems, Inc. d/b/a Xybix Systems, Inc., for workstations to be installed at the 911
36 Communications Center located at Fire Station No. 5.
37
38 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF BOYNTON
39 BEACH, FLORIDA, THAT:
40 SECTION 1. The foregoing "Whereas" clauses are hereby ratified and confirmed as
41 being true and correct and are hereby made a specific part of this Resolution upon adoption.
42 SECTION 2. The City Commission of the City of Boynton Beach, Florida, does hereby
43 approve a Piggyback Agreement, between Ergoflex Systems, Inc. d/b/a Xybix Systems, Inc., and
44 the City for workstations to be installed at the 911 Communications Center located at Fire Station
45 No. 5 (the "Piggyback Agreement"), in form and substance similar to that attached as "Exhibit
46 A."
47 SECTION 3. The City Commission of the City of Boynton Beach, Florida, hereby
48 authorizes the Mayor to execute the Piggyback Agreement and such other related documents as
49 may be necessary to accomplish the purpose of this Resolution.
50 SECTION 4. One fully-executed original of the Piggyback Agreement shall be retained
51 by the City Clerk as a public record of the City. A copy of the fully-executed Piggyback Agreement
52 shall be provided to Michael Johnson and Michael Dauta to forward to the Vendor.
53 SECTION 5. This Resolution shall take effect in accordance with law.
54
55
56
57 [signatures on following page]
58
59
60 PASSED AND ADOPTED this 16th day of July 2024.
61 CITY OF BOYNTON BEACH, FLORIDA
62 YES NO
63 Mayor-Ty Penserga
64
65 Vice Mayor-Aimee Kelley ✓
66 4./
67 Commissioner-Angela Cruz
68
69 Commissioner-Woodrow L. Hay
70
71 Commissioner-Thomas Turkin
72
73 VOTE LI ,0
74 AT
75
Alk
77 Maylee D: = us, MPA, ' MC Ty •''
78 City Cle Mayor
BEA "‘
80 %�� ........ �'�� APPROVED AS TO FORM:
81 (Corporate Seal) f p Qom y<o•
82 m �4 $ek;
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84 ,e/••• per: Shawna G. Lamb
85 ‘., r City Attorney
C 0 Y ),
Y -
;ON
PIGGYBACK AGREEMENT BETWEEN THE CITY OF BOYNTON
BEACH AND ERGOFLEX SYSTEMS,INC.D/B/A XYBIX SYSTEMS,INC.
This Piggyback Agreement is made as of this,lb day of July,2024,by and between Ergoflex
Systems, Inc. d/b/a Xybix Systems, Inc., with a principal address of 4050 Esplanade Way,
Tallahassee, FL. 32399, hereinafter referred to as "Vendor," and the City of Boynton Beach, a
municipal corporation organized and existing under the laws of Florida, with a business address of
100 East Ocean Avenue, Boynton Beach, Florida 33435, hereinafter referred to as "City."
RECITALS
WHEREAS,the State of Washington, acting by and through National Association of State
Procurement Officials (NASPO) ValuePoint, competitively procured Public Safety
Communication Products, Services and Solutions ("Public Safety Radio") and executed Master
Agreement 00318, Public Safety Communications Products, Services, and Solutions.
WHEREAS,on January 1, 2022, the State of Florida signed a Participating Agreement for
an Alternate Contract Source with Vendorto utilize the National Association of State Procurement
Officials (NASPO)ValuePoint and awarded a five(5)year agreement No.43190000-22-NASPO-
ACS(collectively the"Master Agreement"),commencing January 1,2022,with two(2) additional
one-year renewal options; and
WHEREAS,the City desires to obtain workstations based on Quote No. 33942 and may
obtain other products and services upon amendment to this Agreement; and
WHEREAS,the City's Purchasing Policy Section X—Alternatives to Formal Sealed Bids,
provides authority for the City to acquire or contract for services without utilizing a sealed
competitive method or the written quotations methods where the desired services are the subject
of an agreement that utilizes another government entity's contract,provided that the contract was
awarded based strictly on competitive bidding; and
WHEREAS, in order to acquire workstations to be installed at the 911 Communications
Center located at Fire Station No. 5, the City's Communication Department is requesting the City
enter into a Piggyback Agreement with the Vendor to obtain workstations; and
WHEREAS,the City and Vendor have agreed to allow the City to piggyback the Master
Agreement, a copy of which is attached as Exhibit "A.;"
NOW, THEREFORE,in consideration of the mutual covenants contained herein, and for
other valuable consideration received, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
Piggyback Contract—ErgoFlex Systems 1
AGREEMENT
1. The foregoing recitals are true and correct and are hereby incorporated into this Agreement.
2. TERM: The term of this Agreement commences on July 17, 2024, and will remain in
effect until December 31, 2026, with two (1)one-year renewal options ("Term"). The City
Manager is authorized to execute amendments renewing the Agreement on behalf of the
City. The initial term and any subsequent renewals of this Agreement are subject to the
renewal or extension of the Master Agreement. If the Master Agreement expires or is
terminated during the Term, this Agreement shall terminate no later than six months after
such expiration or termination of the Master Agreement.
3. CONTRACT TERMS: The Vendor agrees to provide products and services to the City
based on Quote No. 33942, a copy of which is attached hereto as Exhibit B, on the same
terms and in the same manner as set forth in the Master Agreement, a copy of which is
attached hereto as Exhibit A, except as otherwise provided herein. All recitals,
representations, and warranties of Vendor made by Vendor in the Master Agreement are
restated as if set forth fully herein, made for the benefit of the City,and incorporated herein,
except that all references to the "State of Florida" are hereby replaced with the "City of
Boynton Beach." The City shall compensate Vendor pursuant to the rates set forth in the
Master Agreement for the products and services in an annual amount not to exceed
$208,014.08. City may order additional products and services pursuant to the Master
Agreement upon a duly executed amendment to this Agreement.
4. NOTICES: All Notices to the City shall be in writing by certified mail return receipt
requested, or customarily used overnight transmission with proof of delivery, sent to:
City: Daniel Dugger, City Manager
City of Boynton Beach
P.O. Box 310
Boynton Beach, Florida 33425
Telephone: (561) 742-6010 /Facsimile: (561) 742-6090
Copy: Shawna G. Lamb, City Attorney
City of Boynton Beach
P.O. Box 310
Boynton Beach, Florida 33425
Telephone: (561) 742-6010/Facsimile: (561) 742-6090
5. INVOICES AND PAYMENT: Invoices must identify the PO number and should be
mailed to:
Boynton Beach Finance
Attn: Accounts Payable
100 E Boynton Beach Blvd
Boynton Beach, FL 33435.
Invoices shall show the nature of the service and dates(s) of service. Invoices based on
hourly rates shall show the actual hours worked,person performing services, nature of the
service, hourly rate,and dates(s)of service. Invoices may be submitted no more frequently
Piggyback Contract -ErgoFlex Systems 2
than monthly. However, all services rendered prior to September 30th of any given year
are required to be invoiced by September 30th of that year. Vendor shall provide W-9 with
first invoice.
The fee shall be paid based on receipt of a proper invoice in accordance with the invoice
schedule indicated above. Payment will be made within 45 days of receipt of a proper
invoice in accordance with the Local Government Prompt Payment Act, Section 218.70,
et al., Florida Statutes. No payment made under this Agreement shall be conclusive
evidence of the performance of this Agreement by Vendor,either wholly or in part,and no
payment shall be construed to be an acceptance of or to relieve Vendor of liability for the
defective, faulty or incomplete rendition of the services.
6. TAX EXEMPT:Prices applicable to City do not include applicable state and local sales,
use, and related taxes.The City is exempt from state and local sales and use taxes and shall
not be invoiced for the same. Upon request, City will provide Vendor with proof of tax-
exempt status.
7. SOVEREIGN IMMUNITY: Nothing contained in this Agreement nor contained herein
shall be considered nor construed to waive City's rights and immunities under the common
law or section 768.28, Florida Statutes, as may be amended.
8. ATTORNEY'S FEES: In the event that either Party brings suit for enforcement of the
Agreement, each Party shall bear its own attorney's fees and court costs.
9. PUBLIC RECORDS: Sealed documents received by the City in response to an invitation
are exempt from public records disclosure until thirty (30) days after the opening of the
Bid unless the City announces intent to award sooner, in accordance with Florida Statutes
119.07.
The City is a public agency subject to Chapter 119, Florida Statutes. The Vendor shall
comply with Florida's Public Records Law. Specifically, the Vendor shall:
A. Keep and maintain public records required by the City to perform the service;
B. Upon request from the City's custodian of public records, provide the City 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, Fla.
Stat. or as otherwise provided by law;
C. Ensure that public records that are exempt or that are confidential and exempt from
public record disclosure requirements are not disclosed except as authorized by law
for the duration of the contract term and, following completion of the contract,
Vendor shall destroy all copies of such confidential and exempt records remaining in
its possession once the Vendor transfers the records in its possession to the City; and
D. Upon completion of the contract, Vendor shall transfer to the City, at no cost to the
City, all public records in Vendor's possession All records stored electronically by
Vendormust be provided to the City,upon request from the City's custodian of public
records, in a format that is compatible with the information technology systems of
the City.
Piggyback Contract—ErgoFlex Systems 3
E. IF THE VENDOR HAS QUESTIONS REGARDING THE
APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO
THE VENDOR'S DUTY TO PROVIDE PUBLIC RECORDS
RELATING TO THIS CONTRACT, CONTACTTHE CUSTODIAN
OF PUBLIC RECORDS:
CITY CLERK OFFICE
100 E. OCEAN AVENUE
BOYNTON BEACH, FLORIDA, 33435
561-742-6060
CityClerk(a bbfl.us
10. SCRUTINIZED COMPANIES - 287.135 AND 215.473: By execution of this
Agreement, Vendor certifies that Vendor is not participating in a boycott of Israel. The
Vendor further certifies that Vendor is not on the Scrutinized Companies that Boycott Israel
list, not on the Scrutinized Companies with Activities in Sudan List, and not on the
Scrutinized Companies with Activities in the Iran Petroleum Energy Sector List, or has
Vendor been engaged in business operations in Syria. Subject to limited exceptions
provided in state law, the City will not contract for the provision of goods or services with
any scrutinized company referred to above. Submitting a false certification shall be deemed
a material breach of contract. The City shall provide notice, in writing, to the Vendor of
the City's determination concerning the false certification. The Vendor shall have five (5)
days from receipt of notice to refute the false certification allegation. If such false
certification is discovered during the active contract term, the Vendor shall have ninety
(90) days following receipt of the notice to respond in writing and demonstrate that the
determination of false certification was made in error. If the Vendor does not demonstrate
that the City's determination of false certification was made in error, then the City shall
have the right to terminate the contract and seek civil remedies pursuant to Section 287.1 35,
Florida Statutes, as amended from time to time.
11. E-VERIFY: Vendor shall comply with Section 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. If this Agreement is terminated for a violation of the statute by Vendor,
Vendor may not be awarded a public contract for a period of one (1) year after the date of
termination.
12. DISPUTES: Any disputes that arise between the parties with respect to the performance
of this Agreement, which cannot be resolved through negotiations, shall be submitted to a
court of competent jurisdiction exclusively in Palm Beach County, Florida. This
Agreement shall be construed under Florida Law.
13. EXECUTION OF THE AGREEMENT:This Agreement will take effect once signed by
both parties. This Agreement may be signed by the parties in counterparts, which together
shall constitute one and the same agreement among the parties. A facsimile signature shall
constitute an original signature for all purposes. Each person signing this Agreement on
behalf of either Party individually warrants that he or she has full legal power to execute
Piggyback Contract- ErgoFlex Systems 4
the Addendum on behalf of the Party for whom he or she is signing and to bind and obligate
such Party with respect to all provisions contained in this Agreement
14. TERMINATION FOR CONVENIENCE: This Agreement may be terminated by the
City for convenience upon fourteen(14) calendar days of written notice by the terminating
party to the other party for such termination in which event the Vendor shall be paid its
compensation for services performed to the termination date,including services reasonably
related to termination. In the event that the Vendor abandons the Agreement or causes it
to be terminated, the Vendor shall indemnify the City against loss pertaining to this
termination.
15. TERMINATION FOR CAUSE: In addition to all other remedies available to City, this
Agreement shall be subject to cancellation by City for cause, should Vendor neglect or fail
to perform or observe any of the terms, provisions, conditions, or requirements herein
contained,if such neglect or failure shall continue fora period of thirty (30) calendar days'
after receipt by Vendor of written notice of such neglect or failure.
16. INDEMNIFICATION: Vendor shall indemnify and hold harmless the City, its elected
and appointed officers, agents, assigns and employees, consultants, separate Vendors,any
of their subcontractors, or sub-subcontractors, from and against claims, demands,or causes
of action whatsoever,and the resulting losses, damages, costs, and expenses, including but
not limited to attorneys' fees, including paralegal expenses, liabilities, damages, orders,
judgments, or decrees, sustained by the City arising out of or resulting from(A) Vendor's
performance or breach of Agreement, (B) acts or omissions, negligence, recklessness, or
intentional wrongful conduct by Vendor's, its agents, employees, subcontractors,
participants, and volunteers, and (C) Vendor's failure to take out and maintain insurance
as required under this Agreement. Vendor's shall pay all claims and losses in connection
therewith and shall investigate and defend all claims, suits, or actions of any kind or nature
in the name of the City, where applicable, including appellate proceedings, and shall pay
all costs, judgments, and attorneys' fees which may issue thereon. The obligations of this
section shall survive indefinitely regardless of termination of the Agreement.
17. INSURANCE:At the time of execution of this Agreement, Vendor shall provide the City
with a copy of its Certificate of Insurance reflecting the insurance coverage required by the
Master Agreement. The Certificate of Insurance shall name the City of Boynton Beach,
and its officers, employees and agents as an additional insured.
18. LIMITATION OF LIABILITY: Notwithstanding any provision of the Agreement to
which it is applicable, City shall not be liable or responsible to Vendor beyond the amount
remaining due to Vendor under the Agreement,regardless of whether said liability be based
in tort, contract,indemnity or otherwise; and in no event shall City be liable to Vendor for
punitive or exemplary damages or for lost profits or consequential damages.
19. INDEPENDENT CONTRACTOR: The Agreement does not create an
employee/employer relationship between the Parties. It is the intent of the Parties that
Vendor is an independent contractorpursuant to the Agreement and shall not be considered
the City's employee for any purpose.
20. COMPLIANCE WITH LAWS: Vendor hereby warrants and agrees that at all times
material to the Agreement, Vendor shall perform its obligations in compliance with all
applicable federal, state,and local laws, rules, and regulations, including section 501.171,
Piggyback Contract—ErgoFlex Systems 5
Florida Statutes. Non-compliance may constitute a material breach of the Agreement.
21. ASSIGNMENT: In the event this Agreement and any interests granted herein shall be
assigned, transferred, or otherwise encumbered, under any circumstances by Vendor,
Vendor must gain prior written consent from City thirty (30) business days before such
transfer. For purposes of this Agreement, any change of ownership of Vendor shall
constitute an assignment that requires City's approval. Notwithstanding the foregoing,
Vendor may, without City's consent,assign this Agreement in whole or in part as part of a
corporate reorganization, consolidation, merger, or sale of substantially all of its assets
related to this Agreement. Vendor shall provide City written notice of any such corporate
reorganization, consolidation, merger, or sale of substantially all of its assets related to this
Agreement within thirty(30) calendar days of such event.
22. AGREEMENT SUBJECT TO FUNDING:The Agreement shall remain in full force and
effect only as long as the expenditures provided for in the Agreement have been
appropriated by the City Commission of the City of Boynton Beach in the annual budget
for each fiscal year of this Agreement, and is subject to termination based on lack of
funding. Early termination by City due to loss of funding shall not obligate Vendor to
refund any prepaid fees.
23. ENTIRE AGREEMENT.The Agreement,including the Master Agreement,sets forth the
entire Agreement between the City and the Vendor 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.
24. SEVERABILITY.If any provision of this Agreement or 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.
25. ANTI-HUMAN TRAFFICKING. On or before the Effective Date of this Agreement,
Vendor shall provide City with an affidavit attesting that the Vendor does not use coercion
for labor or services, in accordance with Section 787.06(13), Florida Statutes.
IN WITNESS OF THE FOREGOING,the parties have set their hands and seals the day
and year first written above.
CITY OF BOYNTON BEACH, FLORIDA ERGOFLEX SYSTEMS, INC. D/B/A XYBIX
SYSTEMS, INC.
Ty Pens: g. ayor , - Z f
Piggyback Contract-ErgoFlex Systems 6
(Signature), Company
Print Name of Authorized Official
Title
Approved as to Form:
4Wg
Shawna G. Lamb, City Attorney (Corporate Seal)
Atest/Authenticated:
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(Signature), Witness
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Piggyback Contract-ErgoFlex Systems 7
EXHIBIT A
NASPO MASTER AGREEMENT AND ALTERNATE CONTRACT SOURCE NO.
43190000-22-NASPO-ACS FOR PUBLIC SAFETY COMMUNICATIONS PRODUCTS,
SERVICES,AND SOLUTIONS,BETWEEN THE DEPARTMENT OF MANAGEMENT
SERVICES, AN AGENCY OF THE STATE OF FLORIDA, AND ERGOFLEX
SYSTEMS, INC. DB/A XYBIX SYSTEMS, INC.
Piggyback Contract—ErgoFlex Systems 8
Washington State Department of A NASPO
Enterprise Services ValuePoint
COOPERATIVE PURCHASING MASTER AGREEMENT
No. 00318
PUBLIC SAFETY COMMUNICATIONS PRODUCTS,SERVICES AND SOLUTIONS
For Use by Eligible Purchasing Entities
By and Between
STATE OF WASHINGTON
DEPARTMENT OF ENTERPRISE SERVICES
and
ERGOFLEX SYSTEMS,INC.
DBA:XYBIX SYSTEMS, INC.
Dated January 1, 2022
COOPERATIVE PURCHASING MASTER AGREEMENT
No. 00318
PUBLIC SAFETY COMMUNICATIONS PRODUCTS,SERVICES AND SOLUTIONS
FOR
CATEGORY 10 DISPATCH CONSOLE FURNITURE
This Cooperative Purchasing Master Agreement ("Cooperative Purchasing Master Agreement") is made
and entered into by and between Enterprise Services acting by and through the State of Washington
("Enterprise Services")and ErgoFlex Systems, Inc. a Colorado corporation ("Contractor") and is dated and
effective as of January 1, 2022.
RECITALS
A. Pursuant to Legislative authorization, Enterprise Services, on behalf of the State of
Washington, is authorized to develop, solicit, and establish Cooperative Purchasing
Master Agreements for goods and services to support Washington state agencies. See
RCW 39.26.050(1). The Washington State Legislature has authorized Enterprise Services
to make these Cooperative Purchasing Master Agreements available, pursuant to
agreement in which Enterprise Services ensures full cost recovery,to other local or federal
government agency or entity, public benefit nonprofit organizations,or any tribes located
in the State of Washington. See RCW 39.26.050(1) & (2).
B. The Washington State Legislature also has authorized Enterprise Services to participate
in, sponsor, conduct, or administer certain cooperative purchasing agreements for the
procurement of goods or services. See RCW 39.26.060(1). One of the approaches that
Enterprise Services utilizes to participate in cooperative purchasing agreements with
other states is NASPO Value Point.
C. NASPO Cooperative Purchasing Organization LLC, doing business as NASPO ValuePoint, is
a nonprofit subsidiary of the National Association of State Procurement Officials(NASPO).
The NASPO ValuePoint purchasing cooperative program is led by state procurement
officers from member states. NASPO ValuePoint does not award contracts; rather, it
assists states, for an administrative fee, in their collaboration pertaining to solicitations
and the resulting master agreements.
D. Pursuant to the NASPO Value Point cooperative purchasing model, a state serves as the
'lead state' to conduct a competitive procurement in compliance with that state's
procurement laws and award a cooperative purchasing master agreement with a
contractor for the specified goods or services. States (including the District of Columbia
and the organized territories of the United States), including the lead state, then may
participate in that cooperative purchasing master agreement by executing a Participating
Addendum. Until a Participating Addendum is executed by the applicable state (a
'participating entity'), no agency or other eligible organization (a 'purchasing entity') may
purchase pursuant to the cooperative purchasing master agreement. Under Washington
law, at the time of solicitation, states may provide supplemental substantive terms and
conditions to inform the competitive procurement. In addition, pursuant to their
Participating Addendum, states may require certain administrative terms and conditions
COOPERATIVE PURCHASING MASTER AGREEMENT NO.00318 PUBLIC SAFETY COMMUNICATIONS PRODUCTS,SERVICES&SOLUTIONS 1
(Rev.2020-03-11)
(e.g., a vendor management fee for sales within the state, state registration and
reporting). Contractor, however, has no obligation to condition execution of a
Participating Addendum on substantive terms and conditions that were not competitively
procured.
E. Enterprise Services, as part of a cooperative purchasing competitive governmental
procurement, with administrative support from NASPO ValuePoint, issued Competitive
Solicitation No. 00318 dated November 16,2020 regarding Public Safety Communications
Products, Services and Solutions ("Public Safety Radio"). Sixteen (16) states indicated an
intent to utilize the resulting Cooperative Purchasing Master Agreement.
