CTR061725_Contract_APP.pdf

SCOPE OF WORK

Contract No.: CTR061725 Description: Investment Legal Consulting Services

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The ASRS requires comprehensive investment legal counsel to support the requirements and needs of current holdings and future interests and investments. The contractor shall furnish qualified personnel and services to perform some or all the Services listed below in relation to the ASRS investment program.

1. INVESTMENT LEGAL CONSULTING SERVICES

1.1. The Contractor shall furnish qualified personnel and services to perform the Services of the Contract in relation to the ASRS investment program.

1.2. Relationship Management

1.2.1. Contractor shall, upon request, provide to ASRS a standard contact list for all services provided, including normal contacts, escalation contacts and emergency/after-hours contacts, to include work and mobile phone numbers.

1.3. Services rendered under this Contract shall comply with the ASRS Strategic Plan, the ASRS Board Governance Policy Handbook, SIP006, Strategic Asset Allocation Policy (SAAP) and the ASRS Investment Policy Statement.

1.4. The Contractor shall draft, review, analyze and negotiate investment related contracts and legal documents, as appropriate, including, but not limited to:

1.4.1. Investment management contracts and related agreements

1.4.2. International Swaps and Derivatives (ISDA) agreements and relax annex contracts

1.4.3. Futures agreements

1.4.4. Custodial banking contracts and related agreements

1.4.5. Investment consulting contracts

1.4.6. Contracts for investment research, analytical and trading systems

1.4.7. Private placement memoranda, subscription agreements, partnership agreements, side letters and other documents relating to the ASRS private equity, opportunistic equity, private debt, and opportunistic debt programs

1.4.8. Partnership agreements and other documents related to investments in:

1.4.9. Real estate separate managed accounts;

1.4.10. Private real estate domestic and international investment funds and any associated structuring or tax issues; and

1.4.11. Direct interests in real estate and real estate related assets

1.4.12. Real estate transaction documents (e.g. contracts, leases, management agreements)

1.4.13. Zoning, development agreement, affordable housing and other land use or entitlement documents

1.4.14. Entity formation documents, compliance documents and reports, certificates of good standing

1.4.15. Legislation affecting the ASRS investment program.

1.5. The Contractor shall advise and assist on investment related matters including, but not limited to:

1.5.1. Federal, state, and international tax matters and policies

1.5.2. Matters relating to proxy solicitations and proxy voting

1.5.3. Preparation and filing of reports with the Securities and Exchange Commission (SEC), including, but not limited to, Schedule 130, Schedule 13G, Form 13F and Form 13H

1.5.4. Federal securities laws

1.5.5. Securities lending

1.5.6. Best Practice/Standard Operating Procedures for ASRS operations as it relates to investments

SCOPE OF WORK

Description: Investment Legal Consulting Services

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1.5.7. Ongoing maintenance activities related to investments (e.g. insurance, compliance filings)

1.5.8. Land use, municipal finance, affordable housing, environmental and other such matters affecting the ASRS’ real estate investments

1.6. The Contractor shall maintain ASRS corporate filings for ASRS owned LLCs and other corporate entities, as needed

1.7. The Contractor shall conduct trainings once per year, as requested by the ASRS, for ASRS staff and board.

1.8. The Contractor shall report to the ASRS any activity by any person or entity in connection with the ASRS’ private markets holdings that may be acting in an illegal, unethical or inappropriate manner.

1.9. The Contractor shall coordinate with Arizona Office of the Attorney General, other ASRS contracted counsel and advisors, and opposing counsel, when necessary.

1.10. The Contractor shall review, have working knowledge of, and ensure documents prepared conform with all applicable statutory, administrative and regulatory laws and requirements.

1.11. The Contractor shall provide legal opinions on issues and activities, including but not limited to, issues related to Arizona state laws and statutes.

1.12. The Contractor shall provide any other investment legal consulting services as requested by ASRS.

All terms not defined herein shall have the meaning given to them in the Uniform Terms and Conditions.

ATTACHMENT C: Pricing Schedule ARIZONA STATE

RETIREMENT SYSTEM

3300 N Central Ave

14th Floor Phoenix, AZ 85012

Investment Legal Consulting Services Solicitation Code: BPM004386 Part 3 of 3 – Offer Forms

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US 172400615v1

The ASRS reserves the right to select the pricing method that is most advantageous to the ASRS based on the prices submitted below.

The ASRS, at its discretion, may award contracts for all or any portion of the services for which an Offeror has provided a response.

Offeror must complete the Items tab in APP by entering $1 in the Unit Price field. Failure to do this may prevent the Offer from being awarded by the ASRS through APP.

1. Hourly Fees*

State pricing below for the services described in the Scope of Work. Pricing should be provided as an hourly billable rate.

In addition to Offeror's key personnel assigned under a Contract, ASRS assumes a complement of Offeror staff may also be assigned to and work on a task or service requested by ASRS. Offeror should categorize staff by general titles/classifications and then provide the maximum (highest) hourly rate within that category that Offeror is proposing to invoice the ASRS. While Offeror may bill ASRS less than the max rate in any category of staff, it may not bill more than the rate listed on this Pricing Schedule.

