Exhibit 5 - Draft Contract.pdf

EXHIBIT 5

DRAFT CONTRACT FOR

STATE UNIVERSITY SYSTEM OPTIONAL RETIREMENT

PROGRAM (SUSORP) 403(B)

and

SENIOR MANAGEMENT SERVICE OPTIONAL ANNUITY

PROGRAM (SMSOAP) 401(A)

ITN NO. DMS-24/25-199

BETWEEN

THE STATE OF FLORIDA

DEPARTMENT OF MANAGEMENT SERVICES

AND

<<PARTY NAME>>

4050 Esplanade Way Tallahassee, FL 32399-0950

Ron DeSantis, Governor Pedro Allende, Secretary

DMS-24/25-199

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TABLE OF CONTENTS

SECTION 1. DEFINITIONS

SECTION 2. TERM

SECTION 3. PAYMENTS

SECTION 4. CONTRACT DOCUMENTS AND HIERARCHY

SECTION 5. CONTRACT ADMINISTRATION

SECTION 6. COMPLIANCE WITH LAWS

SECTION 7. DEPARTMENT OF STATE, CORPORATE STATUS CERTIFICATE

SECTION 8. LIABILITY AND WORKER’S COMPENSATION INSURANCE

SECTION 9. PUBLIC RECORDS

SECTION 10. INTELLECTUAL PROPERTY

SECTION 11. RECORDS RETENTION

SECTION 12. GIFTS

SECTION 13. MONITORING BY THE DEPARTMENT

SECTION 14. AUDITS & INSPECTION OF RECORDS, PAPERS, AND DOCUMENTS

SECTION 15. BACKGROUND SCREENING, RECORD RETENTION, AND WARRANTY OF

SECURITY

SECTION 16. PERFORMANCE BOND

SECTION 17. NO OFFSHORING

SECTION 18. PREFERRED PRICING AFFIDAVIT

SECTION 19. SECTION 508 COMPLIANCE

SECTION 20. SUBCONTRACTORS

SECTION 21. CONDUCT OF BUSINESS

SECTION 22. SPECIFIC APPROPRIATION

SECTION 23. EVENT OF DEFAULT

SUSORP/SMSOAP Page 3 of 21

Contract

This Contract No. DMS-24/25-199 (Contract) is between the STATE OF FLORIDA (State), DEPARTMENT OF MANAGEMENT SERVICES (Department), with its principal place of business at 4050 Esplanade Way, Tallahassee, Florida 32399-0950, and TBD (Contractor) with its principal place of business at (Contractor Address), each a “Party” and referred to herein collectively as the “Parties.”

WHEREAS, the Department issued Invitation to Negotiate (ITN) Solicitation No. DMS-24/25-199, State University System Optional Retirement Program (SUSORP) 403(B) and Senior Management Service Optional Annuity Program (SMSOAP) 401(A), pursuant to section 287.057(1)(c), Florida Statutes (F.S.), and Contractor was selected for award.

The Parties, therefore, agree as follows:

SECTION 1. DEFINITIONS

The following definitions apply in addition to the definitions in the PUR 1000, incorporated below.

1.1 Authorized Products - The investments approved by the Department pursuant to the terms of this Contract to be sold or offered for sale by Service Provider to Members of the SUSORP or the SMSOAP. This includes products sold under a prior contract. A current list of products is included in Attachment M – List of Authorized Products.

1.2 Business Day: Monday through Friday, inclusive, except for those holidays specified in section 110.117, F.S., from 8:00 a.m. – 5:00 p.m., Eastern time.

1.3 Calendar Day - Any day in a month, including weekends and holidays.

1.4 Confidential Information: Information or material which (i) meets the definition of “Trade Secret” in section 812.081(1)(c), F.S.; or (ii) is otherwise exempt from the disclosure of public records required by Article I, Section 24, Florida Constitution (exemptions may be found in Chapter 119, F.S., other Florida laws, and preempting Federal laws or regulations).

1.5 Contract: The binding agreement resulting from ITN No.: DMS-24/25-199 between the Department and the Contractor and consisting of the Contract Documents set forth in Section 4 herein.

1.6 Contract Manager: The representative designated by the Department who will oversee all aspects of the Contract, monitor performance expectations, and serve as the Department’s primary point of contact for the Contractor.

1.7 Service Provider – The awarded vendor that provides individual contracts or individual certif icates issued for group annuity or other contracts, which may be fixed, variable, or a combination thereof, in accordance with s. 403(b) of the Internal Revenue Code. The terms “Service Provider” and “Contractor” are intended to be used interchangeably.

