Draft Appendix E: Standard TPA Contract

Transcription

1 Draft Appendix E: Standard TPA Contract The Florida Healthy Kids Corporation Third Party Administrator 2011 Request for Preliminary Proposal

2 FLORIDA HEALTHY KIDS CORPORATION THIRD PARTY ADMINISTRATOR CONTRACT THIS THIRD PARTY ADMINISTRATOR CONTRACT (the Contract ) is entered into this day of, 200, (the Effective Date ) between Florida Healthy Kids Corporation ( FHKC ), a Florida not-for-profit corporation under Chapter 617, F.S. and [ENTITY COMPLETE LEGAL NAME] ( ENTITY ACRONYM ), a corporation. RECITALS: WHEREAS, FHKC is a Florida not-for-profit corporation that provides certain health insurance and administrative services under the Florida KidCare Act, Sections , Florida Statutes, and the Florida Healthy Kids Corporation Act, Section , Florida Statutes; and WHEREAS, FHKC issued a Third Party Administrator Invitation to Negotiate on <date>; WHEREAS ENTITY is a licensed (third party administrator, insurance company or health maintenance organization) which submitted a response to the Invitation to Negotiate; WHEREAS, FHKC desires to engage ENTITY to provide the third party administrator and other services described herein, and ENTITY agrees to provide such services, subject to the terms and conditions set forth in this Contract. NOW THEREFORE, in consideration of the premises and the mutual covenants and promises contained herein, and other good and valuable consideration, the receipt and adequacy of which are conclusively acknowledged, the parties mutually agree as follows: Section 1 - Definitions 1-1 ITN. ITN shall mean the FHKC Third Party Administrator Invitation to Negotiate dated March 24, 2006, as amended, a copy of which attached hereto as Attachment A. 1-2 Response to ITN. Response to ITN shall mean the ENTITY response to the ITN, a copy of which is attached hereto as Attachment B. 1-3 TPA Services Commencement Date. TPA Services Commencement Date shall have the meaning set forth in Section 4.9, Effective Dates. 1-4 Other Definitions. All other capitalized but not otherwise defined terms shall have the meanings ascribed to such terms in the ITN. Section 2 - Fees and Costs 2-1 Rates. FHKC shall pay ENTITY for the services to be furnished under this Contract, as described in Section 3, Responsibilities of ENTITY, at the rates set forth in Attachment C. Such rates shall constitute the sole consideration to be paid to ENTITY for all services to be provided under this Contract, whether performed before or after the TPA Services Commencement Date. Third Party Administrator Solicitation Page 2 of 18 The Florida Healthy Kids Corporation

3 2-2 Invoices. Invoices for services as described shall be submitted by ENTITY to FHKC on a monthly basis commencing after the TPA Services Commencement Date. The invoices shall be in sufficient detail to allow proper pre-audit and post-audit review thereof. All billing must be itemized with specificity as to time, date, purpose and other supporting information required by FHKC. 2-3 Payment. FHKC will make payment to ENTITY within thirty (30) days of receiving an invoice from ENTITY provided such billing is in accordance with the terms of this Contract. If FHKC requests detail or clarification regarding an invoice, payment shall be made within thirty (30) calendar days of receipt of the requested detail or clarification. 2-4 Disputed Billing. In the event FHKC disagrees with or questions any amount due under an invoice, FHKC agrees to pay the amount not in disagreement in accordance with the terms of this Contract, and communicate such disagreement to ENTITY in writing within thirty (30) days of the invoice date. Any claim not made within that period shall be deemed waived. 2-5 Reduction of Payments. In the event of ENTITY s failure to complete required work tasks correctly and on time in accordance with the performance standards described in Section 3, Responsibilities of ENTITY, in addition to the other remedies specified in this Contract, FHKC may reduce the amounts otherwise payable to ENTITY from time to time by the amount of liquidated damages specified in such performance standards. Section 3 - Responsibilities of ENTITY 3-1 Description of Required Services. The services to be provided by ENTITY under this Contract shall include the following: A. Implementation; B. System Development; C. System Testing; D. Application and Renewal Processing; E. Customer Services; F. Financial Services; G. Administrative Services; H. Account Maintenance; I. Quality Assurance; and J. Reports (collectively, the Required Services ). Unless other expressly agreed by FHKC in writing, the Required Services shall be performed by ENTITY commencing as of the Effective Date as more particularly described in the ITN, Binder 1, Appendix A, and the Response to ITN each of which is incorporated herein by this reference. If the Response to ITN proposes optional means of performing any of the Required Services, FHKC shall notify ENTITY in writing of its choice between the proposed options, and such writing shall be incorporated in the Contract by reference. No changes to the Required Services shall be made without the prior written consent of FHKC. ENTITY will not utilize resources, personnel or facilities designated for the performance of services under this Contract for any other purpose, including but not limited to the assignment of the same as support for another contract. Third Party Administrator Solicitation Page 3 of 18 The Florida Healthy Kids Corporation