Investment Legal Consulting Fees:

RATE/POSITION/TITLE MAX HOURLY

RATE

YEAR 1

GUARANTEE

MAX HOURLY

RATE

3 YR

GUARANTEE

MAX HOURLY

RATE

5 YR

GUARANTEE

Associate 2 $540 $540 **

Associate 3 $604 $604 **

Associate 4 $664 $664 **

Senior Attorney $792 $792 **

Partner / Michele J. Rowland, $844 $844 **

Partner / Stephen Culhane, $1,040 $1,040 **

*The ASRS will reimburse reasonable and allowable incidental costs (i.e. duplication/photocopy services, messenger fees) at cost. Offeror must identify all such costs separately on all invoices. Travel expenses will be reimbursed at actual amounts and according to State of Arizona travel policy. Additionally, all such travel must be approved in advance by the ASRS to be considered for reimbursement.

** Hourly Rates The hourly rates above are locked of 36 months (from June 2022 to May 2025), and subject to price adjustments for Years 4-5, as per Part 2B: Special Terms & Conditions, Section 4. Pricing and Payments, Sub-section 4.2 Price Adjustments.

Thank you for the opportunity to present this Best and Final Offer proposal to the Arizona State Retirement System (ASRS). We believe that Arnold & Porter is particularly qualified to provide excellent service and cost-effective representation of the ASRS in the proposed engagement. The firm looks forward to the opportunity to strengthen and broaden our strategic relationship and provide even greater efficiencies to the ASRS. Among the distinguishing elements of our firm and proposal are:

3300 N Central Ave

14th Floor Phoenix, AZ 85012

Investment Legal Consulting Services Solicitation Code: BPM004386 Part 3 of 3 – Offer Forms

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Comprehensive and Cost-Effective Solutions for Institutional Investors. With deep and time-tested experience advising institutional investors, Arnold & Porter’s investment management attorneys are deeply experienced in the legal aspects of institutional investment matters. The team includes fund, tax, ERISA, bank regulatory, real estate and corporate lawyers, and we draw on their respective strengths to respond nimbly and efficiently to client needs. We have reviewed many hundreds of fund and other investments for a wide range of clients. Because we see a large amount of deal flow, we have strong knowledge of market terms and are in a position to negotiate effectively on matters that are most important to our clients. Further, we represent sponsors in various funds and other investment products and can therefore appreciate the sponsor's perspective and regulatory concerns.

As part of our tax advice, we regularly advise on "unrelated business taxable income" (UBTI) issues for US tax-exempt investors and "effectively connected income," "FIRPTA," and "FATCA" issues for non-US investors. We routinely analyze whether it is tax effective for our institutional clients to invest through blockers and alternative investment vehicles.

As part of our regulatory advice, we regularly advise on compliance with investor qualification requirements under US securities laws, employee benefit plan regulations, anti-money laundering regulations, and confidentiality and freedom of information laws.

Unmatched Experience and a Deep Bench. As mentioned in our Supplemental Documents: Executive Summary, our team has deep and long-standing experience advising institutional investors, including pension plans, sovereign wealth funds, government plans and endowments, on the legal aspects of their private equity, real estate, energy, hedge fund and separate account investments and co-investments, and secondary purchases and sales of interests in funds. In addition, we routinely represent other institutional investors like funds of funds, private foundations, US banks, university endowments, retirement plans, family offices, and sovereign wealth funds and other foreign institutions. These representations provide us with detailed knowledge of evolving market terms and solutions, as well as insights into the regulatory issues and other dynamics affecting institutional investors. The cumulative experience of our proposed team will provide the ASRS with ample expertise to handle issues that may arise in negotiating investment contracts.

We would be very pleased to have the opportunity to work with you. If you have any questions or would like to discuss our proposal in further detail, please do not hesitate to reach out.

2. Optional/Alternative Pricing

Offeror may propose alternative pricing structures, including multi-year pricing, blended hourly rates, and alternative fee arrangements, provided it has submitted pricing information under item 1 above. Offeror has full discretion in what it may propose, however, the ASRS is under no obligation to accept such proposals.

It is important to a partnership between the ASRS and Arnold & Porter that the agreed upon fee arrangements reflect key priorities, goals and support key performance indicators as expressed in the ASRS Strategic Plan; the Investment Strategy (Assets, Strategy and Process) document; the Investment Policy Statement (IPS); and, Board of Governance Policy Handbook.

Arnold & Porter has implemented many alternative fee arrangements responsive to various investment-related client interests. We are interested in discussing such arrangements with the ASRS for specific matters, or more generally, for a range or volume of services that we may provide to the ASRS across our firm. This is an area in which we would invite and hope for further discussion with the ASRS in order to determine the most suitable approach or combination of arrangements.

One key element to effective aggressive alternative fee structures (e.g., fixed fees) is intensive upfront communication between the firm and the client to property define the matter’s scope of work and to mutually agree upon applicable assumptions for the engagement. Once the firm is engaged on a matter under an alternative fee arrangement, ongoing communication between the client and the firm is key in order to ensure that the firm meets and exceeds expectations.

