ORDINANCE BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF POLK COUNTY, FLORIDA THAT:

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1 ORDINANCE AN ORDINANCE OF THE POLK COUNTY BOARD OF COUNTY COMMISSIONERS TO BE ENTITLED THE "POLK COUNTY PROCUREMENT ORDINANCE"; SETTING FORTH THE ORDINANCE'S APPLICATION AND EXCLUSIONS; INCORPORATING THE WOMEN/MINORITY BUSINESS ENTERPRISE (W/MBE) PROGRAM POLICY STATEMENT; PROVIDING FOR THE ORGANIZATION OF THE PROCUREMENT PROCESS AND THE AUTHORITY OF THE PURCHASING DIRECTOR; SOURCE SELECTION, PROVIDING FOR COMPETITIVE SEALED BID PROCESS, COMPETITIVE SEALED PROPOSAL PROCESS, ALTERNATIVE SOURCE SELECTION, SOLE SOURCE PURCHASES, EMERGENCY PURCHASES, CONSULTANT SERVICES, PROFESSIONAL ARCHITECTURAL, ENGINEERING, LANDSCAPE ARCHITECTURAL OR LAND SURVEYING SERVICES GOVERNED BY SECTION , FLORIDA STATUTES, DESIGN BUILD SERVICES, TERM BIDS, NON-COMPETITIVE UNDEFINED SERVICES, CONSTRUCTION SERVICES, NEGOTIATED PROCUREMENT, FINAL BOARD APPROVAL, DEVIATION; SETTING FORTH THE RIGHT TO PROTEST; PROVIDING FOR SUSPENSION AND DISBARMENT; PROVIDING FOR INSPECTIONS AND TESTING; PROVIDING FOR THE SALE AND CONVEYANCE OF REAL OR PERSONAL PROPERTY BELONGING TO THE COUNTY; REPEAL OF ORDINANCES IN CONFLICT (00-58, 01-15, 02-12, AND 05-97); PROVIDING FOR SEVERABILITY; PROVIDING FOR AN EFFECTIVE DATE. SECTION 1: PREAMBLE WHEREAS, Polk County, hereinafter referred to as "County," wishes to provide for the purchase of the highest quality of goods and services at the most reasonable cost and for the fair and equitable treatment of persons doing business in Polk County; and, WHEREAS, the Board of County Commissioners is committed to increasing the opportunity for the participation of women and minority owned business enterprises in the procurement of commodities, services and construction; and WHEREAS, the Board of County Commissioners, after review and upon study and recommendation of staff, finds and determines that modifications are necessary in the purchasing system to be reflected in a new Procurement Ordinance; and now, therefore: BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF POLK COUNTY, FLORIDA THAT: SECTION 2: GENERAL PROVISIONS The provisions of this ordinance are based upon the authority granted to the Board of County Commissioners of Polk County, Florida, in Chapter 125, Florida Statutes and the Polk County Charter that came into effect on January 1,

2 A. TITLE This ordinance shall be known and cited as the Polk County Procurement Ordinance. B. APPLICATION AND EXCLUSIONS The provisions of this ordinance shall apply to every purchase/procurement of goods, services, supplies, equipment or materials, the letting of any contract for vertical and horizontal construction of any type for any agency, department, or advisory board under the control of the Board of County Commissioners, irrespective of funding source, including state and federal assistance monies, except as otherwise specified by law and to the sale or conveyance of real or personal property belonging to the county. They shall not apply to: 1. Agreements between the Board and non-profit organizations or governmental entities, including the procurement, transfer, sale or exchange of goods and/or services. 2. Procurement of dues and memberships in trade or professional organizations; subscriptions for periodicals; advertisements; postage; expert witnesses; lobbying services; abstracts of titles for real property; title insurance for real property; court reporter services; water, telecommunication services, sewer and electrical utility providers that provide water, telecommunication services, sewer and electricity for the use of the Board of County Commissioners or any agency, department or advisory board under the control of the Board of County Commissioners where a fee or charge is paid to the provider for those utilities; copyrighted materials; patented materials; litigation support services; and fees and costs of job-related seminars and training. 3. Goods and/or services given or accepted by the County via grant, gift or bequest. 4. Real Property 5. Any contract awarded by the State of Florida; any contract which has been let to the lowest qualified and responsible bidder pursuant to competitive sealed bids by a county, municipality, school board, other units of local government in Florida, the Florida Sheriff's Association, or the Florida Association of Counties. 6. Any contract pursuant to Request for Proposal which has been let to a responsive, responsible proposer pursuant to competitive sealed proposals by any county, municipality, school board or other units of government and an immediate need has been determined by the Purchasing Division Director