4 3-2 Enhancements. In addition to the Required Services described in Section 3-1, ENTITY shall provide the following enhancements: A. Achievement and maintenance of ISO 9000 certification or, if approved by FHKC, other nationally recognized equivalent, in relation to call center operations, supported by risk mitigation and contingency plans, for the term of the Contract. B. Engagement or employment of a Project Management Institute - certified PMP (Project Management Professional) during implementation, and utilization of PMBOK (Project Management Body of Knowledge) standards commencing with the implementation phase and continuing for the term of the Contract. C. Independent systems testing by third party approved by FHKC, with access by FHKC to web-based test results. D. Capability to accept faxes via server without the need for hard copy printing. E. Optical Character Recognition ( OCR ) (or alternative approach approved by FHKC) for document classification, with appropriate quality assurance methodology. F. Maximized automation of matches defined in ITN as data are made accessible by FHKC. G. Extended hours of operation of call center from 7:30 a.m. to 7:30 p.m., Monday through Friday, with exceptions permitted for holidays approved by FHKC. H. Upon request of FHKC, automated notification/alerts to Enrollees and Applicants as option to supplement written notifications/alerts or in lieu thereof if Applicant so elects, with appropriate exception for HIPAA sensitive information I. Twelve (12) month annual coupon book with replacement books upon request by family, except for those selecting ACH, with reminder on the 5th day of each month to those families failing to make a timely payment and providing a link to the on-line payment option. J. Dashboard/scorecard or industry standard equivalent for performance management. K. Referential data integrity part of database design to assure quality in data migration. L. Daily off-site storage of back-up software and master files. 3-3 Terms and Conditions. The services to be provided by ENTITY under this Contract shall be performed subject to the Terms and Conditions set forth in the ITN, Binder 1, Appendix C, which is incorporated herein by this reference, as well as Section 4, General Terms and Conditions of this Contract. 3-4 Performance Standards. The services to be provided by ENTITY under this Contract shall be performed in accordance with the Performance Standards attached as Attachment D to this Third Party Administrator Solicitation Page 4 of 18 The Florida Healthy Kids Corporation

5 Contract. Failure to perform in accordance with the Performance Standards shall result in reduction in payments to ENTITY as provided in such standards, unless waived in writing by FHKC. If FHKC in its sole discretion determines that an error by ENTITY causes an Enrollee not to have coverage or to have coverage under an incorrect program/insurer, then addition to the other remedies provided for herein, FHKC may hold ENTITY responsible for paying the medical claims of such Enrollee. If FHKC holds ENTITY responsible for claims payments under this provision, ENTITY shall submit claims payments within the time frames established by FHKC. 3-5 Final Implementation Plan. ENTITY shall submit its Final Implementation Plan to FHKC within ten (10) calendar days following the Effective Date. 3-6 Warranties. There are no warranties, expressed or implied, including without limitation, warranties or merchantability and fitness for a particular purpose given by ENTITY, except as set forth in the Performance Standards. 3-7 Records Retention and Accessibility. A. ENTITY agrees to maintain books, records and documents in accordance with generally accepted accounting principles which sufficiently and properly reflect all expenditures of funds provided by FHKC under this Contract. B. ENTITY shall have all records used or produced in the course of the performance of this Contract available at all reasonable times for inspection, review, audit or copying to FHKC, any vendor contracted with FHKC or any state or federal regulatory agency as authorized by law or FHKC. Access to such records will be during normal business hours and will be either through on-site review of records or through the mail. C. ENTITY agrees to cooperate in any evaluative efforts conducted by FHKC or an authorized subcontractor of FHKC both during and for a period of at least five (5) years following the term of this Contract. These efforts may include a post-contract audit. D. ENTITY shall retain and have such records available for inspection for a period of at least five (5) years following the term of this Contract, except if an audit is in progress or audit findings are yet unresolved in which case records shall be kept until all tasks are completed. E. Additionally, ENTITY agrees to provide to FHKC, by July 1 of each year, an audited financial statement for its preceding fiscal year. F. ENTITY acknowledges that all books, records, files, documentation, ledgers and other data and information generated and maintained by ENTITY in the execution of its duties under this Contract shall be and remain the property of FHKC and remain subject to examination by FHKC or its designees without an additional charge to FHKC. ENTITY shall store all items listed above in an electronic format approved Third Party Administrator Solicitation Page 5 of 18 The Florida Healthy Kids Corporation