Alternative fee types that we have used with other investment-related clients and would like to discuss with you include:

3300 N Central Ave

14th Floor Phoenix, AZ 85012

Investment Legal Consulting Services Solicitation Code: BPM004386 Part 3 of 3 – Offer Forms

Page

• Fixed or Flat Fees (all-inclusive or by task/function) provide predictability and control costs with an annualized fee or price per task/function. Fixed fees can be subject to an overall cap paid up front, or they can be for a fixed amount per month without a cap. The specific nature of a fixed fee arrangement is tailored to the nature of the given matter. Clients who desire budgeting certainty often find fixed fee arrangements attractive. Higher-volume routine projects or tasks involving a predictable amount of time are particularly suitable for this type of arrangement. The key to such an arrangement is spending time at the front end of the engagement to do an early matter assessment and then meeting with the client to define the parameters for the fee structure.

• Matter Bundling occurs when the firm is asked to handle multiple matters by a client and the firm sets an all-inclusive flat fee in much the same way in-house counsel generates a budget for its matters. This arrangement can be set for a monthly flat fee structure, subject to upwards or downward adjustment.

3. Additional Expenses (If Any)

Offeror shall include any other additional costs not previously identified above. Only reasonable and allowable costs identified on this pricing schedule will be considered for payment.

Please reference Arnold & Porter’s sample Retainer letter, Section 2. Reimbursement for Expenses for a representative list of expenses typically charged to clients as of January 1, 2022.

4. Payment Discount Options Provide any applicable discount percentages:

If payment is made within N/A calendar days after acceptance of services, the above quoted price, shall be discounted by N/A.

Arnold & Porter's standard payment terms are net 30. Because our standard payment terms are net 30 days, we will not automatically agree to a dollar or percentage discount for payment.

SPECIAL TERMS AND CONDITIONS

Description: Investment Legal Consulting Services

CONTENTS

1. DEFINITION OF TERMS

2. CONTRACT INTERPRETATION

3. CONTRACT ADMINISTRATION AND OPERATION

4. PRICING AND PAYMENTS

5. CONTRACT CHANGES

6. CONTRACT TERMINATION

7. RISK AND LIABILITY

8. INFORMATION SECURITY AND DATA PRIVACY

Description: Investment Legal Consulting Services

The Special Terms and Conditions modify the Uniform Terms and Conditions. It can modify them by replacing, deleting, appending to, or revising the text of an existing provision or by inserting a new paragraph into an existing article. No other document modifies or adds to the Uniform Terms and Conditions, except as may subsequently be otherwise and expressly agreed and incorporated by Contract Amendment.

1. DEFINITION OF TERMS

All other terms not defined herein shall have the meaning given to them in the Uniform Terms and Conditions.

1.1. “Acceptance of Offer” means the Attachment labeled “Offer and Acceptance” bearing the State contract number once the Procurement Officer has signed it to signify the (1) formal acceptance of the Offer and (2) the formation of the Contract. For clarity of intent, the foregoing is not to be confused with the term ‘acceptance’ used throughout the Contract in the context of delivery, inspection, etc., with respect to Materials or Services.

1.2. “Order” means the instrument by which ASRS authorizes Contractor to perform some or all of the Work. Whether the Contract will have one Order or many Orders depends on the scope of the Contract and how the ASRS will use it. Any of the following is to be construed as being an “Order”:

1.2.1. A purchase order;

1.2.2. A task order or service order;

1.2.3. Written correspondence or instruction.

1.3. “Subcontractor” has the meaning given in A.R.S. § 41-2503(38), which, for convenience of reference only, is “… a person who contracts to perform work or render service to … [C]ontractor or to another [S]ubcontractor as a part of a contract with a state governmental unit. . . .” The Contract is to be construed as “a contract with a state governmental unit” for purposes of the definition. For clarity of intent, a person carrying out any element of the Work is a Subcontractor from the moment they first carry out that element of the Work regardless of whether or not a Subcontract exists then or subsequently.

1.4. “Work” means the totality of the materials and the Services and all the acts of administration, creation, production, and performance necessary to fulfill and incidental to fulfilling all of Contractor's obligations and duties under the Contract in conformance with the Contract and applicable laws.

2. CONTRACT INTERPRETATION

2.1. Usage. Where the Contract:

2.1.1. assigns obligations to Contractor, any reference to “Contractor” is to be construed to be a reference to Contractor and all Subcontractors, whether they are first-tier subcontractors, sub-subcontractors, suppliers, sub-suppliers, consultants, or sub-consultants, as well as all of Contractor’s and the Subcontractors’ respective agents, representatives, and employees in every instance unless the context plainly requires that it is be a reference only to Contractor as apart from Subcontractors;

2.1.2. uses the permissive “may” with respect to a party’s actions, determinations, etc., the term is to be interpreted as in A.A.C. R2-7-101(31) [Definitions]. For clarity of intent, any right given to ASRS using “ASRS may” or a like construction denotes discretion and freedom to act so far as any regulatory or operative constraints permit in the relevant circumstances, provided that: (a) where written “may, at its discretion,” the discretion extends to whatever is most advantageous to ASRS; and (b) where written only as “may,” the discretion is constrained by what is fair, reasonable, and as accommodating of the respective best interests of both parties as practicable under the circumstances;

2.1.3. uses the imperative “shall” with respect to a party’s actions, duties, etc., the term is to be interpreted as in A.A.C. R2-7-101(43) [Definitions]. Conversely, the phrase “shall not” is to be interpreted as an imperative prohibition.

