12. Attachment K - Draft Contract.pdf

4050 Esplanade Way Tallahassee, FL 32399-0950

Ron DeSantis, Governor Pedro Allende, Secretary

ATTACHMENT K

DRAFT CONTRACT

FOR

FULLY INSURED MEDICARE ADVANTAGE AND PRESCRIPTION

DRUG PLAN BENEFITS

DMS-24/25-312

BETWEEN

STATE OF FLORIDA

DEPARTMENT OF MANAGEMENT SERVICES

AND

[INSERT CONTRACTOR NAME]

RFP No.: DMS-24/25-312 Attachment K: Draft Contract Page 2 of 30

Table of Contents

Section 1 DEFINITIONS

Section 2 CONTRACT DOCUMENTS

Section 3 TERM, SCOPE OF SERVICES AND PAYMENTS

Section 4 CONTRACT ADMINISTRATION

Section 5 AUDIT RIGHTS

Section 6 SUPPLIER DEVELOPMENT

Section 7 LIQUIDATED DAMAGES

Section 8 INSURANCE

Section 9 EVENTS OF DEFAULT AND REMEDIES

Section 10 TERMINATION FOR CAUSE

Section 11 GENERAL PROVISIONS

ATTACHMENTS:

ATTACHMENT A: ADMINISTRATIVE REQUIREMENTS

ATTACHMENT B: PERFORMANCE GUARANTEES

ATTACHMENT C: PRICING AND PLAN DESIGN

ATTACHMENT D: ENROLLMENT FILE LAYOUT AND SCHEDULE

ATTACHMENT E: REPORTING AND DELIVERABLES

ATTACHMENT F: PRIVACY, SECURITY, AND CONFIDENTIALITY BUSINESS

ASSOCIATE AGREEMENT

THIS SPACE INTENTIONALLY LEFT BLANK

Attachment K: Draft Contract Page 3 of 30

CONTRACT

This Contract is between the STATE OF FLORIDA, DEPARTMENT OF MANAGEMENT SERVICES (Department), an agency of the State of Florida with offices at 4050 Esplanade Way, Tallahassee, Florida 32399-0950, and {Insert Contractor Name} (Contractor), with offices at {Insert Contractor Address} each, a “Party” and collectively referred to herein as the “Parties”.

WHEREAS, The Contractor responded to the Department’s Request for Proposals (RFP) No.

DMS-24/25-312 for Fully-Insured (Health Maintenance Organization (HMO) or Preferred Provider Organization (PPO) Medicare Advantage and Prescription Drug Plans (MA-PD). The Parties enter into this Contract in accordance with the terms and conditions of the solicitation.

NOW THEREFORE, in consideration of the premises and mutual covenants set forth herein, the Parties agree as follows:

The following capitalized terms used in this Contract (including the Attachments and any attachments thereto) have the meanings ascribed below:

Access: The ability to review, inspect, modify, communicate with, store, retrieve, or otherwise utilize data, regardless of its type, format, or storage medium. Access to a computer system or network includes both local and remote entry and must accommodate accessibility needs, including compliance with applicable disability standards (e.g., TTY, screen readers, and online accessibility features).

Account Management Team: The individuals employed by the Vendor who will have primary responsibility for the Department’s account.

Business Day: Any day of the week excluding weekends and holidays observed by State agencies pursuant to subsection 110.117(1)(a)-(j), F.S.

Calendar Day: Any Calendar Day in a month, including weekends and holidays.

Claim(s): An application for payment of or reimbursement for health care expenses incurred by Members, which is filed in accordance with the Center for Medicare & Medicaid Services (CMS) and Respondent.

Confidential Information: Information in the possession or under control of the State or Vendor that is exempt from public disclosure pursuant to section 24, Article I of the Constitution of the State; the Public Records Law, Chapter 119, F.S.; or to any other Florida law, federal law, or regulation that serves to exempt information from public disclosure.

Contract: This agreement and its attachments between the Department and Contractor.

Contract Administrator: The person designated pursuant to subsection 11.5 of the Contract.

Attachment K: Draft Contract Page 4 of 30

Contract Manager: Those persons designated pursuant to subsection 11.6 of the Contract.

Contractor: The entity identified in the preamble to this Contract who is contracted to provide Services required by this Contract.

Covered Benefits and Services: The benefits and services described in the Plan.

Department: The Florida Department of Management Services.

Deliverables: Those services, items and/or materials provided, prepared, and delivered to the Department in the course of performance under this Contract by the Contractor.

Division: The Department’s Division of State Group Insurance.

Effective Date: The date the Contract is fully executed by all Parties.

Eligible Dependents: Enrolled dependents of Enrollees, as defined by Florida Administrative Code 60P-1.003 8.

Enrollee: Those persons as defined in subsection 110.123(2)(c), F.S., who meet Medicare eligibility requirements for MA-PD plans.