6 by FHKC. ENTITY shall comply with the requirements of HIPAA and any subsequent and other applicable state or federal laws and regulations as those relate to FHKC data. All records and documentation as described above shall be transferred to FHKC upon termination of the Contract by either party, and ENTITY shall comply with the instructions given by FHKC concerning the transfer of all materials and files at such time as those may be required by FHKC. ENTITY agrees to provide to FHKC all computer files generated and maintained by ENTITY in the performance of its duties under this Contract in a format that is readily editable using conventional and commercially available editing software. G. ENTITY shall include all the requirements of this subsection in all approved subcontracts and assignments and ENTITY agrees to require subcontractors and assignees to meet these requirements. 3-8 Use of Subcontractors or Affiliates ENTITY may contract with subcontractors or affiliates to deliver services under this Contract subject to the following conditions. A. ENTITY identified the subcontractor or affiliate in its Response to ITN. B. ENTITY has provided FHKC with a copy of the current contract or other written agreement and any amendments for services under this Contract between ENTITY and the subcontractor or affiliate. FHKC shall have the right to withhold its approval of any such contracts, agreements and amendments. C. ENTITY S contract with the subcontractor or affiliate fully complies with all terms and conditions of this Contract between ENTITY and FHKC. D. ENTITY agrees to notify FHKC in advance of the termination of such agreements with any subcontractor or affiliate. E. ENTITY shall provide FHKC with advance notice of ENTITY S intent to contract with any new subcontractors or affiliates for services covered under this Contract. Prior to execution, ENTITY shall forward for FHKC s review and approval any proposed agreement for services with subcontractors or affiliates. F. By April 1 of each year, ENTITY shall provide FHKC with an annual report listing, for the previous calendar year, all subcontractors or affiliates that performed services under this Contract for ENTITY. All agreements between ENTITY and its subcontractor or affiliates to provide services under this Contract shall be reduced to writing and shall be executed by both parties. All such agreements shall also be available to FHKC within seven (7) business days of request for production. Failure of ENTITY to comply with the provisions of this section shall constitute a material Third Party Administrator Solicitation Page 6 of 18 The Florida Healthy Kids Corporation