3 7. Items purchased for resale to the general public. 8. Purchases from private cooperative groups or organizations or a Federal General Services Contract when the best interest of the county would be served thereby, provided the Purchasing Director has attempted to obtain three (3) written or verbal quotations and those quotations confirm that the contract price is lower than the price available from vendors who are not a party to said contract. 9. The repair of wrecked or damaged County vehicles which have been designated for repair by the County's Risk Manager. 10. Purchases of educational tests, text books, printed instructional materials, films, filmstrips, video-tapes, disk or tape recording or similar licensed or copyrighted audio-visual materials, computer software, library books, reference books, periodicals, printed library cards, and other copyrighted materials where these items are purchased directly from the producer or publisher, the owner of the copyright, an exclusive agent within the state, a governmental agency or a recognized educational institution. 11. The binding of insurance policies. C. WOMEN/MINORITY BUSINESS ENTERPRISE (W/MBE) PROGRAM POLICY STATEMENT The policy statement of the W/MBE is hereby made a part of this Ordinance and is described as follows: It shall be the policy of the Polk County Board of County Commissioners that W/MBE participants shall have the maximum feasible opportunity to participate in the County's procurement process. The County's Purchasing Division shall do the following: 1. Ensure nondiscrimination in the administration of the County's procurement process; 2. Maintain a procurement environment in which W/MBE participants can compete fairly; 3. Prevent barriers that may obstruct W/MBE participation in the County's procurement activities; and 4. Assist in the development of firms so that they can compete successfully in the marketplace outside the W/MBE Program

4 SECTION 3: ORGANIZATION A. AUTHORITY OF THE PURCHASING DIRECTOR All rights, powers, duties and authority relating to the procurement and contracting of goods, services or construction, including both vertical and horizontal construction, for the Board of County Commissioners, including the authority to approve all purchases except as otherwise noted herein and to sign purchase orders for the purchase of goods, services or construction, including both vertical or horizontal construction as governed by this ordinance, provided they are in conformance with the law and all applicable rules and regulations, are vested in the Purchasing Director. B. DELEGATION OF AUTHORITY BY THE PURCHASING DIRECTOR TO OTHER COUNTY STAFF The Purchasing Director may delegate rights, powers and authority vested in him/her to subordinate purchasing employees or other County Staff, when deemed necessary by the Purchasing Director, provided such staff shall comply with all applicable laws, rules and procedures established by the County. C. ADOPTION OF THE PURCHASING PROCEDURES MANUAL The County Manager shall prepare and promulgate procedures for purchasing, procurement and the sale and conveyance of real or personal property as necessary for the implementation of this ordinance. The policies and procedures shall be codified in a manual titled the "Purchasing Procedures Manual." This authorized Purchasing Procedures Manual shall be published by the County as the operational document for this ordinance. The County Manager may authorize changes to the manual upon recommendation by the Purchasing Director. SECTION 4: SOURCE SELECTION The procurement of goods, services, materials, supplies and equipment by or on behalf of the Board of County Commissioners, including those transactions through which the Board of County Commissioners shall receive revenue in an amount equal to or in excess of $50,000.00, shall be awarded by a competitive bid or competitive proposal process as specifically provided herein, except as otherwise provided by state or federal law. Competitive bidding shall be the preferred method of procurement whenever possible. Nothing in the foregoing shall prohibit the County from renewing purchase orders or contracts provided the vendor was originally selected through a competitive selection process and further provided such renewal is within the scope of the original purchase order or contract