Final Implementation Plan: The written description provided by the Contractor, as approved by the Department, of the schedule of actions necessary to implement the Services and begin fulfilling the Contract in a timely manner.

Implementation Date: January 1, 2026 at 12:00 A.M., Eastern Time, the first date Services are provided to Members.

People First: The enterprise-wide suite of services used by the State to manage human capital including the administration of human resources, benefits, payroll, and staffing.

People First is the State’s system of record for Plan eligibility.

Performance Guarantees: Specific measurement indicators assigned to Contract tasks representing timeliness and quality of task output.

Plan(s): The State Group Insurance Program’s Medicare Advantage Plan established by section 110.123, F.S.

Plan Year: Means the calendar year (January 1st through December 31st).

Program: Means the Department of Management Services, State Group Insurance.

Run-Out Claims: Means a Claim for medical expenses incurred by a Member during the term of the Contract, which is received by the Contractor after termination of the Contract

Attachment K: Draft Contract Page 5 of 30 and within sixteen (16) months from the date that the health care Services relating to such Claim were rendered.

Services: Services to be performed by the Contractor as specified in the resultant Contract.

The term “Services” includes, but is not limited to, any unspecified service that is inherent in proper delivery of a specified Service.

Subcontractor: The Contractor’s Subcontractors that deliver the Services required by this Contract. The term “Subcontractor” does not include healthcare providers.

Rules of Interpretation In this Contract, unless otherwise indicated or otherwise required by the context, the following rules of interpretation shall apply:

• Reference to, and the definition of, any document (including any attachments) shall be deemed a reference to such document as it may be amended, supplemented, revised or modified;

• The table of contents and section headings and other captions are for the purpose of reference only and do not limit or affect the content, meaning or interpretation of the text;

• Defined terms in the singular shall include the plural and vice versa and the masculine, feminine or neutral-genders shall include all genders;

• The words “hereof,” “herein,” “hereunder,” and words of similar import, shall refer to this Contract as a whole and not to any particular provision of this Contract;

• The words “include,” “includes” and “including” are deemed to be followed by the phrase “without limitation”;

• Any reference to a governmental entity or person shall include the governmental entity’s or person’s authorized successors and assigns; and

• The words “quarterly,” “on a quarterly basis,” “quarterly meeting” or other similar terms mean, unless otherwise stated herein, once every three (3) months, beginning January 1, 2026.

Hierarchy of Documents The Contract sets forth the entire understanding between the Parties. In the event that any of the Contract documents conflict, the order of precedence set forth below shall control.

The following order of precedence applies to this Contract:

1. This Contract document;

2. All attachments to this Contract document;

3. The RFP, which is incorporated herein by reference, and all attachments thereto;

4. Contractor’s Proposal to the RFP, including the Financial Proposal, which is incorporated herein by reference; and,

5. The General Contract Conditions - PUR 1000 form, which is incorporated by reference, and available at the weblink listed below:

https://www.dms.myflorida.com/content/download/2933/11777/PUR_1000_General_Cont ract_Conditions.pdf https://www.dms.myflorida.com/content/download/2933/11777/PUR_1000_General_Contract_Conditions.pdf https://www.dms.myflorida.com/content/download/2933/11777/PUR_1000_General_Contract_Conditions.pdf

Attachment K: Draft Contract Page 6 of 30

In the event of any conflict between this Contract and any applicable federal or state statute, administrative rule or regulation; the statute, rule or regulation will control.

Term Initial term

The initial Contract term is three (3) years and Services will commence on the Implementation Date and end at 11:59:59 P.M., on December 31, 2028, unless extended, terminated, or renewed as provided herein. The Parties acknowledge that the Plan will not be administered under this Contract until January 1, 2026. While implementation services will be required, premium payments from Enrollees will not be collected until December 2025, for coverage effective January 1, 2026.

Renewals

At its sole option and discretion, the Department may renew the Contract for up to three (3) additional years. Such renewal will be binding on the Contractor and may be in one (1) year or multiple year increments at the Department’s sole option. Renewal in whole or in part shall be at the sole discretion of the Department and shall be contingent upon the Department’s determination that the Contractor has satisfactorily performed its obligations under the Contract. The Department shall also consider whether the Contractor has been subject to any performance violations and/or liquidated damages in complying with any of the Contract requirements. Any renewal shall be in writing and signed by both Parties.

The Contractor shall not charge any fees and/or costs for renewing the Contract. The renewal is subject to appropriations by legislature and is contingent upon the availability of funds.

Pursuant to section 287.057(13), Florida Statutes, as modified by subsection 110.123(3)(d)(1), Florida Statutes, this Contract may be extended if the completion of the Contract is beyond the control of the Contractor, as determined by the Department.