7 breach and renders this Contract subject to unilateral cancellation by FHKC. 3-9 Indemnification. ENTITY shall be solely liable for the actions of its agents, employees, partners or subcontractors and shall fully indemnify, defend and hold harmless FHKC and its officers, directors, agents and employees from suits, actions damages and costs of every type and description, including attorneys fees, arising from or relating to personal injury and damage to real or personal property alleged to have been caused in whole or in part by ENTITY, its agents, employees, partners or subcontractors. ENTITY shall indemnify, defend and hold harmless FHKC, its officers, directors, agents and employees from all suits, actions, damages and costs of every type and description, including court costs and attorneys fees, arising out of : A. negligence, intentional torts or breach of contract by ENTITY; B. any claims or losses attributable to any act, error or omission of ENTITY or its officers, agents, employees or subcontractors in the course of performance of the Contract or in any way directly or indirectly related to such performance; C. any failure of ENTITY, its officers, employees or subcontractors to observe the requirements of applicable Florida or federal law, regardless of whether FHKC knew or should have known of such failure; and D. third party claims of infringement or misuse of any patent or copyright arising out of or resulting from ENTITY S performance of this Contract Bonding and Insurance Requirements A. Within ten (10) calendar days after the Effective Date, ENTITY shall furnish to FHKC a fidelity bond in the form required by the ITN, Binder 1, Appendix C, in the amount of one million dollars ($1,000,000.00) insuring FHKC against the criminal conduct of or fraud by ENTITY, its officers, agents, employees and subcontractors. Such bond shall be maintained in effect throughout the term of the Contract. B. Within ten (10) calendar days after the Effective Date, ENTITY shall furnish to FHKC a performance bond in the form required by the ITN, Binder 1, Appendix C, in the amount of five million dollars ($5,000,000) or ten percent (10%) of the total Contract amount for the four year base contract term, whichever is greater, to insure full and complete performance of the Contract. Such bond shall be maintained in effect throughout the term of the Contract. C. ENTITY shall secure and maintain during the term of the Contract worker s compensation insurance for all its employees engaged in performance of the obligations of ENTITY under this Contract. If ENTITY subcontracts any work under this Contract, ENTITY shall require the subcontractor to provide worker s compensation coverage or insurance for all of its employees. Such self-insurance or insurance coverage shall comply with the Florida Worker s Compensation law. Third Party Administrator Solicitation Page 7 of 18 The Florida Healthy Kids Corporation

8 D. ENTITY shall secure and maintain Commercial General Liability insurance, including bodily injury, property damage, personal and advertising injury and products and completed operations. This insurance will provide coverage for all claims that may arise from the services and/or operations completed under this Contract, whether performed by ENTITY, or by its agents, employees or subcontractors. Such insurance shall be in the minimum amount of $ 500,000, or such greater amount as FHKC shall reasonably require, and shall name FHKC as an Additional Named Insured for the entire term of this Agreement. E. The insurance required by this section shall be with an insurer licensed or eligible to transact business in the State of Florida. Within ten (10) calendar days of the Effective Date, and on an annual basis thereafter, ENTITY shall furnish its current certificate of insurance coverage to FHKC Management Information Systems and Communications Equipment & Costs ENTITY shall be solely responsible for establishing computer access to FHKC. ENTITY is responsible for all equipment, telecommunication, Internet working and linkages costs, including local hoops, communication devices, service and maintenance and recurring charges. ENTITY shall also be responsible for the cost of terminals, personal computers, networking hardware, software and any communications equipment. ENTITY shall bear the cost of any additions and/or modifications to FHKC S corporate system that FHKC determines are necessary in order to provide FHKC with on-line access as described in the ITN, Binder 1, Appendix C, Section B, Systems Development. ENTITY shall provide a high speed modem (or other technology acceptable to FHKC) to FHKC for high speed connectivity including associated hardware and software, and shall have Internet mail capability. ENTITY shall provide and maintain the FHKC member services hot line number ( or other number(s) approved by FHKC), and shall cooperate with FHKC S previous third party administrator and FHKC to ensure smooth transfer of the number by the TPA Services Commencement Date. ENTITY shall cooperate with FHKC and any future third party administrator in the transfer of the number during turnover at the end of this Contract Turnover Plan Within nine (9) months after the Effective Date, ENTITY shall prepare and submit to FHKC for its approval a detailed Contract turnover plan in the form required by the ITN, Binder 1, Appendix C and the Response to ITN SAS 70 Type II Audit On or before July 1 of each state fiscal year, ENTITY shall submit an electronic dataprocessing system audit to FHKC in accordance with the requirements of the ITN, Binder 1, Appendix A and the Response to ITN. Third Party Administrator Solicitation Page 8 of 18 The Florida Healthy Kids Corporation