5 A. COMPETITIVE SEALED BID PROCESS 1. INVITATION FOR BID An invitation for bid shall be issued which shall include all the specifications, contractual terms, and conditions applicable to the procurement. 2. PUBLIC NOTICE Notice of bids will be published at least one (1) time each week in a newspaper of general circulation. The Invitation For Bid notice shall be published on the County's website for a reasonable time, which will be designated prior to the time set for the submission of bids. The notice will state the place, date and time for the submission and opening of bids. 3. BID SUBMISSION Bids must be received no later than the time and date and at the location specified for the bid opening in the Invitation For Bid. No bid shall be accepted after such time and date or at any location other than the location specified. Any bid received later or at any location other than the location specified in the invitation for bid, shall be returned unopened to the bidder. It shall be the bidder's sole responsibility to ensure that its bid reaches the specified place at the specified time for receipt of bids. Bidders shall be allowed to withdraw their bids at any time prior to bid opening. 4. BID OPENING Bids shall be opened publicly at the time and date specified in the Invitation for Bid. The name of each bidder shall be announced and recorded at the public opening. The amount of each bid specified in the Invitation for Bid and such other relevant information may be announced at the public opening. Bids will be made public in accordance with the provisions of Chapter 119, Florida Statutes. 5. BID CANCELLATION OR POSTPONEMENT Prior to bid opening, the Purchasing Director may elect to cancel an Invitation for Bid or postpone the date and/or time of bid submission or opening. 6. CORRECTIONS, ADDITIONS TO AND WITHDRAWAL The procedures for corrections to, additions to and withdrawal of bids shall be set forth in the Purchasing Procedures Manual

6 7. BID EVALUATION The County reserves the right to accept or reject any and all bids. The County reserves the right to make the award to the lowest responsive and responsible bidder whose bid meets the requirements and criteria set forth in the Invitation for Bid and whose award will in the County's opinion be in the best interest of and most advantageous to the County. The authority to make this determination is vested in the Purchasing Director. 8. BID AWARD Awards shall be effective upon notice of award by the Purchasing Director which may be in the form of a written purchase order. In the event only one bid is received, the Purchasing Director may award to the sole bidder, negotiate with the sole bidder, withdraw the Invitation for Bid, or rebid. All bids to be awarded which were approved in the current budget and have not received a protest during the award period shall be awarded by the Purchasing Director. Notice of the intent to award shall be posted at the location set for bid submission. Awards shall subsequently be posted at the County Administration Building Public Bulletin Board and in the lobby of the Purchasing Division. Bids with contracts will be routinely reported to the Board of County Commissioners and submitted for execution to either the Chairman or any official authorized by the Board through resolution when the bid awards are posted. B. COMPETITIVE SEALED PROPOSAL PROCESS When the Purchasing Director determines from written justification provided by department/division that the use of competitive sealed bidding is either not practical or not advantageous to the County, due to the specialized or technical nature of the goods or services sought, then the Purchasing Director may authorize the following competitive proposal process as an alternative to the competitive bid process. 1. REQUEST FOR PROPOSAL (RFP) OR REQUEST FOR INFORMATION (RFI) Such requests, setting forth the terms and conditions of the goods or services sought, including evaluation factors, shall be issued by public notice. 2. PUBLIC NOTICE Notice of RFPs will be published at least one (1) time each week in a newspaper of general circulation. The notice for the RFP/RFI - 6 -

7 shall be published on the County's website for a reasonable time, which will be designated prior to the time set for the submission of proposals. The notice will state the place, date and time for the submission and opening of proposals. 3. PROPOSAL SUBMISSION Proposals must be received no later than the time and date and at the location specified for the proposal opening in the RFP/RFI. No proposal shall be accepted after such time and date or at any location other than the location specified. Any proposal received after the date and time specified or at any other location than the location specified shall be returned unopened to the proposer. It shall be the proposer's sole responsibility to ensure that the proposal reaches the specified location at the specified time for receipt of proposals. Proposers shall be allowed to withdraw their proposals at any time prior to proposal opening. 4. PROPOSAL OPENING Proposals shall be opened publicly at the time and place specified in the RFP/RFI. The name of each proposer shall be announced and recorded at the public opening. Proposals will be made public in accordance with the provisions of Chapter 119, Florida Statutes. 5. PROPOSAL REVIEW Award by the County shall be made to the most responsive, responsible proposer whose proposal is determined to be the most advantageous to the County in accordance with the evaluation criteria contained in the RFP/RFI or to the most qualified firm as determined by the appointed selection committee. Evaluation of proposers and/or proposals may be made in a multi-step selection process as set forth in the RFP or RFI. The RFP or RFI shall state the relative importance of price and/or other criteria. As provided in the RFP/RFI, discussions may be conducted with responsible proposers who submit proposals for the purpose of clarification to assure full understanding of, and conformance to, the solicitation requirements. Proposers shall be accorded fair and equal treatment with respect to any opportunity for discussion and revision of proposals and such revisions may be permitted after submissions and prior to award for the purpose of obtaining best and final offers. In conducting discussions, there shall be no exchange of information regarding the content or feasibility of the proposals by competing proposers. 6. PROPOSAL AWARD The appointed selection committee shall rank the proposals and shall present the recommended ranking to the Board of County Commissioners - 7 -