Department’s Right to Terminate for Convenience

The Department, by sixty (60) Calendar Days advance written Notice to the Contractor, may terminate the Contract for any reason or no reason at all when the Department determines, in its sole discretion that it is in the Department’s interest to do so. The Contractor shall not perform any Services after the effective date of the termination, except as necessary to complete the continued portion of the Contract, if any. The Contractor will not be entitled to recover any lost profits, consequential or indirect damages, or any other damages other than the payment amounts due for performance until the effective date of termination.

Scope of Work The Contractor will provide all labor, materials, and supplies necessary to provide the Services as described in this Contract. Contractor agrees to periodic reviews by the Department on Contractor’s performance to improve delivery of the scope of work.

Corrective work to comply with the requirements of this Contract will be performed by the Contractor at its expense, and the Contractor will not be entitled to any compensation for such corrective work.

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Department’s Right to Suspend Work The Department may in its sole discretion suspend any or all Services under the Contract, at any time, when in the best interests of the Department to do so. The Department will provide Contractor written Notice outlining the particulars of suspension. Examples of the reason for suspension include, but are not limited to, budgetary constraints, declaration of emergency or other like circumstances. After receiving a suspension Notice, the Contractor will comply with the Notice.

Department’s Obligation to Supply Data to Contractor The Department shall supply all eligibility and personnel data and information necessary for Contractor to provide the Services.

Bills for Travel Bills for travel expenses are not permitted under this Contract.

Payments The Contractor agrees to perform all Services for the compensation and financial arrangements set forth in Attachment 3: Pricing and Plan Design. No additional compensation will be allowed.

Specific Appropriation The State of Florida’s performance and obligation to pay under this Contract is contingent upon an annual appropriation authority by the Legislature.

Ownership of Materials and Record Retention All Deliverables, papers, documents, materials, work, and other items prepared by the Contractor and provided to the State for purposes of the Contract are the property of the Department and shall be available to the Department at any time. The Department has the right to use the same without restriction and without payments to Contractor other than that specifically provided by the Contract. Data deemed proprietary, trade secret or confidential shall be subject to compliance with Florida Statutes and federal laws and regulations.

Contractor shall retain sufficient documentation to substantiate Claims for payment under this Contract, and all other records, electronic files, papers, and documents, which were made for purposes of the Contract. Such records shall include magnetic tapes, CD-ROM, diskettes, or other electronic media files maintained by the Contractor directly relating to the Services, including file labels, complete file layouts, data element descriptions and detailed processing logic to assist the Department auditor in processing or utilizing files. Contractor shall retain all such records, papers, and documentation in compliance with record retention schedules published by the State of Florida Department of State. Prior to the destruction of any such records, papers, or documentation, Service Provider will consult with and obtain the prior written approval of the Department. Additionally, in accordance with section 216.1366, F.S., the Department 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 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 within ten (10) Business Days after the request is made.

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Contractor Obligations General

Contractor will provide any and all labor, materials and supplies necessary to perform the Services in the manner prescribed by this Contract. The Contractor will meet or exceed the Minimum Service Requirements set forth in Attachment A: Administrative Requirements and Attachment B: Performance Guarantees.

Major Organizational Changes The Parties agree that in order for efficient and effective communication to occur, clear lines of authority and areas of responsibility need to be identified for each Party. Each Party agrees to promptly notify the other in the event of any material change in personnel, address, or phone number.

The Contractor recognizes and agrees that award of the Contract was predicated upon features of Contractor’s business organization as represented by the Contractor in their response to the RFP. If the Contractor transfers or sells fifty percent (50%) or more of its equity shareholder interests or allows a sale of substantially all of its assets, the Contractor shall notify the Department in writing no less than thirty (30) Calendar Days prior to such transfer or sale.

Subcontractors Contractor is responsible for the acts or omissions of all Subcontractors, if any, it uses in the provision of the Services during the term of the Contract. The Department will have no liability of any kind for Subcontractor demands, loss, damage, negligence, or any expense relating, directly or indirectly, to Subcontractors.

Contractor will not subcontract any of the Services or enter into any subcontracts or change approved Subcontractors (including their key personnel and/or location of processes for the Services) without providing the Department prior Notice of at least sixty (60) Calendar Days or, in case of an emergency, as soon as practicable. Each approved Subcontractor will be subject to the same terms and conditions as outlined in this Contract.

Background Screening and Record Retention All of Contractor’s employees, Subcontractors and agents performing work under the Contract must comply with all security and administrative requirements of the Department.