F. Enterprise Services and a stakeholder team consisting of representatives from
Washington, California, Alaska, Oregon, Montana, Tennessee, Colorado and Nevada
evaluated all responsive bids to the Competitive Solicitation and identified Contractor as
an Apparent Successful Bidder for the Category identified above.
G. Enterprise Services determined that entering into this Cooperative Purchasing Master
Agreement will meet the cooperative purchasing needs and be in the best interest of the
State of Washington.
H. The purpose of this Cooperative Purchasing Master Agreement is to enable Participating
or Purchasing Entities to purchase Public Safety Radio products and services, in the
awarded Category as set forth herein.
AGREEMENT
NOW THEREFORE, in consideration of the mutual promises, covenants, and conditions set forth herein, the
parties hereto hereby agree as follows:
1. TERM. The term of this Master Agreement begins January 1, 2022 and ends on December 31, 2026;
provided, however that, the contract term shall be extended for twenty-four (24) months if, in
Enterprise Services' sole, reasonable judgement, which shall occur no later than June 30, 2025,
Contractor meets the following performance metrics:
• Reports: Contractor provides timely and accurate reports as detailed in this Master
Agreement and Participating Addendums; and
• Administrative Fee Payments: Contractor provides timely and accurate Administrative
Fee payments as detailed in this Master Agreement and Participating Addendums.
Notwithstanding any provision to the contrary, to effectuate a smooth transition for Participating
States and Purchasing Entities for Public Safety Communications Products, Services and Solutions to
begin on January 1, 2022, Contractor shall provide implementation and transition support to
Participating States who wish to utilize the Master Agreement, beginning upon the date such
Participating State and Contractor executes a Participating Addendum. For the avoidance of doubt,
no orders for products or services shall be made under this Agreement prior to January 1, 2022.
2. PARTICIPANTS AND SCOPE. This Cooperative Purchasing Master Agreement may be utilized under the
following conditions:
COOPERATIVE PURCHASING MASTER AGREEMENT No.00318 PUBLIC SAFETY COMMUNICATIONS PRODUCTS,SERVICES&SOLUTIONS 2
(Rev.2020-03-11)
2.1. PARTICIPATING ENTITIES. Contractor may not sell Public Safety Radio products and services under
this Cooperative Purchasing Master Agreement until a Participating Addendum acceptable to
the Participating Entity and Contractor is executed. The terms and conditions set forth in the
Cooperative Purchasing Master Agreement are applicable to any Order by a Participating
Entity(and other Purchasing Entities covered by their Participating Addendum),except to the
extent altered, modified,supplemented, or amended by a Participating Addendum; Provided,
however, that no Participating Addendum shall operate to alter or modify any substantive
terms of this Cooperative Purchasing Master Agreement which were solicited and procured
pursuant to a competitive procurement. By way of illustration and not limitation,
Participating Entities may include unique administrative, delivery, and invoicing
requirements, as well as entity-specific confidentiality requirements and similar entity-
specific administrative requirements in purchase Orders utilizing this Cooperative Purchasing
Master Agreement.
2.2. PURCHASING ENTITIES. Purchasing Entity means a state (as well as the District of Columbia and
U.S territories), city, county, district, other political subdivision of a State, and a nonprofit
organization under the laws of some states if authorized by a Participating Addendum, that
issues a Purchase Order or other commitment document against the Cooperative Purchasing
Master Agreement and becomes financially committed to the purchase.
2.3. PARTICIPATING ADDENDUM. Obligations under this Cooperative Purchasing Master Agreement
are limited to those Participating Entities who have signed a Participating Addendum and
Purchasing Entities within the scope of those Participating Addenda. States or other entities
permitted to participate may use an informal competitive or other process to determine
which Cooperative Purchasing Master Agreements to participate in through execution of a
Participating Addendum. Financial obligations of Participating Entities who are states are
limited to the orders placed by the departments or other state agencies and institutions
having available funds. Participating Entities who are states incur no financial obligations on
behalf of other Purchasing Entities. Contractor shall email a fully executed PDF copy of each
Participating Addendum as instructed by the Lead State to support documentation of
participation and posting in appropriate databases.
2.4. PURCHASING ENTITY RIGHTS. Except to the extent modified by a Participating Addendum, each
Purchasing Entity shall follow the terms and conditions of the Cooperative Purchasing Master
Agreement and applicable Participating Addendum and will have the same rights and
responsibilities for their purchases as the Lead State has in the Cooperative Purchasing Master
Agreement, including but not limited to, any indemnity or right to recover any costs as such
right is defined in the Cooperative Purchasing Master Agreement and applicable Participating
Addendum for their purchases. Each Purchasing Entity will be responsible for its own charges,
fees, and liabilities. Contractor will apply the charges and invoice each Participating Entity
individually.
2.5. PARTICIPATING ADDENDUM APPROVAL. Participating Entities who are not states may under some
circumstances sign their own Participating Addendum,subject to the approval of participation
by the Chief Procurement Official of the state where the Participating Entity is located.
Coordinate requests for such participation through NASPO ValuePoint. Any permission to
participate through execution of a Participating Addendum is not a determination that
procurement authority exists in the Participating Entity; they must ensure that they have the
requisite procurement authority to execute a Participating Addendum.
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3. SCOPE—INCLUDED GOODS/SERVICES AND PRICE.
3.1. CONTRACT SCOPE. Pursuant to this Cooperative Purchasing Master Agreement, Contractor is
authorized to sell only those Public Safety Radio Products and Services in the category above
posted on the NASPO ValuePoint website. Contractor shall not represent to any Participating
or Purchasing Entity under this Cooperative Purchasing Master Agreement that Contractor
has contractual authority to sell any Public Safety Radio Products beyond those approved and
posted on the NASPO Value Point website.
3.2. MINIMUM WARRANTY FOR INCLUDED GOODS/SERVICES. Notwithstanding any provision to the
contrary, Contractor agrees to and is providing a minimum warranty of no less than one (1)
year for any goods/services included in this Cooperative Purchasing Master Agreement. Such
minimum warranty begins when the goods/services are accepted by Purchasing Entity or as
agreed by Purchasing Entity in its ordering documentation. Such minimum warranty includes
all firmware and software updates within warranty period. Parts and related software will be
free from defects in material and workmanship for one (1) year. If a product fails because of
a defect in workmanship or materials within one (1) year from the date of acceptance by
Purchasing Entity, manufacture shall repair or replace the product or part with a new product
or part without charge to Purchasing Entity.
3.3. ADDITIONAL WARRANTY OPTIONS—See Ergo Flex Systems Products/Services Pricing Document on
the NASPO ValuePoint website for descriptions and pricing for all available warranty options.
3.4. AVAILABLE SERVICES — See ErgoFlex Products/Services Pricing Document on the NASPO
ValuePoint website for descriptions and pricing for all available services.
3.5. ABILITY TO MODIFY SCOPE OF COOPERATIVE PURCHASING MASTER AGREEMENT. Subject to mutual
agreement between the parties, Enterprise Services, acting as the lead state, reserves the
right to modify the Public Safety Radio Products included in this Cooperative Purchasing
Master Agreement; Provided, however, that any such modification shall be effective only
upon thirty(30)days advance written notice;and Provided further,that any such modification
must be within the scope of this competitively procured Cooperative Purchasing Master
Agreement. In no event shall such modification, if authorized by Enterprise Services, limit the
requirement for cooperative purchasing agreements to be subject to competitive
procurement.
3.6. PRODUCT UPDATES. Upon approval, Contractor may update their products/pricelist on a semi-
annual basis. Contractor must submit to the Lead Contract Administrator a revised
product/pricelist highlighting changes and include an effective date of the change.At no time
during the contract term shall products be deleted from the products/pricelist. Discontinued
products/services must be struck-through and highlighted for ease of review process.
Product/pricelist updates must be submitted for review and approval to the Lead Contract
Administrator thirty (30) days prior to the effective date of the change. All products/pricelist
will be posted on the NASPO ValuePoint website.
Product updates for January 1st through June 30th must be submitted to Lead State Contract
Administrator by June 15t to be eligible for product updates effective July 1St. Product updates
forJuly 1"through December 31"must be submitted to the Lead State Contract Administrator
by December 1" to be eligible for product updates effective January 15S. Additional product
updates may be considered for approval with proper 30 day notice at the discretion of the
Lead State.
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Semi-Annual Submitted By Effective Date
January 1-June 30 June 1St July 1St
July 1-December 31 December 1" January 1St
3.7. ECONOMIC ADJUSTMENTS. All pricing must be guaranteed for the first year of the Cooperative
Purchasing Master Agreement. Following the guarantee period, any request for price
increases must be for an equal guarantee period (1 year), and must be submitted to the Lead
State at least thirty (30) calendar days prior to the effective date. The Lead State will review
a documented request for an MSRP price list increase only after the Price Guarantee Period.
Requests for price increases must include sufficient documentation supporting the request
and demonstrating the reasonableness of the adjustment when comparing the current price
list to the proposed price list. Documentation may include: the manufacturer's national price
increase announcement letter, a complete and detailed description of what products are
increasing and by what percentage, a complete and detailed description of what raw
materials and/or other costs have increased and provide proof of increase, index data and
other information to support and justify the increase.The price increase must not produce a
higher profit margin than the original contract, and must be accompanied by sufficient
documentation and nationwide notice of price adjustment to the published manufacturer's
price list. No retroactive price increases will be allowed.
Price Reductions. In the event of a price decrease in any category of product at any time
during the contract in an OEM's published manufacturer's price list, including renewal
options, the Lead State shall be notified immediately. All published manufacturer's price list
price reductions shall be effective upon the notification provided to the Lead State.
Enterprise Services reserves the right to request clarification and justification for requested
Economic Adjustments.
Economic Price Adjustment requests for January 1st through June 30th must be submitted to
Lead State Contract Administrator by June 1St to be eligible for product updates effective July
1st. Product updates for July 1St through December 31" must be submitted to the Lead State
Contract Administrator by December 1" to be eligible for product updates effective January
1st.
Semi-Annual Submitted By Effective Date
January 1-June 30 June 1St July 1St
July 1-December 31 December 1" January 1St
3.8. PRICE CEILING. Although Contractor may offer lower prices, including volume discounts, to
Purchasing Entity, during the term of this Cooperative Purchasing Master Agreement,
Contractor guarantees to provide the Goods/Services at no greater than the prices set forth
approved and posted on the NASPO ValuePoint website.
3.9. COOPERATIVE PURCHASING MASTER AGREEMENT INFORMATION. Enterprise Services shall maintain
and provide information regarding this Cooperative Purchasing Master Agreement, including
scope and pricing, to eligible Purchasing Entity.
3.10. CONTRACTOR RESPONSIBILITIES. Contractor shall be responsible for successful performance of the
Cooperative Purchasing Master Agreement and also for the successful performance of any
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and all of their partners. Contractor is to be the sole point of contact as applicable by
Cooperative Purchasing Master Agreement with regard to contractual matters, payment of
any and all charges resulting from the purchase of the products and maintenance of the
product for the term of the Cooperative Purchasing Master Agreement unless otherwise
specified by a Participating State in a Participating Addendum and/or the Cooperative
Purchasing Master Agreement. Contractor must be able to receive, process, and invoice
orders unless the Participating State has agreed to assign these functions to a partner.
Contractor will be responsible for compliance with requirements under the Cooperative
Purchasing Master Agreement, even if requirements are delegated to partners. Contractor
and partners must not in any way represent themselves in the name of the Lead State, NASPO
ValuePoint or Participating States.
4. CONTRACTOR REPRESENTATIONS AND WARRANTIES. Contractor makes each of the following
representations and warranties as of the effective date of this Cooperative Purchasing Master
Agreement and at the time any order is placed pursuant to this Cooperative Purchasing Master
Agreement. If, at the time of any such order, Contractor cannot make such representations and
warranties, Contractor shall not process any orders and shall, within three (3) business days notify
Enterprise Services, in writing, of such breach.
4.1. QUALIFIED TO DO BUSINESS. Contractor represents and warrants that it is in good standing and
qualified to do business in the State of Washington, that it is registered with the Washington
State Department of Revenue and the Washington Secretary of State, that it possesses and
shall keep current all required licenses and/or approvals, and that it is current, in full
compliance, and has paid all applicable taxes owed to the State of Washington. Contractor
further represents and warrants that, within fifteen (15) days of executing any Participating
Addendum and prior to making any sales pursuant to such Participating Addendum,
Contractor shall be in good standing and qualified to do business in such state and that
Contractor properly shall have registered to do business in such state, shall possess and shall
keep current all required licenses and/or approvals, and that it shall be current, in full
compliance, and have paid all applicable taxes owed to such state.
4.2. SUSPENSION&DEBARMENT. Contractor represents and warrants that neither it nor its principals
or affiliates presently are debarred, suspended, proposed for debarment, declared ineligible,
or voluntarily excluded from participation in any governmental contract by any governmental
department or agency within the United States.
4.3. QUALITY OF G000s OR SERVICES. Contractor represents and warrants that any goods and/or
services sold pursuant to this Cooperative Purchasing Master Agreement shall be
merchantable, shall conform to this Cooperative Purchasing Master Agreement and
Purchasing Entity's Purchase Order, shall be fit and safe for the intended purposes, shall be
free from defects in materials and workmanship, and shall be produced and delivered in full
compliance with applicable law. Contractor further represents and warrants it has clear title
to the goods and that the same shall be delivered and the services provided free of liens and
encumbrances and that the same do not infringe any third party patent. Upon breach of
warranty, Contractor will repair or replace (at no charge to Purchasing Entity) any goods
and/or services whose nonconformance is discovered and made known to the Contractor. If,
in Purchasing Entity's judgment, repair or replacement is inadequate, or fails of its essential
purpose, Contractor will refund the full amount of any payments that have been made. The
rights and remedies of the parties under this warranty are in addition to any other rights and
remedies of the parties provided by law or equity, including, without limitation, actual
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damages, and, as applicable and awarded under the law, to a prevailing party, reasonable
attorneys' fees and costs.
4.4. WAGE VIOLATIONS. Contractor represents and warrants that, during the term of this
Cooperative Purchasing Master Agreement and the three (3) year period immediately
preceding the award of the Cooperative Purchasing Master Agreement, it is not determined,
by a final and binding citation and notice of assessment issued by the Washington Department
of Labor and Industries or through a civil judgment entered by a court of limited or general
jurisdiction,to be in willful violation of any provision of Washington state wage laws set forth
in RCW chapters 49.46,49.48, or 49.52.
4.5. PAY EQUALITY. Contractor represents and warrants that,among its workers,similarly employed
individuals are compensated as equals. For purposes of this provision, employees are
similarly employed if the individuals work for the same employer,the performance of the job
requires comparable skill, effort, and responsibility, and the jobs are performed under similar
working conditions. Job titles alone are not determinative of whether employees are similarly
employed. Contractor may allow differentials in compensation for its workers based in good
faith on any of the following: a seniority system; a merit system; a system that measures
earnings by quantity or quality of production; a bona fide job-related factor or factors; or a
bona fide regional difference in compensation levels. A bona fide job-related factor or factors
may include, but not be limited to, education, training, or experience that is: consistent with
business necessity; not based on or derived from a gender-based differential; and accounts
for the entire differential. A bona fide regional difference in compensation level must be
consistent with business necessity; not based on or derived from a gender-based differential;
and account for the entire differential. Notwithstanding any provision to the contrary, upon
breach of warranty and Contractor's failure to provide satisfactory evidence of compliance
within thirty (30) days, Enterprise Services may suspend or terminate this Cooperative
Purchasing Master Agreement and any Purchasing Entity hereunder similarly may suspend or
terminate its use of the Cooperative Purchasing Master Agreement and/or any agreement
entered into pursuant to this Cooperative Purchasing Master Agreement.
4.6. EXECUTIVE ORDER 18-03—WORKERS' RIGHTS. Contractor represents and warrants, as previously
certified in Contractor's Bidder's Certification, that Contractor does NOT require its
employees,as a condition of employment,to signor agree to mandatory individual arbitration
clauses or class or collective action waivers. Contractor further represents and warrants that,
during the term of this Cooperative Purchasing Master Agreement, Contractor shall not, as a
condition of employment, require its employees to sign or agree to mandatory individual
arbitration clauses or class or collective action waivers.
4.7. PROCUREMENT ETHICS & PROHIBITION ON GIFTS. Contractor represents and warrants that it
complies fully with all applicable procurement ethics restrictions including, but not limited to,
restrictions against Contractor providing gifts or anything of economic value, directly or
indirectly, to Purchasing Entity's employees.
4.8. WASHINGTON'S ELECTRONIC BUSINESS SOLUTION (WEBS). Contractor represents and warrants that
it is registered in Washington's Electronic Business Solution (WEBS), Washington's contract
registration system and that, all of its information therein is current and accurate and that
throughout the term of this Cooperative Purchasing Master Agreement, Contractor shall
maintain an accurate profile in WEBS.
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4.9. STATEWIDE PAYEE DESK. Contractor represents and warrants that it is registered with the
Washington Statewide Payee Desk, which registration is a condition to payment.
4.10. COOPERATIVE PURCHASING MASTER AGREEMENT PROMOTION; ADVERTISING AND ENDORSEMENT.
Contractor represents and warrants that it shall use commercially reasonable efforts both to
promote and market the use of this Cooperative Purchasing Master Agreement with eligible
Purchasing Entity and to ensure that those entities that utilize this Cooperative Purchasing
Master Agreement are eligible Purchasing Entity. Contractor understands and acknowledges
that neither Enterprise Services nor Purchasing Entity are endorsing Contractor's goods
and/or services or suggesting that such goods and/or services are the best or only solution to
their needs. Accordingly, Contractor represents and warrants that it shall make no reference
to Enterprise Services, any Purchasing Entity, or the State of Washington in any promotional
material without the prior written consent of Enterprise Services.
4.11. COOPERATIVE PURCHASING MASTER AGREEMENT TRANSITION. Contractor represents and warrants
that, in the event this Cooperative Purchasing Master Agreement or a similar contract, is
transitioned to another contractor (e.g., Cooperative Purchasing Master Agreement
expiration or termination), Contractor shall use commercially reasonable efforts to assist
Enterprise Services for a period of sixty(60) days to effectuate a smooth transition to another
contractor to minimize disruption of service and/or costs to the State of Washington.
4.12. SUB-CONTRACTORS, AUTHORIZED RESELLERS/DEALERS. MANUFACTURER'S REPRESENTATIVE (PARTNERS). If
utilizing partners, Contractor is responsible for such partners providing products and services,
as well as warranty and maintenance services for any product or solution such partners
provide pursuant to this Cooperative Purchasing Master Agreement. Pursuant to their
applicable Participating Addendum,each Participating Entity may allow or disallow Contractor
to utilize Partners. Only partners approved by the Participating Entity may be utilized. The
Participating Entity will define the process to add and remove partners in their Participating
Addendum.
5. USING THE COOPERATIVE PURCHASING MASTER AGREEMENT—PURCHASES.
5.1. ORDERING REQUIREMENTS. Eligible Purchasing Entity shall order goods and/or services from this
Cooperative Purchasing Master Agreement, consistent with the terms hereof and by using
any ordering mechanism agreeable both to Contractor and Purchasing Entity but, at a
minimum, including the use of a purchase order. When practicable, Contractor and
Purchasing Entity also shall use telephone orders,email orders,web-based orders,and similar
procurement methods (collectively "Purchasing Entity Order"). All order documents must
reference the Cooperative Purchasing Master Agreement number. The terms of this
Cooperative Purchasing Master Agreement shall apply to any Purchase Order and, in the
event of any conflict, the terms of this Cooperative Purchasing Master Agreement shall
prevail. Notwithstanding any provision to the contrary, in no event shall any 'click-
agreement,' software or web-based application terms and conditions, or other agreement
modify the terms and conditions of this Cooperative Purchasing Master Agreement.
(a) All order documents must, at a minimum, reference
• The Cooperative Purchasing Master Agreement number;
• The place and requested time of delivery;
• A billing address;
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• The name, phone number, and address of the Participating Entity
representative;
(b) All communications concerning administration of Orders placed shall be
furnished solely to the authorized purchasing agent within the Participating
Entity's purchasing office, or to such other individual identified in writing in the
Order.
(c) Orders must be placed pursuant to this Cooperative Purchasing Master
Agreement prior to the termination date thereof, but may have a delivery date
or performance period up to 120 days thereafter.
(d) Notwithstanding the expiration, cancellation or termination of this Cooperative
Purchasing Master Agreement, Contractor agrees to perform in accordance with
the terms of any Orders then outstanding at the time of such expiration or
termination. Contractor shall not honor any Orders placed after the expiration,
cancellation, or termination of this Cooperative Purchasing Master Agreement,
or otherwise inconsistent with its terms. Orders from any separate indefinite
quantity, task orders, or other form of indefinite delivery order arrangement
priced against this Cooperative Purchasing Master Agreement may not be placed
after the expiration or termination of this Cooperative Purchasing Master
Agreement, notwithstanding the term of any such indefinite delivery order
agreement.