8 for approval of the ranking and for authorization to proceed with competitive negotiations with the approved top ranked firm(s). Upon completion of negotiations, the proposed contract with the selected firm(s) shall be presented to the Board of County Commissioners for execution. C. ALTERNATIVE SOURCE SELECTION Any purchase for an amount less than $50, may be made in accordance with those procedures promulgated in the Purchasing Procedures Manual, provided, however, no purchase shall be artificially divided so as to circumvent the sealed bid threshold. These purchases shall be evidenced by a purchase order. D. SOLE SOURCE PURCHASES The Purchasing Director is herein authorized to approve sole source purchases in which "only one vendor possesses the unique and singularly available capability to meet the requirements of the solicitation, such as technical qualifications, ability to deliver at a particular time or a situation where a particular supplier is identified as the only qualified source available to the requisitioning authority." All sole source purchases exceeding $50, shall be reported to the Board. Sole source purchases may also result because of compatibility with existing equipment or systems or because the product or service is patented, copyrighted or has other proprietary information or trade secrets retained by the owner. E. EMERGENCY PURCHASES The Purchasing Director is herein authorized to make emergency purchases in accordance with the Purchasing Procedures Manual. Written records of emergency purchases shall be maintained by the Purchasing Division. A record listing all emergency purchases exceeding $50, shall be submitted to the Board on an annual basis. For purposes of this ordinance, "Emergency Purchases" is defined as a procurement made in response to a requirement for goods and/or services when the delay would adversely affect the public health or safety of the citizens of Polk County, as well as any immediate repairs that are needed to prevent further damage to public property, machinery or equipment. F. CONSULTANT SERVICES Professional consultant services may be procured by either the competitive Sealed Proposal Process or Request for Proposals (RFP)/Request for Information (RFI) process. The Purchasing Procedures Manual shall set forth the process for soliciting an RFP/RFI

9 G. PROFESSIONAL ARCHITECTURAL, ENGINEERING, LANDSCAPE ARCHITECTURAL OR LAND SURVEYING SERVICES GOVERNED BY SECTION , FLORIDA STATUTES The procurement of the specified professional services shall be as provided by Florida Statute and the Purchasing Procedures Manual. H. DESIGN BUILD SERVICES The procurement of design-build services shall be made in accordance with the Purchasing Procedures Manual and subject to Section , Florida Statutes. I. TERM BIDS Term bids may be used for the procurement of goods or services where the purchases will be made throughout a specified term and the annual purchases are estimated to exceed $50, Bids may be extended by the Purchasing Director at the end of any given term in order that the service or provision for goods be continued when a new bid has not yet been awarded, but in no event shall the term be extended for greater than one hundred twenty (120) days. J. NON-COMPETITIVE UNDEFINED SERVICES For services provided to the County at set rates determined by the County for predetermined scopes of service, qualified vendors may participate by responding to the advertisement for these specific services. K. CONSTRUCTION SERVICES 1. The procurement of construction service, including both vertical and horizontal construction, shall be acquired in accordance with Section 4(A) of this ordinance. Bid security shall be required for all competitive sealed bidding for construction contracts, including both vertical and horizontal construction when the price is estimated to exceed $200, Bid security shall be an original bid bond satisfactory to the County and executed by a surety company authorized to do business in the State of Florida and in accordance with Section 4 (K)(3) of this ordinance. Nothing herein shall prevent the requirement such bonds on construction contracts under $200, when the circumstances warrant. A bid security shall be in an amount equal to at least five percent (5 %) of the amount of the bid. Bids or proposals which do not comply with the surety requirements shall be rejected as non-responsive. When a construction contract, including both vertical and horizontal construction, is awarded in excess of $200,000, a public construction bond satisfactory to the County and executed by a surety company - 9 -