4.2.4.1 Background Screening

In addition to any background screening required by the Contractor as a condition of employment, the Contractor warrants that it will conduct a criminal background screening of, or ensure that such a screening is conducted for, each of its employees, Subcontractor personnel, independent contractors, leased employees, volunteers, licensees or other person, hereinafter referred to as “Person” or “Persons,” operating under their direction who directly perform Services under the Contract, whether or not the Person has access to State of Florida Data, as well as those who have Access, including indirect Access, to State of Florida Data, whether or not they perform Services under the Contract. The Contractor warrants that all Persons will have passed the Background Screening described herein before they have Access to State of Florida Data or begin performing services under the Contract. The look-back period for such background screenings shall be for a minimum of ten (10) years where ten (10) years of historical information is available.

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The minimum background check process will include a check of the following databases through a law enforcement agency or a professional background screener accredited by the National Association of Professional Background Screeners or a comparable standard:

• Social Security Number Trace; and

• Criminal Records (Federal, State and County criminal felony and misdemeanor, national criminal database for all states, which make such data available).

The Contractor agrees that each Person will be screened as a prior condition for performing services or having Access to State of Florida Data. The Contractor is responsible for any and all costs and expenses in obtaining and maintaining the criminal background screening information for each Person described above. The Contractor will maintain documentation of the screening in the Person’s employment file. The Contractor will abide by all applicable laws, rules and regulations including, but not limited to the Fair Credit Reporting Act and/or any equal opportunity laws, rules, regulations, or ordinances.

The Contractor is responsible for any and all costs and expenses in obtaining and maintaining the criminal background screening information for each Person described above. The Contractor will maintain, or cause to be maintained, documentation of the screening in the Person’s employment file. The Contractor will abide by all applicable laws, rules, and regulations including, but not limited to, the Fair Credit Reporting Act and/or any equal opportunity laws, rules, regulations, or ordinances. The Department may require the Contractor to exclude the Contractor’s employees, agents, representatives, or Subcontractors based on the background check results.

The Department may refuse access to, or require replacement of, any Contractor, employee, Subcontractor, or Subcontractor employee, or agent for cause, including, but not limited to, technical or training qualifications, quality of work, change in security status, or non-compliance with the Department’s security or other requirements. Such approval shall not relieve the Contractor of its obligation to perform all work in compliance with the Contract. The Department may reject and bar from any facility for cause any of the Contractor’s employees, subcontractors, or agents. In the event of unforeseen access by Contractor or Subcontractor employees who do not directly perform services under the Contract in the normal course of their duties and who have not been subject to background screenings in accordance with this section, the Department shall be notified of such access within thirty (30) Calendar Days; except that this requirement shall not apply when such access is not specifically limited to State of Florida Data and such access incidentally arises from legitimate business purposes that are wholly unrelated to the Services and work being performed under this Contract.

Notification shall include the employee’s name, the date and time of access and the results of the employee’s most recent background screening, as allowed by law. This access and notification of access will not result in any financial consequences or liquidated damages unless such access occurred in the course of the commitment of, or the intention to commit, an illegal act.

Within five (5) Business Days of receipt of a written request from the Department, the Contractor shall provide copies of all documentation of the security screening

Attachment K: Draft Contract Page 10 of 30 of any Person, including Subcontractor personnel, as allowed under applicable state and federal law.

4.2.4.2 Disqualifying Offenses

If at any time it is determined that a Person has a criminal misdemeanor or felony record regardless of adjudication (e.g., adjudication withheld, a plea of guilty or nolo contendere, or a guilty verdict) 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:

• Computer-related crimes;

• Information technology crimes;

• Fraudulent practices;

• False pretenses;

• Frauds;

• Credit card crimes;

• Forgery;

• Counterfeiting;

• Violations involving checks or drafts;

• Misuse of medical or personnel records;

• Felony theft; and

• Identity Theft.

If the Contractor finds a Disqualifying Offense for a Person within the last six (6) years from the date of the court’s disposition, it may obtain information regarding the incident and determine whether that Person should continue providing Services under the Contract or have Access to State of Florida Data. The Contractor will consider the following factors only in making the determination: i.)

nature and gravity of the offense, ii.) the amount of time that lapsed since the offense, iii.) the rehabilitation efforts of the person and iv.) relevancy of the offense to the job duties of the Person. If the Contractor determines that the Person should be allowed Access to State of Florida Data, then Contractor shall maintain all criminal background screening information and the rationale for such Access in the Person’s employment file.

The Contractor shall require all Persons to self-report within three (3) Business Days of adjudication to the Contractor any adjudication of guilt as described above for the Disqualifying Offenses. The Contractor shall immediately disallow that Person Access to any State of Florida Data or from directly performing Services under the Contract. Additionally, the Contractor shall require that the Person complete an annual certification that he or she has not received an adjudication of guilt as described above for the Disqualifying Offenses and shall maintain that certification in the employment file.

4.2.4.3 Refresh Screening

The Contractor will ensure that all background screening will be refreshed every five (5) years from the time initially performed for each Person during the term of the Contract.