5.2. DELIVERY REQUIREMENTS. Contractor must ensure that delivery of goods and/or services will be
made as required by this Cooperative Purchasing Master Agreement, the Purchase Order
used by Purchasing Entity,or as otherwise mutually agreed in writing between the Purchasing
Entity and Contractor. The following apply to all deliveries:
(a) Contractor shall make all deliveries to the applicable delivery location specified in
the Purchase Order. Such deliveries shall occur during Purchasing Entity's normal
work hours and within the time period mutually agreed in writing between
Purchasing Entity and Contractor at the time of order placement. Deliveries to
be off-loaded at Purchasing Entity's receiving dock or designated job site by
Contractor.
(b) Contractor shall ship all goods purchased pursuant to this Master Agreement to
Purchasing Entity's specified destination. Shipping charges must be mutually
agreed to between Purchasing Entity and Contractor, and shall be added as a
separate line item on the Contractor's invoice. Contractor shall bear all risk of
loss, damage, or destruction of the goods ordered hereunder that occurs prior to
delivery, except loss or damage attributable to Purchasing Entity's fault or
negligence. Ownership transfers to the Purchasing Entity upon delivery.
(c) All products must be delivered in the manufacturer's standard package. Costs
shall include all packing and/or crating charges. Cases shall be of durable
construction, good condition, properly labeled and suitable in every respect for
storage and handling of contents. Each shipping carton shall be marked with the
commodity, brand, quantity, item code number and the Purchasing Entity's
Purchase Order number.
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(d) All packing lists, packages, instruction manuals, correspondence, shipping
notices, shipping containers, and other written materials associated with this
Cooperative Purchasing Master Agreement shall be identified by the
Cooperative Purchasing Master Agreement number set forth on the cover of this
Cooperative Purchasing Master Agreement and the applicable Purchase Order
number. Packing lists shall be enclosed with each shipment and clearly identify
all contents and any backorders.
(e) Purchasing Entities may return unopened or unused (non-specialty or
customized) Public Safety Radio products within ten(10) business days of receipt
for full credit, minus any freight or restocking fee. In such event, Contractor is
responsible for shipping costs pertaining to any defective Public Safety Radio
Products that are returned.
5.3. RECEIPT AND INSPECTION OF GOODS AND/OR SERVICES. Goods and/or services purchased under this
Cooperative Purchasing Master Agreement are subject to Purchasing Entity's reasonable
inspection, testing, and approval at Purchasing Entity's destination. Such inspection and
approval shall be determined within thirty (30) days of delivery. Purchasing Entity reserves
the right to reject and refuse acceptance of goods and/or services that are not in accordance
with this Cooperative Purchasing Master Agreement and Purchasing Entity's Purchase Order.
If there are any apparent defects in the goods and/or services at the time of delivery,
Purchasing Entity will notify Contractor within five (5) business days. At Purchasing Entity's
option, and without limiting any other rights, Purchasing Entity may require Contractor to,
consistent with the warranty terms, repair or replace, at Contractor's expense, any or all of
the damaged goods and/or services or, at Purchasing Entity's option, Purchasing Entity may
note any damage to the goods and/or services on the receiving report, decline acceptance,
and deduct the cost of rejected goods and/or services from final payment. Payment for any
goods under such Purchase Order shall not be deemed acceptance of the goods.
(a) Contractor shall provide right of access to the Lead State, or to any other
authorized agent or official of the Lead State or other Participating or Purchasing
Entity, at reasonable times, in order to monitor and evaluate performance,
compliance, and/or quality assurance requirements under this Cooperative
Purchasing Master Agreement. Products that do not meet specifications may be
rejected as mutually agreed between Purchasing Entity and Contractor. Failure to
reject upon receipt, however, does not relieve Contractor of liability for material
(nonconformity that substantially impairs value) latent or hidden defects
subsequently revealed when the Public Safety Radio Products are put to use.
Acceptance of such Public Safety Radio Products may be revoked in accordance
with the provisions of the applicable commercial code, and Contractor shall be
liable for any resulting expense incurred by the Purchasing Entity related to the
preparation and shipping of any Public Safety Radio Products rejected and
returned, or for which Acceptance is revoked.
(b) If any Public Safety Radio Products do not conform to the specifications, the
Purchasing Entity may require the Contractor to repair or replace the Public
Safety Radio Product in conformity with the specifications.
5.4. ON SITE REQUIREMENTS. While on Purchasing Entity's premises, Contractor, its agents,
employees, or subcontractors shall comply, in all respects, with Purchasing Entity's physical,
fire, access, safety, and other security requirements.
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5.5. INSTALLATION. Installation shall be performed by Contractor or Sub-Contractor, in a
professional manner in accordance with industry standard best practices. The premises shall
be left in a neat, clean, and undamaged condition. Purchasing Entity reserves the right to
require Contractor or Sub-Contractor to repair any damage caused during installation or
provide full compensation as determined by Purchasing Entity.
5.6. CONFIDENTIALITY; SAFEGUARDING OF INFORMATION. Contractor shall not use or disclose any
information concerning Enterprise Services/the State of Washington or Purchasing Entity's
information which may be classified as confidential, for any purpose not directly connected
with the administration of this Cooperative Purchasing Master Agreement, except with prior
written consent of Enterprise Services (or the applicable Purchasing Entity), or as may be
required by law.
5.7. TREATMENT OF ASSETS. Title to all property furnished by any Participating State and/or
Purchasing Entity shall remain with such Participating State and/or Purchasing Entity, as
applicable. Any property of any Participating State and/or Purchasing Entity furnished to
Contractor shall, unless otherwise provided herein or approved by such Participating State
and/or Purchasing Entity, be used only for the performance of this Cooperative Purchasing
Master Agreement. Contractor shall be responsible for damages as a result of any loss or
damage to property of any Participating State and/or Purchasing Entity to the extent it results
from the negligence of Contractor or to the extent it results from the failure on the part of
Contractor to maintain, administer and protect that property in a reasonable manner and to
the extent practicable in all instances. If any such Participating State and/or Purchasing Entity
property is lost, destroyed, or damaged, Contractor immediately shall notify such
Participating State and/or Purchasing Entity and shall take all reasonable steps to protect the
property from further damage. Contractor shall surrender to such Participating State and/or
Purchasing Entity all property of such Participating State and/or Purchasing Entity prior to
settlement upon completion, termination, or cancellation of this Cooperative Purchasing
Master Agreement. Title to all property furnished by Contractor, the cost for which the
Contractor is entitled to be reimbursed as a direct item of cost under this Contract,shall pass
to and vest in the Purchasing Entity upon delivery of such property by Contractor to the
Purchasing Entity. Title to other property, the cost of which is reimbursable to Contractor
under this Contract,shall pass to and vest in the Purchasing Entity upon(i) issuance for use of
such property in the performance of this Contract, or (ii)commencement of use of such
property in the performance of this Contract,or(iii) reimbursement of the cost thereof by the
Purchasing Entity in whole or in part,whichever first occurs. All reference to Contractor under
this clause shall also include Contractor's employees, agents or subcontractors. Title to
software shall not pass to Purchasing Entity but shall be licensed. All reference to Contractor
under this clause shall also include Contractor's employees, agents or subcontractors.
5.8. SOFTWARE LICENSE AGREEMENT. If the public safety communications equipment ordered and
delivered under the term and conditions of this Cooperative Purchasing Master Agreement
requires software or firmware to operate, Purchasing Entity and Contractor will mutually agree
to Contractor's Software License Agreement that will apply to such transactions. Contractor's
software license agreement shall not conflict with the terms and conditions of this Cooperative
Purchasing Master Agreement or specific security requirements of Purchasing Entity.
5.9. SUBSCRIPTION SERVICES AGREEMENT. If the public safety communications equipment ordered and
delivered under the term and conditions of this Contract requires subscription services to
operate, Purchasing Entity and Contractor will mutually agree to Contractor's Software License
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Agreement that will apply to such transactions. Contractor's Subscription Services Agreement
shall not conflict with the terms and conditions of this Master Agreement or the specific security
requirements of Purchasing Entity.
6. INVOICING&PAYMENT.
6.1. CONTRACTOR INVOICE. Contractor shall submit to Purchasing Entity's designated invoicing
contact properly itemized invoices. Such invoices shall itemize the following:
• Cooperative Purchasing Master Agreement No.00318
• Contractor name,address,telephone number,and email address for billing issues
(i.e., Contractor Customer Service Representative)
• Contractor's Federal Tax Identification Number
• Date(s) of delivery
• Applicable goods/services
• Invoice amount; and
• Payment terms, including any available prompt payment discounts.
Contractor's invoices for payment shall reflect accurate Cooperative Purchasing Master
Agreement prices, less discounts or lower negotiated costs. Invoices will not be processed for
payment until receipt of a complete invoice as specified herein.
6.2. PAYMENT. Payment is the sole responsibility of, and will be made by, the Purchasing Entity.
Payment is due within thirty (30) days of invoice. If Purchasing Entity fails to make timely
payment(s),Contractor may invoice Purchasing Entity in the amount of one percent (1%) per
month on the amount overdue or a minimum of$1. Payment will not be considered late if a
check or warrant is mailed within the time specified.
6.3. OVERPAYMENTS. Contractor promptly shall refund to Purchasing Entity the full amount of any
erroneous payment or overpayment. Such refunds shall occur within thirty (30) days of
written notice to Contractor;Provided,however,that Purchasing Entity shall have the right to
elect to have either direct payments or written credit memos issued. If Contractor fails to
make timely payment(s) or issuance of such credit memos, Purchasing Entity may impose a
one percent (1%) per month on the amount overdue thirty (30) days after notice to the
Contractor.
6.4. No ADVANCE PAYMENT. No advance payment shall be made for the products and services
furnished by Contractor pursuant to this Cooperative Purchasing Master Agreement;
Provided, however, that the parties agree that maintenance payments, if any, may be made
on a quarterly basis at the beginning of each quarter.
6.5. No ADDITIONAL CHARGES. Unless otherwise specified herein, Contractor shall not include or
impose any additional charges including, but not limited to, charges for shipping, handling,or
payment processing.
6.6. TAxEs/FEES. Contractor promptly shall pay all applicable taxes on its operations and activities
pertaining to this Cooperative Purchasing Master Agreement. Failure to do so shall constitute
breach of this Cooperative Purchasing Master Agreement. Unless otherwise agreed,
Purchasing Entity shall pay applicable sales tax imposed by the State of Washington on
purchased goods and/or services. In regard to federal excise taxes, Contractor shall include
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federal excise taxes only if,after thirty(30) calendar days written notice to Purchasing Entity,
Purchase has not provided Contractor with a valid exemption certificate from such federal
excise taxes.
7. CONTRACT MANAGEMENT.
7.1. CONTRACT ADMINISTRATION&NOTICES. Except for legal notices, the parties hereby designate the
following contract administrators as the respective single points of contact for purposes of
this Cooperative Purchasing Master Agreement. Enterprise Services' contract administrator
shall provide Cooperative Purchasing Master Agreement oversight. Contractor's contract
administrator shall be Contractor's principal contact for business activities under this
Cooperative Purchasing Master Agreement. The parties may change contractor
administrators by written notice as set forth below.
Any notices required or desired shall be in writing and sent by U.S. mail, postage prepaid, or
sent via email,and shall be sent to the respective addressee at the respective address or email
address set forth below or to such other address or email address as the parties may specify
in writing:
Enterprise Services ErgoFlex Systems, Inc.
Attn: Contract Administrator 00318 Attn:
Washington Dept. of Enterprise Services 8207 Southpark Circle
PO Box 41411 Littleton, CO 80120
Olympia, WA 985044411 Tel: 3036835656
Tel: (360)407-2218 Email:kenc@xybix.com
Email: DESContractsTeamCvpress@des.wa.gov
Notices shall be deemed effective upon the earlier of receipt, if mailed, or, if emailed, upon
transmission to the designated email address of said addressee.
7.2. CONTRACTOR CUSTOMER SERVICE REPRESENTATIVE. Contractor shall designate a customer service
representative (and inform Enterprise Services of the same) who shall be responsible for
addressing Purchasing Entity issues pertaining to this Cooperative Purchasing Master
Agreement.
7.3. LEGAL NOTICES. Any legal notices required or desired shall be in writing and delivered by U.S.
certified mail, return receipt requested, postage prepaid, or sent via email, and shall be sent
to the respective addressee at the respective address or email address set forth below or to
such other address or email address as the parties may specify in writing:
Enterprise Services ErgoFlex Systems, Inc.
Attn: Legal Services Manager Attn:
Washington Dept. of Enterprise Services 8207 Southpark Circle
PO Box 41411 Littleton, CO 80120
Olympia, WA 985044411 Email: kenc@xybix.com
Email: greg.tolbert@des.wa.gov
Notices shall be deemed effective upon the earlier of receipt when delivered, or, if mailed,
upon return receipt, or, if emailed, upon transmission to the designated email address of said
addressee.
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8. NASPO VALUEPOINT SUMMARY AND DETAILED USAGE REPORTS.
8.1. SUMMARY SALES DATA. Contractor shall submit quarterly sales reports directly to NASPO
ValuePoint using the NASPO ValuePoint Quarterly Sales/Administrative Fee Reporting Tool
found at http://www.naspo.org/WNCPO/Calculator.aspx. Any/all sales made under this
Cooperative Purchasing Master Agreement shall be reported as cumulative totals by state.
Even if Contractor experiences zero sales during a calendar quarter, a report is still required.
Reports shall be due no later than thirty (30) days following the end of the calendar quarter
(as specified in the reporting tool).
8.2. DETAILED SALES DATA. Contractor also shall report detailed sales data by: (1) state;
(2) entity/customer type, e.g. local government, higher education, K12, non-profit;
(3) Participating Entity name; (4) Participating Entity bill-to and ship-to locations;
(4) Participating Entity and Contractor Purchase Order identifier/number(s); (5) Purchase
Order Type (e.g. sales order, credit, return, upgrade, determined by industry practices);
(6) Purchase Order date; (7) Ship Date; and (8) line item description, including product
number if used. Reports are due on a quarterly basis and must be received by the Enterprise
Services and NASPO ValuePoint Cooperative Development Team no later than thirty(30) days
after the end of the reporting period. Reports shall be delivered to Enterprise Services and to
the NASPO ValuePoint Cooperative Development Team electronically through a designated
portal, email, CD-ROM, flash drive or other method as determined by Enterprise Services and
NASPO ValuePoint. Detailed sales data reports shall include sales information for all sales
under Participating Addenda executed under this Cooperative Purchasing Master Agreement.
8.3. NASPO VALUEPOINT EXECUTIVE SUMMARY. Contractor shall provide the NASPO ValuePoint
Cooperative Development Coordinator with an executive summary each quarter that
includes, at a minimum, a list of states with an active Participating Addendum, states that
Contractor is in negotiations with and any Participating Addendum roll out or implementation
activities and issues. NASPO ValuePoint Cooperative Development Coordinator and
Contractor will determine the format and content of the executive summary. The executive
summary is due thirty (30) days after the conclusion of each calendar quarter.
8.4. REPORT OWNERSHIP. Timely submission of these reports is a material requirement of the
Cooperative Purchasing Master Agreement. Enterprise Services and NASPO ValuePoint shall
have a perpetual, irrevocable, non-exclusive, royalty free, transferable right to display,
modify, copy, and otherwise use reports, data and information provided under this section.
8.5. CONFIDENTIALITY OF DETAILED SALES DATA AND PARTICIPATING ADDENDA. Participating Addenda, as
well as Orders or transaction data relating to Orders under this Cooperative Purchasing
Master Agreement that identify the entity/customer, Order dates, line item descriptions and
volumes, and prices/rates, shall be Confidential Information. Contractor shall hold
Confidential Information in confidence and shall not transfer or otherwise disclose
Confidential Information to third parties or use Confidential Information for any purposes
whatsoever other than what is necessary to the performance of Orders placed under this
Cooperative Purchasing Master Agreement. Contractor shall advise each of its employees
and agents of their obligations to keep Confidential Information confidential. This provision
does not apply to disclosure to the Lead State, a Participating State, or any governmental
entity exercising an audit, inspection, or examination pursuant to this Cooperative Purchasing
Master Agreement. To the extent permitted by law, Contractor shall notify the Lead State of
the identity of any entity seeking access to the Confidential Information described in this
subsection.
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9. NASPO VALUEPOINT COOPERATIVE PROGRAM MARKETING AND PERFORMANCE REVIEW
9.1. NASPO VALUEPOINT COOPERATIVE PROGRAM. Contractor agrees to work cooperatively with
NASPO ValuePoint personnel. Contractor agrees to present plans to NASPO ValuePoint for
the education of Contractor's contract administrator(s) and sales/marketing workforce
regarding the Cooperative Purchasing Master Agreement, including the competitive nature
of NASPO ValuePoint procurements, the Cooperative Purchasing Master Agreement and
Participating Addendum process, and the manner in which qualifying entities can participate
in the Cooperative Purchasing Master Agreement.
9.2. LOGOS. NASPO VALUEPOINT logos may not be used by Contractor in sales and marketing until a
logo use agreement is executed with NASPO ValuePoint.
9.3. ANNUAL SUPPLIER BUSINESS REVIEW. Contractor agrees to participate in an annual supplier
performance review at a location (virtual or in-person) selected by Enterprise Services and
NASPO ValuePoint, which may include a discussion of marketing action plans, target
strategies, marketing materials, as well as Contractor reporting and timeliness of payment of
administration fees. The 2022 Annual Supplier Business Review requires in-person
attendance. Any subsequent Annual Supplier Business Review meetings may be attended
virtually or in-person.
10. ADMINISTRATIVE FEES.
10.1. CONTRACTOR shall pay to NASPO ValuePoint, or its assignee, a NASPO ValuePoint
ADMINISTRATIVE Fee of one-quarter of one percent (0.25%) of the quarterly sales by
participating state. The NASPO ValuePoint administrative fee is not negotiable. This fee may
not be adjusted in any Participating Addendum.This fee is to be included as part of the pricing
submitted with the bid.
10.2. Some states may require an additional fee be paid directly to the state only on purchases
made by Purchasing Entities within that state. The fee level, payment method and schedule
for such reports and payments will be incorporated into the Participating Addendum that is
made a part of the Cooperative Purchasing Master Agreement.The Contractor may adjust the
Cooperative Purchasing Master Agreement pricing accordingly for purchases made by
Purchasing Entities within the jurisdiction of the state. All such agreements shall not affect
the NASPO ValuePoint Administrative Fee percentage or the prices paid by the Purchasing
Entities outside the jurisdiction of the state requesting the additional fee. The NASPO
ValuePoint Administrative Fee set forth above shall be based on the gross amount of all sales
(less any charges for taxes or shipping) at the adjusted prices(if any) in Participating Addenda.
11. RECORDS RETENTION&AUDITS.
11.1. RECORDS RETENTION. Contractor shall maintain books, records, documents, and other evidence
pertaining to this Cooperative Purchasing Master Agreement and orders placed by Purchasing
Entity under it to the extent and in such detail as shall adequately reflect performance and
administration of payments and fees. Contractor shall retain such records for a period of six
(6) years following expiration or termination of this Cooperative Purchasing Master
Agreement or final payment for any order placed by a Purchasing Entity against this
Cooperative Purchasing Master Agreement, whichever is later; Provided, however, that if any
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litigation, claim, or audit is commenced prior to the expiration of this period, such period shall
extend until all such litigation, claims, or audits have been resolved.
11.2. AUDIT. Upon reasonable advance written notice, Enterprise Services reserves the right to
audit, or have a designated third party audit, applicable records associated with this
Cooperative Purchasing Master Agreement to ensure that Contractor has properly invoiced
Purchasing Entity and that Contractor has paid all applicable vendor management fees.
Accordingly, Contractor shall permit Enterprise Services, any Purchasing Entity, and any other
duly authorized agent of a governmental agency, to audit, inspect examine, copy and/or
transcribe Contractor's books, documents, papers and records directly pertinent to this
Cooperative Purchasing Master Agreement or orders placed by a Purchasing Entity under it
for the purpose of making audits, examinations, excerpts, and transcriptions. This right shall
survive for a period of six (6) years following expiration or termination of this Cooperative
Purchasing Master Agreement or final payment for any order placed by a Purchasing Entity
against this Cooperative Purchasing Master Agreement, whichever is later; Provided,
however, that if any litigation, claim, or audit is commenced prior to the expiration of this
period, such period shall extend until all such litigation, claims, or audits have been resolved.
11.3. OVERPAYMENT OF PURCHASES OR UNDERPAYMENT OF FEES. Without limiting any other remedy
available to any Purchasing Entity, Contractor shall reimburse Purchasing Entity for any
overpayments inconsistent with the terms of this Cooperative Purchasing Master Agreement
or orders, at a rate of 100%of such overpayments,found as a result of the examination of the
Contractor's records.
12. INSURANCE.
12.1. REQUIRED INSURANCE. During the Term of this Cooperative Purchasing Master Agreement,
Contractor, at its expense, shall maintain in full force and effect the insurance coverages set
forth in Exhibit A —Insurance Requirements. All costs for insurance, including any payments
of deductible amounts, shall be considered incidental to and included in the prices for
goods/services and no additional payment shall be made.