10 authorized to do business in the State of Florida and in accordance with section 4 (K)(3) of this ordinance in an amount equal to one hundred percent (100%) of the price specified in the contract, shall be required. 2. A contract purchase for the working of any capital improvement and/or repair projects in an amount less that $200,000 may be made by a Request For Construction Quote (RFCQ), as promulgated in the Purchasing Procedures Manual, provided however, no purchase shall be artificially divided so as to circumvent the sealed bid threshold. 3. All bonds shall be in the form prescribed by the Contract Documents except as provided otherwise by Laws or Regulations and shall be executed by such sureties are named in the current list of "Companies Holding Certificates of Authority as Acceptable Sureties on Federal Bonds and as Acceptable Re-insuring Companies" as published in Circular 570, as amended, by the audit Staff, Bureau of Government Financial Operations, U. S. Treasury Department and A. M. Best Rated A-VIII or better. The bond amount shall not exceed the maximum amount specified therein unless otherwise stipulated in the Invitation for Bid. 4. Nothing herein shall prohibit the County, in an effort to benefit from the County's tax exempt status, from deleting line items within the Invitation for Bid and purchasing said items directly from a supplier without further bidding in an amount not exceeding the bid amount per line item of the successful bidder. L. NEGOTIATED PROCUREMENT Negotiation of contracts and pricing after selection via the RFP, RFI or methods identified herein which are not competitively bid shall be by means promulgated in the Purchasing Procedures Manual. M. FINAL BOARD APPROVAL Documents issued by the Purchasing Division for purposes of soliciting bids or proposals which require the execution of a contract shall include the following language: "ALL CONTRACTS ARE SUBJECT TO FINAL APPROVAL OF THE POLK COUNTY BOARD OF COUNTY COMMISSIONERS. PERSONS OR FIRMS WHICH INCUR EXPENSES OR CHANGE POSITION IN ANTICIPATION OF A CONTRACT PRIOR TO THE BOARD'S APPROVAL DO SO AT THEIR OWN RISK."

11 N. DEVIATIONS FROM APPROVED PROCEDURES Any deviation from approved procedures for source selection as set out above or as set out in the Purchasing Procedures Manual requires prior approval of the Board of County Commissioners. SECTION 5: RIGHT TO PROTEST Any aggrieved, actual or prospective bidder or proposer in connection with the solicitation, suspension, debarment, consultant evaluation, or pending award of a bid or contract may protest to the Purchasing Director. Protest procedures shall be set forth in the Purchasing Procedures Manual. SECTION 6: SUSPENSION AND DEBARMENT A. AUTHORITY The Purchasing Director may suspend or debar for cause the right of a vendor to be included on a vendor list. Any bid or response from a suspended or debarred vendor shall be rejected unopened. B. SUSPENSION Based upon the criteria set forth in the Purchasing Procedures Manual, the Purchasing Director may suspend any vendor for a period not to exceed two (2) years. C. DEBARMENT A vendor may be permanently debarred for the following reasons: 1. Default or failure to fully perform or comply with the conditions, specifications, drawings or terms of a bid, proposal, or contract with the County as determined by the Purchasing Director. 2. Conviction of or a judgment obtained in a court of competent jurisdiction for commission of those offenses in connection with the vendor's commercial enterprise. If the conviction is reversed through the appellate process, the debarment shall be removed upon written notification and proof of final court disposition from vendor to the County