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4.2.4.4 Duty to Provide Secure Data

The Contractor will maintain the security of State of Florida Data including, but not limited to, a secure area around any display of such State of Florida Data or State of Florida Data that is otherwise visible. The Contractor will also comply with all HIPAA requirements and any other state and federal rules and regulations regarding security of information. State of Florida Data cannot be disclosed to any person or entity that is not directly approved to participate in the scope of work set forth in this Contract.

4.2.4.5 Department’s Ability to Audit Screening Compliance and Inspect Locations

The Department reserves the right to audit the Contractor’s background screening process upon two (2) days prior written Notice to the Contractor during the term of the Contract. Department will have the right to inspect the Contractor’s working area, computer systems, and/or location upon two (2) Business Days prior written notice to the Contractor to ensure that Access to the State of Florida Data is secure and in compliance with the Contract and all applicable state and federal rules and regulations.

Upon notice of a security breach as defined in section 501.171, Florida Statutes, the Department shall have the right to audit the Contractor’s background screening process upon twenty-four (24) hours written Notice to the Contractor. This provision shall control over any conflicting provisions within the main Contract.

4.2.4.6 Record Retention

The Contractor shall retain a list of all Persons with Access to State of Florida Data, including a statement confirming that each Person has passed the Background Screening required herein. Such a statement shall not include the substance of the screening results, only that the Person has passed the screening.

The Contractor shall create a written policy for the protection of State of Florida Data, including a policy and procedure for Access to State of Florida Data.

The Contractor shall document and record, with respect to each instance of Access to State of Florida Data:

1) The identity of all individual(s) who Accessed State of Florida Data in any way, whether those individuals are authorized Persons or not;

2) The duration of the individual(s)’ Access to State of Florida Data, including the time and date at which the Access began and ended;

3) The identity, form, and extent of State of Florida Data accessed, including, but not limited to, whether the individual Accessed partial or redacted versions of State of Florida Data, read-only versions of State of Florida Data, or editable versions of State of Florida Data; and

4) The nature of the Access to State of Florida Data, including whether State of Florida Data was edited or shared with any other individual or entity during the duration of the Access, and, if so, the identity of the individual or entity.

The Contractor shall retain the written policy and information required in this subsection for the duration of this Contract and a period of no less than five (5)

Attachment K: Draft Contract Page 12 of 30 years from the date of termination of this Contract and any Contract extensions.

The written policy and information required in this subsection shall be included in the Department’s audit and screening abilities as defined in subsection 4.2.4.6.

The written policy and information required in this subsection shall also be subject to immediate disclosure upon written or oral demand at any time by the Department or its designated agents or auditors.

Failure to compile, retain, and disclose the written policy and information as required in this subsection shall be considered a breach of the Contract. The resulting damages to the Department from a breach of this subsection are by their nature impossible to ascertain presently and will be difficult to ascertain in the future. The issues involved in determining such damages will be numerous, complex, and unreasonably burdensome to prove. The Parties acknowledge that these financial consequences are liquidated damages, exclusive of any other right to damages, not intended to be a penalty, and solely intended to compensate for unknown and unascertainable damages. The Contractor therefore agrees to credit the Department the sum of $10,000 per event, for each breach of this subsection.

Work Locations, No Offshoring of Data Contractor, including its employees, subcontractor personnel, independent contractors, leased employees, volunteers, licensees, or other persons operating under their direction, are prohibited from (i) performing any of the Services under the Contract outside of the U.S., or (ii) sending, transmitting, or accessing any State of Florida Data, outside of the U.S. The Parties agree that a violation of this provision will:

(a) result in immediate and irreparable harm to the Department, entitling the Department to immediate injunctive relief, provided, however, this shall not constitute an admission by the Contractor to any liability for damages under subsection (c) below or any claims, liability, or damages to a third party, and is without prejudice to the Contractor in defending such claims.

(b) entitle the Department to a credit of $50,000 per violation, with a cumulative total cap of $500,000 per event. This credit is intended only to cover the Department’s internal staffing and administrative costs of investigations and audits of the transmittal of State of Florida Data outside the U.S.

(c) entitle the Department to recover damages, if any, arising from a breach of this subsection and beyond those covered under subsection (b).

(d) constitute an Event of Default not subject to the dispute resolution provisions in subsection 11.7 (“Dispute Resolution”) of this Contract.

The credits in subsection (b) are a reasonable approximation of the internal costs for investigations and audits from a violation. The credits are in the nature of liquidated damages and not intended to be a penalty on the Contractor. By executing this Contract, Contractor acknowledges and agrees the costs intended to be covered by subsection (b) are not readily ascertainable and will be difficult to prove. Contractor agrees that it will not argue, and is estopped from arguing, that such costs are a penalty or otherwise unenforceable. For purposes of determining the amount of credits due hereunder, a group of violations relating to a common set of operative facts (e.g., same location, same time period, same off-shore entity) shall be treated as a single violation. The credits will be

Attachment K: Draft Contract Page 13 of 30 applied against the monthly invoices submitted by the Contractor, and are exclusive of any other right to damages.