9 3-14 Business Continuity and Contingency Plan Within one hundred twenty (120) calendar days after the Effective Date, ENTITY shall prepare and submit to FHKC for its approval a detailed Business Continuity and Contingency Plan in the form required by the ITN, Binder 1, Appendix C and the Response to ITN. ENTITY shall maintain the Business Continuity and Contingency Plan and the ability to implement such plan upon the terms and in the manner required by the ITN throughout the term of the Contract Required Certifications. Simultaneously with its execution of this Contract, ENTITY shall execute the Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion attached to this Contract as Attachment E, and the Certification Regarding Lobbying; Certification for Contracts, Grants, Loans and Cooperative Contracts attached to this Contract as Attachment F Use of FHKC Name ENTITY may not use the term FHKC or Florida Healthy Kids or any trademark, service mark or other proprietary mark or logo of FHKC in any written or published materials without the prior written consent of FHKC. Section 4 - General Terms and Conditions 4-1 Amendment This Contract may be amended by mutual written consent of the parties at any time. This Contract shall automatically be amended to the extent necessary from time to time to comply with state or federal laws or regulations or the requirements of FHKC s contract with AHCA upon notice by FHKC to ENTITY to that effect. 4-2 Assignment This Contract and the monies that may become due under it may not be assigned by ENTITY without the prior written consent of FHKC. Any purported assignment without such consent shall be deemed null and void. 4-3 Attachments The following attachments are all incorporated into this Contract by reference: A - FHKC Third Party Administrator Invitation to Negotiate B - Response of Entity to FHKC Invitation to Negotiate C - Compensation Schedule Third Party Administrator Solicitation Page 9 of 18 The Florida Healthy Kids Corporation

10 D - Performance Standards E - Certification Regarding Debarment, Suspension, Ineligibility, etc. F - Certification Regarding Lobbying, etc. G - HIPAA Certificate In the event of any conflict between this Contract and the ITN with respect to matters not addressed herein, the ITN shall control. In the event of any other conflict between the Attachments and this Contract, the Contract provision shall control. 4-4 Attorney Fees In the event of any legal action, dispute, litigation or other proceeding with relation to this Contract, FHKC shall be entitled to recover from ENTITY its attorneys fees and costs incurred, whether or not suit is filed, and if filed, at both trial and appellate levels. Legal actions are defined to include administrative proceedings. It is understood that the intent of this provision is to protect the Enrollees who receive health insurance benefits through the Florida KidCare Program and rely upon the continuation of that program. 4-5 Bankruptcy FHKC shall have the absolute right to elect to continue or terminate this Contract, at its sole discretion, in the event ENTITY or any of its approved subcontractors file a petition for bankruptcy or for approval of a plan of reorganization or arrangement under the Bankruptcy Act. ENTITY shall give FHKC notice of the intent to petition for bankruptcy or reorganization or arrangement at the time of the filing and immediately provide a copy of such filing to FHKC. FHKC shall have thirty (30) calendar days to elect continuation or termination of this Contract. 4-6 Change of Controlling Interest FHKC shall have the absolute right to elect to continue or terminate this Contract, at its sole discretion, in the event of a change in the ownership or controlling interest of ENTITY. ENTITY shall give FHKC notice of regulatory agency approval, if applicable, prior to any transfer or change in control or documentation of the change if regulatory agency approval is inapplicable. FHKC shall have thirty (30) calendar days from its receipt of such notice to elect continuation or termination of this Contract. 4-7 Confidentiality ENTITY shall execute the Health Insurance Portability and Accountability Act ( HIPAA ) Business Associate Agreement attached as Attachment G and shall abide by all of its provisions during and following the term of this Contract. ENTITY shall treat all information, particularly personal or identifying information relating to Applicants or Enrollees that is obtained through its performance under this Contract, as Third Party Administrator Solicitation Page 10 of 18 The Florida Healthy Kids Corporation