12.2. WORKERS COMPENSATION. Contractor shall comply with applicable workers compensation
statutes and regulations (e.g., RCW Title 51, Industrial Insurance). If Contractor fails to
provide industrial insurance coverage or fails to pay premiums or penalties on behalf of its
employees as may be required by law, Enterprise Services may terminate this Cooperative
Purchasing Master Agreement. This provision does not waive any of the Washington State
Department of Labor and Industries (L&I) rights to collect from Contractor. In addition,
Contractor waives its immunity under RCW Title 51 to the extent it is required to indemnify,
defend, and hold harmless the State of Washington and its agencies, officials, agents, or
employees.
12.3. INSURANCE CERTIFICATE. Prior to commencement of performance, Contractor shall provide to
Enterprise Services a written endorsement to the Contractor's general liability insurance
policy or other documentary evidence acceptable to Enterprise Services that (1) names the
State of Washington and Enterprise Services as additional insureds, (2) provides for written
notice of cancellation delivered in accordance with the policy provisions, and (3) provides that
the Contractor's liability insurance policy shall be primary, with any liability insurance of any
Participating State as secondary and noncontributory. Unless otherwise agreed in any
Participating Addendum, other state Participating Entities' rights and Contractor's obligations
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are the same as those specified in the first sentence of this subsection except the
endorsement is provided to the applicable state.
13. PUBLIC INFORMATION. This Cooperative Purchasing Master Agreement, all related documents, and all
records created as a result of the Cooperative Purchasing Master Agreement are subject to public
disclosure as required by Washington's Public Records Act, RCW chapter 42.56. In addition,
Participating Addendums and related records shall be subject to public disclosure as required by
applicable law pertaining to such Purchasing Entity. Consistent with the Public Records Act, to the
extent that any such Contractor document or record — in whole or in part — includes information
exempted or protected from disclosure by the Public Records Act, Contractor may mark such
document or record—the exempted or protected portions only—with the specific basis for protection
under the Public Records Act. In the event that Enterprise Services receives a public records disclosure
request that pertains to such properly marked documents or records, Enterprise Services shall notify
Contractor of such disclosure request and of the date that the records will be released to the requester
unless Contractor, at Contractor's sole expense, timely obtains a court order enjoining such
disclosure. In the event Contractor fails to file a motion for a court order enjoining such disclosure,
Enterprise Services shall release the requested documents on the date specified. Contractor's failure
properly to identify exempted or protected information or timely respond after notice of request for
public disclosure has been given shall be deemed a waiver by Contractor of any claim that such
materials are protected or exempt from disclosure.
14. DEFAULTS AND REMEDIES
14.1. SUSPENSION & TERMINATION FOR DEFAULT. Enterprise Services may suspend Contractor's
operations under this Cooperative Purchasing Master Agreement immediately by written
cure notice of any default. Contractor may be required to submit a written cure plan within
five (5) business days of Suspension notification. Suspension shall continue until the default
is remedied to Enterprise Services' reasonable satisfaction; Provided, however, that, if after
thirty (30) days from such a suspension notice, Contractor remains in default, Enterprise
Services may terminate Contractor's right under this Cooperative Purchasing Master
Agreement All of Contractor's obligations to Enterprise Services and Purchasing Entity survive
termination of Contractor's rights under this Cooperative Purchasing Master Agreement, until
such obligations have been fulfilled.
14.2. DEFAULT. Each of the following events shall constitute default of this Cooperative Purchasing
Master Agreement by Contractor:
(a) Contractor fails to perform or comply with any of the terms or conditions of this
Cooperative Purchasing Master Agreement;
(b) Contractor breaches any representation or warranty provided herein; or
(c) Contractor enters into proceedings relating to bankruptcy, whether voluntary or
involuntary.
14.3. REMEDIES for DEFAULT.
(a) Enterprise Services' rights to suspend and terminate Contractor's rights under this
Cooperative Purchasing Master Agreement are in addition to all other available
remedies.
(b) In the event of termination for default, Enterprise Services may exercise any remedy
provided by law including, without limitation, the right to procure for all Purchasing
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Entity replacement goods and/or services. In such event, Contractor shall be liable
to Enterprise Services for damages as authorized by law including, but not limited to,
any price difference between the Cooperative Purchasing Master Agreement price
and the replacement or cover price for identical equipment or services, as well as
any administrative and/or transaction costs directly related to such replacement
procurement—e.g., the cost of the competitive procurement. Enterprise Services or
Purchasing Entity will mitigate damages and provide Contractor with detailed
invoices substantiating the charges.
(c) Unless otherwise specified in the Participating Addendum, in the event of a default
under a Participating Addendum, a Participating Entity shall provide a written notice
of default as described in this section and have all of the rights and remedies under
this paragraph regarding its participation in the Cooperative Purchasing Master
Agreement, in addition to those set forth in its Participating Addendum, Unless
otherwise specified in a Purchase Order, either Party shall provide written notice of
default as described in this section and have all of the rights and remedies under this
paragraph and any applicable Participating Addendum with respect to an Order.
Nothing in this Cooperative Purchasing Master Agreement shall be construed to limit
the rights and remedies available to either Party under the applicable commercial
code.
14.4. LIMITATION ON DAMAGES. Notwithstanding any provision to the contrary, the parties agree that
in no event shall any party or Purchasing Entity be liable to the other for exemplary or punitive
damages.
14.5. GOVERNMENTAL TERMINATION.
(a) Termination for Withdrawal of Authority. Enterprise Services may suspend or
terminate this Cooperative Purchasing Cooperative Purchasing Master Agreement if,
during the term hereof, Enterprise Services' procurement authority is withdrawn,
reduced, or limited such that Enterprise Services, in its judgment, would lack
authority to enter into this Cooperative Purchasing Master Agreement; Provided,
however, that such suspension or termination for withdrawal of authority shall only
be effective upon twenty (20) days prior written notice; and Provided further, that
such suspension or termination for withdrawal of authority shall not relieve any
Participating Entity or Purchasing Entity from payment for goods and/or services
already ordered as of the effective date of such notice. Except as stated in this
provision, in the event of such suspension or termination for withdrawal of authority,
neither Enterprise Services nor any Participating Entity or Purchasing Entity shall
have any obligation or liability to Contractor. Contractor will be entitled to seek a
change order to the extent Contractor provides documentary evidence that
Contractor has incurred additional costs as a result of the suspension including costs
to demobilize and remobilize the project.
(b) Termination for Convenience. Enterprise Services, for convenience, may terminate
this Cooperative Purchasing Master Agreement; Provided, however, that such
termination for convenience must, in Enterprise Services' judgment, be in the best
interest of the State of Washington; and Provided further, that such termination for
convenience shall only be effective upon sixty (60) days prior written notice; and
Provided further, that such termination for convenience shall not relieve any
Participating Entity or Purchasing Entity from payment for goods and/or services
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already ordered as of the effective date of such notice. Except as stated in this
provision, in the event of such termination for convenience, neither Enterprise
Services nor any Participating Entity or Purchasing Entity shall have any obligation or
liability to Contractor.
15. CLAIMS.
15.1. ASSUMPTION OF RISKS; CLAIMS BETWEEN THE PARTIES. Contractor assumes sole responsibility and
all risks of personal injury or property damage to itself and its employees and agents to the
extent caused by its operations under this Cooperative Purchasing Master Agreement.
Enterprise Services has made no representations regarding any factor affecting Contractor's
risks. If responsibility can be substantiated as Contractor fault, Contractor shall pay for all
damage to any Purchasing Entity's property resulting directly or indirectly from its acts or
omissions under this Cooperative Purchasing Master Agreement, to the extent attributable
to negligence by Contractor or its agents.
15.2. THIRD-PARTY CLAIMS; INDEMNITY. To the fullest extent permitted by law,Contractor shall defend,
indemnify, and hold harmless Enterprise Services, any Purchasing Entity, and NASPO
Cooperative Purchasing Organization LLC (doing business as NASPO ValuePoint) (NASPO) and
their respective employees and agents from and against all claims, demands, judgments,
assessments,damages, penalties,fines,costs, liabilities or losses including,without limitation,
sums paid in settlement of claims, attorneys' fees, consultant fees, and expert fees
(collectively"claims") arising from any act or omission of Contractor or its successors, agents,
and subcontractors under this Cooperative Purchasing Master Agreement, except to the
extent such claims are caused by Enterprise Services, any Purchasing Entity, or NASPO's'
negligence. Contractor shall take all steps needed to keep Purchasing Entity's property free
of liens arising from Contractor's activities, and promptly obtain or bond the release of any
such liens that may be filed. Unless otherwise agreed in writing, this section is not subject to
any limitations of liability in this Cooperative Purchasing Master Agreement or in any other
document executed in conjunction with this Cooperative Purchasing Master Agreement.
16. DISPUTE RESOLUTION. The parties shall cooperate to resolve any dispute pertaining to this Cooperative
Purchasing Master Agreement efficiently, as timely as practicable, and at the lowest possible level
with authority to resolve such dispute. If, however, a dispute persists and cannot be resolved, it may
be escalated within each organization. In such situation, upon notice by either party, each party,
within five (5) business days shall reduce its description of the dispute to writing and deliver it to the
other party. The receiving party then shall have three (3) business days to review and respond in
writing. In the event that the parties cannot then agree on a resolution of the dispute, the parties
shall schedule a conference between the respective senior managers of each organization to attempt
to resolve the dispute. In the event the parties cannot agree, either party may resort to court to
resolve the dispute.
17. GENERAL PROVISIONS.
17.1. TIME Is OF THE ESSENCE. Time is of the essence for each and every provision of this Cooperative
Purchasing Master Agreement.
17.2. COMPLIANCE WITH LAW. Contractor shall comply with all applicable law.
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17.3. INTEGRATED AGREEMENT. This Cooperative Purchasing Master Agreement constitutes the entire
agreement and understanding of the parties with respect to the subject matter and
supersedes all prior negotiations, representations, and understandings between them. There
are no representations or understandings of any kind not set forth herein.
17.4. AMENDMENT OR MODIFICATION. Except as set forth herein, this Cooperative Purchasing Master
Agreement may not be amended or modified except in writing and signed by a duly
authorized representative of each party.
17.5. AUTHORITY. Each party to this Cooperative Purchasing Master Agreement, and each individual
signing on behalf of each party, hereby represents and warrants to the other that it has full
power and authority to enter into this Cooperative Purchasing Master Agreement and that its
execution, delivery, and performance of this Cooperative Purchasing Master Agreement has
been fully authorized and approved, and that no further approvals or consents are required
to bind such party.
17.6. No AGENCY. The parties agree that no agency, partnership, or joint venture of any kind shall
be or is intended to be created by or under this Cooperative Purchasing Master Agreement.
Neither party is an agent of the other party nor authorized to obligate it.
17.7. ASSIGNMENT. Contractor may not assign its rights under this Cooperative Purchasing Master
Agreement without Enterprise Services' prior written consent and Enterprise Services may
consider any attempted assignment without such consent to be void; Provided, however,
that, if Contractor provides written notice to Enterprise Services within thirty (30) days,
Contractor may assign its rights under this Cooperative Purchasing Master Agreement in full
to any parent, subsidiary, or affiliate of Contractor that controls or is controlled by or under
common control with Contractor, is merged or consolidated with Contractor, or purchases a
majority or controlling interest in the ownership or assets of Contractor. Unless otherwise
agreed, Contractor guarantees prompt performance of all obligations under this Cooperative
Purchasing Master Agreement notwithstanding any prior assignment of its rights.
17.8. BINDING EFFECT;SUCCESSORS&ASSIGNS. This Cooperative Purchasing Master Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their respective
successors and assigns.
17.9. ASSIGNMENT OF ANTITRUST RIGHTS REGARDING PURCHASED GOODS/SERVICES. Contractor irrevocably
assigns to Enterprise Services, on behalf of the State of Washington, any claim for relief or
cause of action which the Contractor now has or which may accrue to the Contractor in the
future by reason of any violation of state or federal antitrust laws in connection with any
goods and/or services provided in Washington for the purpose of carrying out the
Contractor's obligations under this Cooperative Purchasing Master Agreement, including, at
Enterprise Services' option, the right to control any such litigation on such claim for relief or
cause of action.
17.10. FEDERAL FUNDS. To the extent that any Purchasing Entity uses federal funds to purchase goods
and/or services pursuant to this Cooperative Purchasing Master Agreement, such Purchasing
Entity shall specify, with its order, any applicable requirement or certification that must be
satisfied by Contractor at the time the order is placed or upon delivery.
17.11. SEVERABILITY. If any provision of this Cooperative Purchasing Master Agreement is held to be
invalid or unenforceable, such provision shall not affect or invalidate the remainder of this
Cooperative Purchasing Master Agreement, and to this end the provisions of this Cooperative
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Purchasing Master Agreement are declared to be severable. If such invalidity becomes known
or apparent to the parties,the parties agree to negotiate promptly in good faith in an attempt
to amend such provision as nearly as possible to be consistent with the intent of this
Cooperative Purchasing Master Agreement.
17.12. WAIVER. Failure of either party to insist upon the strict performance of any of the terms and
conditions hereof, or failure to exercise any rights or remedies provided herein or by law, or
to notify the other party in the event of breach, shall not release the other party of any of its
obligations under this Cooperative Purchasing Master Agreement, nor shall any purported
oral modification or rescission of this Cooperative Purchasing Master Agreement by either
party operate as a waiver of any of the terms hereof. No waiver by either party of any breach,
default, or violation of any term, warranty, representation, contract, covenant, right,
condition, or provision hereof shall constitute waiver of any subsequent breach, default, or
violation of the same or other term, warranty, representation, contract, covenant, right,
condition, or provision.
17.13. SURVIVAL. All representations, warranties, covenants, agreements, and indemnities set forth
in or otherwise made pursuant to this Cooperative Purchasing Master Agreement shall survive
and remain in effect following the expiration or termination of this Cooperative Purchasing
Master Agreement,Provided, however,that nothing herein is intended to extend the survival
beyond any applicable statute of limitations periods.
17.14. GOVERNING LAW. The validity,construction,performance,and enforcement of this Cooperative
Purchasing Master Agreement shall be governed by and construed in accordance with the
laws of the State of Washington, without regard to its choice of law rules. The validity,
construction, and effect of any Participating Addendum pertaining to the Cooperative
Purchasing Master Agreement or Order placed pursuant to such Participating Addendum shall
be governed by and construed in accordance with the laws of the Participating Entity's or
Purchasing Entity's State.
17.15. JURISDICTION&VENUE. In the event that any action is brought to enforce any provision of this
Cooperative Purchasing Master Agreement, the parties agree to exclusive jurisdiction in
Thurston County Superior Court for the State of Washington and agree that in any such action
venue shall lie exclusively at Olympia, Washington; Provided, however, that venue for any
claim, dispute, or action concerning any Order placed against the Cooperative Purchasing
Master Agreement or the effect of a Participating Addendum shall be in the Purchasing
Entity's State.
17.16. SOVEREIGN IMMUNITY. In no event shall this Cooperative Purchasing Master Agreement, any
Participating Addendum or any Purchase Order issued thereunder, or any act of the Lead
State, a Participating Entity, or a Purchasing Entity be a waiver of any form of defense or
immunity, whether sovereign immunity, governmental immunity, immunity based on the
Eleventh Amendment to the Constitution of the United States or otherwise, from any claim
or from the jurisdiction of any court. This section applies to a claim brought against the
Participating Entities who are states only to the extent Congress has appropriately abrogated
the state's sovereign immunity and is not consent by the state to be sued in federal court.
17.17. ATTORNEYS'FEES. Should any legal action or proceeding be commenced by either party in order
to enforce this Cooperative Purchasing Master Agreement or any provision hereof, or in
connection with any alleged dispute,breach,default,or misrepresentation in connection with
any provision herein contained, the prevailing party shall be entitled to recover reasonable
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attorneys' fees and costs incurred in connection with such action or proceeding, including
costs of pursuing or defending any legal action, including, without limitation, any appeal,
discovery, or negotiation and preparation of settlement arrangements, in addition to such
other relief as may be granted.
17.18. FAIR CONSTRUCTION & INTERPRETATION. The provisions of this Cooperative Purchasing Master
Agreement shall be construed as a whole according to their common meaning and not strictly
for or against any party and consistent with the provisions contained herein in order to
achieve the objectives and purposes of this Cooperative Purchasing Master Agreement. Each
party hereto and its counsel has reviewed and revised this Cooperative Purchasing Master
Agreement and agrees that the normal rules of construction to the effect that any ambiguities
are to be resolved against the drafting party shall not be construed in the interpretation of
this Cooperative Purchasing Master Agreement. Each term and provision of this Cooperative
Purchasing Master Agreement to be performed by either party shall be construed to be both
a covenant and a condition.
17.19. FURTHER ASSURANCES. In addition to the actions specifically mentioned in this Cooperative
Purchasing Master Agreement, the parties shall each do whatever may reasonably be
necessary to accomplish the transactions contemplated in this Cooperative Purchasing
Master Agreement including, without limitation, executing any additional documents
reasonably necessary to effectuate the provisions and purposes of this Cooperative
Purchasing Master Agreement.
17.20. EXHIBITS. All exhibits referred to herein are deemed to be incorporated in this Cooperative
Purchasing Master Agreement in their entirety.
17.21. CAPTIONS & HEADINGS. The captions and headings in this Cooperative Purchasing Master
Agreement are for convenience only and are not intended to, and shall not be construed to,
limit, enlarge, or affect the scope or intent of this Cooperative Purchasing Master Agreement
nor the meaning of any provisions hereof.
17.22. ELECTRONIC SIGNATURES. An electronic signature of this Cooperative Purchasing Master
Agreement or any other ancillary agreement shall be deemed to have the same legal effect
as delivery of an original executed copy of this Cooperative Purchasing Master Agreement or
such other ancillary agreement for all purposes.
COOPERATIVE PURCHASING MASTER AGREEMENT No.00318 PUBLIC SAFETY COMMUNICATIONS PRODUCTS,SERVICES Bt SOLUTIONS 22
(Rev.2020-03-11)
17.23. COUNTERPARTS. This Cooperative Purchasing Master Agreement may be executed in any
number of counterparts, each of which shall be deemed an original and all of which
counterparts together shall constitute the same instrument which may be sufficiently
evidenced by one counterpart. Execution of this Cooperative Purchasing Master Agreement
at different times and places by the parties shall not affect the validity thereof so long as all
the parties hereto execute a counterpart of this Cooperative Purchasing Master Agreement.
EXECUTED as of the date and year first above written.
STATE OF WASHINGTON ERGOFLEX SYSTEMS INC. DBA XYBIX SYSTEMS, INC.
DEPARTMENT OF ENTERPRISE SERVICES A COLORADO CORPORATION
c./vv�1i`�Z
By: By:
Elena McGrew Kenneth R Carson
Its: Acting Statewide Enterprise Procurement Its: Executive Vice President
Manager
COOPERATIVE PURCHASING MASTER AGREEMENT NO.00318 PUBLIC SAFETY COMMUNICATIONS PRODUCTS,SERVICES&SOLUTIONS 23
(Rev.2020-03-11)
Exhibit A
INSURANCE REQUIREMENTS
1. INSURANCE OBLIGATION. During the Term of this Cooperative Purchasing Master Agreement,
Contractor shall possess and maintain in full force and effect, at Contractor's sole expense, the
following insurance coverages:
a. COMMERCIAL GENERAL LIABILITY INSURANCE. Commercial general liability insurance (and, if
necessary, commercial umbrella liability insurance) covering bodily injury, property
damage, products/completed operations, personal injury, and advertising injury liability
on an'occurrence form'that shall be no less comprehensive and no more restrictive than
the coverage provided by Insurance Services Office (ISO) under the most recent version
of form CG 00 01 in the amount of not less than $2,000,000 per occurrence and
$4,000,000 general aggregate. This coverage shall include blanket contractual liability
coverage. This coverage shall include a cross-liability clause or separation of insured
condition.
b. WORKERS' COMPENSATION INSURANCE. Contractor shall comply with applicable Workers'
Compensation or Industrial Accident insurance providing benefits as required by law.
c. EMPLOYERS'LIABILITY(STOP GAP)INSURANCE. Employers'liability insurance(and, if necessary,
commercial umbrella liability insurance) with limits not less than $1,000,000 each
accident for bodily injury by accident, $1,000,000 each employee for bodily injury by
disease, and $1,000,000 bodily injury by disease policy limit.
The insurance coverage limits set forth herein are the minimum. Contractor's insurance coverage
shall be no less than the minimum amounts specified. Coverage in the amounts of these minimum
limits, however,shall not be construed to relieve Contractor from liability in excess of such limits.
Contractor waives all rights against the State of Washington for the recovery of damages to the
extent such damages are covered by any insurance required herein.
2. INSURANCE CARRIER RATING. Coverages provided by the Contractor must be underwritten by an
insurance company deemed acceptable to the State of Washington's Office of Risk Management.
Insurance coverage shall be provided by companies authorized to do business within the State of
Washington and rated A- Class VII or better in the most recently published edition of Best's
Insurance Rating. Enterprise Services reserves the right to reject all or any insurance carrier(s)
with an unacceptable financial rating.