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SECTION 2. TERM

2.1 Initial Term

The initial term of the Contract will be for five (5) years. The initial Contract term shall begin TBD or on the latest date this Contract is fully signed by all Parties, whichever is later.

2.2 Renewal Term

Upon written agreement, the Department and the Contractor may renew the Contract in whole or in part, for up to five (5) years. The Contract may only be renewed in accordance with section 287.057(14), F.S. Any renewals shall be contingent upon satisfactory performance evaluations by the Department.

2.3 Termination

The Department, by thirty (30) Calendar days advance written notice to Contractor, may terminate the Contract in whole or in part when the Department determines in its sole discretion that it is in the Department’s best interest to do so. Contractor will not furnish any services after termination of the Contract, except as necessary to complete any continued portion of the Contract, as further detailed in Section 13, Survivability and of Attachment B – Statement of Work. If the Contract is terminated before performance is completed, Contractor will not be entitled to recover any lost profits, consequential damages, special, punitive, consequential, or indirect damages or any other damages other than the payment amounts due for performance until the effective date of termination.

SECTION 3. PAYMENTS

3.1 Pricing

3.1.2 The Service Provider shall provide all services under this Contract at no cost to the Department.

3.1.3 The Service Provider shall receive compensation only through fees charged to the Members pursuant to Exhibit 3 – Cost Reply, and no costs shall be charged to the Department or an Employer.

3.1.4 Exhibit 2 – Investment Line-up Information and Investment-Related Fees

3.1.4.1 Fees will apply to the entire term of the Contract. This includes renewal years and any Contract extensions, should any be required.

3.1.4.2 Should the mutual fund company or sub-advisor initiate

Authorized Product price changes, the Service Provider shall provide the Department with 30 Calendar Days advance written notice.

3.1.4.3 Exhibit 2 will not be modified throughout the Contract term unless agreed to by the Parties via an amendment to the Contract.

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3.1.5 Exhibit 3 – Cost Reply

3.1.5.1 Fees will apply for the entire term of the Contract. This includes renewal years and any Contract extensions, should any be required.

3.1.5.2 The Service Provider will assess the same Per-Member fee, as listed in Exhibit 3 – Cost Reply, for both SUSORP and SMSOAP Members for the entire Contract term.

3.1.6 Optional services selected by a Member may be subject to additional fees assed in excess of the per Member fee set by Contract.

3.2 Bills for Travel

Travel expenses are not permitted under this Contract.

SECTION 4. CONTRACT DOCUMENTS AND HIERARCHY

This Contract sets forth the entire understanding of the Parties and consists of the incorporated documents listed below which are incorporated in their entirety into, and form part of this Contract. In the event any of these documents conflict, the conflict wi ll be resolved in the following order of priority (highest to lowest):

a. Any amendments to this Contract in reverse order of issuance

b. This Contract document

c. Attachment B – Statement of Work

d. Exhibit 3 – Cost Reply

e. Attachment C – Deliverables and Performance Measures

f. Attachment D – Weekly Distribution Report File Format

g. Attachment E – Quarterly Assets Under Management Report

h. Attachment F – Quarterly Authorized Product Performance and Fee Report Format

i. Attachment G – Investment Policy Statement

j. Attachment H – Quarterly Performance Measures and Deliverables Report Format

k. Attachment I – Quarterly Reconciliation Report File Format

l. Attachment J – Distribution Authorization File Format

m. Attachment K – Remittance File Format

n. Attachment L – Confidentiality and Non-Disclosure Agreement1

o. Attachment M – List of Authorized Products

p. The General Contract Conditions (PUR 1000), which is incorporated by reference and can be accessed at:

PUR 1000 (General Contract Conditions).pdf (ccplatform.net) PUR 7801 Vendor Certif ication Form PUR 1355 Foreign Country of Concern Attestation PUR 2024 Use of Coercion for Labor and Services

q. Contractor’s response submitted in response to Solicitation No: DMS-24/25-199.

1 Attachment L shall be executed by the Service Provider upon Contract execution and required by all Department-approved subcontractors.

https://dms-media.ccplatform.net/content/download/2933/file/PUR%201000%20%28General%20Contract%20Conditions%29.pdf https://www.dms.myflorida.com/content/download/168924/file/pur%202024%20use%20of%20coercion%20forced%20labor%20combined%20final.docx

SUSORP/SMSOAP Page 6 of 21

SECTION 5. CONTRACT ADMINISTRATION

5.1 Department Contract Administrator

The Contract Administrator whose responsibilities will be to maintain this Contract is as follows:

Alisha Morgan Florida Department of Management Services Departmental Purchasing 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 Email: DMS.Purchasing@dms.fl.gov

In the event that the Department changes the Contract Administrator, the Department will notify the Contractor in writing via email. Such changes do not require a formal written amendment to the Contract.