2.1.4. uses the term “must” with respect to a requirement, criterion, etc., the term is to be interpreted as conveying compulsion or strict necessity, and is to be read as though written “must, if [the subject] is to be entitled to have [the object] considered or credited as being compliant with, conforming to, or satisfying [the requirement, criterion, constraint, etc.], otherwise, [the object] will be considered or debited as being non-compliant, non-conforming, or unsatisfactory for its Contract-related purposes” in every instance;

Description: Investment Legal Consulting Services

2.1.5. uses the term “might” with respect to an event, outcome, action, etc., the term is to be interpreted as conveying contingency or non-discretionary conditionality; and

2.1.6. uses the term “will” or the phrases “is to be” or “are to be” with respect to an event, outcome, action, etc., the term or phrase is to be interpreted as conveying such certainty or imperativeness that “shall” is either unnecessary or irrelevant in that instance.

2.2. Independent Contractor. Contractor is an independent contractor and shall act in an independent capacity in performance under the Contract. Neither party is or is to be construed as being to be the employee or agent of the other party, and no action, inaction, event, or circumstance will be grounds for deeming it to be so.

2.3. Complete Integration. The Contract, including any documents incorporated into the Contract by reference, is intended by the parties as a final and complete expression of their agreement. There are no prior, contemporaneous, or additional agreements, either oral or in writing, pertaining to the Contract.

3. CONTRACT ADMINISTRATION AND OPERATION

3.1. Authority to Contract. This Contract activity is issued under the authority of the State Procurement Administrator, through the Arizona State Retirement System (“ASRS”). No alteration of any portion of the Contract, any services awarded, or any other agreement that is based upon this Contract may be made without express written approval of the ASRS Chief Procurement Officer or other personnel delegated authority in the form of an official Contract Amendment. Any such action is subject to the legal and contractual remedies available to the State inclusive of, but not limited to, Contract termination, cancellation, suspension, and/or debarment of the Contractor.

3.2. Contract Applicability. Any Contract resulting from this Solicitation shall be for the exclusive use of the ASRS.

3.3. Contract Usage. Contractor shall understand and agree that no quantity of service is guaranteed under the Contract and that ASRS does not guarantee that Contractor’s services will be utilized to any degree. ASRS reserves the right to contract for the services as a whole, or any of the various parts/scenarios listed separately.

3.4. Term of Contract. The term of the Contract shall commence on the effective date indicated in the “Acceptance of Offer” and shall remain in effect for a period of twelve (12) months thereafter unless terminated, canceled or extended as otherwise provided herein.

3.5. Contract Extensions. The Contract shall not bind nor purport to bind the ASRS for any contractual commitment in excess of the original Contract term. The ASRS shall have the right, as its sole option, to extend the Contract for one or more months, provided that the maximum aggregate term of the Contract including extensions cannot exceed five (5) years. If the ASRS exercises such rights, all terms, conditions, and provisions of the original Contract shall remain the same and apply during an extension period.

3.5.1. The Contractor shall provide the ASRS with notice of any requests for program/operation changes or modifications of any type, including those on price, at least ninety (90) days prior to the effective date for each extension period. Any such request shall be accompanied by supporting documentation.

3.6. Notices. All notices, requests, demands, consents, approvals, and other communications which may or are required to be served or given hereunder (collectively, “Notices”):

3.6.1. If intended for the ASRS, shall be hand-delivered, emailed to ASRSProcurement@azasrs.gov or sent by registered or certified United States mail, return receipt requested, postage prepaid, and addressed to the ASRS as indicated on the Offer and Acceptance document of this Contract or to such other address as may from time be furnished in writing to the Contractor.

3.6.2. If intended for the Contractor, such Notice shall be given to the person named in the Offer and Acceptance document of this Contract or to such other person as the Contractor may from time to time furnish in writing to the ASRS.

3.6.3. Any Notice so given shall be deemed to have been given as of the date such Notice is received as shown on the return receipt or on the date such Notice is personally delivered to the other party.

3.7. Key Personnel. It is essential that the Contractor provide an adequate staff of experienced personnel capable of and devoted to the successful accomplishment of work to be performed under this Contract. The Contractor must assign specific individuals, including a lead attorney to the key positions. Once key personnel are assigned to work under the Contract, the ASRS shall have the opportunity to review the qualifications and approve the assignment of additional or replacement key personnel.

mailto:ASRSProcurement@azasrs.gov

Description: Investment Legal Consulting Services

3.8. Offers of Employment

The Contractor shall comply with A.R.S. § 41-2517, as it relates to a person, firm or lobbyist making an offer of employment to an employee having a significant procurement role, as defined in A.R.S. § 41-741 and A.R.S. § 41- 2503.

4. PRICING AND PAYMENTS

4.1. Most Favored Client Pricing. Contractor represents and warrants that its fee structure under this Contract is, and at all times during the term of this Contract and any extension will remain, the equal of or less than any fee structure offered for similar services to any other of its customers. Within thirty (30) days of offering a more advantageous fee structure to any other customer, Contractor shall offer the ASRS for immediate implementation at least the same fee structure.

4.2. Price Adjustments

4.2.1. The Contractor shall agree that the prices stated in the original Contract shall not be increased unless otherwise negotiated.

4.2.2. A price increase adjustment shall only be considered at the time of a contract extension and shall be a factor in the extension review process. The ASRS shall determine whether the requested price increase or an alternate option is in the best interest of the ASRS.