11 confidential information to the extent confidential treatment is provided under state and federal laws including sections and , F.S. regarding confidentiality of information held by FHKC and the Florida KidCare Program. ENTITY shall not use any information obtained in any manner except as necessary for the proper discharge of its obligations and to secure its rights under this Contract. Such information shall not be divulged without written consent of FHKC, the Applicant or the Enrollee. This provision does not prohibit the disclosure of information in summary, statistical or other form which does not identify particular individuals. ENTITY and FHKC mutually agree to maintain the integrity of all proprietary information including, but not limited to, memberships lists (including names, addresses and telephone numbers) to the extent provided under the law. To the extent permitted under state law, neither party will disclose or allow others to disclose proprietary information by any means to any person without prior written approval of the other party. All proprietary information will be so designated. This requirement does not extend to routine reports and membership disclosure necessary for efficient management of the Program. However, Entity understands that FHKC may be subject to the Florida Public Records Act, (Section , F.S.) and all such information may be considered a public record and open to inspection. Thus, unless otherwise exempted by law, ENTITY shall allow public access to all documents, papers, letters, electronic correspondence or other material subject to the provisions of Chapter 119, F.S. and made or received by ENTITY in conjunction with this Contract. However, ENTITY agrees to advise FHKC prior to the release of any such information. 4-8 Conflicts of Interest; Non-Solicitation ENTITY asserts that to the best of its knowledge, the responsibilities and duties assumed pursuant to this Contract are not in conflict with any other interest to which the ENTITY is obligated or from which ENTITY benefits. Further, ENTITY agrees to inform FHKC immediately after becoming aware of any conflicts of interest which it may have with the interests of FHKC, as set forth in this Contract and which may occur in the future. ENTITY recognizes and acknowledges that as a result of this Contract ENTITY will come into contact with employees of FHKC and that these employees have received considerable training by FHKC. ENTITY agrees not to solicit, recruit or hire any individual who is employed by FHKC during the term of this Contract. This prohibition shall be in effect for both the term of this Contract and twelve (12) months immediately following its termination. 4-9 Effective Dates. 1. This Contract shall begin on the Effective Date. 2. ENTITY shall commence performance of the third party administrator services for FHKC on <date> (the TPA Services Commencement Date ). 3. This Contract shall end on <date>. Third Party Administrator Solicitation Page 11 of 18 The Florida Healthy Kids Corporation

12 This Contract may be extended at FHKC s option upon the terms and conditions set forth herein for a maximum of two renewal periods of up to 3 years (1st renewal) and up to 2 years (2nd renewal), respectively, beyond the initial term indicated above. FHKC agrees to notify ENTITY by <date>, if FHKC does not intend to exercise the first one year extension option and by <date>, if FHKC has exercised the first option but does not intend to exercise the second one year extension option. In no event shall this contract extend beyond <date>. Upon the expiration of the Contract, should FHKC choose to use another vendor, ENTITY shall cooperate to ensure a smooth transition Entire Understanding. This Contract with all Attachments incorporated by reference embodies the entire understanding of the parties in relationship to the subject matter in this Contract. This Contract supersedes all prior negotiations, representations or agreements between the parties relating to this Contract Force Majeure. Neither party shall be responsible for delays of failure in performance of its obligations under this Contract resulting from acts beyond the control of the party. Such acts shall include, but are not limited to, blackouts, riots, acts of war, terrorism, epidemics, government regulations or statutory amendments adopted after the Effective Date, fire, communication line failure, computer hardware failure, computer executive software failure, power failure or shortage, fuel shortages, hurricanes or other natural disasters. Nothing herein shall be construed to relieve ENTITY of its obligation to prepare and implement its Business Continuity and Contingency Plan Governing Law; Venue This Contract shall be governed by applicable state and federal laws and regulations as such may be amended during the term of the Contract, whether or not expressly included or referenced in this Contract. ENTITY agrees to comply with the following provisions as such may from time to time be amended during the term of this Contract: A. Title VI of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000d et seq., which prohibits discrimination on the basis of race, color or national origin. B. Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 794, which prohibits discrimination on the basis of handicap. C. Title XI of the Education Amendments of 1972, as amended 29, U.S.C. 601 et seq., which prohibits discrimination on the basis of sex. Third Party Administrator Solicitation Page 12 of 18 The Florida Healthy Kids Corporation