5.2 Department Contract Manager

The Department’s Contract Manager who is primarily responsible for overseeing the Contractor’s performance of its duties and obligations pursuant to the terms of this Contract is as follows:

Ben Hensarling, Deputy Director of Member Services Bureau of Business Support Services Florida Department of Management Services Division of Retirement Tallahassee, Florida 32399 Telephone: (850) 778-4691 Email: ben.hensarling@dms.fl.gov

In the event that the Department changes the Department Contract Manager, the Department will notify the Contractor in writing via email. Such changes do not require a formal written amendment to the Contract.

5.3 Contractor Representative

The Contractor’s employee who is primarily responsible for overseeing the Contractor’s performance of its duties and obligations pursuant to the terms of this Contract shall be:

<Insert Contractor Representative Name> <Insert Contractor Name> <Insert Contractor Physical Address> Telephone: (XXX) XXX-XXXX Email: <Insert Representative Email>

In the event that the Contractor changes the Contractor Representative, the Contractor will notify the Department in writing via email. Such changes do not require a formal written amendment to the Contract.

mailto:DMS.Purchasing@dms.fl.gov mailto:ben.hensarling@dms.fl.gov

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5.4 Supplier Development

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 Department encourages supplier development through certain certif ications 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 Certif ied Business Enterprises. Upon request, the Contractor will report to the Department its spend with business enterprises certified by the OSD. These reports must include the time period covered, the name and vendor identif ication information of each business enterprise utilized during the period, commodities and contractual services provided by the business enterprise, and the amount paid to the business enterprise on behalf of each agency..

SECTION 6. COMPLIANCE WITH LAWS

6.1 Compliance

The Contractor shall comply with all laws, rules, codes, ordinances, and licensing requirements that are applicable to the conduct of its business, including those of Federal, State, and local agencies having jurisdiction and authority. The Contractor shall comply with section 274A of the Immigration and Nationality Act, the Americans with Disabilities Act and all prohibitions against discrimination on the basis of race, religion, sex, creed, national origin, handicap, marital status, or veteran’s status.

Violation of any laws, rules, codes, ordinances, or licensing requirements shall be grounds for Contract termination or non-renewal of the Contract.

6.2 Notice of Legal Actions

The Contractor shall notify the Department of any legal actions filed against it for a violation of any laws, rules, codes, ordinances, or licensing requirements within thirty

(30) calendar days of the action being filed. The Contractor shall notify the Department of any legal actions filed against it for a breach of a contract of similar size and scope to this Contract within thirty (30) calendar days of the action being filed. Failure to notify the Department of a legal action within thirty (30) calendar days of the action shall be grounds for termination or nonrenewal of the Contract.

6.3 Cooperation with the Inspector General

Pursuant to section 20.055(5), F.S., Contractor and any subcontractors understand and will comply with their duty to cooperate with the Inspector General in any investigation, audit, inspection, review, or hearing.

SECTION 7. DEPARTMENT OF STATE, CORPORATE STATUS CERTIFICATE

Contractor (and any subcontractors) certifies that it is currently authorized to do business in the State and has submitted to the Department a copy of its registration with the Department of State, Division of Corporations. Website: https://dos.myflorida.com/sunbiz/ Title XXXVI, Business Organizations, F.S., lists the requirements that out-of-state entities must fulfill to obtain a Florida Certif icate of Authorization from the Florida Department of State, Division of Corporations, to transact business in the State of Florida (e.g., see section 607.1503(1),F.S., pertaining to corporations).

mailto:OSDHelp@dms.fl.gov https://dos.myflorida.com/sunbiz/

SUSORP/SMSOAP Page 8 of 21

Foreign entities may not transact business in the State until they obtain a certif icate of authority from the Florida Department of State. Website: www.sunbiz.org.

SECTION 8. LIABILITY AND WORKER’S COMPENSATION INSURANCE

This paragraph replaces section 8.e, of the PUR 1000. Commencing no later than five (5) Business Days after execution of this Contract, the Service Provider shall, at its own expense, secure and maintain the insurance coverage required by law and explicitly required by this section and shall provide certif icates of insurance as proof to the Department. Performance may not commence on this Contract until such time as insurance is secured by the Service Provider and evidence provided to the Department.

8.1 Commercial General Liability

Service Provider shall secure and maintain commercial general liability insurance in a face amount of $1,000,000 per occurrence and $2,500,000 in the aggregate. The Department shall be named as an additional insured in the general liability coverage policy.

