NON-STANDARD (VENDOR ORIGINATED) CONTRACT PROCESSING PROCEDURE I. Purpose: 1. To provide a consistent and uniform process for reviewing, revising, executing and tracking non-standard contracts and, 2. To avoid duplication of efforts and reduce staff time by establishing a document history that can be accessed for future contracts, and, 3. To provide a method for tracking the number and dollar value of non-standard contracts that are coordinated by purchasing staff and entered into a tracking system (either SAP or SIRE). II. Application: This procedure applies to all non-standard contracts, which include both renewable contracts and one time use contracts. Renewable contracts may include maintenance agreements, monitoring agreements, website hosting, or other multi-year contracts. Representative examples of one-time agreements would be: training agreements, software purchase, roll-off dumpster agreements, museum exhibits, maintenance agreements. A. Methodology 1. General: Non-standard agreements may come to the Procurement Strategist or Contract Administration Manager directly from the vendor, or may be forwarded by the user department, County Attorney, or Purchasing Operations staff. 2. Administration: The administration of the non-standard contracts depends on the type of contract; either renewable or a one time use, such as an agreement for a training session III. Process: A. Essential Questions when Procuring Goods/Services from a Vendor without an Existing Contract: 1. Will the Vendor accept a PO # to bill against? 2. Will the Vendor provide a quote without any terms and conditions? If the Vendor prefers to supply a contract for acceptance by the County, explain to the Vendor that the contract will be modified to comply with Florida Statutes, County Ordinances, Polices, and Procedures.. B. Essential Background Information Required: 1
1. Is this a first time purchase? If not, how was it previously procured? 2. Is there an existing contract with another public entity (piggyback) we may use? 3. What is the procurement threshold? 4. Was it competitively quoted? If so, we need to request the backup. 5. Is this a single source? If so, we need to request the backup. Do we have a waiver? C. Review: The Procurement Strategist shall review the contract and revise any terms and conditions that are problematic, which may consist of legal issues, (including Florida Statutory), or conflicts with Purchasing Ordinance, Procurement Procedures, or other business issues. Standard County clauses are identified in Appendix A. 1. Examples of common issues with terms and conditions include: Indemnification (Subject to the limitation set forth in Section 768.28, Fla. Stat,) Payment (compliance with Section 218.70, Fla. Stats., otherwise known as the Local Government Prompt Payment Act ) Governing Law (needs to be State of Florida, use standard County clause) Venue (needs to be Collier County, use standard County clause) Arbitration (replace with County dispute resolution clause) Confidentiality (compliance with Florida Public Records Act, Chapter 119, Fla. Stat., and the Florida Sunshine Law, Chapter 286, Fla. Stat.,), Tax exemption (Collier County, Florida as a political subdivision of the State of Florida, is exempt from the payment of Florida sales tax to its vendors under Chapter 212, Florida Statutes, Certificate of Exemption #85-8015966531C-1), Automatic renewals (replace with annual options per standard County renewal clause) Termination (may ask for full payment for balance of agreement upon termination, use standard County clause) Assignment of contract (add/replace with standard County clause) Warranties (replace with standard County clause) Limitations of liability (usually limit vendor liability to cost of goods or services) Non-appropriation (add/replace with standard County clause) Travel Expenses (must be in compliance with Florida Statutes, Section 112.061) Referral to other documents (need to review any associated documents, which may have been referenced but not attached to the agreement, including links to websites) 2. Signature lines: 2
Agreement may have insufficient signature lines, which must be added, including County signature lines (one line for agreements that do not require Board approval, and an attestation line for the Clerk for agreements that require Board approval); May need to add witness line along with vendor s signature; Addition of County Attorney signature block; Need to determine who has appropriate vendor signature authority (check officers of the company on Florida Division of Corporations website) if not an officer, need copy of corporate resolution giving authority to sign. 3. Exhibits and Attachments: Procurement Strategist needs to make sure that all relevant documents are attached to the agreement with appropriate signature lines, if needed D. Determination of type of contract: The Procurement Strategist shall determine whether a contract is renewable or a one time use based on a review of the document. Consideration should be given to whether there is a business reason for tracking identified renewals or the potential for renewals. E. Renewable contracts: 1. The Procurement Strategist shall assign a number to the contract in the Bid Status Log and designate it as an NS contract. A hard copy manila file folder and an electronic folder shall also be created in order to keep the contract and any other documents and e-mails associated with this contract. 2. The Contract Administration Manager will review the contract and make any additional changes that are needed. 3. The Contract Administration Manager or their designee will create an RLS to route the contract to the County Attorney (and to Risk Management, if insurance is required). 4. When RLS is returned from County Attorney, any identified changes will be made by the Procurement Strategist (or discussed if there is a case for not making the change) and the contract will be sent to the vendor for signature. If BCC approval is required, the user department will be directed to prepare an Executive Summary. 5. When the signed contract is received back from the vendor, the Procurement Strategist or designee will check Florida Division of Corporations and confirm signature authority, and prepare the Signature Routing Form for the Purchasing and General Services (PGS) Director to sign, or will send a copy to the user department to upload as an Executive Summary attachment if Board approval is required. 6. If BCC approval is not required, the executed contract will be given to the Procurement Strategist or their designee for entry into SAP by the Contract Technician or Operations Manager for tracking purposes. 3