13 D. The Age Discrimination Act of 1975, as amended, 42 U.S.C et seq., which prohibits discrimination on the basis of age. E. Section 654 of the Omnibus Budget Reconciliation Act of 1981, as amended, 42 U.S.C. 9848, which prohibits discrimination on the basis of race, creed, color, national origin, sex, handicap, political affiliation or beliefs. F. The American Disabilities Act of 1990, P.L , which prohibits discrimination on the basis of disability and requires accommodation for persons with disabilities. G. Section 274A (e) of the Immigration and Nationalization Act, FHKC shall consider the employment by any contractor of unauthorized aliens a violation of this Act. H. OMB Circular A-110 (Appendix A-4) which identifies procurement procedures which conform to applicable federal law and regulations with regard to debarment, suspension, ineligibility, and involuntary exclusion of contracts and subcontracts and as contained in Attachment B of this Contract. Covered transactions include procurement contracts for services equal to or in excess of one hundred thousand dollars ($100,000.00) and all non-procurement transactions. I. Titles XIX and XXI of the federal Social Security Act. J. All applicable state and federal laws and regulations governing FHKC. K. All regulations, guidelines and standards as are now or may be lawfully adopted under the above statutes. ENTITY agrees that compliance with this assurance constitutes a condition of continued receipt of or benefit from funds provided through this Contract and such compliance is binding upon ENTITY, its successors, transferees and assignees for the period during which services are provided. The ENTITY further agrees that all contractors, subcontractors, subgrantees or others with whom it arranges to provide goods, services or benefits to participants or employees in connection with any of its programs and activities are not discriminating against those whom they employ nor those to whom they provide goods, services or benefits in violation of the above statutes, regulations, guidelines and standards. It is expressly understood that evidence of ENTITY s refusal to substantially comply with this provision or such failure by ENTITY s subcontractors or affiliates performing under this Contract shall constitute a material breach and renders this Contract subject to unilateral cancellation by FHKC. In the event any action is brought to enforce the provisions of this Contract, venue shall be Leon County, Florida Independent Contractor The relationship of ENTITY to FHKC shall be solely that of an independent contractor. The parties acknowledge and agree that neither party has the authority to make any representation, warranty or binding commitment on behalf of the other party, except as Third Party Administrator Solicitation Page 13 of 18 The Florida Healthy Kids Corporation

14 expressly provided in this Contract or as otherwise agreed to in writing by the parties, and nothing contained in this Contract shall be deemed or construed to (i) create a partnership or joint venture between the parties or any affiliate, employee or agent of a party; or (ii) constitute any party or any employee or agent of a party as an employee or agent of the other party Name and Address of Payee The name and address of the official payee to whom the payment shall be made: For ENTITY: Name Address Notice and Contact All notices required under this section shall be in writing and may be delivered by certified mail, return receipt requested, by facsimile with proof of receipt, by electronic mail with proof of receipt or in person with proof of delivery. Notice required or permitted under this Contract shall be directed as follows: For FHKC: Florida Healthy Kids Corporation or Florida Healthy Kids Corporation Post Office Box East Jefferson Street, 2nd Floor Tallahassee, FL Tallahassee, FL (Fax) lloydj@healthykids.org [INSERT ENTITY NAME AND CONTACT INFORMATION]: The name and contact information for the FHKC contract manager for this Contract are. The name and contact information for the representative of ENTITY responsible for administration of this Contract are. In the event that different contact persons are designated by either party after execution of this Contract, notice of the name and address of the new contact will be sent to the other party and attached to the originals of this Contract Ownership of Software and System Modifications In performing this Contract, specific software and system modifications unique to the requirements of this Contract may be acquired or developed by ENTITY. FHKC acknowledges that it is seeking to purchase products and services that may be subject to Third Party Administrator Solicitation Page 14 of 18 The Florida Healthy Kids Corporation

15 existing restrictions. FHKC shall have the paid in full, royalty-free license to use any such pre-existing products and services as necessary or appropriate for its performance under the Contract. With the exception of products and services that are already proprietary, all products and materials including software that are created by ENTITY in the course of performance of this Contract shall be the property of FHKC. With respect to any products or services that constitute a work of authorship within the scope of U.S. copyright law, 17 U.S.C. Sections , such work shall be a work for hire as defined in 17 U.S.C. Section 101 and all copyrights in such work for hire shall be owned by FHKC. With respect to any product or services that are subject to United States patent laws, the exclusive rights to such work shall belong to FHKC. FHKC will consider future proposals by ENTITY to make materials developed for FHKC available for use by other entities through an appropriate licensing or other written agreement Severability If any of the provisions of this Contract are held to be inoperative by a court of competent jurisdiction, such a provision shall be severed from the remaining provisions of the Contract which shall remain in full force and effect Survival. The provisions of the following sections: Records Retention and Accessibility; Attorney Fees; Confidentiality; Conflicts of Interest; Non-Solicitation Ownership of Software and System Modifications; and Governing Law; Venue shall survive any termination of this Contract Termination of Contract. A. Termination for Lack of Funding This Contract is subject to the continuation and approval of funding to FHKC from state, federal and other sources. FHKC shall have the absolute right, in its sole discretion, to terminate this Contract if funding for the Program is to be changed or terminated such that this Contract should not be sustained. FHKC shall send ENTITY notice of termination and include a termination date of not less than thirty (30) days from the date of the notice. B. Termination for Lack of Payment or Performance If FHKC fails to make payments in accordance with the schedule included in this Contract, ENTITY may suspend work and pursue the appropriate remedies for FHKC s breach of its payment obligations. ENTITY must provide FHKC at least ten (10) days written notice of any suspension due to lack of payment and allow FHKC an opportunity to correct the default prior to suspension of work. If the ENTITY fails to make timely progress on the objectives of this contract or fails to meet the deliverables described under this Contract in the time and manner prescribed, FHKC may terminate this Contract on not less than thirty (30) days notice. At its discretion, FHKC may allow the ENTITY to cure any performance Third Party Administrator Solicitation Page 15 of 18 The Florida Healthy Kids Corporation