8.2 Workers' Compensation Insurance

Service Provider shall secure and maintain workers' compensation insurance as required for the State under the relevant workers' compensation law. The worker’s compensation insurance shall cover all employees connected with the Services provided under this Contract. In case any work is sublet, Service Provider shall require the subcontractor similarly to provide worker’s compensation insurance for all of the subcontractor's employees unless such employees are covered by the protection afforded by the Service Provider. Such insurance shall comply fully with the Federal and Florida worker’s compensation law. In case any class of employees engaged in hazardous work under this Contract at the site of the project is not protected under the worker’s compensation statute, Service Provider shall provide, and cause each subcontractor to provide, adequate insurance, satisfactory to the Department, for the protection of employees not otherwise protected.

8.3 Professional Indemnity Insurance

Service Provider shall secure and maintain professional indemnity insurance that shall cover Service Provider’s liability for acts, errors, and omissions in the performance of its professional services in the face amount of $5,000,000 per claim and in the aggregate.

8.4 Subcontractor Insurance Coverage.

Any subcontractor of Service Provider shall provide insurance as follows:

General Liability - $2,500,000 in the aggregate

Workers’ Compensation - statutorily required amount

Service Provider’s major subcontractors shall provide the following additional insurance:

Professional Indemnity Insurance - $2,500,000

Business Interruption - $2,500,000 http://www.sunbiz.org/

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During the term of the Contract, Service Provider may request that the Department reduce subcontractor provider insurance coverage amounts. Any agreement to reduce such insurance coverage amounts shall be made via contract amendment.

8.5 Proof of Insurance

At the request of the Department, Service Provider shall provide all relevant certif icates as proof of such insurance or proof of its ability to self -insure, including renewal or replacement evidence of insurance at least 10 Business Days following the expiration or termination of any insurance.

8.6 Deductible Amounts

Service Provider shall be responsible for payment of its insurance deductible.

8.7 Providing and maintaining adequate insurance coverage is a material obligation of the

Contractor and is of the essence of the Contract. The Contract shall not limit the types of insurance Contractor may desire to obtain or be required to obtain by law. The limits of coverage under each policy maintained by the Contractor shall not be interpreted as limiting the Contractor’s liability and obligations under the Contract. All insurance policies shall be through insurers authorized to write policies in the State of Florida. The Contractor shall have its insurance carrier note the Department as the certif icate holder as provided below:

Florida Department of Management Services Division of Retirement c/o Departmental Purchasing 4050 Esplanade Way Tallahassee, Florida 32399-0950

8.8 Sovereign Immunity

By entering into this Contract, Contractor agrees that it is expressly waiving any right it may have under section 768.28, Florida Statutes, to claim sovereign immunity for liability for torts. Any plaintiff or other party injured by Contractor will be deemed to be a third -party beneficiary of this Contract, but only with respect to the preceding sentence.

SECTION 9. PUBLIC RECORDS

Any and all records produced or used regarding this Contract are subject to Florida’s public records law, as set forth in Chapter 119 of the Florida Statutes. Service Provider must comply with all applicable provisions of Florida’s public records law. Violation of this section shall constitute grounds for termination of the Contract.

9.1 Access to Public Records

The Department may unilaterally cancel this Contract for refusal by the Contractor to comply with this section by not allowing public access to all documents, papers, letters or other material made or received by the Contractor in conjunction with the Contract, unless the records are exempt from section 24(a) of Article I of the State Constitution and section 119.07(1), Florida Statutes.

9.2 Redacted Copies of Confidential Information

If the Contractor considers any portion of any documents, data, or records submitted to the Department to be confidential, proprietary, trade secret, or otherwise not subject to disclosure pursuant to Chapter 119, Florida Statutes, the Florida Constitution or other authority, the Contractor must simultaneously provide the Department with a separate redacted copy of the information it claims as Confidential and briefly describe in writing

SUSORP/SMSOAP Page 10 of 21 the grounds for claiming exemption from the public records law, including the specific statutory citation for such exemption. This redacted copy shall contain the Contract name and number and shall be clearly titled “Confidential.” The redacted copy should only redact those portions of material that the Contractor claims is confidential, proprietary, trade secret, or otherwise not subject to disclosure.

9.3 Request for Redacted Information

In the event of a public records or other disclosure request pursuant to Chapter 119, F.S., the Florida Constitution or other authority, to which documents that are marked as “Confidential” are responsive, the Department will provide the Contractor - redacted copies to the requestor. If a requestor asserts a right to materials which Contractor has identified as confidential, pursuant to section 9.2 of this Contract, the Department will notify the Contractor such an assertion has been made. It is the Contractor’s responsibility to assert that the information in question is exempt from disclosure under Chapter 119 or other applicable law. If the Department becomes subject to a demand for discovery or disclosure of the Confidential Information of the Contractor under legal process, the Contractor shall be responsible for defending its determination that the redacted portions of its records are confidential, proprietary, trade secret, or otherwise not subject to disclosure .