3. ADDITIONAL INSURED. Commercial General Liability,Commercial Automobile Liability,and Pollution
Liability Insurance shall include the State of Washington and all authorized Purchasing Entity(and
their agents, officers, and employees) as Additional Insureds evidenced by copy of the Additional
Insured Endorsement attached to the Certificate of Insurance on such insurance policies.
4. CERTIFICATE OF INSURANCE. Prior to execution of the Cooperative Purchasing Master Agreement,
Contractor shall furnish to Enterprise Services, as evidence of the insurance coverage required by
this Cooperative Purchasing Master Agreement, a certificate of insurance satisfactory to
Enterprise Services that insurance, in the above-stated kinds and minimum amounts, has been
secured. In addition, no less than ten (10) days prior to coverage expiration, Contractor shall
COOPERATIVE PURCHASING MASTER AGREEMENT NO.00318 PUBLIC SAFETY COMMUNICATIONS PRODUCTS,SERVICES&SOLUTIONS 24
(Rev.2020-03-11)
furnish to Enterprise Services an updated or renewed certificate of insurance, satisfactory to
Enterprise Services, that insurance, in the above-stated kinds and minimum amounts, has been
secured. Failure to maintain or provide proof of insurance, as required, will result in contract
cancellation. All policies and certificates of insurance shall include the Cooperative Purchasing
Master Agreement number stated on the cover of this Cooperative Purchasing Master
Agreement. All certificates of Insurance and any related insurance documents shall be delivered
to Enterprise Services by U.S. mail, postage prepaid, or sent via email, and shall be sent to the
address or email address set forth below or to such other address or email address as Enterprise
Services may specify in writing:
US Mail: Contracts & Procurement—Cooperative Purchasing Master
Agreement Insurance Certificate
Cooperative Purchasing Master Agreement No.00318—Public
Safety Communications Products, Services and Solutions
Attn: Team Cypress
Washington Dept. of Enterprise Services
PO Box 41411
Olympia, WA 98504-1411
Email: DESContractsTeamCypress@des.wa.gov
Note: For Email notice, the Email Subject line must state:
Cooperative Purchasing Master Agreement Insurance Certificate—
Cooperative Purchasing Master Agreement No. 00318—Public
Safety Communications Products, Services and Solutions
5. PRIMARY COVERAGE. Contractor's insurance shall apply as primary and shall not seek contribution
from any insurance or self-insurance maintained by, or provided to,the additional insureds listed
above including, at a minimum, the State of Washington and/or any Purchasing Entity. All
insurance or self-insurance of the State of Washington and/or Purchasing Entity shall be excess of
any insurance provided by Contractor or subcontractors.
6. SUBCONTRACTORS. Contractor shall include all subcontractors as insureds under all required
insurance policies. Alternatively, prior to utilizing any subcontractor, Contractor shall cause any
such subcontractor to provide insurance that complies will all applicable requirements of the
insurance set forth herein and shall furnish separate Certificates of Insurance and endorsements
for each subcontractor. Each subcontractor must comply fully with all insurance requirements
stated herein. Failure of any subcontractor to comply with insurance requirements does not limit
Contractor's liability or responsibility.
7. WAIVER OF SUBROGATION. Contractor waives all rights of subrogation against the State of
Washington and any Purchasing Entity for the recovery of damages to the extent such damages
are or would be covered by the insurance specified herein.
8. NOTICE OF CHANGE OR CANCELLATION. There shall be no cancellation without at least thirty(30) days
prior written Legal Notice by Contractor to Enterprise Services. Failure to provide such notice, as
required, shall constitute default by Contractor. Any such written notice shall include the
Cooperative Purchasing Master Agreement number stated on the cover of this Cooperative
Purchasing Master Agreement.
COOPERATIVE PURCHASING MASTER AGREEMENT No.00318 PUBLIC SAFETY COMMUNICATIONS PRODUCTS,SERVICES&SOLUTIONS 25
(Rev.2020-03-11)
9. EXTENDED REPORTING PERIOD. If any required insurance coverage is on a claims-made basis (rather
than occurrence), Contractor shall maintain such coverage for a period of no less than three (3)
years following expiration or termination of the Cooperative Purchasing Master Agreement.
COOPERATIVE PURCHASING MASTER AGREEMENT NO.00318 PUBLIC SAFETY COMMUNICATIONS PRODUCTS,SERVICES&SOLUTIONS 26
(Rev.2020-03-11)
DocuSign Envelope ID: Cl4A8171-FD22-480A-9DED-4B8A67354435
Department of
MANAGEMENT
SERVICES
We serve those who serve Florida
Alternate Contract Source (ACS)
No. 43190000-22-NASPO-ACS
For
Public Safety Communications Products, Services, and Solutions
This Alternate Contract Source No. 43190000-22-NASPO-ACS, Public Safety Communications
Products, Services, and Solutions (Contract), is between the Department of Management
Services (Department), an agency of the State of Florida (State), located at 4050 Esplanade Way,
Tallahassee, FL 32399 and ErgoFlex Systems, Inc dba Xybix Systems, Inc. (Contractor), located
at 8207 Southpark Circle, Littleton CO 80120, collectively referred to herein as the "Parties."
WHEREAS, the Department is authorized by section 287.042(16), Florida Statutes:
To evaluate contracts let by the Federal Government, another state, or a political subdivision for
the provision of commodities and contract services, and, if it is determined by the Secretary of
Management Services in writing to be cost-effective and the best value to the state, to enter into
a written agreement authorizing an agency to make purchases under such contract.
WHEREAS, the State of Washington, competitively procured public safety communication
products, services, and solutions and executed Master Agreement 00318, (Master Agreement),
with the Contractor;
WHEREAS, the Secretary of Management Services has evaluated the Master Agreement and
determined that use of the Master Agreement is cost-effective and the best value to the state.
NOW THEREFORE, in consideration of the mutual promises contained herein, the receipt and
sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Term and Effective Date.
The Master Agreement begins January 1, 2022, and its term currently ends on December 31,
2026. The Master Agreement has two years of renewals available. The Contract will become
effective on the date signed by all Parties. The Contract will expire on December 31, 2026,
unless terminated earlier or renewed in accordance with Exhibit A or Exhibit B, Special
Contract Conditions, as applicable.
2. Order of Precedence.
This Contract document and the attached exhibits constitute the Contract and the entire
understanding of the Parties. Exhibits A, B, C, and this Contract document constitute the
Participating Addendum to the Master Agreement and modify or supplement the terms and
conditions of the Master Agreement. All exhibits listed below are incorporated by reference
Page 1 of 3
DocuSign Envelope ID:C14A8171-FD22-480A-9DED-4B8A67354435
Alternate Contract Source (ACS)
No. 43190000-22-NASPO-ACS
For
Public Safety Communications Products, Services, and Solutions
into, and form part of,this Contract. In the event of a conflict, the following order of precedence
shall apply:
a) This Contract document
b) Exhibit A: Additional Special Contract Conditions
c) Exhibit B: Special Contract Conditions
d) Exhibit C: Price Sheet
e) Exhibit D: Master Agreement (including any amendments made prior to the effective
date of this Contract and any subsequent amendments added to this Contract in
accordance with the Modifications Section listed below)
Where the laws and regulations of a state other than the State of Florida are cited or
referenced in the Master Agreement, such citation or reference shall be replaced by the
comparable Florida law or regulation. The lack of a comparable Florida law does not limit the
effectiveness of any provision in the Master Agreement except to the extent the provision
conflicts with this Contract.
3. Purchases off this Contract.
Upon execution of this Contract, agencies, as defined in section 287.012, Florida Statutes,
may purchase products and services under this Contract. Any entity making a purchase off of
this Contract acknowledges and agrees to be bound by the terms and conditions of this
Contract. The Contractor shall adhere to the terms included in any contract or purchase orders
issued pursuant to this Contract.
4. Primary Contacts.
Department's Contract Manager:
Christopher McMullen
Division of State Purchasing
Florida Department of Management Services
4050 Esplanade Way, Suite 360
Tallahassee, Florida 32399-0950
Telephone: (850) 922-9867
Email: christopher.mcmullen@dms.fl.gov
Contractor's Contract Manager:
Kenneth Carson
ErgoFlex Systems, Inc.
8207 Southpark Circle.
Littleton, CO 80120
(303) 683-5656
kenc@xybix.com
Page 2 of 3
DocuSign Envelope ID. C14A8171-FD22-480A-9DED-4B8A67354435
Alternate Contract Source (ACS)
No. 43190000-22-NASPO-ACS
For
Public Safety Communications Products, Services, and Solutions
5. Modifications.
Any amendments to this Contract must be in writing and signed by the Parties. If amendments
are made to the Master Agreement after the effective date of this Contract, the Contractor shall:
1) notify the Department of such amendments; and 2) provided the Department is amenable
to incorporating the amendments into this Contract, enter into a written amendment with the
Department reflecting the addition of such amendments to this Contract.
IN WITNESS THEREOF, the Parties hereto have caused this Contract to be executed by their
duly authorized undersigned officials.
ERGOFLEX SYSTEMS, INC. DEPARTMENT OF MANAGEMENT SERVICES
,dbaoxY431IXy:SYSTEMS, INC.
�l L� C arSbin,
eo71 7:e2noc1ao —Name: Ken Carson J. Todd Inman, Secretary
Title: Owner
1/31/2022 111:57 AM EST
Date: Date:
Page 3 of 3
DocuSign Envelope ID:C14A8171-FD22-480A-9DED-4B8A67354435
Alternate Contract Source (ACS)
No. 43190000-22-NASPO-ACS
For
Public Safety Communications Products, Services, and Solutions
5. Modifications.
Any amendments to this Contract must be in writing and signed by the Parties. If amendments
are made to the Master Agreement after the effective date of this Contract, the Contractor shall:
1) notify the Department of such amendments; and 2) provided the Department is amenable
to incorporating the amendments into this Contract, enter into a written amendment with the
Department reflecting the addition of such amendments to this Contract.
IN WITNESS THEREOF, the Parties hereto have caused this Contract to be executed by their
duly authorized undersigned officials.
ERGOFLEX SYSTEMS, INC. DEP NT OF MANAGEMENT SERVICES
XY9BIX,SYSTEMS, INC.
CC314'C0.h06-6C...
Name: Ken Carson J. Todd Inman, Secretary
Title: Owner
1/31/2022 I 11:57 AM EST P. j ( / -.O a
Date: Date:
Page 3 of 3
DocuSign Envelope ID:C14A8171-FD22-480A-9DED-4B8A67354435
Department of
MANAGEMENT
SERVICES
We serve those who serve Florida
ADDITIONAL SPECIAL CONTRACT CONDITIONS
EXHIBIT A
The Contractor and agencies, as defined in section 287.012, Florida Statutes acknowledge and
agree to be bound by the terms and conditions of the Master Contract except as otherwise
specified in the Contract, which includes the Special Contract Conditions and these Additional
Special Contract Conditions.
A. Orders: Contractor must be able to accept the State of Florida Purchasing Card and
MyFloridaMarketPlace (MFMP) purchase orders.
B. Contractor and Subcontractors, Affiliates, Partners, Resellers, Distributors, and Dealers:
By execution of a Contract, the Contractor acknowledges that it will not be released of its
contractual obligations to the Department or state agencies because of any failure of an
affiliate, partner, subcontractor, reseller, distributor, or dealer. The Contractor is
responsible for ensuring that its affiliates, partners, subcontractors, resellers, distributors,
and dealers providing commodities and performing services in furtherance of the Contract
do so in compliance with the terms and conditions of the Contract. The Contractor is fully
responsible for satisfactory completion of all work performed under the Contract.
C. Preferred Pricing Affidavit: It is the responsibility of the Contractor to provide a completed
Preferred Pricing Affidavit upon Contract execution and annually thereafter throughout the
Contract term in accordance with the Special Contract Conditions.
D. Purchases Prerequisites: Contractor must ensure that entities receiving payment directly
from Customers under this Contract must have met the following requirements:
• Have an active registration with the Florida Department of State, Division of
Corporations (www.sunbiz.orq), 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)
E. Punchout Catalog and Electronic Invoicing.
The Contractor is required/encouraged to provide a MFMP punchout catalog. The
Contractor will have 90 calendar days to implement a mandatory punchout catalog for this
Contract. The punchout catalog provides an alternative mechanism for suppliers to offer
the State access to Products awarded under the Contract. The punchout catalog also
allows for direct communication between the MFMP eProcurement System and a
supplier's Enterprise Resource Planning (ERP) system, which can reflect real-time
Product inventory/availability information.
1
DocuSign Envelope ID:C14A8171-FD22-480A-9DED-4B8A67354435
Through utilization of the punchout catalog model, a Florida buyer will "punch out"to a
supplier's website. Using the search tools on the supplier's Florida punchout catalog site,
the user selects the desired Products. When complete, the user exits the supplier's
punchout catalog site and the shopping cart (full of Products) is "brought back" to MFMP.
No orders are sent to a supplier when the user exits the supplier's punchout catalog site.
Instead, the chosen Products are "brought back" to MFMP as line items in a purchase
order. The user can then proceed through the normal workflow steps, which may include
adding/editing the Products (i.e., line items) in the purchase order. An order is not
submitted to a supplier until the user approves and submits the purchase order, at which
point the supplier receives an email with the order details.
The Contractor may supply electronic invoices in lieu of paper-based invoices for those
transactions processed through MFMP. Electronic invoices may be submitted to the
agency through one of the mechanisms as listed below:
1) EDI (Electronic Data Interchange)
This standard establishes the data contents of the Invoice Transaction Set(810) for use
within the context of an Electronic Data Interchange (EDI) environment. This transaction
set can be used for invoicing via the Ariba Network (AN)for catalog and non-catalog
goods and services.
2) PO Flip via AN
This online process allows Contractors to submit invoices via the AN for catalog and
non-catalog goods and services. Contractors have the ability to create an invoice directly
from their inbox in their AN account by simply "flipping" the PO into an invoice. This
option does not require any special software or technical capabilities.
The Contractor warrants and represents that it is authorized and empowered to and
hereby grants the State and the third-party provider of MFMP, a State contractor, the
right and license to use, reproduce, transmit, distribute, and publicly display within
MFMP. In addition, the Contractor warrants and represents that it is authorized and
empowered to and hereby grants the State and the third-party provider the right and
license to reproduce and display within MFMP the Contractor's trademarks, system
marks, logos, trade dress, or other branding designation that identifies the products
made available by the Contractor under the Contract.
F. Contract Reporting: The Contractor shall provide the Department the following accurate
and complete reports associated with this Contract.
1) Contract Quarterly Sales Reports. The Contractor shall submit complete Quarterly
Sales Reports to the Department's Contract Manager 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).
Reports must be submitted in MS Excel using the DMS Quarterly Sales Report Format,
which can be accessed at https://www.dms.myflorida.com/business operations/
state purchasing/vendor resources/quarterly sales report format. 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
Additional Special Contract Conditions (approved by State Purchasing, 8/12/2021)
DocuSign Envelope ID:Cl4A8171-FD22-480A-9DED-4B8A67354435
from the Department's Contract Manager. If no orders are received during the quarter,
the Contractor must email the DMS Contract Manager confirming there was no activity.
2) Certified and Minority Business Enterprises Reports. Upon Customer request, the
Contractor shall report to each Customer spend with certified and other minority
business enterprises in the provision of commodities or services related to the
Customer orders. These reports shall include the period covered; the name, minority
code, and Federal Employer Identification Number of each minority business
enterprise utilized during the period; commodities and services provided by the
minority business enterprise; and the amount paid to each minority business
enterprise on behalf of the Customer.
3) Ad Hoc Sales Reports. The Department may require additional Contract sales
information such as copies of purchase orders or ad hoc sales reports. The Contractor
shall submit these documents and reports in the format acceptable to the Department
and within the timeframe specified by the Department.
4) MFMP Transaction Fee Reports. The Contractor shall submit complete monthly MFMP
Transaction Fee Reports to the Department. Reports are due 15 calendar days after
the end of each month. Information on how to submit MFMP Transaction Fee Reports
online can be located at https://www.dms.myflorida.com/business operations/state
purchasing/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.
G. Financial Consequences: The Department reserves the right to impose financial
consequences when the Contractor fails to comply with the requirements of the Contract.
The following financial consequences will apply for the Contractor's non-performance
under the Contract. The Customer and the Contractor may agree to add additional
Financial Consequences on an as-needed basis beyond those stated herein to apply to
that Customer's resultant contract or purchase order. The State of Florida reserves the
right to withhold payment or implement other appropriate remedies, such as Contract
termination or nonrenewal, when the Contractor has failed to comply with the provisions
of the Contract. The Contractor and the Department agree that financial consequences for
non-performance are an estimate of damages which are difficult to ascertain and are not
penalties.
The financial consequences below will be paid and received by the Department of
Management Services within 30 calendar days from the due date specified by the
Department. These financial consequences below are individually assessed for failures
over each target period beginning with the first full month or quarter of the Contract
performance and every month or quarter, respectively, thereafter.
Additional Special Contract Conditions (approved by State Purchasing, 8/12/2021)
DocuSign Envelope ID:C14A8171-FD22-480A-9DED-4B8A67354435
Financial Consequences Chart
Financial
Performance Performance Due Consequence for Non-
Deliverable Performance /Not
Metric Date Received by the
Contract Manager
Contractor will All Quarterly Sales Completed reports $250 per day late
timely submit Reports will be are due on or
complete Quarterly submitted timely before the 30th
Sales Reports with the required calendar day after
information the close of each
State fiscal quarter
Contractor will All MFMP Completed reports $100 per day late
timely submit Transaction Fee are due on or
complete MFMP Reports will be before the 15th
Transaction Fee submitted timely calendar day after
Reports with the required the end of each
information month
No favorable action will be considered when Contractor has outstanding Contract
Quarterly Sales Reports, MFMP Transaction Fee Reports, or any other
documentation owed to the Department or Customer, to include fees / monies, that
is required under this Contract.
H. Business Review Meetings: Both the Department and Customer reserve the right to
schedule business review meetings. The Department or Customer may specify the format
or agenda for the meeting. At a minimum, the Business Review Meeting may include the
following topics:
a. Contract compliance
b. Contract savings (in dollar amount and cost avoidance)
c. Spend reports by Customer
d. Recommendations for improved compliance and performance
I. Special Contract Conditions revisions: the corresponding subsections of the Special
Contract Conditions referenced below are replaced in their entirety with the following:
2.2 Renewal.
Upon written agreement, the Department and the Contractor may renew the Contract in whole
or in part only as set forth in the Contract documents, and in accordance with section
287.057(14), F.S.
3.7 Transaction Fees.
The State of Florida, through the Department of Management Services, has instituted
MyFloridaMarketPlace, a statewide eProcurement system pursuant to section
287.057(24), F.S. All payments issued by Customers to registered Vendors for purchases
of commodities or contractual services will be assessed a one percent transaction fee or
less, or an increased fee as prescribed by rule 60A-1.031, F.A.C., or as may otherwise be
established by law.
Additional Special Contract Conditions (approved by State Purchasing, 8/12/2021)
DocuSign Envelope ID:Cl4A8171-FD22-480A-9DED-4B8A67354435
Vendors must pay the Transaction Fees and agree to automatic deduction of the
Transaction Fees when automatic deduction becomes available. Vendors will submit any
monthly reports required pursuant to the rule. All such reports and payments will be subject
to audit. Failure to comply with the payment of the Transaction Fees or reporting of
transactions will constitute grounds for declaring the Vendor in default and subject the
Vendor to exclusion from business with the State of Florida.
5.1 Conduct of Business.
The Contractor must comply with all laws, rules, codes, ordinances, and licensing
requirements that are applicable to the conduct of its business, including those of federal,
state, and local agencies having jurisdiction and authority. For example, the Contractor must
comply with section 274A of the Immigration and Nationality Act, the Americans with
Disabilities Act, Health Insurance Portability and Accountability Act, if applicable, and all
prohibitions against discrimination on the basis of race, religion, sex, creed, national origin,
handicap, marital status, or veteran's status. The provisions of subparagraphs 287.058(1)(a)-
(c) and (g), F.S., are hereby incorporated by reference.
Nothing contained within this Contract shall be construed to prohibit the Contractor from
disclosing information relevant to performance of the Contract or purchase order to members
or staff of the Florida Senate or Florida House of Representatives.
Pursuant to section 287.057(26), F.S., the Contractor shall answer all questions of, and
ensure a representative will be available to, a continuing oversight team.
The Contractor will comply with all applicable disclosure requirements set forth in section
286.101, F.S. In the event the Department of Financial Services issues the Contractor a final
order determining a third or subsequent violation pursuant to section 286.101(7)(c), F.S., the
Contractor shall immediately notify the Department and applicable Customers and shall be
disqualified from Contract eligibility.
5.4 Convicted, Discriminatory, Antitrust Violator, and Suspended Vendor Lists.
In accordance with sections 287.133, 287.134, and 287.137, F.S., the Contractor is hereby
informed of the provisions of sections 287.133(2)(a), 287.134(2)(a), and 287.137(2)(a), F.S.