4.2.3. Price reduction may be offered at any time during the term of the Contract and shall become effective upon acceptance by the ASRS.

4.2.4. The Contractor understands and agrees the needs of the ASRS may change during the life of the Contract and the ASRS may propose changes to any part of this Contract with a commensurate, fair, and equitable adjustment in price. Any such changes shall be made in accordance with Article 5.1 (Amendments) of the Uniform Terms and Conditions of this Contract.

4.3. Billing

4.3.1. All billing notices should be identified by Contractor’s name, list the Contract number, and clearly identify the line item, if applicable. Billing notices or invoices must be submitted by email to: asrsap@azasrs.gov.

4.3.2. Without prejudice to its other rights under the Contract or further obligation to Contractor, the ASRS may, at its discretion, reject any material defective invoice if it is determined that the invoice is materially defective.

4.3.3. If ASRS determines that an over-payment has been made to Contractor on any prior invoice, ASRS may deduct the over-paid amount from amounts then or thereafter due to Contractor.

4.4. Travel. In accordance the Pricing Schedule, travel must be inclusive of all fee. ASRS will not reimburse travel expenses unless ASRS requests travel not related to services contemplated within the Contract. In the case of ASRS approved travel expense reimbursement, Contractor may be reimbursed travel expenses in accordance with the published rates specified in the State of Arizona Travel Policy, located at https://gao.az.gov/travel/welcome-gao-travel, and incorporated herein.

4.5. Discounts. Contractor will apply discounts in accordance with the Pricing Schedule or subsequent Contract Amendment. Payment discount periods shall be computed from the date of receipt of services or correct invoice, whichever is later, to the date the ASRS makes payment. Unless charges are itemized, any discount provided shall be taken on full amount of the invoice. The ASRS shall be entitled to take advantage of any payment discount offered by Contractor provided payment is made within the discount period.

5. CONTRACT CHANGES

5.1. Contract Amendments. The Contract may be modified only through a Contract Amendment within the scope of the Contract. Changes to the Contract, including the addition of Work or Materials, the revision of payment terms, or the substitution of Work or Materials, directed by a person who is not specifically authorized by the Procurement Officer in writing or made unilaterally by Contractor are violations of the Contract and of applicable law. Such changes, including unauthorized written Contract Amendments shall be void and without effect, and Contractor shall not be entitled to any claim under this Contract based on those changes.

https://gao.az.gov/travel/welcome-gao-travel

Description: Investment Legal Consulting Services

5.1.1. Signing of Contract Amendments. Both ASRS and Contractor signatures are required to give effect to a Contract Amendment, except that Contractor’s countersignature – or “approval” in the Arizona Procurement Portal (APP) – is not required to give effect if the Contract Amendment only covers either:

5.1.1.1. extension of the term of the Contract within the maximum aggregate term; or

5.1.1.2. modifications of a clerical nature that have no effect on terms, conditions, price, scope, or other material aspect of the Contract.

5.2. Contract Assignment. Contractor may not assign, transfer or convey any of its rights or obligations under this Contract without the written permission of the ASRS.

6. CONTRACT TERMINATION

6.1. Termination for Default

6.1.1. The ASRS reserves the right to terminate the whole or any part of this Contract due to failure of Contractor to carry out any obligation, term, or condition of the Contract, subject to sections 6.2 and 6.3 below.

6.1.1.1. The ASRS will issue a written ten (10) day notice of default to the Contractor for acting or failing to act, including in doing the following:

6.1.1.2. The Contractor fails to adequately perform the services set forth in the Scope of Work of the Contract;

6.1.1.3. The Contractor fails to complete the work required within the time stipulated in the Contract;

6.1.1.4. The Contractor attempts to impose on the ASRS, personnel which are of an unacceptable quality;

6.1.1.5. The Contractor fails to make progress in the performance of the Contract and/or gives the ASRS reason to believe the Contractor will not or cannot perform to the requirements of the Contract.

6.2. If the Contractor does not correct the above problem(s) within ten (10) days after receiving the notice of default, the ASRS may terminate the Contract. If the ASRS terminates the Contract pursuant to this clause, the ASRS reserves all rights or claims to damage for breach of contract.

6.3. The ASRS may recover reasonable excess costs from the Contractor by:

6.3.1.1. Deduction from an unpaid balance;

6.3.1.2. Collection against the offer and/or performance bond; or

6.3.1.3. Any combination of the above or any other remedies as provided by law.

6.4. Termination for Convenience. The Contract is for the convenience of the ASRS and as such may be terminated without default by the ASRS when in the best interest of the ASRS by providing a written thirty (30) day notice of termination to Contractor.

6.5. Performance of Contract Following Termination or Expiration. In the event the Contract expires or is terminated for any reason or cause, Contractor agrees to continue performance of its duties, if so requested by the ASRS, as though no expiration or termination had occurred for a period not to exceed six (6) months from the first day of the month following termination. Contractor shall cooperate fully with a replacement service contractor (“Replacement Contractor”) who assumes the Services under the Contract. In such event, Contractor shall continue to receive compensation set forth in the Contract unless modified by Contract Amendment to address unforeseen transition costs.