9.4 Indemnification

The Contractor shall protect, defend, and indemnify the Department for any and all claims arising from or relating to the Contractor’s determination that the redacted portions of its response are Confidential Information. If the Contractor fails to submit a redacted copy of information it claims is confidential, the Department is authorized to produce the entire documents, data, or records submitted to the Department in response to a public records request or other lawful request for these records.

9.5 Contractor as Agent

Solely for the purposes of this section, the Department’s Contract Manager is the agency custodian of public records. If, under this Contract, the Contractor is providing services and is acting on behalf of a public agency, as provided by section 119.0701, F.S., the Contractor shall:

9.5.1 Keep and maintain public records required by the public agency to perform the service.

9.5.2 Upon request from the public agency’s custodian of public records, provide the public agency with a copy of the requested records or allow the records to be inspected or copied within reasonable time and at a cost that does not exceed the cost provided in Chapter 119, F.S., or as otherwise provided by law.

9.5.3 Ensure that public records that are exempt or confidential and exempt from public records disclosure are not disclosed except as authorized by law for the duration of the Contract term and following the completion of the Contract if the Contractor does not transfer the records to the public agency.

9.5.4 Upon completion of the Contract, transfer, at no cost, to the public agency all public records in possession of the Contractor or keep and maintain public records required by the public agency to perform the service. If the Contractor transfers all public records to the public agency upon completion of the Contract, the Contractor shall destroy any duplicate public records that are

SUSORP/SMSOAP Page 11 of 21 exempt or confidential and exempt from public records disclosure requirements. If the Contractor keeps and maintains public records upon completion of the Contract, the Contractor shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the public agency, upon request from the public agency’s custodian of public records, in a format that is compatible with the information technology systems of the public agency.

9.5.5 IF THE CONTRACTOR HAS QUESTIONS REGARDING

THE APPLICATION OF CHAPTER 119, FLORIDA

STATUTES, TO THE CONTRACTOR’S DUTY TO

PROVIDE PUBLIC RECORDS RELATING TO THIS

CONTRACT, CONTACT THE CUSTODIAN OF PUBLIC

RECORDS AT THE TELEPHONE NUMBER, EMAIL

ADDRESS AND MAILING ADDRESS PROVIDED FOR

THE CONTRACT MANAGER.

SECTION 10. INTELLECTUAL PROPERTY

The Parties do not anticipate that any intellectual property will be developed as a result of this Contract. However, any intellectual property developed as a result of this Contract will belong to, and be the sole property of, the State. This provision will survive the termination or expiration of this Contract.

SECTION 11. RECORDS RETENTION

The Contractor shall retain sufficient documentation to substantiate claims for payment under the Contract and all other records, electronic files, papers, and documents that were made in relation to this Contract for the longer of five (5) years after expiration of the Contract or the period required by the General Records Schedules maintained by the Florida Department of State available at:

http://dos.myflorida.com/library-archives/records- management/general-records-schedules/.

Any files required by Service Provider to comply with the reporting requirements established by Section 3.13, Reporting Requirements, of Attachment B – Statement of Work, shall be retained until such time that there are no remaining Member assets on deposit in the Plans, regardless of Contract expiration or termination.

SECTION 12. GIFTS

The Contractor agrees that it will not offer to give or give any gift to any State of Florida employee.

This Contractor will ensure that its subcontractors, if any, will apply with this provision.

SECTION 13. MONITORING BY THE DEPARTMENT

The Contractor shall permit all persons who are duly authorized by the Department to inspect and copy any records, papers, documents, facilities, goods and services of the Contractor that are relevant to this Contract and to interview clients, employees and subcontractor employees of the Contractor to assure the Department of satisfactory performance of the terms and conditions of this Contract.

http://dos.myflorida.com/library-archives/records-

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Following such review, the Department may deliver to the Contractor a written report of its finding(s) and direct the development, by the Contractor, of a corrective action plan. This provision will not limit the Department’s termination rights.

SECTION 14. AUDITS & INSPECTION OF RECORDS, PAPERS, AND DOCUMENTS

The Department may conduct or have conducted performance and/or compliance audits of any and all areas of the Contractor and subcontractors as determined by the Department. The Department may conduct an audit and review all the Contractor’s and subcontractors’ data and records that directly relate to the Contract Services. To the extent necessary to verify the Contractor’s fees and claims for payment under the Contract, the Contractor’s agreements or contracts with subcontractors, partners or agents of the Contractor, pertaining to this Contract, may be inspected by the Department upon ten (10) days’ notice, during normal working hours and in accordance with the Contractor’s facility access procedures where facility access is required.