For purposes of this Contract, a person or affiliate who is on the Convicted Vendor List, the
Discriminatory Vendor List, or the Antitrust Violator Vendor List may not perform work as a
contractor, supplier, subcontractor, or consultant under the Contract. The Contractor must
notify the Department if it or any of its suppliers, subcontractors, or consultants have been
placed on the Convicted Vendor List, the Discriminatory Vendor List, or the Antitrust Violator
Vendor List during the term of the Contract.
In accordance with section 287.1351, F.S., a vendor placed on the Suspended Vendor List
may not enter into or renew a contract to provide any goods or services to an agency after its
placement on the Suspended Vendor List.
A firm or individual placed on the Suspended Vendor List pursuant to section 287.1351, F.S.,
the Convicted Vendor List pursuant to section 287.133, F.S., the Antitrust Violator Vendor List
pursuant to section 287.137, F.S., or the Discriminatory Vendor List pursuant to section
287.134, F.S., is immediately disqualified from Contract eligibility.
5.6 Cooperation with Inspector General and Records Retention.
Pursuant to section 20.055(5), F.S., the Contractor understands and will comply with its duty
to cooperate with the Inspector General in any investigation, audit, inspection, review, or
Additional Special Contract Conditions (approved by State Purchasing, 8/12/2021)
DocuSign Envelope ID:C14A8171-FD22-480A-9DED-4B8A67354435
hearing. Upon request of the Inspector General or any other authorized State official, the
Contractor must provide any information the Inspector General deems relevant. Such
information may include, but will not be limited to, the Contractor's business or financial
records, documents, or files of any type or form that refer to or relate to the Contract. The
Contractor will retain such records for the longer of five years after the expiration or termination
of the Contract, or the period required by the General Records Schedules maintained by the
Florida Department of State, at the Department of State's Records Management website. The
Contractor agrees to reimburse the State of Florida for the reasonable costs of investigation
incurred by the Inspector General or other authorized State of Florida official for investigations
of the Contractor's compliance with the terms of this or any other agreement between the
Contractor and the State of Florida which results in the suspension or debarment of the
Contractor. Such costs will include but will not be limited to: salaries of investigators, including
overtime; travel and lodging expenses; and expert witness and documentary fees. The
Contractor agrees to impose the same obligations to cooperate with the Inspector General
and retain records on any subcontractors used to provide goods or services under the
Contract.
8.1.1 Termination of Contract.
The Department may terminate the Contract for refusal by the Contractor to comply with this
section by not allowing access to all public records, as defined in Chapter 119, F.S., made or
received by the Contractor in conjunction with the Contract unless the records are exempt
from s. 24(a) of Art. I of the State Constitution and section 119.071(1), F.S.
8.1.2 Statutory Notice.
Pursuant to section 119.0701(2)(a), F.S., for contracts for services with a contractor acting on
behalf of a public agency, as defined in section 119.011(2), F.S., the following applies:
IF THE CONTRACTOR HAS QUESTIONS REGARDING THE
APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE
CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS RELATING
TO THIS CONTRACT, CONTACT THE DEPARTMENT'S CUSTODIAN
OF PUBLIC RECORDS AT PUBLICRECORDS@DMS.FL.GOV, (850)
487-1082 OR 4050 ESPLANADE WAY, SUITE 160, TALLAHASSEE,
FLORIDA 32399-0950.
Pursuant to section 119.0701(2)(b), F.S., for contracts for services with a contractor acting on
behalf of a public agency as defined in section 119.011(2), F.S., the Contractor shall:
(a) Keep and maintain public records required by the public agency to perform the service.
(b) Upon request from the public agency's custodian of public records, provide the public
agency with a copy of the requested records or allow the records to be inspected or copied
within a reasonable time at a cost that does not exceed the cost provided in Chapter 119,
F.S., or as otherwise provided by law.
(c) Ensure that public records that are exempt or confidential and exempt from public records
disclosure are not disclosed except as authorized by law for the duration of the Contract term
and following the completion of the Contract if the Contractor does not transfer the records to
the public agency.
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(d) Upon completion of the Contract, transfer, at no cost, to the public agency all public records
in possession of the Contractor or keep and maintain public records required by the public
agency to perform the service. If the Contractor transfers all public records to the public
agency upon completion of the Contract, the Contractor shall destroy any duplicate public
records that are exempt or confidential and exempt from public records disclosure
requirements. If the Contractor keeps and maintains public records upon completion of the
Contract, the Contractor shall meet all applicable requirements for retaining public records.
All records stored electronically must be provided to the public agency, upon request from the
public agency's custodian of public records, in a format that is compatible with the information
technology systems of the public agency.
12.1 Performance or Compliance Audits.
The Department may conduct or have conducted performance and/or compliance audits of
the Contractor and subcontractors as determined by the Department. The Department may
conduct an audit and review all the Contractor's and subcontractors' data and records that
directly relate to the Contract. To the extent necessary to verify the Contractor's fees and
claims for payment under the Contract, the Contractor's agreements or contracts with
subcontractors, partners, or agents of the Contractor, pertaining to the Contract, may be
inspected by the Department upon fifteen (15) calendar days' notice, during normal working
hours and in accordance with the Contractor's facility access procedures where facility access
is required. Release statements from its subcontractors, partners, or agents are not required
for the Department or its designee to conduct compliance and performance audits on any of
the Contractor's contracts relating to this Contract. The Inspector General, in accordance with
section 5.6, the State of Florida's Chief Financial Officer, and the Office of the Auditor General
shall also have authority to perform audits and inspections.
13.2 E-Verify.
The Contractor and its subcontractors have an obligation to utilize the U.S. Department of
Homeland Security's (DHS) E-Verify system for all newly hired employees in accordance with
section 448.095, F.S. By executing this Contract, the Contractor certifies that it is registered
with, and uses, the E-Verify system for all newly hired employees in accordance with section
448.095, F.S. The Contractor must obtain an affidavit from its subcontractors in accordance
with paragraph (2)(b) of section 448.095, F.S., and maintain a copy of such affidavit for the
duration of the Contract. The Contractor shall provide a copy of its DHS Memorandum of
Understanding (MOU) to the Department's Contract Manager within five days of Contract
execution.
This section serves as notice to the Contractor regarding the requirements of section 448.095,
F.S., specifically sub-paragraph (2)(c)1, and the Department's obligation to terminate the
Contract if it has a good faith belief that the Contractor has knowingly violated section
448.09(1), F.S. If terminated for such reason, the Contractor will not be eligible for award of a
public contract for at least one year after the date of such termination. The Department will
promptly notify the Contractor and order the immediate termination of the contract between
the Contractor and a subcontractor performing work on its behalf for this Contract should the
Department have a good faith belief that the subcontractor has knowingly violated section
448.09(1), F.S.
J. Special Contract Conditions additions: the following subsection is added to the Special
Contract Conditions:
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12.3 Document Inspection.
In accordance with section 216.1366, F.S., the Department or a state agency is authorized to
inspect the: (a) financial records, papers, and documents of the Contractor that are directly
related to the performance of the Contract or the expenditure of state funds; and (b)
programmatic records, papers, and documents of the Contractor which the Department or
state agency determines are necessary to monitor the performance of the Contract or to
ensure that the terms of the Contract are being met. The Contractor shall provide such
records, papers, and documents requested by the Department or a state agency within 10
Business Days after the request is made.
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EXHIBIT B
SPECIAL CONTRACT CONDITIONS
JULY 1, 2019 VERSION
Table of Contents
SECTION 1. DEFINITION 2
SECTION 2. CONTRACT TERM AND TERMINATION. 2
SECTION 3. PAYMENT AND FEES 3
SECTION 4. CONTRACT MANAGEMENT. 4
SECTION 5. COMPLIANCE WITH LAWS 6
SECTION 6. MISCELLANEOUS. 7
SECTION 7. LIABILITY AND INSURANCE 9
SECTION 8. PUBLIC RECORDS,TRADE SECRETS, DOCUMENT MANAGEMENT, AND INTELLECTUAL
PROPERTY 10
SECTION 9. DATA SECURITY. 12
SECTION 10. GRATUITIES, LOBBYING, AND COMMUNICATIONS 13
SECTION 11. CONTRACT MONITORING. 14
SECTION 12. CONTRACT AUDITS 15
SECTION 13. BACKGROUND SCREENING AND SECURITY. 16
SECTION 14. WARRANTY OF CONTRACTOR'S ABILITY TO PERFORM 17
In accordance with Rule 60A-1.002(7), F.A.C., Form PUR 1000 is included
herein by reference but is superseded in its entirety by these Special
Contract Conditions.
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SECTION 1. DEFINITION.
The following definition applies in addition to the definitions in Chapter 287, Florida
Statutes (F.S.), and Rule Chapter 60A-1, Florida Administrative Code (F.A.C.):
1.1 Customer.
The agency or eligible user that purchases commodities or contractual services pursuant
to the Contract.
SECTION 2. CONTRACT TERM AND TERMINATION.
2.1 Initial Term.
The initial term will begin on the date set forth in the Contract documents or on the date
the Contract is signed by all Parties, whichever is later.
2.2 Renewal.
Upon written agreement, the Department and the Contractor may renew the Contract in
whole or in part only as set forth in the Contract documents, and in accordance with
section 287.057(13), F.S.
2.3 Suspension of Work and Termination.
2.3.1 Suspension of Work.
The Department may, at its sole discretion, suspend any or all activities under the
Contract, at any time, when it is in the best interest of the State of Florida to do so. The
Customer may suspend a resulting contract or purchase order, at any time, when in the
best interest of the Customer to do so. The Department or Customer will provide the
Contractor written notice outlining the particulars of the suspension. After receiving a
suspension notice, the Contractor must comply with the notice and will cease the
performance of the Contract or purchase order. Suspension of work will not entitle the
Contractor to any additional compensation. The Contractor will not resume performance
of the Contract or purchase order until so authorized by the Department.
2.3.2 Termination for Convenience.
The Contract may be terminated by the Department in whole or in part at any time, in the
best interest of the State of Florida. If the Contract is terminated before performance is
completed, the Contractor will be paid only for that work satisfactorily performed for
which costs can be substantiated. Such payment, however, may not exceed an amount
which is the same percentage of the Contract price as the amount of work satisfactorily
performed. All work in progress will become the property of the Customer and will be
turned over promptly by the Contractor.
2.3.3 Termination for Cause.
If the performance of the Contractor is not in compliance with the Contract requirements
or the Contractor has defaulted, the Department may:
(a) immediately terminate the Contract;
(b) notify the Contractor of the noncompliance or default, require correction, and specify
the date by which the correction must be completed before the Contract is terminated; or
(c) take other action deemed appropriate by the Department.
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SECTION 3. PAYMENT AND FEES.
3.1 Pricing.
The Contractor will not exceed the pricing set forth in the Contract documents.
3.2 Price Decreases.
The following price decrease terms will apply to the Contract:
3.2.1 Quantity Discounts. Contractor may offer additional discounts for one-time delivery
of large single orders;
3.2.2 Preferred Pricing. The Contractor guarantees that the pricing indicated in this
Contract is a maximum price. Additionally, Contractor's pricing will not exceed the pricing
offered under comparable contracts. Comparable contracts are those that are similar in
size, scope, and terms. In compliance with section 216.0113, F.S., Contractor must
annually submit an affidavit from the Contractor's authorized representative attesting that
the Contract complies with this clause.
3.2.3 Sales Promotions. In addition to decreasing prices for the balance of the Contract
term due to a change in market conditions, the Contractor may conduct sales
promotions involving price reductions for a specified lesser period. The Contractor must
submit documentation identifying the proposed: (1) starting and ending dates of the
promotion, (2) commodities or contractual services involved, and (3) promotional prices
compared to then-authorized prices.
3.3 Payment Invoicing.
The Contractor will be paid upon submission of invoices to the Customer after delivery
and acceptance of commodities or contractual services is confirmed by the Customer.
Invoices must contain sufficient detail for an audit and contain the Contract Number and
the Contractor's Federal Employer Identification Number.
3.4 Purchase Order.
A Customer may use purchase orders to buy commodities or contractual services
pursuant to the Contract and, if applicable, the Contractor must provide commodities or
contractual services pursuant to purchase orders. Purchase orders issued pursuant to
the Contract must be received by the Contractor no later than the close of business on
the last day of the Contract's term. The Contractor is required to accept timely purchase
orders specifying delivery schedules that extend beyond the Contract term even when
such extended delivery will occur after expiration of the Contract. Purchase orders shall
be valid through their specified term and performance by the Contractor, and all terms
and conditions of the Contract shall survive the termination or expiration of the Contract
and apply to the Contractor's performance. The duration of purchase orders for recurring
deliverables shall not exceed the expiration of the Contract by more than twelve months.
Any purchase order terms and conditions conflicting with these Special Contract
Conditions shall not become a part of the Contract.
3.5 Travel.
Travel expenses are not reimbursable unless specifically authorized by the Customer in
writing and may be reimbursed only in accordance with section 112.061, F.S.
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3.6 Annual Appropriation.
Pursuant to section 287.0582, F.S., if the Contract binds the State of Florida or an
agency for the purchase of services or tangible personal property for a period in excess
of one fiscal year, the State of Florida's performance and obligation to pay under the
Contract is contingent upon an annual appropriation by the Legislature.
3.7 Transaction Fees.
The State of Florida, through the Department of Management Services, has instituted
MyFloridaMarketPlace, a statewide eProcurement system pursuant to section
287.057(22), F.S. All payments issued by Customers to registered Vendors for
purchases of commodities or contractual services will be assessed Transaction Fees as
prescribed by rule 60A-1.031, F.A.C., or as may otherwise be established by law.
Vendors must pay the Transaction Fees and agree to automatic deduction of the
Transaction Fees when automatic deduction becomes available. Vendors will submit any
monthly reports required pursuant to the rule. All such reports and payments will be
subject to audit. Failure to comply with the payment of the Transaction Fees or reporting
of transactions will constitute grounds for declaring the Vendor in default and subject the
Vendor to exclusion from business with the State of Florida.
3.8 Taxes.
Taxes, customs, and tariffs on commodities or contractual services purchased under the
Contract will not be assessed against the Customer or Department unless authorized by
Florida law.
3.9 Return of Funds.
Contractor will return any overpayments due to unearned funds or funds disallowed
pursuant to the terms of the Contract that were disbursed to the Contractor. The
Contractor must return any overpayment within forty (40) calendar days after either
discovery by the Contractor, its independent auditor, or notification by the Department or
Customer of the overpayment.
SECTION 4. CONTRACT MANAGEMENT.
4.1 Composition and Priority.
The Contractor agrees to provide commodities or contractual services to the Customer
as specified in the Contract. Additionally, the terms of the Contract supersede the terms
of all prior agreements between the Parties on this subject matter.
4.2 Notices.
All notices required under the Contract must be delivered to the designated Contract
Manager in a manner identified by the Department.
4.3 Department's Contract Manager.
The Department's Contract Manager, who is primarily responsible for the Department's
oversight of the Contract, will be identified in a separate writing to the Contractor upon
Contract signing in the following format:
Department's Contract Manager Name
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Department's Name
Department's Physical Address
Department's Telephone #
Department's Email Address
If the Department changes the Contract Manager, the Department will notify the
Contractor. Such a change does not require an amendment to the Contract.
4.4 Contractor's Contract Manager.
The Contractor's Contract Manager, who is primarily responsible for the Contractor's
oversight of the Contract performance, will be identified in a separate writing to the
Department upon Contract signing in the following format:
Contractor's Contract Manager Name
Contractor's Name
Contractor's Physical Address
Contractor's Telephone #
Contractor's Email Address
If the Contractor changes its Contract Manager, the Contractor will notify the
Department. Such a change does not require an amendment to the Contract.
4.5 Diversity.
4.5.1 Office of Supplier Diversity.
The State of Florida supports its diverse business community by creating opportunities
for woman-, veteran-, and minority-owned small business enterprises to participate in
procurements and contracts. The Department encourages supplier diversity through
certification of woman-, veteran-, and minority-owned small business enterprises and
provides advocacy, outreach, and networking through regional business events. For
additional information, please contact the Office of Supplier Diversity (OSD) at
osdinfo@dms.myflorida.com.
4.5.2 Diversity Reporting.
Upon request, the Contractor will report to the Department its spend with business
enterprises certified by the OSD. These reports must include the time period covered,
the name and Federal Employer Identification Number of each business enterprise
utilized during the period, commodities and contractual services provided by the
business enterprise, and the amount paid to the business enterprise on behalf of each
agency purchasing under the Contract.
4.6 RESPECT.
Subject to the agency determination provided for in section 413.036, F.S., the following
statement applies:
IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT ANY ARTICLES THAT ARE
THE SUBJECT OF, OR REQUIRED TO CARRY OUT, THIS CONTRACT SHALL BE
PURCHASED FROM A NONPROFIT AGENCY FOR THE BLIND OR FOR THE
SEVERELY HANDICAPPED THAT IS QUALIFIED PURSUANT TO CHAPTER 413,
FLORIDA STATUTES, IN THE SAME MANNER AND UNDER THE SAME
PROCEDURES SET FORTH IN SECTION 413.036(1) AND (2), FLORIDA STATUTES;
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AND FOR PURPOSES OF THIS CONTRACT THE PERSON, FIRM, OR OTHER
BUSINESS ENTITY CARRYING OUT THE PROVISIONS OF THIS CONTRACT SHALL
BE DEEMED TO BE SUBSTITUTED FOR THE STATE AGENCY INSOFAR AS
DEALINGS WITH SUCH QUALIFIED NONPROFIT AGENCY ARE CONCERNED.
Additional information about RESPECT and the commodities or contractual services it
offers is available at https://www.respectofflorida.orq.
4.7 PRIDE.
Subject to the agency determination provided for in sections 287.042(1) and 946.515,
F.S., the following statement applies:
IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT ANY ARTICLES WHICH ARE
THE SUBJECT OF, OR REQUIRED TO CARRY OUT, THIS CONTRACT SHALL BE
PURCHASED FROM THE CORPORATION IDENTIFIED UNDER CHAPTER 946, F.S.,
IN THE SAME MANNER AND UNDER THE SAME PROCEDURES SET FORTH IN
SECTION 946.515(2) AND (4), F.S.; AND FOR PURPOSES OF THIS CONTRACT THE
PERSON, FIRM, OR OTHER BUSINESS ENTITY CARRYING OUT THE PROVISIONS
OF THIS CONTRACT SHALL BE DEEMED TO BE SUBSTITUTED FOR THIS
AGENCY INSOFAR AS DEALINGS WITH SUCH CORPORATION ARE CONCERNED.
Additional information about PRIDE and the commodities or contractual services it offers
is available at https://www.pride-enterprises.orq.
SECTION 5. COMPLIANCE WITH LAWS.
5.1 Conduct of Business.
The Contractor must comply with all laws, rules, codes, ordinances, and licensing
requirements that are applicable to the conduct of its business, including those of
federal, state, and local agencies having jurisdiction and authority. For example, the
Contractor must comply with section 274A of the Immigration and Nationality Act, the
Americans with Disabilities Act, Health Insurance Portability and Accountability Act, if
applicable, and all prohibitions against discrimination on the basis of race, religion, sex,
creed, national origin, handicap, marital status, or veteran's status. The provisions of
subparagraphs 287.058(1)(a)-(c), and (g), F.S., are hereby incorporated by reference.
5.2 Dispute Resolution, Governing Law, and Venue.
Any dispute concerning performance of the Contract shall be decided by the
Department's designated Contract Manager, who will reduce the decision to writing and
serve a copy on the Contractor. The decision of the Contract Manager shall be final and
conclusive. Exhaustion of this administrative remedy is an absolute condition precedent
to the Contractor's ability to pursue legal action related to the Contract or any other form
of dispute resolution. The laws of the State of Florida govern the Contract. The Parties
submit to the jurisdiction of the courts of the State of Florida exclusively for any legal
action related to the Contract. Further, the Contractor hereby waives all privileges and
rights relating to venue it may have under Chapter 47, F.S., and all such venue
privileges and rights it may have under any other statute, rule, or case law, including, but
not limited to, those based on convenience. The Contractor hereby submits to venue in
the county chosen by the Department.
5.3 Department of State Registration.
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Consistent with Title XXXVI, F.S., the Contractor and any subcontractors that assert
status, other than a sole proprietor, must provide the Department with conclusive
evidence of a certificate of status, not subject to qualification, if a Florida business entity,
or of a certificate of authorization if a foreign business entity.
5.4 Suspended, Convicted, and Discriminatory Vendor Lists.
In accordance with sections 287.042, 287.133, and 287.134, F.S., an entity or affiliate
who is on the Suspended Vendor List, Convicted Vendor List, or Discriminatory Vendor
List may not perform work as a contractor, supplier, subcontractor, or consultant under
the Contract. The Contractor must notify the Department if it or any of its suppliers,
subcontractors, or consultants have been placed on the Suspended Vendor List,
Convicted Vendor List, or Discriminatory Vendor List during the term of the Contract.
5.5 Scrutinized Companies - Termination by the Department.
The Department may, at its option, terminate the Contract if the Contractor is found to
have submitted a false certification as provided under section 287.135(5), F.S., or been
placed on the Scrutinized Companies with Activities in Sudan List or the Scrutinized
Companies with Activities in the Iran Petroleum Energy Sector List, or been engaged in
business operations in Cuba or Syria, or to have been placed on the Scrutinized
Companies that Boycott Israel List or is engaged in a boycott of Israel.
