Florida Statute 119.0701 requires government records provision in every contract, left out of the draft contract for a smartphone parking app for the itty-bit City on St. Augustine Beach:
ROYLE's draft PASSPORT LABS, INC. violates Florida Statute 119.0701 by failing to require that the contractor records are public records. It does just the reverse, containing an illegally confidentiality clause contemplating evidence destruction. What do you expect from a pig but a grunt? This company is controlled by BAIN CAPITAL, ruthless former employer of Mitt Romney.
The PASSPORT LABS, INC. contract must be stopped -- it was just featured on the Jacksonville NPR affiliate, WJCT, which is finally covering local news here (perhaps as a result of my December 2018 FCC complaint against WJCT, whose FCC license will either be renewed or rejected in 2019).
Here's my e-mail to ROYLE, the City Attorney, City Commissioners and PASSPORT:
From: Ed Slavin
Sent: Tue, Jan 8, 2019 4:29 am
Subject: PASSPORT LABS, INC. illegal, unconscionable contract of adhesion with City of St. Augustine Beach, Florida?
No model of government contract legal draftsmanship, this deeply flawed vendor-drafted "contract of adhesion" appears to be unenforceable and unconscionable, as it appears that it is:
1. Fails to protect citizens' rights to access our government contractor public records, violating F.S. 119.0701 and violating Article I, Section 24 of our Florida Constitution, adopted by vote of 83% of Florida voters (3.8 million people) in 1992? Yes.2. Omits mandatory Florida statutory contract language on public records, violating F.S. 119.0701? Yes.3. Fails to protect disabled persons' human rights to some twelve (12) free Americans with Disabilities Act wheelchair van accessible parking spaces out of the 300 proposed paid-for spaces? Yes.
4. Fails to provide adequate procedural safeguards to prevent overcharges, privacy violations, consumer fraud and elder financial abuse in violation of Florida and federal law? Yes.
- unadorned by any nondiscrimination or ADA/504 provisions,
- not Florida-specific,
- not drafted by any Florida lawyer,
- not drafted by the City Attorney,
- not a true bargained-for exchange,
- a standard-form, cookie-cutter, take-it-or-leave it, PASSPORT cramdown contract,
- written in opaque language, disproportionately benefiting the vendor,
- totally one-sided,
- lacking in any realistic options for parking customers who don't choose to use a smartphone app,
- lacking disclosures about the profits to be made by PASSPORT, Bain Capital's favorite monopolist in this new industry,
- excessively deferential in giving unbridled discretion to PASSPORT to draft its own contract and to make decisions and make extra money,
- misleadingly labelled "CONFIDENTIAL," in violation of F.S.119.0701,
- drafted to destroy or conceal government contractor records that are required to be accessible to the public under F.S. 119.0701. and
- intended to conceal details of this PASSPORT LABS, Inc. scheme from public view. See Section 19 (Confidentiality), at pp. 9-10, stating:
A. Provider and Passport agree to treat this Agreement and all information furnished, or to be
furnished, by or on behalf of the other party and information analyses, summaries and other work product
derived from such information (collectively, the “Confidential Information”) in accordance with the
provisions of this section and to take, or abstain from taking, all actions set forth herein. Each party, as a
receiving party, will do the following things with regard to the Confidential Information of the other party:
i. Prevent the disclosure of the Confidential Information by the receiving party and each of the
receiving party’s employees, agents, and/or professionals to any third party other than as
permitted under this Agreement;
ii. Use, and permit the use of, the Confidential Information only for the purposes of providing, or
enjoying the benefit of, the goods, services, and/or software provided for in this Agreement
iii. Disclose the Confidential Information only to such of the receiving party’s employees, agents,
and professionals as have a bona fide need to possess or know the Confidential Information in
the course of accomplishing, or advising the disclosing party with regard to, the Purpose;
iv. Cause each employee, agent, or professional to whom the receiving party discloses the
Confidential Information to be bound by an obligation of confidentiality that is at least as
rigorous as the obligations contained in this Agreement; and
Passport SLSA (November 2017)
v. Return or destroy all written or other tangible copies of Confidential Information in the
receiving party’s possession or direct or indirect control, including all extracts and copies
thereof, within a reasonable time after, and in accordance with, the disclosing party’s request.
B. Nothing in this Agreement will prevent the receiving party from disclosing or using Confidential
Information to the extent that:
i. It is or becomes readily ascertainable by proper means by the public without any breach of a
confidentiality obligation of the receiving party;
ii. It is received from a third party that is not under an obligation of confidentiality of which the
receiving party knew or had reason to know;
iii. It was independently developed by the receiving party without use of the Confidential
iv. It is required by law to be disclosed, provided that the receiving party provides to the disclosing
party as much notice as is practicable under the circumstances of such requirement prior to
disclosure and provides to the disclosing party, at the disclosing party’s expense, such
reasonable assistance as the disclosing party requests in seeking confidential treatment,
protective orders, nondisclosure, and/or similar measures.
For the avoidance of doubt, none of the requirements of this Section shall prohibit Provider from disclosing
Confidential Information to the extent that such information is required to be disclosed pursuant to any
open records law, open meetings law, or any other local public disclosure law applicable to Provider.