Release statements from its subcontractors, partners or agents 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 State’s Chief Financial Officer and the Office of the Auditor General also have authority to perform audits and inspections.

SECTION 15. BACKGROUND SCREENING, RECORD RETENTION, AND WARRANTY OF

SECURITY

All Contractor employees, subcontractors and agents performing work under the Contract must comply with all security and administrative requirements of the Department.

15.1 Background Screening

In addition to any background screening required by the Contractor as a condition of employment and the requirements found in Attachment B, Statement of Work, 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 restricted or protected information or facilities (“Security Information”), as well as those who have access, including indirect access, to Security Information, 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 Security Information or begin performing services under the Contract. The look-back period for such background screenings shall be for a minimum of six (6) years where six (6) years of historical information is available.

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).

SUSORP/SMSOAP Page 13 of 21

The Contractor agrees that each Person will be screened as a prior condition for performing services or having access to Security Information. 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.

15.2 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 Security Information or directly performing services under the Contract. The disqualifying offenses are crimes where the nature of the criminal activity is such that a reasonable person would agree that the Person’s employment would create a risk of injury, loss, or damage to people and/or property of any State of Florida premises. Examples of these types of crimes include but may not be limited to the following:

Computer related or information technology crimes Fraudulent practices, false pretenses and frauds, and credit card crimes Forgery and counterfeiting Violations involving checks and drafts Misuse of medical or personnel records Felony theft Murder/Manslaughter Petit Theft Burglary/Robbery Aggravated assault Sexual Battery Kidnapping/False Imprisonment

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 Security Information. 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 Security Information, then Contractor shall maintain all criminal background screening information and the rationale for such access in the Person’s employment file.

15.3 Refresh Screening

The Contractor will ensure that all background screening will be refreshed at least twice every year from the time initially performed for each Person during the Term of the

15.4 Warrant of Security

“Warrant of Security” means a written document signed by the Contractor and submitted to the Department’s Contract Manager in which the Contractor includes:

SUSORP/SMSOAP Page 14 of 21

15.4.1 The name of each individual or Person subject to a criminal background screening under the Contract, and the date of his or her most recent criminal background screening; and

15.4.2 A statement confirming that the criminal background screening did not identify a disqualifying offense; or

15.4.3 Notwithstanding the criminal background screening identifying a disqualifying offense, the individual was permitted to become a Person performing services by the Contractor as supported by an analysis using only the factors in subsection 19.1.1.

15.4.4 No Warrant of Security shall include the substance of criminal background screening results or any subsequent analysis.

15.4.5 Initial Warrant of Security

The Contractor will submit an Initial Warrant of Security before services are delivered under this Contract.

15.4.6 Annual Warrant of Security

The Contractor will submit a Warrant of Security to the Contract Manager by December 31st of each Contract year.

15.4.7 Supplemental Warrant of Security

The Contractor will submit a supplemental Warrant of Security to the Contract Manager before any individual subsequently hired by the Contractor, and becomes a Person, delivers services under this Contract.

15.5 Self-Disclosure

The Contractor shall ensure that all Persons have a responsibility to self-report within three

(3) calendar days to the Contractor any updated court disposition regarding any disqualifying offense, regardless of adjudication (adjudication withheld, a plea of guilty or nolo contendere, or a guilty verdict). The Contractor shall immediately reassess whether to disallow that Person access to any State of Florida premises or from directly performing services under the Contract. Additionally, the Contractor shall require that the Person complete an annual certif ication that they have not received any additional criminal misdemeanor or felony record regardless of adjudication (adjudication withheld, a plea of guilty or nolo contendere, or a guilty verdict) for the Disqualifying Offenses and shall maintain that certif ication in the employment file.

In addition, the Contractor shall ensure that all Persons have a responsibility to self- report to the Contractor within three (3) calendar days, any arrest for any Disqualifying Offense.

The Contractor shall notify the Department’s Contract Manager within twenty -four (24) hours of all details concerning any reported arrest.

15.6 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) Business Days prior written notice to the Contractor during the Term of the

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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 Security Information is secure and in compliance with the Contract and all applicable state and federal rules and regulations.

15.7 Record Retention

The Contractor shall retain a list of all Persons with access to Security Information, 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 Security Information, including a policy and procedure for access to Security Information.