5.6 Cooperation with Inspector General and Records Retention.
Pursuant to section 20.055(5), F.S., the Contractor understands and will comply with its
duty to cooperate with the Inspector General in any investigation, audit, inspection,
review, or hearing. Upon request of the Inspector General or any other authorized State
official, the Contractor must provide any information the Inspector General deems
relevant to the Contractor's integrity or responsibility. Such information may include, but
will not be limited to, the Contractor's business or financial records, documents, or files
of any type or form that refer to or relate to the Contract. The Contractor will retain such
records for the longer of five years after the expiration of the Contract, or the period
required by the General Records Schedules maintained by the Florida Department of
State, at the Department of State's Records Management website. The Contractor
agrees to reimburse the State of Florida for the reasonable costs of investigation
incurred by the Inspector General or other authorized State of Florida official for
investigations of the Contractor's compliance with the terms of this or any other
agreement between the Contractor and the State of Florida which results in the
suspension or debarment of the Contractor. Such costs will include but will not be limited
to: salaries of investigators, including overtime; travel and lodging expenses; and expert
witness and documentary fees. The Contractor agrees to impose the same obligations to
cooperate with the Inspector General and retain records on any subcontractors used to
provide goods or services under the Contract.
SECTION 6. MISCELLANEOUS.
6.1 Subcontractors.
The Contractor will not subcontract any work under the Contract without prior written
consent of the Department. The Contractor is fully responsible for satisfactory
completion of all its subcontracted work. The Department supports diversity in its
procurements and contracts, and requests that the Contractor offer subcontracting
opportunities to certified woman-, veteran-, and minority-owned small businesses. The
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Contractor may contact the OSD at osdhelp@dms.myflorida.com for information on
certified small business enterprises available for subcontracting opportunities.
6.2 Assignment.
The Contractor will not sell, assign, or transfer any of its rights, duties, or obligations
under the Contract without the prior written consent of the Department. However, the
Contractor may waive its right to receive payment and assign same upon notice to the
Department. In the event of any assignment, the Contractor remains responsible for
performance of the Contract, unless such responsibility is expressly waived by the
Department. The Department may assign the Contract with prior written notice to the
Contractor.
6.3 Independent Contractor.
The Contractor and its employees, agents, representatives, and subcontractors are
independent contractors and not employees or agents of the State of Florida and are not
entitled to State of Florida benefits. The Department and Customer will not be bound by
any acts or conduct of the Contractor or its employees, agents, representatives, or
subcontractors. The Contractor agrees to include this provision in all its subcontracts
under the Contract.
6.4 Inspection and Acceptance of Commodities.
6.4.1 Risk of Loss.
Matters of inspection and acceptance are addressed in section 215.422, F.S. Until
acceptance, risk of loss or damage will remain with the Contractor. The Contractor will
be responsible for filing, processing, and collecting all damage claims. To assist the
Contractor with damage claims, the Customer will: record any evidence of visible
damage on all copies of the delivering carrier's bill of lading; report damages to the
carrier and the Contractor; and provide the Contractor with a copy of the carrier's bill of
lading and damage inspection report.
6.4.2 Rejected Commodities.
When a Customer rejects a commodity, Contractor will remove the commodity from the
premises within ten (10) calendar days after notification of rejection, and the risk of loss
will remain with the Contractor. Commodities not removed by the Contractor within ten
(10) calendar days will be deemed abandoned by the Contractor, and the Customer will
have the right to dispose of such commodities. Contractor will reimburse the Customer
for costs and expenses incurred in storing or effecting removal or disposition of rejected
commodities.
6.5 Safety Standards.
Performance of the Contract for all commodities or contractual services must comply
with requirements of the Occupational Safety and Health Act and other applicable State
of Florida and federal requirements.
6.6 Ombudsman.
A Vendor Ombudsman has been established within the Department of Financial
Services. The duties of this office are found in section 215.422, F.S., which include
disseminating information relative to prompt payment and assisting contractors in
receiving their payments in a timely manner from a Customer. The Vendor Ombudsman
may be contacted at (850) 413-5516.
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6.7 Time is of the Essence.
Time is of the essence regarding every obligation of the Contractor under the Contract.
Each obligation is deemed material, and a breach of any such obligation (including a
breach resulting from untimely performance) is a material breach.
6.8 Waiver.
The delay or failure by the Department or the Customer to exercise or enforce any rights
under the Contract will not constitute waiver of such rights.
6.9 Modification and Severability.
The Contract may only be modified by written agreement between the Department and
the Contractor. Should a court determine any provision of the Contract is invalid, the
remaining provisions will not be affected, and the rights and obligations of the Parties will
be construed and enforced as if the Contract did not contain the provision held invalid.
6.10 Cooperative Purchasing.
Pursuant to their own governing laws, and subject to the agreement of the Contractor,
governmental entities that are not Customers may make purchases under the terms and
conditions contained herein, if agreed to by Contractor. Such purchases are independent
of the Contract between the Department and the Contractor, and the Department is not a
party to these transactions. Agencies seeking to make purchases under this Contract
are required to follow the requirements of Rule 60A-1.045(5), F.A.C.
SECTION 7. LIABILITY AND INSURANCE.
7.1 Workers' Compensation Insurance.
The Contractor shall maintain workers' compensation insurance as required under the
Florida Workers' Compensation Law or the workers' compensation law of another
jurisdiction where applicable. The Contractor must require all subcontractors to similarly
provide workers' compensation insurance for all of the latter's employees. In the event
work is being performed by the Contractor under the Contract and any class of
employees performing the work is not protected under Workers' Compensation statutes,
the Contractor must provide, and cause each subcontractor to provide, adequate
insurance satisfactory to the Department, for the protection of employees not otherwise
protected.
7.2 General Liability Insurance.
The Contractor must secure and maintain Commercial General Liability Insurance,
including bodily injury, property damage, products, personal and advertising injury, and
completed operations. This insurance must provide coverage for all claims that may
arise from performance of the Contract or completed operations, whether by the
Contractor or anyone directly or indirectly employed by the Contractor. Such insurance
must include the State of Florida as an additional insured for the entire length of the
resulting contract. The Contractor is responsible for determining the minimum limits of
liability necessary to provide reasonable financial protections to the Contractor and the
State of Florida under the resulting contract.
7.3 Florida Authorized Insurers.
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All insurance shall be with insurers authorized and eligible to transact the applicable line
of insurance business in the State of Florida. The Contractor shall provide
Certification(s) of Insurance evidencing that all appropriate coverage is in place and
showing the Department to be an additional insured.
7.4 Performance Bond.
Unless otherwise prohibited by law, the Department may require the Contractor to
furnish, without additional cost to the Department, a performance bond or irrevocable
letter of credit or other form of security for the satisfactory performance of work
hereunder. The Department shall determine the type and amount of security.
7.5 Indemnification.
To the extent permitted by Florida law, the Contractor agrees to indemnify, defend, and
hold the Customer and the State of Florida, its officers, employees, and agents harmless
from all fines, claims, assessments, suits, judgments, or damages, including
consequential, special, indirect, and punitive damages, including court costs and
attorney's fees, arising from or relating to violation or infringement of a trademark,
copyright, patent, trade secret, or intellectual property right or out of any acts, actions,
breaches, neglect, or omissions of the Contractor, its employees, agents,
subcontractors, assignees, or delegates related to the Contract, as well as for any
determination arising out of or related to the Contract that the Contractor or Contractor's
employees, agents, subcontractors, assignees, or delegates are not independent
contractors in relation to the Customer. The Contract does not constitute a waiver of
sovereign immunity or consent by the Customer or the State of Florida or its subdivisions
to suit by third parties. Without limiting this indemnification, the Customer may provide
the Contractor (1) written notice of any action or threatened action, (2) the opportunity to
take over and settle or defend any such action at Contractor's sole expense, and (3)
assistance in defending the action at Contractor's sole expense.
7.6 Limitation of Liability.
Unless otherwise specifically enumerated in the Contract or in the purchase order,
neither the Department nor the Customer shall be liable for special, indirect, punitive, or
consequential damages, including lost data or records (unless the Contract or purchase
order requires the Contractor to back-up data or records), even if the Department or
Customer has been advised that such damages are possible. Neither the Department
nor the Customer shall be liable for lost profits, lost revenue, or lost institutional
operating savings. The Department or Customer may, in addition to other remedies
available to them at law or equity and upon notice to the Contractor, retain such monies
from amounts due Contractor as may be necessary to satisfy any claim for damages,
penalties, costs, and the like asserted by or against them. The State may set off any
liability or other obligation of the Contractor or its affiliates to the State against any
payments due the Contractor under any contract with the State.
SECTION 8. PUBLIC RECORDS, TRADE SECRETS, DOCUMENT MANAGEMENT,
AND INTELLECTUAL PROPERTY.
8.1 Public Records.
8.1.1 Termination of Contract.
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The Department may terminate the Contract for refusal by the Contractor to comply with
this section by not allowing access to all public records, as defined in Chapter 119, F. S.,
made or received by the Contractor in conjunction with the Contract.
8.1.2 Statutory Notice.
Pursuant to section 119.0701(2)(a), F.S., for contracts for services with a contractor
acting on behalf of a public agency, as defined in section 119.011(2), F.S., the following
applies:
IF THE CONTRACTOR HAS QUESTIONS REGARDING THE
APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE
CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS
RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN OF
PUBLIC RECORDS AT THE TELEPHONE NUMBER, EMAIL
ADDRESS, AND MAILING ADDRESS PROVIDED IN THE
RESULTING CONTRACT OR PURCHASE ORDER.
Pursuant to section 119.0701(2)(b), F.S., for contracts for services with a contractor
acting on behalf of a public agency as defined in section 119.011(2), F.S., the Contractor
shall:
(a) Keep and maintain public records required by the public agency to perform the
service.
(b) Upon request from the public agency's custodian of public records, provide the public
agency with a copy of the requested records or allow the records to be inspected or
copied within a reasonable time at a cost that does not exceed the cost provided in
Chapter 119, F.S., or as otherwise provided by law.
(c) Ensure that public records that are exempt or confidential and exempt from public
records disclosure are not disclosed except as authorized by law for the duration of the
Contract term and following the completion of the Contract if the Contractor does not
transfer the records to the public agency.
(d) Upon completion of the Contract, transfer, at no cost, to the public agency all public
records in possession of the Contractor or keep and maintain public records required by
the public agency to perform the service. If the Contractor transfers all public records to
the public agency upon completion of the Contract, the Contractor shall destroy any
duplicate public records that are exempt or confidential and exempt from public records
disclosure requirements. If the Contractor keeps and maintains public records upon
completion of the Contract, the Contractor shall meet all applicable requirements for
retaining public records. All records stored electronically must be provided to the public
agency, upon request from the public agency's custodian of public records, in a format
that is compatible with the information technology systems of the public agency.
8.2 Protection of Trade Secrets or Otherwise Confidential Information.
8.2.1 Contractor Designation of Trade Secrets or Otherwise Confidential Information.
If the Contractor considers any portion of materials to be trade secret under section
688.002 or 812.081, F.S., or otherwise confidential under Florida or federal law, the
Contractor must clearly designate that portion of the materials as trade secret or
otherwise confidential when submitted to the Department. The Contractor will be
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responsible for responding to and resolving all claims for access to Contract-related
materials it has designated trade secret or otherwise confidential.
8.2.2 Public Records Requests.
If the Department receives a public records request for materials designated by the
Contractor as trade secret or otherwise confidential under Florida or federal law, the
Contractor will be responsible for taking the appropriate legal action in response to the
request. If the Contractor fails to take appropriate and timely action to protect the
materials designated as trade secret or otherwise confidential, the Department will
provide the materials to the requester.
8.2.3 Indemnification Related to Confidentiality of Materials.
The Contractor will protect, defend, indemnify, and hold harmless the Department for
claims, costs, fines, and attorney's fees arising from or relating to its designation of
materials as trade secret or otherwise confidential.
8.3 Document Management.
The Contractor must retain sufficient documentation to substantiate claims for payment
under the Contract and all other records, electronic files, papers, and documents that
were made in relation to this Contract. The Contractor must retain all documents related
to the Contract for five (5) years after expiration of the Contract or, if longer, the period
required by the General Records Schedules maintained by the Florida Department of
State available at the Department of State's Records Management website.
8.4 Intellectual Property.
8.4.1 Ownership.
Unless specifically addressed otherwise in the Contract, the State of Florida shall be the
owner of all intellectual property rights to all property created or developed in connection
with the Contract.
8.4.2 Patentable Inventions or Discoveries.
Any inventions or discoveries developed in the course, or as a result, of services in
connection with the Contract that are patentable pursuant to 35 U.S.C. § 101 are the
sole property of the State of Florida. Contractor must inform the Customer of any
inventions or discoveries developed or made through performance of the Contract, and
such inventions or discoveries will be referred to the Florida Department of State for a
determination on whether patent protection will be sought. The State of Florida will be
the sole owner of all patents resulting from any invention or discovery made through
performance of the Contract.
8.4.3 Copyrightable Works.
Contractor must notify the Department or State of Florida of any publications, artwork, or
other copyrightable works developed in connection with the Contract. All copyrights
created or developed through performance of the Contract are owned solely by the State
of Florida.
SECTION 9. DATA SECURITY.
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The Contractor will maintain the security of State of Florida data including, but not limited
to, maintaining a secure area around any displayed visible data and ensuring data is
stored and secured when not in use. The Contractor and subcontractors will not perform
any of the services from outside of the United States, and the Contractor will not allow
any State of Florida data to be sent by any medium, transmitted, or accessed outside the
United States due to Contractor's action or inaction. In the event of a security breach
involving State of Florida data, the Contractor shall give notice to the Customer and the
Department within one business day. "Security breach" for purposes of this section will
refer to a confirmed event that compromises the confidentiality, integrity, or availability of
data. Once a data breach has been contained, the Contractor must provide the
Department with a post-incident report documenting all containment, eradication, and
recovery measures taken. The Department reserves the right in its sole discretion to
enlist a third party to audit Contractor's findings and produce an independent report, and
the Contractor will fully cooperate with the third party. The Contractor will also comply
with all HIPAA requirements and any other state and federal rules and regulations
regarding security of information.
SECTION 10. GRATUITIES, LOBBYING, AND COMMUNICATIONS.
10.1 Gratuities.
The Contractor will not, in connection with this Contract, directly or indirectly (1) offer,
give, or agree to give anything of value to anyone as consideration for any State of
Florida officer's or employee's decision, opinion, recommendation, vote, other exercise
of discretion, or violation of a known legal duty, or (2) offer, give, or agree to give to
anyone anything of value for the benefit of, or at the direction or request of, any State of
Florida officer or employee.
10.2 Lobbying.
In accordance with sections 11.062 and 216.347, F.S., Contract funds are not to be used
for the purpose of lobbying the Legislature, the judicial branch, or the Department.
Pursuant to section 287.058(6), F.S., the Contract does not prohibit the Contractor from
lobbying the executive or legislative branch concerning the scope of services,
performance, term, or compensation regarding the Contract after the Contract is
executed and during the Contract term.
10.3 Communications.
10.3.1 Contractor Communication or Disclosure.
The Contractor shall not make any public statements, press releases, publicity releases,
or other similar communications concerning the Contract or its subject matter or
otherwise disclose or permit to be disclosed any of the data or other information
obtained or furnished in compliance with the Contract, without first notifying the
Customer's Contract Manager and securing the Customer's prior written consent.
10.3.2 Use of Customer Statements.
The Contractor shall not use any statement attributable to the Customer or its
employees for the Contractor's promotions, press releases, publicity releases,
marketing, corporate communications, or other similar communications, without first
notifying the Customer's Contract Manager and securing the Customer's prior written
consent.
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SECTION 11. CONTRACT MONITORING.
11.1 Performance Standards.
The Contractor agrees to perform all tasks and provide deliverables as set forth in the
Contract. The Department and the Customer will be entitled at all times, upon request, to
be advised as to the status of work being done by the Contractor and of the details
thereof.
11.2 Performance Deficiencies and Financial Consequences of Non-Performance.
11.2.1 Proposal of Corrective Action Plan.
In addition to the processes set forth in the Contract (e.g., service level agreements), if
the Department or Customer determines that there is a performance deficiency that
requires correction by the Contractor, then the Department or Customer will notify the
Contractor. The correction must be made within a time-frame specified by the
Department or Customer. The Contractor must provide the Department or Customer with
a corrective action plan describing how the Contractor will address all performance
deficiencies identified by the Department or Customer.
11.2.2 Retainage for Unacceptable Corrective Action Plan or Plan Failure.
If the corrective action plan is unacceptable to the Department or Customer, or
implementation of the plan fails to remedy the performance deficiencies, the Department
or Customer will retain ten percent (10%) of the total invoice amount. The retainage will
be withheld until the Contractor resolves the performance deficiencies. If the
performance deficiencies are resolved, the Contractor may invoice the Department or
Customer for the retained amount. If the Contractor fails to resolve the performance
deficiencies, the retained amount will be forfeited to compensate the Department or
Customer for the performance deficiencies.
11.3 Performance Delay.
11.3.1 Notification.
The Contractor will promptly notify the Department or Customer upon becoming aware
of any circumstances that may reasonably be expected to jeopardize the timely and
successful completion (or delivery) of any commodity or contractual service. The
Contractor will use commercially reasonable efforts to avoid or minimize any delays in
performance and will inform the Department or the Customer of the steps the Contractor
is taking or will take to do so, and the projected actual completion (or delivery) time. If
the Contractor believes a delay in performance by the Department or the Customer has
caused or will cause the Contractor to be unable to perform its obligations on time, the
Contractor will promptly so notify the Department and use commercially reasonable
efforts to perform its obligations on time notwithstanding the Department's delay.
11.3.2 Liquidated Damages.
The Contractor acknowledges that delayed performance will damage the
DepartmentCustomer, but by their nature such damages are difficult to ascertain.
Accordingly, the liquidated damages provisions stated in the Contract documents will
apply. Liquidated damages are not intended to be a penalty and are solely intended to
compensate for damages.
11.4 Force Majeure, Notice of Delay, and No Damages for Delay.
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The Contractor will not be responsible for delay resulting from its failure to perform if
neither the fault nor the negligence of the Contractor or its employees or agents
contributed to the delay, and the delay is due directly to fire, explosion, earthquake,
windstorm, flood, radioactive or toxic chemical hazard, war, military hostilities, terrorism,
civil emergency, embargo, riot, strike, violent civil unrest, or other similar cause wholly
beyond the Contractor's reasonable control, or for any of the foregoing that affect
subcontractors or suppliers if no alternate source of supply is available to the Contractor.
The foregoing does not excuse delay which could have been avoided if the Contractor
implemented any risk mitigation required by the Contract. In case of any delay the
Contractor believes is excusable, the Contractor will notify the Department in writing of
the delay or potential delay and describe the cause of the delay either (1) within ten (10)
calendar days after the cause that created or will create the delay first arose, if the
Contractor could reasonably foresee that a delay could occur as a result, or (2) if delay is
not reasonably foreseeable, within five (5) calendar days after the date the Contractor
first had reason to believe that a delay could result. The foregoing will constitute the
Contractor's sole remedy or excuse with respect to delay. Providing notice in strict
accordance with this paragraph is a condition precedent to such remedy. No claim for
damages will be asserted by the Contractor. The Contractor will not be entitled to an
increase in the Contract price or payment of any kind from the Department for direct,
indirect, consequential, impact or other costs, expenses or damages, including but not
limited to costs of acceleration or inefficiency, arising because of delay, disruption,
interference, or hindrance from any cause whatsoever. If performance is suspended or
delayed, in whole or in part, due to any of the causes described in this paragraph, after
the causes have ceased to exist the Contractor will perform at no increased cost, unless
the Department determines, in its sole discretion, that the delay will significantly impair
the value of the Contract to the State of Florida or to Customers, in which case the
Department may (1) accept allocated performance or deliveries from the Contractor,
provided that the Contractor grants preferential treatment to Customers and the
Department with respect to commodities or contractual services subjected to allocation,
or(2) purchase from other sources (without recourse to and by the Contractor for the
related costs and expenses)to replace all or part of the commodity or contractual
services that are the subject of the delay, which purchases may be deducted from the
Contract quantity, or(3) terminate the Contract in whole or in part.
SECTION 12. CONTRACT AUDITS.
12.1 Performance or Compliance Audits.
The Department may conduct or have conducted performance and/or compliance audits
of the Contractor and subcontractors as determined by the Department. The Department
may conduct an audit and review all the Contractor's and subcontractors' data and
records that directly relate to the Contract. To the extent necessary to verify the
Contractor's fees and claims for payment under the Contract, the Contractor's
agreements or contracts with subcontractors, partners, or agents of the Contractor,
pertaining to the Contract, may be inspected by the Department upon fifteen (15)
calendar days' notice, during normal working hours and in accordance with the
Contractor's facility access procedures where facility access is required. Release
statements from its subcontractors, partners, or agents are not required for the
Department or its designee to conduct compliance and performance audits on any of the
Contractor's contracts relating to this Contract. The Inspector General, in accordance
with section 5.6, the State of Florida's Chief Financial Officer, the Office of the Auditor
General also have authority to perform audits and inspections.