16 deficiencies prior to final termination. C. Termination for Material Breach 4-20 Waiver. In the event the ENTITY or any subcontractor, person or entity performing or furnishing services, materials, or supplies on behalf of ENTITY in connection with the performance of this Contract materially breaches this Contract, FHKC shall give ENTITY notice of such breach and ENTITY shall have thirty (30) calendar days from receipt of this notice to cure the breach. In the event cure is not made within thirty (30) calendar days, then unless waived by FHKC in writing, FHKC may terminate this Contract upon written notice to ENTITY effective as of the date determined by FHKC in its sole discretion. Notwithstanding the foregoing, FHKC may terminate this Contract immediately upon notice to ENTITY if (i) ENTITY becomes insolvent, files a petition for protection from its creditors or suffers or consent to the appointment of a trustee or receiver to take possession of its assets; or (ii) FHKC determines in good faith that the actions or inactions of ENTITY may cause material harm to the missions, goals and objectives of FHKC; or (iii) ENTITY s license has been restricted, suspended or revoked. D. Termination upon Revision of Applicable Law FHKC and ENTITY agree if federal or state revisions of any applicable laws or regulations restrict FHKC s ability to comply with the Contract, make such compliance impracticable, frustrate the purpose of the Contract or place the Contract in conflict with FHKC s ability to adhere to its statutory purpose, FHKC may unilaterally terminate this Contract. FHKC shall send ENTITY notice of termination and include a termination date of not less than thirty (30) calendar days from the date of notice. No waiver of any right to performance of the express conditions of this Contract shall be effective for any purpose unless it is in writing and signed by the party waiving such right. The failure of FHKC or ENTITY to object to or to take affirmative action with respect to the conduct of the other party which is a breach of any term, covenant or condition of this Contract shall not be construed as a waiver of that breach or of any prior or future breach of the same or any other term, covenant or condition of this Contract. [SIGNATURE PAGE FOLLOWS] Third Party Administrator Solicitation Page 16 of 18 The Florida Healthy Kids Corporation

17 IN WITNESS WHEREOF, the Parties have caused this Contract to be executed by their undersigned officials as duly authorized. DATED this day of, WITNESSES: ENTITY: Print Name: Person with Signatory Authority Title: Print Name: Florida Healthy Kids Corporation: Print Name: Executive Director Print Name: STATE OF, COUNTY OF. The foregoing instrument was acknowledged before me this day of <date>, by, as, Inc., on behalf of the Corporation. He/She is personally known to me or has produced as identification. NOTARY PUBLIC - STATE OF FLORIDA Print, Type or Stamp Name of Notary Public Third Party Administrator Solicitation Page 17 of 18 The Florida Healthy Kids Corporation

18 STATE OF FLORIDA, COUNTY OF LEON. The foregoing instrument was acknowledged before me this day of November, 2006, by, as Executive Director, on behalf of the Corporation. She is personally known to me or has produced as identification. NOTARY PUBLIC - STATE OF FLORIDA Print, Type or Stamp Name of Notary Public Third Party Administrator Solicitation Page 18 of 18 The Florida Healthy Kids Corporation