7. If BCC approval is required, upon Board approval, the contract will be routed by the Contract Technician for the Chairman s signature, and when returned from Minutes and Records, it will be entered in SAP by the Contract Technician or Operations Manager for tracking purposes. F. One Time Use contracts: 1. The contract will not be given a number in the Bid Status Log, and will not be tracked in SAP for renewals. 2. Procurement Strategist will process the contract in accordance with steps E, 2 through 5. Once the contract is signed by either the PGS Director or the BCC Chairman, the contract is sent by the Contract Technician to the user department for attachment to their requisition in SAP. 3. Once the contract has been executed by the PGS Director or the Chairman, the contract information will be entered by the Contract Technician into the SIRE non-standard contract cabinet, and the documents will be scanned and attached. 4
Appendix A Standard County Clauses ASSIGNMENT Vendor shall not assign this Agreement or any part thereof, without the prior consent in writing of County. Any attempt to assign or otherwise transfer this Agreement, or any part herein, without the County's consent, shall be void. If Vendor does, with approval, assign this Agreement or any part thereof, it shall require that its assignee be bound to it and to assume toward Vendor all of the obligations and responsibilities that Vendor has assumed toward County. DISPUTE RESOLUTION Prior to the initiation of any action or proceeding permitted by this Agreement to resolve disputes between the parties, the parties shall make a good faith effort to resolve any such disputes by negotiation. The negotiation shall be attended by representatives of Vendor with full decision-making authority and by County s staff person who would make the presentation of any settlement reached during negotiations to County for approval. Failing resolution, and prior to the commencement of depositions in any litigation between the parties arising out of this Agreement, the parties shall attempt to resolve the dispute through Mediation before an agreed-upon Circuit Court Mediator certified by the State of Florida. The mediation shall be attended by representatives of Vendor with full decision-making authority and by County staff person who would make the presentation of any settlement reached at mediation to County s Board for approval. Should either party fail to submit to mediation as required hereunder, the other party may obtain a court order requiring mediation under Section 44.102, Fla. Stats. Any suit or action brought by either party to this Agreement against the other party relating to or arising out of this Agreement must be brought in the appropriate federal or state courts in Collier County, Florida, which courts have sole and exclusive jurisdiction on all such matters. FLORIDA PROMPT PAYMENT ACT Payment will be made upon receipt of a proper invoice and in compliance with Section 218.70, Fla. Stats., otherwise known as the Local Government Prompt Payment Act. GOVERNING LAW The Agreement shall be interpreted under and its performance governed by the laws of the State of Florida. INDEMNIFICATION 5
Each party agrees to indemnify, defend and hold harmless the other, its officers, board members, agents and employees from and against any and all fines, suits, claims, demands, penalties, liabilities, costs or expenses, losses, settlements, judgments and awards and actions of whatever kind or nature, including attorney's fees and costs (and costs and fees on appeal), and damages (including, but not limited to, actual and consequential damages) arising from any negligent, willful or wrongful misconduct, knowing misrepresentation or breach of this Agreement by such party, its officers, board members, agents or employees. This paragraph shall not be construed in any way to alter the State's waiver of sovereign immunity or extend the parties liability beyond the limits established in Section 768.28, Florida Statutes. RENEWALS The County may, at its discretion and with the consent of the Vendor, renew the Agreement under all of the terms and conditions contained in this Agreement for three (3) additional one (1) year periods. The County shall give the Vendor written notice of the County s intention to extend the Agreement term not less than ten (10) days prior to the end of the Agreement term then in effect. SUBJECT TO APPROPRIATION It is further understood and agreed by and between the parties herein that this agreement is subject to appropriation by the Board of County Commissioners. SUNSHINE LAW Confidentiality of information contained in this agreement is subject to the requirements of the Florida Public Records Act, Chapter 119, Fla. Stat., and the Florida Sunshine Law, Chapter 286, Fla. Stat. TERMINATION FOR CAUSE In the event that the County fails to make any undisputed payment to Vendor within thirty (30) days after such payment is due or County otherwise persistently fails to fulfill some material obligation owed by County to Vendor under this Agreement, and the County has failed to cure such default within fourteen (14) days of receiving written notice of same from Vendor, then Vendor may stop its performance under this Agreement until such default is cured, after giving County a second fourteen (14) days written notice of Vendor s intention to stop performance under the Agreement. If County does not cure its default within fourteen (14) days after receipt of vendor s second written notice, Vendor may, upon fourteen (14) additional days' written notice to the County, terminate the Agreement. In the event that the Agreement is terminated, Vendor s recovery against the County shall be limited to that portion of the Agreement Amount earned through the date of termination. The Vendor shall not be entitled to any other or further recovery against the County, including, but not limited to, any damages or any anticipated profit on portions of the services not performed or materials not provided. 6
TERMINATION FOR CONVENIENCE Either party may terminate this Agreement for convenience with a thirty (30) day written notice. Note: Choose notification time based on ability to source alternatives. In the event that the Agreement is terminated, Vendor s recovery against the County shall be limited to that portion of the Agreement Amount earned through the date of termination. The Vendor shall not be entitled to any other or further recovery against the County, including, but not limited to, any damages or any anticipated profit on portions of the services not performed or materials not provided. VENUE Any suit or action brought by either party to this Agreement against the other party relating to or arising out of this Agreement must be brought in the appropriate federal or state courts in Collier County, Florida, which courts have sole and exclusive jurisdiction on all such matters. WARRANTIES Vendor expressly warrants that the goods, materials and/or equipment covered by this Agreement will conform to the requirements as specified, and will be of satisfactory material and quality production, free from defects, and sufficient for the purpose intended. Goods shall be delivered free from any security interest or other lien, encumbrance or claim of any third party. Any services provided under this Agreement shall be provided in accordance with generally accepted professional standards for the particular service. These warranties shall survive inspection, acceptance, passage of title and payment by the County. 7