The Contractor shall document and record, with respect to each instance of access to Security Information:

• The identity of all individuals who accessed Security Information in any way, whether those individuals are authorized Persons or not;

• The duration of the individual(s)’ access to Security Information, including the time and date at which the access began and ended;

• The identity, form, and extent of Security Information accessed, including, but not limited to, whether the individual accessed partial or redacted versions of Security Information, read-only versions of Security Information, or editable versions of Security Information; and

• The nature of the access to Security Information, including whether Security Information 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) 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 19.3. 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 diff icult 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 $1,000 for each breach of this subsection.

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SECTION 16. PERFORMANCE BOND

16.1 Prior to execution of this Contract, Service Provider will deliver to the Department’s

Contract Manager a performance bond or irrevocable letter of credit in the amount of $2 million dollars.

16.2 The bond or letter of credit shall be used to guarantee at least satisfactory performance by the Service Provider throughout the term of the Contract.

16.3 The bond shall be maintained throughout the term of the Contract, 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 pay losses suffered by the State of Florida directly to the Department.

Notice of Attempted Change The Service Provider shall provide the Department 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 Service Provider’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 Service Provider’s performance of the Services in accordance with the Contract.

16.4 The Service Provider shall not be entitled to payments or Member fees until the performance bond is in place and approved by the Department in writing.

16.5 Upon execution of the Contract and annually thereafter on the execution date anniversary, the Service Provider shall provide the Department with a surety bond continuation certif icate or other acceptable verification that the bond is valid and has been renewed for an additional year.

16.6 The surety bond provided under this section shall be used solely to the extent necessary to satisfy the damage claims made by the State pursuant to the terms of the Contract. In no event shall the surety bond be construed as a penalty bond.

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

SECTION 17. NO OFFSHORING

Unless otherwise agreed in writing, the Contractor and its subcontractors will not perform any of the Services from outside of the United States. All data generated, used, or stored by the

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Contractor pursuant to the Contract must reside and remain in the U.S. and may not be transferred outside of the U.S. The Contractor must also ensure that all services provided under the Contract, including call center or other help services, are performed by persons located in the U.S.

SECTION 18. PREFERRED PRICING AFFIDAVIT

Intentionally left blank.

SECTION 19. SECTION 508 COMPLIANCE

The Contractor will comply with section 508 of the Rehabilitation Act of 1973, as amended and 29 U.S.C. s. 794(d), including the regulations set forth under 36 C.F.R. part 1194. Section 282.601(1), F.S., states that “state government shall, when developing , competitively procuring, maintaining, or using electronic information or information technology acquired on or after July 1, 2006, ensure that State employees with disabilities have access to and are provided with information and data comparable to the access and use by State employees who are not individuals with disabilities.”

SECTION 20. SUBCONTRACTORS

Any work performed in furtherance of the Contract by third-parties other than by the Contractor, subsequently referred to herein as subcontracted work, will be performed by subcontractors approved by the Department. By execution of the Contract, the Contractor acknowledges that it will not be released of its contractual obligations to the Department because of any subcontract.

The Contract terms applicable to subcontractors shall apply to the Contractor’s affiliates, partners, teammates, or any other third-party vendors performing services in furtherance of the Contract (herein referred to as subcontractors). The Contractor is fully responsible for satisfactory completion of all subcontracted work including, but not limited to, subcontractor adherence to the performance standards and guarantees set forth in Attachment C – Deliverables and Performance Measures. It is the Contractor’s responsibility to ensure that any aspects of this scope of work requiring certif ication or licensure are performed by duly certif ied or licensed persons. Contractor shall provide proof of certif ication or licensure upon request.

SECTION 21. CONDUCT OF BUSINESS

The Contractor must comply with all laws, rules, codes, ordinances, and licensing requirements that are applicable to the conduct of its business, including those of federal, state, and local agencies having jurisdiction and authority.

Nothing contained within this Contract shall be construed to prohibit the Contractor from disclosing information relevant to performance of the Contract or purchase order to members or staff of the Florida Senate or Florida House of Representatives.

Pursuant to section 287.057(26), F.S., the Contractor shall answer all questions of, and ensure a representative will be available to, a continuing oversight team.

The Contractor will comply with all applicable disclosure requirements set forth in section 286.101, F.S. In the event the Department of Financial Services issues the Contractor a final order determining a third or subsequent violation pursuant to section 286.101(7)(c), F.S., the Contractor shall immediately notify the Department and applicable Customers and shall be disqualif ied from Contract eligibility.

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SECTION 22. SPECIFIC APPROPRIATION

Not applicable. Section intentionally left blank.

SECTION 23. EVENT OF DEFAULT

23.1 A breach of a material obligation under this Contract constitutes an Event of Default on the part of the Service Provider. However, an Event of Default will not occur by the Service Provider if failure to perform is the result of actions of the Department.