Scrutinized Companies – Termination by the Department

In accordance with the requirements of section 287.135, F.S., the Contractor certifies that it is not on the Scrutinized List of Prohibited Companies (referred to in statute as the “Scrutinized Companies with Activities in Sudan List” and the “Scrutinized Companies with Activities in the Iran Terrorism Sectors List”) and, to the extent that it is not preempted by Federal law, that it has not been engaged in business operations in Cuba or Syria. At the Department’s option, the Contract may be terminated if such certification (or the certification regarding a boycott of Israel) is false, if the Contractor is placed on the Scrutinized List of Prohibited Companies, or, to the extent not preempted by Federal law, if the Contractor engages in business operations in Cuba or Syria.

The State Board of Administration maintains the “Scrutinized List of Prohibited Companies” under the quarterly reports section at the following link:

https://www.sbafla.com/fsb/PerformanceReports.aspx.

Removal or Replacement of Employees and Subcontractors for Cause

The Department may refuse access to or require replacement of any Contractor, employee, Subcontractor, or agent for cause, including, but not limited to, technical or training qualifications, quality of work, change in security status, or non-compliance with the Department’s security or other requirements. Such action shall not relieve Contractor of its obligation to perform all work in compliance with the Contract. The Department may reject and bar from any facility for cause any of Contractor’s employees, Subcontractors, or agents.

Employment of State Workers During the term of the Contract, Contractor shall not knowingly employ, subcontract with or sub-grant to any person (including any non-governmental entity in which such person has any employment or other material interest as defined by section 112.312(15), Florida Statutes) who is employed by the State or who has participated in the performance or procurement of this Contract, except as provided in section 112.3185, Florida Statutes.

Acceptance of Services The Department will conduct its acceptance review in a manner to identify whether the Services materially fail to conform to the Contract. The Department shall Notify the Contractor in writing of material failures of a Service to conform to the Contract (“Notice of Nonconformity”), specifying how the Service materially fails to meet the requirements of the Contract. Within five (5) Business Days of Notice of the Nonconformity, Contractor will give Notice of either:

• The correction of the Nonconformity and the nature of the correction;

• A written proposal for corrective action correcting the Nonconformity;

• Its disagreement as to the nature or scope of the Nonconformity and the reasons therefore.

Within ten (10) Business Days of Notice of the Contractor’s reply, the Department will either accept or reject the Contractor’s reply (with or without modifications from the Department) and provide Notice of the Department’s decision and proposed remedy, if any.

https://www.sbafla.com/fsb/PerformanceReports.aspx

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Warranty Generally. Contractor warrants that the Services shall be delivered in a professional workman-like manner in accordance with the standards and quality prevailing among first-rate nationally recognized firms in the industry and in accordance with this Contract and this warranty will remain in effect for a period of three hundred, sixty-five (365) Calendar Days following delivery of the Services (“Warranty Period”).

Remedies. In the event that the Department discovers that the Services are not delivered in accordance with the foregoing warranties during the Warranty Period, the Department will provide Notice to the Contractor, and the Contractor will promptly correct, cure, replace or otherwise remedy such performance at no cost to the Department.

This subsection shall survive termination of this Contract.

The Department has the right to conduct performance and/or compliance audits related to this Contract of any and all areas of Contractor and Subcontractors. The Department may at any time enter and inspect the Contractor’s physical facilities where operations required under this Contract are performed, with reasonable Notice. Except in emergency situations, reasonable Notice will be provided for audits conducted at Contractor’s premises. Audits may include, but not be limited to, audits of procedures, computer systems, claims files, provider contracts, service records, accounting records, internal audits, quality control assessments, and any and all applicable healthcare provider contracts and service programs related to this Contract. Contractor will cooperate and work with any representatives selected by the Department to conduct said audits and inspections, including but not limited to, other state agencies. Contractor will make available all data or information requested by the Department in furtherance of an audit. Prior to the commencement of this audit, the Contractor may request to enter into a mutually agreeable confidentiality agreement with any third-party auditor. However, no such agreement shall limit the Department’s access to this audit report or any other document, and must be consistent with subsection 11.4 of this Contract, Article 1, section 24 of the Florida Constitution, and Chapter 119, Florida Statutes.

Contractor recognizes and acknowledges that released statements from its healthcare providers 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 right of the Department to perform audits and inspections will survive the expiration or termination of this Contract. Department will use reasonable efforts to minimize the number and duration of such audits or inspections conducted and to conduct such audits and risks in a manner that minimizes disruption to Contractor’s business operation.