7. RISK AND LIABILITY

7.1. Risk of Loss. Contractor shall bear all risk of loss to Materials while in pre-production, production, storage, transit, staging, assembly, installation, testing, and commissioning, if and as those duties are within the scope of the Work, until they have been accepted as conforming by State in the particular location and situation specified in the Order, Description: Investment Legal Consulting Services or as specified generally elsewhere in the Contract if the Order does not provide particulars, provided that, risk of loss for nonconforming Materials will remain with Contractor notwithstanding acceptance to the extent the loss stems from the nonconformance.

7.2. Indemnification Clause

To the fullest extent permitted by law, Contractor shall defend, indemnify, and hold harmless the State of Arizona, and its departments, agencies, boards, commissions, universities, officers, officials, agents, and employees (hereinafter referred to as “Indemnitee”) from and against any and all claims, actions, liabilities, damages, losses, or expenses (including court costs, attorneys’ fees, and costs of claim processing, investigation and litigation) (hereinafter referred to as “Claims”) for bodily injury or personal injury (including death), or loss or damage to tangible or intangible property caused, or alleged to be caused, in whole or in part, by the negligent or willful acts or omissions of Contractor or any of its owners, officers, directors, agents, employees or subcontractors. This indemnity includes any claim or amount arising out of, or recovered under, the Workers’ Compensation Law or arising out of the failure of such Contractor to conform to any federal, state, or local law, statute, ordinance, rule, regulation, or court decree. It is the specific intention of the parties that the Indemnitee shall, in all instances, except for Claims arising solely from the negligent or willful acts or omissions of the Indemnitee, be indemnified by Contractor from and against any and all claims. It is agreed that Contractor will be responsible for primary loss investigation, defense, and judgment costs where this indemnification is applicable. In consideration of the award of this contract, the Contractor agrees to waive all rights of subrogation against the State of Arizona, its officers, officials, agents, and employees for losses arising from the work performed by the Contractor for the State of Arizona. This indemnity shall not apply if the contractor or sub-contractor(s) is/are an agency, board, commission or university of the State of Arizona.

7.3. Limitation of Liability

First Party Limitation of Liability Contractor's liability for first party damages to the ASRS arising from this Contract shall be limited to two time(s) the maximum-not-to-exceed amount of this Contract. The foregoing limitation of liability shall not apply to: (i) liability, including indemnification obligations, for third party claims, including but not limited to, infringement of third party intellectual property rights; (ii) claims covered by any specific provision of the Contract calling for liquidated damages or other amounts, including but not limited to, performance requirements; or (iii) costs or attorneys' fees that the ASRS is entitled to recover as a prevailing party in any action.

7.4. Contractor Insurance

7.4.1. The Insurance Requirements herein are minimum requirements for this Contract and in no way limit the indemnity covenants contained in this Contract. The State of Arizona in no way warrants that the minimum limits contained herein are sufficient to protect the Contractor from liabilities that arise out of the performance of the work under this Contract by the Contractor, its agents, representatives, employees or subcontractors, and the Contractor is free to purchase additional insurance.

MINIMUM SCOPE AND LIMITS OF INSURANCE

Contractor shall provide coverage with limits of liability not less than those stated below.

1. Commercial General Liability (CGL) – Occurrence Form

Policy shall include bodily injury, property damage, and broad from contractual liability coverage.

• General Aggregate $2,000,000

• Products – Completed Operations Aggregate $1,000,000

• Personal and Advertising Injury $1,000,000

• Damage to Rented Premises $50,000

• Each Occurrence $1,000,000

a. The policy shall be endorsed, as required by this written agreement, to include the State of Arizona, and its departments, agencies, boards, commissions, universities, officers, officials, agents, and employees

Description: Investment Legal Consulting Services as additional insureds with respect to liability arising out of the activities performed by or on behalf of the Contractor.

b. Policy shall contain a waiver of subrogation endorsement, as required by this written agreement, in favor of the State of Arizona, and its departments, agencies, boards, commissions, universities, officers, officials, agents, and employees for losses arising from work performed by or on behalf of the Contractor.

2. Business Automobile Liability

Bodily Injury and Property Damage for any owned, hired, and/or non- owned automobiles used in the performance of this Contract.

• Combined Single Limit (CSL) $1,000,000

a. Policy shall be endorsed, as required by this written agreement, to include the State of Arizona, and its departments, agencies, boards, commissions, universities, officers, officials, agents, and employees as additional insureds with respect to liability arising out of the activities performed by, or on behalf of, the Contractor involving automobiles owned, hired and/or non-owned by the Contractor.

b. Policy shall contain a waiver of subrogation endorsement as required by this written agreement in favor officials, agents, and employees for losses arising from work performed by or on behalf of the Contractor.

3. Workers’ Compensation and Employers' Liability

• Workers' Compensation Statutory

• Employers' Liability

Each Accident $1,000,000 Disease – Each Employee $1,000,000 Disease – Policy Limit $1,000,000

a. Policy shall contain a waiver of subrogation endorsement, as required by this written agreement, in favor officials, agents, and employees for losses arising from work performed by or on behalf of the Contractor.

b. This requirement shall not apply to each Contractor or subcontractor that is exempt under A.R.S. § 23- 901, and when such Contractor or subcontractor executes the appropriate waiver form (Sole Proprietor or Independent Contractor).