On the part of a Service Provider, an Event of Default includes:

23.1.1 Service Provider employs an unauthorized alien in the performance of any work required under the Contract.

23.1.2 The Service Provider discontinues the performance of the services required under the Contract unless such discontinuance is due to an excused event, a suspension by the Department, or a Department event of default not timely cured.

23.1.3 Service Provider abandons the services.

23.1.4 Service Provider’s refusal to recapture a Member’s Overpayment

(Unauthorized Distribution).

23.1.5 Service Provider’s refusal to correct a Member’s Social Security Number record.

23.1.6 Service Provider becomes insolvent or is declared bankrupt.

23.1.7 Service Provider files for reorganization under the bankruptcy code.

23.1.8 Service Provider commits any act of bankruptcy or insolvency, either voluntarily or involuntarily.

23.1.9 The Service Provider fails to promptly pay any and all taxes or assessments imposed by and legally due to the State or Federal government except for any taxes formally disputed by the Service Provider.

23.1.10 Service Provider makes an assignment for the benefit of creditors without the approval of the Department.

23.1.11 Service Provider makes or has made an intentional material misrepresentation or omission in any materials provided to the Department.

23.1.12 Service Provider (or any entity or person for which Service Provider is responsible) commits or engages in intentional torts, or willful misconduct (including intentional breach of Contract), unlawful conduct, gross negligence, or refusal to comply in relation to the Contract.

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23.1.13 Service Provider fails to maintain the required performance bond or irrevocable letter of credit as specified in Section 16 – Performance Bond.

23.1.14 Service Provider fails to maintain the required insurance as specified in Section

8, Liability and Workers Compensation Insurance.

23.1.15 The Department determines that the surety bond used to secure the Service Provider’s performance of its obligations hereunder becomes unsatisfactory.

23.1.16 Service Provider is suspended, debarred, or is removed as an authorized vendor by any State or Federal agency, or an officer, employee, or agency of the Service Provider under the Contact is convicted of a felony.

23.1.17 Service Provider utilizes a vendor in the performance of the work required by the Contract which has been placed on the Department’s Convicted Vendors List.

23.1.18 Service Provider refuses to allow public access to all documents, papers, letters, or other material subject to the provisions of Chapter 119, F.S., made or received by the Service Provider in performance of the Contract and not otherwise deemed confidential, proprietary or a trade secret.

23.1.19 The Service Provider refuses to allow the State’s Chief Financial Officer, Auditor General and/or the Department’s authorized representatives access as required by the Contract.

23.1.20 Service Provider relocates facilities containing State Data or transmits State

Data outside the United States.

23.1.21 Service Provider changes Sub-contractor without approval from the

Department as provided in Section 20, Subcontractors.

23.1.22 Service Provider refuses to cure the reason for the Department’s non-acceptance of a deliverable after the Department provided written notice or fails to timely pay a financial consequence.

23.2 Department’s Remedies in the Event of Default

Subject to the notice and cure provisions herein and subject to the dispute resolution process in this Contract, upon the occurrence of an Event of Default on the part of the Service Provider, the Department may pursue any other remedy available under law;

however, damages, including but not limited to Financial Consequences, already assessed would be taken into consideration in any dispute resolution activities.

If the Department determines, in its reasonable discretion, that an Event of Default has occurred pursuant to this section, the Department will provide the Service Provider with written notice of its determination, as well as a reasonable description of the Event of Default.

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Unless a lesser time is required by law, the Department will provide the Service Provider with a reasonable period of time (not less than 20 Business Days, or such other time as agreed between the Parties) to cure the Event of Default (the “Cure Period”).

If the Service Provider fails to cure the Event of Default within the Cure Period, the Department may terminate the Contract, in whole or in part, immediately upon expiration of the Cure Period or at any time thereafter by providing written notice thereof to the Service Provider.

At its option, the Department may require the Service Provider to submit a Corrective Action Plan to correct or resolve an Event of Default under this Contract. The Corrective Action Plan must provide:

A detailed explanation of the reasons for the cited Event of Default;

An assessment or diagnosis of the cause; and

A specific proposal and timeline to cure or resolve the Event of Default.

23.3 A Corrective Action Plan must be submitted to the Department within 20 Business Days of the Department’s request or such other time as agreed between the Parties. The Corrective Action Plan is subject to approval by the Department, which will not unreasonably be withheld. Failure to comply will be a violation of the terms of the Contract, that will subject Service Provider to financial consequences as provided in Attachment C

– Deliverables and Financial Consequences.

23.4 Department’s Event of Default

The Department’s failure to perform or delay in performing any of the Department’s responsibilities under this Contract will not constitute grounds for termination of the Contract. This includes any function that is the responsibility of a third party.

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SO AGREED by the Parties’…