12 D. DECISION After the Purchasing Director has determined he/she has cause to suspend or debar a vendor, he/she shall notify the vendor in writing of the debarment or the period of suspension and the reasons for the action taken. E. PUBLIC ENTITY CRIME Any vendor who has been convicted of a public entity crime as defined by Section , Florida Statutes, shall not be able to transact business with the County to the extent as specified in Section (3)(a), Florida Statutes. F. FINALITY OF DECISION The suspension or debarment of a vendor shall be final and conclusive unless the suspended or debarred vendor initiates the protest proceedings pursuant to the criteria set forth in Section 5 of this ordinance. SECTION 7: INSPECTIONS AND TESTING A. The Purchasing Director may inspect or arrange for the inspection of all deliveries of supplies, materials, equipment or contractual services to determine conformance with the specifications set forth in the purchase order or contract. B. The Purchasing Director shall have the authority to require chemical and/or physical tests on samples submitted with bids and samples of deliveries in order to determine their quality and conformance with the specifications. For such tests, the Purchasing Director shall have the authority to make use of laboratory facilities of any agency of the County government or any outside laboratory. Should the product fail such testing, the County may require the vendor to pay the County for any expenses incurred for the testing. SECTION 8: SALE AND CONVEYANCE OF REAL AND PERSONAL PROPERTY BELONGING TO THE COUNTY A. The Board is hereby authorized to sell and convey real or personal property belonging to the County whenever the Board determines that it is in the best interest of the County to do so. Requests to initiate the sale and conveyance of real or personal property belonging to the County may be presented to the Board by the directors of the various county departments or their respective staff. B. Upon a determination by the Board that it is in the best interest of the County to sell and convey a parcel or parcels of real property or personal property belonging to the County, and unless specifically directed by the Board to effect the

13 sale through the use of a particular method, the Purchasing Director is hereby authorized, in his discretion, to exercise all rights, powers and duties to effect such sale through one of the following methods: 1. In accordance with procedures set out in Section (1)(a), Florida Statutes, the sale and conveyance of real or personal property may be made to the highest bidder who has complied with terms and conditions established by the Purchasing Director for bids for the purchase of such property and after notice of such proposed sale has been published once a week for at least two (2) weeks in newspaper of general circulation published in Polk County. In the case of such sale, the Board may require that a deposit be made or a surety bond be given with each bid submittal. 2. In accordance with procedures set out in Section (2), a private sale of property may be made when the parcel is of insufficient size and shape to be issued a building permit or when the value is $15,000 or less and when, due to size, shape, location and value, it is of use only to one or more adjacent property owners. 3. Pursuant to the authority granted in Section (3), Florida Statutes, the sale and conveyance of real or personal property may be made to the highest bidder at a public auction under the following conditions: i. The Purchasing Director is hereby authorized to market, advertise, and otherwise promote the parcel or parcels to be offered for sale at a public auction. ii. iii. At the time the Board makes the determination that it is in the best interest of the County that the property to be sold or conveyed, the Board shall establish minimum bids for purposes of the public auction. A notice setting out the date, time and location of the public auction shall be published in a newspaper of general circulation published in Polk County, once a week for at least two (2) weeks prior to the date set for the auction. The notice shall contain, if applicable, a description of the personal property to be sold, a legal description of the parcel or parcels of real property to be sold, the existing land use designation for the real property as established by the Polk County Land Development Code and the Polk County Comprehensive Plan, the minimum bids established by the Board and a statement that copies of documentation and information relating to the properties to be auctioned and procedures for the auction shall be available at the Polk County Purchasing

14 Division, 2470 Clower Lane, Bartow, Florida, during normal business hours. iv. The successful bidder at auction shall make a cash payment of ten percent (10%) of the successful bid on the date of the auction. For personal property, the balance shall be paid within thirty (30) days from the date of the auction. For real property, the balance shall be paid at closing, no later than thirty (30) days from the date of the auction. 4. In addition to the methods of disposition provided elsewhere in this ordinance, the Board of County Commissioners may, by resolution adopted at a public meeting, direct some other method of disposition pursuant to resolution. C. Sales of real or personal property pursuant to the procedures set out in this section shall be "as is." Sales of real property shall convey only the interest of the County in the property and shall not warrant the title or otherwise represent any state of facts concerning the property. Conveyance of the real property shall be made by means of a County Deed as set out in Section , Florida Statutes. SECTION 9: REPEAL OF ORDINANCES IN CONFLICT Polk County Ordinances 00-58, 01-15, 02-12, and are hereby repealed. SECTION 10: SEVERABILITY If any portion of this ordinance is for any reason held unconstitutional or otherwise invalid by a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision, and such holding shall not affect the validity of the remaining portions of this ordinance. SECTION 11: EFFECTIVE DATE This ordinance shall become effective upon receipt of the official acknowledgment from the Office of the Secretary of the State of Florida that this ordinance has been filed with said office

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