4. Professional Liability (Errors and Omissions Liability)

• Each Claim $2,000,000

• Annual Aggregate $2,000,000

a. In the event that the Professional Liability insurance required by this Contract is written on a claims-made basis, Contractor warrants that any retroactive date under the policy shall precede the effective date of this Contract and, either continuous coverage will be maintained, or an extended discovery period will be exercised, for a period of two (2) years beginning at the time work under this Contract is completed.

b. The policy shall cover professional misconduct or negligent acts for those positions defined in the Scope of Work of this contract.

7.5. Additional Insurance Requirements

The policies shall include, or be endorsed to include, as required by this Contract, the following provisions:

7.5.1. The Contractor's policies, as applicable, shall stipulate that the insurance afforded the Contractor shall be primary and that any insurance carried by the ASRS, its agents, officials, employees or the State of Arizona shall be excess and not contributory insurance, as provided by A.R.S. § 41-621 (E).

7.5.2. Insurance provided by the Contractor shall not limit the Contractor’s liability assumed under the indemnification provisions of this Contract.

7.6. Notice of Cancellation

Applicable to all insurance policies required within the Insurance Requirements of this Contract, Contractor’s insurance shall not be permitted to expire, be suspended, be canceled, or be materially changed for any reason

Description: Investment Legal Consulting Services without thirty (30) days prior written notice to the ASRS. Within two (2) business days of receipt, Contractor must provide notice to the ASRS if they receive notice of a policy that has been or will be suspended, canceled, materially changed for any reason, has expired, or will be expiring. Such notice shall be sent directly to the ASRS and shall be emailed to ASRSProcurement@azasrs.gov.

7.7. Acceptability of Insurers

Contractor’s insurance shall be placed with companies licensed in the State of Arizona or hold approved non-admitted status on the Arizona Department of Insurance List of Qualified Unauthorized Insurers. Insurers shall have an “A.M. Best” rating of not less than A- VII. The ASRS in no way warrants that the above-required minimum insurer rating is sufficient to protect the Contractor from potential insurer insolvency.

7.8. Verification of Coverage

Contractor shall furnish the ASRS with certificates of insurance (valid ACORD form or equivalent) evidencing that Contractor has the insurance as required by this Contract. An authorized representative of the insurer shall sign the certificates.

7.8.1. All such certificates of insurance and policy endorsements must be received by the ASRS before work commences. The ASRS’s receipt of any certificates of insurance or policy endorsements that do not comply with this written agreement shall not waive or otherwise affect the requirements of this Contract.

7.8.2. Each insurance policy required by this Contract must be in effect at, or prior to, commencement of work under this Contract. Failure to maintain the insurance policies as required by this Contract, or to provide evidence of renewal, is a material breach of contract.

7.8.3. All certificates required by this Contract shall be sent directly to the ASRS by email to ASRSProcurement@azasrs.gov. The ASRS Contract number and project description should be noted on the certificate of insurance. The State of Arizona reserves the right to require complete copies of all insurance policies required by this Contract at any time.

7.9. Subcontractors

Contractor’s certificate(s) shall include all subcontractors as insureds under its policies or Contractor shall be responsible for ensuring and/or verifying that all subcontractors have valid and collectable insurance as evidenced by the certificates of insurance and endorsements for each subcontractor. All coverages for subcontractors shall be subject to the minimum Insurance Requirements identified above. The ASRS reserves the right to require, at any time throughout the life of this contract, proof from the Contractor that its subcontractors have the required coverage.

7.10. Approval and Modifications

The ASRS, in consultation with ADOA-Risk Management Division, reserves the right to review or make modifications to the insurance limits, required coverages, or endorsements throughout the life of this contract, as deemed necessary. Such action will not require a formal Contract amendment but may be made by administrative action.

8. INFORMATION SECURITY AND DATA PRIVACY

8.1. Applicability. Article 8 applies to the extent the Work includes handling of any (1) ASRS proprietary and sensitive data or (2) confidential or access-restricted information obtained from the ASRS or from others at ASRS’s behest.

8.2. Definitions. For the purposes of this Article:

8.2.1. “Confidential Information” (CI) means data that is protected from unauthorized disclosure based on laws, regulations, and other legal agreements. CI includes critical business infrastructure information as defined by A.R.S. § 41-1801.

8.2.2. “Incident” means an act of violating an explicit or implied security or privacy policy. The definition includes but is not limited to types of activities that are widely recognized as being in violation of policy:

8.2.2.1. Attempts (either failed or successful) to gain unauthorized access to a system or it’s data/information;

8.2.2.2. Unwanted disruption or denial of service;

8.2.2.3. The unauthorized use of a system for the processing or storage of data;

Description: Investment Legal Consulting Services

8.2.2.4. Changes to system hardware, firmware, or software characteristics without the owner’s knowledge, instruction or consent; and

8.2.2.5. Unauthorized access, alteration, disclosure, loss, theft or acquisition of non-electronic confidential information.

8.2.3. “Personal Information” (A.R.S. § 18-551(7(a)(b))) means

8.2.3.1. Any of the following: An individual’s first name or first initial and last name in combination with one or more specified data elements.

8.2.3.2. An individual’s user name or e-mail address, in combination with a password or security question and answer, that allows access to an online account.