SP approved version 7-1-2019 15
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12.2 Payment Audit.
Records of costs incurred under terms of the Contract will be maintained in accordance
with section 8.3 of these Special Contract Conditions. Records of costs incurred will
include the Contractor's general accounting records, together with supporting documents
and records of the Contractor and all subcontractors performing work, and all other
records of the Contractor and subcontractors considered necessary by the Department,
the State of Florida's Chief Financial Officer, or the Office of the Auditor General.
SECTION 13. BACKGROUND SCREENING AND SECURITY.
13.1 Background Check.
The Department or Customer may require the Contractor to conduct background checks
of its employees, agents, representatives, and subcontractors as directed by the
Department or Customer. The cost of the background checks will be borne by the
Contractor. The Department or Customer may require the Contractor to exclude the
Contractor's employees, agents, representatives, or subcontractors based on the
background check results. In addition, the Contractor must ensure that all persons have
a responsibility to self-report to the Contractor within three (3) calendar days any arrest
for any disqualifying offense. The Contractor must notify the Contract Manager within
twenty-four (24) hours of all details concerning any reported arrest. Upon the request of
the Department or Customer, the Contractor will re-screen any of its employees, agents,
representatives, and subcontractors during the term of the Contract.
13.2 E-Verify.
The Contractor must use the U.S. Department of Homeland Security's E-Verify system
to verify the employment eligibility of all new employees hired during the term of the
Contract for the services specified in the Contract. The Contractor must also include a
requirement in subcontracts that the subcontractor must utilize the E-Verify system to
verify the employment eligibility of all new employees hired by the subcontractor during
the Contract term. In order to implement this provision, the Contractor must provide a
copy of its DHS Memorandum of Understanding (MOU) to the Contract Manager within
five (5) calendar days of Contract execution. If the Contractor is not enrolled in DHS E-
Verify System, it will do so within five (5) calendar days of notice of Contract award and
provide the Contract Manager a copy of its MOU within five (5) calendar days of
Contract execution. The link to E-Verify is https://www.uscis.gov/e-verify. Upon each
Contractor or subcontractor new hire, the Contractor must provide a statement within
five (5) calendar days to the Contract Manager identifying the new hire with its E-Verify
case number.
13.3 Disqualifying Offenses.
If at any time it is determined that a person has been found guilty of a misdemeanor or
felony offense as a result of a trial or has entered a plea of guilty or nolo contendere,
regardless of whether adjudication was withheld, within the last six (6) years from the
date of the court's determination for the crimes listed below, or their equivalent in any
jurisdiction, the Contractor is required to immediately remove that person from any
position with access to State of Florida data or directly performing services under the
Contract. The disqualifying offenses are as follows:
(a) Computer related crimes;
(b) Information technology crimes;
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(c) Fraudulent practices;
(d) False pretenses;
(e) Frauds;
(f) Credit card crimes;
(g) Forgery;
(h) Counterfeiting;
(i) Violations involving checks or drafts;
(j) Misuse of medical or personnel records; and
(k) Felony theft.
13.4 Confidentiality.
The Contractor must maintain confidentiality of all confidential data, files, and records
related to the commodities or contractual services provided pursuant to the Contract and
must comply with all state and federal laws, including, but not limited to sections
381.004, 384.29, 392.65, and 456.057, F.S. The Contractor's confidentiality procedures
must be consistent with the most recent version of the Department security policies,
protocols, and procedures. The Contractor must also comply with any applicable
professional standards with respect to confidentiality of information.
SECTION 14. WARRANTY OF CONTRACTOR'S ABILITY TO PERFORM.
The Contractor warrants that, to the best of its knowledge, there is no pending or
threatened action, proceeding, or investigation, or any other legal or financial condition,
that would in any way prohibit, restrain, or diminish the Contractor's ability to satisfy its
Contract obligations. The Contractor warrants that neither it nor any affiliate is currently
on the Suspended Vendor List, Convicted Vendor List, or the Discriminatory Vendor List,
or on any similar list maintained by any other state or the federal government. The
Contractor shall immediately notify the Department in writing if its ability to perform is
compromised in any manner during the term of the Contract.
SP approved version 7-1-2019 17
EXHIBIT B
QUOTE NO.33942
Piggyback Contract—ErgoFlex Systems 9
Aypix ystems, inc. Quote Number: 33942
8207 SouthPark Circle • •
Littleton CO 80120 ' Quote Date: 7/5/2024
Phone: 303-683-5656 Revision: E
Fax: 303-683-5454xyb
Orig Create Date: 7/5/2024
meghand Expires: 10/3/2024
Quote Opp #: 0029257
Terms: NET 30 Page: 1 of 6
QUOTE TO: SHIP TO:
Acct: BOYBEABOFL Boynton Beach Fire Rescue
2080 High Ridge Road
Boynton Beach Police Department Boynton Beach, FL 33426
2100 High Ridge Road USA
Boynton Beach FL 33426
Salesperson: JENNA JESSE
Phone: (720) 382-2113
Email:jennaj@xybix.com
Phone:
Email:
NASPO Contract#PA#43190000-22-NASPO-ACS
Product Line:Eagle Line w/axys
Install Type:Standard
Tax Exempt
07.03.2024:R6- Go back to "New Space"-New Layout; REMOVE CARPET OPP;. MND
05.28.2024:R4-Move forward with OPT1 - 1OWSs only(remaining future), include storage and lockers. MND
05.13.2024:R3-Door update -3 OPTS. MND
02.26.2024:R1 OPTION 3. MND
02.04.2024:RO-Drawing Creation -MND
OPTIONAL ITEMS:
Please note that Optional Items are not included in the total price.
Please contact Xybix to have any Optional Items included in the final price.
Freight&Installation charges will be adjusted accordingly.
Line Part Num Desc Qty U/M List Ea. Disc. % Disc. Price Net Price
1.00 12343. Panel System Priced by the Linear Foot: 7 1.00 EA $53,387.00 51.00 % $26,159.63 $26,159.63
Grade 3 Fabric
12343-1-SS - 29-48in - 63.0 LF @
$281.00/LF
12343-1-DS - 29-48in - 83.0 LF @
$380.00/LF
Acrylic
16718 - Lit & Etched - 8.0 LF @
518.00/LF
Upper Tiles Fabric Color: TBD Grade 3
G2
Lower Tiles Fabric Color: TBD Grade 3
G2
Panel Trim Color: Black
1.01 14527. Panel Tile Acoustical Premium .75 NRC 2.00 EA $100.00 51.00 pro $49.00 $98.00
Tile 14x18 Upgrade
1.02 14528. Panel Tile Acoustical Premium .75 NRC m 4.00 EA $100.00 51.00% $49.00 $196.00
Tile 14x24 Upgrade
1.03 14529. Panel Tile Acoustical Premium .75 NRC 4.00 EA $149.00 51.00% $73.01 $292.04
Tile 14x30 Upgrade
1.04 14532. Panel Tile Acoustical Premium .75 NRC 2.00 EA $149.00 51.00% $73.01 $146.02
Tile 14x48 Upgrade
Ayoix systems, mc. Quote Number: 33942
8207 SouthPark Circle • •
Littleton CO 80120 Quote Date: 7/5/2024
Phone: 303-683-5656 f, X ix Revision: E
Fax: 303-683-5454Ori Create Date: 7/5/2024
��. 9
meghand Expires: 10/3/2024
Quote Opp#: 0029257
Terms: NET 30 Page: 2 of 6
Line Part Num Desc Qty U/M List Ea. Disc. % Disc. Price Net Price
1.05 14534. Panel Tile Acoustical Premium .75 NRC 8.00 EA $100.00 51.00% $49.00 $392.00
Tile 18x24 Upgrade
1.06 14535. Panel Tile Acoustical Premium .75 NRC 4 22.00 EA $149.00 51.00% $73.01 $1,606.22
Tile 18x30 Upgrade
1.07 14536. Panel Tile Acoustical Premium .75 NRC 16.00 EA $149.00 51.00% $73.01 $1,168.16
Tile 18x36 Upgrade
1.08 13872-30. Panel Tile Panel Segment 3D Laminate . 2.00 EA $19.00 51.00% $9.31 $18.62
14h x 18w Upgrade
1.09 13873-3D. Panel Tile Panel Segment 3D Laminate ,7 4.00 EA $19.00 51.00% $9.31 $37.24
14h x 24w Upgrade
1.10 13874-3D. Panel Tile Panel Segment 3D Laminate 7, 4.00 EA $23.00 51.00% $11.27 $45.08
14h x 30w Upgrade
1.11 13877-3D. Panel Tile Panel Segment 3D Laminate 2.00 EA $23.00 51.00% $11.27 $22.54
14h x 48w Upgrade
1.12 13880-3D. Panel Tile Panel Segment 3D Laminate 10.00 EA $23.00 51.00% $11.27 $112.70
18h x 30w Upgrade
1.13 13881-3D. Panel Tile Panel Segment 3D Laminate ,5 3.00 EA $23.00 51.00% $11.27 $33.81
18h x 36w Upgrade
1.14 13866-3D. Panel Tile Panel Segment 3D Laminate ,7 4.00 EA $19.00 51.00% $9.31 $37.24
24h x 18w Upgrade
1.15 13867-3D. Panel Tile Panel Segment 3D Laminate i. 8.00 EA $19.00 51.00% $9.31 $74.48
24h x 24w Upgrade
1.16 13868-30. Panel Tile Panel Segment 3D Laminate ,B 30.00 EA $23.00 51.00% $11.27 $338.10
24h x 30w Upgrade
1.17 13869-3D. Panel Tile Panel Segment 3D Laminate 19.00 EA $23.00 51.00% $11.27 $214.13
24h x 36w Upgrade
1.18 13871-3D. Panel Tile Panel Segment 3D Laminate /5 4.00 EA $23.00 51.00% $11.27 $45.08
24h x 48w Upgrade
1.19 13867-3D. CPU Panel Tile Panel Segment 3D , 7.00 EA $19.00 51.00% $9.31 $65.17
Laminate 24h x 24w Upgrade
1.20 13868-3D. CPU Panel Tile Panel Segment 3D ie 3.00 EA $23.00 51.00% $11.27 $33.81
Laminate 24h x 30w Upgrade
1.21 13868-3D. Cable Bridge Panel Tile Panel Segment " 7.00 EA $23.00 51.00% $11.27 $78.89
3D Laminate 24h x 30w Upgrade
Ayuix aysierns, Inc. Quote Number: 33942
8207 SouthPark Circle • xybix Littleton CO 801204Quote Date: 7/5/2024
Phone: 303-683-5656 Revision: E
Fax: 303-683-5454 Orig Create Date: 7/5/2024
meghand Expires: 10/3/2024
Quote Opp#: 0029257
Terms: NET 30 Page: 3 of 6
Line Part Num Desc Qty U/M List Ea. Disc. % Disc. Price Net Price
1.22 13879-3D- Panel Tile Panel Segment 3D Laminate P, 1.00 EA $111.00 51.00% $54.39 $54.39
RPL. 18h x 24w Replacement
1.23 13880-3D- Panel Tile Panel Segment 3D Laminate 1.00 EA $148.00 51.00% $72.52 $72.52
RPL. 18h x 30w Replacement
1.24 13881-3D- Panel Tile Panel Segment 3D Laminate P, 2.00 EA $148.00 51.00% $72.52 $145.04
RPL. 18h x 36w Replacement
1.25 14145-BLK Pole, Cable, 96 in, Black 7 4.00 EA $130.00 51.00% $63.70 $254.80
2.00 14486-3D. Adj. Table Worksurface - Corner Dual n 7.00 EA $2,719.00 51.00% $1,332.31 $9,326.17
Surface -66L x 66R - Cable
Management Included
2.01 14498-3D. Adj. Table Worksurface- Straight Dual =. 1.00 EA $1,847.00 51.00% $905.03 $905.03
Surface - 72W x 44D - Cable
Management Included
2.02 14486-3D. Adj. Table Worksurface-Corner Dual a 2.00 EA $2,719.00 51.00% $1,332.31 $2,664.62
Surface - 72L x 72R - Cable
Management Included
3.00 15701 L4 Table Base a 8.00 EA $6,736.00 51.00% $3,300.64 $26,405.12
3.01 15844 L5S Table Base for 72X72 Corner 1t 2.00 EA $8,279.00 51.00% $4,056.71 $8,113.42
Worksurface
4.00 16744. Monitor Mount 3- Rollervision -Corner 71 7.00 EA $4,021.00 51.00% $1,970.29 $13,792.03
Dual Surface - 66L x 66R
16674 - Std VESA Mount Qty = 2 Total:
$700.00
16675 - Std VESA Mount 2 HI 1 Knuckle
Qty = 2 Total: $958.00
4.01 16744. Monitor Mount 3 - Rollervision - Corner ae 2.00 EA $4,371.00 51.00% $2,141.79 $4,283.58
Dual Surface - 72L x 72R
16674 - Std VESA Mount Qty = 3 Total:
$1,050.00
16675 - Std VESA Mount 2 HI 1 Knuckle
Qty = 2 Total: $958.00
4.02 16745. Monitor Mount 3- Rollervision - Straight . 1.00 EA $4,021.00 51.00% $1,970.29 $1,970.29
Dual Surface - 72W x 44D
16674 - Std VESA Mount Qty = 2 Total:
$700.00
16675 - Std VESA Mount 2 HI 1 Knuckle
Qty = 2 Total: $958.00
5.00 13074 Cable,TBD 42.00 EA $104.00 51.00% $50.96 $2,140.32
AyUI/C JyJICIIIJ, Ill/.. Lluote Number 33942
8207 SouthPark Circle •
Littleton CO 80120 xyDIX
Quote Date: 7/512024
Phone: 303-683-5656 Revision: E
Fax: 303-683-5454 Orig Create Date: 7/5/2024
meghand Expires: 10/3/2024
Opp#: 0029257
Quote
Terms: NET 30 Page: 4 of 6
Line Part Num Desc Qty U/M List Ea. Disc. °A° Disc. Price Net Price
5.01 16130-8 Datadock 2 - Keyboard Snap-In Cable 3, 10.00 EA $709.00 51.00% $347.41 $3,474.10
Organizer
Includes:
8 - USB Ports
1 - RJ45 Port
6.00 15848 Grounding Kit Full Station R56 Compliant 0.00 EA $1,539.00 51.00% $754.11 $0.00
OPTIONAL x10
6.01 17005 Grounding Kit Install Tools 0.00 EA $0.00 0.00% $0.00 $0.00
OPTIONAL x1
6.02 11792-BLK Power Bar- 10 Outlet With Black Sticker 33 10.00 EA $170.00 51.00% $83.30 $833.00
6.03 11792-OR Power Bar- 10 Outlet With Orange 10.00 EA $170.00 51.00 % $83.30 $833.00
Sticker
6.04 14976 6 Outlet Power Strip 25' 2.00 EA $180.00 51.00 $88.20 $176.40
7.00 16708. Axys Control System with Fan 8.00 EA $4,842.00 51.00% $2,372.58 $18,980.64
Base Price: $2,079.00
16707AXS - Heat - $582.00
16709AXS - Task Lights - $519.00
16712AXS - Down Bias Lighting -
$155.00
16771AXS - Axys Status Light 3 HI -
$1,507.00
7.01 16708. Axys Control System with Fan 2.00 EA $4,842.00 51.00 % $2,372.58 $4,745.16
Base Price: $2,079.00
16707AXS - Heat - $582.00
16709AXS - Task Lights - $519.00
16710AXS - PS Light Controller
16712AXS - Down Bias Lighting -
$155.00
16771AXS - Axys Status Light 3 HI -
$1,507.00
7.02 15560 Acrylic Cleaning Kit u 1.00 EA $134.00 51.00% $65.66 $65.66
8.00 16909 Shelf, Under Surface, With Power, 1 AC 71 10.00 EA $379.00 51.00% $185.71 $1,857.10
Outlet, 1 USB Charge, 1 USB-C Charge,
Metal, Black
OPEN MARKET
10.00 12033-3D. Return Worksurface -36Wx30D 1.00 EA $656.00 51.00% $321.44 $321.44
10.01 12035-3D. Return Worksurface-72Wx30D a 2.00 EA $1,183.00 51.00% $579.67 $1,159.34
Xybix Systems, Inc. Quote Number 33942
8207 SouthPark Circleilre
Littleton CO 80120 xyoix
Quote ReviDs ion:
7/5/202E
Phone: 303-683-5656
Fax: 303-683-5454 Orig Create Date: 7/5/2024
meghand Expires: 10/3/2024
Opp #: 0029257
Quote
Terms: NET 30 Page: 5 of 6
Line Part Num Desc Qty U/M List Ea. Disc. % Disc. Price Net Pricej
10.02 12033-3D. Return Worksurface - 18Wx36D 2.00 EA $656.00 51.00 % $321.44 S642.88
10.03 12033-3D. Return Worksurface - 24Wx36D u 1.00 EA $656.00 51.00 % $321.44 $321.44
10.04 12033-3D- Flip Top Return Worksurface-24Wx36D ,0 9.00 EA $656.00 51.00 % $321.44 $2,892.96
FT.
10.05 12033-3D- Flip Top Return Worksurface - 30Wx36D - 1.00 EA $656.00 51.00% $321.44 $321.44
FT.
11.00 16209 Cable Bridge Corner Angled Left Side - 8.00 EA $261.00 51.00% $127.89 $1,023.12
11.01 16210 Cable Bridge Corner Angled Right Side 49 8.00 EA $261.00 51.00% $127.89 $1,023.12
11.02 15710 Cable Bridge Straight Right Side 1.00 EA $261.00 51.00% $127.89 $127.89
11.03 15484-3D- CPU Cabinet - ERGO ACCESS Under 9.00 EA $1,686.00 51.00% $826.14 $7,435.26
FT. Work Surface 24Wx34.5D With Flip Top
Hinge
11.04 15486-3D- CPU Cabinet - ERGO ACCESS Under 1.00 EA $1,783.00 51.00% $873.67 $873.67
FT. Work Surface 30Wx34.5D With Flip Top
Hinge
15.00 11765-3D- Above WorkSurface-24W, 11.25H, 13D b 6.00 EA $866.00 51.00% $424.34 $2,546.04
MS6. with 6 Mailslots.
16.00 13672-3D. Storage Cabinet - UnderWS W/Toekick - w 2.00 EA $1,014.00 51.00 % $496.86 $993.72
18W, 28H, 22D
16.01 13672-3D. Storage Cabinet- UnderWS W/Toekick - 1.00 EA $1,014.00 51.00% $496.86 $496.86
24W, 28H, 22D
16.02 13676-3D. Storage Cabinet-UnderWS W/Toekick- n 5.00 EA $1,582.00 51.00% $775.18 $3,875.90
36W, 36H, 22D
17.00 16336-3D. Locker 3Hi - 12W, 84H, 17D - Combo 12.00 EA $2,522.00 51.00% $1,235.78 $14,829.36
Lock, Mail Slot
18.00 12750 Support - "L" Bracket 9" 2.00 EA $55.00 51.00% $26.95 $53.90
18.01 12235 Bracket, Support, L, 18 in, Black 10.00 EA $55.00 51.00% $26.95 $269.50
18.02 14655 Wall Screw Anchor Kit 99 12.00 EA $15.00 51.00% $7.35 $88.20
90.00 16139 Installers Kit Eagle Line e' 10.00 EA $0.00 0.00% $0.00 $0.00
99.00 Other Other Charges & Services 1.00 EA $0.00 0.00% $0.00 $0.00
Ayolx systems, Inc. Quote Number: 33942
8207 SouthPark Circle • yb •
Littleton CO 80120 Quote Date: 7/5/2024
Phone: 303-683-5656 Revision: E
Fax: 303-683-5454 Orig Create Date: 7/5/2024
meghand Expires: 10/3/2024
Opp #: 0029257
Quote
Terms: NET 30 Page: 6 of 6
Line Part Num Desc Qty U/M List Ea. Disc. % Disc. Price Net Price
Line (62) - Miscellaneous Charge -
Description Ext. Price
1.) Freight - Full Truck x1 Addtl 6,504.94
2.) Installation 27,388.88
List Price Total: $350,211.00 Lines Total: $171,603.39
Line Miscellaneous Charges
Total: $33,893.82
Taxes Total: $0.00
Quote Total: $205,497.21
Note 1:
All quoted taxes are estimated.Any applicable taxes,fees,permits,etc. must be added to this quote.
Note 2:
Where installation is listed on quote it is based in non-union labor and on one trip for installation only.Client is responsible for coordination of
Technicians and other Vendors/Contractors.Waiting time will be charged at the rate of S75 per man hour straight time and S115 per man hour for OT
plus subsistence expenses.
Additionally,this quote is based upon a remodel in an existing space and/or new building-completely finished with a Certificate of Occupancy.Any
project where the General Contractor is still on the job is subject to additional charges.
We appreciate this opportunity to provide this quote.Our goal is to substantially improve working conditions for your valuable staff.We look forward to
meeting with you to review this proposal in detail In the meantime please don't hesitate to call us with any questions.