This provision will not limit the rights of other state agencies or officers, such as the state’s chief financial officer and the Office of the Auditor General, to perform audits and inspections independently of, or in conjunction with the Department.

The Department will be responsible for the independent third-party auditor cost associated with any audit performed.

Office of Supplier Development. The State of Florida supports its business community by creating opportunities for business enterprises to participate in procurements and contracts. The

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Department encourages supplier development through certain certifications and provides advocacy, outreach, and networking through regional business events. For additional information, please contact the Office of Supplier Development (OSD) at OSDHelp@dms.fl.gov.

Reporting Certified Business Enterprises. Upon request, the Contractor shall provide the Department with a report detailing expenditures with business enterprises certified by the OSD.

Each report must specify the reporting period, the name and vendor identification details of each utilized business enterprise, the commodities and contractual services provided, and the total amount paid to each business enterprise during the period.

Generally Time is of the essence in performing the Contract; this is true generally and particularly with respect to providing Services on the Implementation Date and meeting the Performance Guarantees. Contractor acknowledges that untimely performance or other material noncompliance will damage the Department, but by their nature such damages are impossible to ascertain presently and will be difficult to ascertain in the future. The issues involved in determining the amount of damages will be multiple and complex, and will be dependent on many and variant factors, proof of which would be burdensome and require lengthy and expensive litigation, which the Parties desire to avoid. Accordingly, the Parties agree that it is in the Parties’ best interests to agree upon a reasonable amount of liquidated damages, which are not intended to be a penalty and are solely intended to compensate for unknown and unascertainable damages. The Parties acknowledge that liquidated damages are contemplated and required by subsection 110.123(3)(d)3, Florida Statutes.

Implementation Delays Untimely Implementation of Services. If Contractor fails to fully implement Services by the Implementation Date, it shall pay liquidated damages of $10,000 per Calendar Day, not to exceed $100,000, unless any such delay is due to the Department’s failure to comply with the defined timeline. Contractor will pay this amount of liquidated damages for every full or partial Calendar Day until Services are fully implemented.

Failure to Meet Performance Guarantees Contractor agrees to payment of liquidated damages if it fails to meet any of the performance standards set forth in Attachment B: Performance Guarantees.

Liquidated damages are intended only to cover the Department’s internal staffing and administrative costs and the diminished value of the Services provided under the Contract.

Notwithstanding anything in the Contract to the contrary, the total of any and all liquidated damages paid or to be paid by Contractor pursuant to this Contract for any calendar quarter will not exceed one hundred percent (100%) of the payment due under subsection 3.7.

Upon mutual agreement of the Parties, Performance Guarantees may be suspended from time to time for special circumstances. Suspension of a Performance Guarantee will not excuse Contractor from accumulating data relevant to that Performance Guarantee and reporting such data to the Department as part of the management reports delivered pursuant to this Contract.

Contractor will provide the Department with a Performance Guarantee report showing Service levels as set forth in Attachment 2: Performance Guarantees. The Department may, at its option, provide Contractor with a Performance Guarantee report template, which must be used. For each

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Performance Guarantee that the Contractor fails to meet, the Contractor will remit appropriate payment to the Department within forty-five (45) Calendar Days of the end of the reporting quarter.

The Department is not required to Notice or invoice the Contractor for payment.

The Department may require the Contractor to propose and implement a reasonable corrective action plan to address and correct the root cause of any missed Performance Guarantee.

The inclusion of the Performance Guarantees in this Contract is intended to address unsatisfactory performance in the context of ongoing operations without resort to the default provisions set forth in Section 9: Events of Default and Remedies. However, if Contractor’s performance falls below the minimum level of performance for the same Performance Guarantee for three (3) quarters and such failure is not otherwise excused, then the Department may declare an Event of Default.

Contractor will be excused for failing to meet any Performance Guarantee to the extent such failure is caused by the Department not performing any of its obligations under the Contract.

Contractor will advise the Department in writing as soon as possible of any circumstance or occurrence, which could excuse or affect Contractor’s ability to achieve any of the Performance Guarantees. In all such cases, Contractor will cause to make all reasonable efforts to achieve the Performance Guarantees.

Insurance Coverage During the Contract term, Contractor will, at its sole expense, continuously maintain commercial insurance of such a type and with such terms and limits as may be reasonably associated with this Contract and as required by law. Providing and maintaining adequate insurance coverage is a material obligation of Contractor and performance may not commence on this Contract until such time as insurance is secured by the Contractor and is approved by the Department. The Department will not unreasonably withhold or delay such approval. The limits of coverage under each policy do not limit Contractor’s or Subcontractor’s liability and obligations under the Contract.

Unless otherwise agreed in writing by the Department, all insurance policies must be through insurers authorized or eligible to write policies in Florida. The Contractor shall notify the Department immediately if the Contractor loses any liability insurance coverage.