8.2.3.3. Does not include publicly available information that is lawfully made available to the general public from federal, state or local government records or widely distributed media.

8.2.4. “Personally Identifiable Information” (PII) means any information about an individual maintained by an agency, including (1) any information that can be used to distinguish or trace an individual’s identity, such as name, social security number, date and place of birth, mother’s maiden name, or biometric records; and

(2) any other information that is linked or linkable to an individual, such as medical, educational, financial, and employment information.

8.2.5. “Sensitive Data” means data that is private, personal, or proprietary and must be protected from unauthorized access. This may include personal identifying information as defined in the Arizona Revised Statutes, Title 18, Chapter 5, Article 2, Government Anti-Identification Procedures (A.R.S. § 18-521 and § 18-522) when such information is not otherwise defined as PI of CI.

8.2.6. “Unauthorized Access” occurs when a user, legitimate or unauthorized, accesses a resource that the user is not permitted to use or any access that violates a stated security policy. It may include the loss or other unauthorized access of a device, technology component or record containing PI, CI or Sensitive Data or the destruction/disposal of records that does not comply with the Arizona Record Destruction Law, A.R.S.

§ 44-7601.

8.3. Contractor’s Obligation Regarding Information Security and Data Privacy

8.3.1. Contractor shall establish and maintain procedures and controls acceptable to the ASRS for the purpose of ensuring that the ASRS’s proprietary information or any PI, CI, or Sensitive Data in Contractor’s possession and contained in its records is protected from unauthorized access and is accessed, viewed, used, disclosed, retained or disposed of by its agents, subcontractors, officers or employees only as intended or approved in writing by the ASRS and consistent with applicable law.

8.3.1.1. Contractor shall abide by and secure data related to the performance of this Contract in a manner substantially similar to the State of Arizona’s policy or its corresponding standards for data classification (https://aset.az.gov/resources/psp).

8.3.2. Contractor acknowledges that all information disclosed to it concerning the ASRS’s operations during performance of the Contract and after the full term of the Contract shall not be disclosed to other parties except as determined necessary by the ASRS and only with the ASRS’s prior written consent.

8.3.3. The ASRS shall have the right to assess, inspect, review, monitor and validate compliance with information and data requirements of the Contract. The ASRS’s right to inspect shall apply to all physical locations where performance of this Contract occurs, to personnel performing work authorized by this Contract, to any records (as defined by A.R.S. §41-151.18) or devices used in performance of this Contract, and to documented policies and procedures, including but not limited to information security and privacy controls.

The right to inspect shall apply to all subcontractors or other agents who perform under the Contract.

8.4. Information Security and Data Privacy Incident Reporting To comply with 8.3, unless authorized by law or in writing by the ASRS, Contractor shall report any unauthorized use or disclose of CI or Sensitive Data. Contractor shall make the report to the ASRS’s Privacy or Information Security Officer within 24 hours after the Contractor learns of the unauthorized access, use or disclosure. In its report, the Contractor shall, at a minimum:

8.4.1. Identify the nature of the unauthorized access, use or disclosure;

8.4.2. Identify the CI or Sensitive Data accessed, used or disclosed;

8.4.3. Identify who made the unauthorized access/use or received the unauthorized disclosure;

https://aset.az.gov/resources/psp

Description: Investment Legal Consulting Services

8.4.4. Identify what Contractor has done or will do to mitigate or contain the risk of harm of the unauthorized access, use or disclosure;

8.4.5. Identify what corrective action Contractor has taken or shall take to prevent future similar unauthorized access, use or disclosure; and

8.4.6. Provide such other information, including a written report as requested by the ASRS’s Privacy or Information Security Officer.

8.5. Unauthorized Access Mitigation

8.5.1. The Contractor agrees to mitigate, to the extent practicable, any harmful effect that is known to the

Contractor of an access, use or disclosure of the ASRS’s information in violation of the requirements of this Contract.

8.5.2. Mitigation will include the Contractor’s cooperation with the ASRS to investigate the unauthorized access, use or disclosure, identify the individuals and their contact information for purposes of breach notification and other collaboration as may be reasonably requested to notify, respond to inquiries and remediate the risk associated with the unauthorized access, including credit protection or other information theft prevention services. The ASRS at its sole discretion may require the Contractor to pay for or reimburse the ASRS for expenses and costs associated with unauthorized access and risk mitigation.

8.6. Secure Facilities

8.6.1. The Contractor’s work area(s) shall provide for a secure locked location where uncompleted work shall be stored. This area shall be secure enough whereby access by unauthorized personnel shall be restricted or eliminated. The ASRS reserves the right to visit the Contractors to confirm security, throughout the term of the Contract.

8.6.2. Upon termination of the Contract, all goods, materials, documents, data and reports prepared by the Contractor under the Contract shall become the property of and be delivered to the ASRS upon request.

The Contractor must ensure that all digital storage devices containing ASRS data, including data storage at the native file level, are sanitized, and electronic media have been cleared, purged, or destroyed consistent with NIST Special Publication 800–88, Guidelines for Media Sanitization, 6 such that the information or data cannot be retrieved. (see https://www.nist.gov/publications/nist-special-publication-800- 88-revision-1-guidelines-media-sanitization). Contractor may retain copies as applicable in order to meet its record retention requirements.

8.6.3. Contractor must provide the ASRS with an information…