Commercial General Liability. The Contractor must continuously maintain commercial general liability insurance (inclusive of any amounts provided by an umbrella or excess policy) in the face amount of five million dollars ($5,000,000).

Workers’ Compensation Insurance. The Contractor shall continuously 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.

Professional Indemnity Insurance. Contractor must secure and continuously maintain professional indemnity insurance, also known as Errors and Omissions Insurance, that must cover professional liability and error and omissions in the face amount of $5,000,000. Contractor will indemnify, defend, and hold harmless the Department and its employees and agents, from

Attachment K: Draft Contract Page 17 of 30 and against any third-party claims, demands, loss, damage, or expense caused by Contractor in connection with the performance of the Services related to professional liability and error and omissions.

Each insurance certificate for such policy must include an agreement that the insurer will provide thirty (30) Calendar Days prior written Notice to the Department of cancellation for any coverage.

The Contractor shall provide all insurance certifications, including evidence of renewed or replaced coverage, annually, within thirty (30) Calendar Days from the expiration of any insurance policy.

Performance Bond In accordance with subsection 110.123(3)(d)2, Florida Statutes, prior to execution of the Contract, Contractor will deliver to the Department’s Contract Manager a performance bond or irrevocable letter of credit in the amount not to exceed twenty percent (20%) of the annual Contract amount, as determined by the Department. The bond or letter of credit shall be used to guarantee at least satisfactory performance by Contractor throughout the term of the Contract (including renewal years). The bond shall be maintained throughout the term of the Contract and shall be in effect for two (2) years thereafter, issued by a reliable surety company, which is licensed to do business in the State of Florida, as determined by the Department, and must include the following conditions:

Obligee: The Department shall be named as the beneficiary of the bond. The insurer or bonding company shall be obliged to cover the full cost of performance loss suffered by the State of Florida.

Notice of Attempted Change: The Contractor shall provide Department with ninety (90) Calendar Days prior written Notice or immediate Notice upon knowledge of any attempt to cancel or to make any other material change in the status, coverage, or scope of the required bond or of the Contractor’s failure to pay bond premiums.

Premiums: The Department shall not be responsible for any premiums or assessments on the bond.

Purpose of Bond: The performance bond is to protect the Department and the State against any loss sustained through failure of the Contractor to perform the Services in accordance with the Contract.

Upon execution of the Contract and by Contract year start each year following the Effective Date, the Contractor shall provide the Department with a surety bond continuation certificate or other acceptable verification that the bond is valid and has been renewed for an additional year.

As an alternative to the surety bond described in this subsection, the Contractor may use an irrevocable, letter of credit on an annually renewable basis, which in the reasonable judgment of the Department, provides substantially equivalent protection.

Contractor Events of Default Any one (1) or more of the following events by Contractor, which is not cured within ten (10) Calendar Days after receipt of Notice thereof by the Department shall constitute an Event of Default:

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• Contractor fails to pay any sum of money due hereunder;

• Contractor fails to provide the Services required under this Contract;

• Contractor employs an unauthorized alien in the performance of any work required under this

Contract;

• Contractor fails to correct work that the Department has rejected as unacceptable or unsuitable;

• Contractor discontinues the performance of the work required under this Contract;

• Contractor fails to resume work that has been discontinued within a reasonable time after

Notice to do so;

• Contractor abandons the project;

• Contractor becomes insolvent or is declared bankrupt;

• Contractor files for reorganization under the bankruptcy code;

• Contractor commits any action of bankruptcy or insolvency, either voluntarily or involuntarily;

• Contractor fails to promptly pay any and all taxes or assessments imposed by and legally due the State or federal government;

• Contractor makes an assignment for the benefit of creditors without the approval of the

Department;

• Contractor makes or has made a material misrepresentation or omission in any materials provided to the Department;

• Contractor commits any material breach of this Contract;

• Contractor fails to furnish and maintain the performance bond;

• Contractor fails to procure and maintain the required insurance policies and coverages required by this Contract;

• The Department determines that the surety issuing a bond securing Contractor’s performance of its obligations hereunder becomes insolvent or unsatisfactory;

• Contractor utilizes a Subcontractor in the performance of the work required by this Contract, which has been placed on the State’s Convicted Contractor List;

• Contractor is suspended or is removed as an authorized Contractor by any State or federal agency; or Contractor is convicted of a felony; or is placed on the State’s Convicted Vendor List; or if Contractor’s license is suspended or revoked.

• Contractor refuses to allow public access to all documents, papers, letters or other material subject to the provisions of Chapter 119, Florida Statutes, made or received by Contractor in conjunction with this Contract and not otherwise deemed confidential, proprietary or a trade secret;

• Contractor refuses to allow auditor access as required by the Contract;

• Contractor’s license to provide Services…